Waxahachie Independent School District v. Tim Johnson and Ed White

IN THE TENTH COURT OF APPEALS No. 10-04-00367-CV Waxahachie Independent School District, Appellant v. Tim Johnson and Ed White, Appellees From the 40th District Court Ellis County, Texas Trial Court No. 68721 Opinion Waxahachie Independent School District (WISD) files this appeal arguing that the trial court erred in denying its plea to the jurisdiction under newly-enacted section 101.106(b) because the plaintiffs, Tim Johnson and Ed White, filed the underlying lawsuit against both WISD and its employees regarding the same subject matter. Because we find that the cause of action against WISD does not involve the same subject matter as the cause of action against WISD’s employees, we affirm. Factual and Procedural History Tim Johnson and Ed White were employed by WISD as maintenance coordinators. In August 2003, Johnson and White (Appellees) filed a written grievance against certain members of the Board of Trustees, complaining of harassment, stalking, and micromanagement. Superintendent Bobby E. Parker told Appellees that the filing of the grievance “pretty much sealed [their] fate.” The next day they were placed on administrative leave, and five days later their employment was terminated. Appellees appealed the termination of their employment through WISD’s administrative procedures. Their administrative appeal was denied by the WISD Board of Trustees on November 11, 2003. In October 2003, WISD employees Jerry McLemore and Charles Tims, acting at Parker’s direction, reported to the local police that Appellees had accessed the WISD computer network and obtained the social security numbers of all WISD employees. Shortly after the Board of Trustees denied the Appellees’ administrative appeal, Johnson was arrested by the Waxahachie Police for tampering with government records, a third-degree felony. White was arrested and charged with the same offense on December 4. However, both Appellees were no-billed by separate grand juries in April 2004. In September 2004, Appellees filed suit against WISD for wrongful termination of their employment and against Parker, McLemore, and Tims (Defendant Employees) for malicious prosecution. WISD and the Defendant Employees filed separate pleas to the jurisdiction. The Defendant Employees filed a motion to dismiss and argued that the Appellees had not exhausted their administrative remedies against the Defendant Employees on the malicious prosecution claim. WISD filed a plea to the jurisdiction and argued that because the Appellees had filed suit against both the school district and the Defendant Employees, Appellees are barred from filing suit against WISD under the election of remedies statute of the Texas Tort Claims Act (TTCA). The trial court granted the Defendant Employees’ motion and denied WISD’s plea and motion to reconsider. The trial court severed the Defendant Employees from WISD and both parties appealed in separate actions to this Court. In this appeal, WISD argues that the trial court erred in denying its plea to the jurisdiction. Sovereign Immunity Governmental entities are immune from tort liability under the doctrine of sovereign immunity unless the legislature has waived immunity. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). Sovereign immunity has two components: immunity from liability and immunity from suit. Wichita Falls St. Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). Immunity from suit is waived to the extent of liability created by the TTCA. Tex. Civ. Prac. & Rem. Code Ann § 101.025(a) (Vernon 2005); Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Immunity from suit protects the state from being sued without its consent. Texas DOT v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Absent the State’s consent to suit, a trial court lacks subject matter jurisdiction. See id. Whether a trial court has subject matter jurisdiction is a question of law reviewed de novo. Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). In a suit against a governmental entity, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity and pleading facts showing that the trial court has jurisdiction. Miranda, 133 S.W.3d at 226. When deciding whether to grant a plea to the jurisdiction, the trial court looks to the allegations in the petition together with any relevant jurisdictional evidence. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). The substance of WISD’s plea to the jurisdiction involves newly-amended section 101.106 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 2005). Previously section 101.106, entitled “Employees Not Liable After Settlement or Judgment” stated: “A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.” Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3305, (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code § 101.106). In 2003, the Legislature amended section 101.106 to its current form. Entitled “Election of Remedies,” section 101.106 is as follows: (a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter. (b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents. (c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter. (d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit. (e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit. (f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed. Tex. Civ. Prac. & Rem. Code § 101.106. The Legislature amended section 101.106 apparently to force a plaintiff to choose whether he would seek to impose tort liability on a governmental unit or on governmental employees acting as individuals outside their official capacity. See Villasan v. O’Rourke, 166 S.W. 3d 752, 758, 759-60 (Tex. App.—Beaumont 2005, pet. filed). The choice of one immediately and irrevocably bars the plaintiff’s claims against the other. Tex. Civ. Prac. & Rem. Code § 101.106(a)-(d). A plaintiff unwise in his choices potentially faces an irrevocable bar against both the governmental entity and its’ employees. Id. The effect of the statute is that a plaintiff is no longer able to include every potential tortfeasor in a suit, argue alternative theories of recovery based on the same conduct, and allow a fact finder to decide which party was the wrongdoer. See Villasan, 166 S.W.3d at 758. “The prior statutory language may well have been intended to yield the same result, but court interpretations have read it otherwise so long as the plaintiff was willing to sue the parties in the ‘correct’ order.” Michael D. Morrison, Texas Tort Law - 2003; It Was a Very _____ Year, 56 Baylor L. Rev. 423, 479-80 (2004). Of the few appellate decisions addressing section 101.106, all involve dismissing the suit against the governmental employees, specifically section 101.106(e). This is because the statute strongly favors dismissal of the governmental employees. Tex. Civ. Prac. Rem. Code § 101.106(e), (f). Upon the motion of either the government or the employees, a plaintiff is forced to proceed against the government alone in three circumstances: “(1) when the suit is initially filed against the governmental agency alone; (2) when the suit is initially filed against both governmental agency and its employees; and (3) when the suit is initially filed against the government employee when the employee’s conduct is alleged to have been within his scope of employment.” Villasan, 166 S.W.3d at 758. The decisions have held that once the government files a motion to dismiss the employees under section 101.106(e), the trial court must grant the motion and dismiss the employees from the suit. Villasan, 166 S.W.3d at 761-62; Hernandez v. Duncanville Indep. Sch. Dist., No. 3:04-CV-2028-BH (B), 2005 U.S. Dist. LEXIS 5090 at **16-18 (N.D. Tex. Mar. 29, 2005) (not designated for publication); Martinez v. Ctr. for Health Care Servs., No. SA-04-CA-0412-RF, 2005 U.S. Dist. LEXIS 9379 at *6 (W.D. Tex. May 12, 2005) (not designated for publication). The present case concerns the opposite situation. Instead of seeking to dismiss the Defendant Employees under section 101.106(e), WISD argues that 101.106(b) requires the dismissal of Appellees’ case against the governmental unit. Section 101.106(b) states that the filing of a suit against any employee of a governmental unit forever bars any suit or recovery against the governmental unit involving the “same subject matter.” Because Appellees filed suit against the Defendant Employees for malicious prosecution, WISD argues that Appellees suit against it for unlawful termination of their employment should be dismissed under section 101.106(b). WISD’s arguments in support of dismissal under section 101.106(b) are twofold: (1) under section 101.106(b) the capacity in which the Defendant Employees were sued is irrelevant; and (2) the cause of action against the Defendant Employees and the cause of action against WISD consist of the same subject matter. Capacity of Employee Irrelevant First, WISD argues that the simple act of filing a suit against a governmental employee automatically bars a suit against the governmental unit, irrespective of whether the suit is filed against the employee in his official capacity or in his individual capacity. WISD states that it is irrelevant that Appellees sued the Defendant Employees for a common law claim outside the TTCA. They reason that because the language “under this chapter” is omitted from section 101.106(b), the provision is not restricted to TTCA claims alone, but applies to any common law tort claim brought against a governmental employee. Nor, WISD argues, does it matter that Appellees sued the Defendant Employees in their individual capacity because section 101.106(b) does not distinguish between suits filed against government employees in their official capacity and those filed against employees in their individual capacities. Therefore, WISD argues it is irrelevant that Appellees filed the lawsuit against the Defendant Employees, either as individuals or in their official capacity, because in either instance the lawsuit against WISD is still barred. Because amended section 101.106 contains similar language to that of former section 101.106, we look to previous interpretations of former section 101.106 for our analysis. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3305, (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code § 101.106). While the former statute did not address it, interpretations of former section 101.106 did not differentiate between whether the government employee was sued in his official or individual capacity in order to determine whether the statute’s bar applied. “Whether the plaintiff’s claim against the governmental unit falls under the TTCA is relevant, but whether the plaintiff’s claim against the employee falls under the TTCA is not.” Hallmark v. City of Fredericksburg, 94 S.W.3d 703, 710 (Tex. App.—San Antonio 2002, pet. denied) (citing Brand v. Savage, 920 S.W.2d 672, 674-75 (Tex. App.—Houston [1st Dist.] 1995, no writ)). This is because the purpose of former section 101.106 was to protect government employees from individual liability when a claim based upon the same facts is also made against their government employers under the TTCA. Hallmark, 94 S.W.3d at 710 (citing Gonzalez v. El Paso Hosp. Dist., 940 S.W.2d 793, 795 (Tex. App.—El Paso 1997, no writ)). The current version of amended-statute section 101.106(b) also does not differentiate between an employee in his official or individual capacity, and a deeper analysis reveals why this is so. Tex. Civ. Prac. & Rem. Code § 101.106. Filing a suit against an employee in his official capacity is “an attempt to impose liability on the State.” Tex. Parks and Wildlife Dept. v. E.E. Lowrey Realty, Ltd., 155 S.W.3d 456, 458 (Tex. App.—Waco 2004, pet. filed) (citing Vela v. Rocha, 52 S.W.3d 398, 403 (Tex. App.—Corpus Christi 2001, no pet.)). And so, if an employee sued in his official capacity files a motion under section 101.106(f), and the plaintiff dismisses the employee and amends his petition to name the governmental unit, then the suit is considered as a suit against the governmental unit. Tex. Civ. Prac. & Rem. Code § 101.106(f). However, if the employee makes no such motion, then the government is protected by the irrevocable bar of section 101.106(b). Tex. Civ. Prac. & Rem. Code § 101.106(b). It is precisely because section 101.106(b) does not address the capacity of the employee, that subsection (b) applies to employees sued in their official capacity who fail to file a motion under section 101.106(f). Tex. Civ. Prac. & Rem. Code § 101.106(b), (f). Similarly, because section 101.106(b) omits “under this chapter” it also applies to employees sued in their individual capacities, as employees sued in this capacity are usually sued under the common law. See McGowen v. Huang, 120 S.W.3d 452, 459 (Tex. App.—Texarkana 2003, pet. denied). The governmental unit is protected under both situations. Therefore, construing section 101.106 in the “plain and common meaning of the statute’s words,” the absence of a reference to “under this chapter” or to the capacity under which the employee is sued is intentional. Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 223 (Tex. App.—Dallas 2005, no pet.) (quoting LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995)); Villasan, 2005 Tex. App. LEXIS 4022 at *19. Accordingly, we agree with WISD that under section 101.106(b) whether the Defendant Employees were sued in their official or individual capacities is irrelevant. Same Subject Matter WISD also argues that the lawsuit against WISD and the Defendant Employees involves the same subject matter, as required by the statute. Tex. Civ. Prac. & Rem. Code § 101.106(b). WISD states that the subject matter of the lawsuit was the unlawful termination of the Appellees employment, and the malicious prosecution claim against the Defendant Employees is connected with the Appellees unlawful termination claim. WISD states that, but for the Defendant Employees actions which ultimately led to the termination of Appellees’ employment, there would be no cause of action against WISD. Thus, WISD argues that the actions and occurrences between Appellees, WISD, and the Defendant Employees are so inextricably intertwined that they cannot be separated. Therefore, WISD contends that Appellees’ claim against WISD is forever barred. Again we look to previous interpretations of former section 101.106 for our analysis. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3305, (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code § 101.106). Under the former statute, whether suits against the government and its employees were based on the same cause of action was irrelevant. Bossley, 968 S.W.2d at 343. The relevant inquiry was whether the two causes of action involved the same subject matter. Id.; Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997); Beasley v. Clark, 986 S.W.2d 256, 257 (Tex. App.—Houston [1st Dist.] 1998, no pet.); McGowen, 120 S.W.3d at 459. In previous cases, “same subject matter” is defined as “arising out of the same actions, transactions, or occurrences.” Bossley, 968 S.W.2d at 343; Newman, 960 S.W.2d at 622. Other courts use the factors of res judicata as relevant in determining same subject matter. See McGowen, 120 S.W.3d at 459. Under the doctrine of res judicata, determining whether suits involve the same transaction are based on a consideration of “whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to the parties’ expectations or business understanding or usage.” Sanders v. Blockbuster, Inc., 127 S.W.3d 382, 386 (Tex. App.