source: Caselaw Access Project

author: KEM THOMPSON FROST, Justice. KENT C. SULLIVAN, Justice,

license: Public Domain

text:
    William Edward DREYER, Appellant, v. The STATE of Texas, Appellee.
    No. 14-09-00027-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 30, 2010.

      Lydia Clay-Jackson, Conroe, for appellant.
    Michael C. Young, Conroe, for appellee.
    Panel consists of Justices FROST, BOYCE, and SULLIVAN.
   MAJORITY OPINION

KEM THOMPSON FROST, Justice.

Appellant William Edward Dreyer appeals his conviction for theft, claiming that the trial court erred in admitting inadmissible hearsay evidence at the sentencing hearing in violation of his constitutional right to confront witnesses. We affirm.

I. Factual and PROCEDURAL Background

Appellant was charged by indictment with the offense of theft, to which he pleaded “guilty.” Appellant also pleaded “true” to three enhancement paragraphs involving prior convictions. The trial judge found appellant guilty as charged and found the enhancement paragraphs to be true.

At the sentencing hearing, the State offered into evidence a pre-sentence investigation report and then rested. Appellant testified, admitted he has been addicted to drugs, and accepted responsibility for his conduct. He stated that he was seeking treatment and rehabilitation for his addiction. The defense rested after several of appellant’s family members testified.

The State sought to admit “rebuttal” evidence for the purposes of setting up a predicate. Although appellant indicated he had an objection, he acknowledged that he did not have a legal objection. The trial court did not make a ruling.

The State called an assistant district attorney to the stand. The assistant district attorney testified that she was familiar with a particular deputy, Steve Thompson, who worked as a bailiff in the courthouse. The following exchange occurred during this testimony:

[PROSECUTOR]: And back on — I want to refer your attention back to October 14th, 2008. On that particular date do you recall whether or not the deputy came to inform you of—
[APPELLANT’S TRIAL COUNSEL]: Objection, Your Honor. That’s hearsay.
[PROSECUTOR]: I haven’t gone into the contents of the statement. If and when I do we are going to be offering it under 803(1), (2), and (6). We have Sergeant Ward in the hallway to prove up the predicate.
[TRIAL COURT]: I will overrule the objection.
[PROSECUTOR]: Now, back on October 14th, 2008, did the deputy come to you to inform you about a statement, actually an admission by a party opponent, that person being the defendant in this cause, Mr. Dreyer?
[WITNESS]: Yes, he did.
[PROSECUTOR]: Did he, along with informing you of the statement, did he inform counsel that was representing the defendant, Mr. Finch?
[WITNESS]: Yes, he did. We were in the jury room and Deputy Thompson came in there to tell us what had happened.
[PROSECUTOR]: And is it your understanding that Deputy Thompson is here and assigned to this Court to provide security to the Court?
[WITNESS]: Yes.
[PROSECUTOR]: An on that particular date did Mr. Thompson inform you that the defendant had made an admission concerning drug activity and continued use of drug activity?
[WITNESS]: Yes, he did.

The assistant district attorney reviewed an exhibit that had been marked, but not yet admitted into evidence, as State’s Exhibit 2 and confirmed that the exhibit appeared to be the court incident security report that Deputy Thompson filed with the district attorney’s office. The assistant district attorney did not reveal the contents of the report; however, she identified the initials and signature in the report as belonging to Deputy Thompson and his supervisor. Appellant did not cross-examine the assistant district attorney.

Deputy Thompson’s supervisor testified that bailiffs are required to report incidents involving defendants to him, as the bailiffs’ immediate supervisor. According to the supervisor, the incident reports are kept in the regular course of business. The State showed the supervisor Exhibit 2; the supervisor confirmed that the exhibit was a regular record kept by his department as a court incident security report. He identified his initials and signature on the exhibit and confirmed that on October 14, 2008, he was Deputy Thompson’s immediate supervisor. He did not disclose the contents of the report.

The State sought to admit Exhibit 2 into evidence. Appellant lodged objections on hearsay grounds, lack of notice of extraneous-offense evidence, and on grounds that the evidence violated appellant’s rights under the Confrontation Clause. The trial court sustained appellant’s objections and the exhibit was not admitted into evidence. Appellant did not cross-examine the supervisor.

The State recalled appellant to testify, as reflected in the following exchange:

[PROSECUTOR]: Sir, earlier I spoke to your counsel concerning an incident that occurred here in the courtroom approximately two weeks or so ago. He then reached over to explain to you what I had told him concerning what we were going to talk about, a certain statement that you made here in court back on the 14th of October of 2008 wherein a bailiff talked to you about that statement. Do you recall any of what I’m talking to you about?
[WITNESS]: I don’t recall the statement that was made.
[PROSECUTOR]: Okay. So is it fair to say that at no point in time did you ever say that when you got out after your parole, when you got out you were going to still do what you were doing, cooking drugs, selling drugs and and [sic] they can catch me if they can?
[WITNESS]: Ma’am, I made a similar statement, but that is not exactly what I said, no.
[PROSECUTOR]: Okay. Do you want to tell us?
[WITNESS]: Can I explain?
[PROSECUTOR]: Surely.
[WITNESS]: I stated that without counsel, without rehabilitation, without supervision I’m going to end up going back to the same things I’ve always been used to. That’s exactly what I said.

Following appellant’s testimony, the State rested.

The trial judge sentenced appellant to ten years’ confinement. Appellant now appeals his sentence, claiming that the trial court reversibly erred in admitting inadmissible evidence pertaining to appellant’s statement as reflected in the court incident security report.

II. Issues and Analysis

A. Did the trial court err in admitting testimony regarding the court incident security report?

In his first issue, appellant contends that the trial court reversibly erred in overruling his hearsay objection to the assistant district attorney’s testimony regarding the court incident security report. Appellant characterizes the assistant district attorney’s testimony as inadmissible hearsay that delved into the content of the report. Appellant asserts that the assistant district attorney’s testimony, as hearsay, harmed him because it “opened the door” to the “introduction of statements made to undermine his credibility.”

Even if we presume that the assistant district attorney’s testimony amounted to inadmissible hearsay evidence, appellant has failed to preserve this complaint for appellate review because he did not subsequently object when the State elicited substantially similar testimony from the assistant district attorney. See Haley v. State, 173 S.W.3d 510, 516 (Tex.Crim.App.2005). To preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint. Tex.R.App. P. 33.1(a); see Haley, 173 S.W.3d at 516. An objection must be made each time inadmissible evidence is offered unless a party obtains a running objection or requests a hearing outside the presence of the jury. See Haley, 173 S.W.3d at 516-17.

Following the testimony to which appellant objected on hearsay grounds, the assistant district attorney confirmed, without any objection from appellant, that Deputy Thompson told her that he overheard appellant make an admission concerning drug activity and continued use of drug activity. Similarly, appellant also testified without any objection that his statement, as overheard by Thompson, meant that without rehabilitation, he would “end up going back to the same things I’ve always been used to.” Therefore, appellant has waived any error as to his complaint because he did not make a subsequent objection when the same evidence was elicited again by the State and he did not procure a running objection to the testimony or request a hearing outside of the jury’s presence. See Tex.R.App. P. 33.1(a); see also Ethington v. State, 819 S.W.2d 854, 859 (Tex.Crim.App.1991) (involving an appellant that failed to preserve error because, although he objected to the first question posed of a witness as to a certain subject, appellant did not subsequently object to that witness’s testimony on the same subject or obtain a running objection). Likewise, although appellant asserts harm from the inadmissible hearsay, the improper admission of evidence is not reversible error when, as in this case, the same or similar evidence is admitted without objection at another point in the trial. See Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998). We, therefore, overrule appellant’s first issue.

B. Did the trial court err in admitting evidence of the court incident security report in violation of appellant’s rights under the Confrontation Clause?

In his second issue, appellant asserts that the trial court reversibly erred in admitting evidence of Deputy Thompson’s court incident security report in violation of his rights under the Confrontation Clause. According to appellant, he was harmed by evidence pertaining to the report because the State relied on the content of the report and did not show that Deputy Thompson was unavailable to testify nor did appellant have an opportunity to cross-examine Deputy Thompson.

To the extent appellant challenges Deputy Thompson’s court incident security report, Exhibit 2, on confrontation grounds, the report in question was not admitted into evidence for the trial court’s consideration. The record reflects that the trial court sustained appellant’s objections at trial to the admission of Exhibit 2 when appellant asserted various objections, including an objection under the Confrontation Clause, to the admission of the report. The record does not reflect that this exhibit was ever entered into evidence. Appellant’s argument lacks merit.

