text:
    Sidney LAMB, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00730-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 1, 2005.

      Donald W. Bankston, Richmond, for appellant.
    Donald W. Rogers, Jr., Asst. Dist. Atty., Charles A. Rosenthal, Jr., Dist. Atty .-Harris County, Houston, for appellee.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

A jury convicted appellant, Sidney Lamb, of aggravated robbery and assessed his punishment at confinement for 60 years and a $1,000 fine. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). In four points of error, appellant argues that the trial court erred during the punishment phase of the trial by admitting (1) extraneous offense testimony and (2) appellant’s Texas Department of Criminal Justice (TDCJ) disciplinary records.

We affirm.

Background

Around 3:00 a.m. on the morning of July 18, 2002, James Doku, a newspaper deliveryman, was delivering newspapers to customers on his route. As he drove his green Chevy Blazer into the entrance of the Polo Club Apartments in Houston, Texas, Doku was followed by appellant and two other men in a white Toyota Corolla. When Doku got out of his Blazer and began restocking a newspaper stand, appellant approached him with a shotgun, and forced him to lie on the ground. While Doku lay on the ground, the two men accompanying appellant drove away in his Blazer. Shortly thereafter, appellant stole Doku’s wallet and fled in the Corolla.

Appellant raises no points of error related to the guilt-innocence phase of his trial. Rather, he contests the admissibility of evidence presented during the punishment phase, specifically the testimony of Shazia Jackson and the admission of his TDCJ disciplinary records.

Jackson’s Testimony

During the punishment phase of trial, records were introduced indicating that appellant had been indicted in three separate causes, nos. 823811, 823812, and 823813, for robbery, aggravated kidnapping, and sexual assault, respectively, as a result of a June 3, 1999 incident in which Jackson was the complainant. The record contains no evidence that appellant’s indictments in cause nos. 823812 and 823813, for aggravated kidnapping and sexual assault, ever proceeded to trial. As a result of the June 3, 1999 incident, appellant was tried for robbery in cause no. 823811 and convicted of the lesser included offense of misdemeanor assault.

Consistent with Article 37.07 of the Texas Code of Criminal Procedure, the State notified appellant of its intent to introduce extraneous offense evidence regarding cause no. 823811 during the punishment phase of trial. See Tex.Code ÜRim. PROC. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2005). In a hearing outside the jury’s presence, the State indicated that it would call Jackson to testify about all of the facts and circumstances of the June 3, 1999 incident. The State indicated that Jackson’s testimony would include evidence of sexual assault and robbery. Appellant objected, arguing that any testimony by Jackson regarding sexual assault, kidnapping, or robbery in connection with the June 3, 1999 incident was collaterally es-topped because he had not been convicted of those offenses. Appellant also raised a Rule 403 objection to the proposed testimony, contending that it would be more prejudicial than probative of any relevant facts. See Tex.R. Evid. 403. The trial court overruled appellant’s objections and granted him a running objection to Jackson’s testimony.

Jackson testified that she and appellant had arranged a date on June 3, 1999. During the course of the date, Jackson drove appellant to the home of one of his friends. While Jackson was inside, appellant took her car without permission. He returned a short time later, and Jackson and appellant left his friend’s home in Jackson’s car. Jackson then drove appellant to his residence. Upon arriving, the two began arguing. Appellant forcibly took Jackson’s keys and attempted to shove her into his home through a back window. When this failed, appellant bit Jackson, forcibly pulled at her clothes, and penetrated her vagina with his penis. Appellant then forced Jackson back into her car and drove her to an area park where he talked with some friends. When Jackson attempted to escape, appellant threw her on the ground and struck her with his foot. After two people assisted her, Jackson managed to flee and called police from a nearby store.

After Jackson was excused, and outside the jury’s presence, appellant again objected to Jackson’s testimony on the basis of collateral estoppel. Appellant stated that his indictments for kidnapping and sexual assault had been expunged, which indicated that he was acquitted of those charges. Appellant asked the trial court to reconsider the admissibility of Jackson’s testimony. In response, the State reiterated its earlier position, namely that appellant had not been acquitted of kidnapping or sexual assault, and argued that because appellant was convicted of misdemeanor assault, it was permissible for Jackson to offer testimony concerning the events that led to that conviction. The court again overruled appellant’s objections.

Appellant then questioned a clerk from the Harris County District Court, who testified that the records accompanying appellant’s indictments for kidnapping and sexual assault had been expunged. The clerk did not state that the records had been destroyed, indicating only that they had been made inaccessible to the public. On cross-examination, the clerk indicated that records may be expunged for reasons other than acquittal.

TDCJ Disciplinary Records

Also during the punishment phase of appellant’s trial, the State introduced in evidence a packet of records from the TDCJ identifying disciplinary infractions appellant committed while confined in the Institutional Division of the TDCJ. The properly authenticated records stated that appellant: (1) intentionally damaged a state-owned jacket; (2) failed to obey the instructions of a prison guard; and (3) entered a bunk without authorization. The redacted records contained no information as to why appellant was confined. Prior to the introduction of the records, appellant objected outside the jury’s presence that the records impermissibly gave the impression that appellant was convicted of a felony then under appeal, and were in violation of Rule 403. The trial court overruled appellant’s objections.

Standard of Review

We review a trial court’s actions as to the admissibility of extraneous offense evidence under an abuse of discretion standard. See Roberts v. State, 29 S.W.3d 596, 600 (Tex.App.-Houston [1st Dist.] 2000, pet. ref d). As long as the trial court’s ruling was within the “zone of reasonable disagreement,” there is no abuse of discretion, and we must uphold the ruling. Id.

During a trial’s guilt-innocence phase, the State generally may not introduce evidence of bad acts similar to the offense charged in order to prevent an accused from being prosecuted for some collateral crime or misconduct. Id. at 600-01. Evidence of extraneous crimes or bad acts, however, may be admitted during a trial’s punishment phase if it is deemed relevant to sentencing by the trial court. Tex.Code CRiM. PROC. Ann. art. 37.07, § 3(a)(1). A trial court has wide discretion in deciding the admissibility of evidence presented at the punishment phase of trial. See Henderson v. State, 29 S.W.3d 616, 626 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Article 37.07, § 3(a)(1) of the Code of Criminal Procedure specifically provides that:

[E]vidence may be offered by the [S]tate and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex.Code Cmm. PROC. Ann. art. 37.07, § 3(a)(1). The trial court is the authority on the threshold issue of the admissibility of relevant evidence during the punishment phase, while the jury determines whether or not the burden of proof for those offenses presented has been satisfied by the party offering the evidence. See Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.1996).

Evidence of past bad acts may also be introduced if it constitutes same transaction contextual evidence. See Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App.1993). When several crimes are intermixed, blended, or connected with one another so that they form an indivisible criminal transaction, they are collectively referred to as same transaction contextual evidence. See Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Crim.App.2000); Mayes v. State, 816 S.W.2d 79, 86-87 (Tex.Crim.App.1991). Same transaction contextual extraneous offense evidence is admitted, not because it has any particular evidentiary purpose, but rather, because in narrating the one offense, it is impracticable to avoid describing the other extraneous offense. See Mayes, 816 S.W.2d at 86-87. Thus, same transaction contextual offense evidence illuminates the nature of the crime alleged by imparting to the trier of fact information essential to understanding the context and circumstances of events. See Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App.1993).

Analysis

Appellant’s Collateral Estoppel Complaint Regarding Jackson’s Testimony

In his first point of error, appellant contends that the trial court abused its discretion by admitting testimony from Jackson that was collaterally estopped, and therefore barred by the constitutionally based doctrine of double jeopardy.

