author: TERRY McCALL, Justice.

text:
    Isbaal Velasquez CHAVEZ, Appellant, v. STATE of Texas, Appellee.
    No. 11-09-00178-CR.
    Court of Appeals of Texas, Eastland.
    Sept. 2, 2010.

      David G. Rogers, Fivecoat, Rogers & Goble, P.L.L.C., Midland, for Appellant.
    Teresa J. Clingman, Dist. Atty., Eric Kalenak, Asst. Dist. Atty., Midland, for Appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

TERRY McCALL, Justice.

In a three-count indictment, Isbaal Velasquez Chavez was charged with one count of aggravated sexual assault (Count I) and two counts of indecency with a child (Counts II and III). The jury acquitted appellant on the aggravated sexual assault count and convicted him on the indecency with a child counts. The jury assessed punishment at fourteen years confinement and a fine of $7,000 on Count II and at fifteen years confinement and a fine of $9,000 on Count III. The trial court ordered that the sentences run concurrently. We affirm.

Background

Count I of the indictment alleged that, on or about May 1, 2004, appellant intentionally and knowingly penetrated the female sexual organ of L.C., a child younger than fourteen years old, with his finger. Count II alleged that, on or about May 1, 2004, appellant engaged in sexual contact with L.C. by touching a part of her genitals with the intent to arouse and gratify his sexual desire. Count III alleged that, on or about January 1, 2004, appellant engaged in sexual contact with L.C. by touching a part of her body with a part of his genitals with the intent to arouse and gratify his sexual desire. L.C. is appellant’s daughter. At the time of trial, L.C. was twelve years old. The jury acquitted appellant of the aggravated sexual assault charge in Count I and convicted him of the indecency with a child charges in Counts II and III.

Issues on Appeal

Appellant presents two issues for review. In his first issue, he challenges the legal and factual sufficiency of the evidence to support his convictions for indecency with a child. In his second issue, he contends that the trial court erred in failing to grant a mistrial after the State’s expert witness, Andra K. Chamberlain, testified that there is about an eighty percent chance that a child will recant a sexual abuse outcry if the child has an unsup-portive mother.

Sufficiency of the Evidence Standards of Review

To determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Laster v. State, 275 S.W.3d 512, 517-18 (Tex.Crim.App.2009); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App.2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Laster, 275 S.W.3d at 519; Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App.2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App.1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 28 S.W.3d at 10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses’ testimony. Tex.Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).

The Evidence at Trial

Maria Chavez, L.C.’s mother, was married to appellant. The record shows that, in December 2006, Maria reported to the Midland Police Department that appellant had sexually abused L.C. Maria told Midland Police Officer Scott Howard and Midland Police Detective Nancy Hollingsworth that L.C. told her that appellant had sexually abused her. On December 23, 2006, Andra K. Chamberlain, the Program Director for the Children’s Advocacy Center in Midland, conducted a forensic interview of L.C.

Chamberlain testified as the outcry witness at trial. Chamberlain said that L.C. told her that appellant abused her when she was eight years old. L.C. told Chamberlain that appellant came into her bedroom before he left for work, pulled down her pajamas and panties, and touched her private area with his hands. During the forensic interview, L.C. circled the genitalia area on an anatomical drawing of a girl to further identify the area that appellant touched. L.C. used dolls to demonstrate that she was lying down and that, after appellant touched her vaginal area, he got on top of her. L.C. said that appellant touched her private area with his hands on five or six occasions. L.C. said that she did not tell anyone about the abuse because she was afraid.

Also on December 23, 2006, Detective Hollingsworth interviewed appellant. Detective Hollingsworth recorded the interview. The State introduced a copy of the recording into evidence, and it was played for the jury. During the interview, appellant admitted that he touched L.C.’s vagina with his hands. He said that he got on top of her. Appellant also admitted that he touched L.C. with his penis. He said that he did not put his penis “inside her” but that he put it “on top” of her vagina. Appellant also said that Maria had known of his abuse of L.C. for about eight months.

Maria testified that L.C. never told her that appellant sexually abused her. Maria said that she and L.C. made up the story to “get back at” appellant because “he was seeing somebody.” Maria testified that she told appellant to confess to L.C.’s accusations and that, if he did not confess, CPS was going to take L.C. and their other children away.

On January 11, 2007, Maria told Detective Hollingsworth that she made up the sexual abuse allegations. On March 6, 2007, Maria signed an affidavit of non-prosecution. In the affidavit, she stated that appellant “did not commit the crime.” She also stated, “I know this for a fact, because I twisted the situation so that my daughter could do the accusations.” In February 2008, Maria was charged with a misdemeanor perjury offense in connection with making the affidavit of non-prosecution.

In October 2008, Maria testified in an earlier trial of this cause that L.C. told her that appellant abused her and that appellant admitted to her that he sexually abused L.C. In her present testimony in this cause, Maria said that she lied under oath when she gave her October 2008 testimony. She said that she gave her earlier testimony to cooperate with the district attorney’s office. Maria said that the prosecutor told her that, if she cooperated, the misdemeanor charge against her would be dropped, L.C. would not have to testify at trial, and appellant could get probation. Maria testified that the prosecutor told her to cooperate and that she understood him to be telling her to lie in court. On February 27, 2009, the misdemeanor cause against Maria was dismissed upon the State’s motion.

Maria also testified that appellant made about $70,000 a year at his job. She said that, after giving her October 2008 testimony, she learned that appellant could be deported if he was convicted in this cause.

L.C. testified that she and Maria made up the story that appellant touched her because they were mad at him for cheating on Maria. Chamberlain testified that child sexual abuse victims go through a disclosure process. She said that, if a child who has made an outcry of sexual abuse has an unsupportive mother, there is about an eighty percent chance that the child will recant the outcry.

Analysis

Appellant contends that the evidence was legally and factually insufficient to support his convictions in light of Maria’s and L.C.’s recantations during then-trial testimony. A child victim’s outcry statement alone can be sufficient to sustain a conviction for a sexual offense. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.Crim.App.1991); Saldaña v. State, 287 S.W.3d 43, 60 (Tex.App.-Corpus Christi 2008, pet ref'd); Kimberlin v. State, 877 S.W.2d 828, 831 (Tex.App.-Fort Worth 1994, pet. ref'd). Chamberlain’s outcry testimony and the statements made by appellant in his recorded interview constituted sufficient evidence to support appellant’s convictions. While Maria and L.C. recanted their prior statements during their testimony, it was up to the factfinder to determine whether to believe the prior statements or the recantations. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991); Saldaña, 287 S.W.3d at 60. As such, the jury was free to disbelieve Maria’s and L.C.’s recantations. Chambers, 805 S.W.2d at 461; Saldaña, 287 S.W.3d at 60. After reviewing all of the evidence, we find that it was legally and factually sufficient to support appellant’s convictions. Appellant’s first issue is overruled.

Trial Court’s Denial of Motion for Mistrial

The prosecutor asked Chamberlain how often children recant their accusations. In response, Chamberlain testified that there is about an eighty percent chance of recantation if the child has an unsupportive mother. Appellant’s counsel objected to this testimony on the ground that it constituted “an opinion on whether that child was telling the truth or not.” Appellant’s counsel also moved for a mistrial. The trial court overruled the objection and denied the motion for mistrial.

We review the denial of a motion for mistrial under an abuse of discretion standard. Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App.2007); Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.Crim.App.2004). Expert testimony that a particular witness is truthful is inadmissible under Tex.R. Evid. 702. Pavlacka v. State, 892 S.W.2d 897, 902 n. 6 (Tex.Crim.App.1994); Yount v. State, 872 S.W.2d 706, 711 (Tex.Crim.App.1993); Vasquez v. State, 975 S.W.2d 415, 417 (Tex.App.-Austin 1998, pet. ref'd). Thus, an expert witness may not offer a direct opinion on the truthfulness of a child complainant’s allegations. Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App.1997); Yount, 872 S.W.2d at 708. Nor may an expert offer an opinion that the class of persons to which the complainant belongs, such as child sexual abuse victims, is truthful or worthy of belief. Pavlacka, 892 S.W.2d at 902 n. 6; Yount, 872 S.W.2d at 712; Vasquez, 975 S.W.2d at 417. However, expert testimony that a child exhibits behavioral characteristics that have been empirically shown to be common among children who have been sexually abused is relevant and admissible under Rule 702. Yount, 872 S.W.2d at 708-09; Cohn v. State, 849 S.W.2d 817, 819 (Tex.Crim.App.1993); Gonzales v. State, 4 S.W.3d 406, 417 (Tex.App.-Waco 1999, no pet.); Vasquez, 975 S.W.2d at 417. Such testimony is not objectionable on the ground that it bolsters the credibility of the child complainant. Cohn, 849 S.W.2d at 820-21.

