author: DAVID WELLINGTON CHEW, Chief Justice.

text:
    In re: TOYOTA MOTOR SALES, U.S.A., INC., and Viscount Properties II, L.P., d/b/a Hoy Fox Toyota/Lexus, Relators.
    No. 08-09-00293-CV.
    Court of Appeals of Texas, El Paso.
    Sept. 29, 2010.

      Scott P. Stolley, Thompson & Knight, LLP, Kurt C. Kern, Hartline, Dacus, Bar-ger, Dryer & Kern, LLP, Dallas, TX, Carlos Rincon, Rincon Law Group, P.C., El Paso, TX, for Relators.
    Enrique Moreno, Law Offices of Enrique Moreno, Enrique Chavez, The Chavez Law Firm, El Paso, TX, for Real Parties in Interest.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Toyota Motor Sales, Inc., U.S.A. and Viscount Properties II (“Toyota”) have filed a petition for writ of mandamus to compel the Honorable Yvonne T. Rodriguez, Judge of the Probate Court No. 1 of El Paso County, to withdraw her order granting a new trial in the underlying case and enter a take-nothing judgment in Toyota’s favor.

The underlying lawsuit was filed on behalf of the estate of Richard King by and for his surviving family members (“the Kings”). Mr. King was killed in a rollover accident on August 25, 2004. The Kings sued Toyota U.S.A. and Viscount Properties alleging his 1997 Toyota 4 Runner caused Mr. King’s death because the vehicle contained a defective restraint system which allowed Mr. King to be ejected from the vehicle when it rolled. The case was submitted to the jury in El Paso County Probate Court No. 1 on June 5, 2009. The jury determined that there was no design defect in the 4 Runner’s occupant safety system and issued a verdict in favor of Toyota. The trial court entered judgment on the jury’s verdict on July 13, 2009.

On August 7, 2009, the Kings moved for a new trial in the case. The Kings argued counsel for Toyota had violated the trial court’s limine and evidentiary rulings by referring to a lay opinion provided by a police investigator regarding Mr. King’s seatbelt use at the time of the accident. The Kings’ argued that Toyota’s references to the investigator’s opinion that Mr. King was not wearing a seatbelt at the time of the accident during the presentation of evidence and closing argument necessitate a new trial “in the interest of justice.” The Kings amended their motion on September 9, 2009, alleging that in addition to the grounds outlined in their original motion, a new trial was also necessary in order to explore newly discovered evidence.

The trial court entered an order granting the Kings’ a new trial on September 22, 2009. The order states:

On this day, the Court considered the Plaintiffs Motion for New Trial, Defendant’s Response, Plaintiffs Amended Motion-for New Trial, the law, and the record. After considering same and pursuant to this Court’s authority under Rule 320 of the Texas Rules of Civil Procedure, the Court now hereby grants a new trial in the above-styled cause in the interest of justice because Defendant willfully disregarded, brazenly and intentionally violated the Court’s orders in limine, evidentiary rulings, instructions and orders concerning a crucial evidentiary issue relating to seat belt use by Mr. Richard King, the decedent, during Defendant’s closing argument, it purported to present evidence outside the record, and commented on matters in violation of the Court’s order in li-mine. Specifically, during closing argument, Defendant read from the Deposition of witness Justin Coon concerning his lay opinion, and conclusion that Mr. King was not wearing a seat belt at the time of the commencement of the rollover. The Court had previously excluded these lay opinions and conclusory remarks by witness Coon on the grounds that they were not based on his personal knowledge and were, therefore, conclusory and incompetent to be presented to the jury and because witness Coon did not have the requisite training, education, schooling, or experience to opine whether or not Mr. King had been belted at the start of the rollover. This Court, mindful of its obligations under new Texas Supreme Court authority, In re Columbia Medical Center of Las Colinas Subsidiary, L.P., d/b/a Las Colinas Medical Center, et al., 290 S.W.3d 204 (Tex.2009), has undertaken the review which only this court can take— which is different than that of an appellate court “who have only the record to consider” — and having seen the parties, and witnesses and sensed the affect of the above occurrence on the trial grants the motion for new trial, for the specific grounds set out herein, in the interest of justice. See 52 Tex. Sup. Jour. 1020. [Emphasis in original].
Additionally, this Court pursuant to its inherent authority to issue sanctions, irrespective of and or in additional to its authority under Rule 320, grants a new trial as a sanction to Defendant’s conduct during closing argument because Defense counsel’s reading from the deposition of witness Coon during closing argument, such to inject an inadmissible, factually unsubstantiated conclusion and lay opinion was so prejudicial to the Plaintiffs and inflammatory that an instruction to disregard at such a late stage in the trial could not eliminate its harm. Moreover, the court finds, in this regard, that this sanction of granting a new trial is narrowly tailored to prevent this sort of behavior in the future by Defendant.

Toyota petitions this Court to issue a writ of mandamus compelling the trial court to reverse its order granting the Kings a new trial, and to re-instate its take-nothing judgment. Toyota presents two issues in its petition. In Issue One, Toyota contends the trial court abused its discretion by granting a new trial because the reasons stated in the new trial order are legally and factually insupportable. In Issue Two, Toyota asserts this error is correctable by mandamus review under the Texas Supreme Court’s decision in In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex.2009)(orig.proceeding).

Generally a writ of mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law, in circumstances when a regular appeal is not an adequate remedy. In re Columbia, 290 S.W.3d at 207. In In re Columbia, the Texas Supreme Court held that a trial court abused its discretion by failing to specify the reasons for its decision granting a new trial “in the interest of justice.” See In re Columbia, 290 S.W.3d at 213; In re E.I. du Pont de Nemours & Co., 289 S.W.3d 861, 861-62 (Tex.2009)(orig.proceeding). The Court concluded, “the parties and the public are entitled to an understandable, reasonably specific explanation why their expectations [that a jury verdict will close the trial process] are frustrated by a jury verdict being disregarded, or set aside, the trial process being nullified, and the case having to be retried.” In re Columbia, 290 S.W.3d at 213. The Court conditionally granted mandamus relief, and directed the trial court judge to specify its reasons for granting a new trial. Id. at 215. Because the trial court’s order did not include the reasons for its ruling, the Court expressly declined to consider the realtor’s request for a writ of mandamus directing the trial court to enter judgment on the verdict. Id. at 214.

Following Columbia, an order granting a new trial in Texas which fails to specify the reasons behind it is subject to correction by writ of mandamus. See In re E.I. du Pont de Nemours & Co., 289 S.W.3d at 862. As our quotation of the trial court’s order above demonstrates, there is no question that the trial court in this case specified the reasons for its decision to grant the Kings’ motion, and thereby satisfied the specificity requirements of Columbia. However, Toyota argues the Supreme Court’s analysis in Columbia supports further review of the merits of the grounds specified. Based on its conclusion that none of the specified grounds is sufficient to support the order, Toyota asks this Court to compel the trial court to vacate its order, and re-instate its judgment on the jury verdict. We disagree that Columbia authorizes such a review on mandamus and we deny the petition.

The Columbia decision first reaffirms the trial court’s broad discretion in granting new trials. See In re Columbia, 290 S.W.3d at 212, citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985)(orig.proceeding). In expressing the broad but not “limitless” discretion trial court’s have historically enjoyed in granting motions for new trial, the Court recounted the two instances when a trial court’s new trial order is subject to review by regular appeal: (1) when the court’s order is void; and (2) when the trial court erroneously concluded that the jury’s answer to special issues contained an irreconcilable conflict. In re Columbia, 290 S.W.3d at 209. The Court’s express motivation for the specificity requirement is to support the public perception of fairness in the judiciary through transparency. See In re Columbia, 290 S.W.3d at 214.

Furthermore, the Court reaffirmed the trial court’s role as arbiter of motion’s for new trial under Texas Rule of Civil Procedure 320, and expressly declined to define “good cause” in the context of the rules governing new trial orders except to note that the significance of the right to a jury trial, “counsels against courts setting aside jury verdicts for less than specific, significant, and proper reasons.” In re Colum bia, 290 S.W.3d at 210 n. 3. It is the reference to “proper reasons,” and a “valid basis” that Toyota argues indicates the Supreme Court’s intent for the mandamus review authorized under Columbia also includes review of the merits of the grounds stated in a new trial order. Id. at 212. We are unpersuaded that the language Toyota relies upon supports such an expansion of Columbia. Given the Court’s reaffirmance of a trial court’s broad discretion in these circumstances as discussed above, we do not agree that the passing references to “proper reasons” and “valid” bases indicate the Court’s intent to add a merits review of the grounds stated in an order which otherwise satisfies the specificity requirement. It cannot be said that this order fails to serve the goal of judicial transparency cited in Columbia, and that as such, the order serves to bolster the perception that this jury verdict was not set aside lightly. See In re Columbia, 290 S.W.3d at 211. Because the new trial order in this case satisfied the requirements of Columbia, Toyota has not demonstrated a clear abuse of discretion and we overrule Issue One.

Having overruled Issue One, we decline to address Toyota’s argument that a regular appeal is not an adequate remedy in this instance. See In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex.2004)(orig.proceeding). The mandamus relief requested is denied.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Expunction of M.R.
    No. 08-09-00058-CV.
    Court of Appeals of Texas, El Paso.
    Sept. 29, 2010.

      Janet I. Monteros, Assistant County Attorney, El Paso, TX, for Appellants.
    M.R., Norfolk, VA, pro se.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

El Paso County Sheriffs Department, El Paso County Attorney’s Office, El Paso County Clerk’s Office, et al. (“El Paso County” or “the County”) appeal a grant of expunction for M.R.’s offense of abandonment/endangerment of a child. On appeal, the County argues the trial court erred because the limitations period for the charged offense had not expired, and because M.R. failed to provide any evidence that the indictment was dismissed because presentment had been made due to mistake, false information, or another reason indicating absence of probable cause. We reverse and render.

