Moore v. State , 2004 Tex. App. LEXIS 6612 ( 2004 )

OPINION

FELIPE REYNA, Justice.

Kerry Eugene Moore’s conviction for retaliation arises from an altercation between Moore and a school superintendent. The State charged Moore with assault on a public servant and retaliation. A jury acquitted Moore on the assault charge but convicted him of retaliation. Moore contends that the evidence is legally and factually insufficient to support his conviction and that the court erred by: (1) failing to quash the indictment or require the State to elect whether to prosecute him for assault or retaliation; (2) refusing to allow impeachment of the superintendent with prior misdemeanor convictions more than ten years’ old or to allow cross-examination of character witnesses regarding those convictions; (3) refusing to allow him to call witnesses to vouch for his truthful character; (4) denying his request for certain defensive instructions in the charge; and (5) denying his motion for mistrial alleging a Brady violation.

We hold that the evidence is sufficient to support the conviction, that the indictment was proper and no election was required, that the court did not abuse its discretion by excluding evidence or cross-examination of the superintendent’s prior misdemeanor convictions because the probative value of those convictions is substantially outweighed by the danger of unfair prejudice, that the court did not abuse its discretion by refusing to permit him to call character witnesses because the State did not attack his character for truthfulness, that the court properly refused the requested instructions, and that no Brady violation is shown. Accordingly, we affirm the conviction.

BACKGROUND

To facilitate our discussion of Moore’s contentions, we provide a brief factual background. Moore’s wife Karen was a counselor employed by the Venus Independent School District. Johnnie Hauerland was the superintendent of the district at that time. Karen resigned her position because of a dispute over the legality of the district’s policies regarding the manner in which employees were to report suspected child abuse.¹

When Karen resigned, she retained confidential student records that she had maintained in the course of her employment. Relying on a provision of the Venus ISD’s standard employment contract, Hauerland withheld Karen’s final paycheck until she returned or accounted for the retained records. Venus ISD and the Moores consulted attorneys, who exchanged correspondence regarding the dispute.

On the date in question, Kerry Moore went to the Venus ISD offices to try to get Karen’s check. The payroll director told Moore that he would have to speak with Hauerland. Moore demanded the check from Hauerland. Though it is disputed how the altercation commenced and how it concluded, Moore and Hauerland ended up on the ground engaged in a struggle. Other school employees physically removed Moore from the premises. Several witnesses testified that as Moore was being escorted away, he said that he would come back and “get” Hauerland after being released on bail. Moore denied making this statement.

LEGAL AND FACTUAL SUFFICIENCY

Moore contends in his sixth issue that the evidence is legally and factually insufficient to establish: (1) that he threatened to harm Hauerland; (2) that he acted with the requisite intent or knowledge; or (3) that Hauerland was acting as a public servant.

In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Jackson v. Va., 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Herrin v. State, 125 S.W.3d 436, 439 (Tex.Crim.App.2002). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

The Court of Criminal Appeals has recently clarified the appropriate standard of review for a factual insufficiency claim.

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand.

Zuniga v. State, No. 539-02, 144 S.W.3d 477, 484, 485, 2004 WL 840786, *7 (Tex. Crim.App.2004).

Intentionally and/0R Knowingly THREATENING TO HARM Hauerland

A jury may infer intent or knowledge from “the acts, words, and conduct of the accused.” Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App.2002) (quoting Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim.App.1999)). Here, the jury heard ample evidence from which a rational trier of fact could infer that Hauerland intentionally and knowingly threatened to harm Hauerland.

According to Hauerland, Moore threatened to “kick [his] butt” if Hauerland did not give Moore Karen’s paycheck. When Hauerland refused, Moore pushed him against the wall and tried to hit him. As Moore was escorted from the premises, he said that after making bail he would come back and “get [Hauerland].” Hauerland construed this to be a threat.

School receptionist D’Nan Dakan testified that Moore grabbed “Hauerland by the lapel and jammed him up against the wall.” She testified that “it was no accident” and that it appeared to her that Moore intended to harm Hauerland. As Moore was being physically escorted from the premises, he said that after making bail he was “going to come get [Hauer-land].”

