text:
    Leviyas Jamail CLAYTON, Appellant, v. The STATE of Texas, Appellee.
    No. 13-03-411-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    May 5, 2005.
    Rehearing Overruled Aug. 4, 2005.

      Kurt B. Wentz, Houston, for appellant.
    William J. Delmore, III, Chief Prosecutor, Appellate Division, Bridget Holloway, Asst. Dist. Atty., Charles A. Rosenthal, Jr., Dist. Atty.-Harris County, Houston, for appellee.
    Before Justices HINOJOSA, YÁÑEZ and GARZA.
   OPINION

Opinion by Justice GARZA.

A jury convicted Leviyas Jamah Clayton of murder, and he was sentenced to thirty years’ imprisonment. Clayton now appeals his conviction, arguing that the evidence was legally and factually insufficient to prove he committed murder. Because we conclude that the evidence is legally insufficient, we reverse the judgment of the trial court and enter a judgment of acquittal.

I.

At approximately noon on June 14, 2001, Angela Davis, an employee of the City of Houston Animal Control Department, stopped near the entrance to Brock Park in Houston to aid the driver of a pickup truck which had overturned and landed in a ditch. Davis’s partner, Glen Hudson, was in another vehicle behind her and stopped as well. After being on the side of the road for roughly ten to twenty-five minutes, Davis looked off into the park and noticed something peculiar waving in the air. She drove over to investigate and discovered James Playnonero laying in the grass, bleeding. Davis called 911, but Playnonero died about ten minutes later.

Playnonero was found next to a white 1995 Toyota Avalon, which had been rammed into a tree. The trunk and rear passenger door of the car were open. A tire rod was found in the driver’s seat, and a bloodied tire iron was found in the car’s trunk. The fuel intake manifold was open and had singe marks around it. Police discovered a wad of burned paper lodged in the manifold and suspected that someone had tried to destroy the vehicle by igniting the gas tank. The vehicle’s backseat and rear floorboard were soaked with blood, and blood was found on the vehicle’s exterior. A two-foot wide trail of blood led from the backseat of the car to Playnone-ro’s body, indicating that Playnonero might have crawled from the backseat of the car to the spot where Davis found him.

The medical examiner determined that Playnonero’s death resulted from loss of blood caused by multiple gunshot wounds. According to the examiner’s autopsy report, Playnonero was shot eight times: in both legs, the forearms, abdomen, penis, and neck.

The ensuing police investigation yielded few leads. No eyewitnesses were identified. Police forensics could not determine whether the gunshot wounds were inflicted by a single gun or multiple guns, and no weapons were ever linked to the shooting. In addition, the police could not determine whether Playnonero was shot inside or outside of the car or whether the shooting took place in the park or at some other location.

The fingerprints of two individuals other than Playnonero were discovered inside the vehicle. The first set of prints belonged to Angel Ayala, the owner of the vehicle. Ayala was initially investigated for the murder but was ultimately cleared of suspicion. Apparently, he had allowed Playnonero to borrow the car on the morning of the murder, and Playnonero never returned it.

The second set of prints belonged to appellant. They were found on the vehicle’s steering wheel and gear shift and on the middle console between the front seats of the car. The prints were what forensic experts call “transfer prints.” They resulted from appellant touching objects in the car with blood on his hands. The blood belonged to Playnonero.

A warrant was issued for appellant’s arrest, and appellant was ultimately indicted for the murder. At trial, the State offered no evidence other than the bloody fingerprints to connect appellant to Play-nonero and the murder. A police officer testified that Playnonero was involved in the illegal drug trade. The officer speculated that the shooting resulted from a drug deal gone bad. No other explanation for the murder or connection between appellant and the victim was offered.

At trial, appellant took the stand in his defense. He testified that on the morning the murder occurred, he drove to Brock Park to visit a female acquaintance named Tiffany Woods. The couple had planned to meet at the park at noon. As he approached the park’s entrance, appellant observed a “newer model” blue car rapidly exit the park. After he entered the park, appellant looked for his friend but did not see her. He spotted a white Avalon with its trunk and rear passenger door open. The vehicle was rammed against a tree and its wheels were spinning. Appellant exited his vehicle and approached the Avalon. As he drew closer, he saw a man sitting in the backseat with his hand hanging outside the vehicle. The backseat was “full of blood.” Concerned for the man, appellant grasped the man’s hand with his hands. He got into the driver’s seat and tried to drive the car back onto the street, but the car was stuck in mud and would not move. Appellant put the car into neutral gear. He then heard a loud noise and saw a pickup truck traveling at a high rate of speed. The truck overturned and landed in a nearby ditch. This frightened appellant and he fled. He drove a few miles to his home, where he went to his room and cried. He never called the police and never told anyone about what happened. After being arrested, appellant maintained that he did not know Playnone-ro and had never seen him before the morning the murder occurred.

II.

When reviewing the legal sufficiency of evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App.2003). We are not fact finders; our role is that of a due process safeguard, ensuring only the rationality of the trier of fact’s finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). In purely circumstantial cases such as this, it is unnecessary for every fact to point directly and independently to appellant’s guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. See Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993); Russell v. State, 665 S.W.2d 771, 776 (Tex.Crim.App.1983) (en banc).

To support a conviction for murder, the State had to prove that appellant (1) intentionally or knowingly caused the death of James Playnonero by shooting him with a firearm or (2) intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of James Playnonero by shooting him with a firearm. See Tex. Penal Code Ann. § 19.02(b) (Vernon 2003); Sanders, 119 S.W.3d at 820. The State failed to meet this burden.

The evidence produced at trial establishes that someone attacked and killed Playnonero with a firearm. Use of a firearm to cause death establishes that the perpetrator acted with intent to commit murder. See Medina v. State, 7 S.W.3d 633, 637 (Tex.Crim.App.1999); Womble v. State, 618 S.W.2d 59, 64 (Tex.Crim.App.1981). The deficiency in the State’s evidence is that it does not establish that appellant was the person who used a firearm to kill Playnonero. As the court of criminal appeals stated in Jones v. State:

The main fact to be proved was that the appellant fired the bullet which killed the deceased into the deceased’s forehead. None of the evidence connected with the murder directly demonstrates the main fact. The fingerprints that were “lifted” from the cold Schlitz beer can proved that the appellant handled the beer can sometime during the morning of the murder, but prior to the time when the police arrived. They did not prove that the appellant fired the bullet which killed the deceased.

Jones v. State, 568 S.W.2d 847, 859 (Tex.Crim.App.1978) (en banc). Similarly, in this case, the fingerprints do not prove that appellant fired the weapon that was used to kill Playnonero.

The bloody fingerprints prove that appellant was with the victim after the shooting; however, they are not evidence that appellant was with the victim before the shooting, and an inference to that effect can be reached only by first assuming that appellant was the perpetrator of the murder and then working backwards. The evidence does not prove that appellant had an opportunity to kill the victim. Instead, it proves that appellant was present at the crime scene after the murder, but mere presence is not enough to prove guilt. See Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App.2001); Medina, 7 S.W.3d at 641; Miles v. State, 918 S.W.2d 511, 515 (Tex.Crim.App.1996). Failing to notify authorities of a crime is also not enough. See Medina, 7 S.W.3d at 641.

Although courts have upheld murder convictions based solely on circumstantial evidence, such cases have often involved proof of motive in addition to other incriminating circumstances. See Ates v. State, 21 S.W.3d 384, 390 (Tex.App.-Tyler 2000, no pet.) (holding that proof of motive could be inferred from absence of victim’s purse and victim’s refusal of defendant’s sexual advances); Reeves v. State, 969 S.W.2d 471, 479 (Tex.App.-Waco 1998, pet. ref'd) (holding that defendant had motive because victim did not love him anymore and did not want to be around him and defendant was jealous of victim’s other intimate relationships). Although motive is not an element of murder, when identity is called into question, as it is here, proof of motive might be the glue that holds the entire case together. See Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App.2004) (“Motive is a significant circumstance indicating guilt.”); King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App.2000) (noting proof of motive along with other incriminating evidence, including DNA evidence and a letter admitting involvement in the murder). At trial, the State produced no evidence that appellant was connected to the victim in any way. In fact, the testimony from the State’s witnesses indicated that the police had investigated the relationship between appellant and Playnonero and uncovered no connection whatsoever. A detective who investigated the murder opined at trial that because the victim was involved in the illegal drug trade, the murder could be drug-related. Such strained speculation is far too weak and attenuated a connection to prove a motive sufficient to establish beyond a reasonable doubt appellant’s identity as the murderer.

The State has produced no precedent to establish that the evidence in this case is sufficient to prove appellant committed the murder, and we are unaware of any case upholding a conviction based on similar evidence. Accordingly, we reverse the conviction and order a judgment of acquittal.


source: Caselaw Access Project

author: BEA ANN SMITH, Justice.

license: Public Domain

text:
    CITIZENS AGAINST LANDFILL LOCATION; North Alamo Water Supply Corporation; Jimmie Steidinger; Engelman Irrigation District; and Donna Irrigation District, Hidalgo County No. 1, Appellants, v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and BFI Waste Systems of North America, Inc., Appellees.
    No. 03-04-00390-CV.
    Court of Appeals of Texas, Austin.
    May 12, 2005.
    Rehearing Overruled July 13, 2005.

      See also 839 S.W.2d 448.

      J.W. Dyer, Sharon Almaguer, Dyer & Associates, McAllen, TX, for Citizens, North Alamo, Steidinger, Engelman.
    Nancy Elizabeth Olinger, Assistant Attorney General, Natural Resources Division, Austin, TX, for Texas Commission.

