author: EVELYN V. KEYES, Justice. TERRY JENNINGS,

text:
    GALLAGHER HEALTHCARE INSURANCE SERVICES, Appellant, v. Page M. VOGELSANG, Appellee.
    No. 01-07-00478-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 21, 2009.
    Rehearing Overruled Feb. 4, 2010.

      David L. Countiss, Walter J. Cicack, Seyfarth Shaw LLP, Richard N. Countiss, Countiss Law Firm, Houston, TX, for Appellant.
    Alejandro Gonzalez, Melanie Gray, Scar-lett Elizabeth Collings, Weil, Gotshal & Manges, LLP, Charles Alfred Sturm, Howard L. Steele, Jr., Steele Sturm, LLP, Kimberly Goodling, Doyle Raizner LLP, Murry B. Cohen, Akin Gump Strauss Hauer & Feld L.L.P., Houston, TX, for Appellee.
   OPINION

EVELYN V. KEYES, Justice.

In this breach of contract suit, appellant, Gallagher Healthcare Insurance Services (“GHIS”), challenges the trial court’s summary judgment order that denied its motion for summary judgment and granted summary judgment in favor of appellee, Page M. Vogelsang. In one issue on appeal, GHIS contends that the trial court erred in holding that the covenant-not-to-compete provision in Vogelsang’s employment agreement was unenforceable.

We reverse and remand.

Background

Vogelsang started working for the Galt-ney Group, Inc. in 1994 as an insurance broker. In 2001, GHIS purchased Galtney and acquired the services of Vogelsang as a “Producer.” GHIS, a second tier subsidiary of Arthur J. Gallagher & Co., provides insurance and reinsurance services. As a Producer for GHIS, Vogelsang “had a large responsibility to renew existing business and secure new business.”

As part of the purchase of Galtney, GHIS required Vogelsang to enter into an employment agreement with GHIS. In relevant part, the agreement provided:

Section 7. Trade Secrets and Confidential Information.
(a) The Executive acknowledges that the Corporation’s business depend[s] to a significant degree upon the possession of information which is not generally known to others, and that the profitability of the Corporation’s business requires that this information remain proprietary to the Corporation. The Executive agrees that all intellectual property, such as computer programs, systems or software, developed during his employment or as a result of his employment is work for hire performed by the Executive in the scope of his employment. The Corporation shall retain all proprietary rights to any and all such intellectual property. Executive agrees to execute any documents necessary to perfect Corporation’s interest in such intellectual property upon Corporation’s request.
(b) The Executive recognizes that by virtue of his employment by the Corporation, he will be granted otherwise prohibited access to confidential and proprietary data of AJG and the Corporation which is not known either to its competitors or within the insurance agency and brokerage business generally. This information (hereinafter referred to as “Confidential Information”) includes, but is not limited to, data relating to AJG and the Corporation’s unique marketing and servicing programs, procedures and techniques; the criteria and formu-lae used by AJG and the Corporation in pricing its insurance and employee benefits products and claims management, loss control and information management services; the structure and pricing of special insurance packages that AJG and the Corporation has negotiated with various underwriters; lists of prospects compiled by AJG and the Corporation’s management and research staff; the identity, authority and responsibilities of key contacts at AJG and the Corporation accounts, including accounts of the Acquired Business; the composition and organization of accounts’ businesses; the peculiar risks inherent in their operations, highly sensitive details concerning the structure, conditions and extent of their existing insurance coverages; policy expiration dates; premium amounts; commission rates; risk management service arrangements; loss histories; and other data showing the particularized insurance requirements and preferences of the accounts. The Executive recognizes that this Confidential Information constitutes a valuable property of the Corporation, developed over a long period of time and at substantial expense. Accordingly, the Executive agrees that he will not, at any time during his employment by the Corporation, divulge such Confidential Information or make use of it for his own purposes or the purposes of another.
(c) The Executive recognizes the highly sensitive nature of the confidential Information to which he will have access during his employment, and acknowledges the Corporation’s legitimate interest in safeguarding same from disclosure. Accordingly, the Executive agrees that, for a period of two (2) years following the termination of his employment for any reason whatsoever, he will not divulge AJG’s or the corporations’s Confidential Information or make use of it for his own purpose or the purpose of another.
Section 8. Protection of Corporation’s Business
(a) The Executive recognizes the Corporation’s legitimate interest in protecting, for a reasonable period of time following the termination of the Executive’s employment, those Corporation accounts with which the Executive will be associated during his employment. Accordingly, the Executive understands and agrees that for a period of two (2) years following the termination of his employment for any reason whatsoever, he will not, directly or indirectly, solicit, place, market, accept, aid, counsel or consult in the renewal, discontinuance or replacement of any insurance (including self-insurance) by, or handle self-insurance programs, insurance claims, risk management services or other insurance administrative or service functions for, any AJG or Corporation account for which he performed any of the foregoing functions during the two-year period immediately preceding such termination. For purposes of Sections 7 and 8 hereof, all references to “Corporation” shall be deemed to include the Acquired Business.

(Emphasis added). Vogelsang resigned from GHIS on February 15, 2006 and began working for Lockton Companies, Inc., a direct competitor of GHIS. On the same day that Vogelsang resigned, her entire service team also moved to Lockton.

GHIS sued Vogelsang, Michelle Friede, Patti Philippone, Trisha Birdsong, and Lockton Companies, Inc. for breach of contract and injunctive relief, among other causes of action. In its petition in the trial court, GHIS stated that it “fosters and develops goodwill with its clients by making a team of insurance professionals available to them. The Producer is vital to GHIS’ ability to maintain goodwill with clients and in most cases the Producer is the person who interfaces with the client and builds a strong personal relationship.” GHIS further pled that “[a] fundamental and important part of GHIS’ business is the development and maintenance of confidential information, including, but not limited to, client lists and contacts, client insurance needs, risk characteristics and budget limits, pricing structures, product and marketing information, and specific information regarding each client’s insurance policies, including the expiration dates, terms, and premiums.” GHIS alleged that after signing the agreement and throughout her employment, Vogelsang received confidential information consisting of

employment arrangements, salary, compensation and other confidential information, regarding certain personnel in the Houston office. GHIS also gave Vogelsang confidential and trade secret information concerning [GHIS’s] business plans, compensation plans, clients lists, client-related information (e.g. insurance proposals, coverages, limits to purchase, insurance binders, insurance program structures, loss histories, exposures, premiums and premium pricing, renewal dates, products purchased, etc.), client prospects databases, and the clients or “books of business” that were serviced by everyone in the Houston office, but especially the books of business for whom she was the Producer.

Both sides moved for summary judgment.

In its motion for summary judgment, GHIS contended that Vogelsang’s covenant-not-to-compete was enforceable because GHIS “promised to and provided Vogelsang with confidential information, which Vogelsang agreed not to disclose” and that Vogelsang’s agreement not to disclose the confidential information was ancillary to GHIS’s promise to provide the confidential information. GHIS also argued that the covenant-not-to-compete was reasonable because it only prohibited Vo-gelsang “from soliciting clients with whom she had actually worked while at GHIS” for a period of two years after termination.

In her cross-motion for summary judgment, Vogelsang contended that the covenant-not-to-compete was unenforceable because GHIS did not make an express promise to provide confidential information and that even if a promise was made, GHIS did not

actually perform that promise by providing new consideration in the form of confidential information.... Third the covenant is also overbroad as a matter of law. Finally, [GHIS] has not established an interest worthy of protection, as required by Sheshunoff, because all of the information it claims to be confidential is publicly available.

On February 9, 2007 after a two-day hearing, the trial court held, among other things, that the “non-competition promise” in the Employment Agreement was unenforceable, and therefore, “[GHIS] shall TAKE NOTHING by the claim that Vo-gelsang has breached the non-competition promise in the Employment.” After the trial court’s interlocutory order, the trial court granted the parties’ joint motion to non-suit all claims and parties except “GHIS’s claim against Page M. Vogelsang that she breached the covenant-not-to-compete provision of the GHIS employment agreement.” GHIS retained its “rights to (i) to appeal the Court’s judgment that the covenant-not-to-compete provision of the employment agreement Page M. Vogelsang signed on or about June 1, 2001 is unenforceable, and that GHIS take nothing by the claim that Vo-gelsang has breached the non-competition promise in that employment agreement.”

Summary Judgment Standard of Review

Because summary judgment is a question of law, we review a trial court’s summary judgment decision de novo. Bendigo v. City of Houston, 178 S.W.3d 112, 113 (Tex.App.-Houston [1st Dist.] 2005, no pet.). The standard of review for a traditional summary judgment motion is threefold: (1) the movant must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and (3) the court must indulge every reasonable inference in favor of the non-movant and resolve any doubts in the non-movant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); see Tex.R. Civ. P. 166a(c). A defendant seeking summary judgment must as a matter of law negate at least one element of each of the plaintiffs theories of recovery or plead and prove each element of an affirmative defense. EPGT Texas Pipeline, L.P. v. Harris County Flood Control Dist., 176 S.W.3d 330, 335 (Tex.App.-Houston [1st Dist.] 2004, no pet.). We affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004) (summary judgment which does not specify basis for court’s ruling may be affirmed only on “theories presented to the trial court and preserved for appellate review”).

When both parties move for summary-judgment and the trial court grants one motion and denies the other, the appellate court should review both parties’ summary judgment evidence and determine all questions presented. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000). The reviewing court should render the judgment that the trial court should have rendered. See id.

