author: JOSEPH M. TIPTON, J., TIPTON, J.

text:
    STATE of Tennessee, v. Darrell Glen SMITH.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Assigned on Briefs July 22, 2008.
    Dec. 18, 2003.
    Order Vacating Judgment and Re-entering Judgment March 23, 2004.
    Order Denying Rehearing on Vacating Order April 16, 2004.
    Application for Permission to Appeal Denied by Supreme Court Oct. 4, 2004.

      Edward C. Miller, District Public Defender, for the appellant, Darrell Glen Smith.
    Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General, for the appellee, State,of Tennessee.
   OPINION

JOSEPH M. TIPTON, J.,

delivered the opinion of the court, in which

GARY R. WADE, P.J., and NORMA McGEE OGLE, J., joined.

The defendant, Darrell Glen Smith, appeals as of right from his conviction by a jury in the Cocke County Circuit Court for first degree murder. The defendant was sentenced to life imprisonment with the possibility of parole. He contends that (1) the evidence is insufficient to support the jury’s rejection of his insanity defense and (2) the trial court erred in failing to grant a new trial due to juror misconduct. We affirm the trial court’s judgment of conviction.

This case relates to the defendant’s killing his mother on June 2, 1998. Rose Dixon, a driver for Quality Transportation, testified that her job was to transport medical and mental patients and that she picked up the defendant from Peninsula Hospital on June 1, 1998. She said he refused to engage in any conversation with her and when asked questions, he only replied with short responses. On cross-examination, she testified that if she had known about the defendant’s condition, she would not have transported him.

Ulyss Smith, the defendant’s brother, testified that he went to his mother’s home on June 2 to look for her after his aunt had told him that she could not find his mother. He said that when he arrived at his mother’s home, he saw the defendant, who said that their mother was sleeping. He said that he opened their mother’s bedroom door but did not see her and that the defendant told him that he needed to leave. He said he did not see any blood on the defendant at that time. He said that he returned to the victim’s home with his brother-in-law, Steve Taylor, but that the defendant was .not there. He said they went to the back bedroom and found his mother covered in blood. He said his aunt then called the police. He said that he next saw the defendant when the defendant was arrested and that the defendant had blood on his stomach at that time. On cross-examination, he said the defendant looked dirty when he saw him on June 2.

Armondo Fontes, a police officer for the Cocke County Sheriffs Department, testified that on May 22, 1998, he was sent to the victim’s home to transport the defendant to an emergency room to have him evaluated and that on June 2, he answered a domestic dispute call at the victim’s home. He said that when he arrived, he first talked to Mr. Taylor, who told him “he’s killed her.” He said he then knocked on the door at the victim’s home and the defendant came out with blood on his stomach. He said that after handcuffing the defendant, the defendant stated, “I had to kill her, she was trying to poison me.” On cross-examination, Fontes said that on May 22, the defendant appeared to be normal and was cooperative. He said that on June 2, the defendant told him his mother had forced him to castrate himself. He said there was nothing at the victim’s home indicating the defendant tried to conceal evidence.

Danny Ray Reece, a police officer in the Cocke County Police Department, testified that on June 2, he was the first officer to enter the victim’s home. He said the ceiling fan light was broken, blood was on the ceiling, and there were fresh signs of a forced entry into the bedroom. He said that while he was inside the victim’s home, he found an ax, a steel rod wrapped in electrical tape, and two bloody knives. On cross-examination, Reece said the victim’s body did not appear to have been moved since the killing and the weapons were in plain view.

Duane Johnson, a special agent for the Tennessee Bureau of Investigation, testified that on June 2, he saw an ax and a steel rod with electrical tape wrapped around it in the victim’s living room. He said there were strands of hair and- a reddish-brown stain on the electrical tape. He said he saw what appeared to be blood on the following: the front porch, the living room floor, the kitchen sink, the hallway floor, the doorknob of the back bedroom, the victim’s bed, the curtains and walls of the back bedroom, two knives, a pair of glasses that belonged to the defendant, and in the defendant’s bedroom. He said the victim’s head had been cut in multiple places and her right arm had large areas of discoloration. On cross-examination, Johnson said that he had never investigated a murder case where the weapons were left in plain view.

Dennis Ray Daniels, a special agent for the Tennessee Bureau of Investigation, testified that he interviewed the defendant at the hospital after the victim was killed. He said the defendant stated that the victim forced him to kill her and that she previously forced him to castrate himself. He said the defendant stated that on the night of June 1, he vomited after eating barbeque and potato salad. He said the defendant stated his mother had poisoned him. Daniels said the defendant stated that he was mad and afraid and that he snapped, first hitting his mother with a steel rod. He said the defendant stated that he hit the victim with the ax multiple times because the victim “would not go down.” He said the defendant stated that he stabbed himself in the heart three times to try and “get it over with.” He said the defendant stated that he stabbed his mother and went to bed but did not sleep more than five minutes that night. On cross-examination, Daniels testified that the defendant was very alert during their interview but that he was not sure how aware the defendant was of his surroundings.

Dr. Cleland Blake, a forensic pathologist, testified that he performed an autopsy on the victim’s body and found multiple wounds to the head, a tear on the left middle finger, a deep bruise on the left arm, a bruise on the right shoulder, and a tear in the skin on the right arm. He said some of the cuts on the victim’s head were the result of a blunt object while others were the result of a knifelike object. He said the electrical tape on the steel rod was likely used for a better grip. He said the cause of death was blunt trauma to the head.

Regina Fine, the defendant’s sister, testified that when the defendant was young, he witnessed his brother’s death when a car ran over him. She said that the defendant began to act peculiar in his late teens and that he never moved out of his mother’s home. She said her husband had to take the defendant to the emergency room in 1996 when he castrated himself with grass clippers. She said the defendant had to go to the emergency room and mental facilities multiple times for his mental problems. She said the defendant always stayed in his room and she did not remember him ever leaving the home. She said the defendant called their mother the devil and a “son-of-a-bitch.” She said that on June 1, 1998, she talked to her mother and her mother said the defendant was nervous and pacing around the home. She said their mother did everything for the defendant and there was no rational reason for him to kill her.

On cross-examination, Mrs. Fine testified that she was on friendly terms with the defendant but that he would not visit with her. She acknowledged that the defendant was mad at their mother and the rest of the family when no one would cosign a loan in order that he could buy a motorcycle. She denied telling an employee of Forensic Services that the defendant told her he could kill her anytime he wanted. Billy Fine, the defendant’s brother-in-law, testified that he drove the defendant to the hospital on May 14, 1996, after the defendant castrated himself. He said the defendant was bleeding all over but showed no emotion.

Susan Janelle Dyer, the defendant’s sister, testified that the defendant began acting peculiar during his senior year in high school and would isolate himself from the rest of the family, only leaving his room at night when everyone else was in bed. She said that his personal hygiene was bad and that he never combed his hair. She said there was no rational reason for him to kill their mother.

Tunney Moore, the former Sheriff of Cocke County, testified that he went to the same church as the victim and that she told him she was afraid of the defendant. He said he helped the victim send the defendant to a mental health facility on several occasions when the defendant scared or assaulted her. He said that on June 2, when he asked the defendant why he had killed his mother, he said she was trying to poison him. Pat Taylor, a deputy for the Cocke County Police Department in 1998, testified that on May 22, he picked the defendant up at the victim’s home and drove him to a mental health facility. On the way, the defendant said he was going to hurt his mother because she had made him do bad things and had made him castrate himself. He said the defendant stated that his mother was poisoning him and trying to kill him.

Eric S. Engum, a clinical psychologist specializing in neuropsychology and forensic psychology, testified that the defendant suffers from paranoid schizophrenia “continuous with prominent negative symptoms.” He said records from three separate mental institutions where the defendant was evaluated confirmed this diagnosis. He said the defendant did not appreciate the wrongfulness of his conduct when he killed his mother and still did not understand that killing his mother was wrong. He said the defendant believed that his mother was the devil, that she poisoned him, that she injected him with chemicals at night, and that she mentally forced him to castrate himself.

Dr. Engum said that in a test to determine the defendant’s ability to function in a community, the defendant’s score was at the bottom. He said records from Cherokee Health Systems reported the defendant as having delusions about his mother as early as 1986. He said the reports indicated the defendant had both visual and auditory hallucinations. He said the defendant was taken to Lakeshore Mental Health Institute in 1986 because he met the emergency commitment requirement, that he was a threat to himself or others. He said records indicated the defendant suffered from extreme side effects due to the medications he used to control the schizophrenia.

Dr. Engum said that in May 1994, the defendant became depressed and exhibited violent behavior, including beating his mother. He said the defendant was both homicidal and suicidal. He said that in 1996, when the defendant castrated himself, he gave various reasons for his conduct, including the following: (1) the people at Cherokee Mental Health Center told him that if he did this, it would set him free; (2) his psychologist told him to do it; (3) it was his way of avoiding being sold into white slavery; and (4) his mother told him it was the only way he could be free of sin.