      R. Glenn Jarvis, Law Offices of Glenn Jarvis, McAllen, TX, for Donna Irrigation.
    Mary B. Reagan, John R. Breihan, McGinnis Lochridge & Kilgore, LLP, Austin, TX, for BFI Waste.
    Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

Appellants, the Citizens Against Landfill Location, North Alamo Water Supply Corp., Jimmie Steidinger, Engelman Irrigation District, and Donna Irrigation District (collectively the Citizens), appeal from a district court judgment affirming a final order of the Texas Natural Resource Conservation Commission granting BFI Waste Systems (BFI) a permit to vertically expand its municipal solid-waste landfill in Hidalgo county. In issues one, two, three and six, the Citizens assert that substantial evidence does not support the Commission’s approval of the final-cover design, post-closure bond, and closure and post-closure cost estimates; approval of the drainage plan; modification of the application to require the installation of two additional monitoring wells; and findings and conclusions that BFI had met all legal requirements with respect to its application. In issues four and five, the Citizens argue that the Commission erred by refusing to enforce the higher standard set forth in BFI’s drainage permit, which authorized it to discharge water into the Donna Irrigation District’s system, and by concluding that BFI is authorized to capture and impound water for irrigation and dust suppression purposes. Because we hold that the record contains substantial evidence supporting the Commission’s order and that the Commission’s actions were not in error, we affirm the district court’s judgment affirming the order.

BACKGROUND

In 1988, the Commission issued a permit that allowed BFI to construct and operate a municipal solid-waste landfill in Hidalgo County. The landfill was to be built directly adjacent to the local water-treatment plant. The issuance of the permit was hotly contested, and after several years of litigation, this Court affirmed the Commission’s order approving the permit. See North Alamo Water Supply Corp. v. Texas Dep’t of Health, 839 S.W.2d 448 (Tex.App.-Austin 1992, writ denied).

In July 1997, BFI filed an application with the Commission requesting an amendment to its permit to allow it to vertically expand the landfill and begin accepting Class I industrial waste. It would also extend the remaining life of the landfill from nine years to approximately twenty years. The Commission declared the permit expansion application administratively complete in August 1997 and technically complete in October 1998.

Several local communities, businesses, and residents expressed opinions both for and against the proposed expansion. In response to numerous requests for a public hearing on the matter, the Commission referred the issue to the State Office of Administrative Hearings, and a contested-case hearing was held in April and May of 2001. After hearing testimony and reviewing the record, the two presiding administrative law judges (ALJs) issued a proposal for decision in favor of granting the permit to expand. After reviewing the application, the proposal for decision, and arguments from both sides, the Commission determined that BFI’s application sufficiently met all legal requirements for the issuance of the amended permit. The Commission ordered that BFI’s application be approved with certain modifications. The only modifications applicable to this appeal are that the final cover will include a soil erosion layer at least twelve inches deep that is capable of sustaining native plant growth and that, within ninety days of the issuance of the permit, BFI shall install two additional monitoring wells along the southern perimeter of the facility as specified in the order. The Citizens filed a suit for judicial review in Travis County district court. See Tex. Gov’t Code Ann. § 2001.171 (West 2000). The district court affirmed the Commission’s order, and this appeal followed.

DISCUSSION

Judicial review of an administrative order following a contested-case proceeding is governed by the substantial evidence rule, which provides as follows:

If the law authorizes review of a decision in a contested case under the substantial evidence rule or if the law does not define the scope of judicial review, a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion but:
(1) may affirm the agency decision in whole or in part; and
(2) shall reverse or remand the case for further proceedings if the substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(A) in violation of a constitutional or statutory provision;
(B) in excess of the agency’s statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or
(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

See id. § 2001.174 (West 2000). The Citizens aver that the Commission’s decision to issue BFI the amended permit is either not supported by substantial evidence in the record, is arbitrary and capricious, is affected by other error of law, or is in violation of a statutory provision. See id. § 2001.174(2)(A), (D)-(F).

Under the substantial evidence rule we review the evidence as a whole to determine if it is such that reasonable minds could have reached the same conclusion as the agency in the disputed action. See H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., 36 S.W.3d 597, 602 (Tex.App.-Austin 2000, pet. denied) (citing Texas State Bd. of Dental Exam’rs v. Sizemore, 759 S.W.2d 114, 116 (Tex.1988)); see also Stratton v. Austin Indep. Sch. Dist., 8 S.W.3d 26, 30 (Tex.App.-Austin 1999, no pet.). We may not substitute our judgment for that of the agency and may only consider the record on which the agency based its decision. Tex. Gov’t Code Ann. § 2001.174; Stratton, 8 S.W.3d at 30. The issue before us is not whether the agency reached the correct conclusion but whether there is some basis in the record for its action. See City of El Paso v. Public Util. Comm’n, 883 S.W.2d 179, 185 (Tex.1994); see also Texas Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex.1984). Although substantial evidence is more than a mere scintilla, the evidence in the record may actually preponderate against the agency’s decision and nonetheless amount to substantial evidence. See State v. Public Util. Comm’n, 883 S.W.2d 190, 204 (Tex.1994). We presume that the agency’s findings, inferences, conclusions, and decisions are supported by substantial evidence, and the burden to prove otherwise is on the appellant. Charter Med., 665 S.W.2d at 453; Stratton, 8 S.W.3d at 30. Finally, the agency’s decision should be reversed only if the party challenging the decision demonstrates that the absence of substantial evidence has prejudiced the party’s substantial rights. See Locklear v. Texas Dep’t of Ins., 30 S.W.3d 595, 597 (Tex.App.-Austin 2000, no pet.).

Establishment and Maintenance of Final Cover

The Commission’s rules require that the owner or operator of a municipal solid-waste landfill complete installation of a final-cover system to minimize infiltration and erosion within 180 days of the last receipt of wastes. 30 Tex. Admin. Code § 330.253(b) (West 2005). The infiltration layer must consist of a minimum of eighteen inches of earthen material overlain by a synthetic membrane that has a permeability less than or equal to the permeability of any bottom-liner system. Id. The erosion layer must consist of a minimum of six inches of earthen material that is capable of sustaining native plant growth and will be seeded or sodded immediately following the application of the final cover in order to minimize erosion. Id. § 330.253(b)(3). The specifications for the final cover design included in BFI’s application essentially trace the requirements set forth in the Commission’s rules.

The Citizens argue that portions of the Commission’s order approving (1) the final-cover design and mandating the use of an erosion layer of “at least twelve inches” and, (2) the financial assurance bond, closure-cost estimates, and post-closure cost estimates, are not supported by substantial evidence. The Citizens also contend that BFI’s final-cover plan lacks sufficient detail to demonstrate that BFI will successfully establish vegetation on the erosion layer because its contents merely recite statutory performance standards.

Erosion Layer

The Citizens contend that both the ALJs and the Commission concluded that BFI’s plan to use six inches of topsoil as the erosion layer was deficient because they both recommended that BFI be required instead to install at least twelve inches of topsoil in order to obtain the permit. The Citizens claim that the record does not contain evidence supporting the conclusion that twelve inches of topsoil is sufficient to establish and maintain the required vegetative cover. We disagree.

At the application hearing, the Citizens called a series of witnesses to testify in support of their contention that six inches of soil, as called for in BFI’s application, is inadequate to establish vegetative cover at the landfill. Dr. James Smart, a research agronomist who lives in the Rio Grande Valley, testified that a combination of forty to fifty inches of top soil, a supplemental irrigation system, a greater seeding rate than that provided for in the application, and a plan for removing salt from the soil would be necessary to successfully establish and sustain vegetative cover at the landfill. Chester Drash, a professional engineer, and Boyd Davis, a local resident who works in the drainage and irrigation business, similarly testified that between thirty and thirty-six inches of top soil would be necessary to establish and sustain vegetation at the site. Dr. Richard Hoverson, a forage consultant, Esper Chandler, an agricultural consultant in the Rio Grande Valley, and Robert Rektorik, a retired Department of Agriculture scientist, each testified that supplemental irrigation and a drainage plan to combat salt build up would be necessary. Essentially, the Citizens argued that the plan presented in the application was deficient because it did not provide specific details regarding how BFI would fulfill its statutory duty of growing grass at the site.

BFI responded by asserting that the Commission’s rule sets forth a performance standard in which the minimum requirement is stated, but ultimately if this proves insufficient to achieve the goal of minimizing erosion by use of native plant growth, then whatever steps are necessary to meet that goal must be followed. See id. Consequently, BFI contended that if the specifications set forth in its application proved to be insufficient, it would still have a legal duty to establish and sustain vegetation on the erosion layer. BFI then noted that both the application and the site-operating plan contain several provisions that outline the commitments it has made to ensure that the proposed erosion layer is successful. Specifically, the final-closure plan provides that the erosion layer will consist of soil suitable for plant growth, which will be seeded and mulched as necessary to establish vegetative cover. Additionally, the site-operating plan states that the vegetative cover will be watered and fertilized as needed to protect the integrity of the cover, that soil tests will be conducted to determine the exact nutrients necessary to ensure vegetative growth, and that BFI will consult with the Hidalgo County Extension Office regarding proper fertilizer and seed mixtures.

