author: Chief Justice MORRISS.

text:
    Anna P. CISNEROS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00057-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 7, 2004.
    Decided May 25, 2005.

      Kenneth Mark Deubner, Addison, for appellant.
    A1 Davis, Asst. Dist. Atty., Joe Black, Dist. Atty., Marshall, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

After Trooper Lloyd McKinney stopped Anna P. Cisneros for speeding along Interstate Highway 20 in Harrison County, he asked Cisneros for consent to search her vehicle, and she refused. After McKinney misrepresented to Cisneros that he did not need a warrant to search a car, she first told him there was nothing in the car and then told him to “go ahead.” McKinney’s warrantless search uncovered less than two ounces of marihuana, and Cisneros was charged with its possession. See Tex. Health & Safety Code Ann. § 481.121 (Vernon 2003). The trial court overruled her motion to suppress the evidence.

On appeal, in response to Cisne-ros’ contention that the trial court erred by overruling her motion to suppress, the State expressly limits its argument to the sole assertion that McKinney’s search was lawful because Cisneros gave valid consent to the search. We review the trial court’s decision on a motion to suppress evidence by applying a bifurcated standard of review deferring to the trial court’s determination of historical facts that depend on credibility, but reviewing de novo the trial court’s application of the law. Burke v. State, 27 S.W.3d 651, 654 (Tex.App.-Waco 2000, pet. ref'd). We review de novo those questions not turning on credibility and demeanor. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). Our review of probable cause concerning a warrantless search is reviewed de novo. See Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997). We will affirm the trial court’s ruling if the ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543-44 (Tex.Crim.App.1990); Shaw v. State, 122 S.W.3d 358, 363 (Tex.App.-Texarkana 2003, no pet.).

The federal and state Constitutions both guarantee the right to be secure from unreasonable searches and seizures made without probable cause. U.S. Const. amend. IV; Tex. Const, art. I, § 9. Article 38.23(a) of the Texas Code of Criminal Procedure forbids any evidence obtained by an unreasonable search to be admitted against an accused. See Tbx.Code CRiM. PROC. Ann. art. 38.23(a) (Vernon 2005). When a state official acts without a valid warrant and searches a citizen’s private property, that search is per se unreasonable unless an exception to the Fourth Amendment’s warrant requirement otherwise permits the search. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Rayford v. State, 125 S.W.3d 521, 528 (Tex.Crim.App.2003).

We reverse because we find the evidence shows (1) Cisneros did not voluntarily consent to the search, and (2) McKinney lacked probable cause to search Cisneros’ vehicle.

1. Cisneros Did Not Voluntarily Consent To Have Her Vehicle Searched

Consent to search is “one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause.” Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App.2000) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Crim.App.1997)).

But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion were applied, the resulting “consent” would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.

Schneckloth, 412 U.S. at 228, 93 S.Ct. 2041. The test for valid consent is whether it is voluntarily given. Id.; Carmouche, 10 S.W.3d at 331.

[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that [the State] demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is- a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

Sehneckloth, 412 U.S. at 248-49, 93 S.Ct. 2041. To determine whether a defendant’s will was overborne in a particular ease, the reviewing court should assess “the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” Id. “The federal constitution requires the State to prove the validity of the consent by a preponderance of the evidence; the Texas Constitution requires the State to show by clear and convincing evidence that the consent was valid.” Rayford, 125 S.W.3d at 528. We hold the State failed to show consent, judged by either standard.

In Bumper v. North Carolina, 391 U.S. 543, 546, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), four law enforcement officers appeared at an elderly widow’s home and informed her that they had a warrant to search the home. After the widow allowed them to enter her home, the officers found a rifle, which was introduced into evidence at Bumper’s rape trial. Id. The Court held the search violated the Constitution because the widow’s consent had been given only after the official conducting the search asserted he had a warrant, which he, in fact, did not have. Id. The Court reasoned that once the officers had announced they had a search warrant, they were, in effect, telling the homeowner she could not lawfully resist the search. Id. Describing the impact of the officer’s claim of a warrant on the widow’s decision to grant consent, Justice Potter Stewart wrote, “This situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Id. The Court then reversed Bumper’s conviction.

In the case now on appeal, the following exchange between McKinney and Cisneros occurred during the traffic stop:

McKinney: Will you give me consent to search your vehicle?
Cisneros: No, sir. I can’t do that.
McKinney: Why not?
Cisneros: Cause my attorney told me don’t ever let nobody [sic] search it without a warrant.
McKinney: You don’t need a search warrant for a vehicle, a car.
Cisneros: No?
McKinney: No.
Cisneros: Oh. I didn’t know that. Well, there’s nothing there.
McKinney: So will you give me consent to search?
Cisneros: Yeah. Go ahead.

McKinney’s statement to Cisneros — that he did not need a search warrant to be able to search a vehicle— would have been true only under limited conditions that are not present here. An officer may search a vehicle without a warrant (1) if there is probable cause to believe that a crime has been committed, (2) if there is probable cause to believe that contraband is located in the vehicle, and (3) “where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Blaylock v. State, 125 S.W.3d 702, 705 (Tex.App.-Texarkana 2003, pet. ref'd) (quoting Chambers v. Maroney, 399 U.S. 42, 48-49, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and citing Amos v. State, 819 S.W.2d 156, 160-61 (Tex.Crim.App.1991)). Nor does an officer need a warrant to search a vehicle if the operator voluntarily consents and that consent has not been coerced. State v. Hunter, 102 S.W.3d 306, 310 (Tex.App.-Fort Worth 2003, no pet.) (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995)). Yet McKinney’s statement regarding his ability to search a vehicle without a warrant clearly suggested to Cisneros that he could search her vehicle regardless of any other considerations; in spite of Cisneros’ previously expressed refusal to consent. And it is clear from the record before us that Cisneros would not have given consent absent McKinney’s mischaracterization of the law.

In essence, McKinney’s statement (if sanctioned by this Court), would, without more, allow the automobile exception to swallow the rule against unreasonable searches and seizures by allowing officers to suggest — falsely—'that people lack the right to resist an automobile search. McKinney’s statement is coercive, in much the same way as the assertion in Bumper was held by the United States Supreme Court to violate the defendant’s constitutional rights. See Bumper, 391 U.S. at 546, 88 S.Ct. 1788; see also Erdman v. State, 861 S.W.2d 890, 894 (Tex.Crim.App.1993) (officer’s misinformation asserted “considerable psychological pressure” on accused; refusal to suppress evidence was abuse of discretion). Accordingly, Cisne-ros’ consent was coerced, and McKinney’s search could not be justified on that basis.

2. There Was No Probable Cause To Search

Because we must affirm the trial court’s ruling if it is correct on any ground applicable to the case, we next address whether probable cause existed to justify the search. We conclude it did not.

The “automobile ' exception” authorizes an officer to conduct a warrant-less search of an automobile as long as the officer reasonably believes (1) there is probable cause to believe that a crime has been committed, (2) there is contraband located in the vehicle, and (3) “it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Chambers, 399 U.S. at 48-49, 90 S.Ct. 1975; Amos, 819 S.W.2d at 160-61. If the automobile exception authorizes an officer’s search, the officer is permitted to search every part of the vehicle, as well as any contents therein, that may conceal the object of the search. United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Blaylock, 125 S.W.3d at 705.

In determining probable cause, courts must consider the totality of the circumstances. Angulo v. State, 727 S.W.2d 276, 278 (Tex.Crim.App.1987). Although probable cause requires more than mere suspicion, it requires far less evidence than is needed to support a conviction or even a finding by a preponderance of the evidence. Middleton v. State, 125 S.W.3d 450, 457 (Tex.Crim.App.2003). Instead, probable cause exists where officers have reasonably trustworthy information sufficient to warrant a reasonable belief that an offense has been or is being committed. McGee v. State, 105 S.W.3d 609, 614 (Tex.Crim.App.2003).

Blaylock, 125 S.W.3d at 705; see also Devenpeck, — U.S. —, 125 S.Ct. at 593. “The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime.” Autry v. State, 21 S.W.3d 590, 592 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (citing Meeks v. State, 653 S.W.2d 6, 12 (Tex.Crim.App.1983)).

Under the Texas Court of Criminal Appeals’ interpretation of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, the police must be able to articulate facts that support a reasonable suspicion that the suspect is engaging in, or is about to engage in, criminal activity. See Davis v. State, 947 S.W.2d 240, 242-44 (Tex.Crim.App.1997). Such stops are generally referred to as “investigative detentions.” “Additionally, Texas Courts recognize that investigative detentions become unreasonable when they are not reasonably related in scope to the circumstances which justified the interference in the first place.” Id. Moreover, the detention “must be temporary and last no longer than necessary to effectuate the purpose of the stop. The police may not carry out a full search of the person or his effects. Nor may they verify their suspicions by means that approach an arrest.” Id. (quoting Collier v. State, 843 S.W.2d 176, 177 (Tex.App.-Houston [14th Dist] 1992, no pet.)); see also Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). “[0]nce the reason for the stop has been satisfied, the stop may not be used as a ‘fishing expedition for unrelated activity.’ ” Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 41, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)).

