author: EVELYN KEYES, Justice.

text:
    Priscilla CELESTINE, Appellant, v. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.
    No. 01-09-00693-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 15, 2010.

      Shonda M. Jones, Law Office of Shonda Jones, Houston, TX, for Appellant.
    Brian J. Fischer, Sandra D. Hachem, Senior Assistant County Attorney, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, HANKS, and HIGLEY.
   OPINION

EVELYN KEYES, Justice.

Appellant, Priscilla Celestine, appeals the dismissal of her petition for adoption and the trial court’s denial of her motion for new trial. We affirm the judgment of the trial court.

BACKGROUND

On August 29, 2006, the 313th Judicial District Court of Harris County issued a final decree terminating the parental rights of DDD’s, DJD’s, JID’s and CRD’s biological parents and appointing the Department of Family and Protective Services (DFPS) as the children’s sole managing conservator. DFPS had placed the children with Celestine while the termination proceeding was pending. In December 2006, DFPS removed the children from Celestine’s home after a caseworker learned that Celestine had left the children alone with their biological mother. It is undisputed that the children had only lived with Celestine for five and a half months prior to their removal.

On May 17, 2007 — five months after the children were removed from her home— Celestine, claiming to be a maternal aunt to two of the children, filed a petition to terminate DFPS’s conservatorship and adopt all four children. Although Celes-tine attempted to file her petition for adoption under cause number 2005-03847J (termination proceeding), the clerk’s office corrected the error and assigned Celes-tine’s petition a new cause number, 2007-29969. Celestine subsequently filed three amended petitions. DFPS responded to all three by filing general denials and special exceptions asserting that Celestine failed to plead any facts that would establish that she had standing to bring the suit. In its response to Celestine’s Third Amended Petition, DFPS also moved to strike the pleadings. After a hearing before Associate Judge Robert Molder of the 313th Judicial District Court, DFPS’s motion to strike was denied. DFPS subsequently filed its First Amended Answer to Celestine’s Third Amended Petition. In its amended answer, DFPS stated that, as the children’s Sole Managing Conservator, it did not consent to Celestine’s adoption of the children and, furthermore, that waiver of consent was not authorized because DFPS had good cause to refuse consent.

For reasons not fully explained by either the briefs or the clerk’s record in this matter, Celestine’s petition came before Judge Frank Rynd, presiding judge of the 309th District Court of Harris County. Celestine argues in her supplemental brief that the District Clerk’s office must have erroneously assigned her case to the 309th District Court when it assigned her petition a new cause number, 2007-29969. On August 25, 2008, Judge Rynd signed an order of dismissal for want of prosecution under the corrected cause number and style of Celestine’s petition for adoption. The order of dismissal, which was filed with the District Clerk’s office on August 27, 2008, indicates that neither Celestine nor her counsel appeared on April 25, 2008 for a trial on the merits. No motion to reinstate was filed with respect to Judge Rynd’s order.

Despite Judge Rynd’s order of dismissal, a hearing on Celestine’s petition for adoption was held on October 1, 2008 before Associate Judge Robert Molder of the 313th Judicial District Court, presided over by Judge Pat Shelton. After the hearing, the 313th District Court signed an order dismissing Celestine’s petition with prejudice, and without explanation. Celes-tine promptly filed a motion for new trial before the 313th District Court, which, after a hearing, was also denied without explanation. Celestine now appeals the October 2008 order of the 313th District Court dismissing her petition for adoption and the subsequent denial of her motion for new trial/reconsideration.

SUBJECT MATTER JURISDICTION

As a preliminary matter, we must determine whether the 313th District Court had jurisdiction to enter the October 1, 2008 order of dismissal. DFPS argues that the October 1, 2008 order of dismissal — the only order of dismissal Celestine is appealing — was appropriate because the case had already been dismissed on August 25, 2008 for want of prosecution by Judge Rynd, the presiding Judge of the 309th District Court, who was sitting on behalf of the 313th District Court, pursuant to the exchange-of-benches doctrine. According to DFPS, by the time Associate Judge Molder heard the motion to dismiss on October 1, 2008, the 313th District Court’s plenary power had already expired, thus depriving the court of jurisdiction over the case. Celestine, on the other hand, argues that Judge Rynd was not acting on behalf of the 313th District Court, as DFPS contends, but, instead, was acting on behalf of the 309th District Court because the District Clerk’s office had erroneously assigned her petition to Judge Rynd’s court, the 309th District Court. According to Celestine, the 309th District Court did not have jurisdiction to dismiss her petition for adoption because the 313th District Court was the court of continuing and exclusive jurisdiction. Although she does not expressly state as much, we understand the remainder of her argument to be that the August 25, 2008 order issued by Judge Rynd was void for want of jurisdiction (rather than merely “voidable”); therefore, the district court’s plenary power had not expired by the time Associate Judge Molder dismissed her petition, and Associate Judge Molder could not have properly dismissed her petition on that basis.

Exchange of Benches Doctrine

The Texas Constitution and Government Code give district courts broad discretion to exchange benches and enter orders on other cases in the same county, even without a formal order memorializing the exchange or transfer. In re U.S. Silica Co., 157 S.W.3d 434, 439 (Tex.2005); Tex. Const. art. V, § 11 (“[T]he District Judges may exchange districts, or hold courts for each other when they may deem it expedient”); Tex. Gov’t Code Ann. § 74.094(a) (Vernon 2005) (stating that district court judges may “hear and determine a matter pending in any district or statutory county court in the county regardless of whether the matter is preliminary or final or whether there is a judgment in the matter. The judge may sign a judgment or order in any of the courts regardless of whether the case is transferred. The judgment, order, or action is valid and binding as if the ease were pending in the court of the judge who acts in the matter.”); Tex. Gov’t Code Ann. § 24.303(a) (Vernon 2004) (allowing district court judges in multi-court counties to transfer any civil or criminal matters on their docket to another district court in the same county and to “exchange benches or districts from time to time”). The Texas Rules of Civil Procedure further enforce this rule. In counties with more than one district court, “any judge may hear any part of any case.” See Tex.R. Civ. P. 330(g). And Rule 330(h) provides that in such counties, “any judge may hear ... all preliminary matters, questions and proceedings and may enter judgment or order thereon in the court in which the case is pending without having the case transferred to the court of the judge acting.... Any judgment rendered or action taken by any judge in any of said courts in the county shall be valid and binding.” Tex.R. Civ. P. 330(h).

Although the Texas Family Code contains a unique provision giving a court continuing and exclusive jurisdiction over matters involving the welfare of a child upon the rendition of a final order in an original suit affecting a parent-child relationship, see Tex. Fam.Code Ann. § 155.001 (Vernon 2008), this does not preclude the application of the exchange-of-benches doctrine in such cases. See In re Garza, 981 S.W.2d 438, 441 (Tex.App.-San Antonio 1998, orig. proceeding) (holding that when district court has continuing and exclusive jurisdiction over SAPCR matter, judge of another district court in same county may rule in matter, so long as record is clear that judge is acting on behalf of court with continuing and exclusive jurisdiction).

It is undisputed that the 313th Judicial District Court has exclusive and continuing jurisdiction in the present case by virtue of the fact that it issued the final order in the termination proceeding. See Tex. Fam.Code Ann. § 155.001. If Judge Rynd was acting on the behalf of the 313th, the court of continuing and exclusive jurisdiction — rather than acting on the behalf of the 309th — there would be no question that the August 25, 2008 order he signed dismissing Celestine’s petition for want of prosecution was valid and enforceable as an order of the 313th District Court. Thus, the initial issue before this Court is whether the record demonstrates that Judge Rynd was acting on behalf of the 309th or the 313th District Court when he issued his order dismissing Celestine’s petition.

The August 25, 2008 order dismissing Celestine’s petition was signed by Judge Rynd in his capacity as “Judge.” The order’s caption suggests that the matter was pending before the 309th District Court. The District Clerk’s record also contains docket sheets indicating that Cel-estine’s adoption case may have been mistakenly assigned to the 309th District Court when the District Clerk’s office assigned her petition for adoption a new cause number, 2007-29969. Moreover, docket sheets from the 313th District Court, which are also contained in the District Clerk’s record, indicate that the 313th was docketing activities relating to Celestine’s adoption petition under the 2005 case number assigned to the termination proceeding rather than under the 2007 ease number assigned to the adoption proceeding. Standing alone, not one of these facts would be sufficient to conclusively defeat DFPS’s contention that the order resulted from a proper exchange of benches because any one of them could have resulted from a simple clerical error. Nevertheless, these facts, coupled with the subsequent conduct of the 313th District Court, the court of continuing and exclusive jurisdiction, and the conduct of the parties, demonstrate that Judge Rynd was not acting on behalf of the 313th when he issued the August 25, 2008 order dismissing Celestine’s adoption petition for want of prosecution.