The Fifth Amendment’s protection against double jeopardy embodies the collateral estoppel doctrine. Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S.Ct. 1189, 1197, 25 L.Ed.2d 469 (1970). “When an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443, 90 S.Ct. at 1194. Thus, once a jury determines a specific fact in favor of a criminal defendant, the State cannot contest the jury’s finding in a subsequent proceeding. Ex parte Watkins, 73 S.W.3d 264, 268 (Tex.Crim.App.2002). This prohibition on relitigating decided facts applies to both the guilt-innocence and punishment phases of a criminal prosecution. See Ex parte Mathes, 830 S.W.2d 596, 598 (Tex.Crim.App.1992).

In applying the doctrine of collateral estoppel, a court must first determine if the fact in question was decided during a previous trial. Ex parte Watkins, 73 S.W.3d at 268. To do so, a court “must review the entire trial record, as well as the pleadings, the charge, and the arguments of the attorneys, to determine ‘with reason and rationality’ precisely which facts the jury necessarily decided and whether the scope of its findings regarding specific historical facts bars relitigation of those same facts in a second criminal trial.” Id at 268-69 (quoting Ashe, 397 U.S. at 444, 90 S.Ct. at 1189). The defendant bears the burden of demonstrating that the record affirmatively shows that the fact in question was formerly determined. See Guajardo v. State, 109 S.W.3d 456, 460 (Tex.Crim.App.2003).

Appellant contends that he was previously acquitted of charges that he sexually assaulted, kidnapped, and robbed Jackson, and thus her testimony relating to these offenses was collaterally estopped. Appellant’s contention is without merit for two reasons.

First, appellant fails to establish that a previous jury trial decided any facts in his favor concerning the offenses of kidnapping and sexual assault. Appellant supports his contention that he was acquitted of sexual assault and kidnapping by noting that although he was indicted for those offenses, the corresponding records were expunged. Appellant argues that because the records were expunged, he must have been acquitted. Expunction, however, cannot be equated with acquittal. The Texas Code of Criminal Procedure provides that an expunction may be granted when an indictment is dismissed or quashed due to “mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void.” Tex.Code CRIM. Proc. Ann. art. 55.01 (Vernon Supp. 2005). Appellant has not. produced the trial record from the prior proceedings, the pleadings, the charge, or the argument of the attorneys. Because the records appellant cites could have been expunged on the basis of the respective indictments being dismissed on various grounds, and appellant has produced no evidence to support his contention that he was acquitted of the charges as to which Jackson testified, appellant has failed to carry his burden of proving collateral estoppel.

Second, Jackson’s complained of testimony constituted same transaction contextual evidence. See Rogers, 853 S.W.2d at 33. Appellant was convicted for misdemeanor assault in cause no. 823811. During the punishment phase of trial, consistent with Article 37.07, the State introduced the trial court’s judgment and sentence for cause no. 823811. See Tex.Code Crim. Peoc. Ann. art. 37.07, § 3(a)(1). At no time did the State elicit testimony indicating that appellant was convicted of sexual assault, kidnapping, or robbery. Jackson’s testimony related to a single, albeit prolonged, encounter with appellant from which each of the offenses at issue flowed. Her testimony described the events that resulted in appellant’s conviction for misdemeanor assault. In narrating these events, it would have been impracticable for Jackson to avoid describing the other extraneous offenses. See Mayes, 816 S.W.2d at 86-87.

We overrule appellant’s first point of error.

Appellant’s Rule 403 Complaint Regarding Jackson’s Testimony

In his second point of error, appellant contends that the trial court erred in admitting Jackson’s testimony in violation of Texas Rule of Evidence 403.

Although a trial court possesses wide latitude in determining the admissibility of evidence presented at the punishment phase of trial, admitted evidence must satisfy Rule 403. See Rogers v. State, 991 S.W.2d 263, 266 (Tex.Crim.App.1999). Rule 403 provides for the exclusion of relevant evidence when its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Tex.R. Evid. 403. Thus, relevant evidence otherwise admissible under Article 37.07 is inadmissible if it fails to comport with Rule 403. See Rogers, 991 S.W.2d at 266-67. A Rule 403 objection requires that the trial court balance the probative value of the evidence against its potentially prejudicial effect. Montgomery v. State, 810 S.W.2d 372, 388-90 (Tex.Crim.App.1990). Such a balancing test includes, but is not limited to, four factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence. Id. at 389-90; see also Sunbury v. State, 88 S.W.3d 229, 235 (Tex.Crim.App.2002) (suggesting in dicta that the Montgomery factors apply to Rule 403 decisions on punishment evidence).

Appellant contends that Jackson’s testimony indicating that he robbed, kidnapped, and sexually assaulted her violated Rule 403 because its prejudicial effect substantially outweighed its probative value. Appellant’s claim rests largely on his insistence that he was acquitted of kidnapping and sexual assault. He contends that his acquittal on those charges undermines any probative value accorded to the facts and circumstances surrounding the events of June 3,1999.

Appellant’s Rule 403 arguments are without merit. Although Jackson’s testimony was undoubtedly prejudicial, we cannot say that the trial court abused its discretion in concluding that its probative value was not substantially outweighed by the danger of unfair prejudice. Jackson’s testimony was highly probative of appellant’s character and thus instrumental in giving complete information to the jury so that it could tailor an appropriate sentence. See Erazo v. State, 144 S.W.3d 487, 491 (Tex.Crim.App.2004). Moreover, the State only briefly examined Jackson on the details of appellant’s sexual assault against her. Finally, as previously noted, appellant failed to establish that he was acquitted of kidnapping and sexual assault. By providing the details of appellant’s assault against her, Jackson’s testimony was probative of a prior adjudicated offense for which appellant was found guilty. We conclude that the trial court’s determination that the complained-of evidence was not prohibited by Rule 403 falls within the zone of reasonable disagreement. See Roberts, 29 S.W.3d at 600.

We overrule appellant’s second point of error.

Appellant’s TDCJ Disciplinary Records Complaints

In his third and fourth points of error, appellant contends that the trial court erred in admitting his TDCJ disciplinary records.

It is well within the trial court’s discretion to admit properly authenticated records of disciplinary infractions during a trial’s punishment phase. See Jackson v. State, 822 S.W.2d 18, 30-31 (Tex.Crim.App.1990), cert, denied, 509 U.S. 921, 113 S.Ct. 3034, 125 L.Ed.2d 722 (1993). Such records constitute admissible evidence for the purposes of showing extraneous bad acts by a defendant during a trial’s punishment phase. See Tex.Code CRiM. PROC. Ann. art. 37.07, § 3(a)(1).

Appellant contends that the admission of the records informed the jury that he was incarcerated for the aggravated robbery of Carroll, a conviction that was under appeal during appellant’s trial in the instant case. See Lamb v. State, No. 01-03-00587-CR, 2004 WL 1472114 (Tex.App.-Houston [1st Dist.] July 1, 2004, pet. ref'd) (mem.op.). Though Carroll did testify during the punishment phase about his encounter with appellant, the State did not present any evidence that appellant’s imprisonment re-suited from those events. As appellant’s confinement was necessarily related to the challenged disciplinary records, the State could not have introduced the records without revealing that appellant was in the TDCJ’s custody.

Appellant further contends that the admission of his TDCJ records violated Rule 403, because the records’ probative value was substantially outweighed by the danger of unfair prejudice and jury confusion. Appellant’s contention is without merit. The complained-of records were probative in that they informed the jury of appellant’s character and provided relevant information for the jury to assess an appropriate sentence. See Erazo, 144 S.W.3d at 491.

As noted, a trial court possesses wide discretion in determining the admissibility of evidence during a trial’s punishment phase. See Henderson, 29 S.W.3d at 626. We conclude that the trial court’s admission of appellant’s TDCJ records was not an abuse of discretion.

We overrule appellant’s third and fourth points of error.

Conclusion

We affirm the judgment of the trial court.

