author: RICHARD BARAJAS, Chief Justice.

text:
    In re Berry H. EDWARDS and Volcanic Gardens Management Co., Inc. D/B/A Wet ‘N’ Wild Water World (Vgm), Relators.
    No. 08-04-00310-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 28, 2004.
    Berry H. Edwards, Anthony, pro se.
    Walter L. Boyaki, Miranda & Boyaki, El Paso, for Interested Party.
    Before Panel No. 2 BARAJAS, C.J., McCLURE and CHEW, JJ.
   OPINION ON PETITION FOR WRIT OF MANDAMUS

RICHARD BARAJAS, Chief Justice.

Relators, Berry H. Edwards and Volcanic Gardens Management Co., Inc. d/b/a Wet ‘N’ Wild Water World (VGM), filed a petition for writ of mandamus and motion for emergency relief. See Tex.R.App.P. 52.1, 52.10(a). Prior to the Court taking action on the petition or motion, Relators filed a motion to dismiss because the dispute has been resolved by agreement of the parties. We grant Relator’s motion and dismiss the petition and deny the motion for emergency relief as moot.


source: Caselaw Access Project

author: ADELE HEDGES, Chief Justice. J. HARVEY HUDSON, Justice,

license: Public Domain

text:
    Opal Kate MILES a/k/a Kate O. Miles, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-00958-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 4, 2004.
    Rehearing Overruled Jan. 13, 2005.
    Timothy A. Hootman, Houston, for appellant.
    Shirley Cornelius, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and HUDSON.
   OPINION

ADELE HEDGES, Chief Justice.

Appellant Opal Kate Miles, a/k/a Kate O. Miles, brings this appeal from her conviction of aggravated theft of between $20,000 and $100,000. The jury found appellant guilty, sentencing her to nine years in prison and ordering her to pay a fine of $2,500. The sole issue in this case is whether the trial court erred by sustaining an objection that resulted in the deprivation of her presumption of innocence. We affirm.

Background

From 1997 until the year 2000, appellant worked as the ‘Foundation Accountant’ for the Hope Foundation for Retarded Children, a non-profit organization located in Friendswood, Texas. The Hope Foundation, founded in 1967, serves as a private, lower-cost alternative to high-priced or state institutions. In the indictment, the grand jury alleged that appellant, over a period of almost two years, stole an amount between $20,000 and $100,000. At the trial on the merits, the State presented evidence that appellant abused her position of trust with the Foundation by, among other things, writing herself checks that were not actual reimbursements, as appellant claimed. During appellant’s closing argument, the following exchange took place:

Appellant: One thing I do want to remind you of at this time is that there is a presumption of innocence throughout the trial. At this point in time, by law, my client is presumed to be innocent. And that—
The State: Judge, I’m going to object to that. Not after the trial’s over, I wouldn’t think. That’s the presumption before the trial starts.
The Court: Sustained.
Appellant: Well, this jury has not rendered its verdict. And until you render verdict, that presumption of innocence, I render to you, is in effect.
The State: I object to that as not a proper statement of the law.
The Court: Sustained. Let’s move on. It is this exchange that serves as the basis of appellant’s only point of error.

Discussion

Appellant argues that the court committed reversible constitutional error by sustaining the State’s objection, thus depriving her of her right to be presumed innocent until proven guilty.

All criminal defendants are presumed innocent until proven guilty beyond a reasonable doubt. TexCode CRiM. PROC. Ann. art. 38.03 (Vernon Supp.2004). This presumption lasts through the closing arguments, continuing until the jury retires to the jury room for its deliberation. Massey v. State, 154 Tex.Crim. 263, 226 S.W.2d 856, 860 (1950); McGrew v. State, 140 Tex.Crim. 77, 143 S.W.2d 946, 946-47 (1940).

A harm analysis is proper when a trial court commits error. Hawkins v. State, 135 S.W.3d 72, 76 (Tex.Crim.App.2004). A trial court commits error when it makes a mistake or violates a rule or statute. Id. The appellate court should examine the origin of the rule or statute violated to determine whether the error is constitutional in nature; if it is, Rule 44.2(a) of the Texas Rules of Appellate Procedure applies. Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App.1998); Gray v. State, 133 S.W.3d 281, 284-85 (Tex.App.-Corpus Christi 2004, no pet. h.). Rule 44.2(a) requires reversal in cases in which constitutional error is committed “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Tex.R.App. P. 44.2(a).

In this case, the trial court committed error when it sustained the State’s objection regarding the presumption of innocence. According to the precedent laid out in McGrew and later followed by Massey, the presumption of innocence does not end when the presentation of evidence closes; instead, the presumption remains until the jury enters the jury room to deliberate. Massey, 226 S.W.2d at 860; McGrew, 143 S.W.2d at 947.

We must evaluate whether the court, in sustaining the objection, committed constitutional error. Even though the presumption of innocence is guaranteed by a Texas statute, the statute itself arises from a constitutional guarantee, that of a fair and impartial trial. See U.S. Const. amend. XIV; Tex.Code CRiM. PROC. Ann. art. 38.03 (Vernon 2004); Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (“[t]he presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice”); see also Oliver v. State, 999 S.W.2d 596, 599 n. 3 (Tex.App.-Houston [14th Dist.] 1999, pet. refd). By twice allowing the jury to hear an incorrect statement of the law, i.e., that the presumption of innocence does not exist past the close of the presentation of evidence, the court violated a rule stemming from a constitutional right and thus committed constitutional error.

Under Rule 44.2(a), we must determine whether, beyond a reasonable doubt, the error contributed to the appellant’s conviction. In Will v. State, the trial court made an incorrect statement to the jury regarding the presumption of innocence after the close of the State’s case and during the defense counsel’s opening statement. 794 S.W.2d 948, 950 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd). The First Court of Appeals held that any error was either waived by failure to object or, in the alternative, cured by the charge to the jury, which stated that “ ‘[a]ll persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.’ ” Id. at 951.

Citing Will, the State submits that appellant waived any error by failing to object. Id. However, in Blue v. State, the First Court of Appeals determined that constitutional error had been committed when the judge “imparted information to the venire that tainted the presumption of innocence, adversely affecting appellant’s right to a fair trial.” 64 S.W.3d 672, 673 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). The First Court had originally affirmed the trial court in an en banc opinion, citing the defendant’s failure to object to the statements as waiver of error. Blue v. State, 983 S.W.2d 811 (Tex.App.-Houston [1st Dist.] 1998) (en banc), rev’d, 41 S.W.3d 129 (Tex.Crim.App.2000). The Court of Criminal Appeals then reversed the First Court, ruling that the failure to object did not amount to a waiver of error since the trial judge’s comments were “fundamental error of Constitutional dimension” and thus required no objection. Blue v. State, 41 S.W.3d at 132-33 (Tex.Crim.App.2000) (en banc). On remand, applying Rule 44.2, the First Court found that it could not say beyond a reasonable doubt that the error of the trial court had not contributed to the conviction. 64 S.W.3d at 673. Here, the mere sustaining of the State’s objections by the trial court did not approach the extensive and egregious comments made by the trial court in the Blue cases.