The record in this matter demonstrates that Associate Judge Molder, who was acting on behalf of Judge Shelton of the 313th District Court, and the parties continued to proceed with the case in the 313th District Court as if Judge Rynd’s order of dismissal had never happened. First, the 313th District Court scheduled Celestine’s petition for a trial on merits on October 1, 2008 — over a month after Judge Rynd issued his order of dismissal. Second, when the parties appeared before Associate Judge Molder on October 1, the attorney ad litem asked the court to dismiss Celestine’s petition because Celestine acknowledged that she did not meet the Family Code’s requirement that the children must have resided with her for six months prior to adoption; Associate Judge Molder held an impromptu hearing on the issue. Although they discussed the procedural history of the case at the October 1 hearing, neither the parties nor Associate Judge Molder made any mention of Judge Rynd’s order of dismissal for want of prosecution or of the April 2008 trial in the 309th at which Celestine and her counsel failed to appear, providing the grounds for Judge Rynd’s dismissal. Finally, neither the parties nor Associate Judge Molder made any mention of Judge Rynd’s order of dismissal when Associate Judge Molder presided over a hearing on Celestine’s motion for new trial almost a month later on October 29, 2008. Under these circumstances, we cannot say that it is clear from the record that Judge Rynd was acting on behalf of the 313th District Court — the court with continuing and exclusive jurisdiction. See In re Garza, 981 S.W.2d at 441; see also Alexander v. Russell, 699 S.W.2d 209, 210 (Tex.1985) (requiring record in SAPCR cases to “show that the court with continuing and exclusive jurisdiction was actually the court which exercised jurisdiction”). Accordingly, we determine that Judge Rynd was acting on behalf of the 309th District Court when he dismissed Celestine’s petition for adoption.

Continuing and Exclusive Jurisdiction

Having determined that Judge Rynd issued the August 25, 2008 order dismissing Celestine’s petition on behalf of the 309th District Court, we must now determine whether the 309th had jurisdiction over the matter. As a district court in Harris County, the 309th ordinarily has jurisdiction over adoption proceedings. See Tex. Const, art. V, § 8 (“District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.”); Tex. Gov’t Code Ann. § 24.601(b) (Vernon 2004) (stating that “family district courts” have primary responsibility for cases involving family law matters, including adoptions and other suits affecting parent-child relationship); Tex. Gov’t Code Ann. §§ 24.607, 24.617, 24.621 (Vernon 2004) (identifying 309th and 313th as family district courts); see also Tex. Gov’t Code Ann. § 24.601(a) (Vernon 2004) (stating that family district court’s “jurisdiction is concurrent with that of other district courts in the county in which it is located”).

The question before this Court now is whether the 313th District Court’s exclusive and continuing jurisdiction over the children deprived the 309th District Court of jurisdiction in this particular case, as Celestine contends. Although this is a matter of first impression for this Court, we note that the other courts of appeals that have already addressed this issue disagree as to whether the Family Code’s continuing and exclusive jurisdiction provision is truly jurisdictional or merely a matter of dominant jurisdiction, more closely akin to the rules of venue. Compare Ramsey v. Ramsey, 19 S.W.3d 548, 551-56 (Tex.App.-Austin 2000, no pet.) (conservatorship provisions of divorce decree rendered by different court from one that had rendered earlier SAPCR order were not void and thus not vulnerable to collateral attack) with In re Aguilera, 37 S.W.3d 43, 49, 52-53 (Tex.App.-El Paso 2000, ong. proceeding) (stating that concept is truly jurisdictional; holding order issued by one district court void for want of jurisdiction when another district court in same county had continuing and exclusive jurisdiction over matter).

The Fort Worth Court of Appeals addressed a similar issue in Carroll v. Couch, 624 S.W.2d 398 (Tex.App.-Fort Worth 1981, no writ). Although the court of appeals in Can-oil never expressly reached the ‘void’ versus ‘voidable’ issue because the appellant challenged the order on direct appeal rather than by collateral attack, the court’s analysis suggests that the court would be likely to agree with the El Paso Court of Appeals’ conclusion that such orders are void. In Carroll, the court of appeals reversed a Wichita County court’s judgment terminating a father’s parental rights after the court of appeals determined that a Tarrant County court had continuing and exclusive jurisdiction over the children by virtue of a divoree decree it had issued years earlier. See id. at 398-99. The court of appeals also determined that while the Tarrant County court was required to transfer the case to the Wichita County court if requested to do so, because the children resided in Wichita County at the time the case was filed, no request for transfer was ever made. See id. As a result, the matter was never transferred to the Wichita County court. See id. The court of appeals further reasoned that because the Tarrant County court remained the court of continuing and exclusive jurisdiction, the Wichita County court did not have jurisdiction in the case when it issued the order terminating the father’s parental rights. See id. at 399.

After reviewing the cases and arguments supporting both sides of the issue, we determine that the Family Code’s continuing and exclusive jurisdiction provision is a matter of true jurisdiction. Thus, when one court has continuing and exclusive jurisdiction over a matter, any order or judgment issued by another court pertaining to the same matter is void. This position best comports with the legislative philosophy behind the Family Code’s exclusive and continuing jurisdiction provisions, which have been described as follows:

Recognizing the need to commit the decision of all controversies that directly affect the welfare of particular children to a single court, the legislature enacted section [155.001] providing for continuing jurisdiction. Before the passage of section [155.001], conflicts between courts of parallel jurisdiction had led to multiple suits concerning the proper disposition of issues affecting children. Consolidation of the various suits into one suit affecting the parent-child relationship and investing only one court with power to rule on issues affecting the child provides an effective way to give courts access to more information and leaves them wide latitude in dealing with the best interests of the child.

In re Miller, 583 S.W.2d 872, 873 (Tex.Civ.App.-Dallas 1979, no writ); see also Trader v. Dear, 565 S.W.2d 233, 235 (Tex.1978) (“The Legislature by enacting the Family Code adopted a scheme for handling parent-child matters in a manner that avoids forum shopping, races to the courthouse, child snatching, and the harassment of a parent by the other parent’s filing suits in random courts”); In re Garza, 981 S.W.2d at 442 (J. Rickoff, concurring) (“Before the Legislature enacted the continuing, exclusive jurisdiction provisions, suits affecting one child were decided by various judges in various courts, with the effect that ‘[j]udges passing on some facet of a child’s welfare were cast into the position of a blind man touching and describing an elephant. [Investing only one court with power to rule on issues affecting the child was predicted to be an effective way to give courts access to more information and leave them the widest latitude in dealing with the child’s best interests.’ ”) (citations omitted). Accordingly, we determine that the 309th District Court did not have jurisdiction when it dismissed Celestine’s petition for adoption because the 313th District Court had continuing and exclusive jurisdiction over the children. Thus, the August 25, 2008 order attempting to dismiss Celestine’s petition is void.

Standing

This brings us to the October 1, 2008 order issued by Associate Judge Molder dismissing Celestine’s adoption petition with prejudice. Before we can delve into the merits of Celestine’s arguments, however, we must first address yet another preliminary matter: Celestine’s standing to file the petition for adoption.

DFPS contends that Celestine did not have standing to file her petition for adoption pursuant to section 102.006. If DFPS is correct, and Celestine does not have standing, then the trial court’s dismissal of her petition was proper. See In re C.M.C., 192 S.W.3d 866, 870 (Tex.App.-Texarkana 2006, no pet.). Section 102.006, entitled “Limitations on Standing,” provides in pertinent part that if the parent-child relationship between the child and every living parent of the child has been terminated, an original suit may not be filed by “a family member or relative by blood, adoption, or marriage of either a former parent whose parent-child relationship has been terminated or of the father of the child.” Tex. Fam.Code Ann. § 102.006(a)(8) (Vernon 2008). These limitations, however, do not apply if the petitioner “has a continuing right to possession of or access to the child under an existing court order” or “has the consent of the child’s managing conservator, guardian, or legal custodian to bring the suit.” Tex. Fam.Code Ann. § 102.006(b)(1)-(2) (Vernon 2008).

In the present case, the parental rights of all of the children’s parents were terminated on August 29, 2006. Celestine, who claims to be related to at least one parent of two or more of the children, filed an original petition seeking to adopt all four of the children. Although DFPS had placed the children with Celestine while the termination proceeding was pending, it is undisputed that the children were removed from Celestine’s home in December 2006 and that Celestine did not have a continuing right to possession of or access to the children under a court order at the time she filed her original petition for adoption in May 2007. It is also undisputed that Celestine did not have the consent of the children’s managing conservator, DFPS, to file this petition for adoption. Thus, under a plain reading of section 102.006, Cel-estine does not have standing to initiate a suit for adoption, at least with respect the children to whom she is related. See Tex. Fam.Code Ann. § 102.006(a)(8).

The nature and existence of Celestine’s familial relationship with respect to each of the four children, however, cannot be determined from the appellate record. Accordingly, we are unable to determine whether Celestine actually has standing to file her petition. However, even if we assume that Celestine has standing with respect to one or more of the children, the trial court’s dismissal of her petition for adoption would still be proper. See generally Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.1995) (assuming that petitioner had standing and affirming summary judgment against petitioner); see also O’Quinn v. State Bar of Tex., 763 S.W.2d 397, 403 (Tex.1988) (assuming that party had standing in order to decide that challenge lacked merit).