“The propriety of the stop’s duration is judged by assessing whether the police diligently pursued a means of investigation that was likely to dispel or confirm their suspicions quickly.” Davis, 947 S.W.2d at 245 (quoting Perez v. State, 818 S.W.2d 512, 517 (Tex.App.-Houston [1st Dist.] 1991, no pet.)). In a traffic stop situation, the police may ask for identification, a valid driver’s license, and proof of liability insurance. Davis, 947 S.W.2d at 245 n. 6. Police may also check for outstanding warrants. Id. During the stop, however, an officer must use “the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Id.

In this case, the parties do not contest the reasonableness of the initial traffic stop, in that Cisneros was driving at seventy-nine miles per hour in a seventy-mile-per-hour zone. We therefore begin with the assumption that Cisneros’ initial detention for speeding was reasonable. Under the authorities previously discussed, McKinney’s detention of Cisneros “was required to be temporary and could last no longer than was necessary” to satisfy or dispel the officer’s original suspicion of speeding and to conclude the stop. Id.

Therefore, we are to examine the totality of the circumstances known by McKinney during the legitimate traffic stop and determine whether these circumstances provided McKinney with probable cause to search the vehicle. While the evidence provides some suspicious circumstances, it falls short of the probable cause necessary to justify McKinney’s search, regardless of whether (1) McKinney’s detention of Cisneros was justified only until he determined to issue Cisneros a warning ticket for excessive speed, or (2) detention was justified until the warning was actually issued some minutes later.

a. Passenger’s “Sleep” and Avoidance

When McKinney initially approached the vehicle, he did so from the passenger’s side. He noticed that the passenger had his seat in a reclining position and appeared to be asleep. This, however, made McKinney uneasy, because it has been his experience that people usually awaken or sit up when a vehicle stops. Moreover, McKinney later determined that the passenger was not asleep, yet the passenger had pretended to be asleep and still refused to make eye contact with McKinney once the passenger had “awakened.” That certainly may trigger some suspicion, but it does not necessarily indicate the passenger’s consciousness of some criminal guilt.

b. Cisneros’Nervousness

McKinney testified that, while awaiting completion of a check on Cisneros’ and the passenger’s driver’s licenses and criminal histories, he observed Cisneros behaving nervously and fidgeting. According to McKinney, “She was moving back and forth, scratching, running her hand through her hair, looking at the vehicle, rubbing on the trunk of the vehicle. Things I had never experienced other drivers doing on a traffic stop.” McKinney testified these behaviors were consistent with a state of heightened nervousness and suggested Cisneros was either planning to fight with, or flee from, the trooper. The videotape of the traffic stop — introduced into evidence by the State — shows Cisne-ros variously smoking a cigarette, leaning against a vehicle, standing, and sometimes pacing between her car and McKinney’s. Her nervousness on the videotape — shown by running her fingers through her hair, some pacing around the rear of her vehicle, and smoking a cigarette during the six minutes she waited alone at the rear of her car while McKinney ran a check of her license — does not appear to be aberrational behavior for a woman who had been pulled over along the interstate and made to stand alone at the rear of her vehicle for a period of time, during which time she was stung by ants. Nervousness, alone— sometimes even combined with other factors — does not supply probable cause. See Hamel v. State, 582 S.W.2d 424, 426 (Tex.Crim.App.1979).

c. Cisneros’ Trip to Her Car

McKinney also testified he saw Cisneros later walk to the passenger-side window of her vehicle, say something to her passenger, and point toward the back seat before returning to stand at the rear of the vehicle. The suggestion is that such activity was a suspicious circumstance. While McKinney’s account is true as far as it goes, the videotape reveals that Cisneros’ trip to the side of her car and her pointing to the back seat was associated with her successful effort to get her shoes and put them on, after being stung by ants while on the side of the road.

d. “Conflicting” Stories

McKinney testified Cisneros and her passenger gave conflicting stories about the purpose of their travel and their intended destination. We have reviewed the record of these stories and do not detect any necessary conflict in them. Cisneros told McKinney she and her passenger were going to gamble at a Shreveport casino. Her passenger initially said they were going to Shreveport but he did not know where, then that he was just riding with her, but finally that they were going to gamble in Shreveport. While the passenger’s answers could have evidenced evasiveness, they could also have come from normal, and innocent, imprecision in communication.

e. Passenger’s Lack of Identification

McKinney also cited as suspicious his observation that, although the passenger claimed to be headed to Shreveport to gamble, he did not have any form of identification. McKinney stated it was his experience that the Shreveport casinos require gamblers to present identification before they were allowed access to the casino floor. We note the passenger’s comment that he had never been to Shreveport to gamble. His lack of identification could have been because of his lack of experience with Shreveport casinos. And given that he appeared to be well into, if not above, his thirties, it is quite possible that he did not anticipate needing identification to gain acceptance into a casino.

f Cisneros’ and Passenger’s Arrest Records

McKinney’s suspicions were heightened after both Cisneros’ and the passenger’s criminal histories returned with recent drug and weapons arrests. Certainly, that provides proper fuel for suspicion.

Based on the facts, McKinney concluded he had probable cause to search the vehicle for drugs. He admitted on cross-examination, however, that he did not have probable cause to search the vehicle, but needed to rely on Cisneros’ consent to justify the search.

From the totality of the circumstances, we hold McKinney’s search was not based on probable cause, that is, he did not have articulable facts that, when taken together with rational inferences from such facts, “would warrant a person of prudence and caution in believing that an offense had been or is being committed.” See McCallum v. State, 608 S.W.2d 222, 223 (Tex.Crim.App.1980). McKinney had no articu-lable facts available to him — before concluding the traffic stop for speeding and issuing a warning ticket, nor even after his subsequent, prolonged questioning of Cisneros — that indicated Cisneros or her passenger was engaged in criminal conduct. See Davis, 947 S.W.2d at 245-46; McQuarters v. State, 58 S.W.3d 250, 256-58 (Tex.App.-Fort Worth 2001, pet. ref'd). Consequently, the trial court erred by admitting the fruit of that search.

To prevail, Cisneros must also show harm. See Tex.R.App. P. 44.2; Galitz v. State, 617 S.W.2d 949, 952 n. 10 (Tex.Crim.App.1981); Jeffley v. State, 38 S.W.3d 847, 858 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). The harm is obvious, in that the marihuana which Cisneros is charged with possessing, and which should have been suppressed, is key evidence in the State’s case against her.

Conclusion

Viewing the evidence in the light most favorable to the trial court’s ruling, the record shows Cisneros’ consent was effectively coerced by McKinney’s misinformation, and there was no probable cause to search. Because the contraband discovered by the resulting search should have been suppressed, and failure to do so was harmful, we reverse the judgment and remand this case to the trial court for further proceedings in accordance with this opinion. See Ford v. State, 158 S.W.3d 488 (Tex.Crim.App.2005).

      . No oral or written findings of fact or conclusions of law were entered into the record by the trial court concerning the motion to suppress. Cisneros subsequently pled no contest to the charge and, pursuant to a negotiated plea agreement, was placed on adjudicated community supervision for a period of twelve months.

      . In the trial court, the State asserted that either (1) the police properly stopped Cisne-ros for a traffic violation and searched her vehicle after developing probable cause to search, or (2) Cisneros gave voluntary consent to the search of her vehicle. On appeal, however, the State has expressly limited its argument to consent.

      . At trial in Bumper, the prosecution abandoned any reliance on the search warrant to provide constitutional authority for the officers' search of the widow’s home; instead, the State relied on consent to justify the search. 391 U.S. at 546, 548-50, 88 S.Ct. 1788.

      . McKinney testified, during the hearing on Cisneros’ motion to suppress, that he did not have probable cause to search Cisneros’ vehicle and could have searched only with her consent. We note, however, that "an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.” Devenpeck v. Alford, —U.S. —, 125 S.Ct. 588, 593, 160 L.Ed.2d 537 (2004). As Justice Scalia reminded us in Devenpeck, "the fact that an officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Id. at 594 (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)). “The Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.” Devenpeck, —U.S. at —, 125 S.Ct. at 594 (quoting Whren v. United States, 517 U.S. 806, 814, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)).

      . See Blaylock, 125 S.W.3d at 705.

      . The record shows that McKinney’s purpose for the traffic stop had been satisfied once he issued Cisneros a warning ticket for her excessive speed. Nevertheless, McKinney continued his detention of Cisneros. He subsequently asked her if she had ever been arrested. Cisneros honestly admitted she had, and McKinney then asked her about those arrests. Then continuing to detain her beyond the scope of the already completed traffic stop, McKinney further questioned Cisneros about whether she had any narcotics or dead bodies in her car. Finally, McKinney asked for consent to search — consent that Cisneros initially withheld.

      .Very shortly after the stop, McKinney can be heard on the videotape telling Cisneros that he was going to issue her a warning ticket. A few additional minutes passed before the warning was actually issued. Because we hold there was no probable cause even'when the warning was issued, we do not address whether any reasonable suspicion justified the delay after McKinney’s decision to issue the warning.

      . McKinney is a certified drug recognition expert and has been trained to detect and identify what type of drug a suspect may be using. McKinney stopped Cisneros' vehicle for speeding at 11:30 a.m.

      . McKinney noted that, during the traffic stop, Cisneros had probably been stung on her feet by ants while she stood on the side of the road.

