author: Opinion By Justice BRIDGES.

text:
    HUNT OIL COMPANY, Appellant/Cross-Appellee, v. LIVE OAK ENERGY, INC., Appellee/Cross-Appellant.
    No. 05-07-01553-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 19, 2009.
    Rehearing Overruled June 18, 2010.

      Scott P. Stolley, David R. Noteware, Thompson & Knight LLP, Dallas, TX, for Appellant/Cross-Appellee.
    Charles T. Frazier, Jr., LaDawn H. Conway, Alexander Dubose Jones & Townsend LLP, Frank L. Broyles, Goins, Underkofler, Crawford & Langdon, Dallas, TX, for Appellee/Cross-Appellant.
    Before Justices WRIGHT, BRIDGES, and O’NEILL.
   OPINION

Opinion By Justice BRIDGES.

Live Oak Energy, Inc. sued Hunt Oil Company for negligence and breach of contract arising out of Hunt Oil’s drilling in a Louisiana oilfield. A jury found Hunt Oil was negligent, and awarded Live Oak over $5 million in damages. Hunt Oil’s seven issues on appeal complain the statute of limitations ran on Live Oak’s claims; Live Oak had no standing to recover for an injury that occurred before it purchased the oil field in question; Hunt Oil’s conduct was not a proximate cause of injury to Live Oak as a matter of law; Live Oak could not recover for its economic loss under Louisiana law; and Live Oak could not recover the replacement cost of the oil, incidental damages, or prejudgment interest. In its cross-appeal, Live Oak asserts the evidence conclusively establishes it suffered $8,772,000 for repair costs. Because the statute of limitations had run on Live Oak’s negligence claim before Live Oak filed suit against Hunt Oil, we reverse the trial court’s judgment and render judgment for Hunt Oil.

BACKGROUND

In 2002, Live Oak acquired a leasehold interest in the Pettit geological formation located in the East Haynesville oil field in northwest Louisiana. The East Haynes-ville field exceeds 8,000 acres and was discovered in 1945. The Pettit formation is approximately 15 feet thick at a depth of about 5,200 feet. In 1958, the Pettit formation was unitized. By 1972, both primary production and secondary-recovery production by water flooding had been conducted in the Pettit formation, producing approximately 11 million barrels of oil in all.

Live Oak purchased its interest from Story Oil & Gas Co. for $465,000. Live Oak planned to attempt to produce oil from the Pettit formation. Prior to Live Oak’s purchase, Hunt Oil drilled some fifty wells through the Pettit formation to recover oil in formations below. After Live Oak’s purchase, Hunt Oil drilled four additional wells. Live Oak contends Hunt Oil failed to protect the Pettit formation by fading to cement thirty of the previously-drilled wells and the four additional wells as required by law. Live Oak alleges these holes created a “leaky bucket” in the Pettit formation, so that Live Oak was unable to recover oil. In its trial brief on damages, Live Oak described the “leaky bucket damages” it sought as “damages caused by the ability of fluids within the Pettit to escape out of the Pettit.”

In late September 2004, Live Oak purchased the Butler well in the East Haynes-ville field from Hunt Oil. After the sale, Live Oak obtained the file for the Butler well from Hunt Oil. Live Oak contends it learned when it reviewed the file that Hunt Oil had not cemented off the Pettit formation in that well. Live Oak completed several wells, including the Butler well, that produced almost exclusively water. Live Oak alleges, “[bjecause Hunt failed to protect the Pettit, it is not a closed system, and Live Oak could not, and cannot, obtain permission from the State [of Louisiana] to waterflood it.” Live Oak asserts that as a result, it lost “substantial oil reserves.”

Live Oak sued Hunt Oil on June 28, 2005. At trial, the jury found Hunt Oil’s negligence proximately caused damage to Live Oak. The jury awarded Live Oak $925,000 in “incidental damages,” and found the “current replacement cost of Live Oak’s oil reserves lost” to be $4.3 million. The jury also determined that by October 1, 2004, the operator of the Pettit Unit should have discovered in the exercise of reasonable diligence that Hunt Oh did not “cement off’ the formation. The jury found in favor of Hunt Oil, however, on Live Oak’s claim for breach of contract. The trial judge entered judgment in favor of Live Oak based on the jury’s findings.

Applicable Law

Although this case was filed and tried in Texas, the causes of action asserted by Live Oak arose in Louisiana. The parties agree that Texas law applies to procedural issues, and Louisiana law applies to issues of substantive law. See Intevep, S.A. v. Sena, 41 S.W.3d 391, 394 (Tex.App.-Dallas 2001, no pet.) (“As a general rule, questions of substantive law are controlled by the laws of the state where the cause of action arose, but matters of remedy and procedure are governed by the laws of the state where the action is sought to be maintained”). They disagree, however, on whether the application of the statute of limitations to Live Oak’s negligence claim presents a substantive issue or a procedural issue. Hunt Oil argues the law of the forum state determines whether a question is substantive or procedural, and Texas law provides that limitations presents a procedural question. Live Oak counters that the “real question is which state’s law governs the accrual of a cause of action,” and that question is substantive, so Louisiana law applies.

We agree with Hunt Oil. As Live Oak concedes, “[generally what is a matter of substance and what is a matter of procedure is determined by the law of the forum state according to its own laws.” PennWell Corp. v. Ken Assocs., Inc., 123 S.W.3d 756, 764 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). Texas courts have held that limitations presents a procedural issue. See Baker Hughes, Inc. v. Keco R. & D, Inc., 12 S.W.3d 1, 4 (Tex.1999); Intevep, 41 S.W.3d at 394. Live Oak does not distinguish these cases, but instead relies on Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988), for the proposition that “[t]he phrase ‘accrues’ embodies a substantive law concept-” As we explained in Intevep, however, the statute of limitations is considered substantive “when the statute that creates a right of action incorporates an express limitation upon the time within which the suit may be brought.” Intevep, 41 S.W.3d at 394. Therefore, if a Louisiana statute created the right of action Live Oak asserts in this case and provided a limitations period, Louisiana law would apply. Id. If not, we follow the general rule. See id. (general rule is that matters of remedy and procedure are governed by law of state where action sought to be maintained). Live Oak does not argue it is asserting a cause of action under a Louisiana statute that provides a limitations period. We follow the general rule and apply Texas law regarding limitations. Cf. id. at 395-96 (Venezuelan law applied where Venezuelan statute created right of action and provided limitations period).

Statute of Limitations

In its first issue Hunt Oil complains that Live Oak’s negligence claim is barred by limitations, and Live Oak cannot avoid limitations by invoking the discovery rule. Live Oak argues that its negligence claim is timely under both Louisiana and Texas law. Because we have determined Texas law applies to the issue of limitations, we consider the parties’ arguments under Texas law.

Hunt Oil alleges the trial judge erred in denying its objections to the charge, its motion for judgment notwithstanding the verdict, its motions to modify the judgment, and its motions for new trial, all asserting Live Oak’s negligence claim is barred by the statute of limitations. This is a legal question we review de novo. See, e.g., Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 776 (Tex.App.-Dallas 2005, pet. denied) (statute of limitations begins to run when cause of action accrues; determination of when cause of action accrues is question of law); COC Services, Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 662 (Tex.App.-Dallas 2004, pet. denied) (we review questions of law de novo).

