author: Opinion by Justice MOSELEY.

text:
    Jack H. MEYER, Appellant, v. The STATE of Texas, Appellee.
    No. 06-09-00166-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted: March 31, 2010.
    Decided: April 1, 2010.
    Jack H. Meyer, Jefferson, pro se.

      William Gleason, Marion County and Dist. Atty., Jefferson, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by Justice MOSELEY.

Jack H. Meyer has appealed from his misdemeanor conviction by a jury for refusal to execute release of a fraudulent lien pursuant to Section 32.49 of the Texas Penal Code. Tex. Penal Code Ann. § 32.49 (Vernon 2003). The jury assessed punishment at seven days’ confinement in the county jail and a $1,000.00 fine. The trial court suspended imposition of the sentence and placed Meyer on community supervision for two years.

At trial, after an extensive series of exchanges with the trial court, Meyer chose to represent himself, rather than to allow appointed counsel to assert his position under the rules of the adversary system— as counsel is required to do. See Tex.R. Prof’l Conduct, Preamble: A Lawyer’s Responsibilities 2, 4 reprinted in Tex. Gov’t Code Ann., Tit. 2, subtit. G. app. A (Vernon 2005).

In his notice of appeal, Meyer stated that he was representing himself, and also stated that he needed the assistance of an attorney, and asked this Court to inform him how he might acquire the necessary assistance of counsel. We recognized that the trial court had carefully explained, before his trial, the dangers of self-representation and questioned whether he wanted to represent himself. We also recognized that his statements made it apparent that he wanted to control his appeal, but with the assistance of counsel- — which is effectively hybrid representation, or alternatively might want to dictate to counsel how his appeal should be pursued — actions which counsel may not allow under the ethical rules governing the profession. In an abundance of caution, we abated the case to the trial court with directions to readmonish Meyer and determine under the standards of Faretta whether his decision to represent himself was made knowingly, intelligently, and voluntarily. After a hearing at which this occurred, the court found his decision knowing and voluntary (although a bad mistake), and Meyer signed the formal waiver contemplated by Article 1.051 of the Texas Code of Criminal Procedure. TexGode Crim. Proc. Ann. art. 1.051 (Vernon Supp.2009).

We have, therefore, chosen to permit him to represent himself on appeal.

On February 4, Meyers presented a brief for filing that, beginning with the statement of facts and ending at the prayer, is 253 pages long. The maximum permissible length is fifty pages; the statement of facts does not include references to the clerk’s record or reporter’s record showing where those facts are found, the table of contents and the index of authorities do not provide page numbers to show where each issue or authority is found in the body of the brief, and the brief does not contain a certificate of service stating that a copy had been served on all parties to the proceeding. On February 4, we wrote a letter to Meyer informing him that his brief would not be filed as presented, citing and summarizing the Texas Rules of Appellate Procedure that were violated, and directing him to submit a new brief by February 16.

Instead, Meyers wrote a letter to this Court, which we received on February 9, in which he protests the unfairness of requiring him to act within the confines of the appellate rules, claims that the trial court is committing treason, states that his brief “must stand as it is,” and states categorically that he believed there was not “one lawful requirement for me to even present a brief of my facts.”

In response, on February 11, we again wrote Meyer. We reminded him that pro se defendants nevertheless were required to abide by the applicable rules of procedure, reiterated the requirements that were not met by his brief, and warned him that:

You may choose to rely on the brief that you have presented to this Court. That decision is yours to make. However, the brief presented to this Court will be struck and will not be considered. We hereby provide a final opportunity for you to prepare and file a brief that complies with the requirements of the rules. We also warn you that failure to submit a brief complying with the Texas Rules of Appellate Procedure will cause your appeal to be subject to dismissal without further notice.

We then reset the due date for filing a proper brief to March 4, 2010. An additional twenty days have now elapsed. Meyer has not filed a brief, and has filed no further documents with this Court. He has made it clear that he despises the system that he now seeks to use to his benefit. Meyer has had opportunity to seek review, within the same framework as that used by every other litigant that appears before this Court, and has contumaciously refused to do so.

We point out, that, contrary to his apparent beliefs, this Court does not act on behalf of the State. We do not, and cannot, create arguments for parties — we are neither the appellant’s nor the appel-lee’s advocate. We have an interest in a just adjudication, but also have an interest in remaining impartial. See Ex parte Lowery, 840 S.W.2d 550, 552 n. 1 (Tex.App.-Dallas 1992), rev’d on other grounds, 867 S.W.2d 41 (Tex.Crim.App.1993). Simply put, we will not brief a defendant’s case for him. Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex.Crim.App.1995).

The brief tendered for filing, as we previously informed Meyer, fails to substantially comply with the Texas Rules of Appellate Procedure. He has twice been given the opportunity to provide a brief, and has not just failed, but refused to do so. Meyer has failed to comply with the directives of this Court, and has in fact stated that he intends to file only what he finds appropriate. Accordingly, we strike Meyer’s defective brief received by this Court on February 4, 2010. See Tex. R.App. P. 9.4(i).

Under these circumstances, we conclude this appeal was not taken with the intention of pursuing it to completion, but instead was taken for other purposes unrelated to the disposition of the case. We thus conclude that Meyer has engaged in dilatory and bad faith abuse of the judicial process. We will not permit Meyer to attempt to further manipulate the appellate system. We dismiss this appeal for want of prosecution (both under our inherent authority and under the authority of the appellate rules as applied to this fact situation) for Meyers’s failure to comply with the appellate rules, and for his failure to respond to a notice from the clerk requiring action within a specified time. See Tex.R.App. P. 42.3(b), (c); see generally Stavinoha v. State, 82 S.W.3d 690 (Tex.App.-Waco 2002, no pet.); Bush v. State, 80 S.W.3d 199 (Tex.App.-Waco 2002, no pet.); McDaniel v. State, 75 S.W.3d 605 (Tex.App.-Texarkana 2002, no pet.); Rodriguez v. State, 970 S.W.2d 133, 135 (Tex.App.-Amarillo 1998, pet. ref'd); see also Brager v. State, No. 0365-03, 2004 WL 3093237 (Tex.Crim.App. Oct. 13, 2004) (not designated for publication); Johnson v. State, 166 S.W.3d 372 (Tex.App.-Waco 2005, no pet.).

Accordingly, we dismiss the appeal.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . See Pena v. State, No. 04-04-00904-CV, 2005 WL 954396 (Tex.App.-San Antonio Apr. 27, 2005, no pet.) (mem. op.); Dao v. State, No. 05-03-01412-CV, 2004 WL 1044352 (Tex. App.-Dallas May 10, 2004, no pet.) (mem. op.).


source: Caselaw Access Project

author: GUADALUPE RIVERA, Justice.

license: Public Domain

text:
    3D/I + PERSPECTIVA, a Texas Joint Venture, Appellant, v. CASTNER PALMS, LTD., Appellee.
    No. 08-08-00059-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 10, 2010.
    Francis S. Ainsa, Jr., Ainsa Hutson LLP, El Paso, for appellant.

      Luther Jones, Luther Jones, P.C., El Paso, for appellee.
    Before CHEW, C.J., RIVERA, J., and GARCIA, Judge, sitting by assignment.
   OPINION

GUADALUPE RIVERA, Justice.

3D/I + Perspectiva (“3D/I”) — a joint venture — appeals the jury’s verdict for Castner Palms, Ltd. (“Castner Palms”) stemming from the latter’s suit for negligence. In two issues, 3D/I contends that the trial court erred by denying its: (1) motion for instructed verdict when Cast-ner Palms failed to present expert testimony applicable to a construction-management firm’s standard of care in pursuit of its negligence claim; and (2) jury instruction on the professional standard of care. Finding 3D/I’s first issue dispositive, we reverse and render judgment for 3D/I.

BACKGROUND

From the limited record presented to this Court, it appears that Patriot Castner Joint Venture previously owned several parcels of land, and Glen Kistenmacher, an engineer, prepared a master drainage plan for the properties in 1994. The master drainage plan provided that each property should include an underground pipe for proper drainage from rainwater. The pipes were not put in and portions of those undeveloped properties were later sold to various entities, including the County of El Paso. Nevertheless, a city ordinance required all drainage plans to conform with the existing approved master plan.

The County’s property is adjacent to the Castner Palms’ property. The properties are separated by a rock wall. In 2002, the County contracted with 3D/I to manage the construction of an annex building. The relevant provisions of the contract provided that the County would contract with consultants, architect, engineers, and construction contractors to provide the design, construction, and construction administration for the project, and that 3D/I would supervise, direct, and manage the complete construction of the project. The contract also limited 3D/I’s duties to coordinating and scheduling the parties’ work and funding, reviewing the design documents for adherence to “requirements, clarity, con-structability and completeness,” making recommendations to the County regarding design programs, design standards, guidelines, and constructability, and guarding against defects and deficiencies in the contractor’s work as set out in the contracts. The contract further stated that 3D/I would be judged by the “standards and quality prevailing among first-rate, nationally recognized design/construction management firms of knowledge, skill and experience engaged in projects of similar size and complexity.”

In accordance with the contract, the County, in 2003, contracted with McCormick Architecture, L.L.C., and Vistacon, Inc. (“Vistacon”) to develop the property and build the annex. Vistacon, in turn, engaged Roe Engineering, L.C., (“Roe”) to perform all engineering work required to prepare the plans for the annex. For drainage purposes, Roe designed a temporary retention pond, and Vistacon constructed it. The pond only accounted for rainwater falling on the County’s property and not for uphill water that might flow onto the property. It did not comply with the drainage master plan; therefore, it did not conform to the city ordinance. In the course of the construction of the annex, the retention pond overflowed during a rainstorm, causing the apartments located on the Castner Palms’ property to flood.