Bookkeeper Michelle Salazar provided testimony substantially similar to Dakan’s. Salazar construed Moore’s closing remark as a threat on Hauerland’s life. A school bus mechanic likewise testified that Moore threatened to “get” Hauerland.

Conversely, Moore testified that Hauer-land and he “tripped over each other’s feet” in the office and scuffled. Moore denied being physically escorted from the premises and denied threatening to “get” Hauerland later.

From this evidence, a rational trier of fact could have inferred that Moore threatened to harm Hauerland after being release from jail and that he did so intentionally and knowingly. This same evidence is factually sufficient to establish that Moore intentionally and knowingly threatened to harm Hauerland.

Hauerland’s Status as a Public Servant

It is undisputed that Hauerland was a school superintendent at the time of the altercation. A “public servant” is “a person elected, selected, appointed, employed, or otherwise designated as ... an officer, employee, or agent of government.” Tex. Pen.Code Ann. § 1.07(a)(41)(A) (Vernon Supp.2004). Thus, Hauerland was a public servant.

However, Moore argues that Hauerland was acting outside the course and scope of his duties as superintendent because it was unlawful for him to withhold Karen’s check. The parties presented conflicting evidence regarding whether Hauerland was acting lawfully in this regard. Thus, a rational trier of fact could have concluded beyond a reasonable doubt that Hauerland was acting as a public servant when he withheld Karen’s check. This same evidence is factually sufficient to support a finding on this issue.

Accordingly, we overrule Moore’s sixth issue.

THE ALLEGATIONS OF THE INDICTMENT

Moore contends in his fourth issue that the court erred by failing to grant his motion to quash the indictment because the indictment failed to provide adequate notice of the manner and means by which he threatened to harm Hauerland. He contends in his seventh issue that the court should have required the State to elect whether it intended to prosecute him for assault or retaliation because these offenses are in pari materia. We reject these contentions because the indictment provided adequate notice and no election was required.

Adequacy of Notice

The indictment alleges in pertinent part that on or about the date in question Moore

did then and there intentionally or knowingly threaten to harm another, to-wit: J. Haverland, a public servant, by an unlawful act in retaliation for or on account of the services or status of the said J. Haverland as a public servant, to-wit: superintendent of the Venus Independent School District, Venus, Texas, said unlawful act being to harm J. Hav-erland, and said threat was communicated to J. Haverland in person.

Moore contends that this case is governed by Doyle v. State, in which the Court of Criminal Appeals held that an indictment failed to provide adequate notice where the indictment alleged in pertinent part that the defendant “threatened to kill the said Dan Gibbs on account of the services of the said Dan Gibbs as a judge in a prior lawsuit in which the defendant was a party.” 661 S.W.2d 726, 729 (Tex. Crim.App.1983). The Court found the indictment lacking in specificity because the “alleged threat could have been conveyed in a number of ways, including: face to face in person, over the phone directly, through a third party, or through the mail.” Id. at 730.

We construe the holding of Doyle to be that the indictment there was lacking because it failed to allege the manner and means by which the defendant conveyed the threat to kill Judge Gibbs. Here, the indictment alleges that Moore communicated a threat to harm Hauerland to him “in person.” Thus, the indictment provided adequate notice of the manner and means by which Moore conveyed the threat to harm Hauerland. Cf id. Accordingly, we overrule Moore’s fourth issue.

Election

Moore contends in his seventh issue that the trial court should have required the State to elect whether it intended to prosecute him for assault or retaliation because both counts alleged assaults on a public servant and because these offenses are in pari materia.

Moore did not argue in the motion to elect or in the hearing on that motion that these offenses are in pan materia. Accordingly, he has failed to preserve this aspect of his seventh issue for our review. See Tex.R.App. P. 33.1(a)(1).

An election is required when an indictment alleges the commission of a single offense but the State offers evidence at trial that the accused committed the offense alleged more than once. See Scogan v. State, 799 S.W.2d 679, 680 n. 3 (Tex.Crim.App.1990); Brantley v. State, 48 S.W.3d 318, 322 n. 1 (Tex.App.-Waco 2001, pet. refd). Here, the indictment alleges two separate offenses, and the State offered evidence that Moore committed the two offenses alleged. Thus, no election was required.