      . Two hours after robbing Doku, appellant and his companions robbed Rupert Carroll. Lamb v. State, No. 01-03-00587-CR, 2004 WL 1472114 (Tex.App.-Houston [1st Dist.] July 1, 2004, pet. ref’d) (mem.op.). Appellant was convicted of aggravated robbery in the Carroll case. Id. He conviction in that case was affirmed by this court on July 1, 2004. Id.

      . There are two types of contextual evidence: (1) evidence of other offenses connected with the primary offense, referred to as same transaction contextual evidence and (2) general background evidence referred to as background contextual evidence. Mayes v. State, 816 S.W.2d 79, 86-87 (Tex.Crim.App.1991).

      . Appellant argues that because the records in question were expunged, he was unable to provide a more complete record for the court to review. Appellant's claim is contradicted by the plain language of various statutory provisions. Article 55.02 of the Code of Criminal Procedure provides that court records concerning expunction proceedings are accessible to "the person who is the subject of the order.” Tex.Code Crim. Proc. Ann. art. 55.02, § 5(c) (Vernon Supp.2005). Article 55.02 further provides that records expunged because of an acquittal shall be made inaccessible to the public, but not be destroyed. Id. at § 5(d). Article 55.03 provides that expunged records themselves, if they are not destroyed, are accessible to the person who is the subject of the criminal history record information. Id. art. 55.03. In sum, these statutory provisions suggest that: (1) at a minimum, appellant could have provided a record of the expunction proceedings, if any; (2) if appellant’s records were expunged because of an acquittal they have not been destroyed; and (3) if appellant’s records have not been destroyed, they are accessible to him. Thus, without more, we cannot accept appellant’s contention that the records at issue are beyond his reach. We also note that appellant made essentially the same argument in Lamb v. State, No. 01-03-00587-CR, 2004 WL 1472114 (Tex.App.-Houston [1st Dist.] July 1, 2004, pet. ref’d) (mem.op.). In that appeal, appellant also failed to produce evidence in support of his contention that he was acquitted in cause nos. 823812 and 823813.

      . We note that the jury learned that appellant had been indicted for sexual assault and kidnapping only after appellant’s trial counsel introduced into the evidence the indictments corresponding to those offenses.


source: Caselaw Access Project

author: GEORGE C. HANKS, JR., Justice.

license: Public Domain

text:
    Tim BEVERICK, Appellant, v. KOCH POWER, INC., Flint Hills Resources, L.P., and Entergy-Koch Trading L.P., Appellees.
    No. 01-03-01300-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 29, 2005.
    Rehearing Overruled March 13, 2006.

      Timothy A. Beverick, Sugar Land, pro se.
    Mark Allen White, Edward John O’Neill, Jr., Howrey, LLP, Houston, for Appellee.

      Panel consists of Justices TAFT, HANKS, and BLAND.
   OPINION

GEORGE C. HANKS, JR., Justice.

Tim Beverick, appellant, sued Koch Power, Inc., Flint Hills Resources, L.P., and Entergy-Koch Trading L.P. (hereafter collectively referred to as “Koch”) for breach of contract, promissory estoppel, fraud, quantum meruit, and punitive damages after they failed to pay him the bonus they allegedly promised to pay him for legal services rendered. Beverick contends that the trial court erred in granting Koch’s motions for summary judgment. We affirm.

Background

Beverick, an attorney for Koch Power, Inc., alleges that Koch orally promised him a bonus of based on the savings for his work on the Pine Bend Power Project (“the Project”). The Project involved negotiating a new contract for the purchase of electricity over a 10-year period for Koch’s Pine Bend Refinery. The goal of the Project, as fellow attorney Bill Windle stated in testimony, was to “save money for the refinery.” According to Beverick, Koch promised that he and Windle would split a bonus of 10 to 15% of the net present value of the after-tax expected savings from the Project in a lump sum at the Project’s closing. Koch failed to pay the bonus at closing, and, instead “proposed to Beverick that he would receive a bonus of approximately $400,000.” Bever-ick initially sued Koch Power under theories of breach of contract, promissory es-toppel, and fraud; later, he added a claim for quantum meruit.

Koch filed no-evidence and traditional motions for summary judgment and also filed a separate motion attacking Bever-ick’s claim for punitive damages. The trial court granted both of Koch’s summary judgment motions without specifying its grounds and rendered a take-nothing judgment against Beverick.

Standard of Review

We follow the usual standard of review for an order granting summary judgment without specifying grounds. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001). When a trial court does not state the basis for its decision in its summary judgment order, as in this case, we must uphold the order if any of the theories advanced in the motion is meritorious. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).

When reviewing a trial court’s granting of a motion for summary judgment, we consider the evidence in the light most favorable to the non-movant and indulge every reasonable inference in the non-mov-ant’s favor. Tex.R. Civ. P. 166a(i); Flame-out Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet). A summary judgment for the defendant that disposes of a plaintiffs entire case is proper only if the defendant can show that the plaintiff could not succeed on any of the theories pleaded. Wheeler v. Yettie Kersting Mem’l Hosp., 866 S.W.2d 32, 36 (Tex.App.-Houston [1st Dist.] 1993, no writ).

No-Evidence Motion for Summary Judgment

A rule 166a(i) motion for summary judgment is properly granted when a movant establishes that, “[a]fter adequate time for discovery!,] • • • there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” Tex.R. Civ. P. 166a(i); see also Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). A no-evidence summary judgment is, therefore, like a directed verdict. Flameout, 994 S.W.2d at 834. To defeat a no-evidence motion for summary judgment, the non-movant must produce summary judgment evidence raising a genuine issue of material fact. Tex.R. Crv. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). A genuine issue of material fact exists if the non-movant produces more than a scintilla of evidence establishing the existence of the challenged element. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex.2004); A.H. Beto Corp. v. Corcoran, 52 S.W.3d 375, 378 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995).

Traditional Motion for Summary Judgment

To succeed in a motion for summary judgment under rule 166a(c), a movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). In deciding whether there is a disputed issue of material fact, every doubt must be resolved in favor of the non-movant. Johnson, 891 S.W.2d at 644; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Additionally, we take all evidence favorable to the non-movant as true. Lawson v. B Four Corp., 888 S.W.2d 31, 33 (Tex.App.-Houston [1st Dist.] 1994, writ denied).

Statute of Frauds

In their traditional motion for summary judgment, Koch asserted that Bever-ick’s causes of action for breach of contract, promissory estoppel, and fraud were barred by the statute of frauds because these claims were based upon an alleged oral promise that could not be performed within one year. Beveriek argues that, because it was possible for the project to be completed within one year, the statute of frauds does not apply. We agree.

Whether a contract falls within the statute of frauds is a question of law. Iacono v. Lyons, 16 S.W.3d 92, 94 (Tex.App.-Houston [1st Dist.] 2000, no pet.); see also Niday v. Niday, 643 S.W.2d 919, 920 (Tex.1982) (stating that, if an agreement, either by its terms or by the nature of the required acts, cannot be performed within one year, it falls within the statute of frauds and must be in writing.) A contract that could possibly be performed within a year, however improbable performance within one year may be, does not fall within the statute of frauds. Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12,15 (1957). The fact that the entire performance within one year is not required, or expected, will not bring an agreement within the statute. Iacono, 16 S.W.3d at' 95.

Beverick completed this project in two years. When asked if he could have completed the project in less time, Beverick testified, “Not under the circumstances, no.” “We moved everything along as fast as we could.” Beverick was asked specifically if there was any way to have completed the project in one year, and he answered, “I mean, if the moon [sic] lined up and if Northern States Power didn’t fight to let us go and all of the parties—you know, we had some pro forma contract to do this on, then it would be easy.” Bever-ick testified that “I won’t say it was impossible, but there were a lot of things that would have had to fall in place for [the deal to have been completed within one year].”

The summary judgment evidence, viewed in a light most favorable to Bever-ick, establishes the possibility that Bever-ick could have completed the Project in one year. Therefore, the statute of frauds did not preclude Koch from entering into an oral contract with Beverick.

