text:
    Gina Marie ESTRADA, Appellant, v. The STATE of Texas.
    No. PD-1629-03.
    Court of Criminal Appeals of Texas.
    Jan. 26, 2005.

      Allen Moore, Odessa, for Appellant.
    Betty Marshall, Asst. State Atty., Matthew Paul, State’s Atty., Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court,

in which PRICE, WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ., join.

Appellant pled guilty to possession of two ounces or less of marijuana and was sentenced to 3 days in jail and a $350.00 fine. On appeal, Appellant claimed that the trial court erred in denying her motion to suppress evidence found during a war-rantless entry into her residence. The Eighth Court of Appeals held that there was no probable cause for a warrantless search of the home, and reversed and remanded Appellant’s conviction. We will reverse.

I. Facts

On January 12, 2002, Officer Raymond Baladez of the Ector County Sherrifs Office responded to a call complaining of loud music and vehicles traveling at high speeds up and down a road next to Appellant’s house. When Officer Baladez drove up to the house, he testified that he observed two people who appeared to be minors running into the residence from a car parked in the driveway. Upon closer inspection, Officer Baladez discovered cups containing alcoholic beverages on the hood of the car. When he went to the residence to investigate, he banged on the door several times and identified himself as a sheriff, but there was no answer. Officer Bala-dez also testified that he was able to hear voices and people running inside the house, but could not get a response at the door, nor on the telephone when he asked his dispatch to call the residence.

At this time, Officer Baladez went back to his car at the end of the driveway. While he was in his car, he received a call to investigate an anonymous tip of shots being fired in a nearby area. He responded to the call, and found no evidence of any disturbance. Officer Baladez testified that he suspected the anonymous tip had been made by people inside the Appellant’s residence in order to provide themselves with an opportunity to exit without being detected. When he went back to the residence, he saw two vehicles exiting the driveway at a high rate of speed. When Officer Baladez stopped the vehicles, he discovered that both of the occupants were 18 years of age, and smelled alcohol and marijuana on their breath and clothes. The minors told Officer Baladez that they had been drinking alcoholic beverages at Appellant’s house. Officer Baladez then instructed the two minors to back their cars into Appellant’s driveway. At this point, Officer Baladez testified that Appellant walked out of her house and down to the gate at the end of the driveway, which she then opened. Officer Baladez indicated that he could also smell alcohol and marijuana on Appellant, and said Appellant told him that she had not answered the door earlier because she did not want to go to jail.

Officer Baladez proceeded to follow Appellant up the driveway to the door of the residence, which Appellant opened. Officer Baladez testified that he could smell a strong odor of marijuana emanating from the residence. Officer Baladez then stated that he “stepped up onto the door jam” because there were a number of other people in the residence and he wanted to be able to see them for his safety. When he stepped into the doorway to observe the other people in the residence, he saw an ashtray in the living room which appeared to contain the remnants of marijuana cigarettes. Officer Baladez then walked through the residence to locate the other people inside, and in doing so noticed marijuana on the floor of a bedroom. After questioning the other people in the house, Officer Baladez placed Appellant under arrest for possession of marijuana in the amount of two ounces or less.

Appellant timely filed a Motion to Suppress Evidence alleging that her rights were violated as a result of an illegal search and seizure without a warrant, probable cause, or other lawful authority pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as well as in violation of Article I, Sections 9, 10 and 19 of the Texas Constitution. After a hearing on the motion, at which both Appellant and Officer Baladez testified, the trial court denied Appellant’s motion to suppress, holding that Officer Baladez had sufficient probable cause to investigate the situation, and that there were exigent circumstances present that permitted him to enter the residence without a warrant.

II. Appellate Decision and Grounds for Review

The Eighth Court of Appeals reversed the decision of the trial court. The court of appeals, relying on our decision in State v. Steelman, held that although there were facts that may have been sufficient to establish probable cause necessary for procuring a warrant, in this instance, the facts were not of such a character as to allow a warrantless search of the home. The court of appeals held that according to Steelman, the odor of marijuana alone does not constitute the probable cause necessary for a warrantless search and seizure in a home. We granted review on two grounds: first, did the court of appeals err in holding, in effect, that the odor of marijuana coming out of a house is not sufficient to establish probable cause for a warrantless search of the house? Second, did the court of appeals err in holding that the evidence in this case did not rise to the level necessary to support a warrantless search of the house?

The State argues that the court of appeals incorrectly applied Steelman to this case, and that Steelman holds only that the odor of burning marijuana coming from a house did not give officers probable cause to believe that a person coming from that house committed the offense of possession of marijuana in their presence. It asserts that this Court held the search was illegal in Steelman because there was no probable cause to arrest, and the search was incident to the arrest; not because the officers lacked probable cause to believe that marijuana was present in the house. Appellant asserts that the court of appeals’ decision was correctly reasoned, and that in order to conduct a warrantless search of someone’s home, there must be probable cause plus exigent circumstances. Appellant argues that in the instant case, neither were present.

III. Standard of Review

When reviewing a trial court’s ruling on a mixed question of law and fact (as is the determination of probable cause in the pretrial suppression hearing in this case), the court of appeals may review de novo the trial court’s application of the law of search and seizure to the facts of the case. We review de novo the application of the law to facts in this case, but we also afford almost total deference to the trial court’s evaluation of the credibility and demeanor of the witnesses who testified at the pre-trial hearing. When there are no explicit findings of historical fact, the evidence must be viewed in the light most favorable to the trial court’s ruling. The trial court’s ruling must be upheld if it is correct under any theory of law applicable to the case.

IV. State v. Steelman

To begin our analysis of this case, it is necessary to first review the facts of the Steelman case, as this was the primary Texas case relied on by the court of appeals, as well as both parties in their respective briefs. In Steelman, police officers received an anonymous tip that the defendant and others may have been dealing drugs at the defendant’s residence. Three officers were sent to the residence, and when they arrived, looked into the window. The officers saw no evidence of illegal activity, however, they did observe four men sitting inside the residence. The officers then knocked on the front door and the defendant opened the door, stepped outside, and closed the door behind him. When the defendant did this, the officers smelled burning marijuana emanating from inside the residence. They asked the defendant for his identification, and he went inside to retrieve it, attempting to close the door behind him. Before he could do this, however, an officer placed his foot inside the doorway and the officers entered the residence, handcuffing all four of the occupants inside and placing them under arrest. Subsequently, a search warrant was obtained based on the officers assertion that they had probable cause to believe the defendants were in possession of marijuana. With this search warrant, the officers then searched the house two hours after the arrest and found marijuana. Based on the above fact scenario, we held in Steelman that:

The mere odor of burning marijuana did not give the officers probable cause to believe that [defendant] had committed the offense of possession of marijuana in their presence. The odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home.

Appellant argues that based on the Steelman case, the court of appeals was correct in holding that the odor of marijuana coming out of a house is not enough to establish probable cause for a warrantless search of the house. We disagree. Our holding in Steelman does not support the proposition that marijuana odors alone cannot constitute probable cause for a war-rantless search. Rather, Steelman holds that the mere odor of marijuana does not constitute the probable cause necessary for police to arrest someone for committing an offense in their presence. In other words, just because the officers in the Steelman case smelled marijuana, without any other evidence, they did not have probable cause to suspect that the defendant, one of four people in the house, was committing the offense of possession of marijuana in their presence so that they could arrest him without a warrant.

There is, however, a distinction between what is necessary to establish probable cause, and what is required for an officer to conduct a warrantless search of an individual’s residence. In Steelman, we held that the odor of marijuana alone is not enough to allow officers to conduct a war-rantless search. This is because it is clear under both United States constitutional law and Texas constitutional law that a warrantless search of a residence is illegal unless probable cause exists in combination with exigent circumstances.

V. Probable Cause

Though it is clear that odor alone may not justify a warrantless search, the State argues that odor alone may be enough to establish probable cause, which in combination with exigent circumstances could justify a warrantless search. This Court has set forth the following probable cause standard for searches:

Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found.

The Supreme Court has further defined the probable-cause standard as the sum total of layers of information, and not merely individual layers and considerations, that a reasonable and prudent man acts upon. In this case, the court of appeals failed to consider the sum total of information on the part of Officer Baladez, instead misapplying our holding in Steel-man to the facts in this case by declaring that the odor of marijuana does not constitute probable cause, therefore rendering the ensuing search illegal. The court of appeals declared that “the fact that Bala-dez smelled marijuana on [Appellant], in addition to smelling it emanating from the house, does not contribute to the probable cause analysis.” However, the odor of marijuana in this case was indeed an element or layer in determining whether Officer Baladez had probable cause to believe an offense was being committed. The “odor of an illegal substance” may be a factor that police officers use in determining whether there is probable cause that an offense has been or is being committed.