At trial, Castner Palms presented expert testimony that the drainage pond was responsible for the flooding. Castner Palms did not present any evidence, apart from the contract itself, as to the standard of care a construction-management firm of the same discipline was required to exercise in supervising contractors. Accordingly, 3D/I moved for an instructed verdict, arguing that expert testimony was necessary to show that it had breached the applicable standard of care: “Plaintiff has not introduced any expert testimony of the standard of care to be exercised by an architectural firm performing project management services similar to those provided by Defendant.” In response, Castner Palms argued that because the standard of care was contained in the contract, which was admitted into evidence, expert testimony was unnecessary. The trial court determined that Castner Palms was not required to present expert testimony on the professional standard of care and denied the motion for instructed verdict.

ANALYSIS

3D/I’s first issue complains of the trial court’s denial of its motion for instructed verdict. 3D/I does not challenge Kisten-macher’s expert testimony showing the poorly constructed pond was responsible for the damage to Castner Palms. Rather, 3D/I contends that Castner Palms failed to present expert testimony as to the standard of care exercised by a construction-management firm in a supervisory capacity. Castner Palms responds that the jury could have relied on common knowledge in assessing the appropriate standard of care.

Standard of Review

To avoid an instructed verdict, Castner Palms was required to offer evidence for each element of its negligence claim. Hager v. Romines, 913 S.W.2d 733, 734-35 (Tex.App.-Fort Worth 1995, no writ). Thus, Castner Palms had to show 3D/I owed a legal duty to Castner Palms, 3D/I breached that duty, and damages proximately resulted from the breach. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995).

The determination of whether expert testimony is necessary to establish negligence is a question of law, which we review de novo. FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 89 (Tex.2004). Expert testimony is necessary to establish the applicable standard care “when the alleged negligence is of such a nature as not to be within the experience of the layman.” Id. at 90; Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). In determining whether expert testimony is necessary to establish negligence, we consider whether the conduct at issue involved the use of specialized equipment and techniques unfamiliar to the ordinary person. FFE Transp. Servs., Inc., 154 S.W.3d at 91. In such a case, the expert testimony must establish both the standard of care and the violation of that standard. Simmons v. Briggs Equipment Trust, 221 S.W.3d 109, 114 (Tex.App.-Houston [1st Dist.] 2006, no pet.); Hager, 913 S.W.2d at 734-35.

Application

The pleadings alleged that 3D/I failed to properly supervise the contractors’ design and construction of the drainage retention pond. 3D/I’s understanding of its contractual obligations was that it would oversee the complete construction of the project, and facilitate the development of the plans and the construction between the design and construction contractors, and the County. 3D/I denied that it was responsible for ensuring that adequate provisions for drainage on the site was sufficient to contain water that flows upon it. Rather, 3D/I claimed that was Roe’s responsibility. According to 3D/I, its duties were limited to supervising the work as presented to it by the plans, noting that its obligation to review the design documents only extended to a review for adherence to requirements, clarity, con-structability, and completeness. Because there were no indications of any problems with the construction of the pond, and because Roe’s plan achieved the required city permit, 3D/I believed the plans were sufficient to discharge its responsibilities under the contract.

As noted before, the contract between the County and 3D/I stated that 3D/I would be judged by the “standards and quality prevailing among first-rate, nationally recognized design/construction management firms of knowledge, skill and experience engaged in projects of similar size and complexity.” In other words, the contract provided that 3D/I’s actions would be judged according to other construction-management firms in the same discipline engaging in similar projects. That discipline’s standard of care, however, is not stated in the contract. Thus, the question presented is whether Castner Palms was required to present expert testimony as to the standard of care such a firm should exercise in supervising a similar project.

In determining whether expert testimony was required in this case, we find guid-anee in two recent cases. In Fulgham, a trucking company leased a trailer to a long-haul trucker, and while transporting goods, the trailer’s upper coupler assembly, which contained a loose or rusty bolt, broke loose, causing the trailer to separate from the tractor and overturn. Fulgham, 154 S.W.3d at 86. The Court found that expert testimony was required to establish the standard of care since “[t]he upper coupler assembly, kingpin, and base rail of a refrigerated trailer are specialized equipment, and the proper inspection and maintenance of those parts involve techniques unfamiliar to the ordinary person.” Id. at 91. Although the Court recognized that a layman may be able to detect whether a visible bolt is loose or rusty, the Court held that whether that looseness or rust is sufficient to create a danger required specialized knowledge in the tractor-trailer industry. Id. Thus, an expert was required to testify as to the standard of care. Id.

Similarly, in Simmons, a worker brought a negligence action against his maintenance company when the rail-car mover’s loose or worn hydraulic hose caught fire as he used the mover to transport railroad cars. Simmons, 221 S.W.3d at 111-12. Finding the practices, procedures, and industry standards with respect to the inspection and maintenance of a rail-car mover engine not matters within a lay person’s general knowledge, the court determined that expert testimony regarding the appropriate standard of care and whether the maintenance company breached that standard was required. Id. at 114-15. Although the court acknowledged that an ordinary person would be able to detect whether a hydraulic hose is loose or worn, the court noted that determining when that looseness or wear was sufficient to create a dangerous condition would require specialized knowledge. Id. at 115. “Without expert evidence or testimony, there was no evidence that [the maintenance company] violated the standard of care for the inspection and maintenance of the engine, hydraulic pump, or other internal pai'ts of [the rail-car mover] ... [nor was there any] factual or evidentiary support in the record concerning ... the actions that a reasonable maintenance company would have taken with respect to the hydraulic pump and hose.” Id.

In this case, we cannot conclude that a layman would know whether a construction-management firm’s supervisory duties extended beyond simply overseeing the construction as set out in the approved contractors’ design plans. This is not a case where the construction-management firm hired the contractors and approved their plans; rather, the contract provided, and the record so reflects, that El Paso County hired the contractors and approved the plans while 3D/I supervised the construction of those approved plans. Castner Palms argues that Kistenmacher’s expert testimony that Roe negligently designed the retention pond was sufficient for a layman to determine that 3D/I breached its supervisory duties under the contract. Although a layman may be able to conclude from Kistenmacher’s testimony that the pond was poorly designed and caused the flood, we believe that whether a construction-management firm’s supervisory duties included more than ensuring that the approved plans were built according to the requisite specifications called for in the plans requires specialized knowledge in the construction-management firm industry. See, e.g., Fulgham, 154 S.W.3d at 91; Simmons, 221 S.W.3d at 115 (requiring expert testimony of industry standards).

Castner Palms argues that since the standard of care was contained within the contract, whether that standard was breached is a question of law reviewed de novo. Although we agree that interpretations of contractual provisions are reviewed de novo, the contract here did not explain the standard of care; rather, it simply stated that 3D/I would be held to a standard of care as other construction-management firms in the same discipline and engaged in similar projects. There was never any evidence presented as to what that standard of care was. Furthermore, the trial court never determined whether 3D/I breached the standard of care described in the contract, nor was the jury instructed that 3D/I did so. Rather, the jury was instructed on “ordinary care,” and the sole question submitted was whose negligence proximately caused the damage to Castner Palms. In other words, there was never any evidence, interpretation, or determination of the applicable standard of care for the jury to properly decide negligence on the part of 3D/I.

Further, even if we were to impute some explanation of the applicable professional standard of care into the contract, expert testimony would still be required to establish that standard of care. In Battaglia, the Supreme Court held that although a contract between a hospital and two anesthesiologists’ professional associations obligated the associations to ensure that the staff they supplied or supervised complied with standards specified in the contract, evidence that staff breached those standards during a patient’s surgery at the hospital did not establish the requisite standard of care for a medical-malpractice action against the professional association; rather, competent expert testimony was necessary to establish the standard of care. See Battaglia v. Alexander, 177 S.W.3d 893, 899 (Tex.2005). Similarly here, even if the contract identified the applicable standard of care, competent expert testimony was nonetheless required to establish that standard for construction-management firms.

Accordingly, because no expert testimony, much less any evidence, was presented as to the applicable standard of care, we find the trial court erred by denying 3D/I’s motion for directed verdict. We therefore sustain 3D/I’s first issue, reverse the judgment of the trial court, and render judgment for 3D/I. See Hager, 913 S.W.2d at 735-36 (rendering take-nothing judgment against plaintiffs who failed to produce necessary expert testimony on applicable standard of care). Given our disposition, we need not reach 3D/I’s second issue.

      . When construction reached 50 percent, the plans provided that the contractors would connect to an underground pipe for drainage purposes.

      . Castner Palms originally sued Roe, Vista-con, and 3D/I; however, the suit against Roe and Vistacon settled.

      . Castner Palms characterizes the issue as whether 3D/I can limit its common-law duty owed to third parties by contractual arrangements. However, whether any common-law duty may be contractually limited is not the issue. Rather, the issue is what standard of care 3D/I should have exercised in supervising the construction project.

      . Castner Palms asserts that Kistenmacher’s expert testimony was sufficient to establish a breach of 3D/I’s contractual duties. However, Kistenmacher's testimony was solely limited to the cause of the flooding, that is, the poorly designed and constructed retention pond. Thus, Kistenmacher’s opinion solely concerned the negligence of Roe and Vista-con, the contractors that designed and constructed the pond. Kistenmacher did not discuss a construction-management firm's standard of care in supervising the design and construction of a similar project.


author: SUE WALKER, Justice.

text:
    Rolando BAZANES, Appellant, v. The STATE of Texas, State.
    No. 2-08-358-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 18, 2010.
    Discretionary Review Refused June 30, 2010.