MERITS OF DISMISSAL

On appeal, Celestine raises three challenges to the dismissal of her petition. Specifically, Celestine contends that the trial court committed reversible error (1) by allowing the ad litem to present an oral motion to dismiss her petition for adoption in violation of Texas Rule of Civil Procedure 90; (2) by ruling that the child must reside with the prospective adoptive parent for six months prior to adoption pursuant to section 162.001, when the applicable six-month requirement was actually set forth by section 162.009; and (3) by ruling that it would not grant a hearing pursuant to section 162.010 to determine whether or not DFPS was withholding its consent to the adoption.

In her first issue, Celestine alleges that the trial court committed reversible error by allowing the ad litem to present an oral motion to dismiss her petition for adoption in violation of Texas Rule of Civil Procedure 90. See Tex.R. Civ. P. 90 (“Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge in the trial court before the ... judgment is signed, shall be deemed to have been waived by the party seeking reversal on such account....”) The ad li-tem’s argument, however, was that, having acknowledged that she did not meet a statutory six-month residency requirement, Celestine was not eligible to adopt the children. The ad litem never alleged that Celestine failed to plead the six-month requirement, nor did he allege the existence of any defect, omission, or fault with respect to Celestine’s pleadings. Accordingly, we conclude that the ad litem was not raising a pleading defect in his motion, and therefore he was not required to raise his challenge in writing pursuant to Texas Rule of Civil Procedure 90.

We overrule Celestine’s first issue.

In her second and third issues, Celestine argues that the trial court committed reversible error when it (1) ruled that a child must reside with the prospective adoptive parent for six months prior to the adoption pursuant to section 162.001, when the applicable six-month requirement was actually set forth by section 162.009, and (2) denied her request for a hearing pursuant to section 162.010 because it would not find that DFPS was withholding its consent without good cause. Any statements the trial court made during the hearing, however, are irrelevant for purposes of our review of the propriety of the court’s dismissal of Celestine’s petition.

Regardless of what the trial court may have said, or what the parties may have argued at the hearing, the trial court did not prepare any findings of fact or conclusions of law in this case, nor did it specify which ground it was relying upon when it ordered the dismissal of Celes-tine’s adoption petition. See In re W.E.R., 669 S.W.2d 716, 716 (Tex.1984); Richardson v. Johnson & Higgins of Tex., Inc., 905 S.W.2d 9, 11 (Tex.App.-Houston [1st Dist.] 1995, writ denied). In such cases, the judgment of the trial court implies all necessary fact findings in support of the judgment, and we will affirm the judgment of the trial court if it can be upheld on any legal theory that finds support in the evidence. See In re W.E.R., 669 S.W.2d at 717. In determining whether some evidence supports the judgment and the implied findings of fact, “it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.” Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950) (quoting Austin v. Cochran, 2 S.W.2d 831, 832 (Tex.Comm’n App.1928)). Accordingly, we may affirm the judgment if there is at least some evidence in the record supporting dismissal of Celestine’s petition under either section 162.009 or section 162.010, regardless of any oral statements made by the trial court judge. See In re W.E.R., 669 S.W.2d at 716 (stating that trial court judges oral statements may not be considered as substitute for findings of fact or conclusions of law).

The trial court must grant an adoption if it finds that the requirements for adoption have been met and the adoption is in the best interests of the child. See Tex. FaM. Code Ann. § 162.016(b) (Vernon 2008). Section 162.009 (“Residence with Petitioner”) and section 162.010 (“Consent Required”) are two such statutory prerequisites. See Tex. FamCode Ann. §§ 162.009, 162.010 (Vernon 2008). Pursuant to section 162.009(a), a court may not grant an adoption until the child has resided with the petitioner for at least six months. See Tex. Fam.Code Ann. § 162.009(a). On the request of the petitioner, the court may, however, waive this six-month requirement if it finds that waiver is in the child’s best interest. See Tex. Fam.Code Ann. § 162.009(b). Celestine alleges that because section 162.009(b) allows the trial court to waive the six-month requirement if it finds that waiver is in the child’s best interest, she was therefore entitled to an opportunity to^ present evidence and be heard on the issue of whether waiver was indeed in the children’s best interest. Although she has not directed us to any legal authority supporting her position, we will nonetheless address Celestine’s argument in the interests of justice and judicial economy. See generally Tex.R.App. P. 38.1(i); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.1994); Blanks v. Liberty Mut. Fire Ins. Co., 196 S.W.3d 451, 452 (Tex.App.-Dallas 2006, pet. denied).

We have been unable to locate any appellate court eases analyzing a trial court’s dismissal of a petition for adoption under section 162.009 or its predecessor section 14.06. However, due to the discretionary nature of the trial court’s determination and the similarity to review of best interests findings in other family law contexts, we conclude that the proper standard of review in such instances is abuse of discretion. See In re Jane Doe 2, 19 S.W.3d 278, 281-82 (Tex.2000); see also In re W.E.R., 669 S.W.2d at 716 (“The granting or denial of an adoption is based on a determination of the best interest of the child. The decision as to whether or not to grant an adoption is within the discretion of the trial court, which may not be set aside except for abuse.”) (citation omitted). A trial court does not abuse its discretion if some evidence of a substantive and probative character supports the trial court’s decision. In re Gonzalez, 993 S.W.2d 147, 155 (Tex.App.-San Antonio 1999, no pet.)

In the present case, the 313th District Court — the court of continuing and exclusive jurisdiction — issued the final decree terminating the parental rights of DDD’s, DJD’s, JID’s, and CRD’s biological parents and appointing the DFPS as the children’s sole managing conservator. During the course of the termination suit, the trial court was presented with evidence of the biological mother’s long history of drug abuse, as well as her extensive history with DFPS dating back to 1985. The trial court also learned that the agency had already successfully petitioned to have the biological mother’s parental rights terminated with regard to her three oldest children. The record also reflects that after DFPS removed the children from Celestine’s home in December 2006, the 313th District Court held a hearing to determine whether the removal was proper. During that hearing, both Celestine and DFPS had an opportunity to present evidence and argue their respective cases. The record also reflects that a caseworker testified during that hearing that she removed the children after she visited Celes-tine’s home and found the biological mother there. According to the caseworker, she had previously told Celestine that the biological mother could not have contact with the children. Celestine also testified at the hearing. According to Celestine, she was not at home when the caseworker visited, and her daughter had allowed the biological mother to see the children, not her. The children were never returned to Celestine, and remain in foster care. In light of these prior proceedings, we conclude that some evidence of a substantive and probative character supports the trial court’s implicit finding that waiver of the six-month requirement was not in the children’s best interest.

As for Celestine’s contention that she should have been allowed an opportunity to present additional evidence demonstrating why waiver of the residency requirement was in the children’s best interest, we conclude that this argument is without merit. First, unlike other provisions of Chapter 162 of the Family Code, section 162.009 does not expressly require the trial court to hold a hearing specifically on this issue before it determines whether waiver of the six-month requirement is in the children’s best interest. Compare Tex. Fam.Code Ann. § 162.009(b) with Tex. Fam.Code ANN. § 162.010(a) (requiring trial court to hold hearing to determine whether managing conservator is refusing or has revoked its consent to the adoption without good cause). Second, it is apparent from the record that the October 2008 hearing was not the first time Celestine’s fitness to care for the children was called into question. The trial court had already heard substantial testimony regarding the reasons why DFPS removed the children from Celestine’s home in December 2006. During that hearing Celestine had ample opportunities to present her side of the story and argue why the children should be returned to her care — a factor which necessarily implicates the overriding goal in SAPCR cases, the best interest of the children involved. Celestine is now asking for yet another opportunity to argue her case. We see no reason why Celestine should be allowed to have yet another bite at the proverbial apple.

Having determined that the trial court’s dismissal of Celestine’s petition was proper under section 162.009, we need not address whether the trial court would also have been correct in dismissing her petition under section 162.010.

We overrule Celestine’s second and third issues.

DISMISSAL WITH PREJUDICE

Celestine also challenges the trial court’s dismissal of her petition with prejudice. Celestine, however, does not allege any facts or direct us to any supporting legal authority or evidence in the record which would allow us to conclude that dismissal with prejudice was improper in her case.

Having concluded that the trial court’s dismissal of Celestine’s petition was proper under section 162.009, we must now determine whether a dismissal with prejudice was proper. Dismissal with prejudice constitutes an adjudication on the merits and operates as if the case had been fully tried and decided. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex.1991). Here, the trial court made an implicit finding that waiver of section 162.009’s six-month residency requirement was not in the children’s best interest. A finding as to the “best interests” of a child goes to the very heart of the merits in any adoption proceeding. See Tex. Fam.Code Ann. § 162.016(b) (Vernon 2008) (stating that finding that adoption is in best interests of child is prerequisite to granting of any petition for adoption). Accordingly, the trial court’s dismissal of Celestine’s petition under section 162.009 was a dismissal on the merits, and, therefore, subject to dismissal with prejudice.

We overrule Celestine’s challenge to the dismissal of her petition with prejudice.

DENIAL OF MOTION FOR NEW TRIAL

In her notice of appeal, Celestine states that she is appealing both the dismissal of her petition with prejudice, and the trial court’s denial of her motion for new trial. Celestine, however, does not argue on appeal that the trial court erred, or even abused its discretion, when it denied her motion for new trial. She has not provided us with any authority on this issue. We will nonetheless address Celestine’s argument in the interests of judicial economy and justice. See generally Tex.R.App. P. 38.1(i); Fredonia State Bank, 881 S.W.2d at 284; Blanks, 196 S.W.3d at 452.