To be considered by the trial or reviewing court, summary judgment evidence must be presented in a form that would be admissible at trial. Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex.1971); Friday v. Grant Plaza Huntsville Associates, 713 S.W.2d 755, 756 (Tex.App.-Houston [1st Dist.] 1986, no writ). A party must object in writing to the form of summary judgment evidence and place the objections before the trial court, or its objections will be waived. Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex.1990). Failure to secure the trial court’s ruling on the objections to the summary judgment evidence also waives the complaint for appeal. See Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 365 (Tex.App.-Houston [1st Dist.] 1994, writ denied).

Covenant Not To Compete

In its sole issue, GHIS argues that the trial court erred in holding that the covenant not to compete was unenforceable.

Whether a covenant not to compete is enforceable is a question of law for the court. Light v. Centel Cellular Co., 883 S.W.2d 642, 644 (Tex.1994); TMC Worldwide, L.P. v. Gray, 178 S.W.3d 29, 36 (Tex.App.-Houston [1st Dist.] 2005, no pet.). A covenant not to compete is enforceable if it is (1) “ancillary to or part of an otherwise enforceable agreement at the time the agreement is made” and (2) reasonable, not imposing a greater restraint than is necessary to protect the goodwill or other business interest of the employer. Tex. Bus. & Com.Code Ann. § 15.50(a) (Vernon 2002).

1. Enforceability of Covenant Not to Compete Containing Implied Promise to Provide Confidential Information

GHIS argues that the covenant not to compete is enforceable because it impliedly promised to provide confidential information to Vogelsang and the implied promise was ancillary to an otherwise enforceable covenant not to compete and did not make it unenforceable. GHIS argues that other courts, including this Court, have held that a party can impliedly promise to provide confidential information.

Vogelsang responds that the agreement is not enforceable because GHIS did not promise to provide confidential information in exchange for Vogelsang’s agreement not to compete. She points out that section seven of the agreement provided, “[Vogel-sang] recognizes that by virtue of [her] employment by [GHIS], [Vogelsang] will be granted otherwise prohibited access to confidential and proprietary data of AJG and [GHIS].” Vogelsang contends that this statement “merely describes Vogel-sang’s recognition that she will not divulge any future confidential information she might receive (because she has merely been promised ‘access’ to it); it is by no means a promise to give her anything.”

For a covenant not to compete to be ancillary to or part of an otherwise enforceable agreement, the employer must establish both “(1) that the consideration given by the employer in the otherwise enforceable agreement must give rise to the employer’s interest in restraining the employee from competing; and (2) that the covenant must be designed to enforce the employee’s consideration or return promise in the otherwise enforceable agreement.” Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 649 (Tex.2006) (quoting Light, 883 S.W.2d at 647). “[B]usiness goodwill and confidential or proprietary information” are examples of interests that are worthy of protection by a covenant not to compete. Id. However, for a covenant not to compete to be enforceable, the agreement must be designed to enforce the return promises made by the employee. Id. An implied promise is as binding on the parties as a promise expressly stated in the documents. Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12, 15 (Tex.1957); Adams v. Big Three Indus., Inc., 549 S.W.2d 411, 415 (Tex.Civ.App.-Beaumont 1977, writ ref'd n.r.e.); NHA, Inc. v. Jones, 500 S.W.2d 940, 945 (Tex.Civ.App.-Fort Worth 1973, writ ref'd n.r.e.).

In arguing that the covenant not to compete is unenforceable because GHIS made no binding promise to provide confidential information that could give rise to its interest in restraining Vogelsang from competing, Vogelsang relies primarily upon Light. In Light, the Texas Supreme Court explained why the covenant not to compete between Light and United was not ancillary to or part of an otherwise enforceable agreement as follows:

While United’s consideration (the promise to train) might involve confidential or proprietary information, the covenant not to compete is not designed to enforce any of Light’s return promises in the otherwise enforceable agreement. Light did not promise in the otherwise enforceable agreement to not disclose any of the confidential or proprietary information given to her by United. Thus, the covenant not to compete agreement between Light and United is unenforceable because it is not ancillary to or a part of the otherwise enforceable agreement between them.

Light, 883 S.W.2d at 647 (emphasis added).

Vogelsang also relies on Strickland v. Medtronic, Inc. to show that GHIS made no promise to her. See 97 S.W.3d 835, 839 (Tex.App.-Dallas 2003, pet. dism’d w.o.j.). Following Light, the Strickland court held that the relevant inquiry regarding the enforceability of a covenant not to compete “is whether at the time the agreement is made, there exists a binding promise” to provide the confidential information. Id. (emphasis in original). Strickland involved an interlocutory appeal from an order granting Medtronic a temporary injunction enforcing a non-compete covenant against its former at-will employee, Strickland. Id. The court noted “several non-illusory promises that were capable of serving as consideration for the agreement despite Strickland’s at-will status, namely: (1) Medtronic’s promise to provide ninety days[’] notice of termination if Strickland was terminated without cause; ... (3) Strickland’s promise not to use or disclose confidential information; [and] (4) Strickland’s promise to return documents and tangible items upon termination.” Id. at 838-89. Med-tronic argued that the following provision in the employee agreement’s “Introduction” was additional consideration by Med-tronic: “This agreement is intended to recognize that Medtronic provides the Employee with information concerning its business, products and customers and entrusts the Employee with business relationships and good will of great value to Medtronic.” Id. at 839. The court held this provision did not obligate Medtronic to provide Strickland with confidential information and therefore did not constitute an implied promise. Id. The court further stated,

Even assuming that by this [last] provision Medtronic impliedly promised to provide confidential information to Strickland, we conclude [that] such a promise is illusory because it necessarily depends on a period of employment. Medtronic could avoid this obligation by simply firing Strickland on the day [that] the employment agreement was executed.

Id. The same analysis applied to the providing of training by Medtronic and was deemed by the court also to be illusory. Id.

More recently, however, the Texas Supreme Court — while noting that it was not disturbing the holding in Light — held, contrary .to footnote six in Light, that a covenant not to compete is not unenforceable merely because the employer’s promise is executory when made. Sheshunojf, 209 S.W.3d at 649. The Light court stated, “If the agreement becomes enforceable after the agreement is made because the employer performs his promise under the agreement and a unilateral contract is formed, the covenant is enforceable if all other requirements under the Act are met.” Id. at 655. The court further stated,

We also take this opportunity to observe that section 15.50(a) does not ground the enforceability of a covenant not to compete on the overly technical disputes that our opinion in Light seems to have engendered over whether a covenant is ancillary to an otherwise enforceable agreement. Rather, the statute’s core inquiry is whether the covenant “contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.” Concerns that have driven disputes over whether a covenant is ancillary to an otherwise enforceable agreement — such as the amount of information an employee has received, its importance, its true degree of confidentiality, and the time period over which it is received — are better addressed in determining whether and to what extent a restraint on competition is justified. We did not intend in Light to divert attention from the central focus of section 15.50(a). To the extent our opinion caused such a diversion, we correct it today.

Id. at 655-56 (citations omitted).

The year that Sheshunojf was decided, we recognized in Hardy v. Mann Frank fort Stein & Lipp Advisors, Inc. that an employer could impliedly promise to disclose confidential information to an employee. 263 S.W.3d 282, 247 (Tex.App.Houston [1st Dist.] 2007), rev’d, Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex.2009). However, because in that case the employee neither “acknowledge[d] that he had received or would receive confidential information, nor did the agreement contain representations that [the employee] was receiving consideration for agreeing to the non-disclosure and client-purchase provisions,” we held that the employment agreement was not enforceable. Id.

After GHIS’s appeal was under submission, the Texas Supreme Court reversed our decision in Hardy. The court stated,

We hold that if the nature of the employment for which the employee is hired will reasonably require the employer to provide confidential information to the employee for the employee to accomplish the contemplated job duties, then the employer impliedly promises to provide confidential information and the covenant is enforceable so long as the other requirements of the Covenant Not to Compete Act are satisfied.

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 846 (Tex.2009). It explained, “When the nature of the work the employee is hired to perform requires confidential information to be provided for the work to be performed by the employee, the employer impliedly promises confidential information will be provided.” Id. at 850. The court further explained that “if one party makes an express promise that cannot reasonably be performed absent some type of perform-anee by the other party, courts may imply a return promise so the dealings of the parties can be construed to mean something rather than nothing at all.” Id. at 851. Thus, “when it is clear that performance expressly promised by one party is such that it cannot be accomplished until a second party has first performed, the law will deem the second party to have impliedly promised to perform the necessary action.” Id.

In reaching its decision to uphold the confidentiality agreement, the court observed that the circumstances surrounding Fielding’s employment necessarily involved the provision of confidential information to him by Mann Frankfort before he could perform the work he was hired to do as an accountant. Id. at 850-51. The court observed that Mann Frankfort gave Fielding access to “its client database, which contains clients’ names, billing information, and pertinent tax and financial information. This was confidential information which Mann Frankfort was interested in keeping confidential.” Id. (citing DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 684 (Tex.1990)). The court also observed that “Fielding could not have acted on his promise to refrain from disclosing confidential information unless Mann Frankfort provided him with it.” Id.

Here, Vogelsang’s employment agreement states that she will be granted access to confidential information, that she will not disclose the confidential information for two years after termination, and that she will not compete with GHIS for two years after she is no longer with the firm. In light of the supreme court’s Mann Frankfort opinion, we conclude that GHIS impliedly promised to give Vogel-sang confidential information. See Mann Frankfort, 289 S.W.3d at 851-52. Thus, because we hold that GHIS impliedly promised to give Vogelsang confidential information, and Vogelsang agreed not to disclose the confidential information, we next determine whether GHIS actually provided confidential information so that the covenant not to compete became a binding return promise given in exchange for GHIS’s implied promise to provide confidential information to her. See id. at 850-51.

