author: ELSA ALCALA, Justice. ELSA ALCALA, Justice.

text:
    BROOKSHIRE BROTHERS, INC., Appellant, v. Wesley SMITH, Appellee.
    No. 01-02-00677-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 13, 2004.
    Supplemental Opinion Denying Further Rehearing and En Banc Reconsideration Feb. 17, 2005.

      Curtis W. Fenley III, Warren T. McCol-lum, Fenley & Bate, L.L.P., Lufkin, TX, for Appellant.
    Alice Oliver-Parrott, Maria Teresa Ar-guindegui, Burrow & Parrott, L.L.P., Houston, TX, Reese Andrews, Nacogdo-ches, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
   OPINION ON REHEARING

ELSA ALCALA, Justice.

Appellee, Wesley Smith, has filed a motion for rehearing and a motion for rehearing en banc of our opinion on rehearing, issued on December 31, 2003. Appellant, Brookshire Brothers, Inc. (Brookshire), has filed a response to both motions. We grant rehearing, withdraw our opinion of December 31, 2003, issue this opinion in its stead, and vacate our judgment of December 31, 2003. Accordingly, we deny the motion for rehearing en banc as moot.

In this chemical-exposure case, Brookshire appeals a jury verdict rendered in favor of appellee, Wesley Smith, for injuries Smith claims that he sustained when he was exposed to commercial cleaning products while employed by Brookshire. The jury awarded Smith $46,000 in actual damages and $250,000 in punitive damages, but the trial court reduced the punitive-damages award to $200,000. See Tex. Civ. Prac. & Rem.Code Ann. § 41.008 (Vernon Supp.2004). In seven issues, Brook-shire challenges the legal sufficiency of Smith’s causation evidence, the admissibility of that evidence, and the jury’s finding of malice. We reach only the legal-sufficiency issue and reverse and render judgment that Smith take nothing.

Background

In September 1995, Smith was employed as a general maintenance worker at a Brookshire grocery store. During an evening shift, Doug Kranzler, Smith’s immediate supervisor, directed Smith to clean the walls and vents of the store’s bakery. Kranzler provided Smith with several commercial cleaners, including Clorox Liquid Bleach, Easy-Off Oven Cleaner, Lime-AWay, Scrubbing Bubbles, and Clorox Formula 409. After Smith began applying the commercial cleaners in the bakery, he experienced irritation to his eyes, skin, nose, and throat. Smith complained to Kranzler about the irritation and asked for protective gear to wear while cleaning the bakery. Kranzler informed Smith that protective gear was not available and directed Smith to complete his work. Despite persistent irritation, Smith continued cleaning the bakery.

On the following evening, Kranzler again directed Smith to use the same combination of commercial cleaners to clean the store’s bathroom. Kranzler did not provide Smith with any protective gear, and Smith experienced the same irritations as those of the previous evening. Smith left at the end of his shift, feeling ill. Smith’s parents, concerned about his condition, took him for emergency-room treatment. Smith was diagnosed with reactive airways dysfunction syndrome (RADS), an asthmatic condition that impairs breathing and oxygen flow.

Smith sued Brookshire for personal injuries, alleging that Brookshire’s negligence and failure to provide a reasonably safe workplace proximately caused his RADS. At trial, Smith presented excerpts of the deposition testimony of Gary Friedman, M.D., a board-certified specialist in pulmonary disease and internal medicine, as his sole evidence of causation. Dr. Friedman testified that the September 1995 chemical exposure proximately caused Smith to suffer from either RADS or a similar asthmatic condition. Dr. Friedman based his opinion on material safety data sheets (MSDS), the commercial cleaners’ warning labels, Smith’s medical records, and Smith’s personal account of his exposure to commercial cleaners on the evenings in question. The MSDS and warning labels identified the contents of the commercial cleaners and the health hazards associated with each. Dr. Friedman clarified, however, that he was not an expert in chemistry. He did not know which commercial cleaner, or combination of cleaners, caused Smith’s RADS and did not know the amount of chemical concentration to which Smith had been exposed. At no point did Dr. Friedman refer to any scientific literature associating RADS with commercial cleaners.

Causation and Chemical Exposure

In its fifth issue, which is dispositive of this appeal, Brookshire contends that the evidence was legally insufficient to prove that Smith’s RADS resulted from chemical exposure. This issue requires us to decide whether the causation evidence Dr. Friedman offered was scientifically reliable and thus more than a scintilla of evidence to support the judgment in Smith’s favor.

A. Preservation of Error

As a preliminary matter, we address Smith’s contention that Brookshire did not preserve error. “To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered.” Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 251 (2004) (quoting Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.1998)). An objection made after the jury has returned its verdict comes too late. Id. (quoting same). The purpose of the timeliness requirement is twofold: to allow the offering party “an opportunity to cure any defect” and to prevent “trial and appeal by ambush.” Id. (quoting same).

In Kerr-McGee Corporation, the expert testimony of Michael Riley was the only evidence offered on the amount of damages for breach of an implied covenant to protect a leasehold. 133 S.W.3d at 247. After cross-examining Riley, Kerr-McGee objected and moved to strike the testimony as unreliable. Id. The trial court overruled the motion and entered judgment on the jury verdict, and the court of appeals affirmed. Id. On Kerr-McGee’s petition for review, the supreme court concluded that Riley’s expert testimony was unreliable and, therefore, no evidence. As here, the responding party argued that Kerr-McGee did not timely object and therefore had not preserved error. See id. at 251, 133 S.W.3d at 250-51. The supreme court held that Kerr-McGee preserved error, as required by Maritime Overseas v. Ellis, by objecting to Riley’s testimony immediately after cross-examining him. Kerr-McGee Corp., 133 S.W.3d at 252.

Before trial began, Brookshire moved to strike Dr. Friedman’s testimony on the grounds that it was scientifically unreliable. The trial court considered this motion at a pretrial hearing and overruled Brook-shire’s objection. Dr. Friedman testified at trial through excerpts of his deposition read into the record. Before his testimony was offered, the trial court ruled on the objections that Brookshire had made during the deposition and thus clarified which excerpts would come into evidence. As Dr. Friedman’s deposition testimony was presented, Brookshire objected again to Dr. Friedman’s testimony, as follows: “[H]e is not qualified based on Daubert-Havner. He does not know the chemical concentrations and does not know the chemicals and does not know the exposures. His testimony is based on MSDS sheets, which is improper scientific evidence.” Brookshire’s objection occurred just before the portion of Dr. Friedman’s testimony in which he referred to MSDS sheets. The trial court overruled Brook-shire’s objection, noting, ‘Tour objection is overruled. You have it on the record.”

We conclude that Brookshire complied with the timeliness requirements of Maritime Overseas v. Ellis by moving to strike and exclude Dr. Friedman’s testimony, both before trial began and during trial, on the grounds that his expert testimony was not reliable. There was no trial by ambush, and there has been no appeal by ambush. See Kerr-McGee Corp., 133 S.W.3d at 251.

B. Standard of Review

Brookshire’s burden on appeal is to demonstrate that there is no evidence to support the adverse judgment in favor of Smith. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In determining whether there is no evidence of probative force to support a jury’s finding, we consider the evidence in the light most favorable to the verdict and indulge every reasonable inference in the prevailing party’s favor. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). We will sustain a no-evidence point when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Id. More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id.

To establish causation in a personal-injury suit, a plaintiff must prove that the defendant’s conduct caused an event and that this event caused the plaintiff to suffer compensable injuries. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 603 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). When a lay person’s general experience and common sense will not enable that person to determine causation, expert testimony is required. Coastal Tankships, 87 S.W.3d at 603. Expert testimony is particularly necessary in chemical-exposure cases, in which medically complex diseases and causal ambiguities compound the need for expert testimony. See id.; see also Hernandez v. Tex. Employers’ Ins. Ass’n, 783 S.W.2d 250, 252-53 (Tex.App.-Corpus Christi 1989, no writ) (holding that expert testimony needed to determine cause of asthma, which had uncertain causal nature).

Expert testimony must be reliable; otherwise, it is not evidence. See Havner, 953 S.W.2d at 712-13; Coastal Tankships, 87 S.W.3d at 610. An expert’s bare opinion will not suffice. Havner, 953 S.W.2d at 711. We review an expert’s testimony in its entirety and will not accept the expert’s opinion as some evidence merely because the expert used “magic words.” Id. Expert testimony that is not based on reasonable medical probability, but relies instead on possibility, speculation, or surmise, does not assist the jury and cannot support a judgment. See id. at 712.

Much like toxic-tort plaintiffs, chemical-exposure plaintiffs must prove both general and specific causation. See Havner, 953 S.W.2d at 714; Coastal Tankships, 87 S.W.3d at 602. General causation asks whether a substance is capable of causing a particular injury in the general population; specific causation asks whether that substance caused a particular individual’s injury. Id. Proving one type of causation does not necessarily prove the other, and logic dictates that both are needed for a chemical-exposure plaintiff to prevail. Id.; Minn. Mining & Mfg. Co. v. Atterbury, 978 S.W.2d 188, 199-200 (Tex.App.-Texarkana 1998, pet. denied).

C. Dr. Friedman’s Testimony

Smith contends that Dr. Friedman based his causation opinion on (1) specialized training and experience, (2) Smith’s medical records and his account of the exposure in question, (3) the MSDS and the commercial cleaners’ warning labels, and (4) “other peer review articles.” After reviewing Dr. Friedman’s testimony in its entirety, we conclude that his testimony cannot support the judgment in Smith’s favor because Dr. Friedman’s opinion does not provide scientifically rehable proof of general causation.

Dr. Friedman did not present a scientific foundation regarding general causation, as required by Havner. See id. at 714. Specifically, Dr. Friedman did not refer to a single epidemiological study or scientific article to prove that exposure to commercial cleaners can cause RADS. Although Dr. Friedman testified that Lime-A-Way decomposes into a toxin “known to cause RADS,” he did not substantiate that conclusion with any scientific evidence. Rather, without presenting a scientific basis for general causation, Dr. Friedman opined that Smith’s exposure to toxins in the commercial cleaners, as identified in the MSDS and warning labels, caused either RADS or a similar asthmatic condition. A jury may not presume general causation, however. See Coastal Tankships, 87 S.W.3d at 610-11. The absence of any general-causation evidence, combined with the absence of rehable scientific literature, creates a fatal evidentiary gap in Smith’s claim. See id.; see also Havner, 953 S.W.2d at 712 (citing Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir.1996) (an expert who supplies nothing but a bottom line supphes nothing of value to the judicial process)).

