*1 damages or At the same and Colorado Stone for to the contractor subcontractor. time, arising in restaurant from fire that were cov- gain the insurer stands to Grinnell, insurance, by any property including ered higher premiums. form of purchased post-construction. Be- policy ex- F.Supp.2d Although at 333. Grinnell post- cause TX. C.C. maintained insurance concern that an insurer will not presses policy paid and that for the construction subrogation know its insured has waived restaurant, damages to the TX. C.C.’s sub- rights, paragraph specifically 11.3.5 re- rogation paragraphs claim is barred under provide quires separate policies “[a]ll [to] words, and 11.3.7. In other 11.3.5 subrogation this waiver of endorsement subrogation beyond waivers extend an insured does or otherwise.” Whether period construction might impact obligation so the insurer’s Wilson/Barnes judgment Stone were entitled to impact the Colorado appli- the insured but does not a matter of in law. cability subrogation of the waiver claim. affirm judgment. trial court’s in para-
Our conclusion that the waiver
graph applies 11.3.5 to the facts our conclusion that
case is consistent with also paragraph applies.
the waiver 11.3.7 phrase paragraph
If the “to be” 11.3.5 only “required,” damages paid
meant then voluntarily a policy under obtained would CLARKE, Appellant Arsenio Carlos paragraph not under result waiver This, however, render the 11.3.7. would applica-
phrase property “other insurance Texas, Appellee. The STATE of 11.3.7 paragraph ble to the Work” No. 14-06-00390-CR. meaningless in contravention of our rules of contract construction. Our conclusion is Texas, Appeals Court requiring language also consistent with the (14th Dist.). Houston provide such “policies [to] the insurance Aug. 2007. subrogation by waivers of endorsement language otherwise.” This is found 11.3.7,
only paragraph para- but also the owner
graph Again, requiring 11.3.5.
to take affirmative action “other these in-
provisions” parties’ further shows the
tent that the waiver would be broad.
Conclusion standard of re-
Applying appropriate bearing public policy
view and in mind the waivers, con-
underlying subrogation we ambiguous contract is
clude the given can be subrogation waivers interpreta- That interpretation.
definite C.C., accordingly Safe-
tion is that TX.
co, against its rights waived Wilson/Barnes *2 Wicoff, Houston, Appellant.
Bob Houston, Curry, Alan for State. ANDERSON, Panel consists of Justices FROST, and MIRABAL.* MAJORITY OPINION FROST, KEM THOMPSON Justice. Challenging felony his conviction for the child, appel- offense of sexual assault of a lant asserts deceived during the trial court phase allowing evidence an allegedly false extraneous to re- offense pre-sentence investigation main in the re- port. affirm. Background
I. Factual PROCEDURAL 2004, appellant In December of moved to Texas from out of state to live with the T.M., family complainant, of the child fourteen-year girl. Appellant old is the nephew step-father. of T.M.’s T.M.’s help step-father agreed mother and had by allowing his him appellant improve life * Margaret sitting by assignment. Senior Justice G. Mirabal up open and tried to family got their her. T.M. opportunity to move with family step-father in their business. door to leave. T.M.’s
and work bedroom door, outside the and asked standing home, appel- uncle’s living While they about. whispering T.M. what were lant a bedroom with T.M.’s brother. shared *3 the finally step-father T.M. told her about day, walked into her brother’s One T.M. step-father T.M.’s called T.M.’s incidents. bedroom, a appellant playing where was mother, immediately came home. Ini- who game. Appellant got up, closed the video telling a time her tially, T.M. had difficult door, began and to wrestle with bedroom Eventually, incidents. mother about the moments, appellant T.M. After a few however, T.M. recounted some of the pushed onto a mattress that was on T.M. appellant doing had been things down, ap- holding the floor. While T.M. furious and con- her. T.M.’s mother was clothing, and forced pellant removed their appellant. Appellant told her that fronted engage in intercourse. T.M. sexual was consensual. the sexual intercourse finished, up, When he was stood hospital T.M. was taken to a to be exam- dressed, shrugged and at T.M. T.M. got ined. immediately ran to her own bedroom. Too step-father to tell her mother or