Negligence claims must be brought “not later than two years after the day the cause of action accrues.” Tex. Civ. Prac. & Rem.Code Ann. § 16.003 (Vernon Supp. 2008); Waxier v. Household Credit Services, Inc., 106 S.W.3d 277, 279 (Tex.App.Dallas 2003, no pet.). Live Oak’s original petition was filed on June 23, 2005. Hunt Oil argues Live Oak’s action for negligence accrued more than two years prior to that date.

Live Oak alleged in its original petition that “starting in 1988 and continuing through 2004,” Hunt Oil drilled more than 50 wells through the Pettit Unit into formations below. Live Oak further alleges that 34 of these wells were not cased or cemented to protect the producing formations above. In addition, Live Oak complained that Hunt Oil improperly disposed of drilling pit fluids into the Pettit formation. For its negligence claim, Live Oak alleged Hunt Oil “failed to exercise ordinary care in its operations inside the geographical confines of the Pettit Unit” from which both Live Oak and Hunt Oil produce oil and gas. Although Live Oak amended its petition numerous times before trial, it continued to allege that Hunt Oil’s negligent failure to protect the Pettit formation in its drilling of wells between 1988 and 2004 was the proximate cause of damages to Live Oak. Hunt Oil pleaded Live Oak’s claims were barred by the applicable statutes of limitations, and argues Live Oak’s own proof establishes that Hunt Oil drilled thirty of the allegedly unprotected holes between November 1990 and 2002, creating the “leaky bucket” more than two years before suit was filed.

Live Oak pleaded that the discovery rule applied to its claims, contending that in the exercise of reasonable diligence it could not have “discovered facts that would have triggered any limitations time period until Plaintiff obtained a well file from Defendant.” The discovery rule is a very limited exception to limitations and is construed strictly. See Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.1994) (“the discovery rule, in application, proves to be a very limited exception to statutes of limitation.”); S.V. v. R.V., 933 S.W.2d 1, 25 (Tex.1996) (“exceptions to the legal injury rule should be few and narrowly drawn”). The jury found October 1, 2004, to be the date by which the operator of the Pettit Unit, in the exercise of reasonable diligence, should have discovered that Hunt Oil did not cement off the Pettit formation.

The parties agree that under Texas law, the discovery rule applies when “the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.” See Computer Assocs. Int’l, Inc., 918 S.W.2d at 456. They disagree on whether Live Oak’s alleged injury was “inherently un-discoverable.” As the Texas Supreme Court explained in Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734-35 (Tex.2001):

An injury is inherently undiscoverable if it is, by its nature, unlikely to be discovered within the prescribed limitations period despite due diligence. S.V. v. R.V., 933 S.W.2d 1, 7 (Tex.1996) (citing Altai, 918 S.W.2d at 456). “Inherently undiscoverable” does not mean that a particular plaintiff did not discover his or her particular injury within the applicable limitations period. Id. Instead, we determine whether an injury is inherently undiscoverable on a categorical basis because such an approach “brings predictability and consistency to the jurisprudence.” Apex Towing Co. v. Tolin, 41 S.W.3d 118,122 (Tex.2001) (citing S.V. v. R.V., 933 S.W.2d at 6); see also HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex.1998). Accordingly, the question here is not whether Horwood and Glass detected the alleged improper charges and resulting underpayment within the limitations period. Rather, we must decide whether theirs is “the type of injury that generally is discoverable by the exercise of reasonable diligence.” HECI, 982 S.W.2d at 886.

The court also explained in Via Net, U.S. v. TIG Insurance Co., 211 S.W.3d 310, 314 (Tex.2006), that whether an injury is inherently undiscoverable is a legal question “decided on a categorical rather than case-specific basis; the focus is on whether a type of injury rather than a particular injury was discoverable.” (Emphasis in original).

Hunt Oil argues the existence of a “leaky bucket” is the type of injury that generally is discoverable within the limitations period by the exercise of reasonable diligence. Live Oak contends discovering the injury would require “unreasonable diligence,” arguing “it is unrealistic to expect Live Oak to discover that Hunt’s wells were not properly cemented 5,200 feet below the surface by inspecting the property.” Live Oak concludes that until it reviewed the file of the Butler wellbore in 2004, it was not reasonable for it to have discovered the injury. Until then, it alleges it had no right and no reason to seek information from Hunt Oil or any other operator in the field.

Citing HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex.1998), Hunt Oil argues Live Oak’s injury was not “inherently undiscoverable on a categorical basis.” See Wagner & Brown, 58 S.W.3d at 735. In HECI, the court stated:

As owners of an interest in the mineral estate, the Neels had some obligation to exercise reasonable diligence in protecting their interests. This includes exercising reasonable diligence in determining whether adjoining operators have inflicted damage. Royalty owners cannot be oblivious to the existence of other operators in the area or the existence of a common reservoir. In some cases, wells visible on neighboring properties may put royalty owners on inquiry. In any event, a royalty owner should determine whether a common reservoir underlies its lease because it knows or should know that, when there are other wells drilled in a common reservoir, there is the potential for drainage or damage to the reservoir.

HECI, 982 S.W.2d at 886. Live Oak distinguishes HECI, arguing Hunt Oil and Live Oak are not sharing a common reservoir and the wrongful conduct was not the draining of minerals by visible neighboring operators. While it is true Hunt Oil and Live Oak were not “sharing a common reservoir,” it is also true that Hunt Oil had drilled the unprotected wells through the Pettit formation itself on the way to recovering oil beneath it. Here there is not an issue of “wells visible on neighboring properties” that the HECI court stated “may put royalty owners on inquiry,” id., but wells visible on the very same tract. And as the court explained in Taub v. Houston Pipeline Co., 75 S.W.3d 606, 619-20 (Tex.App.-Texarkana 2002, pet. denied), the obligation to exercise due diligence goes beyond mere visual observation: “in [HECI], the court held the owner’s obligation of due diligence went beyond mere passive visual observation, but also extended to inquiries of the lessees as to their activities.”

Live Oak also distinguishes HECI on the ground that no contractual relationship existed between it and Hunt Oil, concluding that Live Oak had no reason to ask for information from Hunt Oil before the sale of the Butler well, and Hunt Oil had no obligation to provide it. While HECI did involve a claim for breach of contract, see also Via Net, 211 S.W.3d at 314 (“[d]ue diligence may include asking a contact partner for information needed to verify contractual performance”), the discovery rule’s due diligence requirement is not limited to cases involving a contractual relationship. See, e.g., Bayou Bend Towers Council of Co-Owners v. Manhattan Constr. Co., 866 S.W.2d 740, 742-43 (Tex.App.-Houston [14th DistJ 1993, writ denied) (discovery rule imposes duty on plaintiff to exercise reasonable diligence to discover facts of negligence or omission); see also Gillespie v. Fields, 958 S.W.2d 228, 230-32 (Tex.App.-Tyler 1997, pet. denied) (applying “inherently undiscovera-ble” test to negligence claim to conclude discovery rule did not apply, noting plaintiff offered no evidence of due diligence).