On May 2, 2007, M.R. was indicted for the felony offense of abandoning or endangering a child younger than fifteen years of age. The indictment alleged that M.R. “intentionally, knowingly, recklessly, or with criminal negligence, by act, [engaged] in conduct that placed ... a child younger than 15 years of age, in imminent danger of bodily injury, by leaving [the child] in a baby carrier behind a vehicle in a parking lot....” The alleged offense occurred on October 29, 2006. On October 25, 2007, the State filed a motion to dismiss this offense because M.R. had completed a parenting class. On September 12, 2008, M.R. filed her petition for expungement for the charged offense. On December 8, 2008, M.R. filed her amended petition for expungement. Appellants filed their answer denying the allegations in M.R.’s petition and demanded strict proof of those allegations. On October 21, 2008, the Texas Department of Public Safety filed its answer in opposition to M.R.’s petition. After a hearing on the case, the trial court entered an order on January 28, 2009 to expunge M.R.’s criminal records.

El Paso County argues the January 28 order constitutes an abuse of discretion, and asks this Court to reverse the trial court’s judgment and render a decision denying M.R.’s petition for expungement. In Issue One, the County challenges the court’s ruling on the basis that the limitations period for the charged offense had not expired. In Issue Two, the County argues the trial court erred in granting M.R.’s petition for expungement because M.R. failed to provide any evidence that “the indictment or information was dismissed or quashed ... because the presentment had been made because of mistake, false information, or other similar, reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void.” Tex.Code CRImProc. Ann. art. 55.01(a)(2)(A)(ii)(Vernon Supp. 2010). The County contends M.R. failed to provide any testimony at the expunction hearing regarding the nature of her indictment, and that the only supporting evidence she offered was the State’s motion to dismiss her offense.

We review a trial court’s order granting an expunction under an abuse-of-discretion standard. See In re Expunction of Jones, 311 S.W.3d 502, 505 (Tex.App.-El Paso 2009, no pet.); Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.App.-Houston [14th Dist.] 2008, no pet.); Bargas v. State, 164 S.W.3d 763, 770 (Tex.App.-Corpus Christi 2005, no pet.); Ex parte Jackson, 132 S.W.3d 713, 715 (Tex.App.-Dallas 2004, no pet.); Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex.App.-Austin 2002, pet. denied); Ex parte Guajardo, 70 S.W.3d 202, 204 (Tex.App.-San Antonio 2001, no pet.). Pursuant to Article 55.01 of the Texas Code of Criminal Procedure, “[a] person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged” if the person meets certain statutory requirements. Tex.Code Crim.Proc.Ann. art. 55.01(a). Those statutory requirements include that:

(A)an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; -or
(ii) the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code, or because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.

Tex.Code Crim.Proc.Ann. art. 55.01(a)(2)(A),(B), & (C).

Each provision of Article 55.01(a)(2) is “mandatory and exclusive, and a person is entitled to expunction only when all of the conditions have been met.” Tex. Dep’t of Pub. Safety v. Wallace, 63 S.W.3d 805, 806 (Tex.App.-Austin 2001, no pet.), citing Harris County Dist. Atty’s Office v. Burns, 825 S.W.2d 198, 202 (Tex.App.-Houston [14th Dist.] 1992, writ denied); In re E.R.W., 281 S.W.3d 572, 573 (Tex.App.-El Paso 2008, pet. denied). Moreover, because an expunction proceeding is civil rather than criminal, the petitioner bears the burden of proving compliance with the statute. In re E.R.W., 281 S.W.3d at 573; Collin County Criminal Dist. Attorney’s Office v. Dobson, 167 S.W.3d 625, 626 (Tex.App.-Dallas 2005, no pet.); Tex. Dep’t of Pub. Safety v. Katopodis, 886 S.W.2d 455, 457 (Tex.App.-Houston [1st Dist.] 1994, no writ). Accordingly, courts have no inherent or equitable power to expunge criminal records. Tex. Dep’t of Pub. Safety v. Woods, 68 S.W.3d 179, 182 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Rather, they must strictly comply with the statutory requirements for ex-punction. In re Expunction of Jones, 311 S.W.3d at 505; State v. Echeverry, 267 S.W.3d 423, 425 (Tex.App.-Corpus Christi 2008, pet. denied); Dobson, 167 S.W.3d at 626;

Here, M.R. sought expunction based on lack of probable cause, apparently invoking subsection (ii), that is, that the indictment or information was dismissed or quashed because the presentment had been made due to mistake, false information, or other similar reason indicating a lack of probable cause. See Tex.Code CRImProcAnn. art. 55.01(a)(2)(A)(ii). At the expunction hearing, M.R.’s counsel merely testified that she believed, at the time she left her daughter in a stroller by a vehicle, “that the vehicle was going to stay there,” that she did not “[abandon] the child with the intent of not returning,” and that the “vehicle was going to remain there protecting her child from any vehicles that may or may not have been backing out.” However, the record does not reflect that M.R. presented any evidence to satisfy the requirement that the presentment of indictment was based on mistake, false information, or other reason indicating lack of probable cause. See Tex. Code Crim.Proc.Ann. art.- 55.01(a)(2)(A)(ii). Therefore, the trial court could not have granted the expunction based on subsection (ii).

Because M.R. is not entitled to an expunction pursuant to subsection (ii), she was required under subsection (i) to show that the statute of limitations had expired before the date of the petition for expunction. It is clear from the record that the original petition for expunction was filed prematurely. See State v. Beam, 226 S.W.3d 392, 395 (Tex.2007). The alleged offense occurred on October 29, 2006; M.R. was required to wait until the five-year statute of limitations expired. See Tex.Code Crim.Proc.Ann. art. 12.01(4)(D)(Vernon Supp.2010). That would have been on or about April 23, 2012, which takes into account the one-hundred and seventy-seven day tolling period between indictment and dismissal. See Tex.Code Crim.Proc.Ann. art. 12.05(b)(Vernon 2005). The limitations period for the underlying offense had not expired either at the time the petition was filed, September 12, 2008, nor had it expired at the time the trial court granted the petition for expunction, January 28, 2009. Consequently, M.R. did not satisfy the requirement of showing that the limitations périod for her offense had expired before she filed a petition for expungement.

Since there is no evidence to support M.R.’s expunction, and because M.R. did not meet her burden in showing how she is entitled to an- expunction pursuant to either Subsection (i) or (ii) of Article 55.01(a)(2)(A) of the Texas Code of Criminal Procedure, the trial court abused its discretion in ordering M.R.’s record expunged. See In re Expunction of Jones, 311 S.W.3d at 505; J.H.J., 274 S.W.3d at 806; Bargas, 164 S.W.3d at 770; Ex parte Jackson, 132 S.W.3d at 715; Heine, 92 S.W.3d at 646; Ex parte Guajardo, 70 S.W.3d at 204. Accordingly, we sustain Issues One and Two.

Having sustained the County’s issues presented for review, we reverse the trial court’s judgment and render judgment denying the petition for expunction.

RIVERA, J. Not Participating.

      . M.R. did not file a brief in response.


author: RICK STRANGE, Justice.

text:
    BANS PROPERTIES, L.L.C., Appellant, v. The HOUSING AUTHORITY OF the CITY OF ODESSA and Odessa Redevelopment Partnership, Ltd., Appellees.
    No. 11-09-00290-CV.
    Court of Appeals of Texas, Eastland.
    Sept. 30, 2010.

      C.H. (Hal) Brockett, Jr., Ryan J. McNeel, Jason B. Hamm, Justin W. Nichols, Brockett & McNeel LLP, Midland, for appellant.
    Darrell W. Corzine, Rush, Kelly, Morgan, Dennis, Corzine & Hansen, P.C., Odessa, for appellees.
    Panel consists of: WRIGHT, C.J., MeCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

This is a declaratory judgment action. The trial court held that a contract between the Housing Authority of the City of Odessa, Odessa Redevelopment Partnership, Ltd., and Bans Properties, L.L.C. was null and void. We affirm.

I.Background Facts

Odessa Housing Authority built and operated a multifamily, low-income, rental housing project in Odessa known as the La Promesa Apartments. It contracted with the United States Department of Housing and Urban Development and began receiving federal housing assistance payments. In 1992, Odessa Housing Authority applied for low-income housing tax credits. The application was successful, and Odessa Redevelopment, a Texas limited partnership, was created to receive the tax credit allocation. Because of the HUD contract and the tax credit, Odessa Housing Authority and Odessa Redevelopment were required to operate the property pursuant to various federal statutes and regulations. If they failed to do so, one possible consequence was having to recapture all or a portion of the tax credits.

In 2007, Odessa Redevelopment and Odessa Housing Authority entered into a contract with Bans Properties to sell the apartments. The contract recited the low-income housing tax credit. Bans Properties agreed to operate the apartments so as to maintain and preserve the tax credit, and its principals agreed to indemnify the sellers if they were forced to recapture any tax credit. All parties agreed to cooperate and to use good faith and commercially reasonable efforts to obtain HUD’s and the Texas Department of Housing and Community Affairs’s approval of the transfer of ownership. The parties agreed further that, if HUD or TDHCA did not approve the transfer, the contract would become null and void.

TDHCA refused to approve the sale because Bans Properties is a for-profit entity and the tax credit had been állocated under a ten percent set aside designated by the federal government for nonprofit entities. Odessa Redevelopment and Odessa Housing Authority advised Bans Properties of this but said that the apartments could be sold to a nonprofit and that they were working on alternative plans. Bans Properties made arrangements to purchase a nonprofit organization, but Odessa Redevelopment and Odessa Housing Authority declared the contract void and filed this declaratory judgment action.

II.Issues

Bans Properties contends that the trial court erred by finding that the contract was void because it raised fact questions on its affirmative defenses of excuse, waiver, and repudiation.