scared Appellant charged was arrested and incident, the T.M. decided that she about felony the offense of sexual assault with Ap- would handle the matter herself. “guilty” without an pleaded a child. He later, proximately days attempt- five T.M. from the State. agreed recommendation him that ed to confront and tell appellant guilty of The trial court found engage in sexual intercourse he could offense, obtaining after a charged the her, sexually again but he assaulted (“PSI”) with investigation report, presentence assault, again T.M. her. After the second years’ confine- punishment assessed ten silent, and tried her best to avoid remained Division of ment the Institutional appellant. Department of Justice. Texas Criminal trial and filed a motion for new Appellant Sunday of T.M. Super
On Bowl total- rioted that the PSI “contained bedroom, in her watching was television from the com- ly allegations unfounded family of the watched the while rest mother ... that the defendant plainant’s family Appellant room. game molested his own sister.” had bedroom, closed the walked into T.M.’s door, laid Appellant and locked it. down Analysis II. Issue and on the floor and told T.M. that he wanted single point ap- Appellant presents game with her. T.M. told to watch peal: him, “no,” him to leave. get and tried to deliberately deceived “The stronger than who was much
Appellant, during wall, the trial court T.M., against forced her by allowing evidence phase inter- again engage forced her to sexual alleged extraneous offense known finished, appellant course. When he was false, remain in to be T.M. closed her got up and left the room. report, pre-sentence violation it. door and locked bedroom Amendment of the Unit- the Fourteenth later, looking T.M. went days Several Constitution and Article ed States Appellant in his bedroom. for her brother the Texas Section 19 of Constitution.” there, the room. and her brother left trial, ap- for new door, In his written motion sat T.M. down Appellant closed the (1) that: his counsel mattress, whisper pellant alleged began 21.4(a) (stating Tex.R.App. that all resulting timely given be submitted to in a denial of effective assistance of coun- motions for new must (2) sel, right thirty days to effective- he was denied his the trial court within him, ly against Any confront the witness used amendments to the judgment). final (3) alleged completed extraneous offense within the motion also must be proven because it was not thirty-day period. inadmissible Flores v. same doubt. The trial beyond reasonable no (Tex.App.-Austin on this court denied pet.); Mallet the case reached this court motion. When pet.). Worth 865(Tex.App.-Fort appeal, ground we abated on the thirty days after the date when Within *4 hearing trial had failed to hold a court suspends trial a sentence imposes court a new trial that mat- on motion for raised over- open court but before the court ters that were not determinable from the motion for new any previously rules filed State, 14-06- record. See Clarke No. trial, court, defendant, without leave of 00390-CR, 574, 2007 233 S.W.3d WL may one or more amended motions for file (Tex.App.-Houston 2447294 [14th Dist.] Tex.R.App. 21.4(a). Howev- new trial. P. 2006) (abatement order). 26, Oct. We con- er, after no amendment is allowed timely that appellant pre- cluded filed and trial thirty days expired have unless the alleging sented his motion for new trial leave, party grants opposing court and the ineffective assistance of counsel that a Moore, object. State v. 225 does hearing necessary develop the facts 556, (Tex.Crim.App. S.W.3d 568-69 supporting these claims. Id. 2007) (holding that trial court retains an authority to allow an amendment abatement, On the trial court con day original seventy-five motion within the ducted an oral on motion amendment, period, and to rule on that so however, ap new trial. At that object). long as the does not [State] pellant completely grounds abandoned the asserted in his written motion and instead case, original appellant In this filed an time, alleged, prose for the first that the thirty-day period. Ap motion within knowledge alleged cutor had that the ex any amendments to this pellant did not file false, traneous offense was and thus had a motion, any file request nor did he leave to duty same to the court. Interpreting appellant’s amendments. alleged prosecutorial This misconduct was cannot liberally, motion for new trial we ground not a raised in the written motion encompasses any it claim of conclude that trial, yet only ground for new it is the Although appel misconduct. prosecutorial urges appeal. now a reference lant’s written motion contains brief not raise does including possible false to the PSI (l)-(3), grounds as set forth in his written statement, specific allegation is no there Thus, motion for new we do not the State committed misconduct appellant’s address state connection with the inclusion this written motion for new and instead that because ment. We conclude only preserved consider whether he error ground did not include this his written urges ap as to he now (even if it for new trial motion peal. time), fully at the he developed failed complaint. See appellate pro preserve the rules of error on