We conclude that Live Oak’s injury, the existence of a “leaky bucket” preventing oil production, was not “inherently undiscoverable.” In its purchase of its leasehold interest in 2002, Live Oak averred it had “been provided sufficient time and access to all records, both public and on hand sufficient to inspect, examine and satisfy itself with regard to the ownership, condition, and operations of the ‘subject interests’....” As a practical matter, when purchasing the property in the hope of producing oil, “reasonable diligence” would include at least a preliminary determination whether recovery of oil could be undertaken on the site, or whether previous activity or damage precluded the possibility, especially with some fifty visible wells on the surface. See HECI, 982 S.W.2d at 886 (owners of interest in mineral estate had some obligation to exercise reasonable diligence in protecting their interests, including determining whether adjoining operators have inflicted damage).

Hunt Oil argues public records did exist showing that cement had not been used in the wells at issue at the depths relevant to producing oil from the Pettit. Hunt Oil filed applications for annular disposal of drilling fluids (known as form UIC-14) with the Louisiana Office of Conservation that included a schematic drawing of the actual well, including the location of the cement. Live Oak counters that other forms on file with the Louisiana Office of Conservation, filed after disposal of waste into the annular space (known as form ENG-16), contained a false representation under oath that Hunt Oil “has protected the Pettit as required by law.” These forms, however, did not include any specific information or verification about the cementing of the well. If the information on form ENG-16 did constitute a representation about cementing, as Live Oak contends, then those forms would contradict other public records regarding the wells, a discrepancy Live Oak could have discovered and investigated prior to its purchase in 2002.

Further, Live Oak witness Broussard (employed by the Louisiana Office of Conservation) testified that in the 1990 to 1994 time frame, he was able to check forms known as “casing affidavits” to determine “how the well is cemented.” Broussard testified he determined Hunt Oil’s cementing procedures “were not adequate for the deeper wells they were drilling in the East Haynesville field.” He contacted Hunt Oil about the problem, then checked the casing affidavits for the next few wells that Hunt Oil drilled to determine that the deeper wells were cemented properly. Although Broussard did not testify whether these records were publicly available, Live Oak was apparently able to identify Brous-sard and present his testimony regarding the casing affidavits at trial in support of its claim that Hunt Oil was negligent in failing to cement its wells.

Live Oak’s president testified that operators do not routinely investigate public records of another operator “unless there’s a reason to think it’s affecting your property,” and Live Oak argues that “unreasonable” diligence would be required “to continuously seek and obtain information on drilling practices from every operator in the field to ensure each operator’s compliance with the regulations designed to protect formations like the Pettit.” Live Oak also argues there was nothing to put it on notice that investigation was required. Similar arguments were rejected in HECI. The court of appeals had reasoned:

HECI argues that the existence of its suit against AOP was inherently discoverable. HECI’s administrative complaints against AOP were available in the Railroad Commission’s public records, the lawsuit pleadings were available in the Fayette County district clerk’s office, and news of the judgment was published in the Fayette County weekly newspaper and a petroleum industry newsletter. The Neels contend that, without knowledge of AOP’s misdeeds, they were not required by the due-diligence standard to scour the Railroad Commission’s records; besides, those records would show only that HECI had taken action to protect the entire leasehold. Nothing in the Railroad Commission records would reveal the lawsuit against AOP, much less the need to represent their own interests in such a suit. Likewise, the Neels contend that due diligence did not require them to comb through records of the Fayette County district clerk’s office looking for lawsuits that might adversely affect their interests. The Neels, who do not reside in Fayette County, do not feel due diligence required them to read every issue of the local newspaper or every industry publication.
We conclude that this type of injury is inherently undiscoverable. A lessor would not ordinarily have any reason to suspect it had been injured by its lessee’s undisclosed, binding legal action. Duly diligent royalty owners are not required to stake out all government agencies in which their lessees might initiate proceedings that might affect the royalty owners’ interests. Nor are royalty owners required to sift through court records in search of judgments that might benefit them. Such a requirement would impose great burdens not only on royalty owners, but on the courts, agencies, and the non-oil interests served by those entities.

Neel v. HECI Exploration Co., 942 S.W.2d 212, 221-22 (Tex.App.-Austin 1997), rev’d in part, 982 S.W.2d 881 (Tex.1998). The supreme court rejected this reasoning. Although the records on file at the Texas Railroad Commission did not provide constructive notice to the Neels, the court noted “filings and other materials publicly available from the Railroad Commission are a ready source of information, and a cause of action for failure to provide that same information is not inherently undis-coverable.” HECI, 982 S.W.2d at 887. The court concluded, “As demonstrated in this case, the information that the Railroad Commission maintains regarding fields in which there is competing production indicates that injury to a common reservoir by an adjoining operator is not inherently un-discoverable.” Id.

Robert Imel, president of Live Oak, testified that Hunt Oil and Live Oak “are the two major operators in this field,” although Hunt Oil was “much larger.” The Neels, the plaintiffs in HECI, were royalty owners who did not reside in the county where the property was located. Neel, 942 S.W.2d at 221. Nonetheless, their injury was not inherently undiscoverable. HECI, 982 S.W.2d at 887. Here, Live Oak was the second-largest operator on the field in question and planned to undertake production on the tract. Imel testified, “we knew there was no cement across the Pettit as soon as we got the well files” from Hunt Oil, upon Live Oak’s purchase of the Butler well. Live Oak did not seek these files or any other information from Hunt Oil at the time of its purchase of the leasehold in 2002. “Failing to even ask ... is not due diligence.” Via Net, 211 S.W.3d at 314. Live Oak’s obligation of due diligence “went beyond mere passive visual observation.” See Taub, 75 S.W.3d at 619. Although “[w]e do not lightly conclude that we are in a better position than a jury to determine when a party should have discovered a cause of action,” Advent Trust Co. v. Hyder, 12 S.W.3d 534, 541 (Tex.App.-San Antonio 1999, pet. denied), we conclude Live Oak should have known of its claim against Hunt Oil in 2002, at the time it acquired its leasehold interest in the Pettit formation. Because Live Oak did not bring its suit against Hunt Oil until 2005, more than two years after its cause of action accrued, we sustain Hunt Oil’s first issue.

Conclusion

Because of our disposition of Hunt Oil’s first issue, we need not address its remaining issues or Live Oak’s cross-issue. We reverse the trial court’s judgment and render judgment that Live Oak take nothing in its suit.

      . Live Oak also contended, however, that Hunt Oil was liable to it for breach of the operating agreement entered into at the time the Pettit formation was unitized in 1958.