1. Specialized Training and Experience

Although Dr. Friedman is an accomphshed physician with extensive training and expertise, the controlling issue is not the adequacy of his qualifications but whether his opinion testimony was scientifically rehable. No matter how qualified an expert is, his opinion must still demonstrate scientific indicia that evidences reasonable medical probability before the opinion can be accorded evidentia-ry value. See Havner, 953 S.W.2d at 712. Without a scientific indicia of reliability, the expert’s opinion is mere speculation. See id. To the extent that Smith argues that Dr. Friedman relied on his own education, training, and expertise in forming his opinion, therefore, Smith’s argument relates only to Dr. Friedman’s qualifications and does not address rehability.

2. Smith’s Medical Records and Personal Account of the Exposure

Smith contends that Dr. Friedman’s testimony regarding Smith’s medical records and his personal account of the exposure in question sufficiently demonstrated scientific reliability. The excerpts of Dr. Friedman’s deposition testimony that Smith read to the jury, however, did not connect Smith’s medical records or his personal account of the exposure with a scientific showing of general causation. Dr. Friedman’s testimony regarding the medical records related to the type and extent of Smith’s injury without offering a scientific insight into the general causes of Smith’s condition. Smith attempts to substantiate Dr. Friedman’s causation opinion by emphasizing portions of Dr. Friedman’s testimony that do not relate to general causation. There was no showing at trial that Smith’s medical records addressed whether the commercial cleaners at issue were generally capable of causing RADS. To prove general causation, Dr. Friedman needed to put forth a scientific foundation. See id. at 719.

3. MSDS and Warning Labels

The record shows that Dr. Friedman based his causation opinion on the MSDS and the warning labels of the commercial cleaners Smith used. Dr. Friedman’s extensive rebanee on the MSDS and warning labels was nevertheless insufficient because neither the MSDS nor the warning labels, standing alone, provide the type of specific, detailed showing of scientific reha-bility required to accord evidentiary value to an expert’s opinion. See Coastal Tankships, 87 S.W.3d at 611 (holding that medical records, discharge summaries, and MSDS were insufficient to establish scientific reliability); Moore v. Ashland Chem., Inc., 151 F.3d 269, 278 (5th Cir.1998) (noting that MSDS have limited value in determining causation because of lack of evidence showing what tests were conducted in compiling MSDS). Smith is correct in asserting that the MSDS and the warning labels identified particular toxins in the commercial cleaners. Lime-A-Way’s MSDS and warning label, for example, identified asthma or RADS as a potential injury that could result from high levels of exposure. But the MSDS and warning labels did not demonstrate, scientifically, that the particular toxins at issue generally cause RADS. See Moore, 151 F.3d at 278; Coastal Tankships, 87 S.W.3d at 611. There was no evidence produced at trial that discussed the scientific foundation used in formulating the conclusions contained in either the MSDS or the warning labels. Thus, even with the MSDS and warning labels, an evidentiary void concerning general causation remained in Dr. Friedman’s opinion. This void could have been remedied only by an established, scientific connection between the commercial cleaners and RADS. See Moore, 151 F.3d at 278.

4. “Other Peer Review Articles ”

Smith argues that Dr. Friedman established the necessary scientific connection when he testified regarding “other peer review articles,” including an article by Arch Carson, M.D., before providing the causation opinion. Although Dr. Friedman briefly answered a question regarding Dr. Carson’s article, Dr. Friedman mentioned the article only in passing and never referred to it for the proposition that the commercial cleaners at issue generally cause RADS. In addition, although he discussed MSDS extensively, Dr. Friedman did not discuss Dr. Carson’s article in his causation report. The record does not, therefore, support Smith’s assertion that Dr. Friedman relied on Dr. Carson’s article in forming an opinion regarding general causation.

As to any “other peer review articles,” the only other article to which Dr. Friedman referred during his testimony was an article published in the American Review of Respiratory Disease. This article outlines the American Thoracic Society’s guidelines on the evaluation of asthma impairment and disability, but is apparently a diagnosis guide that is unrelated to causation. There was no testimony at trial that referenced the article as scientific evidence of general causation. Contrary to Smith’s contention, the article appears irrelevant to the issue of general causation.

Conclusion

In sum, the excerpts of Dr. Friedman’s deposition testimony that Smith read to the jury did not present a general-causation opinion based on reasonable medical probability. Dr. Friedman provided no scientific support for his theory that Smith’s exposure to the commercial cleaners in question was capable of causing RADS. The analytical gap between Dr. Friedman’s causation opinion and the scientific data advanced to support that opinion was simply too wide. See Moore, 151 F.3d at 279. Because Smith’s causation expert provided opinion testimony that was mere conjecture and, therefore, not evidence, we hold that no scientifically reliable evidence supports the jury’s verdict in favor of Smith. See Havner, 953 S.W.2d at 712.

We sustain issue five. We need not address Smith’s remaining issues.

We reverse the judgment of the trial court and render judgment that Smith take nothing.

SUPPLEMENTAL OPINION ON MOTIONS FOR FURTHER REHEARING AND FOR EN BANC RECONSIDERATION

ELSA ALCALA, Justice.

Appellee, Wesley Smith (Smith), has challenged our opinion issued on rehearing on May 13, 2004 by filing a “Motion for Rehearing En Banc.” We construed Smith’s motion as requesting both further rehearing and en banc reconsideration. We have denied further rehearing, and the en banc Court has voted to deny en banc reconsideration.

We issue this supplement to our opinion of May 13, 2004 to (1) explain the settled practice that this Court follows when a party timely files both a motion for rehearing or further rehearing and a motion for en banc reconsideration, as we described that practice in Butler v. State, 6 S.W.3d 636, 637 n. 1 (Tex.App.-Houston [1st Dist.] 1999, pet. ref’d), and thus clarify that (2) the Butler practice applies in civil cases.

Procedural Background

This Court has issued three opinions in this case — an original opinion, issued on July 31, 2003, and two opinions on rehearing, issued on December 31, 2003 and May 13, 2004. Smith challenged each of these by filing a single motion in which he requested both rehearing by the original panel of justices who decided the case and reconsideration by the en banc Court. Appellant, Brookshire Brothers, Inc., responded to all three motions. The Court has applied the same procedural practice to each of Smith’s challenges to the three opinions. The panel of justices who heard the ease has twice granted Smith’s motions for rehearing by issuing a new opinion and judgment. These issued on December 31, 2003 to replace the July 31, 2003 opinion and judgment, and on May 13, 2004 to replace the December 31, 2003 opinion and judgment. Smith’s motions for en banc reconsideration of the July 31, 2003 and December 31, 2003 opinions were rendered moot when the original panel granted rehearing.

After we issued our May 13, 2004 opinion on rehearing, Smith timely filed a “Motion for Rehearing en Banc.” We construed that motion as requesting both further rehearing and en banc reconsideration. The justices who participated in the May 13, 2004 panel opinion considered Smith’s motion, to the extent that it constituted a motion for further rehearing, but concluded that it had no merit. Smith’s motion was then presented to the en banc Court, which voted to deny en banc reconsideration.

Discussion

A motion for rehearing differs from and serves a different purpose than a motion for en banc reconsideration. For example, stricter time limits govern the motion for rehearing than govern the motion for en banc reconsideration. Compare Tex.R.App. P. 49.1 (must file motion for rehearing within 15 days after court-of-appeals judgment is rendered) with Tex.R.App. P. 49.7 (may file motion for en banc reconsideration while court of appeals has plenary jurisdiction); see also Tex.R.App. P. 19.1 (plenary power of court of appeals expires 60 days after judgment if no timely filed motion to extend time or motion for rehearing is then pending); Tex.R.App. P. 41.2(c) (stating that en banc reconsideration is disfavored and listing standards); Tex.R.App. P. 49.7 (reconsideration en banc suspends finality of panel’s judgment or order).

Whether seeking rehearing, pursuant to rule 49.1, or further rehearing, pursuant to rule 49.5, a party’s sole purpose is to convince the panel of justices who considered the case to change the decision because it was erroneous—for whatever reason. See Tex.R.App. P. 49.1, 49.5; see also Tex.R.App. P. 49.3 (authorizing majority of justices who participated in the case to grant rehearing). In contrast, en banc reconsideration is limited to situations in which (1) en banc reconsideration is necessary to secure or maintain uniformity of the Court’s decisions or (2) extraordinary circumstances require en banc consideration. See Tex.R.App. P. 41.2(c).

Smith’s “Motion for Rehearing en Banc” begins by arguing that extraordinary circumstances require en banc consideration of this case and thus invokes one of the standards of rule 41.2(c). See id. The arguments in the motion, however, repeatedly assert that “the panel opinion is wrong.” The substance of the motion thus concerns matters pertinent to motions for further rehearing under rule 49.5 and matters concerning rule 41.2(e).

When a party timely files both a motion for rehearing or further rehearing and a motion for en banc reconsideration, it has long been the practice of this Court to present the motion for rehearing or further rehearing to the original panel of justices who heard the case; if the panel denies rehearing or further rehearing, as here, the motion for en banc reconsideration is then presented to the en banc Court. See Butler v. State, 6 S.W.3d 636, 637 & n. 1 (Tex.App.-Houston [1st Dist.] 1999, pet. ref’d); see also Barker v. Eckman, No. 01-01-00079-CV, slip op. at 2, 2004 WL 163462 at *1 (Tex.App.-Houston [1st Dist.] Jan. 22, 2004, pet. granted) (mem. opinion on rehearing; citing Butler for discussion of treatment of motions for en banc consideration).

Having considered the merits of Smith’s “motion for rehearing en banc,” we deny the motion to the extent that it constituted a further motion for rehearing under rule 49.5. See Tex.R.App. P. 49.5. On presentation of Smith’s request for en banc reconsideration, the en banc Court denied reconsideration en banc. See Tex.R.App. P. 49.7.

Conclusion

We deny further rehearing.

En banc reconsideration was requested. No majority of the en banc Court having voted for reconsideration, en banc reconsideration is denied.

      . See Giesberg v. State, 945 S.W.2d 120, 131 n. 3 (Tex.App.-Houston [1st Dist.] 1996), aff’d, 984 S.W.2d 245 (Tex.Crim.App.1998).