      John Thomas Haughton, Aubrey, for appellant.
    Paul Johnson, Criminal District Attorney, Charles E. Orbison, Michael Dickens, Rick Daniel, Assistant Criminal District Attorneys, for appellee.
    PANEL: LIVINGSTON and WALKER, JJ.
   OPINION

SUE WALKER, Justice.

I. INTRODUCTION

A jury found Appellant Rolando Bazanes guilty of three counts of indecency with a child and assessed his punishment at twelve years’ imprisonment for each count. The trial court sentenced him accordingly, ordering that the sentences run consecutively. In four points, Bazanes argues that the jury charge was erroneous, that the evidence was legally insufficient to support his conviction, and that his defense counsel was ineffective. We will affirm.

II. Factual and Procedural Background

E.C.B., who was twelve years old at the time, and her younger sister B.B. were visiting their father, Bazanes, in Denton for two weeks. Bazanes operated an assisted-living business in his home; there was no bedroom for the girls in the home, and he and his daughters slept in a large closet. The night before the girls were to return to their home in McAllen, E.C.B. awoke to Bazanes trying to kiss her and trying to put his tongue in her mouth. Bazanes put his hand under her underwear and touched her genitals and put his hand under her shirt and grabbed her breast. He also pulled down his pajama pants, took E.C.B.’s hand, and placed it on his penis. He asked E.C.B. to kiss him back, to which E.C.B. said, “[N]o.” E.C.B. made a movement, and Bazanes stopped touching her.

The next morning B.B. could tell that her sister had been crying. She asked E.C.B. what was wrong, and her sister responded that she would tell her later. On the flight back to McAllen, E.C.B. told B.B. what had happened.

E.C.B.’s aunt noticed that E.C.B. was not acting normally after her visit to see Bazanes. Over a month after the incident, E.C.B. told her aunt what had happened, and the following day, they contacted the police. Detectives Virginia Nichols and Shane Kizer, who investigate crimes against children for the Denton Police Department, interviewed Bazanes. Bazanes initially denied any touching or kissing, but by the end of the approximately three-and-one-half-hour interview, he admitted to kissing E.C.B., but he claimed that E.C.B. had initiated it and that he had moved her off of him when she started kissing him. He ultimately admitted that when he moved E.C.B. off of him, he “felt something,” and when asked if it was E.C.B.’s vagina, he said, “Yes.” Bazanes could not explain how he had accidentally touched E.C.B. under her clothing.

A Sexual Assault Nurse Examiner (“SANE”) examined E.C.B. approximately two months after the incident. The SANE nurse who examined E.C.B. did not testify at Bazanes’s trial, but another SANE nurse testified that the results of the examination showed blunt force trauma to E.C.B.’s hymen. She explained that the injury could have been caused by penetration of a finger, a penis, or another object.

At Bazanes’s trial, E.C.B. testified that when her father touched her, she was uncomfortable and scared. She testified that Bazanes was breathing hard, that his penis felt “hard,” and that he moved her hand “a little” over his penis. She also testified that when she was about five years old, Bazanes had kissed her neck and grabbed her buttocks when they were alone.

III. Jury Charge

In his first and second points, Bazanes complains that the jury charge was erroneous. Bazanes acknowledges that his defense counsel did not object to the jury charge, but he argues that he was egregiously harmed by these errors. We will address each of his complaints separately below.

A. Standard of Review

Appellate review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994); see Sakil v. State, 287 S.W.3d 23, 25-26 (Tex.Crim.App.2009). Initially, we must determine whether error occurred. See Abdnor, 871 S.W.2d at 731-32. If it did, we must then evaluate whether sufficient harm resulted from the error to require reversal. Id.

If there is error in the court’s charge but the appellant did not preserve it at trial, we must decide whether the error was so egregious and created such harm that the appellant did not have a fair and impartial trial — in short, that “egregious harm” has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g); see Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Allen v. State, 253 S.W.3d 260, 264 (Tex.Crim.App.2008); Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996). Egregious harm is the type and level of harm that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Allen, 253 S.W.3d at 264 & n. 15; Olivas v. State, 202 S.W.3d 137, 144, 149 (Tex.Crim.App.2006); Almanza, 686 S.W.2d at 172.

In making an egregious harm determination, “the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d at 172-74. The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Egregious harm is a difficult standard to prove and must be determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002); Hutch, 922 S.W.2d at 171.

B. Jury Charge on Culpable Mental State

In his first point, Bazanes argues that the jury charge erroneously allowed the jury to convict him of indecency with a child for “intentionally or knowingly” engaging in sexual contact with E.C.B., although the proper mens rea for the offense is the specific intent “to arouse or gratify the sexual desire of any person.” Tex. Penal Code Ann. § 21.11(c) (Vernon Supp. 2009). The State admits error but argues that Bazanes did not suffer egregious harm as a result of the error.

The elements of indecency with a child are that the accused (1) engaged in “sexual contact,” (2) with a child, (3) younger than seventeen years of age, (4) whether the child is of the same or opposite sex. See id. § 21.11(a)(1). “Sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or (2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person. Id. § 21.11(c).

In this case, the abstract portion of the jury charge provided: “Our law provides that a person commits an offense if, with a child younger than 17 years old and not his spouse, whether the child is the same or opposite sex, he engages in sexual contact with the child.” It also defined “sexual contact” as “any touching of any part of the genitals or breasts of another person with intent to arouse or gratify the sexual desire of any person." [Emphasis added.] Although the abstract portion of the charge did not use the terms “intentionally” or “knowingly” in defining the applicable substantive law, it included full statutory definitions of “intentionally” and “knowingly.”

The application portion of the jury charge allowed the jury to convict Bazanes of indecency with a child if it found beyond a reasonable doubt that “with the intent to arouse or gratify [his] sexual desire, [he] ... intentionally or knowingly engage[d] in sexual contact with [E.C.B.]” by touching her breasts (Count 1), by touching her genitals (Count 2), or by causing her to touch his genitals (Count 3). [Emphasis added.]

We have seen this charge language before — also from a case out of Denton County^ — -and have held that it constituted charge error. See Chiodo v. State, No. 2-06-096-CR, 2007 WL 1952375, at *4 (Tex.App.-Fort Worth July 5, 2007, pet. refd) (mem. op., not designated for publication). In Chiodo, we reasoned that “[b]ecause the application paragraph disjunctively listed the culpable mental states of knowingly and intentionally with the specific intent necessary to complete the crime, the jury could have convicted Appellant without consideration of whether he acted with the proper mens rea required by statute.” Id. (citing Rodriguez v. State, 24 S.W.3d 499, 502 (Tex.App.-Corpus Christi 2000, pet. ref'd)); see also Jones v. State, 229 S.W.3d 489, 492 (Tex.App.-Texarkana 2007, no pet.) (finding error when charge “stated that indecency with a child is committed if the person intentionally or knowingly engages in sexual contact with a child”). As in Chiodo, we find error in the charge, and we will review the record to determine whether this error egregiously harmed Ba-zanes in light of the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information. See Almanza, 686 S.W.2d at 171.

Looking at the charge as a whole, the abstract portion accurately stated the substantive law on the offense of indecency with a child — including the specific intent to arouse or gratify — thus informing the jury of what the State had and did not have to prove. See Chiodo, 2007 WL 1952375, at *4. Although the charge defined “intentionally” and “knowingly” and included those terms in the application portion of the charge, it did not include them in the abstract portion of the charge setting forth the substantive law of indecency with a child. Moreover, the charge included the required specific intent to arouse or gratify in the application portion, along with the erroneous “intentionally and knowingly” language. The charge also correctly addressed extraneous offense evidence, the indictment, statements of the court and of counsel, the presumption of innocence, the credibility of witnesses and weight to be given their testimony, and the burden of proof. Consequently, within the context of the entire jury charge, the erroneous application paragraph appears less harmful. See id.; see also Fulcher v. State, 274 S.W.3d 713, 718-19 (Tex.App.-San Antonio 2008, pet. ref'd) (holding that error in omitting requisite mental state from application paragraph of charge did not result in egregious harm).

Regarding the state of the evidence, the primary contested issue at trial was whether E.C.B.’s testimony was credible. As we explain more fully in addressing Bazanes’s third point below, the specific intent required for the offense of indecency -with a child may be inferred from Ba-zanes’s conduct, his remarks, and all of the surrounding circumstances — specifically from E.C.B.’s testimony in this regard. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. [Panel Op.] 1981). The jury, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, could have inferred Bazanes had the intent to arouse or gratify his sexual desire from E.C.B.’s testimony about the incident. See id.

In conducting our egregious harm analysis, we next address the arguments of counsel. During its closing argument, the State did not refer to any requirement that Bazanes act intentionally or knowingly. See Jones, 229 S.W.3d at 494; cf. Ngo v. State, 175 S.W.3d 738, 751 (Tex.Crim.App.2005) (finding egregious harm in jury charge error when prosecutor and trial court repeatedly misstated law). Instead, the State correctly discussed the requisite specific intent when discussing the elements of indecency with a child:

The next thing was the intent to arouse or gratify. We talked about, well, how is ... evidence of that shown? There’s not going to be an expert to come in here and tell you he acted with intent. You’re gong to have to look at the facts and circumstances surrounding the event.
Is this an individual changing a child’s diaper? Is this an individual giving a child a bath? No. This is in the closet at night with kissing, underneath the clothes, on the vagina. There’s the intent to arouse or gratify.
The defendant can say as many times as he wants that it was accidental, but we all know that you don’t touch a child in that manner after kissing in a closet in the middle of the night without it being intent to arouse and gratify.
Those are the elements. We have to prove those beyond a reasonable doubt, and we’ve done that.