Chamberlain did not offer a direct opinion that L.C. was truthful in her initial outcry of sexual abuse or that L.C. belonged to a class of persons that was truthful or worthy of belief. Nor did Chamberlain offer testimony that L.C. was not truthful in her trial testimony. Instead, Chamberlain testified about the behavioral characteristics of children whose mothers do not support their outcries of sexual abuse. Maria did not support L.C.’s outcry of sexual abuse. Chamberlain said that, in such cases, there is about an eighty percent chance that a child complainant will recant. Chamberlain’s testimony was admissible to assist the jury in assessing L.C.’s testimony. The trial court did not abuse its discretion in denying appellant’s motion for mistrial. We overrule appellant’s second issue.

This Court’s Ruling

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: RICK STRANGE, Justice.

license: Public Domain

text:
    Adrian CONTRERAS, Appellant, v. STATE of Texas, Appellee.
    Nos. 11-09-00107-CR, 11-09-00109-CR.
    Court of Appeals of Texas, Eastland.
    Sept. 9, 2010.

      Brian W. Salvant, The Salvant Law Firm, PC, Fort Worth, for Appellant.
    Paul D. Johnson, Dist. Atty., Charles E. Orbison, Asst. Dist. Atty., Denton, for Ap-pellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

The jury convicted Adrian Contreras of intoxication assault and failure to stop and render aid and assessed his punishment at nine years confinement and a $10,000 fine for intoxication assault and five years confinement and a $5,000 fine for failure to stop and render aid. We affirm.

I. Background Facts

Contreras unsuccessfully tried to pass a motorcycle while driving a pickup. Contreras hit the motorcycle from the side and caused it to flip and throw its riders. Contreras did not stop to assist the injured motorcyclists. An eyewitness stopped, helped the motorcyclists, and called 911. Another witness observed a pickup with a blown-out tire speed into a Taco Bueno parking lot and drive to the back next to a dumpster. Concerned that something was wrong, the witness called 911. The witness saw a passenger, who appeared intoxicated, exit the pickup, look at damage on the vehicle’s passenger side, and gather beer cans from the pickup.

Lewisville police officers responded to both 911 calls. Officer Deborah Binion responded to the call from Taco Bueno. Officer Binion approached Contreras and noticed that he had red, watery eyes and slurred speech; that there was a large amount of beer visible in his pickup; and that the right front of his vehicle was damaged. Contreras was arrested for public intoxication. He asked for a Spanish speaking officer. Lieutenant Casey Cameron Carter arrived and read Miranda warnings to Contreras in Spanish. Contreras acknowledged that he understood the warnings, and he admitted to drinking and driving. Lieutenant Carter then had Contreras perform field sobriety tests. Contreras exhibited several signs of intoxication. Contreras provided a breath sample at the Lewisville Police Department. His blood alcohol concentration tested as 0.181.

II. Issues

Contreras challenges his conviction in both cause numbers with two issues. He contends that the trial court erred by not suppressing statements made after being arrested but before being informed of his rights as a Mexican citizen to contact the Mexican consulate. He also challenges the trial court’s decision to admit the breathalyzer result.

III. Motion to Suppress

Contreras argues in his first issue that the trial court erred when it denied his motion to suppress statements made to law enforcement officials because he was not timely informed of his right as a Mexican citizen to contact the Mexican consulate. Contreras argues that the right to contact his consulate is tied to the Fifth Amendment and that a defendant must knowingly and intelligently waive this right prior to police questioning.

A trial court’s ruling on a motion to suppress is reviewed for an abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997). Under this standard, we give almost total deference to the trial court’s determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. at 89. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. State v. Iduarte, 268 S.W.3d 544, 549 (Tex.Crim.App.2008). We uphold the trial court’s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. St George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007).

The Vienna Convention on Consular Relations grants foreign nationals who have been arrested, imprisoned, or taken into custody the right to contact their consulate and requires the arresting government authorities to inform the individual of this right “without delay.” Rocha v. State, 16 S.W.3d 1, 13 (Tex.Crim.App.2000). Contreras acknowledges that the United States Supreme Court has held that the Vienna Convention does not control Texas or national law. See Medellin v. Texas, 552 U.S. 491, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008). But Contreras distinguishes Medellin by describing its holding as turning on the separation of powers doctrine and the court’s determination that the treaty was not self-executing. In contrast, his argument is that notification of the right to contact a foreign consulate is a procedural due process right granted him by the Fifth Amendment.

The Due Process Clause provides that “[n]o person shall be ... deprived of life, liberty, or property, without due process of law.” U.S. Const, amend. V. Contreras’s arrest implicates a liberty interest. The State was, therefore, required to follow a constitutionally sufficient procedure in connection with his arrest. Coleman v. Dretke, 395 F.3d 216, 221 (5th Cir.2004). Contreras makes no argument that the United States Constitution has always required police officers to advise foreign nationals of their right to contact a consulate official before beginning a custodial interrogation. Thus, if required now, it is because of subsequent developments. Contreras points first to the treaty itself. Courts have, however, held that the Vienna Convention does not create an individually enforceable right. Medellin v. Dretke, 371 F.3d 270, 280 (5th Cir.2004); see also United States v. Jimenez-Nava, 243 F.3d 192, 198 (5th Cir.2001) (“The sum of Jimenez-Nava’s arguments fails to lead to an ineluctable conclusion that Article 36 creates judicially enforceable rights of consultation between a detained foreign national and his consular office. Thus, the presumption against such rights ought to be conclusive”).

We recognize that Contreras’s argument is that the Due Process Clause is the source of his procedural right. But because the Vienna Convention was drafted to govern relations between sovereign nations and foreign consular officials, Sierra v. State, 218 S.W.3d 85, 86-87 (Tex.Crim.App.2007), we do not believe that its language creates a substantive right sufficient to implicate the constitutionally required procedures police officers must follow before interrogating a foreign national. Moreover, courts have not read the treaty to require notification before instituting any police interrogation, but only within three working days of the arrest. See Sanchez-Llamas v. Oregon, 548 U.S. 331, 362, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006) (Ginsburg, J., concurring in judgment) (citing Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 52 ¶ 97 (Judgment of Mar. 31)). Thus, even if we are in error and the Vienna Convention does create a benefit enforceable under the Due Process Clause, we do not believe that this required the police to inform Contreras of the right to contact his consulate before beginning a custodial interrogation.

Contreras next points to the decision of the International Court of Justice in Avena, and contends that it is a violation of an individual’s human rights to be tried without knowledge of the right to contact a consulate official. The Supreme Court has held that ICJ decisions are entitled to respectful consideration but that they are not binding precedent “even as to the ICJ itself.” Sanchez-Llamas, 548 U.S. at 355, 126 S.Ct. 2669. Furthermore, the United States withdrew from general ICJ jurisdiction in 1985. Medellin v. Texas, 552 U.S. at 500, 128 S.Ct. 1346. We decline, therefore, to find an ICJ decision as the basis for divining the procedural rights guaranteed by the Fifth Amendment.

Finally, Contreras argues that President George W. Bush mandated compliance with the Avena ruling. See id. at 498, 128 S.Ct. 1346 (President Bush determined that the United States would “discharge its international obligations under Avena by having State courts give effect to the decision.”). The Supreme Court, however, has concluded that the President lacked this authority. Id. at 525-32, 128 S.Ct. 1346. Consequently, we find that the Due Process Clause did not require the officers to advise Contreras that he had the right to contact a consulate official prior to beginning a custodial interrogation.