At trial, the State presented testimony by, among others, an independent auditor of the Foundation’s accounts, Kathy Smith. Smith testified that appellant kept the accounts in such a way that documents or records such as payroll reports, deposit information, or petty cash information were inexplicably deleted, missing, or altered. Furthermore, the auditor testified that appellant, as bookkeeper, mingled funds in various accounts and failed to maintain proper internal controls designed to insure safety and to prevent fraud. The auditor also found irregularities in the way appellant reimbursed herself for supposed grocery purchases or deducted (or failed to deduct) her social security, health insurance, and payroll taxes. Smith estimated that appellant had misappropriated between fifty-five and sixty thousand dollars.

Before closing arguments began, the trial court charged the jury. Included in the jury charge was the following:

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that she has been arrested, confined, or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at her trial. The law does not require a defendant to prove her innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case.

Although Will is not controlling, we do find it instructive. 794 S.W.2d at 950. Any harm from the court’s error with regard to the presumption of innocence would have been lessened, if not altogether erased, both by the charge and by the presumption that the jury followed the instructions in the jury charge. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex.Crim.App.2003); Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App.1998). Furthermore, although by law the presumption of innocence carries into the jury room, it is continually rebutted and eroded throughout the trial by the presentation of contrary evidence by the State. While jurors must be impartial deliberators, that requirement does not necessarily mean that they will enter the jury room without some sense or opinion of the defendant’s guilt or innocence. As Justice Frankfurter pointed out, and as noted by Justice Hudson in Oliver, we “should not be ignorant as judges of what we know as men.” Watts v. Indiana, 338 U.S. 49, 52, 69 S.Ct. 1357, 93 L.Ed. 1801 (1949); Oliver, 999 S.W.2d at 599.

Taking into account both the evidence presented against the appellant and the fact that the jury had already been charged as to the presumption of innocence, we can say beyond a reasonable doubt that the error committed by the trial court did not contribute to the appellant’s conviction. We therefore affirm the judgment of the trial court.

HUDSON, J., concurring.

J. HARVEY HUDSON, Justice,

concurring.

The majority holds that the presumption of innocence persists until a verdict is returned by the jury. There is both state and federal authority to support this position, and I fully join the majority in that holding. The Texas Court of Criminal Appeals has stated, for example, that a defendant “is presumed to be innocent until his guilt is proven. That presumption should exist in the minds of the jury when the case begins and continue until all the evidence is in. He is still presumed to be innocent, in law, until the jury has returned its verdict of guilt.” Runnels v. State, 152 Tex.Crim. 268, 213 S.W.2d 545, 547 (1948) (emphasis added). But while I have no quarrel with the majority’s holding, I write separately to address what seems at first to be a logical fallacy in Runnels, namely, that jurors must consider the defendant to be actually innocent after hearing all the evidence.

Here, the record shows that after both sides had rested, appellant’s counsel informed the jury, “At this point in time, by law, my client is presumed to be innocent.” The State’s attorney immediately objected and argued, “Not after the trial’s over, I wouldn’t think. That’s the presumption before the trial starts.” The trial court sustained the prosecutor’s objection, and we find such ruling was error, albeit harmless.

The prosecutor’s confusion stems from the fact that the presumption of innocence has no correlation with actual innocence. See Zimmerman v. State, 860 S.W.2d 89, 97 (Tex.Crim.App.1993) (holding the presumption of innocence does not carry with it the connotation that a defendant is in fact innocent). In fact, there is nothing about the presumption of innocence that “renders” the defendant innocent. Rideau v. State, 751 S.W.2d 248, 250 (Tex.App.-Beaumont 1988, no pet.) Rather, the presumption of innocence is merely “a ‘shorthand’ substitute for substantive criminal law.” Madrid v. State, 595 S.W.2d 106, 110 (Tex.Crim.App.1979). It is an expression of the State’s burden to prove the defendant’s guilt. In other words, it is simply another way of saying the burden of proof rests entirely upon the State. This linkage between the presumption of innocence and the State’s burden of proof is seen in statutory references, case law, and legal commentaries. For example, both the Penal Code and Code of Criminal Procedure state:

“All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.”

Tex Pen.Code Ann. § 2.01 (Vernon 1994); TexCode CRiM. PROC. Ann. art. 38.03 (Vernon Supp.2004) (emphasis added). Likewise, in Rideau v. State, the court observed that “the presumption serves as a reminder to the jury of the state’s burden to prove its case and as a caution that they are to consider nothing but the evidence in passing upon the accused’s guilt.” 751 S.W.2d 248, 250 (Tex.App.-Beaumont 1988, no pet.) (emphasis added). Similarly, in Madrid, v. State, the court remarked, “The so-called presumption of innocence is not an inference based on proven fact; rather, it is an assignment of a burden of proof prior to trial based on the substantive law requiring the State to prove guilt beyond a reasonable doubt. The presumption of innocence enters the courtroom with the defendant in each case.” 595 S.W.2d 106, 110 (Tex.Crim.App.1979) (emphasis added). Thus, the authorities seem to agree that the presumption of innocence “is not a presumption at all in the legal sense; the term presumption of innocence is merely an inaccurate, shorthand description of the right of the criminal defendant to remain inactive and secure, until the prosecution has taken up its burden and produced evidence.” 29 Am.Jue.2d Evidence § 236 (2004).

Thus, when defense counsel said “my client is presumed to be innocent,” he was saying no more than that the burden of proof rests entirely upon the State. Moreover, that burden remains upon the State throughout the trial until the jury reaches a verdict.

On the other hand, proof of guilt must be established progressively during the course of a trial. Thus, while the prosecution slowly builds its case through the admission of testimony and evidence offered at trial, it is simultaneously meeting its burden and, thus, eroding the presumption of innocence. Accordingly, when the evidence concludes, and both sides have rested, individual jurors will, in all probability, have already reached a conclusion regarding the guilt or innocence of the defendant. This is perfectly proper, and so long as the jurors understand that the burden of proof has never shifted from the State, they can honestly say that they presume the defendant to be innocent even while being convinced of his guilt beyond a reasonable doubt.

Accordingly, the “presumption of innocence” is a term of art, and jurors are very likely to unfairly misinterpret the expression to the State’s detriment. For example, if every juror, by law, had to believe the defendant is actually innocent prior to reaching a verdict, then every juror would have to believe the defendant is innocent when voting on a verdict. And if every juror believed the defendant is innocent at the time he or she votes, what must the verdict inevitably be? However, the prosecutor and trial judge were free to explain to the jury that the presumption of innocence is merely a short-hand expression regarding the State’s evidentiary burden and not a suggestion or intimation of the defendant’s actual innocence.

As a pure statement of the law, defense counsel’s remarks were entirely correct, and the trial court erred in sustaining the State’s objection. The error, however, as the majority ably concludes, was harmless beyond any reasonable doubt. With these observations, I respectfully concur.