BFI also provided rebuttal testimony to combat the claims of Citizens’ witnesses pertaining to the depth of soil necessary to establish vegetative cover on the erosion layer. BFI first called Dr. Craig Benson, a professor of geological engineering at the University of Wisconsin. Dr. Benson testified that he visited the site and observed the northern slope of the landfill that had received intermediate cover within the last “year or so.” He stated that it was his understanding that this area “was seeded, watered apparently once to get the grass growing and henceforth left to grow on its own.” He further stated that the soil depth of this area was approximately twelve to eighteen inches. Benson collected two soil samples that he analyzed to determine the root density of the grass at two-inch intervals throughout the sample. He testified that he found that approximately eighty percent of the root mass was located in the upper six inches of the sample and that approximately ninety-five percent of the root mass was located in the upper twelve inches of the sample. Based on these findings, he concluded that the water used by the grass was practically limited to the upper twelve inches of soil.

Dr. Benson also testified that it was unlikely that supplemental irrigation would be necessary. He explained this by distinguishing between growing grass as a crop and growing grass as a tool to minimize erosion. He testified that in agricultural production the objective is to ensure that the water content of the soil remains at a sufficiently high level so that the plant does not suffer water stress in order to optimize yields. However, when the goal is erosion control, Dr. Benson stated that water is only necessary to sustain vegetative life so that the plant remains in place. He further asserted that, because the vegetation would need less irrigation, it is unlikely that excess salts would accumulate in the soil. In addition, Dr. Benson claimed that if irrigation becomes necessary, the rainfall that is collected and impounded in the detention channel would be adequate for the task.

The ALJs found that the Citizens’ witnesses overestimated the depth of soil that would be required to provide cover, especially in light of Dr. Benson’s analysis demonstrating that only water in the top foot of topsoil would generally be available to the type of grass that will be grown at the site. They observed that part of the rationale underlying the recommendations of the Citizens’ witnesses for increased topsoil was their belief that salt in irrigation water would accumulate and need to be drained. However, the ALJs noted that the witnesses’ concern was based on the incorrect belief that BFI has no right to irrigate with the rainwater it collects in the detention channel, which has a low salt concentration. Accordingly, the ALJs accepted Dr. Benson’s assessment that the threat of salt accumulation was insignificant. The ALJs concluded that it was conceivable that six inches of topsoil would be sufficient to comply with the Commission’s rules, but felt that there was no reason to risk the possibility that it would be inadequate. Therefore, they proposed that BFI’s application be amended to require BFI to install a soil-erosion layer at least twelve inches deep and capable of sustaining native plant growth. The Commission adopted this recommendation.

Although the record contains evidence suggesting that more than twelve inches of soil may be necessary to successfully establish and maintain vegetative growth on the final cover, the Commission’s conclusion is supported by substantial evidence. Both the ALJs and the Commission cited Dr. Benson’s root mass analysis indicating that only water located in the uppermost twelve inches of soil would be available to the grass grown at the site in support of their conclusion that twelve inches of topsoil is an adequate erosion layer. Furthermore, the ALJs were not persuaded by the claims of the Citizens’ witnesses that at least three feet of topsoil would be necessary to establish and sustain vegetative cover at the site. The ALJs and the Commission were free to weigh the conflicting evidence as they deemed appropriate, and the Commission, as the final judge of the validity and credibility of expert testimony, may accept or reject part or all of a witness’s conclusions. See Coalition for Long Point Pres. v. Texas Comm’n on Envtl. Quality, 106 S.W.3d 363, 368 (Tex.App.Austin 2003, pet. denied); see also Texas Water Comm’n v. Boyt Realty Co., 10 S.W.3d 334, 343 (Tex.App.-Austin 1993, no pet.). The Commission’s final order also notes that BFI is required to “conduct any maintenance or remediation activities necessary to maintain the integrity and effectiveness of all final cover [and] site vegetation.” The order further notes that BFI’s site-operating plan sets forth specific procedures for establishing and maintaining vegetative cover. Even if the Citizens established that the evidence in the record preponderates against the Commission’s finding that twelve inches of topsoil constitutes an adequate erosion layer, we hold that the record contains more than a scintilla of evidence supporting the Commission’s findings and conclusions regarding the depth of the required erosion layer. See Public Util. Comm’n, 883 S.W.2d at 204.

Cost Estimates

Owners and operators of municipal solid-waste landfills are required to provide detailed written estimates showing both the cost of hiring a third party to close the largest area of the landfill ever requiring final closure and the cost of hiring a third party to conduct post-closure care activities at the landfill. See 30 Tex. Admin. Code §§ 330.281, .283 (West 2005). The Citizens claim that there is no evidence in the record supporting the approval of the closure and post-closure cost estimates provided in BFI’s application since the plans for the erosion layer do not account for the possibility that BFI may be unable to establish vegetative cover on top of the originally proposed six-inch erosion layer.

BFI argues that its estimates were conservative in that they included a twenty-percent contingency for possible cost increases. BFI also noted that the Commission’s rules require that cost estimates and the corresponding financial-assurance bonds be increased if changes in either the closure or post-closure plan increase the costs of closing the landfill or post-closure maintenance. See id. §§ 330.281(a)(2), .283(a)(2).

The ALJs found that much of the Citizens’ concern regarding BFI’s cost estimates was based on their contentions that the proposed erosion layer would have to be increased from six inches to at least three feet and that a supplemental irrigation and drainage system would be required. As discussed above, the ALJs disagreed that these steps would be necessary to establish and maintain vegetation on the final cover. However, because the ALJs concluded that the thickness of the erosion layer should be doubled from six inches to twelve inches, they recommended that the portion of the final cover cost estimate pertaining to installation of the erosion layer be doubled. Furthermore, the ALJs stated that they believed their approach was supported by the record “because the projected cost is only an estimate subject to future correction, and because it likely overstates the cost in that it accounts for no economies of scale.”

Essentially, the Citizens contend that because BFI’s final-cover design is flawed, the cost estimates based on that design are also flawed. However, the Citizens do not point to any specific evidence establishing that the closure and post-closure cost estimates were either miscalculated or based on inappropriate data. Therefore, we hold that the record contains more than a scintilla of evidence supporting the Commission’s findings and conclusions regarding the closure and post-closure cost estimates and the corresponding financial-assurance bond. See Public Util. Comm’n, 883 S.W.2d at 204.

Sufficiency of BFI’s Permit Application

The Citizens contend that, because BFI’s application merely recites the specific language of the Commission’s rules pertaining to the effectiveness of the erosion layer, the Commission erroneously approved the application. BFI must include in the site-development-plan component of the application sufficient information to document that its final-cover design -will provide effective long-term erosional stability. 30 Tex. Admin. Code § 330.55(b)(8) (West 2005). Additionally, BFI’s application must also include the minimum information required by the Commission regarding the final-cover plan. See id. § 330.253(d)(l)-(6). The Citizens point to BFI Waste Systems of North America v. Martinez Environmental Group, 93 S.W.3d 570 (Tex.App.-Austin 2002, pet. denied), in which we held an applicant’s mere recitation of statutory requirements insufficient to satisfy the applicant’s burden of proving by a preponderance of the evidence that it met each regulatory requirement. Thus, the Citizens contend that if BFI merely tracked the Commission’s regulatory requirements in its application, Martinez requires us to reverse. We disagree.

The portions of the application at issue in this case are readily distinguishable from those addressed in Martinez. In Martinez, we held that the Commission’s rule governing site-operating plans required an applicant to set forth specific, enforceable procedures governing the daily operation of a specific landfill. Martinez, 93 S.W.3d at 580. Our holding in Martinez was premised on the fact that the Commission’s rules pertaining to site operating plans consist of general requirements that allow landfill operators to develop specific operating procedures tailored to their individual sites. Id. Because there are no detailed rules to guide the daily operation of a landfill, we held that requiring an applicant to provide specific, enforceable procedures was necessary to ensure that an applicant complies with all applicable regulations and operates the site in a manner that does not compromise health and safety. See id.

Here, the Citizens’ complaints focus on the site-development plan, specifically the final-cover design. While there are no detailed rules governing the daily operations of a landfill, there are specific performance standards that apply to the installation, maintenance, and overall effectiveness of final cover. For example, a final-cover design should contain sufficient information to demonstrate that (1) estimated peak velocities for top surfaces and embankment slopes are less than the permissible non-erodible velocities under similar conditions; and (2) top surfaces and embankment slopes are designed to minimize erosion and soil loss through the use of appropriate side slopes, vegetation, and other structural and non-structural controls. 30 Tex. Admin. Code § 330.55(b)(8)(A)-(B). Furthermore, the Commission’s final-cover rules provide performance standards that an applicant must meet regardless of whether the application contains sufficient detail to establish that its plan will be successful. Thus, our holding in Martinez is inapplicable to this case.

Moreover, the record contains substantial evidence supporting the Commission’s finding that BFI’s application contained sufficient information addressing both how it would ensure erosional stability during the life of the landfill and its procedures pertaining to the installation, establishment, and maintenance of the erosion layer of the final-cover system. In Attachment 6 to the site-development plan, BFI specifically provided several structural and nonstructural methods of controlling erosion— such as temporary vegetation, compacted soil stockpiles, temporary ditches, filter fences, and gravel berms that would be employed at the site. BFI also provided information as to how these structures should be installed and maintained. As we discussed previously, BFI’s site-operating plan contained specific details and procedures dealing with how the erosion layer would be installed, established, and maintained.