In addition to the odor of marijuana, Officer Baladez observed minors under the influence of alcoholic beverages. These minors in fact told the officer that they and other minors had been consuming alcohol and smoking marijuana inside Appellant’s house. This evidence, in addition to the smell of marijuana on Appellant and emanating from Appellant’s house, viewed in the light most favorable to the trial court’s ruling, is enough to establish that there was probable cause for Officer Bala-dez to believe that a crime had been or was being committed, and that evidence of that crime would be found.

For this reason, we hold that the court of appeals erred by holding that according to Steelman, the odor of marijuana coming out of the house, along with the other observations made by Officer Baladez, did not establish probable cause to search the house.

VI. Exigent Circumstances

We now turn to the question of whether the evidence of exigent circumstances in this case was sufficient to support a warrantless search of the house. In order to support a warrantless search, probable cause, in combination with some sort of exigent circumstances, must exist. In the instant case, the trial court found, and we uphold, that Officer Baladez had probable cause to believe offenses were being committed in the Appellant’s residence based on, among other things, the odor of marijuana on the Appellant and her friends, and the odor emanating from the house. Thus, the second inquiry for the trial court became whether exigent circumstances existed to permit the war-rantless entry and search by Officer Bala-dez. The court of appeals failed to take into account the trial court’s finding that there was evidence from the witnesses which it believed established exigent circumstances for a warrantless search.

Officer Baladez testified before the trial court that he could hear people inside the house who did not answer when he knocked and identified himself as a police officer. He also testified that there were several persons attempting to leave the residence before he returned to investigate further. Based on this testimony, the trial court could reasonably have found that the warrantless search was justified by the need to prevent destruction of evidence or contraband in the time it would have taken for him to procure a warrant. In addition, Officer Baladez stated that the reason he stepped up into the doorway of the Appellant’s residence was because he had information from Appellant’s friends that there were a number of peo^ pie inside the house, and he wanted to be able to see and identify them for his safety as he investigated the situation. The trial court evaluated this testimony as well, and could reasonably have found that exigent circumstances existed that allowed the officer to protect himself from people he believed were present and may have been armed or dangerous.

We defer to the trial court’s evaluation of the witnesses’ credibility and demeanor during their testimony as to the circumstances on the night in question. We conclude that the trial court did not abuse its discretion in finding that exigent circumstances were present. Thus, the trial judge did not err in failing to suppress the marijuana evidence discovered by Officer Baladez upon his warrantless entry into the residence.

For these reasons, we hold that the trial court properly denied Appellant’s motion to suppress, and reverse the decision of the court of appeals.

KELLER, P.J., and KEASLER, J., concurred in the judgment.

      . 93 S.W.3d 102 (Tex.Crim.App.2002).

        . Estrada v. State, 116 S.W.3d 370, 373-74 (Tex.App.-El Paso 2003) pet. granted.

        . Id. at 374.

      . Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997).

      . State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000)("w]hen the trial court falls to file findings of fact, we view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.”).

      . Romero v. State, 800 S.W.2d 539, 543-44 (Tex.Crim.App.1990).

      . State v. Steelman, 93 S.W.3d 102, 104 (Tex.Crim.App.2002).

      . Id. at 105.

      . Id.

      . Id. at 108.

      . Id. at 109.

      . See McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.2003)("Pursuant to the Fourth Amendment, a warrantless search of either a person or property is considered per se unreasonable subject to a 'few specifically defined and well established exceptions.' The Supreme Court has held that voluntary consent to search, search under exigent circumstances, and search incident to arrest are among these exceptions.”)(quoting Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). See also McNairy v. State, 835 S.W.2d 101, 107 (Tex.Crim.App.1991) ("if probable cause is present, the inquiry becomes whether exigent circumstances existed to obviate the need for a search warrant and justify the initial warrant-less entry....") Exigent circumstances justifying a warrantless entry include 1) rendering aid or assistance to persons whom the officers reasonably believe are in need of assistance; 2) preventing destruction of evidence or contraband; and 3) protecting the officers from persons whom they reasonably believe to be present and armed and dangerous. Id.

      . McNairy, 835 S.W.2d 101; Washington v. State, 660 S.W.2d 533, 535 (Tex.Crim.App.1983).

      . Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

      . Estrada v. State, 116 S.W.3d 370, 374 (Tex.App.-El Paso 2003).

      . McGee v. State, 105 S.W.3d 609, 614 (Tex.Crim.App.2003); Hattersley v. State, 487 S.W.2d 354, 356 (Tex.Crim.App.1972); Chavez v. State, 769 S.W.2d 284, 287-88 (Tex.App.-Houston [1st Dist.] 1989, writ ref'd).

      . McNairy, 835 S.W.2d 101, 107.

      . Indeed, the trial court stated at the conclusion of the hearing, right before denying Appellant’s motion to suppress: "I think that there were sufficient exigent circumstances to permit his entry into the home where the marijuana was in plain view."

      . See McNairy, 835 S.W.2d 101, 107.

      . Id.


source: Caselaw Access Project

author: KEASLER, J., KELLER, P.J.,

license: Public Domain

text:
    Barbara Ann DEARS, Appellant, v. The STATE of Texas.
    Nos. PD-1963-03, PD-1964-03, PD-1965-03.
    Court of Criminal Appeals of Texas.
    Jan. 26, 2005.

      Lawrence B. Mitchell, Dallas, for Appellant.
    Lori Ordiway, Asst. District Atty., Dallas, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court

in which MEYERS, PRICE, WOMACK, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Barbara Ann Dears entered open pleas of guilty but later bargained for a five-year sentence in exchange for her pleas of true to the State’s revocation motions. The trial judge certified that she had no right to appeal since there were plea bargains and the Court of Appeals dismissed the appeals. We conclude that these certifications are defective and these cases do not fall within the rule prohibiting appeal in plea bargains.

Procedural History

Dears was initially indicted for a theft occurring in March 1999. She entered an open plea of guilty. In May 1999 she was convicted, and the judge suspended imposition of sentence and placed her on community supervision for 10 years.

Several months later, Dears was indicted for possessing cocaine and heroin with the intent to deliver them. In December 1999 she entered open guilty pleas in both cases. The two possession cases inspired the State to move to revoke Dears’s probation in the theft case. Dears pleaded true to the probation violations.

In January 2000 all three cases were before the court for sentencing. In the theft case, Dears’s probation was revoked and she was sentenced to 10 years in prison, with release to shock probation for 10 years. In the cocaine case, the judge deferred adjudication of guilt and placed Dears on 10 years’ community supervision. And the judge convicted Dears in the heroin case but suspended the sentence, placing her on 10 years’ community supervision in that case as well. Dears went to prison in the theft case but was released to shock probation in August 2000.

The State filed motions to revoke probation in all three cases in February 2002. In July 2003 Dears entered into an agreement with the State on these motions. She pleaded true to the allegations in the motions to revoke in exchange for a five-year sentence in each case.

In August 2003 the court revoked community supervision in the theft and heroin cases and entered a judgment adjudicating guilt in the cocaine case. Dears was sentenced to five years in each case, to run concurrently.

Dears filed notices of appeal and the judge entered certifications in each case reflecting that these were plea bargain cases and Dears had no right to appeal.

Court of Appeals

The notices of appeal and certifications were filed in the Court of Appeals on September 17, 2003, and Dears filed her docketing statements two days later. On October 13, the appellate court entered an order stating that “[t]he trial court’s certification of the right to appeal reflects these are plea bargain cases and [Dears] has no right to appeal” but the docketing statement “reflects there were no plea bargains in these cases.” Because of this, the court said, it could not determine whether it had jurisdiction over the case. The Court of Appeals ordered the district clerk to provide, within 15 days, the judgments and plea papers in each case.

The clerk responded by filing all three records on October 21. A week later, the Court of Appeals “dismissed the appeals for want of jurisdiction based on the trial court’s certifications.” In a footnote, the Court of Appeals said:

These cases do not involve the situation in which appellant entered negotiated guilty pleas and is now being held to have no right to appeal. Although these cases do not fall squarely within the language of rule 25.2(a)(2) regarding plea bargains, we see no reason why appellant should not be bound by the plea agreement she entered for punishment at the time her community supervision was revoked in ... [cause number] and her guilt was adjudicated in ... [cause number].

The court reporter’s record was subsequently filed on November 4, 2003.

We granted Dears’s petition for discretionary review which contends that the Court of Appeals erred in dismissing these appeals for want of jurisdiction.