Under Provost, cedure, 205 566 thirty days after State v. appellant has request [14th Dist.] is final to a new judgment App.-Houston no authori under section of the Fourteenth Amend- (concluding that trial court had on ineffective ty grant new trial based ment of the United States Constitution drug possession assistance of counsel course according a trial conducted to due when defendant did not raise ineffec I, case section 19 of the of law under article trial); tive assistance in his motion for new Texas Constitution. (Tex. State, 649, 659
Lee v. 186 S.W.3d appellate re To error for ref'd) 2006, pet. (stating that App.-Dallas view, must make a complaining party affidavits or grounds raised objection and obtain an timely, specific brief that were not discussed ruling objection. See Tex. adverse specifically in the motion are not asserted 33.1(a); R.App. Broxton v. review); preserved Cuellar v. (Tex.Crim.App.1995). To (Tex.App.-Cor of due complain pro about lack ref'd) (concluding pus Christi law, an appellant cess or due course of jury misconduct contained that instance of timely objection lodge proper must specifically in affidavit but not mentioned Briggs v. grounds. at trial on these See properly in motion for new trial was not (Tex.Crim.App. trial court or before *5 1990); Phelps v. review); late Ramirez v. 2006 WL ref'd). Al (Tex.App.-Eastland (Tex.App.-Corpus at *1-2 Christi (not hearing for at the oral Aug.3, designated though appellant, trial, prosecutorial- that that the publication) (concluding his motion for new asserted preserved by allegedly vindictiveness claim was not be deceived the trial court State brought to the cause it was not court’s a false extraneous- allowing evidence of during closing arguments attention until report, appel in the offense to remain PSI motion for new hearing the viola lant did not raise constitutional claim in his written motion (other than ineffective assistance tions punishment, and unusual not was cruel confrontation) at time the right of vindictiveness); see also Tex. prosecutorial trial court. R.App. 21.4 that motion for (providing counsel During hearing, appellant’s thirty days trial must be filed within new following argument made sentence). imposes the trial court after alleged prosecutorial misconduct: addition, proper even if it were motion the matter have raised our made appellant’s complaints that conclude being an extraneous offense of there (but hearing at not the written who was attributed to Mr. Clark[e] motion) still preserved, were report that the defendant in the PSI complaint he prevail could not because the essentially he have mo- both—that not the same appeal raises on is York, Chyva lested his sister New his motion for hearing raised at the he provided an affidavit Clark. She has ar- new trial. At the happened. never And [it] a false gued that the contained PSI whom the complainant mother by complainant’s statement made in the PSI has remark was attributed in- mother, should have and the State saying provided now an affidavit also court, pri- and the defense counsel
formed anyone that she had that she never told sentencing, that this statement or to by told that the sister. been appellant argues appeal, false. On goes complainant The mother of the de- alleged prosecutorial misconduct that she was say in her affidavit of law process him of both due prived federal or state constitu hearing— alleged based on prior sentencing asked to the appellant did tional violations. Because prosecu- to the PSI prior court the constitu in the trial assert tor the defendant —whether she whether objections set forth his tional having of the defendant’s molested knew raising brief, is and because complain- The mother of the his sister. appeal, first time on for the these issues no, about nothing ant said she knew arguments his are So, prosecutor had that infor- that. State, 144 Heidelberg v. late review. See hearing. prior sentencing mation to the (Tex.Crim.App.2004) 538-40 arguing part And are of that is we pre failed to (concluding that defendant the motion for new prose claim that serve error duty point had a at that pre- post-arrest, use of defendant’s cutor’s counsel, Mit- [sic] inform defense Rand constitution); warning silence violated state zer, that this matter that’s sen- Neal v. tencing report is false. This extraneous Crim.App.2004) (concluding that defendant happen according offense didn’t to the claim on that re-indictment waived But sister as