text:
    The CITY OF HOUSTON, Appellant v. Anja COTTON, Appellee.
    No. 14-03-00637-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 28, 2005.

      Constance K. Acosta, Timothy J. Higley, Houston, for appellant.
    Martin A. Shellist, Houston, TX, for ap-pellee.
    Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
   SUBSTITUTE OPINION

EVA M. GUZMAN, Justice.

We withdraw our opinion of March 22, 2005, and issue this substitute opinion.

Anja Cotton sued appellant, the City of Houston, under the Texas Whistleblower Act. She alleged the City terminated her employment as a sanitarian in retaliation for her having reported violations of law by two of her superiors. Following a bench trial, the court awarded Cotton $32,000.00 for past lost wages; $162,108.42 for attorney’s fees; $9,570.97 for costs; $10,607.40 for prejudgment interest on the lost wages; and post-judgment interest. In four issues, the City challenges the trial court’s conclusions of law and the legal and factual sufficiency of the evidence to support the trial court’s findings of fact, and also argues the trial court abused its discretion by awarding Cotton damages and attorney’s fees when she failed to comply with the discovery rules. Concluding there is no evidence to support the trial court’s finding Cotton made reports of violations of law in good faith, we reverse and render judgment in favor of the City.

I.Factual and Procedural Background

Beginning in December 1992, Cotton was a sanitarian with the City’s Department of Health and Human Services (“Department”). Her duties included regularly inspecting restaurants and other food establishments in Houston to ensure they were operating in compliance with the City’s health code and issuing citations for code violations she observed. In 1996, Cotton and a few co-workers were worried that municipal citations they had issued were being voided or destroyed by their immediate supervisor, Juan Munguia, and Chirag Bhatt, Manager of the Department’s Bureau of Consumer Health. They believed Bhatt was doing so as favors or for monetary gain. During this period, the Department did not have an accounting or log system for citations, and it was not uncommon for supervisors, as a matter of discretion, to void the citations issued by subordinates.

In October 1996, Bernard Silverman, also a sanitarian, filed a complaint with the City’s Office of Public Integrity Review Group, predecessor of the present Office of the Inspector General (“OIG”). Silverman complained Bhatt, with the accommodation of other supervisors, was “fixing” tickets for specific establishments.

On February 10, 1997, Cotton provided OIG a sworn affidavit, invoking the protections of the Texas Whistleblower Act (“the Act”), and stating she wished “to file a formal written complaint asserting that members of the management team of the Health Department knowingly and willingly destroy Municipal Court Citations.” She also stated citations were “continuously [sic] being pulled, voided and thrown away.” She alleged that “[s]ince Bhatt became Division Manager of Consumer Health, enforcement of food and health [sic] has become non existing [sic] in certain food establishment [sic].” Finally, Cotton stated some establishment owners would tell inspectors that Bhatt and another supervisor would pull tickets if any were issued to them, with the result that some inspectors stopped issuing citations or took citations directly to municipal court because they feared the citations would otherwise be pulled.

On July 2, 1998, OIG sent Department Director Dr. Mary Kendrick a copy of the Summary and Conclusions to the OIG Investigation Report. The Summary and Conclusions indicate “[s]tatements obtained by Officer Calix [the investigating officer] revealed a routine pattern in which Sanitarians were impeded from enforcement of the Health Code by either Mr. Bhatt, or the Chief Sanitarians under him, by either voiding the citations or going to the business to prevent them from being issued.” The investigation “revealed no evidence of supervisory personnel receiving any monetary benefit for dismissing citations.” The case was presented to the Harris County District Attorney’s office for review, but the office found no evidence of criminal conduct, and the case was concluded without charges being filed. Before the investigation concluded, Earl Travis, Department Deputy Director, had instituted a policy requiring that he approve the cancellation of all Consumer Health citations until further notice.

On August 9, 1998, a Sunday, Cotton inspected a Fiesta Mart grocery store. She submitted an inspection report indicating she had conducted the inspection from 12:44 p.m. until 8:45 p.m. and had inspected eight departments, including a pizza bar. Salah Assem, the Fiesta store manager, signed each of the eight pages of the report.

Cotton submitted her overtime request to Munguia. Munguia then presented the overtime request to Bhatt for approval. At that time, Bhatt told Munguia to do a targeted Quality Assurance (“QA”) audit on Cotton’s August 9 Fiesta inspection.

Munguia conducted the QA audit on August 17, 1998, and took Assem’s statement. Assem stated they walked through all departments, the entire inspection took about one to one and a half-hours, and it concluded about 1:45 p.m. According to Assem, Cotton then called her husband to pick her up. Assem stated that on her way out, Cotton said, “ ‘[B]y-the-way, if anyone asks, I was here until 8:45.’ ” That same day, August 17, 1998, Bhatt recommended Cotton for indefinite suspension.

On September 18, 1998, Kendrick notified Cotton in writing of the recommendation that her employment be terminated. The August 9, 1998 Fiesta inspection formed the basis of an allegation of falsification of a legal document; and another inspection, the basis of an allegation of violation of standards of conduct.

By letter dated November 5, 1998, May- or Lee Brown notified Cotton he was indefinitely suspending her for falsifying food inspection reports, fraudulently receiving overtime, and abusing her official authority, based on her conduct during the two inspections.

Cotton appealed to the Civil Service Commission. On December 11, 1998, the Commission sustained Mayor Brown’s action.