We review a trial court’s denial of a motion for new trial for abuse of discretion. Dir., State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgrnt., L.P., 164 S.W.3d 379, 382 (Tex.2005). In her motion to the trial court, Celestine argued that she was entitled to a new trial because the court’s legal basis for dismissal was erroneous. Having determined that the trial court did not abuse its discretion — much less commit reversible error — when it dismissed Celestine’s petition with prejudice under section 162.009, we cannot say that the trial court abused its discretion when it denied Celestine’s motion for new trial.

We overrule Celestine’s challenge to the denial of her motion for new trial.

CONCLUSION

We affirm the judgment of the trial court.

      . According to the affidavit attached to DFPS's Original Petition for Protection, the children's biological mother — a long-time crack cocaine abuser — had an extensive history with the agency dating back to 1985. Over the course of the previous twenty years, the agency had successfully petitioned to have the mother’s parental rights terminated with regard to her three oldest children — one of the children had sustained multiple bone fractures prior to his removal from the mother's care. Apparently undeterred, the mother proceeded to have four more children — DDD, DJD, JID, and CRD. Although DFPS became involved with the family in 2004 when JID tested positive for cocaine at the time of his birth, the children were allowed to remain in the care of the mother’s "long-term paramour," Nathaniel Davis. When the biological mother tested positive for cocaine after the birth of her seventh child in 2006, DFPS removed the four remaining children from her care and successfully petitioned to have her parental rights terminated.

      . The record indicates that Celestine objected to the children's removal from her home and the 313th District Court held a hearing on the issue. During that hearing, a caseworker testified that she removed the children after she visited Celestine’s home and found the biological mother there. The caseworker testified that she had previously told Celestine that tire biological mother could not have contact with the children. Celestine claimed that she was not at home when the caseworker visited and that her daughter had allowed the biological mother to see the children, not her.

      . Despite having claimed to be a maternal aunt to two of the children in her petition, Celestine’s brief refers to her as the "paternal aunt of three of the four children”, the "maternal aunt” and the "paternal grandmother.” Although it is certainly not dispositive with regard to her relationship to the children, the final termination decree lists Clarence Celes-tine as the biological father of the two youngest children — JID and CRD.

      . See Tex. Fam.Code Ann. § 102.013(b) (Vernon 2008) (requiring clerk to assign new docket number to any petition for adoption).

      . All of Celestine's amended petitions were combined with a request from a second petitioner, Nathaniel Davis, to terminate “child support” payments he was making to an unidentified person, presumably for the children’s benefit. Other than stating that Davis was paying child support for the children, neither amended petition identified Davis’ relationship to the children, if any. An affidavit attached to the Original Petition for Protection filed in the termination case, however, indicates that the children had lived with Davis, the children's biological mother’s "long-term paramour.” According to DFPS, Celestine later "orally abandoned [her] pleadings that relate to Nathaniel Davis and child support.” Nathaniel Davis is not a party to this appeal.

      . Although evidence in the record indicates that a hearing on DFPS's motion to strike was held, a copy of the transcript from that hearing is not included in the appellate record. The record indicates that the trial court denied DFPS's motion because it found that Celestine was a person who had “substantial past contact with the children] sufficient to warrant standing” to petition for their adoption, by virtue of the fact that the children had resided with her for five and a half months before they were removed by DFPS. See Tex. Fam.Code Ann. § 102.005(5) (Vernon Supp. 2009).

      . Celestine also (mistakenly) argues that a lone docket entry is the only evidence the 309th District Court dismissed her petition; according to Celestine, the 309th never signed an order dismissing her petition. The presiding judge of the 309th District Court did indeed sign an order dismissing Celestine's petition. Copies of the order are included in the clerk's record on appeal.

      . Although the Reporter’s Record indicates that the hearing was held on October 14, 2008, appellant's motion for new trial (filed October 7, 2008), which was filed as a direct result of the final hearing, indicates that the hearing was actually held on October 1, 2008.

      . The reporter’s record suggests that the trial did not go forward on October 1, 2008 because DFPS informed Associate Judge Molder that it needed more time to properly notice to all necessary parties and it requested a new trial setting in November or December.

      . Celestine does not challenge DFPS's refusal to consent to standing under section 102.006. She does, however, challenge DFPS’s refusal to consent to the adoption under section 162.010. Pursuant to section 162.010, the children’s managing conservator, DFPS, must file a written consent to the adoption. Tex. Fam.Code Ann. § 162.010(a) (Vernon 2008). The court, however, may waive the consent requirement if it finds that the consent has been refused or revoked without good cause. Id. Furthermore, a "hearing on the issue of consent shall be conducted by the court without a jury.” Id. Although section 162.010 requires the court to hold a hearing to determine whether DFPS has refused or revoked its consent to the adoption without good cause, section 102.006 contains no such provisions with respect to standing. Cf. In re A.M. and B.M., 312 S.W.3d 76, 83-85 (Tex.App.-San Antonio 2010, pet. filed) (refusing to import section 162.010's consent to adoption safeguards into section 102.006; holding trial court did not err in refusing to hear evidence regarding whether DFPS wrongfully withheld consent under section 102.006, because no hearing was required by that section and DFPS's motivations were irrelevant with respect to issue of standing).


source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    Michelle D. SIMIEN, Appellant, v. UNIFUND CCR PARTNERS, Appellee.
    No. 01-08-00593-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 15, 2010.

      Richard Tomlinson, Law Office of Richard Tomlinson, Houston, TX, for Appellant.
    Andrew E. Lemanski, Brian E. Staley, James Nace Hull, Hull & Associates, P.C., Houston, TX, for Appellee.
    Panel consists of Justices KEYES, ALCALA, and HANKS.
   OPINION ON REHEARING

ELSA ALCALA, Justice.

Appellant, Michelle D. Simien, has filed a motion for en banc reconsideration of our opinion issued on April 15, 2010. We withdraw our opinion and judgment of April 15, 2010, and substitute this opinion and judgment in their place. Because we issue a new opinion, Simien’s motion for en banc reconsideration of our prior opinion is moot. See Richardsotv-Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 472 (Tex.App.-Houston [1st Dist.] 2006, pet. denied).

In this lawsuit to collect credit card debt, Simien appeals a judgment following a bench trial in favor of Unifund CCR Partners (hereafter “Unifund”). In five issues, Simien challenges the legal and factual sufficiency of the evidence and contends the trial court erred by admitting hearsay documents, excluding deposition evidence, awarding attorney’s fees, and awarding prejudgment interest. We conclude the trial court properly admitted evidence, the evidence is legally sufficient to support the award of damages, and the trial court properly awarded attorney’s fees and prejudgment interest. We therefore affirm.

Background

Simien opened a credit card account with Citibank. The credit card allowed Simien to make charges and receive cash advances, which she was obligated to repay under the terms of her agreement with Citibank. Simien received monthly statements showing her account expenditures, payments, and monthly balances. Simien made no attempts to dispute any information in the monthly statements or the amount showing on the account. Sim-ien failed to pay the amount showing as of December 18, 2002, which was $10,540.51. Unifund purchased the debt on Simien’s credit card account from Citibank on November 29, 2005.

On September 12, 2007, Unifund filed suit against Simien based on Simien’s failure to pay the balance on the account. Unifund sought $34,600.08 in unpaid principal and interest. In her answers to requests for admission, Simien admitted that she breached the credit card agreement, but she did not admit the damages or the interest rate alleged by Unifund were accurate.

Over Simien’s objection at trial, the trial court admitted a business record affidavit offered by Unifund that was signed by one of its employees, Joseph Lutz. Unifund attached documents to the affidavit, including a Unifund statement; an Assignment to Unifund from Citibank; three Citibank monthly statements; and a Citibank Card Agreement. Unifund also attached an affidavit from Kim Kenney. Neither affidavit included any reference to an explicit interest rate that would show how Simien’s principal debt of $10,540.29 grew to. $34,600.08 by July 23, 2007. Unifund’s attorney also presented live testimony in support of the reasonableness and necessity of the attorney’s fees sought. Unifund offered no other evidence.

In support of her objection to the Lutz affidavit, Simien offered portions of a deposition given by Lutz at a previous trial concerning an attempt to collect a different debt from a different debtor. The trial court excluded the deposition, ruling Lutz’s testimony in the prior case was irrelevant and inadmissible. Simien did not personally appear at the trial. Sim-ien’s attorney did not introduce any evidence at the trial.

The trial court’s judgment awards Uni-fund $34,600.08 in damages and $6,000 in attorney’s fees. Following the trial, the court made findings of fact and conclusions of law.

Admission of Evidence

In her first two issues, Simien asserts that the trial court erred by (1) admitting hearsay documents and (2) excluding a deposition.

A. Standard of Review

Evidentiary rulings are committed to the trial court’s sound discretion. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007). We review a trial court’s decision to admit or exclude evidence for an abuse of that discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex.2005). A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999). We must uphold the trial court’s evidentia-ry ruling if there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998); Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307, 317 (Tex.App.-Houston [1st Dist.] 2004, pet. denied).