Even if we are in error, Contreras is not entitled to the suppression of any evidence. The Supreme Court has held that suppression under the federal exclusionary rule is not an appropriate remedy for a violation of the Vienna Convention. Sanchez-Llamas, 548 U.S. at 350, 126 S.Ct. 2669. In Rocha, the Texas Court of Criminal Appeals held that the exclusionary rulé under Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon 2005) does not provide a remedy for violations of treaties, including the Vienna Convention. Rocha, 16 S.W.3d at 18-19. The trial court, therefore, did not err in admitting Contreras’s statements. Issue One is overruled.

IV. Intoxilyzer Test

Contreras contends in his second issue that the trial court erred by admitting the results of his intoxilyzer test. •We review the trial court’s ruling on the admissibility of evidence under an abuse of discretion standard. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). Because the underlying science of intoxilyzer tests has been determined by the legislature to be valid, the trial court’s sole duty when the results of a test are challenged is to serve as a gatekeeper and determine whether the test was properly applied in accordance with DPS rules. Tex. Transp. Code Ann. § 724.016 (Vernon 1999); Tex.R. Evid. 702; Reynolds v. State, 204 S.W.3d 386, 390-91 (Tex.Crim.App.2006). As long as the operator is certified by DPS, knows the protocol involved in administering the test, and testifies that it was followed on the occasion in question, it is not necessary to demonstrate any personal familiarity with the underlying science and technology. Reynolds, 204 S.W.3d at 390-91.

Contreras complains that the State did not adequately show that it followed proper procedures when administering the test. The record reflects that Community Service Officer John Swin-banks is a certified intoxilyzer operator. He detailed the methodology he follows when administering a test. Technical Supervisor Lisa Fondren testified that Officer Swinbanks’s machine was inspected a month prior to Contreras’s test and again a week after and was operating correctly both times. The State adequately established that the test was properly administered.

Contreras complains next that he was not afforded an opportunity to independently test the specimen taken. A person arrested for driving while intoxicated is entitled to a reasonable opportunity to contact a physician or nurse to take an additional specimen of blood after submitting to a breath test. Tex. TRANSP. Code Ann. § 724.019(a)-(b) (Vernon 1999). When Contreras provided a breath sample, Officer Robert Limón informed him that he was over the legal limit and that he was entitled to contact a doctor, technician, pharmacist, or nurse to come within two hours and draw blood. Contreras did not attempt to contact anyone; thus, he was not denied the chance to independently test his blood alcohol concentration.

Contreras argues lastly that the intoxilyzer test result was inadmissible because he was not provided with the software code for the intoxilyzer instrument. The record does not indicate that Contreras ever requested the software code. Furthermore, Contreras cannot show with a reasonable probability that, had he been given access to the computer and computer program, the outcome of the trial would have been different.

The trial court did not err in admitting evidence of the intoxilyzer test, and we overrule Contreras’s second issue.

V. Conclusion

The judgments of the trial court are affirmed.

      . 11-09-00107-CR.

      . 11-09-00109-CR.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: Justice MOSELEY.

text:
    Karen Michelle WOOLVERTON, Appellant, v. The STATE of Texas, Appellee.
    No. 06-09-00221-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 10, 2010.
    Decided Sept. 14, 2010.

      Jason L. Horton, Harrelson Law Firm, P.A., Texarkana, for Appellant.
    Kristian Young, Asst. Dist. Atty., Texar-kana, for Appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice MOSELEY.

Karen Michelle Woolverton was convicted by a Bowie County jury of possession and manufacture of a controlled substance, methamphetamine, and was sentenced to ten years’ and forty years’ confinement, respectively, in the Texas Department of Criminal Justice. Both sentences are to run concurrently. On appeal, Woolverton contends that the trial court erred in (1) admitting evidence obtained through a warrantless search of a residence occupied by her as a co-tenant without her consent and (2) admitting an unauthenticated journal into evidence over trial counsel’s hearsay objection. Because we find no error on the part of the trial court, we affirm the convictions.

I. FACTS

After having received information from their supervisor that illegal narcotics activity was taking place at a residence located outside of New Boston, Bowie County Sheriffs Deputies Stacey Sumner and Nathan Head traveled to the residence, a single-wide manufactured home, to investigate. Sumner testified that he knew that an individual, Todd Copeland, owned and occupied the residence. When Sumner and Head arrived at the residence, Copeland came outside to speak with them, meeting them at the gate to the property; he then confirmed that he was the owner of the residence. At that time, Sumner requested Copeland’s consent to search the residence. Copeland agreed and provided written consent for the search, then returning to the residence and retrieving the remote control to open the gate to the property. When Sumner and Head entered the residence, they encountered Woolverton, who queried the officers regarding their reason for their presence in the house.

There is a conflict in the testimony as to what occurred at this point in time. Whereas Sumner testified that Woolverton never denied permission to search the residence and that the issue of Woolverton’s consent never arose at that time, Wool-verton testified to the contrary. She contended that when the officers informed her they had obtained Copeland’s permission to conduct the search and requested that she exit the premises while the search was conducted, she responded, “I didn’t give anybody consent to search” and, “I’m refusing a search of anything of mine unless you can tell me why you’re here and show me a search warrant.”

Upon a search of the residence, an operational methamphetamine laboratory was discovered. Lance Cline, an agent with the Texas Department of Public Safety Criminal Investigation Division, was contacted. Upon his arrival, Sumner advised Cline of Copeland’s consent to the search. Prior to entering the residence, Cline likewise sought Copeland’s consent to search, which was freely given. At that time, Cline interviewed Woolverton, whose face appeared to be sunken, and who was thin and pale. Cline believed Woolverton lived in the residence, because he had previously received information that she had been contacting a website attempting to have ephedrine sent to that address. Woolver-ton confirmed Cline’s belief when she indicated she lived in the residence; further, there were women’s clothes on site and Copeland confirmed that she resided there with him. Cline indicated that Woolverton did not voice any objection to him of the search. After having been advised of her Miranda rights, Woolverton provided Cline information for a statement in which she indicated that she knew methamphetamine was being manufactured at the residence and that she used methamphetamine; she, nevertheless, maintained that the methamphetamine and manufacturing paraphernalia belonged to Copeland and others. Numerous items located at the residence, including methamphetamine, paraphernalia associated with manufacturing methamphetamine, and a drug ledger were confiscated and introduced as evidence at Woolverton’s trial.

II. ANALYSIS

A. Consent to Search

Prior to trial, Woolverton filed a motion to suppress all evidence obtained from the residence, alleging that the evidence was seized as the result of a warrantless search without probable cause and without her consent, in -violation of her constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution, Article I, Section 9, of the Texas Constitution, and in violation of Article 38.23 of the Texas Code of Criminal Procedure. Tex.Code CRiM. Proc. Ann. art. 38.23 (Vernon 2005). In lieu of ruling prior to trial on Woolverton’s motion to suppress, the trial court granted Woolverton’s running objection to the introduction of the fruits of the search, withholding any ruling on the motion subsequent to presentation of the evidence. At the conclusion of the evidence, the trial court denied Woolver-ton’s motion to suppress.

A trial court’s decision to grant or deny a motion to suppress evidence is reviewed under a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005). The general rule is that an appellate court should afford almost total deference to a trial court’s determination of the historical facts supported by the record, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). We are also to afford such deference to a trial court’s ruling on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. “[WJhether a third party had actual authority to consent to a search of another’s property and whether an officer was reasonable in finding that a third party had apparent authority to consent are mixed questions of law and fact which reviewing courts should examine de novo.” Hubert v. State, 312 S.W.3d 554, 559-60 (Tex.Crim.App.2010). Where findings of fact are not entered, we view the evidence in the light most favorable to the trial court’s ruling and “assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.” Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010). We review the application of the law of search and seizure to the facts de novo. If the trial court’s ruling is “reasonably supported by the record and is correct on any theory of law applicable to the case,” we are not at liberty to disturb that ruling. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006).