III.Summary Judgment

Odessa Redevelopment and Odessa Housing Authority moved for summary judgment on the enforceability of the contract. They argued that, as a matter of law, the contract was null and void pursuant to its own terms because regulatory approval of the transfer was a condition precedent and because this approval was not obtained. Bans Properties did not dispute the lack of regulatory approval but responded that the contract was not void because regulatory approval was a covenant and not a condition and, alternatively, that summary judgment was inappropriate because of its affirmative defenses of legal excuse, waiver by conduct, and repudiation. The trial court found that the contract was null and void, and it granted the motion for summary judgment.

A. Standard of Review.

The standard of review for traditional summary judgment motions is well settled. Questions of law are reviewed de novo. St. Paul Ins. Co. v. Tex. Dep’t of Transp., 999 S.W.2d 881 (Tex.App.-Austin 1999, pet. denied). To determine if a fact question exists, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex.2007). When a party contends that summary judgment is improper because of an affirmative defense, it must do more than merely plead that defense. Kirby Exploration Co. v. Mitchell Energy Corp., 701 S.W.2d 922, 926 (Tex.App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.). An affirmative defense will prevent the granting of a summary judgment only if the defendant supports each element of the affirmative defense by summary judgment evidence. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 124 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). This requires evidence sufficient to establish at least a fact question on each element. ‘Moore’ Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-37 (Tex.1972).

B. Excuse.

Bans Properties concedes that regulatory approval was a condition precedent. Because conditions precedent are events that must be performed before a right accrues to enforce a contract, Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.1976), the general rule is that Bans Properties’ failure to obtain regulatory approval released Odessa Redevelopment and Odessa Housing Authority from any further contractual obligation. Bans Properties contends, however, that its affirmative defenses preclude application of the general rule.

When one contracting party prevents another from performing a condition precedent, performance is excused. Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). Bans Properties contends that it was excused from obtaining regulatory approval because of an e-mail from Bernadine H. Spears, Executive Director of Odessa Housing Authority. In this e-mail, Spears stated:

As a result of the meeting it has been determined that we cannot sell La-Promesa (as per the TDHCA representative) to a For Profit Entity because the Tax Credits that we received in 1994 were awarded under the Non Profit Set Aside (although I have not had direct contact with you I did relay this information to Alex), but it can be sold to another Non Profit and we have two years left under the TDHCA Compliance requirements. Now, we are in the process of working on alternative plans (B, C) that is going to take some serious thinking through time to determine the best approach so don’t give up so quickly we are all learning and I guarantee you that we will be victorious in the end.

Bans Properties argues that this constitutes an excuse of its obligation to obtain regulatory approval because Spears promised to work on an alternative means to transfer ownership and, in reliance upon her promise, it found an individual willing to sell his 501(c)(3) entity. Bans Properties complains that the subsequent decision to terminate the transaction was inconsistent with this promise and that it was denied the opportunity to obtain regulatory approval.

Spears’s e-mail is no evidence of excuse. There is no question that preserving the tax credit was important to all and, thus, the need for regulatory approval. Bans Properties’ contractual obligation was to obtain approval of the transfer of ownership to itself. To establish excuse, it must show that Odessa Redevelopment and Odessa Housing Authority prevented it from obtaining this approval. Bans Properties’ argument, however, is that it was prevented from obtaining regulatory approval of a transfer to a subsequently acquired 501(e)(3).

This contention raises standing concerns. It is understandable that the principals were focused on consummating the transaction and that, so long as an entity they controlled was the purchaser, the contract’s purpose would be satisfied from their perspective. We have serious doubts that Bans Properties could own a 501(c)(3) organization. Its principals could, perhaps, acquire control of an existing 501(c)(3), but that entity would be a new purchaser and, therefore, selling the apartments to it would require a new contract. In that instance, any breach of contract action would belong to the 501(c)(3) entity and not Bans Properties. See Interstate Contracting Corp. v. City of Dallas, 135 S.W.3d 605, 618 (Tex.2004) (a party to a contract has standing to maintain a suit on the contract).

The issue is not whether some other agreement could have been consummated. The question before the trial court was whether the existing contract, which identified Bans Properties as the purchaser, was null and void. To establish excuse as an affirmative defense to the lack of regulatory approval, Bans Properties was required to produce evidence that Odessa Redevelopment or Odessa Housing Authority did something that prevented it from being approved. Spears’s e-mail does not evidence that either entity prevented Bans Properties from securing regulatory approval or otherwise played any part in TDHCA’s decision. Moreover, the failure to give Bans Properties more time to acquire a 501(c)(3) does not create a fact question on excuse because, even if we assume that it could, we have been provided no authority for the proposition that a 501(c)(3) owned by a for-profit entity was eligible for regulatory approval.

Bans Properties also complains that Odessa Redevelopment and Odessa Housing Authority did not cooperate, and it references instances in which its calls were ignored or it was treated impolitely. It did not, however, offer any evidence that their conduct played any part in TDHCA’s decision, such as not providing documentation or information that Bans Properties needed for its application. Cf. Sargent v. Highlite Broadcasting Co., 466 S.W.2d 866, 867 (Tex.Civ.App.-Austin 1971, no writ) (purchaser was excused from securing regulatory approval of purchase because seller’s president refused to execute the documents necessary to obtain that approval).

Bans Properties also directs our attention to e-mails discussing deadlines and to statements that HUD could waive a deadline or that Odessa Redevelopment and Odessa Housing Authority would obtain any needed extension. This is no evidence of excuse because TDHCA’s decision to not approve the transfer was not based upon any deadline; it was based upon Bans Properties’ status as a for-profit entity. The trial court did not err by finding that Bans Properties failed to raise a fact question on excuse.

C. Waiver by Conduct.

Waiver is the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex.1987). A condition precedent may be waived, and waiver of a condition may be inferred from a party’s conduct. Ames v. Great S. Bank, 672 S.W.2d 447, 449 (Tex.1984).

Bans Properties complains that Odessa Redevelopment’s and Odessa Housing Authority’s conduct resulted in delays and necessitated an extension of the closing date. They may have waived their right to insist upon performance by a particular deadline, but this is no evidence that they waived Bans Properties’ obligation to obtain regulatory approval of the transfer of ownership. Bans Properties next asserts that Odessa Redevelopment and Odessa Housing Authority were charged with knowledge of the law and, therefore, with knowledge that they could not convey the apartments to a for-profit entity. Because they did not inform it of this fact, Bans Properties contends that they have waived the necessity for regulatory approval. Knowledge of the law is equally chargeable to both parties. But if Odessa Redevelopment or Odessa Housing Authority possessed information that should have been shared but was not, that may be relevant to Bans Properties’ cross-action. It is not evidence of waiver. The trial court did not err by finding that Bans Properties failed to raise a fact question on waiver.

D. Repudiation.

As a general rule, performance is excused when a party to a contract prevents the other from performing and, thereby, repudiates the contract. Sage St. Assocs. v. Northdale Constr. Co., 809 S.W.2d 775, 777 (Tex.App.-Houston [14th Dist.] 1991), aff'd in part & rev’d & remanded in part on other grounds, 863 S.W.2d 438 (Tex.1993). To constitute repudiation, a party to a contract must absolutely and unconditionally refuse to perform the contract without just excuse. El Paso Prod. Co. v. Valence Operating Co., 112 S.W.3d 616, 621 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). When one party repudiates a contract, the innocent party may treat the repudiation as a breach or continue to perform under the contract and await the time of the agreed-upon performance. Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 211 (Tex.1999).

Bans Properties argues that Odessa Redevelopment and Odessa Housing Authority have refused to perform their obligations under the agreement and, therefore, that the doctrine of repudiation prevents rendition of summary judgment. However, it cites no evidence that either entity was contractually required to do something that it did not do. Bans Properties assumes that, if it acquired a 501(c)(3) organization, it was entitled to an opportunity to secure regulatory approval of a transfer of ownership to that entity. The contract, however, contains no such provision. The trial court did not err by finding that Bans Properties failed to raise a fact question on repudiation.

IV. Conclusion

Bans Properties did not raise a fact question on each element of any affirmative defense. The trial court, therefore, did not err when it found that, as a matter of law, the contract was null and void for lack of regulatory approval. Bans Properties’ issues are each overruled, and the judgment of the trial court is affirmed.

      . Bans Properties was also required to obtain the approval of the Bank of New York Trust Company, which was serving as trustee under a deed of trust and trust indenture. That approval is not germane to the issues raised by this appeal.

      . The motion was actually a partial motion for summary judgment. Bans Properties has counterclaims that were not addressed by the motion. The trial court severed the declaratory judgment cause of action, and its ruling became a final, appealable order.

      . Bans Properties has included both traditional and no-evidence summary judgment arguments in its brief. Odessa Redevelopment and Odessa Housing Authority argued that the contract was null and void because neither HUD nor TDHCA approved of the transfer. They argued alternatively that Bans Properties could produce no evidence of HUD or TDHCA approval. Because it is undisputed that no regulatory approval was obtained, we will, treat the motion as a traditional summary judgment motion.

      . To qualify for tax exempt status under 501(c)(3), an organization must serve exclusively a public rather than a private interest, and the net earnings of the organization must not inure to a private shareholder or individual. 26 U.S.C. § 501(c)(3). A private shareholder or individual is a person having a personal or private interest in the activities of the organization. 26 C.F.R. § 1.501(a)-l(c). It is difficult to envision how Bans Properties’ acquisition of a 501(c)(3) is consistent with these provisions.