Dr. Engum said that at Peninsula Hospital in 1998, nine days before the defendant killed his mother, the defendant said that voices told him to kill his mother to avoid being sold into white slavery. He said the report stated the defendant was delusional and angry. He said that on June 1, 1998, Peninsula discharged the defendant. He said that when he met with the defendant in 2001, the defendant still had delusions about his mother. He said he had no doubt that on June 2, 1998, the defendant was suffering from psychotic delusions as a result of his paranoid'schizophrenia and that the defendant was reacting honestly to his delusions when he killed the victim. He said that the defendant believed that his mother was the devil, that he was saving the world from her, and that he was the only person in the world who could perceive the victim’s true nature. He said he believed the defendant could never function in society and needed permanent supervision to prevent the defendant from hurting himself or others. He said that in 1998, the defendant was not in reality at all. Dr. Engum said that he had been involved in over two hundred criminal cases and that this was only the second time he had testified that a defendant could not understand the wrongfulness of his actions.

On cross-examination, Dr. Engum testified that the defendant was not mentally retarded. He acknowledged that his diagnosis was based, in part, on what the defendant told him. He said that Peninsula Hospital’s records reflected that the defendant was still experiencing auditory hallucinations when he was discharged on June 1. He admitted that being mentally ill does not necessarily mean that a person cannot appreciate the difference between right and wrong. He stated that people with mental illnesses can still add and subtract but that this goes to their IQ, not their mental stability. He acknowledged that reports from 1999, 2000, and 2001 record the defendant as having good hygiene and his thought process as being orderly and relevant. He stated, however, that he questioned the accuracy of those reports. He agreed, though, that there were improvements when the defendant was hospitalized and given medication. Dr. Engum denied there being a possibility that the defendant was pretending to be delusional to avoid criminal responsibility. He admitted that when the defendant told his brother that their mother was asleep, one possible inference is that the defendant knew right from wrong. On redirect examination, Engum testified that the reports that said the defendant had good hygiene and was orderly and relevant may be flawed because they were not made by a psychiatrist or psychologist and were made by watching the defendant through a small glass hole.

Dr. Rokeya S. Farooque, a psychiatrist, testified that although the defendant was not competent to stand trial in 1998, he was competent at the time of his trial. She said that the defendant suffered from paranoid schizophrenia but was able to appreciate the wrongfulness of his acts when he killed the victim. She said the defendant was given Haldol, a drug used to decrease hallucinations and delusions, at Peninsula Hospital before being released on June 1, 1998. She said that Haldol stayed in the bloodstream for three to four weeks.

On cross-examination, Dr. Farooque acknowledged that the defendant was a paranoid schizophrenic, had been extremely psychotic at times, and had been having psychotic delusions about his mother since 1986. She said reports indicated that the defendant was stable on medication at the time of his discharge from Peninsula Hospital on June 1 and that he committed the killing just hours later. She said that the defendant never claimed he heard voices during the incident telling him to kill his mother which, in combination with the defendant taking medication, indicated there was no hallucination or delusion that made the defendant unable to appreciate the wrongfulness of his actions. She admitted she would not have discharged a patient if she knew he was continuing to have delusions and hallucinations. She said the defendant was given oral Haldol when he was discharged, which would be used to supplement the injection of Haldol if the injection was insufficient to stabilize him mentally. She admitted that if the injection was insufficient and the defendant did not take his oral medication, he could become psychotic.

Sam Craddock, a psychologist, testified that in September 1998 the defendant was not competent to stand trial but that he was competent by August 1999. He said he concluded the defendant appreciated the nature of his actions when he killed the victim based on the following factors: (1) the defendant told Mrs. Fine, his sister, that he could kill her anytime he wanted; (2) the defendant sometimes got upset with his mother when he was not psychotic; (3) on June 1, the attending physician, Dr. May, did not describe the defendant as being psychotic; and (4) when he was diagnosed after the killing on June 2, the defendant did not say he killed his mother because she poisoned him. Dr. Craddock said he believed it was just as likely that the defendant killed his mother because he was upset with her as it was that he killed her because he was having a psychotic delusion. On cross-examination, Dr. Crad-dock testified that he did not know for certain whether the defendant was psychotic at the time of the victim’s killing and that if he was psychotic, he might have been unable to appreciate the wrongfulness of his actions.

The jury convicted the defendant of first degree murder. The defendant contends that he should have been found not guilty by reason of insanity because he could not appreciate the wrongfulness of his actions when he killed his mother. In the alternative, he contends that he should receive a new trial because the jury improperly considered whether the defendant would spend a long time in an institution if they found him not guilty by reason of insanity. We affirm the defendant’s conviction.

I. INSANITY DEFENSE

The defendant contends that he proved by clear and convincing evidence that he was insane at the time of the killing. With regard to the defense of insanity, T.C.A. § 39-11-501 provides as follows:

(a) It is an affirmative defense to prosecution that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature or wrongfulness of such defendant’s acts. Mental disease or defect does not otherwise constitute a defense. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.
(b) As used in this section, “mental disease or defect” does not include any abnormality manifested only by repeated criminal or otherwise antisocial conduct.
(c) No expert witness may testify as to whether the defendant was or was not insane as set forth in subsection (a). Such ultimate issue is a matter for the trier of fact alone.

With respect to appellate review of a jury’s rejection of a defendant’s insanity defense, our supreme court has stated:

[Ajppellate courts in Tennessee should apply the reasonableness standard when reviewing a jury’s rejection of the insanity defense. Consistent with the expressed legislative intent of Tenn.Code Ann. § 39-ll-501(c) and other Tennessee standards governing appellate review of factual findings, this standard is properly deferential to the finding of the trier of fact. On the other hand, this standard does not totally insulate the jury’s finding from appellate review; rather, it enhances appellate review by virtue of its similarity to the familiar sufficiency standard which appellate courts are accustomed to applying. Accordingly, appellate courts in Tennessee should reverse a jury verdict rejecting the insanity defense only if, considering the evidence in the light most favorable to the prosecution, no reasonable trier of fact could have failed to find that the defendant’s insanity at the time of the offense was established by clear and convincing evidence.... [W]e explicitly reject the notion that the State must rebut defense proof of insanity with substantial evidence. The current statute clearly does not impose such a burden of proof on the prosecution. The statute places the burden of establishing this affirmative defense squarely on the defendant. Once this defense has been interposed, the prosecution likely will in most cases attempt in some manner to counter the defense proof.... [Djefense proof can be countered by contrary expert testimony, lay witnesses, or vigorous cross-examination designed to undermine the credibility of the defense experts. A reviewing court applying the reasonableness standard should consider all the evidence in the record in the light most favorable to the state in determining whether the jury appropriately rejected the insanity defense.
The weight and value to be given expert testimony is a question for the jury. [State v. Sparks, 891 S.W.2d 607, 616 (Tenn.1995) ]. Where there is a conflict in the evidence, the trier of fact is not required to accept expert testimony over other evidence and must determine the weight and credibility of each in light of all the facts and circumstances of the case. Id. Questions concerning the credibility of witnesses, the weight and value of the evidence, as well as all factual disputes raised by the evidence, are for the trier of fact; appellate courts do not reweigh the evidence or reevaluate credibility determinations. [State v. Holder, 15 S.W.3d 905, 912 (Tenn.Crim.App.1999) ].

State v. Flake, 88 S.W.3d 540, 554 (Tenn.2002).

Evidence existed to show that the defendant was not psychotic or suffering from delusions and hallucinations at the time of the offense. The defendant had taken an injection of Haldol while at Peninsula Hospital, a medication that is usually effective in preventing delusions and hallucinations for three to four weeks. Dr. Farooque stated she believed that this medication should have prevented the defendant from becoming psychotic after being discharged on June 1. Moreover, after the killing, reports from the Cherokee Crisis Team indicated that the defendant did not claim his mother was poisoning him when they interviewed him on June 2.

Evidence also existed to show that the defendant appreciated the wrongfulness of his actions when he killed the victim. When the defendant’s brother came to the victim’s home, the defendant lied and told his brother that the victim was sleeping and said he should leave. Although not conclusive, this suggests that the defendant knew that he did something wrong because he did not want his brother to discover that he had killed their mother. Moreover, the defendant had previously been upset with his mother and the rest of the family when they did not co-sign a loan for him so that he could buy a motorcycle. Although Mrs. Fine denied it, Dr. Crad-dock noted that the defendant told his sister that he could kill her any time he wanted. The defendant told Mr. Daniels in their interview after the killing that he was mad and afraid when he killed the victim. Dr. Craddock testified that it was as likely that the defendant became upset with his mother for trying to convince him to take his medication or for some other reason and decided to kill her. Dr. Crad-dock did not believe delusions and hallucinations caused the defendant to kill the victim.

The evidence shows that the defendant suffered from paranoid schizophrenia. Having this mental disease, however, does not preclude the possibility that he could be found legally sane by a jury. T.C.A. § 39-ll-501(a) (1997). It was the jury’s responsibility to give the proper weight and value to the expert and lay witnesses in determining whether the defendant was insane by clear and convincing evidence. Flake, 88 S.W.3d at 554. Although the defendant argues that the jury erred in not finding him insane at the time of the killing, the jury chose to accredit the witnesses who supported the state’s theory of the case: that the defendant’s medication was effective; that he was not psychotic and delusional at the time of the killing; and that he knew his actions were wrong when he killed his mother. In the light most favorable to the state, a rational trier of fact could have failed to find that the defendant’s criminal insanity at the time of the offense was established by clear and convincing evidence. The evidence is sufficient to justify the defendant’s conviction.