      . Smith also presented the testimony of Smith's treating physician, G.W. Dahlberg, M.D., and an industrial-hygiene expert, Vernon E. Rose, Ph.D. Dr. Dahlberg testified that Smith suffered from RADS. Dr. Rose testified that Brookshire failed to provide Smith with a reasonably safe workplace and that this failure constituted malice. Neither Dr. Dahlberg nor Dr. Rose testified that Smith’s exposure to the commercial cleaners caused RADS, and Smith concedes on appeal that neither doctor "was called to testify ... [regarding] causation.” Thus, we evaluate Dr. Friedman's testimony as Smith’s sole evidence of causation.

      . Although Brookshire captioned its motion as a "Motion in Limine to Exclude Expert Witnesses,” both the motion and the reporter's record show that the purpose of the motion was to bar Dr. Friedman from testifying. Indeed, Smith’s trial counsel referred to Brookshire's pretrial motion as seeking that result.

      . The following non-exclusive factors may be considered in determining reliability: (1) the extent to which the expert's theory has been or can be tested; (2) the extent to which the expert’s technique relies upon his own subjective interpretation; (3) whether the expert’s theory has been subjected to peer review and publication; (4) the potential rate of error of the theory; (5) whether the expert’s theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses that have been made of the expert’s theory or technique. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995).

      . A plaintiff may not be able to offer direct, reliable evidence of specific causation. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 715 (Tex.1997). A plaintiff may, however, be able to prove specific causation circumstantially by offering general-causation evidence, such as epidemiological studies, and by showing similarities between himself and the studies’ subjects. Id. at 720; Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 603 n. 21 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).

      . The medical records were obtained from Smith’s treating physicians, G.W. Dahlberg, M.D., C. Wayne Lawrence, Ph.D., and Richard Jackson, M.D. Dr. Dahlberg and Dr. Jackson treated Smith for RADS during the time leading up to trial, and Dr. Lawrence treated Smith for anxiety.

      . In contending that Dr. Friedman's reliance on the MSDS provided an adequate scientific basis for general causation, Smith relies on Curtis v. M & S Petroleum, 174 F.3d 661 (5th Cir.1999). In Curtis, however, the expert cited several scientific studies in support of his premise regarding general causation. See id. at 669. The court noted that "both scientific literature and strong circumstantial evidence support the causal connection.” Id. at 670. Curtis did not, as Smith contends, reject Moore’s holding that, in the absence of an established scientific connection between the chemical exposure and illness, MSDS are insufficient to show reliability. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 278 (5th Cir.1998). In this case, because Dr. Friedman did not establish a scientific connection between Smith’s exposure to commercial cleaners and RADS, his reliance on MSDS was not sufficient to place evidentiary value on his causation opinion. See Havner, 953 S.W.2d at 712-13 (holding that expert testimony that is not reliable is not evidence).

      . At one point during the testimony, Smith asked Dr. Friedman the following question regarding plaintiff's exhibit 19:
      Smith’s Counsel: No. 19, this is an article that was written by Dr. Carson, along with a coauthor; and it indicates, I believe, that one of the determinants of injury, and I turn your attention to page 519, it says, “Determinants of injury.” And it says, "Toxic factors.” Is one of those factors, Dr. Friedman, the duration of exposure?
      Dr. Friedman: Yes.

      . The Rules of Appellate Procedure contain no provisions for "rehearing en banc.” See Tex.R.App. P. 49.7 (En Banc Reconsideration).

      . See Hartrick v. Great Am. Lloyds Inc. Co., 62 S.W.3d 270, 272 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (opinion on rehearing; citing Giesberg v. State, 945 S.W.2d 120, 131 n. 3 (Tex.App.-Houston [1st Dist.] 1997) (opinion on rehearing), aff’d, 984 S.W.2d 245 (Tex.Crim.App.1998)).

      . Thus, a party who does not timely file a motion for rehearing or timely move for an extension of time to file a motion for rehearing, pursuant to rule 49.8, is limited to seeking en banc reconsideration within the period of the appellate court’s plenary power. See Tex.R.App. P. 19.1(a), 49.7, 49.8.

      . If the panel grants rehearing, however, as occurred here twice previously, then the “Motion for Rehearing En Banc” is rendered moot. See Hartrick, 62 S.W.3d at 272 (citing Giesberg, 945 S.W.2d at 131 n. 3).


source: Caselaw Access Project

author: TAFT, Justice.

license: Public Domain

text:
    William JOHNSTON and Nancy Johnston, Appellants, v. Mary BENNETT, Carlton Phillips, Connie Phillips, David Shain, and Heather R. Shain, Appellees.
    No. 01-03-00307-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 3, 2004.
    Rehearing Overruled Aug. 6, 2004.

      William Johnston, League City, pro se.
    R. Dwayne Danner, Irving, William H. Morgan, Larry E. Meyer, McCormick, Hancock & Newton, Houston, for Appel-lees.
    Panel consists of Justices TAFT, HANKS, and HIGLEY.
   OPINION

TAFT, Justice.

Appellants, William and Nancy Johnston (the Johnstons), sued appellees, Mary Bennett, Carlton and Connie Phillips (the Phillipses), and David and Heather R. Shain (the Shams), to quiet title to real property located in Galveston County. The Internal Revenue Service (IRS) had seized the property from the Johnstons because they had failed to pay taxes, and the IRS had later sold the property at a foreclosure sale. Appellees were subsequent owners of the property. The Johnstons asserted that they were entitled to a summary judgment on their claim due to the IRS’s failure to comply with various provisions in the statute regarding seizure and sale of the property. Appellees moved for summary judgment based on the three- and five-year adverse-possession statutes. The trial court granted appellees’ summary judgment motion and denied the John-stons’ motion. We determine whether the trial court erred in its summary judgment rulings. We affirm.

Factual and Procedural History

On January 14, 1995, IRS Revenue Officer Laura Williamson seized the property from the Johnstons for their failure to pay taxes. On March 21, 1995, the IRS gave notice that a sealed bid sale would take place on April 11, 1995. The IRS postponed the sale on the date that it had been scheduled and served a second notice of sale on November 22, 1995. John and Mary Bennett purchased the property at the sale on December 12,1995.

On June 11, 1996, after the 180-day redemption period mandated by Section 6337 of the Internal Revenue Code had expired, the Bennetts received a quitclaim deed to the property and recorded it in the Galveston County real property records the next day. The Bennetts subsequently conveyed the property to the Phillipses on June 17, 1997. On April 12, 2001, the Phillipses conveyed the property to the Shains.

The Johnstons filed them quiet-title claim against appellees on March 30, 2001. The trial court ordered that the United States be added as a party to represent the IRS. The United States removed the cause to federal court and moved for summary judgment against the Johnstons. The federal district court granted summary judgment in favor of the United States after having found that the United States no longer had an interest in the property and that, therefore, waiver of sovereign immunity did not extend to the cause. That court then remanded the remaining claims to the state court, which granted summary judgment in favor of appellees and denied the Johnstons’ summary judgment motion without specifying the grounds on which it ruled. It is from those state court orders that the Johnstons now appeal.

Standard of Review and Burden of Proof

Both parties moved for traditional summary judgment under Texas Rule of Civil Procedure 166a(c). See TEX. R. CIV. P. 166a(c). Summary judgment is proper when a movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiffs causes of action or if the defendant conclusively establishes all elements of an affirmative defense. Id.

In reviewing the granting of a motion for summary judgment, we consider as true all the evidence that favors the non-movant. Watts v. Hermann Hosp., 962 S.W.2d 102, 104 (Tex.App.—Houston [1st Dist.] 1997, no pet.). We indulge every reasonable inference in favor of the non-movant and resolve all reasonable doubts in its favor. Cont’l Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988); Watts, 962 S.W.2d at 104. When both sides move for summary judgment and the trial court grants one motion and denies the other, we can consider both motions, their evidence, and their issues and may render the judgment that the trial court should have rendered. See CU Lloyd’s of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex.1998). When an order granting summary judgment does not specify the grounds upon which the trial court ruled, we must affirm to the extent that any of the summary judgment grounds is meritorious. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

Validity of Tax Sale

In their second point of error, the John-stons assert that the trial court erred by denying their summary judgment motion claiming that the quitclaim deed issued by the IRS was void because the IRS did not strictly comply with the applicable statutes governing seizure and sale of the property.

The Johnstons contend that, according to the Internal Revenue Code, the IRS failed to sell the property in a timely fashion and in the correct county after it was seized or to return the property to them after the postponement of the first sealed bid sale. See 26 U.S.C.S. § 6335(d), (e) (2003) (establishing procedures for manner of sale of seized property). As a result of the IRS’s failure to comply with the statute, the Johnstons argue that the sale of the property was void. Because the Johnstons moved for a summary judgment on this issue, they must prove that they are entitled to prevail as a matter of law. See Johnson, 891 S.W.2d at 644.

The record indicates that the IRS gave notice beginning on March 21, 1995 that a sealed bid sale was scheduled for April 11, 1995 in Houston, Texas. The sale was then postponed on April 11. Appellants received a second notice of sale on November 22, 1995. The property was sold to the Bennetts at the sealed bid sale on December 12, 1995 in Houston, and the Bennetts received a certificate of sale. After the 180-day redemption period had expired, a quitclaim deed was issued to Mary Bennett on June 11, 1996, which deed she recorded the next day.

The procedures for seizure of land mandated by section 6335 must be strictly construed. See Reece v. Scoggins, 506 F.2d 967, 971-72 (5th Cir.1975). It is clear that the IRS sold the property in Harris County, not Galveston County, where the property was located. The sale also occurred nearly nine months after the IRS had given initial notice of sale, which was well beyond the limit of 40 days, plus a possible one-month adjournment, allowed under section 6335. In addition, the property was not released to the Johnstons following the postponement of the first sale. Although these actions may not have complied with the Internal Revenue Code’s procedures for selling the property, the law is well settled that noncompliance with section 6335 causes the sale to be voidable at the option of the taxpayer and not void. See, e.g., Reece, 506 F.2d at 970 (holding that failure of IRS to provide statutory notice of sale caused sale to be “voidable ab initio”); Johnson v. Gartlan, 470 F.2d 1104, 1106 (4th Cir.1973) (holding that, although IRS failed to comply with procedures of section 6335, tax sale was valid due to ratification by taxpayer); Koby v. United States, 47 Fed. Cl. 99, 105 (2000) (holding that IRS’s failure to comply with seizure and sale provisions of section 6335 renders tax sales voidable at taxpayer’s option, rather than void as matter of law); DRWSEA, Inc. v. Trinity Meadows Prop., Inc., 132 S.W.3d 467, 469 (Tex.App.-Eastland 2003, pet. denied) (mem.op.) (asserting that “a sale is not void because of noncompliance with the provisions of section 6335, but it is voidable by the taxpayer”).