—Beaumont 2004, pet. denied) (quoting Restatement (second) of Judgments § 24(2)); McGowen, 120 S.W.3d at 459 (citing Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992)). Appellees argue that the suit against WISD and the Defendant Employees involves two different set of facts: those involving their unlawful termination and those involving their malicious prosecution. We agree. The Defendant Employees reported Appellees alleged theft to the police two months after Appellees’ employment had been terminated. WISD claims that the two causes of action are intertwined because the actions of the Defendant Employees led to the Appellees’ termination, and because the accusations against the Appellees were well known to those on the Board the day the Board rejected Appellees appeal. However, Appellees state that on the day their administrative appeal was denied, they were unaware that the Defendant Employees had accused them of wrongdoing, much less reported their suspicions to the police. Appellees’ administrative appeal was denied shortly before they were arrested. Also, the actual termination of their employment, the subject of their complaint against WISD, and the facts leading up to their termination, occurred nearly four months before they were arrested. The filing of a grievance claim by Appellees and the subsequent termination of their employment by WISD in alleged retaliation for filing the grievance are the actions that led to the filing of the unlawful termination claim. The alleged false accusations of criminal conduct made to the police and the subsequent arrest of Appellees, none of which occurred before or contributed to the termination of the Appellees’ employment four months prior, are the facts that led to the filing of the malicious prosecution claim. WISD also argues that Appellees petition is proof that the two causes of action consist of the same subject matter because the lawsuit was brought against both WISD and the Defendant Employees and the Appellees in their petition seek to recover from “Defendants, jointly and severally” in their prayer for relief. Though both causes of action are brought in the same lawsuit, Appellees state that this was for the purpose of judicial economy. The facts for each cause of action were separated into different paragraphs in their petition and included in the separate paragraphs was a specific request for damages from each defendant. We find that the facts giving rise to the different causes of action are sufficiently separated by time and place and do not arise out of the same transactions or occurrences so as to constitute different subject matters under section 101.106(b). See Bossley, 968 S.W.2d at 343; McGowen, 120 S.W.3d at 459. Therefore, 101.106(b) does not apply to WISD as a means by which it should be dismissed from Appellees’ lawsuit. The trial court did not err in denying WISD’s plea to the jurisdiction. Accordingly, we overrule WISD’s only issue. Conclusion Having overruled WISD’s only issue, we affirm the judgment of the trial court. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissents with a note: By a separate order issued November 23, 2005, the Appellant’s motion for rehearing is being denied by a majority of the justices who participated in the original decision of this appeal. But the motion for rehearing pointed out sufficient problems with the opinion originally issued on September 7, 2005, that the opinion and judgment of that date are being withdrawn and the majority’s new opinion and judgment dated November 23, 2005, are substituted for them. My dissenting opinion dated September 7, 2005, is not withdrawn but will be reissued on November 23, 2005. For a further discussion of the problems being created by the explosion of withdrawals and substituted opinions, see Kelly v. Gaines, No. 10-03-00369-CV, 2005 Tex. App. LEXIS 9628 (Tex. App.—Waco Nov. 16, 2005)(Gray, C.J., concurring and dissenting). Affirmed Opinion delivered and filed November 23, 2005 [CV06] :.5in;line-height:200%'>Dixon and Hulsey v. State, 211 S.W.3d 853 (Tex. App.—Waco 2006, no pet.) also shed some light on this issue. In Dixon, the victim did not testify about one distinct, detailed incident, but “described the manner in which appellant sexually assaulted her and said that it occurred numerous times.” Dixon, 201 S.W.3d at 734. Specifically, the victim “related a sequence of events that occurred every time appellant sexually assaulted her.” Id. at 732. Dixon would undress, remove the victim’s underwear, touch her “private parts” with his hand, and touch her “private parts” with his “private parts.” Id. This occurred one hundred times and, with one exception, always occurred at night. Id. The victim provided no other details. Id. Thus, “all of the incidents presented in the case were presented with equal specificity, and, except for the fact that one incident occurred during the day, none of the incidents were distinguished in any manner from each other.” Id. at 734. The Court of Criminal