Analysis

Jurisdiction

Jurisdiction concerns the power of a court to hear and determine a case. Appellate jurisdiction is invoked by giving timely and proper notice of appeal. Notice is sufficient if it shows the party’s desire to appeal and complies with Art. 44.01 of the Code of Criminal Procedure.

Certification of Right to Appeal

Effective January 2003 our rules of appellate procedure now require the trial judge to enter a certification of the defendant’s right to appeal. If the appellate court determines that the certification is defective, the clerk must notify the parties so that the defect can be remedied. If that action does not produce a valid certification, the appellate court may order the trial judge to provide one. The court of appeals must dismiss an appeal if a certification showing that the defendant has the right to appeal is not made a part of the appellate record. The rules do not define “defective,” but many of our courts of appeals have concluded that a certification is defective if it is contrary to the record.

In plea bargain cases, Rule 25.2(a)(2) specifies the limits on the right to appeal and the trial judge’s duty to consider those limits in the certification. Specifically,

[i]n a plea bargain case — that is, a case in which defendant’s plea is guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant — a defendant may appeal only:
(A) those matters that were raised by written motion filed and ruled on before trial, or
(B) after getting the trial court’s permission to appeal.

This language incorporates former Rule 25.2(b)(3), transferring the specificity requirement from the defendant’s notice of appeal to the trial judge’s certification.

Application

The Court of Appeals acknowledged that these cases “do not involve the situation in which appellant entered negotiated guilty pleas and is now being held to have no right to appeal.” But the appellate court concluded that, even though these cases do not “fall squarely within the language of rule 25.2(a)(2),” Dears should nevertheless “be bound by the plea agreement she entered for punishment at the time her community supervision was revoked.”

The Court of Appeals misapplied Rule 25.2(a)(2). The rule refers only to plea bargains with regard to guilty pleas, not pleas of true on revocation motions. Regardless of whether a court feels that a defendant should be “bound” by an agreement on a plea of true, the plain language of Rule 25.2(a)(2) does not contemplate that situation. In this case, Dears entered open pleas of guilty in all three cases. Nothing in Rule 25.2(a)(2) limits her right to appeal.

Nevertheless, the Court of Appeals was required to dismiss the appeal unless it concluded that the trial court’s certification was defective. Therefore, we must determine what constitutes a “defective” certification and whether this was one.

Webster defines “defective” as “wanting-in something essential.” Black defines it as “lacking in legal sufficiency.” Using this definition, there would be nothing “defective” about the trial court’s certification in this case — it “conforms to the form” mandated by this Court and is not lacking anything essential.

Despite this, as mentioned, some of our lower appellate courts have concluded that “defective” means “contrary to the record.” Their reasons are varied. Some courts rely on Appellate Rules 44.3 and 44.4. Rule 44.3 prohibits courts of appeals from dismissing an appeal “for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.” Additionally, Rule 44.4 prohibits dismissing an appeal if “the trial court’s erroneous action ... prevents the proper presentation of a case to the court of appeals” and the trial court can correct the action.' Another court of appeals relies on the comment following Rule 25.2, which says that “[i]f a sufficient notice of appeal or certification is not filed after the appellate court deals with the defect (see Rules 34.5(c) and 37.1), preparation of an appellate record and representation by an appointed attorney may cease.”

We agree that Rules 44.3 and 44.4 weigh in favor of a definition of “defective” which is broader than “lacking something essential.” These rules reflect a strong interest in ensuring that a defendant’s right to appeal is not abridged due to “defects or irregularities” which can be corrected. And Rules 37.1 and 34.5(c) provide the framework for correcting defective certifications. To give meaning to Rules 44.3 and 44.4, a defective certification should include a certification which is correct in form but which, when compared with the record before the court, proves to be inaccurate. That way, a defendant such as Dears has her right to appeal preserved.

We also agree that the comment following Rule 25.2 provides some guidance. The comment says that “preparation of an appellate record and representation by an appointed attorney may cease” if a defective certification is not corrected. This indicates that the appellate court may deal with the certification issue before the record is completed. The use of the word “cease” implies that the record is in the process of being prepared but has not yet been completed. But this timeline would seem to frustrate a conclusion that an appellate court is required to compare a certification to the record to determine if it is defective. If an appellate court can resolve defective certifications before the record is filed, it cannot possibly compare the certification to the record to determine whether it is defective.

We conclude that an appellate court has the ability to examine a certification for defectiveness, and to use Rules 37.1 and 34.5(c) to obtain another certification, whenever appropriate. Neither of those rules provide any time limitation to their use. If the court chooses to examine a certification before the record is filed, it obviously cannot compare the certification to the record. If the court chooses to examine a certification after the record is filed, it has the ability to compare the certification to the record and, in that instance, a duty to do so.

At the time of the appellate court’s ruling in this case, it had before it the clerk’s record, which reflected that Dears had a right to appeal. Therefore, the Court of Appeals was obligated to review that record in ascertaining whether the certifications were defective. The certifications state that these are plea bargain cases, but the record refutes this. Based on the record it had before it at the time of its ruling, the Court of Appeals should have concluded that these certifications were defective and acted accordingly.

Judgment

The Court of Appeals erred in dismissing these appeals for want of jurisdiction. We reverse the judgment of the Court of Appeals and remand these cases to that court for proceedings consistent with this opinion.

KELLER, P.J., filed a dissenting opinion.

JOHNSON, J., concurred in the result.

KELLER, P.J.,

filed a dissenting opinion.

The rules of appellate procedure provide for a remedy when a certification is defective, not when it is inaccurate. For inaccuracies, the remedy is usually going to be habeas corpus. Rule 25.2(d) says:

The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules.

By our very own rule, we have no choice in the matter.

The purpose of the certification requirement in Rule 25.2(d) is to efficiently sort the appealable cases from the non-appeal-able. It helps appealable cases advance through the system unhindered and intercepts non-appealable cases at an early stage. It forecloses the dismaying waste of time, money, and effort on non-appeal-able cases, and allows these resources to be devoted to legitimate appeals. The certification requirement accomplishes this task with the help of Rule 25.2(e), which requires the trial court clerk to “immediately” send a copy of the certification (and the notice of appeal) to the appropriate court of appeals. Early receipt of this information enables the courts of appeals to act quickly to dismiss appeals that are barred by Rule 25.2(a)(2), so that the clerk’s and court reporter’s records need not be prepared, counsel need not be appointed, and briefs need not be filed.

While I dissent because I disagree with the Court’s interpretation of “defective,” it is nevertheless true that equating “defective” with “inaccurate” may sometimes serve to streamline appeals, as is intended by Rule 25.2(b). This case provides such an example because here there was affirmative reason to believe the certification was incorrect. While the certification indicated that this was a plea-bargain case, the docketing statement indicated that it was not, so the Court of Appeals had reason to doubt the accuracy of the certification. It was this doubt that led to further inquiry into the case and the discovery that appellant did have the right to appeal.

The Court points out that a court of appeals can dismiss an appeal at a very early stage, when all that is before the appellate court is the notice of appeal and the certification — and perhaps the docketing statement if timely filed — and that dismissal will be upheld so long as the certification appears correct based on the limited record available at the time. I agree, but I would take this opportunity to make it clear that under Rule 25.2, there will normally be no record on appeal in cases that are not certified by the trial court as ap-pealable. Appellate courts should be able to determine from the certification alone whether a defendant has the right to appeal. In the rare cases where preparation of a record would have revealed an inaccuracy in the certification, the defendant may obtain relief by habeas corpus.

I respectfully dissent.

      . Dears v. State, Nos. 05-03-01391/2/3-CR, slip op. at 1, 2003 WL 22451057 (Tex.App.-Dallas, order delivered Oct. 13, 2003) (not designated for publication).

      . Id. at 1-2.

      . Dears v. State, Nos. 05-03-01391/2/3-CR, slip op. at 2, 2003 WL 22451057 (Tex.App.-Dallas, opinion delivered October 29, 2003) (not designated for publication).

      . Id. at 2 n. 2.

      . Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim.App.1996).

      . White v. State, 61 S.W.3d 424, 428 (Tex.Crim.App.2001).

      . Rule 25.2(c). All references to rules are to the Texas Rules of Appellate Procedure.

      . Rule 25.2(a)(2).

      . Rule 37.1.

      . Rule 34.5(c).

      . Rule 25.2(d).