2. Provision of Confidential Information

GHIS contends that Vogelsang received confidential information after she signed the agreement, and therefore the covenant not to compete is enforceable. Specifically, GHIS states that Vogelsang received the following types of confidential information between 2003 and 2006: financial information, salary information about certain employees, client specific insurance information, team related income and budgets, account retention strategies, at-risk accounts, strategic prospecting and selling, niche strategies, 2004 financial results, 2005 quarterly financial results, new and lost business summaries, professional standards audit results and related analysis, multiple types of prospect lists, premium volume comparisons, employee salary information, budget reviews, production reviews; internal committee lists, and the 2006 compensation plan.

Attached to GHIS’s summary judgment motion was an affidavit from Phillip E. Reischman, the President of GHIS, who averred that the financial information was confidential. Reischman stated,

5.As part of rendering services as an insurance broker, GHIS collects and develops detailed information regarding existing or prospective clients, gathering information as to their risk characteristics, loss histories and terms of existing insurance policies. GHIS uses a store of such information regarding contacts and pricing information as to prospective insurance markets, gathered over years of business operations, to determine appropriate placements of insurance for clients. GHIS has spent substantial time and resources over the years in developing and acquiring this information.”
6. Similarly, GHIS has spent considerable time and resources developing other stores of proprietary information, including: (i) unique, confidential business practices, models and data; (ii) client lists and prospects; (iii) lists of key individuals within client and potential client organizations; (iv) the particular insurance requirements of clients and potential clients; (v) contact persons with various insurance markets; (vi) information regarding the assignments and division of responsibilities and compensation of GHIS employees on various accounts; (vii) product pricing; (viii) methods and techniques of operation and training; (ix) marketing strategies; and (x) confidential contract arrangements and personnel files on all of its employees.
7. GHIS has incurred substantial expense and other burdens in developing this confidential and proprietary information. [GHIS’s] proprietary information is kept confidential, and GHIS shares such information only with employees and agents of the company on a “need to know” basis, and otherwise takes reasonable precautions to prevent disclosure of this information to third persons. As a result, GHIS’ compilation and organization of this information is not available to and is not readily ascertainable by its competitors and has given GHIS a valuable competitive advantage in the insurance brokerage industry.
15. Throughout her employment with GHIS, and especially in her positions as team leader and producer, Vogelsang was given access to volumes of confidential information about GHIS and its clients, prospective clients, employees, and overall business. For example, Vo-gelsang was given access to detailed information regarding the employment arrangements, salary, compensation and other confidential information, regarding personnel in the Houston office. Vogel-sang was also given access to [GHIS’s] business plans, financial information, client lists, client-related information (e.g. insurance proposals, coverages, limits to purchase insurance binders, insurance program structures, loss histories, exposures, premiums and premium pricing, renewal dates, products purchased, etc.), client prospects database, product and marketing information, and the clients or “books of business” that were serviced by the Houston office and especially the books of business serviced by her team. Vogelsang had a lead role in [GHIS’s] convention planning and strategies. It is fair to say that since June of 2001, GHIS has provided to Vogelsang, in her position as manager, senior vice president, and producer, literally thousands of pieces of information that were confidential to GHIS.
16. Exhibits A-4(a) through A-4(u) are representative examples of confidential information that GHIS actually imparted to Vogelsang from 2008 to 2006: client specific insurance information, including limits, renewal dates, and premiums, commissions and fee revenues (all offices); team related income and budgets; account retention strategies; ' at-risk accounts; strategic prospecting and selling; niche strategies; 2004 financial results (all offices); 2005 quarterly financial results; new and lost business summaries; professional standards audit results and related analysis; multiple types of prospect lists; premium volume comparisons; employee salary information; budget reviews; production reviews; internal committee lists; and the 2006 compensation plan. GHIS imparted to Vogelsang much of the same type of confidential information throughout her entire course of employment with GHIS.

Vogelsang responds that GHIS did not “have an interest worthy of protection,” that GHIS’s internal financials and information about employee salaries do not give rise to a protectable interest in restraining competition, that the “information necessary to compete in the insurance brokerage industry is readily available in the public domain,” and that any client information received by GHIS belongs not to GHIS, but to the client.

Under Texas law, a trade secret may consist of any formula, pattern, device, or compilation of information that is used in one’s business and which gives one an opportunity to obtain an advantage over competitors who do not know or use it. Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.1996). Protected data includes compilations of information which have a substantial element of secrecy and provide the employer with an opportunity for advantage over competitors. Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 598, 601 (Tex.App.-Amarillo 1995, no writ); Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 552 (Tex.App.-Dallas 1998, no writ). Items such as customer lists, pricing information, client information, customer preferences, buyer contacts, market strategies, blueprints, and drawings have all been shown to be trade secrets. American Precision Vibrator Co. v. National Air Vibrator Co., 764 S.W.2d 274, 278-79 (Tex.App.-Houston [1st Dist.] 1988, no writ); Miller Paper Co., 901 S.W.2d at 601.

When an effort is made to keep material important to a particular business from competitors, trade secret protection is warranted. Rugen, 864 S.W.2d at 552; Gonzales v. Zamora, 791 S.W.2d 258, 265 (Tex.App.-Corpus Christi 1990, no writ). Moreover, a covenant not to compete is enforceable not only to protect trade secrets but also to protect proprietary and confidential information. See Light, 883 S.W.2d at 647 n. 14. Customer information is a legitimate interest which may be protected in an otherwise enforceable covenant not to compete. Martin v. Credit Prat. Ass’n, Inc., 793 S.W.2d 667, 670 n. 3 (Tex.1990) (citing DeSantis, 793 S.W.2d at 681-82).

Reischman’s affidavit demonstrates that the information GHIS provided to Vogelsang was protected confidential information. According to its summary judgment evidence, GHIS’s confidential information (1) took years to acquire; (2) is only shared with employees and agents of GHIS on a “need to know basis”; (3) is not “readily ascertainable by its competitors”; and (4) gives GHIS “a valuable competitive advantage in the insurance brokerage industry.” See Light, 883 S.W.2d at 647; see also Sheshunoff, 209 S.W.3d at 649. Moreover, GHIS (1) spent substantial time and resources developing and acquiring the information and (2) takes reasonable precautions to prevent the disclosure of the confidential information.

We conclude that GHIS presented summary judgment evidence to show that its confidential information was an interest worthy of protection. We further conclude that GHIS gave confidential information to Vogelsang so that she could perform her job at GHIS, as it impliedly promised to do, and that the covenant not to compete was therefore “ancillary to or part of an otherwise enforceable agreement at the time the agreement was made.” See Tex. Bus. & Com.Code ann. § 15.50(a)(1).

We further conclude that, under Mann Frankfort and Sheshunojf, the covenant not to compete Vogelsang executed was made in consideration of GHIS’s implied promise to provide confidential information. See Mann Frankfort, 289 S.W.3d at 851-52; Sheshunoff, 209 S.W.3d at 651; Tex. Bus. & Com.Code Ann. § 15.50(a). We thus conclude that the covenant not to compete was ancillary to an otherwise enforceable agreement because the consideration given by GHIS (promising to give confidential information) in the otherwise enforceable agreement (providing trade secrets in exchange for promise not to disclose) gave rise to GHIS’s interest in restraining Vogelsang from competing, and the covenant was designed to enforce Vo-gelsang’s consideration or return promise (the promise not to disclose the trade secrets). See Mann Frankfort, 289 S.W.3d at 851-52; Light, 888 S.W.2d at 647 & n. 14.

In support of her argument that GHIS did not “have an interest worthy of protection,” Vogelsang relies on DeSantis v. Wackenhut, 793 S.W.2d 670 (Tex.1990). In DeSantis, the employee, DeSantis, served as the Houston area manager for Wackenhut, who specialized in furnishing security guards for business throughout the country. Id. at 675. As part of his employment, he agreed not to compete in any way with Wackenhut in a forty-county area in south Texas, and he agreed that Wackenhut’s client list was a “valuable, special and unique asset” that belonged to Wackenhut. Id. After DeSantis resigned, he invested in a company that marketed security electronics and he formed a security consulting service. Id. In determining whether the covenant not to compete was reasonable, the supreme court held that Wackenhut had not demonstrated the existence of confidential information that the non-competition covenant was needed to protect. Id. at 684. In reaching that conclusion, the court reasoned,

Wackenhut failed to show that its customers could not readily be identified by someone outside its employ, that such knowledge carried some competitive advantage, or that its customers’ needs could not be ascertained simply by inquiry addressed to those customers themselves. Also, Wackenhut failed to show that its pricing policies and bidding strategies were uniquely developed, or that information about its prices and bids could not, again, be obtained from the customers themselves.

Id. (citations omitted).

Because confidential and proprietary information are interests worthy of protection and because GHIS presented affidavit testimony showing that “GHIS has spent substantial time and resources over the years in developing and acquiring” the confidential information, GHIS “takes reasonable precautions to prevent disclosure of [the] information to third persons,” GHIS’s “compilation and organization of this information is not available to and is not readily ascertainable by its competitors,” and it gives “GHIS a valuable competitive advantage in the insurance brokerage industry,” we disagree that DeSantis is fatal to GHIS. See Light, 883 S.W.2d at 647; see also Sheshunoff 209 S.W.3d at 649.

3. Limitations as to Time, Geographical Area, and Scope of Activity to be Restrained

GHIS also argues that the covenant not to compete is reasonable. Specifically, GHIS argues that the covenant not to compete has reasonable geographic restrictions. It also argues that Vogelsang worked on about 80 accounts in her last two years of employment with GHIS and that the agreement only precludes her from working on these 80 accounts for two years from the date of her resignation. Vogelsang responds that the restrictions are not reasonable.