B. Admission of Business Records Affidavit

Simien contends the affidavit by which Unifund sought to authenticate its business records under the hearsay exception is inadequate, and the trial court, therefore, erred by admitting hearsay. In her motion for rehearing, Simien contends the business records do not meet the test for admissibility of third-party documents stated by this Court in Bell v. State, 176 S.W.3d 90 (Tex.App.-Houston [1st Dist.] 2004, no pet.).

1. The Rules of Evidence

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.R. Evid. 801(d). The proponent of hearsay has the burden of showing that the testimony fits within an exception to the general rule prohibiting the admission of hearsay evidence. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n. 5 (Tex.2004).

Rule 803(6) of the Texas Rules of Evidence provides the following exception to the hearsay rule for business records:

A ... record ... made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Tex.R. Evid. 803(6); see In re E.A.K., 192 S.W.3d 133, 141 (Tex.App.-Houston [14th Dist.] 2006, pet. denied).

The predicate for admission of the business records may be established “by affidavit that complies with Rule 902(10).” Tex.R. Evid. 803(6). Rule 902(10) provides that records “shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7).” Tex.R. Evid. 902(10)(a).

Rule 902(10) provides a form for the affidavit and states the affidavit “shall be sufficient if it follows this form though this form shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice.... ” Tex.R. Evid. 902(10)(b). The form specified by the rule is as follows:

My name is _, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:
I am the custodian of the records of _Attached hereto are __ pages of records from_These said__pages of records are kept by _in the regular course of business, and it was the regular course of business of __for an employee or representative of_, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original.

Id.

2. Admissibility of Third-Party Documents

A document authored or created by a third party may be admissible as business records of a different business if: (a) the document is incorporated and kept in the course of the testifying witness’s business; (b) that business typically relies upon the accuracy of the contents of the document; and (c) the circumstances otherwise indicate the trustworthiness of the document. Bell, 176 S.W.3d at 92 (citing Tex.R. Evid. 803(6); Harris v. State, 846 S.W.2d 960, 963-64 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd)). Both Bell and Harris rely on federal authority interpreting Federal Rule of Evidence 803(6). See Guevara v. Ferrer, 2A1 S.W.3d 662, 667 n. 3 (Tex.2007) (stating that considering federal precedent concerning rules of evidence is appropriate); see also, e.g., Air Land Forwarders, Inc. v. U.S., 172 F.3d 1338, 1343 (Fed.Cir.1999) (applying same test as articulated in Bell, 176 S.W.3d at 93).

In determining whether the trial court properly admitted the Lutz affidavit, we apply the three factors in Bell. See Bell, 176 S.W.3d at 92. The Lutz affidavit states,

The affiant is the designated agent of Unifund CCR partners (Plaintiff) in the above entitled and numbered cause, and that in such capacity is authorized to make this affidavit on Plaintiffs behalf. That the affiant has reviewed the file in this matter and upon review of the file has personal knowledge of the facts set forth in this affidavit and is not disqualified from making this affidavit or giving testimony herein.
That affiant is a designated agent and has personal knowledge of the books and records of the Plaintiff concerning this claim against Defendant, MICHELLE D. SIMIEN.
The attached documents are kept by Plaintiff in the regular course of its business as permanent records of the company and it was the regular course of business for an employee with personal knowledge of the act, event, or condition recorded to make the memorandum or record, or to transmit the information thereof to be completed in such attached memorandum or record; and memorandum or record was made at or near the time of the act, event, or condition recorded or indicated in said record, or reasonably soon thereafter.
The Defendant entered into an agreement allowing Defendant to receive cash advances and/or purchase goods and services at different places which honored the credit cards as issued.
That the attached account [identified by number] is the original, true and correct account or an exact duplicate thereof of Defendant, MICHELLE D. SIMIEN, which has been maintained in files under my supervision and control.
In accordance with the agreement, Defendant promised to pay for the account [identified by number]. The Defendant has failed and continues to fail to make payments due on the account. There is presently due, owing and unpaid by the Defendant, MICHELLE D. SIMIEN, the sum of $34,600.08, as of July 23, 2007. Within the affiant’s personal knowledge, this amount is just and true, due and owing, and all just and lawful offsets, payments and credits have been allowed.

a. Incorporated and Kept in the Course of Business

The first factor required by Bell is that the document be incorporated by the testifying witness’s business. 176 S.W.3d at 92. Simien contends that Unifund did not present any evidence to support a conclusion that Unifund adopted the records of Citibank. In Bell, the witness testified that the third-party documents were kept in the regular course of the witness’s business. Id. at 93. The court in Bell also heard evidence from the sponsoring witness, who stated that the letters were received from the first business at or near the time of the trailer’s disappearance, the letters were received in response to the second business’s communications to the first business concerning the second business, and the second business relied on the letters to show that its liability for the missing tractor had been settled. Id. Like Bell, Lutz states the documents received from Citibank were “kept by [Unifund] in the regular course of its business as permanent records of the company.” Also similar to the affidavit in Bell, Unifund’s adoption of the records is shown by the Lutz affidavit’s reference to the Simien records by stating that they have “been maintained in files under [his] supervision and control.” Lutz also specifies that he has reviewed the file, is the designated agent for the file, and that he has personal knowledge of the books and records concerning Simien. Because Lutz’s affidavit sufficiently shows Unifund incorporated the Citibank records, the first prong of Bell is met. See id.

Simien attempts to distinguish this case from two other cases that have held third-party documents admissible under the business records exception. Simien contends that in GT & MC, Inc. v. Texas City Refining, Inc. and Cockrell v. Republic Mortgage Insurance Co. additional evidence that is not present in this case was presented to show the business incorporated the third-party documents. In GT, the witness proving up the business records exception testified that the third-party documents were marked and processed by the receiving business, including indicating the date of receipt, the identity of the recipient, whether the invoices were approved for payment, and who approved the payment. GT & MC, Inc. v. Tex. City Ref., Inc., 822 S.W.2d 252, 258 (Tex.App.Houston [1st Dist.] 1991, writ denied). This Court held the evidence was sufficient to show the records had been made by the receiving business, despite the fact that the documents were initially created by a third party. Id. In Cockrell, there was additional testimony that the third-party documents formed the basis of the mortgage insurer’s payment to the lender. Cockrell v. Republic Mortgage Ins. Co., 817 S.W.2d 106, 112 (Tex.App.-Dallas 1991, no writ). Simien contends that this additional evidence is not present in this case and therefore the trial court erred by admitting the Citibank records. Both GT & MC and Cockrell were issued before Bell. Neither case applies the three-step analysis employed by Bell. Neither case holds that the additional evidence Simien identifies is the only means of admitting third-party documents under the business records exception. As noted above, the evidence in this case is similar to the evidence found sufficient in Bell to show the business records had been incorporated.

b. Reliance on Accuracy of Documents

The second factor in Bell is that the business incorporating the third-party document relies on the accuracy of the document. Bell, 176 S.W.3d at 92. This can be shown in a number of different ways. In Bell, the third-party documents at issue were letters from the business’s insurer stating the business’s liability on a claim had been settled. Id. at 93. Because the business was liable to the party with whom the insurer settled, this Court found the business relied on the documents to show the claim had been resolved. Id. at 94; see also Brawner v. Allstate Indem. Co., 591 F.3d 984, 985, 987-88 (8th Cir.2010) (holding mortgage company’s evidence that documents informed mortgage company it could begin foreclosure, which mortgage company did, showed mortgage company relied on documents); Air Land Forwarders, Inc., 172 F.3d at 1341-43 (holding evidence that military used records to decide how much to reimburse members showed reliance by military on accuracy of records).

We note that some courts have stated that a document created by one business may become the records of a second business if the second business “determines the accuracy of the information generated by the first business.” Martinez v. Midland Credit Mgmt., Inc., 250 S.W.3d 481, 485 (Tex.App.-El Paso 2008, no pet.); see also Duncan Dev., Inc. v. Haney, 634 S.W.2d 811, 812-13 (Tex.1982). However, these cases do not hold that verification of accuracy is the sole means of admitting third-party documents under the business records exception. For example, in Duncan Development, Inc., the records at issue were invoices submitted to Duncan from its subcontractors. 634 S.W.2d at 812. The Texas supreme court held that the invoices were admissible as Duncan’s records because “Duncan utilized a reliable method of confirming the accuracy of the submitted invoices through its site supervisors who had personal knowledge of activities at its construction sites.” Id. at 813. As noted above, Bell requires reliance on the accuracy of the document, which is a slightly different standard than proof that someone actually verified the accuracy of document.

Although the second business’s confirmation of the accuracy of the first business’s records is one way to determine the records are admissible, another way is to show that the second business reasonably relied on the accuracy of the first business’s records as part of the three-step test articulated in Bell. See Bell, 176 S.W.3d at 92. Here, Simien is correct that the Lutz affidavit fails to state that he confirmed the accuracy of the records, but that is not required under Bell. See Bell, 176 S.W.3d at 92. Unifund presented evidence that it reasonably relied on the accuracy of Simien’s account from Citibank. Lutz’s affidavit states that he reviewed the file, he is the designated agent for the file, he has personal knowledge of the books and records of Simien concerning this claim, he has maintained her files under his supervision and control, and that Sim-ien’s account remains unpaid in the amount stated in his affidavit. See id. at 93. Similar to the documents in Bell that showed a settled claim, here Unifund relied on the accuracy of the documents to determine the existence and value of Sim-ien’s debt that is now due to Unifund. See id.

