author: Justice MOSELEY.

text:
    APEX FINANCIAL CORPORATION, Appellant, v. Albert GARZA and GTE Directories Corporation, n/k/a Verizon Directories Corporation, Appellees.
    No. 05-02-00872-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 21, 2004.

      Rodney L. Hubbard, Michael R. Boling, Dallas, for Appellant.
    Jerome Neal Stein, Landon & Stein, LLC, Cleveland Guy Clinton, Looper, Reed, Mark & McGraw, Dallas, for Appel-lee.
    Before Justices MOSELEY, LANG, and LAGARDE.

      . The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

   OPINION

Opinion by

Justice MOSELEY.

Apex Financial Corporation appeals the trial court’s judgment following a non-jury trial declaring that Albert Garza has superior right, title, and interest in certain real property as against Apex, that Apex take nothing against GTE Directories Corporation, n/k/a Verizon Directories Corporation (“Verizon”), and awarding attorneys’ fees to Garza and Verizon against Apex. In five issues, Apex claims the evidence is insufficient to support the trial court’s judgment, and that the trial court incorrectly applied the law to the facts, erred in admitting certain evidence, and erred in awarding attorneys’ fees. We affirm the trial court’s judgment.

On July 23, 1997, Terry LaCrosse signed a quitclaim deed to Garza of the real property at the center of this dispute. That property is located at 2330 Hardwick, Dallas, Texas (the “property”). The quitclaim deed described the property only by the street address. The quitclaim deed was not recorded until April 10, 2000. On November 30, 1999, Verizon obtained a money judgment against LaCrosse in a separate lawsuit. At that time, LaCrosse was the record owner of the property. The record does not indicate when Verizon filed an abstract of its judgment. Verizon had a writ of execution issued and levied on the property and a sheriffs sale was conducted on April 4, 2000. Apex was the highest bidder at the sheriffs sale, paid valuable consideration, and received a sheriffs deed to the property. Apex later evicted Garza from the property.

Garza filed suit against Apex seeking a declaratory judgment to determine the rights and interests of the parties to the property and for his attorneys’ fees. Apex filed a third-party action against Verizon seeking a declaratory judgment that if the sheriffs sale was set aside, Apex be reimbursed for the purchase price, costs, and its attorneys’ fees. After a non-jury trial, the trial court, without voiding the sheriffs deed: (1) declared that Garza had a superior right to the property as against Apex and that Apex had no right, title, or interest in the property; (2) ruled that Apex take nothing against Verizon; and (3) awarded attorneys’ fees to Garza and Verizon against Apex and conditional attorneys’ fees to the prevailing party in the event of appeals to this Court and to the Texas Supreme Court. The trial court filed findings of fact and conclusions of law.

In its first issue, Apex argues the evidence is insufficient to support the trial court’s judgment. Apex does not identify whether this is a legal or factual sufficiency challenge, and identifies no standard of review. Because Apex asks us to reverse the trial court’s judgment and render judgment in its favor, we interpret the issue as raising a legal sufficiency point. See Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176 (Tex.1986) (where legal sufficiency point is sustained, appellate court should reverse and render).

We apply the appropriate standard of review for findings of fact and conclusions of law filed after a nonjury trial with a complete reporter’s record. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994); Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex.App.-Dallas 1997), pet. denied, 977 S.W.2d 562 (Tex.1998) (per curiam). We do not review a trial court’s conclusions of law for factual sufficiency. Ashcraft, 952 S.W.2d at 910. Rather, we evaluate them independently, determining whether the trial court correctly drew the legal conclusions from the facts. Dallas Morning News v. Board of Trustees, 861 S.W.2d 532, 536 (Tex.App.-Dallas 1993, writ denied). However, incorrect conclusions of law will not require a reversal if the controlling findings of fact will support the judgment under a correct legal theory. See Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ).

Apex claims it is a bona fide purchaser of the property without notice of Garza’s claim of ownership under the unrecorded quitclaim deed. A purchaser at an execution sale can qualify as a bona fide purchaser if the purchaser would have been considered a bona fide purchaser had the sale been made voluntarily and in person by the judgment debtor. Tex. Civ. Peac. & Rem.Code Ann. § 34.046 (Vernon 1986). An unrecorded conveyance of real property is void as to a creditor or to a subsequent purchaser for value without notice of the claim. Tex. PROp.Code Ann. § 13.001(a) (Vernon Supp.2004). A creditor’s lien takes priority over an unrecorded deed, unless the creditor has notice of the deed at or before the time the lien attaches to the property. Gibralter Sav. Ass’n v. Martin, 784 S.W.2d 555, 558 (Tex.App.Amarillo 1990, writ denied). Such notice may be actual or constructive. Madison v. Gordon, 39 S.W.3d 604, 606 (Tex.2001) (per curiam).

A purchaser of property is charged with constructive notice of all claims of a party in possession of the property that the purchaser might have discovered on proper inquiry. Madison, 39 S.W.3d at 606. A purchaser has the duty to ascertain the rights of a third-party possessor where the possession is visible, open, exclusive, and unequivocal. Id. In Madison, the supreme court held that possession as a tenant in one unit of a multifamily rental property was not sufficiently exclusive or unequivocal to provide constructive notice of the ownership claim. Id. at 607. However, the court did not question several earlier cases that had held possession was sufficient to place a purchaser on constructive notice stating, “[I]n each of these cases, the occupant lived in a single-unit dwelling. Arguably, this sole possession of property implicates visibility, openness, exclusivity, and un-equivocality.” Id.

The trial court concluded that Apex had constructive notice of Garza’s adverse claim because Garza’s possession of the property was visible, open, and exclusive. Apex argues that as a matter of law Garza’s possession was not sufficient to give rise to constructive notice of Garza’s claim of ownership. Under its “sufficiency” point, Apex argues Garza’s possession was not visible, open, exclusive, and unequivocal. There is evidence in the record that Garza bought the property in 1997 and thereafter, until evicted by Apex, used the property for his trucking business on a daily basis. Garza had signs on his trucks identifying his business, A-Garza Trucking. He parked his trucks, did mechanical work on them, and washed them at the property. The property is located in an industrial or warehouse area and has one building on it. Garza used the building as the office for his business and had someone working in the office Monday through Friday, and sometimes on Saturday. The holder of an outstanding lien on the property testified that Garza’s trucks, with signs identifying the business, were on the property all the time. He said a person could see that Garza was doing business there. We conclude the evidence supports the conclusion that Garza’s possession was open and visible.

The record also contains no evidence that anyone other than Garza and his employees occupied the property after he bought it in 1997. Nor does the record contain any evidence that Apex ever talked to LaCrosse or received any assurance of ownership from LaCrosse. Although Garza had rented the property from LaCrosse before buying it, nothing else in the record indicates the property was a rental property. Thus, we conclude the evidence supports the conclusion that Garza’s possession was exclusive.

Lastly, the trial court did not expressly conclude Garza’s possession was unequivocal. However, the evidence and the controlling findings of fact support that conclusion. In Madison, in which the supreme court held that possession of the property was equivocal, the purchaser had direct dealings with the record title owner, her fiancé, who assured her of his ownership of the multi-unit rental property. Madison, 39 S.W.3d at 605. The supreme court concluded the possession was not unequivocal because it was “compatible with another’s ownership assertion.” Id. at 607. However, the property here is not a multi-unit rental property like the property in Madison. Further, there is no evidence that Apex had any direct dealings with LaCrosse, the record title owner. Apex presented no evidence that it received any assurances of ownership from LaCrosse. Therefore, Garza’s possession was not compatible with another’s assertion of ownership. The evidence supports the conclusion that Garza’s exclusive possession was similar to the possession of a single-unit dwelling in the cases discussed in Madison. See id. The trial court’s findings support the correct legal theory that Garza’s possession was unequivocal. See Westech Eng’g, 835 S.W.2d at 196. Considering only the evidence and inferences in favor of the trial court’s findings, we conclude the evidence is legally sufficient to support the finding that Apex had constructive notice of Garza’s claim. See Catalina, 881 S.W.2d at 297.

