942 N.E.2d 1235 (2011)
239 Ill.2d 452
The PEOPLE of The State of Illinois, Appellee,
v.
Richard D. KITCH, Appellant.
No. 108769.
Supreme Court of Illinois.
January 21, 2011.
*1237 Michael J. Pelletier, State appellate Defender, Gary R. Peterson, Deputy Def., Nancy L. Vicent, Asst. Appellate Def. of the Office of State Appellate Def., of Springfield, for appellant.
Lisa Madigan, Atty. Gen., of Springfield and Teena Griffin, State's Atty., of Rushville (Michael A. Scodro, Solicitor Gen., and Michael M. Glick and Erin M. O'Connell, Asst. Attorney's Gen., of Chicago, of counsel), for the People.

OPINION
Justice FREEMAN delivered the judgment of the court, with opinion.
Following a jury trial, defendant Richard Kitch was convicted of nine counts of predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse. The circuit court of Schuyler County sentenced him to nine consecutive natural life prison terms for predatory criminal sexual assault of a child, and a concurrent 14-year extended term for aggravated criminal sexual abuse. The appellate court ordered the natural life prison terms to be served concurrently rather than consecutively, and affirmed in all other respects. 392 Ill.App.3d 108, 333 Ill. Dec. 508, 915 N.E.2d 29. For the reasons set forth below, we affirm the judgment of the appellate court.

I. BACKGROUND
In February 2005, the State charged defendant with multiple counts of sexual assault and abuse allegedly perpetrated against his stepdaughter, K.J.K., who was born January 8, 1991, and his stepson, M.J.B., who was born May 5, 1994. Specifically, the State charged defendant with predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)), alleging that, between March 2000 and *1238 March 2003, defendant (a) placed his penis in the mouth of K.J.K. (counts I and II); (b) allowed his penis to have contact with K.J.K.'s vaginal area (count III); (c) placed his penis in K.J.K.'s vagina (counts IV, V, and VI); and (d) placed his penis in the mouth of M.J.B. (counts IX, X, and XI). The State also charged defendant with aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2004)), alleging that in November 2002 he knowingly touched M.J.B.'s penis with his fingers for the purpose of sexual arousal (counts VII and VIII).[1]
Pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2004)), the State filed a pretrial notice of intent to introduce hearsay statements of K.J.K. and M.J.B. describing the alleged abuse. Defendant objected. At a hearing, Schuyler County Sheriff Don Schieferdecker (Don) and one of his employees, Anna Marie Schieferdecker (Anna Marie), testified to the circumstances of their interviews of the children and introduced the children's written statements, which Anna Marie and Don had transcribed. The State indicated K.J.K. and M.J.B. would testify at trial. The circuit court found the hearsay statements admissible under the statute, on the condition that the children testified.
Defendant fled the jurisdiction prior to trial and was subsequently tried in absentia in October 2005. The evidence at trial included testimony from K.J.K. and M.J.B.; their mother, Susan; Anna Marie and Don; an obstetric gynecologist; and two forensic scientists.
Dr. Victoria Nichols-Johnson, an obstetric gynecologist, testified she examined K.J.K. on July 3, 2003. K.J.K. told her that her "mom's husband" had touched her breasts and vagina. When Dr. Nichols-Johnson visually examined K.J.K.'s genital area, she observed "changes in the hymenal ring" that suggested possible penetration by an external object. She encountered little resistance when inserting her fingers or a speculum into K.J.K.'s vagina, and opined that "something had been there before." According to Dr. Nichols-Johnson, it was "highly likely that [K.J.K.] had been abused."
Susan testified that she and her children moved in with defendant on December 16, 1999, and she married defendant on February 29, 2000. Thereafter, Susan noticed defendant "started to favor" K.J.K. and became less friendly toward M.J.B. Defendant also began disciplining the children. He spanked them with a leather strap and would "scream at them."
Susan testified further that defendant often hugged and kissed K.J.K., and would grab her buttocks and breasts. When K.J.K. was 11 years old, defendant tattooed her bare buttock while she was partially clothed and lying on the dining room table. When K.J.K. was 12, Susan observed defendant rubbing lotion on K.J.K.'s breasts. On one occasion, Susan saw defendant coming out of a shower he had been sharing with K.J.K. When Susan confronted him, he said he had been helping K.J.K. wash her hair.
In March 2003 Susan moved out of defendant's residence. As she and the children drove away, she assured K.J.K. and M.J.B. they would not have to live with defendant again. K.J.K. and M.J.B. then told her defendant had sexually abused them. Susan reported the allegations to the sheriff. In June 2003, Susan provided the sheriff with the comforter that K.J.K. had on her bed when they lived with defendant. Susan testified she and defendant *1239 never engaged in any sexual activity on the comforter.
Anna Marie testified she interviewed K.J.K. in March 2003 at the sheriff's department. Anna Marie wrote down the questions she asked K.J.K., followed by K.J.K.'s answers. The statement was admitted into evidence without objection.
Anna Marie testified regarding K.J.K.'s statement. In March 2000 K.J.K. was home alone with defendant when he came into her room. He asked her if she wanted to have sex and she said no. K.J.K. tried to leave, but defendant blocked the doorway, pushed her down on the floor, and forced his penis into her mouth. Later that day defendant returned to K.J.K.'s room and again forced his penis into her mouth. When he was finished, he told her that if she told anyone, he would kill her. Anna Marie asked K.J.K. if this happened again, and she replied: "Anytime my mom was gone, in the shower, or sleeping late."
In the summer of 2001, K.J.K. was home alone with defendant. K.J.K. had blocked the entrance to her bedroom, but defendant forced his way in, pushed her down on the bed, and put his penis between her legs, rubbing his penis on her vaginal area. Defendant repeated this act almost every time K.J.K. was home alone with him until June 2002, when defendant began inserting his penis inside her vagina. After June 2002 defendant had sexual intercourse with K.J.K. about once a week.
K.J.K. testified consistently with her statement to Anna Marie regarding defendant forcing his penis into her mouth, between her legs, and into her vagina.[2] K.J.K. also explained that a couple of months after defendant began putting his penis between her legs, he started putting his fingers in her vagina, telling her he was doing it so his penis would eventually "fit." K.J.K. also described an instance when defendant's ejaculate dripped onto her comforter, and defendant told her to wipe it up with some paper towels. K.J.K. identified the comforter as the one Susan had testified she gave to the sheriff. K.J.K. also testified about defendant rubbing cocoa butter on her breasts, showering with her, and putting a tattoo on her right buttock.
Don, the Schuyler County sheriff, testified that in March 2003 he interviewed M.J.B. at the sheriff's office. Don wrote out the questions he asked M.J.B., followed by M.J.B.'s answers. The statement was admitted into evidence without objection.
Don testified regarding M.J.B.'s statement. Sometime after Thanksgiving 2002, defendant came into M.J.B.'s room, grabbed M.J.B.'s penis, and began rubbing it for about 30 seconds. In January 2003, defendant took M.J.B. into the bathroom, put M.J.B.'s hand on defendant's penis, and told M.J.B. to move his hand up and down. M.J.B. did this for about one minute, and defendant ejaculated. Later that same month, defendant took M.J.B. into the bathroom, put his penis in M.J.B.'s mouth, and told him to suck it. M.J.B. told the sheriff that, subsequently, defendant forced him to perform this same oral act an additional three or four times. Don also testified about an April 2003 written *1240 statement by K.J.K. which described how defendant's ejaculate came to be on her comforter.
M.J.B. testified, in relevant part, that when he was about eight years old defendant touched M.J.B.'s penis in M.J.B.'s bedroom. Other incidents occurred in the bathroom. On one occasion, defendant forced M.J.B. to touch defendant's penis, and on three or four occasions defendant put his penis in M.J.B.'s mouth.
Forensic scientists at the Illinois State Police Forensic Science Laboratory testified that the deoxyribonucleic acid (DNA) profile identified in a semen stain on K.J.K.'s comforter matched defendant's DNA profile.
The jury convicted defendant on all 10 counts. Defendant filed a motion for a new trial, which the circuit court denied. In November 2005 the court sentenced defendant in absentia[3] to nine natural life prison terms for predatory criminal sexual assault of a child, each to run consecutively, and a 14-year extended-term sentence for aggravated criminal sexual abuse, to run concurrently.
The appellate court affirmed defendant's convictions but modified his natural life prison sentences from consecutive to concurrent terms. 392 Ill.App.3d 108, 333 Ill.Dec. 508, 915 N.E.2d 29. The court also granted the State its statutory assessment of $50 against defendant as costs of the appeal. We allowed defendant's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb.26, 2010).

