source: Caselaw Access Project

author: KEASLER, J., MEYERS, J.,

license: Public Domain

text:
    The STATE of Texas v. Matthew Reid MECHLER, Appellee.
    No. 0075-04.
    Court of Criminal Appeals of Texas.
    Jan. 12, 2005.

      Brian W. Wice, Houston, for Appellant.
    David C. Newell, Asst. District Atty., Richmond, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court

in which KELLER, P.J., and WOMACK, JOHNSON, HERVEY, and HOLCOMB, JJ., joined.

After hearing testimony on Matthew Mechler’s pretrial motion, the judge suppressed his intoxilyzer results, relying on Mata v. State and Texas Rule of Evidence 403. Reviewing the case de novo, the Court of Appeals reversed the trial court by holding that Mata was inapplicable and Rule 403 was misapplied. We agree with the Court of Appeals’s result but find error in its failure to review for an abuse of discretion. Nevertheless, we affirm its judgment.

I. Factual and Procedural History

Deputy Clarence Golden pulled Mechler over upon observing him commit various traffic violations, including running off the road in executing a sweeping turn, rolling through a stop sign, and other erratic movements. Upon approaching Mechler’s vehicle, Deputy Golden detected an odor of alcohol and noticed Mechler’s movements were slow and sluggish in complying with his request for Mechler’s driver’s license and insurance. When asked if he had been drinking, Mechler stated, “A little.” After administering field-sobriety tests, Golden concluded Mechler was intoxicated and placed him under arrest. Nearly an hour and a half later, Mechler gave a breath sample indicating a blood alcohol concentration (BAC) of .165. The State’s information charged Mechler with driving while intoxicated, alleging intoxication under both an impairment definition, which is the loss of his mental and physical faculties, and a per se definition, or having a blood alcohol concentration of at least .08.

Mechler filed a motion to suppress the intoxilyzer results on two grounds. First, Mechler argued the State was unable to offer retrograde extrapolation testimony because.its expert could not testify on the requisite factors outlined by our decision in Mata v. State. Second, he claimed the intoxilyzer results were irrelevant under Rule 401, or alternatively, inadmissible under Rule 403 because their probative value was substantially outweighed by the danger of unfair prejudice.

At the suppression hearing, the trial court heard testimony from Deputy Golden, an officer who administered the breath test, and a technical supervisor employed by the Texas Department of Public Safety. Deputy Golden testified to his observations and conclusions concerning Mechler’s intoxication. His testimony included the reason for the initial stop, the smell of alcohol when he approached Mechler, and Mechler’s inability to perform various field-sobriety tests. Deputy Ressler testified to the administration of the breath test and was examined on his understanding of the intoxilyzer’s mechanics and tolerances. The trial court also heard testimony from Technical Supervisor Barbosa. After admitting she was unable to testify on the necessary Mata factors, the State conceded its inability to present extrapolation testimony.

The trial court ordered the intoxilyzer results suppressed. The trial court’s order stated,

Pursuant to the application of Texas Rule of Evidence 403 and State v. Mata, [Mata v. State][citation omitted] to the facts of this case, the probative value of the breath test results in this case was substantially outweighed by the danger of unfair prejudice due to the State’s inability to present breath test extrapolation evidence.

The court further stated, “All of the witnesses who testified were credible and this Court did not base its decision upon the credibility of the witnesses.” The State appealed.

II. Court of Appeals

The Court of Appeals reviewed the suppression order de novo. In applying Guzman v. State, , the court reasoned that a de novo standard of review was proper because the trial court’s decision did not involve an evaluation of credibility and the facts concerning the suppression issues were undisputed. The Court of Appeals found error in suppressing the intoxilyzer results based on Mata because the Mata decision was inapplicable to this case. After applying the Montgomery factors for analyzing a trial court’s Rule 403 ruling, the court further held the trial court erred in suppressing the test results under Rule 403. We granted Mechler’s petition for discretionary review to address whether the Court of Appeals erred in reversing the trial court’s suppression of Mechler’s breath-test results which was based on (1) Texas Rule of Evidence 403 and (2) Mata v. State.

III. Analysis

A. Mata

We begin with Mata. The Court of Appeals held that Mata was inapplicable to this case because Mata addressed only “the admissibility of expert testimony rather than test results.” We agree. Mata addressed the necessary factors needed to establish the reliability of expert testimony on retrograde extrapolation. In Mata, we stated that

we are not addressing whether retrograde extrapolation is necessary in order for the State to prove a defendant guilty in a DWI case. Nor do we address whether test results showing a defendant’s BAC at some time after the alleged offense are admissible at trial in the absence of retrograde extrapolation.

The trial court erred in suppressing the intoxilyzer results based on Mata.

B. Rule 403

1. Standard of Review

Mechler alleges that the Court of Appeals erred in evaluating the trial court’s suppression order de novo. While acknowledging that an order on a motion to suppress is normally reviewed for an abuse of discretion, the Court of Appeals concluded that a de novo standard is appropriate because there were no disputed issues and no need to observe the credibility and demeanor of witness testimony. We disagree.

We have long held that a trial court is entitled to broad discretion in ruling on a Rule 403 objection. In Montgomery v. State, we noted two significant rationales for this broad discretion. First, Rule 403’s language implies that a determination under this rule is inherently discretionary with the trial court. Rule 403 provides, in pertinent part, that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” The inclusion of the word “may” displays the drafter’s intent to vest the trial courts with substantial discretion. Second, the trial court is in a superior position to evaluate the impact of the evidence. Unlike the trial court, an appellate court “ ‘cannot weigh on appeal ... the intonation and demeanor of the witnesses preceding the testimony in issue ... nor can we determine the emotional reaction of the jury to other pieces of evidence....’”

In Guzman, we held that an appellate court may review de novo mixed questions of law and fact not involving an evaluation of credibility and demeanor. But we acknowledged that an abuse-of-discretion review is still the proper standard on a trial court’s evidentiary ruling. We explained that an appellate court’s review of a trial court’s evidentiary rulings generally does not involve mixed questions of law and fact.

It is true that the trial court stated, “All witnesses who testified were credible and this Court did not base its decision upon the credibility of the witnesses.” But a statement in a trial judge’s findings of fact and conclusions of law regarding the role witness credibility played in its decision cannot determine an appellate court’s standard of review. The court’s inclusion of this sentence in its findings does not grant it the ability to control how its rulings will be reviewed.

Finally, the fact that this Rule 403 contention was before the court in the form of a pretrial motion to suppress does not change the standard of review on appeal. When an objection on 403 grounds is raised at trial, we review the judge’s ruling for an abuse of discretion. In this case, the temporal or procedural posture of Mechler’s attempts to suppress the test results does not warrant different treatment or a deviation from the established abuse-of-discretion review. We find the principles set out in Montgomery and its progeny are advanced in this situation by applying an abuse-of-discretion standard.

The test for whether the trial court abused its discretion is whether the action was arbitrary or unreasonable. An appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. We turn now to the trial court’s remaining ground for suppressing the test results to determine if the court abused its discretion.

2. Application

A proper Rule 403 analysis includes, but is not limited to, four factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence. The fact that this Rule 403 determination occurred pretrial in the form of a motion to suppress does not alter either an appellate or trial court’s use of the factors outlined in Montgomery. But in such instances a trial court often will not have enough information before it to adequately apply these factors and assess whether the contested evidence’s probative value is substantially outweighed by its prejudicial effects. In this case, the trial court heard sufficient testimony at the suppression hearing necessary to properly evaluate the motion on Rule 403 grounds.

Probative Value

The first factor looks to the evidence’s probativeness or how compellingly the evidence serves to make a fact of consequence more or less probable. The Court of Appeals held that the intoxilyzer results were probative of intoxication under both the per se and impairment definitions of intoxication. We agree.

We recently held that intoxilyzer results are probative without retrograde extrapolation testimony. Mechler’s intoxilyzer results indicate that Mechler had consumed alcohol. As a result, they tend to make it more probable that he was intoxicated at the time of driving under both the per se and impairment definitions of intoxication. Mechler concedes that this factor weighs in favor of admissibility.

Irrational Impression

The second factor asks whether the evidence has the potential to impress the jury in some irrational but indelible way. The Court of Appeals found the admission of Mechler’s intoxilyzer results would not tend to impress the jury in an irrational way if the trial court instructed the jury to find guilt only if it found that Mechler was intoxicated at the time of driving. We agree with the Court of Appeals’s ultimate decision on this factor, but we reach our conclusion on different grounds.

Rule 403 does not exclude all prejudicial evidence.. It focuses only on the danger of “unfair” prejudice. “Unfair prejudice” refers.only to relevant evidence’s tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged. Here, the intoxilyzer results are undoubtedly prejudicial to Mechler, but they are not unfairly prejudicial because this evidence relates directly to the charged offense. This contested evidence does not have a great potential to impress the jury in an irrational way.

Time to Develop

The third factor looks to the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense. The Court of Appeals found that developing the evidence would not require an undue amount of time. The court reasoned that the intoxilyzer results are evidence of intoxication under both intoxication definitions and the proof under each definition is not mutually exclusive. The court stated

[cjlearly, a test showing that blood had a .10 alcohol concentration is probative evidence of a loss of faculties. Conversely, evidence of his failure to pass field sobriety tests immediately after driving his vehicle tends to make it more probable that the failed blood test or breath test taken an hour later accurately reflect the driver’s condition at the time of the offense.