      . Recently in Mushier v. Mena, — U.S. —, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), the United States Supreme Court held an officer's questioning of a suspect during the execution of a search warrant did not violate the suspect's Fourth Amendment rights. The Court noted that the lower appellate court "did not hold that the detention was prolonged by the [officer’s] questioning, [and therefore] there was no additional seizure within the meaning of the Fourth Amendment.” Id. By contrast, the record in the case now before this Court clearly shows McKinney's questioning did prolong the detention; so, absent probable cause — which we have determined was lacking under the totality of the circumstances — McKinney’s prolonged questioning amounted to an additional, impermissible seizure within the meaning of the Fourth Amendment.


source: Caselaw Access Project

author: Justice ROSS.

license: Public Domain

text:
    Carrie BETTS, Appellant, v. Hermon REED, Jr., Appellee.
    No. 06-04-00081-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted April 27, 2005.
    Decided May 27, 2005.
    Rehearing Overruled July 6, 2005.

      Frank D. Moore, Cooper, for appellant.
    James R. Rodgers, The Moore Law Firm, LLP, Paris, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

This appeal arises from a dispute between two landowners, Carrie Betts and Hermon Reed, Jr., over a narrow road running across Betts’ property and leading to Reed’s property. This road is located in Red River County and is sometimes known as Tyson Road. Contending the road had been a public road for at least ninety years, Reed filed a declaratory judgment action against Betts concerning the status of Tyson Road and sought damages for the denial of its use. The trial court found Tyson Road had been impliedly dedicated to public use, abandoned, and then acquired by Reed through prescription. Betts contends the evidence is legally and factually insufficient to support the finding that Reed established a private easement by prescription and to support the damages awarded. In response, Reed contends the evidence is sufficient to support the trial court’s judgment under three separate theories: implied dedication, public prescription, or a private prescription. We affirm the trial court’s judgment in part and reverse in part. There is sufficient evidence Tyson Road had been impliedly dedicated to public use, but the evidence is legally insufficient that it had been abandoned.

Factual Background

Several witnesses testified this narrow gravel road has been used by the public since at least the 1920s. At one time, several families used Tyson Road to access their homes. Permission was never sought from anyone, and there were no restrictions on who could use the road.

In 1964, Reed purchased 105 acres along Tyson Road, which is most of the property now accessible by that road. Initially, Reed paid taxes on only 103 acres because the county estimated that Tyson Road occupied the remainder of the acreage. However, the county’s taxing authority started collecting taxes for the entire 105 acres eight to ten years ago. Reed uses his property primarily to graze cattle and to lease for deer hunting. Reed testified he has used Tyson Road continuously since 1964. He never asked permission to use the road. At some time, not shown by the record, a gate was erected across the road at some location, again not shown by the record, but apparently before reaching Reed’s property.

Betts acquired her property along Tyson Road in 1990. She testified that she wanted to build a new house on the site of the road and that she had offered Reed an alternative route, which he refused to accept. Betts further testified she was aware before the acquisition of her property that Reed used Tyson Road.

Approximately one year before trial, Reed began to experience problems using the road. Although he had an alternative route through a neighbor’s property to access his property, the alternative route was more difficult and much longer. Despite a temporary restraining order against Betts, the gate across the road was locked and debris was left on the road to inhibit its use.

Following a bench trial, the court found Tyson Road had been a public road that was abandoned for twenty years or more. The court further found that Reed had perfected a prescriptive easement. The court awarded damages of $6,950.00 and attorney’s fees in the amount of $6,250.00 to Reed. Last, the court permanently enjoined Betts from interfering with Reed’s use of the road and barred her from entry onto the road.

Standard of Review

We review de novo the trial court’s legal conclusions. State v. Heal, 917 S.W.2d 6, 9 (Tex.1996); Cherokee Water Co. v. Freeman, 33 S.W.3d 349, 353 (Tex.App.-Texarkana 2000, no pet.). Although Betts requested findings of fact, the record contains no such findings and no notice of past due findings. “The failure to file a notice of past due findings of fact waives the right to complain about the trial court’s failure to file findings of fact and conclusions of law.” Curtis v. Comm’n for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex.App.-Houston [14th Dist.] 2000, no pet.); see Ohio Cas. Group v. Risinger, 960 S.W.2d 708, 712 (Tex.App.-Tyler 1997, writ denied); see also Tex.R. Civ. P. 297.

In the absence of findings of fact and conclusions of law, we imply that the trial court found all facts necessary to support its judgment as long as they also are supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002). However, those implied findings may be challenged on appeal for legal and factual sufficiency where the appellate record includes the reporter’s and clerk’s records. Id. We note that complaints concerning the sufficiency of the evidence in a nonjury trial may be made for the first time on appeal. Tex. R.App. P. 33.1(d); Tex.R. Civ. P. 324; Regan v. Lee, 879 S.W.2d 133, 135 (Tex.App.Houston [14th Dist.] 1994, no writ); see Kissman v. Bendix Home Sys., Inc., 587 S.W.2d 675, 677-78 (Tex.1979).

When deciding a legal sufficiency point concerning a fact issue, we must consider all the evidence in the record in the light most favorable to the party in whose favor the verdict has been rendered, and we must apply every reasonable inference that could be made from the evidence in that party’s favor. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 888 (Tex.App.-Texarkana 2004, pet. denied). We disregard all evidence and inferences to the contrary. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). A no-evidence point will be sustained when: (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int'l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

When considering a factual sufficiency challenge to a jury’s verdict, a court of appeals must consider and weigh all of the evidence, not just the evidence supporting the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998). A court of appeals may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id. at 407; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The court of appeals is not a fact-finder. Accordingly, the court of appeals may not pass upon the witnesses’ credibility or substitute its judgment for that of the jury, even if the evidence would clearly support a different result. Mar. Overseas Corp., 971 S.W.2d at 407. If we find the evidence insufficient, we must clearly state why the jury’s finding is factually insufficient or is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

Tyson Road Was Impliedly Dedicated As a Public Road

Legally and factually sufficient evidence supports the trial court’s finding that Tyson Road had become a public road through implied dedication. Since the origin of the road is “shrouded in obscurity,” the long and continuous use of the road by the public creates a presumption of dedication. No evidence was introduced to rebut this presumption.

A property owner, under the common law, can either expressly or impliedly make known his or her intention to dedicate. The essential elements of implied dedication are:

(1) the acts of the landowner induced the belief that the landowner intended to dedicate the road to public use; (2) [the landowner] was competent to do so; (3) the public relied on these acts and will be served by the dedication; and (4) there was an offer and acceptance of the dedication.

Lindner v. Hill, 691 S.W.2d 590, 592 (Tex.1985) (quoting Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex.1984)); see Machala v. Weems, 56 S.W.3d 748, 760 (Tex.App.-Texarkana 2001, no pet.); Stein v. Killough, 53 S.W.3d 36, 43 (Tex.App.-San Antonio 2001, no pet.). The determination of whether a public right-of-way has been acquired by dedication is a question of fact. Lindner, 691 S.W.2d at 591; Graff, 947 S.W.2d at 635.

As a general rule, the manifestation of an intent to dedicate must be something more than an omission, failure to act, or acquiescence on the part of the owner. Greenway Parks Home Owners Ass’n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235, 241 (1958); Gutierrez v. County of Zapata, 951 S.W.2d 831, 839 (Tex.App.-San Antonio 1997, no writ). “In order to constitute dedication by estoppel or implication there must exist a clear and unequivocal intention on the part of the landowner to dedicate the same to public use and an acceptance thereby by the public.” Greenway Parks Home Owners Ass’n, 312 S.W.2d at 241. There must be some evidence in addition to the owner’s acquiescence that implies a donative intent. Long Island Owner’s Ass’n v. Davidson, 965 S.W.2d 674, 681 (Tex.App.-Corpus Christi 1998, pet. denied). The additional evidence may include, but is not limited to: (1) permitting public authorities to grade, repair, or otherwise improve the roadway; (2) selling parcels of land from a plat or plan showing the roadway as a means of access to the parcels; (3) construction of facilities for general public use; (4) an express representation by the owner of a road to a land purchaser that the way is reserved for public use; (5) fencing off the roadway from the remainder of the land; or (6) obtaining a reduetion in the purchase price commensurate with the area of the roadway. Id. Direct evidence of a landowner’s intent is not required. Supak v. Zboril, 56 S.W.3d 785, 790 (Tex.App.-Houston [14th Dist.] 2001, no pet.); see Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957, 958-59 (1952) (affirmed jury finding of implied dedication where road had been used by public for many years, landowner was aware of public use, county had repaired and graded road, and property along roadway was fenced); see also Malone v. Whitfield, 621 S.W.2d 192, 195 (Tex.Civ.App.-Waco 1981, writ ref'd n.r.e.) (affirming finding of implied dedication when public used road for thirty-five years, county maintained road, and road was delineated by fences). Evidence that the public had used the road, the county had maintained the road, and the road had been fenced on both sides was introduced at trial.