A covenant not to compete is unenforceable unless it meets the reasonableness standards of section 15.50 of the Texas Business and Commerce Code. John R. Ray & Sons, Inc. v. Stroman, 923 S.W.2d 80, 85 (Tex.App.-Houston [14th Dist.] 1996, writ denied). The restriction must be reasonable, not imposing a greater restraint than is necessary to protect the goodwill or other business interest of the employer. Tex. Bus. & Com.Code Ann. § 15.50(a). To be enforceable, a covenant must “contain[ ] limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.” Id. A restraint is unnecessary if it is broader than necessary to protect the legitimate interests of the employer. DeSantis, 793 S.W.2d at 682. Whether a covenant is a reasonable restraint on trade is a question of law for the court. Stroman, 923 S.W.2d at 85. A restrictive covenant is “over-broad and unreasonable when it extends to clients with whom the employee had no dealings during his employment.” Stroman, 923 S.W.2d at 85; see also Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381, 386-88 (Tex.1991). The Texas Supreme Court has held that an industry-wide exclusion is unreasonable. Haass, 818 S.W.2d at 386-88.

Section 8 of the agreement, entitled “Protection of Corporation’s Business” provides,

The Executive recognizes the Corporation’s legitimate interest in protecting, for a reasonable period of time following the termination of the Executive’s employment, those Corporation accounts with which the Executive will be associated during his employment. Accordingly, the Executive understands and agrees that for a period of two (2) years following the termination of his employment for any reason whatsoever, he will not, directly or indirectly, solicit, place, market, accept, aid, counsel or consult in the renewal, discontinuance or replacement of any insurance (including self-insurance) by, or handle self-insurance programs, insurance claims, risk management services or other insurance administrative or service functions for, any AJG or Corporation account for which he performed any of the foregoing functions during the two-year period immediately preceding such termination.

The agreement thus precludes Vogelsang from working with clients with whom she had worked in the past two years and precludes her from any activity with these clients for two years after termination. Although it is not limited by geography, the agreement is limited to Vogelsang’s clients with whom she had worked in the preceding two years.

A number of courts have held that a non-compete covenant that is limited to the employee’s clients is a reasonable alternative to a geographical limit. Stocks v. Banner Am. Corp., 599 S.W.2d 665, 666-68 (Tex.Civ.App.-Texarkana 1980, no writ) (stating that “[t]he use of a customer list as an alternative to setting a specific geographical limit is a reasonable means of enforcing a covenant not to compete”); see also Totino v. Alexander & Assocs., 01-97-01204-CV, 1998 WL 552818, at *4 (Tex.App.-Houston [1st Dist.] Aug. 20, 1998, no pet.) (relying on Stocks and concluding that “trial court did not abuse its discretion in implicitly finding the noncompetition covenants contained a reasonable geographic restriction as written by virtue of their limiting the restriction” to certain clients who were defined in agreement); Investors Diversified Servs. v. McElroy, 645 S.W.2d 388, 339 (Tex.App.-Corpus Christi 1982, no writ) (concluding that non-competition covenant which had one year restraint, and “the restriction was limited to 150 current customers of the [employer], with whom the [employee] had contacted or dealt with” was reasonable). Moreover, a two year restraint is not unreasonable because the evidence showed that insurance contracts lasted for a year. Two to five years has repeatedly been held as a reasonable time in a noncompetition agreement. Arevalo v. Velvet Door, Inc., 508 S.W.2d 184, 186 (Tex.Civ.App.-El Paso 1974, writ refd n.r.e.); Electronic Data Systems Corp. v. Powell, 508 S.W.2d 137, 139 (Tex.Civ.App.-Dallas 1974, writ refd n.r.e.); Weber v. Hesse Envelope Co., 342 S.W.2d 652, 656 (Tex.Civ.App.-Dallas 1960, no writ).

Here, the agreement is limited in time (two years), scope (all activities with clients Vogelsang worked with while employed by GHIS), and a reasonable alternative to geographical area. Unlike some covenants not to compete that preclude the employee from working in the same industry, the agreement here does not limit Vogelsang from working in the insurance business, and she can practice her livelihood anywhere in the world. However, she cannot work with her GHIS clients (approximately 80 according to GHIS) for two years. We conclude that the restraint used in this case does not impose a greater restraint that is necessary to protect GHIS’s business interest. Accordingly, we conclude that the covenant not to compete is reasonable.

We sustain GHIS’s sole issue on appeal.

Conclusion

We reverse the trial court’s order on summary judgment and render judgment that the non-compete covenant is enforceable, and we remand the cause for further proceedings.

Justice JENNINGS, dissenting.

TERRY JENNINGS,

Justice, dissenting.

The majority erroneously concludes that appellant, Gallagher Healthcare Insurance Services (“GHIS”), “presented summary judgment evidence to show that its confidential information was an interest worthy of protection” in its breach of employment contract claim against appellee, Page M. Vogelsang. Thus, the majority errs in holding that the covenant-not-to-compete clause of the contract is enforceable and that the trial court erred in entering summary judgment in favor of Vogelsang. Accordingly, I respectfully dissent.

In Texas, an agreement not to compete is enforceable only if it is “ancillary to or part of an otherwise enforceable agreement at the time the agreement is made,” imposes “limitations as to the time, geographical area, and scope of activity to be restrained that are reasonable,” and does not “impose greater restraint than is necessary to protect the goodwill or other business interest” of the employer. Tex. Bus. & Comm.Code Ann. § 15.50 (Vernon 2002). An agreement not to compete is unreasonable, and therefore unenforceable, when it is not necessary to protect a “legitimate business interest.” DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 684 (Tex.1990).

In support of its conclusion that the information that GHIS provided to Vogel-sang is “protected confidential information,” the majority relies upon the affidavit testimony of the president of GHIS, Phillip E. Reischman, and emphasizes:

According to its summary judgment evidence, GHIS’s confidential information (1) took years to acquire; (2) is only shared with employees and agents of GHIS on a “need to know basis”; (3) is not “readily ascertainable by its competitors”; and (4) gives GHIS “a valuable competitive advantage in the insurance brokerage industry.” Moreover, GHIS (1) spent substantial time and resources developing and acquiring the information and (2) takes reasonable precautions in preventing the disclosure of the confidential information.

However, GHIS’s evidence, even the evidence emphasized by the majority above, does not establish that an agreement by Vogelsang not to compete with GHIS was “necessary to protect any legitimate business interest” or that “the necessity of such protection outweighs the hardship of [the] agreement” on Vogelsang. See DeSantis, 793 S.W.2d at 684.

In DeSantis, the Texas Supreme Court concluded that an agreement not to compete between DeSantis, an employee, and Wackenhut, his employer, was unreasonable and, therefore, unenforceable. Id. The court explained that because such agreements are restraints on trade, they are unenforceable unless they are “reasonable.” Id. at 681. An agreement not to compete is not a reasonable restraint on trade unless (1) the agreement is ancillary to an otherwise valid transaction or relationship, (2) the restraint must not be greater than necessary to protect the promisee’s legitimate interest, and (3) the promisee’s need for the protection must not be outweighed by either the hardship to the promisor or any injury likely to the public. Id. at 681-82.

The legal issues in DeSantis involved whether the agreement not to compete was “necessary to protect some legitimate interest of Wackenhut, and whether that necessity was outweighed by the hardship of enforcement.” Id. at 683. Wackenhut argued that its “confidential information” was “protectable” because “during his employ, DeSantis learned the identity of Wackenhut’s customers, their special needs and requirements, and Wackenhut’s pricing policies, cost factors and bidding strategies.” Id. at 684. The court rejected Wackenhut’s argument, explaining:

... [W]hile confidential information may be protected by an agreement not to compete, Wackenhut has failed to show that it needed such protection in this case. Wackenhut failed to show that its customers could not readily be identified by someone outside its employ, that such knowledge carried some competitive advantage, or that its customers’ needs could not be ascertained simply by inquiry addressed to those customers themselves. Also, Wackenhut failed to show that its pricing policies and bidding strategies were uniquely developed, or that information about its prices and bids could not, again, be obtained from the customers themselves. There is no evidence that DeSantis ever took advantage of any knowledge he had of Wack-enhut’s cost factors in trying to outbid Wackenhut or woo away its customers. Wackenhut simply has not demonstrated a need to protect any confidential information by limiting DeSantis’ right to compete.

Id.

Although the business jargon used by GHIS in its summary judgment evidence is somewhat more sophisticated than that used by Wackenhut in DeSantis, much of it is conclusory. See id. Additionally, GHIS, like Wackenhut, has not demonstrated a need to protect any confidential information by limiting Vogelsang’s right to compete. See id. Just because it took GHIS years to acquire and compile information about its customers and it shared this information with employees and agents of GHIS only on a “need to know basis” does not make the information “pro-tectable.” Nor does the fact that the compilation of the information somehow gives GHIS a competitive advantage make the information “protectable.”

The critically important fact remains that GHIS has not demonstrated that the identity of its customers and the information about its customers cannot readily be obtained by others outside of GHIS. See id. Nor has GHIS demonstrated that the information about its customers cannot be “ascertained simply by inquiry addressed to the customers themselves.” See id. Also, like Wackenhut, GHIS has not shown that information about its prices cannot be obtained from the customers themselves. See id. Moreover, GHIS did not offer evidence explaining how its compiled information gives it a competitive advantage or that Vogelsang has actually used any of the compiled information. See id.