      . In addition, Live Oak contended it planned secondary recovery on the site as well. At trial, Philip N. Asprodites, a former Commissioner of Conservation for the State of Louisiana, testified as an expert witness on Live Oak’s behalf. Asprodites explained to the jury that to undertake a “secondary recovery" program to attempt to recover additional reserves "after the initial pressure is depleted in the zone or the reservoir,” an operator could inject water into the reservoir to force oil out. To obtain permission to water flood a reservoir, an applicant would be required to represent to the Louisiana commission that the reservoir is a "closed system" from which the water could not escape or leak. Asprodites testified that with only one leaking well, an applicant might decide the economics justified a repair to create a closed system. But "[i]f you have many holes, thirty, forty, fifty holes, it’s like a piece of Swiss cheese, it's a different matter." When asked whether Live Oak could obtain a water flood permit to recover oil from the Pettit system, Asprodites concluded, "I don’t see how an expert for Live Oak could testify under oath that the Pettit formation ... is a closed system today,” because of the many unprotected wells. In any event, at least some degree of "reasonable diligence” would be required in order to make this averment to the Louisiana commission. See HECI, 982 S.W.2d at 886. But because there is some evidence Live Oak considered secondary production only when primary production failed, this argument is not conclusive as to limitations.

      . Advent Trust, relied on by Live Oak, is instructive. There the plaintiffs, working interest owners in certain oil and gas leases, sued to recover losses they incurred in prior litigation. The prior lawsuit involved "dually completed” wells, producing from formations at two different depths. See Advent Trust, 12 S.W.3d at 537. Although the court of appeals distinguished HECI, noting "it seems unrealistic to expect the [plaintiffs] to discover that wells have been dually completed simply by inspecting the property," id. at 539, it reversed a judgment based on a jury verdict for plaintiffs and held even if the discovery rule applied, plaintiffs should have known of their cause of action at the time they were sued in the underlying litigation. Id. at 541. The court noted the supreme court's "efforts to confine the application of the discovery rule," id., citing Murphy v. Campbell, 964 S.W.2d 265, 271 (Tex.1997), for the proposition that "an action accrues, not when injury becomes certain, but when the claimant should know of the injury.” Advent Trust, 12 S.W.3d at 540. By the exercise of reasonable diligence, Live Oak should have known of its injury, the existence of "leaky bucket,” at the time it acquired its interest in the Pettit formation.

      . Live Oak contends "as an alternative ground for affirmance” that its negligence claim was timely under Louisiana’s "continuing tort” doctrine. The trial judge granted Hunt Oil's motion for summary judgment on this point, ruling "Live Oak has failed to establish a continuing tort.” As we have noted, Texas law applies regarding limitations. See Intevep, 41 S.W.3d at 394; see also Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 443 (Tex.App.-Fort Worth 1997, pet. denied) (continuing tort doctrine is exception to the statute of limitations in Texas). Under Texas law, the continuing tort doctrine does not apply to claims for damages arising from permanent injury to land. See Mitchell Energy Corp., 958 S.W.2d at 443; see also Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 270, 281 (Tex.2004) (permanent nuisance claim accrues when injury first occurs or is discovered; nuisance deemed permanent if sufficiently constant or regular that future impact can be reasonably evaluated). We agree with the trial judge that Live Oak has failed to establish a continuing tort delaying accrual of its cause of action for negligence.

      . Live Oak contends we may affirm the trial court’s judgment on an alternative ground, that the jury’s answer to Question No. 3, finding no breach of contract by Hunt Oil, was against the great weight and preponderance of the evidence. Live Oak did not raise this issue in a motion for new trial. A point in a motion for new trial is a prerequisite to asserting a complaint on appeal that a jury finding is against the overwhelming weight of the evidence. Tex.R. Civ. P. 324(b); Tex.R.App. P. 33.1(a)(1)(B); see Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.1991) ("A point in a motion for new trial is a prerequisite to complain on appeal that the evidence is factually insufficient to support a jury finding and that a jury finding is against the overwhelming weight of the evidence.”).


source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    Alvester Charles WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-09-00087-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 19, 2009.
    Discretionary Review Refused May 5, 2010.

      Jerald K. Graber, Houston, TX, for Appellant.
    Eric Kugler, Assistant District Attorney of Harris County, Patricia R. Lykos, Harris County District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, ALCALA, and HANKS.
   OPINION

ELSA ALCALA, Justice.

Appellant, Alvester Charles Williams, appeals from a judgment convicting him for the offense of felon in possession of a firearm for which he was sentenced to 28 years in prison. See Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2009). In four points of error, appellant contends (1) the evidence is legally insufficient, (2) the evidence is factually insufficient, (3) the trial court erred by including peremptorily struck venire members on the jury, and (4) appellant received ineffective assistance of counsel. We conclude the evidence is legally and factually sufficient, appellant failed to preserve error concerning the jurors seated on the jury, and appellant has not shown ineffective assistance of counsel because he has failed to show a reasonable probability that the result of the proceedings would have been different had the jurors been removed pursuant to his peremptory strikes. We affirm.

Background

One early morning in June 2008, appellant was riding as a passenger in his own vehicle. His companion, Marcus Richardson, was driving when Officer Johnson of the Houston Police Department stopped the car in north Houston for a traffic violation.

After Richardson parked the vehicle in a well-lit parking lot, Officer Johnson asked Richardson for his driver’s license and insurance. When Richardson responded that he had neither, the officer asked him to step out of the car. The officer then noticed a pistol case on the passenger side floorboard directly under appellant’s legs.

Officer Johnson arrested appellant and Richardson for outstanding City of Houston warrants, and placed them in his police car. During the inventory search of the car following the arrests, Officer Johnson found temporary paper licence plates on the car’s dashboard. The plates showed appellant as the registered owner of the car, and the vehicle identification number (VIN) on the plates matched the YIN of the vehicle. The officer also found a pistol “underneath the passenger’s seat.” The officer opined that the placement of the firearm under the seat was within easy reach of appellant. Appellant was charged with felon in possession of a firearm because his criminal history showed he had been convicted of felony delivery of a controlled substance in 2007.

Appellant pleated not guilty to the jury. At trial, the court informed the parties it would give them an extra peremptory strike so an alternative juror could be chosen. After each side questioned the jury doing voir dire, appellant’s trial counsel turned in his peremptory strike list with “defense” next to the names of 11 venire members: 1, 5, 6, 10, 18, 22, 26, 38, 38, 39, and 44. Of those jurors, venire members 1, 5, 6, 10 and 13 were selected on the jury panel. After the clerk read the names of the people chosen for the jury, the trial judge asked if there were any objections to the jury panel as assembled. Appellant replied, “No objection, Your Honor.” The court then swore in each of the named venire members, including venire members 1, 5, 6, 10, and 13.

The arresting officers and a member of the Houston Police Department’s identification division testified for the State. Appellant did not testify, but presented the testimony of a private investigator. The jury found appellant guilty, the court found true two punishment • enhancement paragraphs, and the court determined his sentence.

Sufficiency of Evidence

In his first and second points of error, appellant challenges the sufficiency of the evidence to support the felon in possession of a firearm offense. Appellant does not challenge the evidence relating to his prior conviction; rather, his challenge concerns only the affirmative links between the weapon and himself.

A. Legal Sufficiency Standard of Review

In his first point of error, appellant contends the evidence is legally insufficient to support his conviction because there are insufficient links to show that appellant knowingly possessed the firearm.