Accordingly, Moore’s seventh issue is overruled.

IMPEACHMENT EVIDENCE

Moore’s first and third issues concern Hauerland’s three prior misdemeanor convictions: a 1987 theft conviction; a 1988 theft conviction; and a 1989 DWI conviction. Moore contends in his third issue that the court abused its discretion by refusing to permit him to impeach Hauer-land with the prior theft² convictions. He contends in his first issue that the court abused its discretion by refusing to permit him to ask witnesses called to vouch for Hauerland’s truthful character whether they were aware of the three prior convictions.

Impeachment with Convictions MoRE Than Ten YeaRs’ Old

Because the convictions were more than ten years’ old, they were admissible for impeachment purposes only if their probative value substantially outweighed their prejudicial effect. Tex.R. Evid. 609(b). The Court of Criminal Appeals has looked to federal cases to determine what factors should be considered in balancing probative value against prejudicial effect when the witness sought to be impeached is the defendant. Theus v. State, 845 S.W.2d 874, 880 (Tex.Crim.App.1992) (citing U.S. v. Mahone, 537 F.2d 922, 929 (7th Cir.1976)).

Those factors include: (1) the impeachment value of the prior crime, (2) the temporal proximity of the prior crime relative to the charged offense and the witness’s subsequent history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the defendant’s testimony, and (5) the importance of the credibility issue. Id.

With the exception of the second and third factors, these factors can be applied in the same manner when the witness sought to be impeached is someone other than the defendant. We look to the federal authorities to see how the second and third factors are treated in such a case. Cf.id.

The second factor is modified only slightly by the federal cases. That factor examines the temporal proximity of the prior conviction to the date the witness testifies and the witness’s subsequent history. See Daniels v. Loizzo, 986 F.Supp. 245, 252 (S.D.N.Y.1997); TDK Am., Inc. v. NSK, Ltd., 917 F.Supp. 563, 570 (N.D.Ill. 1996); Jack B. Weinstein & Margaret A Berger, Weinstein’s Federal Evidence vol. 4, ¶ 609.05[2], 609-33 (Joseph M. McLaughlin, ed., 2d ed., LEXIS 2001).

The third factor as modified examines the similarity between the past crime and any conduct of the witness at issue in the present trial. See THK Am., 917 F.Supp. at 570; Weinstein & Berger, Weinstein’s Federal Evidence vol. 4 at ¶ 609.05[2], 609-33.

Applying these factors to Moore’s case, the prior theft convictions do have strong impeachment value. The fact that Hauer-land has had no further difficulties with the law weigh against their admission. The third factor focuses on the potential for unfair prejudice due to similarity of past conduct with the conduct at issue in the present litigation. The absence of similarities between Hauerland’s theft convictions and his conduct on the occasion in question indicates no significant danger of unfair prejudice on this basis. Hauer-land’s testimony was important to the State’s case but not essential because other witnesses corroborated much of his testimony. For the same reason, Hauer-land’s credibility was important but not a critical issue at trial due to the presence of other witnesses who provided similar testimony.

Accordingly, two of these factors indicate that Hauerland prior theft convictions have probative value, but the other three tend to diminish the probative value of the convictions. Therefore, it cannot be said that the probative value of the convictions substantially outweighs the danger of unfair prejudice. For this reason, we conclude that the court did not abuse its discretion by refusing to permit Moore to impeach Hauerland with the prior convictions. Thus, we overrule Moore’s third issue.

Cross-Examination of ChaRacter Witnesses

In rebuttal, the State called three character witnesses who testified that in their opinion Hauerland had a good reputation for truthfulness. Moore sought to ask these witnesses whether they had heard that Hauerland had the two prior theft convictions and the prior DWI conviction at issue. The State objected that probative value of this line of questioning was substantially outweighed by danger of unfair prejudice, confusion of issues, and misleading the jury under Rule 403. We agree with the State on this issue.