Thus, the summary judgment evidence does not establish that GHIS’s “confidential information” is worthy of protection and that the non-compete agreement between Vogelsang and GHIS is necessary to protect a legitimate business interest of GHIS. Accordingly, I would hold that GHIS has not established that the agreement not to compete is reasonable and therefore enforceable. See id.; see also Tex. Bus. & Comm.Code Ann. § 15.50. I would further hold that the trial court did not err in granting summary judgment in favor of Vogelsang, and I would affirm the judgment of the trial court.

      . See Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644 (Tex.2006).

      . See Hardy v. Mann Frankfort Stein & Lipp Advisors, Inc., 263 S.W.3d 232 (Tex.App.Houston [1st Dist.] 2007), rev'd, Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex.2009); Beasley v. Hub City Texas, LP, 01-03-00287-CV, 2003 WL 22254692 (Tex.App.-Houston [1st Dist.] Sept. 29, 2003, no pet.) (mem. op.).

      . Vogelsang agreed that "for a period of two (2) years following the termination of h[er] employment for any reason whatsoever, [s]he will not divulge AJG’s or the Corporation’s Confidential Information or make use of it for h[er] own purpose or the purpose of another.”

      . Vogelsang objected to Reischman’s affidavit, but the trial court failed to rule on her objections. A party waives its objections when it fails to get a ruling. See Evelyn Lockett v. HB Zachry Co., 285 S.W.3d 63, 75-76 (Tex.App.-Houston [1st Dist.] 2009, no pet.); Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 365 (Tex.App.-Houston [1st Dist.] 1994, writ denied). Vogelsang contends that although the trial court did not rule on her objections, we should disregard the affidavit because it consists of legal and factual conclusions. Even if Vogelsang’s objections were not waived, we conclude that the portions of the affidavit relied on here were proper summary judgment evidence.

      . Vogelsang also argues that GHIS had to have given Vogelsang confidential information after she signed the employment agreement in 2001 and that GHIS had to have given her new consideration, i.e. new confidential information that Vogelsang did not already have from her previous employer, Galtney, in order for the covenant not to compete to be enforceable. Reischman’s affidavit states that after Vogelsang signed the agreement GHIS gave confidential information to Vogelsang. The sealed record also contains exhibits of information given to Vo-gelsang dated after she signed the agreement in 2001. We thus disagree with Vogelsang’s contention that she did not receive new confidential information after she signed the agreement.


source: Caselaw Access Project

author: TIM TAFT, Justice (Retired). JIM SHARP, Justice,

license: Public Domain

text:
    Michael MBUGUA, Appellant, v. The STATE of Texas, Appellee.
    No. 01-07-00690-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 21, 2009.
    Discretionary Review Refused March 17, 2010.

      Jani J. Maselli, Houston, TX, for Appellant.
    Michael Mbugua, Kenedy, TX, pro se.
    Bridget Holloway, Assistant District Attorney-Harris County, Dan McCrory, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices BLAND, SHARP, and TAFT.

       Justice Tim Taft, who retired from the First Court of Appeals on May 31, 2009, continues to sit by assignment for the disposition of this case, which was submitted on March 24, 2009.

   OPINION

TIM TAFT, Justice (Retired).

A jury convicted appellant, Michael Mbugua, of the offense of murder and assessed punishment at life in prison. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). We determine whether (1) the trial court abused its discretion in failing to suppress appellant’s statement; (2) this appeal should be abated and the trial court required to submit findings of fact and conclusions of law regarding the denial of appellant’s motion to suppress; (3) the trial court erred in not submitting a jury instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure; and (4) the exclusion of portions of appellant’s medical records from evidence was reversible error. We affirm.

Facts

Kimberly Watkins and Blair Brown were driving westbound on West Bellfort in Houston, Texas, on the night of May 13, 2006, when they saw the complainant lying facedown in the road. They stopped at an Auto Zone store parking lot, and Watkins exited the car to help the complainant. When Watson approached him, she saw that he was covered in blood. She bent down to check on him and touched his neck. He was breathing and making a humming sound, but was not moving or speaking and did not respond to her. Watson stood up and waved her arms to deter cars from accidentally hitting him, turning around occasionally to check on the complainant. Brown was trying to call 9-1-1; she had borrowed a cell phone from a Pizza Hut delivery driver in the same parking lot, but the phone was not working properly. Within a minute or so, Watson saw a young man come across the street and approach the complainant, and she asked him if the complainant “was okay.” He did not answer her and, when she turned, she saw him stabbing the complainant with a knife — first in the back about five times, and then lifting the complainant’s head and slitting his throat twice. Brown also saw the attack. The man then stepped back calmly, dropped the knife, and slowly walked away. According to Brown and Watson, the complainant did not have a weapon. After the assault, other cars stopped, and Brown was able to borrow another person’s cell phone and place a call to 9-1-1.

After the ambulance arrived, Watson noticed a vehicle across the street in someone’s front lawn, as if an accident had occurred. The vehicle was on the opposite side of the street from the Auto Zone and on the same side of the street from whence the assailant had come.

The complainant, later identified as Bruce Caldwell Jr., died from his injuries. Brown and Watson were able to give a description of the assailant to the police, but neither was able to identify him from a police photographic spread.

Houston Police Department Sergeant Mark Newcomb investigated the murder scene and noticed that a car had driven up onto a nearby lawn, hitting some landscaping in the yard. The keys were still in the car, the passenger side door was open, and there was blood in the car and a trail of blood leading from the car to the spot on the street where the complainant was attacked. Two knives were recovered from the scene, and another was later found in the car. A piece of human finger was later recovered from the driver’s seat of the vehicle.

Newcomb determined that the wrecked vehicle was registered to appellant and went to appellant’s home around 2:30 a.m. on the same night of the incident, but did not find him. The next day, Newcomb spoke to appellant by telephone. At that time, appellant was at his parents’ home, being treated by emergency medical technicians for an injury to his hand. Appellant agreed to make a statement and was transported by the police to the Homicide Division, where appellant gave a videotaped oral statement regarding the incident.

In his statement, appellant explained that he and the complainant had been traveling to Wal-Mart in appellant’s car, which appellant was driving. He and the complainant were talking about business, but appellant felt that, “between the lines,” the complainant was talking about how he was going to kill appellant.

Appellant said that he and the complainant had been partners in the music business, but the complainant had broken the partnership by trying to kill him. According to appellant, the complainant had felt it necessary to put a price on appellant’s head, had “a lot of people ... coming to [appellant’s] house trying to kill” appellant, and had told appellant that he was going to kill him, his mother was going to kill him, his father, a police officer, was going to kill him, and other people were going to kill him. The complainant had threatened appellant periodically over the previous few weeks. Appellant carried two knives in his car for personal protection. Appellant never reported these threats to the police.

The night of the incident, appellant and the complainant “got into an altercation” and appellant “had to pull out [his] knife.” He did not know if the complainant had a weapon; he did not see one. Appellant stabbed the complainant twice in the arm or shoulder. During the scuffle, the complainant cut appellant, injuring him. The complainant grabbed the steering wheel, he turned the car into the yard, and they hit a curb. The complainant then jumped out of the car and ran. Appellant followed the complainant into the median to find out what was wrong with him, to see if he was all right, and to help him; he made it within a few feet of the complainant, but ran when he heard someone rack a shotgun. He kept running because he was afraid that someone was trying to kill him and he walked all night, finally arriving at his parents’ house. He expressed surprise in learning from the interviewing officer that the complainant was dead, said, “Damn,” repeatedly, and asked, “So, what am I looking at?” When the officer asked appellant why he stabbed the complainant in the median, he answered, “I don’t even remember,” and when the officer asked appellant if he did not remember stabbing the complainant after leaving the car, appellant answered, “Damn.”

After the interview, Newcomb went down to the second floor of the same building, signed a formal complaint charging appellant with murder, and then, once the complaint went to the clerk’s office, arrested appellant, who was booked in and charged with murder.

Appellant filed a motion to suppress the oral statement, which was denied after a hearing. The videotaped oral statement was played to the jury at appellant’s trial, over appellant’s objection. At trial, appellant asserted a claim of self-defense and called two witnesses. The first was his mother, who testified about appellant’s fear that the complainant was going to kill him, his arrival at home in the early hours on the morning after the incident, and police actions on the night of the incident and the following morning, as they searched for appellant at his home and ultimately took him to the police station to make a statement. His second witness was Dr. Vincent Di Maio, a forensic pathologist, who testified that the complainant was likely killed by the wound to the heart, not the wounds to the neck, and that appellant’s wounds were consistent with being defensive wounds. Appellant did not testify.

Denial of Appellant’s Motion to Suppress

In his first issue, appellant contends that the trial court erred by denying his motion to suppress his statements because appellant was in custody and “had clearly invoked his right to an attorney, in violation of state law and the Constitution.” In his third issue, appellant contends that the trial court erred in failing to suppress his statement “because he was in custody at the time it was given and he was not given his Miranda warnings in violation of state law and Constitution.”

A. The Motion to Suppress

Appellant filed a motion to suppress any statements made by him, asserting that:

(1) any conversations between himself and law enforcement officials occurred when he was under arrest or substantially deprived of his freedom by law enforcement officials;
(2) any statements made were involuntary, coerced, and enticed;
(3) he was deprived of his right to counsel and did not make an intelligent and knowing waiver of that right;
(4) his statements were tainted by an illegal and unlawful detention in violation of his constitutional rights under “the Fifth and Fourteenth Amendments of the Constitution to the United States, Article 1, Section 9 of the Texas Constitution, and Article 38.23 of the Texas Code of Criminal Procedure”;
(5) his statements “were taken without the safeguards required by and in violation of Article 38.22 of the Code of Criminal Procedure”; and
(6) the admission of his statements “is a violation of [appellant’s] rights pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States, Constitution, Article I, Section[s] 9 and 10 of the Texas Constitution and Articles 1.05 and 38.23 of the Texas Code of Criminal Procedure.”

