author: JOHNSON, J., MEYERS, J.,

text:
    Ex parte Tenika BROOKS, Appellant.
    No. PD-1046-07.
    Court of Criminal Appeals of Texas.
    June 9, 2010.

      Matt Hennessy, Houston, for Appellant.
    Lakesha Robinson, Asst. Dist. Atty., Nacogdoches, Jeffrey L. Van Horn, State’s Atty., Austin, for State.
   OPINION

JOHNSON, J.,

delivered the opinion of the Court

in which KELLER, P.J., PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

In April of 2000, appellant was indicted for a theft of $100,000 or more but less than $200,000 that was alleged to have occurred “between 7-1-98 through 4-1-2000.” That indictment was subsequently amended to change the alleged value to $20,000 or more but less than $100,000. After numerous delays, trial was set for August 17, 2006. On the day of trial, the state moved the trial court to amend the indictment to include language required by the penal code when charging aggregated theft. After the trial court denied the motion, the state moved to dismiss the indictment so that it might cure the indictment’s defect. Over appellant’s objection, the trial court granted the motion to dismiss.

The following day, the state re-indicted appellant and included specific language alleging aggregated theft. The new indictment alleged theft “pursuant to one scheme or continuing course of conduct that began on or about September 1, 1998, and continued until on or about April 1, 2000,” but it did not contain any allegation that the statute of limitations had been tolled by the previous indictment. Appellant, claiming that prosecution on the new indictment was barred by the five-year statute of limitations for felony theft, filed a pretrial application for writ of habeas corpus with the trial court. Appellant also argued that the trial court erred in dismissing the first indictment as against “the public interest.” The trial court held a hearing to determine the disposition of the application. During the hearing, appellant acknowledged that the limitations could be tolled by a previously pending indictment if both indictments alleged the same conduct, act, or transaction, but she asserted that the first indictment had alleged a single act of theft, not an aggregated one, and argued that a single theft was not the same conduct, act, or transaction as aggregated theft. At the conclusion of the hearing, the trial court took the matter under advisement and a few days later issued a written order denying relief. Thereafter appellant appealed.

Appellant’s pleadings and arguments in the court of appeals mirrored her pleadings and arguments in the trial court. Appellant argued in her first two points of error that the second indictment was barred by the statute of limitations because aggregated theft could not be tolled by an indictment alleging “a single theft,” because they are “separate offenses for all purposes, including limitations!,]” arising from “different conduct, different acts, and different transactions!.]” (Appellant’s brief before the court of appeals, p. 11.) She argued that theft and aggregated theft “are separate offenses, addressed to different conducts and t]he preceding indictment which alleged a single theft did not toll the limitations period for aggregate^] theft alleged in the instant indictment.” (Appellant’s brief before the court of appeals, p. 8.)

The court of appeals, however, characterized appellant’s claim as a challenge to the sufficiency of the state’s anticipated tolling argument and analyzed appellant’s claim under this challenge. Ex parte Brooks, 219 S.W.3d 396, (Tex.App.-Tyler 2007). The court of appeals held that appellant’s claim (as characterized by the court of appeals) was governed by Ex parte Smith, 178 S.W.3d 797 (Tex.Crim. App.2005), and it was therefore unable to address the merits of appellant’s “interlocutory appeal claim concerning the sufficiency of the tolling allegation.” Accordingly, the court of appeals dismissed appellant’s first two points of error for want of jurisdiction. As to appellant’s claim that the trial court erred in dismissing the state’s first indictment, the court of appeals held that the trial court, thus necessarily the court of appeals, lacked jurisdiction to review such a claim via a writ of habeas corpus. Ex parte Brooks, 219 S.W.3d at 399.

Appellant filed a petition for discretionary review with this court. We granted appellant’s first ground for review, which asks whether the court of appeals mischaracterized appellant’s challenge to the new indictment. We refused review of appellant’s second ground for review challenging the court of appeals’s holding that it and the trial court lacked jurisdiction to review the first indictment’s dismissal under a writ of habeas corpus.

We agree with appellant that the court of appeals misunderstood her claim. Appellant did not claim that the second indictment was defective because it did not contain tolling language, nor did appellant argue that the indictment would still be insufficient even if it did contain tolling language. Appellant contended that the first indictment charged only a single theft, which cannot toll limitations for an indictment alleging aggregated theft, regardless of the language or defects in either of the indictments, because tolling does not occur when separate offenses that address different conduct, different acts, and different transactions are alleged in a subsequent indictment. (Appellant’s brief in the court of appeals, p. 11.)