Appellants rely primarily on two cases to support them position that the failure to follow section 6335 results in a void sale. However, these cases did not hold that any sales were void. See Dziura v. United States, 168 F.3d 581, 583 (1st Cir.1999), Anderson v. United States, 44 F.3d 795, 797 (9th Cir.1995). In Dziura, the court held that, even though the IRS had held the property longer than was permitted by section 6335 after the notice of the first sale and had sold the property at a subsequent sale, the Dziuras were not entitled to the property because the applicable statute of limitations had run. See Dziura, 168 F.3d at 583. In Anderson, the court asserted that the IRS had violated section 6335 by failing to release property to the taxpayer after it was not sold at the original tax sale. See Anderson, 44 F.3d at 797. However, there had not been a successful sale of the property in that case; the Andersens filed suit against the IRS prior to the second attempted sale. See id. Therefore, it was unnecessary for that court to determine whether any sale was void or voidable. Consequently, these cases do not support the Johnstons’ position.

The Johnstons also urge this Court to hold that, for the purposes of characterizing an action in violation of section 6335, the terms voidable and void are both intended to mean only void. Appellants cite no law to support their argument. On the contrary, it is clear that courts have considered the difference between void sales and voidable sales when ruling on section 6335 violations. See Koby, 47 Fed. Cl. at 104-05 (holding that IRS’s failure to comply with seizure and sale provisions of section 6335 renders tax sales voidable at taxpayer’s option, rather than void as matter of law); DRWSEA, 132 S.W.3d at 469 (asserting that “a sale is not void because of noncompliance with the provisions of Section 6335, but it is voidable by the taxpayer”). Accordingly, we hold that the failure of the IRS to comply strictly with the provisions for seizure and sale of the property under section 6335 resulted in a sale that was voidable at the option of the Johnstons, and not void as a matter of law.

The Johnstons thus failed to prove as a matter of law that the quitclaim deed issued by the IRS was void. The trial court did not err in denying the Johnstons’ motion for summary judgment.

We overrule the Johnstons’ second point of error.

Adverse Possession

In the Johnstons’ first point of error, they assert that the trial court erred by granting summary judgment in favor of appellees because appellees did not prove that they adversely possessed the property as a matter of law.

Appellees moved for summary judgment based on the three- and five-year limitations statutes. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 16.024, 16.025 (Vernon 2002). In order to prevail on summary judgment, appellees were required to prove their adverse-possession claim as a matter of law. Johnson, 891 S.W.2d at 644.

Under section 16.024, “[a] person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues.” Id. § 16.024. Adverse possession requires “actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” Id. § 16.021(1) (Vernon 2002). ‘“Peaceable possession’ means possession of real property that is continuous and is not interrupted by an adverse suit to recover the property.” Id. § 16.021(3). In order to prove adverse possession under the three-year statute, appellees were also required to prove that possession was under title or color of title.

Appellants have provided uncontroverted proof that the Bennetts received a quitclaim deed to the property on June 11, 1996 and that the Bennetts then transferred the property to the Phillipses by warranty deed on June 13, 1997. The evidence shows that the Phillipses lived on the property until they sold it, by warranty deed, to the Shains on April 12, 2001. The Johnstons argue that appellees failed to prove adverse possession because the title from the IRS to the Bennetts was void and because there was not sufficient proof that the Bennetts adversely possessed the property.

It is true that title cannot be conveyed for purposes of adverse possession by a void deed. See Field Measurement Serv. v. Ives, 609 S.W.2d 615, 620 (Tex.Civ.App.-Corpus Christi 1980, writ ref’d n.r.e.) (holding that void deed is neither title nor color of title). However, we have already held that the deed from the IRS to the Bennetts was not void, but voidable. As a result, the IRS did have the power to convey legal title to the Bennetts, subject to the Johnstons’ right to have the deed set aside within the applicable statute of limitations by proof that the sale of the property was iinproperly made. See Lighthouse Church of Cloverleaf v. Tex. Bank, 889 S.W.2d 595, 602 (Tex.App-Houston [14th Dist.] 1994, writ denied) (asserting that voidable deed operates as valid and perfect until set aside); Diversified, Inc. v. Walker, 702 S.W.2d 717, 721 (Tex.App.-Houston [1st Dist.] 1985, writ ref’d n.r.e.) (asserting that voidable deed passes title subject only to party’s right to set aside foreclosure sale). Each subsequent transferor had the same power to convey legal title in the property and did convey title by warranty deed. These transfers established title in the Shains because there was a regular chain of transfers of voidable deeds.

The Johnstons did not challenge the summary judgment proof that the Phillips-es openly and peacefully possessed and used the property. Thus, appellees provided uncontroverted evidence that the Phil-lipses enjoyed peaceful and adverse possession of the property from June 13, 1997 to April 12, 2001, and we have determined that the property was held under title. Under the three-year statute of limitations, the Johnstons were required to file their quiet-title action by June 13, 2000— three years after the Phillipses took possession of the property. The Johnstons did not file their suit until March 30, 2001. We need not address the merits of the Johnstons’ contention that Mary Bennett did not prove adverse possession because the Phillipses satisfied the adverse-possession claim under the three-year statute of limitations without having to tack the period of the Bennetts’ ownership onto their own. It is also unnecessary to determine whether appellees proved adverse possession under the five-year statute of limitations because the Phillipses satisfied the three-year statute of limitations.

Accordingly, we hold that the trial court did not err by granting appellees’ motion for summary judgment based on the three-year statute of limitations.

We overrule the Johnstons’ first point of error.

Conclusion

We affirm the judgment of the trial court.

      .The real property is located at 2303 Brae Lane, League City, Galveston County, Texas. It is hereafter designated "the property.”

        . John Bennett was removed as a party to this cause of action due to his death in February 2000.

      . 26 U.S.C.S. § 6337(b) (2003).

      . The relevant statutory provision states:
      (d) Time and place of sale. The time of sale shall not be less than 10 days nor more than 40 days from the time of giving public notice under subsection (b). The place of sale shall be within the county in which the property is seized, except by special order of the Secretary.

      (e)(1)(D) Release to owner in other cases. If, at the sale, the property is not declared sold ... the property shall be released to the owner thereof ....

      (e)(2)(F) Additional rules applicable to sale.... [Tjhe Secretary may adjourn the sale from time to time (but such adjournments shall not be for a period to exceed in all 1 month).
      26 U.S.C.S. § 6335(d), (e) (2003).

      . "Title” is "a regular chain of transfers of real property from or under the sovereignty of the soil.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(4) (Vernon 2002).


author: HANKS, Justice.

text:
    Lee Andrew JONES, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 01-02-01052-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 3, 2004.

      C. Logan Dietz, Houston, John J. Davis, Angleton, for Appellant.
    David Bosserman, Assistant Criminal District Attorney, Jeri Yenne, Criminal District Attorney, Jeffrey D. Kyle, Assistant District Attorney, Angleton, for Ap-pellee.
    Panel consists of Justices ALCALA, HANKS, and HEDGES.

       The Honorable Adele Hedges, formerly Justice of the Court of Appeals, First District of Texas at Houston, became Chief Justice of the Court of Appeals, Fourteenth District of Texas at Houston on December 8, 2003 and continues to participate by assignment for the disposition of this case, which was submitted on December 1, 2003.

   OPINION

HANKS, Justice.

Appellant, Lee Andrew Jones, Jr., pleaded guilty to the Class A misdemeanor offense of theft by check. The trial court sentenced appellant to confinement for 180 days, suspended for 12 months’ community supervision, and imposed a $200 fine. The State subsequently filed a motion to revoke community supervision. Appellant pleaded not true to the allegations in the State’s motion to revoke community supervision, but the trial court found them true, revoked appellant’s community supervision, and sentenced him to 180 days’ confinement. In four points of error, appellant contends that the trial court erred in revoking his community supervision because (1) there was insufficient evidence to support a finding that appellant failed to report to the supervision officer, (2) there was insufficient evidence to support a finding that appellant failed to pay community supervision and restitution fees, (3) the trial court abused its discretion in finding that appellant failed to complete community service, and (4) the trial court exceeded its authority when it ordered confinement served day for day. We affirm as reformed.

BACKGROUND

After appellant pleaded guilty to the theft by check offense, he received community supervision from the court. The trial court gave him the community supervision conditions in writing, and appellant acknowledged receipt of them with his signature. Among these conditions were that he:

D. Obey all rules, regulations, and policies of the Brazoria County Community Supervision and Corrections Department;
H. Report to the Supervision Officer on this date and on the 14[th] day of each month during the period of this community supervision and at said time submit an accurately completed and signed Monthly Report to the Supervision Officer;
R. Pay the following:
1. COMMUNITY SUPERVISION FEE of $40.00 per month during the term of your community supervision. Payments to be made on the 14[th] day of each month beginning September 1998.
2. COURT COSTS to be made payable through the Clerk of this Court.
3. FINE of $200.00 to be made payable through the Clerk of this Court.
5. RESTITUTION of $1330.00 at $133.00 per month until paid in full, payments to be made on the 14[th] day of each month beginning September 1998, payable through the Brazoria County Community Supervision and Corrections Department of this County, to be paid to the victims in the respective sums of money as is listed in the Restitution Schedule ....
V. Work faithfully, without compensation, at a Community Service Task assigned by the Court; specifically, work 80 hours at a rate of sixteen (16) hours per month.

Approximately one week before the expiration of appellant’s one-year community supervision term, the State filed a motion to revoke community supervision alleging that appellant failed to (1) report and submit a monthly report to his community supervision officer from September 1998 to March 1999 in Brazoria/Harris County, (2) pay a community supervision fee of $40 per month from November 1998 to March 1999, (3) pay court-ordered restitution, and (4) perform community service.

The trial court held a hearing on the motion to revoke community supervision. Sarah Grisby, appellant’s assigned supervision officer, testified that, because appellant lived in Harris County, he was required to report to the Brazoria County office by mail until Harris County accepted supervision over him. This arrangement also required that appellant submit his monthly report and community supervision and restitution fees to Brazoria County. Appellant was not required to perform any community service hours until Harris County began its supervision of him. Grisby testified that appellant never reported as required. Grisby never received reports from appellant; appellant did not report anywhere for his community supervision or abide by any of the conditions of his community supervision; and Harris County did not accept supervision of appellant and returned his files because he failed to report.

The trial court entered an order revoking appellant’s community supervision and stated that appellant (1) failed to report, (2) failed to pay his community supervision fees, (3) failed to pay his restitution, and (4) did not complete his court-ordered community service. The trial court also ordered that appellant’s jail time be served on a “day for day basis.”