The issue before the trial court was one of whether a search warrant was necessary in light of the written consent to search given by Copeland, a cotenant of the premises. We begin with the presumption that a warrantless entry by police into a person’s home is unreasonable under the Fourth Amendment, which protects individuals against unreasonable searches and seizures, unless the entry falls within an exception to the warrant requirement. Valtierra, 310 S.W.3d at 448. A warrantless search made without probable cause is valid under the Fourth Amendment with proper consent, voluntarily given. United States v. Matlock, 415 U.S. 164, 165-66, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Consent to search “must be shown to be positive and unequivocal, and there must not be any duress or coercion.” Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App.1991).

It is undisputed that Copeland signed a written consent to search the house located at 244 CR 4102 along with the outer buildings and perimeter thereof. No issue has been raised with respect to the volun-tariness of Copeland’s consent. Rather, Woolverton contends that because she informed the officers that she, too, lived in the residence, and she did not consent to the search, it was then incumbent on the officers to obtain a warrant in order to conduct a valid search of the residence and premises under the Fourth Amendment.

“The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained.” Georgia v. Randolph, 547 U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006); accord Patrick v. State, 906 S.W.2d 481, 490 (Tex.Crim.App.1995). A third party may give consent to search property over which they have joint access or control. Patrick, 906 S.W.2d at 490. Where cotenants or joint occupants live at a residence, either tenant may give the law enforcement officer consent to search the premises so long as that tenant has control over and authority to use the premises. Randolph, 547 U.S. at 106, 126 S.Ct. 1515; Jones v. State, 119 S.W.3d 766, 787 (Tex.Crim.App.2003) (“A third person may validly consent to a search when he has ‘equal control and equal use of the property searched.’ ”) (quoting Welch v. State, 93 S.W.3d 50, 52-53 (Tex.Crim.App.2002)).

The question here, as in Randolph, might have been whether such evidentiary seizure is lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses consent. The Randolph court determined, under the facts presented in that case, that the co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him. Randolph, 547 U.S. at 106, 126 S.Ct. 1515. In arriving at this conclusion, the Court reasoned that:

Since the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all. Accordingly, in the balancing of competing individual and governmental interests entailed by the bar to unreasonable searches, the cooperative occupant’s invitation adds nothing to the government’s side to counter the force of an objecting individual’s claim to security against the government’s intrusion into his dwelling place. Since we hold to the “centuries-old principle of respect for the privacy of the home,” “it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.” We have, after all, lived our whole national history with an understanding of “the ancient adage that a man’s house is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown.”

Id. at 114-15, 126 S.Ct. 1515 (citations omitted).

Moreover, disputed permission to search is “no match for this central value of the Fourth Amendment, and the State’s other countervailing claims do not add up to outweigh it.” Id. at 115-16, 126 S.Ct. 1515. The Court therefore held that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Id. at 120, 126 S.Ct. 1515.

However, unlike Randolph (where the nonconsenting inhabitant’s refusal was clear and undisputed), the question of whether Woolverton refused to consent to the search is disputed in this case. Wool-verton is unequivocal in her testimony that such refusal was communicated to Sumner, with Head standing in the doorway. Sumner, on the other hand, is equally unequivocal in his testimony that Woolverton made no objection to the search. When asked by the State if Woolverton ever told Sumner he could not search, Sumner stated that Woolverton made no such objection. Sumner further testified that when Woolverton was asked to vacate the residence, she complied without ever communicating to Sumner the fact that she lived in the residence. While Sumner did learn that Woolverton resided at the residence after he arrived on the premises, he did not proactively seek her consent because Copeland had previously provided written consent to search.

Head testified that he witnessed Sumner obtain Copeland’s written consent to search the residence and surrounding buildings. Head and Sumner were then unaware of Woolverton’s presence in the residence and did not learn of it until after the consent had already been signed and they entered the residence. Head testified that he had no knowledge of whether Woolverton was asked for consent to search and did not himself seek consent for the search from Woolverton. Cline testified that after he arrived, he interviewed Woolverton; during that interview, Woolverton never indicated to Cline that she was withholding consent to search. In fact, Woolverton indicated that she knew methamphetamine was being manufactured at the residence and that she had used methamphetamine.

After having heard the conflicting testimony regarding Woolverton’s lack of consent to search, the trial court stated:

[T]he Georgia case is clear that consent to search by one owner or occupant of the residency [sic] is sufficient unless the other owner or occupant objects, and in that particular case, it was, there was a domestic dispute. The wife, co-owner of the house, gave consent to the officers to search the residence while the husband vigorously objected.
In this case, it comes down to a credibility determination and the Court finds that the testimony of the defendant in this case is not credible and the Court finds that the testimony of the officers is credible, that she did not object, that she was cooperative, that she did not even inform them that she resided there, although I think there was some testimony by one of the officers that he knew that. But she never objected to the search.
[T]he Court finds that the defendant, Karen Woolverton, was physically present but does not find that she refused consent. Therefore, the consent given by Mr. Copeland was sufficient to serve as an exception to the warrant requirement and the motion to suppress is denied.

The trial court correctly applied the law of search and seizure to the facts of this case. The resolution of the issue of whether a warrant was, in fact, required in order to search the premises in question rests upon the issue of whether Woolverton refused consent to the search. This issue turned on the credibility and the demeanor of the witnesses. Because the findings of the trial court are based on an evaluation of credibility and demeanor of the witnesses, we defer to those findings as they are supported by the record. Guzman, 955 S.W.2d at 89. We overrule this point of error.

B. Admissibility of the Drug Ledger

In her second point of error, Woolverton contends that the trial court abused its discretion by admitting an unauthenticated journal into evidence over trial counsel’s hearsay objection. A trial court’s admission or exclusion of evidence is reviewed under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002); see also Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994) (holding that ruling on admissibility of out-of-court statement under hearsay exception is within trial court’s discretion, subject to review only for abuse of discretion).

Hearsay is a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.R. Evid. 801(d); see also Tex.R. Evid. 801(c). A statement not offered to prove the truth of the matter asserted is not hearsay. Dinkins v. State, 894 S.W.2d 330, 347-48 (Tex.Crim.App.1995) (holding that appointment book and patient application form were not hearsay when “tendered ... to show how appellant became a suspect in the investigation,” not for the truth of the matter asserted).

At trial, the State offered into evidence a pink notebook, containing handwritten drug ledger information. Woolverton objected to the admission of the notebook as hearsay. In overruling Woolverton’s objection, the trial court determined that the notebook was not being offered for the truth of the matter asserted, and thus was not hearsay. Woolverton maintains the notebook was indeed offered to prove the truth of the matters asserted therein. Cline’s testimony provided a detailed outline of the meaning of the entries in the notebook, which contains initials and details of drug transactions. Cline described the pink notebook as a “drug ledger” that he found inside the residence and opined that the presence of the drug ledger indicates that drug sales were occurring at the location where it was found.

Although we find no Texas or Fifth Circuit cases addressing this particular issue, many courts have allowed the introduction of “drug ledgers,” not for the truth of the entries on the ledgers, but as circumstantial evidence that drug-related activities were occurring on the premises where the records were found. In United States v. Wilson, 532 F.2d 641, 645-46 (8th Cir.1976), the court ruled that certain records that were found on the premises where the prosecution alleged that drug trafficking was occurring were admissible as circumstantial evidence that drug trafficking was occurring on the premises. In United States v. Mendez, 514 F.3d 1035, 1045 (10th Cir.2008), a drug ledger containing lists of names with dollar amounts was admitted into evidence over the defendant’s hearsay objection. The court determined that these statements were offered not for the truth of the matter asserted (i.e., that particular individuals actually owed money); rather, the lists were admitted to show that the notebook was a drug ledger, and therefore a “tool of the trade.” Id.; see also United States v. Gonzales, 307 F.3d 906, 910 (9th Cir.2002) (where prosecutors sought to introduce pay/owe sheets as tool of the trade, the admission did not implicate the rule against hearsay when admitted for limited purpose of showing the character and use of an apartment).