II. ANALYSIS

A. Direct Testimony of K.J.K. and M.J.B.
Defendant first argues K.J.K. and M.J.B. did not testify in enough detail to have "appeared" for cross-examination within the meaning of the confrontation clause. Specifically, defendant contends the State failed to ask K.J.K. and M.J.B. "about each incident in enough detail to establish each and every element of every count," and defendant was unable to engage in effective cross-examination, in violation of his right to confrontation under the sixth amendment (U.S. Const., amend. VI).
The State argues defendant forfeited this argument. "To preserve an alleged error for review, a defendant must raise a timely objection at trial and raise the error in a written posttrial motion." People v. Cosby, 231 Ill.2d 262, 271, 325 Ill.Dec. 556, 898 N.E.2d 603 (2008). "The failure to object to alleged error at trial and raise the issue in a posttrial motion ordinarily results in the forfeiture of the issue on appeal." People v. Allen, 222 Ill.2d 340, 350, 305 Ill.Dec. 544, 856 N.E.2d 349 (2006). Here, defendant did neither. He did not object at trial, as he does before this court, that the child witnesses were not available for cross-examination, such that admitting their hearsay testimony violated the confrontation clause. Nor did he contend in his motion for new trial that admission of the hearsay testimony violated his confrontation right; rather, he argued only that the hearsay statements were not sufficiently reliable, an apparent reference to section 115-10(b)(1), which requires a judicial determination that "the time, content, and circumstances of the statement provide sufficient safeguards of reliability" (725 ILCS 5/115-10(b)(1) (West 2004)). We therefore agree with the State that defendant has forfeited this issue.
*1241 Defendant however maintains that if we conclude there was forfeiture, we should review the issue under the plain-error doctrine. Rule 615(a), the basis for this doctrine, provides: "Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." Ill. S.Ct. R. 615(a). The plain-error doctrine creates "a narrow and limited exception to the general rule of forfeiture, whose purpose is to protect the rights of the defendant and the integrity and reputation of the judicial process." Allen, 222 Ill.2d at 353, 305 Ill.Dec. 544, 856 N.E.2d 349, citing People v. Herron, 215 Ill.2d 167, 177, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005). The defendant bears the burden of establishing plain error. Herron, 215 Ill.2d at 187, 294 Ill.Dec. 55, 830 N.E.2d 467.
We observe, initially, that defendant does not challenge in this court the adequacy of K.J.K.'s testimony with regard to counts I, II, and III. In his brief, defendant challenges the adequacy of the victims' testimony only with respect to counts IV, V, and VI (involving acts of vaginal penetration against K.J.K.) and counts VII, IX, X, and XI (involving M.J.B.).
The first step in plain-error review is to determine whether an error occurred. In re M.W., 232 Ill.2d 408, 431, 328 Ill.Dec. 868, 905 N.E.2d 757 (2009). In making this determination, we consider whether, as defendant argues, the State improperly failed to ask the victims about each incident in enough detail to establish the elements of each count. Counts IV through VI and IX through XI all charged defendant with predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)), and count VII charged him with aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2004)). To prove predatory criminal sexual assault of a child, the State needed to show that (1) defendant was 17 years of age or older when he (2) committed "an act of sexual penetration" with (3) a victim under the age of 13. 720 ILCS 5/12-14.1(a)(1) (West 2004). "Sexual penetration" is "any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person." 720 ILCS 5/12-12(f) (West 2004). As defendant acknowledged in the appellate court, when the State files multiple charges, "the State is not required to prove dates of commission," but only to provide "some way to differentiate between" the various counts. To prove aggravated criminal sexual abuse (count VII), the State needed to show that (1) defendant was 17 years of age or older when he (2) committed "an act of sexual conduct" with (3) a victim under the age of 13. 720 ILCS 5/12-16(c)(1)(i) (West 2004). "Sexual conduct" is "any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of * * * any part of the body of a child under 13 years of age * * * for the purpose of sexual gratification or arousal of the victim or the accused." 720 ILCS 5/12-12(e) (West 2004).
It is undisputed that defendant was over the age of 17 and the victims were under the age of 13 when the offenses occurred. The question, then, is whether the State, through the victims' direct testimony, proved "an act of sexual penetration" with regard to counts IV through VI and IX through XI, and "an act of sexual conduct" with regard to count VII.
The counts pertaining to K.J.K. alleged defendant penetrated her vagina with his penis once in June 2002 (count IV); once between July 1, 2002, and February 28, 2003 (count V); and once on approximately *1242 March 1, 2003 (count VI). At trial, K.J.K. testified that, on multiple occasions, defendant "put his penis inside [her] vagina" while they were in her bedroom, adding that sometimes ejaculate ran down her leg onto her comforter and that "[o]ccasionally, after he was finished, [she] would go to the bathroom and it stung a little." While K.J.K.'s testimony was somewhat unclear as to when every incident occurred, it nevertheless established that at least three acts occurred between June 2002 (count IV) and March 2003 (counts V and VI). K.J.K. testified that defendant (1) first forced her to have oral sex "[a] couple months" after defendant married her mother in February 2000; (2) touched her vaginal area with his penis "[a] couple months after he had started doing it oral"; (3) put his fingers in her vagina two or three months later; and (4) began having vaginal intercourse with K.J.K. approximately three months after that. According to this testimony, defendant would have begun having vaginal intercourse with K.J.K. about December 2000 or January 2001. K.J.K. testified defendant repeated this act "a couple times a month" until K.J.K. moved out in March 2003.
The counts pertaining to M.J.B. alleged that (1) defendant touched M.J.B.'s penis in about November 2002 (count VII); and (2) on three occasions, twice in approximately January 2003 (counts IX and X) and once in February 2003 (count XI), defendant placed his penis in M.J.B.'s mouth. At trial, M.J.B. testified that defendant "[p]ut his hand on [M.J.B.'s] penis" when M.J.B. was about eight years old, and subsequently defendant placed his penis in M.J.B.'s mouth "[t]hree or four times." According to this testimony, defendant touched M.J.B.'s penis after May 5, 2002 (count VII), and placed his penis in M.J.B.'s mouth "three or four times" thereafter (counts IX through XI).
Accordingly, K.J.K.'s and M.J.B.'s direct testimony, standing alone, was sufficient to establish the elements of the relevant counts against defendant. We also conclude, largely for this reason, that K.J.K.'s and M.J.B.'s direct testimony was sufficient to allow for effective cross-examination. Their direct testimony provided enough detail to allow for cross-examination within the meaning of the confrontation clause. Our review of the record shows that both K.J.K. and M.J.B. answered all of the questions put to them by defense counsel on cross-examination. Their answers were forthright. There was no indiction they were being evasive.
There is nothing in People v. Learn, 396 Ill.App.3d 891, 336 Ill.Dec. 117, 919 N.E.2d 1042 (2009), a case on which defendant relies, that compels a different result. In Learn, the defendant was charged with one count of aggravated criminal sexual abuse. The victim was his four-year-old niece. Prior to trial, the circuit court granted the State's section 115-10 motion to admit out-of-court statements made by the victim to her father and two police officers. The motion was granted on condition that the child testify. At trial, the victim testified to preliminary matters but then became too emotionally distraught to continue, and therefore did not testify on direct examination to any of the alleged incidents of sexual abuse. The circuit court concluded the child nevertheless had testified for purposes of section 115-10, and allowed the State to introduce her hearsay statements. The appellate court reversed, holding that the victim did not "testify" within the meaning of the statute. The court reasoned that a victim must give "accusatory testimony," i.e., "confront the defendant and accuse him of [some]thing." Learn, 396 Ill.App.3d at 898-901, 336 Ill. Dec. 117, 919 N.E.2d 1042. The court stated: "[The victim's] spoken testimony was not incriminating; thus, defendant *1243 was not confronted by his accuser nor given the right to rigorously test the accusation against him through cross-examination." Learn, 396 Ill.App.3d at 901-02, 336 Ill.Dec. 117, 919 N.E.2d 1042. Here, by contrast, K.J.K. and M.J.B. "accused" defendant of multiple acts of sexual abuse, through their direct testimony. Learn is distinguishable from the case at bar.
Given that defendant has failed to demonstrate there was any error with respect to this issue, his forfeiture stands. See People v. Keene, 169 Ill.2d 1, 17-18, 214 Ill.Dec. 194, 660 N.E.2d 901 (1995).