The state counters that the original indictment did charge aggregated theft because it stated that the theft took place “between 7-1-98 through 4-1-2000” instead of the language used to allege an individual theft-“on or about” a date. Although the indictment did not include the language from Section 31.09, the state asserts that the individual thefts were committed pursuant to a continuing scheme or course of conduct; both indictments charged appellant with aggregated theft and rest on the same evidence and same conduct. (State’s brief in the Court of Criminal Appeals, p. 5) The court of appeals neither addressed these arguments nor decided the stated issues.

The discretionary review power of this court permits review only of decisions by the lower courts. The court of appeals failed to decide the claim appellant raised in that court, and we cannot review a decision that has not been made. Stringer v. State, 241 S.W.3d 52, 59 (Tex.Crim.App.2007). Accordingly, we sustain appellant’s ground for review, reverse the judgment of the court of appeals, and remand this cause to that court for further proceedings consistent with this opinion.

MEYERS, J., filed a concurring opinion.

MEYERS, J.,

concurring.

The ground for review granted by this Court asked whether the court of appeals mischaracterized Appellant’s issue as a challenge to an un-pled tolling provision rather than as a thorough challenge to the timeliness of the instant indictment. I agree with the majority that the court of appeals misconstrued Appellant’s argument. The issue is complex, and controlling case law has recently evolved on this subject. I hope that this concurrence is instructive to the court of appeals upon remand.

A prosecution for theft or aggregate theft must be brought within five years from the date of the commission. Code Crim. Proc. Ann. art. 12.01(4)(A). In Appellant’s ease, the statute of limitations ran from April 1, 2000, to April 1, 2005. A period of limitations may be tolled for two reasons; the limitation period will not include 1) the time that a defendant is absent from the state, or 2) the time that another indictment is pending. Code Crim. Proc. Ann. art. 12.05. The second tolling circumstance — a pending .indictment — will toll the statute of limitations only if the subsequent indictment alleges the same conduct, same act, or same transaction. Hernandez v. State, 127 S.W.3d 768 (Tex. Crim.App.2004).

Using our opinion in Ex parte Smith, 178 S.W.3d 797 (Tex.Crim.App.2005), the court of appeals concluded that “Appellant’s complaint about the sufficiency of the anticipated tolling provision [was] not the proper subject of a pretrial application for habeas corpus.” Ex parte Brooks, 219 S.W.3d 396 (Tex.App.-Tyler 2007, pet. granted). The court of appeals explained that while facially barred indictments are a “proper subject of a pretrial application for habeas corpus,” reparable indictments (such as Appellant’s) are not. Id.

The problem with this reasoning is that it places Appellant’s indictment in the wrong category; Appellant’s indictment is facially barred, and is therefore a proper subject for a writ of habeas corpus. In a case recently decided by this Court, we stated that if the State relies upon the pendency of an indictment to toll the statute of limitations, it must so plead. Tita, 267 S.W.3d at 37-38. We derived this requirement from Article 21.02(6) of the Code of Criminal Procedure, which states, “The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.” Code Crim. Proc. Ann. art. 21.02(6).

Here, the absence of a tolling paragraph makes the indictment facially invalid. A claim that the indictment is facially invalid raises an issue that, if meritorious, would bar prosecution or conviction, and therefore a pretrial writ is proper in this situation. Based on Appellant’s indictment, it is clear that she was charged with an offense for which the statute of limitations had run. Therefore, I would conclude that Appellant is entitled to habeas corpus relief.

      . Tex. Penal Code § 31.09 provides: "When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.”

      . "A defendant may challenge an indictment that, on its face, is barred by the statute of limitations by way of a pretrial application for writ of habeas corpus.... If, on the other hand, an indictment alleges that the statute of limitations is tolled, the sufficiency of that tolling allegation may not be challenged by a pretrial writ of habeas corpus.” Ex parte Brooks at - (citing Ex parte Smith, 178 S.W.3d at 803) (citations omitted).

      . While die court of appeals used the language "for want of jurisdiction” in dismissing appellant’s first two points of error, more appropriate terminology might be "for want of a cognizable claim.” See Ex parte McCullough, 966 S.W.2d 529, 531 (Tex.Crim.App.1998).