The Court of Appeals also supported its holding by stating the State will not need an undue amount of time devoted to presenting the evidence because the State will not need to explain the reliability of retrograde extrapolation. The injection of retrograde extrapolation and the State’s need to present the extrapolation into this factor analysis is irrelevant to the disposition of this issue. The disputed evidence, and the subject of the motion to suppress, is the intoxilyzer results and not the retrograde extrapolation.

The more significant issue here is whether the jury would be distracted from consideration of the charged offense during the time needed to present the intoxi-lyzer results. Like the second factor’s analysis, the charged offense charges Me-chler with driving while intoxicated. Because the intoxilyzer results relate directly to the charged offense, a jury could not be distracted away from the charged offense regardless of the required time to present the results.

Need for the Evidence

The fourth factor focuses on the proponent’s need for the evidence. This last factor encompasses the issues of whether the proponent has other evidence establishing this fact and whether this fact is related to a disputed issue. Based on the suppression hearing testimony, the Court of Appeals found this factor weighed in favor of exclusion because the State had other probative evidence to establish Me-chler’s intoxication. We agree.

The trial court heard testimony from the arresting officer sufficient to dispel the argument for any “great need” of the test results. Officer Golden testified that Me-chler rolled through a stop sign and was driving erratically. He further testified that he smelled alcohol on Mechler’s breath and when he approached Mechler’s car. Mechler admitted to drinking “[a] little” alcohol and failed field-sobriety tests. In light of this other evidence probative of Mechler’s intoxication, the State does not have a great need for the test results.

In evaluating all of the Montgomery factors, we hold the sum of the factors weigh in favor of admissibility. The trial court abused its discretion in suppressing Me-chler’s test results on Rule 403 grounds.

IV. Conclusion

The Court of Appeals erred in applying a de novo standard of review instead of reviewing for an abuse of discretion. We find that the trial court erred in suppressing the test results under Mata because it is inapplicable to the facts here. After applying the Montgomery factors, we find the factors weigh in favor of admissibility and the trial court erred in suppressing the intoxilyzer results. Therefore, we affirm the judgment of the Court of Appeals.

MEYERS, J., filed a concurring opinion.

COCHRAN, J., filed a concurring opinion in which MEYERS, PRICE, and JOHNSON, JJ. joined.

MEYERS, J.,

filed a concurring opinion.

I agree with the majority that the court of appeals erred in failing to review this case for an abuse of discretion. I also agree with the holding that the trial court erred in suppressing the intoxilyzer results, but I reach this conclusion for a different reason than the majority.

The majority states that the court of appeals erred in conducting a de novo review, however, the majority makes the same mistake by conducting a Rule 403 analysis. As Judge Cochran states in her concurring opinion, there are factors that develop at trial that must be considered in a Rule 403 analysis. Therefore, a pretrial hearing is not appropriate in this situation. Because the majority is essentially conducting a de novo pretrial Rule 403 analysis, I cannot join the opinion and concur only in the result.

COCHRAN, J., filed a concurring opinion, in which MEYERS, PRICE, and JOHNSON, JJ., joined.

I concur in the majority’s resolution and agree with much of its reasoning concerning the admissibility of intoxilyzer results in the absence of retrograde extrapolation testimony. I write separately to emphasize two points: 1) the difficulty of making individualized Rule 403 rulings in a pretrial setting; and 2) the need to make individualized Rule 403 rulings on proffered intoxilyzer test results that account for the degree to which the result exceeds the legal limit of 0.08% as well as the time elapsed from driving until the test is taken. I do not understand the majority opinion to imply that intoxilyzer test results are always admissible in a DWI trial under Rule 403, only that, given the specific evidence in this case, the trial court abused its discretion in excluding this particular test result under Rule 403 at the pretrial stage.

A. Rule 403 rulings are context-driven and depend upon the specific evidence before the trial court at the time of the ruling.

First, as a general rule, most of Rule 403’s work of balancing probative value against the risk of unfair prejudice or confusion of issues is done during trial, not pretrial. As the Third Circuit has stated in discussing pretrial rulings concerning scientific evidence, it is rare that Rule 403 is an appropriate basis for the pretrial exclusion of evidence because the trial judge cannot ascertain potential relevance or the impact of countervailing factors without “ ‘a virtual surrogate for a trial record.’ ”

Second, Rule 403 rulings are largely idiosyncratic. Such rulings usually depend upon the precise evidentiary context of a particularized trial setting, taking into consideration the ebb and flow of trial testimony, the unique circumstances and facts, and the specific contested issues. Rule 403 rulings, because of their finely tuned balance of probative value versus unfair prejudicial effect, do not travel well from case to case. Indeed, legal precedents are of so little value in dictating the proper weight of the balancing process that the American Law Institute specifically forbade the use of Rule 403 rulings as legal precedent when it drafted the Model Code of Evidence. As aptly put by the Fifth Circuit, the specific result of the trial court’s conscientious balance of unique facts and circumstances under Rule 403 “is not subject to scrutiny by an appellate Bureau of Weights and Standards that balances the factors gram for gram.”

Thus, the authority of the trial judge to make individualized, discretionary rulings under Rule 403 during trial is extensive, but it is not boundless. All Rule 403 rulings are subject to three general considerations;

1) the trial judge should exercise his power to exclude evidence under Rule 403 sparingly;
2) the trial judge’s discretion under Rule 403 is not an invitation to rule reflexively or without careful reasoning;
3) the trial judge may not exclude evidence merely because he disbelieves the testimony.

As long as the trial court’s individualized, context-driven Rule 403 ruling is “within the zone of reasonable disagreement, the appellate court will not intercede.”

The problem in this case is that the trial court’s pretrial Rule 403 determination does not appear to be individualized or based upon the specific evidence and context that the trial court had before it. In balancing the probative value of an intoxi-lyzer test result against its potential for creating unfair prejudice or confusion of the issues, the two most significant items in that balance are: 1) the actual test result itself and how much it exceeded the legal limit of 0.08% BAC; and 2) the time interval between the defendant’s driving and the taking of the test. Yet there is nothing in the trial court’s ruling, reflection, or analysis in this case that accounts for these two crucial considerations. The trial judge explicitly stated that his ruling was not based upon the credibility of any witness, and he did not point to the time lapse between Mr. Mechler’s driving and the intoxilyzer test or the extent to which this BAC test result of 0.165% was in excess of the legal limit as significant factors in his analysis.

From all appearances, the trial court seems to have created an implicit blanket prohibition: Under Rule 403 no intoxilyzer test results shall be admissible without scientifically rehable retrograde extrapolation testimony. That Rule 403 ruling is too sweeping in scope to be decided in a pretrial motion. That ruling is not a discretionary, individualized, context-driven ruling under Rule 403. That ruling is instead the enactment of a newly minted rule of evidence, one that is not contained within the Texas Rules of Evidence. A trial court abuses its discretion and acts arbitrarily and without reference to the guiding principles of law if it creates a universal rule of exclusion under Rule 403 applicable to all cases without regard to the specific facts or context. For this reason alone I would conclude that, based upon the present record, the trial court abused its discretion in excluding the in-toxilyzer test result evidence.

B. Balancing the probative value of in-toxilyzer test results against the danger of unfair prejudice or confusion of issues under Rule 403 in the absence of retrograde extrapolation testimony.

Because the issue of admitting or excluding intoxilyzer test results under Rule 403 is one that arises in Texas trial courts on a daily basis, we should provide guidance to trial courts concerning the process of balancing probative value against unfair prejudicial effect when retrograde extrapolation testimony is not available.

The primary indicator of whether a person is intoxicated is his blood alcohol concentration (BAC) level. The BAC describes the concentration of alcohol in a pei'soris blood expressed as weight per unit of volume. At 0.10% BAC, a person has a concentration of 100 mg of alcohol per 100 ml of blood. The BAC may be determined by a blood test, urine test, or, most frequently in DWI prosecutions, by an intoxilyzer test which analyzes a driver’s exhaled breath.

Scientific studies have shown that alcohol may affect one’s driving ability at BAC levels as low as 0.02%. The probability of causing an automobile accident begin to increase significantly at a BAC level of 0.05% and climbs rapidly after about 0.08%. As of 2004, every state in the nation except Minnesota had adopted a per se DWI or DUI statute specifying that a BAC of 0.08% or greater is sufficient proof, by itself, of legal intoxication. The push for a national standard of 0.08% was “based on laboratory and on-road research which demonstrated that the majority of drivers, regardless of experience, are significantly impaired at 0.08 percent BAC[.]” This national standard was based upon the recognition that the “average” driver has lost the normal use of his mental or physical faculties at this level. Laws and statutory presumptions are written for the “average” case although a specific driver, because of individual variables such as weight, gender, physical condition, metabolic rate, time of day, mental state, presence or absence of food in the digestive system, medications, and tolerance for alcohol, might not be impaired at this precise level. But the Texas per se intoxication law, like that in the other 49 states, was written with the hypothetical “average” driver in mind, regardless of individual variables.