To the degree that appellant asserts that the assistant district attorney’s testimony pertaining to Exhibit 2 amounts to a violation of his rights under the Confrontation Clause, the record reflects that appellant asserted a hearsay objection to the assistant district attorney’s testimony. Appellant has not shown and our independent review of the record does not reflect that appellant made a timely request, objection, or motion with sufficient specificity to apprise the trial court of his complaint asserting violation of his rights under the Confrontation Clause to the testimony by the assistant district attorney. See Tex. R.App. P. 83.1(a); Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App.2005). An objection based on hearsay does not preserve error on Confrontation Clause grounds. Reyna, 168 S.W.3d at 179. The trial court judge did not have an opportunity to rule on an objection for a violation of the Confrontation Clause during the assistant district attorney’s testimony. See id. Therefore, appellant has failed to preserve his complaint for appellate review. See Tex.R.App. P. 33.1(a); see also Reyna, 168 S.W.3d at 179 (concluding court of appeals erred in reversing an appellant’s conviction on a ground not presented to the trial court). We overrule appellant’s second issue.

Having overruled appellant’s two issues on appeal, we affirm the trial court’s judgment.

SULLIVAN, J., concurring.

KENT C. SULLIVAN, Justice,

concurring.

The Court today reaches the correct result. I write separately only to note my concern about what should have been, but apparently was not, a threshold issue— whether the prosecutor should have testified at all in this case. This issue is neither novel nor unique; instead, courts have over time consistently expressed serious concerns about prosecutors as witnesses. See, e.g., United States v. Bird man, 602 F.2d 547, 551-55 (3d Cir.1979) (echoing disapproval, stated repeatedly by other courts, of the practice of serving as both prosecutor and witness). Generally, when the practice has been allowed elsewhere, it has been only for compelling reasons in extraordinary circumstances. See id. at 553. This case clearly does not fit within that category because the record does not suggest any compelling reason for one of the prosecutors, who had served as an advocate in the case, to testify on a subject about which she had no personal knowledge.

I.

In this case, appellant testified that he sincerely sought treatment and rehabilitation, in lieu of incarceration, for an admitted drug addiction. The State, in opposition to this request, sought to admit evidence of a contradictory statement allegedly uttered by appellant while in the custody and presence of sheriffs deputy Steve Thompson.

The State presumably could have avoided the hearsay and Confrontation Clause issues raised in this appeal simply by calling Deputy Thompson to repeat the remarks he allegedly overheard. That is, the record does not suggest Thompson was unavailable to testify. Instead, the State decided to call two other witnesses who had no personal knowledge about appellant’s alleged statement, including a prosecutor who had served as an advocate for the State throughout the case. The State recognized that calling one of its prosecutors to the stand was “out of the ordinary” but promised its advocate-witness, Barry Rienstra, would only “set[ ] up for [sic] a predicate” and would not “testify to the specifics about the case.”

It never became clear what, if any, evi-dentiary predicate was to be uniquely achieved by using Rienstra as a witness. Instead, despite the absence of personal knowledge, the prosecutor-witness did testify about the specifics of the alleged statement in which, according to Thompson, appellant indicated his intent to continue with illegal drug activity if given probation.

Even if that hearsay testimony could be considered vital to the State’s case for punishment, however, the State failed to prove Rienstra was an appropriate witness — much less the only one — who could offer it. Thus, the record does not justify the decision to allow one of the prosecutors to testify as a witness.

II.

Moreover, there are multiple reasons why prosecutors should not serve in the dual role of advocate and witness. First, the tasks are inherently inconsistent because “the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.” Model Code of Profl Responsibility EC 5-9 (1978), quoted in Birdman, 602 F.2d at 551. Thus, serving in both roles in the same case could confuse the trier of fact as to whether (and when) the prosecutor is acting in the capacity of advocate, as opposed to witness. See Birdman, 602 F.2d at 554; Tex. Disciplinary R. Profl Conduct 3.08 cmt. 4, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9) (“It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.”).

Second, a prosecutor may be unable to participate as a fully objective witness to the extent his interests are aligned with only one of the parties — the State. See Birdman, 602 F.2d at 553. And this is a concern coupled with serious risk. An experienced prosecutor with an interest in the outcome would be both poised and motivated to wreak maximum strategic damage to the opposition, if permitted to testify. This concern is magnified not only by the serious liberty interests at stake, but also the widely-held perception that a prosecutor, not unlike other law-enforcement officials, may have enhanced credibility with the public. Id. at 553-54. Thus, the adverse consequences of a prosecutor’s testimony can be significant.

Third, the prospect of a prosecutor testifying against the accused raises the appearance of impropriety:

[T]he most frequently cited justification for the [advocate-witness] rule reflects a broader concern for public confidence in the process of justice. The chief fear which underlies the ethical rule ... is not that the testifying prosecutor actually will overreach a hapless defendant, but that he will [a]ppear to a skeptical public to have done so.... Particularly where the lawyer in question represents the prosecuting arm of the Government, the ethical rule serves to implement the maxim that “justice must satisfy the appearance of justice.”

Id. at 554 (citations omitted). It also places a prosecutor in the presumably very uncomfortable — and optically questionable — role of advocating her own credibility or that of a colleague.

III.

Perhaps the most troubling aspect of cases like this one, however, is that it can be difficult to gauge the full impact of the sudden transformation of a prosecutor from advocate into witness because some of the effects may be pervasive. . Some are transparent, even in a case with a limited record like this one. Here, for example, the trial court and parties grappled with how to apply Texas Rule of Evidence 614, which requires the exclusion of witnesses from the courtroom “so that they cannot hear the testimony of other witnesses,” to a prosecutor who already sat through— and participated in — the entire trial. See Tex.R. Evid. 614.

Some effects, however, are more difficult to quantify, such as the impact of the prosecutor’s decision to testify on defense strategy. Here, although defense counsel voiced concerns, he did not formally object to Rienstra’s testimony and made no effort to cross-examine her. To what extent, if any, should we attribute counsel’s reticence to a concern that the advocate-witness might later participate in, and even influence, important prosecutorial decisions directly and adversely affecting his client? One can only speculate.

No guesswork is needed, however, to conclude that there was relatively little hesitation by the State in calling — or by the trial court in allowing — Rienstra to testify. The court made no inquiry as to the purpose or scope of the prosecutor’s intended testimony. No one asked about Deputy Thompson’s availability — which could have obviated any need for the prosecutor’s testimony' — or otherwise questioned the wisdom or necessity of calling Rienstra as a witness.

In part, this may be due to the current Texas standard, which requires a defendant to show actual prejudice to obtain reversal of a conviction supported by the prosecutor’s testimony. See House v. State, 947 S.W.2d 251, 253 (Tex.Crim.App.1997). Particularly where the effects of a prosecutor’s testimony may be insidious and unquantifiable, this standard provides minimal prospective guidance to judges and lawyers to set the outer limits of appropriate prosecutor testimony. Further, the standard provides little disincentive for this unfortunate practice.

The scene of one prosecutor calling another as a witness on a material and disputed fact issue is not a pretty sight. At a minimum, it may leave the impression that the State has placed its thumb on the scales of justice. As such, absent a showing that the testimony is necessary and unavailable from another source, unlike here, we simply should not allow this practice.

Accordingly, I respectfully concur.

      . Exhibit 2 is contained in this court's reporter’s record; however, the record does not reflect that it was admitted into evidence at any point during the sentencing hearing and appellant does not show where in the record it was admitted for the trial court's consideration. In Exhibit 2, Deputy Thompson indicated that he heard appellant tell another inmate, "I got four years left and when I get out I am gonna still do what I am doing cooking drugs and selling drugs, and they can catch me if they can.”

      . This appeal was transferred to the Fourteenth Court of Appeals from the Ninth Court of Appeals. In cases transferred by the Supreme Court of Texas from one court of appeals to another, the transferee court must decide the case in accordance with the precedent of the transferor court if the transferee court's decision would have been inconsistent with the precedent of the transferor court. See Tex.R.App. P. 41.3.

      . The Texas Disciplinary Rules of Professional Conduct also generally discourage the use of lawyers as witnesses. See Tex. Disciplinary R. Prof'l Conduct 3.08(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). Those rales also acknowledge the special obligations of prosecutors to ensure not only that justice is served but also that the appearance of justice is maintained. See Tex. Disciplinary R. Prof! Conduct 3.08, 3.09 & cmt. 1 ("A prosecutor has the responsibility to see that justice is done, and not simply to be an advocate.”); see also Model Rules of Prof'l Conduct R. 3.8 cmt. 1 (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”).