B. Constitutionality of Section 115-10
Defendant next argues that section 115-10 is unconstitutional on its face. Defendant points to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which reinterpreted the confrontation clause, and argues that, in light of Crawford, section 115-10 violates the confrontation clause of the United States Constitution (U.S. Const., amend. VI) as well as that of the Illinois Constitution (Ill. Const.1970, art. I, § 8). Specifically, defendant contends the statute is unconstitutional because: (1) it improperly incorporates the now-defunct reliability standard for determining whether admission of hearsay testimony comported with the confrontation clause, and (2) it does not incorporate the limitations on admissibility imposed by Crawford. According to defendant, the hearsay statements in the case at bar were improperly admitted under an unconstitutional statute, section 115-10, and defendant "must receive a new trial."
Initially, there is a "strong presumption" that a legislative enactment passes constitutional muster, and a party challenging the constitutionality of a statute bears the burden of clearly establishing its invalidity. People v. Thurow, 203 Ill.2d 352, 367, 272 Ill.Dec. 185, 786 N.E.2d 1019 (2003). A statute is unconstitutional on its face only if no set of circumstances exists under which it would be valid. Napleton v. Village of Hinsdale, 229 Ill.2d 296, 306, 322 Ill.Dec. 548, 891 N.E.2d 839 (2008). "Thus, so long as there exists a situation in which a statute could be validly applied, a facial challenge must fail." Hill v. Cowan, 202 Ill.2d 151, 157, 269 Ill.Dec. 875, 781 N.E.2d 1065 (2002). Whether a statute is constitutional is a question of law, which we review de novo. People v. McCarty, 223 Ill.2d 109, 135, 306 Ill.Dec. 570, 858 N.E.2d 15 (2006).
Section 115-10 provides, in pertinent part:
"(a) In a prosecution for a physical or sexual act perpetrated upon or against a child under the age of 13 * * * the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by the victim of an out of court statement made by the victim that he or she complained of such act to another; and
(2) testimony of an out of court statement made by the victim describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual or physical act against that victim.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child * * * either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is corroborative evidence of *1244 the act which is the subject of the statement[.]" 725 ILCS 5/115-10 (West 2004).
Section 115-10 allows for a child victim's hearsay statement to be admitted under two scenarios: (1) the court deems the statement reliable and the child testifies at trial (subsections (b)(1) and (b)(2)(A)); or (2) the child does not testify, the statement is deemed reliable, and the allegations of sexual abuse are independently corroborated (subsections (b)(1) and (b)(2)(B)). Here, the circuit court admitted K.J.K.'s and M.J.B.'s hearsay statements under the first scenario, as both children testified at trial.
Under Crawford, the confrontation clause poses no restrictions on the admission of hearsay testimony if the declarant testifies at trial and is present "to defend or explain" that testimony.
"[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162 [90 S.Ct. 1930, 26 L.Ed.2d 489] (1970). * * * The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354.
Accordingly, where K.J.K. and M.J.B. testified at trial and were present to defend or explain their testimony on cross-examination, the admission of their hearsay statements under section 115-10 does not violate the confrontation clause.

1. Ohio v. Roberts Reliability Standard
Defendant argues, however, that section 115-10 is facially unconstitutional because it incorporates the now-repudiated reliability standard set forth in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under Roberts, the presentation of hearsay testimony of an unavailable witness comported with the confrontation clause if the statement fell within a "firmly rooted hearsay exception" or showed "particularized guarantees of trustworthiness." Roberts, 448 U.S. at 66, 100 S.Ct. 2531. The language of section 115-10 tracks the Roberts standard in part because it allows hearsay statements of a child witness to be admitted only ifamong other thingsthe circuit court finds that "the time, content, and circumstances of the statement provide sufficient safeguards of reliability" (725 ILCS 5/115-10(b)(1) (West 2004)).
In Crawford, however, the Supreme Court repudiated the Roberts reliability test. Crawford held that the confrontation clause requires the reliability of testimony to be tested through cross-examination, and that no judicial assessment of "reliability" may be substituted for this form of credibility testing. Crawford, 541 U.S. at 61-62, 124 S.Ct. 1354. Now, under Crawford, testimonial statements of an unavailable witness may be admittedregardless of their perceived "reliability"only if the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68, 124 S.Ct. 1354.
Section 115-10 satisfies Crawford in part. Under this statute, a child's reliable hearsay statement, i.e., one which has been found reliable under subsection (b)(1), is admissible only if (1) the child testifies (subsection (b)(2)(A)), or (2) the child "is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement" (subsection (b)(2)(B)). Under the second scenario, which does not apply here, a statement deemed reliable by a judge could conceivably be admitted if the child were "unavailable" and the statement was supported by "corroborative evidence." Crawford, however, requires something different: where *1245 the declarant is unavailable, the defendant must have had a prior opportunity for cross-examination. The situation is different under the first scenariothe one at issue in this casebecause there the declarant is not absent, but testifies at trial and is present to defend or explain the testimony on cross-examination. See Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354. Admitting a hearsay statement under the first scenario thus comports with Crawford. See People v. Cookson, 215 Ill.2d 194, 204, 294 Ill.Dec. 72, 830 N.E.2d 484 (2005).
That a hearsay statement admitted under section 115-10 must meet the additional reliability requirement of subsection (b)(1) is not problematic. See People v. Reed, 361 Ill.App.3d 995, 1002, 297 Ill.Dec. 841, 838 N.E.2d 328 (2005). Indeed, the requirement of "sufficient safeguards of reliability" provides defendants with additional protection, i.e., "protection over and above the confrontation clause." Reed, 361 Ill.App.3d at 1002, 297 Ill.Dec. 841, 838 N.E.2d 328; accord People v. Cannon, 358 Ill.App.3d 313, 320, 295 Ill.Dec. 161, 832 N.E.2d 312 (2005). This additional reliability requirement does not affect the constitutionality of section 115-10 because hearsay testimony still must satisfy Crawford's constitutional requirements, in addition to the statutory requirement of reliability. See In re E.H., 224 Ill.2d 172, 179-80, 309 Ill.Dec. 1, 863 N.E.2d 231 (2006).

2. "Blanket Prohibition"
Defendant next contends that section 115-10 is unconstitutional because it does not incorporate the limitations on admissibility imposed by Crawford. Specifically, defendant argues the statute is unconstitutional because it "fails to incorporate a blanket prohibition of testimonial statements" where the declarant is absent from trial and the defense had no prior opportunity for cross-examination. However, hearsay exceptions such as section 115-10 need not be coextensive with the scope of the confrontation clause to pass constitutional muster. See California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (although "it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values," the overlap need not be complete).
Indeed, the evidentiary question of whether hearsay testimony satisfies a statutory exception (such as section 115-10) is separate from, and antecedent to, the issue of whether admitting the testimony satisfies the confrontation clause. See In re E.H., 224 Ill.2d at 179-80, 309 Ill.Dec. 1, 863 N.E.2d 231 (courts must engage in two-step analysis, first statutory and then constitutional, to determine admissibility of hearsay testimony). Because testimony is admissible only if it meets both evidentiary and constitutional requirements, the two standards need not be identical.
In sum, we reject defendant's argument that section 115-10 is facially unconstitutional in light of Crawford's reinterpretation of the confrontation clause.

C. Statutory Assessment
Defendant's final argument concerns the appellate court's grant to the State of its statutory assessment of $50 against defendant as costs of this appeal.
Section 4-2002 of the Counties Code provides that a State's Attorney in a county such as Schuyler is entitled to a fee of $50 "[f]or each case of appeal taken from his county * * * to the Supreme or Appellate Court when prosecuted * * * by him." 55 ILCS 5/4-2002(a) (West 2008). Defendant argues that the appellate court here erred in ordering him to pay this $50 fee because the State's Attorneys Appellate Prosecutor (SAAP), and not the Schuyler *1246 County State's Attorney herself, prosecuted his appeal.
This is an issue of statutory construction, which is reviewed de novo. People v. Cardamone, 232 Ill.2d 504, 511, 328 Ill.Dec. 917, 905 N.E.2d 806 (2009). When construing a statute, this court seeks "to give effect to the legislature's intent," considering "the subject [the statute] addresses and the legislature's apparent objective in enacting it," and adopting the plain and ordinary meaning of the statutory terms. Cardamone, 232 Ill.2d at 512, 328 Ill.Dec. 917, 905 N.E.2d 806.
Under the applicable statutory scheme, it appears that any case in which SAAP appears is, by necessity, prosecuted or defended by a State's Attorney. See 55 ILCS 5/3-9005 (West 2008) (it is State's Attorney's duty to commence and prosecute all criminal actions arising out of his or her county). Moreover, under section 4.01 of the State's Attorneys Appellate Prosecutor's Act, SAAP attorneys are authorized to "represent the People of the State of Illinois" in the appellate court when "requested to do so and at the direction of" a State's Attorney. 725 ILCS 210/4.01 (West 2008). Once taking on this representation, SAAP attorneys may prepare, file and argue briefs in the appellate court "with the advice and consent of the State's Attorney." Under this statute, it appears that State's Attorneys retain a central role in an appeal even where they utilize SAAP's services.
We conclude, contrary to defendant, that the appellate court correctly granted the State its $50 statutory assessment in this case.

