author: BOB PEMBERTON, Justice.

text:
    Debra Faye TAYLOR, Devin Wesley Costine, and Lori Carpenter, Appellants, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.
    No. 03-03-00467-CV.
    Court of Appeals of Texas, Austin.
    March 10, 2005.

      Bobby Dale Barina, Killeen, for Devin Wesley Costine.
    Pauline Wiseman Stevens, Killeen, for Lori Carpenter.
    Thomas J. Baker, Killeen, for Debra Faye Taylor.
    Sarah Regina Guidry, TDPRS Supervising Attorney, Field Operations Special Litigation, Houston, Richard E. Ward, Assistant County Attorney, Belton, Appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

This is an appeal from a final decree terminating the parental rights of a child’s biological parents, denying conservatorship to the paternal grandmother, and awarding sole conservatorship to the Texas Department of Protective and Regulatory Services. Lori Carpenter and Devin Wesley Costine are the biological parents of D.A.C., an infant girl, and Debra Faye Taylor is her paternal grandmother. Currently, D.A.C. is under the foster care of Jose and Susy Ramirez, who are prepared to adopt her. Carpenter, Costine and Taylor each present separate issues on appeal. We will affirm.

BACKGROUND

The trial record contains extensive testimony concerning the circumstances leading up to the termination of Carpenter’s and Costine’s parental rights. It is ultimately unnecessary to reproduce many of these personal facts due to the procedural posture of the appeal, but we note them to the extent needed to place the present dispute in context.

Appellant Lori Carpenter had been on her own since age thirteen, living in a succession of locations and households. Between 1998 and 2000, she lived with appellant Devin Costine, then her boyfriend, and the couple resided off and on with Costine’s mother, appellant/interve-nor Debra Taylor. During this period, the teenagers conceived and gave birth to two children, the first in 1998 and the second, D.A.C., the child at issue in this appeal, in 2000. The record indicates that the Department took custody of their first child after an incident, sometime before D.A.C. was born, in which the first child had nearly died from an asthma attack and the treating hospital referred Carpenter to the Department on suspicion of abuse or neglect. Both Carpenter’s and Costine’s parental rights to their first child were ultimately terminated in mid-2002.

In light of these circumstances and others, the Department closely monitored D.A.C.’s welfare from the date of her birth. It took temporary custody of D.A.C. roughly one week later, after Carpenter left the child with Carpenter’s father, whom the Department beheved presented a risk of abuse. Efforts to reunite Carpenter and D.A.C. in a residential treatment setting failed; after Carpenter threatened to leave the facility with D.A.C., the Department took custody of the child and initiated termination proceedings against Carpenter.

Costine initially was not beheved to be D.A.C.’s father. He had been incarcerated since 2001, after his probation for a 2001 aggravated robbery was revoked following an episode, later that year in which he beat Carpenter and allegedly pointed a gun at her. By the time D.A.C. was born a few months later, Carpenter was living with a new boyfriend, who took responsibility for the child, although Carpenter beheved that a third man was most likely the biological father.

The trial court ordered paternity testing of each prospective father and, in late 2002, Costine was identified as D.A.C.’s father. The Department then initiated termination proceedings against Costine. After the revelation that Costine had fathered D.A.C., Taylor, Costine’s mother, intervened in the termination proceeding seeking to be named sole managing conservator.

The case was tried to a jury, which heard evidence regarding the removal of D.A.C. from Carpenter’s custody and the fitness of Carpenter, Costine and Taylor as parents. Of relevance here, the Department elicited testimony that Taylor has used illegal drugs from at least the 1980s until as recently as two years prior to trial and that she had two drug-related criminal convictions, one of which was a felony. The Department also questioned Taylor’s parenting skills, pointing out the extensive criminal record of her son, Costine, and suggesting that Taylor allowed the teenaged Carpenter and Costine to have a sexual relationship while living in her home, resulting in the conception of two children.

While acknowledging that she had made past mistakes, Taylor insisted that she had turned her life around during her two-and-a-half year relationship with Gary Russell, with whom she proposed to raise the child. Russell was credited with being a stabilizing influence on Taylor’s life, and several positive character witnesses testified on his behalf and that of Taylor. Taylor also insisted that D.A.C. should be raised by family members, especially because she and the child were of Native American descent. Taylor and Russell urged that they loved the child, had the financial means to care for her, and had an extensive network of family and friends upon which they could rely to assist them in caring for the child.

D.A.C.’s foster parents, Jose and Susy Ramirez, both testified that they wanted to adopt the child. At time of trial, the couple had been married thirty-two years and had three children ages sixteen, seventeen, and nineteen. Their oldest son attended Central Texas College and worked at Home Depot; the two younger children were in high school. Mr. Ramirez testified that none of their children had ever been in trouble or used drugs. The Ramirezes both testified that their children got along very well with D.A.C. and loved her. Mrs. Ramirez testified that they were teaching D.A.C. to speak both Spanish and English, but Spanish was the primary language spoken in the home. There was evidence that D.A.C. had Hispanic ancestry.

The Ramirezes said that they had been foster parents since 1997 and estimated that a total of thirty children had been placed in their home. They had never adopted a foster child. D.A.C. was eighteen months old at the time of trial and she had been in the Ramirezes’ home since she was a young infant. D.A.C. called Mrs. Ramirez “mama” and Mr. Ramirez “poppy”; she knew no one else as her parents. The Ramirezes both testified that they loved D.A.C. very much and that she was already a part of their family. Mrs. Ramirez testified that the couple began wanting to adopt D.A.C. soon after she was placed in their home.

The jury found that the parental rights of-both Carpenter and Costine should be terminated and that managing conserva-torship should be awarded to the Department alone and not to Taylor. The district court rendered judgment on the verdict. Carpenter, Costine, and Taylor each appealed.

DISCUSSION

Termination of parental rights

Standards for terminating the parent-child relationship

An individual’s parental rights may be terminated only if the state proves and the trial court finds by clear and convincing evidence (1) that the parent engaged in conduct constituting at least one of the statutory termination grounds enumerated in section 161.001(1) of the family code; and (2) termination is in the child’s best interest. Tex. Fam.Code Ann. § 161.001 (West 2002); In re C.H., 89 S.W.3d 17, 23 (Tex.2002). Some of the common factors that courts use to evaluate the best interests of a child in a given case are: (1) the emotional and physical needs of the child now and in the future; (2) any emotional and physical danger to the child now and in the future; (3) the parental abilities of the individuals seeking custody; (4) the programs available to assist those individuals to promote the best interest of the child; (5) the plans for the child by those individuals or by the agency seeking custody; (6) the stability of the home or proposed placement; (7) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (8) any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976); Leal v. Texas Dept, of Protective & Regulatory Servs., 25 S.W.3d 315, 321 (Tex.App.-Austin 2000, no pet.). This is not an exhaustive list and other factors also may be considered where appropriate. Holley, 544 S.W.2d at 372.

Caipenter’s appeal

Carpenter is represented on appeal by court-appointed counsel who has filed an Anders brief on her behalf concluding that, after thorough review of the record, her appeal of the termination of her parental rights is frivolous and without merit. The brief presents a professional evaluation of the record demonstrating why there are no arguable grounds for reversal. A copy of this brief was delivered to Carpenter, who was notified of her right to seek other counsel or file a pro se brief, which she has not done. We have thoroughly reviewed the record and agree with counsel’s assessment that Carpenter’s appeal is frivolous and without merit. We affirm the trial court’s final decree terminating Carpenter’s parental rights and grant her counsel’s motion to withdraw.

Costine’s appeal

Costine brings a single issue complaining only that the trial court erred in submitting the controlling issue of whether his parental rights should be terminated in a single broad-form question. The question stated simply: “Should the parent-child relationship between Devin Wesley Cos-tine and the child ... be terminated?” and asked the jury to answer “yes” or “no.” This question was preceded by an instruction that the jury could terminate Cos-tine’s parental rights if it found by clear and convincing evidence conduct constituting the following statutory termination grounds:

(1) that the parent has:
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
(H) voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth.
(M) had his or her parent-child relationship terminated with respect to another child based on a finding that the parent’s conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state.

Tex. Fam.Code Ann. § 161.001(1)(E), (H), (M). The instruction further advised the jury that, in order to terminate Costine’s parental rights, it also had to find by clear and convincing evidence that termination of the parent-child relationship would be in D.A.C.’s best interests. The court supplied a definition of “best interests” that tracked the Holley factors. See Holley, 544 S.W.2d at 372.

Costine points out that this question, by incorporating multiple alternative grounds for termination, potentially enabled a jury to find that his parental rights should be terminated even if fewer than the required ten jurors found any one termination ground to be established. He contends this violates his due process rights. Costine acknowledges that the Texas Supreme Court approved this type of broad-form submission in Texas Dept, of Human Serv. v. E.B., 802 S.W.2d 647, 649 (Tex.1990), but urges that E.B. is no longer controlling (or should be reconsidered or harmonized) in light of the supreme court’s more recent jury charge jurisprudence holding that valid and invalid liability theories should not be subsumed in a single broad form question. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 387-90 (Tex.2000); see also Hams County v. Smith, 96 S.W.3d 230, 232-34 (Tex.2002).

Costine’s appeal is foreclosed without need to reach this issue. As for the first element of section 161.001’s termination standard, there was undisputed and conclusive evidence at trial that Costine’s parental rights to a child other than D.A.C. had been terminated for violations of subsections (D) or (E) of family code section 161.001, which itself is a statutory ground for terminating his rights as to D.A.C. See Tex. Fam.Code Ann. § 161.001(1)(M). As for the second element, Costine does not challenge the sufficiency of the evidence that termination would be in D.A.C.’s best interests. For these reasons, any error in the trial court’s broad form submission regarding alternative statutory termination grounds would have been harmless. In re J.F.C., 96 S.W.3d 256, 284 (Tex. 2002). We affirm the trial court’s final decree terminating Costine’s parental rights.