evidenced the affidavit. charge following dismissed previously time the knew that rights action was a re his successful civil complainant the mother of the because vindictiveness, prosecutorial sult of telling anything her I don’t know reasons, among other the defendant’s thing. about that sort of And it was “specific” in that he never claim was not sentencing report. to her in the imputed vindic “prosecutorial uttered the words So, there’s an extraneous offense due-process claim at tiveness” or made clearly happen PSI that didn’t much less *6 complaint and the that the State being proven beyond a reasonable the trial put faith” did not acted “bad doubt. that he was rais court on sufficient notice claim); due-process ing legally-cognizable He asked the defen- [defense counsel] (Tex. State, 743, 795 762 Spence v. S.W.2d dant about it. He said I’ve never done (concluding that this was Crim.App.1990) thing. such a But he was left with objec imprecise specific of an not a case dilemma, I really a do make a real issue of exclusion ground tion where the correct bring up out of this and an extraneous trial obvious to the court should have been that have all sorts of dam- [offense] simply counsel and because opposing It is a aging facts or not. turns out this attorneys trial mentioned the defendant’s allegation false that somehow completely of counsel and ineffective assistance way presentence into the re- made its does not right process to due constitutional alarming port. particularly And what is un have mean that the trial court should knew prosecutor apparently is that the objection encompass to derstood the Took no sentencing. about it before the coun right Amendment to Fifth or Sixth steps to alert the or defense coun- Court State, 185, sel); 221 188 Tovar v. S.W.3d exculpatory that evidence-that sel 2006, (Tex. no App.-Houston [1st Dist.] evidence, namely exculpatory there was objection (concluding that defendant’s falsity of this extraneous offense. preserve to error was not sufficient So, we’re these are our that that the trial review of his claim presenting the motion for new [sic] minor videotape court’s admission interview social worker argument, appellant complainant’s of this In the context allowing admission arguments violated statute any objections voice did not 580 failed pet.) (concluding appellant cer that
videotaped statement of child under circumstances, tain where defendant did objections ap preserve constitutional objection specific trial on the not assert object pellate failing review violated Tex grounds that such admission see also grounds); trial court on same Rule of Evidence 107 and article 38.07 State, (Tex. 579, v. Guevara 97 S.W.3d 583 Procedure); the Texas of Criminal Code (holding Crim.App.2003) State, 721, Cantu 994 732 S.W.2d regarding error ad preserve failed to dism’d) 1999, pet. (concluding App.-Austin evidence because victim-impact mission of constitutional claims were state comport with at trial did not they never raised at because were waived Thus, inas appeal). raised on State, trial); Hawkins v. 964 S.W.2d error, preserve much as failed to ref'd) (Tex.App.-Beaumont 769 comp reach the of his we do not merits (citing Marin v. laint.1 (Tex.Crim.App.1993), overruled on other issue on We overrule sole State, grounds by Cain v. judg- the trial appeal and affirm court’s (concluding (Tex.Crim.App.1997)) ment. constitutional claims cannot be raised most they present were
on direct unless court, MIRABAL, ed to the trial defendant’s MARGARET GARNER investigative the State’s complaints Justice, dissenting. Senior procedure right process violated his to due I dissent. respectfully pre fundamentally fair trial were failed majority The holds that served); Zaragosa v. error I preserve review. (Tex.App.-Corpus Christi addition, appellant ob tents. See Hardeman v. 1. to the extent that 1999) (Tex.Crim.App. (concluding that jects the actual admission of the extrane evidence, object opportunity appel when defendant has an we conclude that ous-offense sentencing stage present evidence at but in the trial court. lant failed to error so, error fails to do he waives At the time of the punish separate ruling court’s failure to conduct lant did not raise and obtain a subsequent filing report. hearing; of a mo complaints ment as to admission of *7 not for time tion for new trial does substitute At the when the trial court asked see, objection); e.g., Maloy report, ly parties of the PSI about the admission (Tex.App.