Of course, a BAC result of 0.08% on a breath test taken some time after a person has stopped driving does not necessarily correspond to the BAC result that person would have tested at had he been tested at the time he was driving. A number of state legislatures, recognizing that it is not possible for law enforcement officers to test a driver’s BAC while he is driving, have drafted their per se DWI laws such that the law expressly relates the BAC test back to the time of driving, either by a rebuttable presumption or by the definition of the offense. For example, the Alaska DWI statute makes it a crime to operate a motor vehicle when, “as determined by a chemical test taken within four hours after the alleged operation or driving,” a person’s blood contains 0.08% or more alcohol. Similarly, Arizona law provides that it is illegal to have a BAC of 0.08% or more within two hours of driving.

Regardless of their use of statutory presumptions or definitions of DWI incorporating a time lapse between driving and the taking of a breath test, the vast majority of states do not require the prosecution to relate breath test BAC levels back to the time of driving as a predicate to their admission. Courts have rejected the necessity for such “relation-back” or “retrograde extrapolation” evidence for a variety of reasons:

* To create such a requirement would place an impossible burden on the prosecution because only the defendant knows the pertinent variables;
* The DWI statute does not require such relation-back evidence;
* The test result, standing alone, creates a prima facie showing of intoxication at the time of driving which the defendant may rebut;
* The test results alone constitute sufficient evidence of intoxication to obtain a DWI conviction; and
* Other evidence of intoxication corroborates the test results.

Of course, these statutes allow, and courts permit, the defendant to offer expert retrograde extrapolation testimony to show that his individual BAC was, in fact, below the legal limit at the time he was driving.

The “average” alcohol absorption and elimination rate is 0.15% per hour, thus the higher the intoxilyzer test result, the more likely that the driver was intoxicated not only at the time of the test, but also at the time of driving. Expert retrograde extrapolation testimony can exclude the possibility that a driver’s BAC level was still rising in the absorption stage and had not yet reached the legal limit at the moment he stopped driving. But as one court has stated in rejecting an argument that the State must offer extrapolation evidence, “the law was not intended to encourage a perilous race to reach one’s destination, whether it be home or the next bar, before the blood alcohol concentration reaches the prohibited level.” While it may be within the realm of possibility that a specific driver “chug-a-lugged” enough alcohol immediately before or after getting behind the wheel of a car to race to his next destination before his BAC level reached the legal limit of 0.08%, this is a sufficiently remote scenario for state legislatures to have discounted it in drafting their DWI laws which do not require extrapolation testimony.

As this Court aptly noted in Mata v. State, retrograde extrapolation testimony is scientifically unreliable unless the expert witness knows a vast amount of personal information about the driver including:

the presence and type of food in the stomach, the person’s gender, the person’s weight, the person’s age, the person’s mental state, the drinking pattern, the type of beverage consumed, the amount consumed, and the time period of alcohol consumption.

This is all information that is within the defendant’s personal knowledge, but, under the Fifth Amendment, it is not within the State’s power to compel the defendant to disclose this information. Although Mata held that retrograde extrapolation evidence that fails to account for individual variables is inadmissible, in Stewart v. State, we held that a BAC test result, taken eighty minutes after the defendant was arrested, still had some probative value without retrograde extrapolation evidence, and thus was relevant under Rule 401. All relevant evidence, even evidence with a low probative value, is admissible under Rule 402 unless excluded under some other statute or rule, such as Rule 403.

In discussing Rule 403, the majority sets out the four major, but non-exclusive, factors that Texas courts use for balancing probative value and prejudicial effect. The single most important factor in the context of admitting breath test results in the absence of extrapolation testimony is the inherent probative value of the test result. In turn, the relative probative value of the test depends primarily upon two variables: 1) the degree to which the test result exceeds the legal limit of 0.08%; and 2) the amount of time elapsed between driving and the taking of the test. The higher the test result and the shorter the time between driving and testing, the more likely the logical inference is that the defendant had a BAC level at or above 0.08% at the time of driving. The stronger the inference of a BAC of 0.08% or greater at the time of driving, the less significant is the necessity for expert retrograde extrapolation testimony. Conversely, the weaker the inference of guilt, the more vital is the necessity for evidence that relates an accused’s BAC test result back to the time of driving. When a test is obtained long after the arrest and the result is at or below the legal limit, the logical inference that the person had a 0.08% BAC at the time of driving may be so tenuous that a trial judge appropriately exercises his discretion by excluding that specific test result under Rule 403 absent expert testimony that extrapolates the test result back to the time of driving.

In this case, however, the trial judge did not conduct such an individualized assessment, and he failed to offer any rationale as to why the danger of unfair prejudice of evidence of an intoxilyzer test result of 0.165% — twice the legal limit — taken a mere hour and a half after Mr. Mechler stopped driving “substantially” outweighed its probative value. There might be something truly extraordinary about the specific circumstances in this case that would support such a discretionary ruling, but if so, the pretrial record does not reflect those specific facts.

Under these circumstances, therefore, I agree with the majority’s conclusion that the trial judge abused his discretion in excluding the evidence of Mr. Mechler’s intoxilyzer test results.

      . 46 S.W.3d 902 (Tex.Crim.App.2001).

      . Id. at 902.

      . State v. Mechler, 123 S.W.3d 449, 451 (Tex. App.-Houston [14th Dist.] 2003).

      . Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997).

      . Mechler, 123 S.W.3d at 451.

      . Id. at 451-53.

        .Id. at 454-58.

      . Id. at 453.

      . Mata, 46 S.W.3d at 910.

      . Id.

      . Mechler, 123 S.W.3d at 451.

      . See Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App.2003).

      . Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex.Crim.App.1990).

      . Id.

      . Tex.R. Evid 403.

      . Manning, 114 S.W.3d at 926.

      . Montgomery, 810 S.W.2d at 378-79.

      . Id. at 379 (citing United States v. Robinson, 560 F.2d 507, 512-16 (2d Cir.1977)).

      . Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

      . Id.

      . Id.

      . See, e.g., Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App.2004); Manning, 114 S.W.3d at 926; Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim.App.2002).

      . Manning, 114 S.W.3d at 926.

      . Id.; Montgomery, 810 S.W.2d at 380.

      . Erazo, 144 S.W.3d at 489; Montgomery, 810 S.W.2d at 389-90 (op. on reh’g).

      . Manning, 114 S.W.3d at 928.

      . Mechler, 123 S.W.3d at 455.

      . Stewart v. State, 129 S.W.3d 93, 97 (Tex.Crim.App.2004).

      . Mechler, 123 S.W.3d at 456.

      . Manning, 114 S.W.3d at 927; see Tex.R.Evid. 403.

      . Manning, 114 S.W.3d at 928.

      . See id.

      . Id.

      . Mechler, 123 S.W.3d at 456.

      . Id. (citations omitted).

      . Id.

      . See Manning, 114 S.W.3d at 928.

      . Id.

      . Mechler, 123 S.W.3d at 456-57.

      . See Spain v. Gallegos, 26 F.3d 439, 453 (3d Cir.1994) (noting "cautious approach to Rule 403 exclusions at the pretrial stage”); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1240 (3d Cir.1993) (same).

      . In re Paoli RR Yard PCB Litig., 35 F.3d 717, 747 (3d Cir.1994) (quoting In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 855 (3d Cir.1990)).

      . 1 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 93 at 477 (2d ed.1994); see Li v. Canarozzi, 142 F.3d 83, 88 (2d Cir.1998) (trial judge has broad discretion in performing balancing analysis under Rule 403 because he “sees the witnesses, the parties, the jurors, and the attorneys, and is thus in a superior position to evaluate the likely impact of the evidence”); United States v. Esdaille, 769 F.2d 104, 108 (2d Cir.1985) (trial judge is “in a superior position to evaluate the likely impact of the evidence, since he sees the witnesses, the parties, the jurors, and the attorneys, and their mannerisms and reactions”).

      . See A.L.I. Model Code of Evidence Rule 303 (Discretion of Judge to Exclude Admissible Evidence), Comment (1942):
      The application of this rule should depend so completely upon the circumstances of the particular case and be so entirely in the discretion of the trial judge that a decision in one case should not be used as precedent in another.

        See also 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5214, at 265 (1977) (past decisions useless in weighing process under Rule 403).

      . Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 782 (5th Cir.1983).

      . See generally, 1 Mueller & Kirkpatrick, § 93, at 479.

      . Montgomery v. State, 810 S.W.2d 372, 388 (Tex.Crim.App.1990) (op. on reh’g) (presumption under Rule 403 is that probative value outweighs prejudicial effect “unless in the posture of the particular case the trial court determines otherwise”); see Conner v. State, 67 S.W.3d 192, 202 (Tex.Crim.App.2001)("Rule 403 requires exclusion of evidence only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value”); Joiner v. State, 825 S.W.2d 701, 708 (Tex.Crim.App.1992) (Rule 403 envisions exclusion of evidence only when there is a "clear disparity between the degree of prejudice of the offered evidence and its probative value”); McFarland v. State, 845 S.W.2d 824, 837 (Tex.Crim.App.1992); see generally 1 Jack Weinstein & Margaret Berger, Weinstein’s Evidence ¶403[01], at 403-10 (1998) ("If there is any doubt about the existence of unfair prejudice, confusion of the issues, misleading, undue delay or waste of time, it is generally better practice to admit the evidence taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonitions in the charge”).