The long and continuous use of the road by the public raises a presumption of donative intent. When the origin of the road cannot be determined, evidence of long and continued use by the public raises a presumption that the landowner intended to dedicate the road. O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 882 (1960); Reed v. Wright, 155 S.W.3d 666, 672 (Tex.App.-Texarkana 2005, pet. filed); Supak, 56 S.W.3d at 790; Graff, 947 S.W.2d at 637; Fazzino v. Guido, 836 S.W.2d 271, 274 (Tex.App.-Houston [1st Dist.] 1992, writ denied). For this presumption to apply, the ownership of the land when the road originated must be “shrouded in obscurity” so that no evidence of the intent of the owner is available. O’Connor, 339 S.W.2d at 882; Reed, 155 S.W.3d at 672; Supak, 56 S.W.3d at 790; Graff, 947 S.W.2d at 637; Fazzino, 836 S.W.2d at 274.

The origin of Tyson Road is “shrouded in obscurity,” and no evidence of the intent of the owner who established the road was introduced. There was legally and factually sufficient evidence of long and continuous use by the public. Although Reed did not establish that the road had been used for ninety years, he did present evidence the road had been used since the 1920s. Algie Rose, who was eighty-one years old at the time of trial, testified he remembered using Tyson Road since the late 1920s or early 1930s. Rose testified he never asked permission to use the road. Reed, who was sixty-nine at the time of trial, testified he had used Tyson Road since he was a child. Reed testified he had owned property along Tyson Road since 1964 and had used Tyson Road to access his property since that time. Betts acknowledged she had never given Reed permission to use Tyson Road. Although he had not used Tyson Road recently, Shepard Sanders, who was sixty-six years old at the time of trial, stated he had occasionally traveled up and down Tyson Road since he was fifteen. Sanders testified that several families had lived on the road in the past and that everybody used Tyson Road. Sanders testified he had used Tyson Road to haul hay. Josie Reed, who was eighty years of age at the time of trial, testified she has used Tyson Road since she was in her teens. Josie Reed testified that everyone considered the road a public road and that she had never asked permission to use the road. Reed and Rose also testified that the Cook, Houston, Walker, and Ford families used Tyson Road in the late 1940s to access their property.

When viewed in a light most favorable to the verdict, more than a scintilla of evidence exists that the public used Tyson Road for a long and continuous time. When viewed in a neutral light, the great weight and preponderance of the evidence does not indicate that the trial court’s finding was clearly wrong or unjust. Because the origin of the road is shrouded in obscurity, the evidence of long and continued use by the public raises a presumption that the landowner intended to dedicate the road. Betts presented no evidence disputing the presumption of implied dedication. The evidence is legally and factually sufficient to support the trial court’s finding that Tyson Road had been impliedly dedicated as a public road.

Trial Court Erred In Concluding Tyson Road Had Been Abandoned

The trial court found Tyson Road had been abandoned more than twenty years ago. If Tyson Road is a public road, Betts contends the road remains a public road because it is still being used for the same purpose for which it has been used in the past. We agree. The evidence is legally insufficient that Tyson Road had been abandoned.

A landowner cannot revoke the dedication or use the property contrary to the original purpose of the dedication once a dedication is accepted. See Lindner v. Hill, 673 S.W.2d 611, 616 (Tex.App.-San Antonio 1984), aff'd, 691 S.W.2d 590 (Tex.1985); Moody v. White, 593 S.W.2d 372, 378 (Tex.Civ.App.-Corpus Christi 1979, no writ); Edmiston v. City of Harlingen, 347 S.W.2d 742, 744-45 (Tex.Civ.App.-San Antonio 1961, writ ref'd n.r.e.). “Once a road is dedicated to public use, that road remains subject to that use unless it is abandoned.” Lindner, 691 S.W.2d at 592.

There is no evidence Tyson Road had been abandoned. Neither statutory abandonment nor common-law abandonment has been shown. Further, there is no evidence the commissioner’s court has formally ordered that Tyson Road is abandoned. See Tex. Transp. Code Ann. § 251.051 (Vernon 1999).

There is no evidence of statutory abandonment pursuant to the Transportation Code. Section 251.057 of the Transportation Code provides:

(a) A county road is abandoned when its use has become so infrequent that one or more adjoining property owners have enclosed the road with a fence continuously for at least 20 years. The abandoned road may be reestablished as a public road only in the manner provided for establishing a new road.
(b) This section does not apply to:
(1) a road to a cemetery; or
(2) an access road that is reasonably necessary to reach adjoining real property.

Tex. Transp. Code Ann. § 251.057 (Vernon 1999). There is no evidence Tyson Road has been enclosed with a fence continuously for at least twenty years.

The evidence at trial does not support a finding of common-law abandonment, either. To show common-law abandonment, one must show intent to abandon and acts of relinquishment. Maples v. Henderson County, 259 S.W.2d 264, 267 (Tex.Civ.App.-Dallas 1953, writ ref'd n.r.e.). “Common-law abandonment ‘occurs when the use for which property is dedicated becomes impossible, or so highly improbable as to be practically impossible, or where the object of the use for which the property is dedicated wholly fails.’ ” Griffith v. Allison, 128 Tex. 86, 96 S.W.2d 74, 77 (1936); Rutledge v. Staner, 9 S.W.3d 469, 471 (Tex.App.-Tyler 1999, pet. denied). There is no evidence that the purpose of Tyson Road has become practically impossible or that the object of the use for which the property was dedicated has wholly failed. “The purpose of a public road, particularly one of local character, is to provide access to property abutting upon it, as well as a thoroughfare between distant points.” Rutledge, 9 S.W.3d at 471; Compton v. Thacker, 474 S.W.2d 570, 574 (Tex.Civ.App.-Dallas 1971, writ ref'd n.r.e.). Although the number of landowners who use Tyson Road has decreased, the road is still being used to access property abutting it. Tyson Road has not lost its purpose as a public road and, thus, common-law abandonment has not occurred.

We note that the county ceased maintaining Tyson Road years ago. However, the county’s failure to maintain a road does not establish common-law abandonment. Rutledge, 9 S.W.3d at 472; Compton, 474 S.W.2d at 574. We also note fewer families now use Tyson Road to access abutting property. Mere nonuse is not sufficient to constitute abandonment. Compton, 474 S.W.2d at 574.

Even when viewed in a light most favorable to the trial court’s ruling, there is no more than a scintilla of evidence Tyson Road had been abandoned. Therefore, the evidence is legally insufficient to support the trial court’s finding of abandonment.

Damages

In her third point of error, Betts contends the evidence is insufficient to support the damages awarded to Reed. The judgment awarded damages as follows:

(1) $600.00 for lost deer lease; (2) $1,000.00 for the time expended by Plaintiff; (3) $350.00 for Plaintiffs lost wages; and (4) $5,000.00 for or [sic] loss of use and denial of access to the road, for a total of Six Thousand, Nine Hundred and Fifty Dollars ($6,950.00).

The trial court also awarded $6,250.00 in attorney’s fees for trial, plus $5,000.00 if the case was appealed to the court of appeals and $3,500.00 if appealed to the Texas Supreme Court. Betts challenges the award of the damages for the loss of the deer lease, for the additional time expended by Reed, for the additional wages paid to Reed’s employees, and for the loss of use of Tyson Road.

During the time Reed was experiencing problems using the road, he had an alternative route through a neighbor’s property to access his property. The alternative route, however, was more difficult and much longer. On May 6, 2002, the trial court issued a temporary restraining order that required Betts to allow Reed to use Tyson Road. Despite this court order, the gate was locked and debris was left on the road to inhibit its use. After the restraining order had been signed, the gate continued to be locked. Presumably to discourage use of the road, someone placed various items of debris — such as bed springs, a mattress, and a toilet — on the road. Reed testified that, although he would clean up the road, someone would put more trash on it. At least some of the debris was placed after the temporary restraining order was issued. In addition, someone cut approximately nine-tenths of the way through a tree located next to the road. Reed testified the wind could have blown it over. Because the tree posed a serious potential danger to anyone using the road, Reed testified he cut it down.

Betts challenges all of the damages on the basis that Reed did not have a right to use Tyson Road. As discussed above, Tyson Road is a public road and Reed had a right to use the road. Further, the temporary restraining order provided that Betts was prohibited from denying Reed the right to use Tyson Road. Generally, damages for wrongful deprivation of the enjoyment of an easement are recoverable for the deprivation or hindrance of use of an easement. See Seelbach v. Clubb, 7 S.W.3d 749, 759 (Tex.App.-Texarkana 1999, pet. denied); Hall v. Robbins, 790 S.W.2d 417, 418 (Tex.App.Houston [14th Dist.] 1990, no writ); Handal v. Cobo & Dosal, 225 S.W. 67, 69 (Tex.Civ.App.-San Antonio 1920, writ ref'd). Similarly, damages for the denial of access to a public road can be awarded. Because Reed was denied access to Tyson Road and had a right to access Tyson Road, the trial court could award damages.

Betts also contends the damages are inappropriate because there is no evidence she was the person who denied access to Tyson Road. Betts testified she owns the property over which the road runs. She further testified she does not know who locked the gate and does not know who has the key. Reed testified that, although he did not observe Betts locking the gate, she or her mother would be at the gate ■about ninety percent of the time when he passed through. Because Betts owned the property along Tyson Road and monitored the locked gate, the trial court could reasonably conclude Betts was the person who locked the gate.