Taylor’s appeal

Appealing the final decree awarding managing conservatorship to the Department and not to her, Taylor brings four issues. In her first three issues, Taylor urges that the trial court abused its discretion in admitting certain evidence that the Department used to attack Taylor’s fitness as a parent: (1) a court-ordered home study prepared by a social worker recommending that D.A.C. not be placed with Taylor; (2) Taylor’s 1990 felony conviction for delivery of marihuana and 1997 misdemeanor conviction for marihuana possession; and (3) Taylor’s testimony at a pretrial hearing where she denied having her 1990 probation revoked, which the Department used to impeach her at trial. In her fourth issue, Taylor challenges the legal and factual sufficiency of the evidence to support the findings that it was in D.A.C.’s best interests that the Department should be appointed sole managing conservator and Taylor should not be appointed at least joint managing conservator.

Admission of the home study

In her first issue, Taylor argues that the trial court abused its discretion in allowing into evidence a court-ordered home study prepared by a social worker. At trial, Taylor raised a Robinson challenge to the admission of the home study on the basis that its author, Louie Payne, was not qualified to conduct the study or testify to her findings. The court redacted several portions of the study containing hearsay before admitting it into evidence as an exhibit. On appeal, Taylor asserts that the improper admission of this testimony amounted to reversible error. She complains that Payne’s opinions and testimony are scientifically unreliable.

A trial court’s decision that a witness is qualified as an expert is reviewed for an abuse of discretion. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 728 (Tex.1998). A court abuses its discretion when it rules on the admissibility of evidence in an arbitrary or unreasonable manner or without reference to guiding legal principles or rules. Car penter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex.2002); In re J.B., 93 S.W.3d 609, 617 (Tex.App.-Waco 2002, pet. denied). We must uphold a trial court’s evidentiary ruling if there is any legitimate basis in the record to support it. Owens-Coming Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998).

Rule 702 provides that a witness who qualifies as an expert because of knowledge, skill, experience, training, or education may testify as an expert if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or resolve an issue of fact. Tex.R. Evid. 702. Qualified experts may be allowed to testify to the ultimate issue in the case if that testimony is otherwise admissible. Tex.R. Evid. 704. Deciding an expert’s qualifications is a preliminary matter for the court to decide. Tex.R. Evid. 104(a); Gammill, 972 S.W.2d at 718.

To be admissible, expert testimony must be (1) uttered by a qualified expert; (2) relevant; and (3) based on a reliable foundation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); In re C.D.K, 64 S.W.3d 679, 682-83 (Tex. App.-Amarillo 2002, no pet.). The courts have developed various factors to be considered in assessing reliability of an expert’s conclusions. See Gammill, 972 S.W.2d at 720 (citing Robinson, 923 S.W.2d at 557).

However, some cases involve situations that are not susceptible to scientific analysis, and the Robinson factors are not appropriate and do not strictly govern in those instances. See Gammill, 972 S.W.2d at 724 (distinguishing between “scientific” and “non-scientifie” expert testimony); see also In re K.A.C., No. 07-02-0393-CV, 2003 WL 21310200, at *3, 2003 Tex.App. LEXIS 4838, at *8-9 (Tex.App.-Amarillo June 6, 2003, no pet.) (memorandum opinion) (applying Gammill in parental termination case because with non-scientific expert opinions “the Daubert test may not be appropriate because ‘experience alone may provide a sufficient basis for an expert’s testimony ”). The court of criminal appeals has recognized this dichotomy in criminal cases and has classified scientific expertise into two categories — “hard” sciences and “soft” sciences. Nenno v. State, 970 S.W.2d 549, 560 (Tex.Crim.App.1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999). The Nenno court concluded that in fields other than the hard sciences, such as the social sciences, factors like an expert’s education, training, and experience are more appropriate factors in testing reliability than the scientific method. Id. at 561. Thus, when measuring the reliability of an expert’s opinion in fields within the soft sciences, the Nenno court concluded that courts should consider whether: (1) the field of expertise is a legitimate one; (2) the subject matter of the expert’s testimony is within the scope of that field; and (3) the expert’s testimony properly relies upon the principles involved in that field of study. Id.

The supreme court has yet to adopt the Nenno approach, but several of our sister courts have concluded that the Nenno framework should be employed to evaluate soft science testimony in civil cases. In re J.B., 93 S.W.3d 609, 629-31; see also In re A.J.L., 136 S.W.3d 293, 298 (Tex.App.-Fort Worth 2004, no pet.) (applying Nenno framework in parental termination case); In re G.B., No. 07-01-0210-CV, 2003 WL 22327191, at *2, 2003 Tex.App. LEXIS 8737, at *2 (TexApp.-Amarillo Oct. 10, 2003, no pet.) (same). With regard to evaluating matters within the psychological or sociological sciences in parental termination cases, we agree. A section 107.051 social study does not lend itself to evaluation by the Robinson factors because it is an inherently subjective endeavor and is not susceptible to scientific replication or statistical or rate of error analysis. As the El Paso court reasoned:

Generally speaking, the purpose of a social study is to interview the litigants and those individuals with knowledge of relevant facts, such as extended family members, neighbors, scout leaders, teachers, baby sitters, day-care providers, doctors, sports coaches, and other individuals who have had the opportunity to observe the parenting abilities of the litigants, the relationship between the child and the parents, the living arrangements at both households, and the plans each litigant has adopted for the day-to-day caretaking of the child. It is designed to be comparative in nature. ... The Family Code does not detail the individuals to be interviewed nor the issues to be covered by the report for the simple reason that the relevant facts to be developed will largely depend on the disputed issues and the theory or theories which will be litigated. [Footnote omitted.] Further, because the trial court has great discretion in determining the overriding best interest of the child, the Legislature has deferred the development of appropriate standards and criteria to either the appropriate state agency or to the court itself.

Chacon v. Chacon, 978 S.W.2d 633, 637-38 (Tex.App.-El Paso 1998, no pet.). As a result, we will also analyze the admissibility of Payne’s testimony under the Nenno approach.

Payne testified at length about her qualifications, training, and experience; she described her investigation, interviews, and conclusions in detail. Payne holds a bachelor’s degree in sociology and psychology from the University of Texas at Austin. She has extensive work experience in the foster or substitute care industry. Payne works primarily for the Department but is also employed by a private agency to conduct social studies for various clients. She has received on-the-job training in conducting social studies and is certified by the Department to conduct the studies. She estimated that before this case she had conducted approximately 150 social studies.

In fulfillment of her duties, Payne visited and took photographs of Taylor’s home. She interviewed Taylor and Taylor’s boyfriend Gary Russell, as well as Taylor’s employer, and family and church friends. She thoroughly investigated Taylor and Russell’s backgrounds and explained her findings and conclusions in the report. As a result of her investigation, Payne determined that Taylor’s home was inappropriate for D.A.C.

Taylor disagrees with Payne’s conclusion but makes no specific criticism of Payne or the study. She does not explain how or in what manner Payne’s qualifications are inadequate. Although she claims that Payne’s testimony is not scientifically reliable, we find that the trial court did not abuse its discretion under the Nenno standard. Considering Payne’s education, training, and experience, and the fact that she explains her findings and conclusions in depth, we do not believe that the district court abused its discretion in holding that Payne was qualified to conduct the study and testify in support of her conclusions. Payne was certified by the Department to conduct these social studies and the governing statute expressly delegates the setting of standards for the studies to the Department. We overrule Taylor’s first issue.

Admission of Taylor’s convictions

In her second issue, Taylor argues that the trial court erred in admitting evidence of a 1990 drug conviction. See Tex.R. Evid. 609. She also urges that the probative value of both her that conviction and a 1997 drug conviction were substantially outweighed by their unfairly prejudicial value and thus should have been excluded. See Tex.R. Evid. 403. In her third issue, Taylor argues that the trial court abused its discretion in permitting the Department to impeach her with inconsistent prior testimony in which she claimed incorrectly that she had successfully completed probation for her 1990 conviction. See Tex.R. Evid. 403, 609. We disagree.

Over Taylor’s objections, the trial court allowed the Department to cross-examine Taylor about her two drug convictions. Taylor admitted that in 1990 she was convicted of delivery of marihuana and received five years’ probation. She acknowledged that she used marihuana approximately once a week during that time period and that she failed two successive drug tests later in 1990, causing her probation to be revoked and her being sent to the state penitentiary for a year and a half. Taylor also admitted that, in 1997, she was convicted of marihuana possession and served 90 days in the McLennan County jail.

■ We review questions regarding the admission or exclusion of evidence for an abuse of discretion. Malone, 972 S.W.2d at 43. In addition to showing an abuse of discretion, an appellant must also show that the evidentiary ruling was calculated to cause and probably did cause the rendition of an improper judgment. Tex. R.App. P. 44.1; Malone, 972 S.W.2d at 43.

Taylor’s reliance on rule of evidence 609 in this case is misplaced. Rule 609 provides, in relevant part:

(a) General Rule.
For the purposes of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.
(b) Time Limit.
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the'release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Tex.R. Evid. 609 (Emphasis added.). As the italicized portions of the rule suggest, rule 609 is not a categorical limitation on the introduction of convictions for any purpose. Rather, it applies only to convictions offered for purposes of impeachment. Here, the Department offered Taylor’s convictions not solely to impeach her credibility but as relevant evidence going to the controlling issue in her case — the best interests of D.A.C.