      . We are cognizant that a limited liability company member may have an individual action against a defendant for a claim that the defendant breached a contractual duty owed to them individually and to the possibility of a member bringing a derivative suit on behalf of the LLC, see American Heritage, Inc. v. Nevada Gold & Casino, Inc., 259 S.W.3d 816, 820 (Tex.App.-Houston [1st Dist.] 2008, no pet.), but because Bans Properties' principals are not parties and because we do not hold that Bans Properties lacked standing, we need not address this further.


text:
    WES-TEX TANK RENTAL, INC., Appellant, v. PIONEER NATURAL RESOURCES USA, INC., Appellee.
    No. 11-09-00169-CV.
    Court of Appeals of Texas, Eastland.
    Sept. 30, 2010.

      Randy Lee, Midland, for appellant.
    John A. Jad Davis, Jacob M. Davidson, Davis, Gerald & Cremer, P.C., Midland, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J„ and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

Wes-Tex Tank Rental, Inc. sued Pioneer Natural Resources USA, Inc. alleging that it breached a contract by refusing to honor Wes-Tex’s right of first refusal for frac tank rentals in West Texas. The trial court held that Wes-Tex’s damage claims were barred by a preexisting master service agreement, and it granted Pioneer’s motion for directed verdict. We affirm.

I. Background Facts

Wes-Tex rents frac tanks. On July 5, 2000, Pioneer and Wes-Tex entered into a “Master Service/Sales Agreement” (MSA). The MSA contained general terms that governed the business relationship between the two parties, but it did not require Pioneer to rent any frac tanks or West-Tex to furnish any tanks. The MSA contained a specific provision that prohibited superseding agreements absent a specific waiver process. Pioneer was engaged in capital intensive projects elsewhere, and in an effort to budget its Permian Basin operations, it asked vendors to agree to a three-year price freeze. In response, Wes-Tex sent Pioneer a letter that read:

Wes-Tex Tank Rental, Inc. will guarantee our current rates on Frac Tank Rental on new completions and or work-overs of all wells in the West Texas Sprayberry area for the next 36 months.
If this agreement is accepted, Wes-Tex Tank Rental, Inc. will have first right of refusal on all frac tank work in the Sprayberry area.

Pioneer accepted the proposal and countersigned the letter.

Several months later, Pioneer began complaining to Wes-Tex about the condition of its tanks. Pioneer was unsatisfied with Wes-Tex’s response, and on November 25, 2002, it notified Wes-Tex that their relationship was terminated. Wes-Tex sued Pioneer alleging that it had breached the MSA as amended by the letter agreement. The parties filed cross motions for summary judgment. Pioneer argued that the letter agreement was not enforceable because it was contrary to the MSA and because it did not provide for mutuality of obligation. The trial court ruled that the letter agreement was not a valid contract, and it entered judgment for Pioneer. Wes-Tex appealed and argued that the letter agreement was a valid contract and that it modified the MSA. We agreed with Wes-Tex, found that the letter agreement was a valid contract, and sustained Wes-Tex’s first three issues.

The case was remanded, and it proceeded to trial. Pioneer objected to Wes-Tex’s lost profits evidence, contending that the MSA barred their recovery. Pioneer also objected to any evidence of attorney’s fees because there was no evidence of actual damages. Wes-Tex responded that the MSA was no longer enforceable and that the only contract between the two parties was the letter agreement. In support of this argument, it referenced a statement in our prior opinion describing the letter agreement as a valid contract. Wes-Tex contended that this statement constituted /& holding that the letter agreement did not amend the MSA but replaced it. The trial court disagreed and sustained Pioneer’s objections. Pioneer then moved for a directed verdict, arguing that Wes-Tex had offered no evidence of damages. The trial court granted that motion and entered judgment for Pioneer.

II. Issues and Standard of Review

Wes-Tex challenges the trial court’s judgment with three issues. Wes-Tex argues that the trial court erred by granting the motion for directed verdict because there was an unresolved question of material fact, because the trial court misapplied this court’s prior holding, and because the MSA did not bar Wes-Tex’s claim for breach of the letter agreement.

A directed verdict is proper in two situations. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000). First, a trial court may direct a verdict when a plaintiff fails to present evidence raising a fact issue essential to its right of recovery. Id. Second, a trial court may direct a verdict for the defendant if the plaintiff admits or the evidence conclusively establishes a defense to the plaintiffs cause of action. Id. In reviewing the granting of a directed verdict, we apply the same standard of review as we do when assessing a no-evidence or legal sufficiency challenge. City of Keller v. Wilson, 168 S.W.3d 802, 828 (Tex.2005). We may uphold a directed verdict only when (1) the record discloses a complete absence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Id. at 810.

III. Can Wes-Tex Recover Lost Profits?

Wes-Tex reads our prior opinion too broadly. The only question before this court was whether the letter agreement was enforceable. Because the MSA did not require Pioneer to rent any tanks from Wes-Tex and because the parties did not follow the procedure outlined in paragraph two of the MSA when they entered into the letter agreement, it was necessary for us to determine whether this lack of procedure precluded the imposition of a right of first refusal. It was unnecessary for us to determine what effect the letter agreement had on any other provision of the MSA. Indeed, Wes-Tex did not argue in the first appeal that the letter agreement superseded the MSA but only that it amended it. When we agreed with Wes-Tex and found that the letter agreement was a valid contract, we found that the promises made in that agreement were enforceable. We did not hold that the entire MSA had been replaced.

The MSA is a comprehensive agreement that covers numerous issues, most of which are not implicated by the letter agreement. The MSA did not limit Wes-Tex’s ability to raise its prices or require Pioneer to rent any of their tanks, but when the parties entered into the letter agreement, they altered both privileges. They did not, however, alter any other contractual right or obligation. In fact, Wes-Tex’s trial testimony confirmed that the MSA was otherwise unaffected. The parties’ dispute centered over concerns that Wes-Tex’s tanks were not in compliance with OSHA regulations. Randy Brookings, Wes-Tex’s corporate representative, agreed that, under the MSA, it was his obligation to supply OSHA compliant equipment. Brookings did not contend that, because of the letter agreement, he was no longer bound by this requirement but, instead, testified that the letter agreement was an additional contract above and beyond the MSA and that, after signing the letter agreement, the parties continued doing things the way that they always had.

A modification to a contract creates a new contract. Boudreaux Civic Ass’n v. Cox, 882 S.W.2d 543, 547-48 (Tex.App.-Houston [1st Dist.] 1994, no writ). The new contract includes the new, modified provisions and the unchanged old provisions. Greenbelt Elec. Coop., Inc. v. Johnson, 608 S.W.2d 320, 324-25 (Tex.Civ.App.-Amarillo 1980, no writ); see also BACM 2001-1 San Felipe Rd. Ltd. P’ship v. Trafalgar Holdings I, Ltd., 218 S.W.3d 137, 146 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (a modification alters only those terms of the original agreement to which it refers, leaving intact those unmentioned portions of the original agreement that are not inconsistent with the modification). Wes-Tex contends that whether the letter agreement was a modification of the MSA was a fact question. However, the letter agreement is unambiguous, and its language supports no construction other than a limitation of Wes-Tex’s right to raise prices and the imposition of a right of first refusal upon Pioneer. Moreover, Wes-Tex points to no trial testimony creating a fact question on the intention of the parties. Consequently, the trial court did not err when it found that the letter agreement modified but did not supersede the MSA. Because the MSA prohibits the recovery of lost profits, the trial court did not err when it excluded Wes-Tex’s lost profits evidence.

The trial court asked counsel what damage issue would be submitted to the jury. Wes-Tex responded that it would tender a lost profits issue. In fact, no other actual damage issue was included in Wes-Tex’s proposed charge. Wes-Tex does not contend that it offered evidence of any other form of damage but argues that there must be a remedy for Pioneer’s breach of contract and that, if lost profits are not recoverable, then it has no remedy. If we assume that Pioneer breached the letter agreement, then Wes-Tex could not obtain the full benefit of that agreement without recovering its lost profits, but there are other forms of contractual damages. Thus, it is not accurate to say that Wes-Tex has no remedy. If Wes-Tex is precluded from recovering lost profits, then it may be prevented from recovering the full extent of its damages. However, it is significant to note that the damage limitation provision was reciprocal. If Wes-Tex’s equipment or personnel damaged a Pioneer well, Wes-Tex was shielded from potentially significant exposure by this same provision. Thus, while neither party was guaranteed full recovery of any contractual damages, both parties faced less exposure than they would have otherwise.

The MSA barred any claim for lost profits. Because Wes-Tex offered no other evidence of actual damages and because in the absence of actual damage Wes-Tex was not entitled to attorney’s fees, the trial court did not err when it granted Pioneer’s motion for directed verdict.

IV. Conclusion

Wes-Tex’s issues are each overruled. The judgment of the trial court is affirmed.

      . Wes-Tex contended that the letter agreement preempted the MSA to the extent of any conflicting provisions and that, if the MSA was a contract, then "the Letter Agreement modified it."

      . Specifically, Pioneer argued that the letter agreement was unenforceable because of the following MSA provision:
      This Agreement shall control and govern as to all goods and services provided by Contractor for Company from and after its effective date. Neither verbal agreements or representations, nor written work orders, delivery tickets or any other written instruments used by Contractor or Company, shall become a part of any contract between Company and Contractor for any purpose other than to describe the goods and services to be performed by Contractor for Company and to designate the time at which said goods and services are to be delivered or performed. All offers and acceptances by and between Contractor and Company while this Agreement is in effect are expressly limited to and conditioned upon the parties’ agreement to the terms of this Agreement. Should the parties desire to waive this provision, and agree that terms and provisions different from, or in addition to, those set out in this Agreement should be applicable to specified goods or services to be provided by Contractor, such waiver and agreement shall only be enforceable if contained in, or reflected by, a separate written instrument, signed by each of the parties, expressly referencing this Agreement and acknowledging and confirming the intention of the parties that same supersede and take priority over the terms and provisions of this Agreement.