      . Harris v. State, 137 S.W.3d 829, 830-31 (Tex.App.-Waco 2004, no pet.); Hargesheimer v. State, 126 S.W.3d 658, 659-60 (Tex.App.Amarillo 2004, pet. ref'd); Stowe v. State, 124 S.W.3d 228, 233 (Tex.App.-El Paso 2003, no pet.); Currier v. State, 114 S.W.3d 754, 755 (Tex.App.-Houston [1st Dist.] 2003, no pet.). See also Daniels v. State, 110 S.W.3d 174, 177 (Tex.App.-San Antonio 2003, no pet.); Teel v. State, 104 S.W.3d 266, 267 (Tex.App.-Beaumont 2003, no pet.).

      . Rule 25.2(a)(2).

      . Dears, Nos. 05-03-01391/2/3-CR, 2003 WL 22451057 (Tex.App.-Dallas, opinion delivered October 29, 2003), slip op. at 2.

      . Id.

      . Webster’s Third New International Dictionary 591 (1966).

      . Black’s Law Dictionary 342 (7th ed.2000).

      . See Daniels, 110 S.W.3d at 177.

      . Id.; Harris, 137 S.W.3d at 830-31; Hargesheimer, 126 S.W.3d at 659-60; Stowe, 124 S.W.3d at 233; Currier, 114 S.W.3d at 755; Teel, 104 S.W.3d at 267.

      . Harris, 137 S.W.3d at 830-31; Stowe, 124 S.W.3d at 233.

      . Daniels, 110 S.W.3d at 177.

      . See Rule 37.1; Rule 34.5(c)(2).

      .See TEX. R. APP. P. 37.1.

      . All references to rules are to the Texas Rules of Appellate Procedure.

      . See TEX. R. APP. P. 32.2.


author: PRICE, J., MEYERS, J., KEASLER, J.,

text:
    Tuan Anh DANG, Appellant, v. The STATE of Texas.
    No. PD-568-03.
    Court of Criminal Appeals of Texas.
    Jan. 26, 2005.

      Mike DeGeurin, Houston, for Appellant.
    Donald W. Rogers, Jr., Asst. District Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

PRICE, J.,

delivered the opinion of the Court,

in which MEYERS, JOHNSONS, HOLCOMB, and COCHRAN, JJ., joined.

The appellant was involved in a robbery and murder at his father’s machine shop when he was fifteen years old. During his trial for capital murder, several issues arose, including the voluntariness of his confession, two lesser-included offenses, the law of parties, and the law of conspiracy. At the close of the evidence during the guilt phase, the trial court limited closing arguments to twenty minutes per side. Defense counsel objected before his argument began and requested an additional three minutes when the twenty minutes was up. The appellant was found guilty of capital murder by a jury and sentenced to life imprisonment.

On direct appeal, the appellant argued that the trial court erred in limiting closing argument to twenty minutes. The Court of Appeals held that the trial court did not abuse its discretion in limiting closing argument to twenty minutes and affirmed the conviction.

We granted the appellant’s petition for discretionary review to determine whether the Court of Appeals erred in its holding. We conclude that the Court of Appeals erred in holding that the trial court did not abuse its discretion by limiting closing argument to twenty minutes and by denying defense counsel’s request for an additional three minutes.

I. FACTS

Late one evening, the victim, Binh Nguyen, was working at a machine shop owned by the appellant’s father, Son Dang. Nguyen was scheduled to work until midnight, at which point another employee, Tan Pham, would begin his shift. The customary practice for employees working the night shift was to keep the doors locked until the next employee arrived. On that particular night, when Pham arrived and knocked on the door, Nguyen did not answer. Pham saw holes around the doorknob. He looked through one of these holes and saw Nguyen lying on the floor with his head toward the door. Pham immediately went home and called the owner Son Dang. After being apprised of the situation, Dang called the police and then went to the shop with Pham to meet the police.

When Officer Kerr Richards arrived at the shop, he noticed that a side door was open and saw a body lying on the floor. After calling for an ambulance, Richards saw two Asian males, later identified as the appellant and Quynh Tran, ransacking the office. Richards also saw an Asian female, later identified as Linda Nguyen, walking in another part of the building. Concerned there might be others in the front part of the building that he could not see, Richards decided to return to his car and call for backup. As he walked to his car, Richards heard three gun shots coming from inside the building. He immediately sought cover and waited for additional support to arrive.

At this point, Dang and Pham arrived at the shop and Richards told them to wait across the street until the police had secured the scene. Within a few minutes, the shop and parking lot were secured by other officers. The police caught the appellant and Linda outside the building. Shortly thereafter, Quynh and Kenneth Tran were also captured, and they were placed in separate police cars. Sergeant G.J. Novak interviewed them about the incident. About two hours later, Novak had all four transported to the Houston Police Department homicide office.

Sergeant Ted Bloyd left the appellant in the homicide office to observe questioning of Linda and Quynh. About three hours later, Bloyd informed the appellant that he was considered a suspect. The appellant was then taken to a magistrate for administration of his legal warnings.. Then Bloyd reminded the appellant of his legal warnings and recorded the appellant’s oral statement, which was approximately ten minutes in length. Homicide officers continued to question the appellant intermittently for several hours, and then took him to a juvenile detention center. The appellant’s parents were told of his whereabouts about two hours later.

During the trial, the State offered the appellant’s statement and the testimony of other witnesses to show that, on the night of the murder, the appellant and Quynh went to rob the machine shop. Although the appellant was not armed, Quynh was carrying a nine-millimeter pistol. Nguyen recognized the appellant and let him and Quynh into the shop. After Nguyen returned to his work, Quynh handed the appellant the pistol and instructed him to shoot Nguyen because he would tell the appellant’s father that they had been there. The appellant could not bring himself to shoot Nguyen, so he engaged the safety on the gun, pulled the trigger, and told Quynh that the gun had jammed. Although firearms-identification tests indicated that Nguyen had been shot several times and with two different guns, the appellant told the police in his statement that Quynh alone shot Nguyen.

After Nguyen was killed, the appellant and Quynh quickly searched the shop for money. The only thing that they could find was his father’s nine-millimeter pistol, which they took with them. Quynh fired several shots at the side door to make it appear that someone had forcibly entered the shop. The appellant shot at the side door using his father’s gun.

The appellant and Quynh went tp their apartment to get a crowbar. At the apartment, the appellant and Quynh told Linda what had happened and Quynh called Kenneth. According to Kenneth’s testimony, Quyhn told him that they had killed someone and needed to go back to the shop. After Kenneth arrived at the apartment, Linda was crying, and the appellant was wiping down a pistol with a towel, Kenneth returned to the shop with his friends to act as a lookout while the others continued to search for money. Richards arrived while the appellant, Quynh, and Linda were continuing their search.

During the trial, and after the State and the defense had finished presenting evidence, the trial court informed counsel that closing arguments would be limited to twenty minutes for each side. Defense counsel objected and said that twenty minutes was inadequate to discuss the several ways that the State alleged that the appellant could be found guilty. Defense counsel also emphasized that this was a capital-murder case, which could result in the life imprisonment of a juvenile. The trial court noted the objection, but did not grant additional time.

Defense counsel began arguing the appellant’s case in an abbreviated manner. When the twenty-minute period had expired, the trial court immediately ended counsel’s argument. Defense counsel then requested an additional three minutes, which the trial court denied. After the State’s final argument, defense counsel repeated his request for additional time, stating that he had not been able to cover the nine ways that the State had argued that the appellant could be found guilty or to apply the law to the facts of the case. The trial court refused counsel’s request for additional time.

The appellant was found guilty of capital murder and sentenced to life imprisonment. At the hearing on the motion for new trial, defense counsel listed the specific arguments that he would have made, given additional time. The trial court denied the appellant’s motion for new trial.

On direct appeal, the appellant claimed, among other grounds for relief, that the trial court abused its discretion in limiting closing argument to twenty minutes. After analyzing the statutes and relevant case law, the Court of Appeals affirmed the appellant’s conviction.

The Court of Appeals relied on the factors listed in Bell v. State. The Court of Appeals conceded that twenty minutes for closing argument in this case presented “a challenging task even for the appellant’s very able trial counsel.” It also said that “by limiting the closing argument to just twenty minutes, the trial court came precariously close to crossing the line,” given the facts in this case. Nevertheless, the court concluded that the twenty-minute time limitation was neither arbitrary nor unreasonable and concluded that the trial court did not abuse its discretion in limiting closing argument.

II. LAW

We have held that trial courts have broad discretion in determining the length of arguments during a trial. Of course, trial courts have broad discretion in managing the course of a trial generally. However, this discretion is not limitless. For example, Rule of Evidence 611 permits a trial court broad discretion in controlling the mode and order of interrogation of witnesses and presentation of evidence. Under this rule, the scope of a trial court’s exercise of discretion is limited to that which is (1) reasonable and (2) in the pursuit of justice as well as efficiency.