As noted above, Apex does not request a reversal and remand for a new trial, the appropriate remedy for a factual sufficiency challenge. However, Apex did file a motion for new trial in the trial court arguing that the judgment was against the great weight of the evidence. If we interpreted Apex’s brief as also raising a factual sufficiency challenge, we would conclude the evidence is factually sufficient to support the trial court’s findings. In contrast to the evidence described above, Apex presented evidence that its representative visited the property a week or so before the sale and did not find anyone there. There were no signs on the property and it appeared vacant or abandoned. However, Garza presented evidence that the property had been used as his place of business for several years, that trucks with his business name on them were parked on the property, and that someone was in the office Monday through Friday and sometimes on Saturday. The record also shows that on the day of the sheriffs sale, a Tuesday, Apex found two of Garza’s employees on the property and delivered an eviction notice. Nevertheless, after considering all the evidence in the record, we would conclude the evidence is not so weak that the finding of constructive notice is clearly wrong and unjust. Ziehen v. Platt, 786 S.W.2d 797, 799 (Tex.App.-Houston [14th Dist.] 1990, no writ); see Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We resolve Apex’s first issue against it.

In its second issue, Apex argues the trial court erred in concluding both that the sheriffs deed was valid and that Garza had superior title to Apex. Apex says these conclusions are contradictory. Under the facts of this case, we disagree.

A sheriffs sale only conveys the right, title, and interest that the judgment debtor had in the property. Tex. Crv. PRAC. & Rem.Code Ann. § 34.045(a). A sheriffs deed is in the nature of a quitclaim deed because it contains no warranty of title and conveys only whatever interest the judgment debtor had in the property. See Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 769 (Tex.1994) (quitclaim conveys any title, interest, or claim of grantor, but does not profess that title is valid and contains no warranty or covenant of title); Smith v. Morris & Co., 694 S.W.2d 37, 39 (Tex.App.-Corpus Christi 1985, writ ref'd n.r.e.). The sheriffs deed to Apex conveyed only “the estate, right, title and interest which the said Terry La Crosse had” in the property. However, before Verizon obtained its judgment in 1999, and before the subsequent execution sale and sheriffs deed to Apex, LaCrosse had conveyed the property to Garza in 1997. Because the sheriffs deed only purported to convey whatever title LaCrosse may have had, the deed was not rendered void when it was later determined that LaCrosse had no title to convey. See Diversified, Inc. v. Hall, 23 S.W.3d 403, 407 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) (purchaser at sheriffs sale “received only whatever title, interest, or claims [judgment debtor] had, which was nothing.”). Thus, the conclusion that Garza has superior title is not inconsistent with the validity of the sheriffs quitclaim deed to Apex.

Apex also argues that in the event it did not receive good title from the sheriffs sale, it is entitled to reimbursement of the purchase price from Verizon. Apex relies on cases holding that a purchaser at a void sheriffs sale is entitled to reimbursement of the purchase price and other expenses of the property. See Keda Dev. Corp. v. Stanglin, 721 S.W.2d 897, 902-03 (Tex.App.-Dallas 1986, no writ). These cases are distinguishable because the sheriffs sale in this case was not set aside. Apex received a valid sheriffs deed (a quitclaim) conveying only whatever interest LaCrosse had in the property. Like a purchaser under a quitclaim deed, Apex “bought only a chance of title.” Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286, 292 (1951); see Rogers, 884 S.W.2d at 769. Because LaCrosse had no title to the property, the sheriff did not have any title to convey to Apex. In essence, Apex is attempting to assert a warranty of title claim against Verizon. But Apex received no warranty of title, and thus is not entitled to reimbursement from Verizon. See Rosenthal & Desberger v. Mounts, 130 S.W. 192, 194-95 (Tex.Civ.App.1910, no writ) (judgment creditor is not a warrantor of title of property sold at execution; on failure of title because judgment debtor had no interest in property, purchaser cannot recover bid amount from creditor). We resolve Apex’s second issue against it.

In its third issue, Apex argues Garza’s quitclaim deed is void under the statute of frauds because of an insufficient description of the property. The quitclaim deed described the property as “2830 Hardwick, Dallas, Tx 75208” in Dallas County, Texas. The trial court concluded the quitclaim deed described the property with reasonable certainty for an effective conveyance of real property.

The statute of conveyances and the statute of frauds require that conveyances and contracts of sale of real property be in writing and signed by the convey- or or party to be charged. Tex. Prop.Code Ann. § 5.021 (Vernon 1984); Tex. Bus. & Com.Code Ann. § 26.01(b)(4) (Vernon 2002). In order for a conveyance or contract of sale to meet the requirements of the statute of frauds, the property description must furnish within itself or by reference to another existing writing the means or data to identify the particular land with reasonable certainty. Pick v. Bartel, 659 S.W.2d 636, 637 (Tex.1983); Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex.1972). The purpose of a description in a written conveyance is not to identify the land, but to afford a means of identification. Jones v. Kelley, 614 S.W.2d 95, 99-100 (Tex.1981). If enough appears in the description so that a person familiar with the area can locate the premises with reasonable certainty, it is sufficient to satisfy the statute of frauds. Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 248-49 (1955).

We have held that a street address or a commonly-known name for property may be a sufficient property description if there is no confusion. Butler v. Benefield, 589 S.W.2d 778, 780 (Tex.Civ.App.-Dallas 1979, writ ref'd n.r.e.); see Henderson v. Priest, 591 S.W.2d 635, 636 (Tex.Civ.App.-Dallas 1979, writ ref'd n.r.e.) (street address sufficient when considered with extrinsic evidence showing only one tract of land can meet description). The record contains no evidence of confusion as to the identity of the property subject to the quitclaim- deed. Apex presented no evidence that there is more than one tract of land fitting the description in the deed, that LaCrosse owned other property nearby,, or any other evidence indicating that the property cannot be located with reasonable certainty. See Butler, 589 S.W.2d at 780 (‘When, however, from the description given, it is reasonably possible to locate more than one tract of land fitting that description, the statute of frauds is not satisfied.”); Friedlander v. Christianson, 320 S.W.2d 404, (Tex.Civ.App.-Houston 1959, no writ) (description insufficient where street address listed and vendor owned other property nearby). We conclude Apex did not show that the property description does not furnish the means or data by which the land can be identified with reasonable certainty.

Apex also argues that several alleged defects in the notary’s acknowledgment of the quitclaim deed render it void. A proper acknowledgment is necessary to record an instrument. Tex. PROp.Code Ann. § 12.001(a). However, an unrecorded instrument is void only as against a bona fide purchaser without notice. Id. § 13.001(a). Apex is not a bona fide purchaser without notice and cannot rely on alleged defects in the acknowledgment to void the quitclaim deed. As between the grantor and the grantee, a deed is valid even if not acknowledged. Haile v. Holtzclaw, 414 S.W.2d 916, 928 (Tex.1967). Recording of a deed is not essential to pass title to the land. Thornton v. Rains, 157 Tex. 65, 299 S.W.2d 287, 288 (1957); Chicago Title Ins. Co. v. Alford, 3 S.W.3d 164, 167 (Tex.App.-Eastland 1999, pet. denied). We resolve Apex’s third issue against it.

In its fourth issue, Apex argues the trial court erred in awarding attorneys’ fees to Garza and Verizon under the declaratory judgment act. See Tex. Crv. PRAc. & Rem.Code Ann. § 37.009. Garza filed a declaratory judgment claim against Apex, and Apex filed a declaratory judgment claim against Verizon. We apply an abuse of discretion standard of review to the trial court’s award of attorneys’ fees to Garza and Verizon. See McLendon v. McLendon, 862 S.W.2d 662, 672-73 (Tex.App.-Dallas 1993, writ denied), disapproved on other grounds by Dallas Mkt. Ctr. Dev. Co. v. Liedeker, 958 S.W.2d 382, 386-87 (Tex.1997). We do not reverse the trial court’s decision on appeal unless the complaining party shows a clear abuse of discretion. Id.

Both Garza and Verizon prevailed on the declaratory judgment claims, Garza on his claim of superior title and Verizon in defending against Apex’s claims. Under the declaratory judgment act, attorneys’ fees may be awarded to either party regardless of who prevails, as long as the award is equitable and just. See Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex.1996) (award not dependent on finding party substantially prevailed); Ritchie v. City of Fort Worth, 730 S.W.2d 448, 451 (Tex.App.-Fort Worth 1987, writ ref'd n.r.e.) (fees may be awarded to successful defendant). The record indicates and the trial court found that Apex kept Verizon in this suit because it would help Apex win the suit. The record also indicates that Apex is an experienced purchaser at foreclosure and execution sales and was aware of the risks involved in such sales. On this record, we cannot conclude that the trial court clearly abused its discretion in awarding attorneys’ fees to Garza and Verizon. We resolve Apex’s fourth issue against it.