Defense counsel then argued in his closing argument that the State had “to prove to each of you beyond a reasonable doubt not just that [Bazanes] touched her, but that he touched her ... intentionally for a sexual purpose,” that he “did it intentionally to gratify sexual desires.” Finally, the State addressed the specific intent again in its rebuttal:

[Y]ou’ve got to prove that this was for sexual gratification. Ladies and gentleman, you don’t kiss someone with your tongue and feel their breasts and stick your finger on their vagina without it being for sexual gratification. A grown man doesn’t make a person, much less a child, touch his erect penis unless it is for the purpose of sexual gratification.

Consequently, the jury was not misled by the arguments of counsel and, instead, was repeatedly and correctly advised that the State had to prove that Bazanes possessed the requisite specific intent to arouse or gratify his sexual desire.

In light of our review of the charge, the evidence, the arguments of counsel, and other relevant information, we conclude that the complained-of error in the jury charge did not cause egregious harm to Bazanes. See Almanza, 686 S.W.2d at 171; Chiodo, 2007 WL 1952375, at *4; see also Fulcher, 274 S.W.3d at 718-19. Consequently, we overrule Bazanes’s first point.

C. Jury Charge on Definition of Sexual Contact

In his second point, Bazanes argues that the definition of sexual contact in the jury charge erroneously failed to include the subsection (2) definition of sexual contact — “any touching of any part of the body of a child, including touching through clothing, of the anus, breast, or any part of the genitals of a child.” Tex. Penal Code Ann. § 21.11(c)(2). He argues that because the jury charge did not include this definition, the jury could not have properly convicted him of the offense alleged in Count 3 of the indictment (indecency with a child by causing E.C.B. to touch his genitals). The State argues that the definition of sexual contact was correct and simply “combined the definitions [of sexual contact] into one sentence” and that, alternatively, any error did not result in egregious harm to Bazanes.

The charge used the general definition of “sexual contact” from penal code section 21.01, rather than the definition provided in section 21.11 that is applicable to the offense of indecency with a child. Compare id. § 21.01(2) (Vernon Supp. 2009) (“ ‘Sexual contact’ means, except as provided by section 21.11, any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.”) (emphasis added), with id. § 21.11(c) (defining “sexual contact” in relation to the offense of indecency with a child).

Assuming, without deciding, that the definition of “sexual contact” in the abstract portion of the jury charge erroneously omitted the definition of the type of contact alleged in Count 3 of the indictment, we note that the application portion of the jury charge properly applied the subsection (2) definition of sexual contact to the facts:

Now if you find from the evidence beyond a reasonable doubt that ... Ba-zanes, did then and there, with the intent to arouse or gratify the sexual desire of said defendant, intentionally or knowingly cause [E.C.B.], a child younger than 17 years and not the spouse of the defendant, to engage in sexual contact by causing the said child, [E.C.B.] to touch the genitals of the defendant ..., then you will find the defendant guilty of Indecency with a Child, as charged in Count III of the indictment.

Although such a proper application paragraph does not cure any error in the instruction, it does factor into the harm analysis. See Cook v. State, 884 S.W.2d 485, 492 n. 6 (Tex.Crim.App.1994); Harrell v. State, 923 S.W.2d 104, 107-09 (Tex.App.-Houston [14th Dist.]), vacated on other grounds, 930 S.W.2d 100 (Tex.Crim.App.1996). “Where the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious.” Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000).

Because the application paragraph correctly instructed the jury on the elements of the offense of sexual contact as charged in Count 3 of the indictment, we hold that Bazanes was not egregiously harmed by any error in the definition of sexual contact. See Medina, 7 S.W.3d at 640; see also Meanes v. State, 668 S.W.2d 366, 374-75 (Tex.Crim.App.1983) (holding failure to give abstract instruction defining capital murder was not error when constituent elements of murder were set forth at length in application paragraph), cert. denied, 466 U.S. 945, 104 S.Ct. 1930, 80 L.Ed.2d 476 (1984). We overrule Ba-zanes’s second point.

IY. Legal Sufficiency of the Evidence

In his third point, Bazanes argues that legally insufficient evidence existed to show that he acted with the specific intent to arouse or gratify his sexual desires.

A. Standard of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution in order to determine 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, 2789, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex.Crim.App.2008), cert. denied, — U.S. -, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). Instead, we “determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App.2007). We must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Clayton, 235 S.W.3d at 778.

The sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case, not the charge actually given. Hardy v. State, 281 S.W.3d 414, 421 (Tex.Crim.App.2009); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex.Crim.App.2001); Malik, 953 S.W.2d at 240. The law as authorized by the indictment means the statutory elements of the charged offense as modified by the factual details and legal theories contained in the charging instrument. See Curry v. State, 30 S.W.3d 394, 404-05 (Tex.Crim.App.2000).

In determining the legal sufficiency of the evidence to show an appellant’s intent, and faced with a record that supports conflicting inferences, we “must presume— even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim.App.1991).

B. Legally Sufficient Evidence of Specific Intent

The specific intent required for the offense of indecency with a child may be inferred from a defendant’s conduct, his remarks, and all of the surrounding circumstances. See McKenzie, 617 S.W.2d at 216; Connell v. State, 233 S.W.3d 460, 467 (Tex.App.-Fort Worth 2007, no pet.); see also Tex.Code Crim. Proc. Ann. art. 38.07 (Vernon 2005) (providing that conviction for indecency with a child is supportable by uncorroborated testimony of victim if victim reported offense to another within one year of offense). An oral expression of intent is not required; the conduct itself is sufficient to infer intent. Connell, 233 S.W.3d at 467 (citing C.F. v. State, 897 S.W.2d 464, 472 (Tex.App.-El Paso 1995, no writ)). Additionally, a complainant’s testimony alone is sufficient to support a conviction for indecency with a child. Id. at 466 (citing Tex.Code Crim. Proc. Ann. art. 38.07; Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App.1978)).

Here, E.C.B. testified that she awoke to Bazanes trying to kiss her and trying to put his tongue in her mouth, that he put his hand under her underwear and touched her genitals, that he put his hand under her shirt and touched or grabbed her breast, and that he took her hand and placed it on his penis. She said that his penis felt “hard.” She further testified that Bazanes had told her to kiss him back, was breathing hard, and would move her hand a little over his penis. The jury, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, could have inferred Bazanes acted with the intent to arouse or gratify his sexual desire from E.C.B.’s testimony. See Tex.Code Crim. Proc. Ann. art. 38.04; McKenzie, 617 S.W.2d at 216.

Viewing all of the evidence in the light most favorable to the prosecution and deferring, as we must, to the jury’s determination and evaluation of the witnesses’ credibility and demeanor, we hold that there was evidence and reasonable inferences therefrom upon which a rational trier of fact could have found beyond a reasonable doubt that Bazanes acted with the intent to arouse or gratify his sexual desire. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Brown, 270 S.W.3d at 568; Clayton, 235 S.W.3d at 778. Accordingly, we hold that the evidence is legally sufficient to support Bazanes’s conviction, and we overrule his third point.

V. Effective Assistance of Counsel

In his fourth point, Bazanes argues that his counsel was ineffective for not objecting to the jury charge and not objecting to Nurse Fornara’s testimony on grounds of hearsay and improper bolstering.

A. Standard of Review

We apply a two-pronged test to ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App.2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). There is no requirement that an appellate court approach the two-pronged inquiry of Strickland in any particular order or even address both components of the inquiry if the defendant makes an insufficient showing on one component. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

To establish ineffective assistance of counsel, the appellant must show by a preponderance of the evidence that his counsel’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 62-63; Thompson, 9 S.W.3d at 812.

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065. Review of counsel’s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel’s conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson,. 9 S.W.3d at 813-14. “In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mal-lett, 65 S.W.3d at 63). To overcome the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.Crim.App.2007).

The second prong of Strickland requires a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable result. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In other words, the appellant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged. Id. at 697, 104 S.Ct. at 2070.

B. Failure to Object to Jury Charge

Here, Bazanes first argues that his counsel was ineffective for not objecting to the “intentionally or knowingly” language in the jury charge. Had defense counsel objected to this error and the trial court overruled the objection, Bazanes would need to show some harm on appeal. See Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Abdnor, 871 S.W.2d at 731-32; Almanza, 686 S.W.2d at 171. As we explained above in our egregious harm analysis, the charge stated the correct law on indecency with a child and included the specific mens rea in both abstract and application portions of the charge, the jury could have inferred the requisite specific intent from E.C.B.’s testimony, and the State and defense counsel informed the jury that the State must prove that Ba-zanes possessed the intent to arouse or gratify his sexual desires. See Almanza, 686 S.W.2d at 171; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App.2000) (explaining harm analysis when error preserved).

After a careful review of the record, we conclude that Bazanes has failed to demonstrate a reasonable probability that the result of the proceeding would have been different had defense counsel objected to the jury charge. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; see also Ovalle, 13 S.W.3d at 786; Almanza, 686 S.W.2d at 171. Further, because Bazanes has not satisfied the second Strickland prong, we need not address whether he met his burden under the first prong of Strickland. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

C. Failure to Object to Nurse Fornara’s Testimony

Bazanes next argues that his counsel was ineffective by failing to object to Nurse Fornara’s testimony. Bazanes did not file a motion for new trial; therefore, the record is silent as to defense counsel’s reasons for not objecting to this testimony. Generally, a silent record that provides no explanation for counsel’s actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.2003); Edwards v. State, 280 S.W.3d 441, 445 (Tex.App.-Fort Worth 2009, pet. ref'd).