III. CONCLUSION
We affirm the judgment of the appellate court.
Affirmed.
Chief Justice KILBRIDE and Justices THOMAS, GARMAN, KARMEIER, BURKE, and THEIS concurred in the judgment and opinion.
NOTES
[1]  Prior to trial, the State dismissed count VIII.
[2]  K.J.K.'s direct testimony differed from her out-of-court statement with regard to the time defendant began inserting his penis inside her vagina, and the number of times this occurred. According to the transcribed statement, defendant began having sexual intercourse with K.J.K. in June 2002, and he repeated this act about once a week. According to K.J.K.'s direct testimony, which was less precise with regard to dates, this conduct apparently began about December 2000 or January 2001 and was repeated "a couple times a month."
[3]  Although defendant was tried and sentenced in absentia, he subsequently returned to the jurisdiction, and has been in the custody of the Illinois Department of Corrections since March 6, 2007.


Affirmed and Memorandum Opinion filed December 28, 2006

Affirmed and Memorandum Opinion filed December 28, 2006.

In The

Fourteenth Court of
Appeals
____________

NO. 14-05-01243-CR
____________

W.C. McMULLIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th
District Court
Harris County, Texas
Trial Court Cause No. 1012361

M E M O R A N D U M   O P I N I O N
Appellant W.C. McMullin was convicted of indecency with a
child and sentenced to life in prison.  In four issues, he appeals his
conviction arguing: (1) the trial court erred in overruling his objection to
the prosecutor=s closing argument and (2) he received ineffective
assistance of counsel.  We affirm.
Factual and
Procedural Background

The complainant and her brother were visiting their aunt,
Tara Crooms, in early December 2004 for a Christmas party.  After the party,
the complainant=s parents had not picked up her and her
brother, so they fell asleep on the sofa in Crooms=s living room.
Crooms and her family went to sleep at approximately 11:30 that night.  At
approximately 2:00 in the morning, one of Crooms=s children
awakened her, and Crooms walked through the living room to get the child some
juice.  When she entered the living room, she saw appellant, who was Crooms=s stepfather, and
the complainant lying on the floor under a blanket.  When appellant saw Crooms,
he threw the blanket off and ran into the bathroom.  Crooms testified that
appellant=s pants were down, and he tried to pull them up as he
ran to the bathroom.  Crooms questioned the complainant who told her that
appellant had touched her Aprivate part@ and had made her
touch his Aprivate part.@  Crooms called
the police, who arrested appellant for indecency with a child.  Appellant was
convicted, pleaded true to a prior conviction for indecency with a child, and
was sentenced to life in prison.
Improper Closing Argument
In his first issue, appellant contends the trial court
erred in overruling his objection to the following argument made by the
prosecutor during the guilt-innocence phase:
Now the question that you now have to ask yourself is when you leave
here when this case is over and you=re finally able to talk about this with your family, your
friends, your neighbors, your loved ones, and they ask you what kind of case
and you tell them the facts of the case, this is what [the complainant] told us
happened, this is what Tara saw, are you really going tell [sic] them that you
found him not guilty or B
[Defense counsel]: Your Honor, I would object to the Prosecutor asking
for the jury to consider the effect upon other members in the community of
their decision.
[Prosecutor]: It=s a plea for law enforcement,
Judge.
THE COURT: Overruled.

Proper
jury argument must fall within one of the following four categories:  (1)
summation of the evidence, (2) reasonable deduction from the evidence, (3)
response to opposing counsel=s argument, or (4) plea for law enforcement.  Cooks v.
State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992).  The State may not tell
the jury that the community expects a guilty verdict or a particular
punishment.  Cortez v. State, 683 S.W.2d 419, 420B21 (Tex. Crim. App. 1984); see
also Goff v. State, 794 S.W.2d 126, 127 (Tex. App.CAustin 1990, pet. ref=d) (stating an improper argument
results when the prosecutor suggests the community expects a conviction or
punishment regardless of the evidence or the law).  The State, however, may
argue the impact of the verdict on the community.  Borjan v. State, 787
S.W.2d 53, 56 (Tex. Crim. App. 1990).
In Cortez,
the Court of Criminal Appeals set out an instructive list of arguments that had
been condemned by the court as pleas for the jury to follow community
sentiment:
AThe people of
De Soto are asking the jury to convict this defendant.@
AThe people of
this community expect you to put this man away, and the only way you can do it
is to send [the defendant] to the electric chair.@
AI tell you, the
people of Matagorda and Jackson counties are expecting you to do your duty in
this case and assess the defendant=s
punishment at death.@
ALook at this
courtroomBit is crowded with Polk County people, demanding the
death penalty for [the defendant].@
AThe people are
present in this courtroom to see that this defendant gets punished.@
AThere are over
a million people that stand between him and the penitentiary.  They=d want him to go there if they knew what he did.@
AThe people of
Nueces County expect you to put this man away.@
AThe jury ought
to convict the defendant because the people of Denison desire it.@
683 S.W.2d at 421
(internal citations omitted).

Not
every reference to the community necessarily constitutes an improper appeal to
community desires.  In the arguments noted to be improper in Cortez, the
prosecutors argued that the jury should convict the defendant because the
community desired it, regardless of the evidence or the law.  When the
prosecutor, as in this case, argues that the community desires a rational
verdict, or one for law enforcement, the argument is not improper.  See Goff,
794 S.W.2d at 127.  The prosecutor did not ask the jury to convict appellant
because the community desired it; therefore, the comments were a plea for law
enforcement and were proper jury argument.  We overrule appellant=s first issue.
Ineffective Assistance of Counsel
In his remaining issues, appellant contends he received
ineffective assistance of counsel because his trial counsel failed to object to
the prosecutor=s closing argument and certain punishment evidence
admitted during Tara Crooms=s testimony.
Standard
of Review
To prove ineffective assistance of counsel, appellant must
demonstrate that his counsel=s performance was deficient because it
fell below an objective standard of reasonableness, and there was a reasonable
probability that, but for counsel=s errors, the result
of the proceeding would have been different.  Strickland v. Washington,
466 U.S. 668, 687 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex.
Crim. App. 2005).  Whether this standard has been met is to be judged by the
totality of the representation rather than by isolated acts or omissions of
counsel.  Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App.
1995).  Appellant must prove ineffectiveness by a preponderance of the
evidence.  Id.  There is a strong presumption that counsel=s conduct fell
within the wide range of reasonable professional assistance, and we will
sustain allegations of ineffectiveness only if they are firmly founded in the
record.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Appellant has the burden to rebut this presumption by presenting evidence
illustrating why trial counsel acted in the way that he did.  Jackson v.
State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  In the absence of
evidence regarding counsel=s reasons for the challenged conduct, the
record on direct appeal is simply undeveloped and cannot adequately reflect the
alleged failings of trial counsel.  Freeman v. State, 125 S.W.3d 505,
506 (Tex. Crim. App. 2003).

Here, appellant did not allege ineffective assistance in a
motion for new trial, and the record contains no explanation for counsel=s conduct.  We may
therefore reverse only if Athe conduct was so outrageous that no
competent attorney would have engaged in it.@  Garcia v.
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
Prosecutor=s Argument
In his second issue, appellant contends he received
ineffective assistance of counsel because trial counsel failed to object to the
following closing argument:
And, folks, you ought to know that he knew what was going on because as
soon as Tara walked in that room he jumped up, tried to put his pants on and
ran to the restroom.  If he didn=t know what was going on, why would he do that?  If he didn=t realize that was happening, why
would he do that?
And you know that that happened
because it is uncontroverted.  It is unquestioned.  You know it.  You know in
it [sic] your hearts and you know it in your minds.
Appellant argues that the prosecutor=s argument was
objectionable because it was a direct comment on appellant=s failure to
testify.  A prosecutor=s comment on the defendant=s failure to
testify is manifestly improper argument.  Canales v. State, 98 S.W.3d
690, 695 (Tex. Crim. App. 2003).  When a defendant elects not to testify, his
silence is not a proper subject for either direct or indirect comment by the
prosecutor.  Dickinson v. State, 685 S.W.2d 320, 322 (Tex. Crim. App.
1984).  If the challenged remarks could have only been supplied by the
defendant, then such an argument is tantamount to a direct comment on the
defendant=s failure to testify, and the conviction must be
reversed.  Cook v. State, 702 S.W.2d 597, 599 (Tex. Crim. App. 1984).
The State=s closing argument neither directly, nor
indirectly, commented on appellant=s failure to
testify.  The argument was a response to appellant=s argument.  In
closing argument, appellant argued that any inappropriate touching was
accidental due to appellant=s level of intoxication:
You have a little girl sleeping on the floor with her grandfather and
maybe because he is so drunk some untoward touching does occur.  That=s a possibility.  The State has to
convince you beyond a reasonable doubt that it was his conscious intentional
desire.

