author: ANN CRAWFORD McCLURE, Justice. SUSAN LARSEN, Justice,

text:
    Paige EILAND and Elaine Eiland, Appellants, v. TURPIN, SMITH, DYER, SAXE & McDONALD and Dick Saxe, Individually, Appellees.
    No. 08-98-00279-CV.
    Court of Appeals of Texas, El Paso.
    March 30, 2000.

      A. Craig Eiland, Attorney at Law, P.C., Houston, for Appellants.
    Terry Rhoads, Julia E. Vaughan, Cotton, Bledsoe, Tighe & Dawson, Midland, for Appellees.
    Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Paige Eiland (“Paige”) and his wife appeal from the summary judgment entered against Mm on Ms legal malpractice claim against the law firm of Turpin, Smith, Dyer, Saxe & McDonald (“Turpin-Smith”). The sole issue presented was the proper application of the Hughes/Murphy rules to the affirmative defense of limitations. Because Paige’s origmal petition was not filed withm the limitations period, we affirm the judgment of the trial court.

SUMMARY OF THE EVIDENCE

Paige Eiland and his brother, Merwyn Eiland (“Merwyn”), were partners in a general partnership referred to as “Eiland & Eiland.” Eiland & Eiland invested in several limited partnersMp oil and gas ventures. In July 1981, Eiland & Eiland formed a limited partnership, “EE & M,” in order to mvest m a partnership of Carlson Petroleum called “Durango B.” EE <& M secured a $800,000 letter of credit and Eiland & Eiland guaranteed $200,000 of the $300,000.

Merwyn experienced financial difficulties and on September 17, 1984, filed for bankruptcy relief pursuant to Chapter Eleven of the Bankruptcy Code. As a result, he was unable to meet his financial obligations to Eiland & Eiland. In response, Paige retained Turpin-Smith to handle the matters concermng Merwyn’s insolvency. For a period of time, Paige made payments on behalf of Eiland & Eiland covering installments due on the $200,000 guarantee of the letter of credit. In November 1987, Paige attempted to pay only Ms one-half share of Eiland & Ei-land’s obligation, and in response Carlson Petroleum called the note due. The note was eventually paid by Paige.

During the course of the representation, Dick Saxe of Turpin-Smith advised Paige that he had a claim against Merwyn to recover the amounts paid on his behalf. On January 14, 1987, Merwyn filed a plan for reorganization in his bankruptcy proceeding. Under the Bankruptcy Code, any creditor asserting a- claim against a debtor had to file a proof of claim or suffer discharge of the debt. Turpin-Smith did not file a proof of claim by the June 30, 1987 deadline. Consequently, on February 22, 1988, Merwyn’s plan for reorgam-zation was confirmed without a valid claim for the money expended by Paige on Mer-wyn’s behalf.

In the spring of 1989, Richard Davis, another attorney with Turpin-Smith, began handling Paige’s file. Davis filed a lawsuit in state court seeking to recover, under a contribution theory, the amounts paid by Paige on Merwyn’s share of the Eiland & Eiland letter of credit. Suit was filed in Martin County on July 19, 1989. On March 2, 1990, Merwyn filed an adversary proceeding in the bankruptcy court (“Adversary I”) asserting that he was discharged from the obligation claimed by Ms brother Paige. Sometime in July 1990, Davis left Turpin-Smith. Paige terminated his relationship with the firm and moved his file to Davis’s new office.

On July 31, 1991, the bankruptcy court ruled in “Adversary I” that Paige “failed to timely file a proof of claim,” and thus Ms claim against Merwyn in the Martin County suit was discharged under Section 1141 of the Bankruptcy Code. However, the bankruptcy court deferred to the Martin County district court the state law procedural question of whether Merwyn had waived Ms affirmative defense of discharge by failing to timely plead it. Thereafter, Paige gave notice of Ms malpractice claim against Turpin-Smith in a letter dated October 10, 1991. In his letter, Paige asserted that Turpin-Smith failed to properly file a proof of claim in the bankruptcy proceeding. The bankruptcy court entered a final order in “Adversary I” on November 15,1991.

On May 6, 1993, the Martin County district court ruled on the issue deferred to it by the bankruptcy court, granting partial summary judgment in favor of Merwyn and finding that he had not waived his affirmative defense of bankruptcy discharge. On May 7,1993, Merwyn instituted a second proceeding in bankruptcy court (“Adversary II”). Relying on the partial summary judgment granted in the Martin County lawsuit, Merwyn asked the bankruptcy court to order Paige to dismiss the Martin County lawsuit. Paige and Merwyn settled the controversy on June 10, 1994, and Paige non-suited the action on July 11,1994.

Paige filed his malpractice claim on August 31, 1995. Turpin-Smith moved for summary judgment based upon the affirmative defense of limitations. Without specifying any grounds for its order, the trial court granted Turpin-Smith’s motion.

STANDARD OF REVIEW

We review this appeal under the three-prong standard enunciated mNixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). The burden rests on the movant to demonstrate that there are no issues of material fact and that it is entitled to judgment as a matter of law. We take as true all evidence favorable to non-movant, indulge every reasonable inference, and resolve all doubts in favor of the non-movant. Id. When a summary judgment is based on an affirmative defense, such as limitations, the movant must conclusively establish that the limitations period expired before the suit was filed. See Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 80-81 (Tex.1989). When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for its ruling, an appellate court will affirm a summary judgment if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

LIMITATIONS

In his sole point of error, Paige argues that the trial court erroneously found that the statute of limitations barred his malpractice claim. Relying upon Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex.1991), Paige asserts that the limitations period was tolled and did not begin to run until August 8, 1994, the date that the order non-suiting the.Martin County action became final and non-ap-pealable. Although Paige complains that the trial court did not take his version of the facts as true, an independent review of the record reveals that the parties are in agreement about the basic facts. What remains is solely a dispute about the law governing this case. The parties agree that Paige’s claims for malpractice are governed by a two-year statute of limitations. Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988), citing Tex.Civ.Prac. & Rem. Code Ann. § 16.003 (Vernon 1986).

Legal Injury

The accrual of a cause of action is a question of law, which we review de novo. Willis, 760 S.W.2d at 644. A cause of action for legal malpractice accrues when the client sustains a legal injury. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996). The general rule is that legal injury occurs when the tort is committed, notwithstanding the fact that the damages or their extent are not ascertainable until a later date. Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex.1967); Sunwest Bank of El Paso v. Basil Smith Engineering Co., Inc., 939 S.W.2d 671, 674 (Tex.App. — El Paso 1996, writ denied). Under ordinary circumstances, the statute of limitations begins to run at the moment of the injury. Pack v. Taylor, 584 S.W.2d 484, 486 (Tex.Civ.App. — Fort Worth 1979, writ ref'd n.r.e.). The date of the legal injury is not to be confused with the time it is discovered or the date when actual damage is fully ascertained. Id. In a legal malpractice case, the attorney’s conduct must raise only a risk of harm to the client’s legally protected interest for the tort to accrue. Zidell v. Bird, 692 S.W.2d 550, 557 (Tex.App. — Austin 1985, no writ).

The undisputed facts establish that Paige hired Turpin-Smith to pursue his claim for reimbursement from his insolvent brother, Merwyn. Merwyn filed a plan for reorganization, which required that all creditors be listed or their claims discharged. Turpin-Smith did not file a proof of claim by the mandatory deadline of June 30, 1987. Accepting as true Paige’s contention that this constituted malpractice, we conclude that Paige sustained legal injury when the bankruptcy court no longer had the power to modify the reorganization plan so as to include a late-filed proof of claim. For the sake of this appeal, we will assume that date to be February 22, 1988, when Merwyn’s plan for reorganization was confirmed.

The Discovery Rule

While under ordinary circumstances the limitations period would run from the date of legal injury, the discovery rule has been applied to legal malpractice cases. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990). The discovery rule tolls the running of the statute of limitations until the injured party discovers or reasonably should have discovered the facts establishing his cause of action. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990); Haussecker v. Childs, 985 S.W.2d 930, 934 (Tex.App. — El Paso 1996), aff'd, 974 S.W.2d 31 (Tex.1998). The undisputed facts establish that Paige was aware of the bankruptcy court’s July 1991 ruling in Adversary I, which established that Paige’s claims were barred due to his failure to file a proof of claim. Additionally, the record reflects a letter dated October 10, 1991, in which Paige asserts that Turpin-Smith breached its duty by not filing a proof of claim. From this evidence, we conclude that Paige was aware of the facts establishing his cause of action against Turpin-Smith, no later than October 1991.