        .Montgomery, 810 S.W.2d at 389 (stating that Rule 403 imposes a duty on trial judge to engage in a balancing process and noting that he “would do well” to inquire of the opponent what his view of the prejudice is and ask the proponent to articulate his need for the evidence). Although a trial judge is not required to articulate his Rule 403 analysis on the record, it is most helpful to reviewing courts. "Rulings that provide more than bare conclusions and indicate the nature of the danger or the underlying considerations are more satisfying and more likely to survive review.” 1 Mueller and Kirkpatrick, § 93, at 481; see, e.g., United States v. Himelwright, 42 F.3d 777, 781 (3d Cir.1994) (when trial court "fails to explain” its grounds for 403 ruling and the reasons for doing so "are not otherwise apparent from the record,” reviewing court "need not defer” to trial court's ruling and may "examine the record and perform the required balancing” itself); United States v. Dwyer, 539 F.2d 924, 928 (2d Cir.1976) (noting that "where the reasons for a discretionary ruling are not apparent to counsel, they will probably not be apparent to an appellate court”).

      . Montgomery, 810 S.W.2d at 390 n. 3 (reemphasizing that credibility of the evidence is not a proper inquiry for the trial judge under Rule 403).

      . Id. at 391.

      . See National Union Fire Ins. Co. of Pittsburgh, Pa. v. L.E. Myers Co. Group, 937 F.Supp. 276, 287 (S.D.N.Y.1996) (reserving a ruling on pretrial motion in limine until trial . when admission of particular evidence is in an appropriate factual context).

      . Margaret C. Jasper, DWI, DUI and the Law 13 (Oceana 2004).

      . Id.

      . Id. at 115-16, Appendix 18 (noting that all 50 states have enacted a BAC level of 0.08% per se intoxicated DWI statute, but that Minnesota’s statute would not become effective until August 1, 2005); see also Kimberly S. Keller, Sobering Up Daubert: Recent Issues Arising in Alcohol-Related Expert Testimony, 46 S.TexX.Rev. Ill, 111-12 & n. 2 (Fall 2004) (noting that President Clinton, in 1998, called for a national 0.08 BAC per se intoxication limit to reduce the number of alcohol-related deaths on the nation’s highways); see generally Alcohol Policy Information System, A Project of the National Institute on Alcohol Abuse and Alcoholism, accessible at http://alcohol-policy.niaaa.nih.gov. (The statutory DWI provisions of all 50 states are listed and linked at this site).

      . Jasper at 13.

      . See Mata v. State, 46 S.W.3d 902, 909-10 (Tex.Crim.App.2001) (noting that "if a driver is tested while in the absorption phase, his BAC at the time of the test will be higher than his BAC while driving. If tested while in the elimination phase, his BAC at the time of the test could be lower than while driving, depending on whether he had reached his peak before or after he was stopped. Obviously, the greater the length of time between the driving and the test, the greater the potential variation between the two BACs”).

      . Indeed, Texas regulations, like those in virtually all states, prohibit law enforcement officers from conducting a DWI breath test until after the completion of a fifteen-minute observation period. 37 T.A.C. § 19.3(c)(1).

      . See generally, D.E. Evins, Construction and Application of Statutes Creating Presumption or Other Inference of Intoxication from Specified Percentages of Alcohol in System, 16 A.L.R.3d 748 (1967 & 2004 updates); V. Woerner, Validity of Legislation Creating Presumption of Intoxication or the Like from Presence of Specified Percentage of Alcohol in Blood, 46 A.L.R.2d 1176 (1956 & 2000 updates).

      . Alaska Stat. § 28.35.030(a)(2); see Conrad v. State, 54 P.3d 313, 313-15 (Alaska Ct.App. 2002) (holding that DWI statute defines offense in terms of BAC at time of driving, not on test result itself, but concluding that "[i]f a chemical test is administered to the defendant within the statutorily prescribed four hours, the test result will create a presumption that the defendant’s blood alcohol level was at least as high at the time the defendant operated or controlled the vehicle”; defendant may offer evidence to rebut that presumption); see also Fla. Stat. § 316.1934(2)(c) (statutory presumption that one whose breath test BAC registers at 0.08% or higher was impaired at the time of driving); Disbro v. State, 791 N.E.2d 774, 778 (Ind.App.2003) (upholding use of statutory presumption that driver whose BAC tested 0.08% or more within three hours of driving was intoxicated at time of driving despite defendant’s rebuttal evidence); Commonwealth v. Murray, 2000 Pa.Super. 84, 749 A.2d 513, 520-21 (2000) (upholding statutory "common sense permissive evidentiary inference [that a driver was at or above 0.08% BAC] based upon the BAC, if the testing occurred within three hours of driving”); Welch v. City of Pratt, Kan., 214 F.3d 1219, 1223-25 (10th Cir.2000) (upholding Kansas statutory permissive presumption of driver's intoxication if "while driving, [he] had an alcohol concentration in his breath of .08 or more as measured within two hours of the time of operating the vehicle”).

      .Ariz.Rev.Stat. 28-692(A)(2); See State v. Martin, 174 Ariz. 118, 847 P.2d 619, 623 (App.1992); see also Ga.Code Ann § 40-6-391(a)(5) ("[a] person shall not drive or be in actual physical control of any moving vehicle while ... [t]he person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended”); N.C. Gen.Stat. § 20-138.1(a)(2) ("[a] person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State ... [a]fter having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more”); State v. Tischio, 107 N.J. 504, 506, 527 A.2d 388, 389 (1987) (holding "that a defendant may be convicted under NJ.S.A. 39:4-50(a) when a breathalyzer test that is administered within a reasonable time after the defendant was actually driving his vehicle reveals a blood-alcohol level of at least 0.10%. We rule that it is the blood-alcohol level at the time of the breathalyzer test that constitutes the essential evidence of the offense”).

      . See generally, Jim Frasier, Admissibility and Sufficiency of Extrapolation Evidence in DUI Prosecutions, 119 A.L.R.5& 379 (2004).

      . Retrograde extrapolation is the scientific process of "working backward” from the BAC test to an estimate of the person’s actual BAC at the time of driving. See Lawrence Taylor, Drunk Driving Defense § 5.2.1 (5th ed.2000).

      . See, e.g., State v. Taylor, 132 N.H. 314, 319-20, 566 A.2d 172, 175-76 (1989) (rejecting defendant's claim that prosecution was required to provided retrograde extrapolation when breath test was given over an hour after he stopped driving; noting that extrapolation testimony "requires evidence that the State will rarely be able to acquire because of the defendant’s constitutional right to remain silent. Extrapolation requires evidence as to when, and in what amounts, the defendant consumed the alcohol prior to driving. Without this information, which is wholly within the defendant’s knowledge in the vast majority of cases, extrapolation of blood alcohol content back to the time of driving becomes an impossible task. The legislature could not have intended to place such an impossible burden on the State”); State v. Kubik, 235 Neb. 612, 619-24, 456 N.W.2d 487, 493-96 (1990) (quoting and following Taylor); People v. Campbell, 236 Mich.App. 490, 501, 601 N.W.2d 114, 119 (1999) (quoting and relying upon Taylor, also rejecting need for extrapolation testimony because "[t]he difficulty of establishing evidence of a nexus between the offense and the test results would have the effect of encouraging defendants to delay taking a blood alcohol test for as long as possible while providing no information regarding their actions near the time of the offense. A defendant's own actions should not be allowed to effect the suppression of evidence against him”); State v. Greenwood, 115 S.W.3d 527, 532 (Tenn.Crim.App.2003) (quoting and following Rubik and stating that "[t]he legislature obviously knew a blood alcohol test could not be conducted while the defendant was driving. We do not believe it intended to place upon the state the impossible burden of extrapolation in order to prove DUI").

      . See, e.g., Rubik, 456 N.W.2d at 493-501 (collecting and discussing cases from numerous jurisdictions holding that DWI "per se intoxication” statutes did not explicitly require extrapolation testimony and courts would not engraft such a requirement for admissibility or sufficiency of evidence purposes); Greenwood, 115 S.W.3d at 532-33 (stating that legislative statute did not require expert extrapolation testimony in a DUI prosecution, and concluding that "a proper blood alcohol test administered at a reasonable time after the defendant has been driving, which reflects a blood alcohol content of .10% or higher, constitutes circumstantial evidence upon which the trier of fact may, but is not required to, convict the defendant of DUI”).

      . See, e.g., Commonwealth v. Wirth, 936 S.W.2d 78, 83-84 (Ky.1996) (rejecting defendant’s claim that extrapolation testimony necessary and holding that legislature intended that prima facie proof of "per se ” DWI arose from properly administered BAC test result of 0.10% or more); Commonwealth v. Yarger, 538 Pa. 329, 334-35, 648 A.2d 529, 531 (1994) (construing DWI statute and concluding that "once the Commonwealth has established that the driver’s blood alcohol content reflects an amount above 0.10%, the Commonwealth has made a prima facie case.... At this point, the defendant is permitted to introduce expert testimony to rebut the Commonwealth’s prima facie evidence. If the defendant decides to rebut the prima facie evidence against him with expert testimony, then the Commonwealth may present its own expert to refute this testimony”). In Haas v. State, 597 So.2d 770 (Fla.1992), the Florida Supreme Court surveyed similar DWI statutes in various jurisdictions before concluding that:
      In attempting to combat the scourge of drunk driving, we do not believe the legislature intended to place upon the State the difficult and often impossible burden of extrapolation as a condition precedent to conviction under the ¡per se DWI] statute. Though our statute is not as specific as that of Minnesota or California, we interpret Florida's statutory scheme to mean that the test results shall be prima facie evidence that the accused had the same blood-alcohol level at the time of his operation of the vehicle. Properly obtained test results which reflect a blood-alcohol level of 0.10 or more, standing alone, constitute circumstantial evidence upon which the finder of fact may (but is not required to) convict the accused driver of DUI either by impairment or ¡per se DWI]. However, contrary to the New Jersey position, we do not view the test results as conclusive. The accused is at liberty to seek to demonstrate through cross-examination or the introduction of other evidence that the test results do not accurately reflect his or her blood-alcohol level at the time the vehicle was being operated.