Cotton then sued the City, alleging the City had terminated her employment because she reported Bhatt’s and Munguia’s alleged violations of the law to the Houston Police Department’s Public Integrity Unit. Specifically, she alleged:

During 1996, [Cotton] learned many of the citations she and other Sanitarians issued were revoked by her immediate supervisors, Juan Munguia and Chirag Bhatt, without her knowledge or consent. The revocation of the citations was in violation of the City of Houston policy regarding Health Code violations and the laws of the State of Texas. In essence, it was believed that Bhatt and Mungia [sic] were destroying government property, falsifying government records, and taking bribes from commercial establishments.

Following an eight-day trial to the bench in May 2002 and a hearing on attorney’s fees in February 2003, the trial court rendered final judgment in favor of Cotton on February 28, 2003. The City filed a motion for new trial, which was denied by operation of law. On June 11, 2003, the trial court filed the following findings of fact and conclusions of law:

Findings of Fact:
1. Plaintiff was an employee of the City of Houston Health and Human Services Department.
2. Plaintiff made reports of violations of law to the City of Houston Office of Inspector General.
3. Plaintiff made her reports of violations of law in good faith and to an appropriate law enforcement agency.
4. Plaintiff falsified her time records on August 9, 1998, to show that she was at the Fiesta store for over 8 hours. Based on her falsified report, Plaintiff requested and was paid overtime for hours she did not work.
5. The investigation of Plaintiffs time records that lead [sic] to Plaintiffs termination would not have occurred when it did, but for her reports of violations of law to the Office of Inspector General. Hence, but for her reports of violations of law, Plaintiff would not have been terminated when she was.
6. Plaintiff suffered past lost wages in an amount of $32,000.00.
7. Plaintiff is entitled to recover prejudgment interest on lost wages at 10% per annum in the amount of $10,607.40.
8. Reasonable and necessary trial attorney’s fees are $162,108.42. Reasonable and necessary attorney’s fees in the event this case is appealed to the Court of Appeals are $15,000.00. Reasonable and necessary attorney’s fees in the event this matter is appealed further to the Texas Supreme Court are $7,500.00.
9. Plaintiff has incurred costs of court in the amount of $9,570.97.
Conclusions of Law:
1. The City of Houston has violated the Texas Whistleblower Act, Texas Gov. Code, [ ] § 554.002(a).
2. Pursuant to the Texas Whistleblower Act, Texas Gov.Code, §§ 554.003(a) and (b), Plaintiff is entitled to Judgment against the City of Houston as follows:
a. $32,000.00 for past lost wages.
b. $10,607.40 for prejudgment interest.
c. Trial attorney’s fees of $162,108.42.
d. Conditional appellate attorney’s fees of:
i. $15,000.00 in the event of an appeal to the Court of Appeals.
ii. $7,500.00 in the event of a further appeal to the Texas Supreme Court.
e. $9,570.97 as costs of court.
f. Post judgment interest at 10% per annum on the entire sum (a-e, above), from the date of judgment until paid.

The City now appeals, challenging the trial court’s conclusions of law and the factual and legal sufficiency of the evidence to support selected findings of fact. The City also challenges the trial court’s admission of evidence on, and the award of, damages and attorney’s fees.

II. Analysis

A. Standard of Review

We review conclusions of law de novo to determine whether they are correct. Martm-Simon v. Womack, 68 S.W.3d 793, 796 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). We will uphold conclusions of law if the judgment can be sustained on any legal theory supported by the evidence. Id. Thus, incorrect conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct legal theory. Id.

In reviewing a trial court’s findings of fact for legal and factual sufficiency of the evidence, we apply the same standards we apply in reviewing the evidence supporting a jury’s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). When the appellate record contains a reporter’s record as it does in this case, findings of fact are not conclusive on appeal if the contrary is established as a matter of law or if there is no evidence to support the findings. Material P’ships, Inc. v. Ventura, 102 S.W.3d 252, 257 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). When, as in the present case, both legal and factual sufficiency challenges are raised on appeal, the appellate court must first examine the legal sufficiency of the evidence. Trimble v. Tex. Dep’t of Protective & Regulatory Serv., 981 S.W.2d 211, 217 (Tex.App.-Houston [14th Dist.] 1998, no pet.).

In conducting a legal-sufficiency review, we view the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex.2001). We may sustain a legal-sufficiency, or no-evidence, point if the record reveals one of the following: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence established conclusively the opposite of the vital fact. See Uniroyal Goodrich Tire Co. v. Martinez, Oil S.W.2d 328, 334 (Tex. 1998). If more than a scintilla of evidence exists, it is legally sufficient. Lee Lewis Constr., 10 S.W.3d at 782. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact’s existence. Id. at 782-83.

B. Is there legally sufficient evidence Cotton had a good faith belief the reported conduct was a violation of law?

In its third issue, the City asserts the evidence is legally insufficient to support the trial court’s finding that Cotton in good faith believed the conduct she reported to OIG was a violation of law. Good faith as used in the Act means (1) the employee believed the conduct she reported was a violation of law and (2) the employee’s belief was reasonable in light of her training and experience. Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996). The first, or subjective, prong of the test embodies the concept of “honesty in fact” and ensures an employee seeking a remedy under the Act must have believed she was reporting an actual violation of the law. See Tex. Dep’t of Transp. v. Need-ham, 82 S.W.3d 314, 320 (Tex.2002); Hart, 917 S.W.2d at 784-85. The second, or objective, prong ensures that, even if the reporting employee honestly believed the reported conduct was a violation of law, she receives protection under the Act “only if a reasonably prudent employee in similar circumstances would have believed that the facts as reported were a violation of law.” Hart, 917 S.W.2d at 785 (emphasis added); see Needham, 82 S.W.3d at 320. The objective reasonableness of an employee’s belief must be viewed in light of her training and experience. See Hart, 917 S.W.2d at 785.