      . See Wes-Tex Tank Rental, Inc. v. Pioneer Natural Resources USA, Inc., No. 11—05—00396-CV, 2007 WL 1026431 (Tex.App.-East-land Apr. 5, 2007, no pet.) (mem. op.). Wes-Tex’s first three issues were: (1) Is the letter agreement a contract? (2) Does Texas law allow Wes-Tex and Pioneer to modify Pioneer's Master Service/Sales Agreement by the letter agreement? (3) Did the letter agreement constitute a modification of the Master Service/Sales Agreement consistent with the terms of Article 2A.208?

      . Damages for breach of contract protect three interests: a restitution interest, a reliance interest, and an expectation interest. O'Farrill Avila v. Gonzalez, 974 S.W.2d 237, 247 (Tex.App.-San Antonio 1998, pet. denied). Wes-Tex’s lost profits claim falls into the third category because it seeks to achieve the economic position Wes-Tex would have enjoyed but for the breach of contract. See Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882, 888-89 (Tex.App.-Dallas 2004, pet. denied) (expectation damages are benefit of the bargain damages that restore the non-breaching party to the same position it would have been in had the contract not been breached). Reliance damages restore any expenditures the non-breaching party made in reliance on the contract. Mistletoe Express Serv. of Okla. City, Okla. v. Locke, 762 S.W.2d 637, 638-39 (Tex.App.-Texarkana 1988, no writ). Restitution damages restore property or money taken from the non-breaching party and restore it to the position it would have been in had no contract been made. City of Harker Heights, Tex. v. Sun Meadows Land, Ltd., 830 S.W.2d 313, 317 (Tex.App.-Austin 1992, no writ). Nominal damages may also be awarded for a breach of contract. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 664-65 (Tex.2009). In that instance, the prevailing party may also be entitled to attorney’s fees under Tex. Civ. Prac. & Rem.Code Ann. § 38.001 (Vernon 2008). See MBM Fin., 292 S.W.3d at 666 (noting the possibility of an attorney’s fee award upon proof of nominal damage but not reaching the question because the plaintiff could recover neither actual nor nominal damages).

      . See MBM Fin., 292 S.W.3d at 666 (to recover attorney's fees under Section 38.001, a party must prevail on a breach of contract claim and recover damages).


author: DAVID WELLINGTON CHEW, Chief Justice. GUADALUPE RIVERA, Justice,

text:
    The STATE of Texas, Appellant, v. Oscar RUELAS, Appellee.
    No. 08-09-00091-CR.
    Court of Appeals of Texas, El Paso.
    Oct. 6, 2010.
    Discretionary Review Refused March 2, 2011.

      Jaime E. Esparza, District Attorney, El Paso, TX, for Appellant.
    Daniel Robledo, El Paso, TX, for Appel-lee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

The State of Texas appeals the trial court’s grant of Appellee’s motion to suppress. The State argues the law enforcement officer had sufficient reasonable suspicion to stop and detain Appellee based on evidence established at the suppression hearing.

El Paso Police Officer Jaime Esparza testified that he was patrolling along Pais-ano Street in the early morning hours of May 2, 2008, when he saw a red vehicle turn left from Santa Fe Street onto the westbound lane of Paisano. The officer stopped the vehicle for failure to signal intent of a lane change and then changing lanes two times. Officer Esparza identified Appellee as the driver of the red car. The officer videoed the stop, but the traffic violations did not appear on the video because he activated it only when he turned on his emergency lights.

The officer testified that as he approached the car, he detected an odor of alcohol coming from within Appellee’s vehicle. He also observed that Appellee had “glassy blood shot eyes and a dazed look on his face,” as well as slurred mumbled speech. Appellee told Officer Esparza he had three or four drinks. Officer Esparza then asked Appellee to exit the vehicle, at which point he detected a strong alcoholic odor coming from Appellee’s breath and person. After conducting the field sobriety test on Appellee, Officer Esparza observed “6 of 6 clues on the walk and turn test, 5 of 8 on the walk and turn test, and 2 of 4 on the one leg stand test.” He also observed Appellee swaying while standing during the HGN test and later vomiting a large amount of liquid. After the incident, Appellee was charged by information with driving while intoxicated.

In December 2008, Appellee filed a motion to suppress on the basis that Officer Esparza arrested and detained him without a warrant, and that the fruits of the arrest should be suppressed. In March 2009, the trial court held a hearing on Appellee’s motion to suppress. After the hearing, the court granted Appellee’s motion. The court then entered findings of fact and conclusions of law. The court’s findings of fact state in part: (1) Officer Esparza observed Appellee’s vehicle turn left onto Paisano in the early morning of May 2, 2008; (2) when Appellee turned left onto Paisano, he properly used his left turn signal; (3) Officer Esparza testified he observed two traffic violations that justified the stop; Appellee first entered the left lane on Paisano and then moved into the right lane without signaling, then Ap-pellee moved back into the left lane without signaling intent to change lanes again; (4) in contrast, Appellee testified he simply turned into the right lane and never changed lanes again. The trial court determined Appellee’s testimony to be credible based on Appellee’s demeanor and his “candor in admitting that he drove through the center [left] lane in order to enter the right lane.” Although the State argued that Appellee violated the traffic laws by turning directly into the right lane, the court determined that the police officer failed to testify to this particular violation. Finally, the court concluded that Appellee denied making any improper lane changes, and the court resolved this credibility dispute in favor of Appellee.

In its sole issue, the State argues the trial court erred by granting Appellee’s motion to suppress. The State contends the trial court abused its discretion in granting Appellee’s motion to suppress because Officer Esparza had sufficient reasonable suspicion to believe Appellee had committed a traffic violation in his presence, providing him a basis to initiate the traffic stop.

We review a ruling on a motion to suppress using a bifurcated standard. See Guzman v. State, 955 S.W.2d 85, 87-91 (Tex.Crim.App.1997); Newbrough v. State, 225 S.W.3d 863, 866 (Tex.App.-El Paso 2007, no pet.). While we review de novo mixed questions of law and fact that do not depend on credibility or demeanor of witnesses, we review purely factual questions that depend on credibility or demeanor of witnesses for an abuse of discretion. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); Guzman, 955 S.W.2d at 89. We must afford almost total deference to the trial court’s determination of issues of historical fact and its application of . the law to fact issues that turn on determinations of witnesses’ credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007). The trial judge is the sole trier of facts and judge of witnesses’ credibility, as well as the weight attributed to their testimony, at a suppression hearing. State v. Hopper, 842 S.W.2d 817, 819 (Tex.App.-El Paso 1992, no pet.). If the trial court has made fact findings, we do not engage in our own factual review but decide only whether the trial judge’s fact findings are supported by the record. Id. When reviewing the trial court’s ruling on a motion to suppress, we must view the evidence in the light most favorable to the court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007).

The Fourth Amendment protects against unreasonable searches and seizures. See U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672. A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Id. Once the defendant has made this showing, the State has the burden of proof to establish that the law enforcement officer conducted the search or seizure pursuant to a warrant or that he acted reasonably. Id. at 672-73.

A law enforcement officer may lawfully stop a motorist when the officer has probable cause to believe that the motorist has committed a traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App.2000). Under circumstances short of probable cause, an officer may conduct a temporary investigative detention as an exception to the general warrant requirement. Hopper, 842 S.W.2d at 820. To determine the reasonableness of an investigative detention, we apply the Terry test: (1) whether the officer’s action was justified at its inception; and (2) whether it was reasonably related in scope to the circumstances that justified the initial interference. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.1997). An officer may conduct an investigative detention following a traffic stop for as long as it is reasonably necessary to effectuate the purpose of the stop. Haas v. State, 172 S.W.3d 42, 52 (Tex.App.-Waco 2005, pet. ref'd). However, the officer must support the stop with articulable facts, which should amount to more than a mere hunch or suspicion. Hopper, 842 S.W.2d at 820. The articula-ble facts, when combined together with the officer’s personal experience and knowledge and any logical influences, must constitute sufficient reasonable suspicion that criminal activity is afoot. Hopper, 842 S.W.2d at 820. If an officer does not satisfy this standard, his investigative detention is improper. See U.S. Const. amend. IV; Alonzo v. State, 251 S.W.3d 203, 207 (Tex.App.-Austin 2008, pet. ref'd).

The State first argues the record does not support the trial court’s finding that Appellee denied making any improper lane changes on the basis that Appellee admitted to an improper lane change by driving through the left lane and ending up in the right lane. Section 545.101(c) of the Texas Transportation Code provides: “On a street or roadway designated for two-way traffic, the operator turning left shall, to the extent practicable, turn in the portion of the intersection to the left of the center of the intersection.” Tex.Transp. Code Ann. § 545.101(c) (Vernon 1999). Section 545.101(d) of the Code provides: “To turn left, an operator who is approaching an intersection having a roadway designated for one-way traffic and for which signs are posted from a roadway designated for one-way traffic and for which signs are posted shall make the turn as closely as practicable to the left-hand curb or edge of the roadway.”

At the hearing, Officer Esparza testified that Appellee first turned into the left lane and moved into the far right lane without signaling. He testified that Appellee then went from the right lane to the left lane, again without signaling. Officer Esparza testified that both of these lane changes without signaling violated the traffic code.

After Officer Esparza testified, Appellee testified that he made a left turn from Santa Fe onto Paisano, and he remembered putting on his left turn signal when he turned onto Paisano. Appellee initially stated that he went into the right lane with his left turn signal on instead of staying in the left lane. When he was cross-examined, Appellee stated that he passed through the left lane as he turned left and then “ended up in the right lane.” He testified he used his left turn signal, but not his right signal, and that he used his turn signals a hundred percent of the time.

Officer Esparza then testified that if a driver turns left, he is required to turn into the first or left lane. He testified if that same driver moved into the right lane without signaling, that constitutes a traffic violation. Further, if a driver turned left into the right lane or the outside lane instead of the inside lane, that would also constitute a traffic violation.