In the case at bar, Cline collected copious evidence related to the possession and manufacture of methamphetamine at the residence in question. Such evidence included three pistols, a trash can containing discarded items often associated with methamphetamine production, numerous receipts for pseudoephedrine, a shopping list of what is needed to get a “methamphetamine cook” started, three glass pipes for smoking methamphetamine, a box of Aetifed Cold & Allergy medication (a common source for pseudoephedrine), a bottle of iodine (necessary in the processing of methamphetamine), a methamphetamine test kit, methamphetamine, camping fuel (a solvent used in the manufacture of methamphetamine), an apparatus through which methamphetamine was smoked, mu-riatic acid (used in the manufacture of methamphetamine), a hydrogen peroxide bottle fashioned into a hydrogen chloride generator, scales with visible yellow residue (commonly found in a methamphetamine laboratory), a “huge” jug of sulfuric acid and jar tops with holes for tubing (both items commonly used in the manufacture of methamphetamine), and a broken Erlenmeyer flask (a piece of glassware often found in a methamphetamine laboratory).

Like the other items of evidence found throughout the residence, the drug ledger here is a “tool of the trade” and is an item commonly associated with the practice of trading in illegal narcotics. The record does not indicate that the ledger was used to prove particular drug transactions that were elements of extraneous crimes or of any type of drug conspiracy. Thus, the drug ledger was not admitted to prove the truth of the matters asserted therein. That is, the initials and other entries in the ledger were not admitted to show the persons whose initials were listed therein actually owed the amount of money listed or purchased the quantities of drugs listed; rather, they were admitted to show that this “drug ledger” is a tool of the drug dealing trade, and thus is circumstantial evidence that drug trafficking was occurring on the premises. We find no abuse of discretion on the part of the trial court in admitting the drug ledger. We overrule this point of error.

III. CONCLUSION

We affirm the judgment of the trial court.

      . Tex. Health & Safety Code Ann. § 481.115 (Vernon 2010).

      . Tex. Health & Safety Code Ann. § 481.112 (Vernon 2010).

      . Head did not testify on this issue.

      . Ephedrine is the primary ingredient in methamphetamine.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      .At trial, Woolverton denied having given Cline a statement to this effect. No such written statement appears in the record, and Woolverton maintained her innocence at trial.

      . U.S. Const, amend. IV.

      . Woolverton did not object to Cline’s testimony regarding the contents of the ledger, such as the initials of each individual and the amount of methamphetamine they may have purchased and the cost of various purchases.

      . Woolverton did not request a limiting instruction regarding the drug ledger, limiting same from proving anything other than the character and use of the place where it was located.


author: CHARLES W. SEYMORE, Justice.

text:
    GALVESTON INDEPENDENT SCHOOL DISTRICT, Appellant, v. CLEAR LAKE REHABILITATION HOSPITAL, L.L.C., Appellee.
    No. 14-09-00950-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 21, 2010.
    Rehearing En Banc Overruled Nov. 24, 2010.

      Richard A. Morris, Jonathan Griffin Brush, Houston, for Appellant.
    Gregory Marshall Sudbury, Dallas, Lane Odom, Fort Worth, for Appellee.
    Panel consists of Justices ANDERSON, FROST, and SEYMORE.
   OPINION

CHARLES W. SEYMORE, Justice.

Clear Lake Rehabilitation Hospital, L.L.C. (“Clear Lake”) filed suit against Galveston Independent School District (“GISD”), alleging breach of contract and violation of the federal Public Health Service Act (“PHSA”). GISD filed a plea to the trial court’s subject-matter jurisdiction over these claims, which was denied.

In four issues, GISD contends the trial court erred (1) to the extent it determined GISD’s act of providing medical coverage was a proprietary, instead of a governmental, function, (2) by implicitly finding a waiver of governmental immunity relative to Clear Lake’s breach-of-contract claim under Chapter 271 of the Local Government Code, (3) by implicitly finding GISD waived its governmental immunity by conduct, and (4) by failing to dismiss Clear Lake’s claim under the PHSA.

We reverse that portion of the trial court’s order denying GISD’s plea relative to Clear Lake’s breach-of-contract claim and remand for further proceedings consistent with this opinion. We also reverse that portion of the trial court’s order denying the jurisdictional challenge to Clear Lake’s PHSA claim and render judgment dismissing that claim for want of jurisdiction.

I. Background

In October 2006, Carlos Urroz, an employee with GISD, was placed on sick-leave pursuant to the Family and Medical Leave Act. On January 24, 2007, GISD sent Urroz a letter notifying him of the requirement to pay premiums “in order to keep coverage current.” GISD sent a second letter on February 6, warning Urroz that his medical benefits would cease unless his premiums were received. The same day, GISD instructed its third-party administrator, Houston TPA, Ltd. d/b/a/ Trisurant (“Trisurant”), “to pend claims effective 2/1/07 until premium is received.”

On February 8 and 9, Clear Lake contacted Trisurant to verify Urroz’s coverage. Trisurant verified Urroz’s coverage without advising that GISD had instructed it to pend Urroz’s claims. Thereafter, Ur-roz was admitted to Clear Lake and received treatment for six weeks.

On February 22, GISD sent Urroz another warning letter. On March 13, GISD informed Urroz that his medical coverage had been cancelled, effective February 1, and that he must contact GISD “by April 2, 2007, in order to enroll in COBRA[.]” When Clear Lake did not receive payment for Urroz’s medical treatment, it demanded payment from GISD. GISD rejected Clear Lake’s demand, explaining that it had complied with COBRA requirements. Clear Lake alleges that GISD considered Urroz an active employee until April 13, 2007.

Clear Lake filed suit against GISD, Trisurant, and Urroz, alleging a variety of tort claims. GISD filed a plea to the jurisdiction asserting governmental immunity. Clear Lake amended its petition to allege only claims for breach of contract and violations of the PHSA against GISD. Thereafter, GISD supplemented its plea, and Clear Lake filed a response. The trial court denied GISD’s plea, and GISD timely filed this interlocutory appeal.

II. INTERLOCUTORY APPEAL AND Standard of Review

We have statutorily-conferred authority to review the trial court’s interlocutory order denying GISD’s plea to the jurisdiction. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West 2008) (providing that a party may appeal an interlocutory order that “grants or denies a plea to the jurisdiction by a governmental unit_”). An appellate court must consider challenges to the trial court’s subject-matter jurisdiction on interlocutory appeal, regardless of whether such challenges were presented to or determined by the trial court. Tex. Dep’t of Transp. v. Olivares, 316 S.W.3d 89, 95 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (citing Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850-51 (Tex.2000)).

We review de novo the trial court’s ruling on a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004). In a plea to the jurisdiction, a party may challenge either the pleadings or existence of jurisdictional facts. Id. at 226-27; see also Rebecca Simmons & Suzette Kinder Patton, Plea to the Jurisdiction: Defining the Undefined, 40 St. Mary’s L.J. 627, 651-52 (2009).

When a defendant challenges the plaintiffs pleadings, the court’s determination turns on whether the pleader has alleged facts sufficient to demonstrate subject-matter jurisdiction. Miranda, 133 S.W.3d at 226. To make this determination, courts should glean the pleader’s intent and construe the pleadings liberally in favor of jurisdiction. Id. If the pleadings do not contain facts sufficient to affirmatively demonstrate the trial court’s jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and plaintiffs should be afforded an opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate jurisdiction, a plea may be granted without allowing plaintiffs an opportunity to amend. Id. at 227. The opportunity to amend pleadings that are insufficient to establish, but do not affirmatively negate, jurisdiction arises after a court determines the pleadings are insufficient. White v. Robinson, 260 S.W.3d 463, 475-76 (Tex.App.-Houston [14th Dist.] 2008, pet. granted) (citing Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839-40 (Tex.2007)).

When a defendant challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties. Miranda, 133 S.W.3d at 227. We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts arising from such evidence in the nonmovant’s favor. Id. at 228. If the relevant evidence is undisputed or a fact question is not raised relative to the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. If the evidence creates a fact question regarding jurisdiction, the trial court cannot grant the plea, and the issue will be resolved by the fact finder. Id. at 227-28.

When resolution of an issue requires interpretation of a statute, we review under a de novo standard. Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). In construing a statute, our objective is to determine and give effect to the legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). If possible, we must ascertain that intent from the language the legislature selected and should not refer to extraneous matters for intent not expressed in the statute. Id. If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997).