In a legal sufficiency review, we consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found the accused guilty of all essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App.2005); McClesky v. State, 224 S.W.3d 405, 409 (Tex.App.-Houston [1st Dist.] 2006, pet. ref d). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993).

B. Factual Sufficiency Standard of Review

Appellant contends in his second point of error that the evidence is factually insufficient to establish that he possessed the firearm. When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex.Crim.App.1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App.2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id.

In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). A jury is in the best position to evaluate the credibility of witnesses, and we are required to afford “due deference” to the jury’s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006). It is within the jury’s province to determine witness credibility. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App.1997).

C. Links

To establish unlawful possession of a firearm by a felon, the State must show that the accused was previously convicted of a felony offense and possessed a firearm after the conviction and before the fifth anniversary of his release from confinement or from community supervision, parole, or mandatory supervision, whichever date is later. Tex. Penal Code Ann. § 46.04(a)(1); James v. State, 264 S.W.3d 215, 218 (Tex.App.-Houston [1st Dist.] 2008, pet. ref d). Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. Tex. Penal Code Ann. § 6.01(b) (Vernon 2003); James, 264 S.W.3d at 218.

If the firearm is not found on the defendant or is not in his exclusive possession, the evidence must link him to the firearm. See Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App.2006); James, 264 S.W.3d at 218-19; Bates v. State, 155 S.W.3d 212, 216-17 (Tex.App.Dallas 2004, no pet.). The evidence must establish that the defendant’s connection with the contraband was more than fortuitous. Evans, 202 S.W.3d at 161. Among the many possible factors that we may consider to decide whether there is a link between the defendant and the contraband, are whether: (1) the contraband was in plain view; (2) the defendant was the owner of the vehicle in which the contraband was found; (3) the defendant was in close proximity and had ready access to the contraband; (4) the contraband was found on the same side of the vehicle as the defendant; (5) conduct by the defendant indicated a consciousness of guilt, including extreme nervousness or furtive gestures; (6) the defendant had a special connection or relationship to the contraband; (7) the place where the contraband was found was enclosed; (8) occupants of the automobile gave conflicting statements about relevant matters; (9) the defendant was the driver of the vehicle in which the contraband was found; (10) contraband was found on the defendant; (11) the defendant attempted to flee; and (12) affirmative statements connect the defendant to the contraband, including incriminating statements made by the defendant when arrested. James, 264 S.W.3d at 219; see also Bates, 155 S.W.3d at 216-17; Hawkins v. State, 89 S.W.3d 674, 677 (Tex.App.-Houston [1st Dist.] 2002, pet. refd); Corpus v. State, 30 S.W.3d 35, 38 (Tex.App.-Houston [14th Dist.] 2000, pet. refd); Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, pet. refd). It is not the number of links that is dis-positive, but rather the logical force of all of the evidence, direct or circumstantial. Evans, 202 S.W.3d at 162. The absence of various links does not constitute evidence of innocence to be weighed against the links present. Hernandez v. State, 538 S.W.2d 127, 131 (Tex.Crim.App.1976); James, 264 S.W.3d at 219.

D. Analysis

Appellant contends the evidence is insufficient because there was no evidence that the arresting police officers saw appellant attempt to move or hide the firearm under his seat; there was no evidence that appellant touched the firearm; there were no fingerprints on the firearm; the firearm was not in plain view; appellant was cooperative with the police; and appellant did not act like a person worried about having a firearm under his seat in the presence of the police.

Although these are circumstances that may distance appellant from the firearm, other circumstances are links that show he knowingly possessed the firearm. First, although the firearm was not in plain view when the officers initially approached appellant, the firearm’s case was in plain view directly next to appellant’s feet. Second, appellant was the owner of the vehicle in which the firearm was found. Third, the firearm was located within inches of appellant’s legs and he, therefore, was in close proximity and had ready access to the firearm. Fourth, the firearm was found on the same side of the vehicle as appellant, directly under his seat.

Viewing the evidence in a light most favorable to the jury’s verdict, the evidence links appellant to the firearm. From the totality of the circumstances, the jury could have reasonably determined appellant knowingly possessed the gun because the firearm’s case was in plain view, appellant was the owner of the vehicle in which the firearm was found, he was in close proximity and had ready access to the firearm, and the firearm was found on the same side of the vehicle as appellant. We hold the evidence is legally sufficient to prove appellant knowingly possessed the firearm. See James, 264 S.W.3d at 220 (among other factors, evidence legally sufficient where record showed appellant in close proximity to weapon, located within inches of his legs and within easy reach).

Viewing the evidence neutrally, appellant accurately represents that no evidence shows appellant touched the firearm, no evidence shows the firearm was in plain view, and evidence show appellant cooperated with the police officers. Other evidence, however, supports the jury’s inference that appellant knowingly possessed the firearm. From the totality of the evidence that the firearm’s case was within plain view next to the firearm, that appellant owned the vehicle in which the firearm was found, that the firearm was within easy reach of appellant and at appellant’s feet, and that the firearm was found on the same side of the vehicle as appellant, the jury could have reasonably inferred appellant knowingly possessed the firearm. We conclude the great weight and preponderance of the evidence does not contradict the jury’s verdict, and the evidence is not so weak that the verdict is clearly wrong and manifestly unjust. See Watson, 204 S.W.3d at 417; Hernandez, 538 S.W.2d at 131 (holding that absence of certain links “is not evidence of appellant’s innocence to be weighed against the evidence tending to connect appellant to the [contraband]”). We hold the evidence is factually sufficient.

We overrule appellant’s first and second points of error.

Jury Composition

In his third point of error, appellant contends the trial court erred by seating multiple jurors peremptorily struck by appellant. Appellant asserts he was prejudiced because “venire [members] most contrary to the defense were seated on the jury.”

A peremptory challenge is made to a juror without assigning any reason for the challenge. Tex.Code Crim. Proc. Ann. art. 35.14 (Vernon 2006). In non-capital, felony cases, the State and the defendant shall each be entitled to ten peremptory challenges. Id. art. 35.15(b) (Vernon 2006). If one or two alternate jurors are to be impaneled, the State and the defendant shall each be entitled to one peremptory challenge in addition to those otherwise allowed by law. Id. art. 35.15(d).

It is the responsibility of the parties to assure that a venire member who has been peremptorily challenged is not impaneled. See Miller v. State, 692 S.W.2d 88, 93 n. 10 (Tex.Crim.App.1985) (“should clerk misread names ... it is defendant’s responsibility to alert trial court to problem before jury is sworn; otherwise he may lose his peremptory strike”); see also Biagas v. State, 177 S.W.3d 161, 169 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). Before the jury panel is sworn, a party should object to a peremptorily challenged juror being impaneled on the jury. Miller, 692 S.W.2d at 93 n. 10; Acosta v. State, 522 S.W.2d 528, 529-30 (Tex.Crim.App.1975).

Appellant did not object at any point during trial to the composition of the jury as impaneled. Therefore, any error in the seating of the jurors is waived. See Miller, 692 S.W.2d at 93 n. 10.

We overrule appellant’s third point of error.