Breach of Contract

Beverick contends that the evidence was sufficient to create a fact issue and that the trial court erred in granting summary judgment on his breach-of-contract claim.

In their no-evidence motion for summary judgment, Koch asserted that there was no evidence that

(1)The contract alleged by Plaintiff was
a valid oral contract including:
(a) an offer by any Defendant from a person with authority to make an offer on behalf of each Defendant;
(b) acceptance by Plaintiff;
(c) a meeting of the minds between an authorized agent of each Defendant on behalf of any Defendant and Plaintiff;
(d) consent to the terms by Plaintiff and an authorized agent of each Defendant;
(e) execution of a contract with the intent that it be mutual and binding; or
(f) consideration provided by Plaintiff;
(2) The Plaintiff tendered the performance demanded by the contract;
(3) Any Defendant breached the contract; or
(4) Plaintiff was damaged as a result of any Defendant’s breach.

To prevail on a breach-of-contract claim, it must be proven that (1) a valid contract between plaintiff and defendant existed, (2) the plaintiff performed or tendered performance, (3) the defendant breached the contract, and (4) the plaintiff sustained damages as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).

Valid Contract

The elements of a valid contract are: (1) an offer, (2) an acceptance, (3) a meeting of the minds, (4) each party’s consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Id.

In their no-evidence motion for summary judgment, Koch contested each element of the “valid” contract with Beverick. Beverick was therefore required to produce more than a scintilla of evidence raising a genuine issue of material fact on each element. Flameout Design & Fabrication, Inc., 994 S.W.2d at 834.

Offer

Beverick does not allege the breach of a written contract. Rather, he asserts that Koch orally promised him a bonus based on expected savings of the Project. In determining the existence of an oral contract, the court looks to the communications between the parties and to the acts and circumstances surrounding those communications. Prime Prods., 97 S.W.3d at 636. For Beverick’s contract claim to be valid and enforceable, he must allege and prove that the oral contract was made with an authorized agent who had authority to bind Koch. S. County Mut. Ins. Co. v. First Bank & Trust of Groves, 750 S.W.2d 170,172 (Tex.1988).

In his response to Koch’s motions for summary judgment, Beverick argued that “Bill Windle, who worked with Mr. Bever-ick on Pine Bend, testified that based on the representations of Defendants’ management, he believed that the Pine Bend bonus was to be paid on the expected savings on the project.” He further stated that “Windle, an employee of EKT [Enter-gy-Koch Trading], told Beverick that Rob Smith, an officer of KET [Koch Energy Trading], represented that Windle and Beverick would split a bonus pool on Pine Bend of ten to fifteen percent of the expected after-tax savings.”

Despite Beverick’s allegations of oral contract representations from several Koch executives, in his deposition, he acknowledged that the only person who directly promised him the bonus at issue in this case was Bill Windle, a fellow employee. Beverick testified further that he agreed that Windle lacked the authority to enter into a bonus agreement with Bever-ick on behalf of Koch. Beverick testified as follows:

Q. Now, are you claiming that Mr. Windle had the authority on behalf of any of these defendants—
A. Not Windle.
Q. — to bind them to pay you half of 10 to 15 percent of the expected savings?
A. Not Windle, no. I mean, I don’t know if he would have had — I mean, if the promise didn’t come from him, I don’t know if he had authority or not.
Q. Well, you know that he did not have authority to bind the company he was working for or any — at the time — or any of these defendants to pay you any sort of bonus; correct?
A. Well, he wasn’t the promisor in this case, right.
Q. So he did not have that authority, did he?
A. Correct.
Q. But as you have just already testified, back when your deposition was taken a year ago, and have testified here again today, Bill Windle is the only person you’re claiming told you that your Pine Bend bonus was going to be half of the 10 to 15 percent number, correct?
A. Well, I mean, as far as — as far as I was concerned, when he came to me he had just talked to Rob [Smith], and Rob and David [Owens] were David Sobotka’s mouthpieces.
Q. But Rob Smith never made that representation to you, did he?
A. He knew by telling Bill — Bill and I were together every day for two years. He knew by Bill it was telling me.
Q. Did Rob Smith make that representation to you?
A. No, he didn’t have to. He knew—

Beverick argues that, despite Win-dle’s lack of authority to bind, there was at least one person with authority who neglected to correct Beverick’s mistaken belief that he was getting a more substantial bonus. Beverick said that he

repeatedly stated his understanding that his bonus would be 10-15% of expected savings and Mr. Owens [an executive with KET] never disputed it or told Beverick that he was incorrect. Thus, by leading Mr. Beverick to believe that his understanding was correct, and by not objecting to Mr. Beverick’s statements concerning his understanding of the bonus agreement, Owens manifested his belief in the truth of those statements and adopted those statements as true.

We disagree. Beverick may not establish the existence of an offer through the silence of another party. Silence cannot satisfy the basic requirements of contract creation. See Texas Ass’n of Counties County Gov’t Risk Mgmt. Pool v. Matagorda County, 52 S.W.3d 128, 132 (Tex.2000) (holding that silence and inaction will not be construed as an assent to an offer). Beverick admitted that he could not swear under oath that Owens ever made an offer of a bonus based on 10 to 15% of savings. At most, Beverick testified that he “inferred it.”

Accordingly, we hold that there is no evidence that Beverick established the existence of an offer. Without an offer, we need not determine if there was evidence of the remaining elements of a valid contract.

We overrule point of error one.

Promissory Estoppel

Beverick contends that the trial court erred in granting Koch’s promissory estoppel motion for summary judgment.

In their no-evidence motion for summary judgment, Koch asserted that there was no evidence that

(1) An authorized representative of any Defendant made an authorized oral promise to Plaintiff;
(2) An authorized representative made any oral promise for which it was reasonable and foreseeable that Plaintiff would rely; or
(3)Plaintiff reasonably and justifiable [sic] relied to his detriment on any oral promise made by an authorized representative of any Defendant.

Beverick asserts that he provided sufficient evidence of promissory estoppel to survive summary judgment. The elements of promissory estoppel are (1) a promise, (2) Koch’s foreseeability of Bever-ick’s reliance thereon, and (3) substantial reliance by Beverick to his detriment. See English v. Fischer, 660 S.W.2d 521, 524 (Tex.1983); Leach v. Conoco, Inc., 892 S.W.2d 954, 959 (Tex.App.-Houston [1st Dist.] 1995, writ dism’d w.o.j.). As we held above, there is no evidence that a person with authority “promised” Beverick that he would receive a split of 10 to 15% of expected net savings. Beverick does not dispute that Koch employed him at will and paid him an agreed salary.

We hold that the trial court did not err when it granted Koch’s summary judgment on Beverick’s promissory estoppel claim.

Fraud

Beverick asserts that the trial court erred by granting Koch’s summary judgment motion for his claim of fraud.

In their no-evidence motion for summary judgment, Koch asserted that there was no evidence that

(1) Any Defendant authorized any party to make an oral representation to Plaintiff regarding an alleged bonus;
(2) An authorized representation was made on behalf of any Defendant;
(3) An authorized representative of any Defendant orally made a representation that any Defendant knew to be false at the time it was made;
(4) Plaintiff reasonable [sic] relied on any oral representation by a representative of any Defendant; or
(5) That Plaintiff was injured in any way or suffered damages [sic] a result of his reliance.

A cause of action for fraud requires (1) a material misrepresentation, (2) that was either known to be false when made or was asserted without knowledge of its truth, (3) which was intended to be acted upon, (4) which was relied upon, and (5) which caused injury. Formosa Plastics Corp. USA v. Presidio Eng’rs and Contractors, Inc., 960 S.W.2d 41, 47 (Tex.1998). The mere failure to perform a contract is not evidence of fraud. Id. at 48. When a promise is made to do a future act with no intention of performing the act, the promise constitutes an actionable misrepresentation when made with no intention of performing the act. Id.; Oliver v. Rogers, 976 S.W.2d, 792, 804 (Tex.App.-Houston [1st Dist.] 1998, no pet).