The City asserts there is no evidence to support the trial court’s implied finding that a reasonably prudent employee in similar circumstances would have believed the facts Cotton reported were a violation of law. To analyze this issue, we must examine the facts Cotton reported. The body of Cotton’s report to the OIG reads, in pertinent part, as follows:

My name is Anja Cotton.... I have attained approximately sixteen (16) years of formal education and am competent to make this sworn affidavit. I have personal knowledge concerning the facts stated herein. The facts stated herein are true and correct, except those stated on information and belief, which are true and correct to the best of my information and belief.
My name is Anja Cotton and I am currently employed at the City of Houston Health Dept, as a Sanitarian I. I have worked for the City of Houston for approximately six (6) years. Mr. Munguia is my immediate Supervisor and my working relationship with him has been excellent.
First, I want to invoke the protections offered by the Whistle blower [sic] Act as defined in V.T.C.A., Government Code Section 554.002 (1994) and as established by case law ....
I wish to file a formal written complaint asserting that members of the management team of the Health Department knowingly and willingly destroy Municipal Court Citations. Since Mr. Chirag Bhatt became Division Manager of Consumer Health, enforcement of food and health [sic] has become non existing [sic] in certain food establishment [sic]. Citations are continuously [sic] being pulled, voided and thrown away. I personally wrote six (6) tickets to Stephen Food Store, located at 3902 Bellfort, ticket #04660433, 04660442, 04192605, 04660451, 4660415[sic], and 04660424 in 1996. These citations totaled eleven (11) violations. There is an unwritten policy within the Bureau of Consumer Health that is if [sic] an establishment refuses to close, then it is customary to issue tickets for as many violations that can be written, after receiving permission from your supervisor. I received Mr. Don Hsu [sic] permission to write the citations. A few weeks later I was looking through the voided ticket file which is kept at Ms. Renee Beckams’ [sic] desk. I found all six (6) citations written to the above food store voided out. After making copies of the citations I confronted my supervisor, Mr. Don Hsu about what I had found and he told me that Mr. Bhatt said he voided the citations because I had written to [sic] many. I asked Mr. Hsu, if that was the case, why did he pull all of them? Mr. Hsu could not answer my question. Secondly, some owners of establishments will tell inspectors that Mr. Don Hsu or Mr. Bhatt will pull tickets if any are issued to them. This has made some inspectors stop issuing citations or they take the citation directly to Municipal Courts, fearing the ticket will be pulled. Mr. Bob Tannis, Assistant Director has been made aware of the situation but insist [sic] that nothing is going on.

In this report, Cotton alleges specific facts relating to six citations she wrote involving Stephen Food Store. The report makes it clear these citations were voided and placed in the voided citation file.

In addition, during the course of the investigation, Cotton told Calix that the owner of Shivas Restaurant had told her Bhatt was going to “pull” tickets she would write. Cotton provided Calix with copies of voided citations involving Shivas Restaurant.

Cotton does not assert similarly specific facts showing that Bhatt or any other manager at the City of Houston Health Department was destroying, removing, or defacing any citations or, in other words, violating any law. Instead, to “prove” a reasonably prudent employee in her circumstances would believe Bhatt was destroying citations, Cotton relies on second-level hearsay (Bhatt told operators of some establishments, who told Cotton, he would “pull” or tear up tickets) coupled with the alleged disappearance of citations she wrote to the same establishments. Other than having her citations disappear or never enter the court system, however, Cotton offered no evidence to establish why a reasonably prudent employee in her circumstances would have believed the establishment operators when they told her of their beliefs that Bhatt was physically destroying citations. She points to Brown and Silverman’s similar beliefs, but the fact the three sanitarians may have shared the same belief begs the question of whether a reasonably prudent employee would have been justified in forming that belief.

Through Officer Miguel Calix’s testimony in the trial court and in her arguments on appeal, Cotton points to section 37.10 of the Texas Penal Code. See Tex. Pen.Code Ann. § 37.10(a)-(b) (Vernon 2004-05). Under this statute, a person commits a crime if he does any of the following:

• “knowingly makes a false entry in, or false alteration of, a governmental record;”
• “makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;”
• “intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;” or
• “makes, presents, or uses a governmental record with knowledge of its falsity.”

Tex. Pen Code Ann. 37.10(a)(1), (2), (3), (5).

Both Cotton’s report to the OIG and her trial testimony reflect she characterized managers’ actions at the Health Department as “pulling,” “voiding,” “throwing away,” or “destroying,” citations that had been written. Regardless of the generic terms Cotton may have used to characterize the conduct of the management team, the facts Cotton reported are that (1) she wrote six citations containing eleven alleged violations regarding Stephen Food Store, (2) Bhatt later voided all of the citations, which were placed in the file for voided citations, (3) owners of establishments, including Shivas Restaurant, told her Bhatt had said he would “pull” tickets, and (4) the Shivas citations she wrote were voided.

Granted, Cotton testified she believed going behind her back and tearing up or voiding tickets was a violation of the law. Nevertheless, Cotton presented no evidence to show why a reasonably prudent employee in her circumstances, with her training and over four years of experience as a sanitarian, would have believed that, by voiding and not proceeding with health department citations such as those she issued against Stephen Food Store, managers destroyed, concealed, or defaced government documents or otherwise violated section 37.10 of the Texas Penal Code. She also presented no evidence to show why a reasonably prudent employee, with her experience in a department where it was not uncommon for supervisors, as a matter of discretion, to void the citations issued by subordinates, would have believed the disappearance of citations she wrote gave credence to what establishment operators told her about Bhatt’s tearing up tickets.