        Id. at 774-75.

        . Haas, 597 So.2d at 774-75; Wirth, 936 S.W.2d at 83-84; Terry v. City of Montgomery, 549 So.2d 566, 567 (Ala.Crim.App.1989) (evidence sufficient to support DWI conviction when driver’s BAC was 0.15% fifty minutes after auto accident; no extrapolation testimony necessary under statute to prove intoxication at time of driving); State v. Wetzel, 7 Haw.App. 532, 538-39, 782 P.2d 891, 895 (1989) (rejecting defendant's claim that intox-ilyzer tests results were inadmissible and insufficient to support conviction without "relation back” testimony; holding that DWI per se statute showed legislative intent that BAC test results of 0.10% or more taken within three hours after time of driving created a permissible inference of guilt, so no further evidence needed for conviction).

      . Commonwealth v. Kasunic, 423 Pa.Super. 112, 118-19, 620 A.2d 525, 528-29 (1993) (when defendant’s BAC level was twice legal limit fifty minutes after he was found lying on the roadway smelling of alcohol and appearing to officer to be intoxicated, evidence of intoxication sufficient without any extrapolation testimony; although "evidence does not indicate the exact time when appellant operated his vehicle[,] .... in light of the frigid temperature of four degrees below zero Fahrenheit that night, appellant could not have been at the scene laying on the road for a substantial period of time”); Commonwealth v. Montini, 712 A.2d 761, 766 (Pa.Super.1998) (state not required to offer extrapolation testimony in per se DWI prosecution when defendant's BAC was 0.19% fifty-five minutes after driving and there was evidence he drove erratically and failed to perform field tests adequately).

      . See generally, Frasier, 119 A.L.R. 5th 379, § 10 (collecting cases from various jurisdictions that hold that defendant may introduce extrapolation testimony to rebut BAC test results).

      . State v. Tischio, 208 N.J.Super. 343, 348, 506 A.2d 14, 16 (1986).

      . 46 S.W.3d 902 (Tex.Crim.App.2001).

      . Id. at 909 (footnotes omitted).

      . See State v. Taylor, 132 N.H. at 319-20, 566 A.2d at 175-76.

      . 129 S.W.3d 93 (Tex.Crim.App.2004).

      . Id. at 96.


author: PRICE, J.,

text:
    Ex Parte Troy KUNKLE.
    No. WR-20574-04.
    Court of Criminal Appeals of Texas.
    Jan. 24, 2005.
    Robert L. MClasson, Decatur, Georgia and Danalynn Recer, Houston, for Appellant.
    Carlos Valdez, DA, Corpus Christi, Matthew Paul, State’s Atty., Austin, for State.
    Reconsideration of dismissal of writ denied Jan. 24, 2005.
   PRICE, J.,

filed a statement dissenting to the denial of the motion,

in which HOLCOMB, J., joined.

STATEMENT

Today, just as it did in November, this Court is denying relief, not on the basis that Troy Kunkle is not entitled to relief, but because his attorney asked for it too soon. As a result, I cannot join the majority in allowing Troy Kunkle’s execution to take place. I strongly dissent.

Kunkle asks this Court to reconsider its decision to dismiss his prior application for a writ of habeas corpus. The state of death penalty law in Texas regarding when a defendant is entitled to a mitigating instruction is confusing at best. We have been thrown by seemingly contradictory opinions from both the Fifth Circuit and the United States Supreme Court. And, the procedural history in this case is enough to make one dizzy. The United States Supreme Court has granted a stay of execution in Kunkle’s case twice in the last year. And twice, it has lifted its stay.

The mixed signals that we have been receiving are enough to convince some judges to sit back and see what the Supreme Court will do with the case. I am not so inclined.

Justice Stevens wrote a statement concurring in the Supreme Court’s decision to lift the second stay in this case. He set out his reasons for voting to grant the stay and then for voting to lift the stay of Kunkle’s execution. According to Justice Stevens, there was some doubt about whether the decision from the Court of Criminal Appeals on November 17, 2004, from which Kunkle filed his petition for certiorari, was based on an independent and adequate state ground. On the one hand, I appreciate Justice Stevens’s attempt to shed some light on his thinking on this case. I wish that the rest of the Supreme Court had done the same. On the other hand, I am disturbed to think that a United States Supreme Court Justice would conclude that Kunkle’s sentence was imposed in violation of the United States Constitution, but would also deny relief on what seems to be a procedural technicality.

Although Justice Stevens believes that this Court’s decision was properly based on Article 11.071, Section 5, I am far from convinced.

The language of Article 11.071 is clear: We may not reach the merits unless we find that the applicant has met the dictates of Section 5. But, according to the order issued by a majority of this Court November, 17, 2004, the majority reviewed Kun-kle’s claims in light of Tennard and Smith, So, the Court must have reviewed the merits of the claim. And thus, the Supreme Court would be able to address whether this Court’s decision comports with its decision in these cases.

The majority also claimed that Kunkle’s application was dismissed because he had raised the claim before. The majority of this Court concluded that Kunkle was not entitled to relief because he had raised the same claim in his prior writ. It is, apparently, of no moment to the Supreme Court that under Tennard v. Dretke, and Smith v. Texas. this Court was clearly wrong in affirming Kunkle’s death sentence. I think that Justice Stevens alludes to this when he says that it seems plain that Kunkle’s sentence was imposed in violation of the Constitution.

This creates the absurd situation in which Kunkle is denied relief because his attorney was too conscientious, because he predicted that the United States Supreme Court would strike down the nexus requirement and not apply Penry I as narrowly as the Fifth Circuit had.

Because Kunkle’s attorney requested relief too soon, Kunkle will be executed, even though his sentence was obtained in violation of the United States Constitution. This policy seems contrary to the policy behind the general prohibition of subsequent writs: encourage defendants to bring their claims as soon as they are discovered or risk procedural default.

I cannot, in good conscience, join the Court in denying the relief to which Kun-kle is entitled. I dissent.

      . See Ex parte Kunkle, No. WR-20,574-04 (Tex.Crim.App. Nov. 17, 2004) (not designated for publication) (Per Curiam) (Price, Womack, Johnson, and Holcomb, JJ., would grant stay of execution).

      . Kunkle v. Texas, No. 04-7271 (Dec. 13, 2004).

      . Id., slip op. at 1.

      . See Ex parte Kunkle, No. WR-20,574-04, slip op. at 2 (Tex.Crim.App. Nov. 17, 2004) (not designated for publication) (Per Curiam) (Price, Womack, Johnson, and Holcomb, JJ., would grant stay of execution).

      . Ibid. See also, Ex parte Kunkle, 852 S.W.2d 499 (Tex.Crim.App.1986), cert. denied, 492 U.S. 925, 109 S.Ct. 3259, 106 L.Ed.2d 604 (1989).

      . Tennard v. Dretke, — U.S. -, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004).

      . Smith v. Texas, - U.S. -, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004).

      . Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).


author: KELLER, P.J.,

text:
    George MOFF, Appellant, v. The STATE of Texas.
    No. PD-0458-03.
    Court of Criminal Appeals of Texas.
    Jan. 26, 2005.
    Michael H. Hummell, Corpus Christi, for Appellant.
    Jeffrey Van Horn, First Asst. State Atty., Matthew Paul, State’s Atty., Austin, for State.
   KELLER, P.J.,

filed an opinion dissenting to the denial of the State’s motion for rehearing

in which HERVEY, J., joined.

On original submission, we held that the trial court did not err in quashing MofPs indictment before trial. We then said that, because there had been no trial, a harm analysis was unnecessary. This was a curious statement’and-^despite the fact that I voted for it the first time around — incorrect. The reason a harm analysis was unnecessary is that there was no error.

The statement was also confusing and contrary to our general rule that, except for federal constitutional errors the Supreme Court has labeled “structural,” no error is categorically immune from a harm analysis.

I would reissue the opinion without the erroneous statement, and save appellate judges and practitioners the trouble of trying to figure out what we meant.

      . Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997).


author: JAMES T. CAMPBELL, Justice.

text:
    Mary Lee Hudspeth GUNNELS, Appellant, v. CITY OF BROWNFIELD, Texas; Earl Elrod, Individually and In his Capacity as City Inspector; and R.C. Fletcher, Individually and in his Capacity as City Manager, Appellees.
    No. 07-02-0121-CV.
    Court of Appeals of Texas, Amarillo.
    Nov. 24, 2003.
    Opinion Overruling Rehearing Jan. 21, 2004.

      Bonner Smith, Law Offices of Bonner Smith, Lubbock, for Appellant.
    David W. Lauritzen, Cotton, Bledsoe, Tighe & Dawson, Leslie McLaughlin, Midland, for Appellee.
    Before JOHNSON, C.J. and REAVIS and CAMPBELL, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

Appellant Mary Lee Hudspeth Gunnels challenges a take-nothing summary judgment granted in favor of appellees, the City of Brownfield, Richard Curtis Fletcher, and Earl Elrod, on her claims for malicious prosecution and violation of her constitutional rights based on two criminal prosecutions for violations of City of Brownfield ordinances. We will affirm the judgment.