      . Appellant raised this as an issue to the court of appeals, arguing that because the indictments charged different offenses, "[t]he preceding indictment did not toll the limitations period for the separate offense and different conduct alleged in the instant indictment.” This Court’s opinion in Tita v. State, 267 S.W.3d 33, 37-38 (Tex.Crim.App.2008), offers another argument in Appellant's favor. Under Tita, Appellant could argue that the indictment violated Article 21.02(6) by not indicating on its face that the prosecution was not barred by the applicable statute of limitations. Id.


source: Caselaw Access Project

author: COCHRAN, J., KELLER, P.J.,

license: Public Domain

text:
    Robert Lee WORTHY, Appellant, v. The STATE of Texas.
    No. PD-0924-09.
    Court of Criminal Appeals of Texas.
    June 9, 2010.

      Connie J. Kelley, Austin, for Appellant.
    Michael B. Murray, Dist. Atty., Brown-wood, Jeffrey L. VanHorn, State’s Atty., Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the Court

in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY and HOLCOMB, JJ., joined.

We granted appellant’s petition for discretionary review to resolve a conflict among the courts of appeals concerning whether Article 37.07, § 3(g), requires the State to give pretrial notice of “same-transaction contextual evidence” that it intends to offer in the punishment stage of a non-capital trial. We conclude that it does not. Building upon our prior opinion in Jaubert v. State, we hold that Article 37.07, § 3(g), which explicitly states that the notice requirement applies “in the same manner required by Rule 404(b),” refers to the scope of the evidence offered as well as to the timing of the evidence offered. Therefore, because pretrial notice of “same-transaction contextual evidence” is not required under Rule 404(b), it is also not required under Article 37.07, § 3(g). We affirm the court of appeals, which had, in essence, held the same.

A. Facts

Appellant pled guilty to two counts of sexual assault of a child under the age of seventeen and requested that a jury assess punishment. The jury heard that appellant and his then-wife, Sherry Worthy, took fourteen-year-old R.T. into their Brownwood home. R.T.’s mother had died, and her father was in prison. R.T. was a friend of appellant’s daughter, Candice, and it was Candice who asked her parents to let R.T. live with them. R.T. was dropped off by two of her aunts with a single sack of clothes. Appellant and his wife provided for R.T. and gave her new clothes, her own room, and “more material things” than she had ever had. After R.T. told appellant she wanted to be a pilot, he took her up in a private plane.

Within a few months, appellant’s rough housing with R.T. became sexual in nature. They carried on a secret affair in the family home. About once a week, appellant would walk out of the front door and then sneak back in through R.T.’s bedroom window and have sex with her. Eventually, Sherry Worthy realized something nefarious was going on, and she kicked both her husband and R.T. out of the house. Sherry later divorced appellant.

Appellant and R.T. then spent a couple of nights at motels, first in Comanche, then in Stephenville. Next, R.T. moved in with the Russells — a family who had previously taken in her twin sister. Appellant, meanwhile, moved in with his step-brother, Claude Sellers.

Over appellant’s objections, the jury heard that Sellers was himself a registered sex offender. While living with the Rus-sells, R.T. would pretend to spend the night with her girlfriend, Hannah, because Hannah lived close to Sellers’s apartment. Appellant would pick her up, and they would have sex at Sellers’s apartment. Appellant testified that he knew that taking R.T. to that apartment was a violation of his step-brother’s community supervision, but he said that he “took precautions.” Appellant explained that he used a separate entrance to the apartment and installed a padlock on his door so that Sellers “had no access to my room and he had no knowledge of what was going on.”

After a few weeks, R.T. and her sister went to live with their Aunt Christy in Santo, Texas. Appellant moved into a camper at the house for about a month. When Aunt Christy found out that R.T. and appellant still had a romantic relationship, she took R.T. to the police. In all, the sexual liaison lasted about nine months.

R.T., who was nineteen at the time of trial, testified that she had been in love with appellant, and he with her. R.T. told the jury, “I just don’t want anything to happen to him. That’s it.” Nonetheless, the jury sentenced appellant to eight years in prison on each count.