The first element of a claim for fraud is that the defendant made a material misrepresentation. Formosa Plastics, 960 S.W.2d at 48. Beverick has not produced evidence that anyone with authority made a representation to him regarding the alleged bonus. Beverick asserts that the same facts support both his claim for breach of contract and his claim for fraud. Although Beverick states that David Owens’s silence led him to believe that he would receive one-half of 10 to 15% of the expected Pine Bend savings, Beverick has not demonstrated that Owens had a duty to disclose the actual amount of the bonus to him.

A failure to disclose, however, is only actionable as fraud when there is a duty to disclose. See Bradford v. Vento, 48 S.W.3d 749, 755 (Tex.2001). A duty to disclose arises only out of a confidential or fiduciary relationship. Moorehouse v. Chase Manhattan Bank, 76 S.W.3d 608, 615 (Tex.App.-San Antonio 2002, no pet.). Texas does not recognize a fiduciary duty or a duty of good faith and fair dealing owed by an employer to an employee. City of Midland v. O’Bryant, 18 S.W.3d 209, 216 (Tex.2000) (holding that there is no duty of good faith and fair dealing in the employment context).

Koch had no duty to disclose the amount of Beverick’s project bonus; therefore, their failure to disclose it is not an actionable misrepresentation. There is no evidence that Koch made an actionable misrepresentation to Beverick. Accordingly, we hold that there is no evidence that there was a material misrepresentation made. Having so held, we need not address the remaining elements of fraud.

Quantum Meruit

Beverick contends that the trial court erred by rendering summary judgment on his quantum-meruit claim.

In their no-evidence motion for summary judgment, Koch asserted that there was no evidence

(1) That Plaintiff performed any services for' any Defendant for which he was not compensated; or
(2) Of the reasonable value of any uncompensated services performed by Plaintiff for any Defendant.

The quasi-contractual theory of quantum meruit is based on a promise implied by law to pay for beneficial services rendered and knowingly accepted. C.M. Asfahl Agency v. Tensor, Inc., 185 S.W.3d 768, 792 (Tex.App.-Houston [1st Dist.] 2004, no pet.). To be entitled to submit a claim of quantum meruit, the claimant must present more than a scintilla of evidence that: (1) the plaintiff rendered valuable services or furnished materials; (2) for the party sought to be charged; (3) the party sought to be charged accepted and enjoyed the services or materials; and (4) the party sought to be charged had reasonable notice that the plaintiff, in performing the services or providing the materials, expected payment. See Vortt Expl. Co. v. Chevron U.S.A, Inc., 787 S.W.2d 942, 944 (Tex.1990).

Beverick was in-house counsel for Koch, and he provides no evidence that his assignment on the Project was not part of his job duties falling under his employment contract. Even if his work benefit-ted Koch, proof of a benefit does not prove that the services were beyond the scope of his employment. If the work that Bever-ick performed on the Project was within the scope of his employment, then his work was performed pursuant to his employment for Koch, and he cannot make a claim in quantum meruit. See Murray v. Crest Constr., Inc., 900 S.W.2d 342, 345 (Tex.1995). Furthermore, Beverick presented no evidence relating to (1) the description of the work that he performed outside of his regular work, (2) the value of such work, and (3) the reasonableness of any value that could be assigned to the work. Accordingly, we hold that the trial court did not err in granting summary judgment on Beverick’s quantum meruit claim.

Punitive Damages

Beverick contends that the trial court erred in ruling that he did not have a valid punitive damages claim.

Beverick’s argument presumes a valid contract, a duty to disclose to correct a mistaken impression, and a “deliberate” decision not to disclose. We have already held that there was no valid contract and that there is no duty to disclose in an employment-bonus context.

Beverick’s only basis for punitive damages was fraud, and we have held that he did not sufficiently establish a cause of action for fraud. Punitive damages may be awarded only when there are some actual damages in tort. Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 667 (Tex.1990). We hold that the trial court did not err in finding that Beverick presented no evidence to support his punitive damages claim.

Having held accordingly, we need not address Beverick’s issues relating to the relevance of the Bonus Document or his alleged acceptance of the first installment as satisfaction of Koch’s complete obligation to his entire bonus claim.

CONCLUSION

We affirm the trial court’s orders granting Koch’s motions for summary judgment.

      . In his petition, Beverick stated that "Koch's savings from the Pine Bend project are estimated to exceed $100 million.”

      . Beverick added defendants Flint Hills Resources, L.P. and Entergy-Koch Trading, L.P.

      . The statute of frauds, set forth in section 26.01 of the Texas Business and Commerce Code, provides that, to be enforceable, a promise or agreement which cannot be performed within one year from the date of making the agreement must be in writing and signed by the person to be charged with the promise. Tex. Bus. & Com.Code Ann. § 26.01(b)(6) (Vernon 2002).

      . Beverick argues that the Supreme Court of Texas has "ruled that an employer committed fraud by promising to pay an employee a bonus to induce him to remain employed and then failing to pay it.” Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 436 (Tex.1986). The facts before us, however, are quite different from those in Spoljaric. Here, unlike in Spoljaric, the offer was made by someone who lacked the authority to bind the employer. Further, the alleged 10 to 15% bonus arrangement was not in writing, unlike Spol-jaric where the bonus plan was in writing.


author: LAURA CARTER HIGLEY, Justice.

text:
    HARRIS COUNTY APPRAISAL DISTRICT, Appellant, v. (KEMPWOOD PLAZA LTD.) Hartman Reit Operating Partnership, L.P., Appellee.
    No. 01-05-00183-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 5, 2006.
    Rehearing Overruled March 7, 2006.

      G. Todd Stewart, Olson & Olson, Houston, for appellant.
    Leslie Diane Hensley, Alan N. Magen-heim, Magenheim & Associates, Houston, for appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

Appellee, Hartman Reit Operating Partnership, L.P. (Hartman), sued appellant, Harris County Appraisal District (HCAD), to lower its ad valorem tax liability for tax years 1999 through 2003 for its Kempwood Plaza LTD. (Kempwood) property. Prior to the trial, HCAD filed a motion to exclude Gary Brown, Hartman’s expert appraisal witness. The trial court denied HCAD’s motion. HCAD subsequently re-urged the motion prior to Brown’s testimony, after Hartman closed, and — after the jury returned a verdict in favor of Hartman — in a motion for judgment notwithstanding the verdict. Each time, the trial court denied the request. HCAD now appeals the judgment, arguing in one point of error that it was error for the trial court to have admitted Brown’s testimony.

We affirm.

Background

Kempwood is classified by HCAD under the land use code of 343 (a neighborhood shopping center) and the building class of D (a property which has “low rent, inferior maintenance, poor and unstable occupancy, poor signage, poor design, no quality tenants, poor tenant mix, weak anchor tenant, or failure to attract customer traffic”). The property is 112,072 square feet. To support its contention that the Kempwood property was unequally appraised, Hartman hired Brown to assess the appraised value of comparable properties. Brown’s research consisted primarily of compiling data taken from HCAD’s website. Brown began by looking for properties in the surrounding area with the land use code of 343 and the building class of D. This produced a list of 24 properties. Prom that list, Brown restricted it to properties between 60,000 and 200,000 square feet. This left Brown with nine properties.

Brown then made adjustments in value according to the properties’ location, age, and size. For location, he made upward adjustments to a couple of properties that he believed to be in inferior locations. For age, Brown made downward adjustments on some of the newer properties. For size, Brown made downward adjustments on some of the smaller properties.

Brown finally calculated the median per-square-foot value of the properties for each tax year, and applied those values to Kempwood. The final calculations showed a significant disparity between Brown’s median value and the value assessed by HCAD.