The Hughes Rule

Ordinarily the limitations period for a legal malpractice claim would run from the moment that the legal injury is discovered, but Paige contends his case is governed by the specialized tolling rule established in Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex.1991). In Hughes, the Supreme Court held that “when an attorney commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on the malpractice claim against the attorney is tolled until all appeals on the underlying claim are exhausted.” Id at 157. The Hughes rule seeks to avoid the harsh results that the legal injury and discovery rules can create. These rules may force a client to bring suit against an attorney when the client discovers the injury regardless of whether the attorney is still prosecuting or defending the client’s claim. Id. at 156-57. The result when the attorney is still prosecuting the client’s underlying claim is that the client is forced to assert “inherently inconsistent litigation postures,” arguing the propriety of counsel’s actions in the underlying suit and impropriety in the malpractice suit. Id. Thus, the Hughes Court concluded that the limitations period should be tolled for the second cause of action “because the viability of the second cause of action depends on the outcome of the first.” Id. at 157.

Murphy’s Law

In a subsequent case, the Supreme Court cautioned that Hughes is not so broad as to apply to any situation requiring a client to choose between inconsistent positions; rather, it is “limited to claims against a lawyer arising out of litigation where the party must not only assert inconsistent positions but must also obtain new counsel.” Murphy v. Campbell, 964 S.W.2d 265, 272-73 (Tex.1997). According to the Murphy Court’s interpretation of Hughes, the mere fact that a client must take inconsistent litigation positions is not dispositive of when the tolling rule applies. The decisive element is whether the client is forced to obtain new counsel. As the Murphy Court explained:

We expressly limited the rule in Hughes to attorney malpractice in the prosecution or defense of a claim that results in litigation. In such circumstances, to require the client to file a malpractice claim against the lawyer representing him in another case would necessarily make it virtually impossible for the lawyer to continue his representation. The client’s only alternative would be to obtain other counsel. That consideration, coupled with the necessity of taking inconsistent positions, persuaded us to adopt a tolling rule in Hughes. We restricted it to the circumstances presented.

Id. at 272.

The Aftermath of the Hughes/Murphy Rules

Several cases have emerged in which the intermediate courts have struggled with the proper application of the Hughes/Murphy rules. In Guillot v. Smith, the issue was whether limitations was tolled during the. period following the act of malpractice if the attorney continued to represent the client in a bankruptcy proceeding. Guillot v. Smith, 998 S.W.2d 630 (Tex.App.— Houston [1st Dist.] 1999, no pet.). Guillot owed substantial amounts to the Internal Revenue Service and retained Smith to represent her in bankruptcy proceedings. Smith advised Guillot to file for Chapter 13 protection and all went well for about two years until Guillot was unable to make the payments under the Chapter 13 plan. In November 1994, Guillot retained Smith again. Smith advised her to convert from Chapter 13 to a Chapter 7 proceeding. According to Smith, this would result in a discharge of her remaining tax debt “except $2,300.00 for later years.” Guillot followed this advice, which turned out to be erroneous. On June 26, 1995, Guillot received notice that the IRS intended to levy on her property. Smith advised Guil-lot of his mistake, but told her he could remedy the problem. Between 1995 and 1996, Smith continued to represent Guillot. Eventually, Smith advised her to file another Chapter 13 plan, but Guillot rejected the advice and sued Smith instead. Suit was filed on November 4, 1997. Smith defended on limitations, arguing that the suit was filed more than two years after the discovery date of June 26, 1995. The trial court granted his motion for summary judgment.

The First District Court of Appeals reversed, concluding that the facts presented the classic Hughes scenario.

[I]f we held that the statute of limitations began to run from the date Guillot received the letter from the IRS, she would have been in a difficult position. At the time the statute of limitations would have run under the discovery rule, Guillot’s Chapter 7 bankruptcy proceeding and her dealings with the IRS had not been resolved. Thus, Guillot would have been forced to choose between Smith’s continued representation and discharging Smith in order to file a malpractice claim against him. See Murphy, 964 S.W.2d at 272. As a result, Guillot would have been forced into taking inconsistent positions in the two proceedings. Id.; Hughes, 821 S.W.2d at 157. This is the exact situation the Supreme Court intended to prevent in Hughes.

Guillot, 998 S.W.2d at 633. If an attorney commits malpractice while litigating a claim of the complainant, the complainant may sit on his hands and do nothing until all appeals are exhausted. Here, however, Paige terminated his relationship with Turpin-Smith in July of 1990 and discovered his injury no later than October 1991. This was nearly four years before he filed his malpractice suit. Can Paige avail himself of Hughes after he fired his allegedly negligent attorneys and after he became aware of their negligence? Guillot doesn’t answer this question. The next case does.

In Swift v. Seidler, 988 S.W.2d 860 (Tex.App. — San Antonio 1999, pet. denied), the issue was whether Hughes applied when a client had fired his attorney and knew about the malpractice. In 1990, Swift hired Seidler to handle his bankruptcy application. On January 15, 1991, the bankruptcy court denied an exemption for Swift’s Individual Retirement Account; on January 30, it orally denied his petition for discharge. On January 8, 1992, Swift wrote a letter expressing his displeasure with Seidler’s services and then fired him in March. On April 16, 1992, Swift joined a malpractice suit filed by the bankruptcy trustee in bankruptcy court; he also filed suit for malpractice in Bexar County. Swift nonsuited the state claim on September 15, 1992 and dismissed his bankruptcy claim without prejudice on January 25, 1993. The trustee pursued the suit and settled. On October 8, 1993, the Fifth Circuit affirmed the denial of discharge, and in a later opinion upheld the denial of the exemption for Swift’s IRA. Swift then filed a new malpractice claim on October 6, 1995. Swift argued that he timely filed suit because he filed within two years of the Fifth Circuit’s rulings. The San Antonio Court rejected Swift’s attempt to fit within Hughes.

The circumstances of Swift’s case are dissimilar from those inHughes. Although the bankruptcy matter in which Seidler originally represented Swift ultimately resulted in litigation, Seidler did not represent Swift in that litigation, unlike the lawyers in Hughes. Thus, Swift would not have been put in the precarious position of calling his lawyer as a witness in bankruptcy court; Sei-dler was no longer his lawyer. Furthermore, to avoid taking inconsistent positions, Swift could have moved to abate the malpractice case pending resolution of the bankruptcy appeal. See Murphy, 964 S.W.2d at 272.

Swift, 988 S.W.2d at 862. We find this ease to be more closely analogous. Swift fired his attorney and was aware of the malpractice, but he did nothing. Swift argued that he could “ride” under the pending bankruptcy appeals on the denial of the discharge and IRA exemption. According to the court, Swift misconstrued the Hughes language to make the “inconsistent litigation postures” the dispositive legal element. Under this analysis, a complaining client may only avail himself of the special tolling rule if the client can show that he had a direct and present conflict with suing his attorney at the time in question. Under the facts presented, no conflict existed because Swift had already fired his attorney. Swift could have sued Seidler in state court and still could have called Seidler as a witness in the bankruptcy court. Swift, 988 S.W.2d at 862.

Similarly, in Norman v. Yzaguirre & Chapa, 988 S.W.2d 460 (Tex.App. — Corpus Christi 1999, no pet.), the issue was whether limitations were tolled after the client employed new counsel to represent him in the underlying action. In September 1992, Norman retained Yzaguirre & Chapa (Chapa) to pursue his personal injury claims; however his suit was dismissed on December 3, 1993, due to a failure to respond to requests for admissions. Chapa filed motions for rehearing and new trial, but both were denied on December 29, 1993. In April 1994, Norman fired Chapa and hired new counsel. The new attorneys appealed the rulings, but both were affirmed on August 31, 1995. The application for writ of error was denied on March 21, 1996. On February 14, 1997, Norman, represented by yet another attorney, filed his suit for malpractice against Chapa. Summary judgment was granted on limitations and Norman appealed.

The Corpus Christi Court of Appeals recited the Hughes rule and then discussed the impact of Murphy.

Murphy suggested that an adequate solution to the problem of taking contradictory positions in a malpractice case and underlying case is to request an abatement of the malpractice case pending resolution of the underlying case.... Murphy also understood the Hughes rule to be based on the consideration that requiring a client to file a malpractice claim against the lawyer representing him in another case would make it virtually impossible for the lawyer to continue to represent him.

Norman, 988 S.W.2d at 462. The Court concluded that Murphy expressly limited the Hughes tolling rule “to claims against a lawyer arising out of litigation where the party must not only assert inconsistent positions but must also obtain new counsel.” Norman, 988 S.W.2d at 462

The Court then went on to point out the inconsistencies between Hughes and Murphy, noting that under Murphy, Hughes was wrongly decided. Norman, 988 S.W.2d at 462. In Hughes the attorney withdrew, at the very least, more than two years before the Hugheses filed their malpractice claim. Id. The Court observed that under the “forced to obtain new counsel” element of Murphy, the limitations period should have run from the day the attorney withdrew, and thus the Hugheses claim was time barred. Id. Finally the Court pointed out that “a careful reading of the Hughes opinion fails to uncover any reference to the ‘forced to obtain new counsel’ requirement that Murphy recites.” Id. The Court somewhat reluctantly concluded that Murphy was controlling such that the limitations period would be tolled only where necessary to spare a party from being forced to assume inconsistent positions and from being forced to obtain new counsel. Id. at 462-63. Applying this rule to the facts before them, the Court determined:

In this case, Norman fired [Chapa] and hired new counsel to represent him in April 1994. Under Murphy, limitations began to run on his malpractice case at that time because Norman was no longer in a position where filing a malpractice case against Marsh would force him to obtain new counsel for the underlying case. Therefore, his malpractice case, filed February 14, 1997, was not filed within the two year statute of limitations period, and the trial court properly granted summary judgment against him.