Although Cotton directs this court’s attention to Calix’s testimony, his testimony does not support the objective prong of the good-faith test. Calix testified that, if Bhatt had destroyed, torn up, or thrown away a citation before it was in the municipal court system, there would have been no violation of the law; however, if Bhatt had done so once the citation was in the system, there would have been a violation. Calix testified a document was designated a “government document” once “it goes through the system.” Under both Calix’s testimony regarding section 37.10 of the Penal Code and the unambiguous language of that statute, if managers in the City of Houston Health Department, in the course of their official duties, mark citations as void or decide not to pursue them further, without destroying, concealing, removing, or otherwise impairing the verity, legibility, or availability of the citations, this conduct does not violate section 37.10. See Tex. Pen.Code Ann. 37.10(a).

Cotton also points to the following sentences in the OIG investigative report: “This investigation revealed sufficient evidence to confirm the original allegation of [sic] Mr. Bhatt and several supervisor’s [sic] destroying or dismissing citations. This investigation found, however, insufficient evidence to prove or disprove the allegations linking Mr. Bhatt or anyone else to criminal activity in obtaining illegal monetary benefits.” Calix, the author of the report, however, testified, “[A] ticket that’s destroyed in the sense I wrote it down meaning it was voided, meaning that it was not good at that time. Not destroyed in any sense of the word of shredding or tearing up, no, that’s not the way I meant it.”

In short, the only facts Cotton reported involved voiding — not destroying — citations; and there is no evidence a reasonably prudent employee in Cotton’s circumstances would have believed the voiding of tickets was a violation of law. After reviewing the record under the applicable standard of review, we conclude there is legally insufficient evidence to support the trial court’s implied finding that a reasonably prudent employee in similar circumstances would have believed the facts Cotton reported were a violation of law. See Harris County Precinct Four Constable Dep’t v. Grabowski, 922 S.W.2d 954, 956 (Tex.1996) (per curiam) (holding, although there was some evidence plaintiff subjectively believed conduct he reported violated the law, there was legally insufficient evidence this belief was reasonable); Lane v. Tex. Dept, of Health, No. 03-02-00579-CV, 2003 WL 21750608, at *3-*6 (Tex. App.-Austin Jul. 30, 2003, pet. denied) (mem.op.) (stating there was legally insufficient evidence plaintiffs subjective belief — that the conduct she reported violated the law — was objectively reasonable); Duvall v. Tex. Dept, of Human Servs., 82 S.W.3d 474, 482-83 (TexApp.-Austin 2002, no pet.) (holding there was no evidence a reasonably prudent employee in similar circumstances would have believed facts reported by plaintiff were a violation of law); Tex. Dep’t of Criminal Justice v. Terrell, 18 S.W.3d 272, 276-77 (Tex.App.Tyler 2000, pet. denied) (reversing and rendering judgment following jury trial because there was legally insufficient evidence a reasonably prudent employee in similar circumstances would have believed facts reported by plaintiff were a violation of law).

Although Cotton focuses on section 37.10 of the Texas Penal Code in her arguments concerning good faith, she states in a footnote in her brief that she “believed Bhatt’s favoritism with Indian restaurants resulted in kickbacks and bribery which are clearly violations of law.” To the extent Cotton asserts there is legally sufficient evidence to support an implied finding by the trial court that a reasonably prudent employee in similar circumstances would have believed the facts she reported constituted a violation of criminal laws against bribery and kickbacks, this argument lacks merit. The facts reported to the OIG by Cotton do not show that managers in the City of Houston health department were accepting bribes or kickbacks. Cotton does not state that any person was accepting bribes or kickbacks.

Although Cotton reported Bhatt voided citations, this is not by itself, a report of bribery. Bhatt’s voiding of citations could have stemmed from a difference in enforcement philosophy between Bhatt and Cotton. In her OIG report, for example, Cotton states, based on an “unwritten policy,” she set out to write as many citations for violations as she could against Stephen Food Store (which was not an Indian-owned establishment) because that store refused to close. Although she states she received permission from Hsu to write the citations, Bhatt apparently decided on a different approach. Cotton’s report does not include her beliefs regarding Bhatt’s reasons for voiding the citations, but there could have been explanations other than bribery or kickbacks. Stating Bhatt voided the citations is not in any way equivalent to reporting Bhatt accepted bribes or kickbacks from someone acting on behalf of Stephen Food Store. Similarly, although Cotton stated some establishment owners told sanitarians that Hsu or Bhatt would void citations issued against these establishments, reporting this conduct on the part of the establishment owners is not the same as stating Hsu and Bhatt are accepting bribes or kickbacks from these owners.

III. Conclusion

Having determined that there is legally insufficient evidence to support the trial court’s implied finding that a reasonably prudent employee in similar circumstances would have believed the facts reported by Cotton were a violation of law, we sustain the City’s third issue in this regard, and we need not address the City’s other issues. Accordingly, we reverse the trial court’s judgment and render judgment that Cotton take nothing from the City of Houston.

      . See Tex. Gov’t Code Ann. §§ 554.001-.010 (Vernon 2004).

      . The court also ordered that, if the City appealed the final judgment to the court of appeals, it would be liable for an additional sum of $15,000 for work associated with the appeal. If the City appealed to the Texas Supreme Court, it would be liable for $7,500 in addition to the $15,000.

      .OIG was created in February 1998 and was the agency that completed the investigation begun by Silverman’s complaint. Unless necessary to distinguish the two agencies, we refer to both as "OIG.”

      . According to a March 17, 1998 memorandum, sanitarians were required to work at least fifteen hours of overtime per week to reduce a backlog.