We have already reviewed the Holley factors, used to evaluate the best interests of a child. See Holley, 544 S.W.2d at 372; Leal v. Texas Dep’t. of Protective & Regulatory Servs., 25 S.W.3d at 321. Taylor’s use of and involvement with illegal drugs is highly relevant to several of these factors, as is the existence of her criminal convictions. See in re C.A.J., 122 S.W.3d 888, 893 (Tex.App.-Fort Worth, 2003, no pet.); In re J.N.R., 982 S.W.2d 137, 143 (Tex. App.-Houston [1st Dist.] 1998, no pet.), disapproved on other grounds by C.H., 89 S.W.3d at 24-25; see also In re C.Q.T.M., 25 S.W.3d 730, 736 (Tex.App.-Waco 2000, pet. denied) (character evidence relevant to best-interest analysis).

Taylor must thus rely exclusively on her rule 403 objection if she is to demonstrate that the evidence was improperly admitted. We disagree with Taylor that the mere age of her drug convictions, or what she claims to be her reformed behavior in more recent times, renders her convictions unfairly prejudicial relative to their probative value. See Tex.R. Evid. 403. When the convictions are coupled with Taylor’s history of illegal drug use — which, she admitted, spanned the 1980s until as recently as two years prior to trial — and her tolerance of such conduct by others around her, the trial court did not abuse its discretion in admitting them into evidence. See In re M.G.D., 108 S.W.3d 508, 513-14 (TexApp.-Houston [14th Dist.] 2003, no pet.) (jury can accept or reject evidence of appellant’s rehabilitation from drug use in determining termination issues). We overrule Taylor’s second issue. Likewise, we hold that the trial court did not abuse its discretion in permitting the Department to impeach Taylor with her inconsistent prior testimony claiming that she had successfully completed her 1990 probation. We overrule Taylor’s third issue.

Sufficiency of evidence for managing conservatorship

In her fourth issue, Taylor challenges the factual and legal sufficiency of the jury’s findings that denied her custody of D.A.C. and granted it to the Department. Actions to determine the conservatorship of a child, like parental termination, are governed by the best interest of the child. See Tex. Fam.Code Ann. § 103.002. A child’s best interests are always the primary consideration for the court. In re Rodriguez, 940 S.W.2d 265, 271 (Tex.App.-San Antonio 1997, writ denied); Neely v. Neely, 698 S.W.2d 758, 759 (Tex.App.-Austin 1985, no writ). Because she is not a parent, the standard of proof on Taylor’s claim was merely preponderance of the evidence, not clear and convincing evidence. See Tex. Fam.Code Ann. § 105.005 (West 2002); Choyce v. Dallas County Child Welfare Unit, 642 S.W.2d 559, 560-61 (Tex.App.-Dallas 1982, no writ) (explaining that, because conser-vatorship is revocable and less drastic adjudication than termination, stricter clear and convincing burden is not applicable). A jury’s custody determination is binding on the trial court if supported by evidence. Tex. Fam.Code Ann. § 105.002(c), (d); Rodriguez, 940 S.W.2d at 271.

If a party is attacking the legal sufficiency of an adverse finding of an issue on which it did not have the burden of proof, the attacking party must demonstrate on appeal that there is no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983); Beard Family P’ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 847 (Tex.App.-Austin 2003, no pet.). In reviewing a no-evidence issue, we are to consider only the evidence favoring the finding, disregarding all direct and circumstantial evidence to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex.2002); Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). When reviewing a challenge to the factual sufficiency of the evidence, we must consider, weigh, and examine all of the evidence in the record. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). A party attacking the factual sufficiency of an adverse finding on which the other party had the burden of proof must demonstrate that there is insufficient evidence to support the adverse finding. Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ). We should set aside the verdict only if the evidence that supports the finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We may not reverse merely because we conclude that the evidence preponderates toward a different answer. See Herbert v. Herbert, 754 S.W.2d 141,144 (Tex.1988).

Taylor testified that she was forty-one years old and had been drug-free for two years. She had been in a committed relationship with Gary Russell for two years without any separations. Taylor lived with Russell in a home he owned. They were not married. Taylor described Russell’s property as being located on a farm-to-market road and having a large yard. She planned for D.A.C. to have her own room and was going to put in a new bed, dresser, and closet. She also planned to purchase a window unit for the bedroom that would provide heat and cooling until they installed central heat and air conditioning. Taylor also admitted that she and Russell smoke cigarettes but said that they would agree not to smoke in the house if they gained custody of D.A.C.

Russell’s home was reported to be modest, comfortable, and clean. There were a few alterations needed, but Russell said he was making the changes. For instance, their heating system was a wood-burning stove, which Payne determined was inappropriate for an infant. Russell testified that he was installing a central heating system in the house. Also, the house needed to be finished out in several places with base boards and window frames.

Russell testified that he had known Taylor for five years and had been in a relationship with her for two and a half years. He described Taylor as a good housekeeper and homemaker. The couple made a modest but dependable income. Taylor worked two jobs, one as a cook at the Main Street Café three days a week from 8:00 a.m. to 3:00 p.m., and the second as assistant supervisor at the Mill Creek Country Club three days a week from 9:30 a.m. to 5:00 p.m. She had health insurance through Mill Creek. Russell was fifty-six years old and was retired after having been an auto mechanic and welder for thirty-five years. He had served two years in Vietnam, where he contracted spinal meningitis, which eventually left him 100 percent disabled.

Russell testified that he and Taylor would provide D.A.C. a good home and would protect her. He described Taylor’s love and longing for D.A.C. by saying, “[s]he wants this baby real bad.” He spoke of the disappointment Taylor felt about losing her first grandchild (the first child of Costine and Carpenter). He said that Taylor had bonded with D.A.C. and that D.A.C. recognized Taylor.

Russell also testified that it was apparent to him that the Department never seriously considered placing D.A.C. with them. He said Payne’s social study was inaccurate and “misrepresented everything.” Russell had no criminal history. He said that he had never known Taylor to use drugs, that he did not use drugs, and that he did not associate with people who did.

Several witnesses testified as to the good character of Taylor and her fitness as a parent. Taylor’s supervisor at Mill Creek, Debra Pendergraph, had worked with Taylor for the past six years. She testified that Taylor was a good, dependable employee who loved her granddaughter and would provide her a good home.

Wanda Hibbler, a friend of Taylor and Russell who owned a child development center, testified that Taylor was a warm, loving person who had fought hard for custody of her grandchild. She said Russell was a good and loving father and had raised his own child as a single parent. She said that Russell was good about getting his son out of trouble. Hibbler testified that she and Taylor planned that, if Taylor obtained custody, Hibbler would babysit D.A.C. when Taylor was at work.

Russell’s minister, Harold Goodwin, testified that he had known Russell for ten years and Taylor for two and that they would provide D.A.C. with a good home. He said Taylor clearly loved her granddaughter very much. He said that the couple had a good relationship, and he had never witnessed any fights between them. Goodwin’s wife Patricia testified that she was a frequent visitor to the couple’s home and that it was clean and comfortable. She said that Taylor loved D.A.C. “pretty deeply” and the couple would give the child a good home. She said that there was nothing about Russell and Taylor that would concern her about their raising a baby. Another of the couple’s friends, Ranee Nash, gave similar testimony.

JoAnn Costine, Taylor’s ex-mother-in-law, testified about how much Taylor loved D.A.C. and wanted to build a home for her. She said that Russell was a solid man who would be a good role model for the child. She said that Russell had been a good influence on Taylor and the couple had a great relationship. In her opinion, Taylor would do well raising a child.

The Department contrasted this favorable testimony with evidence of Taylor’s history of drug use and drug-related crimes, previously discussed. In addition, the Department entered evidence concerning the years between Taylor’s incarcerations. At that time, while her son Costine was between five and twelve years of age, the child was left with his father, a methamphetamine addict who was frequently in jail himself. At the time of trial, Costine’s father was incarcerated. Taylor suggested that Costine’s criminal conduct is attributable to his father, though the Department urged that Taylor also bore some responsibility. At the time of trial, Costine had just been released from prison for aggravated robbery and possession of metham-phetamines and resided in a halfway house in Bryan. He was first sent to jail at age thirteen for possession of methamphet-amines, receiving a fifteen-month sentence. Responding to the favorable testimony about Russell, the Department pointed out that Russell also had an adult son with a criminal record who, at time of trial, was living in a vehicle parked on Russell’s property.

The Department also presented evidence that D.A.C. was doing well in foster care with Jose and Suzy Ramirez, had bonded with them, and considered them her parents. The Ramirezes both testified that they wanted to adopt D.A.C. The couple had been married thirty-two years and owned their own home. Mr. Ramirez said that their home had five bedrooms and two bathrooms. He had been a surgical assistant at Darnell Hospital for nineteen years, and Mrs. Ramirez was a registered nurse at the same facility. Mr. Ramirez had two years of university education and one year of surgical assistant training. Mrs. Ramirez held a bachelor’s degree in nursing. He said that he worked a consistent schedule from 7:00 a.m. to 3:00 p.m. and did not have to take calls at the hospital.

The Ramirezes had three children of their own, ages sixteen, seventeen, and nineteen. Their oldest son attended Central Texas College and worked at Home Depot. Their younger son and their daughter attended high school. Mr. Ramirez testified that none of their children had ever been in trouble or used drugs. Both testified that their children got along very well with D.A.C. and loved her. Mrs. Ramirez testified that they were teaching D.A.C. to speak both Spanish and English, but Spanish was the primary language spoken in the home. There was testimony that D.A.C. is one-quarter Hispanic.

Mr. Ramirez testified that his health was good but that he took medication for high blood pressure. Mrs. Ramirez said that she had just retired after having back surgery. She said she could no longer work because her job in the operating room required her to do heavy lifting. She said she was “on disability,” and was restricted from lifting more than thirty pounds.