We hold that the record contains substantial evidence supporting the Commission’s findings and conclusions with respect to its approval of the modified-final-cover design mandating the use of an erosion layer of “at least twelve inches,” and the financial-assurance bond, closure-cost estimates, and post-closure cost estimates. We also hold that the Commission committed no legal error by failing to apply Martinez to this case. We overrule the Citizens’ first issue.

Surface Water Drainage

In order to obtain the expansion permit, BFI must demonstrate in its application that it can design, construct, and maintain a run-off management system that can collect and control at least the water volume resulting from a 24-hour, 25-year storm. See BO Tex. Admin. Code § 330.55(b)(3). The Citizens claim that under real world conditions BFI’s drainage plan cannot actually comply with this regulation. The Citizens therefore insist that the Commission’s order finding that BFI’s application meets this regulatory requirement is not supported by substantial evidence.

At the administrative hearing, Paul Hartnett, a professional engineer and the landfill’s designer, testified that the total volume of the detention channel surrounding the landfill is 96.7 acre-feet. He testified further that the volume of run-off associated with a 24-hour, 25-year storm is 64.2 acre-feet. Thus, the detention channel has sufficient capacity to collect and control the run-off associated with a 24-hour, 25-year storm. The Citizens were concerned that if BFI fails to establish vegetation on the final cover, then there would be substantial erosion that would cause a build up of sediment in the detention channel, thereby reducing its capacity. Hartnett countered this argument by outlining the permanent and temporary controls that would be used to prevent erosion and the build up of sediment in the channel. He stated that diversion structures, terraces, rip-rap, temporary and permanent vegetation, silt fences, gravel berms, erosion mats, diversion ditches and other features were incorporated into the landfill’s design to prevent sediments from entering the channel. He further noted that BFI is required to maintain the channel, which includes removing any sediment.

The Citizens further contend that BFI’s practice of impounding water in the detention channel impairs its ability to handle the required run-off. However, BFI argues that this concern is misplaced because evidence in the record indicates that the volume of water kept in the channel will be monitored to ensure that there is adequate remaining capacity to collect and control the run-off from a 24-hour, 25-year storm. Both the ALJs and the Commission found that the required capacity of the perimeter detention channel is not affected by the proposed expansion because the volume of run-off will not materially change as a result of the proposed height increase. This finding was confirmed by the Citizens’ drainage expert, Larry Smith, who testified that the proposed vertical expansion would not materially affect run-off volume.

The Citizens also question BFI’s ability to quickly discharge run-off collected after a 24-hour, 25-year storm. BFI is permitted to discharge run-off into drainage ditches run by the Donna Irrigation District. Larry Smith testified that the Donna Irrigation District’s drainage ditches are at maximum capacity after a 9.5-year storm. Smith stated that based on his calculations it would take approximately fifteen days for the Donna ditch system to drain after a 25-year storm. Under these conditions BFI would not be able to discharge any of the collected run-off until the ditches completely drained or flooding would occur. Smith thus concluded that if another storm “of almost any intensity” occurred during this time, the detention channel would overflow.

However, the Commission’s rules do not require that BFI demonstrate that its detention channel has the capability to collect and control the run-off associated with a 24-hour, 25-year storm and the run-off from another storm occurring shortly thereafter. The Citizens’ fear that the detention channel will overflow if a 24-hour, 25-year storm is quickly followed by another storm is based on the limitations of the Donna Irrigation District’s drainage system, not BFI’s detention channel. Therefore, the fact that the detention channel may overflow under the scenario posited by the Citizens is not evidence that BFI failed to comply with the Commission’s rules. Furthermore, the ALJs found that there was no basis to deny BFI’s amended permit application based on the limitations of the Donna Irrigation District’s drainage ditches. To support this finding, the ALJs relied on BFI’s evidence indicating that (1) the vertical expansion would not generate additional run-off, (2) the current drainage system reduces run-off into the ditches to levels lower than pre-development conditions, and (3) there has been only one discharge into the drainage ditches during the entire history of the landfill.

We hold that the record contains substantial evidence supporting the finding that BFI’s run-off management system complies with the Commission’s rules. We overrule the Citizens’ second issue.

Groundwater Monitoring

BFI is required to describe in its application a groundwater monitoring plan that “consists of a sufficient number of monitoring wells, installed at appropriate locations and depths, to yield representative groundwater samples from the uppermost aquifer” that when installed will “ensure the detection of groundwater contamination in the uppermost aquifer.” 30 Tex. Admin. Code §§ 330.56(d)(6), .231(a), .231(a)(2) (West 2005). The design of the system shall be based on “site-specific technical information that must include a thorough characterization of aquifer thickness; ground-water flow rate; groundwater flow direction including seasonal and temporal fluctuations in flow; [and] the effect of site conditions and operations on groundwater flow directions and rates.... ” Id. § 330.231(e)(1). The Citizens aver that because BFI’s groundwater characterization report is insufficient, the Commission’s approval of the ALJ’s proposed modification, which adds two additional monitoring wells along the southern perimeter of the site, is not supported by substantial evidence.

At the administrative hearing, Paul Hartnett, Grant Jackson, and hydrogeologist Michael Snyder testified that the groundwater flow in the pertinent strata is predominantly to the north. The Citizens presented conflicting evidence that the groundwater beneath the landfill flows south, in the direction of North Alamo’s water treatment plant. The Citizens noted further that the application concedes that flow of groundwater in the area is influenced by a variety of factors that include the landfill itself and BFI’s practice of impounding run-off in the detention channel surrounding the site.

The ALJs concluded that, while the predominant flow of groundwater is to the north, the monitoring system should be capable of detecting a groundwater contamination in all directions. The ALJs found that this conclusion was consistent with BFI’s “prudent” approach of identifying the entire perimeter of the landfill site as the point of regulatory compliance. Even though the ALJs found that BFI’s current plan meets all regulatory requirements, they recommended including two additional monitoring wells along the southern perimeter of the site so that the landfill’s northern and southern boundaries each have a total of five wells.

We note that BFI is seeking a permit that would allow it to vertically expand the landfill. The proposed expansion does not involve any land outside that currently being monitored by a Commission-approved groundwater-monitoring system. The ALJs and the Commission found that the current monitoring system meets all regulatory requirements. However, the Commission and the ALJs concluded that the installation of two additional monitoring wells is an appropriate response to the Citizens’ concerns regarding the variance in groundwater flow at the site. Furthermore, the placement of the additional wells equidistant from the existing wells along the southern perimeter is consistent with the current monitoring system’s designation of the point of compliance as the entire perimeter of the site.

We hold that the record contains substantial evidence supporting the Commission’s conclusion that the modified groundwater monitoring system is sufficient. We overrule the Citizens’ third issue.

Evidentiary Issues

Throughout the contested case hearing, the Citizens objected to the admission of several of BFI’s exhibits. In response, the ALJs denied the admission of one document. Many of the other exhibits were admitted only for the limited purpose of showing the basis of a witness’s opinion but not for the truth of the matters contained in the exhibits. The Citizens aver that the limitations on these exhibits rendered BFI’s application incomplete. Therefore, they claim the Commission erroneously approved BFI’s application. We disagree.

An application is deemed administratively complete when submitted to the Commission with any required reports and fees, at which point the application becomes ready for technical review “in accordance with the rules of the Commission.” Tex. Health & Safety Code Ann. § 861.068(a)(l)-(2) (West 2001). The Commission’s rules set forth the technical requirements for each part of the application. See 80 Tex. Admin. Code §§ 330.51-.58 (West 2005). Although there is no statute or rule defining when an application is “technically complete,” we conclude that construing the phrase to mean that an application will be considered technically complete if it includes information pertaining to all applicable technical requirements is consistent with the legislature’s use of the phrase in health and safety code section 361.068. See Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002) (primary objective of statutory construction is to determine and give effect to legislature’s intent). If the Commission has determined that an application is administratively and technically complete and the application then becomes the subject of a contested case, the Commission may not subsequently revoke the determination. See Tex. Health & Safety Code Ann. § 361.068(b)(1). Thus, the purpose of a contested-case hearing is not to verify whether the application is administratively and technically complete, but rather to determine whether the substance of the information provided in the application can fulfill the statutory purpose of safeguarding the health, welfare, and physical property of the people and protecting the environment. See id. § 361.002(a) (West 2001).

In this case, BFI’s application was determined to be administratively and technically complete prior to the contested case hearing. Therefore, BFI was not required to establish at the contested-case hearing that its application complied with each administrative and technical requirement because it had already done so prior to the hearing.

Even if BFI was required to submit evidence at the contested-case hearing demonstrating that its application met all of the Commission’s regulatory requirements, the record contains substantial evidence supporting the Commission’s finding that the application was complete. In fact, BFI’s entire application was admitted for the specific purpose of establishing what the application contained.

The ALJs concluded that BFI had included all necessary information in the application. The ALJs asserted that, while some witnesses could not independently verify particular documents or exhibits, there was nothing in the record that cast doubt upon the information. Similarly, the Citizens did not introduce any contrary exhibits to demonstrate that the limited evidence was altered or falsified. Finally, the ALJs noted that the Commission had reviewed every part of the application and determined that it was administratively and technically complete. Thus, the ALJs concluded that the application complied with appropriate statutes and rules.

We hold that substantial evidence in the record supports the Commission’s finding that BFI’s application was administratively and technically complete. We overrule the Citizens’ sixth issue.