      . Counsel for the State implied, at one point, that Thompson may not have been employed by the sheriff's department as of the time of trial, but his status and whereabouts were never made clear. Whatever his job status at the time, however, there was no suggestion that he was unavailable to testify.

      . Presumably, this concern is somewhat diminished in cases, as here, tried to the judge rather than a jury.

      . Defense counsel was forced to concede the point: "I think it’s too late for [the Rule] now. She’s been in here the whole time [and already heard other witnesses testify].”

      . Because this case was tried to the bench rather than a jury, there may have been fewer concerns about the potential for prejudice to the factfinder.

      . We note that both the Texas Supreme Court and Texas Court of Criminal Appeals have struggled in the past to reach a consensus about the proper handling of this advocate-witness issue. See Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416 (Tex.1996) (5-4 decision); Brown v. State, 921 S.W.2d 227 (Tex.Crim.App.1996) (5-4 decision); see also House v. State, 947 S.W.2d 251 (Tex.Crim.App.1997) (6-3 decision).

      .Even then, a prosecutor who must testify should withdraw from further participation in the trial. See Birdman, 602 F.2d at 553 & n. 18.


author: HOLLIS HORTON, Justice.

text:
    Joseph DURBIN, Appellant, v. Sonya MUCHOW, Appellee.
    No. 09-09-00133-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted March 17, 2010.
    Decided April 1, 2010.

      C. Frederick Cludius, Davis Law Firm, Jeff Small, Law Office of Jeff Small, San Antonio, for appellant.
    David A. Oubre, Adams & Heald, P.C., Houston, for appellee.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

This appeal arises from the trial court’s dismissal of Joseph Durbin’s personal injury case. After the trial court dismissed the case, Durbin filed a verified motion to reinstate, which was subsequently overruled by operation of law. Durbin requests that we reverse the trial court’s order dismissing his case.

Background

Durbin’s Motion to Reinstate and his brief argue that the trial court dismissed his case for want of prosecution because his attorney failed to personally appear at a docket call that occurred on December 1, 2008. Durbin’s Motion to Reinstate included an affidavit from Bianca Baeza, a paralegal employed by Durbin’s attorney. Baeza’s affidavit explains that more than one week before the date the docket call was scheduled to occur, she contacted the trial court to determine whether Durbin’s attorney needed to personally attend. According to Baeza, the person who answered the trial court’s phone told her that an appearance by Durbin’s attorney at the docket call was not required. Instead, the person who answered the phone told Bae-za that the trial court would allow someone from the attorney’s office to phone in an announcement on the case.

Baeza’s affidavit explains that on December 1, 2008, the date of the docket call, she called the trial court’s phone number and informed the person who answered that Durbin was not ready for trial. According to Baeza, she understood that the trial court would be informed of Durbin’s docket announcement.

On December 11, 2008, the trial court dismissed Durbin’s case for “want of prosecution.” The trial court’s order contains nothing further to explain the basis of its ruling. Durbin timely filed a motion to reinstate, and he requested that the trial court conduct a hearing on his motion. Durbin’s Motion to Reinstate asserts that he had no notice that his failure to appear could result in a dismissal, and also states that Baeza advised the court of Durbin’s announcement by telephone. Subsequently, and without a hearing, Durbin’s Motion to Reinstate was overruled by operation of law.

On appeal, Durbin argues that because the trial court did not give him notice that it might dismiss his case if his attorney failed to appear for the docket call, the trial court erred in dismissing his case and in failing to reinstate the case on the court’s docket. He further argues that his case should have been reinstated in light of his explanation about why his attorney had failed to personally attend the December 2008 docket call. We assume that appel-lee, Sonya Muchow, is not dissatisfied with Durbin’s statement of the facts, as she did not file a brief. See TexR.App. P. 38.2(a)(B).

Analysis

Texas Rule of Civil Procedure 165a(3) provides that upon the filing of a motion to reinstate, the judge “shall set a hearing on the motion as soon as practicable” and “notify all parties or their attorneys of record of the date, time and place of the hearing.” Tex.R. Civ. P. 165a(3) (emphasis added). The rule is mandatory and it is not within the trial court’s discretion to refuse to conduct an oral hearing on a party’s request to hear the motion to reinstate. Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex.1991) (citing Gulf Coast Inv. Corp. v. Nasa 1 Bus. Ctr., 754 S.W.2d 152, 153 (Tex.1988)). However, Durbin complains not simply of the absence of an after-the-fact hearing, but he also complains that he was never given notice that failure to appear at the docket call would result in dismissal of his case for want of prosecution.

We note that Rule 165a(l) requires a trial court to notify a party of its intention to dismiss, and after giving notice, the Rule requires the trial court to conduct a dismissal hearing. Tex.R. Civ. P. 165a(l). It is uncontested that Durbin had no notice of the trial court’s intent to dismiss his case for want of prosecution. The trial court’s December 2008 docket did not advise the parties that the court might consider dismissing the cases on the docket for want of prosecution. We conclude that Durbin did not receive the notice contemplated by Rule 165a(l).

We further note that Rule 165a(l) also allows a court to dismiss a case for a party’s failure to appear at “any hearing or trial of which the party had notice.” Id. Nevertheless, based upon Baeza’s uncontested affidavit, it is undisputed that Dur-bin appeared at the December docket call by telephone, and he also presented an excuse for his attorney’s failure to personally appear at that same docket call. Thus, based on the undisputed evidence in this record, the trial court could not have dismissed Durbin’s case for his attorney’s failure to appear when the record shows an appearance that complied with the instructions the attorney’s paralegal had received from the trial court’s staff. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 631 (Tex.1999) (explaining that the trial court could not have dismissed the case for want of prosecution under rule 165a(l) where it was undisputed that appellant appeared at the dismissal hearing).

Independent of the Rules of Procedure, a trial court has the inherent power to dismiss “when a plaintiff fails to prosecute his or her case with due diligence.” Villarreal, 994 S.W.2d 628 at 630. Because Durbin’s case had been pending for over twenty-six months, we also address whether the trial court, under the circumstances here, might have exercised its inherent common law power to dismiss Durbin’s case.

Before a trial court can dismiss a case, whether it chooses to dismiss a case based upon its discretionary power granted by the Rules of Procedure or to dismiss based upon its inherent common law powers, it must provide a party with notice and an opportunity to be heard. Id. While some courts have indicated that due process concerns over what suffices for sufficient notice are satisfied by providing a party with the order of dismissal and then subsequently giving the party an opportunity to address the merits of the dismissal at a hearing, no comparable opportunity to be heard occurred here. See Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 5 (Tex.App.-Houston [14th Dist.] 2006, pet. denied) (“Even assuming for the sake of argument that no notice was sent and that we properly may raise the issue sua sponte, a trial court does not abuse its discretion by denying a motion to reinstate if the movant (a) receives notice of the actual order of dismissal in time to file a motion to reinstate, and (b) has an opportunity to be heard on the motion.”). In this case, the record shows that Durbin was neither provided with notice of the trial court’s intention to dismiss, nor did he receive a subsequent hearing, despite his request for one, on his motion to reinstate.

We note that Orange County has not adopted local rules governing the dismissal of cases when a given case has attained a certain age. See generally Texas Rules of Court, Local (West 2009) (reflecting local rules adopted by various Texas counties, but containing none for Orange County). While “the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence!,]” the trial court must still provide a party “with notice and an opportunity to be heard before [it] may dismiss a case for want of prosecution. ...” Villarreal, 994 S.W.2d at 630.

Therefore, even though Durbin’s suit had been on the trial court’s docket for over twenty-six months at the time of the December 2008 docket call, the trial court was required to give the parties adequate notice of its intent to dismiss for want of prosecution. See id.; State v. Rotello, 671 S.W.2d 507, 508 (Tex.1984) (holding that attorney’s knowledge of a local rule in Brazos County governing cases that had been on file for more than two years constituted sufficient notice of trial court’s power to dismiss); Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, 491 (1942) (“Whenever the hearing for such adjudication is had, the plaintiff has the right to be heard to explain, if he can, his delay in prosecuting his suit.”). We conclude that Durbin was entitled to receive prior notice of the trial court’s intention to dismiss before it entered an order of dismissal, or in lieu thereof, the trial court was required, based on Durbin’s request, to hold a hearing on his motion to reinstate.