      . Although at points both Munguia and Bhatt testified Munguia suggested or requested the QA, both ultimately agreed Bhatt directed Munguia to do the QA audit.

      . At trial in 2002, the Fiesta bakery, cold deli, and coffee shop managers testified their departments had been inspected only briefly or not at all on August 9, 1998. One testified the Fiesta no longer had a pizza bar. The managers remembered the inspection because Sundays were busy and it was unusual to have an inspection on a Sunday.

      .There was also evidence that on August 27, 1998, Bhatt directed a memo to human resources manager Joe Kuhn recommending Cotton’s indefinite suspension.

      . Cotton sued the City in December 1998. The First Court of Appeals upheld the trial court’s denial of the City's plea to jurisdiction in 2000. See City of Houston v. Cotton, 31 S.W.3d 823, 824 (Tex.App.-Houston [1st Dist.] 2000, pet. denied).

      . The City also states it appeals findings of fact the district court omitted and notes it could not have filed a request for additional findings because the trial court purportedly filed its findings of fact and conclusions of law after its plenary period had expired. The City does not develop or explain the signifi-canee of these statements. A trial court is not required to make additional findings of fact and conclusions of law when they are directly contrary to, or inconsistent with, the original findings and conclusions of the trial court. Starcrest Trust v. Berry, 926 S.W.2d 343, 354 (Tex.App.-Austin 1996, no writ).

      . Under the Act, a "law” means (a) "a state or federal statute;” (b) "an ordinance of a local governmental entity;” or (c) "a rule adopted under a statute or ordinance.” Tex. Gov't Code Ann. § 554.001(1) (Vernon 2004). An employee need not prove an actual violation of the law. Llanes v. Corpus Christi In-dep. Sch. Dist., 64 S.W.3d 638, 642 (Tex.App.Corpus Christi 2001, pet. denied) (citing City of Brenham v. Honerkamp, 950 S.W.2d 760, 763 (Tex.App.-Austin 1997, writ denied)). However, for an employee to sustain a claim under the Act, there must be some law prohibiting the conduct of which the employee complains. Id. In other words, “to recover under the Act, an employee must have a good-faith belief that a law, which in fact exists, was violated.” Id. at 643.


source: Caselaw Access Project

author: J. HARVEY HUDSON, Justice.

license: Public Domain

text:
    Arthur Maurice MEINEKE, Appellant v. The STATE of Texas, Appellee.
    No. 14-04-00026-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 28, 2005.

      Bob Wicoff, Houston, TX, for appellant.
    Carmen Castillo Mitchell, Houston, TX, for appellee.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

J. HARVEY HUDSON, Justice.

Appellant, Arthur Maurice Meineke, was charged by indictment with the felony offense of arson. See Tex. Pen.Code Ann. § 28.02 (Vernon 2003). A jury found appellant guilty and the trial court, pursuant to a sentencing agreement, ordered him to serve 30 years’ confinement in the Texas Department of Criminal Justice, Institutional Division. In two points of error, appellant argues that the trial court: (1) erred by ordering him to serve an illegal sentence; and (2) lacked jurisdiction to hold a post-conviction hearing to correct the sentence. We affirm.

The record reflects that on the evening of May 30, 2003, appellant and his wife were engaged in a heated argument. At approximately 10:00 p.m., appellant’s wife left their mobile home. Appellant then set fire to his wife’s clothes and a portion of their home. Accordingly, appellant was subsequently indicted by a grand jury for arson. The indictment also contained two enhancement paragraphs alleging prior convictions for murder and aggravated assault.

Prior to trial, appellant elected to have a jury to both determine guilt and assess punishment. However, after the jury began deliberations, appellant entered into an agreement with the State whereby, if the jury found him guilty, he would switch his punishment election to the court in exchange for the court assessing punishment at 30 years’ confinement. The jury returned a guilty verdict on December 17, 2003, and in accordance with appellant’s agreement, the trial court orally pronounced sentence at 30 years.

After signing the judgment, the trial court apparently realized that, absent affirmative findings on the enhancement allegations, the thirty-year sentence was outside the limits for un-enhanced arson and, therefore, illegal. To correct this oversight, the court recalled appellant the next morning, December 18, 2003, and reconvened to make findings on the enhancements. Based on a docket entry, it appears the court arraigned appellant on the enhancement charges, accepted his pleas of “true” to both enhancement paragraphs, and reaffirmed its original sentence of 30 years.

In his first point of error, appellant contends the trial court exceeded its authority by entering an illegal sentence and by subsequently holding a post-conviction hearing on enhancement allegations to correct the sentence. Appellant claims that because the trial court initially made no findings on the two enhancement paragraphs, it impliedly found the allegations “not true.” Thus, the subsequent sentence of 30 years exceeded the statutory range of punishment and constituted an illegal sentence. Further, appellant argues that when the trial court attempted to re-litigate the enhancement allegations — and ultimately “re-sentence” him — the court exceeded its authority.

We first consider whether a trial court can correct an illegal sentence by holding a post-conviction hearing in order to enter findings that make the sentence comport with the law. In answering this question, appellant cites several cases for the proposition that once a trial court pronounces sentence, it is prohibited from making new findings in order to support the sentence.