Admission of Expert Witness

In its sole point of error, HCAD argues that the trial court erred in admitting the testimony of Hartman’s expert witness, Gary Brown.

A. Standard of Review

We review a trial court’s ruling on a motion to exclude an expert witness under an abuse of discretion standard. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex.1998); Wolfson v. BIC Corp., 95 S.W.3d 527, 531 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). We will not reverse a trial court’s judgment even if we would have held differently, or even if the trial court made a mere error in judgment. Id. at 531-32. Instead, we only reverse if the trial court acted without reference to any guiding rules or principles. Id. at 532. Thus, a trial court enjoys wide latitude in determining whether expert testimony is admissible. Id.

B. Analysis

In Gammill, our supreme court held that all expert testimony must be relevant and reliable under Rule of Evidence 702. 972 S.W.2d at 727. Appraisal expertise is a form of “specialized knowledge [used to] assist the trier of fact to determine a fact in issue.” Guadalupe- Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex.2002) (quoting Tex.R. Evid. 702). It is therefore subject to Gammill’s relevance and reliability requirements. Id. The proponent of expert testimony must show that the opinions are both relevant to the issues and based upon a reliable foundation. Id.; E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995) (adopting analysis of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-90, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993)). The trial court must make the threshold determination of whether the testimony meets both the relevancy and reliability standards for admissibility under Rule 702. Robinson, 923 S.W.2d at 557.

1.Qualifications

Although Rule 702 of the Texas Rules of Evidence requires a finding that the witness is qualified to testify, we do not review that finding in this appeal. During the trial, HCAD stipulated that Brown was qualified as a real estate appraiser. In its brief, however, HCAD argues that it did not stipulate to Brown being qualified to determine (1) what a reasonable number of properties was, (2) what qualified as a comparable property, or (3) how to make appropriate adjustments. Regardless, this is part of the work involved in making appraisals. If HCAD had not meant to stipulate to Brown’s qualifications in these areas, it should have qualified its stipulation at trial. See Hansen v. Academy Corp., 961 S.W.2d 329, 335 (Tex.App.~Houston [1st Dist.] 1997, pet. denied) (enforcing stipulation because it was clear and no qualification given to court). We hold this argument is waived.

2. Relevance

The relevance requirement, which incorporates traditional relevancy analysis undér Rules of Evidence 401 and 402, is met if the expert testimony is “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Robinson, 923 S.W.2d at 556. Evidence that has no relationship to any issue in the case does not satisfy rule 702 and is thus inadmissible under rule 702, as well as under rules 401 and 402. Id.

The original suit was brought under the former subsection 42.26(d) of the Texas Tax Code. Act of June 1,. 1997, 75th Leg., R.S., ch. 1039, § 42, 1997 Tex. Gen. Laws 3897, 3917 (amended 2003) (current version at Tex. Tax.Code § 42.26(a)(3) (Vernon Supp.2005)). The former subsection 42.26(d) provided “[t]he district court shall grant relief on the ground that a property is appraised unequally if the appraised value of the property exceeds the median appraised value of a reasonable number of comparable properties appropriately adjusted.” Id. Thus, Brown’s job for the trial, at minimum, was to find a reasonable number of comparable properties, make appropriate adjustments, and compare the median appraisal value of those properties to the appraisal value applied tó Kemp-wood. This is what he did.

3. Reliability

This case turns, then, on whether Brown’s underlying data was reliable. When the reliability of an expert’s testimony is challenged, the trial court must “gauge” the expert’s reliability by ensuring “that the opinion comports with applicable professional standards outside the courtroom.” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001) (quoting Gam- mill, 972 S.W.2d at 725-26). In applying this reliability standard, however, the trial court does not decide whether the expert’s conclusions are correct; rather, the trial court determines whether the analysis used to reach those conclusions is reliable. Gammill, 972 S.W.2d at 728. Expert testimony is also unreliable if there is too great an analytical gap between the data upon which the expert relies and the opinion offered. Id. at 727.

a. Weingarten

Both parties pay significant attention to Weingarten Realty Investors v. Harris County Appraisal District, 93 S.W.3d 280 (Tex.App.-Houston [14th Dist.] 2002, no pet.). The facts of Weingarten are very similar to this case. However, in that case, the trial court granted HCAD’s motion to exclude the expert witness. Id. at 283. The Fourteenth Court of Appeals affirmed, finding the following deficiencies in the witness’s underlying data: (1) the compared properties were significantly smaller than the Weingarten property; (2) nine of the ten compared properties had per-square-foot appraised values significantly lower than the Weingarten property; (3) the expert only compared ten properties, even though there were 191 retail centers in the same quadrant as the Wein-garten property; (4) the expert carved out portions of some of the compared properties due to disparate ownership; (5) the adjustments made to the compared properties were only for physical characteristics of conditions, age, size, and location; and (6) the amount of adjustment for each characteristic of the compared properties was subjective. Id. at 285-86.

In formulating his analysis, Brown attempted to avoid the pitfalls of Weingar-ten. Brown’s research consisted primarily of compiling data taken from HCAD’s website. Brown began by looking for properties in the surrounding area with land use code 343 and building class D. Properties under land use code 343 are neighborhood shopping centers. Building' class D applies to properties which have “low rent, inferior maintenance, poor and unstable occupancy, poor signage, poor design, no quality tenants, poor tenant mix, weak anchor tenant, or failure to attract customer traffic.” From this initial query, Brown came up with 24 properties. Brown then further restricted the query to properties between 60,000 and 200,000 square feet. This left Brown with nine properties.

Brown then made adjustments in value according to the properties’ location, age, and size. For location, he made upward adjustments to a couple of properties that he believed to be in locations inferior to Kempwood’s location. For age, Brown made downward adjustments on some of the newer properties. For size, Brown made downward adjustments on some of the smaller properties.

Brown’s final list contained properties both larger and smaller than Kempwood to avoid the first problem in Weingarten, that of choosing only smaller compared properties. Brown searched HCAD’s website with the criteria of land use code 343 and building class D to avoid the third problem in Weingarten, that of selecting only a small number of compared properties. While the final list was of the same approximate size as in Weingarten, the intent was to make it a list of properties significantly similar to Kempwood. Although Brown only made adjustments for physical characteristics, he felt that, because the criteria he used in his search already encompassed economic factors, he had avoided the need to make further adjustments and had avoided the fifth problem in Weingarten, that of making limited adjustments.

. We note, additionally, that the second problem in Weingarten is not, in and of itself, a problem. If property has been inappropriately appraised, it would not be surprising for the per-square-foot appraisal values of the compared properties to be lower than that of the complained of property. Regardless, HCAD admitted at trial that the second Weingarten problem was not a problem in this case.

b.Basic Methodology

HCAD presents a list of problems that, it argues, prevents Brown’s analysis from being considered reliable. First, HCAD argues that Brown admitted at trial that the report was “not really an appraisal” and that he did not comply with the standards of the Uniform Standards of Compa-rables. However, in respect to both points, Brown’s testimony clarified how he developed his report. Contextually, his statements contained no admission of error.

Similarly, HCAD complains that Brown “made no effort to verify [HCAD’s] information.” However, we cannot see why Brown should be expected to verify HCAD’s data. HCAD also complains that Brown did not look at all of the compared properties. This is incorrect. Brown testified that either he or his assistant viewed each compared property as well as Kemp-wood.

In reference to Weingarten, HCAD argues that nine properties was not a reasonable number for the purposes of the former subsection 42.26(d) of the Texas Tax Code. We disagree. Brown ran a query for similar properties in the same approximate area as Kempwood in order to avoid the pitfall of comparing unrelated properties. Based on his criteria, he was left with nine properties. Thus, Brown had the choice to either base his evaluation on those nine properties or to expand his list by including properties that had fewer similarities to Kempwood.

c. Comparability of Properties

HCAD complains that Brown did not research the occupancy rates of the compared properties. Brown admitted that he did not, but he also said that the classification of building class D already accounted for this characteristic. This was never controverted at trial.