Because Durbin was deprived of prior notice of the court’s intent to dismiss his case for want of prosecution, and because he was further deprived of a hearing on his motion to reinstate, the trial court’s order of dismissal cannot be affirmed. Therefore, we reverse the trial court’s order dismissing the case and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: Justice LANG-MIERS.

text:
    Tonnie KARLE, Appellant, v. INNOVATIVE DIRECT MEDIA LTD. CO. d/b/a on Magazine, Nancy Modesti, and Paul Riddle, Appellees.
    No. 05-08-01482-CV.
    Court of Appeals of Texas, Dallas.
    April 1, 2010.

      Alexis Katz, James C. Mosser, Mosser PLLC Lawyers, Dallas, TX, for Appellant.
    C. John Scheef III, Scheef & Stone, L.L.P., Dallas, TX, Nancy Modesti, Allen, TX, for Appellees.
    Before Justices BRIDGES, LANG, and LANG-MIERS.
   OPINION

Opinion By

Justice LANG-MIERS.

Tonnie Karle appeals the summary judgment granted in favor of Innovative Direct Media Ltd. Co. d/b/a ON Magazine, Nancy Modesti, and Paul Riddle. We reverse the judgment of the trial court and remand the cause for further proceedings.

Background

Karle and Modesti were friends and together developed a concept to publish a magazine highlighting Collin County. At some point, Karle decided not to publish the magazine, and she and Modesti agreed that Modesti would publish it. Karle lent Modesti $29,000 for startup costs. In exchange, Modesti executed two promissory notes totaling $29,000 in favor of Karle. Karle and Modesti also executed a separate written document containing the terms of their agreement for Modesti to publish the magazine (the Agreement). The Agreement provided that Karle would receive a 20% ownership interest in the legal entity that Modesti would eventually form to publish the magazine as consideration for Karle’s work and expertise in developing the magazine concept. The Agreement also stated that Karle could accelerate the payment due under the promissory notes if Modesti did not provide Karle evidence of Karle’s 20% ownership interest in the company within a specific time period.

Modesti did not make the required payments on the promissory notes or provide Karle evidence of ownership, and Karle accelerated payment under the notes. When Modesti did not pay, Karle sued her. The trial court granted summary judgment in favor of Karle for $29,000 plus interest, costs, and attorney’s fees. On that same day, Karle’s attorney prepared a letter stating:

In accordance with Rule 11 of the Texas Rules of Civil Procedure, this letter will confirm that the parties have agreed to the following:
The order granting summary judgment and monetary recovery includes the implicit finding that Plaintiff does not hold an ownership interest in either On Magazine or Innovative Direct Media. As such, she is neither entitled to corporate profits nor responsible for corporate debts. Defendant and Plaintiff will cooperate to ensure that Plaintiffs name is not present on any corporate documents or government filings.

Karle’s and Modesti’s attorneys signed the letter (the rule 11 agreement), and it was filed in the trial court several days after the court signed the summary judgment in favor of Karle.

About three years later, Karle filed this lawsuit against Modesti, Innovative Direct Media, and Riddle, who, along with Modes-ti, operated and managed the company. Karle sought a declaration that she owns 20% of Innovative Direct Media. She also alleged fraud and conspiracy to defraud against appellees. Appellees asserted affirmative defenses, relying on the rule 11 agreement filed in the prior lawsuit. They filed a joint motion for summary judgment arguing that Karle’s claims were barred by judicial estoppel, collateral estoppel, and res judicata. The trial court granted summary judgment in favor of appellees without stating the basis of the judgment. Karle appeals, raising four issues: (1) she did not authorize her attorney to sign the rule 11 agreement and the rule 11 agreement is not competent summary judgment proof, and her claims are not barred by (2) judicial estoppel, (3) res judicata, or (4) collateral estoppel.

Standard of Review

We review a trial court’s summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm'n, 253 S.W.3d 184, 192 (Tex.2007). A defendant seeking summary judgment on an affirmative defense must conclusively prove each of the elements of the affirmative defense. See Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex.1996) (per curiam); Shaun T. Mian Corp. v. Hewlett-Packard Co., 237 S.W.3d 851, 854-55 (Tex.App.-Dallas 2007, pet. denied). If the movant meets its burden, then the nonmovant must respond and present evidence raising an issue as to the material facts in question. Tex.R. Civ. P. 166a(c); see Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex.1999); Shaun T. Mian Corp., 237 S.W.3d at 855. In our review, we examine “the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.” Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006) (per curiam) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005)). We will affirm a summary judgment if the record establishes that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Shaun T. Mian Corp., 237 S.W.3d at 855.

Discussion

In appellees’ motion for summary judgment, they contended that there were no genuine issues of material fact regarding their three affirmative defenses: judicial estoppel, collateral estoppel, and res judi-cata. We discuss judicial and collateral estoppel together because appellees relied solely on the rule 11 agreement to establish that Karle is estopped to claim ownership of Innovative Direct Media in the present lawsuit.

Judicial and Collateral Estoppel

To prevail on summary judgment on the theory of judicial estoppel, appellees had to conclusively prove that (1) the rule 11 agreement was made in the course of a judicial proceeding; (2) it was contrary to an essential fact embraced in the theory of recovery by Karle; (3) it was deliberate, clear, and unequivocal; (4) giving conclusive effect to the rule 11 agreement would not run contrary to public policy; and (5) it related to a fact upon which a judgment for Karle was based. See OAIC Commercial Assets, L.L.C. v. Stonegate Vill. L.P., 234 S.W.3d 726, 742 (Tex.App.-Dallas 2007, pet. denied). To prevail on summary judgment on the theory of collateral estoppel, appellees had to conclusively prove that (1) Karle’s ownership interest was fully and fairly litigated in the first lawsuit; (2) Karle’s ownership interest was essential to the judgment in the first lawsuit; and (3) the parties were cast as adversaries in the first lawsuit. Saronikos, Inc. v. City of Dallas, 285 S.W.3d 512, 516 (Tex.App.-Dallas 2009, no pet.).

Karle disputes that she gave her attorney authority to sign the rule 11 agreement on her behalf. In her affidavit attached to her summary judgment response, Karle stated that she did not authorize her attorney to sign the rule 11 agreement on her behalf and that he signed it without her “knowledge, permission, or authority.” She also offered the following chain of emails with her attorney to support her contention that she did not authorize him to sign the rule 11 agreement:

Tonnie,
Attached is a signed agreement stating that you are not part of On Magazine or IDM, and that they will take your name off the books.
Jason
Hi Jason,
Of course this is based on the payment received for the promissory notes and the legal fees and the expenses, correct. She doesn’t get me off the ownership unless she pays me back. Let me know where all of this stands when the clerk agrees. Also, I wanted to know how or if I can let our friends/advertisers [sic] we are no longer involved and not responsible for On Magazine as many of the advertisers did so only because we were involved.
Thanks
Tonnie
[Tonnie,]
Right. If she doesn’t pay, then you can still argue for 20% ownership. The agreement is that the order and monetary judgment will take you out of the business.
Wait until the court signs the judgment before you tell people, which should be a day or two. The judge has ruled in our favor on the motion, but hasn’t signed the judgment awarding money and dismissing the counterclaim yet.
[Jason]

Appellees contend that the rule 11 agreement is a deliberate, clear, and unequivocal relinquishment of Karle’s ownership interest in Innovative Direct Media. They argue that Karle’s attorney is presumed to have had authority to sign the rule 11 agreement on her behalf and that these emails do not rebut that presumption. They also contend that these emails contradict Karle’s affidavit because they show that she did have knowledge of the rule 11 agreement.

Generally, a court will indulge in every reasonable presumption to support a compromise agreement made by an attorney. Cleere v. Blaylock, 605 S.W.2d 294, 296-97 (Tex.Civ.App.-Dallas 1980, no writ). However, when the evidence reveals that the attorney did not have his client’s authority, the agreement will not be enforced. Id.

It is undisputed that Karle did not personally sign the rule 11 agreement. And Karle introduced summary judgment evidence stating she did not authorize her attorney to sign the rule 11 agreement on her behalf. Appellees respond by arguing that Karle’s summary judgment evidence is contradictory regarding her knowledge of the rule 11 agreement. But conflicting evidence requires resolution by the fact-finder. See Ebner v. First State Bank of Smithville, 27 S.W.3d 287, 300-01 (Tex.App.-Austin 2000, no pet.).