Failure to Report

In his first point of error, appellant contends that the evidence is legally insufficient to support the finding that he “failed to report.”

We review an order revoking community supervision under the abuse-of-discretion standard. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App.1984). To support an order of revocation, the State must prove a violation of a condition of community supervision by a preponderance of the evidence. See Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App.1980); Greathouse v. State, 33 S.W.3d 455, 458 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d). The State’s burden of proof is satisfied if the greater weight of credible evidence creates a reasonable belief that the defendant violated a condition of his community supervision as alleged by the State. Solis v. State, 589 S.W.2d 444, 447 (Tex.Crim.App.1979). If the State fails to meet its burden of proof, the trial court abuses its discretion in issuing an order to revoke community supervision. Greathouse, 33 S.W.3d at 458. Proof of a single violation will support a community supervision revocation order. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App.1980); Marcum v. State, 983 S.W.2d 762, 766-67 (Tex.App.-Houston [14th Dist.] 1998, pet. ref’d). The trial court alone determines the witnesses’ credibility and the weight to be given to their testimony. See Naquin v. State, 607 S.W.2d 583, 586 (Tex.Crim.App.1980).

Appellant argues that Grisby failed to explain to appellant how and when he should report for his community supervision.

Appellant received a written copy of his conditions of community supervision providing that he was required to report monthly to his supervising officer, and appellant acknowledged receiving the written conditions. Moreover, Grisby testified that she instructed appellant to report to her in Brazoria County by mail until Harris County accepted supervision of him. Grisby explained to appellant how to report to her by mail for three to four months until Harris County received his paperwork. Grisby expected to receive three to four reports from appellant, but she never received any reports. We hold that the trial court did not abuse its discretion when it found that the State proved, by a preponderance of the evidence, that appellant failed to report to his supervision officer.

Within his first point of error, appellant also argues that the trial court improperly delegated its authority to the community supervision officer to allow appellant to report by mail. We disagree.

Article 42.12 of the Code of Criminal Procedure allows the supervision officer to require appellant to report by mail. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 11(a)(4) (Vernon Supp.2004) (providing that the trial court may order a person on community supervision to “[r]e-port to the supervision officer and obey all rules and regulations of the community supervision and corrections department”). A trial court may provide the community supervision officer with some discretion concerning the particular terms of community supervision. See Pierce v. State, 67 S.W.3d 374, 377 (Tex.App.-Waco 2001, pet. ref’d).

The trial court gave appellant his conditions of community supervision, ordering that he report monthly to his supervision officer. The supervision officer merely directed appellant to report to Brazoria County community supervision department until Harris County accepted him. Grisby testified that appellant knew to report by mail to her at the Brazoria County office. The location appellant was to report to did not alter or change the terms dictated by the trial court requiring that appellant report monthly to his supervision officer. Accordingly, we hold that the terms of appellant’s community supervision were set by the court, not the supervision officer.

We overrule appellant’s first point of error. Because of our holding on appellant’s first point of error, we not need address the sufficiency of the evidence points for the remaining revocation grounds. Accordingly, we do not reach points of error two and three. See Sanchez, 603 S.W.2d at 871.

Day for Day Sentence

In his fourth point of error, appellant contends that the trial court exceeded its authority when it ordered that appellant serve his sentence day for day.

A court may take a particular action only if that action is authorized by constitutional provision, statute, or common law, or the power rises from an inherent or implied power. State v. Johnson, 821 S.W.2d 609, 612 (Tex.Crim.App.1991).

Texas Code of Criminal Procedure 42.032 provides, “The sheriff in charge of each county jail may grant commutation of time for good conduct, industry, and obedience. A deduction not to exceed one day for each day of the original sentence actually served may be made for the term or terms of sentences if a charge of misconduct has not been sustained against the defendant.” TEX. CODE CRIM. PROC. ANN. art. 42.032 § 2 (Vernon Supp.2004). The trial court does not have the authority to restrict a sheriffs discretion concerning the granting of good-conduct time. Bell v. State, 881 S.W.2d 794, 804 (Tex.App.-Houston [14th Dist.] 1994, writ ref’d); Ex parte Hall, 838 S.W.2d 674, 676 (Tex.App.-Dallas 1992, orig. proceeding). Further, the trial court has no authority to place a limit on the operation of article 42.032 by fixing the time for the discharge of a sentence. See Kopeski v. Martin, 629 S.W.2d 743, 745-46 (Tex.Crim.App.1982) (holding that the sheriff has a duty to give inmates fair consideration for good time credits); Ex Parte Suter, 920 S.W.2d 685, 686-87 (Tex.App.-Houston [1st Dist.] 1995, orig. proceeding) (holding that part of an order setting an ending date for the defendant’s sentence was void because it denied the defendant his right to be considered for good-time credit).

Accordingly, the sheriff has sole discretion to award good-conduct credit. Ex parte Hall, 838 S.W.2d at 677. The trial court’s attempt to influence the sheriff, a member of the executive branch, in carrying out the terms of a sentence may violate the separation of powers clause of the Texas Constitution. See TEX. CONST. art. II, § 1; Ex parte Hall, 838 S.W.2d at 676.

Appellant argues that, because the trial court ordered him to serve his sentence day for day, it improperly restricted the Brazoria County Sheriff from potentially granting good-time conduct. We agree.

By specifying that appellant serve his sentence day for day, the trial court essentially fixed the time for discharge. Although the trial court has the authority to pronounce the sentence, it does not have the authority to fix the time for discharge of the sentence. See Kopeski, 629 S.W.2d at 745. Accordingly, we hold that the trial court abused its discretion in ordering that appellant serve his sentence day for day. Cf. Ex parte Beaupre, 915 S.W.2d 228, 232 (Tex.App.-Fort Worth 1996, orig. proceeding) (holding that the trial court’s community supervision revocation order requiring the defendant to serve 180 calendar days was not a restriction on the sheriffs discretion to grant good-time credit under article 42.032 of the Code of Criminal Procedure); Ex parte Hall, 838 S.W.2d at 676 (stating that the trial court’s order requiring appellant to serve 72 hours rather than three days was “immaterial” to the issue of whether one was entitled to good-conduct credit).

We sustain appellant’s fourth point of error. We reform the trial court’s judgment by deleting the last sentence in the judgment that states, “The Defendant’s jail time is to be served on a day for day basis.”

Conclusion

We reform the judgment of the trial court, and, as reformed, affirm.

      . "Day for day” means that a defendant must serve his entire sentence with no expectation of parole or any other form of early release. See Ex parte Retzlaff, 135 S.W.3d 45, 54 (Tex.Crim.App.) (Hervey, J. dissenting).


author: TIM TAFT, Justice.

text:
    Eric Lee ROTHENBERG, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00364-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 10, 2004.
    Discretionary Review Refused Dec. 8, 2004.
    Kyle B. Johnson, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney, Harris County, William J. Del-more, III, Chief Prosecutor, Appellate Division, Alan Curry, Assistant District Attorney, Houston, TX, for Appellee.

      Panel Consists of Justices TAFT, HANKS, and HIGLEY.
   OPINION

TIM TAFT, Justice.

After the trial court denied his motion to suppress, appellant, Eric Lee Rothenberg, pleaded guilty, pursuant to a plea agreement, to the offense of possession with intent to deliver methamphetamine weighing more than four grams and less than 200 grams. See Tex. Health & Safety Code Ann. §§ 481.102(6), 481.112(a), (d) (Vernon 2003). As part of the agreement, appellant also pleaded true to two enhancement paragraphs alleging the prior offenses of delivery of, and possession of, controlled substances. The trial court found appellant guilty, assessed his punishment at 30 years in prison, and certified his right to appeal the pretrial ruling. See id. § 481.112(d); Tex. Pen.Code Ann. §§ 12.32(a), 12.42(d) (Vernon 2003); Tex.R.App. P. 25.2(a)(2)(A). We are asked to determine whether, under Texas Constitution article I, section 9, law-enforcement personnel could, without appellant’s consent, unlock a box in appellant’s car and review its contents during a post-arrest inventory of the vehicle. See Tex. Const. art. I, § 9. Based on this Court’s recent resolution of this very issue in Garza v. State, No. 137 S.W.3d 878 (Tex.App.-Houston [1st Dist.] 2004, no pet. h.), we answer the question in the affirmative. We affirm.

Background

One evening, appellant was driving a borrowed car, in which his wife, Julianne Rothenberg, was a passenger. Katy Police Officer Shiller pulled appellant over for his car’s having an expired registration sticker. Officer Hughes stopped at the scene soon after Officer Shiller had arrived. When the officers ran appellant’s driver’s license number, they discovered an outstanding arrest warrant, arrested appellant, handcuffed him, and placed him in a police car.

When the officers told appellant that the car could be turned over to Julianne or towed, appellant requested the former. However, Julianne advised the officers that she had been having seizures that day, was weak, and was not feeling well. She “just didn’t know if [she] was in the best condition to be [driving] at the time,” and she told the officers that it was probably not a good idea for her to drive. Accordingly, the officers were unable to release the car to Julianne, and the car was instead impounded.

After Julianne had also been placed in the patrol car, the officers began an inventory of the impounded car. During the inventory, the officers found a large bag of lithium batteries; two bank bags containing white, powdery residue; and a bottle of ephedrine inside the car. Additionally, the officers found in the car some beakers and two books — one showing where to obtain chemicals and chemical supplies, and the other outlining the chemical composition of various drugs, including methamphetamine.

The officers also found a lockbox in the car’s hatchback. At the suppression hearing, Julianne testified that appellant kept jewelry, money, and tax records for his jewelry business in the lockbox. Appellant told the officers that the lockbox contained cash, jewelry, checks, bank statements, paperwork, and tools for his jewelry business. Appellant testified that the lockbox was important to him and that he would want it taken care of.

The Katy Police Department had a policy, which the officers followed with appellant’s car, for inventorying impounded vehicles. That policy required officers to inventory “all items inside of’ the vehicle. Specifically, departmental policy required that “personal items that are worth something” and “anything of value” be inventoried. Officer Shiller explained that “if all items aren’t documented, then obviously the person whose vehicle was towed can claim that there was anything in the vehicle.... [I]f there is a suitcase or something ... that we are going to leave with the car, we are pretty much responsible for whatever is in the vehicle. If we don’t look and see what’s in it, then he could say there is a million dollars in there or anything else he wanted to and we would be responsible for that.” Officer Shiller also agreed that anything, including something that might be capable of harming officers, could be in a closed container. Both officers testified that they would not be allowed to deposit the lockbox with the departmental property room without first having determined the box’s contents.