In its fifth issue, Apex complains on appeal that the trial court erred in admitting evidence of settlement negotiations. See Tex.R. Evid. 408. However, the objection at trial was to the relevance of the evidence to the issue of attorneys’ fees. Apex’s counsel was asked whether he told Verizon’s counsel that Apex wanted to keep Verizon in the suit because it felt it would put Apex in a better position to win against Garza. Apex’s relevance objection was overruled. We conclude Apex has not preserved error on its rule 408 argument because it did not make that objection before the trial court. See Tex.R.App. P. 33.(a)(l); Tex.R. Evid. 103(a)(1). We also conclude the testimony was relevant to the issue of whether it was equitable and just to award attorneys’ fees to Verizon or Apex. Tex.R. Evid. 402. We resolve Apex’s fifth issue against it.

Having resolved all of Apex’s issues against it, we affirm the trial court’s judgment.


source: Caselaw Access Project

author:
DAVID WELLINGTON CHEW, Justice.
      ANN CRAWFORD McCLURE, J„

license: Public Domain

text:
    Roberto PENA, Appellant, v. The STATE of Texas, Appellee.
    No. 08-02-00361-CR.
    Court of Appeals of Texas, El Paso.
    Jan. 29, 2004.

      Joseph (Sib) Abraham Jr., El Paso, for Appellant.
    Jaime E. Esparza, District Attorney, El Paso, for State.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

DAVID WELLINGTON CHEW, Justice.

Appellant Roberto Pena was indicted with two counts of intoxication manslaughter and two counts of failure to stop and render aid. Before a jury, Appellant pled guilty to all four counts, but pled “not true” to the allegation that he used or exhibited a deadly weapon during the commission of the offense as alleged in each count. The jury found Appellant guilty of all four counts and made an affirmative finding on the use of a deadly weapon for each count. The jury assessed punishment at twenty years’ imprisonment and a $10,000 fine for each intoxication manslaughter count and five years’ imprisonment and a $5,000 fine for each failure to stop and render aid count. Upon the State’s motion, the trial court ordered that the intoxication manslaughter counts be served consecutively, with the failure to stop and render aid counts to be served concurrently. The trial court sentenced Appellant in accordance with the jury’s assessment, however we observe the court’s final judgments and sentences only contain deadly weapon findings for the intoxication manslaughter offenses. In his sole issue on appeal, Appellant contends the trial court committed reversible error by admitting testimony from a State’s witness concerning the speed his vehicle was traveling when it struck the victims’ vehicle and that this testimony severely prejudiced him. We affirm.

On June 17, 2001, between 12:30 and 1 a.m., Zachary Valenzuela was driving in the center lane on Gateway West when he noticed headlights in his rear view mirror. The rate of speed at which the car was coming at him from behind was the reason the headlights caught his attention. Mr. Valenzuela was driving between 55 to 60 miles per hour. He considered changing lane, but at the rate of speed the vehicle was approaching, he decided to stay in the center lane. When the approaching vehicle pulled up behind Mr. Valenzuela, it switched lanes, “flew by him,” and pulled back into the center lane. Mr. Valenzuela recalled that the vehicle approached him from behind at a constant speed and was easily going over 60 miles per hour because it quickly passed him. As it passed, Mr. Valenzuela observed that the vehicle was a green Corvette driven by a male driver, later identified as Appellant.

As the Corvette traveled ahead to the Lee Trevino intersection, Mr. Valenzuela kept the vehicle’s taillights in his line of sight and recalled there was nothing between him and the Corvette. Mr. Valenzuela saw cars stopped at the lights ahead. He then saw the Corvette’s taillights swerve to one side and for a split second, saw car headlights turn quickly facing his direction before they turned. Mr. Valenzuela hit his brakes when he saw the headlights because he knew he was traveling on a one-way street. He knew there had been an accident, but did not see the actual impact. Mr. Valenzuela recalled that the Corvette’s brake lights did not go on before the accident.

Veronica Huerta Garcia was at the Lee Trevino and Gateway West intersection at the time of the accident. Ms. Garcia was in the middle lane behind a green Eclipse and in front of a black Pontiac, waiting for the light to change. All the cars waiting for the light were in the middle lane. When the light turned green, Ms. Garcia drove a little bit forward and then heard a loud impact of vehicles being struck behind her. She looked at her rearview mirror and saw a car, a Honda CRX pop up, go airborne, and then land with its headlights facing the opposite direction. To her left, Ms. Garcia saw a green Corvette slam against the guardrail, causing sparks to fly. She noticed that the Corvette hit the guardrail at a high rate of speed and then came to a sudden stop. When Ms. Garcia saw everything right behind her, she quickly swerved to the right to avoid being hit in the chain reaction. She then called 911 on her cell phone.

Within seconds, Ms. Garcia checked on some of the cars involved in the accident. The Corvette was damaged in the front of the hood and on the side that hit the guardrail. Ms. Garcia had contact with the driver, Appellant, and recalled that he was drunk and smelled strongly of alcohol. She helped Appellant exit the Corvette, before going to assist the injured passenger and driver of the Honda CRX.

Robert Herrera, his wife, and their two children, were also at the Lee Trevino Gateway West intersection at the time of the accident. Mr. Herrera recalled there was one car in front of him and two cars behind him. While he was waiting in the center lane for the light to change, Mr. Herrera heard a loud crash and felt the impact. Right after the accident, Mr. Herrera went straight to the Corvette and observed Appellant trying to get out of the vehicle. Mr. Herrera was yelling at Appellant and tried to take off the car window before his wife called him away.

Miguel Garcia, Jr. and his spouse were traveling home from Horizon City on Interstate 10 and exited at Lee Trevino. Mr. Garcia recalled that it was a nice evening with no inclement weather. As he exited, he saw that an accident had just occurred right in front of the Shamaley Ford dealership, a very well lit area. Mr. Garcia saw a Honda Civic turned around facing oncoming traffic, a Corvette to his left, and some other cars in front. As he approached the scene, he veered off to the Shamaley Ford entranceway toward Gateway West. Mr. Garcia got out of his car and went over to assist the passengers in the Honda Civic. Mr. Garcia then approached the Corvette and made contact with Appellant. He observed that Appellant was talking on a cell phone in Spanish, smelled of alcohol, and was very disoriented. Mr. Garcia recalled Appellant telling him to go to the other guys because they looked pretty bad. Mr. Garcia then left Appellant and later noticed that he had fled the scene.

Ronald Drake, a security guard for Sha-maley Ford on duty at the time of the accident, observed a man running through the dealership’s parking lot. As the man ran, he was bouncing off the cars, stumbling, and fell twice. Mr. Drake saw the man drop his cell phone twice as he ran. As he started to approach the individual who had. stumbled and fallen down, Mr. Drake smelled a lot of alcohol and backed off. The man ran across the back lot and then headed east on Rojas. Mr. Drake then observed the fire department, an ambulance, and police coming down Lee Trevino and traveling on Gateway West the wrong way. Mr. Drake went to the accident scene and informed the police about the man running through the parking lot.

El Paso Police Officer Steve Smith was dispatched to the multi-car accident scene at approximately 12:35 a.m. Officer Smith recalled that it was a clear night, the roadway was dry, and the location was. well-lit by the Shamaley Ford dealership. From his preliminary investigation, he determined that the green Corvette had traveled westbound on Gateway West in the center lane and had struck the Honda vehicle in front of it, which then struck the vehicle in front of it, which in turn struck another vehicle in front of that one. Of the four vehicles involved in the accident, three were facing west and one, the Honda vehicle, was facing eastbound as it had spun around due to the impact. Officer Smith observed extensive damage to the rear of the Honda vehicle.

The most critically injured in the accident were the two occupants of the Honda vehicle first struck by the Corvette. The front passenger, Mario Sandoval, was not breathing and was pronounced dead at the scene. Dr. Juan Contin, the county medical examiner, determined that Mario Sandoval bled to death from a torn aorta in the chest, which resulted from the collision. After the accident, the driver, Roberto Sandoval, was not conscious and had a very faint pulse. Mr. Sandoval was taken to the hospital, but died the following day from massive brain injuries sustained in the accident.