We review decisions to admit or exclude evidence under an abuse-of-discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002). We will not reverse a ruling which lies within “the zone of reasonable disagreement.” Id.

A witness who testifies to another’s good character may be cross-examined to test the witness’s awareness of relevant specific instances of conduct. Tex.R. Evid. 405(a); Wilson v. State, 71 S.W.3d 346, 350 (Tex.Crim.App.2002). This right of cross-examination has two limitations: (1) the prior instances must be relevant to a character trait at issue; and (2) the prior instances must have a basis in fact. Wilson, 71 S.W.3d at 350. We agree with the State’s contention that this right of cross-examination is also limited by Rule 403. See Mozon v. State, 991 S.W.2d 841, 846 (Tex.Crim.App.1999) (evidence admissible under Rule 404 may still be excluded under Rule 403); see also McCoy v. State, 10 S.W.3d 50, 53 (Tex.App.-Amarillo 1999, no pet.) (“Rule 405 merely delineates the manner by which admissible character or character trait evidence may be proven.”).

It is undisputed that Moore established a factual basis for the prior convictions. Thus, we limit our analysis to the issue of whether the prior convictions are relevant to Hauerland’s truthful character and if so whether the probative value of the convictions is substantially outweighed by the danger of unfair prejudice or one of the other considerations enumerated in Rule 403.

The prior DWI conviction is not relevant to Hauerland’s truthful character because it is not a conviction for a crime involving moral turpitude. See Shipman v. State, 604 S.W.2d 182, 184 (Tex.Crim. App. [Panel Op.] 1980); Lopez v. State, 990 S.W.2d 770, 778 (Tex.App.-Austin 1999, no pet.); see also Perez v. State, 11 S.W.3d 218, 221 (Tex.Crim.App.2000) (felony DWI not a “high crime” under art. XVI, § 2 of Tex. Const, because it does not involve “moral corruption” or “dishonesty”). Thus, the court did not abuse its discretion by refusing to permit Moore to cross-examine the State’s character witnesses about the DWI conviction.

Conversely, the theft convictions are relevant to Hauerland’s truthful character because they are convictions for crimes involving moral turpitude. Bowden v. State, 628 S.W.2d 782, 788 (Tex.Crim. App.1982); Morris v. State, 67 S.W.3d 257, 263 (TexApp.-Houston [1st Dist.] 2001, pet. refd). However, evidence of those convictions may be excluded if their probative value is substantially outweighed by the danger of unfair prejudice. See Mozon, 991 S.W.2d at 846; Tex.R. Evtd. 403.

In conducting a Rule 403 analysis, we examine: (1) how compellingly the challenged evidence serves to make a fact of consequence more or less probable; (2) the potential the challenged evidence has to impress the jury “in some irrational but nevertheless indelible way”; (3) the time the proponent will need to develop the evidence; and (4) the force of the proponent’s need for the evidence, ie., does the proponent have other probative evidence available to him to help establish the fact of consequence. Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App.2003); Mozon, 991 S.W.2d at 847.

The fact of consequence at issue here is Hauerland’s character for truthfulness. Because the theft convictions are more than ten years’ old, they do not compellingly establish that his truthful character is bad. Cf. Tex.R. Evid. 609(b); see also Theus, 845 S.W.2d at 881 (prior conviction more probative as impeachment evidence “if the past crime is recent and if the witness has demonstrated a propensity for running afoul of the law”).

The remoteness of the prior convictions also tends to diminish any potential they may have for impressing the jury in some improper manner. Moore would require very little time to question the witnesses about their familiarity with Hauerland’s prior theft convictions. Moore called other witnesses who testified that Hauerland’s character for truthfulness was not good. Thus, his need to cross-examine the State’s witnesses regarding Hauerland’s prior convictions was lessened.

Because these factors weigh equally in favor of and against permitting cross-examination regarding the prior convictions and because Rule 609(b) authorized the exclusion of the convictions for impeachment of Hauerland while he was on the stand, we cannot say that the court abused its discretion by refusing to allow the cross-examination. Accordingly, we overrule Moore’s first issue.