Ineffective Assistance of Counsel

In his fourth point of error, appellant contends his trial counsel’s representation was ineffective because counsel failed to object to the inclusion on the jury of five venire members, numbers 1, 5, 6, 10, and 13, whom he peremptorily challenged. Appellant asserts that because of his trial counsel’s ineffective assistance, those veni-re members “most contrary to the defense were seated on the jury,” resulting in the State proceeding with “a jury stacked in her favor.”

A. Applicable Law

The United States Supreme Court has established a two-pronged test for determining whether there was ineffective assistance of trial counsel. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel under Strickland, an appellant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Id.; Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App.2005).

The first prong of the Strickland test requires that the defendant show that counsel’s performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.Sd 808, 812 (Tex.Crim.App.1999). The defendant must prove, therefore, by a preponderance of the evidence that trial counsel’s representation objectively fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002). The second prong requires the defendant to show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 S.W.3d at 812. “Reasonable probability” means a “probability sufficient to undermine confidence in the outcome.” Id. A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.2003).

Any allegation of ineffectiveness must be firmly founded in the record, which must demonstrate affirmatively the alleged ineffectiveness. Id. at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996)). The appellant must prove ineffective assistance by a preponderance of the evidence and must overcome the strong presumption that his counsel’s conduct falls within the wide range of reasonably professionally assistance or might reasonably be considered sound trial strategy. Robertson v. State, 187 S.W.3d 475, 482-83 (Tex.Crim.App.2006). We will not speculate to find trial counsel ineffective when the record is silent on his counsel’s reasoning or strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994); Gamble v. State, 916 S.W.2d 92, 93 (TexApp.-Houston [1st Dist.] 1996, no pet.). In rare cases, the record can be sufficient to prove that counsel’s performance was deficient, despite the absence of affirmative evidence of counsel’s reasoning or strategy. See Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex.Crim.App.2000). Such cases are limited to occasions where no reasonable attorney could have made such a decision. Weaver v. State, 265 S.W.3d 523, 538 (Tex.App.-Houston [1st Dist.] 2008, pet. ref'd).

B. Strickland’s First Prong is Established

Appellant’s trial counsel’s performance was deficient because he failed to object when the trial court named the five venire members to the jury that he peremptorily struck. Peremptorily striking multiple venire members, and then not objecting when those venire members are sworn in as jurors, is not a reasonable strategic choice. See State v. Kelley, 20 S.W.3d 147, 155 (Tex.App.-Texarkana 2000, no pet.) (holding “there can be no doubt that under first prong of Strickland test, trial counsel’s performance was deficient in failing to object to seating of stricken juror”). Because there could be no reasonable strategy in peremptorily striking multiple venire members and then failing to object to their inclusion on the jury, we conclude appellant’s counsel’s performance was deficient under the first prong of Strickland. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Thompson, 9 S.W.3d at 812.

C. Strickland’s Second Prong Not Established

Having found deficient performance, we must next analyze whether appellant was harmed by the deficiency. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Johnson, 169 S.W.3d at 235. To satisfy the second prong of the Strickland test, appellant must show a reasonable probability that a different result would have occurred but for his trial counsel’s ineffective assistance. To show that a different result would have occurred, appellant needs to show some evidence that the struck jurors were otherwise disqualified. Kelley, 20 S.W.3d at 155 (citing Acosta, 522 S.W.2d at 530).

1. Voir Dire Responses of Venire Members 1, 5, 6, 10, and 13

Each of the five venire members agreed they would presume appellant innocent and ensure the State proves each element of the offense beyond a reasonable doubt. The five venire members also responded affirmatively that they would not hold it against appellant if he did not testify at trial. Finally, each venire member agreed that they could be fair and decide the case on the merits.

None of the five venire members stated they owned a gun, but none of them believed guns should be outlawed altogether. When asked whether any of venire members were former police officers or had a relative or friend who was a police officer, number 13 replied that he “had several close friends in the Austin Police Department.” Of the five venire members, the only one challenged for cause by appellant was number 13.

We note that, although the trial court determined appellant’s sentence, each of the five venire members made statements concerning punishment during voir dire. The five venire members affirmatively answered that they could consider the full range of punishment, and when the State asked each venire member’s opinion on whether they preferred punishment or rehabilitation for a “hypothetical crime” in a “hypothetical state,” all five venire members responded “[pjunishment,” except number 5 who responded “[rjehabilitation.”

2. Challenge for Cause on Venire Member Number 13

Appellant contends that venire member number 13 was disqualified because he stated he might give more credibility to a police officer based on the officer’s training and experience. The judge questioned number 13 individually in response to appellant’s challenge for cause. The judge asked,

You said earlier in response [you would] give more credibility to a police officer simply by the virtue of the fact he’s a police officer and for no other reason. I asked then is it because of his training and experience or just because of his uniform? You tell me, which is it?

Venire member number 13 responded, “I’d say training and experience.” The judge then denied appellant’s challenge for cause. A few moments later, appellant again discussed challenging number 13 for cause. The judge responded,

Your challenge would be denied. It appears to me that he is basing his statement that he would give a police officer more credibility based on his training and experience, which would be true of anyone with a certain amount of expertise in whatever area of expertise they may find themselves; not simply because he has a badge.

Venire member number 13 was not statutorily disqualified from jury service, did not demonstrate bias, and was not otherwise subject to challenge for cause. Furthermore, the record shows number 13 said he would be fair and impartial and would decide the case on the merits. Venire member number 13 was qualified to serve on the jury. See Harris v. State, 784 S.W.2d 5, 21 (Tex.Crim.App.1989) (finding venire member qualified to serve after venire member stated he would tend to give more weight to police officer’s testimony than to another witness’s testimony, but also stated he could be fair and decide case on merits).

3. Application of Strickland ⅛ Second Prong

Appellant has failed to show a reasonable probability that a different result would have occurred had the trial court excluded venire members 1, 5, 6, 10, and 13. The record does not show why appellant’s trial counsel chose to use peremptory strikes on these jurors. Appellant has not presented any evidence that the struck venire members were unqualified to render a fair verdict. See Kelley, 20 S.W.3d at 155. In reviewing the record, we presume that jurors are qualified absent some indication in the record to the contrary. See Ford v. State, 73 S.W.3d 923, 925 (Tex.Crim.App.2002). The record supports the presumption that venire members 1, 5, 6, 10, and 13, were qualified to serve as jurors. See id. Appellant has neither alleged nor shown any evidence in the record demonstrating that his trial counsel’s error deprived him of a jury comprised of qualified and impartial individuals. See id.

Appellant suggests that because four of the five venire members said they favored punishment over rehabilitation for a hypothetical crime, the seating of these jurors resulted in a jury more favorable to the State. The jury’s statements concerning feelings about punishment, however, do not show the jury leaned toward the State in the guilt phase of trial, and were immaterial to the punishment phase of the trial because the trial court sentenced appellant, not the jury.

Furthermore, appellant has not shown any evidence that a properly constructed jury would have reached a different result. There was substantial evidence that demonstrated appellant was in possession of a firearm. The evidence showed that appellant was within close proximity to the firearm, which was located within inches of his legs, within easy reach, and next to the firearm’s case, which was in plain view in appellant’s car.