Appellees also contend that Karle ratified the rule 11 agreement by failing to deny its validity or offering any correspondence in which she denied her attorney’s authority to sign it on her behalf. As movants, however, it was appellees’ burden to show conclusively that Karle ratified the rule 11 agreement or that she authorized her attorney to sign it. Appellees referred only to the words of the agreement itself and did not introduce any summary judgment evidence showing that Karle had full knowledge of all relevant facts, that she acted or performed under the rule 11 agreement, or that she affirmatively acknowledged the rule 11 agreement by her conduct. See id.

Indulging every inference in Karle’s favor and taking her affidavit as true, we conclude that appellees did not conclusively establish that Karle’s attorney had authority to sign the rule 11 agreement on Karle’s behalf. See id. Consequently, ap-pellees did not conclusively establish that they were entitled to summary judgment on the theories of judicial and collateral estoppel. See OAIC, 234 S.W.3d at 742; Saronikos, Inc., 285 S.W.3d at 516.

Appellees argue that even if the rule 11 agreement is not clear, deliberate, and unequivocal, we should construe it against Karle because her attorney drafted it. But we are not being asked to construe the rule 11 agreement. Instead, the issue on appeal is whether appellees conclusively established that they were entitled to summary judgment. We conclude that they did not on these issues because they did not prove conclusively that Karle’s attorney had authority to sign the rule 11 agreement on Karle’s behalf. We resolve appellant’s first, second, and fourth issues in her favor.

Res Judicata

The doctrine of res judicata bars the relitigation of claims that have been finally adjudicated or that arise out of the same transaction and could have been litigated in the prior action. Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 798-99 (Tex.1992); Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992). A cause of action that arises out of the same facts should, if practicable, be litigated in the same lawsuit. Barr, 837 S.W.2d at 630. Factors we consider in determining whether facts constitute a single transaction include “their relatedness in time, space, origin, or motivation, and whether, taken together, they form a convenient unit for trial purposes.” Getty Oil, 845 S.W.2d at 798-99 (internal quotations omitted).

Karle argues that her ownership interest was not in dispute until after the final judgment in the prior lawsuit was rendered and, as a result, it was not ripe at the time she sued Modesti over the promissory notes. Appellees contend that Karle relied on Modesti’s failure to produce evidence of Karle’s ownership interest to prove Modesti’s default on the promissory notes in the prior lawsuit, giving Karle “a clear indication” that “there was a potential for disagreement between the parties concerning any interest owned by Karle.”

We conclude that Karle’s present lawsuit does not arise out of the same transaction as her prior lawsuit against Modesti. The two lawsuits arose under different facts and different contracts. See Solar Soccer Club v. Prince of Peace Lutheran Church of Carrollton, 234 S.W.3d 814, 822 (Tex.App.-Dallas 2007, pet. denied); Tex. Beef Cattle Co. v. Green, 860 S.W.2d 722, 724 (Tex.App.-Amarillo 1993, writ denied). Karle’s present action against Modesti arose out of the Agreement to publish the magazine, whereas the prior lawsuit involved Modesti’s default under two promissory notes for startup costs. See Green, 860 S.W.2d at 724. In addition, the two lawsuits seek different relief. The present lawsuit seeks a declaration against Modes-ti, Innovative Direct Media, and Riddle that the Agreement gave Karle a 20% ownership interest in Innovative Direct Media d/b/a ON Magazine. The prior lawsuit sought a money judgment against Mo-desti in her individual capacity for the amount she owed under the promissory notes. We conclude that appellees did not conclusively establish that both actions arose from the same transaction. We resolve appellant’s third issue in her favor.

Conclusion

We reverse the trial court’s summary judgment and remand for further proceedings.


author: BRIAN QUINN, Chief Justice.

text:
    Donovan H. SAUCEDA, Appellant, v. The STATE of Texas, Appellant.
    No. 07-09-0208-CR.
    Court of Appeals of Texas, Amarillo, Panel D.
    April 5, 2010.

      John Bennett, Amarillo, for appellant.
    Jeffrey S. Ford, Asst. Criminal District Attorney, for State.
    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

Appellant Donovan H. Sauceda was convicted of three counts of aggravated robbery. In challenging those convictions, he contends the trial court erred in 1) requiring him to show his tattoos to the jury, 2) ordering restitution when it was not pronounced as part of the sentence, there was no evidence to support the restitution order, there was no reference to the victims’ names or addresses in the restitution order, and the fees and expenses claimed were not shown to be related to the offense, and 3) assessing payment of attorney’s fees without evidence that appellant has the money to pay them and without evidence of how the fees were determined. We modify in part and, as modified, affirm the judgment.

Issue 1 — Tattoos

In his first issue, appellant complains of the showing of the tattoos on his legs to the jury. He argues that his right against self-incrimination was violated by that demonstration. The issue is overruled.

At the time of his objection, the trial court queried as to whether the objection was based on “Miranda, or self-incrimination questions.” While counsel replied in the affirmative, he went on to explain:

And they’re doing it, in my opinion, in an effort to inflame the jury. They have pictures of these tattoos. I have seen the pictures. And assuming proper authenticity and predicate, I wouldn’t have an objection to those. But to ask my client to parade in front of the ... jury and lift his pants leg to show the tattoos isn’t proper.

The explanation of the objection does not appear to argue a violation of the right against self-incrimination. However, assuming that the objection was preserved, appellant’s complaint still has no merit.

It has been repeatedly held that the display of the defendant’s tattoos to the jury is not a violation of the right against self-incrimination. Garza v. State, 213 S.W.3d 338, 347 (Tex.Crim.App.2007); Canales v. State, 98 S.W.3d 690, 697 (Tex.Crim.App.2003); Garcia v. State, 239 S.W.3d 862, 868 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd), cert. denied, — U.S. -, 129 S.Ct. 505, 172 L.Ed.2d 371 (2008). Here, one of the victims had previously testified that he observed unique tattoos (i.e. a name) on the legs of one of the robbers, and he described those tattoos. Because appellant’s defense was an attempt to show that the victims were mistaken as to his identity, the evidence was relevant to that issue. And, that the tattoo may have been of his name matters little. It is no less an identifying marker than the color of a person’s eyes, the sound of his voice, or the color of his hair. More importantly, those are things that the accused can be compelled to disclose to the jury. Olson v. State, 484 S.W.2d 756, 763 (Tex.Crim.App.1969); Whitlock v. State, 170 Tex.Crim. 153, 338 S.W.2d 721, 723 (1960).

Next, and to the extent that appellant attempts to distinguish the situation before us by characterizing the tattoo as communication, that too is of no consequence. Body art consisting of dragons, skulls, symbols, flowers, or the like are also communicative in nature. They too convey a message of some idea, belief, or expression selected by the person wearing it. But, in each case the message is pre-existing and unlikely to incriminate in the same sense as compelling a confession. And, until the right against self-incrimination is said to insulate a defendant from showing the col- or of his eyes, providing a writing sample, or even displaying tattoos in general, it did not prevent the trial court from requiring appellant to raise a pant leg to show the jury the name stenciled on his leg. Simply put, the trial court did not abuse its discretion. See Klein v. State, 273 S.W.3d 297, 304-05 (Tex.Crim.App.2008) (stating that the trial court’s evidentiary rulings are reviewed for abuse of discretion).

Issues 2-8 — Restitution Order

Appellant next complains of the trial court’s judgment which orders restitution in the amount of $1697.85. First, he notes that no order of restitution was rendered at sentencing.

When the oral pronouncement of sentence and the written judgment differ, the oral pronouncement controls. Ex parte Huskins, 176 S.W.3d 818, 820 (Tex.Crim.App.2005); Aguilar v. State, 279 S.W.3d 350, 354 (Tex.App.-Austin 2007, no pet.). An order of restitution must be included in the oral pronouncement to be valid. Alexander v. State, 301 S.W.3d 361 (Tex.App.-Fort Worth 2009, no pet.); Weir v. State, 252 S.W.3d 85, 88 (Tex.App.-Austin 2008), rev’d in part on other grounds, 278 S.W.3d 364 (Tex.Crim.App.2009); but see Manning v. State, No. 05-06-0422-CR, 2007 WL 2069623 at *1, 2007 Tex.App. Lexis 5733 at *3 (Tex.App.-Dallas July 20, 2007, no pet.) (not designated for publication) (holding that restitution is not part of the sentence and does not have to be orally pronounced). Indeed, restitution has been deemed to be an aspect of punishment by our Court of Criminal Appeals, Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex.Crim.App.2006), and sentencing undoubtedly encompasses the measure of punishment to be levied in a particular case. So, we see no legitimate basis to exclude it from the requirement that sentence be orally pronounced in open court.