II. JUROR MISCONDUCT

The defendant contends that he should receive a new trial because the jury improperly considered how long the defendant would be institutionalized if they found him not guilty by reason of insanity. The state argues that the defendant’s evidence of juror misconduct is not allowed under Tennessee Rule of Evidence 606(b) and that the trial court properly denied the defendant’s motion for a new trial. We agree with the state.

During deliberations, the jury submitted a question to the trial court asking whether the defendant would be institutionalized for a long period of time if it found the defendant not guilty by reason of insanity. The trial court told the jury that the court would not answer its question and that the jury should remember the evidence and the law as it had been given. At the hearing for a new trial, the defendant offered the trial court several questionnaires he sent to jurors after the trial and notes he had taken during a phone conversation with one juror after the trial as evidence that the jury improperly considered the question of how long the defendant would be institutionalized. In one juror’s questionnaire, the juror stated that he or she would have found the defendant not guilty by reason of insanity if assured that the defendant would have been treated for a long period of time. In addition, defense counsel’s notes from a telephone conversation with a juror reflected that the juror would have voted “guilty but insane” if that had been an option. The trial court refused to consider the juror information.

Rule 606(b), Tenn. R. Evid., precludes a juror from testifying or offering an affidavit “as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon any juror’s mind or emotion as influencing that juror to assent to or dissent from the verdict.” Three exceptions to this rule are that a juror may testify or offer an affidavit as to (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether the jurors agreed in advance to be bound by a quotient or gambling verdict without further discussion. Id.

As the Advisory Commission Comment notes, this rule is the codification of the supreme court’s adoption of Rule 606(b), Fed.R.Evid., in State v. Blackwell, 664 S.W.2d 686, 688 (Tenn.1984). If the defendant shows that the jury has been subjected to extraneous prejudicial information or improper influence, then we presume prejudice and the burden shifts to the state to rebut this presumption by either explaining the exposure or proving that it was harmless. Id. at 689. The information that the jurors provided the defendant cannot be offered in court unless it qualifies under one of the three exceptions in 606(b). In the present case, unless the information is extraneous, it is inadmissible under Tenn. R. Evid. 606(b). “Extraneous means ‘coming from without.’ ” State v. Coker, 746 S.W.2d 167, 171 (Tenn.1987) (holding that the jurors’ alleged discussion about the possibility that the defendant would hire someone to kill them was inadmissible because the defendant had not shown that the jury learned of the threat from an outside source). The trial court in this case questioned whether the information was extraneous but ultimately found that it was not in denying the defendant’s motion for a new trial.

The defendant bears the burden of showing that the jurors were exposed to extraneous information and that their testimony is thereby permitted under Rule 606(b), Tenn. R. Evid. See Blackwell, 664 S.W.2d at 689. In Henley v. State, a capital post-conviction case, the petitioner sought to introduce an affidavit from one of the trial jurors in support of his claim of ineffective assistance of counsel. 960 S.W.2d 572 (Tenn.1997). The affidavit related to the jury’s mindset concerning the refusal of the petitioner’s mother to testify during the sentencing phase of the trial. The supreme court stated that “the juror’s affidavit related to the precise subject matter about which a juror is strictly forbidden from testifying by Rule 606(b).” Id. at 581. The court held that this evidence “violates the express terms of Rule 606(b) and should not have been considered” in the post-conviction proceeding. Id. Likewise, in the present case, the defendant introduced exhibits at the hearing for a new trial where the subject matter related to the jury’s mindset. Accordingly, this information was not extraneous and not properly before the trial court. It cannot be used to show juror misconduct.

In any event, even were we to consider the jury information submitted by the defendant, we would still be unpersuaded that there was any juror misconduct. The juror in the questionnaire stated that the jury decided unanimously that the defendant appreciated the wrongfulness of his conduct. Even if the jurors thought about what would happen if they found him not guilty by reason of insanity, this does not negate their finding that the defendant appreciated the wrongfulness of his actions.

Based upon the foregoing and the record as a whole, we affirm the judgment of conviction.

ORDER

TIPTON, J.

Counsel for the defendant, Darrell Glen Smith, has moved for this court to vacate and reenter its judgment in this case, previously filed on December 18, 2003, in order that the defendant may file an application for permission to appeal to the Tennessee Supreme Court. Counsel states that he miscalculated the sixty-day filing period for the defendant’s previous application, resulting in it being filed two days late. The supreme court dismissed the application as untimely on March 1, 2004. Counsel avers that the defendant is “extremely mentally ill” and that counsel does not believe that the defendant has the “wherewithal” to pursue a delayed appeal upon being notified of the circumstances surrounding the dismissal.

The state opposes the motion, contending that this court has no authority to grant such a motion. It notes that counsel for the defendant cites cases relying on the procedural framework in Pinkston v. State, 668 S.W.2d 676 (Tenn.Crim.App.1984), for securing a delayed second-tier appeal. It contends, though, that the supreme court has expressly overruled the Pinkston procedure in State v. Evans, 108 S.W.3d 231 (Tenn.2003), and that a delayed appeal may only be granted through a post-conviction proceeding.

This court acknowledges that a delayed appeal pursuant to T.C.A. § 40-30-113 may only be granted through the post-conviction process. However, such does not foreclose this court’s inherent power to prevent a miscarriage of justice in certain cases involving special circumstances.

The state does not address defense counsel’s reliance upon State v. Robert Renner, No. 03C01-9302-CR-00034, 1994 WL 111073. Appellate court records reflect that in Renner, this court affirmed the defendant’s conviction and defense counsel — the same as in the instant case— was late in filing a motion for a thirty-day extension of time in which to file an application pursuant to Rule 11, T.R.A.P., for appeal to the supreme court. The supreme court denied the motion, and the defendant filed a motion to reconsider or in the alternative to remand the case to the court of criminal appeals. The supreme court denied the motion but stated, “We observe, however, that this Court’s denial of the motion does not foreclose a motion in the Court of Criminal Appeals requesting that the prior order be vacated and re-entered to allow time for filing a Rule 11 application to begin running anew.” State v. Robert Renner, No. 03C01-9302-CR-00034, Jefferson County (Tenn. May 11, 1994) (order). Subsequently, this court did just that, see Robert Renner, No. 03C01-9302-CR-00034, Jefferson County, 1994 WL 501778 (Tenn.Crim.App. Sept. 12, 1994) (order), and the supreme court ultimately granted the defendant permission to appeal. See Robert Renner, No. 03C01-9302-CR-00034, Jefferson County (Tenn. Dec. 5,1994) (order).

This court views the supreme court’s actions in Robert Renner as an acknowledgment of the inherent power of this court to act to correct manifest injustice. In this respect, this court is mindful of the fact that it has the power to recall a mandate in particular circumstances in order that the court may take further action in a case.

The power to recall mandate is an extraordinary remedy and should be exercised sparingly. See, e.g., Calderon v. Thompson, 523 U.S. 538, 550, 118 S.Ct. 1489, 1490, 140 L.Ed.2d 728 (1998) (stating that the power to recall mandate “is one of last resort, to be held in reserve against grave, unforeseen contingencies”). Moreover, to warrant a recall, the circumstances should be “sufficient to override the strong public policy that there should be an end to a case in litigation.” Hines v. Royal Indemnity Co., 253 F.2d 111, 114 (6th Cir.1958); see also Yocom v. Bratcher, 578 S.W.2d 44, 46 (Ky.1979) (“There is a strong policy of repose which requires that mandates and the opinions which they effectuate carry a heavy seal of finality”)....

State v. Abu-Ali Abdur’Rahman, M1998-00026-SC-DPE-PD (Tenn. Apr. 5, 2002) (order). In the present case, though, the mandate has not issued. Certainly, this court has the power to act before the mandate issues.

This court acknowledges that it ordinarily would require a defendant to seek the relief requested in this case through the post-conviction process. However, this case contains particular circumstances which this court should remedy. The record verifies the fact that counsel missed the Rule 11 application deadline by two days. The state does not contest the fact that counsel’s action will ultimately lead to the defendant obtaining a delayed appeal. As defense counsel claims, our review of the record reflects substantial evidence that the defendant is “extremely mentally ill.” The court finds as reasonable counsel’s concern that the defendant would be mentally unable to pursue a delayed appeal upon being notified of the circumstances surrounding the dismissal of his case. Under these particular circumstances, the court concludes that the defendant is entitled to relief. Wherefore, in consideration of the foregoing, it is hereby ORDERED that the judgment of this court previously entered in this case be vacated and reentered as of the date of this order.

ORDER

The state has filed a respectful and earnest petition for rehearing. It asserts that the supreme court’s opinion in State v. F. Chris Cawood, 134 S.W.3d 159 (Tenn.2004), filed the day before the order in this case, controls this case and demonstrates that this court did not have jurisdiction to vacate and reenter its judgment. It also relies upon the fact that another panel of this court ruled the opposite way on the same day we ruled in this case.