First, appellant relies on Tooke v. State, 642 S.W.2d 514 (Tex.App.-Houston [14th] 1982, no pet.) and State v. Dickerson, 864 S.W.2d 761 (Tex.App.-Houston [1st Dist.] 1993, no pet.). In Tooke, this court reversed a trial court’s attempt to re-sentence a defendant after the trial court initially failed to consider an enhancement charge. 642 S.W.2d at 518. The court orally sentenced the defendant to imprisonment for “not less than 5 years nor more than 50 years.” Id. at 516. After realizing it had mistakenly overlooked an enhancement paragraph, the court proceeded to re-sentence the defendant to a term of “not less than 15 years nor more than 50 years.” Id. (emphasis added). The defendant argued on appeal that the court erred in re-sentencing him once the sentence had been entered. Id. at 518. Agreeing with the defendant, this court explained:

After sentence was first imposed on [the defendant], the trial court was without power to set aside that sentence and order a new sentence. Such attempted resentencing is null and void and of no legal effect. The original sentence was a valid and proper sentence. The court’s failure to consider the enhancement paragraph of the indictment prior to first sentencing [the defendant] should not enlarge the court’s power over the case.

Id. Consequently, this court modified the sentence to reflect the original 5 to 50 years’ punishment. Id.

Similarly, in Dickerson, the First Court of Appeals reformed a judgment to reflect the original sentence after a trial court attempted to re-sentence a defendant with enhancements. 864 S.W.2d at 764. The trial court initially held a punishment hearing which included evidence on two enhancement allegations. Id. at 761-62. The court then proceeded to sentence the defendant to two years’ confinement. Id. at 762. However, within a minute after the court pronounced the sentence, the State asked if the trial court considered and included the enhancements. Id. The court then immediately ordered the defendant to return to the bench, retracted the first sentence, and re-sentenced him to 25 years. Id. After the defendant complained of the decision to re-sentence him, the trial court reinstated the original two-year sentence. Id.

The State appealed, claiming that the 25 year sentence should have been upheld because the court “had the authority to correct an error in the assessment of punishment.” Id. at 763. In affirming the trial court’s original sentence, the First Court of Appeals echoed this court’s decision in Tooke and went on to explain that:

While ... the trial court meant to find the enhancement paragraphs true, three things occurred before it did so: (1) the court imposed a lawful punishment; (2) the court pronounced a valid and proper sentence; and (3) [the defendant] accepted the sentence. Under these procedural facts, the trial court was not free to “retract the sentence ... given here” and “resentence” [the defendant], regardless of the fact that the punishment originally assessed was the product of mistake or oversight.

Id. (emphasis in original). Accordingly, the court reformed the judgment by deleting the enhancement finding of “true” and changing the “25 years” to “2 years.” Id.

We do not find either of these cases dispositive of the issue presented in this case. We agree that both Tooke and Dickerson stand for the proposition that a court cannot retract a valid sentence and re-sentence a defendant to provide for greater punishment. See Dickerson, 864 S.W.2d at 763-64 (explaining that it is “too late” to change a sentence once a lawful sentence is imposed); Tooke, 642 S.W.2d at 518 (holding that when an original sentence is valid and proper, any attempt to re-sentence the defendant is “null and void”). In fact, Judge Cochran recently clarified this very point in a concurring opinion, in McClinton v. State, 121 S.W.3d 768 (Tex.Crim.App.2003). In reviewing the extent of a trial court’s authority to correct an illegal sentence, Judge Cochran explained that “[a] court does not have inherent authority to modify, alter, or vacate a valid sentence orally imposed solely by means of a later written judgment or docket entry.” Id. at 771-72 (Cochran, J., concurring) (emphasis added). However, changing a valid sentence after it already has been entered and making entries which correct an otherwise invalid sentence are two different issues.

Here, the trial court’s initial sentence was invalid. Texas jurisprudence undoubtedly recognizes a court’s authority to correct an invalid sentence. Id. (Cochran, J., concurring) (“[B]oth trial and appellate courts may always take cognizance of an illegal or unauthorized sentence, with or without the prompting of the parties.”); Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App.2003) (“There has never been anything in Texas law that prevented any court with jurisdiction over a criminal case from noticing and correcting an illegal sentence.”) (emphasis in original). The rationale is that a court has plenary jurisdiction over a case for the first thirty days after sentencing.

For example, a court has authority to receive a motion for new trial or a motion in arrest of judgment within that time period. See Tex.R.App. P. 21, 22; McClinton, 121 S.W.3d at 778 n. 1 (Cochran, J., concurring); In re State ex rel. Sistrunk, 142 S.W.3d 497, 503 (Tex.App.Houston [14th Dist.] 2004, no pet.). Furthermore, the trial court has authority to resolve the merits of those motions within 75 days after sentencing. See Tex.R.App. P. 21, 22; McClinton, 121 S.W.3d at 778 n. 1 (Cochran, J., concurring). A court also has authority to correct clerical mistakes in a judgment or order after the expiration of 30 days. See State v. Bates, 889 S.W.2d 306, 309 (Tex.Crim.App.1994) (holding that a court can enter a judgment nunc pro tunc even after it has lost jurisdiction of the case). Therefore, a trial court has all the necessary “inherent power to correct, modify, vacate or amend its own rulings” in order to effectuate its judgment. Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex.Crim.App.1998) (Meyers, J., concurring). “[S]o long as the court does not by its ruling divest itself of jurisdiction or exceed a statutory time table, it can simply change its mind on a ruling. The ability to do so is a necessary junction of an efficient judiciary.” Id. (emphasis added).

Therefore, it is clearly established that a trial court can correct an illegal sentence and can take whatever action is necessary, within its inherent powers, to do so. In fact, appellant concedes this point in his appellate brief. However, the bounds of these powers are unclear. Appellant contends that the court’s authority is limited to reducing an incorrect or illegal sentence. He further argues that the court is absolutely precluded from revising a sentence if it involves making findings on enhancements for the first time during re-sentencing.