Because the trial court omitted it when it orally pronounced sentence, restitution could not be assessed in the written judgment. That being so, the proper remedy is to modify the judgment to delete the order of restitution. Alexander v. State, supra; Weir v. State, supra. And, our disposition of this matter precludes the necessity to address appellant’s other objections with respect to restitution or rule on appellant’s motion to strike from the clerk’s record certain documents detailing loss or damage.

Issues 9 and 10-Attomey’s Fees

Finally, appellant contends that he may not be required to pay attorney’s fees without evidence he is able to pay them and without evidence of how the amount of the court-appointed fee was determined. We agree.

The trial court may order a defendant to pay court-appointed attorney’s fees if it determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the services provided. Tex.Code Crim. Prog. Ann. art. 26.05(g) (Vernon Supp. 2009). The defendant’s financial resources and ability to pay are critical elements in the trial court’s determination. Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App.2010). A review of the record shows that appellant was appointed counsel both for trial and on appeal. A defendant determined to be indigent is presumed to remain indigent for the remainder of the proceedings unless a material change in his finances occurs. Id. at 557; Tex.Code Crim. Proc. Ann. art. 26.04(p) (Vernon Supp. 2009). We find no evidence in the record from which the trial court could have concluded that appellant had the ability to pay his attorney’s fees. Therefore, we sustain appellant’s issue.

Accordingly, we modify the judgment to delete the portion requiring restitution and the payment of attorney’s fees. In all other respects, the judgment is affirmed.

      . The State argues that the appropriate remedy is to remand the matter to the trial court for a hearing with respect to restitution. This might be true if the only problem with the . restitution order was that there was no evidence to support the amount. See Barton v. State, 21 S.W.3d 287, 290 (Tex.Crim.App.2000). However, the requirement of restitution in this instance is a provision of punishment and part of the sentence, and it must therefore be included in the pronouncement of the sentence to be included in the judg-menl. Alexander v. State, 301 S.W.3d 361 (Tex.App.-Fort Worth 2009, no pet.).


author: PER CURIAM.

text:
    P. David ROMEI, Appellant, v. The STATE of Texas, Appellee.
    Nos. 10-09-00062-CR, 10-09-00063-CR.
    Court of Appeals of Texas, Waco.
    April 7, 2010.
    Richard E. Wetzel, Austin, for appellant.
    Bill R. Turner, Brazos County Dist. Atty., Bryan, for appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   ORDER

PER CURIAM.

The reporter’s record in these appeals was originally due over one year ago on March 13, 2009. After substantial effort by this Court, a reporter’s record was filed on October 19, 2009. The Court has now been informed by letter dated February 22, 2010 that appellant requested preparation of a “supplemental” reporter’s record because appellant discovered that the reporter’s record filed on October 19, 2009 was incomplete.

Because the items requested for inclusion in the “supplemental” reporter’s record were actually requested in appellant’s original request, the request would be better characterized as a request to complete the reporter’s record. We will, nevertheless, refer to it as a supplemental record.

To date no supplemental reporter’s record has been filed.

It is the joint responsibility of this Court and the trial court to ensure that the appellate record is timely filed. Tex.R.App. P. 35.3(c). Further, this Court may enter any order necessary to ensure the timely filing of the appellate record. Id. Accordingly, the supplemental reporter’s record is ORDERED to be filed no later than 7 days from the date of this order.

Failure to file the reporter’s record as herein ordered will result in an abatement order for the trial court, the Honorable Steve Smith of the 361st District Court, to determine, working with the official reporter, Felix Thompson, a date certain by which the supplemental reporter’s record will be filed.

Further, all briefing schedules are suspended until further order of the Court.


author: KENT C. SULLIVAN, Justice.

text:
    Dawn A. ALEWINE, et al., Appellants, v. The CITY OF HOUSTON, Appellee.
    No. 14-08-00473-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 8, 2010.

      Larry G. Dunbar, James E. Bradley, for appellants.
    R. Paul Yetter, Collin J. Cox, Dori Kornfeld Goldman, Yetter, Warden & Coleman, LLP, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices SEYMORE and SULLIVAN.
   OPINION

KENT C. SULLIVAN, Justice.

Appellants, a collection of homeowners in a subdivision neighboring Bush Intercontinental Airport, sued appellee, the City of Houston, because the construction of a new runway resulted in increased airplane flights over a corner of their neighborhood. The City successfully moved for summary judgment, arguing the homeowners were not entitled to compensation for inverse condemnation or intentional nuisance because they had not shown their property was “taken” by the government. This appeal ensued.

Under current Texas law, appellants are not entitled to compensation because they have not shown the increase in overflights — though a constant source of frustration — has rendered their homes unusable for residential use. Therefore, we must affirm the judgment.

I.

Background

Appellants, sometimes referred to as “the homeowners,” consist of eighty-three residents who live in forty-six houses in the Woodcreek Subdivision. The neighborhood contains a total of 539 homes, constructed at various times since 1979.

The neighborhood is located near Bush Intercontinental Airport, which opened in 1969. On November 1, 2003, the airport opened a new east-west runway, designated “8L-26R.” The flight path for some aircraft that use this runway extends over the southwest tip of the neighborhood, which lies just west-northwest of the airport, and therefore through the airspace of a handful of homes in the subdivision. Thus, while the neighborhood experienced some overhead air traffic before 2003, the number of airplanes passing over a corner of their subdivision greatly increased following the construction of the new runway.

On October 31, 2005, residents from various parts of the neighborhood filed suit against appellee, the City of Houston (the “City”), alleging intentional nuisance and inverse condemnation. Generally, the plaintiffs claimed the City, by building a new runway leading to increased overflights, “took” their property without compensation, in violation of Article I, Section 17 of the Texas Constitution.

The City denied liability and filed a motion for summary judgment, arguing (1) the homeowners’ complaints do not rise to the level of a constitutional “taking” because their homes remain habitable; (2) no “taking” occurred because the average noise level in the neighborhood does not exceed that approved by the federal government for residential use; and (3) the “community damages rule” bars recovery because all plaintiffs claimed similar injuries. The trial court granted summary judgment without specifying the basis for its ruling.

On appeal, the homeowners contend the trial court erred by granting summary judgment on their claims. We begin with their first issue, in which appellants argue they stated a valid “takings” claim, after considering the legal standard we use to review the trial court’s summary-judgment ruling.

II.

Standard of Review

We review the trial court’s order granting summary judgment under well-established standards. See Seidner v. Citibank (S.D.) N.A., 201 S.W.3d 332, 334 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). That is, a party moving for traditional summary judgment — here, the City — must prove its entitlement to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). At that point, the burden shifts to the non-mov-ants — the homeowners, in this case — to raise a genuine issue of material fact to defeat summary judgment. See Va. Power Energy Mktg., Inc. v. Apache Corp., 297 S.W.3d 397, 402 (Tex.App.-Houston [14th Dist.] 2009, pet. denied). A genuine fact issue exists if reasonable and fair-minded jurors could reach different conclusions after considering the evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007).

On appeal, we review the summary-judgment motion and evidence de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). We consider the evidence in the light most beneficial to the non-movants, indulging reasonable inferences and resolving doubts in their favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.2005); Va. Power, 297 S.W.3d at 402. When, as here, the trial court grants summary judgment without specifying the basis for its ruling, we must affirm if any of the grounds advanced in the motion is meritorious. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). To prevail on appeal, then, the homeowners must show the trial court could not properly grant summary judgment on any of the grounds stated in the motion. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

III.

Analysis

In their first issue, the homeowners contend their summary-judgment evidence, taken as true, demonstrates a governmental “taking” because the increased overflights have interfered with the use and enjoyment of their property. In response, the City urges us to apply a higher legal standard requiring the homeowners to also show their property is no longer usable for residential purposes. Thus, the resolution of this issue requires us to decide upon the appropriate legal test to prove a taking-by-overflight claim.

A. “Takings” Jurisprudence, Generally

A government is vested with certain inherent powers commensurate with its status as a sovereign, including the right of “eminent domain” in which private property is taken — in exchange for compensation' — and converted for public use. See Taub v. Aquila Sw. Pipeline Corp., 93 S.W.3d 451, 456 (Tex.App.-Houston [14th Dist.] 2002, no pet); Villarreal v. Harris County, 226 S.W.3d 537, 544 (Tex.App.-Houston [1st Dist.] 2006, no pet.); see also Byrd Irrigation Co. v. Smythe, 146 S.W. 1064, 1065 (Tex.Civ.App.-San Antonio 1912, no writ) (“The power of eminent domain is an attribute of government, and is inherent in it.”). Some “takings” are more conspicuous than others.