B. Direct Appeal

In the court of appeals, appellant argued that the trial court erred in admitting evidence that his step-brother was a registered sex offender because the State failed to give pretrial notice of its intent to offer that evidence. The State had provided a document entitled “Notice of Intent to Offer Evidence of Prior Convictions and Extraneous Offenses” which listed (1) sexual offenses against R.T. that took place in Comanche and Erath Counties, (2) a threat appellant made against R.T., and (3) appellant’s admission that he had an ongoing sexual relationship with R.T. for several months. This admission encompassed the time period appellant lived with his step-brother, although Sellers is not explicitly named in the State’s notice.

The court of appeals rejected appellant’s argument, holding that the evidence was same-transaction contextual evidence rather than extraneous-offense evidence:

The evidence that Worthy, in committing the offense for which he was charged, violated the conditions of his stepbrother’s community supervision that an unsupervised child under seventeen not be at his place of residence— showing his disregard for conditions of community supervision and placing the complainant in jeopardy — is part of the context of the crime for which he was being tried and is not an extraneous bad act. Consequently, the State’s introduction of this evidence was not in violation of the trial court’s order, which only related to extraneous bad acts. As the State notes, the trial court appears to have been under the impression that the evidence was not contextual and was subject to the notice requirement and that adequate notice had been given. Because the evidence related to the context of the offense for which he was charged and not conduct that was extraneous to his commission of that offense, we conclude that the trial court was in error in its reasoning. We reject the assumption in Worthy’s arguments that this evidence consists of extraneous bad acts.

Appellant asks this Court to resolve a conflict in the courts of appeals about whether Article 37.07, § S(g)’s notice requirement encompasses same-transaction contextual evidence. The Eastland (in this case) and Austin courts have held that it does not, while the Beaumont court has held that it does. We agree with the Eastland and Austin courts.

C. Article 37.07, § 3(g)’s notice requirement does not encompass same-transaction contextual evidence.

In discussing the admission of evidence during the punishment phase of a non-capital trial, Article 37.07, § 3(g) states, “On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence,” and then refers to an “extraneous crime or bad act.” Rule 404(b), in turn, provides that, in certain circumstances, “[ejvidence of other crimes, wrongs or acts” may be admissible “provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that arising in the same transaction.” The question here, as in our prior Jaubert decision, is when is pretrial notice required under Article 37.07, § 3(g)? The answer is that pretrial notice must be given under Article 37.07, § 3(g), only when pretrial notice is required under Rule 404(b).

In Jaubert, we held that, because Article 37.07, § 3(g), incorporates by reference Rule 404(b)’s manner of giving notice and Rule 404(b)’s notice requirement encompasses only case-in-chief evidence, Article 37.07, § 3(g)’s notice requirement “appears on its face” to encompass only punishment case-in-chief evidence. We also recognized that extra-textual factors supported limiting Article 37.07, § 3(g)’s notice requirement to case-in-chief evidence. Drawing on the debate on the House floor, we concluded that the legislative history of Article 37.07, § 3(g)

indicates that the primary purpose of the statutory amendment was to clarify, after this'Court’s decision to the contrary in Grunsfeld [v. State, 843 S.W.2d 521 (Tex.Crim.App.1992) ], that evidence of unadjudicated extraneous offenses and prior bad acts is admissible at punishment. The notice provision was designed to reinforce existing law regarding notice of extraneous offenses, not to create a new and different requirement. ... At the time the statute was amended, Rule 404(b) described the existing law regarding notice of extraneous offenses.

Thus, according to Jaubert, notice under Article 37.07, § 3(g), for punishment purposes must be given to the same extent and in the same manner as it is required under Rule 404(b) during the guilt stage.

Appellant mentions our decision in Jau-bert, but discounts its reasoning as being applicable only to rebuttal punishment evidence. Instead, he relies upon the Beaumont Court of Appeals’s opinion in Walt-mon v. State, which was delivered just one week after we had decided Jaubert. Waltmon, however, relied on language from the court of appeals’s opinion in Jau-bert — a decision that we reversed because it incorrectly concluded that the “in the same manner” language in 37.07, § 3(g), “ ‘relates only to the procedure governing a defendant’s request and the State’s response to that request, and not to the scope of the information to which the section applies.’ ” Appellant notes that Professors Dix and Dawson have recognized that Waltmon’s holding — that there is no same-transaction contextual evidence exception to Article 37.07, § 3(g) — is “somewhat questionable” in light of Jaubert. Nonetheless, appellant urges us to ignore Jaubert’s reasoning and adopt Waltmon’s. He argues that the plain language of 37.07, § 3(g), is contrary to the court of appeals’s position in this case because Rule 404(b) explicitly excludes evidence of matters “arising in the same transaction” from the notice requirement, but 37.07, § 3(g), does not explicitly do so. That is a distinction without a difference under Jaubert’s reasoning: Pretrial notice under Article 37.07, § 3(g) is required when and in the same manner as under Rule 404(b). The two notice rules serve the same purpose. They guard against “surprise and promote early resolution on the issue of admissibility” of uncharged misconduct, conduct that the defendant would not otherwise know might be offered at trial, either during the guilt or punishment phase.