Around 2:12 a.m., police officers apprehended Appellant as he stumbled towards his house on Tony Tejeda. Appellant was arrested and taken to the accident scene where he was identified by witnesses as the individual driving the Corvette. Appellant was later taken to Del Sol Medical Center where his blood was drawn. The blood test results showed Appellant had a blood-alcohol level of .23.

Ruben Cisneros, an El Paso police officer assigned to the special traffic investigations section, testified that based on his accident reconstruction analysis, he found no pre-impact brake marks nor any pre-impact skid marks for the Corvette. Officer Cisneros observed extensive front end damage to the Corvette, extensive rear damage to the Honda, and paint transfer from the Honda to the Corvette. Based on his observations and the skid marks, Officer Cisneros determined the front end of the Corvette collided with the back end of the Honda Civic CRX. After the initial impact, the rear end of the Honda “climbed up” on the front end of the Corvette, causing the vehicle to spin clockwise 80 degrees and go airborne before coming to a stop. When the Corvette struck the Honda, its left front tire locked up due to front end damage. The Corvette then veered to the left lane and collided with the guardrail, leaving a post-impact skid mark from the left front tire.

At trial, Appellant objected to Officer Cisneros’ testimony as an expert witness concerning the speed of the vehicles involved in the accident. Over Appellant’s objection, Officer Cisneros testified that based on his accident reconstruction formula calculations, he determined the initial impacting vehicle, the Corvette, was traveling 104 miles per hour. He also determined the Honda was impacted from zero speed to a post-impact speed of 28 miles per hour.

Expert Testimony

In his sole issue for review, Appellant argues the trial court committed reversible error by admitting Officer Cisneros’ testimony concerning the speed his vehicle was traveling on June 17, 2001 and that this testimony severely prejudiced him. Specifically, Appellant contends the State did not meet its burden in establishing that Officer Cisneros was qualified as an expert witness nor did it present evidence concerning the reliability of the “AIMS test” used to establish the speed his vehicle was traveling when it struck the Honda CRX.

Standard of Review and Applicable Law

A trial court’s ruling to admit or exclude evidence is reviewed under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.App.1991)(Op. on reh’g). Absent a clear abuse of discretion, a trial court’s decision to admit or exclude expert testimony will not be disturbed. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App.2000); Morales v. State, 32 S.W.3d 862, 865 (Tex.Crim.App.2000). An abuse of discretion exists when the trial court’s decision was so clearly wrong as to he outside the zone of reasonable disagreement, in other words, the trial court’s decision or action was arbitrary, unreasonable, and made without reference to any guiding rules or principles. See Montgomery, 810 S.W.2d at 391.

For a witness’s expert testimony to be admissible, the witness must be qualified as an expert by “knowledge, skill, experience, training, or education....” Tex. R.Evid. 702. Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Tex.R.Evid. 702.

The party offering the evidence has the burden of showing the witness is qualified as an expert on the specific matter in question. Penry v. State, 903 S.W.2d 715, 762 (Tex.Crim.App.1995), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995).

Pursuant to Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992), the proponent of expert testimony or evidence based on a scientific theory must show by clear and convincing evidence that the evidence is: (1) rehable and (2) relevant to assist the trier of fact in its fact-finding duty. Id. at 572; Ochoa v. State, 994 S.W.2d 283, 284 (Tex.App.-El Paso 1999, no pet.). To be rehable, the proffered evidence must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly apphed on the occasion in question. Kelly, 824 S.W.2d at 573. The trial court’s determination of rehabihty could be affected by the following non-exclusive factors: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Id.

Daubert/Kelly Hearing

At trial, Appellant objected to Officer Cisneros’ testimony as an expert witness concerning the speed of the vehicles involved in the accident. Outside the jury’s presence, Officer Cisneros testified that on many occasions, he has done speed reconstruction. He has had a variety of training courses in speed reconstruction, specifically the basic accident investigation course offered by the police department, the intermediate accident investigation course, the advanced accident reconstruction course, and the traffic accident reconstruction course. In 1997, Officer Cisne-ros received approximately 80 hours in accident reconstruction training in San Antonio at the Bexar County Sheriffs Department. He also has had training in bicycle, pedestrian, and motor vehicle collisions. In August 1999, Officer Cisneros was certified in the 383rd District Court as an expert and again in October 2001 in the 41st District Court.

In this particular case, Officer Cisneros determined the speed of the Corvette and other vehicles by using formulas he had been taught to use for specific types of collisions. Officer Cisneros inserted certain data that was obtained from the scene into these formulas to derive the speeds. Officer Cisneros explained that he worked the calculations out by hand using a calculator and used a skid speed formula for the post-impact distances and then used a lineal’ momentum in-line collision formula to determine a speed for the Chevrolet Corvette. Based on these findings and his training, experience, and knowledge, Officer Cisneros determined the Corvette was traveling roughly 104 miles per hour at impact. The trial court overruled Appellant’s objection to Officer Cisneros’ testimony, but allowed Appellant’s counsel to further voir dire Officer Cisneros outside the jury’s presence.

In voir dire, Officer Cisneros testified that the measurements used in calculating the skid speed and linear momentum inline collision formulas were taken with a surveying instrument called an Accident Investigation Measuring System (“AIMS”). Officer Cisneros explained that operation of the AIMS device consists of setting up the equipment and from that initial point, taking shots by aiming the equipment at the particular target you want. The device has a prism that shoots a laser beam to the prism at the target, which shoots it back and gives you the measurement. Officer Cisneros conceded that he could not explain in any detail the scientific principles involved in this type of measuring system. Officer Cisneros stated that his department has two AIMS equipment, which were recently checked for calibration by the manufacturer, but he did not know the last time the AIMS device he used was calibrated. Officer Cisne-ros also conceded that he did not know whether or not the accuracy of AIMS results could be validated over and over again by someone who is an expert in the underlying scientific principles of this measuring machine.

Regarding the formulas used in his calculations, Officer Cisneros testified that he obtained the measurements used in the formulas by using the AIMS machine. The formulas were taught to him during the courses mentioned above. Officer Cisneros explained that the formulas are used internationally by other law enforcement agencies, including the Department of Public Safety in Texas. Officer Cisne-ros, however, conceded that he did not know who devised the formulas and did not know the scientific principles underlying the values in the formulas.

At the conclusion of the hearing, Appellant’s counsel renewed his objection to Officer Cisneros’ testimony. In response, the State argued that the AIMS system and formulas have been judicially accepted and noted that the officer testified that the AIMS system is used by other departments. It further noted that there have been no problems with it when used before. The trial court overruled Appellant’s objection and allowed the State to offer the officer’s expert witness concerning the speed of the Corvette and that of the other vehicle at the time of the collision.

Qualifications

As the party offering Officer Cisneros’ testimony, the State had the burden of showing he qualified as an expert on speed based on his accident reconstruction background. See Penry, 903 S.W.2d at 762. Police officers are qualified to testify regarding accident reconstruction if they are trained in the science about which they will testify and possess a high degree of knowledge sufficient to qualify as an expert. DeLarue v. State, 102 S.W.3d 388, 396 (Tex.App.-Houston [14th Dist.] 2003, no pet.).

Here, Officer Cisneros testified that he has been a police officer with the El Paso Police Department for twenty years. Since April 1994, he has been assigned to the special traffic investigations section. Officer Cisneros has received basic, intermediate, and advanced training in accident reconstruction, including speed reconstruction. In addition, Officer Cisneros has eighty hours of accident reconstruction training held at the Bexar County Sheriffs Department in 1997. On many occasions he has done accident reconstruction for the special traffic investigations section. Officer Cisneros has been certified twice as an expert in accident reconstruction by El Paso district courts. For this case, Officer Cisneros was called out to Gateway West on June 17, 2001 and performed an accident reconstruction of the incident. Officer Cisneros clearly demonstrated he had special knowledge on accident reconstruction, including speed reconstruction, based on his extensive training and his field experience. Therefore, we conclude the trial court did not abuse its discretion in determining Officer Cisneros was qualified to offer his expert opinion in speed reconstruction.

Reliability

The State in this case does not dispute that accident reconstruction, specifically Officer Cisneros’ testimony concerning the speed at which Appellant was driving at the time of impact, is a type of scientific evidence subject to Kelly requirements for admissibility. By clear and convincing evidence, the State was required to show that with respect to the scientific evidence in this case: (1) the underlying scientific theory was valid; (2) the technique applying the theory was valid; and (3) the technique was properly applied on the occasion in question. See Kelly, 824 S.W.2d at 573.