We hold the second factor in Bell is satisfied because the evidence shows Uni-fund reasonably relied upon the accuracy of the contents of the documents it received from Citibank. See id.; see also Brawner, 591 F.3d at 987-88; Air Land Forwarders, Inc., 172 F.3d at 1341-43.

c. Circumstances Indicating Trustworthiness of Document

The final factor of Bell is that the circumstances indicate the trustworthiness of the third-party document. 176 S.W.3d at 92. In Harris v. State, cited with approval by Bell, the third-party document was a manufacturer’s certificate of origin created by General Motors and received by a local automobile dealership. Harris v. State, 846 S.W.2d 960, 963 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). This Court held the certificate possessed a high-degree of trustworthiness because “[a]utomo-bile manufacturers have a great interest in assuring that the [vehicle identification numbers] on their products correspond with the appropriate invoices, for without careful, reliable identification procedures their business would greatly suffer or even fail.... ” Id. (quoting U.S. v. Hines, 564 F.2d 925, 928 (10th Cir.1977), aff'd, 434 U.S. 1022, 98 S.Ct. 748, 54 L.Ed.2d 770 (1978)). In Air Land Forwarders, Inc., the court found the third-party documents had “clear indicia of trustworthiness” because the service members were subject to criminal prosecution for submitting a false document. 172 F.3d at 1343-44.

Here, like General Motors, Citibank must keep careful records of its customer’s credit card debt, otherwise its “business would greatly suffer or even fail.” See Harris, 846 S.W.2d at 963. Also, failure to keep accurate records could result in criminal or civil penalties. See Tex. Fin.Code Ann. § 392.304(a)(8) (Vernon 2006) (prohibiting misrepresentation of amount of consumer debt); Tex. Fin.Code Ann. § 392.402 (Vernon 2006) (providing criminal penalties for violation of Chapter 392 of Texas Finance Code); see also Fair Debt Collection Practices Act, 15 U.S.C.S. § 1692e(2)(a) (LexisNexis 2005) (prohibiting misrepresentation of amount of debt); 15 U.S.C.S § 1692l (LexisNexis 2005) (providing for administrative enforcement of Fair Debt Collection Practices Act). These circumstances provide an indication of trustworthiness of the Citibank documents. See Harris, 846 S.W.2d at 963; see also Air Land Forwarders, Inc., 172 F.3d 1338 at 1343-44.

In her first issue, Simien asserts Lutz’s affidavit lacks trustworthiness because Lutz avers that records created by Citibank were records created by Unifund. Simien contends the affidavit does not meet the requirements of 803(6), which states, “the source of information or the method or circumstances of preparation [must not] indicate lack of trustworthiness.” See Tex.R. Evid. 803(6). As discussed above, a record may be “made” by a business although it was initially authored by a different business. See GT & MC, Inc., 822 S.W.2d at 258. Simien’s contention, therefore, lacks merit. Simien does not expressly assert that the underlying documents are not trustworthy; rather, she asserts that Lutz’s affidavit contains inaccurate statements. To the extent Simien is attacking Lutz’s credibility, we note that the trier of fact is the sole judge of the credibility of a witness and the weight to give his testimony. See Georgia-Pacific Corp. v. Stephens, 239 S.W.3d 304, 308 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).

Within her first issue, Simien also challenges the circumstances indicating the trustworthiness of the documents by contending Lutz is not qualified to testify about the Citibank documents because he did not state that he or anyone from Uni-fund knew of the events or conditions recorded in Citibank’s records or had knowledge of the manner in which Citibank prepared the documents. Personal knowledge of the record-keeping practices of the third-party is not required under the line of authority represented by Bell and federal precedent. See Bell, 176 S.W.3d at 92 (rejecting argument that third-party documents can only be admitted when witness from that third-party lays foundation for business records exception in addition to witness from incorporating business); see also Air Land Forwarders, Inc., 172 F.3d at 1343 (noting there is no requirement for first-hand knowledge of procedures used in original preparation of third-party documents when documents incorporated into records of another business, records were relied upon, and there were other indicia of reliability); Harris, 846 S.W.2d at 963-64 (rejecting argument that proponent of business record must prove personal knowledge of each person who made any notation in record).

Simien cites to two cases that state the witness laying the foundation for the admissibility of business records must have personal knowledge of the record-keeping practices of the business that created the documents. See Martinez, 250 S.W.3d at 485 (stating witness laying foundation for admission of business records obtained from third-party “must have personal knowledge of the manner in which the records were prepared”); Powell v. Vavro, McDonald, & Assocs., L.L.C., 136 S.W.3d 762, 765 (Tex.App.-Dallas 2004, no pet.) (holding business records obtained from third party inadmissible because incorporating business’s witness “was not a qualified witness to testify about the record keeping of another entity”). To the extent the opinions in Martinez and Powell conflict with the prior opinions of this Court and federal precedent concerning Rule 803(6), we decline to follow them. See Satterfield v. Crown Cork & Seal Co., 268 S.W.3d 190, 206 n. 17 (Tex.App.-Austin 2008, no pet.) (stating court of appeals not bound by decision of another court of appeals); Johnson v. Nacogdoches County Hosp. Dist., 109 S.W.3d 532, 536 (Tex.App.-Tyler 2001, pet. denied) (stating court of appeals not bound by decisions of sister court); Eubanks v. Mullin, 909 S.W.2d 574, 576 n. 1 (Tex.App.-Fort Worth 1995, no writ) (same) (citing Shook v. State, 156 Tex.Crim. 515, 244 S.W.2d 220, 221 (1951)).

Simien asserts that this Court’s decision conflicts with the Fourteenth Court of Appeals’ decision in Carmouche v. State, No. 14-03-00768-CR, 2004 WL 2851524 (Tex.App.-Houston [14th Dist.] Dec. 14, 2004, no pet.) (not designated for publication). In Carmouche, the records from Orthopedic Associates’ medical facility included business records from two other hospitals. Carmouche, 2004 WL 2851524 at *2. The sponsoring witness failed to mention the attached medical records in any way. Id. The court observed that the affidavit included only the “basic predicate” of Rule 803(6). Id. The court found that nothing in the affidavit met the test articulated by this Court in Bell in that it failed to show the attached records had been incorporad ed, were relied on by Orthopedic Associates, and the affidavit did not address trustworthiness. Id. Unlike Carmouche, here, Lutz’s affidavit includes more than the “basic predicate” of Rule 803(6). Lutz expressly references the documents attached to the affidavit, and, as we have explained above, includes facts discussing the contents of the attached documents. The decision in Carmouche is consistent with our holding here.

The primary concern in admitting records such as these is their reliability. Harris, 846 S.W.2d at 964 (citing Hines, 564 F.2d at 928). Simien does not attack the reliability of the records, but contends Unifund’s proof supporting the admission of the records is inadequate. Unifund presented evidence to the trial court that met the three factors in Bell. See 176 S.W.3d at 92. Therefore, the trial court properly admitted the Citibank records as the records of Unifund under the business records exception. We overrule Simien’s first issue.

C. Exclusion of Deposition

In her second issue, Simien contends the trial court improperly excluded deposition testimony given by Lutz at a previous trial. Simien contends the deposition is admissible as relevant evidence. Simien argues the evidence is relevant under Rule 401 because it has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” See Tex.R. Evid. 401. Simien also asserts the deposition is relevant under Rule 406 because it shows Lutz’s actions “on a particular occasion [were] in conformity with [his] habit” of unfamiliarity with third-party records. See Tex.R. Evid. 406. Simien claims the Lutz deposition casts doubt on the trustworthiness of the Citibank documents attached to the affidavit.

Determining admissibility of business records affidavits involves deciding whether “the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.” Tex.R. Evid. 803(6). Simien does not challenge the trustworthiness of the source of information or the preparation of the Citibank documents, and the Lutz deposition is silent about Citibank. The excluded excerpts of the Lutz deposition relate only to the credibility of Unifund’s employee, Lutz, on a different account several months prior to the events in question. The trial court did not abuse its discretion in excluding the Lutz deposition concerning a different case because that deposition does not pertain to Citibank and Simien never challenges the trustworthiness of the Citibank documents. See Associated Carriages, Inc. v. Int’l Bank of Commerce, 37 S.W.3d 69, 74 (Tex.App.-San Antonio 2000, pet. denied) (holding trial court’s exclusion of irrelevant evidence was not abuse of discretion). We overrule Simien’s second issue.

Sufficiency of Evidence

In her third issue, Simien contends the evidence is legally and factually insufficient to support many of the trial court’s findings of fact.

A. Standard of Review

“The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Legal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. If the evidence would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. Id. at 822. A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement. Id. Although the reviewing court must consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it, if the evidence allows only one inference, neither jurors nor the reviewing court may disregard it. Id.