In support of his contentions on this point, appellant relies on Ware v. State. In Ware, the Fort Worth Court of Appeals upheld a trial court’s decision to re-sentence a defendant — by reducing his sentence — in order to bring the sentence within the limits allowed under the Texas Penal Code. 62 S.W.3d at 353-55. The court initially entered a judgment which read “COUNT ONE AND TWO-SEVENTY FIVE (75) YEARS.” The defendant filed a motion for new trial in which he claimed the trial court erred when it sentenced him to 75 years on count two. He argued that the punishment for count two of the offense was limited to 20 years. The court agreed and held a subsequent punishment hearing at which it entered a nunc pro tunc judgment that effectively re-sentenced the defendant to a term of 10 years on the second count. On appeal, the defendant argued the court was without authority to re-sentence him because, if the first sentence was invalid, he was entitled to a new trial. The appellate court disagreed, and instead held that the trial court was acting within its plenary power to correct the sentence.

Appellant cites Ware for the proposition that if a court is going to correct an illegal sentence, it can only do so by reducing the sentence. However, we do not read Ware to be so limiting. Rather, we understand Ware to mean exactly what already has been established, i.e., that a court has plenary authority to correct an illegal sentence. The fact that the court of appeals in Ware permitted the trial court to correct the sentence by reducing it does not mean that reduction is the only method a trial court can use to correct an invalid judgment. See, e.g., Tex.R.App. P. 21, 22; McClinton, 121 S.W.3d at 771-78 & n. 1 (Cochran, J., concurring); Bates, 889 S.W.2d at 309; In re State ex rel. Sistrunk, 142 S.W.3d at 503. Moreover, appellant does not cite any authority that explicitly states a court’s plenary power is limited to reducing an incorrect sentence. Our own thorough review of the case law, similarly yields no authority. While we agree that a court cannot increase an otherwise valid sentence, we do not agree that a court is prohibited from entering findings which are intended to make legal an otherwise illegal sentence. This is particularly true where the court has not attempted to increase an otherwise valid sentence, but rather, merely entered corrected findings in order to make a sentence comport with the requirements of the law.

Moreover, in an unpublished opinion from this court, we upheld a trial court’s sentence after it held a post-conviction hearing in which the court made findings on two enhancement paragraphs. Lewis v. State, No. 14-97-01308-CR, 1999 WL 274904, at *1-4 (Tex.App.-Houston [14th Dist.], May 6, 1999, no pet.) (not designated for publication). In Lewis, the judgment was dated November 11, 1997, the docket sheet reflected that the court assessed punishment on November 13, and evidence showed the trial court held a subsequent hearing on punishment on November 18. Id. at *3-4. At the November 18 hearing, the trial court noted that the defendant previously had been sentenced to 20 years in prison but stated:

I was thinking about this case, although I said on the record that the defendant was sentenced to 2 to 20 years in prison, and of course, that was based on my finding the enhancement paragraphs true, it occurred to me I had never actually said that on the record. I omitted to put that on there, and I wanted to make this clear on the record that I made that finding.
I found both the first and second enhancement paragraphs to be true, prior to pronouncing sentence, but I failed to say that on the record.

Id. The trial court also entered handwritten notations on the judgment which indicated it had found the enhancements true. This court explained that the “trial court did not err because there is no requirement that the enhancement paragraphs be orally read to a defendant when the punishment is assessed by the trial court alone.” Id. (quoting Garner v. State, 858 S.W.2d 656 (Tex.App.-Fort Worth 1993, no pet.)). The defendant in Lewis also cited Tooke to support his argument that the trial court was without authority to enter post-conviction enhancement findings. However, this court explained that the defendant’s reliance on Tooke was misplaced because the trial court in that case attempted to set aside the first sentence and order a new sentence. To the contrary, this court concluded that “the trial court [in Lewis ] sub judice did not attempt to set aside its first judgment or re-sentence appellant.” Instead, the trial court merely took action to ensure its findings satisfied the requirements of the sentence actually imposed.

Lewis is directly applicable to the issue at hand in this case. Here, the trial court entered judgment on December 17, 2003, but held a subsequent hearing on December 18. Much like the trial court in Lewis, the court made findings on the record at the post-conviction hearing. As in Lewis, we similarly find that the trial court did not err by not orally reading the enhancements allegations in open court. The court was not required to make an oral pronouncement of its findings on the enhancements. See Turner v. State, 866 S.W.2d 117, 118 (Tex.App.-Fort Worth 1993, no pet.) (holding that a court does not have to pronounce a deadly weapon finding, but rather, the “only requirement ... is that the court enter a finding in its judgment”). While it certainly would have been better practice for the trial court to announce its enhancement findings prior to sentencing, its failure to do so was not error so long as it appears from the record that the court found the enhancements “true” and entered the sentence accordingly. See Garner, 858 S.W.2d at 660. Here, appellant virtually stipulated to the enhancement allegations by his acceptance of an agreed sentence. Based on appellant’s and the court’s acceptance of the enhanced sentencing agreement, we find ample evidence in the record to show the trial court found the enhancements “true” and entered the sentence accordingly.

We observe that when the trial court initially assessed a sentence of thirty years, the only evidence to support the enhancement allegations were three business records from the Harris Country Sheriff’s Department. Each of these records contained a description of appellant, a statement of the offense for which he had been convicted, and fingerprints. However, there was no additional evidence, such as expert testimony that the fingerprints were those of appellant. During the punishment stage of a trial, the State has the burden of proving “the defendant on trial is in fact the same defendant named in the ... alleged felony convictions.” Ex Parte Augusta, 639 S.W.2d 481, 485 (Tex.Crim.App.1982), overruled on other grounds by Bell v. State, 994 S.W.2d 173 (Tex.Crim.App.1999); see also Russell v. State, 790 S.W.2d 655, 657 (Tex.Crim.App.1990). Where the State fails to sufficiently prove the enhancement allegations, the defendant is entitled to a new punishment hearing. See Ware, 62 S.W.3d at 354-55. Accordingly, appellant contends he is entitled to a new trial on punishment. Id.