The Code of Criminal Procedure does not provide much guidance to the trial courts regarding how long arguments can be. The statutory right to argue at the close of the evidence is derived by inference from Articles 36.07 and 36.08.

Article 36.07 gives broad discretion to the trial court regarding the general order of arguments with the caveat that the State has the right to present the concluding argument. Because the legislature addressed the order in which arguments should be presented, we can assume that an implicit right to closing argument exists.

Under Article 36.08, the court is prohibited from restricting arguments in felony cases to less than two on each side. This Court has interpreted this to mean that a defendant is entitled to two arguments if he is represented by more than one lawyer. If a defendant has the right to two closing arguments, then we can presume that he has the right to one closing argument.

It would be a hollow right to afford a defendant the right to have an argument without the right that he be allotted a reasonable time to make it. If a trial court were to allow a defendant, for example, a ten second argument, it would be worthless to the defendant because his counsel would not have time to address the facts and law reasonably. As a result, we conclude that the restrictions placed upon the parties by the trial court must be reasonable. So far, we have provided little guidance about how to determine what is a reasonable amount of time in any given case.

We have rarely addressed complaints by defendants that a trial court’s time limit was unreasonable. In Walker v. State and McLean v. State, we determined that the time limit set by the trial courts amounted to a constructive denial of the defendant’s right to be fully heard, and thus, constituted a basis for reversible error.

In Walker, we concluded that the time limitation set by the trial court violated the defendant’s rights as enumerated by former Article 4 of the Code of Criminal Procedure. Article 4, in its entirety, can currently be found in the Texas Code of Criminal Procedure as Article 1.05. We said that

where there are contested issues, and when contradictory and voluminous evidence requires patient and careful consideration on the part of the jury, and challenges the skill and ability of counsel to sift the false from the true, and show suspicious facts to be consistent with innocence. The accused has an undoubted right to any advantage from this source. Yet this right may be utterly destroyed if the court can arbitrarily limit argument, because in his opinion the evidence is so clear that argument can not vary it.

In McLean, we cited Walker and said that “Making into consideration the number of witnesses testifying and the conflict in the testimony, we think the court erred in placing any such limitation upon counsel.”

More recently, the lower appellate courts have followed similar factors in an opinion from the Fourth Court of Appeals, Moya v. State. In determining whether the trial court abused its discretion in placing a time limitation on closing argument, the Moya Court looked at (1) the quantity of evidence, (2) conflicts in testimony, and (3)the complexity of the issues

In addition to applying Moya, several courts of appeals have considered defense counsel’s conduct during argument to determine whether the trial court abused its discretion. For example, some courts consider whether counsel (1) objected, (2) completely used the time allotted, (3) requested additional time, (4) was cut off by the trial court, and (5) listed the issues that would be covered if given more time. All of these factors have some relevance to a reviewing court’s inquiry, though some may be more appropriate to considering whether a defendant has preserved the complaint for review or for determining whether the defendant was harmed.

We conclude that reviewing courts should consider, but are not limited to considering, the following non-exclusive list of factors on a case-by-case basis: (1) the quantity of the evidence, (2) the duration of the trial (3) conflicts in the testimony, (4) the seriousness of the offense, (5) the complexity of the case, (6) whether counsel used the time allotted efficiently, and (7) whether counsel set out what issues were not discussed because of the time limitation. We will apply these factors to this case.

III. APPLICATION

(1) Quantity of the Evidence, (2) Duration of the Trial, and (3) Conflicts in the Testimony

We will consider the first three factors together. The record indicates that eleven witnesses testified over a two-day period. The defense in this case presented only one witness to the State’s ten witnesses. However, the number alone does not indicate the number or degree of potentially existing conflicts. Here, the record indicates there were significant eviden-tiary conflicts that came up during defense counsel’s cross-examination of the State’s witnesses.

(4)Seriousness of the Offense and

(5)Complexity of the Issues

In this case, the appellant was charged with capital murder, which is, of course, a very serious offense. If found guilty, the appellant faced a life sentence. The record and briefs indicate that there were many complex legal issues. The State alleged eleven different ways that the appellant could be guilty of an offense. The charge included instructions on two lesser-included offenses, murder and felony-murder; the law of parties the law of conspiracy; and the voluntariness of the appellant’s statement. The jury deliberated for five-and-a-half hours.

(5) Efficient Use of Time

The record indicates that counsel used his time effectively during argument and did not engage in improper argument. Counsel covered relevant and contested issues from the trial and did not waste time with needless repetition.

(6) Issues That Were Not Discussed

During the motion for new trial hearing, defense counsel offered a list of topics that he would have covered if given more time. There were a number of legal theories and factual conflicts that counsel was unable to address.

The list of legal theories included (1) intentionally or knowingly causing bodily injury in the context of the lesser-included offense of robbery (2) intentionally or knowingly threatening the victim or placing the victim in fear of imminent bodily injury or death, (3) the phrase “in the course of committing theft,” (4) the portion of the definition of theft that deals with the intent to permanently deprive the owner of his property, (5) the phrase “without the owner’s effective consent,” (6) who the owner of the property was, (7) whether there was a conscious objective or desire to cause a certain result, (8) the definition of acting knowingly, (9) the definition of party liability, (10) the law of conspiracy.

The list of factual conflicts included (1) problems with the medical examiner’s testimony regarding the bullet that caused the victim’s death because the medical examiner testified incorrectly and then corrected the false impression, (2) the credibility of the officer who testified about the voluntariness of the appellant’s statement, (3) the application of the law to the facts regarding the juvenile statement, and (4) additional conflicts in the testimony of the co-defendant.

Although the trial court has considerable discretion in setting time limits to efficiently move its docket along, we conclude that the factors weigh in favor of concluding that the trial court abused its discretion in this case.

IV. CONCLUSION

We hold that the Court of Appeals erred when it concluded that the trial court did not abuse its discretion. We reverse the judgment of the Court of Appeals and remand the case to that Court for a harm analysis.

MEYERS, J., filed a concurring opinion, in which HOLCOMB and COCHRAN, JJ., joined.

WOMACK, J., concurred.

KEASLER, J., filed a dissenting opinion, in which HERVEY, J., joined.

KELLER, P.J., dissented.

MEYERS, J.,

filed a concurring opinion, in which HOLCOMB and COCHRAN, JJ., joined.

I join the majority opinion. We were asked to determine whether the trial court abused its discretion in limiting the time for argument. While I fully agree with the majority’s analysis and conclusion, I write separately to note the dissenting opinion by Justice Hudson of the court of appeals, which elaborates on the Sixth Amendment violation resulting from this abuse of discretion. Justice Hudson equates the judicially imposed time limitation on argument to a complete abrogation of the Sixth Amendment.

Everyone concedes that the accused must be permitted a full hearing where, if he chooses, he may present all relevant evidence in his defense. In this endeavor he is entitled to the assistance of counsel. Moreover, the right to be represented by counsel includes the right to fully argue the merits of his defense. How a lawyer chooses to argue may vary.
If, due to time limitations, counsel is constrained to leave off some point of fact, some logical syllogism, some emotional plea — has the defendant been afforded a full or partial hearing? If counsel must hurry his remarks and speak in an unnatural manner to meet the time restrictions, has not the judge dictated both the content of the argument and the manner of its delivery? In other words, has not the court infringed upon the defendant’s right to be fully represented by counsel? The right to counsel was “secured to the people of England, from whence we [borrowed it], by long and persistent efforts.” Dille v. State, 34 Ohio St. 617, 619 (Ohio 1878). By what authority do courts infringe upon it today? The fact that we came into possession of this liberty as a conceded right, ought not to cause us to underrate or forget its importance. Id. While the people have it within their authority to repeal the Sixth Amendment, the judiciary (even by incremental progression) do not.

Dang v. State, 99 S.W.3d 172 (Tex.App.-Houston [14th Dist.] 2002) (Hudson, J., dissenting) (footnotes omitted).

The factors enumerated by the majority provide a useful guideline for determining whether the trial court abused its discretion in limiting the time for argument and I agree that this was the proper method for deciding this case. However, I also agree with Justice Hudson that the limitations placed on counsel in this case effectively deprived Appellant of the full representation of counsel and thus infringed on his rights under the Sixth Amendment.