In determining factual sufficiency, this Court weighs all the evidence, both supporting and conflicting, and may set the finding aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Comm’n of Contracts v. Arriba Ltd., 882 S.W.2d 576, 582 (Tex.App.-Houston [1st Dist.] 1994, no writ). In an appeal from a bench trial, we may not invade the fact-finding role of the trial court, who alone determines the credibility of the witnesses, the weight to give their testimony, and whether to accept or reject all or any part of that testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580-81 (Tex.App.-Houston [1st Dist.] 1997, pet. denied).

The essential elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of contract by the defendant; and (4) damages sustained as a result of the breach. Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 235-36 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (citing Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex.App.-Houston [1st Dist.] 2007, no pet.)).

B. Analysis

Simien contends that “if the business records attached to the Lutz affidavit are excluded, there remains no evidence to support findings of fact 1 through 5.” Having held that the trial court’s admission of the business records affidavit was proper, we overrule Simien’s challenges to findings of fact one, three, and five because those challenges are expressly conditioned on the exclusion of the business records. However, as addressed below, Simien does assert challenges to a portion of finding of fact number two and finding of fact number four that are not conditional.

Simien also makes a conditional challenge to the trial court’s conclusions of law one, two, four, five, and six. Simien states these conclusions of law “are invalid, because they are not supported by any facts if the documents attached to the Lutz affidavit are excluded.” Because we have determined the business records were properly admitted, we overrule this portion of Simien’s challenge to these conclusions of law.

The only challenges by Simien that are not conditioned upon the exclusion of the business records are that: (1) there is no evidence or insufficient evidence to support “that part of finding of fact number [two] in which the trial court found that the purchases made by Simien using the account ‘were at the agreed prices charged or at the reasonable market value;’ ” and (2) there is insufficient evidence to support any damage award over $10,540.29.

1. Finding of Fact Number Two

Assuming Simien is correct that the evidence is legally and factually insufficient to support a finding that Simien’s credit card purchases were “at the agreed prices charged or at the reasonable market value,” we must still affirm.

“[A]n appellate court will overrule a challenge to fact findings that underpin a legal conclusion or disposition when other fact findings that also support that legal conclusion or disposition go unchallenged.” Howeth Invs., Inc. v. City of Hedwig Village, 259 S.W.3d 877, 889 (Tex.App.-Houston [1st Dist.] 2008, pet. denied) (quoting Britton v. Tex. Dep’t of Crim. Justice, 95 S.W.3d 676, 682 (Tex.App.-Houston [1st Dist.] 2002, no pet.)). Here, Simien acknowledges the trial court’s findings of fact “appear to mirror the elements” of Unifund’s claims. However, whether Sim-ien paid “the agreed prices” or “the reasonable market value” when making purchases with her Citibank credit card is not an element of Unifund’s claim for breach of contract because the credit card agreement does not require payments only for goods purchased at agreed prices or the reasonable market value. The remaining findings of fact, which Simien only challenged conditionally, are sufficient to support the trial court’s conclusions of law and judgment for Unifund’s claim for breach of contract. See Howeth Investments, Inc., 259 S.W.3d at 889-90 (overruling appellate issue because unchallenged findings of fact supported trial court’s conclusions of law and judgment).

2. Damages

In finding of fact number four (and conclusion of law number one), the court stated, “Said account remains unpaid damaging [Unifund] in the amount of $34,600.08.” Simien asserts the evidence is insufficient to support an award “of any damages over $10,540.29.” Specifically, Simien contends,

[T]here is nothing in the record which explains how this account could accrue $24,059.79 in interests and fees between December 18, 2002, the date of the last tendered monthly statement, and May 16, 2008, the date of the judgment, so that damages could equal $34,600.08.... There is also insufficient evidence to support the application of any other interest rate from December 18, 2002 to May 16, 2008. All of the monthly statements reflect that there are different interest rates imposed.... Furthermore, none of the admitted records other than the three monthly statements set forth the applicable interest rate.

(Record citations omitted).

In his affidavit, Lutz states, “There is presently due, owing and unpaid by the Defendant, MICHELLE D. SIMIEN, the sum of $34,600.08, as of July 23, 2007.” Kenney similarly avers, “There is due and payable from MICHELLE D. SIMIEN ... the amount of $34600.08.” Simien presented no controverting evidence.

Lutz’s and Kenney’s affidavits are some evidence from which a reasonable fact-finder could determine that Simien owed $34,600.08 on her credit card account. See City of Keller, 168 S.W.3d at 827. Because no other evidence was admitted, in weighing all the evidence we conclude the finding of $34,600.08 in damages is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176. We hold the evidence is legally and factually sufficient to uphold the award for damages. We overrule Simien’s third issue.

Attorney’s Fees

In her fourth issue, Simien challenges the trial court’s award of attorney’s fees. Specifically, Simien asserts

If this Court holds that the documents attached to the Lutz business records affidavit were inadmissible, Unifund will not be able to prevail on any theory of liability nor can it recover any damages. Without prevailing on one of its causes of action and without recovering any damages, Unifund is not entitled to recover any attorney’s fees.

Because we hold the business records affidavit is admissible, we need not address this conditional challenge. We overrule Simien’s fourth issue.

Prejudgment Interest

In her fifth issue, Simien challenges the trial court’s award for prejudgment interest, asserting it amounts to a prohibited double recovery of damages. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 441 (Tex.1995). Simien states the trial court should not award prejudgment interest, calculated here at a rate of 5.25% from July 23, 2007 through May 16, 2008, the date of the judgment. The prejudgment interest is in addition to damages, which include interest on her principal credit card debt for defaulting on her payments. Simien contends this default interest rate is 21.846% from December 18, 2002, until May 16, 2008. Simien asserts the prejudgment and default interest overlap from July 2007 to May 2008, awarding a double recovery to Unifund.

The prejudgment interest and the credit card account interest are two separate interest rates for two separate time periods. The interest rate for defaulting on credit card payments applied to the principal debt of $10,540.51 from December 18, 2002 through July 23, 2007. On July 23, 2007, the business records affidavit calculates Simien’s debt to Unifund at $34,600.08. Therefore, before the trial court assessed any prejudgment interest, the damages had reached $34,600.08. The prejudgment interest was applied for the period of time after July 23, 2007. The trial court’s judgment expressly provides for prejudgment interest “at the rate of 5.25% per annum from July 23, 2007 until date of entry of this judgment.” Simien’s argument against prejudgment interest on appeal is not supported by the record. We hold there is no double recovery in this case because the interest allowed by the credit card did not overlap with the period of time for which the prejudgment interest was ordered. We overrule Simien’s fifth issue.

Conclusion

We affirm the judgment of the trial court.

      . In her motion for rehearing and en banc reconsideration, Simien contends the deposition is also admissible under Texas Rule of Evidence 806. See Tex.R. Evid. 806 (providing for impeachment of hearsay declarant). However, Simien raises this argument for the first time in her motion for rehearing. It is, therefore, waived. Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 885 (Tex.2001) (stating arguments not raised until motion for rehearing in court of appeals waived).

      . Findings of Fact one through five state,
      1. That [Unifund] and [Simien] entered into an account agreement.
      2. [Simien] did purchase goods and services at different places upon the account. Said purchases were at the agreed prices charged at the reasonable market value.
      3. [Simien] promised to pay for said account.
      4. Said account remains unpaid damaging [Unifund] in the amount of $34,600.08.
      5. By failing to pay for said account pursuant to the terms of the account agreement, [Simien] breached the account agreement.

      . Conclusions of Law one, two, four, five, and six state,
      1. Said account remains unpaid damaging [Unifund] in the amount of $34,600.08.
      2. Pursuant to the terms of the account agreement, [Simien] was also responsible for interest upon the indebtedness, as well as attorney’s fees.
      4. [Unifund] has standing to sue for breach of the account agreement.
      5. [Unifund] performed under the terms of the account agreement.
      6. By failing to pay for said account pursuant to the terms of the account agreement, [Simien] breached the account agreement.

      . Although Simien refers to finding of fact four, the quoted language is in finding number two.


author: JIM GUNTER, Justice. ROBERT L. BROWN, Justice, JIM HANNAH, Chief Justice,

text:
    2009 Ark. 335
    Ronald BLANCHARD, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-1380.
    Supreme Court of Arkansas.
    June 4, 2009.
    David O. Bowden, Little Rock, for appellant.
    Dustin McDaniel, Att’y Gen., by David R. Raupp, Sr. Ass’t Att’y Gen., for appel-lee.
   JIM GUNTER, Justice.

| Appellant Ronald Blanchard was convicted of sexual assault in the second degree and appealed his conviction, asserting that the trial court erred in allowing the introduction of 1022 pornographic images taken from appellant’s computer. The Arkansas Court of Appeals reversed and remanded, finding that the trial court abused its discretion in admitting the photographs without exercising any discretion. The State petitioned this court for review, which we accepted pursuant to Ark. Sup. Ct. R. 1 — 2(e). When we grant review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. Branning v. State, 371 Ark. 433, 267 S.W.3d 599 (2007). We find that appellant’s argument is not preserved for our review and affirm.

Appellant does not challenge the sufficiency of the evidence supporting his conviction; therefore, only a brief recitation of the facts is necessary. Appellant was charged |2with rape and sexual assault in the second degree after his stepdaughter accused him of sexually abusing her for years. A jury trial was held on July 17 and 18, 2007, at which the victim, who was fourteen at the time of the trial, testified that appellant began abusing her when she was five years old. She testified that he would come into her room and tickle her “private areas” and that it later progressed to both giving and receiving oral sex, to appellant using a vibrator on her, and to appellant filming these acts with a camcorder. She also testified that appellant showed her a video of him and her mother having sex and also showed her other pornographic movies and images in magazines and on the computer, including images of bestiality.