Furthermore, “same-transaction contextual evidence” is intrinsic to the offense; it is not “an extraneous crime or bad act” to which Article 37.07, § 3(g), explicitly refers. Under the common law, this contextual evidence was treated as a distinct class — “res gestae” evidence — under the reasoning that the criminal act does not occur in a vacuum, and the jury has a right to hear the contextual evidence. Likely as a result, it was explicitly defined out of “other crimes, wrongs or acts” in Texas Rule of Evidence 404(b), much as a party’s own statement is defined out of the hearsay rule in Rule 801(e)(2). It is not explicitly defined out of “other crimes, wrongs or acts” in its federal counterpart, but the cases interpret Federal Rule 404(b) to exclude notice of evidence that is “inextricably intertwined with” or “part and parcel of’ or “necessary to complete the story of’ the alleged offense. This is consistent with the notes of the federal advisory committee on the 1991 amendments that added the notice requirement, which made clear that the “amendment does not extend to evidence of acts which are ‘intrinsic’ to the charged offense ...”

That said, prudent prosecutors provide pretrial notice of all evidence that could possibly be considered extraneous to the charged offense so that judges need not “engage in a hair-splitting debate” about whether some specific item is evidence of an extraneous offense or is same-transaction contextual evidence. The evidence in this case led to just such a hairsplitting debate. There were three bench conferences about the admissibility of the evidence of Sellers being a registered sex offender. Initially, the trial judge ruled the evidence inadmissible under Rule 403, but ultimately he held that it was admissible bad-act evidence and that the State did comply with notice.

As noted above, the court of appeals held just the opposite: The evidence concerning appellant’s step-brother was same-transaction contextual evidence. There is no bright line here. On the one hand, as the trial court pointed out, the evidence was not absolutely necessary to the jury’s understanding of the charged offense. On the other, it is not divisible in the way that evidence involving a different victim would have been; it is “intrinsic” — a circumstance of the defendant’s charged criminal act. It is somewhat like offering evidence that the murderer killed his victim in a bordello; it is not essential in proving the offense of murder to show that it occurred in a bordello, but it certainly is an intrinsic circumstance surrounding that particular murder and it shows the context of the crime.

Because we agree that the court of appeals correctly concluded that pretrial notice of same-transaction contextual evidence is not required under Article 37.07, § 3(g), we affirm the judgment of that court.

KELLER, P.J., filed a concurring opinion in which MEYERS, J., joined.

KELLER, P.J.,

concurring in which MEYERS, J., joined.

Evidence of a bad act is “same transaction contextual evidence” when the bad act is “so intermixed or connected” with the charged offense “as to form a single, indivisible criminal transaction, such that in narrating the one, it is impracticable to avoid describing the other.” It is not enough for the bad act to be intermixed with the charged offense; the bad act must be “necessary to the jury’s understanding of the [charged] offense.” Although the bad act of bringing a child to a registered sex offender’s apartment occurred during the same transaction as the sexual assaults that occurred at that same apartment, it is not at all clear whether this bad act was necessary to understanding those offenses. The trial court did not think so; it admitted the evidence on a different basis.

We need not decide whether this evidence was same transaction contextual evidence because appellant has not challenged the court of appeals’s determination that it was. His only challenge is to the court of appeals’s determination that same transaction contextual evidence is exempt from the article 37.07 notice provision. Rather than imply that such evidence is admissible as same transaction contextual evidence, I would refrain from addressing the issue.

      . See Tex.R.App. P. 66.3(a) (one reason for granting discretionary review is “whether a court of appeals' decision conflicts with another court of appeals' decision on the same issue”).