Appeals found “beyond a reasonable doubt that the error in failing to require an election did not contribute to appellant’s conviction or punishment.” Id. at 736. In Hulsey, a jury convicted Hulsey of two counts of sexual assault, seven counts of indecency with a child by contact, and one count of indecency with a child by exposure. See Hulsey, 211 S.W.3d at 855. Latoya testified that when she was twelve or thirteen, Hulsey began getting in bed with her and would lie next to her. Id. at 856. He eventually began rubbing her breasts and genitals. Id. He did this every morning that he could when Latoya’s mother was at work, more than ten times and so many times that she could not remember how many. Id. Hulsey began having intercourse with Latoya when she was approximately fifteen. Id. Over about a two-year period, Hulsey sexually assaulted her more than fifty times and that the number may have been one hundred times, which is what she had told police. Id. Latoya’s two sisters also saw Hulsey on top of Latoya. Id. Latoya did not testify to specific instances of sexual assaults or indecency. Id. at 855. The trial court denied Hulsey’s motion to require the State to elect. Id. Hulsey argued that this denial was error as to two counts of sexual assault and two counts of indecency by contact. Id. As to the two counts of indecency by contact with Latoya’s genitals and breast, we found, beyond a reasonable doubt, that the trial court’s failure to require the State to elect did not contribute to Hulsey’s conviction or punishment because Latoya related a sequence of events that occurred every time Hulsey assaulted her and provided no other details. Id. at 856 (citing Dixon, 201 S.W.3d at 734-36). As to the two counts of sexual assault, a specific incident had been identified for each count; thus, it would have been clear as to which incidents the State was relying on for conviction. Id. at 857 (citing Phillips, 130 S.W.3d at 355). Unlike the victims in Phillips and Farr, Brenda did not testify in detail about any specific incidents of charged conduct. Thus, the jurors were not given a choice of incidents from which to choose for conviction on each charged offense. Neither was Brenda’s testimony as general as that of the victim in Farr. In Farr, K.R. merely testified that the particular offense occurred “every chance [Farr] got,” that they were alone during the offense, and that the offenses did not occur during the incidents of oral sex. Here, as to each offense, Brenda identified how the offenses occurred, the school year during which the offenses occurred, where the offenses occurred, what time of day the offenses occurred, and how often the offenses occurred. She also provided some details of what took place during each offense. Like the victims in Dixon and Hulsey, Brenda described a sequence of events that occurred each time Jackson committed a particular offense. See Dixon, 201 S.W.3d at 732; see also Hulsey, 211 S.W.3d at 856. All the incidents for each offense were presented with equal specificity and, except for the fact that the offenses occurred in different locations in or around the home or their property, none of the incidents were distinguished in any manner from each other. See Dixon, 201 S.W.3d at 734. Moreover, the unanimity requirement was emphasized during trial. In closing, defense counsel reminded the jury that: (1) the evidence consists of “assaults or indecencies going on over a long period of time”; (2) “before you can convict Amos [Jackson] of any one of these you’ve got to unanimously agree that the State has proved one transaction, one event, beyond a reasonable doubt”; (3) “if the case has been proven on any of these, you’ve got to agree on one event”; and (4) “you’ve got to agree on a specific event, that all of the elements of that particular charge are proved beyond a reasonable doubt on that particular case.” In its jury charge, the trial court instructed the jury that before “reaching a verdict of guilty under any individual indictment tried in this trial, the jury must agree that all of the elements charged in the individual indictment under consideration occurred in a single incident in the manner alleged in that individual indictment.” We cannot say that Jackson was deprived of a unanimous verdict. See Dixon, 201 S.W.3d at 735; see also Hulsey, 211 S.W.3d at 856. Neither can we say that Jackson was deprived of notice or an opportunity to defend against the particular offenses on which the State intended to rely for conviction. Other than the locations in the home where the offenses occurred, there was no distinction between Brenda’s account of each offense. See Dixon, 201 S.W.3d at 736. Jackson was not deprived of notice or an opportunity to defend. In summary, we find, beyond a reasonable doubt, that the trial court’s failure to force the State to make an election did not contribute to Jackson’s conviction or punishment. See Dixon, 201 S.W.3d at 734-36; see also Hulsey, 211 S.W.3d at 856. We overrule Jackson’s first issue. MOTION TO QUASH Jackson’s second issue challenges the denial of his motion to quash the indictments. We review a trial court’s ruling