Norman, 988 S.W.2d at 463.

Since Swift and Norman, several more intermediate court decisions have refused to toll the statute of limitations when the client has obtained other counsel. See Apex Towing Co. v. Tolin, 997 S.W.2d 903, 905 (Tex.App. — Beaumont 1999, pet. filed); Nunez v. Caldarola, 2 S.W.3d 755, 759 (Tex.App. — Corpus Christi 1999, pet. filed); Brents v. Haynes & Boone, 10 S.W.3d 772, 777-78 (Tex.App. — Dallas pet filed); but see, Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex.App. — Houston [14th Dist.] 1999, pet. filed). The emerging majority view is that the equitable tolling rule announced in Hughes, and further explained in Murphy, only applies when the client would be forced to choose between suing the attorney who was still litigating the client’s claim, thereby losing the attorney’s services, or allowing limitations to run against the client’s malpractice claim. Murphy, 964 S.W.2d at 272. If the client chooses to retain the services of the attorney in the underlying suit, despite the possible malpractice claim, he may rely on the Hughes tolling rule. If, however, the relationship between the client and attorney comes to an end before the underlying litigation is concluded, the statute of limitations begins to run when the relationship is terminated.

We are aware that the Fourteenth Court of Appeals has taken a contrary position on this issue in Edwards, 9 S.W.3d at 314. There, Edwards brought suit against Kaye for the erroneous advice that a supersedeas bond was unnecessary following the entry of judgment against Edwards in the underlying case. Kaye continued to represent Edwards in the appeal from the adverse judgment, but his relationship with Edwards began to deteriorate over the fees Edwards owed him. Kaye advised Edwards that he needed to retain a new attorney once the court of appeals issued its ruling. The First Court of Appeals issued a judgment adverse to Edwards, and Kaye’s representation ended on August 20,1992. Edwards continued to pursue his appeal. The Texas Supreme Court reversed and remanded the case. The First Court of Appeals then issued a new opinion, and the application for writ of error was denied on August 1, 1995. Edwards filed his malpractice claim on July 31, 1997. Summary judgment was granted on limitations.

The Fourteenth Court held that the statute of limitations was tolled even though Edwards’ attorney had withdrawn more than two years prior to the filing of his malpractice claim. Id. at 314. In arriving at its conclusion, the court relied heavily on the fact that in both Hughes and Edwards, the attorneys chose to withdraw more than two years prior to the filing of the malpractice action. Edwards, 9 S.W.3d at 313. Based on this fact, the Court distinguished Murphy:

The Murphy court, however, apparently failed to acknowledge the actual circumstances in Hughes. In Hughes, as in our case, the attorney withdrew as the Hugheses’ attorney over two years before the Hugheses filed their attorney malpractice claim. Hughes, 821 S.W.2d at 156. Therefore, if we add the fourth prong [the forced to obtain new counsel prong] that the Murphy court asserts was the basis of their holding in Hughes to the facts of Hughes, the Hugheses’ claim itself would have been barred because the statute of limitations would have run prior to the filing of their attorney malpractice claim.

Id. The Edwards Court reasoned that the judicial gloss placed on Hughes by Murphy constituted judicial dictum because Murphy involved accountant malpractice and did not require the Court to address the scope or effect of the Hughes rule, on attorney malpractice.

In Murphy, the Supreme Court was only required to hold that Hughes was inapplicable to accountant malpractice claims, based on the issue and facts there presented including the differentiated professional duties. Therefore, the court’s explanation and addition to their Hughes holding, requiring a claimant to be placed in a position that would force him to fire his counsel and hire new, was, in our view, dictum. We will even assume this dictum was judicial dictum because it came from our highest court. However, as we have already shown, the Murphy court did not note that the Hughes’ attorney had withdrawn from representation, and thus the Hugheses were not then forced into the position requiring them to obtain new counsel. See Hughes, 821 S.W.2d at 156. Because the Murphy court’s modification of the Hughes test, if applied to the facts of Hughes, would result in an opposite result in Hughes, we find the dictum to be inapplicable and not binding on our facts.

Id. at 314.

We decline to follow the Fourteenth Court’s reasoning, because we conclude that the Supreme Court meant what it said in Murphy. The opinion expressly shows that the Murphy Court reviewed and considered the facts in Hughes. Regardless of whether the Court realized that its explanation of the tolling rule would negate the result in Hughes, it seems clear that a majority of the Court deliberately expressed their opinion about the scope, effect, and meaning of Hughes. See Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex.1964)(holding that judicial dictum should be followed unless found to be erroneous); see also, Railroad Commission v. Aluminum Co. of America, 380 S.W.2d 599, 601 (Tex.1964)(declaring that dictum in earlier case was deliberately made to put others on notice of the Court’s intent). We cannot say that the Supreme Court’s remarks in Murphy were unintentional, erroneous, or without any sound policy supporting them, although we may disagree. Instead we prefer to follow the rule that as an intermediate court, when faced with inconsistent opinions of the Supreme Court, we rely on the most current opinion and leave it to the Supreme Court to distinguish or explain earlier cases. See Wynn v. State, 847 S.W.2d 357, 362 (Tex.App. — Houston [1st Dist.] 1993), aff'd, 864 S.W.2d 539 (Tex.Crim.App.1993); see also, Lofton v. Texas Brine Corp., 777 S.W.2d 884, 386 (Tex.1989)(explaining that Supreme Court need not defend its opinions from criticism from the courts of appeals).

Recognizing that this issue divides our Court, as evidenced by the dissenting opinion, we express our hope that the Supreme Court will revisit the issue to address the struggles of implementation faced by the intermediate courts. While we sit as justices, we are attorneys still. And we are loathe to cloak our profession with special protection while other professions are not similarly protected just because we have the ability to do so. Such a result can only be perceived by an already jaded public to smack of self-serving judicial activism.

Applying the Rules

Paige contends that the Hughes rule applies and that the statute of limitations was tolled until all appeals were exhausted in the Martin County suit. Anything less, he argues, would have forced him to adopt inherently inconsistent litigation positions. In his brief, Paige tracks the language of the rule, pointing out that the Martin County suit was the “underlying action,” that Turpin-Smith initiated the suit, and that the suit was pending until July 11, 1994, well within the two-year statute of limitations. While we agree with his factual premise, we disagree with his legal conclusion. The Hughes rule only applies to claims against a lawyer arising out of litigation where the client must not only assert inconsistent positions but must also obtain new counsel. Murphy, 964 S.W.2d at 278. The undisputed facts establish that Turpin-Smith did initiate the Martin County suit in July 1989, but that Paige terminated his relationship with Turpin-Smith in July 1990, when he moved his file over to Richard Davis’s office. As of July 1990, Turpin-Smith was not litigating Paige’s underlying claim and thus the Hughes rule cannot be invoked to toll the running of the statute of limitations against the malpractice claim. See Swift, 988 S.W.2d at 862; Norman, 988 S.W.2d at 463; Apex Towing Co., 997 S.W.2d at 905; Nunez, 2 S.W.3d at 759; Brents, at 777-78.

CONCLUSION

We pause to summarize the foregoing legal analysis. The summary judgment proofs establish that Paige sustained legal injury on or about February 22, 1989; Paige terminated his relationship with Turpin-Smith in July 1990; and by letter dated October 10, 1991, Paige had complained to Turpin-Smith that it had failed to file the necessary proof of claim in the bankruptcy court. Because we conclude that the Hughes rule is inapplicable, the limitations period began to run on the date that the legal injury was discovered, in October of 1991. Paige’s malpractice claim was filed on August 31, 1995, well beyond the two-year statute of limitations. We therefore agree with the trial court’s legal conclusion that Paige’s malpractice claim accrued more than two years before he filed his claim, and thus his claim is time barred. Paige’s sole point of error is overruled, and the judgment is affirmed.

SUSAN LARSEN, Justice,

dissenting.

I respectfully dissent. Although I believe the majority has done a thorough job analyzing opinions from the various courts of appeals which attempt to reconcile Hughes and Murphy, it fails to recognize that the two cases cannot be reconciled, for if the requirements of Murphy had been applied in Hughes, the very tolling doctrine it announced would have been inapplicable. Moreover, I believe the majority opinion has focussed so intently on the cases applying Murphy, it has neglected to recognize the public policy which should be a touchstone in attempting to resolve the conflict we are faced with here.

Hughes, not Murphy, is directly on point and should control

This is theHughes exception to the two-year statute of limitations in legal malpractice claims, as announced by the Supreme Court of Texas:

[W]e hold that the statute of limitations was tolled until all of the Hugheses’ appeals in the [the underlying] termination action were exhausted.