The trial court held a hearing on the motion, at which the State called four witnesses — Darryl Smith, Hilario Galvan, Anthony Wayne Duncan, and Newcomb. Appellant called his father, Joe Mbugua. The court also had before it the videotape of the interview, a transcript of the same, and several photographs that had been admitted into evidence.

At the conclusion of the evidence, the State argued that the requirements of article 38.22 did not apply because appellant had not been under arrest until after he made his initial admissions, at which point the officer gave appellant his article 38.22 warnings. The defense argued that appellant was in custody the entire time and invoked his right to an attorney or, alternatively, that appellant was initially not in custody, but was in custody when he arrived at the police station.

After further arguments about custody and the invocation of the right to counsel, the court stated to appellant’s counsel, “I think succinctly you’re arguing he was in custody at the time he’s making statements about the lawyer, and, therefore, it constitutes an invocation of his right. The State’s position is he was not in custody at the time that he made the statements about the lawyer, so the Court doesn’t need to reach the question as to whether it was an invocation or not at that point.” The defense responded, “Right,” as did the State. Appellant concluded by saying that the final portion of his argument was that appellant invoked his right to counsel, but that the police improperly kept asking questions after such invocation, instead of stopping the interrogation.

The trial court then denied the motion to suppress, making the following statements:

The Court finds that [appellant] ... was not in custody at the time that he was taken in to the Homicide department, was not in custody at the beginning of the conversation — the questioning that occurred at the beginning of the videotape. And I also find, just so the record is clear, that his question about ... could he wait for his lawyer did not constitute an invocation of right to counsel. So, furthermore, the Court therefore finds that the requirements of Article 38.22 of the Code of Criminal Procedure, at the time they were given, [appellant], that he understood those rights — that he voluntarily gave those rights up and voluntarily gave the statement. And I think my — my statement that, “Can I wait until my lawyer gets here,” not being an invocation of right to counsel applies as well to the statement made by [appellant] when he is making the same inquiry on page 14 [of the transcript] when he is being given his legal warnings. All right. The statement will be admitted.

B. Invocation of Right to Counsel

Under the Fifth Amendment of the United States Constitution, an accused has the right to have an attorney present during custodial interrogation. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981) (noting that that right was first declared in Miranda decision). Once an accused has invoked that right, police interrogation must stop until counsel has been made available or the accused himself initiates a dialogue with the police. Id. at 484-85,-101 S.Ct. at 1884-85; State v. Gobert, 275 S.W.3d 888, 892 (Tex.Crim.App.2009).

However, a person in custody must unambiguously and unequivocally invoke his right to counsel before interrogation must cease. Davis v. United States, 512 U.S. 452, 458-61, 114 S.Ct. 2350, 2355-56, 129 L.Ed.2d 362 (1994). Not every mention of a lawyer will invoke the right to the presence of counsel during questioning. Gobert, 275 S.W.3d at 888; Dinkins v. State, 894 S.W.2d 330, 351 (Tex.Crim.App.1995). An ambiguous or equivocal statement regarding counsel does not require officers to halt the interrogation or even to seek clarification. Davis, 512 U.S. at 461-62, 114 S.Ct. at 2356; Gobert, 275 S.W.3d at 892.

Whether the particular mention of an attorney constitutes a clear invocation of the right to counsel depends on the statement itself and the totality of the surrounding circumstances. GobeH, 275 S.W.3d at 892. The test is an objective one: “whether a reasonable police officer, under similar circumstances, would have understood the statement to be a request for an attorney or merely one that might be invoking the right to counsel.” Reed v. State, 227 S.W.3d 111, 116 (Tex.App.-Houston [1st Dist.] 2007, pet. ref d) (citing Dinkins, 894 S.W.2d at 351). “The suspect ‘must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer would understand the statement to be a request for an attorney.’ ” Gobert, 275 S.W.3d at 893 (quoting Davis, 512 U.S. at 459, 114 S.Ct. at 2350).

The statement that appellant asserts on appeal was an invocation of his right to counsel occurred at the beginning of the interview in the following exchange with Newcomb, after Newcomb had confirmed that appellant did not need immediate medical care, had had an opportunity to use the bathroom and have a drink of water, understood that he was not under arrest, and wanted to speak with the police:

[Newcomb]: Okay. So you are not under arrest. We just want to get your side of the story on what happened, okay?
[Appellant]: Okay.
[Newcomb]: And so, do you — you want to continue to talk to us and speak with us; is that correct?
[Appellant]: Can I wait until my lawyer gets here?
[Newcomb]: Okay. If — if you want to talk to a lawyer, we’ll have to cut off the interview right now. We can’t ask you anything else. We can’t speak to you anymore, and you will not have an opportunity to give your side of the story.
[Appellant]: Then what’s going to happen?
[Newcomb]: I’m sorry?
[Appellant]: What’s going to happen?
[Newcomb]: Well, from that point I’ll have to go make some phone calls, and I’ll get back with you. But if you are refusing to speak with us and you want an attorney, if that’s what you’re saying, then we’re going to get up, we’re going to walk out of this room and that’s what — the end of the conversation. Now you are not under arrest at this time. So you don’t have to have an attorney if you are not under arrest, okay? So—
[Appellant]: Can I call my parents so I can [sic ] I feel more comfortable talking to my parents here because they know — they know the story too.

Appellant argues that the question, “Can I wait until my lawyer gets here,” was an unequivocal and unambiguous request for counsel, during a custodial interrogation. He contends that, therefore, the police should have ceased questioning him at that point and that the additional questioning was an improper attempt to coerce a statement from him.

The State argues that appellant did not clearly invoke his right to counsel and, even if he had, appellant was not in custody at the time and therefore the police were not required to cease questioning. The State also argues that, although not required to, the police followed the ambiguous statement with questions seeking to clarify whether appellant wanted an attorney, and appellant did not state that he wanted counsel, but instead confirmed that he wanted to keep talking to police.

We hold that the statement at issue was not a clear and unambiguous invocation of the right to counsel. An accused “must unambiguously request counsel” and “a statement either is such an assertion of the right to counsel or it is not.” Davis, 512 U.S. at 459, 114 S.Ct. at 2355. If the statement does not meet the required level of clarity, then officers are not required to stop questioning. Id.

Appellant has referred us to the Court of Criminal Appeal’s decision in Gobert. In Gobert, after the police had read Gobert his article 38.22 rights and asked if he understood them, Gobert replied that he did, and then stated, “I don’t want to give up any right, though, if I don’t got no lawyer.” Gobert, 275 S.W.3d at 889-90. The Court of Criminal Appeals held that Gobert’s use of the term “any right” referred to the article 38.22 rights just read to him, which included the right to counsel, and that the entire statement expressed Gobert’s clear desire not to waive any rights in the absence of counsel. Id. at 893. The Court held that such statement was a limited invocation of the right to counsel, “clearly stating” a “firm and unqualified condition” that, before any further attempts to persuade Gobert to waive any other rights, the officers must first afford him the right to have his attorney present during that attempt. Id. at 894. The Court held that the officers had violated Gobert’s right to counsel when they failed to abide by this “unambiguous and unqualified condition.” Id.

By contrast, appellant’s question, “Can I wait until my lawyer gets here?” did not clearly state a firm, unambiguous, and unqualified condition that any further questioning must be conducted only with his attorney present. Appellant’s question, both by the language used and in the context of the totality of the circumstances, was not a clear and unambiguous assertion of the right to counsel and an exercise of that right, but was more in the nature of an inquiry about the interview process and appellant’s options in regard to that process. Newcomb understood the question as such and responded accordingly, explaining what would happen in the process if appellant wished to “wait” and to talk to his lawyer. Appellant’s question was, at best, an ambiguous articulation of a desire for counsel. See Davis, 512 U.S. at 462, 114 S.Ct. at 2357 (holding that statement, “Maybe I should talk to a lawyer” was not request for counsel); Gutierrez v. State, 150 S.W.Bd 827, 832 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (deciding that question, “Can I have [my attorney] present now?” was ambiguous question about counsel); Halbrook v. State, 31 S.W.3d 301, 302 (Tex.App.-Fort Worth 2000, pet. ref'd) (determining that statement, “Do I get an opportunity to have my attorney present?” did not constitute clear and unambiguous invocation of counsel); Flores v. State, 30 S.W.3d 29, 34 (Tex.App.-San Antonio 2000, pet. ref'd) (holding that question, “Will you allow me to speak to my attorney before?” was not clear and unequivocal invocation of right to counsel).

Having concluded that appellant’s question did not clearly and unambiguously invoke the right to counsel, we hold that trial court did not abuse its discretion in not granting appellant’s motion to suppress on this basis. We overrule appellant’s first issue.

C. Failure to Give Miranda Warnings

The State contends that appellant failed to preserve his contention under his third issue, regarding the failure of the police to give appellant his Miranda warnings, because appellant did not specifically direct the trial court’s attention to the failure to give article 38.22 warnings as a basis for suppression in either his motion to suppress or at the motion-to-suppress hearing, but. instead only pursued his claim as a violation of his invocation of counsel while in custody. The State argues that, at the conclusion of the motion-to-suppress hearing, appellant asked the trial court to decide only whether he was in custody and had invoked his right to counsel, in effect abandoning any other grounds for suppression listed in the motion.

We first note that the videotape and the transcript of the interview indicate that appellant received the required Code of Criminal Procedure article 38.22 warnings after he had made some initial inculpatory admissions and prior to more detailed questioning. The only issues then, regarding the provision of any required warnings are whether the police were required to give appellant such warnings at an earlier time than was actually done; if so, when that should have been done; and if there were any incriminating statements made after that time that should have been suppressed.