The trial court’s findings of fact state that Appellee’s testimony differentiated from Officer Esparza’s because Appellee “testified that he simply turned into the curb [right] lane on Paisano and never again changed lanes.” The court expressly determined Appellee’s testimony was credible based in part on his demeanor and candor in admitting that he drove through the left lane to enter the right lane. The court concluded by stating that Officer Es-parza testified to two improper lane changes while Appellee denied making any improper lane changes, and the court resolved this credibility dispute in favor of Appellee.

Contrary to the State’s contention, the record reflects that Appellee did not admit to an improper lane change when he testified about driving through the left lane and ending up in the right lane. Instead, it was Officer Esparza who testified that such conduct was improper under the traffic laws. As such, the record supports the trial court’s finding that Appellee denied making any improper lane changes. See Hopper, 842 S.W.2d at 819. Although Officer Esparza and Appellee’s testimonies differed regarding what occurred on May 2, 2008, the trial judge is the sole judge of witnesses’ credibility and the weight attributed to their testimony at a suppression hearing, and we must afford total deference to the court’s determination of issues of historical fact. See Hopper, 842 S.W.2d at 819; Amador, 221 S.W.3d at 673. We defer to the trial court’s resolution of the credibility dispute in favoring Appellee’s testimony that he turned into the right lane on Paisano and never changed lanes again, as well as his denial of making any improper lane changes. Accordingly, the first part of the State’s argument fails.

In the second part of the State’s argument, it contends that Appellee testified to making an improper left turn onto Paisano by directly entering into the right lane after making his left turn. The State argues that this particular act violates the traffic code, but the trial court disregarded Appellee’s admission by concluding that the evidence should be suppressed because that was not the violation Officer Esparza testified to. The State argues the fact that Officer Esparza did not testify specifically that Appellee entered into the right lane immediately after turning left is irrelevant because our court recognized previously that “an officer’s stated reason for the stop is not controlling if there is an objectively reasonable basis for the stop as shown by the evidence.”

A law enforcement officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks evidence rising to the level of “probable cause.” See Terry, 392 U.S. at 20, 88 S.Ct. at 1879. Reasonable suspicion is an objective standard that disregards any subjective intent of the officer making the detention and looks solely to whether the detention has an objective basis. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005). We look at only those facts known to the officer at the inception of the stop. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963); State v. Griffey, 241 S.W.3d 700, 704 (Tex.App.Austin 2007, pet. ref'd). An officer’s stated reason for the stop is not controlling if there is an objectively reasonable basis for the stop as shown by the evidence. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001). Although the State need not establish with absolute certainty that a crime has occurred to show reasonable suspicion, it is required to elicit testimony of sufficient facts to create a reasonable suspicion that Appellee violated the traffic laws. See id.

The preference for objective standards, however, does not apply to the facts on which officers act. See Swaffar v. State, 258 S.W.3d 254, 258 (Tex.App.-Fort Worth 2008, pet. ref'd). Generally, law enforcement action can only be supported by facts the officer was actually aware of at the time of that action. See id. For example, in Swaffar, the court of appeals assumed that the defendant’s stop could not be upheld for failing to stop at a stop sign where the officer did not learn of the facts suggesting the defendant did not stop at the stop sign until after the officer had made the stop. See id. at 257-58.

Similar to Swaffar, in the instant case, it was not until the suppression hearing when the State cross-examined Appellee that the State and Officer Esparza learned of the facts suggesting Appellee turned directly into the right lane after making a left turn and only used his left signal. Subsequent to this testimony by Appellee, Officer Esparza testified that such conduct violates the traffic code. Because law enforcement action can only be supported by facts an officer was actually aware of at the time of that action, and Officer Espar-za did not testify to Appellee’s act of turning directly into the right lane after turning left onto Paisano, Officer Esparza lacked reasonable suspicion to support the stop of Appellee. See Swaffar, 258 S.W.3d at 258. Accordingly, the second part of the State’s argument fails, and we overrule Issue One.

We affirm the judgment of the trial court.

GUADALUPE RIVERA, Justice,

concurring.

I concur. I write separately, however, to express my disagreement with the majority’s analysis of the State’s second argument.

I do not take issue with the trial court’s ability to choose to believe Appellee’s testimony over that of the officer. Indeed, the law is well-settled that the trial court may choose to believe any or all of the witness testimony presented at a suppression hearing in arriving at the historical facts that form the basis for the alleged stop, search, and seizure. See Amador v. State, 275 S.W.3d 872, 878 (Tex.Crim.App.2009); Garza v. State, 213 S.W.3d 338, 346 (Tex.Crim.App.2007); State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). However, it is equally well-settled that the application of those facts to the law is reviewed de novo. See State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008); Kothe v. State, 152 S.W.3d 54, 62-3 (Tex.Crim.App.2004). It is here that the majority’s analysis runs afoul.

The trial court concluded that even if Appellee’s testimony demonstrated that he committed a traffic offense, that offense was not testified to by the officer as the reason for stopping Appellee and therefore, it cannot support the basis of the stop. The majority appears to agree with the trial court’s statement, citing Swaffar v. State, 258 S.W.3d 254, 258 (Tex.App.-Fort Worth 2008, pet. ref'd). However, whether the officer testifies to the specific reason that supports the stop is of no consequence. See Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 594, 160 L.Ed.2d 537 (2004)(noting that “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action,” quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)); Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992)(“It makes little sense to maintain the pretext arrest doctrine solely to deter the subjectively bad intentions of law enforcement personnel when these intentions do not ultimately manifest themselves in any objectively ascertainable Fourth Amendment violations. Thus, as long as the facts and circumstances show a valid and legal detention, it serves no actual Fourth Amendment function to attempt to unearth the subjective reasons for such detention.”). Indeed, there is a plethora of case law acknowledging that the subjective intent of the officer for stopping an individual is irrelevant. Devenpeck, 543 U.S. at 153, 125 S.Ct. at 593; Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005); Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001); State v. Patterson, 291 S.W.3d 121, 123 (Tex.App.-Amarillo 2009, no pet.); Tanner v. State, 228 S.W.3d 852, 855 (Tex.App.-Austin 2007, no pet.); State v. Clark, 315 S.W.3d 561, 564 (Tex.App.-Eastland 2010, no pet.). Rather, it is an objective standard based on the totality of the circumstances as those historical facts — accepted by the fact finder — exist at the inception of the stop. Doyle v. State, 265 S.W.3d 28, 31 (Tex.App.-Houston [1st Dist.] 2008, pet. ref'd); State v. Griffey, 241 S.W.3d 700, 704 (Tex.App.-Austin 2007, pet. ref'd); Thomas v. State, No. 08-05-00247-CR, 2007 WL 1404425, *2 (Tex.App.-El Paso May 10, 2007, pet. ref'd)(op., not designated for publication). And we employ a de novo review in determining whether those facts objectively show that the individual is, has been, or soon will be committing a violation such that the stop was lawful. Castro v. State, 227 S.W.3d 737, 741 (Tex.Crim.App.2007); Ford, 158 S.W.3d at 492-93; Garcia, 43 S.W.3d at 530.

Here, the trial court was certainly free to disregard the officer’s testimony on all accounts for the bases supporting the stop. Garza, 213 S.W.3d at 346; Ross, 32 S.W.3d at 855. However, the trial court, at the same time, chose to believe Appellee. Again, this was within the trial court’s prerogative. Garza, 213 S.W.3d at 346; Ross, 32 S.W.3d at 855. Therefore, if the trial court chooses to accept evidence that supports a violation of the traffic code, even when that evidence is given by the defense rather than articulated by the State’s witness, that evidence, when viewed from an objective standard, supports a stop at the time the stop is initiated. See Boyle v. State, 2002 WL 1340322 at *3 (Tex.App.-Houston [1st Dist.] June 20, 2002) (finding stop justified based on defendant’s testimony which admitted to a traffic violation not testified to by officer as the reason for the stop). The trial court, in my opinion, has no discretion to throw out the seized evidence simply because the officer did not testify that he stopped the individual on those same grounds. To hold otherwise would allow a defendant to escape liability for a criminal offense that he confessed to simply because, as in this case, the trial court sought to reward the defendant’s candor and punish the officer for failing to articulate that basis in his testimony. But rewarding a defendant’s candor is a punishment issue; it is not a tool that can be employed to absolve a defendant from liability for the charged criminal offense when the facts supporting the criminal activity are not only before the court, but believed by it, as well.

The test, as noted above, is whether the totality of the accepted evidence, viewed from an objective standpoint, supports the stop. Ford, 158 S.W.3d at 492. Therefore, the question presented is whether Appellee’s testimony, as believed by the trial court, supported a traffic offense. It does not. The State argues that Appellee admitted' to committing a traffic violation by turning left into the curb lane rather than the left lane. However, the State cites no statute, rule, or case law proscribing such conduct, and I have been unable to find one. Rather, the statute at issue simply provides that a left-turning motorist may turn into “a lane lawfully available to traffic moving in the direction of the vehicle on the roadway being entered.” See Tex.Transp.Code Ann. § 545.101(b)(2)(Vernon 1999)[Emphasis added]. According to the testimony believed’ by the trial court, Appellee did so. Because Appellee’s own testimony does not demonstrate that he committed a traffic offense, the officer lacked authority to stop Appellee.

With these comments, I concur.


author: GUADALUPE RIVERA, Justice.

text:
    In the Interest of N.T.H.
    No. 08-10-00021-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 6, 2010.

      Craig A. Washington, The Craig Washington Law Firm, Houston, TX, for Appellant.
    Melvin Houston, Melvin Houston & Associates, PC, Ricky Anderson, Anderson & Smith PC, Houston, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

This is an appeal from an order overruling a motion to reinstate a case after dismissal for want of prosecution. Appellants, Michael LaPaul Gobert and Lance C.L. Black, representing the interests of N.T.H., a minor child, raise one issue contending that the trial court abused its discretion by not granting its motion to reinstate. We affirm.