Based on the record before us, in light of the strong presumption of reasonable professional assistance by defense counsel, and in the absence of any opportunity for defense counsel to explain his motives for not objecting to Nurse Fornara’s testimony, we cannot say that Bazanes has met his burden of showing by a preponderance of the evidence that his trial counsel’s representation fell below the standard of prevailing professional norms. See Strickland; 466 U.S. at 690, 104 S.Ct. at 2066; Rylander, 101 S.W.3d at 110; Thompson, 9 S.W.3d at 813; Edwards, 280 S.W.3d at 445; see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005) (stating that “trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective”).

Moreover, the entirety of Bazanes’s argument regarding his counsel’s ineffective assistance in this regard is that “[without Nurse Fornara’s unnecessary testimony, the jury could have focused entirely on the occurrence witnesses’ testimony.” This assertion is not proof that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Moreover, we have already explained how E.C.B.’s testimony, standing alone, was sufficient to support Bazanes’s conviction. We conclude that Bazanes has failed to satisfy either prong of the Strickland test.

Having disposed of Bazanes’s ineffective assistance arguments, we overrule his fourth point.

VI. Conclusion

Having overruled all of Bazanes’s four points, we affirm the trial court’s judgment.

      . Photographs taken during the examination were also admitted into evidence.

      . At trial, Bazanes’s defense attorney stated that he had 'Tnjo objections” to the proposed charge.

      . The indictment also used the phrase "intentionally or knowingly”; Count 1 of the indictment alleged that Bazanes "with the intent to arouse or gratify [his] sexual desire ... intentionally or knowingly engage[d] in sexual contact with [E.C.B.], by touching the breasts of [E.C.B.], a child younger than 17 years of age and not the spouse of [Bazanes].” Counts 2 and 3 were the same, except that Count 2 alleged the conduct as "touching the genitals of [E.C.B.],” and Count 3 alleged the conduct as "causing I E.C.B.] to touch the genitals of [Bazanes].”

      . The majority of Bazanes’s argument in his third point is that we should not consider certain other testimony and evidence admitted at trial. We need not address his specific complaints because, under the appropriate standard of review and substantive law, E.C.B.’s testimony is sufficient to support the conviction. See Connell, 233 S.W.3d at 466.


text:
    In the Matter of H.G.G.D., a Juvenile.
    No. 08-08-00280-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 24, 2010.

      M. Clara Hernandez, El Paso County Public Defender, El Paso, for Appellant.
    Jo Anne Bernal, County Attorney, El Paso, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

H.G.G.D., Appellant, was adjudicated for delinquent conduct and committed to the Texas Youth Commission. On appeal, Appellant challenges the legal sufficiency of the evidence to support his adjudication. We affirm.

BACKGROUND

At 12:41 p.m. on June 22, 2008, Appellant arrived at the Bridge of the Americas, an international port of entry connecting El Paso, Texas with adjacent Ciudad Juarez, Mexico. Appellant was 18 and told Border Patrol Officer Jorge Lopez, who was working as a customs inspector, that he was going to downtown El Paso to buy some tennis shoes. Lopez noticed that Appellant was driving a recently purchased 1982 two-toned brown Ford F-150, and that the registration was expired and referenced different plates than those on the vehicle. There was only one key in the ignition. There were no house keys or any other keys, which Lopez found unnor-mal. Lopez also observed fresh tool marks on the gas tank and noted it was cleaner than the rest of the undercarriage, which indicated that it had been removed and replaced. Lopez knew, based on past experience, that marijuana was sometimes concealed in gas tanks. Appellant was very nervous, his hands were moving, and he played with a handkerchief. He avoided eye contact and hesitated before answering any questions. His suspicions aroused, Lopez asked Officer Jose Dominguez to conduct a second declaration.

Dominguez also noted that Appellant’s hands were visibly shaky, that he could not maintain eye contact, that he looked uncomfortable, and that he kept looking around. In Dominguez’s experience, Appellant’s behavior was unusual. Thus, Dominguez advised Lopez that the vehicle should be sent for a more thorough inspection. The vehicle was then placed in a secondary inspection area, and with the aid of a trained canine, 119 yellow bundles of marijuana were found in the gas tank. During the search, Appellant just looked down at the ground. He never said anything.

The bundles field-tested positive for marijuana. Dominguez transported the bundles to the seizure room, weighed them, obtaining a weight of 131 pounds, and waited with them until they were picked up by El Paso Police Officer John Sanchez. Sanchez subsequently transported all of the bundles to the El Paso Police Department’s vault. There, he weighed the bundles, obtaining a total weight of 131.80 pounds. Five days before Appellant’s trial, Sanchez randomly selected 26 bundles from the lot, obtained samples from those 26 bundles, and sent them for testing. The chemist then weighed those samples submitted and obtained a weight of 102.99 grams. All 26 samples tested positive for 90 percent marijuana. Relying on the number of bundles seized, the chemist determined the weight of the lot of marijuana to be 119.90 pounds.

At trial, Detective Marcela Gil with the El Paso Sheriffs Office testified that the average price per pound of marijuana in El Paso is $220. Thus, 119 pounds of marijuana would presumably be valued at $26,180. However, the price increases farther from the border. For instance, in New Mexico, the valuable cargo would be valued at $35,700, in Oklahoma, the value would be $50,575, and in Atlanta, the value would be $130,900.

ANALYSIS

In his sole issue presented on appeal, Appellant contends the evidence was legally insufficient to not only link him to the marijuana, but also to prove he possessed more than 50, but less than 2,000 pounds of the prohibited substance. We disagree.

Standard of Review

Although juvenile appeals are categorized as civil cases, we use the same standards applicable in criminal appeals when reviewing challenges to the sufficiency of the evidence supporting a finding that a juvenile engaged in delinquent conduct. See In the Matter of M.D.T., 153 S.W.3d 285, 287 (Tex.App.-El Paso 2004, no pet.). Accordingly, in a legal-sufficiency analysis, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App.2001). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992). Rather, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 421-22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991).

Links

To prove delinquent conduct, the State had to show that Appellant “knowingly or intentionally” possessed “a usable quantity of marihuana.” Tex. Health & Safety Code Ann. § 481.121(a), (b)(5) (Vernon 2003); Tex. Fam.Code Ann. § 51.03(a)(1) (Vernon 2008). Possession is defined as “actual care, custody, control, or management.” Tex. Health & Safety Code Ann. § 481.002(38) (Vernon 2003). Thus, the State had the burden to prove beyond a reasonable doubt that the juvenile (1) exercised care, control, and management over the contraband and (2) that the accused knew he possessed contraband. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App.1995); In re J.M.C.D., 190 S.W.3d 779, 781 (Tex.App.-El Paso 2006, no pet.).

Mere presence at the scene is not sufficient to establish unlawful possession of a controlled substance, but evidence which links the defendant to the controlled substance will suffice to prove that he possessed it knowingly. McGoldrick v. State, 682 S.W.2d 573, 578-79 (Tex.Crim.App.1985). The links must raise a reasonable inference that the accused knew of and controlled the contraband, and may be shown by either direct or circumstantial evidence establishing “to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous.” Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995); Levario v. State, 964 S.W.2d 290, 294 (Tex.App.-El Paso 1997, no pet.). The number of links present is less important than the logical force the links have alone or in combination in establishing the elements of the offense. In re J.M.C.D., 190 S.W.3d at 781; Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.-Austin 1991, pet. ref'd).

In Menchaca v. State, 901 S.W.2d 640, 644, 652 (Tex.App.-El Paso 1995, pet. ref d), we found sufficient links to establish possession of marijuana when the evidence showed: (1) the defendant was the sole occupant of the vehicle; (2) the car he drove bore temporary license plates and was borrowed from a friend; (3) the key that operated the car was the only one on the key chain; (4) the defendant was nervous, his hands were shaking, and he avoided eye contact; (5) the amount of marijuana found in the car — 49.5 pounds — • was a large and valuable amount; (6) the packages of marijuana were hidden throughout the vehicle; (7) the defendant was attempting to cross an international border; and (8) a letter found in the vehicle indicated that the defendant, once having crossed the border, would wait for others to discuss the “matter.”

We find similar links in this case: (1) Appellant was the sole occupant of the vehicle; (2) the vehicle had been recently purchased from an unknown man and contained expired registration tags and different license plates; (3) the only key present was that in the ignition; (4) Appellant was nervous and uncomfortable, his hands were shaking, and he avoided eye contact; (5) Appellant hesitated before answering questions, played with a handkerchief, and never questioned why he was being detained; (6) the amount of marijuana found was a large amount worth between $26,180 and $130,900; (7) the marijuana was hidden in the gas tank, and the gas tank appeared to be new and recently installed, unlike the rest of the undercarriage of the vehicle; and (8) Appellant was attempting to cross an international border. These links establish, to a requisite level of confidence, that Appellant’s connection with the packages of marijuana was more than just fortuitous. Brown, 911 S.W.2d at 747. As we noted in Menchaca, “Appellant would not have been entrusted in taking the valuable cargo across an international border if he were a mere innocent, ignorant of all the details surrounding his responsibility and the importance of the cargo in- his care.” Menchaca, 901 S.W.2d at 652. In viewing the evidence in the light most favorable to the jury’s verdict, we conclude that the jury could have rationally found beyond a reasonable doubt all of the essential elements of the offense charged, including care, control, and management of the marihuana, and that Appellant intentionally or knowingly possessed the contraband.