The
prosecutor responded to appellant=s theory by
pointing out that appellant had not controverted the act, but merely his
intent.  Response to opposing counsel=s argument is a
permissible area of jury argument.  Canales, 98 S.W.3d at 695.
Therefore, because the prosecutor=s argument was
permissible, counsel did not render ineffective assistance in failing to object
to it.  We overrule appellant=s second issue.
Punishment
Evidence
In his third issue, appellant contends he was denied his
right to effective assistance of counsel when trial counsel failed to object to
punishment evidence from Tara Crooms that was outside her personal knowledge.
On redirect examination, the State asked Crooms whether she knew appellant had
been convicted of indecency with a child in 1989.  Crooms answered that she did
not know about it until the detective on this case performed a background check
and told her about it.  Crooms then testified as follows:
Q. [by the State]: So the indecency with a child that he went to prison
for in `89, the victim in that case, was that a family member of y=all=s or do you know?
A.  I=m thinking.  I=m guessing it maybe was his first
daughter.  That=s what I=m thinking.
Q.  Do you know the name ALakiesha Sams@?
A.  Yes, sir, I think that=s his stepdaughter=s niece or aunt.
Appellant contends trial counsel erred in failing to object
to Crooms=s testimony on the ground that she did not have
personal knowledge of the facts.  Rule 602 prohibits a witness from testifying
to a matter unless evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter.  Tex. R. Evid. 602.  In this case, the State established that
Crooms learned of the previous conviction from the detective in charge of this
case.  She did not testify to facts that were not within her personal
knowledge.  She stated that she was Athinking@ she knew the
victim was appellant=s first daughter, but did not state she
knew that fact.

Appellant contends he was harmed by appellant=s failure to object
because, through Crooms=s testimony, the State was permitted to
introduce details of an extraneous offense.  At the punishment phase, evidence
may be offered as to any matter the court deems relevant to sentencing,
including evidence of any other extraneous crime or bad act that is shown
beyond a reasonable doubt to have been committed by the defendant regardless of
whether he has previously been charged or finally convicted of the crime or
act.  Tex. Code Crim. Proc. Ann.
art. 37.07 ' 3(a).  Crooms=s testimony about
the details of the offense was admissible, and trial counsel did not render
ineffective assistance by failing to object.  See Yates v. State, 917
S.W.2d 915, 921 (Tex. App.CCorpus Christi 1996, pet. ref=d) (holding that
because article 37.07 ' 3(a) provides for the admission of
details of prior offenses, counsel did not render ineffective assistance in
failing to object to the admission of such details).  We overrule appellant=s third issue.
In his fourth issue, appellant contends he was denied
effective assistance of counsel because trial counsel failed to object to
extraneous victim impact testimony.  During the punishment phase, Tara Crooms
testified that appellant had sexually abused her from the age of seven until
she was a senior in high school.  Crooms also testified as to how her life had
been affected by the abuse she suffered and the abuse suffered by the
complainant.
Victim impact evidence is generally admissible at the
punishment phase when that evidence has some bearing on the defendant=s personal
responsibility and moral culpability. Salazar v. State, 90 S.W.3d 330,
335 (Tex. Crim. App. 2003).  Because it is irrelevant, victim impact evidence
with respect to a victim not named in the indictment is not admissible.  Haley
v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005).  Evidence of the
impact of appellant=s abuse of the complainant was admissible,
but Crooms=s testimony about the impact of appellant=s abuse on her was
inadmissible.  Crooms=s testimony about the impact of appellant=s abuse on her
life was intertwined with her testimony about the impact of appellant=s abuse on the
complainant.

Although counsel failed to object to inadmissible evidence,
there may have been strategic reasons for not objecting to the admission of
Crooms=s testimony.  We
may not, however, speculate on counsel=s motives in the
face of a silent record.  See Thompson, 9 S.W.3d at 814.  We cannot say
that, in failing to object to Crooms=s testimony, trial
counsel=s conduct was Aso outrageous that
no competent attorney would have engaged in it.@  See Garcia,
57 S.W.3d at 440.  We overrule appellant=s fourth issue.
We affirm the trial court=s judgment.

/s/      Leslie Brock Yates
Justice

Judgment rendered
and Memorandum Opinion filed December 28, 2006.
Panel consists of
Chief Justice Hedges and Justices Yates and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).


Denied and Opinion Filed August 16, 2018

                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00930-CV

                          IN RE JOSEPH STROFFOLINO, Relator

                 Original Proceeding from the 219th Judicial District Court
                                   Collin County, Texas
                           Trial Court Cause No. 219-00125-2018

                             MEMORANDUM OPINION
                         Before Justices Bridges, Brown, and Boatright
                                  Opinion by Justice Bridges
       Before the Court is relator’s petition for writ of habeas corpus in which he complains of

the trial court’s March 23, 2018 capias and bench warrant. In that order, the trial court found

relator in contempt for failing to comply with prior discovery orders and failing to appear at the

March 23, 2018 show cause hearing and directed the Collin County Sheriff to take relator into

custody until relator complies with the trial court’s orders. Relator states that he was arrested

pursuant to the bench warrant on August 13, 2018. In this original proceeding, relator seeks a writ

of habeas corpus directing relator’s release from custody and dissolving the bench warrant.

       A contempt judgment may be collaterally attacked in an original habeas corpus proceeding.

Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967). The purpose of a writ of habeas corpus is

not to determine the guilt of the contemnor, but only to determine whether he was afforded due

process of law or if the order of contempt was void. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.

1979). A court will issue a writ of habeas corpus if the order underlying the contempt is void, or
if the contempt order itself is void. Id. An order is void if it is beyond the power of the court to

enter it, or if it deprives the relator of liberty without due process of law. In re Stein, 331 S.W.3d

538, 540 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Ex parte Shaffer, 649 S.W.2d

300, 302 (Tex.1983) and Ex parte Barlow, 899 S.W.2d 791, 794 (Tex. App.—Houston [14th Dist.]

1995, orig. proceeding)). A judgment of contempt imposing a coercive restraint is void if the

conditions for purging the contempt are impossible to perform. Ex parte Jones, 602 S.W.2d 400,

402 (Tex. Civ. App.—Waco 1980, orig. proceeding). But the burden is on the relator to establish

in the trial court that he cannot perform the act necessary to purge himself. Id.

       To obtain habeas relief, the relator must provide proof that he is currently being restrained.

TEX. R. APP. P. 52.3(k)(1)(D); In re Kuster, 363 S.W.3d 287, 293 (Tex. App.—Amarillo 2012,

orig. proceeding). The record includes no proof that relator was arrested or that relator remains

confined or restrained. The petition, therefore, does not provide the Court with the proof of current

restraint required by Rule 52 and should, therefore, be denied.

       Accordingly, we deny relator’s August 15, 2018 “petition for writ of habeas corpus and

dissolution of warrant” without addressing the merits of the petition.

                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE

180930F.P05

                                                 –2–


751 F.2d 379
Pandick, Inc.,v.Peikin (C. Stanley), Merrill Corp.
NO. 84-1924
United States Court of Appeals,Fourth circuit.
DEC 19, 1984

1
Appeal From:  E.D.Va.

2
AFFIRMED.


927 N.E.2d 347 (2006)
365 Ill. App.3d 1132
PEOPLE
v.
JONES.
No. 5-05-0356.
Appellate Court of Illinois, Fifth District.
June 1, 2006.
Affirmed.


      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                       NO. 03-04-00819-CV

      Violet Quint, Individually and as Representative for the Estate of Donald Quint,
              Debbie Farley, Donna Cubbison and Carrie Jiunta, Appellants

                                                  v.

                               Eugene Alexander, M.D., Appellee

  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
        NO. B-04-0415-C, HONORABLE BEN WOODWARD, JUDGE PRESIDING

                             MEMORANDUM OPINION

               In this case, we address whether the district court abused its discretion in dismissing

appellants’ medical malpractice, survivorship, and wrongful death claims. In one issue, Violet

Quint, individually and as representative of the estate of her husband, Donald Quint,1 claims that the

district court erred in dismissing her claim for failure to properly serve the required expert report

upon appellee, Dr. Eugene Alexander, or his counsel; she filed the report with the district clerk

instead. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2005) (health care liability

“claimant shall, not later than the 120th day after the date the claim was filed, serve on each party

or the party’s attorney one or more expert reports . . . .”). Because Quint did not timely serve the

       1
        We will refer to appellants collectively as “Quint,” and to Violet Quint’s husband as
“Donald.”
expert report, we hold that dismissal was proper. Accordingly, we affirm the judgment of the district

court.

                                           BACKGROUND

                Dr. Alexander injected Quint’s husband, Donald, with a steroid. Two days later, after

suffering what Quint describes as “total torment,” Donald committed suicide. Quint claims that Dr.

Alexander knew or should have known that the injection would cause Donald to suffer a serious

allergic reaction because Donald’s patient information sheet indicated that he had suffered a serious

allergic reaction to a steroid injection in the past.

                Shortly before the statute of limitations expired, Quint filed suit against Dr.