The officers had already taken appellant’s keys, along with the other property that appellant had on his person, when they arrested appellant. When the officers asked him if his keys included a key to the lockbox, appellant responded affirmatively, but he refused to consent to a search of the box. Nevertheless, the officers opened the lockbox with the key. Inside, the officers found several hundred small plastic baggies; a narcotics test kit containing vials, one of which contained a strong acid that could be used to make methamphetamine; scales; a flat, metal spoon; a bottle of PH test strips; funnels; brushes; and small baggies containing methamphetamine.

Standard of Review

Rulings on motions to suppress are subject to a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). We give almost total deference to the trial court’s determination of historical facts that depend on credibility choices. See Guzman v. State, 955 S.W.2d 85, 87-88 (Tex.Crim.App.1997); Wilson v. State, 98 S.W.3d 265, 271 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d). However, we decide de novo whether the trial court erred in applying the law to the facts. Carmouche, 10 S.W.3d at 327; Wilson, 98 S.W.3d at 271.

Although the trial court was not required to make fact findings or legal conclusions based on the type of suppression grounds asserted here, it did, which was within its discretion. See 40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice & Procedure § 4.177 (2nd ed.2001) [hereinafter “Dix & Dawson”]; see also Janicek v. State, 634 S.W.2d 687, 690 (Tex.Crim.App.1982) (noting that trial court made fact findings after suppression hearing concerning allegedly illegal entry into home); Scallion v. State, 433 S.W.2d 438, 439 (Tex.Crim.App.1968) (noting that trial court made fact findings after suppression hearing concerning allegedly illegal arrest). Accordingly, we review its express fact findings with great deference. See, e.g., State v. Fudge, 42 S.W.3d 226, 230 (Tex.App.-Austin 2001, no pet.) (in review of suppression ruling concerning validity of temporary detention, stating, “Based on the standard of review, we will give great deference to this finding.”); see also Scallion, 433 S.W.2d at 439 (noting, “The record in the case supports the judge’s findings,” which were filed as written findings after suppression hearing in which defendant sought suppression of fruits of allegedly illegal arrest); State v. Velasquez, 994 S.W.2d 676, 677 (Tex.Crim.App.1999) (relying on officer’s testimony from hearing, at which defendant sought suppression of fruits of search, because trial court’s written fact findings stated that officer was credible and that court below took his testimony as true).

Inventory

In part of his sole issue on appeal, appellant argues that the search of the lockbox was invalid as an inventory under Texas Constitution article I, section 9, which he claims provides broader protection than does the Fourth Amendment of the United States Constitution.

We begin by noting that appellant does not challenge on appeal the validity of his arrest, the officers’ right to impound his car, the officers’ right generally to inventory the car’s contents (with the exception of their opening the lockbox), or the search or inventory of the lockbox under the Fourth Amendment,. Rather, he challenges the officers’ right, under Texas Constitution article I, section 9, to open the lockbox and to review its contents as part of the vehicle’s post-arrest inventory. See Tex. Const, art. I, § 9.

The trial court found in pertinent part as follows:

11. Officer Shiller began to inventory the vehicle in preparation for im-poundment.
13. Officer Shiller’s inventory was conducted in accordance with the Katy Police Department’s standard operating procedures for such inventories.
16. During the inventory, Officer Hughes discovered a.locked box in the rear of the vehicle.
17. During the inventory, Officer Shil-ler opened the box, and found the substance that is the basis of Defendant’s motion to suppress.

The trial court expressly concluded, in pertinent part:

2. The search of ERIC ROTHEN-BERG’s vehicle was a routine automobile inventory search made without warrant in accordance with the police department’s standard operating procedures.
3. The search of the box in ERIC ROTHENBERG’s vehicle was within the scope of a reasonable routine automobile inventory search made without a warrant.

The trial court made no findings or conclusions concerning any other basis to justify the search of the lockbox.

The inventory has long been recognized as falling outside the Fourth Amendment’s warrant requirement. See Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987). The policies supporting inventories are the need to protect the owner’s property while it is in police custody, to protect police from claims of lost, stolen, or vandalized property that is in their custody, and to protect the police from potential danger. See Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990); Garza, 137 S.W.3d at 881. As appellant notes, the Fourth Amendment to the United States Constitution allows police to open closed— even locked — containers as part of the inventory of an automobile, as long as they do so in accordance with standardized police procedures and as long as the police do not act in bad faith or for the sole purpose of investigation. See Wells, 495 U.S. at 4, 110 S.Ct. at 1635; Bertine, 479 U.S. at 375-76, 107 S.Ct. at 741-42; Garza, 137 S.W.3d at 882.

Appellant relies on Autran v. State in support of his argument that article I, section 9 provides broader protection for closed containers during inventories than does the Fourth Amendment. See 887 S.W.2d 31 (Tex.Crim.App.1994) (plurality op.). In Autran, a three-judge plurality of the Court of Criminal Appeals held that article I, section 9 provided broader protection than did the Fourth Amendment in the context of inventories and thus did not allow the opening of closed containers, locked or unlocked, during an inventory. See id. at 41-42. Judge Clinton concurred in the judgment, observing that, although the plurality might be correct that the Texas Constitution provided greater protection in this context, “other considerations and much more analysis is necessary before the Court may confidently say so ...” Id. at 42 (Clinton, J., concurring in judgment). Three more judges concurred in the judgment based solely on Fourth Amendment grounds. See id. at 42, 43 (Campbell and Maloney, J. J., concurring in judgment, with Meyers, J., joining one opinion). Two judges dissented. See id. at 43-49 (McCormick, J., dissenting, joined by White, J.).

Autran supports appellant’s position. However, this Court has recently noted that Autran has no precedential value because it is a plurality opinion. See Garza, 137 S.W.3d at 884 (citing Vernon v. State, 841 S.W.2d 407, 410 (Tex.Crim.App.1992)). Although we may nonetheless follow the reasoning and holdings of a plurality opinion, we are free to decline to follow them, especially if good reasons exist to do so. See Hatcher v. State, 916 S.W.2d 643, 645 (Tex.App.-Texarkana 1996, pet. ref’d) (“We decline ... to follow the plurality opinion in Autran because we do not believe that Autran constitutes either binding precedent or sound law.”). Because good reasons exist not to follow the Au-tran plurality opinion, this Court, only days ago, declined to follow the Autran plurality’s reasoning, holding instead that “‘in the context of inventories,’ Article I, section 9 of the Texas Constitution does not offer greater protection to individuals against unreasonable searches and seizures than the Fourth Amendment.” Garza, 137 S.W.3d at 885.

Based on our holding in Garza, we overrule appellant’s challenge. We elaborate on Garza’s reasoning herein. First, since deciding Autran, the Court of Criminal Appeals appears to have departed from the Autran plurality’s reasoning and conclusion, albeit without expressly overruling or distinguishing Autran. See Crittenden v. State, 899 S.W.2d 668 (Tex.Ciim.App.1995); Johnson v. State, 912 S.W.2d 227 (Tex.Crim.App.1995). In Crittenden, a majority of the court held that a “pretext stop” was valid under article I, section 9 for reasons similar to those making it valid under the Fourth Amendment. See Crit tenden, 899 S.W.2d at 673-74. In a footnote, without mentioning Autran, the majority stated,

Absent some significant difference in the text of the two provisions, or some historically documented difference in attitude between the respective drafters, there would be no apparent reason to prefer an interpretation of Article I, § 9 any different from our preferred interpretation of the Fourth Amendment. We will not read Article I, § 9 differently than the Fourth Amendment in a particular context simply, because we can.

Id. at 682 n. 8 (emphasis in original).

Similarly, in Johnson, a plurality of four judges on the court concluded that a defendant was not seized within the meaning of article I, section 9 until he yielded to a show of authority, which was also the standard under the Fourth Amendment. See Johnson, 912 S.W.2d at 235. In reaching its holding, and very much along the lines of what the Crittenden majority indicated, the Johnson plurality stated:

A plain reading and comparison of the language of the Fourth Amendment and Art. I, § 9 reveals no substantive difference .... The Fourth Amendment and Art. I, § 9 both protect the same right (freedom from unreasonable search and seizures) to the same degree (persons, houses, papers, and effects/possessions).
In Autran v. State, ... the plurality believed there had to be an underlying intent for the two provisions to be different because a narrow construction would leave Art. I, § 9, specifically, and the Texas Constitution, generally, void of independent meaning.
It would be practically impossible to discern from the language, alone, of Art. I, § 9 the intent of the citizens who framed that provision. There is little if any evidence of the intent of the Framers of Art. I, § 9. We are left with the impression that the language of Art. I, § 9 is virtually identical to the language of the Fourth Amendment.

Id. at 232, 233 (footnote omitted); accord Trujillo v. State, 952 S.W.2d 879, 881 (Tex.App.-Dallas, no pet.) (summarizing this conclusion from Johnson in declining to follow Autran). Moreover, in a footnote, the Johnson plurality appeared to criticize the Autran plurality’s goal of “questfing] for ‘independent meaning’” in the Texas Constitution. Johnson, 912 S.W.2d at 233 n. 6.

We state expressly what we clearly indicated in Garza, that the precedential value of Autran has been diminished by Johnson and Crittenden. See Garza, 137 S.W.3d at 884.

Second, a majority of the Court of Criminal Appeals has only once substantively relied on the Autran plurality. See State v. Ibarra, 953 S.W.2d 242, 244 (Tex.Crim.App.1997). And even in Ibarra, the court relied only on the factors that the Autran plurality had suggested for determining whether the state Constitution provides greater protection than its federal counterpart, not on Autran’s holding concerning inventory of closed containers. See Ibarra, 953 S.W.2d at 244-45 (holding that Texas Constitution requires voluntariness of consent to search to be proved by clear and convincing evidence, although federal Constitution requires only preponderance of evidence). Importantly, the high court has never followed Autran’s specific holding concerning the validity of inventories of closed containers under the Texas Constitution. In fact, since Autran, a majority of the Court of Criminal Appeals has not found that article I, section 9 provides greater protection than that available under the Fourth Amendment in any context before it except for that in Ibarra. And the same court, which in Crittenden and Johnson appears to have placed into question Autran’s specific holding concerning inventories of closed containers, has counseled that the judiciary not “create new constitutional doctrines [based on reading the state Constitution differently] without solid jurisprudential foundation” and that the judiciary create such “new constitutional doctrines” “only when unique aspects of Texas history, jurisprudence, or law support that separate interpretation.” Cobb v. State, 85 S.W.3d 258, 268 (Tex.Crim.App.2002); see also Crittenden, 899 S.W.2d at 682 n. 8 (“Absent some significant difference in the text of the two provisions, or some historically documented difference in attitude between the respective drafters, there would be no apparent reason to prefer an interpretation of Article I, § 9 any different from our preferred interpretation of the Fourth Amendment.”).