Appellant did not bring such a contention to the attention of the court, either in his motion to suppress or during the oral hearing, nor did he ask the court to decide these questions and issue a ruling thereon. His motion failed to preserve his contention on appeal because it did not alert the trial court that he wished the issue to be decided; rather, the motion stated that the rights encompassed in these warnings were violated and that his oral statements were taken “without safeguards.’’ These general statements in the motion would not have alerted the trial court to the specific complaint that his article 38.22 warnings should have been provided at an earlier point in the interview, and they do not comport with the issue on appeal. See Tex.R.App. P. 33.1(a)(1) (requiring, in order to preserve error, sufficient specificity to make trial court aware of complaint and ruling by court on complaint); Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995) (holding that issue on appeal must comport with complaint made at trial). Appellant likewise did not bring the issue of the delay in the article 38.22 warnings to the trial court’s attention at the motion-to-suppress hearing or at trial. Appellant’s sole focus and argument to the trial court at the motion-to-suppress hearing was that he was in custody, had invoked his right to counsel, and was improperly questioned after having done so. When the videotaped oral statement was offered into evidence at trial, defense counsel asked to approach the bench. The court asked if appellant “had any additional objections other than the ones already made,” and counsel responded, “No, I just wanted to make sure it was clear that I wasn’t waiving any of my previous objections.” Because appellant did not object to the admission of his statement based on the failure of the police to provide required warnings at an earlier time, either at the suppression hearing or at the time of trial, and did not secure a ruling on such a complaint, he did not preserve error as to this issue. See Tex.R.App. P. 33.1(a)(1); Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim.App.2005) (concluding that, when appellant failed to object to admission of statement at motion-to-suppress hearing on ground for suppression raised on appeal, but instead, argued a different basis for suppression, issue was not preserved); Johnson v. State, 263 S.W.3d 287, 290 (Tex.App.-Houston [1st Dist.] 2007, pet. dism’d) (same).

We hold that this contention was not preserved and decline to address it. We overrule appellant’s third issue.

Abatement for the Preparation of Findings of Fact and Conclusions of Law

In his second issue, appellant asserts that the trial court erred in not submitting written findings of fact and conclusions of law regarding its ruling on his motion to suppress.

As detailed previously, the trial court made a statement of its findings and conclusions at the close of the motion-to-suppress hearing. Following these remarks, appellant’s counsel commented to the court, “I think it has to be on the record that we have — we are entitled to do specific findings of fact and conclusions of law. So I just want to get that on the record.” The court responded, “Well, I think you’re certainly entitled to those. And I think that will be an interesting issue for you if it gets that far.” Appellant’s counsel replied, “Correct. Thanks, Judge. That’s all I have.” No proposed findings of fact or conclusions-of law appear in the record, nor is there any formal written order containing findings of fact or conclusions of law.

Appellant asserts on appeal that the trial court was required to enter written findings of fact and conclusions of law pursuant to Texas Code of Criminal Procedure article 38.22, section 6. See Tex.Code Crim. Proc. art. 38.22, § 6 (Vernon 2005). Appellant requests that we abate this appeal and order the trial court to issue such findings. See Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim.App.2004) (holding that when trial court fails to make findings of fact and conclusions of law required by article 38.22, section 6, proper procedure is for reviewing court to direct trial court to comply with this provision). The State asserts that, because appellant did not argue that his statement was involuntary during the suppression hearing, the trial court was not required to make findings under article 38.22, section 6. See Jones v. State, 859 S.W.2d 537, 540-41 (Tex.App.Houston [1st Dist.] 1993, pet. ref d) (holding that trial court was not required to make finding under section 6 of article 38.22 when appellant did not make objection as to voluntariness of statement).

Section 6 of article 38.22 provides, in relevant part:

In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must .... [i]f the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court ... enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific facts upon which the conclusion was based, which order shall be filed among the papers of the cause.

Tex.Code Crim. Proc. Ann. art. 38.22, § 6.

A trial court satisfies this requirement of article 38.22, section 6 when it dictates its findings of fact and conclusions of law to the court reporter and they are subsequently transcribed and made part of the appellate record. Murphy v. State, 112 S.W.3d 592, 601 (Tex.Crim.App.2003); Vasquez v. State, 179 S.W.3d 646, 654 (Tex.App.-Austin 2005), aff'd, 225 S.W.3d 541 (Tex.Crim.App.2007). This the trial court did. On appeal, appellant does not challenge the sufficiency of the trial court’s oral statements to serve as the required conclusions and findings; he complains only that the trial court did not enter written findings. We conclude that the trial court’s dictation of its findings of fact and conclusions of law to the court reporter, which are now part of the appellate record, satisfied the requirement of article 38.22, section 6. See Murphy, 112 S.W.3d at 601.

We overrule appellant’s second issue.

Jury Instruction

In his fourth issue, appellant contends that the trial court erred in failing to give an instruction to the jury, pursuant to article 38.23(a) of the Texas Code of Criminal Procedure, that would have required the jury to determine whether appellant was in custody at the time that he gave his statement.

At trial, appellant specifically requested the trial court to include “a 38.23 charge involving the factual issue of whether or not [appellant] was in custody at the time that he arrived at the Houston Police Department for his statement .... [a]nd if he was in custody and did not receive Miranda [warnings], that the jury be instructed to disregard the statement in its entirety.” He also tendered a proposed charge. The State responded that there was no dispute as to any factual issue. The trial court then explained that custody was a term of art, a mixed question of law and fact, and did not “boil[ ] down to a fact determination turning on a particular fact,” discussed the evidence regarding custody, found that it did not raise an issue with respect to whether appellant was in custody, and denied the proposed instruction and any instruction under article 38.23.

On appeal, appellant acknowledges that he was entitled to an instruction under article 38.23(a) “only if the trial evidence raised a factual issue concerning whether the evidence was obtained in violation of the federal constitution or the Texas Constitution or any of its laws,” quoting Bell v. State, 938 S.W.2d 35, 48 (Tex.Crim.App. 1996). He asserts that the testimony of his mother, that she told the paramedics that she wanted to take appellant to the emergency room and that the police told her that she could not do that, raised a factual issue as to whether appellant was actually “in custody,” entitling him to an instruction under article 38.23(a).

An accused’s right to the submission of an instruction under article 38.23(a) “is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible.” Madden v. State, 242 S.W.3d 504, 509-10 (Tex.Crim.App.2007).

Before an accused is entitled to the submission of a jury instruction under article 38.23(a), he must meet three requirements:

(1) The evidence heard by the jury must raise an issue of fact;
(2) The evidence on that fact must be affirmatively contested; and
(3) That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.

Id. at 510.

“The first requirement for obtaining a jury instruction under Article 38.23, is that the defendant request an instruction on a specific historical fact or facts. The jury decides facts: the judge decides the application of the law to those facts.” Id. at 511; There must be a genuine dispute about a material issue of fact before an article 38.23 instruction is warranted; if there is no disputed fact issue, the legality of the conduct is determined by the trial court alone, as a question of law. Id. at 510. In order for there to be a conflict in the evidence that raises a disputed fact issue, there must be some affirmative evidence in the record that puts the existence of that fact in question. Id. at 513. Furthermore, if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not material to the ultimate admissibility of the evidence and is not to be submitted to the jury. Id. The disputed issue must be essential to deciding the lawfulness of the challenged conduct. ■ Id. at 511.

There was no error in the jury charge from the absence of any article 38.23(a) instruction regarding custody because there was no conflict in the evidence raising a disputed fact material to the question of custody that would have mandated an article 38.23(a) instruction. Appellant’s mother’s statements to the paramedics and the police officer’s response were not in dispute at trial. The State did not introduce any affirmative evidence at trial contradicting this testimony, and the possibility that the jury may or may not believe a witness does not create a factual dispute warranting an article 38.23(a) instruction. Madden v. State, 242 S.W.3d 504, 514 n. 26 (Tex.Crim.App.2007). Moreover, the proposed instruction did not charge the jury with resolving a specific issue of historical fact, but asked it to determine whether appellant was “in custody.” A jury may not be instructed under article 38.23(a) to determine whether a person is “in custody” because such an instruction requires the jury to resolve an issue of law, not of fact. See Thompson, 516 U.S. at 111-12, 113 n. 13, 116 S.Ct. at 465, 465 n. 13 (holding that “in custody” determinations presented mixed question of law and fact; also stating that “[jjudges alone make ‘in custody’ assessments for Miranda purposes.”); accord Madden, 242 S.W.3d at 510-11, 513 (involving proposed article 38.23 instruction regarding “probable cause”).

We hold that there was no error in the trial court’s not providing an article 38.23(a) instruction to the jury. We overrule appellant’s fourth issue.

Redacting of Medical Records

In his fifth issue, appellant contends that the trial court erred in redacting portions of his medical records for the treatment of his hand that referenced his statements that the injuries had been sustained in a fight.

At trial, appellant called Dr. Vincent Di Maio, a forensic pathologist, to testify about the wounds sustained by the complainant and those sustained by appellant. Di Maio opined that the complainant died from the wound to the heart, not the wounds to the neck. He also testified that if appellant’s medical records indicated that he suffered incised wounds or the cutting off of a tip of a finger, those injuries would be consistent with defensive injuries. Appellant attempted to introduce his medical records, and the State objected to the hearsay in the document, including the comment, “cut while fighting approximately 12 hours ago.” Appellant responded that the comment fell under a hearsay exception for medical diagnosis or treatment. The court admitted the document, conditioned on the court’s later ruling on the issue. Di Maio then reviewed the records and testified that his opinion was that appellant’s wounds were consistent with being defensive wounds. At a later time, outside of the presence of the jury, the trial court granted the State’s request to redact two phrases in the medical records, “while fighting” and “following an altercation,” explaining that they were not necessary for medical treatment and diagnosis. Appellant responded that he objected to the redaction on the ground that the State had waived its objection to the statements’ being admitted by its cross-examination of Di Maio. The court overruled the objection.