MOORE’S CHARACTER WITNESSES

Moore contends in his second issue that the court abused its discretion by refusing to permit him to present witnesses to testify about his character for truthfulness. Because the State did not attack Moore’s character for truthfulness, no abuse of discretion is shown.

Rule 608(a)(2) provides that evidence of a witness’s truthful character is admissible if the witness’s truthful character has been attacked. Moore contends that his truthful character was attacked by the State’s “vigorous” cross-examination.

Unless the State’s cross-examination of a defendant directly implicates the defendant’s character for truthfulness, cross-examination exposing inconsistencies between the defendant’s testimony and the State’s evidence does not constitute an attack on the defendant’s truthful character under Rule 608(a)(2). Stitt v. State, 102 S.W.3d 845, 848-49 (Tex.App.-Texarkana 2003, pet. refd); Spector v. State, 746 S.W.2d 946, 950-51 (Tex.App.-Austin 1988, pet. refd).

Here, the State’s cross-examination did nothing more than illuminate the inconsistencies between Moore’s version of the events and the State’s. This does not constitute an attack on Moore’s character for truthfulness. Id. Thus, no abuse of discretion is shown. Accordingly, we overrule Moore’s second issue.

REQUESTED JURY INSTRUCTIONS

Moore contends in his fifth issue that the court erred by overruling his requested jury instructions on the duty to report child abuse or neglect and the confidentiality of information obtained in the course of an investigation of suspected abuse or neglect. He contends in his eighth issue that the court erred by refusing to charge the jury on assault by threat as a lesser-included offense of retaliation.

Duty to Report Abuse OR Neglect and Confidentiality of Information

The trial court denied Moore’s request to instruct the jury regarding the duty to report suspected child abuse or neglect³ and the confidentiality of information obtained in an investigation of suspected abuse or neglect as provided by statute.⁴ It appears that Moore sought these instructions to support his contention that Hauerland could not lawfully require Karen to release her counseling records to him and thus was not acting as a public servant on the occasion in question. Because the requested instructions served only to negate the public servant element of the retaliation charge, the trial court was not required to submit them.

“[A] defensive instruction is not required when the issue in question is not a statutorily-enumerated defense and merely serves to negate elements of the State’s case.” Ortiz v. State, 93 S.W.3d 79, 92 (Tex.Crim.App.2002), cert. denied, 538 U.S. 998, 123 S.Ct. 1901, 155 L.Ed.2d 824 (2003). The requested instructions do not implicate statutory defenses or affirmative defenses. Rather, they would serve only to negate the public servant element of the offense of retaliation. Thus, the trial court did not err in refusing the instructions. Accordingly, we overrule Moore’s fifth issue.

Instruction on Lesser-Included Offense

The trial court likewise denied Moore’s request for an instruction on assault by threat as a lesser-included offense of retaliation. An offense is a lesser-included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex.Code CRiM. PRoc. Ann. art. 37.09 (Vernon 1981).

Assault by threat is not a lesser-included offense of retaliation under article 37.09(1) because assault by threat requires a threat intended to place the victim in fear of imminent harm, whereas retaliation does not require a threat of imminent harm. Helleson v. State, 5 S.W.3d 393, 396 (Tex.App.-Fort Worth 1999, pet. ref d).

Moore contends that assault by threat is a lesser-included offense under article 37.09(2) because, without the allegation that Hauerland was a public servant, which Moore disputes, the resulting conduct poses “a less serious threat to the same person.” We reject this contention on its face. The issue of whether Hauer-land was acting as a public servant on the occasion in question has no effect on the seriousness of the threat Moore made to him. Stated another way, the threat was the same regardless of Hauerland’s status. Accordingly, we overrule Moore’s eighth issue.

FAILURE TO DISCLOSE BRADY⁵ EVIDENCE

Moore contends in his ninth issue that the trial court abused its discretion by denying his motion for mistrial due to the State’s failure to disclose before trial that one of its witnesses had been indicted for burglary in 1991. The State responds that Moore did not preserve this contention for appellate review because he failed to request a continuance when the evidence first came to light at trial. Because preservation “is a systemic requirement that a first-level appellate court should ordinarily review on its own motion,” we will begin with the State’s contention that Moore did not preserve this issue for our review. See Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex. Crim.App.1997).