The couple said that they had been foster parents since 1997 and estimated that a total of thirty children had been placed in their home in that time. They had never adopted a foster child. D.A.C. was eighteen months old at the time of trial, and she had been in the Ramirez’s home since she was a young infant. D.A.C. called Mrs. Ramirez “mama” and Mr. Ramirez “poppy”; she knew no one else as her parents. The Ramirezes both testified that they loved D.A.C. very much and that she was already a part of their family. Mrs. Ramirez testified that they began wanting to adopt D.A.C. soon after she was placed in their home.

D.A.C.’s court-appointed guardian ad li-tem, Mike Lockett, testified that, in his opinion, D.A.C.’s interests would best be served by appointing the Department as her managing conservator. Lockett testified that his job was to look after the interests of children in the foster care system in Bell County. He monitored the children in .foster care and made recommendations to the court and jury. He had a bachelor’s degree in psychology, a master’s degree in counseling, and extensive experience working with children, including as a caseworker.

Lockett testified that D.A.C. was doing well in foster care. He said that he had known the Ramirez family for years because he placed foster children with them when he was a caseworker. He said they had taken “really good care of every child that I was responsible for that was placed in their home.” He said he thought very highly of them as foster parents and that he was responsible for having D.A.C. placed in the Ramirez home. Lockett said that there is no risk to D.A.C. with the Ramirezes but some risk in granting con-servatorship to Taylor.

Although he attempted to make a home visit to Taylor’s home, he was not able to find it because he had the wrong address. He had not interviewed Taylor. He also said that “there’s a part of me that would like to see Ms. Taylor continue on in [D.A.C.’s] life, not as the person who raises her, but as her grandmother.” He said it would be beneficial for D.A.C. for the grandmother to remain involved in her life. However, he did not think that Taylor should have primary custody of D.A.C.

When we consider all the evidence in a light most favorable to the jury’s decision, as we must, see Lenz, 79 S.W.3d at 13, we find the evidence legally sufficient to support denying Taylor conservatorship. In addition, in light of the whole record, the evidence is not so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d at 176. Taylor offered much evidence to support her ability to parent D.A.C. However, the Department emphasized her drug history, her previous criminal convictions, and other problems with her family situation. In addition, Locket testified there was some risk in granting Taylor conservatorship while there was none if conservatorship was granted to the Ramirezes. We acknowledge Lockett’s conclusion that it would be beneficial for Taylor to remain a part of D.A.C.’s life as her grandmother. However, any such desire does not authorize us to second-guess the jury’s resolution of the evidence. We find the evidence factually sufficient to support the jury’s conclusion. We overrule Taylor’s fourth issue.

CONCLUSION

We have overruled all issues brought on appeal by Carpenter, Costine, and Taylor, and we affirm the decree of termination of the district court. The motion to withdraw filed by Lori Carpenter’s counsel is granted.

      . The child had severe asthma requiring medication. Nonetheless, Carpenter had left the child with a babysitter without explaining the child’s condition or providing medication. The child had an asthma attack and, after the babysitter could not locate Carpenter, the babysitter took the child to the hospital, saving her life.

      . Costine also admitted to prior convictions for unlawfully carrying a weapon and possession of a controlled substance, as well as a drug addiction.

      . The record indicates that while the parties petitioned various tribal courts, none asserted jurisdiction over the case. See 25 U.S.C.A. § 1911(b) (West 2001) (termination cases involving Indian children not domiciled on reservation shall be transferred to tribal court upon petition of either parent or Indian custodian or Indian child’s tribe; transfer shall be subject to declination by the tribal court).

      . “Anders brief' refers to a brief filed in accordance with Anders v. California, 386 U.S. 738, 741-44, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In Anders, the United States Supreme Court held that a court-appointed defense attorney in a criminal case who determines, after fully examining the record, that an appeal is wholly frivolous and without merit must so advise the appellate court and then set forth any potential points of error and applicable law that might arguably support the appellant’s position. Several of our sister courts of appeals have acknowledged that An-ders briefs may be appropriate in parental termination cases. See In re D.E.S., 135 S.W.3d 326, 329 (Tex.App.-Houston [14th Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66, 67 (Tex.App.-Houston [1st Dist.] 2003, no pet.); Porter v. Texas Dep’t of Protective & Regulatory Servs., 105 S.W.3d 52, 56 (Tex. App.-Corpus Christi 2003, no pet.); In re KM., 98 S.W.3d 774, 777 (Tex.App.-Fort Worth 2003, no pet.); In re E.L.Y., 69 S.W.3d 838, 841 (Tex.App.-Waco 2002, no pet.); In re K.S.M., 61 S.W.3d 632, 634 (Tex.App.-Tyler 2001, no pet.). Likewise, this Court has considered the Anders procedure in unpublished termination cases. See Prewitt v. Texas Dep’t of Protective & Regulatory Servs., No. 03-01-00648-CV, 2002 WL 31426200, 2002 Tex.App. LEXIS 7765 (Tex.App.-Austin Oct.31, 2002, no pet.) (not designated for publication); Behrends v. Texas Dep’t of Protective & Regulatory Servs., No. 03-01-00614-CV, 2002 WL 1343252, 2002 Tex.App. LEXIS 4463 (Tex.App.-Austin June 21, 2002, no pet.) (not designated for publication). Although the Texas Supreme Court has not yet squarely addressed this issue, it has suggested in several decisions that it would likely approve the use of Anders briefs in parental termination cases. In I'm re M.S., 115 S.W.3d 534, 544 (Tex.2003), the court held that the Sixth Amendment right to counsel applied to parental termination cases. In In re D.A.S., 973 S.W.2d 296, 299 (Tex. 1998), the court extended Anders to juvenile delinquency proceedings on the basis that their quasi-criminal nature implicated the Sixth Amendment right to counsel. The rationale of D.A.S. — that An-ders applied to appointed counsel in noncriminal contexts where the Sixth Amendment is implicated — would seemingly also extend to termination cases, as M.S. held that the Sixth Amendment applies in those proceedings.

      . Among other grounds, there is conclusive evidence that Carpenter’s parental rights to her first child were terminated based on findings that she had endangered the child, see Tex. Fam.Code § 161.001(1)(D), (E) & (M) (West 2002), and there is legally and factually sufficient evidence that termination is in D.A.C.’s best interest. Id. § 161.001(2).

      . Broad-form submission is also the exemplar in the Pattern Jury Charge. See Comm, on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Family PJC 218.IB (2003).

      . We acknowledge that the supreme court has yet to resolve this issue.

      . We also note that this Court, in an unreported opinion, affirmed a similar jury submission on the grounds that Casteel was not implicated where there was sufficient evidence to support each of the statutory termination grounds asserted in the case. Carr v. Texas Dep't of Protective & Regulatory. Servs., No. 03-03-00273-CV, 2004 WL 34788, at *6, 2004 Tex.App. LEXIS 92, at *17-19 (Tex. App.-Austin Jan. 8, 2004, pet. denied) (memorandum op.) (citing In re J.M.M., 80 S.W.3d 232, 249-50 (Tex.App.-Fort Worth 2002, pet. denied)). Here, Costine does not dispute the sufficiency of the evidence of any of the termination grounds asserted against him. Carr would suggest, therefore, that Casteel is not implicated here. Moreover, this court has held that Casteel does not apply where the disjunctive submission tracks statutory language, as is the case here. See Cox v. Texas

        Dep’t of Protective & Regulatory Servs., No. 03-01-00511-CV, 2002 WL 1025066, at *2 n. 3, 2002 Tex.App. LEXIS 3651, at *7 n. 3 (Tex.App.-Austin May 23, 2002, pet. denied) (not designated for publication).

      . The district court ordered a social study of Taylor’s home pursuant to section 107.051 of the family code, which authorizes a social study to be conducted of the home of any person seeking managing conservatorship of a child. See Tex. Fam.Code Ann. § 107.051(a), (b) (West 2002). The statute delegates to the Department the task of setting standards for conducting these studies, as well as establishing minimum qualifications for those conducting them. Id. § 107.052. A study may be conducted by a private entity, like in this instance, or by an individual appointed by the court or by the Department itself, even when the Department is also a party in the suit. Id. § 107.051(b). The study may be filed with the court and made a part oí the record. Id. § 107.054. Disclosure of the contents of a home study to a jury must conform to the rules of evidence, and the court may compel the testimony of the author of a study at trial. Id. § 107.055(a), (c). These social studies frequently contain a great deal of inadmissible hearsay. See Rossen v. Rossen, 792 S.W.2d 277, 278 (Tex.App.-Houston [1st Dist.] 1990, no writ). The purpose of the study is to allow the trial court to obtain an independent assessment of a proposed placement. Green v. Remling, 608 S.W.2d 905, 909 (Tex. 1980) ("only those portions of the study which are admissible under the rules of evidence may be disclosed to the jury”).

      . See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995) (establishing analytical framework governing qualifications of expert witnesses and requirements for assuring reliability of expert opinions).

      . The nonexclusive Robinson factors are: (1) the extent to which the theory or opinion has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory or opinion has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex.1998); Robinson, 923 S.W.2d at 557; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . At trial, Taylor also objected to this cross-examination on the basis that it was improper impeachment under rule 613. She does not assert this argument on appeal but instead relies only upon rules 403 and 609.

      . Even if Taylor had preserved her objection under rule 613, we believe that requiring Taylor to read her prior testimony line-by-line was harmless error in the face of other evidence regarding D.A.C.’s best interests.


source: Caselaw Access Project

license: Public Domain

text:
    The VOICE OF the CORNERSTONE CHURCH CORPORATION, Appellant, v. PIZZA PROPERTY PARTNERS, David J. Miller, John W. Hoberman, John G. Farrar, Exxon Mobil Corporation and ExxonMobil Oil Corporation, Appel-lees.
    No. 03-04-00173-CV.
    Court of Appeals of Texas, Austin.
    March 10, 2005.