      . Tex.Code Crim. Proc. art. 37.07, § 3(g).

      . 74 S.W.3d 1 (Tex.Crim.App.2002) (holding that the notice requirement of Tex.Code Crim. Proc. art. 37.07, § 3(g), applies only to extraneous offense evidence offered during the State’s punishment case-in-chief, just as Rule 404(b) requires notice only of extraneous offense evidence offered in the State’s case-in-chief during the guilt stage).

      . Id. at 3.

      . Worthy v. State, 295 S.W.3d 685, 689-90 (Tex.App.-Eastland 2009).

      . For purposes of this appeal, we assume, without deciding, that evidence of appellant’s act of taking R.T. to Sellers's apartment knowing that Sellers was a registered sex offender was a "bad act” by appellant.

      . These were tied to the two nights spent in motels in Comanche and Stephenville.

      . The conduct itself is pled in the second count of the indictment. The first count alleged an offense in Brown County "on or about the 1st day of December 2003,” and the second count alleged an offense in Brown County "on or about the 4th day of September 2004.” Claude Sellers lived in Brown-wood (in Brown County), and R.T. lived with the Russells and visited appellant at Sellers’s apartment during the summer of 2004. Thus, the sexual acts occurring at Sellers's apartment were covered by the indictment. See Rodriguez v. State, 104 S.W.3d 87, 91 (Tex. Crim.App.2003) (absent election, evidence of multiple occurrences of an act alleged in the indictment is not "extraneous offense” evidence; every act for which evidence is presented is covered by the indictment and, upon conviction, is jeopardy-barred).

      . Worthy, 295 S.W.3d at 689-90.

      . Patton v. State, 25 S.W.3d 387, 392 n. 4 (Tex.App.-Austin 2000, pet. ref'd).

      . Waltmon v. State, 76 S.W.3d 148, 155-56 (Tex.App.-Beaumont 2002, no pet.).

      . Tex.Code Crim. Proc. art. 37.07, § 3(g). That section reads as follows:
      On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.

      . Tex R. Evid. 404(b).

      . Jaubert, 74 S.W.3d at 3. We further noted that common law also favored this limitation because the defendant determines whether a contested issue will be raised, and his decision will not be made known until he presents his case. Id. at 3-4.

      . Id.

      . 76 S.W.3d 148 (Tex.App.-Beaumont 2002, no pet.).

      . Waltmon, 76 S.W.3d at 155 (quoting Jaubert v. State, 65 S.W.3d 73 (Tex.App.-Waco 2000)). We reversed Jaubert on April 10, 2002. Waltmon was decided on April 17, 2002.

      . Appellant’s Brief at 11 (citing 42 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 22.251 (2d ed. Supp. 2009)).

      . Fed.R.Evid. 404(b), Notes of Advisory Committee on 1991 amendments ("The amendment to Rule 404(b) adds a pretrial notice requirement in criminal cases and is intended to reduce surprise and promote early resolution on the issue of admissibility.”).

      . See Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App.1972) (noting that background evidence is admitted to “show the context in which the criminal act occurred ... under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence.”).

      . See United States v. Sumlin, 489 F.3d 683, 689 (5th Cir.2007) ("Rule 404(b) only applies to limit the admissibility of evidence of extrinsic acts. Intrinsic evidence, on the other hand, is generally admissible so that the jury may evaluate all the circumstances under which the defendant acted.”) (internal cites and quotation marks omitted); United States v. Gobbi, 471 F.3d 302, 311 (1st Cir.2006) ("The prohibition against 'other acts’ evidence typically refers to evidence that is extrinsic to the crime charged and introduced for the purpose of showing propensity ... Here, however, we never reach the question of propensity; the drug-purchasing evidence in this case is intrinsic to the conspiracy described in count 1 of the indictment. That is to say, the evidence comprises part and parcel of the charged offense. Thus, the evidence is not ‘other acts’ evidence at all and, accordingly, Rule 404(b) is not implicated.”); United States v. Beckman, 298 F.3d 788, 794 (9th Cir.2002) (testimony about defendant’s prior drug run was necessary to provide "coherent and comprehensible story” about the crimes for which defendant was charged; evidence was "inextricably intertwined” with charged offense and not subject to exclusion on basis of Rule 404(b)); United States v. Gorman, 312 F.3d 1159, 1162-63 (10th Cir.2002) (testimony relating to marijuana was intertwined with discovery of firearm and was not Rule 404(b) evidence subject to notice).