Appellant argues on appeal that the State presented no evidence concerning the reliability of the “AIMS test.” By Appellant’s complaint we understand him to be challenging the reliability of AIMS equipment-derived distance measurements and the reliability of the speed calculation formulas used by Officer Cisneros in his speed reconstruction analysis.

Here, Officer Cisneros testified that the formulas he used in deriving Appellant’s driving speed are also used by other law enforcement agencies. Officer Cisneros, however, conceded that he did not know the scientific principles underlying the values in the formulas used to derive Appellant’s speed at the time of impact. He could not explain the underlying scientific principles of how the AIMS equipment provided distance measurements and he did not know whether or not the accuracy of AIMS results could be validated over and over again. In this case, there is no evidence in the record sufficient to satisfy the reliability requirements pursuant to Kelly. Therefore, the trial court erred in admitting the evidence concerning Appellant’s driving speed. We find, however, that in this case, admission of Officer Cisneros’ testimony concerning Appellant’s 'driving speed at the time of impact was harmless.

A nonconstitutional error that does not affect the substantial rights of the defendant must be disregarded. See Tex. R.App.P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). A criminal conviction should not be overturned for nonconstitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).

In this case, Appellant pled guilty and was convicted of intoxication manslaughter. A person commits the offense of intoxication manslaughter if the person: (1) operates a motor vehicle in a public place; (2) is intoxicated; and (3) by reason of that intoxication causes the death of another by accident or mistake. See Tex. Pen.Code Ann. § 49.08(a)(Vernon 2003). The contested issue at trial was whether Appellant used or exhibited a deadly weapon: to wit a motor vehicle in commission of the offense. A deadly weapon is defined as “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex.Pen.Code Ann. § 1.07(a)(17)(B)(Vernon 2003). Anything, including a motor vehicle, which is actually used to cause the death of a human being is a deadly weapon. Tyra v. State, 897 S.W.2d 796, 798 (Tex.Crim.App.1995). This is necessarily so because a thing which actually causes death is, by definition, “capable of causing death.” Id.

The evidence shows that Appellant was driving in excess of 60 miles per hour as he passed Zachary Valenzuela and approached the Lee Trevino Gateway West intersection. Mr. Valenzuela did not see Appellant attempt to brake prior to the accident and witnesses testified that the intersection was well-lit and the roadway was dry. Physical evidence and witness testimony indicated that the front of Appellant’s vehicle collided with the rear end of the victims’ vehicle, causing their vehicle to go airborne and spin around to face oncoming traffic. Through her rearview mirror, Veronica Huerta Garcia saw Appellant’s vehicle slam against the guardrail at a high speed, causing sparks to fly. In unchallenged testimony, Officer Cisneros testified that he found no pre-impact brake marks and no pre-impact skid marks at the accident scene. El Paso County Medical Examiner Dr. Juan Contin testified that the passenger victim bled to death from a torn aorta, resulting from the collision. Dr. Contin also testified that the driver victim died the following day in the hospital from injuries sustained in the collision.

After examining the record as a whole, we find the evidence above was sufficient to support the jury’s affirmative finding that Appellant used his motor vehicle in a manner that was capable of causing death or serious bodily injury, without considering the speed evidence introduced through Officer Cisneros’ testimony. The trial court’s erroneous admission of the speed evidence did not affect Appellant’s substantial rights and in light of other properly admitted evidence we are assured that if its admission influenced the jury at all, it did so only slightly. Therefore, we find the trial court’s error to be harmless. Issue One is overruled.

Accordingly, we affirm the trial court’s judgment.

McCLURE, J., Concurring.

ANN CRAWFORD McCLURE, J„

Concurring.

The record shows that Appellant waived his complaint about the AIMS device and the measurements derived from it. Therefore, I disagree with the majority’s conclusion that the trial court abused its discretion by admitting this particularly testimony. Alternatively, I would find that the State is not required to prove the scientific principles pertaining to the AIMS device in order for an expert to rely on measurements taken with the device. While I agree with the majority’s holding that the State failed to carry its burden under Kelly with respect to Cisneros’ expert opinion as to the pre-impact speed of Appellant’s vehicle, I write separately to discuss the effect of Hernandez v. State, 116 S.W.3d 26 (Tex.Crim.App.2003) on an appellate court’s review of this issue. Because the majority opinion ultimately concludes that the errors in admitting the expert testimony is harmless, I concur.

Cisneros utilized two formulas in estimating the speed at which Appellant’s car was traveling at the time of impact: the skid speed formula and the linear momentum in-line collision formula. These formulas are used not only by the Texas Department of Public Safety but also internationally by other law enforcement agencies and they were taught to Cisneros at the accident investigation and accident reconstruction courses he attended as part of his training. Pursuant to his training, Cisneros gathered data relevant to the following formula components:

1. weight of the vehicles;
2. the coefficient of friction or drag factor; and
3. the post-impact distances of the vehicles.

Cisneros obtained the weight of the vehicles involved in the accident from the Department of Motor Vehicles. The drag factor pertains to the friction of the roadway and Cisneros obtained this figure by utilizing a drag sled to find a coefficient of friction for the particular road involved in the accident. For the third factor, Cisne-ros utilized the AIMS device to measure the distances traveled by the two vehicles after impact. A diagram prepared by Cisneros (State’s Exhibit 10) shows that Appellant’s vehicle traveled 413 feet from the point of impact to its résting place. There were no pre-impact skid marks because Appellant’s vehicle did not skid prior to striking the complainants’ car. Consequently, Cisneros utilized the skid speed formula to determine only a post-impact speed for each vehicle involved in the accident.

As explained by Cisneros, the skid speed formula- involves multiplying distance by a constant of thirty by the square root of the roadway drag factor. Cisneros determined that the complainants’ Honda went from 0 miles per hour to a post-impact speed of 28 miles per hour. Cisneros was not asked to state the post-impact speed he determined for the Corvette but he included the figure in a written expert’s report filed in the case. With the post-impact speeds determined by the skid speed formula, Cisneros then applied the weights of the vehicles in the linear momentum in-line collision formula in order to obtain the speed of the initial impacting vehicle. Based on this formula, Cisneros estimated that Appellant’s Corvette was traveling 104 miles per hour at the point of impact. Cisneros explained the components of the skid speed formula but was not asked to explain the linear momentum in-line collision formula.

Waiver of Complaint About Measurements

The majority has failed to consider that Appellant waived any complaint about Cisneros’ use of the AIMS device to obtain the measurements used in the speed calculation formulas because Appellant did not object to State’s Exhibit 10, which is a diagram of the collision including measurements taken at the scene with the AIMS device. It is well established that a party must make a timely and specific objection in order to preserve his complaints for appellate review. See Tex.R.App.P. 33.1. Further, a party must object every time inadmissible evidence is offered or the complaint is waived. See Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991); Gillum v. State, 888 S.W.2d 281, 285 (Tex.App.-El Paso 1994, pet. ref'd). In the presence of the jury, the State elicited testimony from Cisneros showing that he had training in accident reconstruction and had previously testified as an expert on that topic. Cisneros then identified State’s Exhibit 10 as a diagram of the accident which he prepared on the night of the accident. Cisneros explained that he used the Accident Investigation Measuring System (AIMS), which he described as a surveying device, and a software program to prepare State’s Exhibit 10. The State then offered State’s Exhibit 10 and Appellant’s counsel stated that he had no objection to it. State’s Exhibit 10 depicts the point of impact and post-impact locations of the vehicles, their direction of travel, the location of various skid marks, and measurements of those skid marks taken by Cisneros using AIMS. The exhibit reflects that Appellant’s Corvette traveled 413 feet from the point of impact with the complainants’ Honda. By failing to object to the initial testimony about the AIMS device and State’s Exhibit 10, Appellant waived any subsequent complaint he might have had about the measurements taken by Cisneros with the assistance of the AIMS device.