Weight

Appellant also asserts that the evidence was legally insufficient to establish he possessed more than 50, but less than 2,000 pounds of marijuana by asserting that we cannot consider the lab report, which recited the weight as 119 pounds of marijuana, because the report was inadmissible, nor may we consider Sanchez’s testimony that the bundles of marijuana weighed 131.8 pounds, since he failed to comply with Section 481.160(a)(2) of the Texas Health and Safety Code, a provision relating to the photographing of contraband prior to disposal by a law-enforcement agency. However, in conducting a legal-sufficiency review, we must consider all of the evidence presented to the jury, even improperly admitted evidence. Conner v. State, 67 S.W.3d 192,197 (Tex.Crim.App.2001); Varkonyi v. State, 276 S.W.3d 27, 34 (Tex.App.-El Paso 2008, pet. ref'd). Accordingly, even if the lab report or Sanchez’s testimony was inadmissible, we may still, consider both in determining whether sufficient evidence was presented that Appellant possessed more than 50, but less than 2,000 pounds of marijuana.

Here, the evidence showed that 119 bundles were seized from Appellant’s vehicle. Later that day, those bundles were collected by John Sanchez, the evidence custodian. Sanchez weighed the bundles, obtaining a weight of 131.8 pounds, and he later gathered samples from 26 randomly selected bundles and sent them for testing. The chemist determined that all 26 samples submitted were marijuana, and based on the weight received from Sanchez, determined that there was at least 119 pounds of marijuana. We believe this evidence was legally sufficient to establish Appellant possessed more than 50, but less than 2,000 pounds of marijuana.

Nevertheless, Appellant contends that the chemist was personally required to weigh each bundle of marijuana. Appellant cites to no cases holding that the burden to weigh each package rests solely with the testing chemist, and we have found none. Rather, an expert may “rel[y] in whole or part upon information of which he has no personal knowledge, communicated to him at or before the time he testifies,” as long as he “has a sufficient basis for his opinion.” Aguilar v. State, 887 S.W.2d 27, 29 (Tex.Crim.App.1994). In Cole, Judge Maloney noted that “ *[i]t is rare indeed that an expert can give an opinion without relying to some extent upon information furnished him by others.’ ” Cole v. State, 839 S.W.2d 798, 814-15 n. 3 (Tex.Crim.App.1992) (Maloney, J., concurring) (quoting Reardon v. Manson, 806 F.2d 39 (2nd Cir.1986), cert. denied, 481 U.S. 1020, 107 S.Ct. 1903, 95 L.Ed.2d 509 (1987)). Appellant does not contend that Sanchez was unqualified to weigh the bundles of marijuana, nor that the State failed to establish the beginning or the end of the custody chain. Nor does he contest that Border Patrol Officer Dominguez also obtained a weight of 131 pounds and field-tested all the bundles, obtaining positive results for marijuana. Accordingly, under the facts of this case, we believe the chemist could have relied on the weight Sanchez obtained in determining whether there existed more than 50, but less than 2,000 pounds of marijuana.

CONCLUSION

Having found the evidence legally sufficient to establish Appellant possessed more than 50, but less than 2,000 pounds of marijuana, -we overrule Appellant’s sole issue. The trial court’s judgment is affirmed.

      . Appellant does not dispute the random-sampling procedure followed for testing the substances in this case, nor does he contest that all the , bundles contained marijuana; therefore, we make no determination as to whether the procedure was in accordance with similar cases supporting the random-sampling method. See Zone v. State, 118 S.W.3d 776, 777 (Tex.Crim.App.2003); Melton v. State, 120 S.W.3d 339, 342 (Tex.Crim.App.2003); Gabriel v. State, 900 S.W.2d 721, 722 (Tex.Crim. App.1995) (chemical testing of the contents of some narcotics while visually inspecting the others for same appearance was a proper method to determine whether all seized items were narcotics).


text:
    W.C. LAROCK, D.C., P.C. d/b/a Auto & Work Injury Clinic and Maria Del Carmen Gallardo/Rosemary Smith, Appellants/Cross Appellees, v. Rosemary SMITH/W.C. LaRock D.C., P.C. d/b/a Auto & Work Injury Clinic and Maria Del Carmen Gallardo, Appellee/Cross-Appellant.
    No. 08-07-00346-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 24, 2010.
    Rehearing Overruled May 12, 2010.

      Joseph L. Hood, Jr., Windle, Hood, Alley, Norton, Brittain & Jay, LLP, El Paso, for appellants.
    Antonio Martinez, Jr., Firth, Johnston & Martinez, El Paso, for appellee.
    Before McCLURE, J., RIVERA, J., and GUADERRAMA, Judge, sitting by assignment.
   OPINION

GUADALUPE RIVERA, Justice.

Rosemary Smith, sued W.C. LaRock, D.C., P.C., d/b/a Auto & Work Injury Clinic (the “clinic”), and Maria Gallardo, alleging that the clinic failed to train and supervise their workers and that Gallardo, an employee of the clinic, negligently caused Smith’s injuries. The City of El Paso, which paid worker’s compensation benefits to Smith, later entered the suit as a plaintiff in its capacity as Smith’s subrogee. The jury found Gallardo’s negligence caused Smith’s injury and awarded her $488,000 in damages for past and future conscious pain and mental anguish, physical impairment, medical expenses, and loss of earning capacity. The defendants moved for a judgment notwithstanding the verdict, which the trial court granted solely to reduce the medical-care award. The trial court then rendered judgment that Smith and the City recover $839,983.58 from the defendants, jointly and severally. Both parties now appeal.

BACKGROUND

On October 5, 2001, El Paso Police Officer Rosemary Smith injured her back while entering her patrol car. Smith sought treatment from the hospital and then her family physician, who referred her to Dr. Terry Bagley, a board certified physical medicine and rehabilitation physician. Shortly thereafter, Smith sought chiropractic care from Dr. Anuradha Pra-sad at the clinic.

At Smith’s first visit on November 6, 2001, Dr. Prasad prescribed a course of physical therapy. However, after an MRI was performed on Smith’s spine, she was referred to Dr. Luis Vasquez, a board certified neurosurgeon.

On December 21, 2001, Dr. Vasquez diagnosed Smith as suffering from a herniated disc between the L4-L5 vertebral bodies of the lumbar spine. Because a disc functions as a cushion between the vertebrae in the spine, any nucleus that herniates when an external part of the disc is cracked, causes pain or parasthesia when the nucleus contacts a nerve. Her treatment options included a surgical discecto-my or physical therapy with epidural injections for pain management. Smith elected to have the surgery.

After the surgery was performed on January 29, 2002, Smith experienced relief. She left the hospital the following day and seemingly had no more pain in her back or down her leg. However, Smith did experience pain from the incision. Although she stayed with her mother following the surgery, Smith was able to do just about everything by herself.

On February 13, 2002, Smith saw Dr. Vasquez for a follow-up examination. She told the doctor that she felt good and wanted to go back to work. However, because there was still some radicular pain in her left leg, Dr. Vasquez did not release Smith for work. Dr. Vasquez told Smith to pace herself, and he prescribed physical therapy at the clinic. The doctor did not place any limitations on the specific therapies or activities Smith could perform, but rather left these matters to the therapists’ discretion.

On February 20, 2002, Smith returned to the clinic for physical therapy. She did not speak with any chiropractors before the therapy commenced, nor was an evaluation and physical examination performed. Sarah Chavez performed the physical therapy, but because the incision hurt and she felt pain when asked to lie on her back, Smith was unable to complete her therapy and was told to see Dr. Superville. Smith then spoke with Dr. Superville, who asked how she was doing, but did not examine or evaluate her. Rather, when Smith told him that she recently underwent surgery, Dr. Superville replied, “Well, then, we don’t need to do anything right now.”

Smith went back to the clinic for physical therapy on February 22, 2002. Feeling well enough, Smith drove herself to the clinic. At the clinic, Chavez started Smith’s therapy by gently lifting her right leg about an inch to an inch-and-a-half off the ground. Soon, the session was interrupted by a phone call for Chavez. As Chavez took the call, Maria Gallardo took her place. Gallardo looked at Smith’s chart and then took Smith’s right leg, placed one hand under her knee and the other at her ankle, and performed a knee-to-chest stretching exercise. Smith, not expecting her leg to be raised so far, felt pain in the area near her surgical incision and down her legs. Because the exercise was performed so quickly, Smith did not have the opportunity to tell Gallardo about the pain, and Gallardo only stopped because Smith jerked back and her leg went forward. Smith began to cry from the pain, which was worse than she felt after her injury on October 5, 2001.

Smith could barely walk, and Gallardo, with help from another therapist, assisted Smith to another room for massage therapy. Although the massage helped a little bit, Smith was told to wait for Dr. Super-ville. As she waited, Smith was in so much pain that she felt very nauseous and vomited in the bathroom, and after fifteen minutes, she called for a ride and left before seeing the doctor. When Smith returned to her mother’s house that afternoon, the pain to her back and leg worsened.

On February 25, 2002, Smith saw Dr. Prasad. Dr. Prasad was surprised to see Smith limping because nothing in her chart indicated anything had happened. Smith told the doctor what occurred three days before and that she did not want Gallardo touching her. Believing the pain would go away with more therapy, Smith stayed at the clinic. However, the stretching was too painful and so was Dr. Pra-sad’s adjustments on Smith’s back. Because Smith could no longer do the stretches or the adjustments, she started aquatic therapy.

On March 13, 2002, Smith, having significant muscle spasms in the lower back and sharp shooting, stabbing pain down her leg, returned to Dr. Vasquez. When Dr. Vasquez saw Smith on April 5, 2002, she was limping. Because Smith’s condition persisted, Dr. Vasquez ordered another MRI, and on April 11, 2002, the MRI revealed a recurrent herniated disc at L4-L5, the same place Smith was operated on before.