The court stated two reasons for recognizing the exception: requiring a malpractice suit to be filed earlier would result in the parties having to take inherent inconsistent positions, and “limitations are tolled for the second cause of action because the viability of the second cause of action depends on the outcome of the first.” The rule was clearly defined, based on two independent policy considerations, and never hinted that the client-plaintiffs must retain their original attorney throughout litigation for tolling to apply. Indeed, the Hughes’ attorney withdrew as their representative more than two years prior to filing of their malpractice suit. Murphy v. Campbell , by restricting this tolling doctrine to the period in which a defendant attorney continues to represent client-plaintiffs, wholly ignored both the facts in Hughes and the second policy consideration upon which the doctrine was grounded.

Edwards v. Kaye

In the recent case of Edwards v. Kaye, the Houston Fourteenth court examined the same question we face today:

[W]hen a lower court is faced squarely with clearly applicable precedent, and a subsequent opinion by the same higher court attempts to modify by dicta its own precent, which road are we or the trial court to take?

Edwards, an attorney malpractice case with facts similar to both Hughes and the case before us, engages in a careful analysis which neither the Murphy opinion nor the cases following it have applied. It outlines the rules of stare decisis, noting that it “only applies if the facts on which the prior case is founded are substantially the same as those in the subsequent suit.” It further notes that dicta, even judicial dicta, although persuasive and a source of guidance, is not binding if erroneous under the facts before the court. Thus, because Murphy involved account malpractice and its language limiting the Hughes rule (which applies only to attorneys) was not necessary to the outcome of the case, Edwards comes to the following conclusion:

Because the Murphy court’s modification of the Hughes test, if applied to the facts of Hughes, would result in an opposite result in Hughes, we find the dictum to be inapplicable and not binding on our facts.

I would hold, as the Edwards Court did, that the statute of limitations against Turpin-Smith was tolled until exhaustion of the underlying suit. As the majority has concluded that date was July 11, 1994, I would conclude that the malpractice suit against Turpin-Smith was not barred by limitations.

Ripeness and judicial economy

It bears repeating that Murphy (and the cases applying it) recognize only one of two policies upon which Hughes was based, and ignore the second, equally important one: a case must be ripe before it is litigated. Hughes acknowledges that a legal malpractice claim is premised on a bad outcome in the underlying representation; to require a client to file suit before the outcome is certain encourages unnecessary litigation. Under Murphy, a plaintiff must file suit before the claim is ripe, and indeed, in some cases where no suit need ever be filed at all. Certainly some potential malpractice actions may be resolved favorably to the client in the course of appellate proceedings or retrial; certainly others may find the malpractice, although present, was harmless. In these cases, litigation against the former attorneys will ultimately prove needless, but Murphy nonetheless requires it.

Moreover, the solution Murphy suggests for this dilemma, abatement of the malpractice case pending resolution of the underlying suit, underscores my point that a malpractice case filed before underlying claims are resolved is not ripe. The law generally requires ripeness before a suit may be brought. Why apply a different rule here? I conclude that policy considerations, as well as long-standing legal principles on ripeness of a controversy, favor the original Hughes tolling doctrine, without its narrow Murphy interpretation.

Reliance on plain language of Hughes

Finally, I observe that the Eilands filed suit in 1995, when the plain language of Hughes taught that the statute of limitations in an attorney malpractice suit was tolled until all appeals were exhausted. Murphy was not decided until 1997. Although I recognize that the general rule is that decisions of the Supreme Court apply retrospectively, this is not always true. Where there is extensive public reliance on the old law, and a change is unforeseen, fairness and policy preclude retroactivity. I would hold that the Eilands justifiably relied on what appeared to be a settled exception to the statute of limitations, decided in the highest civil court of the state on facts clearly applicable to their case.

CONCLUSION

For these reasons, I dissent.

      . We find particularly appealing the dissent’s argument that we should not apply Murphy retrospectively because Paige relied on Hughes to his detriment. However, this concern was not raised by point of error in this Court. See Texas Nat’l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex.1986)(court of appeals may not reverse a trial court’s judgment in the absence of properly assigned error); Tex. R.App.P. 33. Further, we conclude that such an argument is more properly brought before the Supreme Court. See Sanchez v. Schindler, 651 S.W.2d 249, 254 (Tex.1983).

      . Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156 (Tex.1991).

      . Id. at 157.

      . Id.

      . Id. at 156. The court does not specify the exact date on which the attorney withdrew, an indication it was not dispositive of any issue on appeal. Nevertheless, from the record it is clear he ceased to represent the Hugheses more than two years before the malpractice suit was filed. He withdrew "[b]efore the motion to dismiss was heard, and denied” by the trial court. The Waco court of appeals reversed the trial court’s decision on March 7, 1985. The malpractice suit was filed on May 21, 1987.

      . 964 S.W.2d 265, 272 (Tex.1997).

      . 9 S.W.3d 310, 314 (Tex.App. — Houston [14th Dist.] 1999, pet. filed).

      . Id. at 313-14.

      . Id. at 313.

      . Id.

      . Id. at 314-15.

      . Murphy, 964 S.W.2d at 272.

      . Id. at 275 (Spector, J. dissenting); see Casarez v. NME Hospitals, Inc., 883 S.W.2d 360, 366 (Tex.App. — El Paso 1994, writ dism. agr.) (discovery rule does not require lawsuit be brought on unconfirmed fear of HIV exposure before positive test results are possible; to require otherwise would encourage needless litigation); City of El Paso v. Madero Dev., 803 S.W.2d 396 (Tex.App. — El Paso 1991, writ denied) (court did not have jurisdiction to review adverse condemnation judgment where landowner had not sought zoning variance; case was not ripe until administrative decision was final).

      . Hughes, 821 S.W.2d at 156.

      . Sanchez v. Schindler, 651 S.W.2d 249, 254 (Tex.1983).

      . Id.


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    Jennifer Leigh JENKINS, Appellant, v. Christopher Lee JENKINS, Appellee.
    No. 08-99-00116-CV.
    Court of Appeals of Texas, El Paso.
    April 6, 2000.

      John Hoestenbach, Odessa, for Appellant.
    Richard P. McKeel, Odessa, for Appel-lee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is an appeal from the modification of a joint managing conservatorship in which Jennifer Leigh Jenkins challenges the designation of her former husband as having the right to establish the primary residence of their son. Finding no error, we affirm.

SUMMARY OF THE EVIDENCE

Jennifer and Chris Jenkins were divorced by final decree on December 31, 1997 and appointed joint managing conservators of their then three-year-old son, Zachary. Jennifer was granted the sole right to establish Zachary’s primary residence. The decree specifically ordered that Jennifer “shall not reside with, nor have any unmarried males over the age of thirteen for overnight visits during any period that JENNIFER LEIGH JENKINS is in possession of the child.” Additionally, the decree ordered:

[Tjhat the primary residence of the child shall be established in Ector County, Texas. The parties shall not remove the child from Ector County, Texas for the purpose of changing the primary residence of the child until this order is modified by further order of the court of continuing jurisdiction or by written agreement signed by the parties and filed with the court.

With regard to the division of property, Jennifer was awarded the couple’s home at 3620 North Adams in Odessa. However, the terms of the final decree did not fully comport with the trial court’s judgment rendered in open court on September 19, 1997:

THE COURT: The child also, I will point out, must reside at that home unless they have prior order of the Court. Okay? ... No change in the residence. [Emphasis added].

In May 1998, Chris Jenkins sought to correct the error in the decree concerning Zachary’s primary residence via a motion for judgment nunc pro tunc. The motion was granted on May 27, 1998, and the final decree was modified to reflect that Zachary’s primary residence was established at 8620 North Adams and that any change in residence required court approval. Jennifer did not appeal or otherwise challenge the judgment nunc pro tunc. At the modification hearing at issue here, however, Jennifer testified that she was unaware of the judgment nunc pro tunc.

On August 28, 1998, Chris filed a motion to enforce and a motion to modify the divorce decree. He alleged that since the divorce, Jennifer had continued to reside with her boyfriend, Sam Lance, first at 3620 North Adams and then at 2609 Spur, in violation of the divorce decree. He also contended that Jennifer had moved Zachary’s primary residence from the North Adams home without court approval, and was cohabitating with Lance when she had possession of Zachary. Chris asked the court to find Jennifer in contempt and to modify the decree to designate him as the joint managing conservator having the sole right to establish the primary residence of Zachary.

In her answer, Jennifer admitted that she had moved to 2609 Spur, but claimed that the change of residence was only temporary. Once repairs on the home at 3620 North Adams were completed, she and Zachary would return. At the hearing on the motion, Jennifer also contended that she and Lance had entered into a common law marriage. The trial court found that she had violated the court’s orders against moving the primary residence of the child and against having overnight male guests when she had possession of Zachary. The court did not hold her in contempt, but it did modify the decree so as to grant Chris the right to establish Zachary’s primary residence under the joint managing con-servatorship.