In concluding that the limitations placed upon counsel in this case infringed upon Appellant’s Sixth Amendment right, Justice Hudson properly referred to the Supreme Court decision in Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). In that case, the Supreme Court held that a New York statute which gave the trial court discretion to bar closing arguments in a bench trial violated a defendant’s Sixth Amendment right to assistance of counsel. Id. at 865. While noting that the trial judge “may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant ... [and he] may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial[,]” id. at 862, the Supreme Court concluded that:

It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of them adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt. The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.

Id. at 862. With these comments, I join the majority opinion.

KEASLER, J.,

filed this dissenting opinion in which HERVEY, J., joined.

Today, the majority comes to the breathtaking conclusion that a trial judge abuses his discretion in limiting closing arguments to twenty minutes in a trial where the testimony of eleven witnesses lasted a mere day and a half. Additionally, it sets out a “nonexclusive list of factors” that trial judges must henceforth consider in limiting argument. I suppose the fact that it is nonexclusive gives us leeway to whimsically add more factors later when we second guess their decisions.

The Court of Appeals correctly decided the case, but I disagree with its statement that this is a close case. It is not close at all. I think the majority could search both federal and state precedent until doomsday to find another case where an appellate court reversed a case under similar facts. Indeed, it had to go back more than one hundred ten years to find cases where we reversed a trial judge’s limitation on closing argument under any set of facts.

Our unfortunate jurisprudence with respect to jury selection has for many years tied the hands of Texas trial judges in controlling voir dire. So long as a lawyer is asking relevant, non-repetitive questions to respective jurors, he or she can go on and on indefinitely — and some do. Until today, trial judges have been free to limit final arguments with no interference from us, and they have used their discretion wisely and fairly.

Of course, a judge could abuse that discretion. It is not hard to think of outrageous facts that would require reversal. This is clearly not one of them. Judge Rains set a reasonable time to argue a 1 ½ day case.

This case will hinder trial judges in controlling the length of trials. In 1988, The National Center for State Courts conducted a year-long three-state study on trial length and management. It concluded that judges who are given the tools to control the trial and use them vigorously conduct more just, efficient, and effective trials. The tools include broad discretion in setting time limits on voir dire, opening statements, evidence presentation, and closing arguments. Like in setting time limits on voir dire, Texas trial judges now will be more reluctant to limit argument, fearing that we might reverse them for abusing their discretion. The safer practice will be to not limit lawyers at all, thereby letting them harangue the jury until they are brain dead.

It really isn’t too much to ask that a lawyer be concise. Good ones are.

About fifty years ago a preacher (whose name, despite extensive research, I have not been able to find) wrote in an article about sermons, “You can’t save souls after twenty minutes.” Twenty minutes was enough for argument in this case, too. Because the majority finds otherwise, I dissent.

      . Dang v. State, 99 S.W.3d 172 (Tex.App.-Houston [14th Dist.] 2002).

      . The voluntariness of the appellant's statement and alleged Family Code violations were presented in a pretrial motion to suppress, which the trial court denied. The appellant requested that these issues be presented to the jury. The trial court allowed a jury instruction regarding the voluntariness of the statement only.

      . There is some dispute about when the appellant's parents were informed of his arrest.

      . 768 S.W.2d 790, 803 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd) (stating that the factors to be considered to determine whether a trial court has abused its discretion in limiting defense counsel’s arguments are (1) the quantity of the evidence, (2) conflicts in the testimony, and (3) the complexity of the issues).

      . Dang, 99 S.W.3d at 190.

      . Dang, 99 S.W.3d at 191.

      . Ibid.

      . Hernandez v. State, 506 S.W.2d 884, 886 (Tex.Crim.App.1974); Robinson v. State, 415 S.W.2d 180, 182 (Tex.Crim.App.1967).

      . See generally Tex.R. Evid. 611.

      . Ibid.

      . Ibid.

      . Tex.Code Crim. Proc. art. 36.07; TexCode Crim. Proc. art. 36.08.

      . Varela v. State, 561 S.W.2d 186 (Tex.Crim.App.1978).

      . Walker v. State, 32 Tex.Crim. 175, 22 S.W. 685 (1893) (holding that it was reversible error to limit defense counsel to forty-five minutes for closing argument in a theft case).

      . McLean v. State, 32 Tex.Crim. 521, 24 S.W. 898 (1894) (holding that it was reversible error to limit defense counsel to seventeen minutes for closing argument in an adultery case).

      . Walker, 32 Tex.Crim. at 179, 22 S.W. at 686.

      . Code of Criminal Procedure Article 1.05 states
      In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself. He shall have the right of being heard by himself, or counsel, or both; shall be confronted with the witnesses against him, and shall have compulsory process for obtaining witnesses in his favor. No person shall be held to answer for a felony unless on indictment of a grand jury.

        . Walker, 32 Tex.Crim. at 179, 22 S.W. at 686.

      . McLean, 32 Tex.Crim. at 524, 24 S.W. at 898.

      . Moya v. State, 691 S.W.2d 63 (Tex.App.-San Antonio 1985) (ten minute time limit on closing argument in a felony case not an abuse of discretion).

      . Moya, 691 S.W.2d at 65.

      . Plattenburg v. State, 972 S.W.2d 913, 918 (Tex.App.-Beaumont 1998, pet. ref'd) (thirty-five minute time limitation not an abuse of discretion because counsel’s argument was not cut off by the trial court, counsel did not seek additional time after presenting the argument and counsel did not identify what issues he would have addressed to the jury given additional time); Arevalo v. State, 835 S.W.2d 701, 707 (Tex.App.-Houston [14th Dist.] 1992, no pet.) (15 minute time limit for closing argument in a narcotics case not an abuse of discretion based on Moya factors, no objection to time limit before or after argument, no additional time requested, and counsel covered all contested issues); Barajas v. State, 732 S.W.2d 727, 729 (Tex.App.-Corpus Christi 1987, pet. ref'd) (twenty minute time limitation not an abuse of discretion because counsel failed to object after presenting the argument and failed to preserve any error).

      . The dissent in the Court of Appeals’ opinion noted that the jury charge itself took 21 minutes to read and the impossible task assigned to defense counsel "to explain, apply and argue the charge in less time than that required to simply read the charge.” Dang, 99 S.W.3d at 198.

      . National Center for State Courts, On Trial, NCSC 1988.


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Kathleen PIGOTT, Appellee.
    No. 04-02-00696-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 31, 2003.
    Rehearing Overruled April 12, 2004.

      Daniel McNeel Lane, Jr., Jessica Span-gler Taylor, Jo Beth Eubanks, Akin Gump Strauss Hauer & Feld, L.L.P., San Antonio, for appellant.
    Gilbert Vara, Jr., Law Office of Gilbert Vara, Jr., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice.
   OPINION

Opinion by ALMA L. LÓPEZ, Chief Justice.

United Services Automobile Association (“USAA”) appeals the trial court’s judgment in favor of Kathleen Pigott (“Pigott”) in a lawsuit alleging that the foundation movement at Pigott’s residence was caused by plumbing leaks. USAA asserts four issues, contending: (1) Pigott’s expert, James Bradley, was not qualified to testify and his testimony was unreliable; (2) the evidence is legally and factually insufficient to support the jury’s verdict; (3) the evidence is legally and factually insufficient to support the allocation of damage caused by the plumbing leak; and (4) the trial court erred in disregarding the jury’s award of zero attorneys’ fees. We affirm the trial court’s judgment.

Background

Pigott purchased a home in San Antonio in 1980. At the time she purchased the home, an inspection revealed a drainage problem that required the installation of a French drain to alleviate the problem. In June or July of 1994, Pigott hired James Bradley to evaluate her foundation because of the cracks in her walls. Bradley concluded that the left rear corner of her home had “down warped probably from excessive moisture reducing the soil bearing capacity or consolidation of the subsoil.” To correct this problem, Pigott retained Bless Foundation to install thirteen piers to raise the foundation back to level. At the time the piers were installed, the gravel in the French drain was removed and inadvertently commingled with dirt and clay to some extent before being replaced.

In 1996, 130,000 gallons of water leaked from a water line at the southeast corner of Pigott’s home. Pigott made an insurance claim which was investigated by USAA. USAA hired G.D. Friesenhahn Plumbing Company (“Friesenhahn Plumbing”) to investigate whether any additional plumbing leaks existed. One additional plumbing leak was identified in the kitchen. Simpson Group, an engineering firm, was hired to determine if the plumbing leak was the cause of the foundation movement which was causing the walls in Pi-gott’s home to crack. Simpson Group obtained elevations and soil samples. Simpson Group concluded that the foundation movement was unrelated to the plumbing leak. Friesenhahn Plumbing recommended that the entire plumbing system be replaced because the structure of the house required the leak to be accessed from back to front and because the existing system was made out of cast iron and was deteriorating. In addition to paying to access the plumbing system, which was an expense covered by Pigott’s policy, USAA also paid for the replacement of the system, which was not a covered expense. The plumber testified that the plumbing system was in bad condition with many leaks.