III. Governmental and Proprietary Functions

We begin with GISD’s first issue in which it contends the trial court erred to the extent it determined GISD’s provision of health insurance was not a governmental function.

Under our common law, governmental immunity defeats a trial court’s subject-matter jurisdiction. See Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). The proprietary/governmental dichotomy is generally used in determining a municipality’s governmental immunity from suit for tortious conduct. Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex.2006). “The distinction has not been a clear one, but generally speaking, a municipality’s proprietary functions are those conducted ‘in its private capacity, for the benefit only of those within its corporate limits, and not as an arm of the government,’ while its governmental functions are ‘in the performance of purely governmental matters solely for the public benefit.’ ” Id. (footnotes omitted). “A municipality is not immune from suit for torts committed in the performance of its proprietary functions, as it is for torts committed in the performance of its governmental functions.” Id.

Clear Lake contends that GISD’s provision of health insurance to Urroz was a proprietary function for which GISD is not immune from a breach-of-contract claim. Clear Lake cites several cases in which courts held that a municipality’s provision of insurance to its employees was a proprietary function. See Gates v. City of Dallas, 704 S.W.2d 737, 738-39 (Tex.1986) (holding that city “acted in its proprietary role” when it entered into a health-insurance contract with employee); Temple v. City of Houston, 189 S.W.3d 816, 821 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (“We hold that when a City provides to its employees insurance benefits that are not required by statute, the City is performing a proprietary function....”); Bailey v. City of Austin, 972 S.W.2d 180, 193 (Tex.App.-Austin 1998, no pet.) (“[T]he City’s function of offering, administering, and overseeing health care plans for its own employees are proprietary functions.”). The rationale underlying these decisions is that a municipality acts “primarily for the benefit of those within the corporate limits of the municipality” by providing insurance coverage for its employees. Gates, 704 S.W.2d at 739.

GISD responds that the foregoing cases apply only to municipalities, not school districts. GISD cites Braun v. Trustees of Victoria Independent School District, in which the court of appeals explained,

Cities and towns exercise a dual function, to wit, governmental and proprietary, while a school district is purely a governmental agency and exercises only such powers as are delegated to it by the state. It performs no proprietary functions which are separate and independent of its governmental powers.

114 S.W.2d 947, 950 (Tex.Civ.App.-San Antonio 1938, writ ref'd). Because application for writ of error was refused, Braun has the same precedential value as an opinion of the Texas Supreme Court and has been relied upon numerous times for the proposition that school districts engage only in governmental functions. See, e.g., Fowler v. Tyler Indep. Sch. Dist., 232 S.W.3d 335, 339 (Tex.App.-Tyler 2007, pet. denied) (determining that a school district could not act “in a sufficiently proprietary capacity to shed its ... immunity at the time of [an] injury”); Dillard v. Austin Indep. Sch. Dish, 806 S.W.2d 589, 594 (Tex.App.-Austin 1991, writ denied) (“An independent school district is an agency of the state which carries out only governmental functions, and, consequently, is entitled to governmental immunity.”), overruled on other grounds by Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex.1997), and superseded by statute on other grounds as stated in Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001); Gravely v. Lewisville Indep. Sch. Dist., 701 S.W.2d 956, 957 (Tex.App.-Fort Worth 1986, writ ref'd n.r.e.) (“No Texas appellate court, so far as we know, has ever held that a school district has served in a non-governmental capacity.”). In Murray v. San Jacinto Agency, Inc., the El Paso Court of Appeals addressed a comparable situation in which a school-district employee sued the school district for denying her coverage under a group healthcare plan. 759 S.W.2d 778 (Tex.App.-El Paso 1988), rev’d on other grounds, 800 S.W.2d 826 (Tex.1990). Referencing Braun, the court held “that the establishment of the self funded group medical insurance program by [the school district] is a governmental function and that governmental immunity applies.” Id. at 779-80.

Clear Lake contends these cases are distinguishable because they involve tort claims for injuries that occurred while school districts were engaged in the governmental function of furthering education, whereas the underlying case arises from a breach of contract between a school district and hospital. Clear Lake avers its case is more akin to Teague Independent School District v. Mason, where the court held that a school district was estopped from denying liability to an attorney who provided legal services to the school district. 233 S.W.2d 176, 180 (Tex.Civ.App.-Waco 1950, writ ref'd n.r.e.). We do not find the breach-of-contract versus tort claim distinction pivotal because governmental entities regularly execute contracts for governmental purposes. Furthermore, as discussed in more detail in the following section, our legislature allows certain breach-of-contract claims against public school districts. See Tex. Loc. Gov’t Code Ann. §§ 271.151-.160 (West 2005 & Supp. 2009).

Clear Lake also argues several courts have implied that school districts may engage in both governmental and proprietary functions. In Barr v. Bernhard, the supreme court explained, “The law is well settled in this state that an independent school district is an agency of the state and, while exercising governmental functions, is not answerable for its negligence in a suit sounding in tort.” 562 S.W.2d 844, 846 (Tex.1978) (emphasis added); see also, e.g., Bell v. Love, 923 S.W.2d 229, 231 (Tex.App.-Houston [14th Dist.] 1996, no writ). Notably, the Braun opinion includes the same language: “There can be no question but that an independent school district is an agency of the state, and, while exercising governmental functions, is not answerable for its negligence in a suit sounding in tort.” 114 S.W.2d at 949 (emphasis added). Clear Lake argues that courts would not have included the qualifying language “while exercising governmental functions” unless school districts had the capacity to engage in non governmental functions. The same argument was presented to the First Court of Appeals. See McManus v. Anahuac Indep. Sch. Dist., 667 S.W.2d 275, 278 (Tex.App.-Houston [1st Dist.] 1984, no writ). Our sister court described the argument as “well reasoned” but resolved the issue on other grounds. Id.

Like the court in McManus, we need not address the precedential effect of the Braun opinion. Presuming that school districts can participate in non-governmental functions, we conclude that providing health insurance to employees is a governmental function of a school district. Under the Texas Education Code, school districts are required to offer medical coverage to all employees, whether by self-insuring or some other means. See Tex. Educ.Code Ann. § 22.004(a)-(b) (West Supp.2009). A city engages in governmental functions when it “ ‘performs functions mandated by the state.’ ” See Temple, 189 S.W.3d at 820 (quoting Truong v. City of Houston, 99 S.W.3d 204, 210 (Tex.App.-Houston [1st Dist.] 2002)). This rule should likewise apply to school districts. Furthermore, that GISD had a choice regarding how it provided coverage does not mean its exercise of that choice was a nongovernmental function. See Wallace v. City of Midland, 836 S.W.2d 641, 643 (Tex.App.-El Paso 1992, writ denied) (“The furnishing of workers’ compensation coverage by one means or another by a municipality to its employees is mandated by law and as such, the means by which the municipality complies remains a governmental function.”). Finally, we note that provision of group healthcare furthers the state’s educational goals because school districts are able to attract more-qualified employees. Cf. Braun, 114 S.W.2d at 950 (concluding that beautifying school grounds furthers education). Accordingly, we hold that GISD did not exercise a proprietary function by providing health insurance to Urroz. GISD’s first issue is sustained.

IV. Section 271.152 of the Local Government Code

In its second issue, GISD contends the trial court erred by concluding that GISD is not immune from suit relative to Clear Lake’s breach-of-contract claim. Clear Lake contends that GISD’s immunity from suit has been waived pursuant to subchap-ter I, chapter 271 of the Local Government Code.

Under subchapter I, “A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract....” Tex. Loc. Gov’t Code Ann. § 271.152 (West 2005). “ ‘Contract subject to this subchap-ter’ means a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity.” Id. § 271.151(2). “Local governmental entity” under subchapter I includes public school districts such as GISD. Id. § 271.151(3)(B).

GISD argues that “Clear Lake has not identified, and cannot identify, any written contract between it and GISD wherein Clear Lake was obligated to provide goods or services to [GISD]. Since no such contract exists, Chapter 271 ... does not apply and Clear Lake’s claims must be dismissed.... ” Furthermore, GISD argues that even if a written contract between GISD and Urroz existed, Clear Lake cannot establish “it was an intended third-party beneficiary to such a contract.”