BACKGROUND

N.T.H.’s mother owned a tract of land located in Montgomery County, Texas. On August 15, 2005, N.T.H.’s mother conveyed a deed to Appellee, Craig Bush, leaving him her property. In return, N.T.H.’s mother received no consideration from Appellee for the conveyance.

On September 21, 2006, Appellants filed suit to rescind and cancel the deed, alleging that the deed was void as N.T.H.’s mother was mentally ill at the time of the conveyance and therefore lacked the mental capacity to “execute, acknowledge and deliver the deed” to Appellee. Appellee filed a general denial on November 22, 2006. Two-and-a-half years later, on April 22, 2009, the trial court issued a docket control order. That order set the case for trial for October 5, 2009, and instructed both parties to: (1) complete discovery 45 days before trial; (2) file an agreement for mediation stating the name of an agreed mediator and the date of the same, 30 days before trial; (8) file motions for continuance or settlement 20 days before trial; (4) file a list of exhibits, witnesses and depositions; and (5) attend a pretrial hearing on October 2, 2009, and file any proposed jury questions by that date. The docket control order further stated that failure to attend “PRE-TRIAL” may result in case dismissal. Following the court’s order, Appellants never filed an agreement to mediate, a motion for continuance or settlement, or a list of exhibits, witnesses or depositions. Nor does the record reflect that discovery was completed. However, the record does show that Appellants failed to attend the scheduled pretrial hearing and the trial. Consequently, on October 14, 2009, the trial court ordered the case dismissed for want of prosecution. Subsequently, Appellants filed a motion to reinstate the case, alleging that counsel’s failure to attend pretrial and trial was due to his participation in a criminal case on October 2, 2009, and October 5, 2009. The trial court denied the motion.

DISCUSSION

In a single issue, Appellants contend that the trial court abused its discretion by denying their motion to reinstate after dismissal for want of prosecution. Specifically, they contend that counsel’s failure to appear at the pretrial hearing and later at trial “was not intentional or the result of conscious indifference because he was in trial on a murder ease.... ” However, in reviewing the entire history of the case, we discern no abuse of discretion in the trial court’s denial of their motion to reinstate.

Standard of Review

We review the trial court’s denial of a motion to reinstate for an abuse of discretion. Herrera v. Rivera, 281 S.W.3d 1, 8 (Tex.App.-El Paso 2005, no pet.). A trial court abuses its discretion when it acts in an arbitrary and unreásonable manner, or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

To determine whether a denial of a motion to reinstate constitutes an abuse of discretion, we look to whether a party prosecuted its case with due diligence. Herrera, 281 S.W.3d at 8. When reviewing whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court may consider the entire history of the case, including the length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay. Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex.App.-Houston [14th Dist.] 1993, no pet.).

Analysis

In this instance, Appellants argue that counsel’s inability to attend the pretrial hearing and trial was due to a scheduling conflict. Specifically, counsel alleges that he was not able to appear because he was at jury selection and trial in another court, defending a murder case. Thus, Appellants conclude that counsel’s failure to appear was neither intentional nor the result of conscious indifference. See Tex.R. Civ. P. 165a(3) (providing for reinstatement of the case upon finding “that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained”).

However, in considering the entire history of the case, including, but not limited to, the length of time the case was on file, the extent of activity in the case, whether a trial setting had been arranged, and whether reasonable excuses for delay existed in order to determine whether Appellants’ counsel was diligent in prosecuting its case, we note that: (1) this case was originally filed in September 2006, and had been on file for over three years at the time it was scheduled to go to trial; (2) there was no dispute that counsel received notice of the pretrial hearing and trial setting; (3) the docket control order irrefutably stated that failure to attend pretrial may result in dismissal of the case; and (4) prior to the trial setting, counsel failed to file any pretrial motions within stated deadlines and failed to provide witness and deposition lists, proposed jury questions, or a list of discovery exhibits as required by the control order. Appellants provide no explanation for these omissions. Although they represent that counsel gave a reasonable explanation or excuse for his failure to appear for the pretrial hearing and trial, the record reflects that no motion for continuance was timely filed pursuant to the court’s docket control order or that the judge was ever informed of the scheduling conflict. Appellants have failed to cite, and we have been unable to locate any case law stating that the trial court abused its discretion by denying Appellants’ motion for reinstatement under similar circumstances. Based on these facts we cannot conclude Appellants were diligent in prosecuting the case. After carefully reviewing the entire record, we find no abuse of discretion in the trial court’s denial of the motion for reinstatement after dismissal for want of prosecution. See Fox v. Wardy, 234 S.W.3d 30, 33 (Tex.App.-El Paso 2007, pet. dism’d w.o.j.) (dismissal upheld for failure to appear at pretrial); Garcia v. Mireles, 14 S.W.3d 839, 843 (Tex.App.-Amarillo 2000, no pet.) (dismissal upheld for failure to appear at court-ordered mediation); Shook v. Gilmore & Tatge Mfg. Co., 951 S.W.2d 294, 298 (Tex.App.-Waco 1997, writ denied) (dismissal upheld for failure to appear due to the breakdown of a good calendaring system). Accordingly, Appellants’ sole issue is overruled.

CONCLUSION

Having overruled Appellants’ issue, we affirm the trial court’s judgment.


text:
    Ray E. GILBERT, Jr., Appellant, v. CITY OF EL PASO and El Paso Water Utilities Public Service Board, Appellees.
    No. 08-08-00282-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 13, 2010.

      Ray E. Gilbert Jr., El Paso, TX, pro se.
    Alejandro Acosta Jr., Bickerstaff, Heath, Delgado, Acosta, L.L.P., El Paso, TX, for Appellees.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Appellant, Mr. Ray E. Gilbert, Jr. (“Mr. Gilbert”) appeals the trial court’s grant of the City of El Paso (“the City”) and El Paso Water Utilities Public Service Board’s (“the PSB”) motion for summary judgment, the denial of his motion for summary judgment, and the court’s entering a declaratory judgment in favor of the City and the Board.

Mr. Gilbert is a resident of El Paso County, Texas, and a “user” under Section 402.044(9) of the Municipal Drainage Utility Systems Act and owner/occupier of ben-efitted property as defined by Section 402.044(1)(A) of the Municipal Drainage Utility Systems Act. The El Paso Water Utilities Public Service Board is described as a department of the City of El Paso and it is operated as a largely autonomous independent board. El Paso City Council’s Ordinance No. 752 created the PSB, and Section 8 of the Ordinance addresses the PSB’s authority over the management and operation of the City’s waterworks plant and system, as well as its sewer system. The PSB is a five-member board of trustees vested with management and control of a utility system.

The City, as it created this new district and in its pleadings below defending the delegation of the district’s powers to the PSB, not surprisingly ignore the older, longer history of the core issue at hand. Almost two decades ago, when the author had a front row seat, the City introduced an ordinance to establish the same municipal drainage utility, but that effort was labeled a “rainwater tax,” and weeks later a popular mayor and two city representatives lost their reelections. Creation of a municipal drainage district would not be spoken of until “Storm 2006.”

The major storms and flooding in July 2006 resulted in extensive damage to public and private property, as well as the City’s stormwater drainage infrastructure, such as it was. Following the floods, the City unshelved and undertook a new study of its existing stormwater management program and options so as to address the stormwater management.

A majority vote of the entire membership of the El Paso City Council adopted Ordinance No. 16668 on June 19, 2007, and it became effective upon its adoption. Ordinance No. 16668 establishes a municipal drainage utility for the City pursuant to the provisions of Subchapter C of Chapter 402 of the Texas Local Government Code, as amended (“the Municipal Drainage Utility Systems Act” or “the Act”), § 402.041, et seq. The City adopted the Act and declared the established municipal drainage utility system to be a public utility through Ordinance No. 16668.

Ordinance No. 16668 provides that, except as otherwise provided in the ordinance or under applicable law, the PSB shall have complete authority and control of the municipal drainage utility system’s management and operation, as established by Ordinance No. 16668, on behalf of the City. The City’s delegation to the PSB of management and operation of the City’s municipal drainage utility was made pursuant to authority the City believes to exist in Chapter 1502 of the Texas Government Code, § 1502.001, et seq.

After Ordinance No. 16668 was passed, the PSB held a public hearing on the proposed rules and schedule of charges to be levied on the drainage utility. The PSB issued notice of the time and place of the hearing three times in the El Paso Times for the public’s consideration of these rules and charges, including the proposed schedule of drainage charges. The PSB adopted the rules and original schedule of monthly stormwater fees for the City’s municipal drainage (“Rules and Regulations No. 3”) utility at its regular meeting on December 12, 2007. The City directed the PSB on behalf of the City to establish a schedule of drainage charges against all real property in the proposed service area subject to charges. The PSB established rules for the rate of furnishing the storm-water service, determined the charge for drainage service, set the schedule of charges for the drainage service, and fixed the rates for drainage charges. Rules and Regulations No. B took effect upon the PSB’s adoption. The monthly stormwater fees became effective on March 1, 2008. In a special public meeting held in May 2008, the PSB reduced the monthly utility rates charged for stormwater management.

In late May 2008, Mr. Gilbert and two other plaintiffs, all of whom were residents of El Paso County and “users” and “owners” or “occupiers” as defined under the relevant sections of the Act, filed their original petition and application for injunction relief. The plaintiffs brought the following claims against the City and the PSB: (1) for injunctive relief to restrain them from imposing and collecting any stormwater fees and from enforcing Ordinance No. 16668 and Rules and Regulations No. 3; (2) for declaratory relief to conclude that the stormwater fee, Ordinance No. 16668, and Rules and Regulations No. 3 were invalid on the bases that the City lacked authority to delegate to the PSB powers granted to the City under the Act, that the PSB lacked authority to establish or charge drainage fees, and that the City and the PSB failed to comply with the Act. In the City and the PSB’s answer, they generally denied the plaintiffs’ allegations, and demanded strict proof of them. They also counterclaimed for declaratory judgment.