In 1998, Pigott called USAA to report additional movement. USAA contacted Simpson Group to re-investigate. No plumbing leaks were found. Simpson Group again concluded that no foundation movement had resulted from plumbing leaks. In response to Pigott’s request for recommendations, Simpson Group recommended that she contact Bless Foundation for a possible warranty claim.

In January of 1999, Pigott contacted USAA when she heard water running. USAA hired Friesenhahn Plumbing, which identified a leak at an incoming water line. USAA offered to hire a different engineering company, and Pigott selected Arroyo Engineering from the list of names USAA provided to her. Testing revealed no additional plumbing leaks, and Arroyo Engineering concluded that the leak did not cause any foundation movement. In response to Pigott’s request for advice, Arroyo concluded that there was evidence that the piers were moving and recommended that she contact Bless Foundation regarding the piers.

Pigott subsequently contacted an attorney who referred her to Bradley for an independent determination of whether the plumbing leaks had caused foundation movement. Bradley concluded that the leaks had caused the movement. Pigott provided a copy of Bradley’s report to USAA. USAA sent the report to Simpson Group and Arroyo to review. Simpson Group and Arroyo both responded, disagreeing with Bradley’s conclusions.

Pigott filed a lawsuit against USAA claiming the damage to her home was covered by insurance. The case was tried to a jury. The jury found that 40% of the damage to Pigott’s home was caused by plumbing leaks and that the cost of the repairs to Pigott’s home would be $131,200. The jury also found that the reasonable fee for the services of Pigott’s attorney was as follows: (1) $0 for preparation and trial; (2) $20,000 for an appeal to the court of appeals; and (3) $10,000 for an appeal to the Texas Supreme Court. The trial court entered judgment awarding Pigott $52,480 in damages plus equitable pre-judgment interest of $30,596 and mandatory statutory interest of $55,072. The trial court also set aside the jury’s award of $0 for attorneys’ fees for preparation and trial and awarded Pigott $93,250 in attorney’s fees plus conditional appellate attorney’s fees. USAA timely filed this appeal.

Qualifications of Biiadley

USAA contends that Bradley was not qualified to testify because he was an industrial engineer, not a civil or geotech-nical engineer. USAA relies on Broders v. Heise to support its contention.

The qualification of a witness as an expert is within the trial court’s discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996). A trial court abuses its discretion if it acts without reference to guiding rules or principles. Id. The party offering the expert’s testimony bears the burden of proving that the witness is qualified under Texas Rule of Civil Procedure 702. Id. The rule requires that experts be qualified “by knowledge, skill, experience, training, or education,” and that their testimony “assist the trier of fact.” Id. at 153.

In Broders, the Texas Supreme Court addressed the effect of medical specialization as follows:

Moreover, given the increasingly specialized and technical nature of medicine, there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question. Such a rule would ignore the modern realities of medical specialization.

Id. at 152. In Broders, the Texas Supreme Court concluded that an emergency room physician was not qualified to testify regarding whether the decedent, Kathleen Heise, would have survived if her head injury had been diagnosed and treated earlier. Id. at 151. Two neurosurgeons testified that the injury was inoperable and untreatable. Id. The Texas Supreme Court reasoned, “While [the emergency room doctor] knew both that neurosurgeons should be called to treat head injuries and what treatments they could provide, he never testified that he knew, from either experience or study, the effectiveness of those treatments in general, let alone in this case.” Id. at 153. The court cautioned, however, that its holding did not “mean that only a neurosurgeon can testify about the cause in fact of death from an injury to the brain, or even that an emergency room physician could never so testify. What is required is that the offering party establish that the expert has ‘knowledge, skill, experience, training, or education’ regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.’ ” Id. at 153-54.

In this case, Bradley testified that although his degree was in industrial engineering, he practiced civil engineering in the Army for twenty years. After retiring from the Army, he worked with a home builder in analyzing and recommending changes to foundation plans. Finally, he has worked for an engineering firm conducting forensic investigations of foundations and engaging in foundation design. Bradley estimated that he had investigated approximately 6,000 foundations. He explained that he investigated foundations in connection with the sale and purchase of homes and at the request of homeowners who were experiencing problems. Bradley also investigated homes at the request of builders who were unable to sell certain homes because of problems. Furthermore, Bradley testified that he had taught courses for a few insurance companies, including USAA, to train adjusters on how to recognize homes with plumbing leaks. Finally, Bradley testified that he had experience in designing foundations and estimated that he designed approximately ten foundations a week.

Rule 702 requires that experts be qualified “by knowledge, skill, experience, training, or education.” We hold that the trial court did not abuse its discretion in concluding that Bradley was qualified based on his knowledge, experience, and training.

Reliability of BRádley’s Testimony

USAA contends that the trial court abused its discretion in admitting Bradley’s testimony because the testimony was not reliable. Because Bradley’s testimony is unreliable, USAA contends that there is no evidence to support the finding that plumbing leaks caused the foundation movement.

Whether the trial court properly admitted Bradley’s testimony is subject to an abuse of discretion standard of review. Helena Chem. Co. v. Wilkins, 18 S.W.3d 744, 752 (Tex.App.-San Antonio 2000), aff'd, 47 S.W.3d 486 (Tex.2001). In order to be admissible, Bradley’s testimony must be relevant and reliable. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995). To be reliable, Bradley’s testimony must be grounded in scientific method and procedure such that it amounts to more than subjective belief or unsupported speculation. Gammill v. Jack Williams Chev., Inc., 972 S.W.2d 713, 720 (Tex.1998).

In State Farm Lloyds v. Mireles, 63 S.W.3d 491 (Tex.App.-San Antonio 2001, no pet.), this court considered the admissibility of expert testimony on the same issue present in the instant case — testimony regarding whether foundation movement was caused by plumbing leaks. In Mireles, we concluded that the expert testimony was not amenable to a strict application of the Robinson factors. 63 S.W.3d at 499. Therefore, we apply the reliability analysis set forth in Gammill. Applying the Gammill test, the trial court abused its discretion in admitting Bradley’s testimony only if too great an analytical gap existed between the data and Bradley’s opinion or if Bradley failed to rule out other possible causes of the foundation movement. See id. at 727; Mireles, 63 S.W.3d at 494-95. The trial court was not required to determine whether Bradley’s conclusions were correct, but only whether the analysis used to reach them was reliable. Mireles, 63 S.W.3d at 494.

A.Underlying Test Data

Bradley relied on the same testing data relied on by USAA’s expert which USAA in turn relied on to deny Pigott’s claim. This court has previously upheld the admissibility of expert testimony where the expert relies on the data collected by the insurance company’s expert. See United Services Automobile Ass’n v. Gordon, 103 S.W.3d 436, 439 (Tex.App.-San Antonio 2002, no pet.); State Farm Fire & Cas. Co. v. Rodriguez, 88 S.W.3d 313, 320 (Tex.App.-San Antonio 2002, pet. denied).

B. Other Possible Causes

Bradley gave several reasons for ruling out seasonal weather changes and vegetation as a possible cause of the foundation movement, including:

(1) Bradley testified that seasonal weather changes only affected an area five to six feet from the outside beam of the home to the interior and that the manner in which Pigott’s home was constructed diminished the effect of seasonal weather changes;
(2) Seasonal cyclical moisture only affects the perimeter of the house, but Pigott’s home was damaged in the interior as well as the exterior;
(3) The escalated nature of the damage was not typical of seasonal moisture change, i.e., the damage to the house was dramatic in a relatively short period of time; and
(4) The vegetation or trees could only affect the soil about two feet deep.

C. Foundation Movement Caused by Plumbing Leaks

Unlike the testimony in Múreles in which the expert relied on foundation experience with large commercial buildings, Bradley relied on his experience in conducting over 6,000 forensic investigations on foundations. “Observations of enough [foundations] in various circumstances to show a pattern [is] enough to support [Bradley’s] opinion. But there must be some basis for the opinion offered to show its reliability.” Gammill, 212, S.W.2d at 726.

Bradley initially described where the interior stiffening beams would be located beneath Pigott’s home based on his knowledge of the design of foundations and the location of the load-bearing walls. In addition, Bradley knew the location of certain beams due to the excavation required when the plumbing was replaced. Furthermore, Bradley testified that the patterns in the elevations supported his understanding of the probable location of the beams going from east to west. Bradley testified that if water from a plumbing leak gets under a beam, the water will attempt to lift the beam which is a structural element and result in a greater amount of damage.