For example, the government may institute a formal “condemnation proceeding” to acquire property for public use if it cannot reach agreement with the owner as to the appropriate amount of compensation. See Tex. Prop.Code Ann. § 21.012 (Vernon 2004 & Supp.2009). That process is governed by statute, and the statutory requirements must be strictly observed. Coastal Indus. Water Auth. v. Celanese Corp. of Am., 592 S.W.2d 597, 599 (Tex.1979); see State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 646-47 (Tex.2001). Here, however, the City did not file condemnation proceedings seeking to acquire the homeowners’ property.

Instead, this case would more appropriately be described as an “inverse condemnation” action, in which an owner claims his property has already been taken — outside of proper condemnation proceedings — without compensation. See Tarrant County Water Control & Improvement Dist. No. 1 v. Haupt, Inc., 854 S.W.2d 909, 912 n. 4 (Tex.1993); City of Houston v. Mack, 312 S.W.3d 855, - (Tex.App.-Houston [1st Dist.] 2009, no pet.). In that situation, an aggrieved property owner may bring an inverse-condemnation action under Article I, Section 17 of the Texas Constitution which, like the United States Constitution, protects against a governmental “taking” of private property without compensation. See Tex. Const, art. I, § 17; Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001).

To recover compensation for inverse condemnation under Article I, Section 17, a claimant must plead and prove (1) an intentional governmental act; (2) resulted in a “taking” of his property; (3) for public use. See Little-Tex, 39 S.W.3d at 598; Park v. City of San Antonio, 230 S.W.3d 860, 867 (Tex.App.-El Paso 2007, pet. denied). Here, the parties’ dispute focuses only on the second prong of this test, that is, the proof necessary to establish a “taking” of property by airplane overflights.

Actually, the scope of their disagreement as to the appropriate legal test is quite narrow. Both cite City of Austin v. Travis County Landfill Co., 73 S.W.3d 234 (Tex.2002) (“TCLC ”) as controlling authority. In addition, the parties agree that, under TCLC, “to establish a taking by aircraft overflights, a landowner must show that the flights directly, immediately, and substantially interfere with the land’s use and enjoyment.” Id. at 240. However, the City contends the homeowners must also show the overflights have rendered their homes uninhabitable — that is, unusable for their intended purpose — to prove a constitutional “taking” of property. Appellants disagree.

Whether particular facts give rise to a “taking” of property is a question of law we review de novo. See id. at 241; Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 937 (Tex.1998). In deciding whether a “taking” has occurred, we may consult federal cases interpreting comparable language in the Fifth Amendment to the United States Constitution. See Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex.2004); Mack, 312 S.W.3d 855, -. We begin, then, with authority from the United States Supreme Court.

B. Taking by Overflight

The seminal case in the area of overflight-takings jurisprudence is United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). There, the United States Supreme Court addressed the question of whether property could be considered “taken,” under the Fifth Amendment, by the frequent and low-altitude passage of military aircraft above the owner’s land. See id. at 258, 66 S.Ct. 1062. The owners had operated a chicken ranch on the property but were forced to give up their business because of the noise generated by heavy military planes flying only sixty-three feet above the barn:

[Aircraft] come close enough at times to appear barely to miss the tops of the trees and at times so close to the tops of the trees as to blow the old leaves off. The noise is startling.... As a result of the noise, respondents had to give up their chicken business. As many as six to ten of their chickens were killed in one day by flying into the walls from fright. The total chickens lost in that manner was about 150. Production also fell off. The result was the destruction of the use of the property as a commercial chicken farm.

Id. at 259, 66 S.Ct. 1062 (emphasis added). In addition, the Court observed that the owners, who also lived on the property, were frequently unable to sleep and had become nervous and frightened. See id.

The Court found those facts sufficient to establish a Fifth Amendment taking but declined to define the outer boundary of proof necessary to show a taking by overflight:

The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. We need not speculate on that phase of the present case.

Id. at 266-67, 66 S.Ct. 1062. Notably, the Court suggested a compensable taking would occur if overflights limited the utility of the land, as by rendering residential property uninhabitable. See id. at 261-62, 66 S.Ct. 1062. However, the Court did not directly indicate whether such a showing was necessary.

The topic of “unusability” was again mentioned, but not expressly described as essential to a “takings” claim, in the subsequent case of Griggs v. County of Allegheny, Pennsylvania, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962). As with the chicken ranch in Causby, the Griggs Court concluded a “taking” had occurred because frequent low-altitude overflights rendered the affected property unusable as a residence. See id. at 87, 89, 82 S.Ct. 531. Specifically, the flights made conversation and sleep impossible, rattled house windows and caused plaster to fall, and impaired the occupants’ health. See id. at 87, 82 S.Ct. 531. In addition, the house was located so near the runways that, in the event of aircraft engine failure, the pilot “would have no course but to plow into [the] house.” Id.

Five years later, this Court cited Griggs in affirming an inverse-condemnation judgment in favor of a property owner whose residence had become uninhabitable because of overflights. See City of Houston v. McFadden, 420 S.W.2d 811, 816 (Tex.Civ.App.-Houston [14th Dist.] 1967, writ ref'd n.r.e.). In that case, airplanes flew as low as eighty feet above the house, leading to broken windows, cracks in the wall, and deafening noise levels of up to 109 decibels. See id. at 813. Because the Federal Housing Administration deemed noise levels of 100 decibels “unacceptable for residential use,” it refused to insure the plaintiffs mortgage. See id. at 814, 816. Thus, it was determined that the property could not be used as a residence, and was instead better suited for industrial use. See id. at 814.

However, McFadden, like Causby and Griggs, does not squarely address the issue presented here. Those courts determined only that proof of uninhabitability can be sufficient to establish a taking of residential property. See Causby, 328 U.S. at 261-62, 66 S.Ct. 1062; Griggs, 369 U.S. at 87, 89, 82 S.Ct. 531; McFadden, 420 S.W.2d at 813-14. They did not, however, expressly describe such evidence as necessary to a valid inverse-condemnation claim.

Nevertheless, the Texas Supreme Court added that evidentiary requirement in 2002, when it decided TCLC. There, the plaintiff owned property, which it intended to operate as a landfill, roughly one-half mile away from the main runway at Austin-Bergstrom International Airport. See TCLC, 73 S.W.3d at 237. In 1997, however, the airport begin accepting civilian air traffic, prompting TCLC to sue the City of Austin for an alleged taking-by-overflight under Article I, Section 17 of the Texas Constitution. See id. The jury found a compensable taking and awarded damages, but the Texas Supreme Court granted the City of Austin’s petition for review “to decide whether TCLC established that the civilian overflights ... constituted a taking under the Texas Constitution.” Id. at 238.

The parties apparently assumed, as they do here, that Texas follows the federal taking-by-overflight standard. See id. at 239. Therefore, the Court analyzed the validity of TCLC’s claim under Causby, without specifically addressing whether the Texas Constitution affords the same level of protection from overflight effects. See id. After reviewing Causby, Griggs, and McFadden, as well as authority from other jurisdictions, the Court recited the applicable legal standard as follows:

[T]o establish a taking by aircraft overflights, a landowner must show that the flights directly, immediately, and substantially interfere with the land’s use and enjoyment. To meet this standard, the landowner must show that the overflight effects directly and immediately impact the land so that the property is no longer usable for its intended purpose.

Id. at 240 (emphases added). Thus, although not explicitly stated in Causby and Griggs, the Court expressly interpreted those cases as requiring the landowner to prove his property unusable for its intended purpose to establish a compensable taking. See id.