A plurality of this Court has suggested that “Brady claims should fall under Marin’s⁶ category one and need not be ‘preserved’ for appellate review.” Keeter v. State, 105 S.W.3d 137, 144 (Tex.App.-Waco 2003, pet. granted) (plurality) (footnote added). On further consideration, we conclude that a defendant’s right to the disclosure of exculpatory evidence under Brady is a category two right in the Marin formulation because this right can be waived but must be implemented even if not requested.

In Marin, the Court of Criminal Appeals identified three categories of rights possessed by criminal defendants: (1) absolute requirements and prohibitions which cannot be waived or forfeited; (2) rights which must be implemented unless expressly waived; and (3) rights which will be implemented only upon request. 851 S.W.2d 275, 279-80 (Tex.Crim.App.1993); accord Sanchez v. State, 120 S.W.3d 359, 366 (Tex.Crim.App.2003). Only rights in the third category must be “preserved” for appellate review. Marin, 851 S.W.2d at 279; accord Sanchez, 120 S.W.3d at 366-67.

The Supreme Court of the United States has held that a defendant who pleads guilty can waive his right to Brady evidence. See U.S. v. Ruiz, 536 U.S. 622, 628-33, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). Thus, a defendant’s rights under Brady are “waivable.” However, that Court has also held that Brady evidence must be provided to the defense, even if not requested. Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); U.S. v. Agurs, 427 U.S. 97, 103-07, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Given these two components of the Supreme Court’s Brady jurisprudence, we conclude that a defendant’s right to exculpatory evidence under Brady is a category two right in the Marin formulation. Therefore, a Brady claim need not be preserved for appellate review. Marin, 851 S.W.2d at 279; accord Sanchez, 120 S.W.3d at 366-67.

True, Texas courts, including this one, have previously held Brady claims procedurally defaulted because of the defendants’ failure to request a continuance. E.g., Wilson v. State, 7 S.W.3d 136, 146 (Tex.Crim.App.1999); Taylor v. State, 93 S.W.3d 487, 502 (Tex.App.-Texarkana 2002, pet. refd); Yates v. State, 941 S.W.2d 357, 364 (Tex.App.-Waco 1997, pet. refd). However, it does not appear that any of these decisions considered this issue under Marin. When we examine the Supreme Court’s Brady jurisprudence in light of the preservation requirements established by Marin (which have been recently reaffirmed by the Court of Criminal Appeals), we must conclude as stated that a defendant’s rights under Brady fall within category two under Marin. Accordingly, we review the merits of Moore’s Brady claim.

A Brady violation occurs when the State fails to disclose exculpatory information “unknown to the defense.” Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim.App.2002) (quoting Agurs, 427 U.S. at 103, 96 S.Ct. 2392). Here, Moore’s counsel informed the trial court that he had discovered by his own investigation that the witness in question had been previously indicted. Because Moore was aware of the information which he contends the State improperly failed to disclose, no Brady violation is shown. Id. Accordingly, we overrule Moore’s ninth issue.

We affirm the judgment.

Chief Justice GRAY concurring and dissenting.

⅞ This case was submitted with former Chief Justice Davis on the panel, but he resigned effective August 4, 2003. Justice Reyna, who took the oath of office on January 5, 2004, participated in the decision of the Court.

1 . The district required employees to first report suspected abuse to school officials before reporting it to a law enforcement or other agency.

2 . Although Moore acknowledges the prior DWI conviction in connection with his third issue, he argues only that he "should have been allowed to cross-examine [Hauerland] regarding his theft convictions.”

3 . See Tex. Fam.Code Ann. §§ 261.101-261.104 (Vernon 2002).

4 . Id. § 261.201 (Vernon Supp.2004).

5 . Brady v. Md., 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

6 . Marin v. State, 851 S.W.2d 275 (Tex.Crim. App.1993).