on a motion to quash an indictment for abuse of discretion. State v. Flournoy, 187 S.W.3d 621, 623 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Each indictment charged Jackson with committing an offense that occurred “on or about” a specific date. Jackson filed a motion to quash the indictments on grounds that each offense was alleged to have occurred more than once and “it is impossible to know which of the multiple offenses was the actual offense authorized by the Grand Jury for prosecution.” The trial court denied the motion. On appeal, Jackson contends that he could not “determine that the offense for which he was convicted was the very same event or set of facts indicted by the Grand Jury and that at least nine members of the Grand Jury returning this indictment agreed upon the same set of facts.” In Weatherby v. State, 61 S.W.3d 733 (Tex. App.—Fort Worth 2001, pet. ref’d), Weatherby was charged with two counts of aggravated sexual assault of a child. See Weatherby, 61 S.W.3d at 735. The first count alleged, “on or about December 24, 1998, aggravated sexual assault of S.W. by contact of her sexual organ to the mouth or sexual organ of appellant.” Id. The second count alleged indecency with a child by contact of her breast or genitals, but the jury charge submitted this count as a lesser included offense of aggravated sexual assault. Id. The trial court denied Weatherby’s motion to quash the indictment. Id. On appeal, Weatherby argued that “there was no way of knowing whether the grand jury indicted him on the same facts presented to the petit jury at trial” because the indictment did not (1) “specifically allege the incident that he was going to be tried for”; or (2) “specify the acts constituting the alleged offenses.” Id. The Fort Worth Court noted that the “indictment tracked the language of the respective statutes” and that, pretrial, the State had elected a primary offense. Id. at 736. The trial court had “specifically asked the prosecutor whether that was the offense presented to the grand jury and the prosecutor responded that there was no evidence to the contrary.” Id. Because there was no evidence that the “offenses presented to the grand jury differed from the offenses proved at trial, the trial court did not abuse its discretion.” Id. (citing Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997)). In Sledge, the indictment charged Sledge with “aggravated sexual assault and indecency with a child, alleging that the offenses occurred on or about August 31, 1988.” Sledge, 953 S.W.2d at 254. Sledge filed a motion requesting notice of extraneous offenses. Id. In its response, the State listed “several instances of sexual abuse” and at the pre-trial hearing, the “State revealed that the conduct of appellant towards the victim had been continuous over several years.” Id. At Sledge’s request, the State elected to “proceed on two specifically described episodes which occurred when the child was ten and eleven, because those incidents were most clear in her mind.” Id. On appeal, Sledge argued that “the question is whether the State may obtain a conviction by proof of a different act from the act upon which the grand jury indicted - - indeed by proof of an act which the State has labeled ‘extraneous.’” Id. at 254. However, there was “no evidence that the testimony presented to the grand jury related to offenses other than those proven at trial.” Id. at 256. Although the State made elections in both Weatherby and Sledge, but no elections were made in this case, Brenda did not testify to any specific incidents from which the grand jurors could choose. There is simply no evidence that the “offenses presented to the grand jury differed from the offenses proved at trial.” Weatherby, 61 S.W.3d at 736; see Sledge, 953 S.W.2d at 256. The trial court did not abuse its discretion by denying Jackson’s motions to quash. See Weatherby, 61 S.W.3d at 736; see also Sledge, 953 S.W.2d at 256. We overrule Jackson’s second issue. ABILITY TO HEAR THE EVIDENCE AND CONFRONT WITNESSES In issue three, Jackson contends that he could not hear the evidence presented at trial or confront the witnesses against him in violation of article 38.31 of the Code of Criminal Procedure, the Sixth and Fourteenth Amendments of the United States Constitution, and article 1, section 10 of the Texas Constitution. At trial, Jackson informed the trial court that he was having difficulty hearing the proceedings. The trial court obtained a set of headphones, which Jackson used for the remainder of trial. After trial, Jackson filed a motion for new trial, alleging that he was deaf, could not hear the proceedings, and did not receive “adequate hearing devices,” thereby depriving him of the rights to “be confronted by his accusers,” “fully understand the nature of the proceedings,” and “take part in his own defense.” At a hearing on the motion, Jackson testified that he has an 82.5 percent hearing loss and completed a sign language course. He was not fluent, but could understand sign language when used slowly. He received an award for his ability to work despite his inability to hear without hearing aids. During