On April 16, 2002, Smith underwent a second surgical procedure to repair the herniation. That procedure revealed the presence of a large fragment of the disc in the same area as her previous surgery, which the doctor removed. Although she received some relief following the surgery, Smith continued to experience pain that radiated to her legs. Smith did not experience significant relief as she had with the first surgery.

Following the second surgery, Smith underwent physical therapy again, but this time, she sought therapy at El Paso Physical Therapy. There, the same knee-to-chest stretch that Gallardo performed was conducted; however, this time, an explanation of the exercise was explained to Smith first and the same was performed very slowly with minimal pressure. The physical therapy alleviated some of Smith’s pain, but she continued to experience pain and loss of flexibility.

Smith returned to light duty work in January 2003, as a court liaison. While working as a court liaison for approximately one year, Smith felt better since she was not required to wear all of her equipment, but she was sill having back pain and numbness in her leg. Light duty was soon eliminated by the police department, and Smith was required to dress in full uniform and don a revolver, handcuffs, and other equipment that weighed approximately 25 pounds. Wearing so much equipment was painful and Smith’s condition fluctuated among the days.

Smith continued to see Dr. Vasquez, telling him that she still felt pain and that she believed something was wrong. On June 4, 2003, Smith developed a burning and pulling sensation in her back while running on a treadmill. A third MRI conducted in October 2003, revealed another herniation at L4-L5. Dr. Vasquez told Smith that she needed another surgery to fuse her back.

On March 22, 2004, a third surgery was performed. That surgery went better than the second surgery, and although Smith no longer had much pain, she still did not feel well, and the third surgery did not relieve as much pain as the first surgery did. Shortly, thereafter, Smith returned to work at a desk job.

Following her return to work, Smith was involved in several incidents noted by her worker’s compensation, which the City included as subsequent injuries under Smith’s original injuries sustained on October 5, 2001. The first occurred on January 19, 2005, when she tripped over a large rock. Smith received medical treatment following the incident. The second incident occurred on March 15, 2005, when Smith caught a suspect after a brief pursuit on foot. Smith did not feel that she injured herself during the event, nor did she go to the doctor. However, on July 15, 2005, Smith was reinjured when she was thrown to the ground by a drunken prisoner. Smith saw an orthopedist for her knee, but she also experienced a back spasm. Finally, Smith experienced back pain when she changed a tire in July 2007.

Smith later sued the clinic and Gallardo, alleging negligence in failure to train and supervise their workers and that Gallardo was the cause of her injuries and medical expenses. The contested issue at trial, as now on appeal, was causation.

At trial, Dr. Prasad testified that she and Drs. Superville and LaRock were responsible for supervising the therapists, including Gallardo, and that Gallardo began working at the clinic in January 2000. Gallardo testified that she had no experience as a therapist before she worked at the clinic, that she was only trained for three to five days by other therapists at the clinic, and that she did not speak with any of the chiropractors before commencing Smith’s therapy. Dr. Prasad noted that the therapy Smith underwent on February 20 and 22 was Smith’s first postoperative therapy. Therapy for postoperative patients, according to Dr. Prasad, aids in mobilization and flexibility in the joints and muscles. However, Dr. Prasad cautioned that the patient should not be overstretched or exercised. Nevertheless, Dr. Prasad did not believe that the therapy Gallardo administered to Smith injured her disc because the exercise was performed with Gallardo’s assistance and no load or torque was placed on the spine that would cause a disc problem.

However, Stephen Campbell, a licensed physical therapist, testified that the knee-to-chest exercise performed on Smith could have caused torque to Smith’s lower back and was not within the acceptable standard of care. According to Campbell, physical therapy, if not properly administered, can injure a patient. Campbell testified that evaluation of a back-surgery patient is necessary before any therapy and that if the therapist does not evaluate a patient before initiating treatment, there is a chance that the therapy could re-herniate the disc of a patient who underwent surgery. He did not believe Gallardo had adequate training to perform the procedure she did on Smith, and that the postoperative physical therapy provided to Smith at the clinic was inadequate. Similarly, David Sime, a licensed chiropractor, testified that if the knee-to-chest exercise is over-aggressively performed, then that exercise could injure the patient.

However, Dr. Jacob Heydemann, a board-certified orthopedic surgeon, testified that the exercise administered by Gal-lardo may not have caused the reherniation. Smith’s back pain two weeks after surgery, according to Dr. Heydemann, did not necessarily correlate to a herniation of the disc and could have been caused by a lot of things. He believed the reherniation was more of a coincidence. Dr. Heyde-mann recited that there is a 10 to 15 percent risk of recurrent disc herniation and fragment formation after disc surgery even if the surgery was performed competently. The doctor believed that a disc can reherniate from a simple movement such as getting out of bed or off the toilet.

Dr. Vasquez testified that Smith did well after the first surgery and did not experience any significant pain until after Gallar-do administered the knee-to-chest exercise. It was possible, according to Dr. Vasquez, that the therapy Gallardo performed caused the recurrent herniation of the disc. Although the doctor agreed that the knee-to-chest exercise would not have placed any load or torque on Smith’s spine nor caused any anatomic damage to the disc, if Smith were lying flat at the time it was performed, Dr. Vasquez opined, after seeing the maneuver performed on a doll, that the flexing of the leg with the knee being pushed up towards the chest can, within a reasonable medical probability, cause a reoccurrence or a reherniation of a disc that was surgically repaired a month before. However, Dr. Vasquez also testified that reoccurrence of the herniation could have other causes. For instance, the disc could have simply refragmented, causing the reoccurrence of the herniation, or the reherniation could have resulted from the inability to remove all of the fragments of the disc during surgery.

Dr. Vasquez refused to testify that the therapy had any causal relation to the need for the fusion that was performed in the third surgery. According to Dr. Vasquez, he believed the fusion was necessary because the herniation returned following the two surgeries, which indicated an abnormal motion at that segment in the spine.

DISCUSSION

The clinic and Gallardo raise three issues on appeal. The first is whether the evidence was legally and factually sufficient to establish that Gallardo’s alleged negligence was the proximate cause of Smith’s reherniation, the second is whether the evidence was legally and factually sufficient to support the jury’s findings of past medical expenses when Smith failed to segregate the same, and the third is whether the trial court erred by admitting medical affidavits of various healthcare providers’ gross charges. In addition to refuting the clinic’s and Gallardo’s allegations, Smith raises a cross-point on appeal, that is, whether the trial court erred by reducing the medical-care award. Finding the evidence legally insufficient on proximate cause, we need not address the parties’ remaining contentions.

Standard of Review

In reviewing the legal-sufficiency of the evidence, we only consider the evidence and inferences that tend to support the finding of the disputed fact, unless a reasonable juror could not give credit to such evidence or inferences. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998); Linan v. Rosales, 155 S.W.3d 298, 302 (Tex.App.-El Paso 2004, pet. denied). We further disregard all evidence and inferences to the contrary unless a reasonable juror could not disregard such evidence and inferences. Wilson, 168 S.W.3d at 827; Havner, 953 S.W.2d at 711; Linan, 155 S.W.3d at 302. However, we do not weigh the evidence or make our own credibility determinations as that role belonged to the fact finder. Wilson, 168 S.W.3d at 827; Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996).

If there is more than a scintilla of evidence of probative force to support the finding, the evidence is legally sufficient. Sherman v. First Nat’l Bank in Center, Texas, 760 S.W.2d 240, 242 (Tex.1988); Linan, 155 S.W.3d at 302. However, when the evidence of a vital fact is “so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)).

Pertinent Law

In a medical-negligence case, the plaintiff must prove by a preponderance of the evidence that, within a reasonable medical probability, the allegedly negligent act or omission proximately caused the harm alleged. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995); Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399-400 (Tex.1993). The four elements to prove include: (1) a duty by the physician to act according to a certain standard; (2) a breach of the applicable standard of care; (3) injury or harm to the plaintiff; and (4) a causal connection between the breach of the applicable standard of care and the injury or harm. Morrell v. Finke, 184 S.W.3d 257, 271 (Tex.App.-Fort Worth 2005, pet. denied); Linan, 155 S.W.3d at 302; Krishnan v. Ramirez, 42 S.W.3d 205, 212 (Tex.App.-Corpus Christi 2001, pet. denied). Here, we are concerned with cause.

To establish proximate cause, the plaintiff must prove cause-in-fact and foreseeability. Columbia Medical Center of Las Colinas v. Hogue, 271 S.W.3d 238, 246 (Tex.2008); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003); Arlington Mem’l Hosp. Found., Inc. v. Baird, 991 S.W.2d 918, 922 (Tex.App.-Fort Worth 1999, pet. denied). Cause in fact is not established “where the defendant’s negligence does no more than furnish a condition which makes the injuries possible.” IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex.2003). Cause in fact is established “when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred.” Id. The ultimate standard on causation is whether the plaintiff proved, by a preponderance of the evidence, that “the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred.” Kramer, 858 S.W.2d at 400; see also Hogue, 271 S.W.3d at 246; Linan, 155 S.W.3d at 303; Park Place Hosp., 909 S.W.2d at 511. The plaintiff satisfies the cause-in-fact element of proximate cause by presenting proof establishing a direct causal connection between the damages awarded, the defendant’s negligence, and the injury suffered. Texarkana Mem’l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 838 (Tex.1997); Morrell, 184 S.W.3d at 272.

Application

In addressing the legal sufficiency of the evidence to support causation, Smith contends that Dr. Vasquez’s testimony alone was sufficient to establish causation. We disagree.