Discharge into the Donna Irrigation District’s Ditches

As discussed previously, BFI is required to demonstrate that its run-off management system is capable of collecting and controlling the water volume resulting from a 24-hour, 25-year storm. In order for BFI’s proposed run-off management system to function as designed, BFI must have permission to discharge excess runoff collected in its detention channel into the Donna Irrigation District’s drainage ditches. The permit BFI submitted with its expansion application was issued as a result of the settlement agreement that terminated the litigation surrounding the Commission’s approval of the initial permit to construct and operate the landfill at issue in this case. As part of the settlement, BFI agreed, among other things, to design and construct its detention channel so that it would be capable of collecting and controlling the run-off from a 100-year storm.

After BFI submitted its expansion application to the Commission, two of the appellants, North Alamo Water Supply and Jimmie Steidinger, filed suit in a Hidalgo County district court seeking a declaratory judgment and injunctive relief. North Alamo and Steidinger claimed that BFI had breached the settlement agreement, that the proposed expansion would breach the agreement, and that BFI had fraudulently induced them and others to enter into the agreement. They petitioned the court to declare that BFI is prohibited from operating the landfill except as allowed in the agreement, to mandate specific performance of the agreement, and to order BFI to withdraw its pending expansion application. They also requested injunctive relief barring BFI from participating in further administrative proceedings regarding its proposed expansion. The district court granted their request for injunctive relief. BFI appealed, and the injunction was dissolved. See BFI Waste Sys. of N. Am. v. North Alamo Water Supply Corp., No. 13-99-469-CV, 2000 Tex.App. LEXIS 1282 (Tex.App.-Corpus Christi 2000, pet. dism’d w.o.j.).

In this case, the ALJs found that, while BFI’s calculations demonstrate that the detention channel has the capacity to contain the run-off, BFI’s practice of impounding water in the channel effectively eliminates the ability to handle a 24-hour, 100-year storm. The Citizens claim that since it is clear that BFI has not met the condition upon which its discharge permit was issued it cannot establish that it has the authority to discharge run-off into the Donna Irrigation District’s ditches. Therefore, the Citizens argue that because the ability to discharge into these drainage ditches is essential to BFI’s run-off management system, the Commission had a duty to guarantee that BFI had authority to do so in order to find that the system complied with its rules. They insist that the Commission’s failure to enforce the higher standard set forth in BFI’s drainage permit was error.

It is undisputed that the standard set forth in BFI’s discharge permit exceeds the regulatory requirement set forth by the Commission. However, the question for us is whether the Commission possesses the authority or the duty to enforce the higher standard of the settlement agreement. The ALJs concluded that BFI was not required to demonstrate in its application that it could collect and control the run-off resulting from a 100-year storm. The ALJs asserted that the Commission is obliged to follow its own rules and the standard set by the Commission for landfill permitting is the only one that could be applied at the permit proceeding. The ALJs went on to say that, “[ejnforcement of the settlement agreement is more appropriately left to the civil court system that generated it.” We agree with the ALJs and conclude that the Commission’s authority is limited by the scope of its own duly promulgated rules. Furthermore, the Citizens have not pointed to any evidence in the record indicating that BFI’s current discharge permit has been declared invalid. Therefore, we conclude that the Commission did not err by failing to enforce the higher standard and that substantial evidence in the record supports its conclusion that BFI’s run-off management system complies with its rules. We overrule the Citizens’ fourth issue.

Authority to Capture and Detain Water

The Citizens aver that the Commission ignored BFI’s failure to provide evidence of a right to impound water in its detention channel for the purposes of dust suppression and irrigation. Texas Water Code section 11.021(a) provides:

The water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the storm water, floodwater, and rainwater of every river, natural stream, canyon, ravine, depression, and watershed in the state is the property of the state.

Tex. Water Code Ann. § 11.021(a) (West 2000). The Citizens claim that BFI’s practice of impounding water in its detention channel constitutes a wrongful diversion of state water if done without a permit. Thus, the Citizens posit that the Commission was required to ascertain whether BFI possessed such a permit in order to approve the application and that its failure to do so constituted error as a matter of law. We disagree.

Texas law categorizes surface water into one of two general types: diffuse surface water and water in a water course. See City of San Marcos v. Texas Comm’n on Envtl. Quality, 128 S.W.3d 264, 271-72 (Tex.App.-Austin 2004, pet. denied); see also Domel v. City of Georgetown, 6 S.W.3d 349, 353 (Tex.App.-Austin 1999, pet. denied). Diffuse surface water belongs to the owner of the land on which it gathers, so long as it remains on that land prior to its passage into a natural watercourse. City of San Marcos, 128 S.W.3d at 272 (citing Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221, 228 (1936)). Water in a watercourse is the property of the State. See Tex. Water Code Ann. § 11.021(a). A watercourse has (1) a defined bank and beds, (2) a current of water, and (3) a permanent source of supply. See Hoefs v. Short, 114 Tex. 501, 273 S.W. 785, 787 (1925). The right to use State water may be acquired by obtaining a permit from the Commission to make an appropriation. See Tex. Water Code Ann. §§ 11.022, .121 (West 2000).

The record contains evidence that the detention channel is completely manmade and is designed to capture only the surface water that originates onsite; that there is no water flow from outside the site into the detention channel. If necessary, the detention channel is designed to be able to discharge excess water into public drainage ditches, but we have found no evidence that BFI diverts any water from the public drainage ditches or nearby irrigation canals. Finally, there is testimony that the only purpose of the detention channel is to collect rainwater and not to divert the ordinary flow from any adjacent river, stream, or water course. Thus, we find that, while it could be argued that the detention channel has defined banks and beds, the evidence in the record is clear that the water in the channel has no defined current and that there is no permanent supply of water feeding the channel. Therefore, we hold that the detention channel is not a watercourse. Consequently, BFI may impound diffuse surface water originating at the landfill without a permit.

We hold that the Commission did not err as a matter of law by determining that BFI was not required to demonstrate that it possessed a permit to collect diffuse surface water in its detention channel to be used later for dust suppression and irrigation. We overrule the Citizens’ fifth issue.

CONCLUSION

The Commission’s order approving BFI’s expansion permit was supported by substantial evidence and not in error. We affirm the district court’s judgment affirming the Commission’s order.

      . By statute effective September 1, 2001, the legislature changed the name of the Texas Natural Resource Conservation Commission to the Texas Commission of Environmental Quality, to be effective January 1, 2004. The statute granted the agency authority to adopt a timetable for phasing in the change of the its name, so that until January 1, 2004, the agency was permitted to perform any act authorized by law under either title. See Act of April 20, 2001, 77th Leg., R.S., ch. 965, § 18.01, 2001 Tex. Gen. Laws 1985, 1985. On September 1, 2002, the agency began using its new name, while continuing to recognize the former. We will refer to the agency as the Commission.

      . We discuss the significance of the Commission's determinations that BFI’s application was administratively and technically complete in our analysis of the Citizens' complaints regarding the adequacy of the evidence presented at the administrative hearing.

      . The Mayors of the cities of Edcouch, Elsa, La Feria, Los Fresnos, Mercedes, Alamo, Rio Hondo, San Juan, South Padre Island, and Weslaco; the Cameron County Commissioner; the Donna City Manager; a County Commissioner from Hidalgo County; the President of the Rio Grande Valley Partnership/Rio Grande Valley Chamber of Commerce; and the Executive Director of the Weslaco Development Committee each wrote letters to the Commission expressing their support of BFI's proposed expansion.

      . Originally, BFI’s application had provided that there would be a six inch erosion layer and that the previously approved monitoring system would be unchanged.

      . Intermediate cover is achieved by placing top soil directly on top of the waste mass. This is done when a particular area of the landfill is not active. Additionally, Bermuda, the type of grass that was used for intermediate cover, is the same type that BFI plans to use on the final cover.

      . Below, we discuss BFI’s right to capture and use storm water run-off impounded in its detention channel.

      . The Commission’s rule governing site operating plans is found at 30 Tex. Admin. Code § 330.114 (West 2005). Section 330.114 states that, “The site operating plan (SOP) shall provide operating procedures for the site management and the site operating personnel in sufficient detail to enable them to conduct the day-to-day operations of the facility.” Id.

      . North Alamo and Steidinger claimed, among other things, that BFI breached the settlement agreement by failing to construct its detention channel so that it could collect and control the run-off resulting from a 100-year storm.

      . There is no information in the record pertaining to the current status of North Alamo’s and Steidinger’s declaratory suit.


author: SUE WALKER, Justice. TERRIE LIVINGSTON, Justice,

text:
    Perry Collins WEST, Appellant, v. The STATE of Texas, State.
    No. 2-04-031-CR.
    Court of Appeals of Texas, Fort Worth.
    May 26, 2005.

      David Richards, Fort Worth, for Appellant.
    Tim Curry, Crim. D.A., Charles M. Mal-lín, Asst. D.A. and Chief of the Appellate Division, and Anne Swenson, David M. Curl, Ashley Johnson, and Shawn Paschall, Asst. Crim. D.As., Fort Worth, for State.
    Panel B: LIVINGSTON, GARDNER, and WALKER, JJ.
   OPINION

SUE WALKER, Justice.

I. Introduction

A jury convicted Appellant Perry Collins West of driving while intoxicated, and the trial court, having accepted West’s pleas of true to the enhancement and repeat offender paragraphs, sentenced him to six years’ confinement. In one point, West argues that the trial court abused its discretion by allowing the State to elicit testimony from him that he had been arrested more than twenty times. Because West did not “open the door” to this impeachment evidence, we hold that the trial court abused its discretion by permitting the State to elicit this testimony. Applying the required harm analysis, we hold that the error was harmless. Consequently, we will affirm.