      . Fed.R.Evid. 404, Notes of Advisory Committee on 1991 amendments.

      . Jaubert, 74 S.W.3d at 8 (Cochran, J„ concurring).

      . For example, one colloquy concerning the evidence of Sellers’s sex-offender status went as follows:
      Court: Isn’t that something that you would have needed to put him on notice that you wanted to go into, because isn’t that a bad act?
      Prosecutor: It’s not a bad act.
      Court: Why isn't it a bad act?
      Prosecutor: It’s not a criminal act.
      Court: I didn’t say it was a criminal act. That's the whole reason you want it before the jury is it’s a bad act, isn’t it?
      Prosecutor: I want it before the jury as well because, surely, in proving our case, putting on evidence, he is having sex with a girl at another location, how is that not contextual to the offense?

      .The trial judge explained his final ruling as follows:
      All right. Earlier when the State attempted to get this in, it was under the theory of, as I recall, the same transaction/contextual evidence. And since this was the punishment case only with — as a result of the Defendant’s plea of guilty, the Court’s view was that the prejudicial value was greater than the probative value as addressed at that point. And, therefore, I wouldn’t let it in.
      And I don’t believe it really was the same transaction/contextual evidence because the evidence does make sense without there being a reference to the sex offender.
      However, now things have evolved, it's a little different. The notice issue was raised. That was also a factor before. That was not shown to be complied with.
      Now I do find that the State did comply, albeit not as direct as I would like. It was — I'm going to overruled the notice objection of this.
      I do believe this is a bad act allegation. And, therefore, I do think under our law it is something that can come in and be considered, and I’m going to allow it to give whatever weight the jury determines it is entitled to, that is the act of taking, allegedly, that child there at a place where there is a registered sex offender.
      So, it’s not the fact that he is a sex offender and solely running that in as part and parcel of the main offense, but a bad act attributed to the Defendant, if they be- . lieve it happened.
      So, at this juncture, I’m going to allow it to come in.

      . See McDonald v. State, 179 S.W.3d 571, 577-78 (Tex.Crim.App.2005).

      . Id, at 578 ("The evidence concerning the complainant makes perfect sense without bringing in evidence of the appellant’s conduct with the cousin and is clearly divisible in that it involves a different victim, at a different time, after the charged conduct was completed. When the facts of the primary offense can be understood on their own, notice is needed for evidence of uncharged misconduct. In this case, the primary offense was understandable on its own facts. We therefore conclude that the trial court abused its discretion in admitting the uncharged offense without notice because the appellant was entitled to notice upon request under Rule 404(b).”).

      . See, e.g., Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App.1993) (in capital-murder case, evidence of kidnapping and double murder of deceased homeowner’s wife and son was “ '[sjame transaction contextual evidence’ ... [that] imparts to the trier of fact information essential to understanding the context and circumstances of events which, although legally separate offenses, are blended or interwoven. As such it is admissible, not for the purpose of showing character conformity, but to illuminate the nature of the crime alleged.”) (citation omitted); Stoker v. State, 788 S.W.2d 1, 12-13 (Tex.Crim.App.1989) (testimony that defendant was in debt and had “fronted too many drugs” admissible in capital murder trial as showing defendant’s state of mind and circumstances at time of robbery-murder); see also United States v. Campbell, 49 F.3d 1079, 1083-84 (5th Cir. 1995) (in Mann Act prosecution for traveling with two women for purposes of prostitution, proper to admit evidence that the three used drugs during the trip and that defendant beat the two women as this “carrot” and "stick” behavior was "relevant intrinsic evidence of how the actual violation occurred.").

      . McDonald v. State, 179 S.W.3d 571, 577 (Tex.Crim.App.2005).

      . Id.

      . The indictment alleged two sexual assault offenses, but the evidence showed more than two offenses conforming to the indictment allegations — including those occurring at the registered sex offender’s home. ”[I]f the State presents evidence of multiple criminal acts conforming to the indictment, and no election is made, then all of the acts are considered as the charged offense.” Campbell v. State, 149 S.W.3d 149, 156 (Tex.Crim.App.2004) (Keller, P.J., concurring) (citing Ex parte Goodbread, 967 S.W.2d 859, 860-861 (Tex.Crim.App.1998)).