Upon request, the trial court entered findings of fact and conclusions of law. Pertinent to our analysis here, the court found:

• Jennifer was present in the courtroom when the court ordered that she not cohabitate with any man to whom she was not married when she had possession of Zachary.
• Jennifer had admitted to residing with Sam Lance at 2609 Spur.
• Jennifer had resided with Sam Lance at 2609 Spur when she had possession of Zachary.
• There was no evidence of a ceremonial marriage and no common law marriage was established.
• Jennifer changed the residence of the child and gave no notice.
• Jennifer had knowingly and intentionally violated the court’s orders.
• The existing order regarding possession of the child had become inappropriate under the circumstances.
• Retention of the joint managing con-servatorship was in Zachary’s best interest.
• The award to Chris of primary custody and the right to establish the primary residence of Zachary would be a positive improvement and in the best interest of Zachary.

This appeal follows.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT

MODIFICATION OF THE RIGHT TO ESTABLISH PRIMARY RESIDENCE

In her first two issues for review, Jennifer complains that the trial court abused its discretion when it transferred to Chris the right to establish the primary residence of the child because there was legally and factually insufficient evidence to support it. See Tex.Fam.Code Ann. § 156.202 (Vernon 1996). Where these two standards of review overlap, as they frequently do in family law cases, we employ a hybrid analysis.

Standard of Review

In considering a legal sufficiency or “no evidence” point, an appellate court considers only the evidence which tends to support the jury’s findings and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83 (Tex.App. — El Paso 1992, no writ). If any probative evidence supports the jury’s determination, it must be upheld. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). However, a factual sufficiency point requires examination of all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 244 S.W.2d at 660; Lindsey v. Lindsey, 965 S.W.2d 589, 591 (Tex.App. — El Paso 1998, no pet.). In an appeal from a bench trial, findings of fact are the equivalent of jury answers to special issues. Lindsey, 965 S.W.2d at 591. The reviewing court cannot substitute its conclusions for those of the trial court if there is sufficient competent evidence of probative force to support the trial court’s findings. Id.

A trial court’s order modifying a joint managing conservatorship will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); Thompson v. Thompson, 827 S.W.2d 563, 566-67 (Tex.App. — Corpus Christi 1992, writ denied). The test for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner, or whether it acted without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate justice in a similar circumstance does not demonstrate that an abuse of discretion occurred. Id. at 241-42. The question of conservatorship of a child is addressed to the sound discretion of the trial court when it sits as trier of fact. Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex.Civ.App. — Dallas 1981, no writ). The trial court is in the best position to observe the demeanor and personalities of the witnesses and can “feel” the forces, powers, and influences that cannot be discerned by merely reading the record. Id. Thus, an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court’s decision. Valdez v. Valdez, 930 S.W.2d 725, 731 (Tex.App. — Houston [1st Dist.] 1996, no writ).

An appeal directed toward demonstrating an abuse of discretion is one of the tougher appellate propositions. Most of the appealable issues in a family law case are evaluated against an abuse of discretion standard, be it the issue of property division incident to divorce or partition, conservatorship, visitation, or child support. In some instances, the abuse of discretion standard overlaps the traditional sufficiency review. Several courts have concluded that when the trial court’s ruling on the merits is reviewed under an abuse of discretion standard, the normal sufficiency of the evidence review is part of the abuse of discretion review and not an independent ground for reversal. Crawford v. Hope, 898 S.W.2d 937, 940-41 (Tex.App. — Amarillo 1995, writ denied)(when standard of review is abuse of discretion, factual and legal sufficiency are not independent grounds of error); accord, Thomas v. Thomas, 895 S.W.2d 895, 898 (Tex.App. — Waco 1995, writ denied); In the Matter of the Marriage of Driver, 895 S.W.2d 875, 877 (Tex.App. — Texarkana 1995, no writ); Wood v. O’Donnell, 894 S.W.2d 555, 556 (Tex.App. — Fort Worth 1995, no writ); In the Interest of Pecht, 874 S.W.2d 797, 800 (Tex.App. — Texarkana 1994, no writ); but see Matthiessen v. Schaefer, 897 S.W.2d 825, 828 (Tex.App.— San Antonio 1994)(Duncan, J., dissenting), rev’d on other grounds, 915 S.W.2d 479 (Tex.1995)(appellate court should review award of attorney’s fees by normal sufficiency of evidence standard, and not subsume sufficiency of evidence into abuse of discretion standard).

We have previously agreed with Justice Duncan’s dissenting opinion in Matthiessen. In Lindsey, 965 S.W.2d at 589, we addressed the conflict between the traditional sufficiency review and the abuse of discretion standard in the context of a child support modification and determined that once it has been determined that the abuse of discretion standard applies, an appellate court should engage in a two-pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its discretion; and (2) did the trial court err in its application of discretion? Lindsey, 965 S.W.2d at 592. The traditional sufficiency review comes into play with regard to the first question; however, our inquiry cannot end there. Id. We must proceed to determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. Stated inversely, we must conclude that the trial court’s decision was neither arbitrary nor unreasonable. Id.; see also, In the Interest of De La Pena, 999 S.W.2d 521 (Tex. App. — El Paso 1999, no pet.).

Modification Standards Under Tex.Fam.Code Ann. § 156.202

Historically, Texas law has tried to ensure stability and continuity for children by imposing significant hurdles to modifications of managing conservatorship. When the Family Code was enacted in 1973, modification of sole managing con-servatorship was measured by the now familiar test of a material and substantial change in circumstances, coupled with a best interest test. In 1975, an additional prong was added, requiring a finding that retention of the existing managing conservator would be injurious to the welfare of the child. Twenty years later, the “injurious retention” element, as it had come to be known, was abandoned. Currently, Section 156.101 provides that a court may modify a sole managing conservatorship if the circumstances of the child, sole managing conservator, or possessory conservator have materially and substantially changed, and the appointment of a new sole managing conservator would be a positive improvement for the child.

Joint managing conservatorship was not authorized by statute absent the agreement of the parties until 1987. The standard for modifying a joint managing conservatorship has always been less stringent, allowing a modification in the terms and conditions of the joint managing conservatorship upon a showing of a material and substantial change in circumstances or upon a showing that the decree has become unworkable or inappropriate under the circumstances and upon a showing that the modification would be a positive improvement for and in the best interest of the child. See Tex.Fam.Code Ann. § 156.202. As the basis for the motion to modify here, Chris alleged, and the trial court found, that the ' existing order had become unworkable or inappropriate under the circumstances.

Existing Joint Managing Conservatorship Inappropriate

Cohabitation with Sam Lance

Jennifer first argues that the evidence was insufficient to support the court’s finding that the cohabitation with Lance rendered the existing order inappropriate. We disagree. From the day he rendered judgment forward, the trial judge explicitly admonished Jennifer that she was not to have unrelated adult males spending the night in the home while Zachary was there. Indeed, the record from the hearing of September 19, 1997, indicates he emphasized that her failure to abide by his restriction would prompt a modification:

THE COURT: No unmarried males overnight into the home. And ma'am, I’m making that ruling because I have to look after the best interest of the minor child, and I’m finding that’s in the best interest of the minor child to have a joint managing conservatorship with you determining primary residence, but we will not have this type of life-style going on with the minor child present. The Court will be very swift in looking at any kind of motions for sanction on — or motion to modify based upon a violation of this ruling.

We emphasize that Jennifer did not challenge the restriction by direct appeal and thus the wisdom or propriety of the non-cohabitation order is not properly before us. Instead, she violated the court’s order by cohabitating with Lance while Zachary was in the home, a violation which the trial court found to be knowing and intentional. Jennifer and Lance admitted to cohabitation beginning in June 1998, and, admittedly, Zachary resided with them. Jennifer’s defense was that she and Lance had entered into a common law marriage when they began their cohabitation such that she was not cohabitating with an unrelated adult male; she was living with her husband. We address the common law marriage issue below. Assuming the evidence supports the trial court’s failure to find the existence of a common law marriage, Jennifer’s admissions constitute legally and factually sufficient evidence to support the court’s cohabitation finding. Where sufficient evidence supports the finding, we are hard pressed to determine that the trial court abused its discretion.

Change of Child’s Primary Residence

Jennifer contends that she did not violate the previous order because the change of residence was only temporary. She claims that she would have moved back to 3620 North Adams as soon as it became “habitable” again. Temporary or not, the change in address, coupled with the cohabitation with Lance, violated the trial court’s orders. In its findings of fact, the trial court noted Jennifer’s allegation that she had to move in with Lance because she could not afford any other housing. The trial court was free to disbelieve her testimony, and apparently he did not believe this assertion. This “temporary” move lasted from June 1998 until the hearing on the merits on November 11, 1998, some six months later. Jennifer’s father, Joe Arthur Wood, performed the repairs on the house. Chris alleged that Mr. Wood was residing at 3620 North Adams during the time that the residence was supposedly uninhabitable. He introduced photographs indicating that there were no visible repairs in progress and that the house appeared to be inhabited, judging from the Halloween decorations. Mr. Wood testified that he worked on the house off and on during the six month period, sometimes sleeping in the uninhabitable house, and finally residing there for the three weeks prior to the hearing on the motion.