      Jose Luis Lopez, Austin, for Appellant.
    David L. Brenner, Burns, Anderson, Jury & Brenner, LLP, Austin, for Appel-lees.
    Mark R. Robeck, Houston, Bob E. Shannon, Allison L. Bowers, Scott Powers, Baker & Botts, Austin, for Exxon.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

In this appeal, we review a permanent injunction enforcing a restrictive covenant to prohibit activities of a church located on the former site of the Austin petroleum “tank farm.” Although the backdrop of this appeal involves not only religious but also environmental concerns, the issues properly preserved on appeal and within our power to consider are exclusively these: (1) whether the church, as a purchaser charged with notice, is bound by a restrictive covenant on the property; (2) whether the district court properly determined that the church’s use of the property violated the restrictive covenant; and (3) whether the district court could constitutionally enforce a facially neutral and nondiscriminatory restrictive covenant against a church, a proposition that Texas courts have long accepted. Because the district court correctly resolved these issues, we affirm the judgment.

BACKGROUND

Because the restrictive covenant we consider in this case resulted from a settlement agreement with the former Texas Water Commission concerning remediation of an industrial brownfield, we begin with a brief introduction to the ongoing policy developments in that area of environmental law. Industrial brownfields are abandoned, idled, or underused industrial and commercial sites where expansion or redevelopment is complicated by real or perceived environmental contamination that can add cost, time, or uncertainty to a redevelopment project. See Frona M. Powell, Amending CERCLA to Encourage the Redevelopment of Brownfields: Issues, Concerns, and Recommendations, 53 Was. U.J. Urb. & Contemp. Law 113, 113-14 (1998). The federal government’s emphasis on permanent cleanup of brownfields to leave land available for unrestricted use has gradually faded over time, as the costs and difficulties of achieving such a goal became clear. See Jim Spinaastra, et al., Industrial Controls: Brownfields Super-tveapon or Ultimate Trojan Horse?, 15 Nat. Resources & Env’t, 104, 104 (2000); see also Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.A. §§ 9601-9675 (West 1995 & Supp.2004). Among other reasons, this policy shift resulted from concerns of the polluting parties over a requirement to pay the costs to clean their sites to levels safe for residential use when those sites were likely to remain industrial for the foreseeable future. See Spinaastra, supra, at 104. As a result, the federal government began to encourage the use of land and water-use restrictions to control residential exposure so as to open up previously idle brownfields for industrial redevelopment. See id.; see also Frona, supra, at 113-14. Failure to maintain land restrictions may subject the polluter to liability under CERCLA or state environmental law. See Spinaastra, supra, at 106. In 1999, Texas implemented rules to reflect this new approach to brownfield redevelopment. See 30 Tex. Admin. Code §§ 350.1-.135 (2004) (Texas Risk Reduction Program); see especially id. § 350.1 (“The program also sets reasonable response objectives that will protect human health and the environment and preserve the active and productive use of land.”).

Before 1992, Mobil Oil, a predecessor to ExxonMobil Oil Corporation (“ExxonMo-bil”), owned and operated an oil pipeline terminal that served as a bulk fuel storage and transfer station on property near the intersection of Airport Boulevard and Springdale Road in east Austin. Neighbors to the property complained about soil and groundwater contamination, resulting in litigation before the Texas Water Commission, the predecessor agency to the Texas Commission on Environmental Quality (the Commission). In April 1992, all parties to that litigation reached a settlement, which the Commission memorialized in an agreed order. According to the order, the Commission found documented soil and groundwater contamination on the property in violation of state water-quality regulations. The Commission thus ordered Mobil Oil to submit a pollution remediation plan with provisions for quarterly monitoring of the corrective measures.

Although the settlement agreement is not in the record before us, the parties do not appear to dispute that Mobil Oil’s duties under the agreement necessitated that it impose a restrictive covenant to prohibit uses that could create environmental risks before selling or transferring the property. Thus, in 1997, Mobil Oil sold the property to Pizza Property Partners by special warranty deed with the following restrictive covenant:

As part of the consideration for this conveyance, the Grantee [Pizza Property Partners] for itself, its successors or permitted assigns, covenants and agrees that from the date of this Deed the property shall be used for commercial/light industrial purposes only and neither the property herein conveyed nor any part thereof shall at any time be used for (1) the storage and sale of motor fuels; (2) for residential purposes, healthcare facilities, daycare facilities, schools, playgrounds; (3) that irrigation and drinking water wells shall be prohibited; and (4) that subsurface structures, including without limitation basements and below ground parking but excluding building foundations are prohibited. This covenant shall survive delivery of the Deed and is to run with the land herein conveyed and a similar restrictive covenant shall be inserted in any deed or lease or instrument conveying or demising the property herein conveyed or any part thereof.

For its part, Mobil Oil agreed to continue remediation and monitoring of the property with respect to the petroleum contamination it caused “to the extent required and in a manner approved by the governmental authority exercising. jurisdiction over the matter, whether federal, state or local, or its designee.” Pizza Property Partners also released Mobil Oil from any liability “related to the existence or migration of petroleum contamination which arose out of’ Mobil Oil’s use of the property.

Pizza Property Partners and Mobil Oil filed with the Travis County Clerk several other documents memorializing the restrictive covenant. First, they created a “Post-Closing Use Restriction Agreement,” reiterating the promises made in the restrictive covenant filed with the special warranty deed. Second, they executed an “Agreement for Access to Premises after Transfer of Title,” in which Pizza Property Partners acknowledged that the property had or

may have been impacted by petroleum contamination and that Seller [Mobil Oil] is or will be undertaking, with reasonable diligence, Corrective Action ... with respect to petroleum contamination caused by Seller’s use of the premises which occurred or commenced occurring before closing, if and to the extent required and in the manner approved by the governmental authority exercising jurisdiction over the matter, whether federal, state or local, or its desig-nee ....

The parties defined “corrective action” in the document as “active remediation, passive remediation, investigation and/or monitoring of petroleum contamination.” Mobil Oil and Pizza Property Partners then agreed that such corrective action would continue until the appropriate governmental authority would advise Mobil Oil that corrective action had been “completed to that authority’s satisfaction” or until such time that Mobil Oil would determine that the environmental condition of the property satisfies regulatory requirements. As a result, Pizza Property Partners granted Mobil Oil access to the property to engage in corrective action, agreed to cooperate in the filing of notices and deed acknowledgments, and consented to bind itself and any subsequent purchaser of the property to submit future construction plans to Mobil Oil to accommodate Mobil Oil’s corrective action. By its express terms, the agreement indicates that the parties intended to make it binding on all sueces-sors-in-interest to the parties.

On January 26, 2000, Pizza Property Partners conveyed the property to the Voice of the Cornerstone Church Corporation (“Cornerstone”) by warranty deed with vendor’s lien, subject to “any and all restrictions, encumbrances, easements, covenants and conditions” as filed with the Travis County Clerk. The deed did not further elaborate on the restrictive covenant or explicitly refer to the instruments filed with the County Clerk.

Cornerstone is an incorporated religious group organized, according to its articles of incorporation, “to preach the [Gjospel of the [Kjingdom.” Its primary expression of this function is by engaging in religious worship. It was formed in 1995, although the congregation had been informally holding services in members’ houses earlier. At the time of the deposition of Juan Ramos, Cornerstone’s pastor, the church had approximately 75 members but no paid staff.

No party disputes the facts concerning Cornerstone’s use of the property. At the time of purchase, the property contained several old industrial warehouses. Cornerstone converted the largest of these buildings into a church sanctuary, removing walls to create a larger space. It also constructed a small kitchen attached to the sanctuary to provide meals for its members on Sundays. It received permits from the City of Austin for those renovations. Cornerstone also created a baptismal pool from one of the tank farm’s fuel storage tanks. It removed sand that had filled the hole where the tank had been, mixed the sand with cement, and used the resulting concrete to form the floor and walls of the baptismal pool in the excavated hole. It then tiled the concrete circumference of the hole. Cornerstone did not seek Mobil Oil’s permission to engage in any of these renovations or construction projects.

Worship services occur on the property at least four times each week, estimated by Cornerstone to constitute seventeen percent of the property’s use. In a smaller building, Cornerstone runs a printing press to provide financial support for the church; it otherwise does not generate a profit. Ramos has also operated an appliance repair shop and retail store on the property to help pay the monthly expenses of the congregation. There is also evidence that some church members have stored inoperable cars on the property for short periods of time.

In 2000, after it learned of activity on the property, Mobil Oil contacted Cornerstone to inform it of its belief that Cornerstone’s use violated the restrictive covenant. The parties were unable to come to an agreement concerning permitted uses of the property, and, in 2001, ExxonMobil sought to énjoin both Cornerstone’s use of the property for church purposes and any further construction projects, alleging that Cornerstone’s activities constituted a breach of the restrictive covenant, access agreement, and use-restriction agreement Mobil Oil signed with Pizza Property Partners in 1997. ExxonMobil also sued various other parties, including Pizza Property Partners and the real estate agent who arranged the conveyance of the property to Cornerstone.

The parties filed cross-motions for summary judgment. In its motion, ExxonMo-bil explicitly sought a permanent injunction enjoining Cornerstone from using the property “for church services or activities related to the Church or anything else other than commercial or light industrial purposes,” from using the baptismal pool, and from further violating the restrictive covenant, the post-closing use agreement, and the access agreement. The district court granted ExxonMobil’s motion without stating the grounds.