A trial court can — in the interest of judicial economy — exercise its plenary power and take actions necessary to correct, modify, vacate, or amend its rulings. Awadelkariem, 974 S.W.2d at 728 (Meyers, J., concurring); Ware, 62 S.W.3d at 354-55; Banks v. State, 29 S.W.3d 642, 645 (Tex.App.-Houston [14th Dist.] 2000, pet. ref d). Here, the trial court attempted to correct the error by amending its own rulings. Once the court realized it could not do so with the information before it, it brought appellant back before the court. In light of the fact that appellant agreed to the 30 year sentence and ultimately entered pleas of “true” to both enhancements, the trial court did not err. See Ex parte Shoe, 137 S.W.3d 100, 101 (Tex.App.-Fort.Worth, 2004, petgranted) (denying a challenge to an illegal sentence that appellant agreed to accept, citing similar cases from several states and analogous cases within Texas). Accordingly, we overrule appellant’s first point of error.

In his second point of error, appellant contends the trial court was without jurisdiction to hold the post-conviction hearing because he already had filed his notice of appeal. While filing a notice of appeal properly invokes the appellate court’s jurisdiction, it does not automatically terminate the trial court’s jurisdiction. See Ware, 62 S.W.3d at 353-54 (holding that a trial court has jurisdiction to act “at any time prior to the appellate record being filed in the court of appeals”) (citing Jones v. State, 795 S.W.2d 199 (Tex.Crim.App.1990)); see also Junious, 120 S.W.3d at 417. Even if we were to presume, as appellant argues, that he filed his notice of appeal on December 17 (prior to the court’s post-conviction hearing), the appellate record was not filed with this court until January 27, 2004. Therefore, the trial court still had jurisdiction over appellant’s case at the time it held the post-conviction hearing and rightfully had authority to amend its rulings accordingly. See Ware, 62 S.W.3d at 354. We overrule appellant’s second point of error.

The judgment of the trial court is affirmed.

      . As enhanced, the arson conviction was punishable by a term of "life, or for any term of not more than 99 years or less than 25 years.” See Tex. Pen.Code Ann. § 12.42(d) (Vernon Supp.2004-05). Without affirmative findings on the enhancements, the penalty for arson is limited to a term of "not more than 20 years or less than 2 years.” See Tex. Pen.Code Ann. § 12.33 (Vernon 2003).

      . Appellant alleges the trial judge apparently signed the judgment on December 17, 2003, but later interlineated an "8” over the "7.” He argues that this improperly made it appear that the judgment was signed and sentence was entered on December 18, 2003. Appellant also points out that the date on his Notice of Appeal was altered and complains that the docket entry reflecting what actually transpired was blacked out.
      A review of the judgment does, in fact, reveal two different dates. Written next to the entry for “Date of Judgment” is "12/17/03” and next to “Date Sentence Imposed” is “12/18/03.” However, while the trial court’s alterations may raise some question as to when each action actually took place, there was no impropriety in the court acting as it did. See generally Turner v. State, 116 Tex.Crim. 154, 31 S.W.2d 809 (1930) (" ‘The power of the court to alter its docket entries and records during the term wherein they are made, includes the right within such time to revise, correct and change its sentences, however formally pronounced ... ’ ”) (quoting 2 J. Bishop, Criminal Procedure § 1298 (2d ed. 1872)).

      .Appellant couches the issue in the following terms: “whether the trial court, upon revisiting the issue of punishment ... and in trying to correct the illegal sentencing [is] obligated to correct the sentence ... only to the extent that it was illegal, that is not by revisiting the issue of whether enhancements have been proven ... but simply by assessing punishment within the result which had been legally reached, viz., an implicit rejection of enhancements and a finding that Appellant be sentenced for (unenhanced) arson.” Therefore, appellant’s ultimate complaint is that he should have been sentenced to no more than twenty years. See Tex. Pen.Code Ann. §§ 12.33, 28.02 (Vernon 2003).
      On the other hand, the State frames the question as: "whether [the trial court] had legal authority to enter the exact same sentence, with a written finding on the enhancements, one day after orally pronouncing the sentence without an oral finding on the enhancements.”

      . Additional reasoning supporting our conclusion can be found in Junious v. State, 120 S.W.3d 413, 414-17 (Tex.App.-Houston [14th Dist.] 2003, pet. ref’d). There we explained that a trial court’s putative granting of a new trial on punishment was a "nullity.” However, we also note that the court acted within its plenary jurisdiction to reform punishment.

      . Although appellant does not specifically assert, as a separate point of error, that the evidence was insufficient to support a finding of "true" on the enhancements, he does argue in his brief that the trial court impliedly found the enhancements "not true” by pronouncing sentence without making affirmative findings on the enhancements.

      . Only an appellate court can order a new trial as to punishment only. State v. Hight, 907 S.W.2d 845, 847 (Tex.Crim.App.1995); see also Tex.Code Crim.Proc. Ann. art. 44.29 (Vernon Supp.2004-05). If a trial court orders a new trial due to insufficient evidence on punishment, it must order a whole new trial. See Ware, 62 S.W.3d at 354-55.

      . See, e.g., Tex.R.App. P. 23.1; Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996).