The plaintiffs initially requested a hearing on their application for temporary injunction, which was set for June 6, 2008, but they later withdrew that request. The City filed its brief to oppose temporary injunction on June 2, 2008. The trial court held a status conference hearing on June 11, 2008, during which the parties agreed to proceed by submitting cross-motions for summary judgment, for ruling without hearing or argument, unless the court so requested. The parties then entered into a Rule 11 Agreement that the case would be submitted for disposition on cross-motions for summary judgment, which would “dispose of all issues of all parties and constitute the Court’s final judgment....”

After the parties filed their motions for summary judgment and the trial court held a hearing on these motions, the court entered its final judgment in August 2008. The court granted the City and the PSB’s motion for summary judgment, denied the plaintiffs’ motion for summary judgment, and entered declaratory judgment in favor of the City and the PSB. The court also awarded the defendants attorney’s fees in the amount of $25,000 in the event that the plaintiffs appealed the judgment to this Court and $15,000 in the event that the plaintiffs sought review by the Texas Supreme Court.

In September 2008, the plaintiffs filed a motion for new trial. On the same day, Mr. Gilbert filed his notice of accelerated appeal.

Initially, we note that we must construe Mr. Gilbert’s brief liberally as he is appearing pro se. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). However, pro se litigants still must comply with all applicable procedural rules. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.-El Paso 2007, no pet.); Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex.App.-El Paso 2007, pet. struck); Harris v. Showcase Chevrolet, 231 S.W.3d 559, 561 (Tex.App.-Dallas 2007, no pet.); Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex.App.-El Paso 2006, no pet.).

It is the appellant’s burden to properly raise and discuss the issues presented for review. See Tex.R.App.P. 38.1(f); Valadez, 238 S.W.3d at 845; Martinez, 218 S.W.3d at 844. “It would be inappropriate for this Court to attempt to re-draft and articulate what we believe [Mr. Gilbert] may have intended to raise as error on appeal.” Valadez, 238 S.W.3d at 845, citing Martinez, 218 S.W.3d at 845. An issue presented in an appellant’s brief is sufficient, if it directs the reviewing court’s attention to the error about which the complaint is made. Valadez, 238 S.W.3d at 845; Martinez, 218 S.W.3d at 844. An appellate court has no duty — or even right — to perform an independent review of the record and applicable law to determine whether there was error. Valadez, 238 S.W.3d at 845; Martinez, 218 S.W.3d at 844. Were we to do so, even on behalf of a pro se appellant, we would be abandoning our role as neutral adjudicators and become an advocate for that party. Valadez, 238 S.W.3d at 845; Martinez, 218 S.W.3d at 844. In the review of a civil case, the appellate court has no discretion to consider an issue not raised in the appellant’s brief, even if the ends of justice so require. Valadez, 238 S.W.3d at 845; Martinez, 218 S.W.3d at 844.

For the most part, Mr. Gilbert’s brief does not comply with Texas Rule of Appellate Procedure 38. However, the brief does clearly articulate one meritorious argument regarding the trial court’s award of attorney’s fees. Mr. Gilbert asserts that the trial court awarded appellate attorney’s fees without any evidence to support the award.

At a hearing on the entry of judgment, the defendants’ attorney argued that the trial court should order the plaintiffs to pay the defendants’ attorney’s fees. The court expressed a reluctance to award attorney’s fees “because it may have a chilling effect in the future against anyone who may want to pursue a claim — whatever claim in the future — against the City or the County....” The court did not make a ruling at the hearing, but stated that it would advise counsel of its ruling later that day. The plaintiffs’ attorney requested a hearing on the amount of fees in the event that the court decided that an award was appropriate. The court indicated that another hearing would be held if it decided to award fees. Nevertheless, the record does not reflect that another hearing was held. On the same day that the hearing on entry of judgment was held, the trial court signed the final judgment, which denied attorney’s fees for the work performed at the trial level, but awarded fees to the defendants in the amount of $25,000 for appeal to this Court and $15,000 for any appeal to the Texas Supreme Court.

An award of attorney’s fees under the Declaratory Judgments Act is within the trial court’s discretion. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 2008); Elijah Ragira/VIP Lodging Group, Inc. v. VIP Lodging Group, Inc., 301 S.W.3d 747, 757 (Tex.App.-El Paso 2009, pet. denied). We have routinely upheld predetermined attorney’s fees as being “within the established jurisprudence of this State.” Gunter v. Bailey, 808 S.W.2d 163, 166 (Tex.App.-El Paso 1991, no writ); see also Pullman v. Brill, Brooks, Powell & Yount, 766 S.W.2d 527, 530 (Tex.App.-Houston [14th Dist.] 1988, no writ)(rejecting the argument that “the predetermined award of attorney’s fees in the event of appeal is unconstitutional as a violation of due process, or as a limitation on the right to access to the courts.”).

However, a trial court may not punish a party for taking a successful appeal. ASAI v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118, 123 (Tex.App.-El Paso 1996, no writ). An unconditional award of attorney’s fees has . a chilling effect on the paying party’s exercise of legal rights. In re Ford Motor Co., 988 S.W.2d 714, 722 (Tex.1998)(orig.proceeding). Accordingly, an award of appellate attorney’s fees must be conditioned on the appeal being unsuccessful. See In re Ford Motor Co., 988 S.W.2d at 721; ASAI, 932 S.W.2d at 123; see also Goebel v. Brandley, 76 S.W.3d 652, 658-59 (Tex.App.-Houston [14th Dist.] 2002, no pet.)(citing this rule in a declaratory judgment case), disapproved on other grounds, Martin v. Amerman, 133 S.W.3d 262, 268 (Tex.2004). The proper remedy for an unconditional award of appellate attorney’s fees is to modify the judgment so that the award depends on the paying party’s lack of success on appeal. Hoefker v. Elgohary, 248 S.W.3d 326, 332 (Tex.App.-Houston [1st Dist] 2007, no pet.).

In this case, the award of appellate attorney’s fees was not conditioned on the appeal being unsuccessful. Because Mr. Gilbert has not prevailed on the merits, the failure to make the award conditional is harmless regarding his appeal to this Court. But it is not harmless as to any petition for review to the Texas Supreme Court.

Moreover, there must be evidence to support an award of attorney’s fees on appeal. See Varner v. Cardenas, 218 S.W.3d 68, 69-70 (Tex.2007); C & K Invs. v. Fiesta Group, Inc., 248 S.W.3d 234, 252 (Tex.App.-Houston [1st Dist.] 2007, no pet.); Reeves Cnty., Tx. v. Pecos River Livestock, Inc., No. 08-99-00007-CV, 2000 WL 1433870, at *10 (Tex.App.-El Paso Sept. 28, 2000, no pet.)(not designated for publication). In this case, there is no evidence to support the attorney’s fee award. At the hearing on the entry of judgment, counsel presented their arguments regarding the propriety of awarding attorney’s fees. The defendants’ attorney indicated that he had affidavits and supporting documents to establish the amount of attorney’s fees, but he did not offer any evidence at the hearing. The plaintiffs’ attorney requested another hearing regarding the amount of the fees if the trial court decided to make an award. Although the trial court indicated that it would hold a subsequent hearing, no such hearing was held. Instead, the court simply entered a final judgment, apparently prepared by the defendants, awarding appellate attorney’s fees. Because there is no evidence to support the amounts contained in the judgment, the attorney’s fee award should be deleted from the judgment. See, e.g., Reeves Cnty., Tx., 2000 WL 1433870, at *11 (“[T]he award of appellate attorney’s fees was not conditioned on whether [the appellants] were successful in prosecuting their appeal. Furthermore, there is no evidence in the record supporting the reasonableness of the award. Accordingly, we ... delete the award of appellate attorney’s fees from the judgment.”).

The trial court’s judgment is modified to delete the award of appellate attorney’s fees. Because Mr. Gilbert did not adequately argue any other ground for reversal of the judgment, the judgment is otherwise affirmed as modified.

      . The plaintiffs' attorney stated that he wanted "to confirm, the opportunity, if the Court does say attorney's fees will be granted to contest them and attack them.” The court responded, "Absolutely.”

      . But here, where a citizen is challenging governmental action, I have come to believe that such awards are a denial of the constitutional right to access the courts. I therefore take the rare step of writing this separate footnote to address an issue that also troubled the trial court: Can the award of attorney’s fees have an unconstitutional chilling effect on a citizen’s attempt to challenge governmental action? It appears that the trial judge thought so, for he denied the City's request for over $44,000 in outside attorney’s fees at the trial level but he did award predetermined appellate fees.
      I have found no case law discussing the potential chilling effect that an award of appellate attorney fees could have when a citizen is challenging governmental action. As noted above, this Court has upheld the award of predetermined appellate attorney's fees and the Fourteenth Court of Appeals has rejected the argument that "the predetermined award of attorney’s fees in the event of appeal is unconstitutional as a violation of due process, or as a limitation on the right to access to the courts.” Pullman v. Brill, Brooks, Powell & Yount, 766 S.W.2d 527, 530 (Tex.App.-Houston [14th Dist.] 1988, no writ).
      I have, however, come to believe that predetermined awards of appellate fees are objectionable, in general, and especially noisome in cases, like this, where citizens challenge a governmental action. If this were a patently frivolous law- suit, I might be less offended; but it is not. And it seems to me abundantly clear from the record that the award of predetermined appellate attorney's fees had a chilling effect such that Mr. Gilbert was left alone and pro se to pursue his legal contentions.