The events giving rise to this appeal began on September 5, 1995, when Brownfield city manager Fletcher attended a high school football game. On leaving the game, he found a flyer on his car windshield advertising the sale of homecoming mums. The advertisement, which was placed on many cars in the stadium parking lot, was for “Mary Lee’s located at 1415 Broadway” in Brownfield. It contained prices, good from September 8 through September 12, for several styles of mums and related products. Fletcher gave the advertisement to city inspector Elrod and related the circumstances in which he found the document.

In response, Elrod confirmed that appellant resided at 1415 Broadway, and executed two criminal complaints. The first alleged she “knowingly and intentionally distributed circulars or handbills upon the streets of the city” in violation of a city ordinance. The second alleged she “knowingly and intentionally operated a flower shop in an R-l, single family dwelling district,” in violation of the city’s zoning ordinance. Fletcher notarized each of the complaints.

The charge of distributing handbills was tried to a municipal court jury on November 14, 1995 and appellant was acquitted. The first trial in the zoning violation case ended in a hung jury, and appellant was acquitted on retrial. The following month, appellant filed her petition in this case, pro se, naming the City of Brownfield, and Elrod and Fletcher in their individual and official capacities, as defendants. The petition generally alleged claims for malicious prosecution based on the conduct of Elrod and Fletcher. Other than naming the City as a defendant, the petition did not expressly assert any claims against it. On March 1, 1996, each of the defendants specially excepted to the petition alleging it failed to state a cause of action and asserted general denials. The City filed a motion for summary judgment on May 26 on the basis of sovereign immunity.

Appellant amended her petition to allege the prosecutions were motivated by her exercise of first amendment rights and sought recovery for deprivation of her civil rights under Title 42, Section 1983 of the United States Code. In September 1998, appellees filed a document entitled “supplement” to the City’s motion for summary judgment. It added Elrod and Fletcher as movants and asserted that Section 101.106 of the Civil Practice and Remedies Code (Vernon Pamph.2008), gave them the benefit of the City’s immunity, that they had immunity for reporting violations of the law, and enjoyed prosecutorial immunity. Also, appellant took a nonsuit on her malicious prosecution claim against, the City.

In an amended answer filed October 26, 2000, Elrod and Fletcher raised the affirmative defenses of official immunity, qualified immunity, sovereign immunity, “absolute immunity,” and prosecutorial' immunity. The same day, all three ap-pellees filed a “Second Supplemental Motion for Summary Judgment” in which they asserted no-evidence grounds under Rule of Civil Procedure 166a(i), and traditional grounds on the basis of immunity. Elrod and Fletcher filed a third document at the same time, entitled a supplement to the “defendants’ second supplemental motion for summary judgment.” It reasserted their no-evidence and immunity grounds.

Appellant responded to the outstanding motions for summary judgment on May 17, 2001. After a hearing the following August, the trial court found each defendant was entitled to final summary judgment on all claims. The court expressly stated the grant of summary judgment for the City was not based on sovereign immunity. The judgment on appeal here, a corrected final judgment, was signed on January 23, 2002.

ISSUES

Appellant presents four issues for our consideration: (1) a challenge to the affidavits Elrod and Fletcher submitted as part of them summary judgment evidence; (2) that the court erred in holding there were no genuine questions of fact on her malicious prosecution claims; (3) that it erred in holding there were no genuine questions of fact on her federal claims under Title 42, Section 1983 of the United States Code; and (4) that the court’s judgment cannot be supported on the basis of immunity.

The City has submitted a brief presenting three arguments supporting summary judgment for it on appellant’s Section 1983 claims. Elrod and Fletcher have filed a joint brief arguing the record establishes there are no genuine questions of fact on appellant’s malicious prosecution claims or her Section 1983 claims. They also argue the judgment is supportable on the basis of official immunity and qualified immunity-

STANDARD OF REVIEW

The standards we must apply in reviewing a summary judgment are so well established that a detailed recitation of those standards is unnecessary here. It is sufficient to note that a movant bears the burden to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d at 546, 548 (Tex.1985). We must take evidence favorable to the non-movant as true and indulge in every reasonable inference in favor of the non-movant. Id.

Rule of Civil Procedure 166a(i) allows a party to seek summary judgment on the basis that there is no evidence supporting an essential element of a claim or defense on which the opposing party has the burden of proof. Because a no-evidenee summary judgment is essentially the same as a pretrial directed verdict, we apply the same legal sufficiency standard to both. King Ranch, Inc. v. Chapman, 46 Tex.Sup.Ct.J. 1093 (2003). The proper inquiry is whether the non-movant produced any probative evidence to raise a material fact issue. There is no evidence when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Id. If the non-movant presents more than a scintilla of probative evidence to raise a genuine material fact issue, summary judgment should not have been granted. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla of evidence exists when the evidence rises to a level such that reasonable and fair-minded people could differ in their conclusions. Id.

COMMON LAW MALICIOUS PROSECUTION

We begin with appellant’s second issue, which assigns error to the trial court’s finding that Elrod and Fletcher were entitled to summary judgment on her claims for malicious prosecution. The parties agree that the opinion in Richey v. Brookshire Grocery Co., 952 S.W.2d 515 (Tex.1997), correctly sets out the elements of a claim for malicious prosecution. The elements are: the initiation of a criminal prosecution against the plaintiff; by the actions of the defendant; termination of that prosecution in the plaintiffs favor; the plaintiffs innocence; the absence of probable cause for the prosecution; malice in initiating the prosecution; and damage to the plaintiff. Id. at 517. Elrod and Fletcher’s no-evidence motions for summary judgment asserted there is no evidence on the elements of lack of probable cause and malice.

In Richey, the court reaffirmed the definition of probable cause in the malicious prosecution context as “the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor [complainant], that the person charged was guilty of the crime for which he was prosecuted.” Id. at 517 (quoting from Akin v. Dahl, 661 S.W.2d 917, 921 (Tex.1983)). Restated, the probable-cause determination asks whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be. Id.

Malice is defined as ill will, evil motive, gross indifference, or reckless disregard of the rights of others. King v. Graham, 47 S.W.3d 595, 608 (Tex.App.-San Antonio 2001, no pet.). It may be established by direct or circumstantial evidence. Thrift v. Hubbard, 974 S.W.2d 70, 80 (Tex.App.-San Antonio 1998, pet. denied). Appellant cites Bass v. Metzger, 569 S.W.2d 917 (Tex.Civ.App.-Corpus Christi 1978, writ ref'd n.r.e.), for the proposition that malice can be inferred from the initiation of a prosecution without probable cause. See also King, 47 S.W.3d at 608. Fletcher and Elrod counter that Biering v. First National Bank, 69 Tex. 599, 7 S.W. 90 (1888), held the “two elements are distinct.” In Biering, the court actually held that lack of probable cause could not be inferred from proof of malice, Id. at 92, but noted that malice may be inferred from proof that there was no probable cause. Id.

With respect to probable cause, a malicious prosecution case begins with the presumption that the defendant has acted reasonably and in good faith and had probable cause to initiate the prosecution. Richey, 952 S.W.2d at 517; Akin, 661 S.W.2d at 920. The plaintiffs initial burden on that element is to produce evidence that “the motives, grounds, beliefs, and other evidence” on which the defendant acted did not constitute probable cause. Id. Faced with Fletcher and Elrod’s no-evidence motion for summary judgment on the absence of probable cause element, then, appellant was required to point out evidence to rebut that initial presumption. Significantly, although appellant argues the general proposition that probable cause was lacking for her prosecution pursuant to the two complaints, she does not expressly assert that Fletcher or Elrod did not act on the basis of the flyer Fletcher found on his windshield, nor does she expressly challenge the sufficiency of the flyer to constitute probable cause for either complaint.

With regard to the prosecution for distributing or scattering handbills, appellant argues that the complaint was not based on eyewitness evidence that she placed the flyers on cars. However she does not explain, nor does it appear to us, how the absence of an eyewitness is evidence of the lack of probable cause. Having carefully examined the summary judgment record, we find no evidence to support this element of appellant’s claims for malicious prosecution arising from the handbill prosecution.

With regard to the prosecution for the zoning violation, appellant relies on a portion of Elrod’s deposition testimony as evidence that the prosecution was brought without probable cause. The deposition testimony at issue consists of the following passage:

Question: Did you ever obtain a search warrant at any time to go to the Gunnels’ home after you filed that complaint?
Elrod: In incidents like this, it’s kind of hard to obtain a search warrant.
Question: Why is that, sir?
Elrod: Because you don’t know what is in there and you don’t have proof of what is in there, totally. All you’ve got is guessing and suspicious [sic]. And the flier that she put out led to suspicious [sic] that there was, and that’s not grounds for-my understanding, is not grounds for a search warrant.

The gist of appellant’s argument is that Elrod’s statement is an admission he had oply a suspicion that appellant had violated the zoning ordinance and therefore did not have probable cause to file the complaint alleging she did so.