The trial court had a clearly superior position from which to judge the credibility of these witnesses. As the sole judge of their credibility, he had broad discretion to believe or disbelieve Jennifer’s evidence. See In the Matter of the Estate of McGrew, 906 S.W.2d 58, 57 (Tex.App. — Tyler 1995, writ denied). It is not within the province of this Court to interfere with the trial court’s resolution of the conflicts in the evidence, nor to pass on the weight or credibility of the witnesses’ testimony. Capellen v. Capellen, 888 S.W.2d 539, 542 (Tex.App. — El Paso 1994, writ denied). There is both legally and factually sufficient evidence to support the trial court’s decision. Once again, we cannot conclude that the trial court abused its discretion.

Common Law Marriage

In a similar vein, Jennifer argues that there is no evidence from which the trial court could have concluded that she did not establish a valid common law marriage to Lance. The existence of a common law marriage is not a question of law but a question of fact to be resolved by the trier of fact. See Welch v. State, 908 S.W.2d 258, 265 (Tex.App. — El Paso 1995, no pet.). Jennifer had the burden to establish her alleged common law marriage by a preponderance of the evidence. Id. Her “no evidence” challenge raises a legal sufficiency question. There are two inquiries for a reviewing court when it applies a legal sufficiency review, where, as here, a party bears the burden of proof and the fact finder fails to find for that party. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). The record must first be examined for evidence that supports the fact finder’s failure to find. See id. Second, if there is no evidence to support the failure to make a finding, then, “the entire record must be examined to see if the contrary proposition is established as a matter of law.” Id.

Jennifer claims that she presented testimony which established an agreement to be married, cohabitation, and representation to others that she and Lance were married as of the time they moved into the Spur house together in June 1998. See Tex. Fam.Code Ann. § 2.401 (Vernon 1998). This testimony came from Jennifer herself, Lance, and Mr. Wood. However, Jennifer also testified that she and Lance planned on “officially” getting married the next month; that she had not used the last name of “Lance” on any legal documents; and that she had not notified Chris that she had married Lance. She claimed she had told “[ejverybody I work with, all my friends, family, anybody that we’re introduced to.” Except for her father, none of these individuals testified. We find it significant that at no point did Jennifer testify that she ever told Zachary that she and Lance were married or that Lance was his stepfather. The record further reveals that at the time of divorce, Jennifer testified that she had no plans to marry Lance.

Lance also testified that he and Jennifer entered into a common law marriage. As for the date of the marriage, he “guessed” it was when they moved in together. He had told everybody he worked with, his parents, and his friends that Jennifer was his wife. None of these individuals testified.

Mr. Wood testified that Jennifer told him of her plans for a ceremonial marriage to Lance in December 1998. He also indicated that Jennifer and Lance had told him that they were “married” during the summer of 1997, before they moved in together. Wood was unable to repeat the words that they used to convey the message that they were married. He claimed that they represented themselves as married when they leased the house on Spur, but he could not explain why Jennifer did not use the last name of “Lance.” He acknowledged, however, that his sister continues to use her maiden name, which is “more and more common.”

The trial court heard all of the evidence, but did not believe Jennifer’s proofs. She never mentioned her defense of marriage in her response to the motion to enforce and modify. Chris characterized it as a “recent fabrication.” From a review of the record, we conclude that there is legally sufficient evidence to support the fact finder’s failure to find the existence of a common law marriage. Thus, we cannot say that the trial court abused its discretion.

Best Interest and Positive Improvement

Next, Jennifer attacks the sufficiency of the evidence to support the trial court’s finding that the transfer of the right to establish the primary residence of the child from Jennifer to Chris would be a positive improvement for and in the best interest of the child. As a result, she claims the trial court abused its discretion. She contends that there was no showing that the move to 2609 Spur, and the cohabitation with Lance, had a detrimental effect on Zachary. We reiterate that there is no longer a requirement that the petitioner in a modification establish that the continuation of the existing order is injurious or detrimental to the child. Once he established that the existing order was unworkable or inappropriate, Chris was merely required to demonstrate that modification would be a positive improvement and in the best interest of the child. See Tex.Fam.Code Ann. § 156.202(2). The trial court considered the best interests of the child when it originally ruled that Lance was not to reside with Jennifer when she had possession of Zachary. In fact, the court specifically ordered that Lance vacate the premises at 3620 North Adams within seventy-two hours of the entry of the decree. The court also fashioned its ruling such that Jennifer could not have overnight guests, to whom she was not married, when she had possession of Zachary. The court was concerned about Lance’s negative influence on Zachary, Jennifer’s ability to support herself and the child, and her ability to pay her bills. The trial court was quite deliberate in considering what was in the best interest of Zachary at the time of divorce and gave Jennifer fair warning of the severity with which he would view a violation. Jennifer acquiesced in his pronouncement and opted not to appeal. Nevertheless, she violated the court’s orders and the court’s determination of the lifestyle which fostered Zachary’s best interest.

The trial court also heard Chris testify as to the living arrangements he would provide for his son. Although at the time of the original divorce proceedings, the court expressed some reservation about his “sketchy employment history,” at the time of the modification, Chris had maintained his employment with 7-Eleven for over a year and a half, was working as an assistant manager, and was slated to be promoted to manager, meaning that he would have his “own store.” He had explored day care arrangements for Zachary and had considered several providers in the Midland area. He was most interested in Nana’s Place, which was located less than a block from his home. In the event he was called to work a rare nighttime shift, he had made arrangements with friends that Zachary could stay with them. Chris also objected to the methods Lance used to discipline the boy and he professed an objection to spanking. He had never spanked his son.

We conclude that there is both legally and factually sufficient evidence to support the trial court’s findings such that we cannot say that the trial court abused its discretion. Accordingly, Jennifer’s first two appellate issues are overruled.

JUDGMENT NUNC PRO TUNC

In her third issue for review, Jennifer contends that the trial court lacked jurisdiction to enter the judgment nunc pro tunc such that it is void ab initio, or in the alternative, that the court had no authority to restrict Zachary’s residence to a specific address within Ector County. The purpose of a judgment nunc pro tunc is to correct a clerical error in the judgment after the court’s plenary power has expired. Ferguson v. Naylor, 860 S.W.2d 123, 126 (Tex.App. — Amarillo 1993, writ denied); Tex.R.Civ.P. 316. The trial court has plenary power to correct a clerical error made in entering final judgment, but it cannot correct a judicial error made in rendering a final judgment. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986). When deciding whether a correction is a judicial or a clerical error, we look to the judgment actually rendered, not the judgment that should or might have been rendered. Id. The court can only correct the entry of a final written judgment that incorrectly states the judgment actually rendered. Id. at 231-32. Thus, even if the court renders incorrectly, it cannot alter a written judgment which precisely reflects the incorrect rendition. Id. at 232.

Jennifer argues that the judgment nunc pro tunc corrected a judicial error in rendering judgment, not a clerical error in entering the judgment. She contends that the trial court’s oral rendition was ambiguous and as such can only be construed to give her the right to establish Zachary’s residence anywhere within Ector County. We disagree. The record reveals that the trial court awarded Jennifer the couple’s home at 3620 North Adams. It then granted Jennifer the exclusive right to establish the primary residence of Zachary. A discussion ensued as to removing Lance from the house, and then the following exchange took place between the court and Chris’s counsel:

THE COURT: Okay. The child also, I will point out, must reside at that home unless they have prior order of the court. Okay?
COUNSEL: So no change in the residence?
THE COURT: No change in the residence, and that’s mainly to secure that that what may be the only asset we have — that it is the only asset that we have that can even be used to benefit the child.

It is clear that the trial court ordered Jennifer to maintain Zachary’s residence at 3620 North Adams unless she received prior court approval to relocate the child’s residence. Such was the judgment rendered. The judgment entered erroneously states that Jennifer had the right to establish the child’s residence anywhere within Ector County. The judgment nunc pro tunc sought to correct an error in entering the court’s rendition, thus, we find no error here.

Jennifer argues, in the alternative, that pursuant to Section 153.134, the trial court had no authority to restrict the child’s residence to 3620 North Adams. That provision states that “[i]n rendering an order appointing joint managing conservators, the court shall: establish the county of residence of the child until altered by further order, or designate the conservator who has the exclusive right to determine the primary residence' of the child.” Tex.Fam.Code Ann. § 153.134(b)(l)(Vernon 1996). Jennifer is correct that this section is mandatory, but it is only mandatory in the sense that any order entered by the trial court appointing a joint managing conservatorship must contain language delineating the various rights and duties of the conservators listed under Section 153.134(b). The list of rights and duties is not exclusive, nor does it define how the trial court shall assign or implement those rights and duties. The trial court retains broad discretion in crafting the rights and duties of each conservators so as to effectuate the best interest of the child. See Tex.Fam.Code Ann. § 153.134(a). In addition, the Family Code also provides that “[i]f a joint managing conservatorship is ordered, the best interest of the child ordinarily requires the court to designate a primary physical residence for the child.” [Emphasis added]. See Tex.Fam.Code Ann. § 153.136. Lastly, unless the provisions of the judgment nunc pro tunc are void, Jennifer cannot collaterally attack it. Her remedy was to pursue a direct appeal. We have already rejected her contention that the judgment is void. We likewise reject her alternative argument because it constitutes a collateral attack. The third issue for review is overruled, and the judgment of the trial court is affirmed.