The insertion of an “unusability” requirement in TCLC was neither careless nor inadvertent; instead, similar language appears at least eight other times in the Court’s opinion:

• “To establish a taking by aircraft overflights, a landowner must show ... that the property was unusable for its intended purpose.” Id. at 237.
• “[T]o rise to the level of a constitutional taking, the overflight-related effects must directly, immediately, and substantially impact the property’s surface so that it is no longer usable for its intended purpose.” Id. at 240.
• “None of [TCLC’s evidence shows] immediate, direct and substantial overflight effects that rendered TCLC’s property unusable for its intended purpose.” Id. at 241.
• “TCLC does not even allege that overflight effects ... impacted the use and enjoyment of its property as a landfill.” Id. at 242 (emphasis added).
• “[T]o establish a taking claim, TCLC must show that the civilian overflights ... interfered with the property’s use as a landfill.” Id. at 243 (emphasis added).
• “Here, however, TCLC presented no evidence that the addition of civilian overflights caused overflight effects that interfered with the use of TCLC’s property as a landfill.” Id. (emphasis added).
• “[T]he testimony fails to ... establish that those risks interfered with the property’s use as a landfill.” Id. (emphasis added).
• “[B)ecause before and after the alleged taking TCLC was authorized to operate a Type IV landfill — the property’s intended use — there is no evidence that the overflights rendered the property unusable for its intended purpose.” Id. at 244 (emphases added).

Further, the Court’s disposition of the case hinged upon the evidence — or lack thereof — of usability. Ultimately, the Court determined TCLC had not proven its property unusable as a landfill, concluded no “taking” had occurred, and therefore reversed and rendered judgment in the City’s favor:

To establish a taking of private property by aircraft overflights in this case the landowner had to show that the overflight effects directly, immediately, and substantially impacted the land so that the property was unusable for its intended purpose. TCLC presented no such evidence.... [T]he evidence does not establish a taking[.]

Id.

We do not divine from Causby and Griggs any overt requirement that the landowner prove his property unusable for its intended purpose; the Texas Supreme Court, however, does. Whether we agree with TCLC is of no moment because, as an intermediate court of appeals, we are obligated to follow established precedent from the Texas Supreme Court. See Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002); Lundstrom v. United Servs. Auto. Ass’n-CIC, 192 S.W.3d 78, 94 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). In this case, then, we hold that, to demonstrate a compensable taking-by-overflight under current Texas law, the homeowners were required to prove the overflights directly, immediately, and substantially impacted the land so as to render their property unusable for its intended purpose as a residence. See TCLC, 73 S.W.3d at 244.

C. Application to Facts

Applying that stringent standard to the summary-judgment evidence contained in the record, we must conclude the homeowners have not stated a viable “takings” claim. In their brief, appellants do not contend their houses have been rendered uninhabitable. Instead, they fairly summarize their complaints, which are described more fully in over 900 pages of deposition testimony in the record, as follows: “Plaintiffs have testified that conversations were impossible, television reception was disturbed, sleep was interrupted, children and pets were frightened or became nervous or irritable, and it was difficult to entertain company or to conduct telephone conversations.”

None of the homeowners testified they cannot live in their homes because of the overflights. To the contrary, some residents either flatly refused to move or confirmed they can still “lead normal lives” despite the increased noise levels. In addition, the record does not suggest that houses in the neighborhood have been abandoned or lie vacant. Instead, residents seeking to leave the subdivision, for whatever reason, apparently have been able to find ready purchasers for their property since the construction of the new runway in 2003. Moreover, the record contains evidence that roughly half of the houses have increased in value since 2003.

The homeowners uniformly testified the increase in overflights has made their neighborhood a less desirable place to live. Under TCLC, however, that evidence does not rise to the level of a compensable “taking” under Article I, Section 17. See TCLC, 73 S.W.3d at 244; see also Genter v. Blair County Convention & Sports Facilities Auth., 805 A.2d 51, 56 (Pa.Commw.Ct.2002) (“ ‘Merely having a house that is somewhat less desirable to live in does not constitute the type of exception circumstance needed to prove a de facto taking of an entire residential property.’ ”) (citation omitted).

We hold that, under current Texas law, appellants have not presented evidence raising a genuine fact issue as to a “taking” of their property. Therefore, the trial court did not err by granting the City’s motion for summary judgment, and we overrule their first issue on appeal. Having done so, we need not address their remaining challenges to the trial court’s judgment. See Tex. R.App. 47.1; W. Invs., Inc., 162 S.W.3d at 550 (requiring courts to affirm summary judgment if any stated ground is found to be meritorious). Accordingly, we must affirm the judgment.

III.

Conclusion

We are not unsympathetic to the frustration the homeowners have experienced as a result of the increased noise levels in their neighborhood. Several residents testified to such problems as increased irritability and stress caused by a disruption in their normal sleep habits, and embarrassment in trying — often unsuccessfully — to hold outdoor gatherings for friends and family.

However, these complaints, though certainly not insignificant, do not amount to a constitutional “taking” of their property, under current Texas law, absent a showing by individual homeowners that their houses are no longer usable for residential purposes. See TCLC, 73 S.W.3d at 244. Accordingly, we affirm the trial court’s judgment.

      . One of appellants' expert witnesses confirmed the flight path does not intrude "very far into the neighborhood.”

      . See Tex. Prop.Code Ann. §§ 21.001-.024 (Vernon 2004 & Supp.2009), 21.041-.065 (Vernon 2000 & Supp.2009).

      . See U.S. Const amend. V.

      . This same test also applies to the homeowners' claims for intentional nuisance. See City of Dallas v. Jennings, 142 S.W.3d 310, 315-16 (Tex.2004) ("[A] city may be held liable for a nuisance that rises to the level of a constitutional taking.”) (emphasis added) (citing City of Abilene v. Downs, 367 S.W.2d 153, 159 (Tex.1963)).

      . In its motion for summary judgment, the City did not challenge the homeowners’ proof as to the first and third elements of the constitutional-takings test.

      . At least one court has observed that constitutional-takings analysis is not particularly user-friendly. See Md. Port Admin. v. QC Corp., 310 Md. 379, 529 A.2d 829, 833 (1987) (“To date courts have not developed a test which can be comprehensively and consistently applied to determine whether a government has taken property.”). Often, the determination depends heavily upon the unique facts of each case. See Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1212 (Fed.Cir.2005).
      In this case, the City suggests average noise levels could be used as an objective barometer of whether residential property has been rendered uninhabitable by overflights. That approach would seemingly appeal to those seeking a more predictable, quantifiable test in this context. However, the test might be considered underinclusive of some unacceptable living situations to the extent it may not account for temporary "spikes” of deafening noise that could render a house uninhabitable even though the average decibel level falls within an acceptable threshold. In this case, for example, one resident testified, ‘‘[T]he [noise-level] rating ... averages events over a 24-hour period ... when in fact numerous events that are in excess of 90 decibels can occur and really disrupt your life.”

      . In their brief, appellants contend the Court expressly rejected an uninhabitability requirement in Causby. We disagree; the Court held only that an owner need not prove his property has been completely destroyed and unusable for all purposes in order to recover compensation for a taldng. See Causby, 328 U.S. at 262, 66 S.Ct. 1062. Stated differently, under Causby, the government may not avoid an otherwise valid takings claim simply by, for example, arguing residential purpose could be repurposed for industrial use. See id.

      . In Griggs, the Court summarized its previous holding in Causby as follows: "[Causby ] held that the United States by low flights of its military planes over a chicken farm made the property unusable for that purpose and that therefore there had been a 'taking', in the constitutional sense, of an air easement for which compensation must be made." Griggs, 369 U.S. at 88, 82 S.Ct. 531 (emphases added).

      . But see Hillsborough County Aviation Auth. v. Benitez, 200 So.2d 194, 198-99 (Fla.Dist.Ct.App.1967) (finding residential property was "taken” under the Florida Constitution even though overflights did not render houses uninhabitable), cited in TCLC, 73 S.W.3d at 240. In Benitez, however, the plaintiffs also demonstrated, unlike here, that the overflights were actually weakening the structural integrity of their homes, raising a question as to their continued habitability. See id. at 196, 199.

      . We are not aware of any objective test for habitability in this "takings” context. Under the landlord-tenant framework, for example, the Texas Legislature has recognized that premises may be rendered uninhabitable by a "condition [that] materially affects the physical health or safety of an ordinary tenant." Tex. Prop.Code Ann. §§ 92.052(a)(3), 92.056(b)(2) (Vernon 2007 & Supp.2009); Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 755 (Tex.1998) (indicating chapter 92 sets out "specific minimum standards of habitability”). Because appellants do not contend their homes are uninhabitable, we need not define the scope of that term here. See Thompson v. Ricardo, 269 S.W.3d 100, 103 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (holding appellate courts lack authority to render advisory opinions). However, we note an objective standard for proving a residence has been rendered “unusable for its intended purpose," see TCLC, 73 S.W.3d at 244, would add some degree of predictability to a decidedly unclear and fact-bound area of the law.