As an initial matter, we note the parties assume section 271.152 permits a third-party beneficiary to sue a local governmental entity for breach of contract. A third party has standing to enforce a contract when contracting parties explicitly intend to benefit the third party. S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 306 (Tex.2007) (per curiam). Under section 271.152, governmental immunity is waived relative to claims for breach of contract subject to subchapter I. See Tex. Loc. Gov’t Code Ann. § 271.152 (“A local government entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to the suit for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions of this subchapter.”). Accordingly, when a governmental entity and a contracting party enter into a contract subject to subchapter I and denominate a third-party beneficiary of that contract, the third-party beneficiary’s claim for breach of contract falls within the waiver of immunity authorized under section 271.152. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 327 (Tex.2006) (“[B]y enacting section 271.152, the Legislature intended to loosen the immunity bar so ‘that all local government entities that have been given or are given the statutory authority to enter into contracts shall not be immune from suits arising from those contracts.’ ” (quoting House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 2039, 79th Leg., R.S. (2005))); First-Citizens Bank & Trust Co. v. Greater Austin Area Telecomm. Network, 318 S.W.3d 560, 567 (Tex.App.-Austin 2010, no pet. h.) (explaining that “section 271.152’s waiver is not limited only to suits brought by signatory parties ... [but applies to] a class of suits — suits for the purpose of adjudicating a claim for breach of a contract subject to subchapter I — without restricting which parties can bring the suit.”).

In its live pleadings, Clear Lake alleges Urroz “was covered by GISD’s health insurance plan,” which entitled him “to coverage while he was an active employee.” Clear Lake further alleges that Urroz was employed by GISD until April 13, 2007. Clear Lake argues that GISD’s health-insurance contract with Urroz was a written contract “providing goods or services to the local governmental entity” because Urroz received coverage in exchange for the services he provided GISD as an active employee. Interpreting the pleadings liberally in favor of jurisdiction, we agree with Clear Lake’s argument. Thus, Clear Lake has sufficiently alleged that GISD and Urroz were parties to a written contract in which they agreed to exchange services (medical coverage for employment services) while Urroz was an active employee.

However, Clear Lake’s allegation, “Pursuant to Clear Lake’s financial agreement with [Urroz], and by operation of law, Clear Lake is a third party beneficiary of [Urroz’s] insurance contract with GISD,” does not sufficiently demonstrate that Clear Lake is a third-party beneficiary of the alleged contract between Urroz and GISD. There is a general presumption against third-party beneficiaries to a contract, and the facts alleged do not support the contention that GISD and Urroz intended to confer a direct benefit on Clear Lake. See Lomas, 223 S.W.3d at 306; MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex.1999) (expressing that absent clear indication in written contract that parties intended to confer direct benefit to third party, third party cannot maintain breach-of-contract action); see also H & H Sand and Gravel Inc. v. City of Corpus Christi, No. 13-06-00677-CV, 2007 WL 3293628, at *4 (Tex.App.-Corpus Christi Nov. 8, 2007, pet. denied) (mem. op.) (“We do not see how H & H Sand’s allegation of unilateral modification establishes a waiver of governmental immunity under [section 271.152’s] requirement that a contract be ‘properly executed on behalf of the local governmental entity.’ ”). Further, Clear Lake’s bare assertion that it is a third-party beneficiary “by operation of law” does not support such standing. Accordingly, Clear Lake’s breach-of-contract claim under section 271.152 does not affirmatively demonstrate a waiver of GISD’s governmental immunity.

Finally, GISD presents two ev-identiary arguments. First, GISD contends dismissal is required because (1) the record does not include the alleged health-insurance contract between GISD and Ur-roz and (2) even if a written contract between GISD and Urroz existed, Clear Lake cannot establish it was a third-party beneficiary to the contract. See Vantage Sys. Design, Inc. v. Raymondville Indep. Sch. Dist., 290 S.W.3d 312, 316 (Tex.App.Corpus Christi 2009, pet. filed) (holding that plaintiff failed to prove waiver of immunity pursuant to section 271.152 because it failed to produce written contract). However, GISD did not present an eviden-tiary challenge in its plea. Therefore, Clear Lake was not required to produce the written contract or prove that Clear Lake was a third-party beneficiary to the contract. Moreover, even if GISD presented a “no-evidence” challenge regarding the existence of the contract and Clear Lake’s third-party beneficiary status, Clear Lake would not have had a burden to present evidence raising a fact issue regarding such matters; under Miranda, a governmental entity’s challenge to jurisdictional facts implicating the merits of the plaintiffs lawsuit mirrors traditional summary-judgment practice, not no-evidence summary-judgment practice. See Miranda, 133 S.W.3d at 228; see also Olivares, 316 S.W.3d at 95.

Second, GISD argues that even if Clear Lake were a third-party beneficiary of an insurance contract between GISD and Ur-roz, Clear Lake has no greater right to enforce the contract than Urroz, who has no right to enforce the contract because of his failure to pay the required premiums. Because these issues involve questions of fact not conclusively answered in the record, we must disagree. See Miranda, 133 S.W.3d at 227-28. Thus, we reject GISD’s evidentiary challenges.

Accordingly, Clear Lake’s pleadings do not affirmatively demonstrate the trial court’s jurisdiction over its breach-of-contract claim, but do not affirmatively negate jurisdiction. Therefore, we reverse the trial court’s order denying GISD’s plea relative to Clear Lake’s breach-of-contract claim and remand for the trial court to allow Clear Lake a reasonable opportunity to amend its pleadings. See Miranda, 133 S.W.3d at 226-27; see also Koseoglu, 233 S.W.3d at 839-40.

Y. Public Health Service Act

In its fourth and final issue, GISD contends the trial court erred by concluding that Clear Lake has standing to assert a claim under subchapter XX of the federal Public Health Service Act (“PHSA”). See 42 U.S.CA. §§ 300bb-1-300bb-8 (West 2003 & Supp.2010).

When the United States Congress enacted the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), it amended the PHSA by adding subchapter XX. See Mehmen v. Collin County, Tex., 558 F.Supp.2d 711, 714 (E.D.Tex.2007). Under subchapter XX, certain governmental entities that maintain group healthcare plans must provide qualified beneficiaries who would otherwise lose coverage under the plan due to a qualifying event the right to elect continuation of their coverage. 42 U.S.C.A. § 300bb-1(a) (West 2003). The term “qualifying event” includes “[t]he termination ... of the covered employee’s employment.” Id. § 300bb-3(2) (West 2003). The employer “must notify the plan administrator of a qualifying event ... within 30 days of the ... event,” and the plan administrator must notify any qualified beneficiaries of the event. Id. § 300bb-6(2), (4) (West 2003). Importantly, “[a]ny individual who is aggrieved by the failure of a [governmental entity] to comply with the requirements of the sub-chapter may bring an action for appropriate equitable relief.” Id. § 300bb-7 (West 2003) (emphasis added). The term “individual” is not defined in subchapter XX or in the general definitions section of the PHSA.

GISD contends Clear Lake lacks independent standing to seek equitable relief under section 300bb-7 because it is a limited liability corporation and, therefore, not an “individual.” Clear Lake argues that any natural person or organization aggrieved by a governmental entity’s failure to comply with subchapter XX may seek relief pursuant to section 300bb-7. In support of this argument, Clear Lake cites federal authority in which the term “individual” has been interpreted to include corporations.

In Clinton v. City of New York, 524 U.S. 417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998), the United States Supreme Court considered whether the term “individual” in a section of the former Line Item Veto Act included corporations: “ ‘Any member of Congress or any individual adversely affected’ by the Act” may bring an action contesting the constitutionality of the Act. Id. at 428, 118 S.Ct. 2091 (quoting former 2 U.S.C. § 692(a)(1)). The Court determined “that in the context of the entire section Congress undoubtedly intended the word ‘individual’ to be construed as synonymous with the word ‘person,’ ” a word that includes “corporations.” Id. at 428-29 & n. 13, 118 S.Ct. 2091. The Court explained that the purpose of the section was to authorize “prompt and authoritative judicial determination of the constitutionality of the Act” and reasoned “[t]here is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and ... [not] corporate persons.” Id. at 42, 118 S.Ct. 2091. Thus, the Court interpreted the term “individual” from its context within the Line Item Veto Act.