The trial court did not err in awarding damages for the deer lease. Betts argues that any cause of action concerning the loss of the deer lease belongs to the person who was prevented from hunting, rather than Reed. Loss of rental value is an appropriate form of damages when a property is normally used for rental purposes. See City of Longview v. Stewart, 66 S.W.2d 450, 451 (Tex.Civ.App.-Texarkana 1933, no writ). Reed testified he was unable to lease the property because Betts denied access. The trial court did not err in awarding the loss of the rental value of the property. In addition, Betts argues the deer lease was worth only $400.00. We note Jerry Doyle testified he paid Reed $400.00 for the deer lease. However, Reed testified the deer lease was worth approximately $600.00. Even though the actual lease may have been less than the fair market value, the evidence is sufficient to support the trial court’s awai’d of $600.00 as the fair market value of the deer lease.

The evidence is also sufficient to support the damage award for the additional time expended by Reed’s employees. Betts characterizes the lost wages as damages for the repair of the road. Betts contends that, because some of the repairs were made before Reed was denied access to the road, the award should be prorated from the time of Reed’s use to the date the road was closed. However, the award of $350.00 was based on the amount of time Reed’s employees wasted by having to use an alternative route, not for the amount of time spent in repairing or cleaning up the road. Reed testified he had to pay his employees approximately fifty hours of extra time because they had to take an alternative route. Reed estimated the additional wages of his employees at $350.00, i.e., fifty hours at $7.00 per hour. The award of lost wages referred to the cost of taking an alternative route.

In addition, the evidence is sufficient to affirm the damages awarded to Reed for his personal time. Reed testified his alternative route through a neighbor’s property cost him personally between seventy-five to one hundred hours of additional time. Reed testified he paid his ranch hands between $8.00 and $10.00 per hour. The trial court could have reasonably inferred that Reed’s time was worth at least as much as the amount he paid his employees. Therefore, the trial court’s award of $1,000.00 for Reed’s personal time, which was roughly equivalent to 100 hours of work at $10.00 an hour, was supported by the evidence.

The trial court erred, however, in awarding $5,000.00 for the “loss of use” of Tyson Road. There is no evidence Reed sustained $5,000.00 in damages in addition to the other specified damages. While Reed did testify he had sustained other damages, such as being forced to clean up the trash on the road and removing the tree which posed a danger, he provided no testimony as to the value of these damages. Further, Reed never testified his total damages amounted to almost $7,000.00. We find the evidence legally insufficient to support the award of $5,000.00. Further, that award would result in a double recovery. A double recovery exists when a plaintiff obtains more than one recovery for the same injury. Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184-85 (Tex.1998); see Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex.1991). “The one satisfaction rule provides that a party which suffers but one injury can recover only one satisfaction for damages arising from that injury.” El Paso Natural Gas Co. v. Berryman, 858 S.W.2d 362, 364 (Tex.1993). The damages relating to Reed’s loss of the deer lease, the loss of Reed’s personal time, and the additional wages paid to his employees all resulted from the loss of use of Tyson Road. The $5,000.00 damage award compensates Reed more than once for the specified damages discussed above. Because there is no evidence supporting the $5,000.00 award and because that award would result in a double recovery, the trial court erred in awarding $5,000.00 for the loss of use of Tyson Road.

The evidence is legally and factually sufficient to support the award of $600.00 for the deer lease, the award of $1,000.00 for the personal time expended by Reed, and the award of $350.00 for the additional wages Reed paid his employees. However, the evidence is legally insufficient concerning the award of $5,000.00, and that award would result in a prohibited double recovery.

Conclusion

There is sufficient evidence to support the trial court’s finding that Tyson Road had been impliedly dedicated as a public road. The evidence is legally and factually insufficient to support the finding that Tyson Road had been abandoned. We affirm the trial court’s finding that Tyson Road is a public road, but reverse and render judgment that Tyson Road had not been abandoned. We also affirm the permanent injunction prohibiting Betts from interfering with Reed’s access, but reverse the permanent injunction prohibiting Betts from using Tyson Road. Because Tyson Road is still a public road, Betts has the right to use the road. We also strike the award of $5,000.00 for “loss of use and denial of access to the road,” but affirm the remainder of the damages totaling $1,950.00, as well as the award of attorney’s fees.

We affirm the judgment in part and reverse and render in part in accordance with this opinion.

      . Although the road in question has not been formally named by the county, several of the witnesses testified they refer to the road as Tyson Road. At one time, a man named Tyson owned land along this road. For the sake of convenience, we will refer to the disputed road as Tyson Road.

        . Pinebrook Props., Ltd. v. Brookhaven Lake Prop. Owners Ass’n, 77 S.W.3d 487, 503 (Tex.App.-Texarkana 2002, pet. denied). We note that the Texas Legislature has abolished the theory of implied dedication in counties with a population of 50,000 or less. Id. at 503-04; see Tex. Transp. Code Ann. § 281.003 (Vernon 1999). This statute does not affect roads impliedly dedicated to public use before the effective date. Pinebrook Props., Ltd., 77 S.W.3d at 504; Graff v. Whittle, 947 S.W.2d 629, 635 (Tex.App.-Texarkana 1997, writ denied). It is clear Tyson Road was impliedly dedicated before the effective date of this statute. See Act of June 1, 1981, 67th Leg., R.S., ch. 613, 1981 Tex. Gen. Laws 2412-13, amended by Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025, 1195-96.

      . The evidence at tried showed the road had been used by the public since the 1920s, had been fenced on both sides, and had been maintained by the county. Reed testified the road had been fenced on both sides since he was a child. While the county did maintain Tyson Road years ago, it ceased maintaining the road sometime in the 1950s or 1960s. Shepard Sanders and Josie Reed, Reed’s cousin, testified the county had maintained the road "a long time ago.” Ben Story, a county commissioner from 1981 until around 1995, testified the county had not maintained Tyson Road during his time as commissioner.

      . As we stated in Graff and Reed, if the origin of the road is shrouded, in obscurity and there is no contrary showing of the owner's intention, long and continuous public use raises a presumption of dedication. Graff, 947 S.W.2d at 637; Reed, 155 S.W.3d 666. Even if the presumption supplies only the landowner’s intent to dedicate the road to public use, we believe sufficient evidence exists to support the remaining elements. The obscurity shrouding the origin of Tyson Road also shrouds the identity and intent of the owner or owners who originally established the roadway. Logically, the obscurity also shrouds any assessment of any previous owner’s competency. Since there was no claim or evidence of incompetency of any prior owners, we conclude that element was satisfied. The public’s long and continued use of Tyson Road, without contrary evidence, also provides sufficient evidence that the public accepted Tyson Road and satisfies the public benefit elements. Acceptance of a dedication can be implied from public use of the land. Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex.1978); Stein, 53 S.W.3d at 41-42; Gutierrez, 951 S.W.2d at 842; see Camilla Twin Harbor Volunteer Fire Dep’t v. Plemmons, 998 S.W.2d 413, 415 (Tex.App.-Beaumont 1999, pet. denied). Because Reed introduced evidence the public continuously used the road for over seventy years, legally and factually sufficient evidence exists that the public accepted the implied dedication of Tyson Road. Thus, even if the presumption supplies only the first element involving the intention of the landowner, sufficient evidence exists for the remaining elements of implied dedication.

      . We note Reed testified there had been a gate on Tyson Road for years, but it had not been locked. Although the gate could be evidence the road had been abandoned, the evidence at trial did not establish that the gate had been on the road for at least twenty years. Rose testified there were no gates on the road when he used the road in the 1920s and 1930s.

      . We note the trial court orally awarded $15,000.00 in punitive damages at the conclusion of the trial. The judgment, however, does not include any award of punitive damages.

      . Reed testified to the specific damages addressed above and agreed with his attorney that his total damages amounted to approximately $3,000.00. When asked if "that puts it up to almost about a $3,000.00 out of pocket loss,” Reed testified, "That’s about right.”


author: Justice CARTER.

text:
    KW CONSTRUCTION, Appellant, v. STEPHENS & SONS CONCRETE CONTRACTORS, INC., Appellee.
    No. 06-04-00093-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted April 13, 2005.
    Decided June 8, 2005.

      Philip D. Alexander, Curtis, Alexander, McCampbell & Morris, PC, Emory, for appellant.
    Elizann Carroll, Juneau, Boll & Ward, Addison, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

KW Construction appeals the judgment entered following a bench trial in which plaintiff, Stephens & Sons Concrete Contractors, Inc., recovered $12,500.00, plus pre- and post-judgment interest and $7,500.00 in attorney’s fees in its suit for breach of an oral contract or, in the alternative, under a theory of quantum meruit. Stephens & Sons alleged there existed an oral contract between the parties in which the parties agreed that Stephens & Sons would repair and construct certain concrete structures under a general contract awarded to KW Construction by the Sabine River Authority (SRA) to construct an office complex in Rains County. After a payment dispute went unresolved, Stephens & Sons brought suit in Lamar County. KW Construction unsuccessfully moved the trial court to transfer the case to Rains County. On appeal, KW Construction complains of the trial court’s refusal to transfer the case. KW Construction also contends there is legally and factually insufficient evidence to support both the conclusion that an oral contract was formed between the parties and the trial court’s finding of $12,500.00 as the reasonable value of work performed. We will affirm.