      . Modification from a joint managing con-servatorship to a sole managing conservator-ship may be premised on additional elements. The petitioner may show that the child’s present living environment may endanger the child’s physical health or significantly impair the child’s emotional development; there has been a substantial and unexcused violation of the terms and conditions established in the existing conservator-ship order; or the circumstances of the child or one or both of the joint managing conservators have so materially and substantially changed since the rendition of the order that it has become unworkable or inappropriate under existing circumstances; and the appointment of a sole managing conservator would be a positive improvement for and in the best interest of the child. Tex.Fam.Code Ann. § 156.203.

      .Jennifer admitted that she had written a number of hot checks in various states and she had been charged with theft by check in Odessa. The trial court was hearing the theft by check matter in a separate criminal proceeding. Also, Mr. Wood admitted, he had four or five convictions for theft by check. This evidence may well have prompted the trial court to discount the truth and veracity of their testimony.

      . The record reveals that Jennifer’s trial counsel cautioned her about planning a ceremonial marriage for a month after the hearing out of his concern that it would weaken the common law marriage defense.

      . We reiterate that the trial in the divorce occurred in September 1997, although the decree was not signed until December of that year. Thus, Jennifer's contention is that her marital plans changed in the intervening nine months after the trial.


author: TERRY McCALL, Justice.

text:
    STATE of Texas, Appellant, v. Leo STEELMAN, Appellee. State of Texas, Appellant, v. Ian Steelman, Appellee.
    Nos. 11-99-00155-CR, 11-99-00156-CR.
    Court of Appeals of Texas, Eastland.
    April 6, 2000.

      James Eidson, Crim. Dist. Atty., Abilene, Kollin Shadle, Appellate Section - Criminal Districts Attorney’s Office, Abilene, for appellant.
    Stan Brown, Abilene, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   OPINION

TERRY McCALL, Justice.

The trial court granted the Steelmans’ motions to suppress evidence in their prosecutions for possession of marihuana. The State appeals. See TEX. CODE CRIM. PRO. ANN. art. 44.01(a)(5) (Vernon Pamph. Supp.2000). We affirm.

Standard of Review

In reviewing a trial court’s ruling on a motion to suppress, appellate courts must give great deference to the trial court’s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Cr. App.1997). Because the trial court is the exclusive finder of fact, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court’s ruling. Daniels v. State, 718 S.W.2d 702, 704 (Tex.Cr.App.), cert. den’d, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 252 (1986). Thus, the trial court’s findings of fact are controlling unless the trial court abused its discretion in making them. Guzman v. State, supra. Appellate courts, however, review de novo mixed questions of law and fact, such as reasonable suspicion and probable cause. Guzman v. State, supra-, Davila v. State, 4 S.W.3d 844, 847 (Tex.App. — Eastland 1999, no pet’n).

The Steelmans based their motions to suppress on TEX. CONST, art. I, § 9 only; they did not rely on the federal constitution in the trial court. See U.S. CONST, amends. IV and XIV. Texas courts are not bound by the fourth amendment jurisprudence of the United States Supreme Court when interpreting Article I, section 9. Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991). Fourth amendment cases do provide advisory authority, and Texas courts generally follow them in their interpretations of Article I, section 9. Johnson v. State, 912 S.W.2d 227, 230 (Tex.Cr.App.1995); Aitch v. State, 879 S.W.2d 167, 171-72 (Tex.App. — Houston [14th Dist.] 1994, pet’n refd); see, e.g., Davis v. State, 829 S.W.2d 218, 221 (Tex.Cr.App.1992). Neither the State nor the Steelmans have advanced any reasons why Article I, section 9 should not be interpreted consistently with the fourth amendment in these cases. Furthermore, we see no reason to make a distinction.

Background Facts

The trial court entered findings of facts that we will adopt and summarize as the controlling facts of this case. The record supports the trial court’s findings of fact, and neither party challenges them. On April 21, 1998, the Abilene Police Department received an anonymous telephone call that drug dealing was taking place at 3141 South 4th Street in Abilene. Officers Lance Vines, Jim Craft, and Jason Aule-rich were dispatched to investigate at that location, a single family residence. The officers met down the street from the house and discussed their plan of action. They then proceeded to the house, which did not have a fence, gate, or any other barrier to enter onto the premises. The officers looked into a window and observed four people in the living room of the house. The record indicates that the officers could only see through a small crack in the closed blinds of the front window. Officer Aulerich testified that he could only see “some individuals inside moving around a little bit but couldn’t make out exacts.”

Officers Vines and Craft went onto the front porch of the house and knocked on the door. Officer Vines testified that he did not announce himself as a police officer out of concern for his safety. Ian Steel-man answered the door, stepped outside onto the porch, and closed the door behind him. While the door was open, Officers Vines and Craft smelled the odor of burnt marihuana. The officers asked Ian for his identification. Ian said that he would have to retrieve his identification from the house. He opened the door, stepped inside the house, and began to close the door. Officer Craft put his foot in the door to prevent its closing. Officers Vines and Craft forced their way into the house and drew their weapons. They again smelled the odor of burnt marihuana.

Officer Aulerich also came into the house. Officer Aulerich testified that he could smell the odor of burnt marihuana after he got onto the porch and reached the door. None of the officers saw any marihuana or contraband inside the house. The officers then handcuffed the occupants of the house, including the Steelmans, and read them their rights. The trial court found that the Steelmans were arrested. Leo Steelman refused to give consent to search the house. Officer David Varner, an Abilene Police Department Narcotics Officer, was called to the house. He requested consent to search, and Leo Steel-man refused him as well. Officer Varner did not observe any marihuana or other contraband inside the house either.

Officers Varner and Vines left and secured a search warrant. Two and one-half hours later, they returned and executed the warrant. Prior to the search, none of the officers observed marihuana or contraband in the house. The search revealed several plastic sandwich bags containing marihuana, several marihuana pipes, two “stash boxes,” and a handheld scale, among other things. The Steelmans and their two guests were handcuffed and detained in the house until the police completed the search and took them to jail. None of the officers recalled whether they smelled the Steelmans’ clothing or hands for the odor of marihuana.

The findings of facts entered by the trial court indicate that the trial court found Officer Craft’s testimony to be incredible. Officer Craft’s testimony contained several discrepancies from that of Officers Vines and Aulerich. For example, Officer Craft testified that the officers did not meet with each other before going to the Steelmans’ house. He also testified that he and Officer Aulerich could see through the window clearly enough to observe the four occupants of the house “smoking. I couldn’t tell you what but I watched.” Officer Craft testified that, when Ian Steelman opened the door, “smoke came out from behind him along with the odor of burning marihuana.” Finally, Officer Craft testified that he saw a marihuana cigarette in plain view in an ashtray on the coffee table in the firing room. The trial court, as the exclusive finder of fact, was free to disregard this testimony.

The trial court made two conclusions of law: (1) “An officer may not arrest a person without a warrant unless he observes such person committing an offense” and (2) “Once an officer arrests a person without a warrant or without observing an offense, any evidence obtained should be suppressed.” The State argues that the trial court abused its discretion by concluding that the police officers made an unlawful arrest. The State contends that the odor of burnt marihuana gave rise simultaneously to probable cause to arrest and to search for the marihuana.

Legality of the Arrest

An arrest occurs when a person is placed under restraint or is taken into custody by an officer acting with or without a warrant. TEX. CODE CRIM. PRO. ANN. art. 15.22 (Vernon 1977); Johnson v. State, 722 S.W.2d 417, 419 (Tex.Cr.App.1986); see Guzman v. State, supra at 86 n. 2. The record shows that the Steelmans and their two friends were handcuffed and detained in their firing room from the time the officers entered the house until the officers obtained and executed the search warrant, a period of over two and one-half hours. The trial court found that an arrest occurred. We see no abuse of discretion in that finding.

An officer may not make a warrantless arrest unless he has probable cause to suspect an individual and if the arrest falls within one of the exceptions found in TEX. CODE CRIM. PRO. ANN. art. 14 (Vernon 1977 & Supp.2000). Lunde v. State, 786 S.W.2d 665, 666 (Tex.Cr.App.1987). One of those exceptions is when the individual commits a crime in the officer’s presence. Article 14.01(b). The trial court made three separate findings that, at three different points in time, the officers saw no marihuana or contraband in the house. The record does not indicate that any of the Steelmans or their friends appeared high or intoxicated. Furthermore, the record indicates and the trial court found that the officers only smelled burnt marihuana and not that they saw smoke. Officer Vines testified that smelling like burnt marihuana is not itself a crime. A crime did not occur in the officers’ presence; no one possessed marihuana in plain view when the officers entered the house. Cf. Johnson v. State, 481 S.W.2d 864 (Tex.Cr.App.1972), where the court held that marihuana smoke and the “high” appearance of the defendant gave police probable cause to arrest him.