In F. Chris Cawood, the supreme court ruled that the court of criminal appeals did not have subject matter jurisdiction to entertain and act on a motion to remove an exhibit because

1. The Supreme Court was the last court to exercise jurisdiction (prior to the motion) in its rejection of the State’s Rule 11 application;

2. The case was not remanded; and

3. The mandate had issued.

The state asserts we were, therefore, powerless in this case to act to vacate and reenter our judgment.

We see a distinction between F. Chris Cawood and this case. In that case, the state had filed a timely Rule 11 application and the supreme court assumed jurisdiction to consider the merits of the application. Here, the supreme court was faced with an untimely application for which the court had no jurisdiction other than to dismiss the application. In effect, the case was never legally before the supreme court. The state’s position would have parties on appeal invoking the supreme court’s jurisdiction at any time by applying for permission to appeal even though the time for the appeal has long passed. We do not believe that such an invocation exists. Also, we note that the mandate had not issued when we entered the order in this case vacating and reentering our former judgment.

The state also relies upon the order entered by another panel of this court in State v. Alejandro Rivera, No. E2002-00491-CCA-R3-CD, Cocke County (Tenn.Crim.App. Mar. 28, 2004) (order). In Rivera, the defendant requested this court to vacate and reenter its judgment because he missed the time to seek an appeal to the supreme court due to counsel’s error. The state claimed that the appropriate procedure for the defendant’s request was to seek post-conviction relief. This court agreed and denied the request. We do not believe Alejandro Rivera conflicts with our action in this case. Our holding was based upon our inherent power to act under extraordinary circumstances. In this respect, we note that the supreme court has on occasion directed this court to vacate and reenter its judgment. We do not believe State v. Evans, 108 S.W.3d 231 (Tenn.2003), divests us of our inherent power to act in this case.

In consideration of the foregoing, we respectfully deny the state’s petition to rehear.


source: Caselaw Access Project

author: Justice O’NEILL

license: Public Domain

text:
    TARRANT REGIONAL WATER DISTRICT, Petitioner, v. Billy Harden GRAGG, As Independent Executor of the Estate of O.L. Gragg, Deceased, et al., Respondents.
    No. 01-0362.
    Supreme Court of Texas.
    Argued Oct. 16, 2002.
    Decided June 25, 2004.
    Rehearing Denied Jan. 14, 2005.

      Denise A. Driskell, Asst. City Atty., Dallas, Hodgson Eckel, Asst. Gen. Counsel, Christain W. Kadas, Austin, James H. Routh Jr., Ñaman Howell Smith & Lee, LLP, Waco, Douglas G. Caroom, Bicker-staff Heath Smiley Pollan Kever McDaniel, L.L.P., Austin, Cora Z. Garcia, Asst. City Atty., Houston, J.B. Love Jr., Love Law Office, Marathon, Frank R. Booth, Aransas Pass, TX, for Amicus Curaie.
    George F. Christie, Stan Harrell, Hal R. Ray Jr., Pope Hardwieke Christie Harrell Schell & Kelly, Fort Worth, Milton Reed Jackson, Fairfield, Marc 0. Knisely, McGinnis Lochridge & Kilgore, L.L.P., Shannon H. Ratliff, Ratliff Law Firm, P.L.L.C., Austin, for Petitioner.
    Mike A. Hatchell, Raul A. Gonzalez, Locke Liddell & Sapp LLP, Austin, Ron Edmondson, Jacobson & Edmondson, Glenn Sodd, Micah C. Haden, Clay Beard, Dawson & Sodd, P.C., Corsicana, Warren W. Harris, Bracewell & Patterson, L.L.P., Houston, E. Lee Parsley, E. Lee Parsley, P.C., Austin, Molly H. Hatchell, Hatchell P.C., Tyler, for Respondents.
   Justice O’NEILL

delivered the opinion of the Court.

In this case, we must decide whether the evidence is legally sufficient to support the trial court’s determination that construction and operation of the Tarrant Regional Water District’s Richland-Chambers Reservoir caused a significant change in flooding characteristics that damaged the Gragg Ranch. If it is, we must decide (1) whether a taking resulted, (2) whether the trial court erred in trying the condemnation and compensation issues together, and (3) whether the compensation issue was properly submitted or the jury’s award properly supported. We hold that the evidence presented is legally sufficient to support the trial court’s findings that the reservoir caused recurrent destructive changes in flooding characteristics that directly impacted the Gragg property such that it was no longer usable for its intended purpose and was taken. We also hold that the trial court did not abuse its discretion in refusing to order separate trials on the questions of inverse condemnation and compensation. Finally, we hold that the trial court’s submission of the compensation issue is not reversible and the jury’s compensation award is supported by legally sufficient evidence. Accordingly, we affirm the court of appeals’ judgment. 43 S.W.3d 609.

I. Background

In 1990, the Tarrant Regional Water District began releasing water for the first time from the Richland-Chambers Reservoir on the Trinity River about eight river miles upstream from the 12,516-acre Gragg Ranch. The Gragg family has owned the Ranch since 1949. The Gragg Ranch is one of the largest in East Texas, lying partly in Anderson County and partly in Freestone County. The Trinity River borders the Ranch in some places and bisects the property around the Ranch’s mid-point. In all, the Ranch has seventeen miles of river frontage. The Gragg property consists of 1,722 upland acres and 10,794 acres of bottomland within the Trinity River’s flood plain where cattle normally graze.

A number of factors have made the Ranch particularly suitable for cattle ranching. Regular flooding in the past contributed to the bottomlands’ exceptional fertility. A number of elevated levee roads traversing the bottomlands enabled large trucks to timely evacuate cattle in slowly rising flood waters. Because the Ranch’s acreage is contiguous and the bot-tomlands’ fertility produced a steady natural food supply, a very small staff could conduct a large-scale, highly profitable cattle-ranching operation. In 1989, O.L. Gragg leased the property to the Schwert-ner-Priest partnership. The partnership further increased the Ranch’s profitability by instituting the Schwertner Select program in which recently weaned calves, which are generally highly sensitive to stress and disease, are pre-conditioned for thirty to forty-five days before being transported to feedlots or stocker operations. The property’s open terrain, contiguity, and fertility, made it uniquely suited to this pre-conditioning program.

The Tarrant Regional Water District is a water control and improvement district created under article XVI, section 59, of the Texas Constitution. One of the District’s functions is to provide for the control, storage, preservation, distribution, conservation, and reclamation of water, including flood water. Tex. Water Code § 51.121(b)(1), (3). It may also control, abate, or change any shortage or harmful excess of water. Id § 51.121(b)(5). The District is authorized to acquire easements considered necessary, incident, or helpful to accomplish its purpose. Id. § 51.121(c). The District is a political subdivision of the State generally entitled to sovereign immunity, although it is subject to the strictures of article I, section 17, of the Texas Constitution, the so-called “takings” clause.

In 1987, the District completed construction of the 1.2 million acre-foot Richland-Chambers Reservoir, which it built to supply water to Tarrant County and surrounding areas. The 44,000-acre reservoir impounds the waters of Richland and Chambers Creeks, two tributaries of the Trinity River. The creeks’ watersheds comprise about sixty percent of an eighty-mile stretch of the Trinity’s watershed between the Trinidad Gauge, located near Trinidad Lake (between Corsicana and Athens), and the Oakwood Gauge (southwest of Palestine). The dam that holds the creeks’ waters back is located about a mile from the Trinity River. A narrow, steeply banked, straight discharge channel connects the dam and the river and blocks a large portion of the Trinity’s flood plain. The reservoir was not constructed to control floods but to supply water. Consistent with its intended function, the District keeps the reservoir as full as possible at a level only two feet below the overflow point.

In March 1990, extremely heavy rains caused extensive flooding throughout the Trinity Basin, and the District released water through the reservoir’s floodgates for the first time. For the first time in its history, the Gragg Ranch suffered extensive flood damage. That flooding breached levee roads in several places, and gouged large sections of land out of the Ranch’s bottomlands. O.L. Gragg and the Schwertner-Priest Partnership and its partners sued the District, alleging that its construction and operation of the reservoir had inversely condemned their property in violation of Article I, Section 17, of the Texas Constitution. The District denied liability, but asserted a counterclaim asking the trial court to award it fee simple title, or alternatively, a permanent and perpetual flowage easement over any property the court might find it had inversely condemned.

The case was tried in 1998, by which time the Ranch had experienced a large number of floods similar in severity to the one in 1990 that prompted this suit. After a fifteen-day trial, the court held that the District had inversely condemned a flood easement on the Ranch, and submitted the case to the jury to determine just compensation. The jury found the difference between the market value of Gragg’s fee simple interest immediately before and immediately after condemnation to be $10,214,122, and the before-and-after value of the Schwertner-Priest Partnership’s leasehold estate to be $4,268,547. The trial court rendered judgment on that verdict and also awarded the District a permanent and perpetual flowage easement over the property. The court made numerous findings of fact and conclusions of law supporting its inverse condemnation holding. The court of appeals affirmed the trial court’s judgment. 43 S.W.3d 609. We granted review to determine whether the District’s construction and operation of the reservoir resulted in a taking of the Gragg property, and other related issues.