-Waco "conjec no appellant merely that there is stated pet.) (finding complaint appeal that trial which of ture on behalf of the victim’s mother to impact not have ordered restitution object under the victim’s court should course we to that, company preserved because But besides we have no insurance statement. however, complaint not made to trial court Appellant, not di was problems.” did have been obvious to trial under would not rect the trial court to which statement and impact judge); Smith v. 10 S.W.3d heading statement” he "victim (concluding de ruling App.-Texarkana no referring, he was nor did receive Broxton, appeal complaint on that stat fendant waived objection. See criminalizing possession with specif of cocaine (concluding ute must be unconstitutional and intent to deliver was enough apprise the trial court as to the ic to Thereafter, did punishment because he objection). cruel and unusual nature of the imposed); Old objections object at trial to sentence any specific to lant did not make (Tex.App. report, ham v. the PSI or refer this "statement” in ref’d) (finding Dist.] Houston specific [14th statement the trial court to failing court erred in to that trial question filing his motion for new until the report waived on because order PSI point, it too late to trial. At that object request prepara did not or might had defendant any complaint he have court). trial tion of and its con the admission of found Defense counsel com- Constitution. disagree. my opinion, appellant’s po- and unfair review, himself in the unenviable and plaint has been at the last minute being faced the merits of sition accordingly, we should reach of- allegation of an extraneous with an complaint. appellant’s to bring time to witnesses fense with no I. Appellant’s New Trial Motion for fully or even allegation, refute such Request Hearing and Although claim. M.M. investigate the timely filed a motion for new Appellant hearing, counsel was testify at the did hearing. seeking punishment a new question- the choice of either faced with in part: The motion states extraneous supposed about the ing her contrary verdict is punishment The having any had time offense without the law and the evidence. See Tex. claim, knowing investigate such and not R.App. 21.3(h). pre- Specifically, surrounding might emerge what details report in this case investigation sentence claim, alone. leaving the matter totally allegations unfounded contained way, Either counsel was left unable to M.M., mother, Complainant’s from the client effective assistance to his render the Defendant had molested his allegations the harmful included due to in the re- quoted own sister. M.M. is through the presentence report port stating that “she had intuition testimony speculation hearsay had perhaps the defendant’s sister M.M. experience a similar with her brother for new trial com- Appellant’s motion defendant, but afraid to relate of the PSI that the circumstances plains anyone.” experience harmful untruth- report that contained Attached to this motion is the affidavit presented with- allegations, ful which was sister, C.C., of the Defendant’s in which counsel to adequate out time defense (1) flatly any improper she: denies such rebuttal, result- investigate prepare (2) brother, points her conduct hearing with ed in the denial of fair case, barely out that in M.M. knows of counsel. effective assistance position her and was therefore II. Hearing for New Trial on Motion her, or to form “intuition” about motion for At the impute any fear to her. pursuant to an Order new conducted case, typically presen- As is Court, newly- appellant submitted of this investigation report only tence in support evidence learned additional shortly to the defense made available that he was entitled to a new position on March sentencing hearing before the because he was denied trial on time provided inadequate 22nd. This *8 hearing: a fair (the sister) her home to travel from Honor, just way making of refute the Your in New York to Houston to grounds and our suggestions sure that our erroneous and harmful grounds that at this level are also by Complainant’s the mother. here made so that there’s no by argued appeal, are the defense was blindsided Simply, in misunderstanding. have raised that allegations of an extraneous offense being an the matter of there such offense our motion supposed the victim of attributed offense that was refute. This extraneous would have been anxious to was the defendant assis- to Mr. Clark who the defendant the effective denied that both—that essential- counsel, of the of his violation tance sister in may have molested his ly he Amendment to the United States Sixth York, New has provided caught C.C. She of between a rock and a hard that that happened. affidavit never And place. He didn’t know whether to—he complainant the mother of the to whom object go did to it. But did not into it the remark was attributed in the PSI during