II. Factual Background

On June 2, 2002, Fort Worth Police Officer Todd Greer was patrolling the west side of Fort Worth for prostitution activity. He observed a young female, whom he described as provocatively dressed, enter a white pickup truck driven by West. Officer Greer followed the truck briefly, noticed that the truck’s license plate light was out, and initiated a traffic stop. Officer Greer noticed the strong odor of alcohol emanating from the truck’s interior and requested the assistance of another officer. Officer George Rusnak arrived and had West perform three field sobriety tests, the HGN, the walk and turn, and the one leg stand tests. West performed poorly on the tests, and Officers Greer and Rusnak arrested West after concluding he was intoxicated. At the city jail, West could not provide an adequate breath sample for a breath test.

West was charged with driving while intoxicated and pleaded not guilty. At trial, he testified that he was not intoxicated at the time of his arrest. During cross-examination, West testified that he “was shocked that they took [him] to jail in the first place” and that he “was totally shocked to be arrested in the first place.” Soon thereafter, the following exchange took place:

[Prosecutor]: Now, when your father testified for you yesterday, he testified that you left the house about 8:00. Do you remember that?
[West]: Yes, I do.
[Prosecutor]: Why did you tell the officer on the video that you left the house at seven?
[West]: I don’t know. I have no clue.
[Prosecutor]: Wouldn’t you agree that likely the way you remember things back on September — excuse me, June the 2nd of 2002 is more accurate than almost a year and a half later?
[West]: Maybe in one respect, but in another respect it isn’t.
[Prosecutor]: Did you take notes after this happened?
[West]: No. But, again, I was so shocked by being arrested and placed in that position of being handcuffed and taken to jail for DWI, sure I may have — I may have made a mistake on the time. You bet. [Emphasis added.]

After approaching the bench, the prosecutor argued that West had “just opened the door to all of his arrests” by stating that “he was shocked and amazed to being arrested.” Outside the presence of the jury and in response to the prosecutor’s inquiry as to why he was shocked at being arrested, West stated, “Because this time was the first time I have been arrested since 1995. This time is when I made a complete effort to turn my life around. That’s why it shocked me so much.” The prosecutor then pointed out, however, that West had been arrested in 1996 and 2002. The trial court subsequently permitted the State to ask the following question in the presence of the jury: “Mr. West, isn’t it true that you’ve been arrested more than twenty times.” West responded, “Yes.” No further questions were proposed concerning West’s prior arrests.

III. Extraneous Offenses Evidence

In his sole point, West argues that the trial court erred by overruling his objection and permitting the State to elicit testimony that he had been arrested more than twenty times. West contends that his statement that he was “shocked” at being arrested was not a blanket assertion denying any prior trouble with the law and that the “inflammatory evidence” of twenty pri- or arrests allowed the jury to convict him of being a criminal generally. The State argues that the evidence was admissible to rebut and correct “the false impression that [West’s] gratuitous statements created” by implying that he had never been in trouble with the law.

A. Standard of Review

We review a trial court’s ruling admitting or excluding evidence for an abuse of discretion. Prystash v. State, 8 S.W.3d 522, 527 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g). Appellate courts should give great discretion to the trial courts in matters of relevancy, reversing only if the trial court acts outside “the zone of reasonable disagreement.” Montgomery, 810 S.W.2d at 391. Thus, so long as the trial court’s decision to admit or exclude evidence falls in the zone within which reasonable minds may differ, appellate courts should refrain from disturbing the trial court’s decision on appeal. Id.; Karnes v. State, 127 S.W.3d 184, 189 (Tex.App.-Fort Worth 2003, no pet.).

B. False Impressions

An accused puts his character for veracity in issue by taking the stand, and he may be impeached in the same manner as any other witness. See Hammett v. State, 713 S.W.2d 102, 105 (Tex.Crim.App.1986). Generally, prior offenses are inadmissible for impeachment purposes unless the offense resulted in a final conviction for either a felony or a crime involving moral turpitude and the conviction is not too remote in time. See Ochoa v. State, 481 S.W.2d 847, 850 (Tex.Crim.App.1972); Turner v. State, 4 S.W.3d 74, 78-79 (Tex.App.-Waco 1999, no pet.); see also Tex.R. Evid. 608, 609. However, an exception arises when a defendant testifies and leaves a false impression as to the extent of his prior arrests, convictions, charges against him, or “trouble” with the police generally. See Prescott v. State, 744 S.W.2d 128, 131 (Tex.Crim.App.1988); Ochoa, 481 S.W.2d at 850. In such a case, the defendant is deemed to have “opened the door” to an inquiry into the veracity of his testimony, and evidence of the defendant’s prior criminal record is admissible to correct the false impression. See Martinez v. State, 728 S.W.2d 360, 362 (Tex.Crim.App.1987); Turner, 4 S.W.3d at 79.

Generally, the false impression the State seeks to rebut must be created by the defendant through direct examination. See Wheeler v. State, 67 S.W.3d 879, 885 (Tex.Crim.App.2002). However, when a defendant voluntarily testifies on cross-examination concerning his prior criminal record, without any prompting or maneuvering on the part of the State, and in so doing leaves a false impression with the jury, the State is allowed to correct that false impression by introducing evidence of the defendant’s prior criminal record. Martinez, 728 S.W.2d at 362; see also Roberts v. State, 29 S.W.3d 596, 601 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd).

Here, West stated that he was “shocked” that he was being arrested, handcuffed, and taken to jail. He did not state that he had never been “in trouble” with the law, that his record was clear of any prior arrests, or that he had never been arrested for DWI. We disagree with the State that West’s statements created the false impression that he had not previously been arrested. Compare Turner, 4 S.W.3d at 78-80 (holding State could impeach defendant with subsequent, violent police confrontation when defendant testified six times on direct examination that he was polite to police officer who arrested him); Martinez, 728 S.W.2d at 360-61 (holding State could impeach defendant with prior convictions where she responded to prosecutor’s question concerning why she was scared by stating, “That was the first time I had been busted, you know”). Nor did West’s testimony that he was shocked provide an abbreviated account of his past arrests. Compare Reese v. State, 531 S.W.2d 638, 640-41 (Tex.Crim.App.1976) (holding defendant’s response to “[w]hat kind of trouble do you have with the law” discussing a single prior conviction opened door to admission of three other prior convictions). Likewise, West’s testimony that he may have misjudged the time on the night of the offense because he was shocked at being arrested does not constitute an attempt by West to portray himself in a manner inconsistent with his prior criminal record. Compare Creekmore v. State, 860 S.W.2d 880, 892-93 (Tex.App.-San Antonio 1993, pet. ref'd) (op on reh’g) (allowing evidence of other sexual assaults committed by defendant against children after defendant testified that he would never sexually abuse child).

West’s first two statements that he was shocked were made in response to the prosecutor’s questions concerning his performance on the videotaped sobriety tests, and the third statement was made in response to the prosecutor’s questions concerning whether West’s memory would have been more accurate on the night of the offense or at the time of trial. West’s statements that he was shocked communicated his feelings at the time of his arrest, not an impression about his criminal history; a person may still feel shocked at being arrested, even if the person has been previously arrested multiple times. Here, the relevant questions, the answers themselves, and the overall tenor of the cross-examination did not create a false impression with the jury concerning West’s prior criminal history. See Prescott, 744 S.W.2d at 131. Accordingly, West did not “open the door” to impeachment evidence, and consequently, the State should not have been permitted to ask West in front of the jury whether he had been arrested over twenty times. We hold that the trial court abused its discretion by allowing the State to ask West this question. See Montgomery, 810 S.W.2d at 392-93.

C. Harm Analysis

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. Tex.R.App. P. 44.2. Generally, the erroneous admission or exclusion of evidence is non-constitutional error governed by rule 44.2(b) if the trial court’s ruling merely offends the rules of evidence. See Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001). A reviewing court is to disregard non-constitutional error that does not affect the substantial rights of the defendant. Tex.R.App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). In making this determination, we review the record as a whole. Kotteakos, 328 U.S. at 764-65, 66 S.Ct. at 1248.

When performing a harm analysis under rule 44.2(b), we consider “any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, [and] the character of the alleged error and how it might be considered in connection with other evidence in the case.” Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000). We may also consider closing arguments, evidence of the defendant’s guilt, and the jury instructions. See Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App.2002); Morales, 32 S.W.3d at 867.

In the instant case, Officer Greer testified that when he initiated the traffic stop of West, West brought his vehicle to a stop in the middle of an intersection. Because they were blocking traffic, Officer Greer instructed West on his PA system to move forward out of the intersection. West did not respond, so Officer Greer approached the vehicle on foot and again instructed West to pull forward, out of the intersection. Officer Greer smelled alcohol when he approached West’s vehicle and then requested assistance with the stop.

Officer Rusnak arrived and conducted three field sobriety tests with West. Officer Rusnak testified that on the HGN test West exhibited vertical nystagmus and nystagmus at maximum deviation. During the walk and turn test, West initially did not follow Officer Rusnak’s directions, West was unable to maintain his balance during the instruction phase, and he was unable to complete the initial nine steps out. West swayed three to four inches from side to side during the one-leg stand test. Both Officer Greer and Rusnak concluded that West was intoxicated.

Officer Pierce conducted a few evaluations of West and testified that West did not satisfactorily complete them. West was also unable to provide an adequate breath sample for the intoxilyzer. Officer Pierce concluded that West had “lost [normal use of] his mental faculties” because of alcohol.