      . Among the trial judge's comments concerning the defendant’s decision not to testify were the following:
      Because there are many reasons why defendants do not testify and I have seen many that have nothing to do with their guilt or innocence....
      It's like I tell all the juries and I get Sister Teresa and I represent her for mass murder. And she is guilty as driven snow and the jury doesn't know that but the defendant's attorney knows it because she admitted it privately. What am I going to do; I am going to put Sister Teresa on the stand because nobody thinks she would tell a lie. She looks like she would be a very honest person and I can put her on the stand. I could have a defendant as innocent as can be and looks guilty and I wouldn’t put her on the stand.

        Blue v. State, 41 S.W.3d at 130.
      The judge also told the jury that, "in the judge’s opinion, very few defendants, over a forty-year period, had been found not guilty.” Id. at 134 (Mansfield, J., concurring).

      . The language in Will regarding the presumption of innocence is dicta. Furthermore, Will was decided before the legislature rewrote old Rule 81 to create new Rule 44.2, incorporating the constitutional/non-constitutional harm analysis and thus mirroring Federal Rule of Criminal Procedure 52(a). See Andrew Murr, Comment, Texas Attempts to See the Light Through its Own Muddied Jurisprudential Waters: the Difficulties in Choosing the Applicability of Constitutional Versus Non-Constitutional Reversible Error, 34 Tex. Tech L.Rev. 297 (2003).

      . See Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000); Massey v. State, 154 Tex.Crim. 263, 226 S.W.2d 856, 860 (1950); McGrew v. State, 140 Tex.Crim. 77, 143 S.W.2d 946, 946-47 (1940).


author: WANDA McKEE FOWLER, Justice.

text:
    Timothy Marcellus GRANT, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-01154-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 2, 2004.
    Rehearing Overruled Jan. 27, 2005.

      Kim A. Parks, Houston, for appellant.
    Kelly Ann Smith, Houston, for appellee.
    Panel consists of Justices HUDSON, FOWLER, and FROST.
   OPINION

WANDA McKEE FOWLER, Justice.

Appellant Grant was sentenced to thirty years’ confinement after a jury found him guilty of failing to register as a sex offender; the charge was enhanced by Grant’s two prior felony convictions. Appellant contends the evidence is legally and factually insufficient to support the conviction. Appellant further contends section 62.04 of the Texas Code of Criminal Procedure violates the United States and Texas constitutions. Because we find no merit in these contentions, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was required to register as a sex offender by chapter 62 of the Texas Code of Criminal Procedure because he previously had been convicted of a reportable offense. In February of 2003, appellant was living in a halfway home while working and attending classes as a condition of his parole. On February 7, 2003, appellant left for work and never returned to the halfway home. Police arrested appellant on April 28, 2003, and he was charged with failing to report, as required, within seven days of his intended change of address. A jury convicted appellant of this offense and found that two enhancement paragraphs were true. The trial court then sentenced appellant to thirty years’ imprisonment.

ANALYSIS

Chapter 62 of the Texas Code of Criminal Procedure outlines the reporting requirements for persons convicted of a sexual offense. If a person who is required to register “intends to change address,” Article 62.04 requires the person to “report in person to ... the person’s primary registration authority” and to “provide the authority ... with the person’s anticipated move date and new address.” Tex.Code Crim. P. art. 62.04. This must be done “not later than the seventh day before the intended change.” Id.

Legal and Factual Sufficiency Challenges

Appellant contends the evidence is legally insufficient because there is no proof that he ever intended to move but, instead, simply left unexpectedly. Because his departure was not planned, appellant argues the State failed to prove he intended to move, and failed to prove he had an anticipated move date and new address. The following evidence supports the jury’s verdict. The State showed appellant left the halfway home, where he had been living on February 7, 2003, and did not return. The State also showed that, shortly before his departure, appellant discussed moving in with a Mend who was an evangelist. Appellant admitted he left the halfway home and did not return. Finally, the State showed appellant never contacted his primary registration authority to report his anticipated move date and new address.

Viewing this evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant was subject to the reporting requirement and that he violated article 62.04. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000) (en banc). We find the evidence legally sufficient to support appellant’s conviction. See Herrell v. State, No. 02-03-055-CR, 2004 WL 1175311, at *1-2 (Tex.App.-Fort Worth May 27, 2004, no pet.) (not designated for publication) (holding evidence was legally sufficient to support conviction under 62.04 when appellant left his halfway home without notice and previously had expressed a desire to move in with his brother); Perez v. State, No. 06-03-00067-CR, 2004 WL 351812, at *1-2 (Tex.App.-Texarkana Feb.25, 2004, pet. ref'd) (not designated for publication) (holding evidence was legally sufficient to support conviction under 62.04 when appellant maintained there was no evidence of his intention to leave nor that he anticipated leaving his halfway home).

Appellant also contends the evidence is factually insufficient to support his conviction. Appellant testified that, although he realized his sudden departure was a parole violation, he did not think he had violated the reporting requirements. Additionally, appellant points to testimony that he never expressed an intent to move out of the halfway home, either to the halfway home’s employees or to his parole officer. Viewing the evidence that supports the verdict, we do not find it is too weak to support proof of guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004); see Herrell, 2004 WL 1175311, at *1-2 (holding evidence was factually sufficient in similar circumstances); Perez, 2004 WL 351812, at *1-2 (holding evidence was factually sufficient in face of similar contentions). Nor do we find the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 485. We find the evidence factually sufficient to support appellant’s conviction.

Constitutional Challenge

In appellant’s final point of error, he asserts that article 62.04 is unconstitutional because it is impermissibly vague. A statute is impermissibly vague if it does either of the following: 1) fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden by statute, Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Cotton v. State, 686 S.W.2d 140, 141 (Tex.Crim.App.1985), or 2) encourages arbitrary and erratic arrests and convictions, Cotton, 686 S.W.2d at 141. Because article 62.04 does not implicate any First Amendment rights, we need only review the statute to determine whether it is impermissibly vague as applied to appellant. See Clark v. State, 665 S.W.2d 476, 483 (Tex.Crim.App.1984) (en banc) (“Turning to appellant’s vagueness challenge, since no First Amendment rights are involved, we need only scrutinize the Act to determine whether it is impermissibly vague as applied to appellant’s conduct.”) (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)); Rodriguez v. State, 47 S.W.3d 86, 88 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (“Where no First Amendment rights are involved, however, the court need only examine the statute to determine whether it is impermissibly vague as applied to the appellant’s specific conduct.”) (citations omitted); Ex parte Mercado, No. 14-02-00750-CR, 2003 WL 1738452, at *6 (Tex.App.-Houston [14th Dist.] Apr. 3, 2003, no pet.) (“Because we find no authority suggesting sex offenders have a constitutionally-protected right under the First Amendment ... we look only to see if [Chapter 62] is impermissibly vague as applied to appellant’s conduct.”) (citations omitted).

However, to make an as-applied challenge on appeal, appellant must have made a timely, specific objection in the trial court. Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App.1995) (stating that appellant’s ‘as applied’ challenge to a statute for vagueness was not preserved because no specific, timely objection was made); McGowan v. State, 938 S.W.2d 732, 742 (Tex.App.-Houston [14th Dist.] 1997), aff'd, 975 S.W.2d 621 (Tex.Crim.App.1998) (“We conclude that a challenge to the constitutionality of a statute as applied falls into the class of rights that may be forfeited by failure to assert them.”). We have reviewed the record and find that appellant failed to make this objection before his appeal. Because appellant did not preserve his as-applied challenge in the trial court, he cannot raise the issue on appeal. See Curry, 910 S.W.2d at 496; McGowan, 938 S.W.2d at 742.