We cannot agree that Elrod’s response to the question why it’s hard “in incidents like this” to obtain a search warrant amounts to such an admission, nor do we see his statement as evidence of the absence of probable cause. To begin with, the first question in the quoted exchange inquired of Elrod whether he had obtained a search warrant after he filed the complaint. Events occurring after Elrod filed the complaint are not relevant to the issue of his probable cause to initiate the prosecution of appellant. Akin, 661 S.W.2d at 920 (“It is the events prior to the institution of the proceedings which must be examined, and only those events, to determine if the defendants had probable cause to act.”)

Assuming, though, we can infer that El-rod’s response to the second question reflects his beliefs about the availability of a search warrant at the time he filed the complaint, we still cannot give his statement the significance appellant attributes to it. In its context, Elrod’s statement, reflecting his legal conclusion that he would not have been able to obtain a search warrant because it would have been based on “guessing and suspicions,” would not lead a fair-minded person to conclude either that he subjectively did not believe appellant was operating a flower shop in violation of the ordinance or that his belief was not objectively reasonable. See Richey, 952 S.W.2d at 518-19. His response to the question does not, as appellant urges, amount to an admission by Elrod that he had only a suspicion appellant was operating a flower shop in her home, and even viewed in the light most favorable to appellant, it represents no more than a scintilla of evidence that probable cause was lacking.

Appellant also emphasizes what she'sees as a contradiction between Elrod’s testimony on deposition that he performed no investigation before making the determination that appellant was operating a business in violation of the zoning ordinance and his statement in his affidavit that he “confirmed by his own investigative efforts” that appellant occupied the single-family residence at 1415 East Broadway. Again, though, in context, the contradiction fades. At deposition, Elrod was asked, “Did you go out and do any investigation before you made [the determination that appellant was violating the ordinance]?” After his negative response, he was asked, “No phone calls, no physical drive-bys, call, talk to her, or anything?” He again gave a negative response. The responses do not contradict Elrod’s statement in his affidavit. The differences between the responses and the affidavit do not raise a genuine issue of material fact concerning the presence of probable cause.

Appellant has further asserted that there are such inconsistencies and conflicts between the evidence given by Elrod and that given by Fletcher, and between the statements made by each in his deposition testimony and those contained in his affidavit as to raise a fact issue concerning the lack of probable cause. Having reviewed the deposition testimony that was before the trial court and the affidavits of both defendants, we do not find inconsistencies or conflicts in the summary judgment evidence sufficient to raise a genuine issue of material fact concerning the probable cause element.

Appellant’s only argument addressing summary judgment for Fletcher on the lack of probable cause element appears to be that Fletcher did not conduct any investigation beyond the flyer itself. We cannot agree that is evidence he lacked probable cause. Again, appellant does not contend that the information in the flyer was insufficient to meet the standard for probable cause set out in ease law.

Because the summary judgment record supports a finding that there is no evidence supporting an essential element of appellant’s claims for malicious prosecution, that of the absence of probable cause for the prosecution, the trial court did not err in granting Fletcher and Elrod summary judgment on those claims. Tex. R.Civ.Proc. 166a(i) (summary judgment is proper when there is no evidence of “one or more essential elements.”) We overrule appellant’s second issue.

SECTION 1983 CLAIMS

We turn next to appellant’s third issue, in which she asserts that the trial court’s grant of summary judgment on her claims for deprivation of civil rights asserted under Section 1983 was error. Those claims, asserted against the City, Elrod and Fletcher, contended that pursuit of the two charges against her constituted both malicious prosecution in violation of her Fourth Amendment rights and selective prosecution in violation of her right to equal protection of the law under the Fourteenth Amendment.

Section 1983 provides a civil cause of action against any person acting under color of state law who deprives another of a right protected by the federal constitution or laws. The U.S. Supreme Court has held that a municipality is a “person” under the statute, but its liability must be based on its own conduct, and cannot be vicarious arising from conduct of its employees. Monell v. Dept. of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Municipal liability for deprivations of constitutional rights must flow from an established policy or custom of the municipality. Leatherman v. Tarrant Co. Narcotics Intelligence Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993).

Appellant does not allege that her prosecution was pursuant to a formal policy of the City. An official policy for which a municipality may be liable need not be a formally adopted one. Official policy can also be established by evidence of:

A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.

Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.1992).

The official policy appellant seeks to establish was that the city attorney would try all cases filed in municipal court regardless of the merits of the case. As evidence of this policy, she cites the deposition testimony of the city attorney, William McGowan, that he did not consider dismissing the complaints against appellant, even after one trial resulted in a hung jury, and his testimony that he tried all cases, “win, lose or draw.”

Appellant characterizes this testimony as evidence that the city attorney tries all cases “regardless of his chances of success.” Based on this characterization of McGowan’s testimony, and the statutory provision that it is the duty of prosecutors, “not to convict, but to see that justice is done,” Tex.Code Crim.Proc. Art. 2.01 (Vernon Supp.2003), appellant argues this is evidence of “the type of ‘serious incompetence’ ” for which the remedy created by Section 1983 was established.

Although appellant points to no evidence that the governing body of the City of Brownfield, or any official to whom the City had delegated policy-making authority, had knowledge of the city attorney’s policy, nor to any evidence that the City’s governing body had delegated policy-making authority to the city attorney, for purposes of this discussion we will assume here, arguendo, that the city attorney is the type of policy-maker whose decisions and practices with respect to -trial of cases in municipal court can be said to be the actions of the City of Brownfield. See Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Appellant asserts that, by virtue of the city attorney’s long tenure, the practice of trying all cases was so persistent and widespread as to fairly represent municipal policy. Appellant states in her brief that the city attorney has maintained'the policy “for his entire tenure of over twenty years ” Although we see no evidence in the record before us to support the statement, again, for purposes of this discussion we will assume, arguendo, that there is summary judgment evidence of a policy of the City to prosecute all municipal court cases to trial.

Even assuming the existence of such a policy, however, it did not give rise to a violation of appellant’s constitutional rights. To the degree that appellant contends that the city attorney’s testimony is evidence that she was prosecuted maliciously, the contention must fail. “Malicious prosecution can be a constitutional violation ... only if all its common law elements are established.” Castellano v. Fragozo, 311 F.3d 689, 698-99 (5th Cir. 2002), citing Izen, 256 F.3d at 327. The elements of the constitutional tort of malicious prosecution under Section 1983 are the same as those under state law. To establish her malicious prosecution claim against the City under Section 1983, therefore, appellant must establish the same elements as are required for her malicious prosecution claims against Elrod and Fletcher under Texas law. Castellano, 311 F.3d at 699. We previously have concluded that appellant has pointed out no evidence that Elrod and Fletcher lacked probable cause for their initiation of appellant’s prosecution. Nor is the city attorney’s policy evidence of a lack of probable cause for appellant’s prosecution.

Appellant asserts that the City policy wafe to try all municipal court cases filed “despite the merits of the particular case.” She further describes the practice as one of prosecuting all cases to trial “regardless of the facts or lack of probable cause,” in violation of the prosecutor’s duty under the Code of Criminal Procedure. But the city attorney did not testify that he tried cases in which the facts did not support prosecution or in which probable cause was lacking. Nor does appellant cite us to other summary judgment evidence supporting such a conclusion. We are not pointed to evidence of the nature or number of other cases the city attorney has taken to trial, the evidence presented in such cases, or their outcomes. On this record, the city attorney’s testimony falls considerably short of evidence of a City custom, practice or policy of prosecuting municipal court cases without probable cause.

Because, as noted, appellant was required to establish the same elements for her Section 1983 malicious prosecution claims against Elrod and Fletcher as for her common-law malicious prosecution claims against them, Castellano, 311 F.3d at 699, our conclusion that appellant has pointed out no evidence of the lack of probable cause for her prosecution disposes of her Section 1983 claims against them as well. Richey, 952 S.W.2d at 517. The trial court’s grant of summary judgment on appellant’s Section 1983 malicious prosecution claims was not error.

Appellant focuses her Section 1983 claims alleging deprivation of equal protection of the law through selective prosecution on the actions of Fletcher and Elrod. As with any equal protection claim, to succeed appellant must demonstrate first that she and another person or class were similarly situated, and secondly, that she was treated differently. Beeler v. Rounsavall, 328 F.3d 813 (5th Cir.2003).

With regard to the handbill prosecution, appellant argues she is similarly situated to businesses that had advertised with flyers placed on cars. The summary judgment record contains evidence that three retail businesses had engaged in such advertising, but each had been warned that the practice violated a city ordinance rather than being prosecuted. Fletcher and Elrod seek to distinguish those instances on the basis that those businesses were located in commercially zoned districts. This distinction may be relevant in considering whether there was a basis for disparate treatment but, because the ordinance does not recognize this distinction, we find there is summary judgment evidence that appellant and the other three businesses were similarly situated under the ordinance.

With regard to the zoning prosecution, appellant contends she is similarly situated to city residents who conduct garage sales in a residential district, and others who conduct businesses from their homes, including Fletcher and Elrod. She argues that her sales were indistinguishable from garage sales because both are periodic or irregular rather than continuous. However, she does not identify any summary judgment evidence supporting the assertion that her sales were not continuous. The only relevant evidence appears to be the limited period for which the prices on the flyer were valid and the language of the flyer referring to the annual school homecoming event. Indulging reasonable inferences in her favor, we cannot say, though, that there is no evidence appellant’s activities were similar to garage sales.