We review a trial court’s decision to admit or to exclude evidence for an abuse of discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App.2006). If the ruling is within the bounds of reasonable disagreement, it should not be disturbed on appeal. Id. The mere fact that a trial court may decide a matter within his discretionary authority differently from an appellate judge in a similar circumstance might does not demonstrate an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990). Rather, an abuse of discretion is shown when the trial court’s ruling is “arbitrary or unreasonable,” made “without reference to any guiding rules or principles.” Id.

Texas Rule of Evidence 803(4) provides that the following statements are admissible as an exception to the hearsay exclusionary rule:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pains, or sensations, or the inception or general character or the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Tex.R. Evid. 803(4).

In order for statements to be admitted under rule 803(4), the proponent of the evidence must show that (1) the declar-ant was aware that the statements were made for the purposes of medical diagnosis or treatment and that proper diagnosis or treatment depended on the veracity of the statement and (2) the particular statement offered is also “pertinent to treatment,” that is, it was reasonable for the health care provider to rely on the particular information in treating the declarant. Taylor v. State, 268 S.W.3d 571, 589, 591 (Tex.Crim.App.2008).

The trial court excluded the evidence in this case based on the second factor. Appellant argues on appeal that “knowing how an injury occurred assists in treatment.” However, he has not explicated why it was important for his treatment that the medical professionals know that he was cut in a fight, and he presented no evidence or argument at trial establishing that such information was important to his treatment. See id. at 591 (holding that it was appropriate to require proponent of hearsay exception to make record reflect that statement in question was important to efficacy of treatment). While the fact that appellant was cut was clearly pertinent to his treatment, the fact that he was injured “while fighting” and “following an altercation” was not. See Fleming v. State, 819 S.W.2d 287, 247 (Tex.App.-Austin 1991, pet. refd) (noting that “a patient’s statement that he was struck by an automobile would qualify” under the rule 803(4) hearsay exception, but “his statement that the car was driven through a red light” did not). The trial court acted within the scope of its discretion in finding that appellant did not establish that the statements “while fighting” and “following an altercation” were pertinent to his treatment and that therefore appellant failed to establish that the statements fell within the medical records hearsay exception. We hold that the trial court did not abuse its discretion in redacting these statements from the medical records admitted into evidence.

We overrule appellant’s fifth issue.

Conclusion

We affirm the judgment of the trial court.

Justice SHARP, concurring.

JIM SHARP, Justice,

concurring.

I am compelled to concur in the decision of the Court and write separately to express my concern over the conduct of the police, trial counsel, and the State in this case.

Appellant was clearly in custody at the time that he first made incriminating statements, and I would expressly so hold. Telling a person repeatedly that he is “not under arrest” will neither cloak all sins nor absolve police from failing to provide a person required warnings before interrogation when that person is, in fact, in custody. Behavior may speak as loudly as words, and when police behavior would cause a reasonable person to feel that he or she was not at liberty to terminate the interrogation and leave, then that person is in custody, no matter how many times an officer may declare otherwise. See Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996); Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995).

In this case, the detective’s refusal to allow appellant to use the telephone at the time that appellant requested it and’ the detective’s statements to appellant that officers would “not allow” him to “to make a phone call right now,” that officers were “going to just have you talk to us right here,” and that appellant could make a phone call “after you talk to us” would have led a reasonable person to believe that his freedom of movement had been significantly restricted, Dowthitt, 931 S.W.2d at 255, and a reasonable person would have felt that he or she was not at liberty to terminate the interrogation and to leave. Thompson, 516 U.S. at 112, 116 S.Ct. at 465.

At that point, appellant was in custody. The police were, therefore, required to provide him with the proper warnings and to receive from him a knowing, intelligent, and voluntary waiver of his rights before questioning him. They did not. They proceeded with a custodial interrogation and did not bother to warn him or to seek a waiver of his rights until after appellant had already given incriminating statements as the result of that custodial interrogation.

The police officers’ failure to timely provide appellant his required warnings is compounded (indeed, fatally) by trial counsel’s failure to preserve this complaint for appellate review, which precludes us from reviewing what seems to me to be the improper admission at trial of statements made as a result of custodial interrogation without proper warnings and without a proper waiver of rights. Trial counsel must be vigilant to properly assert, present, and argue all grounds at trial that are appropriate to suppress a client’s statement that was taken in violation of constitutional or statutory rights. While appellant would undoubtedly have been convicted even without the admission of his statement (the often recited phrase by prosecutors to describe sure-win cases — “like shooting fish in a barrel”— has rarely beén more appropriate), he may well not have had his own words used against him if the rights that are granted to all under our laws had been properly championed by the person who had the particular duty to do so.

Lastly, the State need not have introduced this statement to secure appellant’s conviction. Appellant was witnessed by at least two people in the commission of this offense. Appellant’s wrecked vehicle was at the scene, complete with a clear trail from that vehicle to the decedent. And, although forensic scientists at the Houston Police Department did not trace appellant’s fingerprints to the knives found on site, there was little need to — fingerprints should be a mere footnote in a case file when a piece of the appellant’s actual finger was left behind! Thus, the use of appellant’s constitutionally suspect statement against him was not only violative of his rights, but wholly unnecessary to secure justice.

      . Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).

      . The blood found on the blade from one knife contained the complainant’s blood and the other contained a mixture of appellant’s and the complainant’s blood.

      . Appellant and the complainant were neighbors, had been "best friends" since 1995, and had been involved in the rap music business together since 2005.

      . The complainant’s father was an officer with the Sugar Land Police Department.

      . The State also called Brown, Watson, and Newcomb at trial, along with three other officers who were relevant to the taking of the oral statement; a forensic pathologist, who discussed the autopsy of the complainant; two friends and business associates of the complainant, who discussed the relationship between appellant and the complainant; a police officer assigned to the crime scene unit, who described the scene of the incident and sponsored evidence from the scene; a latent print examiner, who stated that she was unable to find sufficient fingerprints to make an identification; a district attorney investigator, who had taken a buccal swab from appellant and delivered it to the crime lab; and an analyst from the crime lab, who testified regarding blood found on various items at the scene that was consistent with the genetic profile of the complainant, appellant, or a mixture of both.

      .The State called two witnesses in rebuttal— a friend of the complainant and a neighbor— who both offered opinion and reputation testimony regarding whether the complainant was a peaceful and law-abiding person. Appellant then called his mother in rebuttal to give opinion and reputation testimony regarding whether he was a peaceful and law-abiding person.

      . Miranda v, Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Texas, peace officers give the warnings required by Texas Code of Criminal Procedure article 38.22, not Miranda warnings. See Tex.Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 2005) (setting out required warnings).

      . Appellant filed two motions to suppress, one entitled, "Motion to Suppress Statements,” and one entitled, "Motion to Suppress.” At the commencement of the hearing, appellant’s counsel clarified that he was seeking to suppress only any statements by appellant and the only signed order regarding a suppression motion in the record is the order denying the “Motion to Suppress Statements.” We therefore consider only the "Motion to Suppress Statements.”

      . There was a later, similar question that the trial court also ruled was not an invocation of the right to counsel, but appellant makes no complaint on appeal regarding the second question, and we therefore do not review it.

      . Appellant has also referred us to Silva v. Estelle, 672 F.2d 457 (5th Cir.1982) and United States v. Lee, 413 F.3d 622 (7th Cir.2005). As we noted in Reed v. State, 227 S.W.3d 111, 116 (Tex.App.-Houston [1st Dist.] 2007, pet. ref’d), we are not bound by such authority. However, more significantly, the question in the case before us is far more ambiguous than those in Silva (in which the appellant told a magistrate that he wanted a lawyer and wanted to use the telephone to call a lawyer) and
        Lee (in which the appellant asked directly, "Can I have a lawyer?”).

      . The last sentence of appellant’s first issue reads, "The statement by [appellant] should have been suppressed as a violation of his Fifth Amendment right to remain silent.” Because there is no discussion, citation to authorities, or legal analysis regarding this statement, we read this to be a conclusion to appellant’s arguments regarding an invocation of his right to counsel, rather than a separate argument regarding his Fifth Amendment right to remain silent.

      . Tex.Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). This section provides:
      No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence obtained. Id.

      . See Tex.Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 2005).

      . A person is in “custody” during an interrogation if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. See Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996). In other words, given these circumstances surrounding the interrogation, would a reasonable person have felt that he or she was not at liberty to terminate the interrogation and to leave? See Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995).

      . The State refers us to Lewis v. State, 737 S.W.2d 857, 862 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd). However, the section to which the State directs us in Lewis is one in which the State was arguing that access to the telephone during the day was indicative of a lack of coercion. Id. It does not support an argument that the deprivation of access to a telephone is not indicative of custody. Indeed, deprivation of the use of a telephone is one indicator of police coercion. See Haynes v. Washington, 373 U.S. 503, 509-10, 83 S.Ct. 1336, 1341, 10 L.Ed.2d 513 (1963); Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim.App.1985), overruled on other grounds, Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App.1998).

      . See Tex.Code Crim Proc. Ann. art. 38.22, § 3(2) (Vernon 2005) (prohibiting admission of oral statement of accused as result of custodial interrogation unless, prior to statement, required warnings were given and accused knowingly, intelligently, and voluntarily waived rights).