Scientific Validity of AIMS

Even if Appellant did not waive his complaint about the measurements and the AIMS device, the majority opinion errs by holding that the State was obligated to establish that Cisneros understands the inner-workings of this surveying device. Cisneros was offered as an expert in accident reconstruction, not as an expert in AIMS equipment. Consequently, there was no necessity for the State to prove that he understood exactly how laser measuring devices and surveying equipment work. As aptly noted by appellate counsel for the State, the AIMS device is essentially a high-tech tape measure and Cisneros used the device to measure the distance between two points. I find no requirement in Rule 703 or elsewhere that an expert witness be able to explain the scientific principles involved in every piece of equipment used by the expert to gather data. To illustrate this point, an expert who relies on photographs as part of the foundation for his opinion regarding the cause of an accident need not explain precisely how a camera works in order to rely on the data supplied by the photographs. Likewise, an expert witness who utilizes a calculator in performing calculations is not required to relate to the jury the scientific principles involved in an electronic calculator before his expert testimony is permitted. Cisneros sufficiently explained that the AIMS device, using a laser, measured the distance Appellant’s car traveled from the point of impact to its resting place and he utilized that measurement in the skid speed formula. For these reasons, I would find that the trial court did not abuse its discretion in admitting Cisneros’ testimony about the measurements taken at the scene of the accident.

Reliability of the Speed Calculation Formulas

While I would find much of Cisneros’ testimony admissible, the State failed to offer sufficient evidence proving the reliability of the two formulas utilized by Cisneros to estimate speed. A party seeking to introduce evidence of a scientific principle need not always present expert testimony, treatises, or other scientific material to satisfy the Kelly test. Hernandez, 116 S.W.3d at 28-9. It is only at the dawn of judicial consideration of a particular type of forensic scientific evidence that trial courts must conduct full-blown “ga-tekeeping” hearings under Kelly. Id. at 29. Once a scientific principle is generally accepted in the pertinent professional community and has been accepted in a sufficient number of trial courts through adversarial Daubert/Kelly hearings, courts subsequently considering the issue may take judicial notice of the scientific validity (or invalidity) of that scientific theory based upon the process, materials, and evidence produced in the prior hearings. Id. at 29; see Weatherred v. State, 15 S.W.3d 540, 542 n. 4 (Tex.Crim.App. 2000)(“once a particular type of scientific evidence is well established as reliable, a court may take judicial notice of that fact, thereby relieving the proponent of the burden of producing evidence on that question”). In other words, trial courts are not required to reinvent the scientific wheel in every trial. Hernandez, 116 S.W.3d at 29. The Court of Criminal Appeals has recently emphasized, however, that some trial courts must conduct an adversarial gatekeeping hearing to determine the reliability of the given scientific theory and its methodology before other trial courts may take judicial notice of that determination. Id. Although appellate courts may likewise take judicial notice of other appellate opinions concerning a specific scientific theory or methodology in evaluating a trial court’s Daubert/Kelly ga-tekeeping decision, judicial notice on appeal cannot serve as the sole source of support for a bare trial court record concerning scientific reliability. Hernandez, 116 S.W.3d at 31-2.

Although the trial court held a Dau-bert/Kelly hearing in the instant case, the State did not offer any evidence of the theories underlying the formulas utilized by Cisneros. Further, the State did not show that the issue of the formulas’ reliability has been litigated previously nor did it ask the trial court to take judicial notice of the reliability of the scientific theory and methodology based upon prior hearings or prior appellate decisions. See Hernandez, 116 S.W.3d at 30 and n. 7. There is evidence that Cisneros has previously qualified as an expert and testified regarding accident reconstruction and perhaps even speed estimation, but the fact that a trial court has allowed some type of scientific testimony by a particular witness previously does not mean that the witness’s testimony is, ipso facto, scientifically reliable. Hernandez, 116 S.W.3d at 30.

The trial court’s decision to admit this evidence is understandable as expert testimony regarding accident reconstruction and speed estimation has been previously admitted in Texas civil and criminal cases. See e.g., Chavers v. State, 991 S.W.2d 457, 460-61 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd); Trailways, Inc. v. Clark, 794 S.W.2d 479, 483 (Tex.App.-Corpus Christi 1990, writ denied); Rogers v. Gonzales, 654 S.W.2d 509, 512 (Tex.App.-Corpus Christi 1983, writ ref'd n.r.e.); Bates v. Barclay, 484 S.W.2d 955, 957-59 (Tex.Civ.App.-Beaumont 1972, writ ref'd n.r.e.); Adams v. Smith, 479 S.W.2d 390, 395 (Tex.Civ.App.-Amarillo 1972, no writ); Beynon v. Cutberth, 390 S.W.2d 352, 355-56 (Tex.Civ.App.-Eastland 1965, no writ). With the exception of Chavers, these decisions pre-date Daubert and Kelly, and there is no determination in any of the cases that the formulas used to calculate speed are scientifically reliable. Although Chavers employs the proper criteria under Kelly, the decision is distinguishable because the expert witness based his calculations on yaw marks rather than the two formulas used by Cisneros. Therefore, taking judicial notice of Chavers is of no benefit in the instant case.

In Thomson v. Rook, a United States District Court conducted a Daubert hearing to determine the admissibility of an accident reconstruction expert’s opinion regarding speed, distance traveled by vehicles, and the point of impact of the collision. Thomson v. Rook, 255 F.Supp.2d 584, 584-87 (E.D.Tex.2001). That court determined that the articles, books, and other experts in the accident reconstruction field validated the methodology used by the expert witness for calculating speed, distance traveled by the vehicles, and the point of impact. Id. at 586. In a footnote, the court noted that the expert witness calculated speed using a “standard physics equation employed by automobile accident reconstruction experts and a coefficient of friction derived from J. Stannard Baker’s book, Traffic Investigation Manual.” Id. at 586 n. 5. The witness calculated speed and distance traveled by one of the vehicles using a standard rate of acceleration from a standard start as reported by the Baker book. Id. The district court admitted the witness’s expert opinion on these topics but excluded the witness’s opinion about the driver’s braking time because the plaintiffs had not produced evidence or articles or books, or other experts that validate the methodology used by the expert witness. Id. at 587. It is impossible to determine whether Cisneros used some of the same formulas as the witness in Thomson, and therefore, taking judicial notice of this decision would not benefit the State.

I have been unable to find any Texas appellate decisions at the state or federal level holding that the skid speed formula and linear momentum formulas utilized by Cisneros are reliable.

A cursory review of appellate decisions from other jurisdictions indicates that this type of expert testimony has been often admitted into evidence in other states. See e.g., State v. Russo, 38 Conn.Supp. 426, 450 A.2d 857, 866-67 (1982)(holding that an expert in Connecticut may testify as to the speed of a motor vehicle based on skid marks and other factors because the formulas used to calculate speed are based on well-recognized principles of physics that have gained general acceptance in the field of accident reconstruction); Bryant v. Buerman, 739 So.2d 710, 712-13 (Fla.Dist.Ct.App.1999)(holding that opinion of an accident reconstruction expert witness regarding the speed of a vehicle at the time of an accident is admissible in personal injury action arising out of collision, so long as the expert’s testimony is helpful to the jury). See also Jerre E. Box, Annotation, Opinion Testimony as to Speed of Motor Vehicle Based on Skid Marks and Other Facts, 29 A.L.R.3d §§ 248-77 (1970 & Supp.1996)(discussing numerous decisions admitting and excluding this type of evidence). As is the case with the Texas decisions discussed above, many of the out-of-state decisions pre-date Daubert and Kelly, and of those cases decided since Daubert and Kelly, the opinions do not discuss reliability of the same formulas used by Cisneros. Further, none of these decisions indicates that the formulas utilized by Cisneros have become so widely accepted or persuasively proven that future courts may take judicial notice of their reliability. See Hernandez, 116 S.W.3d at 29 n. 6. The Connecticut Supreme Court stated in Russo that using the coefficient of friction to estimate speed is a well recognized principle that has gained general acceptance in the field of accident reconstruction. Russo, 450 A.2d at 866. While Cisneros utilized the coefficient of friction in the skid speed formula to determine post-impact speed, he used a different formula to obtain pre-impact speed and that is the object of Appellant’s complaint on appeal. Moreover, the Court of Criminal Appeals cautioned in Hernandez about reliance on judicial opinions from non-Texas jurisdictions because many other jurisdictions utilize the “preponderance of the evidence” standard rather than the “clear and convincing” evidence standard required in Texas. Hernandez, 116 S.W.3d at 31 n. 13.

In the absence of any evidence showing the reliability of the speed calculation formulas utilized by Cisneros, the trial court erred in admitting Cisneros’ conclusion that Appellant’s vehicle was traveling 104 miles per hour at the point of impact. However, I would also find the error harmless as stated in the majority opinion. With these additional comments and observations, I concur in the judgment affirming the trial court’s judgment.