II. Inverse Condemnation

The District argues that Gragg failed to establish a taking for two reasons. First, it claims that Gragg failed to adduce any competent or reliable evidence that the reservoir’s construction and operation caused the flood damage that the Ranch experienced. Second, if Gragg established causation, the District claims that its actions were merely negligent and do not, as a matter of law, constitute a taking. See City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex.1997). We address each of these contentions in turn.

A. Causation

The District begins its attack on the causation evidence by challenging the reliability of Gragg’s experts’ opinions, specifically those of hydrologists Dwayne Stubblefield and Gary Pettit. The District contends that Gragg failed to show that the X-FOR computer model upon which these experts relied meets the standard for reliability we established in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 726-28 (Tex.1997), E.I. duPont de Nemours & Co., Inc. v. Robinson, 928 S.W.2d 549, 557-58 (Tex.1995), and related authorities. Gragg responds that (1) the District failed to properly preserve its objections, (2) the X-FOR model was merely cumulative of other evidence that was admitted without objection, (3) the X-FOR model was not central to Stubble-field’s and Pettit’s opinions on causation, which were based primarily on other evidence that has not been challenged as unreliable, (4) the X-FOR model was nonetheless shown to be rehable, and (5) causation was established by the District’s own records and witnesses irrespective of Stubblefield’s and Pettit’s testimony. We begin with the latter point because, if there is causation evidence from other sources that supports the trial court’s findings, the District’s reliability challenge is immaterial.

It is undisputed that before the reservoir’s construction, the Trinity River had regularly flooded the Ranch’s bottomlands. Gragg presented evidence, though, that the flooding that had occurred before the reservoir was built was not significantly destructive and was, in fact, a major factor in the cattle-ranching operation’s success. After the reservoir was constructed and operations began, Gragg claims, the nature of the flooding significantly changed and the Ranch suffered extensive damage that it had never before experienced. A number of the trial court’s fact findings describe the nature of that change:

1. ... the flooding on the Gragg Ranch has been far worse than would have occurred under natural conditions, and the flooding will continue to be far worse in the future.
2. ... the flood waters from the lake have arrived at the Gragg Ranch quicker and with less warning than would have occurred under natural conditions, and will continue to do so.
3. ... the flood waters from the lake have arrived at the Gragg Ranch with more force and velocity than would have occurred under natural conditions, and will continue to do so.
4. ... the floods have been deeper on the Gragg Ranch than would have occurred under natural conditions, and the deeper floods will continue.
5. ... the Gragg Ranch has been flooded for longer periods of time than would have occurred under natural conditions, and the longer floods will continue to be so.

The trial court found each of these exacerbated flood characteristics to be “[a]s a direct result of the construction and operation of the Richland-Chambers Reservoir.”

Gragg claims these post-reservoir flood effects made it economically infeasible to continue using the Ranch as a high-intensity cattle-ranching operation. Quicker inundation with shorter warning time and the destruction of levee roads made it impossible to safely evacuate herds from the bottomlands in floods. And the deeper and longer-lasting floods killed crops growing in the bottomlands that would normally have survived, reducing the land’s productivity. The District takes no issue with Gragg’s claim that the Ranch experienced these destructive flood effects; rather, the District contends there was no evidence to support the trial court’s findings that the reservoir’s construction and operation, as opposed to heavy rains, caused them.

In determining whether a finding is supported by legally sufficient evidence, we consider the evidence in the most favorable light, and indulge every inference in its favor. Formosa Plastics Corp. USA v. Presidio Eng’rs. & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). If the record contains more than a scintilla of evidence that supports the finding, we must sustain it. BMC Software Belgium, N.V. v. Marchand, 88 S.W.3d 789, 795 (Tex.2002) (citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992)). “More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (quoting Transp. Ins. Co. v. Monel, 879 S.W.2d 10, 25 (Tex.1994)). Whether particular facts are sufficient to establish a taking presents a question of law that we review de novo, but we rely on the factfinder to resolve disputed facts underlying that determination. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex.1998).

Gragg produced evidence that the District released volumes of water through its flood gates that greatly exceeded what natural flows would have been in a manner that would impact the Gragg Ranch. It is undisputed that the Ranch begins to flood when the Trinity River’s flow reaches 13,-000 cubic feet per second (cfs). The dam’s operator, Ronnie Byers, acknowledged that on at least one occasion the District released more than 23,000 cfs in excess of what natural peak flows would have been from Richland and Chambers Creeks. The District’s gate release records show numerous additional releases in excess of natural conditions. In fact, the District’s records show hundreds of releases in an amount sufficient to cause flooding at the Gragg Ranch even if there were no other water in the Trinity River. John Rutledge, one of the District’s hydrological experts, acknowledged that the modeling his firm performed showed higher flooding than would have occurred under natural conditions at the Ranch in ten out of sixteen floods. And a 1991 internal District memorandum suggests that the District had recognized that changes in its gate-release procedures might be warranted to minimize flooding in the river and to “determine when our policies can be modified to permit higher releases earlier to avoid adding to flood levels in the Trinity.” The record contains more than a scintilla of evidence to support the trial court’s finding that the reservoir’s construction and operation intensified flooding at the Ranch.

There is also evidence to support the trial court’s findings that the reservoir caused quicker and more forceful flooding at the Ranch. There is evidence, for example, that the reservoir’s configuration creates a kind of bathtub effect in the river’s watershed so that rain falling at a point near the reservoir’s headwaters causes flooding at the dam site more quickly than it would if the creeks’ waters were not confined by the dam. The resulting force of the District’s releases causes flood waters to rise more rapidly and with less warning. The District contends that the reservoir’s stilling basin minimizes the force of these releases by significantly reducing the speed at which the water moves. But Rutledge acknowledged that water released from the reservoir’s floodgates moving at a high rate of speed into the stilling basin would cause a translatory wave, similar to a surge. While the water released through the gates might not itself reach the Ranch at the same speed it is released, Rutledge acknowledged that its impact would be transmitted almost instantaneously to the Trinity when the Trinity is out of its banks. Other District witnesses testified that the District attempts to release only when the Trinity is out of its banks. And another District witness confirmed that the characteristics of releases at the dam correlated with impacts at the Gragg Ranch. The District also maintains that water-release surges would be dissipated by a heavily wooded wildlife refuge adjacent to the reservoir and argues that, if the surge effects were as severe as Gragg claims, the refuge would have incurred greater damage than the Gragg Ranch. But this ignores evidence that the discharge channel directs gate releases almost directly into the river and evidence that the high banks of the discharge channel and spoils piles around it would have minimized any impact on the wooded area nearby.

Finally, several eyewitnesses testified that flood waters at the Ranch moved much more swiftly when the floodgates at the reservoir were open. More than one witness testified that water flowing from the discharge channel into the Trinity entered the river with such velocity that the flow of some of the river’s waters was reversed. Eugene Schwertner testified, for example, that he had flown over the area during several flood events. When the dam’s floodgates were open, he said, the water “was coming out so fast it had to go somewhere, so it was going backwards.” But when he returned the next day and only one or two gates were open, “the water would slow down, it wasn’t swift. Then, when they closed the gates, it was just like overnight; there wouldn’t be the fast movement. So you could see — I could see with my own eyes the gates opening and closing and what was happening.” Although the eyewitness evidence did not purport to, nor could it, explain how the reservoir’s construction caused what happened at the Ranch, it did verify water-flow characteristics that occurred when the floodgates were opened.

The District complains that Gragg failed to rule out the extremely heavy rainfalls of the early 1990s as the cause of damage to the Ranch. Undoubtedly, the Ranch would not have flooded without excessive rain. And damage to the Ranch caused by extremely heavy rain, even if reservoir releases contributed to the volume, could not in itself support a taking. Rather, the issue is significantly changed flooding characteristics that occurred despite similar circumstances so that it can be inferred that the reservoir was to blame. Here, the District’s own modeling showed that the number and duration of floods at the Ranch in the 1990s, after the reservoir’s construction, were higher than in the 1940s, a period of comparable rainfalls. Similarly, Troy Lovell, another of the District’s expert witnesses, also testified that flood-gauge data showed flooding in the Gragg Ranch’s vicinity in 1993 and 1995 lasting twice as long as floods in 1952, 1959, 1962, and 1965 that occurred in periods of similar rainfall. Although the District’s experts attributed the increase in flooding during the 1990s, as opposed to the 1940s, to the construction of various flood-control projects in the interim, those projects were in place before 1959.

It was not enough, of course, for Gragg to trace the damaging floods back to releases from the dam. Gragg was required to prove that the same damaging floods would not have occurred under the same heavy rainfall conditions had the dam not been constructed. Whether the reservoir’s construction and operation caused the exacerbated flood effects that the Ranch experienced was a sharply disputed fact issue. We must therefore defer to the trial court’s resolution of that issue as long as there is evidence to support it. Although we express no opinion on whether Gragg’s causation evidence “was far beyond a preponderance of the evidence ... almost to the level of ‘beyond a reasonable doubt,’ ” as the trial court concluded, the record does contain legally sufficient evidence to support the trial court’s causation findings. We next consider whether those findings support the legal conclusion that a constitutional taking occurred.

B. Legal Standard

Article I, Section 17, of the Texas Constitution provides:

No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.