Thereafter, Cornerstone, for the first time, filed a declaratory-judgment counterclaim seeking cancellation or modification of the restrictive covenant based on changed circumstances or ambiguity. It also sought a declaration that ExxonMobil was not entitled to enforce the covenant because ExxonMobil had no legal or equitable interest in the enforcement. Cornerstone also added various new affirmative defenses. ExxonMobil filed a second summary-judgment motion on the grounds that Cornerstone’s counterclaim and affirmative defenses were procedurally barred or otherwise foreclosed by the district court’s ruling on its first summary-judgment motion, that the declaratory-judgment action was improper because it addressed issues already before the district court, and that each of the affirmative defenses and the counterclaim failed on the merits. Cornerstone filed a cross-motion seeking summary judgment on its counterclaim. The district court granted summary judgment for ExxonMobil without stating the grounds.

After a jury trial on the pending claim between ExxonMobil and Pizza Property Partners, the district' court rendered a final judgment incorporating all its previous rulings, and in section 9 of the order it permanently enjoined Cornerstone from “using the property ... for church services and related fellowship and worship activities or anything else other than commercial or light industrial purposes” and from “using, in any way, the baptismal pool located on the Property.” The district court also prohibited Cornerstone from violating the terms of the restrictive covenant, the use-restriction agreement, and the agreement for access to premises. Finally, the district court disallowed “any type of construction activity without first allowing [ExxonMobil] to review any such construction plans to ensure that any such plans accommodate and facilitate the Corrective Action.” This appeal followed.

DISCUSSION

Cornerstone’s issues on appeal can be grouped for discussion as follows: (1) Exx-onMobil lacked standing to seek enforcement of the restrictive covenant; (2) there is no evidence that Cornerstone violated the “commercial/light industrial” limitation or any other provision of the restrictive covenant; (3) the district court abused its discretion in refusing to cancel or modify the restrictive covenant on the basis of changed circumstances, hardship, latent ambiguity, or equitable estoppel; and (4) enforcement of the covenant, as interpreted, violates Cornerstone’s religious freedoms.

Standing to enforce the restrictive covenant

Cornerstone contends that Exx-onMobil lacks standing to seek enforcement of the restrictive covenant. We disagree.

The issue of standing is a legal question, which we review de novo. Texas Lottery Comm’n v. Scientific Games Int'l, Inc., 99 S.W.3d 376, 380 (Tex.App.-Austin 2003, pet. denied). Standing is a component of subject-matter jurisdiction and is therefore essential to a court’s power to decide a case. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444-45 (Tex.1993); Benker v. Texas Dep’t of Ins., 996 S.W.2d 328, 330 (Tex.App.-Austin 1999, no pet.). To establish standing, one must show a justiciable interest by alleging an actual or imminent threat of injury peculiar to one’s circumstances and not suffered by the public generally. Benker, 996 S.W.2d at 330; see also Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984).

A “restrictive covenant” is a negative covenant that limits permissible uses of land. Restatement (Third) of Prop.: Servitudes § 1.3(3) (2000). The original grantor of the property is entitled to enforce a restrictive covenant on that property. Eakens v. Garrison, 278 S.W.2d 510, 514 (Tex.Civ.App.-Amarillo 1955, writ refd n.r.e.); Pierson v. Canfield, 272 S.W. 231, 233 (Tex.Civ.App.-Dallas 1925, no writ). A restrictive covenant can bind a successor to the burdened land in two ways: as a covenant that runs with the land at law or as an equitable servitude. TX Far W., Ltd. v. Texas Invs. Mgmt., 127 S.W.3d 295, 302 (Tex.App.-Austin 2004, no pet.); Reagan Nat’l Adver. of Austin, Inc. v. Capital Outdoors, Inc., 96 S.W.3d 490, 495 (Tex.App.-Austin 2002, pet. granted, judgm’t vacated w.r.m.). In Texas, a covenant runs with the land when (1) it touches and concerns the land; (2) it relates to a thing in existence or specifically binds the parties and their assigns; (3) the original parties to the covenant intend it to ran with the land; and (4) the successor to the burden has notice. Inwood N. Homeowners’ Ass’n v. Harris, 736 S.W.2d 632, 635 (Tex.1987); TX Far W., Ltd., 127 S.W.3d at 302; see also Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 911 (Tex.1982); Wayne Harwell Props, v. Pan Am. Logistics Ctr., 945 S.W.2d 216, 218 (Tex.App.-San Antonio 1997, writ denied); Panhandle & S.F. Ry. Co. v. Wiggins, 161 S.W.2d 501, 504-05 (Tex.Civ.App.-Amarillo 1942, writ ref d w.o.m.). In addition to these fundamental requirements, we are to construe a restrictive covenant liberally “to give effect to its purposes and intent.” Tex. Prop.Code Ann. § 202.003(a) (West 1995). Finally, purchasers are charged with notice of the terms of deeds that form an essential link in their chain of ownership. Cooksey v. Sinder, 682 S.W.2d 252, 253 (Tex.1984); Westland Oil, 637 S.W.2d at 908. A purchaser is also charged with knowledge of the provisions and contents of other recorded instruments'. Cooksey, 682 S.W.2d at 253; Musgrave v. Brookhaven Lake Prop. Owners Ass’n, 990 S.W.2d 386, 396 (Tex.App.-Texarkana 1999, pet. denied); Harris County Flood Control Disk v. Glenbrook Patiohome Owners Ass’n, 933 S.W.2d 570, 575 (TexApp.-Houston [1st Dist.] 1996, writ denied).

It is undisputed that ExxonMobil is Mobil Oil’s successor-in-interest and stands in the shoes of the original grantor in this case. Thus, it may enforce the restrictive covenant because we determine that the covenant runs with the land. See Eakens, 278 S.W.2d at 514; Pierson, 272 S.W. at 233. Pizza Property Partners and Mobil Oil were in privity of estate when the restrictive covenant was created. The special warranty deed conveying the property from Mobil Oil to Pizza Property Partners contained the terms of the covenant, which attempts to make the property unusable for purposes other than commercial or light industrial uses. See Westland Oil, 637 S.W.2d at 911. The covenant burdens the property itself, and its terms make clear that Pizza Property Partners and Mobil Oil intended for it to bind future owners of the property. The explicit terms of the covenant also evidence the parties’ intention that it run with the land. Finally, the record indicates that the special warranty deed with the restrictive covenant, the post-closing use restriction agreement, and the agreement for access to premises after transfer of title were all properly recorded in Travis County. Thus, Cornerstone is charged with notice of the deed’s terms and those of the other agreements made between Pizza Property Partners and Mobil Oil. Accordingly, we find that this restrictive covenant runs with the land and that ExxonMobil properly had standing to seek its enforcement.

In response, Cornerstone argues that the restrictive covenant at issue in this case is in the nature of an “easement in gross” and that ExxonMobil lacks standing to seek enforcement because (1) it is not an adjacent landowner, (2) enforcement does not relate to a benefit to adjacent land, and (3) ExxonMobil has no legitimate interest affected by the prohibited activities. Cornerstone appears to confuse easements in gross with easements appurtenant. When a restrictive covenant relates to an easement across a servient estate, that covenant may be characterized as an easement appurtenant. Bickler v. Bickler, 403 S.W.2d 354, 359 (Tex.1966); Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex.1963). An easement appurtenant generally takes the form of a negative easement: the owner of the ser-vient estate may not interfere with the right of the owner of the dominant estate to use the servient estate for the purpose of the easement. See Bickler, 403 S.W.2d at 359; Drye, 364 S.W.2d at 207. In contrast, an easement in gross attaches to an individual and is not dependent upon the existence of a dominant estate in land. Drye, 364 S.W.2d at 207. The standard Cornerstone suggests for analyzing an easement in gross actually pertains to easements appurtenant. That standard does not apply in this case because Exxon-Mobil’s lights do not attach to a dominant estate. Instead, we will adhere to the well-settled principles for analyzing restrictive covenants, as we have described above. We overrule Cornerstone’s challenge to ExxonMobil's standing.

Interpretation of the restrictive covenant

Next, Cornerstone argues that the district court incorrectly interpreted the restrictive covenant to bar its church activities because those activities are merely incidental to the commercial use of the property, because the covenant does not specifically exclude church uses from appropriate uses, and because the baptismal pool was created from “an already existing concrete hole” as opposed to being a new subsurface structure prohibited by the covenant. We disagree.

The grant or refusal of a permanent injunction is ordinarily within the trial court’s sound discretion. Texas Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 851 (Tex.App.-Austin 2002, pet. denied); South Tex. Coll, of Law v. Texas Higher Educ. Coordinating Bd., 40 S.W.3d 130, 139 (Tex.App.-Austin 2000, pet. denied). A trial court “abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 801 (Tex.2002) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)). Because the court issued its injunction as a result of cross-motions for summary judgment, we must also bear in mind the summary-judgment standards of review when considering alleged error. See Texas Health Care Info. Council, 94 S.W.3d at 851.

The standards for reviewing traditional summary judgments are well established: (1) the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmov-ant and any doubts resolved in its favor. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). The function of summary judgment is not to deprive litigants of the right to trial by jury but to eliminate patently un-mei’itorious claims and defenses. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972). Summary judgment will be affirmed on appeal if any ground asserted in the motion for summary judgment is a valid ground for rendering summary judgment. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996). Thus, a party moving for summary judgment must conclusively prove all elements of its cause of action or defense as a matter of law. Tex.R. Civ. P. 166a(e); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); Walker v. Hams, 924 S.W.2d 375, 377 (Tex.1996). When both sides have moved for summary judgment and one motion is granted and one denied, we determine all questions presented and render the judgment the trial court should have rendered. Lubbock County v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 583 (Tex.2002).