Third, we held in Garza that considerations such as “ ‘the facts of the case, state precedent on the issue, and state policy considerations’ ” did not justify “ ‘raising the ceiling of freedom of Texas citizens from unreasonable searches and seizures’ ” by reading article I, section 9 more broadly than the Fourth Amendment in the context of inventories. Garza, 137 S.W.3d at 885 (quoting Johnson, 912 S.W.2d at 234). An analysis of the Autran plurality’s reasoning fully supports our holding in Garza.

In Autran, after concluding that the constitutional provisions’ similar language and the dearth of evidence concerning the intent behind the Texas provision gave no guidance as to the breadth of article I, section 9, the plurality considered three other factors in reaching its holding: (1) history and application, (2) comparable jurisprudence, and (3) practical policy considerations. Autran, 887 S.W.2d at 39-41. As for the first factor, the Autran plurality began by noting that the Fourth Amendment derived from the Massachusetts State Constitution. Id. at 39. The plurality then noted that similarities existed among the Massachusetts Constitution, the Fourth Amendment, and article I, section 9. Id. The plurality found it “significant” that the Massachusetts Supreme Court had construed its state constitution to provide more protection than did the Fourth Amendment. Id. However, the Autran plurality did not explain the reasoning behind the Massachusetts court’s conclusion, why that conclusion mandated a similar interpretation of our constitution, or why the United States Supreme Court’s narrower interpretation of the Fourth Amendment — which was based on the Massachusetts Constitution — was incorrect or inapposite to Texas’s Constitution. See id. In fact, the plurality’s sole explanation was the conclusory statement that “[consideration of the history of the Fourth Amendment, art. XIV of the Massachusetts Constitution, and the similarities between art. I, § 9 and the Massachusetts Constitution, provides evidence that art. I, § 9 was intended to provide broader protection as well.” Id. As for the second factor, the plurality discussed three states in which the judiciary had concluded that the state constitution provided more protection than did the Fourth Amendment in the context of inventories of closed containers. Id. at 40-41. However, the plurality provided virtually no analysis as to why the courts of these states so concluded or why their conclusion supported interpreting our constitution similarly. See id. As for the third factor, the plurality merely set out the three purposes of inventories generally, with no discussion or analysis of how those purposes supported a broader interpretation of article I, section 9. Id. at 41. Instead, the plurality stated only, “These policies have frequently satisfied our requirement that a search be ‘reasonable.’ ” Id. As former Court of Criminal Appeals Judge Clinton remarked concerning the Autran plurality, “more mature deliberation” and “other considerations and much more analysis is necessary before the Court may confidently [reach the plurality’s conclusion]....” Id. at 42 (Clinton, J., concurring in judgment).

Our decision in Garza is also well supported by other caselaw. In Garza, we joined six of our sister courts of appeals in declining to follow the Autran plurality. See Garza, 137 S.W.3d at 884. As we noted in Garza, the Court of Criminal Appeals has refused review in eight of the cases in which courts have declined to follow Au-tran. See id. at 884 (noting, “[O]ther intermediate appellate courts ... have expressly declined to follow Autran, and the Court of Criminal Appeals has refused discretionary review in those cases in which a petition has been filed.”). Although the decision to refuse petition for review is not itself precedential, the fact that the Court of Criminal Appeals has not corrected any lower court that has declined to follow Autran, despite repeated opportunities for the high court to do so, further demonstrates that our holding in Garza is correct and that Autran is not the law. See State v. Mercado, 993 S.W.2d 815, 818-19 (Tex.App.-El Paso 1999, pet. ref’d) (noting that Court of Criminal Appeals has had opportunity to correct lower courts’ refusal to follow Autran, but has not done so); Gonzalez, 990 S.W.2d at 835 (reaching same conclusion based on refusals of petition for review); Trujillo, 952 S.W.2d at 881 (noting similar matters).

Accordingly, applying Garza’s holding, we utilize Fourth Amendment precedent to conclude that a peace officer may, under article I, section 9 of the Texas Constitution, open a closed container as part of an inventory of an automobile as long as the inventory is conducted in good faith pursuant to standard police procedure. Garza, 137 S.W.3d at 885 (citing Bertine, 479 U.S. at 374-75, 107 S.Ct. at 742-43). The undisputed evidence set out above supports the trial court’s findings that the officers conducted an inventory of the car’s contents pursuant to their department’s standard procedures and supports the court’s conclusion that the inventory’s scope extended to the lockbox.

We overrule the portion of appellant’s issue arguing that the search was invalid as an inventory. Given our disposition of this portion of the issue, we need not reach the remaining argument under appellant’s issue, which asserts that the search was also invalid as a search incident to arrest.

Conclusion

We affirm the judgment of the trial court.

      . These items were known to the officers to be used in the manufacture of methamphetamine.

      . However, Officer Shiller did not personally believe that appellant’s lockbox had anything harmful inside.

      . In fact, appellant testified at the suppression hearing that the arrest warrant was valid, and he agreed that his arrest was "perfectly legal.”

      . Accord Gonzalez v. State, 990 S.W.2d 833, 835 (Tex.App.-El Paso 1999, pet. ref’d); Jurdi v. State, 980 S.W.2d 904, 907 (Tex.App.-Fort Worth 1998, pet. ref’d); Wells v. State, 968 S.W.2d 483, 486 (Tex.App.-Eastland 1998, pet. ref’d); Trujillo v. State, 952 S.W.2d 879, 881 (Tex.App.-Dallas 1997, no pet.); Hatcher v. State, 916 S.W.2d 643, 645-46 (Tex.App.-Texarkana 1996, pet. ref’d).

      . In contrast, the Autran plurality had found no guidance from the fact that'the two provisions had similar language and the fact that a dearth of evidence showed the framers’ intent concerning article I, section 9. See Autran, 887 S.W.2d at 38. Within a year after Au-tran’s issuance, however, as evidenced by the quoted text from Crittenden, a majority of the court appears to have departed from that conclusion in Autran. See Crittenden, 899 S.W.2d at 682 n. 8.

        . We note that several of our sister courts have also concluded that Johnson and Crittenden have diminished the precedential value of Autran. See State v. Mercado, 993 S.W.2d 815, 818 (Tex.App.-El Paso 1999, pet. ref’d); Gonzalez, 990 S.W.2d at 835; Jurdi, 980 S.W.2d at 907; Wells, 968 S.W.2d at 486; Trujillo, 952 S.W.2d at 881 (locked bank bag); Hatcher, 916 S.W.2d at 645-46; see also George v. State, No. 03-00-00306-CR, 2001 WL 987053, at *2 (Tex.App.-Austin Aug.30, 2001, no pet.) (not designated for publication).

      . In a few majority opinions, the Court of Criminal Appeals has also recognized Autran as an example of a situation in which the court interpreted the state Constitution more broadly than its federal counterpart, but in those opinions, the court did not rely on or apply the Autran plurality’s specific holdings, and the cases before the court did not concern article I, section 9. See Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex.Crim.App.1997); Ex parte Davis, 957 S.W.2d 9, 12 (Tex.Crim.App.1997). Before Autran, the court only once had held that Texas Constitution article I, section 9 provides greater protection than does its federal counterpart. See Richardson v. State, 865 S.W.2d 944, 953 (Tex.Crim.App.1993) (holding that pen register “may well constitute a ‘search’ under Article I, § 9 of the Texas Constitution,” despite its not being a search under the federal Constitution); see also Dix & Dawson, § 5.04 (noting that in only three situations—Richardson, Ibarra, and Autran—since deciding Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991), has the high court construed article I, section 9 more broadly than the Fourth Amendment).

      . See Autran, 887 S.W.2d at 38.

      . We note that two of our sister courts have expressly stated their belief that the Autran plurality’s reasoning is unsound. See Cortes v. State, No. 14-95-00794-CR, 1997 WL 295360, at *4 (Tex.App.-Houston [14th Dist.] June 5, 1997, pet. ref’d) (not designated for publication) (noting in apparent dictum that “Autran ... was a plurality opinion and we believe it is neither binding nor sound law.”); Hatcher v. State, 916 S.W.2d 643, 645 (Tex.App.-Texarkana 1996, pet. ref’d) ('[W]e do not believe that Autran constitutes either binding precedent or sound law.”); see also Gonzalez v. State, 990 S.W.2d 833, 835 (Tex.App.-El Paso 1999, pet. ref’d) (“[N]o persuasive case law suggests that following [Autran’s ] reasoning is sound.”).

      . See George, 2001 WL 987053, at *2; Mercado, 993 S.W.2d at 818-19; Gonzalez, 990 S.W.2d at 835; Jurdi, 980 S.W.2d at 907; Wells, 968 S.W.2d at 486; Trujillo, 952 S.W.2d at 881; Madison v. State, 922 S.W.2d 610, 613 (Tex.App.-Texarkana 1996, pet. ref’d); see also Cortes, 1997 WL 295360, at *4. Appellant relies on State v. Lawson, which followed Autran, but Lawson has since been overruled on this very ground. See 886 S.W.2d 554, 555-56 (Tex.App.-Fort Worth 1994, pet. ref’d), overruled, Jurdi v. State, 980 S.W.2d 904 (Tex.App.-Fort Worth 1998, pet. ref’d). Appellant also relies on Gill v. State, in which the Court of Criminal Appeals held that officers could not validly enter the locked trunk of a car by using substantial force (i.e., by removing the car’s back seat) under the auspices of an inventory search. 625 S.W.2d 307, 319-20 (Tex.Crim.App.1980) (op. on reh’g), overruled on other grounds by Osban v. State, 726 S.W.2d 107 (Tex.Crim.App.1986),
        overruled by Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). Gill’s facts are clearly distinguishable: in Gill, the police entered a car’s locked trunk by forcibly removing the back seat; here, the police opened a lockbox with a key. See Kelley v. State, 677 S.W.2d 34, 37 (Tex.Crim.App.1984) (in holding that inventory of items in trunk, opened with suspect’s key, was valid, distinguishing Gill by indicating that it was the substantial force used by the officers in Gill that made the inventory in that case invalid). Additionally, in Gill, the court noted that ”[i]f the locked trunk cannot be entered without the use of substantial force, it is unlikely that the police would be charged with losing or misappropriating items of personal property found [in the trunk]....” Gill, 625 S.W.2d at 320. Here, in contrast, the fact that the officers had both the lockbox and its key made them, if anything, more susceptible to accusations of theft because they could theoretically easily open the lockbox without outward evidence of their having done so. Therefore, unlike in Gill, the policy reasons behind inventories supported the inventory here.