On the second day of trial, prior to the start of the proceedings, the following conversation between court and counsel took place regarding a CD containing pornographic images found on appellant’s computer:

Defense Counsel: I guess my second issue, and I may have not been clear on this, but yesterday as far as these images were concerned I made two arguments. One is that they were, you know, that they were more prejudicial and the other was that they were cumulative. And you said that they were not more prejudicial. I didn’t know for sure if we were going to be able to limit 1,000 pictures down to, you know, five or ten, or, I mean they’re all going to be representative of what’s on there.
The Court: They went through them fast last time. I don’t remember, it seemed like it was less than 30 minutes. IsDefense Counsel: That’s a pretty long time just for pictures and pictures and pictures.
Prosecutor: Well, Your Honor, our argument would be is the sheer number of them shows — goes to his predilection. Defense Counsel: And we could stipulate as to the number. I just think it’s more for shock value than it is for — I mean it’s not pictures of men and little girls which is what he’s being charged with.
ProseCUtor: Some of them are.
Defense Counsel: Well, some of them are little girls standing on a beach, but it’s not the same as—
Prosecutor: This is probative.
Defense Counsel: Which is not the same as 1,000 pictures of horses and dogs and eels and fish.
The Court: The State went through them very fast last time. I don’t think you’re prejudiced by it. So, your objection’s noted.

Following the trial court’s ruling, Jeffery Taylor from the Arkansas State Crime Lab testified that he performed the analysis of appellant’s computer in this case. He testified that approximately 1000 pornographic images were found on the computer and also testified to various pornographic internet sites that had been visited by the user of the computer. The State then tendered the CD as Exhibit No. 8, to which appellant’s counsel responded, “No objection.” The CD of the pornographic images was shown to the jury, and Taylor testified as to the general nature of the images, which in his words included images that are “fetish in nature.... Something besides general adult pornography, that may include animal sex, |4and maybe transvestite, some children,” and images involving defecation and urination. Taylor testified that his initial examination did not find any child pornography, but a closer review revealed pictures that involved persons of “quéstionable age” who might be children. When asked whether the images could be on the computer as a result of mistake or “pop-ups,” Taylor testified that “based on the multitude of them and the fact that some of them were open and the websites that were visited that — it’s my opinion that they were accessed on purpose.”

At the close of the State’s case, appellant made motions for directed verdict on both charges, which were denied. Appellant then testified and generally denied all of the victim’s accusations. He did admit to visiting pornographic websites but stated he had no idea how the images on the CD came to be on his computer. Appellant renewed his motions for directed verdict, which were again denied. The jury found appellant not guilty of rape but guilty of sexual assault in the second degree, and he was sentenced to fifteen years’ imprisonment and given a $15,000 fine. Appellant then filed a timely notice of appeal.

On appeal, appellant asserts that the trial court erred in admitting the CD containing the pornographic images. Our standard when reviewing the admission of photographs is well settled. As with other matters pertaining to the admissibility of evidence, the admission of photographs is a matter left to the sound discretion of the trial court, and we will not reverse absent an abuse of that discretion. Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006). |fiWhen photographs are helpful to explain testimony, they are ordinarily admissible. Id. Moreover, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Id. Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Id. However, in Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003), this court explained:

Although highly deferential to the trial court’s discretion in these matters, this court has rejected a carte blanche approach to admission of photographs. We have cautioned against “promoting a general rule of admissibility that essentially allows automatic acceptance of all photographs of the victim and crime scene the prosecution can offer.” This court rejects the admission of inflammatory pictures where claims of relevance are tenuous and prejudice is great, and expects the trial court to carefully weigh the probative value of photographs against their prejudicial nature. We require the trial court to first consider whether such evidence, although relevant, creates a danger of unfair prejudice, and then to determine whether the danger of unfair prejudice substantially outweighs its probative value. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

Id. at 284, 106 S.W.3d at 455 (quoting Camargo v. State, 327 Ark. 631, 637, 940 S.W.2d 464, 467 (1997)) (internal citations omitted).

On appeal, appellant argues that, by basing the admission of the photos on how long it would take to present them, as evidenced by the court’s statement that “[t]hey went through them pretty fast last time,” the court clearly did not exercise its discretion with | (¡regard to the content of the photos. Appellant also argues that there was no direct connection established between him and the photos, as there was no proof that it was appellant who had downloaded and collected the photos. And although appellant admits that some of the images were relevant and admissible, as they portrayed acts that the victim described in her testimony, appellant contends that the prejudicial effect of all 1022 photos being admitted greatly outweighed any probative value.

We find that we are unable to reach appellant’s arguments on appeal because he failed to properly object to the introduction of the images on the CD. While appellant made the general argument that the pictures were cumulative and prejudicial, he failed to identify which images in particular should be excluded on that basis. Once appellant had conceded that some of the photographs were admissible, as demonstrated in the above colloquy, it was incumbent upon him to be specific as to which photographs were objectionable and which were not. Our case law requires that an objection be sufficiently specific to apprise the trial court of the particular error complained of; otherwise the right to appellate review is not preserved. Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957 (1987). This is particularly true in a case such as this with a large volume of images at issue. Cf. Halford v. State, 342 Ark. 80, 27 S.W.3d 346 (2000) (holding that appellant sufficiently preserved the issue of prejudicial photographs when it was clear from the context of the objection and the argument that the discussion pertained to the next two photographs to be admitted). And if the proper |7objection had been made below, the trial court would have been required to weigh the probative relevance of the photographs according to the standard set forth in Newman, supra.

Affirmed; court of appeals reversed.

BROWN, J., concurring.

HANNAH, C.J., dissenting.

ROBERT L. BROWN, Justice,

concurring.

In my opinion, when Blanchard through counsel conceded that some of the photographs were relevant, it was incumbent upon him to be specific as to which photographs passed muster and which did not. Then, the judge would have been required to exercise his discretion. See Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003).

Because of Blanchard’s concession, the larger question of whether a prosecutor has carte blanche to offer over a thousand images, over a defendant’s general objection on grounds of prejudice and cumula-tiveness, and whether the judge must exercise discretion at that point is not before us.

For these reasons, I concur.

JIM HANNAH, Chief Justice,

dissenting.

I respectfully dissent. The majority simply | ^ignores the objection made. First, Blanchard did not object to admission of the CD containing 1022 pornographic images. He objected to showing the jury a total of 1022 pornographic images.

Second, Blanchard objected by arguing that the State proposed to subject the jury to so many images for the “shock value.” In other words, he asserted that the images were not being admitted to prove an element of the crimes charged but rather the large number of images was intended to prejudice the jury against him. Blanchard’s objection was “sufficiently specific to apprise the trial court concerning the particular error complained of.” Cobbs v. State, 292 Ark. 188, 191, 728 S.W.2d 957, 958 (1987). In response to the objection that the jury would be overwhelmed and prejudiced by the sheer number of pornographic images, the circuit court overruled the objection on the grounds that it would not take long to show that many images. The circuit court ruled without reviewing the images to determine what their collective impact might be. The ruling does not respond to the objection. The circuit court exercised no discretion. The failure of the circuit court to exercise discretion requires reversal and remand for that discretion to be exercised. See, e.g., Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579 (2002) (discussing an allegation that discretion was not exercised and holding that reversal and remand is imposed under those |9circumstances).

According to the majority, because Blanchard admitted that some of the images were relevant, in order for the circuit court to exercise its discretion, he had to specifically identify each image and indicate whether he believed it to be objectionable. This misses the point entirely. Blanchard did not object based on relevance. Even if he believed that each and every image was relevant, his objection would be the same. Blanchard argued that admission of five or ten images would be proper, and he argued that admission of one-thousand and twenty-two images would be improper. The majority’s analysis fails to address the issue presented on appeal. This case should be reversed and remanded.

      . This is a reference to appellant’s first trial, which ended in a mistrial due to juror misconduct.

      . As the majority notes, when the State introduced the CD, Blanchard stated, "No objection.” Given Blanchard had just objected to showing the images to the jury, and lost the objection, it would have been unwise to oppose the introduction of the CD. He needed the CD in the record in order to obtain appellate review of whether the circuit court erred in ruling the images could be shown to the jury-


author: PER CURIAM.

text:
    2009 Ark. 344
    Jonathan David MOSS, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 09-514.
    Supreme Court of Arkansas.
    June 4, 2009.

      Lynn F. Plemmons, Conway, for appellant.
    No response.
   MOTION FOR RULE ON CLERK

PER CURIAM.

| Appellant Jonathan David Moss, by and through his attorney, has filed a motion for rule on the clerk. His attorney, Lynn F. Plemmons, states in the motion that our clerk refused to accept his untimely tender of the record.

This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or, there is “good reason.” Id. at 116, 146 S.W.3d at 891. We explained:

Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. | ¡.There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.

Id. (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.

In accordance with McDonald v. State, supra, Mr. Plemmons has candidly admitted fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Motion granted.