I. FACTUAL AND PROCEDURAL HISTORY

KW Construction is a sole proprietorship owned by Kenneth Brown, with its primary place of business in Rains County. KW Construction was awarded the general contract for the SRA to build an office complex in Rains County. The original concrete subcontractor left the job before completion of the concrete work. The work that had been completed to that point was unacceptable because it was not level.

In 1999, Brown contacted Todd Stephens of Stephens & Sons Concrete Contractors, Inc. to discuss the task of repairing and completing the concrete work. Brothers Todd and Paul Stephens traveled from the company’s office in Lamar County to meet with Brown and Steve Hunt and to assess the project at the job site in Rains County. After the site inspection, the men met at Brown’s house in Rains County to further discuss the project.

Initially, Stephens and Brown agreed that Stephens & Sons would “cap” the defective slab, if the SRA approved the procedure, and complete the remaining concrete work. The “capping” process would have taken approximately two to three days to complete. According to Stephens’ testimony, he and Brown agreed that the price associated with the “capping” process would not exceed $18,000.00, the amount representing the remainder of the amount KW Construction had budgeted for construction work on the SRA project. A few days later, Brown' called Stephens at his office in Lamar County to inform him that the SRA had rejected the “capping” process as a repair. During this telephone conversation, the two agreed instead that Stephens & Sons would grind and level the existing 5,568 square feet of defective concrete slab, a more difficult and more expensive process than “capping.” In addition, Stephens & Sons was to pour- approximately 200 square feet of structural slab; pour 2,352 square feet of sidewalk, mechanical pad, and porch; and pour 916 linear feet of curb and gutter.

A dispute concerning payment arose and, eventually, Stephens & Sons left the job incomplete for nonpayment, having substantially completed the grinding and leveling of the defective concrete slab and having poured approximately 100 linear feet of curb and gutter, 215 square feet of porch, and 200 square feet of structural slab. The payment dispute continued and resulted in litigation. Stephens & Sons brought suit in Lamar County against KW Construction to recover funds owed to Stephens & Sons under an oral contract or, alternatively, under a theory of quantum meruit. KW Construction unsuccessfully moved the trial court to transfer the case to Rains County.

II. VENUE

A. Permissive Venue and Review of Ruling on Motion To Transfer Venue

First, we note that a substantial part of the events or omissions giving rise to a claim may occur in more than one county. See S. County Mut Ins. Co. v. Ochoa, 19 S.W.Sd 452, 458 (Tex.App.-Corpus Christi 2000, no pet.). Plaintiffs are accorded the right to choose venue first as long as suit is initially filed in a county of proper venue. Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259, 261 (Tex.1994). When the county in which the plaintiff files suit is at least a permissive venue and when no mandatory provision applies, the plaintiffs venue choice cannot be disturbed. See id.; Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 677 (Tex.App.-Austin 2003, no pet.). If the parties’ dispute involves two counties of permissive venue, transferring the case is improper. Wilson, 886 S.W.2d at 262.

Once the plaintiffs choice of venue is challenged, the plaintiff has the burden to present prima facie proof that venue is maintainable in the county of suit. Tex.R. Civ. P. 87(2)(a), (3)(a); In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.1999). The plaintiffs prima facie proof is not subject to rebuttal, cross-examination, impeachment, or disproof. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex.1993); Chiriboga, 96 S.W.3d at 678. When ruling on a motion to transfer venue, the trial court must assume the pleadings are true and decide based on the pleadings and affidavits submitted by the parties. Tex.R. Civ. P. 87; Chiriboga, 96 S.W.3d at 678. Venue questions are to be decided based on the “facts existing at the time the cause of action that is the basis of the suit accrued.” Tex. Civ. PRAC. & Rem.Code Ann. § 15.006 (Vernon 2002). The action must remain in the county of suit if the plaintiff selected a county of proper venue and supported the selection with prima facie proof supporting venue in that county. Wilson, 886 S.W.2dat261.

In such cases involving disputes over permissive venue, we review the entire record for any probative evidence that venue was proper in the original county of suit. Wilson, 886 S.W.2d at 262; Chiriboga, 96 S.W.3d at 677. In reviewing a venue decision, we must conduct an independent review of the entire record, including, where applicable, the trial on the merits, to determine whether any probative evidence supports the trial court’s venue decision. Tex. Civ. PRAC. & Rem.Code Ann. § 15.064(b) (Vernon 2002). We review the record in the light most favorable to the venue ruling; however, we give no deference to the trial court’s application of the law. Id. If there is any probative evidence supporting venue in the county where judgment was rendered, we must affirm the trial court’s ruling. Bonham State Bank v. Beadle, 907 S.W.2d 465, 471 (Tex.1995); Chiriboga, 96 S.W.3d at 677-78. If no such evidence exists, we must reverse the case. See Tex. Civ. Prac. & Rem.Code Ann. § 15.064(b); Ruiz, 868 S.W.2d at 758; Chiriboga, 96 S.W.3d at 678.

An appellate court cannot review the sufficiency of the evidence supporting the plaintiffs venue choice. Ruiz, 868 S.W.2d at 758. If the record contains any probative evidence supporting venue in the county of suit, a transfer is improper even if the evidence preponderates to the contrary. Wilson, 886 S.W.2d at 262. However, conclusive evidence to the contrary can destroy the “probative evidence.” See Ruiz, 868 S.W.2d at 757; Ckiriboga, 96 S.W.3d at 678.

In this case, no mandatory venue provision applies. Therefore, venue here is governed by the general venue rule contained in Section 15.002(a):

(a) Except as otherwise provided by this subchapter or Subchapter B or C, all lawsuits shall be brought:
(1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
(2) in the county of defendant’s residence at the time the cause of action accrued if defendant is a natural person;
(3) in the county of the defendant’s principal office in this state, if the defendant is not a natural person; or
(4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.

Tex. Civ. Prac. & RejiCode Ann. § 15.002 (Vernon 2002). The language pertinent to the venue issue before us is found in Section 15.002(a)(1), which provides that venue is proper in the county where “all or a substantial part of the events or omissions giving rise to the claim occurred.” Tex. Civ. Prac. & Rem.Code Ann. § 15.002(a)(1). We must determine whether the record contains any probative evidence to support the trial court’s implied ruling that “all or a substantial part of’ the events giving rise to this suit occurred in Lamar County.

B. Venue Facts

KW Construction maintains its place of business in Rains County; Stephens & Sons maintains its place of business in Lamar County. The record is clear that Brown first contacted Stephens & Sons by placing a telephone call to Stephens in Lamar County. After the initial telephone conversation, the Stephens brothers traveled to Rains County to assess the project. Brown then again called Stephens’ office in Lamar County. The parties disagree as to whether they agreed to a price during this telephone conversation and, if so, on what price they agreed. But it is undisputed that, during this telephone call, the men came to an agreement as to the scope of the work to be done, since Brown informed Stephens that the SRA rejected the “capping” proposal. Instead, the two men agreed during this conversation that Stephens & Sons would grind and level the defective slab.

Subsequently, all the concrete work was performed in Rains County. By affidavit, Stephens stated it was agreed that payment was to be sent to Stephens & Sons in Lamar County. Brown sent to the Stephens & Sons office in Lamar County a check in the amount of $4,717.00 bearing the notation “paid in full.” Stephens returned the check. The trial court concluded that the parties agreed that payment would be made in Lamar County.

C. Former Venue Provision: Accrual of a Cause of Action

Before 1995, the relevant venue provision did not contain a substantiality requirement and, instead, pointed to “the county in which all or part of the cause of action accrued.” See Krchnak v. Fulton, 759 S.W.2d 524, 525 (Tex.App.-Amarillo 1988, writ denied). A “cause of action” consists of a plaintiffs primary right and the defendant’s act or omission which violates that right. Id. at 526. A “cause of action” comprises every fact which is necessary for a plaintiff to prove in order to obtain judgment. Id. The accrual of a cause of action means the right to institute and maintain a suit, and whenever one person may sue another, a cause of action has accrued. Id. The court in Krchnak noted that, as early as 1854, the Texas Supreme Court held that, in a suit for breach of contract, the contract, its performance, and its breach were all essential parts of the cause of action. Phillio v. Blythe, 12 Tex. 124, 127-28 (1854); Krchnak, 759 S.W.2d at 526.

To illustrate, we look to a case that, although decided under the “all or part” language of the pre-1995 venue provisions, is factually analogous to the case before us. In Krchnak, plaintiff Fulton and defendant Krchnak entered into an oral agreement that Fulton would board Krchnak’s mare. The mare was to be boarded and services rendered in Lee County. Krchnak, 759 S.W.2d at 526. The defendant was a resident of Austin County. Id. After Krchnak’s failure to pay for Fulton’s services, Fulton brought suit in Lubbock County, alleging that the agreement was entered into in Lubbock County and that the agreement provided that payment was to be made in Lubbock County. Id.

The essential elements, then, of Fulton’s cause of action were that an agreement existed under which services were rendered by appellee for which payment was not made by appellant. Id. The court went on to conclude that “[a] part of that underlying contract would be an agreement that payment would be made in Lubbock County.” Id. Venue was proper in Lubbock County because the Fulton’s pri-ma facie proof showed that the agreement to pay for his services was entered into in Lubbock County and that the contract provided for payment to be made in Lubbock County. Id. Again, under the former general rule, the court held that the “cause of action accrued” in Lubbock County. Id.; see also Whitworth v. Kuhn, 734 S.W.2d 108, 111 (Tex.App.-Austin 1987, no writ) (cause of action for breach of lease accrued in county where rental payments to be made, although leased premises were in different county).