Finding no merit in appellant’s points of error, we affirm his conviction.


text:
    Mark W. WOODSIDE, Appellant, v. Cathy K. WOODSIDE, Appellee.
    No. 08-03-00275-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 2, 2004.
    Mark W. Woodside, Midland, pro se.
    Sharon Letson Weathers, Midland, for Appellee.

      Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s granting of a summary judgment against Appellant related to a division of property in a prior divorce. For the reasons stated herein, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The substantive facts in this case are not disputed. Appellant, Mark W. Woodside, and Appellee, Cathy K. Woodside were divorced in 1999. Incidental to the divorce, the court divided the community estate of the parties and entered a decree of divorce on December 23, 1999. Though the decree itself is not included in the appellate record, the parties do not dispute the disposition of the property contained therein. Among other things, the trial court awarded the primary residence of the property to the Appellee and provided that upon its sale, the Appellant would be obligated to execute a promissory note payable to Appellee, in the amount of four hundred thousand dollars. Appellant was also obligated to make monthly payments to discharge his obligations under the note.

Appellant did not execute the promissory note under the decree and did not make any of the payments under the note as required. In March of 2000, Appellee filed a Motion for Enforcement of the Divorce Decree in state court. On March 18, 2000, Appellant and his company filed for Chapter 11 Bankruptcy protection. On November 13, 2001 the state court issued a letter ruling granting the Motion for Enforcement and awarding Appellee certain fees. Appellee filed an adversary proceeding in the Bankruptcy Court entitled Complaint to Determine Right to Discharge and Dis-chargeability of Debts and seeking to designate the money owed to her by Appellant as “nondischargeable.” On July 23, 2002, the Bankruptcy Court conducted a trial to determine the dischargeability of the debt. On August 16, 2002 the Bankruptcy Court issued a Final Judgment ruling that the payments owed by Appellant were not dis-chargeable.

Appellant appealed that ruling to the United States District Court for the Western District of Texas and the Honorable Royal Furgeson affirmed the Final Judgment and Findings of Fact and Conclusion of Law of the United States Bankruptcy Court on January 6, 2003. Appellant attempted to appeal that decision to the 5th Circuit Court of Appeals but said appeal was dismissed on June 3, 2003 for want of prosecution because of Appellant’s failure to file a record and a sufficient brief.

On March 13, 2003 Appellee filed a Motion for Partial Summary Judgment seeking judgment against Appellant on the obligations related to the $400,000 promissory note. Appellee’s motion was scheduled for submission on May 6, 2003. Appellant’s response was due on April 30, 2003. On April 30, 2003 Appellant filed a Motion for Continuance which was denied by the trial court. Thereafter, Appellant filed an untimely response to the Appel-lee’s Motion for Summary Judgment on May 5, 2003. The trial court entered an Order Granting Plaintiffs Motion for Partial Summary Judgment on May 12, 2003 granting judgment in favor of Appellee against Appellant for the $400,000 promissory note, $57,625.98 as the interest due under the promissory note, attorney’s fees to be determined, costs of court, and post-judgment interest.

On March 19, 2003 Appellee filed a motion for Entry of Final Judgment which requested that the court enter a final judgment in the case. The court finalized the Order of May 12, 2003 in a Final Judgment filed May 28, 2003 and awarded attorney’s fees in favor of Appellee Cathy Kinslow.

Appellant filed a notice of appeal on June 5, 2003.

II. DISCUSSION

In two issues on appeal, Appellant challenges the court’s granting of the Appel-lees’ motion for summary judgment. In a compound and virtually indecipherable argument, issue number one attempts to complain of the trial court’s granting of the motion for partial summary judgment because of a letter ruling of the trial court issued November 13, 2001 in response to Appellee’s Motion for Enforcement. Though the point of the issue is unclear, we read it as contending that, because a letter ruling issued by the trial court and dated November 13, 2001 did not make a determination regarding the characterization of the promissory note as “spousal support” the trial court may not make a determination regarding Appellant’s contractual obligations and now grant a summary judgment confirming Appellant’s obligations under the note.

Issue One attempts to raise “the affirmative defense of Collateral Estoppel” and seems to complain of the fact that the trial court did not consider Appellant’s untimely response to Appellee’s Motion for Summary Judgment for the reason that the Federal Bankruptcy Court addressed the issue of whether Appellant was obligated to payments under the note. As stated previously, the Federal Bankruptcy court ruled that the contractual obligation under the note was not dischargeable, the Federal District Court Judge affirmed the decision and the Appellant’s appeal to the Fifth Circuit was dismissed. Though raising the defense of collateral estoppel is not an appropriate appellate issue for our consideration, we observe that Appellant appears to ignore the fact that the federal courts have ruled against him.

Both issues are minimally briefed and do not properly preserve error for review by this court. When a trial court’s summary judgment rests upon more than one independent ground, as the judgment does here, the aggrieved party must assign error to each ground or the judgment will be affirmed on any ground not complained of. Nabors Corporate Services, Inc. v. Northfield Ins. Co., 132 S.W.3d 90, 95 (Tex.App.-Houston [14th Dist.] 2004, no pet.h.); Williamson v. State Farm Lloyds, 76 S.W.3d 64, 67 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Appellant’s issues do not direct this Court’s attention to any specific error on which he bases his complaint. See Tex.R.App.P. 38.1(e). A complaint on appeal must address specific errors and not merely attack the trial court’s order in general terms. McGuire v. McGuire 4 S.W.3d 382, 385 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex.App.-Austin 1996, no writ).

Because Appellant’s response to Appellee’s Motion for Partial Summary Judgment was untimely, Appellant did not raise any challenges to the motion for summary judgment and therefore may not raise any on appeal. Tex.R.Civ.P. 166a. In Issue One, appellant claims that the trial judge “improperly ruled in Appellee’s Motion for Partial Summary Judgment” without articulating a basis for error by the court. The issue makes reference to a previous letter ruling of the trial court but does not explain how the final judgment was granted in error. The argument in support of this issue appears to be attempting to attack the entry of the judgment for the reason that Appellant does not believe that the property has been properly characterized as “spousal support.” The argument cites to a few irrelevant cases and statutes which do not support an appellate argument. Issue One is thus waived for inadequate briefing. See Tex.R.App.P. 38.1(h); Stephens v. Dolcefino 126 S.W.3d 120, 125-26 (Tex.App.Houston [1st Dist.] 2003, no pet.); Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

The brief “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief.” Tex. R.App.P. 38.1(g). Rule 38 requires Appellant to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.App.-Houston [1st Dist.] 2002, review denied); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex.App.-Amarillo 1998, no pet.). This is not done by merely uttering brief conclusory statements, unsupported by legal citations. Tesoro, 106 S.W.3d at 128. By presenting such attenuated, unsupported argument, Appellant waives his complaints. We overrule Appellant’s Issue One.