questioning of the complainant’s provided say- has also now an affidavit mother, to whom the remark was made ing anyone she never told that she because he had not had time to investi- by had been told that the sister. gate this. The mother complainant goes He asked the defendant it. about He say on to in her affidavit that she was said thing. I’ve never done such a But prior sentencing hearing— asked to the dilemma, really he was left with do I prior hearing by prosecu- to the PSI make out bring a real issue of this and tor whether the defendant —whether she up an extraneous that have all sorts having knew of the defendant’s molested damaging facts or not. It turns out sister. The mother allegation that completely this is a false no, nothing said she knew about that. way presen- somehow made its into the So, prosecutor had that informa- particularly report. tence And what is prior sentencing hearing. tion to the alarming prosecutor appar- is that the arguing part And we are of what ently knew about it before the sen- is in the motion for new trial that the tencing. steps Took no to alert duty point had a at that Court or defense counsel that this ex- inform defense counsel that this mat- culpatory evidence —that there was sentencing report ter that’s is exculpatory evidence, namely the fal- false. This extraneous offense didn’t sity of this extraneous offense. happen according to the sister as evi- So, grounds these are our that we’re denced the affidavit. But at presenting for the motion for new
time the knew that be- right. THE All COURT: complainant cause the mother of the rebuttal? telling Anything? anything her I don’t know thing. about that sort of And it was No, THE Your STATE: Honor. imputed sentencing report. to her added). (Emphasis So, there’s an extraneous offense clearly happen didn’t much less PSI Analysis III. being proven beyond a reasonable At the motion for doubt. trial, new consistent with the as- objected And that was never motion, serted the trial court was defense And I want to make a counsel. presented unobjected-to with evidence point about that. This is not an inef- argument the circumstances of the
fective assistance claim. It never which, knowledge PSI with full you closely If was. look at the motion prosecutor, harmful un- contained argue for new I the defen- allegations, pre- truthful and which was dant was denied effective assistance of adequate sented without time for defense throuyh his counsel no fault of coun- investigate prepare counsel to a rebut- morning sel. Counsel came *9 tal, resulted in the denial of a fair hearing. PSI Saw PSI for with effective assistance of counsel. day It first time. have been the before, appeal, appellant On has chosen to focus it’s his affidavit. Saw this i.e., argument, of that the part extraneous offense there and was sort on one his
583 on notice put the court enough clear evidence that damaging use of prosecutor’s i.e., Brady complaint, of his prose- false—the to the nature knew was error, therefore, error the trial court or failure to inform cutor’s allegations the merits of that the false reach defense counsel We should appeal. removed from the PSI should be complaint. unfair in an
and not considered —resulted un- hearing, and therefore an
punishment argument, with evi-
fair sentence. This court,
dence, to the trial presented appeal.
and thus has been appellant’s fatal case
It is not consti specific that he did not cite court provisions
tutional to the trial the bold-
support argument. of his From above, it was argument of his portions ed BELL, Wayne Appellant, Michael “Brady making that ”1 clear The type argument. error constitution v. requiring disclosure of evi principles al Texas, Appellee. The STATE to an accused and the dence favorable knowingly using false evi prohibition 10-06-00168-CR. No. pro to convict are basic to the due dence law mandated the Fourteenth cess of Texas, Appeals Court Amendment, rights equally and such are Waco. rights to the due course of law applicable I, 12, Sept. § the Texas 2007. identified in Art. 19 of 87, at Brady, See 373 U.S. Constitution. Adams, 1196; Parte 768
83 S.Ct. at Ex En (Tex.Crim.App.1989).
forcing rights these “is not but
society for misdeeds of an unfair trial to the ac
avoidance of S.Ct. at Brady,
cused.” 373 U.S. Adams,
1196; at 293. To the adequately that an record
extent opposing the trial court and
shows for a
counsel are aware of general position,
defendant’s argument preserves the com
statement or Wyborny review. See
plaint (Tex.App.
v. 'd) (citing pet. ref Dist.]
-Houston [1st 492, 494 v.
Samuel
Crim.App.1985)). Samuel,
Here, Wyborny and similar to position statement of his (1963). 10 L.Ed.2d Brady Maryland, U.S. 83 S.Ct.
1.