voir dire, he could not hear the panel’s responses. When using the headphones, he could hear the witnesses, but could not hear the testimony of the sexual assault nurse examiner when she turned to draw diagrams on the board, the testimony of witnesses when the microphones went out, or a video that had been played. He received headphones on the second day of trial. On cross-examination, Jackson told the prosecutor that he could not hear her, that she needed to speak slowly so he could read her lips, and that the “high pitch” of her voice caused him to have trouble hearing. When asked, Jackson later told the prosecutor, who was using a microphone, that he could hear her because she was close to him and he was reading her lips. He admitted that he had appeared before the trial court several times before trial, including arraignment and pretrial hearings. He claimed that, during his bail hearing, he advised the trial court of his hearing problems. He had not previously informed the trial court of his 82.5 percent hearing loss, but explained that he had not been asked. Even after receiving the headphones, he told his attorney that he was having problems hearing and his attorney expressed his own hearing difficulties. They informed the judge who instructed them to tap on the microphones to make them “work properly.” He did not tell the trial court of the need for an interpreter, but explained that he cannot “understand sign very fast.” Neither did he ask for any form of writing regarding the witnesses’s testimony. On redirect, Jackson stated that his previous court appearances took place at the bench, which enabled him to read the judge’s lips. On re-cross, Jackson stated that he can hear with his hearing aids when he is “out in the open where there’s not so much of this bouncing around in a room with background noise.” The prosecutor testified that for the first time during a break, Jackson advised the trial court of his hearing problems. The trial court offered to search for a hearing device to plug into the sound system. Upon return from the break, the trial court told Jackson that he would have to contact someone to obtain a hearing device. Defense counsel did not object to proceeding with voir dire until a device could be obtained. When the device was provided, the trial court inquired as to whether Jackson could hear and the defense confirmed that he could hear fine. The defense made no other indications that Jackson was having trouble hearing. The trial court placed his own recollection on the record, which he subsequently detailed in findings of fact and conclusions of law. The trial court’s findings of fact state that: (1) before trial, it was not advised of Jackson’s hearing impairment, testimony regarding an impairment was not presented, and it was not apparent that Jackson had any difficulty hearing; (2) in the morning on the first day of trial, defense counsel advised the trial court that Jackson was having trouble hearing; (3) defense counsel did not object to proceeding until a hearing device could be obtained; (4) during lunch, Jackson received a set of headphones attached to an audio device plugged into the sound system and indicated that “he could hear fine”; (5) Jackson used the device during the remainder of trial; (6) it was not apparent that Jackson had any further trouble hearing and there were no additional objections on the issue; and (7) Jackson “appeared to confer with his attorney during the trial without difficulty and thus it was not apparent to the Court that he had difficulty hearing during the rest of the trial.” The trial court’s conclusions of law state that: (1) the trial court “devised a suitable remedy” to which Jackson and his counsel agreed; and (2) Jackson was not denied due process, the opportunity to confront witnesses, the “right to participate in his trial or the ability to understand the proceedings in his case.” The trial court denied Jackson’s motion. On appeal, Jackson argues that he qualifies as a “deaf person;” thus, the trial court was required to either provide an interpreter or, if the defendant is unable to understand sign language, “fashion a remedy suitable to overcome the defendant’s disability.” Despite the provided headphones, Jackson maintains that he could not hear “essential portions” of the trial. A trial court must provide an interpreter for a deaf person. See Tex. Code Crim. Proc. Ann. art. 38.31(a) (Vernon Supp. 2008). “The statute implements the constitutional right of confrontation, which includes the right to have trial proceedings presented in a way that the accused can understand.” Salazar v. State, 93 S.W.3d 339, 340 (Tex. App.—Texarkana 2002, pet. ref’d). If the defendant cannot understand sign language, the trial court must “fashion a remedy suitable to overcome the defendant’s disability.” Lincoln v. State, 999 S.W.2d 806, 809 (Tex. App.