Similarly, Issue Two appears to complain of the trial court’s granting of summary judgment in favor of Appellee because Appellant believes he can assert a defense of collateral estoppel to the proceedings. Like issue one, issue two is inadequately briefed and the purported legal challenge was not raised as a response to Appellee’s Motion for Summary Judgment. Appellant did not establish any basis for reversal of the trial court’s decision in his brief and appears to be asserting that the state court should not address the issue because the Federal Courts have issued a ruling. We overrule Issue Two.

We apply the usual standard of review for an order granting summary judgment without specifying grounds. See Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001). We find ample basis to affirm. Appellee moved for summary judgment under rule 166a. See Tex. R.CrvP. 166a. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997).

A party moving for a traditional summary judgment has the burden of proving that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(e); Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex.1985); Hernandez v. Koch Machinery Co., 16 S.W.3d 48, 51-52 (Tex.App.-Houston [1st Dist.] 2000, review denied). When deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as trae. Nixon, 690 S.W.2d at 548-49. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Id.

A plaintiff, when moving for summary judgment, is not under any obligation to negate affirmative defenses. An affirmative defense will prevent the granting of summary judgment only if each element of the affirmative defense is supported by summary judgment evidence. Kirby Exploration Co. v. Mitchell Energy Corp., 701 S.W.2d 922, 926 (Tex.App.Houston [1st Dist.] 1985, writ ref'd n.r.e.). A party raising an affirmative defense in opposition to a motion for summary judgment must either (1) present a disputed fact issue on the opposing party’s failure to satisfy his own burden of proof or (2) establish at least the existence of a fact issue on each element of his affirmative defense by summary judgment proof. Tesoro Petroleum Corp., 106 S.W.3d at 124; “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-37 (Tex.1972).

A review of the summary judgment evidence clearly established that Appellant was obligated to Appellee for the $400,000, interest, and attorney’s fees. Further, the record established that the obligation was not discharged by Appellant’s attempted bankruptcy. The trial court had ample evidence to support it’s judgment. The issues do not articulate a complaint about the trial court’s ruling other than generally complaining about the trial court’s granting of a summary judgment. We also note that Appellant has apparently been vigorously attempting to avoid his obligations under the 1999 divorce decree via every forum possible. Appellant, representing himself pro se, is asserting that he is entitled to claim the defense of collateral es-toppel to the findings of the trial court by asserting that certain findings in the Federal Bankruptcy Court should act as a bar to the findings of the trial court now on appeal. "What he fails to comprehend, however, is that the Federal Bankruptcy Court’s ruling was affirmed on appeal and its finding that he is obligated to pay Ap-pellee the sums owed related to the $400,000 promissory note is consistent with the trial court’s determination in the matter pending before at this time.

Furthermore, when a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 79 (Tex.1989).

The order granting Appellee’s motion does not set out any grounds or make any findings, it merely grants Appellee’s, awarding damages. Once again, we overrule Issues Nos. One and Two in their entirety.

Having overruled Appellant’s issues on review, we affirm the judgment of the trial court.

      . The record refers to Appellee as Cathy Kin-slow and Cathy K. Woodside. For purposes of appeal, we will refer to Appellee as Cathy K. Woodside.


author: ANN CRAWFORD McCLURE, Justice.

text:
    In re LUCCHESE BOOT CO., Relator.
    No. 08-04-00243-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 2, 2004.
    Antonio Martinez, Jr., Firth, Johnston & Martinez, El Paso, Jay M. Wallace, Gibson, Mcclure, Wallace & Daniels, L.L.P., Dallas, for relator.
    Luis Aguilar, El Paso, pro se.
    Javier Espinoza, Scherr, Legate & Ehrlich, PLLC, El Paso, for real party of interest.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION ON PETITION FOR WRIT OF MANDAMUS

ANN CRAWFORD McCLURE, Justice.

Relator, Lucchese Boot Company, filed a petition for writ of mandamus. See Tex. R.App.P. 52.1. Prior to the Court rendering a decision on the petition, Relator and the Real party in Interest filed a joint motion to dismiss because the dispute has been resolved by agreement of the parties. See Tex.R.App.P. 42.1(a)(2). We grant the joint motion and dismiss the petition as moot.


author: ADELE HEDGES, Chief Justice.

text:
    EMSL ANALYTICAL, INC., Appellant, v. Diane R. YOUNKER, Appellee.
    No. 14-04-00598-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 7, 2004.

      G. Scott Fiddler, Houston, for appellant.
    Randy Frazier, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
   OPINION

ADELE HEDGES, Chief Justice.

EMSL Analytical, Inc. appeals from the denial of its application for temporary injunction in its lawsuit against Diane Younker. EMSL alleges that Younker, its former employee, violated a covenant not to compete and a nondisclosure agreement when she went to work for one of its customers. Because EMSL failed to show that it would probably suffer imminent and irreparable injury in the absence of a temporary injunction, we affirm.

Background

EMSL provides environmental testing services to its customers. Younker went to work for EMSL in 2002 as a Microbiology Laboratory Manager. Prior to starting employment, EMSL required Younker to sign a covenant not to compete and nondisclosure agreement. The operative paragraph of this document reads as follows:

The Company promises to provide Employee with some Confidential Information and/or Trade Secrets of the Company. Employee agrees not to disclose, or aid and abet the disclosure to any person of Confidential Information or Trade Secrets of the Company. To enforce Employee’s promise not to disclose such Confidential Information or Trade Secrets, Employee agrees that during Employee’s employment with the company and for a period of twelve (12) months after termination of Employee’s employment, no matter how occasioned (or for a period of twelve (12) months after the entry of a final judgment of injunction in the event the Company seeks injunctive enforcement of this covenant), Employee will not, either for Employee’s own purposes or as an employee of or for the benefit of any other entity or person, directly or indirectly:
a) Engage or have any interest in any activity, venture or environmental laboratory involving asbestos analysis, lead analysis and environmental microbiology within the states of Texas and Louisiana;
b) Work for any customer of the Company within the states of Texas and Louisiana....

EMSL claims that Younker was subsequently given access to three types of confidential information: (1) a customer information database, (2) a laboratory quality assurance manual, and (3) a laboratory standard operating procedures manual.

In 2003, EMSL undertook a microbiology testing project for Lockheed Martin Space Operations. The project involved the testing of equipment to be used on the International Space Station. Younker supervised the project and reported the results to Lockheed. EMSL billed Lockheed $14,750 for the project. In 2004, Younker resigned from EMSL and began working for Lockheed at the Johnson Space Center. Her uncontroverted testimony was that she has not disclosed EMSL’s confidential information to Lockheed or anyone else. She further stated that her job responsibilities were completely different at the two companies: at EMSL, she provided analytical services on samples, and at Lockheed, she provides scientific support to engineers relating to both microbiological and non-microbiological equipment. She stated that Lockheed does not have its own microbiological laboratory and that, although a separate department of NASA does and she has been there to collect data from the laboratory, she has never given NASA any advice regarding its laboratory.