Tex. Const. art. I, § 17. At the heart of the takings clause lies the premise that the government should not “forc[e] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Steele v. City of Houston, 603 S.W.2d 786, 789 (Tex.1980) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960); Y.M.CA. v. United States, 395 U.S. 85, 89, 89 S.Ct. 1511, 23 L.Ed.2d 117 (1969)). A taking under this provision may be physical or regulatory. Mayhew, 964 S.W.2d at 933. A physical taking may occur when the government physically appropriates or invades private property, or unreasonably interferes with the landowner’s right to use and enjoy it. Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex.1992). When the government takes private property without first paying for it, the owner may recover damages for inverse condemnation. Id. But mere negligence that eventually contributes to property damage does not amount to a taking. Likes, 962 S.W.2d at 505.

The District claims that, to the extent the evidence supports the trial court’s conclusion that the reservoir’s construction and operation caused the harm that the Gragg Ranch experienced, it was attributable to mere negligence on the District’s part and not to intentional conduct, which the constitutional taking standard requires. Over the years, we have articulated the standard for a compensable physical taking in various ways. The cases reflect our efforts to account for several concerns in drawing the line between mere negligence and an unconstitutional taking. See, e.g., City of Houston v. Renault, Inc., 431 S.W.2d 322, 324-25 (Tex.1968). For one, we strive to avoid what would be an anomalous result if the State, an entity otherwise generally entitled to immunity for negligence, were subject to liability for something less than intentional behavior. More importantly, though, we seek to ensure that the public does not bear the burden of paying for property damage for which it received no benefit. See, e.g., Tex. Highway Dep’t v. Weber, 147 Tex. 628, 219 S.W.2d 70, 71-72 (1949). As we have noted, our Constitution provides for compensation only if property is damaged or appropriated “ ‘for or applied to public use.’ ” Steele, 603 S.W.2d at 792 (citing Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 702-709 (1959)). “That is the factor which distinguishes a negligence action from one under the constitution for destruction.” Id. Accordingly, we have sought objective indicia of intent in particular contexts to determine whether property has been taken or damaged in furtherance of the public interest.

In City of Dallas v. Jennings, 142 S.W.3d 310, 314(Tex.2004), which we also decide today, we hold that the requisite intent is present when a governmental entity knows that a specific act is causing identifiable harm or knows that the harm is substantially certain to result. In the case of flood-water impacts, recurrence is a probative factor in determining the extent of the taking and whether it is necessarily incident to authorized government activity, and therefore substantially certain to occur. See Brazos River Auth. v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 107 (1961). While nonrecurrent flooding may cause damage, a single flood event does not generally rise to the level of a taking. See id. at 108. The recurrence requirement assures that the government is not held liable for taking property when a project’s adverse impacts, and by implication its benefit to the public, are too temporal or speculative to warrant compensation. See id. This is similar to the standard the federal courts have applied in determining whether the government’s actions have taken property affected by flooding, see, e.g., Turner v. United States, 901 F.2d 1093, 1095 (Fed.Cir.1990); Hendricks v. United States, 14 Cl.Ct. 143, 148 (Cl.Ct.1987); Anchor Estates, Inc. v. United States, 9 Cl.Ct. 618, 620-21 (Cl.Ct.1986); Singleton v. United States, 6 Cl.Ct. 156, 162-63 (Cl.Ct.1984), and it is the standard we apply in the present case.

The District claims the record establishes no more than mere negligence because if the reservoir is operated as intended, it would not add more water downstream than would naturally pass through the reservoir. Consequently, the District argues, “[o]nly if the District were negligent in operating the reservoir would it add more water than would have passed downstream naturally.” This argument, though, misapprehends the nature of Gragg’s complaint and the basis for the trial court’s judgment. All parties agree that the Ranch was subject to flooding before the Reservoir’s construction. But the trial court found that the property was rendered useless for its intended purpose because the reservoir’s construction and operation changed the character of that flooding — the water “arriv[ed] sooner, flowfed] faster, and [was] more forceful, deeper, and longer-lasting.” Although gate-release operations contributed to these effects, there was evidence that the reservoir’s physical characteristics, which we have described, were also significant and inevitably altered the characteristics of floods at the Ranch. While Gragg did introduce evidence of the District’s careless operations, that evidence was aimed largely at undermining the credibility of the District’s efforts to model the reservoir’s flood impacts at particular points on the property. And although there was evidence that the District’s gate-release procedures might mimic natural conditions over time, Gragg introduced evidence showing that the District’s releases actually resulted in unnatural surges of water.

We hold that the evidence in this case supports the trial court’s findings that the extensive damage the Gragg Ranch experienced was the inevitable result of the reservoir’s construction and of its operation as intended. In reaching that decision, we acknowledge the concerns raised by several amici curiae who contend that holding the District accountable in these circumstances will have significant repercussions on water suppliers in the state. We note, however, that there was evidence that the design of the Richland-Chambers Reservoir is somewhat unique in a number of respects, including its comparatively limited excess storage capacity of about eight percent. According to various amici (Canadian River Municipal Water Authority, Lower Colorado River Authority, Lavaca-Navidad River Authority), water-supply reservoirs normally have excess capacity ranging from twenty-five to one hundred percent. Moreover, as we noted more than forty years ago,

[governmental agencies and authorities are necessities. They are capable of rendering great and beneficent public services. But any appeal to the tradition of our laws which omits a decent regard for private property rights is both inaccurate and distorted. It is because of this regard that our governmental agencies and authorities in acquiring properties for their public purposes are generally required to proceed under the power of eminent domain rather than under the police power. Such a policy has not resulted in a destruction of flood control and improvement agencies in the past and there is no reason to apprehend that the continuation of such policy will prove overly costly or inimical to the American way of life in the future.

Brazos River Auth., 354 S.W.2d at 105.

III. Bifurcation

The District argues that the trial court abused its discretion by declining to bifurcate the proceedings. According to the District, the trial court should have first conducted a bench trial on the takings issue, and then held a separate trial, if necessary, to allow a jury to assess reasonable compensation.

Texas Rule of Civil Procedure 174(b) allows a trial court to order a separate trial on any issue in the interest of convenience or to avoid prejudice. We review a trial court’s ruling on a motion for separate trial for an abuse of discretion. See Allison v. Ark. La. Gas Co., 624 S.W.2d 566, 568 (Tex.1981) (per curiam). The District complains that it was prejudiced in a number of respects by the trial court’s refusal to order separate trials. First, the District asserts that the failure to bifurcate left it confused about several issues, including “whether the court would find the District responsible at all,” whether the court would find a temporary or permanent taking which would in turn call for different damage measures, whether a fee or an easement was taken, and how much of the Ranch was affected. The District argues that the trial court’s failure to order separate trials was inherently unfair because it forced the District to present proof of damages while simultaneously contesting liability. We disagree.

In nearly every case a defendant must proceed with some amount of uncertainty of the type the District describes. Defendants typically proceed generally without knowing whether they will be found liable or on what, if any, theory. And it is not at all unusual for a plaintiff to present more than one damage measure during trial. For example, a plaintiff may allege breach of contract and quantum meruit, causes of action with different elements of proof and different damage measures. See, e.g., Murray v. Crest Constr., Inc., 900 S.W.2d 342 (Tex.1995)(per curiam). The District has articulated no reason why admitting damage evidence before liability is determined is any more prejudicial in the condemnation context than in any other.

On the other hand, the record supports the trial court’s findings that separate trials would have resulted in considerable and unnecessary evidentiary repetition. For example, the damage questions that were submitted instructed jurors “to consider only the differences in value caused by the construction and operation of Rich-land-Chamber Reservoir.” Whether and to what extent the Ranch was damaged by the reservoir’s construction and operation were also issues central to the trial court’s taking determination. Accordingly, it is likely that many, if not most, of the same witnesses would have been called to testify in both the liability and compensation trials had the trial court bifurcated the proceedings. As the trial court found, “[t]here were several weeks of common questions of law and of fact involved in the matters that would have been considered in the first phase and the second phase of a bifurcated trial.” And, as the court of appeals noted, this case had been pending in the trial court for almost seven years and had been through extensive discovery and numerous pre-trial proceedings by the time it was tried. Under these circumstances, we cannot say that the trial court abused its discretion in refusing to bifurcate the proceedings.

The District claims, though, that we mandated bifurcation in State v. Wood Oil Distributing, Inc., 751 S.W.2d 863, 865 (Tex.1988), and State v. Heal, 917 S.W.2d 6, 9 (Tex.1996). But those cases do not

establish such a bright-line rule. In Wood Oil, we considered a condemnee’s claim that the trial court erred in excluding evidence of impaired access to its property. We noted that “whether there has been a [compensable] material and substantial impairment of access or whether there exists merely the [non-compensable] issue of circuity of travel is a question of law, not of fact.” Wood Oil, 751 S.W.2d at 865. Stating that it was incumbent upon the trial court to make this determination before trial so that evidence could be admitted accordingly, we concluded that evidence concerning inconvenience damages resulting from circuity of travel was improperly admitted because it was an element that was non-compensable as a matter of law. Id. In Heal, we considered whether a landowner had established a right to compensation for impaired access, or whether the landowner had presented evidence akin to circuity. 917 S.W.2d at 9-11. Relying on Wood Oil, we concluded that the landowner had not established a material and substantial impairment. Id. at 9. Although it is often preferable or even necessary to bifurcate the trial of an inverse condemnation case so that takings issues are tried to the bench before damage issues are submitted to the jury, our statements in neither Wood Oil nor Heal support the District’s argument that separate trials must be conducted on taking and compensation issues in every case. Accordingly, the trial court did not abuse its discretion in denying the District’s bifurcation motion.