      . See Hendricks v. State, No. 05-01-00323-CR, 2002 WL 1981361, at *2 n. 1 (Tex.App.-Dallas Aug.29, 2002, pet. ref’d) (not designated for publication); Mercado, 993 S.W.2d 815; Gonzalez, 990 S.W.2d 833; Crow v. State, No. 05-97-01432-CR, 1999 WL 191459, at *1 (Tex.App.-Dallas Apr.8, 1999, pet. ref’d) (not designated for publication); Jurdi, 980 S.W.2d 904; Wells, 968 S.W.2d 483; Madison, 922 S.W.2d 610; Hatcher, 916 S.W.2d 643.

      . The trial court did not make fact findings and legal conclusions relating to the search's validity as a search incident to arrest. Appellant, however, challenges the search’s validity on that unfound ground. Given our disposition, we need not decide the effect, if any, of appellant’s challenging a ground that the trial court did not specify in its fact findings and legal conclusions.


author: SHERRY RADACK, Chief Justice.

text:
    Richard Dale COOPER, Appellant, v. Joanne Marie COOPER, Appellee.
    No. 01-03-00156-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 17, 2004.

      Bruce A. Baughman, Baytown, TX, for Appellant.
    Bill De La Garza, Bill De La Garza & Associates, P. C., Houston, TX, for Appel-lee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION

SHERRY RADACK, Chief Justice.

Richard Dale Cooper, appellant, appeals from a divorce decree awarding Joanne Marie Cooper, appellee, spousal maintenance of $500 per month for one year. Specifically, appellant contends that the trial court abused its discretion by awarding appellee spousal maintenance because “there is no or insufficient evidence” that appellee lacked sufficient property and income to supply her minimum reasonable needs.

BACKGROUND

The parties were married in 1981, separated in 2000, and divorced in 2002. At the time of the divorce, the parties were the parents of SJC, a child under the age of 18 years. In the final decree of divorce, the trial court named appellee as possesso-ry joint managing conservator of SJC and ordered appellant to pay child support for SJC to appellee in the amount of $1,200 per month. Further, the trial court found that appellee was eligible for spousal maintenance and ordered appellant to pay ap-pellee $500 per month for one year.

Subsequently, in findings of facts and conclusions of law requested by appellant, the trial court found, in pertinent part, that:

A. [Appellee] is eligible for court-ordered maintenance because:
1. the duration of the marriage was longer than 10 years;
2. [Appellee] lacks sufficient property, including property distributed to her pursuant to the Final Decree of Divorce, to provide for [Appellee]’s minimum reasonable needs; and
3. [Appellee] clearly lacks earning ability in the labor market adequate to provide support for [Ap-pellee]’s minimum reasonable needs....
C. [Appellee] has exercised due diligence in developing the necessary skills to become self supporting during the period of separation and during the time the suit for dissolution of the marriage was pending ...
F. Although [Appellee] is employed, her current employment does not provide for her minimum reasonable needs.

DISCUSSION

Standard of Review

Our review of a legal sufficiency point requires us to consider only the evidence and inferences that tend to support the finding, disregarding all evidence and inferences to the contrary. Vannerson v. Vannerson, 857 S.W.2d 659, 666 (Tex.App.-Houston [1st Dist.] 1993, writ denied). If there is any evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the issue. Id. In our review of the factual sufficiency of the evidence, we must consider and weigh all of the evidence, and we will set aside a finding only if the evidence standing alone is too weak to support the finding, or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Vannerson, 857 S.W.2d at 666.

Spousal Maintenance

If, as here, a divorce is sought in a marriage lasting 10 years or longer, a spouse may seek spousal maintenance under the Family Code. Tex. Fam.Code Ann. § 8.051(2) (Vernon Supp.2004); Alexander v. Alexander, 982 S.W.2d 116, 117 (Tex.App.-Houston [1st Dist.] 1998, no pet.). To be eligible for spousal maintenance, the spouse seeking maintenance must lack sufficient property to provide for the spouse’s minimum reasonable needs and must show that she cannot support herself (A) due to a disability, or (B) because she must care for a child with a disability, or (C) she “clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs.” Tex. Fam.Code Ann. § 8.051(2); Alexander, 982 S.W.2d at 117. Generally, there is a presumption that spousal maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in (1) seeking suitable employment, or (2) developing the necessary skills to become self-supporting while the spouses are separated and the divorce action is pending. Tex. Fam.Code Ann. § 8.051(2); Alexander, 982 S.W.2d at 117.

A. Minimum Reasonable Needs

The term “minimum reasonable needs” is not defined in the Family Code, nor are there cases defining the term. In re Marriage of Hale, 975 S.W.2d 694, 697 (Tex.App.-Texarkana 1998, no pet.). Rather, determining what the minimum reasonable needs are for a particular individual is a fact-specific determination that should be made by the trial court on a case-by-case basis. Amos v. Amos, 79 S.W.3d 747, 749 (Tex.App.-Corpus Christi 2002, no pet.).

Here, appellant asserts that, because ap-pellee’s “monthly income exceeds her monthly expenses, [appellee] is not entitled to spousal maintenance; she has sufficient income, even without resorting to her assets, to satisfy her minimum reasonable needs.” (Emphasis added). Under these circumstances, because appellant has limited his argument to a comparison of appellee’s monthly expenses and income, we limit our réview to consideration of appellee’s monthly expenses as evidence of appellee’s minimum reasonable needs.

During the bench trial, appellee offered into evidence a financial information statement reflecting that appellee’s monthly expenses totaled $2,566.22. In addition to the expenses listed on appellee’s financial information statement, appellee testified that she paid $208 per month toward a second lien on her home. The record reflects that this debt was awarded to appel-lee in the final divorce decree. Additionally, appellee testified that she makes monthly payments of $20 toward her attorney fees, which, at the time of trial, were approximately $5,000 to $5,200. Thus, the evidence demonstrates that, at the time of the bench trial, appellee’s monthly expenses totaled $2,794.22.

B. Evidence of Sufficient Property

To be eligible for spousal maintenance, appellee must first have shown she lacked sufficient property to provide for her minimum reasonable needs. See Tex. Fam. Code Ann. § 8.051(2). The trial court found that appellee lacked sufficient property, including property distributed to her pursuant to the divorce, to provide for appellee’s minimum reasonable needs.

Appellant asserts that “there is no or insufficient evidence” that appellee lacked sufficient property and income to supply her minimum reasonable needs. Specifically, appellant contends that appellee is not entitled to spousal support because “she has sufficient income, even without resorting to her assets, to satisfy her minimum reasonable needs.” (Emphasis added). Under these circumstances, because appellant limited his argument to appel-lee’s income, we limit our review to consideration of appellee’s income as evidence of appellee’s property.

Appellant contends the evidence demonstrates that appellee’s monthly income exceeded her monthly expenses, and, as a result, that appellee was not entitled to spousal maintenance. Appellant asserts that appellee’s monthly income was $2,600, because she received $1,400 in monthly net salary and $1,200 in monthly child support payments. Conversely, appellee argues that child support should not be included as property awarded to a spouse for purposes of analyzing the maintenance requirements. Specifically, appellee argues that child support is not an asset that is distributed to a spouse, but is a legal obligation of a parent allocated in a Suit Affecting the Parent-Child Relationship under the Family Code. See Tex Fam.Code Ann. §§ 151.001(a)(8), 158.134(b)(4) (Vernon Supp.2004).

Under these facts, however, we need not reach the question whether child support should be included as property awarded to a spouse for purposes of analyzing spousal maintenance requirements. The evidence shows that, even with child support, appel-lee’s monthly income of $2,600 falls short of appellee’s monthly expenses of $2,794.22. Accordingly, we find the trial court did not abuse its discretion in finding that appellee lacked sufficient property to meet her minimal reasonable needs.

C. Consideration of Earning Ability

To be eligible for spousal support, appellee must have also shown that she clearly lacked earning ability adequate to provide for her minimum reasonable needs. Tex. Fam.Code Ann. § 8.051(2); Alexander, 982 S.W.2d at 117. The trial court found that appellee “clearly lacks earning ability in the labor market adequate to provide support for [her] reasonable needs.” Appellant did not challenge this finding. Instead, appellant’s argument is based solely upon his assertion that appellee’s income exceeded her expenses. Appellant did not brief any argument with respect to appellee’s earning ability. Because appellant did not challenge it, the trial court’s finding is binding on the parties and this court. Herrera, 981 S.W.2d at 732.

After careful consideration of all of the evidence, we hold that the trial court did not abuse its discretion by awarding appel-lee spousal maintenance. Accordingly, we overrule appellant’s single point of error.

CONCLUSION

We affirm the judgment of the trial court.

      .The trial court found that appellee exercised due diligence in developing the necessary skills to become self-supporting during the period of separation and during the time the suit for dissolution of the marriage was pending. Appellant did not challenge this finding. Because unchallenged findings Eire binding on this Court, we hold that the presumption against maintenance was overcome by appellee’s efforts in this regard. See Firefighters’ & Police Officers’ Civil Serv. Comm’n of the City of Houston v. Herrera, 981 S.W.2d 728, 732 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) ("Unchallenged findings are binding on the parties and this Court.”).

      . Appellant does not attack the amount of spousal maintenEince payments.

      . Appellant did not object to the admission of appellee’s financial information statement into evidence. Appellant cites to the statement as evidence that appellee's monthly expenses totaled $2,566.22.

      . Appellant asserts that there is no evidence that the second lien note referred to by appellee is not already included in the house payment she listed on her financial information sheet. We disagree. On her financial information sheet, appellee reported "House Payment/Rent $866.20.” During the bench trial, appellee specifically testified that her "house note” was $866.20. Appellee subsequently testified as to the existence of a debt to Corn-erica Bank, which was "a second lien on the house” in the amount of $208 a month. Without objection, appellee offered into evidence an inventory and appraisement, listing both appellee’s home mortgage through Chase Manhattan Mortgage Corporation, and a separate debt owed to Comerica Bank, entitled "loan for home improvements.”