As an excuse for his poor performance on the tests, West testified that he received numerous injuries in Vietnam. He also testified that he had not been drinking that day, but that he did take a “swallow” of beer just before being pulled over.

In terms of the evidentiary error itself, the State asked West only one question concerning his arrests. After this question was asked and answered, the prosecutor asked, “What is your driver’s license number?” Thus, the State neither inquired into nor dwelled on West’s twenty prior arrests in any manner. During closing argument, the State reminded the jury that West had a prior conviction for felony driving while intoxicated and theft, but it did not address West’s other prior arrests. Additionally, the court’s charge instructed the jury that “[a]ll persons are presumed to be innocent.... The fact that the defendant has been arrested, confined, or indicted for or otherwise charged with the offense gives rise to no inference of guilt at the defendant’s trial.” We hold that, in the context of the entire case against West, the trial court’s error in permitting the State to ask West whether he had been arrested “more than twenty times” did not have a substantial or injurious effect on the jury’s verdict and did not affect West’s substantial rights. See King, 953 S.W.2d at 271. Thus, we disregard the error. See Tex.R.App. P. 44.2(b). We overrule West’s sole point.

IV. Conclusion

Having overruled West’s only point, we affirm the trial court’s judgment.

LIVINGSTON, J. filed a concurring opinion.

TERRIE LIVINGSTON, Justice,

concurring.

I write separately from the majority opinion to diverge from its analysis of the extraneous offense evidence.

When we review a trial court’s ruling on the admission or exclusion of evidence, we do so under an abuse of discretion standard. Prystash v. State, 3 S.W.3d 522, 527 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000). Further, a trial court’s evidentiary ruling should be affirmed if it is correct under any theory applicable. Sauceda v. State, 129 S.W.3d 116, 120 (Tex.Crim.App.2004).

Generally, specific acts of misconduct may not be introduced to impeach a party or witness. Prescott v. State, 744 S.W.2d 128, 130 (Tex.Crim.App.1988); Reyna v. State, 99 S.W.3d 344, 349 (Tex.App.-Fort Worth 2003, pet. ref'd). Opposing counsel may introduce evidence about otherwise irrelevant past criminal history when a witness, during direct examination, “opens the door” or “leaves a false impression with the jury as to the extent of either his prior arrests, convictions, charges, or trouble with the police.” Reyna, 99 S.W.3d at 349 (citing Prescott, 744 S.W.2d at 130-31). Additionally, as the majority notes, the State may also correct a false impression left by a defendant who voluntarily testifies during cross-examination about his prior criminal record by offering evidence of his prior record. Martinez v. State, 728 S.W.2d 360, 362 (Tex.Crim.App.1987). The exception must relate to the defendant’s testimony that is volunteered and related to collateral matters. Hall v. State, 161 S.W.3d 142, 156 (Tex.App.-Tex-arkana 2005, no pet.) (citing Lopez v. State, 928 S.W.2d 528, 531 (Tex.Crim.App.1996)). The opponent must correct the false impression via cross-examination of the witness who left the false impression instead of calling other witnesses to correct the false impression. Wheeler v. State, 67 S.W.3d 879, 885 (Tex.Crim.App.2002). “[A]n appellant who ‘opens the door’ to otherwise inadmissible evidence risks having that evidence admitted and used against him. However, the party offering the evidence may not ‘stray beyond the scope of the invitation.’” Feldman v. State, 71 S.W.3d 738, 755-56 (Tex.Crim.App.2002) (citing Schutz v. State, 957 S.W.2d 52, 71 (Tex.Crim.App.1997)).

Here, during the State’s cross-examination of appellant, he testified that he was “shocked that they took [him] to jail in the first place” and that he “was totally shocked to be arrested in the first place.” While further trying to pursue a discrepancy in appellant’s testimony regarding the timeline, the prosecutor asked appellant whether he had taken notes that would substantiate his prior recollection. In response to this question, appellant denied that he had taken notes and further volunteered once again that he was “so shocked by being arrested and placed in that position of being handcuffed and taken to jail for DWI” as his justification for making a mistake on the time he left his father’s house. Appellant’s statements as to “being shocked” were apparently voluntary and made with a view to explain the discrepancy in his testimony regarding the timeline, to justify his behavior regarding the sobriety tests and to explain his refusal to complete a valid breath test. The trial court only allowed the State to ask one question of the appellant to clear up the false impression he left implying he had not been arrested before by asking only if he had been arrested more than 20 times.

I would therefore conclude that the State’s one question into appellant’s number of prior arrests only was strictly limited to rebut the false impression appellant attempted to create before the jury and did not stray beyond the scope of the invitation. For this reason, I would conclude that the trial court’s ruling was not outside the zone of reasonable disagreement and it was therefore within the trial court’s discretion to admit the limited rebuttal question. For this reason, I respectfully concur in the majority’s decision.

      . Officer Rusnak further testified that West had a strong odor of alcohol on his breath and person, that he had bloodshot or dilated eyes, and that his speech was slurred.


author: FELIPE REYNA, Justice.

text:
    Wiley Sam DENNIS, Appellant, v. COLLEGE STATION HOSPITAL, L.P. d/b/a College Station Medical Center, Appellee.
    No. 10-04-00321-CV.
    Court of Appeals of Texas, Waco.
    June 1, 2005.
    Rehearing Overruled June 28, 2005.

      W. Stephen Rodgers, Rodgers, Miller & McLain PC, Bryan, for appellant.
    Kenya S. Woodruff, Baker & McKenzie, Dallas, Michael R. Hoelscher, Hoelscher, Lipsey, Elmore & Benn, PC, College Station, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Wiley Sam Dennis appeals the court’s decision to submit only his counterclaims against College Station Hospital to arbitration and the court’s granting of the Hospital’s summary judgment motion on its claim against him. Dennis contends in five issues that the court erred by: (1) failing to submit the parties’ entire dispute to arbitration; (2) granting the Hospital’s summary judgment motion; (3) awarding attorney’s fees to the Hospital; (4) refusing to permit him to provide additional evidence after the summary judgment hearing; and (5) failing to permit him to present several post-hearing motions. Because the court should have submitted the entire dispute to arbitration, we will reverse and render.

The Hospital recruited Dennis to help it begin a cancer treatment center. The Hospital and Dennis signed a Recruiting Agreement in June 2000. The effective date of the Recruiting Agreement was August 1, 2000. In an addendum to this agreement, the Hospital guaranteed that Dennis would have gross monthly cash receipts of $29,166.66 during the first twelve months of the contract term, and the Hospital agreed to loan Dennis on a monthly basis any sums less than the guaranteed amount. The Hospital further agreed to forgive and cancel 1/36 of the sums lent for every month after the first year Dennis continued a full-time practice in the community and remained a medical staff member in good standing with the Hospital.

The Hospital also executed a Professional Services Agreement with College Station Radiation Oncology Associates, P.A. which took effect on August 1, 2000. The Professional Services Agreement essentially provided that Dennis would be the exclusive provider of therapeutic radiation oncology services for the Hospital during the four-year term of the contract. The Professional Services Agreement has the following arbitration clause:

Alternate Dispute Resolution. The parties firmly desire to resolve all disputes arising hereunder without resort to litigation in order to protect their respective business reputations and the confidential nature of certain aspects of their relationship. Accordingly, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator or arbitrators shall be binding and conclusive on the parties, and shall be kept confidential by the parties to the greatest extent possible. No disclosure of the award shall be made by the parties except as required by the law or as necessary or appropriate to effectuate the terms thereof.

A dispute arose between Dennis and the Hospital, and he resigned in December 2001. The Hospital demanded that Dennis repay the money it had loaned him under the terms of the gross receipts guarantee. Dennis refused, and the Hospital filed suit against him for breach of the Recruiting Agreement. Dennis filed a countersuit alleging breach of contract, fraud, and fraudulent inducement. The Hospital contends (and Dennis does not dispute) that Dennis’s counterclaim for breach of contract arises under the Professional Services Agreement.

The parties filed summary judgment motions, then the Hospital filed a motion to compel arbitration with regard to “the arbitral claims” at issue. The Hospital contended in the motion to compel arbitration that Dennis’s counterclaims arose under or related to the Professional Services Agreement. Dennis did not file a response to the motion to compel arbitration.

The court conducted a hearing on the summary judgment motions and the motion to compel arbitration, then took the motions under advisement for several months. The court granted the Hospital’s summary judgment motion on its contract claim under the Recruiting Agreement and ordered that Dennis’s counterclaims be arbitrated.

Dennis contends in his first issue that the court erred by failing to submit the entire dispute to arbitration.

In cases governed by the Texas arbitration statutes, there are two issues to resolve: (1) whether the parties have a valid arbitration agreement and (2) whether the claims at issue lie within the scope of that agreement. Brown v. Anderson, 102 S.W.3d 245, 247-48 (Tex.App.-Beaumont 2003, pet. denied); Menna v. Romero, 48 S.W.3d 247, 250 (Tex.App.-San Antonio 2001, pet. dism’d w.o.j.); Leander Cut Stone Co. v. Brazos Masonry, Inc., 987 S.W.2d 638, 640 (Tex.App.-Waco 1999, no pet.).

The only issue presented in this appeal is whether the entirety of the parties’ dispute lies within the scope of the arbitration clause contained in the Professional Services Agreement. This is a question of law which we review de novo. See Associated Glass, Ltd. v. Eye Ten Oaks Invs., Ltd., 147 S.W.3d 507, 512 (Tex.App.-San Antonio 2004, no pet.); Leander Cut Stone, 987 S.W.2d at 640.