Bradley testified that 130,000 gallons of water, which was the approximate amount of the water that leaked in 1996, was more than double or triple the normal household use. Bradley testified that the French drain was not designed to carry away that volume of water. Bradley testified that because the French drain could not carry away that volume of water, the water would go under the beam level of the home and begin to heave the beam up, attempting to move the whole structure. The French dram’s inability to carry away that volume of water is further demonstrated by evidence showing that no water was discharging into the dry creek behind Pi-gott’s home where the French drain was designed to take the water following the 1996 leak but water was readily discharging into the creek following the 1999 leak.

Bradley testified that both the elevations and the soil samples showed that the foundation movement was attributable to a plumbing leak. The elevations taken by Simpson in 1996 show a high point in the location of the leak. The elevations also show a uniform lift, indicating that the water had leaked under a beam, which was being lifted. The elevations taken by Simpson in 2002 show that the high point had lowered, which Bradley testified was consistent with the water spreading out and diffusing the heave. Comparing the soil samples taken in 1996, 1998, and 1999, Bradley testified that the soils were increasingly wet and that the change could only be explained by plumbing leaks. Bradley explained that the soil samples went from a negative liquidity index to a positive.

Although Bradley’s testimony was contrary to the testimony of Stieben and Wall, Stieben recognized that one expert, who was well known and respected in his field, opined that a two percent increase in moisture content can cause enough swell to heave a foundation. Stieben also admitted that a four percent increase in moisture content existed in the soil samples according to the boring logs; however, Stieben testified that the difference in moisture content did not “necessarily mean the moistures have changed that much.” Stie-ben - also admitted that his report referenced another report stating that “expansive soils with a liquidity index in the range of + 0.10 to + 0.30 will tend to experience little additional swell, i.e., the material is in a fully swelled state.” Moreover, Stieben admitted that the liquidity index of one of the soil samples was + 0.13; however, Stieben discounted the reference to the other report, stating that the report was based on soil samples in Mississippi and Georgia. Wall also admitted that the soil samples showed a three percent change in moisture content.

Bradley’s testimony was grounded in his application of his engineering training to data regarding elevations and soil samples, and his testimony amounted to more than subjective belief or unsupported speculation. Although Bradley’s interpretation of the soil samples differed from Stieben and Wall, this difference in interpretation did not amount to an analytical gap. The trial court could have determined that the analysis Bradley used in reaching his conclusion was rehable given the conflicting testimony regarding the effect the percentage increase in moisture content had on the soil and whether the liquidity index of the soil samples indicated that the soil was in a swelled state. As previously noted, the trial court was not required to determine whether Bradley’s conclusions were correct, but only whether the analysis used to reach them was reliable. Míreles, 63 S.W.3d at 494. We hold that the trial court did not abuse its discretion in concluding that Bradley’s testimony was reliable.

Sufficiency

In reviewing a no evidence claim, we view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex.2002). If more than a scintilla of evidence exists, it is legally sufficient. Id. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact’s existence. Id.

In reviewing a factual insufficiency point, we consider and weigh all of the evidence in the case and reverse only if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1998). In conducting a factual sufficiency review, we must not substitute our judgment for that of the jury, even if the evidence would clearly support a different result, and the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998).

A. Causation

Because we have determined that the trial court did not abuse its discretion in finding that Bradley’s testimony was reliable, Bradley’s testimony is legally sufficient to support the causation finding. The case then became a battle of the experts, and the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See id.

In this case, the jury was presented with documented evidence of plumbing leaks at Pigott’s home. Bradley testified that almost 100 percent of the damage to Pigott’s home was caused by plumbing leaks. Bradley explained how the test data supported his opinion, and he also explained the reasons he rejected the conclusions reached by the other experts as to the cause of the damage. On the other hand, the jury was presented with contrary conclusions reached by the Simpson Group and Arroyo regarding the cause of the damage, and the testimony of Stieben who disagreed with Bradley’s interpretation of the soil samples.

In deciding what weight should be given to the testimony of the various experts, the jury was permitted to consider the questioning regarding whether the Simpson Group and Arroyo were biased in favor of the insurance companies. David Stringer, the USAA adjuster, admitted that he had heard that Arroyo was biased in favor of insurance companies. In addition, the jury was permitted to consider that Wall and Stieben did testify that the soil samples indicated a percentage increase in moisture content, which supported Bradley’s testimony, and that Stieben’s report contained background information supporting Bradley’s testimony that the liquidity index indicated that the soil samples were in a swelled state.

Although the evidence in this case would have supported a different result, we are not permitted to substitute our judgment for that of the jury. See id. Bradley’s testimony supported a finding that the damage to the home was caused, in part, by plumbing leaks, and the jury’s finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

B. 40% Allocation

In State Farm Fire & Cas. Co. v. Rodriguez, the testimony regarding the percent of damage attributable to plumbing leaks ranged from 0% to 100%. 88 S.W.3d at 322. Because the jury’s finding was within the range of the testimony presented, we upheld the jury’s finding, stating, “To hold otherwise would force a jury to accept only the exact percentage proffered by one side or the other. The jury can blend the evidence rather than relying on a single source.” Id. at 322-23.

In this case, the Simpson Group and Arroyo allocated zero percentage of the damage to plumbing leaks, while Bradley testified that 99 and 44/100 percent of the foundation movement was attributable to the plumbing leaks. Although USAA’s attorney challenged him because Bradley stated that he just used that percentage as a joke, the jury was required to evaluate Bradley’s credibility as to the percentage allocation he gave. At trial, Bradley stated that the percentage he used was just a way of saying almost 100%. Because the jury’s allocation finding was within the range of the testimony presented, it is supported by sufficient evidence.

Attorneys’ Fees

A trial court may disregard a jury’s findings and grant a motion for judgment notwithstanding the verdict when there is no evidence upon which the jury could have based its findings. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990). When reviewing a no evidence point, an appellate court is limited to reviewing only the evidence tending to support the jury’s verdict and must disregard all evidence to the contrary. Id. If more than a scintilla of evidence supports the jury finding, it must be upheld. Id. at 228. Thus, appellate courts must consider the evidence and inferences as they tend to support the verdict and not with a view toward supporting the judgment. Id.

At trial, Pigott’s attorney, Richard Bentley, testified that he had expended 373 hours in the case to date, and he charged $250 per hour. Bentley testified regarding the breakdown of his hours, and he testified that the number of hours he had expended and his fee were reasonable. Bentley also introduced an exhibit containing a breakdown of his hours. Finally, Bentley testified regarding the complexity of the case and his experience. Although Bentley was cross-examined regarding the number of hours he had expended conducting research, the cross-examination was not extensive but is limited to a single page of the voluminous reporter’s record.

USAA relies on Bentley’s testimony that he was working on a contingent fee basis to support the zero fee award. USAA asserts, “Based on this testimony, the jury was entitled to find that attorney’s fees would be the agreed upon percentage of [Pigott’s] final recovery, and to take that arrangement into account in awarding damages.” The jury, however, only awarded Pigott $131,200 in damages. Bentley’s testimony was that his fees amounted to $93,250. Furthermore, Bentley informed the jury of the effect his contingent fee arrangement should have on the jury’s findings, “So, the other aspect of the award of attorney’s fees is the reason they are allowed by statute, and under the Deceptive Trade Practices Act and the Insurance code, the intent is to make the consumer or the insured whole so that they can get compensation for their attorney and it doesn’t have to come out of their pocket. So that allows anybody, any litigant to be able to acquire quality representation. Because you can go out and hire any attorney, generally across the board, because he’s assured that if he does his job and proves up his case, and he proves up his attorney’s fees, the jury will award attorney’s fees, and that way there is compensation available for him. If that system broke down and juries wouldn’t award attorney’s fees, then people like Mrs. Pigott couldn’t get lawyers. People similarly situated couldn’t go out and hire competent legal counsel.”

We disagree that the jury was able to award zero attorneys’ fees based on the nature of the contingent fee arrangement. Although one of the factors the jury was instructed that it could consider was whether the fee is fixed or contingent on results obtained, the question asked the jury was “What is a reasonable fee for the necessary services of Mrs. Pigott’s attorney in this case, stated in dollars and cents?” There was no evidence to support a finding that there was no reasonable fee for the necessary services of Bentley. Accordingly, the trial court did not err in disregarding the jury’s award of zero attorney’s fees.

Conclusion

The trial court’s judgment is affirmed.