Both parties rely to an extent on the opinion in Krchnak. KW Construction distinguishes the rule in Krchnak to support its argument that the place to which KW Construction sent partial payment is not an element of Stephens & Sons’ cause of action. Going further, KW Construction points out that no longer is any fact connected to the lawsuit sufficient to establish venue as it was under the venue scheme prior to the 1995 amendments. See Chiñboga, 96 S.W.3d at 681. Stephens & Sons relies on the rule in Krchnak for the proposition that, if payment under a contract is to be made in a certain county but a party fails to make payment, a cause of action for breach of contract accrues in the county in which payment was to be received. See Krchnak, 759 S.W.2d at 526. Stephens & Sons argue that, according to Krchnak, the telephone discussions in which Brown first contacted Stephens & Sons and in which the two came to an agreement regarding the scope of the work to be done and Brown’s later failure to pay Stephens & Sons in accordance with the terms of the agreement constitute a substantial part of the events giving rise to the breach of contract claim.

From Krchnak, we know that a part of a cause of action accrues in the county in which the agreement was made and payment was to be made. Now we must measure those events in terms of Section 15.002’s substantiality requirement. In other words, we must determine whether those events constitute a substantial part of the plaintiffs claim.

A more recent case, one decided under the amended venue provision, lends us guidance in this inquiry. See Kay v. N. Tex. Rod & Custom, 109 S.W.3d 924, 926 (Tex.App.-Dallas 2003, no pet.). Kay sued North Texas Rod & Custom in Dallas County for breach of contract. Id. at 925. North Texas Rod & Custom successfully moved the trial court to transfer the case to Kaufman County, the county in which North Texas Rod & Custom’s place of business was located. Id. at 926. The trial court concluded no fact supported Kay’s choice of venue. See id. After reviewing the record, the Dallas Court of Appeals agreed, concluding that no evidence in the record supported Kay’s allegation that North Texas Rod & Custom solicited Kay’s business by placing a telephone call to Kay’s place of business in Dallas County. Id. That being the case, the trial court’s order transferring the case to Kaufman County was proper. Id. The implied holding of Kay is that, had there been evidence to support Kay’s allegation that North Texas Rod & Custom did contact him by placing a telephone call to Dallas County, such evidence would have been sufficient to support venue in Dallas County, even under the more rigorous standard in the post-1995 general venue scheme. See id.

D. Venue Proper in Lamar County

Applying reasoning similar to that in Krchnak to the converse factual situation as that presented in Kay, we hold that the record before us contains probative evidence to support the trial court’s implied ruling that “all or a substantial part of’ the events giving rise to this suit occurred in Lamar County. KW Construction first contacted Stephens & Sons in Lamar County in November 2000 to seek its services. Later, Brown again called Stephens in Lamar County to clarify the scope of work to be done. According to Stephens’ testimony, during this conversation, the parties also agreed that the price would be determined on a “time and materials” basis. Further, Stephens stated by affidavit that payment was to be made by Brown to Stephens in Lamar County. The fact that Brown sent a later-rejected $4,717.00 check to Stephens in Lamar County as an attempted payment in full supports the conclusion that payment was to be made to Stephens & Sons in Lamar County.

The elements of a breach of contract claim are (1) existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages to the plaintiff resulting from the breach. Id. at 927. So, in terms of the venue provision and Stephens’ claim for breach of contract, the evidence here connects at least two elements — the existence of a contract and the defendant’s breach— to Lamar County. We conclude events or omissions pertaining to two elements of Stephens & Sons’ breach of contract claim are sufficient to qualify as a “substantial part” of the plaintiffs claim and sufficiently connect the claim to Lamar County. We hold that these facts constitute probative evidence supporting venue in Lamar County. We, therefore, must not disturb the trial court’s denial of Brown’s motion to transfer venue.

III. SUFFICIENCY OF THE EVIDENCE TO SUPPORT FINDING OF A CONTRACT

The trial court found that there was an agreement formed between KW Construction and Stephens & Sons. After hearing conflicting evidence as to whether the parties agreed on an amount to be paid for the work done, the trial court also arrived at a figure:

2. Stephens & Sons performed good and valuable work on the Project for KW. The reasonable value of that work performed was $12,500.00.

Brown complains there is legally and factually insufficient evidence to support the trial court’s findings.

A. Standards of Review

Findings of fact entered in a case tried to the court are of the same force and dignity as a jury’s answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). The trial court’s findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury’s answer to a jury question. Id.

In reviewing the legal sufficiency of the evidence, we must consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). Anything more than a scintilla of evidence is legally sufficient to support the finding.

Id. When reviewing the factual sufficiency of the evidence, we must consider and weigh all the evidence. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We must uphold the finding unless we conclude the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175,176 (Tex.1986).

B. Elements of an Enforceable Contract

Parties form a binding contract when the following elements are present: (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (8) a meeting of the minds, (4) each party’s consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Buxani v. Nussbaum, 940 S.W.2d 350, 352 (Tex.App.San Antonio 1997, no writ). Brown challenges the evidence to support three of the elements: offer, acceptance, and mutual assent.

1. Sufficient Evidence of Valid Offer

Brown contends the evidence is insufficient to show that he made a valid offer to Stephens & Sons. To prove a valid offer, a party must show (1) the offeror intended to make an offer; (2) the terms of the offer were clear and definite; and (3) the offeror communicated the essential terms of the offer to the offeree. Engelman Irrigation Dist. v. Shields Bros., Inc., 960 S.W.2d 343, 352 (Tex.App.-Corpus Christi 1997, pet. denied). If the terms are so vague that the court cannot determine what the parties intended or what terms to enforce, the contract is unenforceable. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). However, even when the price term is considered lacking, the trial court may imply a reasonable price when all other elements of a contract have been met. See Buxani, 940 S.W.2d at 353. Where the parties have done everything else necessary to make a binding agreement for services, their failure to specify a price does not leave the contract so incomplete that it cannot be enforced. Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 895 (Tex. App.-Dallas 2003, no pet.). In such a case, a presumption arises that a reasonable price was intended. Pennington v. Gurkoff, 899 S.W.2d 767, 770 (Tex.App.-Fort Worth 1995, writ denied).

Stephens and Brown both testified that the parties initially discussed the “capping” option, since it would be a quicker and less expensive remedy. When the SRA rejected that idea, Brown communicated the rejection to Stephens. Stephens and Brown testified that, following this information, the two agreed that grinding and leveling the defective slab would be the method used. Their testimony is also largely consistent in its description of the other work to be done. So, the evidence clearly supports the finding that the two agreed on the scope of the work to be done. Brown concedes there was a oral agreement in his correspondence with Stephens and with KW Construction’s bonding agent. He also reiterates this position throughout his testimony. Considering only the evidence tending to support the trial court’s ruling, we conclude there is legally sufficient evidence to support the trial court’s finding that there was a valid offer made to Stephens & Sons for the repair and completion of the work on KW Construction’s SRA project.

Turning to the factual sufficiency of the evidence, we note that the only major disagreement between the parties is the price to be paid to Stephens & Sons for the work to be done. There is conflicting testimony on both the method of calculation and the amount calculated. Stephens testified that Brown agreed to pay on a time and materials basis. Stephens & Sons billed KW Construction for $15,378.63. Shortly after, in a faxed letter to Stephens & Sons, Brown disputed the calculations and asserted he owed KW Construction $10,237.02. Although it appears Brown used the same time and materials basis in arriving at the $10,237.02, Brown denies such an agreement and stated Stephens agreed that the price would be $12,000.00 for the work to be done. The record also contains testimony from Brown indicating that the parties agreed that the price to grind and level the slab was “not to exceed $18,000.” Brown explained that this figure is consistent with the agreement to pay Stephens & Sons $12,000.00, since the parties agreed that KW Construction would furnish the materials, amounting to approximately $6,000.00. The disagreement and uncertainty as to the price, however, does not necessitate the conclusion that there was no valid offer. Having weighed all the evidence, we conclude that the evidence supporting a finding that there was a valid offer is also factually sufficient.

2. Sufficient Evidence of Acceptance of Offer

In a related argument, Brown maintains that the evidence was insufficient to support a finding that Stephens & Sons accepted the offer. An offeree cannot accept an offer to form a contract unless the terms of the offer are reasonably certain. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex.2000).

For similar reasons as those discussed above, we conclude Stephens could have and, in fact, did accept the offer to repair and complete the concrete work on the SRA project. Considering the evidence tending to support the finding, we see that the two men agreed to essential terms, except for the price. Weighing all the evidence, we conclude the evidence showing a dispute regarding the price term does not invalidate the acceptance of the offer. Since the trial court has the power to imply a reasonable price, the initial discussion and the subsequent clarification that Stephens & Sons would have to grind and level instead of “capping” the defective slab constituted a valid offer which gave Stephens the right to accept or reject the offer and which Stephens accepted. The evidence is legally and factually sufficient to support the finding that Stephens could and did accept the offer made by KW Construction.