EMSL sued Younker, alleging breach of contract, breach of fiduciary duty, and misappropriation of trade secrets, and requesting a temporary restraining order and temporary and permanent injunctions. The trial court initially granted a TRO but, after an evidentiary hearing, subsequently denied the application for a temporary injunction. This interlocutory appeal is from the denial of the temporary injunction. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(4) (Vernon Supp.2004). In a single issue, EMSL contends that the trial court abused its discretion in denying the temporary injunction.

Standard of Review

EMSL initially questions whether the requirements for a temporary injunction involving a covenant not to compete are governed by traditional common law rules of equity or by the Covenants Not to Compete Act. Tex. Bus. & Com.Code Ann. §§ 15.50-15.52 (Vernon 2002); see also Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642, 643-44 (Tex.1994) (holding the Act preempts the common law relating to enforcement of covenants not to compete). We agree with the First and Ninth Courts of Appeals, in holding that the Act does not preempt the common law relating to temporary injunctions. Wright v. Sport Supply Group, Inc., 137 S.W.3d 289, 293 n. 1 (Tex.App.—Beaumont 2004, no pet.); Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 236-240 (Tex.App.—Houston [1st Dist.] 2003, no pet.) (en banc). As explained in detail in Cardinal Health, the clear language of the Act expresses an intention to govern only final remedies. 106 S.W.3d at 237-39. By its very nature, a temporary injunction is not a final remedy. Accordingly, we look to the common law rules governing temporary injunctions in determining whether the court below properly denied the application.

The purpose of a temporary injunction is to preserve the status quo of the litigation’s subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). To obtain a temporary injunction, the applicant must plead and prove: (1) a cause of action against the defendant, (2) a probable right to the relief sought, and (3) a probable, imminent, and irreparable injury in the interim. Id. The decision to grant or deny a temporary injunction rests within the trial court’s sound discretion. Id. A reviewing court should not reverse an order on a temporary injunction unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonable discretion. Id. When a consideration of the evidence is required, we view it in the light most favorable to the trial court’s order, indulging every reasonable inference in its favor. Amalgamated Acme Affiliates, Inc. v. Minton, 33 S.W.3d 387, 392 (Tex.App.—Austin 2000, no pet.). When, as here, the trial court does not make findings of fact or conclusions of law, we must uphold the court’s order on any legal theory supported by the record. Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 577 (Tex.App.—Austin 2000, no pet.).

Analysis

We focus our attention on the third required element: that the applicant prove a probable, imminent, and irreparable injury in the interim. See Butnaru, 84 S.W.3d at 204. EMSL appears to identify two possible reasons for needing a temporary injunction: (1) to prevent the possible release of their confidential information and (2) to preserve the possibility that Lockheed might need EMSL’s services in the future.

We begin by noting that this is not the typical covenant not to compete case where a former employer goes to work for a competitor and tries to take customers away. See, e.g., Wright, 137 S.W.3d at 293 (holding probable injury was shown where former employee acknowledged selling products to former employer’s customers). While there was evidence that Younker was violating the noncompete clause by working for a former customer of EMSL’s, the agreement itself states that the sole purpose of the noncompete clause was to enforce the nondisclosure clause. However, there was no evidence offered to show that Younker was currently violating the nondisclosure clause or that there was any likelihood that she would in the future.

Jason Dobranic, EMSL’s regional manager, testified that he had no knowledge of Younker disclosing any confidential information or of whether she worked in a microbiology lab for Lockheed. He further admitted that he had no knowledge of what Lockheed might ask Younker to do, but that there was a “potential” that Lockheed could ask her to do things that would involve EMSL’s confidential information. He said that he was “concerned” that EMSL could suffer irreparable harm if Younker was not prevented from working for Lockheed during the pendency of the lawsuit, and he could “envision” a situation in which Younker might confer some of EMSL’s confidential information to a laboratory at NASA. He also stated that EMSL’s project for Lockheed was a onetime assignment but that there was a “potential” for future special projects.

Younker testified that she did not take any confidential information with her when she left EMSL and that she has not disclosed EMSL’s confidential information to Lockheed, NASA, or anyone else. She further stated that her job responsibilities were different at the two companies and that she does not work in a microbiology lab for Lockheed. It was undisputed that Lockheed is not a competitor of EMSL.

Based on the evidence presented, EMSL established a theoretical possibility that Younker could take Lockheed away as a customer by doing in-house for them what they had on one occasion paid EMSL to do. However, there is no evidence showing that she is doing such work for Lockheed or has, will, or ever would do such work for Lockheed. EMSL also established a theoretical possibility that Younker could divulge EMSL’s confidential information to Lockheed or some other entity, but again, there is no evidence that she has done this or likely will do this. Indeed, Younker’s uncontroverted testimony refuted both of EMSL’s theoretical reasons for needing a temporary injunction. Further, the evidence supports the conclusion that her job responsibilities at Lockheed would not require her to use EMSL’s confidential information. See Cardinal Health, 106 S.W.3d at 242-43 (holding party failed to demonstrate probable injury from violation of noncompete clause and possible violation of nondisclosure clause where former employee did not need to use former employer’s confidential information in new job); cf. Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 552 (Tex.App.—Dallas 1993, no writ) (finding temporary injunction was proper where defendant held confidential information of plaintiff and was in direct competition with plaintiff). At most, the testimony of EMSL’s regional manager established only a fear of possible injury, and that contingency is not sufficient to support issuance of a temporary injunction. See Frey v. DeCordova Bend Estates Owners Ass’n, 647 S.W.2d 246, 248 (Tex.1983); Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 716 (Tex.App.—Corpus Christi 2001, no pet.).

Viewing the evidence in the light most favorable to the trial court’s order, we hold that EMSL has failed to establish that it faced “probable, imminent, and irreparable injury” in the absence of a temporary injunction. See Butnaru, 84 S.W.3d at 204. Consequently, the trial court did not abuse its discretion in denying the application for temporary injunction. EMSL’s sole issue is overruled.

The trial court’s judgment is affirmed.

      . Younker suggests that the trial court actually denied both temporary and permanent injunctions. Indeed, the court's order states "came to be heard [EMSL’s] Application for Temporary and Permanent Injunction.... [T]he court is of the opinion that said Application shall be denied.” (emphasis omitted). However, the record is clear that the court included the word "Permanent” in this order solely because that word was in the title of EMSL's pleading. In granting an initial temporary restraining order (based on the same pleading), the court simultaneously set a hearing on the temporary injunction. The court opened that hearing by stating "[wje’re here today on a request for a temporary injunction,” and at the close of the hearing, he stated "[t]he motion for Temporary Injunction is denied.” The court’s docket sheet also reflects only that it denied the temporary injunction. We further note that it would generally be improper for a trial court to rule on a permanent injunction prior to trial on the merits. State v. Gibson’s Distrib. Co., 436 S.W.2d 122, 124 (Tex.1968).