—Austin 1999, no pet.). “A defendant’s failure to object or request relief does not waive his confrontation right if it is otherwise apparent that he cannot hear or understand the proceedings.” Id. In Lincoln, Lincoln argued that the trial court failed to “make proper accommodations for his hearing impairment,” depriving him of his right to confront witnesses and right to an interpreter. See id. at 807. Lincoln was not deaf, but had difficulty hearing. Id. at 809. During trial, he advised the trial court of this problem. Id. The trial court allowed Lincoln to move or the “speakers repeated themselves to permit [Lincoln] to hear.” Id. Lincoln “did not indicate at the time that these arrangements were unsatisfactory.” Id. He was also “addressed by the court and responded appropriately, indicating that he heard and understood what was said,” and “twice took the stand and testified without difficulty.” Id. at 809-10. Only after trial ended did Lincoln tell the trial court that he could not hear much of the time. Id. at 810. Because the trial court observed Lincoln throughout trial, it was in the “best position to judge the credibility of [Lincoln’s] claim that he did not hear the proceedings.” Id. “While the failure of appellant or his attorney to tell the court earlier that appellant could not hear the proceedings is not a bar to raising the issue on appeal, it is relevant to the question whether the district court knew or should have known that additional remedies were needed.” Id. The Austin Court held that, “[c]onsidering what the district court was told and observed during the trial, we are not persuaded that the court failed to take constitutionally adequate steps to assure that [Lincoln] heard and understood the proceedings.” Id. In Salazar, Salazar complained that “when it became apparent he could not hear the witnesses because of his hearing impairment, the court was required to provide him an interpreter or some other means of communication that would permit him to participate in the proceedings.” Salazar, 93 S.W.3d at 340. However, “Salazar was addressed by the court or by counsel and responded appropriately, indicating that he heard and understood what was said.” Id. at 341. Not until the victims finished testifying did Salazar tell the trial court that he could not hear the testimony. See id. “Until then the trial judge had every reason to believe Salazar was able to understand the proceedings and testimony, and no reason to the contrary.” Id. Thus, the trial court “could not be expected to take action to ensure that the testimony’s content was effectively communicated to Salazar.” Id. Because the trial court was in the best position to judge the credibility of Salazar’s complaint, the Texarkana Court was “not persuaded [that] the court failed to take constitutionally adequate steps to ensure Salazar heard and understood the proceedings.” Id. Jackson briefly testified outside the jury’s presence as to proceeding or resting his case. His attorney asked to be informed if Jackson could not hear him. The record indicates that Jackson did not have difficulty testifying, but responded appropriately and appeared to hear and understand what was being said. Jackson had also appeared before the court on several occasions before trial and never indicated that he could not hear or understand what was being said. Once Jackson advised the trial court of his hearing difficulties, the trial court provided the set of headphones connected to the sound system. According to the record, this was done before voir dire. The trial court asked the defense if the device satisfied Jackson and counsel responded that Jackson could hear fine. He did not indicate either at that time, or any other time, “that these arrangements were unsatisfactory.” Lincoln, 999 S.W.2d at 809. Thus, the trial court had every reason to believe that Jackson could hear and understand the proceedings and, without information to the contrary, could not be expected to take any other action. Only after trial ended did Jackson inform that trial court of his 82.5 percent hearing loss or his inability to hear portions of the proceedings. His failure to inform the trial court, at an earlier time, that he could not hear the proceeding, is relevant to the whether the trial court knew or should have known of Jackson’s need for “additional remedies.” Id. Having observed Jackson throughout trial, the trial court was in the “best position to judge the credibility of [his] claim that he did not hear the proceedings.” The record does not indicate that the trial court “failed to take constitutionally adequate steps to assure that [Jackson] heard and understood the proceedings.” Lincoln, 999 S.W.2d at 810; see Salazar, 93 S.W.3d at 341. We overrule issue three. Because we have overruled Jackson’s three issues, we affirm the judgment in each of the six cases listed above. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed September 3, 2008 Do not publish [CRPM] [1] “Brenda Daniels” is a pseudonym. [2] Brenda also testified that, on two occasions, Jackson made her watch a pornographic film. When Brenda was in eighth grade, Jackson attempted to penetrate her vagina with his penis on two occasions, once in the fall of 2004 and once in April 2005. Both acts occurred in Brenda’s bedroom. She and Jackson were unclothed. Jackson was not charged with penetrating Brenda’s sexual organ with his sexual organ.