IV. Damages Issues

The District raises several issues regarding the damages the trial court awarded. The District contends that (1) the trial court erroneously submitted the case to the jury as a permanent taking and instructed the jury improperly about the easement the District was awarded, (2) Gragg presented no evidence of the Ranch’s value with and without the easement or of the bottomlands’ before-and-after value, and (3) Gragg adduced no evidence upon which the jury could apportion damages between those caused by the reservoir and those attributable to other causes. We address each of these arguments in turn.

A. Permanent v. Temporary Taking

The District argues that Gragg sustained only temporary injuries because the Ranch has not been “constantly and continuously flooded or injured by the reservoir.” According to the District, the proper measure of damages for a temporary taking would have been the cost of repair, and Gragg submitted no evidence of that cost. Thus, the District contends, the trial court erred in instructing the jury that the District had permanently taken a flood easement and in awarding damages based upon a permanent taking.

In Brazos River Authority, we considered the difference between a taking by flooding and temporary damage. 354 S.W.2d at 104-09. There, the Brazos River Authority’s construction of a dam caused siltation in the Brazos River that eventually caused flooding in a sewage-disposal plant and a water-treatment plant that the City of Graham owned. Because the evidence established that the dam’s construction would subject the sewage-disposal plant to repeated flooding that rendered its operations impossible, we held that the river authority had taken the property. Id. at 106. We upheld a compensation award based upon the difference in the plant’s value before and after the dam’s construction and operation. Id. at 101, 111. In contrast, the water-treatment plant had flooded only once, although it was possible that it would flood more in the future as siltation increased. Id. at 108. We thus concluded that the City was not entitled to the plant’s diminished value, but only to damages for injuries that resulted from the specific flood. Id. at 108, 111.

In this case, Gragg presented evidence of numerous instances in which the reservoir’s construction and operation resulted in significant, damaging changes in flooding characteristics. By the time this case was tried, the Ranch had been subject to damaging flooding on at least ten separate occasions. The trial court found that the reservoir’s construction and operation would “inevitably” cause these exacerbated flood characteristics, and that the damage caused was ongoing and would continue in the future. The record supports the trial court’s determination that the reservoir’s construction and operation caused a permanent taking. Accordingly, the trial court did not err in awarding permanent-taking compensation or in instructing the jury that the District was entitled to a permanent right to flood or overflow the Ranch’s bottomlands.

B. Before-and-After Property Value

The District further contends that the jury’s compensation award cannot stand because Gragg introduced no evidence of the property’s value with and without the flood easement. But Gragg presented the testimony of two appraisers regarding the property’s value both before and after it experienced the damage that the trial court found the reservoir’s construction and operation caused. While the appraisers did not use the word “easement,” the District inversely condemned the easement by causing that very damage. That the appraisers did not use the term “easement” does not mean that no evidence supports the compensation the jury awarded.

C. Apportionment

The District argues that no evidence was presented that would allow a jury to apportion damages between the bottomlands and the remainder of the property. In essence, the District argues that because the trial court awarded it an inundation easement across the Ranch’s bottomlands, the property was effectively severed and the trial court should have awarded damages based upon the value of the severed portion (the bottomlands) and the after-severance value of the remaining property. But the District did not raise this objection in the trial court. In fact, the District told the court that the jury should be asked, “What do you find was the difference in market value, if any, of the entire fee simple interest in the ranch (the Gragg lease fee and the Schwertner-Priest leasehold estate) immediately before and after March 7, 1990 (the date of the condemnation)?” Accordingly, it cannot now complain that the jury was not asked to apportion damages. Finally, the District argues that the damages should have been apportioned between those that its operations caused and those caused by the unusually heavy rainfalls that occurred in the spring of 1990. As we have noted, however, there is more than a scintilla of evidence to support the trial court’s conclusion that the exacerbated flood effects that damaged the Gragg Ranch were caused by the reservoir’s construction and operation. And in awarding compensation, the jury was instructed to consider only the difference in the property’s value that the reservoir’s construction and operation caused. Accordingly, the trial court’s judgment is not reversible on this basis.

V. Conclusion

We hold that the evidence is legally sufficient to support the trial court’s determination that the construction and operation of the Richland-Chambers Reservoir necessarily caused recurrent destructive changes in flood characteristics at the Gragg Ranch that rendered the property unusable for its intended purpose and resulted in a taking. ' We further hold that the trial court did not abuse its discretion in refusing to bifurcate the condemnation and compensation proceedings and committed no reversible error in submitting the case to the jury as it did. Accordingly, we affirm the court of appeals’ judgment.

Justice SMITH did not participate in the decision.

      . Rivers generally, and the Trinity at this point in particular, meander; thus, the distance as the crow flies is considerably shorter.

      . During the more than seven years the suit remained pending in the trial court, O.L. Gragg and one of the Schwertner/Priest partners died. Their estates and successors in interest were substituted as parties. We will refer to the plaintiff parties collectively as "Gragg.”

      . The cities of Houston and Dallas, the Texas Water Conservation Association, the Brazos River Authority, the Canadian River Municipal Water Authority, the Lavaca-Navidad River Authority, the San Jacinto River Authority, the Sabine River Authority, the Lower Colorado River Authority, and the Trinity River Authority, have submitted amicus briefs supporting the District. The Trans Texas Heritage Association, the Texas Farm Bureau, and the Texas Cattle Feeders Association, have filed briefs supporting Gragg's position.


author: DAVID GAULTNEY, Justice. DON BURGESS, Justice,

text:
    ASSOCIATES HOME EQUITY SERVICES COMPANY, INC., f/k/a Ford Consumer Finance Company, Inc. n/k/a Citifinancial Mortgage Company, Inc., Appellant, v. Mark D. HUNT and Kelly C. Hunt, Appellees.
    No. 09-03-515 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted on May 27, 2004.
    Delivered Nov. 4, 2004.

      Michael J. Burns, Law Offices of Richard Jaramillo & Associates, Dallas, for appellant.
    Tina Snelling, Sheiness, Scott, Grossman & Cohn, Houston, for appellees.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

DAVID GAULTNEY, Justice.

Mark D. Hunt and Kelly C. Hunt signed a promissory note, secured by a deed of trust, payable to Associates Home Equity Services Company, Inc. The Hunts claim Associates’ lien was subsequently extinguished by a tax sale, though the Hunts redeemed the property from the purchaser at the tax sale. Both the Hunts and Associates filed motions for summary judgment. The trial court granted summary judgment in favor of the Hunts. We conclude Associates’ deed of trust encumbers the property.

The Facts

Summary judgment is proper when the movant establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). The parties stipulated to the applicable facts. The Hunts purchased real property in Montgomery County in 1996. To finance the purchase, the Hunts executed a promissory note, payable to Associates (f/k/a Ford Consumer Finance, n/k/a Citifinancial Mortgage Company, Inc.), in the amount of $155,093.25. The debt was secured by a deed of trust. The Hunts used the property as their homestead. The Hunts failed to pay property taxes. In 1998, Tomball Independent School District obtained a judgment against the Hunts for the delinquent property taxes. Associates was joined as a defendant, but did not pay the taxes. The property was sold at a tax sale to satisfy the school district’s tax lien.

A third party, Bobby Granger, purchased the property at the tax sale. The Hunts redeemed the property from Gran-ger pursuant to section 34.21(c) of the Texas Tax Code. See Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 33, sec. 34.21, 1999 Tex. Gen. Laws 5109 (current version at Tex. Tax Code Ann. § 34.21(c) (Vernon Supp.2004)). Associates then posted the property for a foreclosure sale pursuant to the terms of the deed of trust. The trial court enjoined Associates from foreclosing on the property.

In their motion for summary judgment, the Hunts argued Tomball’s tax lien was superior to Associates’ mortgage hen, and the tax foreclosure sale extinguished Associates’ hen. In its motion for summary judgment, Associates argued its hen should be “reinstated.” The trial court’s summary judgment declared Associates’ hen was “extinguished, discharged, and void” and the Hunts “shall hold such real property, fixtures and improvements, in fee, free from hen by [Associates] or any successor or assign of [Associates].” Associates filed this appeal.