The evidence of business conducted in Fletcher’s home was that his wife had baked and sold cakes. Fletcher points to evidence that this business activity involved only a few sales, none of them in recent years. There was also evidence that Elrod sells ammunition reloaded in his home. He relies on evidence that the ammunition was not sold at the house and he did not advertise. Finally, there was also summary judgment evidence that El-rod’s wife and daughters operated a “radio telephone answering service” from their home. Appellees’ brief does not offer any distinction between that activity and appellant’s. Again, indulging reasonable inferences in her favor, the summary judgment evidence does not conclusively establish that appellant was not similarly situated to others who conducted commercial activities in residential districts. There is no evidence of other municipal court prosecutions under the zoning ordinance.

The mere failure to prosecute others similarly situated, though, is not sufficient to show selective prosecution violative of equal protection. U.S. v. Greene, 697 F.2d 1229, 1234 (5th Cir.1983), cert. denied, 463 U.S. 1210, 103 S.Ct. 3542, 77 L.Ed.2d 1391 (1983); Roise v. State, 7 S.W.3d 225, 243 (Tex.App.-Austin 1999, pet. ref'd). To establish her claim of selective prosecution, appellant must further establish that her different treatment was invidious, that is, motivated by improper considerations such as race, religion, the interference with exercise of a constitutional right, or other arbitrary classification. Beeler, 328 F.3d at 817, see also Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Greene, 697 F.2d at 1234. To avoid summary judgment appellant must show a genuine question of fact on whether Elrod and Fletcher’s decision to prosecute was deliberately based on such an unjustifiable standard. See Oyler, 368 U.S. at 456, 82 S.Ct. 501 (selective enforcement violative of equal protection is that “deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification.”)

We disagree with Fletcher and Elrod’s contention that appellant must show the decision to prosecute was based on race, religion, or exercise of constitutional rights. That contention is based on a statement in Greene, 697 F.2d at 1234, listing those as impermissible considerations in the decision to prosecute. However those factors are not exclusive. As noted, in Beeler the Fifth Circuit recognized a claim of selective prosecution can be based on an “arbitrary classification.” 328 F.3d at 817. See also, e.g., Hayden v. Grayson, 134 F.3d 449, 453 n. 3 (1st Cir.1998), citing Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985).

But appellant fails to cite any evidence that the decision to prosecute her in either case was based on such an impermissible ground. Her first amended petition alleged the prosecutions were motivated by the exercise of first amendment rights by her and her father. Appellant refers us to no evidence in the record supporting that pleading and she does not present that argument on appeal. Her assertions that others engaging in similar practices were not prosecuted and that others were let off with a warning are simply restatements of the argument that she has been treated differently.

Taking appellant’s contention that she is the only person who has been prosecuted for violations of these ordinances as true for purposes of this summary judgment analysis, that fact may establish that appellant has been treated differently, but it is not evidence that she has been treated differently for an impermissible reason. Nor is the failure of Elrod and Fletcher to conduct any investigation beyond the flyer such evidence, nor is the presence of El-rod’s and Fletcher’s names among those who have not been prosecuted for commercial activity in residential areas.

The record supports a finding that there is no summary judgment evidence that any differential treatment of appellant in enforcement of the city ordinances was invidious in that it arose from an arbitrary or otherwise impermissible classification. See Greene, 697 F.2d at 1234. Because of the absence of any evidence on an indispensable element of appellant’s claims for selective prosecution, the trial court did not err in granting summary judgment for Fletcher and Elrod on those claims.

Nor does the record contain evidence of a City policy giving rise to a claim that appellant was selectively prosecuted. As noted, the official policy on which appellant relies for her Section 1983 claims against the City is the city attorney’s policy of bringing to trial all municipal court cases presented to him for prosecution. Such a policy cannot form the basis for a selective prosecution claim against the City. The existence of such a policy obviously does not support a contention that the city attorney’s actions in taking appellant to trial on the complaints against her were “selective” or had the effect of treating her differently than others similarly situated. To the contrary, if the city attorney’s testimony represents City policy, appellant was treated like others who were cited by complaint. Moreover, appellant points to no evidence that any action taken pursuant to the city attorney’s policy was taken because of an arbitrary or otherwise impermissible classification of her. We find the trial court properly granted summary judgment for the City of Brownfield on appellant’s selective prosecution claims against it.

Having concluded that the trial court did not err in granting summary judgment on appellant’s Section 1983 claims against ap-pellees, we overrule appellant’s third issue.

CONCLUSION

Our dispositions of appellant’s second and third issues are dispositive of her claims against appellees. Except to the degree that we have considered and rejected appellant’s assertions that the affidavits of Elrod and Fletcher created material questions of fact, we need not address her first issue, nor need we address her fourth issue challenging appellees’ entitlement to summary judgment on the basis of immunity. The judgment of the trial court is affirmed.

OPINION ON REHEARING

Appellant Mary Lee Hudspeth Gunnels has moved for rehearing following issuance of our opinion affirming summary judgment against her. We remain convinced that our disposition of appellant’s appeal was correct, but write to address one of the contentions in the motion for rehearing.

Our opinion concluded that summary judgment against appellant on her malicious prosecution claims was proper because there was no evidence of the lack of probable cause for initiation of appellant’s prosecution by city inspector Elrod and city manager Fletcher. Appellant asserts that, with respect to appellant’s prosecution under the City of Brownfield’s handbill ordinance, we have failed to address the summary judgment evidence that the handbills Fletcher observed were on vehicles in the parking lot of the football stadium, not on the city streets as required under the ordinance. An argument proceeding from that evidence, though, was not expressly presented in appellant’s responses to appellees’ motions for summary judgment in the trial court. On appeal, we are not to consider as grounds for reversal of a summary judgment issues not expressly presented to the trial court by written motion, answer or other response. Tex.R. Civ. Proc. 166a(c); Cook-Pizzi v. Van Waters & Rogers, Inc., 94 S.W.3d 636, 643 (Tex.App.-Amarillo 2002, pet. denied).

The references to appellant’s position that there was no evidence of handbills on the streets in her responses to the motions for summary judgment appear in the factual recitations contained in the section appellant entitled “Nature of Plaintiffs Case.” Appellant’s argument challenging Elrod and Fletcher’s no-evidence ground on her malicious prosecution claim contains no mention of the argument she now urges. The passing references in the statement of the nature of her case fail to meet the “expressly presented” requirement of Rule 166a(c) and may not now be used to reverse the trial court’s judgment. See McConnell v. Southside Ind. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993) (issue not expressly presented by mere reference to summary judgment evidence).

Moreover, even if the argument had been presented to the trial court, neither at trial nor on appeal has appellant pointed out probative evidence with respect to the location at which the flyers were observed sufficient to raise an issue of fact concerning the probable cause element of appellant’s malicious prosecution claim. In her motion for rehearing, appellant refers us to a page of Fletcher’s October 10, 2000 affidavit, which recites facts concerning his discovery of the flyer on the windshield of his vehicle and that of other vehicles in the vicinity. The sparse facts recited in the affidavit concerning the locations of the flyers are not sufficient to raise an issue of fact concerning the absence of probable cause to believe that the ordinance had been violated.

Appellant emphasizes that the record contains no proof that a flyer was seen or found on the city streets. The argument misplaces the burden associated with a no-evidence motion for summary judgment. Assuming, arguendo, that evidence Fletcher did not see a flyer on a street would be sufficient to raise an issue concerning his probable cause to believe a violation of the ordinance had occurred, it was appellant’s burden to point out probative evidence of that fact. She has not done so.

We consider that the other matters appellant raises in her motion for rehearing are addressed adequately by our opinion. Appellant’s motion for rehearing is overruled.

      . The handbill ordinance declared it unlawful to "distribute or scatter any kind of literature, circulars, handbills or any kind of advertisements or loose paper upon the streets of the city.” It is uncontroverted in this litigation that the flyer was an advertisement governed by the ordinance.

      . See generally Lonsdale v. Tyler Junior College, 470 F.2d 659 (5th Cir.1972) (affirming injunction under Section 1983 for deprivation of equal protection); Izen v. Catalina, 256 F.3d 324, 327-28 (5th Cir.2001) (applying Fourth Amendment right to be free from malicious prosecution). The City has not challenged the trial court’s failure to grant its special exceptions so we assume, arguendo, that appellant’s petition is sufficient to state a cause of action against it under Rule of Civil Procedure 47.

      . This language is drawn from appellant’s brief.

      . Because of the emphasis appellant places on the city attorney’s testimony, we reproduce the following exchange from his deposition testimony:
      Q: Was there any consideration after you heard what they told you and the evidence you had of suggesting a dismissal in this matter, one or more of them, or not trying it?
      A: No. I try all. [...] I try all cases. Win, lose or draw....
      Q: Yes, sir. Through your term as City Attorney? There was no additional evidence sought or obtained prior to your going to trial that morning?
      A: I don't remember.
      Q: What was the ultimate outcome of your first jury trial on these first two complaints?
      A: I think she was found not guilty of the litteringL] and the jury hung on the business.
      Q: Okay. And was a decision made if at all about whether to retry the hung jury complaint?
      A: There never was a real question in my mind that it’s still a complaint, and I’m going to try it.
      Q: Okay.
      A: I think that it’s my duty, that was my duty as the City attorney was to present [the case].

      . The parties do not cite any authority discussing whether the determination that a plaintiff asserting disparate treatment is similarly situated to others is a question of fact or law. They implicitly view the question as one of fact and we will analyze the issues presented on that basis.