HCAD complains that four of the compared properties were divided among different owners with different HCAD accounts and that Brown only used one of the accounts for each of the four. This is similar to the charge that the expert witness in Weingarten carved out portions of some of the compared properties. Id. at 286. We consider this argument to have some merit and review it further in section 4 below.

d. Adjustments

According to HCAD’s website, the year of construction for Kempwood was 1970. During discovery, Hartman turned over an SEC filing that listed the year of construction as 1974. HCAD argues that Brown’s adjustments for age were flawed because they did not take into account the correct year that Kempwood was constructed. However, there is no indication that HCAD ever used the 1974 year either. Considering that this suit was brought under the legal theory that Kempwood was appraised unequally based on a comparison to the median value of similar properties, it was reasonable for Brown to base his conclusions on the same data that HCAD used in determining the appraised value. Absent a showing that HCAD did not use 1970 as the year of construction, we hold there was no error in Brown’s using the same year.

For the properties that Brown did adjust for age, HCAD argues that Brown was unable to “explain the math” behind his adjustments. While Brown did provide a rationale for the adjustments he made, there was no precise mathematical formulation that lead to his using 15% as the rate of adjustment. However, this was not required. Appraising property is not an exact science based on set mathematical formulas. It is not error for an appraiser to use his or her personal experience and expertise to make certain determinations. Exxon Pipeline Co. v. Zwahr, 35 S.W.3d 705, 711 (Tex.App.-Houston [1st Dist.] 2000) rev’d on other grounds, 88 S.W.3d 623 (Tex.2002). The question is whether there is too great of an analytical gap between the data and Brown’s determinations. Gammill, 972 S.W.2d at 727. For each of the compared properties adjusted with respect to age, Brown used the same 15% rate of adjustment; thus, the lack of a mathematical formula in this circumstance does not raise any suspicion of an analytical gap.

Next, HCAD argues that Brown failed to adjust the properties based on their “effective age,” that is, he presumed that each property received the same level of individual wear and tear, maintenance, updating, and remodeling over the years. First, even if this were correct, no evidence was presented to counter this presumption. Second, Brown stated that the building class D made these adjustments for him. Therefore, a manual adjustment by Brown was not required. Again, no evidence was presented to suggest this was incorrect.

HCAD presented evidence that three of the compared properties had been built in phases, instead of all at once. For at least two of the properties, Brown acknowledged that he had not made any adjustments due to the phased construction of the buildings. While HCAD failed to clarify the impact of the lack of these adjustments, we consider this argument to have some merit and discuss it further in section 4 below.

For locational adjustments, HCAD complains that Brown “did no analysis of market sales, rents, occupancies, or anything else.” Again, these were factors that Brown argued were incorporated into the building class D characteristic. By using this characteristic in limiting his search, Brown argued that the appropriate adjustments had already been made.

e. Building Class D

HCAD complains that one of the properties in Brown’s compared properties was in fact a building class C property. Even if there was error in Brown’s list of compared properties, this cannot be said to have harmed HCAD. A classification as a building class C property results in a higher appraised value than a building class D. Any error in this regard would only raise the median appraised value of the properties and undercut Hartman’s cause of action.

We recognize that Brown made a number of adjustment decisions based on the assumption that the building class D already accounted for a number of factors. To clarify, we do not hold today that those assumptions were correct. Instead, we note that Brown presented his bases for developing his underlying data. One of those bases was the building class D, and HCAD’s own description of what that classification meant: properties which have “low rent, inferior maintenance, poor and unstable occupancy, poor signage, poor design, no quality tenants, poor tenant mix, weak anchor tenant, or failure to attract customer traffic.” From that classification, Brown asserted that there was no further need to make certain economic adjustments to the compared properties. While HCAD questioned the reliability of that assumption multiple times, it presented no evidence to show that this assumption was incorrect.

It is true that Hartman bore the burden of establishing that Brown was qualified. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996). However, the trial court found that Hartman met its burden, and absent contradictory evidence, we cannot say that the court abused its discretion in making this determination.

f. Market Value

HCAD complains that Brown had no idea what the market values of Kemp-wood or the compared properties were. HCAD argues that United Investors, a case in the line of Weingarten, holds that when there is no evidence of market value, the court should presume that all of the properties were valued at their market value. Hams County Appraisal Dist. v. United Investors Realty Trust, 47 S.W.3d 648, 654 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). HCAD further argues that, because there is evidence of Kemp-wood’s market value in 1999, it would be unconstitutional not to use that value. We, however, find no such holding in United Investors. Instead, United Investors held that “it is unfair, and constitutionally prohibited, to require one taxpayer to pay a tax based on market values if other taxpayers are paying a rate that is lower than the market value of their properties .... If a conflict exists between taxation at market value and equal and uniform taxation, equal and uniform taxation must prevail.” Id. Further, the former subsection 42.26(d) of the Texas Tax Code required only an analysis between the appraised value of the property and the median appraised value of a reasonable number of comparable properties appropriately adjusted. Act of June 1, 1997, 75th Leg., R.S., ch. 1039, § 42, 1997 Tex. Gen. Laws 3897, 3917 (amended 2003).

4. Reviewing Trial Court’s Ruling

After considering all of HCAD’s arguments against the reliability of Brown, the two problems we are left with is that four of the compared properties were divided among different owners and that three of the compared properties had additional construction in later years. These problems raise some question as to the reliability of Brown’s underlying data, and the trial court expressed misgivings about the reliability of Brown’s data. Nevertheless, a trial court enjoys wide latitude in determining whether expert testimony is admissible. Keo v. Vu, 76 S.W.3d 725, 730 (Tex. App.-Houston [1st Dist.] 2002, pet. denied). Here, the trial court carefully considered the same arguments presented by HCAD on appeal. The two problems that HCAD points out do not rise to the level as to make the trial court’s ruling arbitrary, unreasonable, or made without reference to any guiding rules or legal principles. We hold that the trial court did not abuse its discretion in admitting Brown’s expert testimony.

Appellant’s point of error is overruled.

Conclusion

We affirm the judgment of the trial court.

      . While there appears to be little change in the current version of the statute, we emphasize that determining the effect of the changes is not before this Court today. Our analysis is concerned solely with the previous version.

      . The land use codes and property classes were developed by HCAD. These descriptions are applied to each property listed on its website.


author: JOHN CAYCE, Chief Justice. WALKER, J.,

text:
    In the Matter of D.J.H.
    No. 2-05-039-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 12, 2006.
    Rehearing Overruled Feb. 2, 2006.
    Jeff L. Pierce, Plano, for appellant.
    Bruce Isaacks, Crim. Dist. Atty., Charles E. Orbison, John R. Moore, Greg Davis and Michael Dickens, Asst. Crim. Dist. Attys., Denton, for appellee.

      PANEL F: CAYCE, C.J.; GARDNER and WALKER, JJ.

      . Cuny v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

   OPINION

JOHN CAYCE, Chief Justice.

D.J.H. appeals the trial court’s adjudication order declaring that he engaged in the delinquent conduct of criminal trespass. In two points, appellant challenges the legal and factual sufficiency of the evidence to support the jury’s finding that he engaged in delinquent conduct. We affirm.

The State’s petition alleged that, on or about January 5, 2004, appellant “did then and there intentionally or knowingly enter a habitation, of another namely, James Spielmaker, without the consent of the said James Spielmaker, and [appellant] ... had notice that the entry was forbidden.” In his first point, appellant contends the evidence is legally insufficient to show beyond a reasonable doubt that he (1) lacked Spielmaker’s effective consent to be in the residence or (2) had notice that entry was forbidden. Appellant asserts that Spielmaker did not tell him to leave and that appellant was simply in the process of “wrapping things up” before leaving because he was attempting to retrieve his CDs from the living room coffee table.