We conclude appellant has failed to show a different result would have been reached if the trial court had not impaneled venire members 1, 5, 6, 10, and 13. See id.; cf. Batiste v. State, 834 S.W.2d 460, 466 (Tex.App.-Houston [14th Dist.], 1992) (determining that appellant’s evidence that his trial counsel failed to make timely Batson objection, which changed racial composition of jury, did not demonstrate prejudice because there was no evidence that properly constructed jury would have reached different result), ajfd, 888 S.W.2d 9, 10, 15 (Tex.Crim.App.1994) (holding appellant did not meet second prong of Strickland because appellant failed to show proceedings would have been different if struck venire member had served, and change in jury composition does not so invariably detract from fairness of trial as to justify exempting trial counsel’s error from the “prejudice” prong of Strickland). Appellant has failed to show that but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 S.W.Bd at 812. We hold appellant has failed to establish the second required prong for establishing ineffective assistance of counsel.

We overrule appellant’s fourth point of error.

Conclusion

We affirm the judgment of the trial court.

      . We note that appellant does not assert that his trial counsel committed a structural error by being so ineffective that counsel’s errors were in essence a "total deprivation of counsel at trial." See Johnson v. State, 169 S.W.3d 223, 235 (Tex.Crim.App.2005). The Court of Criminal Appeals states, "In Johnson v. United States, the [United States] Supreme Court set forth its most recent list of structural errors: the total deprivation of counsel at trial, lack of an impartial trial judge, the unlawful exclusion of members of the defendant's race from a grand jury, the denial of the right to self-representation at trial, the denial of the right to public trial, and an instruction that erroneously lowers the burden of proof for conviction below the ‘beyond a reasonable doubt’ standard." Id. (citing Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997)). A harm analysis would not apply to complete deprivation of counsel. Id. at 229 (citing United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984) (complete denial of counsel is "if counsel entirely fails to subject the prosecutions’s case to meaningful adversarial testing”)).


author: EVELYN V. KEYES, Justice.

text:
    Jesse RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 01-06-00517-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 3, 2009.

      Douglas M. Durham Houston, TX, for Appellant.
    Erin Craig, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, ALCALA, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Jesse Rodriguez, pled guilty, on May 25, 2006, to possessing more than 4 grams but less than 200 grams of cocaine. The plea agreement imposed nine years’ imprisonment on appellant. Appellant accepted the plea the same day that the trial court denied his motion to suppress the cocaine. In his sole issue, appellant argues that cocaine should have been suppressed because the police did not have authority to be in the home where the cocaine was found, and therefore they did not have probable cause to search appellant.

We affirm.

Background

Appellant was arrested on December 16, 2005 after calling the police and requesting that they collect his children from him. Appellant was married, but he had separated from his wife, Marlene Rodriguez. Marlene and appellant shared custody of their three children, and, on the night of his arrest, appellant was supervising the children at his parents’ home while his wife attended a Christmas party. Appellant expected his wife to collect the children around 11:00 p.m., but she called the house and asked appellant’s mother if the children could spend the night. Appellant’s mother apparently consented. When appellant’s wife did not retrieve the children around the appointed time, appellant began calling his wife and sending her text messages, which she ignored. Apparently frustrated that his wife was not coming to collect the children at the agreed time, appellant dialed 911 and asked the police to come retrieve the children from him.

Officer D. Flores responded to appellant’s call, which directed him to 1311 Alexander. When Officer Flores arrived, appellant was on the front porch. Although Officer Flores initially found appellant cooperative and informative, he also considered appellant to be emotional and believed that appellant was intoxicated. Officer Flores asked appellant whether he lived at the house. Appellant told him he and his wife were separated and living in different apartments and that his parents owned the house at 1311 Alexander. Officer Flores also testified that appellant began to have frequent mood swings and that the mood swings convinced him to call for assistance. While speaking with appellant on the front porch, Officer Flores called C. Gonzales, appellant’s brother-in-law. Gonzales called appellant’s wife, Marlene, and explained the situation to her. She left the Christmas party and drove to 1311 Alexander.

At some point before Marlene arrived, appellant “stormed” back into the home. After appellant had stormed back inside, appellant’s mother, Juana Rodriguez, appeared on the front porch, Marlene arrived around the same time. Marlene confirmed that the house belonged to appellant’s parents. Officer J. Harnett received the officer assist call and likewise arrived at the scene. Officer Flores asked appellant’s mother, Juana, whether the police could go in the house, and she said ‘yes.’

Upon entering the home, Officer Flores and Officer Hartnett found appellant in the back room with his sleeping children. When Officer Flores and Officer Hartnett entered the children’s room and approached appellant, he became defensive and demanded that the officers leave the home. However, Officer Hartnett spoke with appellant for fifteen minutes and convinced appellant to accompany him outside. While appellant and Officer Hart-nett were leaving the bedroom, appellant asked to use the restroom. The officers consented, but required appellant to leave the door open. After using the facilities, appellant walked with the police toward the front door, but, before reaching the front door, appellant changed his mind and told the officers they would have to “come get me.”

Appellant went into the kitchen, positioned himself next to a counter on which there was butcher block full of knives, and reached behind him. The officers attempted to restrain appellant to force him to submit. Officer W. Powell, a supervising officer who arrived after Officer Hartnett, aimed his pistol at appellant. Officer Har-nett grabbed appellant’s arm, but appellant jerked it away. Officer Flores pointed his taser at appellant and attempted to get him in a headlock. Following a struggle, Officer Flores shot appellant with the taser five times. After subduing and arresting appellant for resisting detainment or arrest, the officers took appellant outside and searched him. Upon searching appellant, they found the cocaine that served as the basis for this charge.

Appellant filed a motion to suppress the cocaine, contending that the police officers lacked a warrant to search the home and probable cause to search him. On May 25, 2006, the trial court held a hearing on appellant’s motion. The State called appellant’s mother, Juana, and Officers Flores, Hartnett, and Powell. The defense called appellant’s wife, Marlene, and his brother-in-law, Gonzales. After hearing the evidence and testimony, the trial court denied the motion and made findings on the record that the testimony of the police officers and Gonzalez was credible. Appellant pled guilty on the same day that the trial court denied his motion to suppress the cocaine.

Appellant appeals the trial court’s denial of his motion to suppress.

Standard of Review

We review a denial of a motion to suppress for an abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex.Crim.App.2008) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006)). When an appellate court reviews a trial court’s denial of a motion to suppress evidence it must give “almost total deference to a trial court’s express or implied determination of historical facts [while] review[ing] de novo the court’s application of the law of search and seizure to those facts.” Id. When the trial court has not made findings, we review the facts in a light most favorable to the trial court’s ruling. Id.

Discussion

In one issue, appellant challenges “whether the warrantless seizure of an individual inside his residence over his express refusal of consent, can be justified as reasonable to him on the basis of consent given to police by another.” Appellant argues that (1) exigent circumstances may overcome the presumption that a warrant-less arrest is illegal, but the exigent circumstances did not exist to justify the officers’ entry into the house; (2) although consent is an exception to the warrant requirement, “a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him regardless of the consent of a fellow occupant”; and (3) as an overnight guest, he had an expectation of privacy in the home that authorized him to refuse consent. See Georgia v. Randolph, 547 U.S. 103, 122-23, 126 S.Ct. 1515, 1528-29, 164 L.Ed.2d 208 (2006). We do not reach the exigent circumstances issue because we conclude that appellant’s mother had authority to grant the officers permission to enter the home.