Other opinions cited by Clear Lake were authored by courts interpreting the term “individual” as prescribed in the Bankruptcy Code and Torture Victim Protection Act. Several courts have held that section 862 of the Bankruptcy Code, which requires redress for “[a]n individual injured by any willful violation of a stay,” to apply to both natural persons and corporations. See In re Atl. Bus. & Cmty. Corp., 901 F.2d 325, 329 (3d Cir.1990); Budget Serv. Co. v. Better Homes of Va., 804 F.2d 289, 292 (4th Cir.1986); In re Tel-A-Commc’ns Consultants, Inc., 50 B.R. 250, 253-54 (Bankr.D.Conn.1985). The courts derived this interpretation by considering section 362(h) in light of the whole section, which they concluded clearly applies to all bankruptcy debtors. See Budget Serv., 804 F.2d at 292; In re Tel-A-Commc’ns Consultants, 50 B.R. at 254. Similarly, courts have held that the section of the Torture Victim Protection Act establishing a right to civil action against “[a]n individual who ... subjects an individual to torture [or] ... to extrajudicial killing ...,” applies to both natural persons and corporations that perpetrate such acts. See Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir.2008) (“[T]he Torture Act allows suits against corporate defendants.”); Sinaltrainal v. Coca-Cola Co., 256 F.Supp.2d 1345, 1358 (S.D.Fla.2003) (relying on legislative history to determine that term “individual” used in Torture Victim Protection Act includes corporations). Therefore, Clear Lake’s exposition of caselaw illustrates that federal courts have construed the term “individual” to include corporations in the context of other statutes. However, our research reveals no case addressing whether “individual” as used in section 300bb-7 includes corporate entities, and we must examine the statute to determine that issue.

Reading subchapter XX as a whole, it is clear Congress intended to protect government employees and their beneficiaries from sudden loss of healthcare coverage following a qualifying event such as a termination. The terms “covered employees” and “qualified beneficiaries” are used frequently throughout the subchapter. “Covered employee” is defined as “an individual who is (or was) provided coverage under a group health plan by virtue of the performance of services by the individual for 1 or more persons maintaining the plan[.]” See 42 U.S.C.A. § 300bb-8(2) (emphasis added). “Qualified beneficiary” is defined in the subchapter as, “with respect to a covered employee under a group health plan, any other individual who, on the day before the qualifying event for that employee, is a beneficiary under the plan — (i) as the spouse of the covered employee, or (ii) as the dependent child of the employee.” See 42 U.S.C.A. § 300bb-8(3) (emphasis added). Thus, those whom the subchapter was designed to assist are defined as “individuals” in a manner applicable only to natural persons. Other sections of the subchapter refer to “individuals” in a similar sense. “Individual” in section 300bb-2(3) references disabled qualified beneficiaries. See 42 U.S.C.A. § 300bb-2(3). There are several references to the term “TAA-eligible individuals,” which is defined in the Internal Revenue Code in a manner only appropriate to natural persons. See 42 U.S.C.A. § 300bb-5(b)(4); 26 U.S.C.A. § 35(a), (c) (West Supp.2010). Moreover, the language in section 300bb-6(4) expresses, “[NJotification to an individual who is a qualified beneficiary as the spouse of the covered employee shall be treated as notification to all other qualified beneficiaries residing with such spouse at the time such notification is made.” See 42 U.S.C.A. § 300bb-6(4). Therefore, whenever “individual” appears in subchap-ter XX, it refers to a natural person. In this context, we conclude that the term “individual” as used in section 300bb-7 refers to natural persons and not to corporate entities.

Clear Lake further argues, “[I]f GISD’s interpretation was correct, individual providers, like physicians, could seek recourse under the PHSA’s enforcement provisions while hospitals could not.” This argument is belied by the language and purpose of subchapter XX. Had Congress been concerned about hospitals and doctors providing medical care without payment, it simply could have included “healthcare providers” in section 300bb-7. Instead, the purpose of section 300bb-7 is to afford those employees and beneficiaries injured by an employer’s noncompliance with the subchapter a means of seeking equitable relief.

Finally, Clear Lake appeals to the legislative history of COBRA. However, we do not consider the legislative history because we conclude the statute is unambiguous. See Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 283-84 (Tex.1999); St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997); see also Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 567-69, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005).

Accordingly, we hold Clear Lake is not an “individual” under section 300bb-7 and thus, lacks independent standing to pursue a claim for equitable relief under that section. Therefore, the trial court erred by denying GISD’s plea relative to the PHSA claim. We sustain its fourth issue.

Based on our resolution of the first, second, and fourth issues, we need not address GISD’s third issue regarding waiver of immunity by conduct.

VI. Conclusion

In sum, we hold as follows: (1) GISD’s act of providing medical coverage was a governmental function, (2) Clear Lake’s pleadings in support of its breaeh-of-con-tract claim do not affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively negate jurisdiction, and (3) Clear Lake lacks independent standing to bring its claim under the PHSA. Accordingly, we reverse the trial court’s denial of the jurisdictional challenge to Clear Lake’s breach-of-contract claim and remand for further proceedings consistent with this opinion, and we reverse the trial court’s denial of the challenge to Clear Lake’s PHSA claim which we dismiss without prejudice for want of jurisdiction.

      . See Yancy v. United Surgical Partners Int'l, Inc., 236 S.W.3d 778, 786 n. 6 (Tex.2007) (explaining “writ refused” denotes that an opinion has the same precedential value as an opinion of the Texas Supreme Court).

      . We have found no support for the proposition that healthcare providers such as Clear Lake are ipso facto third-party beneficiaries of their patients’ health-insurance contracts with standing to enforce such contracts. See Hermann Hosp. v. Liberty Life Assur. Co. of Boston, 696 S.W.2d 37, 41 (Tex.App.-Houston [14th Dist.] 1985, writ ref’d n.r.e.) (holding that mere fact hospital would be ultimate recipient of health-insurance policy funds does not make it third-party beneficiary of policy).

      . We note, however, that these decisions are not without detractors; several courts have concluded that the term "individual” in the same statutes does not include corporations. See, e.g., In re Chateaugay Corp., 920 F.2d 183, 186-87 (2d Cir.1990) (disagreeing that section 362 of the Bankruptcy Code provides redress for corporate debtors); In re First RepublicBank Corp., 113 B.R. 277, 278-79 (Bankr.N.D.Tex. 1989) (same); Mujica v. Occidental Petroleum Corp., 381 F.Supp.2d 1164, 1176 (C.D.Cal.2005) (disagreeing that the Torture Victim Protection Act authorizes a cause of action against corporations); see also David Swarthout, When Is an Individual a Corporation? — When the Court Misinterprets a Statute, That’s When!, 8 Am. Bankr.Inst. L. Rev. 151, 152 (2000).

      . Congress sensibly chose the term “persons” in section 300bb-8 to describe those that maintain the group health plan which includes corporate employers. See 1 U.S.C.A. § 1 ("[T]he word [ ] ‘person’ ... include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals^]”).

      . As stated above, under Miranda, unless the pleadings affirmatively negate jurisdiction, plaintiffs should be afforded an opportunity to amend. See Miranda, 133 S.W.3d at 227; see also Koseoglu, 233 S.W.3d at 840. Thus, when the addition of factual allegations could bring the claim asserted within the trial court's jurisdiction, we remand for the trial court to allow the plaintiff a reasonable opportunity to amend its pleadings. See Olivares, 316 S.W.3d at 95 (affording plaintiff an opportunity to amend when it was unclear from the facts alleged whether the failure to install certain traffic devices was the result of the State’s discretion or negligent implementation). Because we can conceive of no facts that might be alleged to support Clear Lake’s independent standing to bring a PHSA claim, we dismiss the claim without affording an opportunity to amend. However, a dismissal due to lack of independent standing is not a disposition on the merits and, thus, does not prevent Clear Lake from bringing a PHSA claim on some other theory of standing. See DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 307 (Tex.2008) (explaining that dismissal for lack of jurisdiction is not a final judgment on the merits).