Alexander. She hired Dr. Alan S. Boyd to prepare a written report reviewing Dr. Alexander’s care

of Donald to support her claim. The statutory period in which to serve the report upon Dr. Alexander

or his counsel expired on July 20, 2004, 120 days after the filing of the original petition. Quint did

not serve Dr. Alexander or his counsel with Dr. Boyd’s report until after that deadline. Although

a copy of Dr. Boyd’s report was mailed to the district clerk before the 120th day and then filed with

the district clerk on the 120th day, the district court dismissed the case with prejudice because the

report was not served in accordance with section 74.351(a). The court also awarded to Dr.

Alexander attorney’s fees in the amount of $3,054.50. This appeal followed.

                                     STANDARD OF REVIEW

                The civil practice and remedies code provides that, for failure to serve the party or

his attorney within the 120-day period, the court:

                                                    2
       shall . . . enter an order that: (1) awards to the affected physician or health care
       provider reasonable attorney’s fees and costs of court incurred by the physician or
       health care provider; and (2) dismisses the claim with respect to the physician or
       health care provider with prejudice to the refiling of the claim.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (emphasis added). A district judge must dismiss the

case and award attorney’s fees when a claimant fails to comply with the statutory service

requirement. See American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877

(Tex. 2001) (construing obligation to dismiss and award attorney’s fees as mandatory under

precursor to section 74.351 when so requested by defendant doctor).

               We review the dismissal of health care liability claims for failure to comply with the

statutory deadline for service of expert reports under an abuse of discretion standard. Id. at 878

(applying abuse of discretion standard to dismissal under former section 74.351).2 A district court’s

failure to analyze or apply the law correctly constitutes an abuse of discretion. See In re McKinney,

167 S.W.3d 833, 835 (Tex. 2005) (quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).

                                          DISCUSSION

               Quint did not serve a copy of her expert report upon Dr. Alexander or his lawyer

before the 120-day deadline. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Consequently,

       2
         We note that some commentators have raised the question of whether abuse of discretion
remains the appropriate standard of review after the legislature amended section 74.351(a). See
George C. Hanks, Jr. & Rachel Polinger-Hyman, Redefining the Battlefield: Expert Reports in
Medical Malpractice Litigation After HB 4, 67 Tex. Bar J. 936, 943 (2004). However, because both
parties agree that abuse of discretion is the appropriate standard, and absent guidance from the
supreme court to the contrary, we employ the abuse of discretion standard.

                                                 3
the district court dismissed her claim. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b).

Nevertheless, Quint insists that she satisfied the spirit of section 74.351(a) by filing the report with

the district clerk instead of serving it upon Dr. Alexander or his lawyer. She further contends that

service upon Dr. Alexander was impermissible because it would violate rules of professional

responsibility and that service upon Dr. Alexander’s lawyer was impossible because she did not

know the lawyer’s name or address. As a result, she claims that she had no other choice but to file

the report with the district clerk. Quint also claims that, even if filing the expert report with the court

was insufficient to satisfy section 74.351(a)’s service requirement, the district court erred in

dismissing her case because: (a) her “self-abatement” of the underlying litigation tolled the 120-day

service deadline; and (b) Dr. Alexander waived any objections to the sufficiency of the report by

participating in discovery proceedings.

                Quint first argues that filing the report with the district clerk is tantamount to serving

the report upon Dr. Alexander or his lawyer. Section 74.351(a) provides, “In a health care liability

claim, a claimant shall . . . serve on each party or the party’s attorney one or more expert reports

. . . .” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (emphasis added).

                To determine whether the filing of the report with the district court is equivalent to

serving the report upon Dr. Alexander or his counsel, we construe the statute in light of the

legislature’s intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). Where the

language of the statute is unambiguous, we adopt the interpretation supported by the plain language.

State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).

                                                    4
We will not give an undefined statutory term a meaning that is out of harmony or inconsistent with

other provisions in the statute. McIntyre, 109 S.W.3d at 745.

                The plain language of section 74.351(a) expressly requires the claimant to “serve”

the report upon the defendant health care provider or his attorney. Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(a). Section 74.351(a) does not define the word “serve,” but the definitional section

of the statute provides, “Any legal term or word of art used in this chapter, not otherwise defined in

this chapter, shall have such meaning as is consistent with the common law.” Tex. Civ. Prac. &

Rem. Code Ann. § 74.001(b) (West 2005).

                Health care liability claims are civil actions. The rules of civil procedure govern “all

actions of a civil nature,” unless a specific exception applies. See Tex. R. Civ. P. 2 (emphasis

added). Accordingly, we conclude that the legislature intended the term “serve” to have the same

meaning that it carries in the rules of civil procedure.

                Civil procedure rule 21a prescribes four methods by which a party may serve another:

(1) delivery in person, by agent, or by courier-receipted delivery; (2) certified or registered mail; (3)

telephonic document transfer; or (4) such other manner as the court in its discretion may direct. Tex.

R. Civ. P. 21a. At no time before the expiration of the 120-day period did Quint serve the expert

report upon Dr. Alexander or his counsel as required by Rule 21a.

                Quint maintains, however, that she was prohibited by the rules of professional

conduct from serving the expert report on Dr. Alexander when she knew he was represented by a

lawyer. See Tex. Disciplinary R. Prof’l Conduct 4.02(a), reprinted in Tex. Gov’t Code Ann., tit. 2,

                                                   5
subtit. G app. A (West 2005). Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct

states:

          In representing a client, a lawyer shall not communicate or cause or encourage
          another to communicate about the subject of the representation with a person,
          organization or entity of government the lawyer knows to be represented by another
          lawyer regarding that subject, unless the lawyer has the consent of the other lawyer
          or is authorized by law to do so.

Id. (emphasis added). Because section 74.351(a) expressly authorizes service of the expert report

upon the opposing party, we reject Quint’s claim that she was unable to serve Dr. Alexander without

violating her ethical obligations.

                 Quint also contends that she was unable to serve Dr. Alexander’s lawyer with the

expert report. Quint claims that, even though she knew Dr. Alexander had a lawyer, she did not

know the lawyer’s name or address. It is clear from the record, however, that this information was

available before the expiration of the 120-day service deadline.3 But even if it had not been, Quint

could have served Dr. Alexander personally, as the statute authorized. We therefore hold that

Quint’s filing of the report with the district clerk did not satisfy section 74.351(a)’s service

requirement.

          3
           Quint filed an original petition with the district court on March 22, 2004, but did not serve
it upon opposing counsel. On June 23, 2004, she filed a first amended original petition with the
district court, and Dr. Alexander was served with a copy on June 28, 2004. Dr. Alexander filed and
served by certified mail special exceptions and an original answer on July 19, 2004, the 119th day
after the filing of the original petition.

                                                   6
                Alternatively, Quint argues that she complied with Section 74.351(a)’s service

requirement because, by “self-abating” the case, she extended the deadline for filing the expert

report, as provided by statute:

        Any person or his authorized agent asserting a health care liability claim shall give
        written notice of such claim by certified mail, return receipt requested, to each
        physician or health care provider against whom such claim is being made at least 60
        days before the filing of a suit in any court of this state based upon a health care
        liability claim.

Tex. Civ. Prac. & Rem. Code Ann. § 74.051(a) (West 2005) (emphasis added). In addition, notice

“given as provided in this chapter shall toll the applicable statute of limitations to and including a

period of 75 days following the giving of the notice, and this tolling shall apply to all parties and

potential parties.” Id. § 74.051(c).

                Quint did not comply with the requirement to provide at least 60 days of advance

notice of intent to file the suit. Instead, she filed the original petition only five days after filing the

notice of intent to file suit. The result of filing the original petition before the expiration of the 60-

day pre-suit notice period was that Quint lost the benefit of the tolling period provided by section

74.051(c).

                Despite her failure to comply with the pre-suit notice requirement, Quint claims that

she timely served the expert report upon Dr. Alexander on July 27, 2004, because she “self-abated”

the case. Quint contends that, by voluntarily waiting 60 days before amending the original petition

to add discovery, to serve Dr. Alexander, or to take any other action, she therefore complied with

                                                    7
“the law’s purpose of providing opportunity for settlement and discussions about the case” during

this post-filing and pre-service period. She claims that the district court erred in determining that

the 120-day window in which to serve the expert report commenced on March 22, 2004, the date of

filing of the original petition. Quint insists instead that the 120-day window for service actually

commenced on May 21, 2004, at the end of her 60-day period of voluntary delay. It is Quint’s

position that the deadline for serving the report upon Dr. Alexander did not expire until September

20, 2004, a full 180 days after the filing of the original petition. We disagree.

               The plain language of section 74.351(a) requires service of the expert report to be

made “not later than the 120th day after the date the claim was filed.” Id. § 74.351(a). The fact that

Quint filed the claim before the expiration of the 60-day pre-suit notice period in no way changes

the requirement that she serve the expert report by the 120th day after filing the original petition.