      . In his sole issue, Appellant does not challenge Officer Cisneros’ testimony concerning the Corvette's speed on relevancy grounds. Therefore, we will address its reliability only.

      . The first count of intoxication manslaughter in the indictment alleged Appellant:
      [D]id then and there, by accident or mistake, while operating a motor vehicle in a public place while intoxicated, to wit: by having an alcohol concentration of .08 or more, and by reason of that intoxication caused the death of MARIO SANDOVAL by then and there driving said motor vehicle into and causing it to collide with a motor vehicle in which MARIO SANDOVAL was a passenger....
      The second count of intoxication manslaughter alleged Appellant:
      [D]id then and there, by accident or mistake, while operating a motor vehicle in a public place while intoxicated, to wit: by having an alcohol concentration of .08 or more, and by reason of that intoxication caused the death of ROBERT SANDOVAL by then and there driving said motor vehicle into and causing it to collide with a motor vehicle driven by ROBERT SANDOVAL. ...

      . Cisneros' written report was not admitted into evidence.

        . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).


author: SUSAN LARSEN, Justice.

text:
    Manuel GARZA, Individually and as Agent Representative of Sun City Cab Company, Appellants, v. Hugo CHAVARRIA, Appellee.
    No. 08-03-00005-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 29, 2004.

      Mario A. Gonzalez, Juarez, Gonzalez <& Peters, L.L.P., El Paso, for Appellants.
    Rosalio Munoz, Jr., Law Office of Rosa-lio Munoz, Jr., El Paso, for Appellee.
    Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
   OPINION

SUSAN LARSEN, Justice.

Manuel Garza and Sun City Cab Company appeal from a judgment rendered against them and in favor of Hugo Chavar-ria. Because we conclude the lower courts lacked subject matter jurisdiction, we reverse the judgment and dismiss the case.

Procedural Background

Chavarria commenced this case by filing a pro se claim in the justice court against Manuel Garza, as owner of Sun City Cab. He alleged that he took his car to Garza at Sun City Cab to have it repaired. According to Chavarria, Garza kept the car for over two months, failed to repair it, and caused additional damage to the car. Cha-varria requested a total of $2,335 in damages and $104 in court costs.

' Chavarria subsequently retained counsel and filed an amended petition, naming Manuel Garza, individually and as agent representative of Sun City Cab, as defendants. The amended petition stated claims for breach of contract and for violations of the Deceptive Trade Practices Act (DTPA). Chavarria continued to seek $2,335 in actual damages. Additionally, he alleged that he was entitled to recover two times the portion of his actual damages that did not exceed $1,000 and up to three times the portion of his actual damages in excess of $1,000. Chavarria also requested reasonable and necessary attorney’s fees in an unspecified amount. The justice court rendered judgment for Chavarria against both defendants, jointly and severally, in the amount of $5,000, plus $1,500 in attorney’s fees.

Garza and Sun City Cab appealed to the county court at law, where a bench trial was held. After the trial was over, they filed a plea to the jurisdiction, arguing that both the justice court and the county court at law lacked jurisdiction because the amount in controversy exceeded the jurisdictional limit of the justice court. The court denied the plea to the jurisdiction and rendered a joint-and-several judgment in favor of Chavarria for $5,000, plus $2,500 in attorney’s fees. The judgment expressly states that Chavarria’s recovery is based on his DTPA claim and that all relief not expressly granted in the judgment is denied.

Subject MatteR JuRisdiction

In their first issue, the appellants argue that the county court at law erred by denying their plea to the jurisdiction. In their second issue, they argue that this Court should undertake its own review of the lower courts’ jurisdiction.

Whether the trial court properly denied the plea to the jurisdiction is a pure question of law that we examine under a de novo standard of review. Cornyn v. Akin, 50 S.W.3d 735, 736-37 (Tex.App.-El Paso 2001, no pet.). A plea to the jurisdiction is used to contest the trial court’s subject matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Moreover, lack of subject matter jurisdiction arrests a cause at any stage in the proceedings; therefore, if it becomes apparent at any point during the proceedings that the trial court lacked jurisdiction, the cause must be dismissed. Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.App.-Austin 1994, writ denied); City of Beaumont v. West, 484 S.W.2d 789, 791 (Tex.Civ.App.-Beaumont 1972, writ ref'd n.r.e.).

The Lower Courts’ Amount-in-Controversy Jurisdiction

The Texas Constitution invests justice courts with exclusive jurisdiction over civil cases in which the amount in controversy is $200 or less, original jurisdiction over misdemeanor cases that are punishable by a fine only, “and such other jurisdiction as may be provided by law.” Tex. Const, art. V, § 19. The Legislature has given justice courts additional jurisdiction over “civil matters in which exclusive jurisdiction is not in the district or county court and in which the amount in controversy is not more than $5,000, exclusive of interest.” Tex. Gov’t Code Ann. §. 27.031(a)(1) (Vernon Supp.2004).

A party dissatisfied with a justice court’s decision may appeal to the county court at law, which will try the case de novo. See Tex. Gov’t Code Ann. §§ 25.0003(a), 26.042(e) (Vernon Supp. 2004), § 26.171 (Vernon 1988); Tex.R. Civ. P. 574b. The appellate jurisdiction of the county court at law is confined to the jurisdictional limits of the justice court; the county court at law has no jurisdiction over an appeal unless the justice court had jurisdiction. Rice v. Pinney, 51 S.W.3d 705, 708 (Tex.App.-Dallas 2001, no pet.); Crumpton v. Stevens, 936 S.W.2d 473, 476 (Tex.App.-Fort Worth 1996, no writ); Color Tile, Inc. v. Ramsey, 905 S.W.2d 620, 622 (Tex.App.-Houston [14th Dist.] 1995, no writ). This is true regardless of whether the county court at law would have had original jurisdiction over the cause if it had initially been filed in that court. See Rice, 51 S.W.3d at 708-09 & n. 2. Therefore, if the amount in controversy in the justice court exceeded $5,000, exclusive of interest, neither the justice court nor the county court at law had jurisdiction over this case.

The amount "in controversy is ordinarily determined by looking solely at the allegations in the petition. Blue, 34 S.W.3d at 555; Brannon v. Pac. Employers Ins. Co., 148 Tex. 289, 294, 224 S.W.2d 466, 469 (Tex.1949). When the plaintiffs petition does not affirmatively demonstrate the absence of jurisdiction, the petition should be construed liberally in favor of jurisdiction. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex.1996); Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989). But a plaintiff may plead himself out of court by seeking a specific amount of damages that is outside of the jurisdictional limits of the court. See Peek, 779 S.W.2d at 804.

Once a trial court acquires jurisdiction, no later fact or event can defeat that jurisdiction. Cont’l Coffee Prods. Co., 937 S.W.2d at 449; Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 532, 261 S.W. 762, 763 (1924). Thus, if the original petition was properly brought in a particular court, and an amended petition increases the amount in controversy above the court’s jurisdictional limit, the court will continue to have jurisdiction if the additional damages accrued because of the passage of time. Cont’l Coffee Prods. Co., 937 S.W.2d at 449. But if an amended petition alleges a new cause of action for damages that exceed the court’s jurisdictional limit, the trial court only retains jurisdiction over the original cause of action. Isbell, 113 Tex. at 531-32, 261 S.W. at 763; Hawkins v. Anderson, 672 S.W.2d 293, 296 (Tex.App.-Dallas 1984, no writ).

The justice court’s jurisdiction is statutorily limited to cases “in which the amount in controversy is not more than $5,000, exclusive of interest.” Tex. Gov’t Code Ann. § 27.031(a)(1). Because the statute does not expressly exclude punitive damages and attorney’s fees, these items should be included when calculating the amount in controversy. See Villarreal v. Elizondo, 831 S.W.2d 474, 476 (Tex.App.Corpus Christi 1992, no writ); Printing Ctr. of Tex., Inc. v. Supermind Publ’g Co., 669 S.W.2d 779, 785 (Tex.App.-Houston [14th Dist.] 1984, no writ); Long v. Fox, 625 S.W.2d 376, 378 (Tex.App.-San Antonio 1981, writ ref'd n.r.e.); Gulf & I. Ry. Co. v. Gregory, 59 S.W. 310, 311 (Tex.Civ.App.1900, no writ); cf. Tex. Gov’t Code Ann. § 25.0003(c)(1) (Vernon Supp.2004) (providing that a statutory county court has jurisdiction over civil cases in which the amount in controversy exceeds $500 but does not exceed $100,000, “excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs”). Treble damages under the DTPA are punitive in nature. Pace v. State, 650 S.W.2d 64, 65 (Tex.1983); Sears, Roebuck & Co. v. Big Bend Motor Inn, Inc., 818 S.W.2d 542, 545 (Tex.App.-Fort Worth 1991, writ denied). Accordingly, these damages are included when calculating the amount in controversy. See Gulf & I. Ry., 59 S.W. at 311.