Another exception to the warrant requirement is when, under the circumstances, the officer reasonably believes that the individual has committed an offense. Article 14.03(a)(1). Such a belief is the functional equivalent of probable cause which exists:

“[WJhen the facts and circumstances within an officer’s personal knowledge and of which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in the belief that, more likely than not,” a particular suspect has committed the crime. (Emphasis added)

Muniz v. State, 851 S.W.2d 238, 250-251 (Tex.Cr.App.1993), quoting Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). The existence of probable cause requires an analysis of the facts of each case. Guzman v. State, supra at 90. The appellate court reviews the objective facts known to the officer at the time of the arrest, without regard to the officer’s subjective thoughts, in order to determine whether probable cause existed. Johnson v. State, 722 S.W.2d supra at 419; Toumsley v. State, 652 S.W.2d 791 (Tex.Cr.App.1983).

Based on the facts cited above, the officers did not have probable cause to believe that any of the occupants of the house had committed a crime. Furthermore, the officers had no probable cause to believe that any particular suspect had committed a crime. None of the officers could recall whether any of them had sniffed the hands or clothing of the Steelmans or their friends. The warrantless arrests were illegal and violative of Article I, section 9. The trial court’s conclusions of law were correct.

Legality of the Entry

The State contends that the smell of burnt marihuana by itself confers probable cause to search without a warrant. The cases which state this proposition involved the search of automobiles. See Meeks v. State, 692 S.W.2d 504 (Tex.Cr.App.1985); Miller v. State, 608 S.W.2d 684 (Tex.Cr.App.1980); Luera v. State, 561 S.W.2d 497 (Tex.Cr.App.1978); Duff v. State, 546 S.W.2d 283 (Tex.Cr.App.1977); Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973); Carr v. State, 904 S.W.2d 882 (Tex.App. — Eastland 1995, pet’n refd); Levine v. State, 794 S.W.2d 451 (Tex. App. — Amarillo 1990, no pet’n). The police are given greater discretion to perform warrantless searches of automobiles because of their mobile nature. See, e.g., Chambers v. Maroney 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The Amarillo court stated the rule involved here in Levine v. State, supra at 453:

Indeed, probable cause to search a validly stopped vehicle without a warrant exists when the searching officer, experienced in detecting the odor of marihuana, smells burnt marihuana emanating either from the vehicle itself, or from the person of the driver who has emerged from the vehicle, or from both. (Citations omitted; Emphasis added)

A private dwelling, on the other hand, is a sacrosanct place in search and seizure law. TEX. CONST, art. I, § 9 specifically names people’s houses as a place in which they are entitled to feel secure from governmental intrusion. See also U.S. CONST, amend. IV. Private dwellings cannot be easily removed from the jurisdiction. Unlike the automobile exception to the warrant requirement, a warrantless search of a house under the fourth amendment requires not only probable cause but also the existence of exigent circumstances such as the threat of the imminent destruction of evidence. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). The Supreme Court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), held that the fourth amendment protects people in places where they have a subjective expectation of privacy that is objectively reasonable. A house is nearly always one of those places where people have that expectation. See Rodriguez v. State, 653 S.W.2d 305, 307 (Tex.Cr.App. 1983). The Steelmans apparently had expectations of privacy because the record shows that their window blinds were shut. To see inside, Officer Aulerich had to look through a small crack between two slats. Also, Ian Steelman shut the door behind him when he stepped onto the porch. We see no reason that the rationale of Katz would not apply to Article I, section 9.

The Court of Criminal Appeals has recently held that Article I, section 9, does not require a warrant for searches and seizures. Hulit v. State, 982 S.W.2d 431, 436 (Tex.Cr.App.1998). The critical inquiry under Article I, section 9, is whether the search or seizure was reasonable. Hulit v. State, supra. The issuance of a warrant by a neutral magistrate, however, can be a factor in the totality of the circumstances that determine whether a search is reasonable. Hulit v. State, supra. Thus, the warrantless entry into the Steelmans’ house, although nearly always unreasonable and illegal per se under the fourth amendment, might withstand scrutiny under Article I, section 9.

The United States Supreme Court addressed a similar situation in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). In Johnson, a confidential informant informed the police that opium was being used by “unknown persons” in the Europe Hotel. When they arrived at the hotel to further investigate, the police smelled the “distinctive and unmistakable” odor of burning opium coming from a certain room. They did not know the occupants of the room, so they knocked and announced their presence. The defendant then opened the door, and the police asked for admittance. A search of the room revealed opium and a smoking apparatus. Mr. Justice Jackson wrote for the Court:

At the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant... .If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant....
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.... Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent. (Footnote omitted)

Johnson v. United States, 333 U.S. supra at 13-14, 68 S.Ct. 367.

Although the Court in Johnson v. United States spoke only to requirements of the fourth amendment and although Article I, section 9, contains no absolute requirement for a warrant, the reasoning in Johnson v. United States is extremely persuasive. Besides an untested and uncorroborated anonymous tip, the officers had nothing but the odor of burnt marihuana to give them probable cause to search. The mere odor of burnt marihuana, without smoke or some other evidence of current or recent possession, does not necessarily lead to the conclusion that an occupant of a house possesses marihuana. Indeed, the person who smoked the marihuana may have left, taking his drugs with him. Even if the smell of burnt marihuana by itself can furnish probable cause to search, that determination is one that should be made by a detached, neutral magistrate. The status of the home in search and seizure law requires us to hold that the warrantless entry and search of the home was unreasonable under Article I, section 9.

Attenuation of the Taint

The inquiry does not end, however, with whether the warrantless arrest of the Steelmans and the warrant-less entry into and search of their house were illegal. The State argues that the subsequent search warrant attenuated any taint from the illegality. The attenuation doctrine applies in Texas, not as an exception to the exclusionary rule of TEX. CODE CRIM. PRO. ANN. art. 38.23 (Vernon Pamph. Supp.2000) but as a method of determining whether evidence was obtained illegally. Johnson v. State, 871 S.W.2d 744, 751 (Tex.Cr.App. 1994). An intervening circumstance, such as obtaining an arrest or search warrant, can serve to attenuate the taint of any original illegality. Johnson v. State, 871 S.W.2d supra. If the suppressed evidence was obtained through a legal search of the premises, the trial court erred.

The officers entered the house and handcuffed the Steelmans and their friends. An arrest and a search occurred. Officers Craft and Aulerich stayed at the house and guarded the handcuffed occupants while Officers Vines and Varner secured a search warrant. The illegal war-rantless search never ended because the officers remained in the house. The issuance of the search warrant did not stop the illegal search and begin a new search. Thus, we hold that the issuance of the search warrant did not attenuate the taint from the illegal search and arrest.

This Court’s Ruling

We overrule the State’s issue for review. The trial court properly suppressed the evidence. Article 38.23. The order granting the motion to suppress is affirmed.

      . Another case, State v. Ensley, 976 S.W.2d 272 (Tex.App. — Houston [14th Dist.] 1998, pet’n refd), involved the search of three wrapped packages found in two suitcases on which a drug dog in the airport alerted. This case involved many more circumstances besides the smell of marihuana, not the least of which was that the smell emanated from a defined area, the packages. Automobiles are more analogous to these packages than are houses.

      . Some of these cases involve more circumstances than the mere smell of marihuana to give the officers probable cause to search, but we need not discuss that distinction in this case. Some cases, including at least one cited by the State, stand for the proposition that the smell of marihuana gives "reasonable suspicion” to detain or to investigate. See Isam v. State, 582 S.W.2d 441 (Tex.Cr.App. 1979); Tardiff v. State, 548 S.W.2d 380 (Tex.Cr.App.1977).

      . Any hearsay information used to support a warrant must be shown to be credible or reliable. Winkles v. State, 634 S.W.2d 289, 292 (Tex.Cr.App.1981). Officer Vines testified that he did not know who the informant was. The officers observed nothing except the smell of burnt marihuana that tended to corroborate the anonymous tip. Under the facts, the tip alone would not furnish even reasonable suspicion to the officers. Ebarb v. State, 598 S.W.2d 842, 845 (Tex.Cr.App. 1979). We need not express an opinion whether the anonymous tip plus the odor of burnt marihuana could furnish probable cause for the warrant.

      . The fact that we have held that a determination of whether the odor of burnt marihuana furnishes probable cause for a search warrant. is best made by a neutral magistrate means that we need not decide whether exigent circumstances exist that would normally allow a warrantless search of the premises.

      . Article 38.23(a) states that:
      No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

      . The Court of Criminal Appeals recently held that a suspect's consent could serve to attenuate the taint of an illegal entry into a home. Reasor v. State, 12 S.W.3d 813 (Tex.Cr.App.2000)(not yet reported).