The law favors arbitration agreements. See Associated Glass, 147 S.W.3d at 512; Perlstein v. D. Steller 3, Ltd., 109 S.W.3d 36, 39 (Tex.App.-Corpus Christi 2003, pet. denied); Brown, 102 S.W.3d at 247. Thus, we must resolve any doubts about the scope of an arbitration agreement in favor of arbitration. Id. “The policy favoring enforcement of arbitration provisions is so compelling that a court should not deny arbitration ‘unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue.’ ” Perlstein, 109 S.W.3d at 40 (quoting Prudential Secs., Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex.1995) (original proceeding) (per curiam)); accord Dewey v. Wegner, 138 S.W.3d 591, 602 (Tex.App.-Houston [14th Dist.] 2004, no pet.); Loy v. Harter, 128 S.W.3d 397, 403 (Tex.App.-Texarkana 2004, pet. denied); Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494, 498 (Tex.App.-San Antonio 2000, no pet.).

When we determine whether a particular claim lies within the scope of an arbitration agreement, we examine the terms of the arbitration agreement and the factual allegations pertinent to the claim. See In re FirstMerit Bank, N.A., 52 S.W.3d 749, 754 (Tex.2001); Loy, 128 S.W.3d at 402; Pennzoil Co., 30 S.W.3d at 498; Leander Cut Stone, 987 S.W.2d at 640. “Generally, if the facts alleged ‘touch matters,’ have a ‘significant relationship’ to, are ‘inextricably enmeshed’ with, or are ‘factually intertwined’ with the contract that is subject to the arbitration agreement, the claim will be arbitrable.” Pennzoil Co., 30 S.W.3d at 498 (citing Hou-Scape, Inc. v. Lloyd, 945 S.W.2d 202, 205-06 (Tex.App.-Houston [1st Dist.] 1997, orig. proceeding)); accord AutoNation USA Corp. v. Leroy, 105 S.W.3d 190, 195 (Tex.App.-Houston [14th Dist.] 2003, no pet.).

Other intermediate courts have required a closer relationship between the contract containing the arbitration clause and the other claims at issue. Thus, it has been held:

If [another] claim is so interwoven with the contract that it cannot stand alone, it falls within the scope of an agreement to arbitrate; if, on the other hand, [the other] claim is completely independent of the contract and could be maintained without reference to the contract, it falls outside the scope of an agreement to arbitrate.

Associated Glass, 147 S.W.3d at 513; accord Loy, 128 S.W.3d at 403; Valero Energy Corp. v. Teco Pipeline Co., 2 S.W.3d 576, 590 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Valero Energy Corp. v. Wagner & Brown, II, 777 S.W.2d 564, 566 (Tex.App.-El Paso 1989, writ denied).

We believe that the broader relationship test articulated by the court in the Pennzoil case is more appropriate. To begin with, the term used in many arbitration agreements and in the agreement at issue here is the term “related” — not “interrelated,” “interwoven,” or “interdependent.” In addition, because of the strong presumption in favor of arbitration, most courts agree that an arbitration request should not be denied “unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue.” Prudential Secs., 909 S.W.2d at 900; Dewey, 138 S.W.3d at 602; Perlstein, 109 S.W.3d at 40; Pennzoil Co., 30 S.W.3d at 498.

Here, the Hospital contends that the trial court properly declined to order the arbitration of its contract claim under the Recruiting Agreement because: (1) no party asked the court to refer this claim to arbitration; (2) the contracts are independent of each other; and (3) Dennis is not a party to the Professional Services Agreement. We disagree.

When a party calls the trial court’s attention to the existence of an arbitration agreement, the court must determine the scope of the arbitration agreement. Brown, 102 S.W.3d at 248; Menna, 48 S.W.3d at 250; see also Tex. Civ. Prac. & Rem.Code Ann. § 171.025 (Vernon Supp. 2004-2005) (trial court must stay part of proceeding involving claims covered by arbitration agreement when application for arbitration made or arbitration ordered). Thus, we hold that a party cannot limit the claims which will be submitted to arbitration by failing to include certain claims within its motion to compel arbitration. Cf. In re Serv. Corp. Intl., 85 S.W.3d 171, 174 (Tex.2002) (“There is a strong presumption against waiver” of arbitration); Associated Glass, 147 S.W.3d at 514 (same).

We also note that Dennis argued at the hearing on the Hospital’s motion to compel that the agreements were related and should both be subject to arbitration. Accordingly, we reject the Hospital’s contention that arbitration should be limited to Dennis’s claims under the Professional Services Agreement because the Hospital’s motion was so limited.

As quoted above, the Professional Services Agreement requires the arbitration of “any controversy or claim arising out of or relating to this Agreement.” Therefore, we must determine whether the factual allegations of the Hospital’s claim for breach of the Recruiting Agreement “ ‘touch matters,’ have a ‘significant relationship’ to, are ‘inextricably enmeshed’ with, or are ‘factually intertwined’ with the” Professional Services Agreement. Pennzoil Co., 30 S.W.3d at 498; accord Hou-Scape, 945 S.W.2d at 205-06.

The contracts at issue are contemporaneous, at least in terms of their effective dates. The contracts refer to each other. Both contracts undoubtedly relate to Dennis’s service as a therapeutic radiation oncologist for the Hospital.

The Hospital focuses primarily on the fact that the parties’ rights under these contracts could be litigated separately. See Associated Glass, 147 S.W.3d at 513; Loy, 128 S.W.3d at 403; Teco Pipeline Co., 2 S.W.3d at 590; Wagner & Brown, 111 S.W.2d at 566. However, the same could be said of virtually any two legal theories of recovery. Therefore, because of the strong presumption favoring arbitration and because the two agreements at issue are closely related, we hold that that the arbitration clause in the Professional Services Agreement is broad enough in scope to include the Hospital’s claim under the Recruiting Agreement. See Associated Glass, 147 S.W.3d at 513-14; Dewey, 138 S.W.3d at 602-03; AutoNation USA 105 S.W.3d at 196-98; Pennzoil Co., 30 S.W.3d at 498-99; In re Conseco Fin. Servicing Corp., 19 S.W.3d 562, 570 (Tex.App.-Waco 2000, orig. proceeding); Teco Pipeline Co., 2 S.W.3d at 590-91; Hou-Scape, 945 S.W.2d at 206.

The Professional Services Agreement was executed by the Hospital and by College Station Radiation Oncology Associates, P.A. Thus, the Hospital argues that any claims it has against Dennis in his individual capacity are not subject to arbitration under an agreement the Hospital signed with the professional association.

Claims against a nonsignatory to an arbitration agreement are subject to arbitration if the claims against the nonsig-natory “are based on the same operative facts and are inherently inseparable” from claims which could be asserted against a signatory to the agreement. Teco Pipeline Co., 2 S.W.3d at 593; accord In re Educ. Mgt. Corp., 14 S.W.3d 418, 424-25 (Tex.App.-Houston [14th Dist.] 2000, orig. proceeding); Carlin v. 3V Inc., 928 S.W.2d 291, 297 (Tex.App.-Houston [14th Dist.] 1996, no writ); Merrill Lynch, Pierce, Fenner & Smith v. Eddings, 838 S.W.2d 874, 879 (Tex.App.-Waco 1992, writ denied); cf. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 740 (Tex.2005) (orig. proceeding) (nonsignatory plaintiff may be compelled to arbitrate a claim “only if it seeks, through the claim, to derive a direct benefit from the contract containing the arbitration provision”).

Here, the Hospital’s contract claim against Dennis satisfies this test. Therefore, the Hospital’s claim against Dennis for breach of the Recruiting Agreement is subject to the arbitration clause contained in the Professional Services Agreement.

Accordingly, we sustain Dennis’s first issue. We need not address the remainder of the issues presented.

We reverse the judgment and remand this cause to the trial court with instructions to stay all further proceedings in that court and order the parties to arbitrate them claims in accordance with the arbitration clause contained in the Professional Services Agreement. See Associated Glass, 147 S.W.3d at 514; Williams Indus., Inc. v. Earth Dev. Sys. Corp., 110 S.W.3d 131, 142 (Tex.App.-Houston [1st Dist.] 2003, no pet.); Teco Pipeline Co., 2 S.W.3d at 595.

      . The Hospital’s representative signed the Professional Services Agreement in November 2000 and Dennis signed it on behalf of College Station Radiation Oncology Associates in March 2001. Nevertheless, the agreement expressly provided that it took effect in August 2000 regardless of when it was signed.

      . The Texas statutes governing arbitration of disputes (commonly referred to as the Texas Arbitration Act) are found in Chapter 171 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & RemCode Ann. §§ 171.001-171.098 (Vernon Supp.2004-2005).

      . Although the San Antonio and Houston (14th) Courts of Appeals quoted the broader language set out in the paragraph above, these courts also referred to the more restrictive language set out in this paragraph. See AutoNation USA Corp. v. Leroy, 105 S.W.3d 190, 195 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (citing Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494, 498 (Tex.App.-San Antonio 2000, no pet.) (citing Fridl v. Cook, 908 S.W.2d 507, 511 (Tex.App.-El Paso 1995, writ dism’d w.o.j.))). The more restrictive language appears to find its origin in the 1989 decision of the El Paso Court of Appeals in Valero Energy Corp. v. Wagner & Brown, II, 777 S.W.2d 564, 566 (Tex.App.-El Paso 1989, writ denied).