3. Sufficient Evidence of Mutual Assent

Finally, Brown argues the evidence was insufficient to support a finding of mutual assent. Specifically, he contends, the parties never came to an understanding as to what Stephens & Sons would be paid for the work to be done.

As we have previously discussed, the missing price term is not fatal to the contract. See Buxani, 940 S.W.2d at 852. To form a binding contract, the parties must have had a “meeting of the minds” on the essential terms of the contract. See id. The element of mutual assent may be inferred from the parties’ conduct. Id. In Buxani, the San Antonio Court of Appeals concluded that the appellants assented to the terms of the oral contract based on their conduct, including the fact that they allowed work to begin and continue without objection or question until the appellees billed them for the work. Id.

The record in this case contains ample evidence that the two men agreed on the essential terms of the contract. With the exception of a price term, the record demonstrates that the two parties agreed Stephens & Sons would repair the defective slab and complete the remaining concrete work. Brown concedes the fact that the two entered into an oral agreement on several occasions. For instance, before any litigation, on May 1, 2001, Brown faxed a letter to Stephens & Sons stating, “I agree that I owe you some monies for the work and material at SRA. .... you had verbally agreed to do at the cost not to exceed $18,000.” Brown included a recalculation of $10,237.02 of the time and materials used. He also acknowledged the contract in a letter to KW Construction’s bonding agent:

[KW Construction] made a verbal agreement with [Stephens & Sons] to furnish labor to correct some work on this project. The work consisted of removing about 300 sq. ft. of concrete from the slab. Leveling the rest of the slab (grind and place a top coat) 5568 sq. ft. There was [sic] some porches, side walk, and curb and gutter that was also to be installed.

In Brown’s affidavit in support of his motion to transfer venue, he acknowledged that the parties formed a contract: “The contract made the basis of Plaintiffs lawsuit was entered into between the parties ... in Rains County.” At trial, Brown states clearly that he “owed the man some money.” Brown also testified: “I’ve done a lot of verbal agreements. This was one of them.” Likewise, Stephens testified that the two agreed on the scope of the work. The parties’ testimony is clear and direct evidence of them intent to be bound.

Similarly, the parties’ conduct supports the finding that they assented to the oral contract. Stephens & Sons commenced performance of the repairs and other concrete work and, as noted in Brown’s daily work log, Brown was aware that Stephens & Sons had begun work. Brown sent correspondence to Stephens & Sons and to KW Construction’s own bonding agent in which he acknowledges the oral contract with Stephens & Sons. He also sent to Stephens & Sons a cheek for $4,717.00, indicating that the two had agreed otherwise but had not come to a clear understanding on the price to be paid. These facts support that the two had mutually-assented to the contract, making the evidence legally sufficient to support such a finding.

Viewing the entire record, we again note the only major conflict in the evidence: the price to be paid to Stephens & Sons. KW Construction seizes on this conflict to support its contention that the evidence is factually insufficient to show mutual assent. Again, the absence of a price term is not necessarily fatal to the element of mutual assent. The trial court had the authority to supply a reasonable term since all other elements of contract are shown. Factually sufficient evidence supports the trial court’s finding that Stephens and Brown mutually assented to a contract.

IV. SUFFICIENCY OF EVIDENCE TO SUPPORT THE TRIAL COURT’S FINDING OF REASONABLE VALUE OF SERVICES

Brown argues that insufficient evidence supports the trial court’s finding that the reasonable value of the work completed by Stephens & Sons was $12,500.00. Since Stephens and Brown had done everything else necessary to make a binding agreement for services, the trial court was permitted to imply a reasonable price term. See Buxani, 940 S.W.2d at 353.

A. Evidence of Reasonable Value of Work Performed

The evidence demonstrates a wide range of figures from which the trial court could determine the reasonable value of the services rendered. KW Construction’s witness, Rodney Hoffman of Hoffman Concrete Construction, who finally completed the concrete work on the SRA project testified that, based on his thirty-two years of experience, it would have been reasonable to charge “somewhere around $5,000 to repair [the defective slab].” He also testified to his opinion on reasonable rates for the other concrete work completed by Stephens & Sons. According to our calculations using Hoffman’s rates, the entire cost of the work done then would have been approximately $6,622.50.

Brown testified that $5,000.00 would be a “fair” price to pay to Stephens & Sons for all the work done. However, in his correspondence to Stephens, he disputed the amount on the invoice and arrived at a price of $10,237.02. Brown also testified that Stephens agreed to do the work for $12,000.00.

The amount for which Stephens sent an invoice was $15,378.63. Of course, there is also evidence referring to “a cost not to exceed $18,000.” So, the evidence before the trial court ranged from $5,000.00 to approximately $15,000.00, and possibly up to $18,000.00.

B. Judgment Within Range of Evidence

The trier of fact has several alternatives available when confronted with conflicting evidence. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). It may believe one witness and disbelieve others. Id. It may resolve inconsistencies in the testimony of any witness. Id. It may accept lay testimony over that of experts. Id.

The trier of fact is also afforded considerable discretion in evaluating opinion testimony on the issue of damages. Id. The fact that Hoffman testified as an expert is not controlling. It is well established in this State that opinion testimony does not establish any material fact as a matter of law. Hood v. Tex. Indem. Ins. Co., 146 Tex. 522, 524, 209 S.W.2d 345, 346 (1948). Additionally, the record contains evidence tending to discredit or undermine Hoffman’s testimony. He testified that he did not observe the defective slab before Stephens & Sons completed its work. Hoffman testified he based the $5,000.00 figure to repair the slab on the information he was told about the defects in the slab. This testimony certainly raised questions concerning the credibility and weight to be given to Hoffman’s testimony, and those questions were for the trier of fact to pass upon. See McGalliard, 722 S.W.2d at 697.

Utilizing these principles, the trier of fact has the discretion to award damages within the range of evidence presented at trial. City of Houston v. Harris County Outdoor Adver. Ass% 879 S.W.2d 322, 334 (Tex.App.-Houston [14th Dist.] 1994, writ denied). The trial court can form its own opinion from other evidence and by utilizing its own experience and common knowledge. McGalliard, 722 S.W.2d at 697; Coffee v. City of Alvin, 641 S.W.2d 597 (Tex.App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.). We cannot speculate as to the manner in which the trier of fact reached its award. See Peterson v. Reyna, 908 S.W.2d 472, 476 (Tex.App.-San Antonio 1995), modified on other grounds, 920 S.W.2d 288 (Tex.1996).

Since the amount of $12,500.00 is within the range of evidence presented to the trial court and since that amount is not against the great weight and preponderance of the evidence, we conclude there is legally and factually sufficient evidence to support the trial court’s assessment of reasonable value of services and overrule KW Construction’s third point of error.

Y. CONCLUSION

Having determined that the trial court properly denied KW Construction’s motion to transfer venue and that the evidence was legally and factually sufficient to support the trial court’s finding that the parties entered into an oral contract and the reasonable value of the work performed was $12,500.00, we overrule KW Construction’s point of error. Accordingly, we affirm the trial court’s judgment.

      . Paul Stephens testified his involvement in this project was limited to the interaction during that first meeting. For this reason, subsequent references to "Stephens" will mean Todd Stephens unless otherwise noted.

      . Specifically, the Texas Supreme Court held "an appellate court must reverse (there cannot be harmless error) if other evidence in the record, even evidence adduced after venue was determined, destroys the prima facie proof on. which the trial court relied.” Ruiz, 868 S.W.2d at 757.

      . See Tex Civ. Prac. & Rem.Code Ann. §§ 15.011-.020 (Vernon 2002).

      . Additionally, the reasoning in Nat’l Family Care Life Ins. Co. v. Fletcher, 57 S.W.3d 662, 665 (Tex.App.-Beaumont 2001, pet. denied), supports the conclusion that the place of payment is a relevant consideration in reviewing venue issues involving suits for breaches of contract. In Fletcher, the court points out that evidence demonstrated, inter alia, that "appellants issued and [the appellee] received some commission checks in [the county in which the appellee brought suit]” which, along with evidence of other connections to the county in which plaintiff brought suit, was sufficient to constitute probative value to support the finding that venue was proper in the plaintiff's choice of venue. Id. at 665-66.

      . Hoffman testified that the reasonable rate for labor only on curb and gutter work was $6.00 per linear foot. Labor only on sidewalk work would have been $1.50 per square foot. And according to Hoffman, the reasonable rate for labor on structural slab work would have been approximately $3.50 per square foot. Since Stephens & Sons completed 100 linear feet of curb and gutter, 215 square feet of sidewalk, and 200 square feet of structural slab, the cost, according to Hoffman’s labor-only rates, would have been $1,622.50. Including the grinding and leveling figure Hoffman stated at $5,000.00, Hoffman's testimony advances a figure of approximately $6,622.50 as a reasonable value of services performed.

      . An agreement to render a performance at a price that shall not exceed a specified amount is valid as an agreement to render the performance at the stated maximum. Norton v. Menard Lumber Co., 523 S.W.2d 791, 793 (Tex.Civ.App.-San Antonio 1975, no writ). Here, however, Stephens does not advance the argument in such terms and, it appears, did not seek to recover the $18,000.00 maximum amount.