               Dr. Alexander never requested, and the court never entered, an order of abatement

in this case. Although the defendant in a health care liability claim may request the abatement of a

case when the plaintiff fails to give the required 60 days pre-suit notice of intent to file a claim, we

are unaware of any authority that allows a plaintiff to abate a case without judicial permission in

order to extend the statutory service deadline. See Schepps v. Presbyterian Hosp. of Dallas, 652

S.W.2d 934, 938 (Tex. 1983) (recognizing that defendant may move for period of abatement when

plaintiff does not comply with pre-suit notice requirement). Accordingly, the deadline for service

of the expert report began to run from the day Quint filed the original petition. See Tex. Civ. Prac.

& Rem. Code Ann. § 74.351(a). For these reasons, we reject Quint’s position that her voluntary

delay extended the time for filing the expert report.

                                                   8
                Quint also claims that, by engaging in discovery when it was stayed, Dr. Alexander

failed to object to the adequacy of the service of the expert report and therefore waived his right to

seek dismissal. Section 74.351(s) stays discovery proceedings in a health care liability claim until

the expert report is properly served. Id. § 74.351(s). Quint contends that, in light of this statute, the

mere fact that Dr. Alexander submitted discovery requests to Quint is proof that he was properly

served with the expert report. As a consequence, she urges, Dr. Alexander waived his right to seek

dismissal.

                The supreme court addressed a similar question in Jernigan v. Langley, 111 S.W.3d

153 (Tex. 2003). In that medical malpractice case, the defendant doctor participated in discovery

after receiving the report but did not object to its adequacy until more than 600 days after receiving

it. Id. at 157. The court determined that Dr. Jernigan’s participation in the discovery proceedings

was “not so inconsistent with an intent to assert the right to dismissal under [the precursor to section

74.351] as to amount to waiver of the right.” Id. at 157-58. The court found that “[a]ttempting to

learn more about the case in which one is a party does not demonstrate an intent to waive the right

to move for dismissal. . . .” Id. at 157. Given that the defendant doctor’s inaction did not

demonstrate “an intent to yield the right to dismissal based on the report’s insufficiency,” the court

held that he did not lose that right. Id. We are persuaded by the logic in Jernigan and therefore find

that Dr. Alexander did not waive his right to seek dismissal by participating in discovery.

                In any case, Quint’s position fails to consider that section 74.351(b) requires the

district court to dismiss the claim with prejudice for failure to serve the expert report in a timely

                                                   9
manner. See American Transitional Care Ctrs. of Tex., Inc., 46 S.W.3d at 877 (construing obligation

to dismiss under precursor to section 74.351(b)). In light of this constraint and the supreme court’s

holding in Jernigan, we overrule Quint’s argument that Dr. Alexander’s participation in discovery

constituted a waiver that precluded dismissal of the claim.

                                         CONCLUSION

               Because the district court did not abuse its discretion in determining that Quint failed

to comply with the requirement to serve a copy of the expert report upon Dr. Alexander or his lawyer

as required by section 74.351(a), we affirm the judgment of the district court in dismissing Quint’s

claims.

                                              Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: October 28, 2005

                                                 10


223 Md. 268 (1960)
164 A.2d 334
WATTS
v.
STATE
[No. 28, September Term, 1960.]
Court of Appeals of Maryland.
Decided October 18, 1960.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Eugene A. Alexander, III, for appellant.
Joseph S. Kaufman, Assistant Attorney General, with *270 whom were C. Ferdinand Sybert, Attorney General, Saul A. Harris and E. Thomas Maxwell, Jr., State's Attorney and Assistant State's Attorney of Baltimore City, respectively, on the brief, for appellee.
HENDERSON, J., delivered the opinion of the Court.
The appellant was convicted of robbing a Baltimore bank. Through counsel, he relied upon a special plea of not guilty by reason of insanity. The first contention raised on appeal is that, although the defendant committed the acts charged, he was insane "within the purview and meaning of modern enlightened medical, psychiatric and legal evaluation of human behavior and therefore not responsible for the offense committed." Dr. Nelson, a qualified and experienced psychiatrist on the medical staff of the Supreme Bench, testified that the defendant at the time of the commission of the alleged offense had the capacity to distinguish between right and wrong and to appreciate the nature and consequences of his acts. She based her conclusion upon the medical reports available to her and upon an interview with the defendant. She stated that in her opinion the defendant was sane, her impression being that he had a sociopathic personality disturbance, an anti-social reaction, and an addiction to alcohol. When pressed on redirect examination with the fact that in 1958 at St. Elizabeth's Hospital in Washington he had been found to have had "an acute brain syndrome associated with intoxication with psychotic reaction", she replied that "[t]his is an acute and temporary type of illness." The very next entry showed that on discharge he was considered as having recovered from the psychotic reaction and was considered competent. She stressed the fact that the present offense was committed within forty-eight hours after he had escaped from the hospital and that he could not have precipitated an acute alcoholic psychosis in that time, even though drinking heavily and taking luminal during the period following his escape. We think there is no evidence in the case that would support a finding of insanity under any test, enlightened or otherwise, but certainly not under the established test of sanity to which we have consistently adhered. See Stansbury v. State, 218 *271 Md. 255, 262, Saldiveri v. State, 217 Md. 412, 422, and cases cited.
The appellant contends, however, that the trial court erred in permitting Dr. Nelson "to base her summary and conclusions, in part, on the studies and conclusions of Dr. Ainsworth". Dr. Ainsworth was the Chief Psychologist of the Medical Department of the Supreme Bench. Dr. Nelson testified that she and Dr. Ainsworth "work as a team", that they each examined the patient and agreed in their conclusions. Presumably the patient was referred to the Medical Department by the court. Both Dr. Nelson and Dr. Ainsworth were summoned by the State, but Dr. Ainsworth was not called to testify. It is not contended that there was any error in permitting Dr. Nelson to consider the clinical and other records furnished from several Washington hospitals where the appellant had been a patient, nor to the abstract of his record furnished by St. Elizabeth's Hospital. Indeed, the abstract was supplied by counsel for the appellant. But the appellant objected below, and presses the objection here, to the use by Dr. Nelson of "Dr. Ainsworth's study" in arriving at her own conclusions. The precise nature of this study is not shown, but it seems clear that it was confined to psychological tests. Dr. Nelson testified that "[b]oth psychiatric evaluation and psychological testing reveal the patient to be emotionally immature and to lack a sense of responsibility. * * * His performance on an intelligence test placed him toward the upper limits of the Bright Normal level of intellectual function. There is no evidence of a psychotic process, severe psychoneurosis or organic deficit." She came to this conclusion "on the basis of the whole picture, including having seen the patient and any data that I had in the chart that we had upstairs", including "the defendant's past medical history." She testified that "[t]ests of his personality, the more or less routine type, were done by Dr. Ainsworth." Evidently the results of these tests were entered in the chart by Dr. Ainsworth.
It seems to be the general rule that a medical expert may not base his opinion upon the conclusions of other experts, as distinguished from facts established or assumed. Cf. Harris *272 v. Hipsley, 122 Md. 418, 433, and Baltimore & Ohio R.R. Co. v. Zapf, 192 Md. 403, 411. But the prohibition does not extend to data of an objective nature duly entered in hospital or similar records, even though the tests employed may require a considerable measure of skill and judgment for proper evaluation. Wolfinger v. Frey, 223 Md. 184, 191, 192. Nor does it extend to data supplied by a nurse and attendant. Yellow Cab Co. v. Henderson, 183 Md. 546, 553. But if we assume, without deciding, that Dr. Nelson could not properly base her diagnosis upon the conclusions of Dr. Ainsworth in the instant case, we find no reversible error in the court's ruling. It does not appear that Dr. Nelson was relying upon a conclusion of Dr. Ainsworth, as distinguished from objective data duly recorded, and in any event it is clear that Dr. Nelson's opinion was based upon her own examination of the patient and her own analysis of the patient's personality. If Dr. Ainsworth entertained the same opinion as to the appellant's personality, that opinion was merely cumulative and coincidental. Cf. Damm v. State, 128 Md. 665, 673.
Judgment affirmed.


                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-2168
                               Filed March 4, 2020

IN RE THE DETENTION OF DAVID L. TAFT, JR.,

DAVID L. TAFT, JR.,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly,

Judge.

      David Taft appeals the denial of his petition for discharge from the sexually

violent predator program or placement in a transitional release program.

AFFIRMED.

      Philip B. Mears of Mears Law Office, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee State.

      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
                                            2

DOYLE, Presiding Judge.