      . In one opinion, the Fifth Court of Appeals appeared to hold the opposite, that the Act does govern temporary as well as permanent injunctions. Hilb, Rogal & Hamilton Co. of Tex. v. Wurzman, 861 S.W.2d 30, 33-35 (Tex.App.—Dallas 1993, no writ) (stating that the Act supercedes equitable temporary injunction requirements but holding that appellant waived application of the statute by failing to raise it in the trial court). However, in a subsequent opinion, the Fifth Court cited Cardinal Health and expressly reserved the question of whether the Act superceded the equitable rules governing temporary injunctions. CSCS, Inc. v. Carter, 129 S.W.3d 584, 588 n. 1 (Tex.App.—Dallas 2003, no pet.).

      . We take no position at this juncture on whether a valid injunction could issue to prevent a former employee from working for a former customer.

      . Although not specifically raised by EMSL, it has been held that when a request for temporary injunction relates to a covenant not to compete, proof of a continuing breach of the covenant by a highly trained employee gives rise to a presumption of probable injury. See Unitel Corp. v. Decker, 731 S.W.2d 636, 641 (Tex.App.—Houston [14th Dist.] 1987, no writ). However, this presumption is certainly a rebuttable one. Cardinal Health, 106 S.W.3d at 236. To the extent this presumption applies to this case, we find that the offered evidence rebutted it.

      . EMSL states several times in its briefing that Younker admitted that she is currently using knowledge she gained as a result of EMSL’s procedures and methodologies. However, her testimony is very clear that although she uses knowledge she obtained while working for EMSL, she does not use any confidential information that she became privy to while at EMSL.

      . The cases EMSL primarily relies upon are easily distinguishable. EMSL contends that under State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 804 (Tex.1979), the mere fact that Younker continues to work for Lockheed is sufficient to mandate a temporary injunction. Texas Pet Foods involved a permanent injunction specifically authorized under the Texas Clean Air, Water Quality, and Render-ers’ Licensing Acts against continuing violations of those acts. Id. at 802-03. The court held that over a year’s worth of continuing, daily violations was sufficient to show a present or threatened violation as required by the acts for an injunction to issue. Id. at 803-05. In the case before us, EMSL does not claim that Younker's violation of the noncompete clause will probably cause it harm; EMSL instead claims only that the potential violation of the nondisclosure clause will probably cause it harm. Thus, Younker’s alleged continued violation of the noncompete clause alone cannot justify a temporary injunction.
      EMSL further argues that in order to demonstrate harm under Universal Health, 24 S.W.3d 570, it needs only to show that an award of damages would be inadequate compensation. While such proof may be sufficient to show that the possible harm was irreparable, nothing in Universal Health relieves an applicant of the burden of showing probable and imminent harm. Id. at 577-78. Indeed, in that case, the defendants, investors in a hospital, had decided to shut the hospital down, and the plaintiffs, doctors at the hospital, showed that shutdown of the hospital would probably cause them imminent and irreparable injury; thus, the temporary injunction was properly granted. Id. at 574, 578.


text:
    Ex parte Phyllis WOODALL.
    No. 08-03-00184-CR.
    Court of Appeals of Texas, El Paso.
    Dec. 9, 2004.
    Rehearing Overruled Jan. 12, 2005.

      Michael R. Gibson, El Paso, for Appellant.
    Steven L. Hughes, Mounce, Green, Myers, Safi & Galatzan, El Paso, for Ap-pellee.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Phyllis Woodall appeals from an order denying habeas corpus relief. At issue is the facial constitutionality of the municipal anti-smoking ordinance. We affirm.

FACTUAL SUMMARY

In 2001, the City of El Paso adopted an ordinance which prohibits smoking in all enclosed public places within the city, including food establishments, nightclubs, and bars. El Paso, Tex, Code § 9.50.030(7)(2001). It is unlawful for any person to smoke in any area where smoking is prohibited. El Paso, Tex, Code § 9.50.130(B)(2001). It is also unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this chapter to fail to comply with all of its provisions. El Paso, Tex, Code § 9.50.130(A)(2001). A person who is found guilty of violating the anti-smoking ordinance is subject to the following punishment:

1. A fine not exceeding one hundred dollars for the first violation;
2. A fine not exceeding two hundred dollars for a second violation within a one year period of the first violation;
3. A fine not exceeding five hundred dollars for an additional violation within a one year period of the first violation.

El Paso, Tex, Code § 9.50.130(C)(l)-(3) (2001).

The City of El Paso enacted the ordinance for three stated purposes: (1) to improve and protect public health by eliminating smoking in public places and places of employment; (2) to guarantee the right of nonsmokers to breathe smoke-free air; and, (3) to recognize that the need to breathe smoke-free air shall have priority over the choice to smoke. El Paso, Tex., Code § 9.50.010 (2001).

Woodall is part-owner of the Naked Harem Nightclub in El Paso and the land on which it is located. Prior to adoption of the City’s anti-smoking ordinance, Woodall had permitted both employees and patrons to smoke in the restrooms of the nightclub. On January 21, 2003, Woodall was smoking in the club when Officer Lance Lanahan of the El Paso Police Department approached and asked her to extinguish the cigarette. When Woodall refused, La-nahan issued her a citation for violating the ordinance by smoking in an enclosed public place. Lanahan did not observe anyone else smoking a cigarette in the nightclub. Woodall signed a promise to appear before a municipal court judge.

Woodall subsequently filed an application for writ of habeas corpus in district court challenging the constitutionality of the anti-smoking ordinance. The district court issued the writ, but after conducting a hearing on the merits of Woodall’s arguments, denied the requested relief.

HABEAS CORPUS

The writ of habeas corpus is an extraordinary writ. Ex parte Weise, 55 S.W.3d 617, 619 (Tex.Crim.App.2001). Neither a trial court nor an appellate court should entertain an application for writ of habeas corpus when there is an adequate remedy by appeal. Id. Additionally, an applicant must be illegally restrained to be entitled to relief. Id.; Gibson v. State, 921 S.W.2d 747, 753 (Tex.App.-El Paso 1996, writ denied). Woodall’s liberty is restrained by virtue of the citation issued by Officer Lanahan for violation of the anti-smoking ordinance and her promise to appear in municipal court made in connection with that citation. We now consider whether the issues raised by Woodall in her habeas application are cognizable in a pretrial writ application.

Ex Post Facto and Retroactive Law Challenges

In Issues One, Three, and Five, Woodall argues that the anti-smoking ordinance is unconstitutional because it is an ex post facto or retroactive law. These arguments center around Woodall’s contentions that she has for many years allowed smoking in her nightclub and any present restriction is an ex post facto or retroactive law because it restricts her use of her private property.

This is plainly an “as applied” challenge to the constitutionality of the anti-smoking ordinance. It is well established that a pretrial writ of habeas corpus may not be used to address an “as applied” challenge because it is not ripe for review. See Ex parte Weise, 55 S.W.3d at 620-21; Ex parte Cross, 69 S.W.3d 810, 815 (Tex.App.-El Paso 2002, no pet.). Instead, this type of challenge must be litigated in the trial court and adjudicated on direct appeal. See Cross, 69 S.W.3d at 815. Issues One, Three, and Five are dismissed for lack of subject matter jurisdiction.