Generally, expert testimony is required to prove negligence in medical-negligence cases unless the form or mode of treatment is a matter of common knowledge or the matter is within the experience of a layperson. See Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex.2007); Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex.1977); Linan, 155 S.W.3d at 302-03; Baird, 991 S.W.2d at 921-22. And in particular, expert testimony is necessary on the issues of medical negligence and causation. Linan, 155 S.W.3d at 303; Christus St. Mary Hosp. v. O’Banion, 227 S.W.3d 868, 874 (Tex.App.-Beaumont 2007, pet. denied); Baird, 991 S.W.2d at 922. Therefore, a plaintiffs expert must establish a causal connection between her injury and the negligence of the defendant based upon “reasonable medical probability,” not mere conjecture, speculation, or possibility. See, e.g., Hogue, 271 S.W.3d at 247; Park Place Hosp., 909 S.W.2d at 511; Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex.1995); Kramer, 858 S.W.2d at 400; Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988). “Reasonable medical probability” means the injury was “more likely than not” a result of the negligent action. Thomas v. Farris, 175 S.W.3d 896, 899 (Tex.App.-Texarkana 2005, pet. denied); Bradley v. Rogers, 879 S.W.2d 947, 954 (Tex.App.-Houston [14th Dist.] 1994, writ denied). To prove reasonable medical probability, reasonable inferences are permissible, and a plaintiff is not required to exclude every other reasonable hypothesis. Bradley, 879 S.W.2d at 954; Thomas, 175 S.W.3d at 899.

Reasonable medical probability does not turn on semantics or on the use by the expert witness of any particular term or phrase. Thomas, 175 S.W.3d at 900 (citing Ins. Co. of N. America v. Myers, 411 S.W.2d 710, 713 (Tex.1966)). Indeed, an expert need not use the magic words “reasonable medical probability” if the evidence establishes that was the substance of his opinion. Hogue, 271 S.W.3d at 247; Stodghill v. Tex. Employers Ins. Ass’n, 582 S.W.2d 102, 105 (Tex.1979). Similarly, although an expert may use the phrase “reasonable probability,” his testimony may still be insufficient to establish the same when the substance of his testimony raised only mere possibilities, speculation, and surmise. Schaefer v. Tex. Employers’ Ins. Assn., 612 S.W.2d 199, 204 (Tex.1980) (finding expert testimony no evidence of causation even though witness testified using the phrase “reasonable probability”). Simply, while expert medical testimony concerning the possible causes of the condition in question is admissible to assist the trier of fact in evaluating other evidence in the case, a possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. Bradley, 879 S.W.2d at 954; Thomas, 175 S.W.3d at 899.

In this case, Dr. Vasquez’s pertinent testimony is set out as follows:

[Counsel]: Doctor, on the physical therapy that was performed on Rosemary Smith, she has described it as laying on her back, and then having the therapist lift up her knee in a bent position — her leg, I’m sorry, in a bent position, and then the therapist forced the leg up, with the leg bent, with the knee coming towards her chest, and upon that occurring, Rosemary Smith felt pain and shooting pain down the left leg. Would that type of mechanism so shortly after the first surgery, within a reasonable medical probability, cause the recurrent disk herniation that you found in the second surgery.
[Vasquez]: It is possible.
[Counsel]: Within a reasonable medical probability, is it your opinion that that’s what caused the second herniation?
[Vasquez]: Well, I have to tell you that I take the patient’s version, okay? That’s the version that was offered to me by the patient. And, I mean, when I take a history, I trust what the patient tells me, you know, I have no other way of knowing really, what exactly happened.
[Counsel]: Yes, sir. And based upon what the patient told you, would you say that the manipulation that was performed on the physical therapy was the cause of that herniation?
[Vasquez]: It’s possible.
[Counsel]: [Plaintiffs counsel] has also indicated that you have been potentially designated as an expert witness to offer some opinions in this case, potentially to link the need for the surgery in April of '02 to therapy that was performed by Carmen Gallardo on or about February 22, 2002. And as I understand your testimony, that is only a possibility as the explanation for the need—
[Vasquez]: Yes.
[Counsel]: [When a maneuver is] done suddenly, quickly, without being able to allow the patient to indicate whether there is pain or not, that’s even a worse situation, isn’t it?
[Vasquez]: It’s possible.
[Counsel]: Now, you saw the maneuver that was being performed on the doll that Mr. Tatem put on the table?
[Vasquez]: Right.
[Counsel]: And he was correct. Rosemary Smith has indicated, as has Carmen Gallardo, as to the type of maneuver that was being performed on Rosemary Smith for the physical therapy, and that would be the flexing of the leg with the knee being pushed up towards the chest area, and that was done quickly, and that had never been done to Rosemary Smith prior to Carmen Gallardo doing that. Now, based on your observation and the testimony that has been elicited by both Rosemary — from Rosemary Smith and from Carmen Gallardo, that type of action on a recently operated lower back, within a reasonable medical probability, can that cause a reoccur-rence or a reherniation of a disk that had just been surgically repaired less than a month earlier?
[Vasquez]: That’s right. (Emphasis added).

“Perhaps,” “possibly,” “can,” and “could” indicate mere conjecture, speculation or possibility rather than qualified opinions based on reasonable medical probability. See Hogue, 271 S.W.3d at 247 (stating that “perhaps” and “possibly” do not indicate reasonable medical probability); Havner, 953 S.W.2d at 729-30 (stating that “can” and “could” do not indicate reasonable medical probability). Here, Dr. Vasquez’s testimony did not indicate a reasonable medical probability that Gallardo’s therapy caused Smith’s reherniation; rather, he simply testified that it was possible or could cause the reherniation. See Western Cas. & Sur. Co. v. Gonzales, 518 S.W.2d 524, 526-27 (Tex.1975) (expert’s testimony must do more than simply acknowledge that everything is possible).

Moreover, the substance of Dr. Vasquez’s testimony fell short of showing causation. Indeed, Dr. Vasquez testified that reoccurrence of the herniation could have other causes. He stated that it was possible that the reherniation could have resulted from his inability to remove all of the fragments of the disc during surgery. Although Dr. Vasquez believed he removed all such fragments during the first surgical procedure, his belief was limited solely to the fragments that he could see. Additionally, Dr. Vasquez acknowledged that the disc could have simply refragmented, causing the reoccurrence of the herniation. Dr. Vasquez also testified that the surgery may not have improved the patient’s condition. Finally, Dr. Vasquez noted that Smith performed non-prescribed and unsupervised exercise on a treadmill, and he refused to testify that the physical therapy at the clinic had any causal relation to the need for the fusion that was performed in the third surgery. Rather, he believed the fusion was necessary because the herniation returned following the two surgeries, which simply indicated an abnormal motion at that segment in the spine.

In short, we do not find this testimony to constitute evidence of a causal connection between the acts of Gallardo and the reherniation of Smith. Dr. Vasquez’s testimony, at most, established that the reherniation was possibly caused by Gal-lardo’s therapy. This is no evidence of reasonable medical probability of a causal connection between Gallardo’s acts and Smith’s reherniation. See Hogue, 271 S.W.3d at 247; Schaefer, 612 S.W.2d at 204; Thomas, 175 S.W.3d at 901.

Nevertheless, expert testimony on causation is not required in limited circumstances when “both the occurrence and conditions complained of are such that the general experience and common sense of laypersons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence.” Guevara, 247 S.W.3d at 668. However, this is not a case where an otherwise healthy individual suffers a broken bone following an automobile accident or inhales toxic fumes from a typesetting machine. See, e.g., id. (recognizing that “causation as to certain types of pain, bone fractures, and similar basic conditions following an automobile collision can be within the common experience of lay jurors”); Morgan v. Comrpugraphic Corp., 675 S.W.2d 729, 733 (Tex.1984) (finding lay testimony sufficient on whether chemical fumes from a typesetting machine caused plaintiffs medical symptoms). At most, Smith’s testimony that she felt pain when Gallardo performed the knee-to-chest exercise merely raised suspicion that the event caused the reherniation. Guevara, 247 S.W.3d at 668 (evidence of an event followed closely by manifestation of or treatment for conditions which did not appear before the event raises suspicion that the event at issue caused the condition). But as the Supreme Court has noted, suspicion is not legally sufficient to support a finding of causation. Guevara, 247 S.W.3d at 668.

Here, Smith was suffering from a preexisting condition. Additionally, the testimony established that the timing of the onset of pain that Smith experienced did not mean that the disc herniated at the moment Gallardo administered the knee-to-chest exercise; rather, the only inference that could be drawn was that the disc contacted the nerve at that point in time. The disc itself may well have herniated before then. As Dr. Vasquez acknowledged, the therapy Gallardo administered was only a possible cause of Smith’s reher-niation. Under these circumstances, we cannot conclude that expert testimony was not required to establish causation. See id. at 669 (lay testimony legally insufficient to show causation between car accident and majority of hospitalization expenses when plaintiff had pre-existing conditions); Myers, 411 S.W.2d at 713 (holding that an “inference that a pre-existing tumor was activated and the deadly effects of a malignancy accelerated by an injury” was a “question of science determinable only from the testimony of expert medical professionals”).

Finding Dr. Vasquez’s testimony incompetent and therefore no evidence on causation, and that the lay testimony alone was insufficient to support proximate causation, we hold the evidence legally insufficient and sustain the clinic’s and Gallardo’s first issue.

CONCLUSION

Having sustained the clinic’s and Gallar-do’s first issue, we need not address their remaining contentions concerning the segregation of medical expenses or the admissibility of the medical-expense affidavits, or Smith’s cross-appeal complaining of the trial court’s reduction of the medical bills. Accordingly, we reverse the judgment of the trial court and render judgment that Smith take nothing. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex.1992) (“when we sustain a no evidence point of error after a trial on the merits, we render judgment on that point”).