       David Taft has been committed to the sexually violent predator (SVP)

program since 2005. Since then, Taft has filed three appeals challenging the

constitutionality of the criteria for determining eligibility for transitional release. See

Taft v. Iowa Dist. Ct. for Linn Cty., 879 N.W.2d 634, 638-39 (Iowa 2016) (holding

that the issue was not ripe for adjudication); Taft v. Iowa Dist. Ct. ex rel. Linn Cty.,

828 N.W.2d 309, 322-23 (Iowa 2013) (holding Taft failed to preserve error); In re

Det. Taft, No. 15-1732, 2017 WL 1088098, at *5 (Mar. 22, 2017) (holding error was

not preserved because the district court never ruled on the issue). Taft now

appeals the 2018 denial of his petition for discharge from the SVP program or

placement in a transitional release program. He alleges the statute and court

violated his due process rights by setting the State’s burden of proof at a

preponderance of the evidence.

       After this appeal was ready for submission but before its transfer to this

court, the State filed a new annual report recommending Taft for transitional

release. The parties stipulated to the placement, and the district court ordered Taft

placed in the transitional release program. As a result of his placement in a

transitional release program, the State moves to dismiss Taft’s appeal as moot.

See State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002) (“[A]n appeal is

deemed moot if the issue becomes nonexistent or academic and, consequently,

no longer involves a justiciable controversy.”). Taft resists dismissal, arguing the

issue is likely to recur. See id. (noting that, although the appellate courts generally

refrain from reviewing moot issues, “an exception exists for issues of broad public

importance likely to recur”). He also notes that if he succeeds in his challenge to
                                          3

the State’s burden of proof, “his entire commitment would be subject to

reconsideration.” We have rejected a claim of mootness in similar circumstances.

See In re Det. of Hutchcroft, No. 15-1489, 2017 WL 108288, at *1 (Iowa Ct. App.

Jan. 11, 2017) (finding appeal of annual review decision placing Hutchcroft in

transitional release program was not rendered moot by later decision to return him

to confinement because “[t]he order from which he appealed addressed the

question of whether he should be discharged from civil commitment, in addition to

the question of transitional release”).   Because it also affects his request for

discharge from the SVP program, Taft’s challenge to the State’s burden of proof

at a review hearing is not moot.

       But there is another impediment to Taft’s challenge on the State’s burden

of proof.   Taft raised this challenge in his last appeal, claiming the court’s

instructions impermissibly allowed the State to prove its case by only a

preponderance of the evidence. Taft, 2017 WL 1088098, at *2-3. Iowa Code

section 229A.8(6)(d)(1) requires the State to prove beyond a reasonable doubt that

the committed person “is likely to engage in predatory acts that constitute sexually

violent offenses.” The jury instructions defined the phrase to mean “that the person

more likely than not will engage in acts constituting sexually violent offenses,”

which mirrors the statutory definition. See Taft, 2017 WL 1088098, at *2 (citing

Iowa Code § 229A.2(5)). In rejecting Taft’s claim that the instructions held the

State to a lesser burden of proof, this court cited In re Detention of Williams, 628

N.W.2d 447, 458-59 (Iowa 2001), which held defining the term “likely” to mean

“more likely than not” or “more probable than not” does not violate due process by

reducing the State’s burden of proof. See Taft, 2017 WL 1088098, at *2-3. The
                                           4

State argues our prior decision is controlling under the law-of-the-case doctrine.

See Wolfe v. Graether, 389 N.W.2d 643, 651 (Iowa 1986) (“[W]here the court of

appeals has determined an issue of law necessary to the decision of a prior appeal,

and its determination is not vacated by this court, the decision of that court is

controlling as to that issue for purposes of further proceedings in both the district

court and subsequent appeals.”).        Because Taft essentially raises the same

argument in this appeal, we will not reconsider it. See Bahl v. City of Asbury, 725

N.W.2d 317, 321 (Iowa 2006). But even if the law-of-the-case doctrine did not

apply, our prior decision and that of the supreme court in Williams would lead us

to the same result.

          Taft also challenges the statutory criteria for placement in a transitional

release program. See Iowa Code § 229A.8A(2). To the extent that Taft challenges

the evidence supporting the court’s determination that he is not eligible for

transitional release, that issue is now moot. Therefore, we need not consider his

challenges to the criteria set forth in section 229A.8A(2).

          Finding no merit to any of the claims we have considered in this appeal, we

affirm.

          AFFIRMED.


494 F.Supp. 1037 (1980)
Clovis Carl GREEN, Jr.
v.
UNITED STATES DISTRICT COURT FOR the DISTRICT OF COLUMBIA.
Clovis Carl GREEN, Jr.
v.
Mr. RODAK, Clerk, U. S. Supreme Court.
Clovis Carl GREEN, Jr.
v.
Norman A. CARLSON et al. (three cases).
Clovis Carl GREEN, Jr.
v.
CLERK, U. S. COURT OF APPEALS FOR the FIFTH CIRCUIT, et al.
Clovis Carl GREEN, Jr.
v.
Michael RODAK, Jr., Clerk, U. S. Supreme Court, et al.
Civ. A. Nos. 80-2080 to 80-2086.
United States District Court, District of Columbia.
August 18, 1980.

MEMORANDUM AND ORDER
HART, District Judge.
This court in recent months has been exposed to litigation tactics utilized by one Reverend Clovis Carl Green, Jr., which can only be described as an enormous and malicious abuse of the judicial process. Since 1973 Mr. Green has filed twenty-nine complaints in this court on his own behalf. In the past several weeks, the number filed have exceeded ten. While these numbers are not relatively large when compared to the hundreds of cases he has filed in the federal courts throughout the country, the complaints and their accompanying motions, petitions and correspondence, when considered with this court's research of Mr. Green's behavior in other courts, are clearly part of a larger scheme whose sole purpose is to impede the machinery of justice.
This court has examined several of Mr. Green's reported cases from the Eighth Circuit, *1038 particularly those from the U. S. District Court for the Western District of Missouri. One of those cases, Green v. Camper, 477 F.Supp. 758 (W.D.Mo.1979), presents, in a thoroughly documented opinion, horn book definitions of "abuse of process" and "malicious" in the context of 28 U.S.C. § 1915(d). More than nine pages of the opinion are devoted to listing over 500 cases that that court knew had been filed by Mr. Green in the federal and other courts. This list does not include the cases that have been filed in this court. It is reasonable to assume that other cases filed by Mr. Green in other courts were overlooked as well. This opinion goes on to describe the disturbing policy of Mr. Green's alleged church (Human Awareness Universal Life Church) of encouraging all prisoners to continuously file court suits with the hope of eventually quintupling the number of prisoner-related court actions. 477 F.Supp. at 770. This court finds equally disturbing the threatening correspondence received by other courts in connection with Mr. Green's cases. 477 F.Supp. 770-71.
This court has also considered several decisions of the U. S. Court of Appeals for the Eighth Circuit dealing with Mr. Green's voluminous litigation; particularly In re Clovis Carl Green, Jr., 598 F.2d 1126 (8th Cir. 1979) and Green v. White, 616 F.2d 1054 (8th Cir. 1980). In 1978 that court had considered over 66 petitions for writs of mandamus from Mr. Green. None were granted. The court ordered that no more mandamus petitions would be accepted for filing. 598 F.2d at 1127. This year that same court severely limited the circumstances under which future applications by Mr. Green for in forma pauperis status under 28 U.S.C. § 1915 would be entertained by courts in the circuit. The courts of the circuit were prohibited from accepting for filing any of Mr. Green's pleadings for in forma pauperis filing, "except for those pleadings, if any, that specifically allege constitutional deprivation by reason of physical harm or threats thereof to petitioner's persons." 616 F.2d at 1055. The court went on to require Mr. Green in the future to verify all pleadings, to include a list of previous related pleadings within all subsequent pleadings, and to send a copy of every pleading to the Chief Judge of the U. S. District Court for the Eastern District of Missouri. Id. at 1056. Some of these requirements were apparently intended to apply in all federal courts.
This court has carefully examined the contents of Mr. Green's most recently filed complaints. There is no nexus between the substance of these complaints and this court's geographic location. These complaints, many of which repeat the same allegations over and over again, mainly deal with Mr. Green's dissatisfaction with the staffs and conditions of confinement in the various places in which he has been incarcerated. It is clear to this court that Mr. Green is attempting to use this court as a vehicle for continuing his malicious pattern of litigation. This court can only conclude that, having been thwarted in his efforts to disrupt the judicial machinery of the Eighth Circuit, Mr. Green now desires to transfer his activities to a new circuit with the hope that he will be able to continue his abusive practices in a court that is unaware of his previous activities. Judge Hunter, in Green v. Camper, concluded with the following:
[U]nless the Courts of this Nation are to be deemed to be powerless to stop such a flagrant abuse of the judicial process, one man will be able to preempt so much judicial time at the trial and appellate levels as to thwart the very ability of the judicial system to carry out its necessary judicial function of properly processing its criminal and civil dockets of cases filed by other litigants who may have meritorious matters.
477 F.Supp. at 771.
For these reasons the above-captioned cases are hereby dismissed under 28 U.S.C. § 1915(d) as frivolous and malicious.