Redemption

The redemption privilege was made available to delinquent taxpayers with the adoption of Article 8, § 13 of the Texas Constitution in 1876. See Tex Const, art. 8, § 13 interp. commentary (Vernon 1993). 22 David B. BROoks, Texas Practice: Municipal Law and Practice § 9.18 (2d ed.1999). The right of redemption is also set forth in chapter 34, subchapter B of the Tax Code. Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 33, sec. 34.21(c), 1999 Tex. Gen. Laws 5109 (current version at Tex. Tax Code Ann. § 34.21(c) (Vernon Supp.2004)). The applicable version of § 34.21(c) provides:

If real property that was used as the owner’s residence homestead ... when the suit or the apphcation for the warrant was filed has been resold by the taxing unit under Section 34.05, the owner of the property having a right of redemption may redeem the property on or before the second anniversary of the date on which the taxing unit files for record the deed from the sheriff or constable by paying the person who purchased the property from the taxing unit the amount the purchaser paid for the property, the amount of the fee for filing the purchaser’s deed for record, the amount paid by the purchaser as taxes, penalties, interest, and costs on the property, plus a redemption premium of 25 percent of the aggregate total if the property is redeemed in the first year of the redemption period or 50 percent of the aggregate total if the property is redeemed in the second year of the redemption period.

Id. “The right of redemption does not grant or reserve in the former owner of the real property the right to the use or possession of the property, or to receive rents, income, or other benefits from the property while the right of redemption exists.” Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 33, sec. 34.21(h), 1999 Tex. Gen. Laws 5111 (current version at Tex. Tax.Code Ann. § 34.21(h) (Vernon Supp.2004)).

A purchaser at a tax sale receives a conditional estate, which is subject to defeat upon “compliance with the redemption laws by those entitled to redeem.” See Reynolds v. Batchelor, 216 S.W.2d 663, 666 (Tex.Civ.App.-Fort Worth 1948, writ ref'd n.r.e.); see also O’Hanlon v. Morrison, 187 S.W. 692, 696 (Tex.Civ.App.-Amarillo 1916, no writ); see Act of May 27, 1995, 74th Leg., R.S., ch. 1017, § 1, sec. 33.95, 1995 Tex. Gen. Laws 5086 (amended 1997) (current version at Tex. Tax Code Ann. § 33.95 (Vernon 2001)). Redemption does not give new title. See Bente v. Sullivan, 52 Tex.Civ.App. 454, 462, 115 S.W. 350, 353 (1908, writ ref'd). In Reynolds v. Batchelor, the court said that one under an obligation to pay property taxes who “undertakes to purchase the tax title will be estopped to claim that he did anything other than redeem the property from the tax sale.” Reynolds, 216 S.W.2d at 667. The court stated as a general principle an owner who does not pay taxes should not be allowed to strengthen his title at a tax sale. Id. The court’s underlying assumption- appears to have been that an owner who redeems his property does not strengthen his title against other owners or lienholders. See id.

The Hunts did not purchase the property at the tax sale. Rather, they are the former owners who exercised their right of redemption within the time permitted by statute. Their prior title to the property was restored by the exercise of their right of redemption as “the owner of the property” under § 34.21(c) of the Texas Tax Code.

The Hunts rely on cases holding foreclosure of a senior lien extinguishes junior liens, but we do not read the cases as determinative of the effect of redemption. Both Diversified Mortgage Investors v. Lloyd D. Blaylock General Contractor, Inc., 576 S.W.2d 794, 806 (Tex.1978) and National Western Life Ins. Co. v. Acreman, 425 S.W.2d 815, 816 (Tex.1968) addressed whether a mechanic’s lien or a prior-recorded deed of trust took priority. Redemption was not at issue in either case. Likewise, National Loan Investors, L.P. v. Spring Independent School Dist., No. 01-94-00659-CV, 1995 WL 489441 (Tex.App.-Houston [1st Dist.] 1995, no pet.) (not designated for publication) did not involve redemption.

Generally, a deed of trust is a mortgage with a power to sell on default. See Starcrest Trust v. Berry, 926 S.W.2d 343, 351 (Tex.App.-Austin 1996, no writ). The Hunts admit the debt still exists, but they argue it is now unsecured. But redemption merely relieves the property of the tax sale. When the Hunts redeemed the property, they restored the title to what it was before the tax sale, except the tax lien has been discharged. They did not discharge their agreement with Associates reflected in the deed of trust. The Hunts’ ownership of the property was subject to Associates’ deed of trust. That ownership is what they redeemed. The deed of trust is a valid lien on the property after the Hunts’ redemption. Associates’ issue is sustained.

REVERSED AND REMANDED.

DON BURGESS, Justice,

dissenting.

I respectfully dissent. Wfliat the majority has done is judicially create an exception to the long standing rule that the foreclosure of a superior lien extinguishes all inferior liens claiming the rule should not apply in the redemption arena. Wfliile not exactly on point, a case where redemption was a factor, but not the issue, Murphee Property Holdings, Ltd. v. Sunbelt Savings Ass’n of Texas, 817 S.W.2d 850, 851 (Tex.App.-Houston [1st Dist.] 1991) in its factual set-up acknowledged the long standing rule:

On October 21, 1986, Mission Bend Municipal Utility District No. 1 (“the District”) filed the tax suit against Highway 6 Venture to collect taxes assessed against the 61 acres of land during 1985, and to obtain the judicial foreclosure of the District’s tax hen.
Sunbelt, the record hen holder on the property, was not made a party to the tax suit. By certified mail from the District’s attorney, Sunbelt received written notice on November 3, 1986, of the tax suit and the fact that its hen interest in the property was subject to cancellation by virtue of the District’s tax hen.
Although Highway 6 Venture was served with citation, it failed to appear in the tax suit. On December 19, 1986, the District was granted a default judgment against Highway 6 Venture for $105,445.88, and for the judicial foreclosure and sale of the property. On December 26, 1986, Sunbelt received written notice, again by certified mail from the District’s attorney, that judgment in the tax suit had been entered, and that Sunbelt’s interest in the property could be lost if it did not take immediate action.

In this case, Associates was joined as a defendant and filed a general denial. Both as a party and under the deed of trust, Associates could have paid the taxes and sought reimbursement from the Hunts through its own foreclosure if necessary. Associates could have also protected its lien by bidding at the foreclosure sale. For whatever reason, Associates chose not to act until after the redemption by the Hunts and now have convinced the majority to create this exception to a long standing rule that has served both consumers and the lending industry well.

There is no reason to lengthen this dissent by describing the mischief that might be created between third party purchasers at tax sales and potential redemptors towards lien holders to avoid the “foreclosures at tax sales do not extinguish liens” rule established by the majority or even the mischief that might be created between lien holders and potential redemp-tors towards third-party purchasers. Suffice to say, these potentials exist and they would not were this court to stay the course and not create this new exception. I would affirm the judgment of the trial court.

      . The Tax Code provides in part as follows: “A purchaser for value at or subsequent to the tax sale may conclusively presume the validity of the sale and takes free of any claim of a party with a prior interest in the property subject to the provisions of Section 16.002(b), Civil Practice and Remedies Code, and subject to applicable rights of redemption.” Act of May 24, 1995, 74th Leg., R.S., ch. 1017, § 1, sec. 33.95, 1995 Tex. Gen. Laws 5086 (current version at Tex. Tax Code Ann. § 33.95 (Vernon 2001)). See also Tex. Tax Code Ann. § 33.50(c) (Vernon 2001).

      . Unpublished cases have no precedential value. See TexR.App. P. 47.7.

      .Apparently, the deed of trust in the record is missing a page.

      . It is undisputed the tax lien was superior to Associates’ lien. Priority of Tax Liens Over Other Property' Interests. See Tex Tax Code Ann. § 32.05 (Vernon 2002).

      . Diversified Mortg. Investors v. Lloyd D. Blay-lock Gen. Contractor, Inc., 576 S.W.2d 794, 806 (Tex.l978)(op. on reh’g); Irving Lumber Co. v. Alltex Mortg. Co., 468 S.W.2d 341, 343-44 (Tex. 1971).

      . As a part of the factual "set-up” this is clearly dicta, but it shows how the industry and the courts viewed the rule.

      . An unbroken line of decisions by Texas Courts, dealing with a variety of statutes, has uniformly held that a lien holder must be joined as a party in a suit to enforce a tax lien, and that any judgment rendered absent the joinder of such a lien holder is defective in that it does not dispose of the rights of all of the parties interested in the property. Coakley v. Reising, 436 S.W.2d 315, 318 (Tex.1968), appeal after remand sub nom., Coakley v. Crow, 457 S.W.2d 431, 433 (Tex.Civ.App.-Corpus Christi 1970, writ ref'd n.r.e.), cert. denied, Coakley v. Reising, 402 U.S. 906, 91 S.Ct. 1376, 28 L.Ed.2d 646 (1971); Murphee, 817 S.W.2d at 851; Norris v. Harry Hott & Assocs., Inc., 612 S.W.2d 630, 632 (Tex.Civ.App.-Dallas 1981, no writ); Sanchez v. Hillyer-Deutsch-Jarratt Co., 27 S.W.2d 634, 635 (Tex.Civ.App.-San Antonio 1930, writ ref'd); State Mortgage Corp. v. Groos, 12 S.W.2d 260, 262 (Tex.Civ.App.-San Antonio 1928, writ dism’d w.o.j.); Ballv. Carroll, 42 Tex.Civ.App. 323, 92 S.W. 1023, 1026 (Galveston 1906, writ ref'd).

      . The judgment reflects there was $8,316.84 of taxes and attorneys' fees owing against the home with a fair market value of $111,160.

      . Throughout my private practice, I perhaps mal-practiced the few lender clients I was fortunate to represent when I advised them to "bid-in” their liens at tax sales or forever lose them.