Inverse Condemnation

In Issue Two, Woodall maintains that the anti-smoking ordinance violates Article 1, section 17 of the Texas Constitution because it is an inverse condemnation of a vested property right. The elements of a takings claim under Article 1, section 17 are that: (1) the governmental unit intentionally performed certain acts, (2) the acts resulted in a taking, damaging, or destruction of the property; and (3) the taking was for public use. Loyd v. ECO Resources, Inc., 956 S.W.2d 110, 128 (Tex.App.-Houston [14th Dist.] 1997, no pet.); see General Services Commission v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex.2001)(to establish takings claim, plaintiff must prove that the state intentionally performed certain acts that resulted in “taking” of property for public use). Woodall provides no argument or authority suggesting that this issue, which necessarily involves a civil claim for damages to the owner’s private real property, is cognizable in the context of a criminal habeas corpus proceeding. Issue Two is dismissed for lack of subject matter jurisdiction.

Exercise of Police Power

Finally, in Issue Four, Woodall argues that the anti-smoking ordinance is not a valid exercise of police power because it is arbitrary and unreasonable. Woodall also challenges the process by which the governing body enacted the ordinance because it allegedly failed to consider alternative measures. Because some aspects of Woo-dall’s argument can be construed as a challenge to the facial validity of the ordinance, we will address the merits.

A city ordinance is presumed to be valid. City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex.1982). The party attacking the ordinance bears an “extraordinary burden” to show “that no conclusive or even controversial or issuable fact or condition existed” which would authorize the municipality’s passage of the ordinance. Id. at 792-93. If reasonable minds may differ as to whether a particular ordinance has a substantial relationship to the public health, safety, morals, or general welfare, no clear abuse of discretion is shown and the ordinance must stand as a valid exercise of the City’s police power. See Quick v. City of Austin, 7 S.W.3d 109, 117 (Tex.1998). If the evidence reveals an issuable fact in this respect, the ordinance must stand. Id.

Woodall asserts that the ordinance is arbitrary and unreasonable because it imposes the views of non-smokers on the “freedom” of smokers to smoke in restaurants, bars, grocery stores, and other privately-owned businesses. However, a city may enact reasonable regulations to promote the health, safety, and general welfare of its people as a valid exercise of its police power. City of College Station v. Turtle Rock Corporation, 680 S.W.2d 802, 805 (Tex.1984). The regulation of smoking is a valid use of a state or municipality’s police power. See Fagan v. Axelrod, 146 Misc.2d 286, 297, 550 N.Y.S.2d 552, 559 (N.Y.1990)(analyzing constitutionality of state law which restricted tobacco smoking in indoor areas open to the public). Woo-dall does not dispute that the smoking restrictions, which are limited to enclosed public places, bears a substantial relationship to the public health, safety, and general welfare. While no Texas appellate court has addressed this issue, courts in other states have concluded that similar ordinances are a rational, legitimate means of protecting the general health, safety, and welfare of the community. See e.g., Foundation for Independent Living, Inc. v. Cabell-Huntington Board of Health, 214 W.Va. 818, 591 S.E.2d 744, 759-60 (2003)(clean indoor air regulations that restricted smoking in enclosed public places were, despite the exceptions, reasonable in relation to the public policy goal of a society free from tobacco use and were not arbitrary or unreasonable in their application); City of Tucson v. Grezaffi, 200 Ariz. 130, 137, 23 P.3d 675, 682 (Ariz.Ct.App.2001)(city ordinance that promoted public welfare by prohibiting smoking in restaurants was a rational, legitimate means of safeguarding the general health, safety, and welfare of the community). See also Fagan, 550 N.Y.S.2d at 559-60 (upholding clean indoor air act against multiple challenges to its constitutionality, and holding that the act represented accommodation between desire to limit exposure of nonsmokers to smoke and relevant economic and social considerations; “classification” into smokers and non-smokers was rationally related to legislative objective and did not create or apply to a suspect class or affect a fundamental right).

Woodall further argues that other more reasonable measures, such as requiring property owners to install special ventilation systems or to partition smoking areas from non-smoking areas, could be used to protect people from the dangers of secondhand smoke, yet still accommodate those who wish to smoke in enclosed public places. In an effort to show what alternative measures should have been considered, Woodall has asked this Court to take judicial notice of the anti-smoking ordinance enacted by the City of Austin. Among other things, the Austin ordinance allows business owners to obtain unrestricted and restricted smoking permits; it allows smoking in certain facilities if an enclosed non-smoking area is provided and the smoking area is mechanically ventilated to prevent smoke from entering a nonsmoking area, and no one under the age of 18 is admitted to the smoking area. Woo-dall did not offer any evidence showing what alternative measures were or were not considered by the governing body of the City of El Paso nor did she establish that the alternative measures she promotes are more reasonable or viable than the one chosen by the City.. For all we know, the City may well have rejected similar measures based upon evidence presented to the governing body. We will not conclude that the City of El Paso abused its discretion simply because another municipality enacted a different ordinance. If nothing else, a comparison of the El Paso and Austin ordinances demonstrates that reasonable minds may differ as to how best to protect the public from the dangers of second-hand smoke. In the absence of any evidence demonstrating an abuse of discretion, we conclude that the anti-smoking ordinance is a valid exercise of the City’s police power. See Quick, 7 S.W.3d at 117. Issue Four is overruled. We affirm the order of the trial court denying habeas corpus relief.

      . In her brief, Woodall asserts that the court reporter erroneously transcribed this portion of her testimony. According to Woodall, she actually testified that patrons and employees had been permitted to smoke in the business establishment, not just the restrooms. Woo-dall has not filed a motion to correct an inaccuracy in the reporter’s record pursuant to Tex.R.App. P. 34.6(e). Consequently, we will recite the evidence as stated in the reporter's record.

      . The citation, which is sworn to by Lanahan, charges Woodall with violation of the anti-smoking ordinance. In the space designated on the citation for "Offense # 1,” Lanahan wrote "Smoking Ord. Violation” and in the space designated for "Officer Notes,” he wrote, “Refused to put out cigarette.” The citation reflects that the offense occurred at the Naked Harem. Thus, the citation charges Woodall with violating the ordinance by smoking in an enclosed public place in violation of Section 9.50.130(B). Until Woodall enters a "not guilty” plea, the citation serves as the complaint charging her with violation of the ordinance. See Tex.Code Crim. Proc. Ann. art. 45.018 (Vernon Pamph.2004-05); State v. Shaw, 822 S.W.2d 807, 809 (Tex.App.Austin 1992, no pet.).

      . Article I, section 17, of the Texas Constitution provides: No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person. Tex. Const, art. 1, § 17.

      . During the course of this proceeding, the State has argued that Woodall lacks standing to challenge the constitutionality of that portion of the anti-smoking ordinance which allows a business owner to be prosecuted for failing to comply with the requirements of the ordinance. The State has taken the stance that Woodall is not being prosecuted as an owner who permitted another person to smoke in an enclosed public place, but rather as an individual who personally violated the ordinance by smoking in a prohibited place. Regardless of which section of the ordinance Woodall is alleged to have violated, Issue Four is addressed to the validity of the entire ordinance. Accordingly, we conclude that Woodall has standing to raise this issue on appeal.