In construing a restrictive covenant, as in construing any written instrument, our first duty is to seek the intention of the parties to give effect to their purposes. Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex.1987). We will give words and phrases used in a covenant their commonly accepted meaning. Id. at 657-58. A restrictive covenant may be enforced by injunction where a distinct or substantial breach is shown, without regard to the amount of damages caused by the breach. Guajardo v. Neece, 758 S.W.2d 696, 698 (Tex.App.-Fort Worth 1988, no writ); Shepler v. Falk, 398 S.W.2d 151, 154 (Tex.Civ.App.-Austin 1965, writ refd n.r.e.); Protestant Episcopal Church Council v. McKinney, 339 S.W.2d 400, 403 (Tex.Civ.App.-Eastland 1960, writ refd). In such cases, it is not necessary to show the existence of any particular amount of damages or to show that the injury will be irreparable. Shepler, 398 S.W.2d at 154; McKinney, 339 S.W.2d at 403. At least when a covenant restricts the use of property to residential uses, additional uses may be permitted if they are reasonably incidental to prescribed uses and of such nominal or inconsequential breach of the covenants “as to be in substantial harmony with the purpose of the parties in the making of the covenants.” McKinney, 339 S.W.2d at 404 (quoting Moore v. Stevens, 90 Fla. 879,106 So. 901, 904 (1925)). A court may interpret and apply provisions of a restrictive covenant on summary judgment when no factual issues exist. See Crispin v. Paragon Homes, 888 S.W.2d 78, 80-81 (Tex.App.-Houston 1994, no writ). Cornerstone has insisted that the interpretation of the restrictive covenant here is purely one of law.

Although the restrictive covenant does not, in so many words, prohibit worship services or related church activities, it unequivocally prohibits any use of the property other than “commercial/light industrial purposes.” Especially given the brownfield-redevelopment context in which the covenant was created, it was not necessary for ExxonMobil to enumerate with precision every conceivable non-commercial, non-industrial use for that limitation to be effective. Absent some bar to enforcement, we are bound to give effect to the clear intent of the drafters. Wilmoth, 734 S.W.2d at 658. Significantly, Cornerstone does not contend that its worship services, baptisms, and similar activities are within the sphere of “commerciaJ/hght industrial purposes” permitted under the restrictive covenant. Instead, apparently conceding that these activities violate the covenant, Cornerstone urges that church uses nonetheless do not constitute a “direct and substantial” breach because they constitute only a small percentage of the property’s uses relative to its commercial enterprises.

Given Cornerstone’s concession, we must conclude that the church uses are neither nominal nor inconsequential to the permitted “commercial/light industrial” uses. See McKinney, 339 S.W.2d at 404 (quoting Moore v. Stevens, 106 So. at 904).

Cornerstone is organized primarily for religious purposes. All other activity on the property is conducted for the purposes of supporting the church’s religious mission-the printing press functions to spread Cornerstone’s religious message, and any money earned through the operation of the appliance repair shop is directed to cover Cornerstone’s operating expenses. Church services may constitute only seventeen percent of the time the property is used for activities; however, they form the fundamental core of Cornerstone’s use of the property. The issue we must address here is not, of course, whether these sorts of religious activities on property are generally permissible or desirable, but whether, on the record before us, Cornerstone’s use of the property is a “distinct or substantial breach” of the restrictive covenant’s requirement that the property be used solely for “commercial/light industrial” purposes. Our resolution of this issue must rest not on any personal views regarding religious activities but on Texas law. Applying these principles, we conclude that Cornerstone’s use of the property for church purposes is a distinct or substantial breach of the terms of the restrictive covenant.

Additionally, we reject Cornerstone’s characterization of the baptismal pool as “an already existing concrete hole” that did not violate the restrictive covenant’s prohibition of subsurface structures. In restrictive covenants, the word “structure” may be used in a broad sense or in a restricted one. Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506, 508 (1944); DeNina v. Bammel Forest Civic Club, Inc., 712 S.W.2d 195, 198 (Tex.App.-Houston [14th Dist.] 1987, no writ). The broad definition of a structure is “any production or piece of work artificially built up, or composed of parts joined together in some definite manner; any construction.” StewaH, 178 S.W.2d at 508. In a restricted sense, “structure” means “a building of any kind, chiefly a building of some size or of magnificence; an edifice.” Id. Inclusion of a particular object within the term, or its exclusion therefrom, usually depends upon the context and the purpose sought to be accomplished by the provision of which the term is a part. DeNina, 712 S.W.2d at 198.

With this framework in mind, we turn to the language employed in the restrictive covenant: “subsurface structures, including without limitation basements and below ground parking but excluding building foundations are prohibited.” Given the brownfield-redevelopment background and the broad language of the covenant, we find that the parties intended the broad sense of the definition to control. Thus, when considering the baptismal pool, we note that it originally was a sand-filled, in-ground, abandoned petroleum tank. Cornerstone removed the sand from the tank, mixed it with cement, and used the resulting concrete to build the walls and floor of the baptismal pool, four-and-a-half feet deep. We conclude that the baptismal pool is a structure under the meaning intended by the parties to the restrictive covenant. The pool may have been easier to construct because Cornerstone only had to dig and remove sand, but that fact does not change its nature as a structure. Cornerstone did not merely use a “hole” that already existed. In addition, Cornerstone does not dispute that the pool is properly characterized as being “subsurface.” Thus, the creation of the baptismal pool independently violated the restrictive covenant’s prohibition on subsurface structures.

We have found that Cornerstone’s church activities violated the restrictive covenant’s “commercial/light industrial” use limitation of the property. We have also determined that the construction of the baptismal pool violated the covenant’s prohibition on subsurface structures. We overrule Cornerstone’s assertion that the district court erred in its interpretation of the restrictive covenant.

Enforcement of the restrictive covenant

Having properly interpreted the restrictive covenant to find that Cornerstone had violated its terms, the district court was bound to give it effect unless Cornerstone raised a bar against enforcement. See Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943, 945 (1958) (in equity, court may refuse to enforce valid restrictive covenant if proper defense is raised). On appeal, Cornerstone asserts that (1) the district court abused its discretion in refusing to cancel or modify the restrictive covenant on the basis of changed circumstances, hardship, or latent ambiguity, and in rejecting its claim of equitable estoppel; and (2) enforcement of the covenant would violate its religious freedoms.

Cancellation or modification

Before we can address an issue on appeal, we must adhere to certain bedrock limitations on our judicial power: the issue must have first been raised and properly presented in the trial court and then must actually be raised before us on appeal. Tex.R.App. P. 33.1(a); Tex.R.App. P. 38.1(e), (g), (h). In at least two ways, Cornerstone failed to preserve its arguments regarding changed circumstances, hardship, ambiguity or equitable estoppel. First, Cornerstone did not assert its counterclaim for cancellation or modification until after the district court had granted ExxonMobil’s first summary judgment motion, nor did Cornerstone assert any of its affirmative defenses — other than religious freedom — as grounds for denying Exxon-Mobil’s first summary judgment motion.

See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984) (affirmative defense must be raised with some evidence to avoid summary judgment); Martin v. First Republic Bank, Fori Wori\ N.S., 799 S.W.2d 482, 488 (Tex.App.-Fort Worth 1990, writ denied) (counterclaim for reformation or recision of contract obligations not properly filed after court has enforced obligations on summary judgment). In this case, Cornerstone did not raise either its affirmative defenses or its counterclaims until after the district court had already ordered enforcement of the restrictive covenant. That summary-judgment order was a final order for the issues concerning the enforceability of the covenant. See Martin, 799 S.W.2d at 488. Thus, Cornerstone waived those claims on appeal.

Second, Cornerstone has failed to properly assert these arguments on appeal. After Cornerstone filed its counterclaim, ExxonMobil sought a second summary judgment on grounds that Cornerstone’s claim and affirmative defenses were procedurally barred or otherwise foreclosed by the first summary judgment and that each failed on the merits. The district court granted this motion without specifying the grounds. On appeal, although Cornerstone challenges this ruling by arguing the merits of its counterclaim and some of its affirmative defenses, it does not challenge the ground that its claims and defenses were procedurally barred by the first summary judgment. When an appellant from a summary judgment does not successfully attack every possible ground upon which the district court could have based its summary judgment, the summary judgment must be affirmed. Grace v. Coloñto, 4 S.W.3d 765, 768 (Tex.App.-Austin 1999, pet. denied). We are thus required to affirm the second summary judgment foreclosing Cornerstone’s counterclaim and affirmative defenses. We overrule Cornerstone’s issue regarding changed circumstances, hardship, ambiguity, and equitable estoppel.

Religious freedom,

Finally, Cornerstone argues that enforcement of the restrictive covenant violates its rights to religious freedom. As an initial matter, we note that Cornerstone’s argument here is a narrow one. Cornerstone contends only that enforcing the restrictive covenant would violate its right of religious freedom and expression under the Texas Constitution by prohibiting religious services and meetings. See Tex. Const, art I, § 6. Article I, section 6 provides:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.

Id. Cornerstone also invokes section 5.026 of the property code. See Tex. Prop.Code Ann. § 5.026 (West 2003). However, it does not present any argument concerning that provision separate from its constitutional arguments. We will thus consider them as one argument based on the constitutional principles. Finally, Cornerstone has invoked neither the federal constitution nor the Texas Religious Freedom Act, which was enacted to provide greater protection for religious practices than the federal constitution as currently interpreted. See U.S. Const, amend. I; Tex. Civ. Prac. & Rem.Code Ann. §§ 110.001-.012 (West Supp.2004-05); Employment Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872, 885, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990); City of Boerne v. Flores, 521 U.S. 507, 512, 529-36, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).

Because this dispute thus centers on a constitutional issue, we review the trial court’s decision de novo. Strayhom v. Ethical Soc’y of Austin, 110 S.W.3d 458, 463 (Tex.App.-Austin 2003, pet. denied); see also Perry v. Del Rio, 67 S.W.3d 85, 91 (Tex.2001). Thus, we owe no deference to the trial court’s decision and may proceed to resolve the issues presented as a matter of law. Quick v. City of Austin, 7 S.W.3d 109,116 (Tex.1998).