A. Consent to Enter

Consent is among the most well established exceptions to the presumption that a warrantless search is unreasonable. Johnson v. State, 226 S.W.3d 439, 443 (Tex.Crim.App.2007); Brown v. State, 212 S.W.3d 851, 867-68 (Tex.App.-Houston [1st Dist.] 2006, pet. refd). Texas courts recognize that individuals may give their voluntary consent to have their homes searched and that the police are not required to have a reasonable suspicion of criminal activity before asking to enter a home. Johnson, 226 S.W.3d at 443; State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App.2002). Generally, “whether consent is voluntary turns on questions of fact and is determined from the totality of the circumstances.” Johnson, 226 S.W.3d at 443.

Unrebutted testimony at the suppression hearing established that appellant’s mother gave officers permission to enter the house at 1311 Alexander. Appellant does not challenge his mother’s ownership of the house or her standing, as owner and resident, to consent to the officers’ entry into the house. Nor is there any evidence to suggest appellant’s mother’s consent to the officers’ entry was anything less than voluntary. Because we give “almost total deference to a trial court’s express or implied determination of historical facts,” we conclude that the officers had lawful authorization from appellant’s mother to enter the house at 1311 Alexander. See Shepherd, 273 S.W.3d at 684 (holding that appellate courts defer to trial court’s determination of historical facts in review of suppression hearing).

B. Appellant’s Expectation of Privacy

Appellant contends, however, that, even if the police had lawful authority from his mother to enter the home, the police violated his rights under the Fourth Amendment, which provided him with a reasonable expectation of privacy because he qualified as an overnight guest.

“The Fourth Amendment protects individuals ‘against unreasonable searches and seizures.’” Luna v. State, 268 S.W.3d 594, 603 (Tex.Crim.App.2008). A defendant seeking to suppress evidence under the Fourth Amendment must show that he had a reasonable expectation of privacy that the government invaded. Id. A defendant has a legitimate expectation of privacy in the place searched, and therefore has standing to contest the search, if he has a subjective expectation of privacy in the place invaded that society is prepared to recognize as reasonable. Granados v. State, 85 S.W.3d 217, 223 (Tex.Crim.App.2002). Several factors are relevant to whether a claim of privacy is objectively reasonable: (1) whether the accused had a property or possessory interest in the place searched; (2) whether he was legitimately in the place searched; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, prior to the search, he took normal precautions customarily taken by those seeking privacy; (5) whether the property was put to some private use; and (6) whether the claim of privacy is consistent with historical notions of privacy. Id.

The Texas Court of Criminal Appeals has held that “[a]n ‘overnight guest’ has a legitimate expectation of privacy in his host’s home,” and thus has standing to complain that he has suffered a Fourth Amendment violation. Luna, 268 S.W.3d at 603; Granados, 85 S.W.3d at 223 (citing Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 1688-89, 109 L.Ed.2d 85 (1990)). However, even if a party has standing under the Fourth Amendment as an overnight guest, his Fourth Amendment claim may fail on its merits. Luna, 268 S.W.3d at 603. In particular, “a third party may properly consent to a search when she has control over and authority to use the premises being searched.” Id. at 604 (holding that trial court did not err in denying motion to suppress evidence obtained as result of warrantless search of apartment to which third party with control and authority had validly consented when third party denied appellant lived with her and explained that he stayed with her only “on and off’ and appellant stated that he lived elsewhere).

Here, appellant’s status as an overnight guest is questionable. Appellant, his wife, and his mother all stated that appellant lived elsewhere. While the evidence indicated that appellant stayed at the home “at least sometimes,” the record does not indicate whether, on the night of his arrest, appellant intended to spend the night at 1311 Alexander. It does, however, indicate that appellant and his wife lived there before they separated, that appellant’s wife believed that he stayed at 1311 Alexander on some nights and at a girlfriend’s apartment on other nights, and that the police never determined where appellant lived, even after his arrest.

Assuming, therefore, without deciding that these factors are sufficient to establish appellant’s standing to complain of the invasion of his right to privacy as an overnight guest, we nevertheless hold that any expectation of privacy appellant had in his mother’s house was overridden by his mother’s valid consent to the police to enter. See Luna, 268 S.W.3d at 604 (where search of apartment was supported by owner’s valid consent, trial court did not err in denying appellant overnight guest’s motion to suppress evidence obtained as result of warrantless search).

Appellant relies on Georgia v. Randolph to claim that he had the authority to demand that the police leave the property, even after his mother, the owner of the property, consented to their entry and that their failure to do so made the cocaine they recovered from him inadmissible. Randolph, 547 U.S. at 108-09, 126 S.Ct. at 1520. Randolph addressed the question of whether evidence can be lawfully admitted if the evidence is seized in the face of an objection from a person who is physically present for the search and who shares equal authority with the person who authorized the search. Id. at 106, 126 S.Ct. at 1518-19. In appellant’s case, the trial court found that appellant did not live at 1311 Alexander, and thus appellant, unlike the defendant in Randolph, did not have equal control over the property. See Luna, 268 S.W.3d at 604 n. 26 (distinguishing status of defendant in Randolph from status of overnight guest, who does not share equal authority over property with property owner). Because appellant lacked authority to prevent the police from entering the house after his mother, who owned the property and lived there, validly consented to their entry, Randolph does not apply. See id.

We hold that the police did not violate appellant’s Fourth Amendment right to privacy by entering the house at 1311 Alexander.

C. Seizure of the Cocaine

Lastly, appellant contends that the police officers violated his Fourth Amendment rights by searching him and seizing the cocaine. After being admitted to the home and discovering appellant in the bedroom with his children, the officers spent approximately fifteen minutes talking with appellant. They convinced him to leave the children’s bedroom and to go outside and speak with them. After appellant left the bedroom voluntarily and used the bathroom, he changed his mind, refused to go outside, went into the kitchen, and reached behind him towards a butcher block full of knives. Appellant fought off the officers’ attempt to restrain him from reaching the knives, and he resisted being subdued and detained. After subduing and arresting him, the officers conducted a search subsequent to arrest and discovered the cocaine. A search subsequent to arrest is valid. McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.2003) (citing United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973)).

We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

      . See Tex. Health & Safety Code Ann. § 481.112(d) (Vernon 2008).

      . Appellant appeals the trial court’s denial of a motion to suppress, following which appellant entered a guilty plea. Appellant has standing to appeal the admissibility of the evidence because appellant raised this by written motion before accepting the plea agreement and the trial court ruled on appellant’s motion. Tex.R.App. P. 25.2(a)(2)(A); Shankle v. State, 119 S.W.3d 808, 812 n. 10 (Tex.Crim.App.2003).

      . Indeed, appellant’s brief states that appellant's mother "met them at the door and consented to the policeman's entry.”