The Amount in Controversy in This Case

In his original petition, Chavarria sought $1,305, which was the amount he paid the appellants for the repairs, $35 for towing expenses, $600 for transportation expenses, and $395 for repairing the damage caused by the appellants. This totals to $2,335 in actual damages.

In his amended petition, Chavar-ria continued to seek $1,305, $430 for out-of-pocket expenses, and $600 for loss of use of the vehicle. This again totals to $2,335 in actual damages. He also sought two times the portion of his actual damages that did not exceed $1,000, and up to three times the portion of his actual damages in excess of $1,000. This brings the amount in controversy to $7,005. Chavar-ria also requested reasonable and necessary attorney’s fees in an unspecified amount. The amount in controversy thus clearly exceeded the justice court’s jurisdictional limit of $5,000.

Chavarria raises several arguments to support the lower courts’ jurisdiction. First, he asserts that his amended petition only sought damages and attorney’s fees incurred due to the passage of time. See Cont'l Coffee Prods. Co., 937 S.W.2d at 449. Although Chavarria’s attorney’s fees undoubtedly increased as time passed, the amount in controversy under the amended petition exceeded the jurisdictional limit without considering attorney’s fees. Cha-varria’s damages did not increase due to the passage of time. Instead, Chavarria’s amended petition continued to seek the same amount in actual damages as the original petition; the amended petition simply sought to treble those damages under the DTPA.

Second, Chavarria argues that the treble damages should not be included in calculating the amount in controversy because they are punitive. He relies on the Sears case for this argument. In Sears, the court held that because treble damages are punitive, they are excluded from the amount in controversy in the Tarrant County Courts at Law. 818 S.W.2d at 545-46. The Legislature gave these courts jurisdiction over civil cases in which the amount in controversy did not exceed $50,000, excluding mandatory damages and penalties, attorney’s fees, interest, and costs. Id. at 544 n. 1. The court determined that the Legislature intended to exclude all penalties, regardless of whether they were mandatory or discretionary. Id. at 545. The holding in Sears is based on the unique language of the jurisdictional statute governing the Tarrant County Courts at Law. See id. at 544. Unlike that statute, the jurisdictional statute governing the justice courts does not exclude penalties, whether mandatory or discretionary, from the amount in controversy. See Tex. Gov’t Code Ann. § 27.031(a)(1). Therefore, Sears is inapposite.

Third, Chavarria points out that El Paso County Courts at Law have original jurisdiction over civil cases in which the amount in controversy exceeds $500, but does not exceed $100,000, “excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs.” Tex. Gov’t Code Ann. § 25.0003(c)(1); see also Tex. Gov’t Code Ann. § 25.0732(a) (Vernon Supp.2004) (providing that, with certain exceptions, El Paso County Courts at Law have the same jurisdiction as district courts). As noted above, however, the appellate jurisdiction of a county court at law is limited to the jurisdiction of the justice court. See Rice, 51 S.W.3d at 708-09 & n. 2; Crumpton, 936 S.W.2d at 476; Color Tile, 905 S.W.2d at 622. Therefore, it is irrelevant that the county court at law has original jurisdiction over cases involving a greater amount in controversy and that punitive damages are excluded from the amount in controversy in suits originally brought in the county court at law. See Rice, 51 S.W.3d at 708-09 & n. 2 (holding that a county court at law that generally has jurisdiction to adjudicate title has no jurisdiction to do so in an appeal of a forcible detainer suit from justice court, because justice courts are expressly denied jurisdiction to adjudicate title).

Finally, Chavarria argues that we must presume that the pleadings in the justice court were sufficient to give that court jurisdiction. He relies on a line of cases holding that a court of appeals must presume that defects in written pleadings were supplemented and corrected by oral pleadings. See, e.g., Dagley v. Leeth, 106 S.W.2d 730, 731 (Tex.Civ.App.-Waco 1937, no writ); Broderick v. Pardue, 102 S.W.2d 252, 255 (Tex.Civ.App.-San Antonio 1936, writ dism’d). When these cases were decided, the plaintiff could rely on oral pleadings in both the justice court and on appeal to the county court. See Broderick, 102 S.W.2d at 255. Now, however, all pleadings must be reduced to writing once the case is appealed to the county court. Tex.R. Crv. P. 525. Chavarria’s amended petition, which was filed while the case was still pending in the justice court, is the last written pleading that appears in the record. Accordingly, it is clear that there were no subsequent amendments.

Conclusion

For the reasons stated above, we conclude that the amount in controversy in this case exceeded the jurisdictional limit of the justice court. Therefore, neither that court nor the county court at law had subject matter jurisdiction. When an appellate court concludes that a trial court lacked jurisdiction, the proper disposition is to reverse the trial court’s judgment and dismiss the case. City of Garland v. Lou-ton, 691 S.W.2d 603, 605 (Tex.1985); Hill v. Heritage Res., Inc., 964 S.W.2d 89, 117 (Tex.App.-El Paso 1997, pet. denied). Accordingly, the judgment of the county court at law is reversed and this case is dismissed. The appellants’ first two issues are sustained. Because of our disposition, we find it unnecessary to address the remaining issues.

      . This statute also gives the justice courts jurisdiction over forcible detainer actions and certain mortgage foreclosure cases. See Tex. Gov’t Code Ann. § 27.031(a)(2),(3).

      . Chavarria cited section 17.50(b)(1) of the DTPA as authority for the multiple damages he sought. This section previously provided that a prevailing consumer could recover the amount of actual damages found by the trier of fact, two times the portion of actual damages that did not exceed $1,000, and, if the trier of fact found that the conduct of the defendant was committed knowingly, three times the amount of actual damages in excess of $1,000. See Act of May 29, 1989, 71st Leg., R.S., ch. 380, § 2, 1989 Tex. Gen. Laws 1490, 1491, amended by Act of May 19, 1995, 74th Leg., R.S. ch. 414, § 5, 1995 Tex. Gen. Laws 2988, 2992. Under this version of the statute, the maximum amount of damages recoverable was three times the amount of actual damages. Jim Walter Homes, Inc. v. Valencia, 690 S.W.2d 239, 241 (Tex.1985). The statute currently provides that a prevailing consumer may recover the amount of economic damages found by the trier of fact. If the trier of fact finds that the defendant’s conduct was committed knowingly, the consumer may also recover mental anguish damages and not more than three times the economic damages. If the trier of fact finds that the defendant's conduct was committed intentionally, the consumer may recover mental anguish damages and not more than three times the economic and mental anguish damages. Tex. Bus. & Com.Code Ann. § 17.50(b)(1) (Vernon 2002). This version of the statute applies to causes of action that accrue on or after September 1, 1995. See Act of May 19, 1995, 74th Leg., R.S. ch. 414, § 20(a),(b), 1995 Tex. Gen. Laws 2988, 3004. Although the parties seem to agree that the previous version of the statute applies to this case, the events giving rise to this suit occurred in 1999. Therefore, the current version of the statute should apply. But because Chavarria did not seek mental anguish damages, he is entitled to the same amount of damages under either version of the statute, i.e., three times his actual, economic damages.

      . When the plaintiff seeks an amount of damages that falls within the jurisdictional limit and also seeks reasonable attorney’s fees in an unspecified amount, the court has jurisdiction. See Whitley v. Morning, 814 S.W.2d 537, 538 (Tex.App.-Tyler 1991, no writ) (holding that request for $4,500 in damages, plus "reasonable attorney’s fees” did not exceed court's jurisdictional limit of $5,000); see also Peek, 779 S.W.2d at 805 (”[T]he omission of any allegation regarding the amount in controversy ... did not deprive the court of jurisdiction, but was instead a defect in pleading subject to special exception and amendment.”). In this case, however, the amount in controversy exceeds the justice court’s jurisdictional limit even without considering the request for attorney's fees.