We echo our sister court in Beaumont in expressing “our complete and wholehearted adherence to and support of’ the constitutional principle relied upon by Cornerstone, but we are compelled to reject Cornerstone’s contention. See Ireland v. Bible Baptist Church, 480 S.W.2d 467, 471 (Tex.Civ.App.-Beaumont 1972, writ refd n.r.e.). Texas courts have routinely rejected the notion that a facially neutral, otherwise valid restrictive covenant violates constitutional religious freedom protections if applied against a church. See, e.g., Calvary Baptist Church v. Adams, 570 S.W.2d 469 (Tex.Civ.App.-Tyler 1978, no writ) (upholding temporary injunction that enjoined church from violating residential-use-only restriction until final hearing); Ireland, 480 S.W.2d at 470-71; Protestant Episcopal Church Council v. McKinney, 339 S.W.2d 400 (Tex.Civ.App.-Eastland 1960, writ refd) (affirming injunction against student gatherings and chapel services when building also used as residence for priest); Calvary Temple v. Taylor, 288 S.W.2d 868 (Tex.Civ.App.-Galveston 1956, no writ) (halting construction of church on property restricted to buildings for residential use only); Terrell Hills Baptist Church v. Pawel, 286 S.W.2d 204 (Tex.Civ.App.-Aus-tin 1956, no writ) (enjoining construction of church and school on property bound by residential-use-only restrictive covenant); Chandler v. Darwin, 281 S.W.2d 363 (Tex.Civ.App.-Dallas 1955, no writ) (restrictive covenant limiting construction to residential dwellings interpreted to prohibit use of building for church services). In Ireland, for example, the Beaumont court considered a restrictive covenant providing that no structure would be permitted on the property except a detached single-family dwelling. Id. at 469. A church later built a sanctuary and a smaller Sunday-school building on the property. Id. After a district court denied a request to order the church to remove the buddings, the Beaumont court reversed and ordered the removal of the buddings. Id. at 474.

In particular, the Ireland court rejected a claim that enforcing the covenant would constitute unlawful discrimination under the Supreme Court’s decision in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). Id. at 470. In Shelley, the Supreme Court had barred judicial enforcement of a restrictive covenant that limited occupation of the property to persons of “the Caucasian race” and restricted occupation of the property from residential use “by people of the Negro or Mongolian Race.” Shelley, 334 U.S. at 10, 68 S.Ct. 836. Such a covenant could not be enforced, the Court decided, because it constituted “discriminatory action on the part of the States based on considerations of race or color.” Id. at 23, 68 S.Ct. 836. As the Beaumont court correctly noted, the constitutional problem with the Shelley covenant emerged from its discrimination between people based on their race. Ireland, 480 S.W.2d at 470. Thus, Shelley might bar a restriction on religious uses of property if “the restriction applied only to Baptist churches while permitting those of other denominations.” See id. Because the restriction applied equally to churches of all denominations and faiths, the Ireland court determined that it did not unlawfully discriminate against the church. Id.

Likewise, the restriction to be enforced here applies equally to the religious activities of all denominations and faiths. Hence, no discrimination claim can be made under Texas constitutional principles. See id. Accordingly, enforcement of the covenant does not violate the Texas Constitution.

CONCLUSION

We have overruled Cornerstone’s arguments that ExxonMobil lacked standing to seek enforcement of the restrictive covenant in this case, that the district court improperly interpreted that covenant and that the enforcement of the restrictive covenant violates Cornerstone’s religious freedom rights under the Texas Constitution. No other bars to enforcing the restrictive covenant or the district court’s injunction have been advanced or preserved. Accordingly, we affirm the judgment of the district court.

      . In 2001, Mobil Oil became ExxonMobil Oil Corporation after a series of mergers and name changes.

      . Cf L. Michael White, From Jesus to Christianity 442-43 (2004) (noting that earliest known archaeological evidence of Christian church building was converted Roman private residence; members had created assembly hall by removing interior wall between dining room and adjacent chamber and, in another room, also installed baptismal font).

      . ExxonMobil’s claims against all other parties had been resolved by the end of the jury trial on its claims against Pizza Property Partners.

      .In a subheading concerning its argument that ExxonMobil lacks standing, Cornerstone also states that ExxonMobil lacks "capacity." Cornerstone makes no argument concerning capacity, and we thus have no need to analyze it here. See Tex.R.App. P. 38.1(h); Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex. 1983). Moreover, as discussed below, Cornerstone also waived any lack-of-capacity defense by failing to raise it as a ground for denying ExxonMobil’s first summary judgment motion and by failing to challenge all grounds upon which the district court may have relied in granting ExxonMobil’s second motion for summary judgment.

      . Standing thus cannot be waived and may be raised for the first time on appeal. Texas Ass’n of Bus. v. Texas Air Control Bd.., 852 S.W.2d 440, 445 (Tex.1993). Accordingly, Cornerstone can challenge ExxonMobil’s standing, even though it failed to raise that issue in response to ExxonMobil’s first summary-judgment motion.

      . We note that the Restatement advocates abolishing the distinction between "real” covenants and equitable servitudes. See Restatement (Third) of Prop.: Servitudes § 1.4 (2000).

      . Cornerstone points out that Texas Commission on Environmental Quality Regulations now permit churches to operate on land restricted to "commercial/light industrial” use. 30 Tex. Admin. Code § 350.4(a)(13) (2004); see also id. § 350.53 (2004) ("Land Use Classification”). We note that these regulations were promulgated in 1999, two years after Mobil Oil created the restrictive covenant in this case. See 24 Tex. Reg. 7436-7766 (1999) (30 Tex. Admin. Code §§ 350.1-.135). In addition, Cornerstone notes that the City of Austin amended its zoning ordinance, reclassifying the property from "Limited Industrial” uses to "Community Commercial-Mixed Use District-Conditional Overlay,” effective July 20, 1998. See Austin, Tex., Code of Ordinances §§ 25-2-98, 25-2-125 (2005). It argues that this zoning change indicates that the City of Austin has permitted church uses of the property. Although these regulatory and zoning changes might conceivably bear on a changed circumstances analysis, they do not affect our analysis of the intent of the restrictive covenant as drafted, and we do not understand Cornerstone to be contending that they would.

      . One of our sister courts has held that a concrete slab to be used as a tennis court was not a "structure.” Turner v. England, 628 S.W.2d 213, 216 (Tex.App.-Eastland 1982, writ ref d n.r.e.). However, given the context of the covenant in that case, the Eastland court applied the narrow definition of "structure” in coming to its conclusion.

      . In its first summary judgment motion, Exx-onMobil asserted the grounds that (1) Cornerstone, as a subsequent purchaser charged with notice, was bound by the restrictive covenant; (2) Cornerstone’s use of the property constituted a distinct and substantial breach of the restrictive covenant because it did not fall within the requisite '‘commercial/light industrial purposes”; and (3) Cornerstone’s construction activities and use of its below-ground baptismal pool independently violated the restrictive covenant. ExxonMobil explicitly sought a permanent injunction prohibiting Cornerstone from further violating the restrictive covenant, Post-Closing Use Restriction Agreement, or Access Agreement; using the property "for church services and activities related to the Church” or anything else other than commercial or light industrial purposes; or using the below-ground baptismal pool for any purpose. In its response to ExxonMobil’s motion, Cornerstone raised the following grounds: (1) it did not directly and substantially breach the "commercial/light industrial use” limitations because it uses the property at least 83 percent of the time to operate its printing business, purchase and resell appliances and other merchandise, and store material for a construction business; (2) the baptismal pool is not a "subsurface structure” violative of the restrictive covenant because Cornerstone merely poured concrete into an existing hole; and (3) the terms of the restrictive covenant do not explicitly prohibit religious meetings and gatherings on the property, and the covenant must be construed in favor of allowing such use. Cornerstone also asserted the first two grounds in its cross-motion for summary judgment but also relied on its affirmative defense that Exxon-Mobil's interpretation and application of the restrictive covenant "is [vjiolative of the Texas Constitution and the Texas Property Code.” While the motions were pending, Cornerstone filed amended answers adding affirmative defenses of lack of standing, equitable estoppel, ambiguity, changed circumstances and relative hardship, and that enforcement of the covenant would violate Cornerstone's rights to equal protection, free speech, free exercise of religion, assembly and association under the state and federal constitutions. It also filed a verified pleading purporting to attack ExxonMobil’s capacity to enforce the restrictive covenant. But Cornerstone did not raise any of these defenses, other than religious freedom, as grounds for denying Exxon-Mobil’s summary judgment motion and granting its own.
      The district court subsequently granted ExxonMobil's summary judgment motion without stating the grounds and denied Cornerstone’s motion.

      . Cornerstone did not raise the Texas Religious Freedom Act below in its pleadings, summary-judgment response, or briefing. See Tex. Civ. Prac. & Rem.Code § 110.004 (person whose free exercise of religion has been violated under act may assert violation as defense in judicial or administrative proceeding). On appeal, it makes only a single passing reference to the Texas Religious Freedom Act in its brief, characterizing the statute as merely codifying constitutional protections. Thus, we have no occasion here to consider the potential implications of the Act or the merit of ExxonMobil’s contention that it does not apply to courts. See id. § 110.001(a)(2) (defining “Government agency’’ to include "any agency of this state ... including a department”), .002(a) (Act "applies to any ... order, decision, practice or other exercise of governmental authority.”).

      . Cornerstone attempts to distinguish these cases on the basis that each of the restrictive covenants at issue limited the use of the subject property to residential uses, whereas the covenant here limits use of the properly to commercial/light industrial uses. We see nothing in any of these cases suggesting that they turn on the residential nature of the covenants’ restrictions. Rather, they embody general principles permitting the enforcement of restrictive covenants against churches.