In reviewing the legal sufficiency of the evidence to support an adjudication of delinquency, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the delinquent conduct beyond a reasonable doubt. 'When performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. We must resolve any inconsistencies in the evidence in favor of the verdict.

“Notice” under the criminal trespass statute includes oral communication by the owner or someone with apparent authority to act for the owner. “Consent” means assent in fact, whether express or apparent. “Effective consent” includes consent by a person legally authorized to act for the owner.

' The evidence in this case shows as follows: Spielmaker owned the home where the alleged criminal trespass occurred, and he resided there with his girlfriend of six or seven years, Sherrie Curry, and Curry’s two minor children, Lane and Kelsey. A well-understood rule in Curry-Spielmaker residence was that when it became dark and the streetlight came on, the Curry children had to wrap up their play and all other children had to leave the residence. Sherrie Curry testified that she had told appellant “numerous times” about the “streetlight rule” and had also informed him that he was not to come into the home unless he was invited. Spielmaker also testified that, due to prior problems with appellant coming onto his property uninvited, he had personally informed both appellant and his parents more than once before January 5 that appellant was not to come into the house uninvited.

On January 5, 2004, when the streetlight came on, the Curry children told appellant that he had to leave, and he left via the front door. Spielmaker testified that the children had authority to provide such notice to their Mends and that on January 5 he observed both the children telling appellant to leave and appellant’s departure. Spielmaker heard the front door close when appellant left.

After appellant left, Spielmaker and a Mend, Dale McCarthy, talked in the kitchen for about twenty minutes. Spielmaker and McCarthy then walked from the kitchen into the living room, where they saw appellant “going through the stuff on the coffee table.” Spielmaker did not know that appellant had returned to the residence.

Spielmaker testified that he’d had problems with appellant before and “freaked out” and asked him, “What are you doing in my house?” Appellant was startled, had a look on his face like “I just got caught,” and ran out the front door. Neither Spielmaker nor the children had given appellant permission to re-enter the house. Kelsey testified that she saw him come back in the front door and begin “going through stuff on our coffee table” just before Spielmaker and McCarthy entered the living room. She confirmed that appellant “jumped up in a weird motion” and looked surprised when Spielmaker saw him. Kelsey further testified that Spiel-maker yelled at appellant “[f]or coming into the house without asking or knocking.”

Spielmaker sent Lane to appellant’s home across the street to find out what was going on. Lane returned with appellant, and Spielmaker again asked appellant what he was doing in Spielmaker’s house. When appellant did not respond to Spiel-maker’s questioning, Spielmaker slapped him. That same evening, appellant’s mother filed an assault charge against Spielmaker. Spielmaker did not report the trespassing incident until after he learned of the assault charge.

Viewed in the light most favorable to the jury’s verdict, this evidence is legally sufficient to establish beyond a reasonable doubt that appellant did not have Spielmaker’s effective consent, whether express or apparent, to re-enter Spielmaker’s residence after leaving it for the night. After appellant left the home, neither Spielmaker or the Curry children invited him back inside. Instead, Kelsey saw appellant let himself back in through the front door which was closed when appellant left, and Spielmaker did not even know appellant was there until he saw appellant in the living room.

Likewise, the evidence is legally sufficient to establish that appellant had notice that he lacked Spielmaker’s effective consent to re-enter the residence. Although Spielmaker did not personally tell appellant to leave on January 5, the Curry children, who had been authorized and were expected to enforce the “streetlight rule,” told appellant, in Spielmaker’s presence, that appellant had to go home. Further, appellant had been informed by Sherrie Curry of the “streetlight rule” on numerous occasions, and Spielmaker had told both appellant and his parents more than once that appellant was not to enter the Curry-Spielmaker home uninvited.

We hold that this evidence is legally sufficient to establish the lack of effective consent and notice elements of criminal trespass beyond a reasonable doubt. Accordingly, we overrule appellant’s first point.

In his second point, appellant challenges the factual sufficiency of the evidence. He did not, however, raise this issue in his motion for new trial. This court has held in an en banc opinion that “as a prerequisite to raising a factual sufficiency challenge on appeal from a juvenile adjudication hearing, an appellant must first file a motion for new trial challenging the factual sufficiency of the evidence.” In reaching this result we relied on In re M.R., in which the Supreme Court of Texas held that a motion for new trial is a prerequisite to asserting a factual sufficiency complaint in an appeal from a delinquency judgment. Accordingly, the doctrine of stare decisis demands that we hold that appellant’s factual insufficiency complaint is waived. Therefore, we overrule appellant’s second point.

Having overruled both of appellant’s points, we affirm the trial court’s adjudication order.

GARDNER, J. dissents without opinion to the majority’s holding that the evidence is legally sufficient to support the jury’s trespass finding.

WALKER, J., filed a concurring and dissenting opinion.

WALKER, J.,

concurring and dissenting.

While I concur with the majority’s holding that, applying the appropriate standard of review, the evidence is legally sufficient to support D.J.H.’s delinquency adjudication, I dissent from the majority’s holding that D.J.H. failed to preserve his factual sufficiency challenge. For the reasons set forth by Justice Dauphinot in her dissenting opinion in In re which I joined, I would hold that D.J.H.’s failure to file a motion for new trial complaining that the evidence was factually insufficient to support his adjudication did not forfeit his factual sufficiency complaints on appeal. 157 S.W.3d 823, 830-32 (Tex.App.-Fort Worth 2005, no pet.) (Dauphinot, J. dissenting). I do not agree that In re M.R., 858 S.W.2d 365, 366 (Tex.1993), cert, denied, 510 U.S. 1078, 114 S.Ct. 894, 127 L.Ed.2d 87 (1994) requires that a factual sufficiency claim in a juvenile case must be preserved by a motion for new trial, because when M.R. was decided we did not have jurisdiction to review factual sufficiency in criminal cases. In re 157 S.W.3d at 831. I would therefore address the merits of his complaints. Because the majority refuses to do so, I respectfully dissent.

      . See Tex. Penal Code Ann. § 30.05(a)(1) (Vernon Supp.2005).

      . The beyond a reasonable doubt burden of proof applies in the adjudication phase of a juvenile case. In re J.D.P., 85 S.W.3d 420, 422 (Tex.App.-Fort Worth 2002, no pet.).

      . Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App.2005); J.D.P., 85 S.W.3d at 422.

      . Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert, denied., 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).

      . Tex. Penal Code Ann. § 30.05(b)(2)(A) (Vernon Supp.2005).

      . Id. § 1.07(a)(ll).

      . Id. § 1.07(a)(19).

      . Lane testified that appellant had returned to the home to get some CDs he had left behind, but that he came back inside uninvited. Kelsey confirmed this. Lane further testified that appellant said, “Jim, wait,” when Spielmaker made appellant leave; but both Lane and Kelsey testified that appellant did not tell Spielmaker that he had come back for his CDs. Appellant's mother testified that the CDs were later left on her doorstep.

      . Spielmaker testified that he had pleaded guilty in municipal court to the assault charge and paid a $280 fine.

      . See Tex. Penal Code Ann. § 1.07(11), (19).

      . See id § 30.05(b)(2)(A).

      . See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Hampton, 165 S.W.3d at 693.

      . In re J.B.M., 157 S.W.3d 823, 827-28 (Tex.App.-Fort Worth 2005, no pet.) (en banc).

      . J.B.M, 157 S.W.3d at 827-28; see In re M.R., 858 S.W.2d 365, 366 (Tex.1993), cert, denied, 510 U.S. 1078, 114 S.Ct. 894, 127 L.Ed.2d 87 (1994).

        .See Grapevine Excavation, Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5 (Tex.2000); see also Lubbock County, Texas v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002) (explaining that, once the supreme court announces a proposition of law, the decision is considered binding precedent and it is not for a court of appeals to abrogate or modify such established precedent).