      . The trial court found that the notice requirement was met. That issue is not before us here.


author: ELIZABETH LANG-MIERS, Justice.

text:
    In re ENSCO OFFSHORE INTERNATIONAL COMPANY, Ensco International Incorporated and Ensco Offshore Company, Individually and as Successor-in-Interest of Chiles Offshore, Inc., Relators.
    No. 05-08-01092-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 19, 2008.
    Rehearing Overruled Jan. 21, 2009.
    Robert L. Klawetter, Christina K. Scho-vajsa, Houston, Michael K. Hurst, Dallas, for Relator.
    Eric D. Pearson, Heygood, Orr, Reyes, Pearson and Bartolomei, Dallas, for Real Party in Interest.
    Before Justices WRIGHT, O’NEILL, and LANG-MIERS.
   MEMORANDUM OPINION

ELIZABETH LANG-MIERS, Justice.

In this petition for writ of mandamus, relators complain that the trial court has abused its discretion in denying defendants’ motion to dismiss for forum non conveniens. Relators’ petition is not verified. See Tex. R. App. P. 52.3. Accordingly, we DENY relators’ petition for writ of mandamus.


author: Justice WRIGHT.

text:
    Tyrone Lamond BANKS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 05-05-01050-CR, 05-05-01051-CR, 05-05-01052-CR, 05-05-01053-CR, 05-05-01054-CR, 05-05-01055-CR, 05-05-01056-CR.
    Court of Appeals of Texas, Dallas.
    Dec. 11, 2008.
    Discretionary Review Refused April 29, 2009.

      Dan Patterson, Kathleen A. Walsh, Public Defender’s Office, Dallas, for Appellant.
    Tyrone Lamond Banks, Tyron Lamord Banks, new Boston, pro se.
    William T. (Bill) Hill, Crim. District Attorney, Melanie D. Dickson, for State.
    Before Justices WRIGHT, MOSELEY, and LANG.
   SUPPLEMENTAL OPINION ON REMAND

Opinion by

Justice WRIGHT.

Tyrone Lamond Banks appeals four convictions for aggravated assault and three convictions for aggravated robbery. On original submission, this Court concluded the reporter’s record in these cases had been lost or destroyed through no fault of appellant and, pursuant to Texas Rule of Appellate Procedure 34.6(f), appellant was entitled to a new trial in the three aggravated robbery eases. We further concluded that because the record was not necessary to resolve any issues concerning appellant’s guilty pleas in the four aggravated assault cases, but was necessary for resolution of issues arising in the course of the punishment hearing, appellant was entitled to new punishment hearings in the four aggravated assault cases. The Texas Court of Criminal Appeals granted review of these cases to “consider issues including the relationship of rule of appellate procedure 34.6(f) to section 52.046(a)(4) of the government code.” Without resolution of those issues, the court of criminal appeals remanded the cases to this Court so that we could also consider the impact of rule of appellate procedure 13.6 on these appeals. After doing so, we reach the same conclusion, sustain appellant’s sole issue, reverse the judgments in the three aggravated robbery cases and remand those cases for new trials, and reverse and remand for new punishment in the four aggravated assault cases.

Discussion

If a reporter’s record of the proceedings from which an appeal arises is lost or destroyed, an appellant is entitled to a new trial if he establishes that: (1) he timely requested a reporter’s record; (2) without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed; (3) the lost, destroyed, or inaudible portion of the reporter’s record is necessary to the appeal’s resolution; and (4) the parties cannot agree on a complete reporter’s record. Tex.R.App. P. 34.6(f).

On original submission, we concluded appellant’s request for the reporter’s record was timely and the record was lost or destroyed without appellant’s fault, rejecting the State’s argument that because appellant did not request the record until after the time the court reporter was permitted to destroy the notes, appellant should not be permitted to benefit from rule 34.6(f). The State relied on section 52.046(a)(4) of the government code, which provides that, on request, the court reporter must “preserve the notes for future reference for three years from the date on which they were taken.” See Tex. Gov’t Code Ann. § 52.046(a)(4) (Vernon 2005). We concluded that when the court of criminal appeals granted appellant out-of-time appeals, the appellate time limits were reset. We noted that before appellant timely requested the record pursuant to rule 34.6, the court reporter had died, and her notes could not be located. We acknowledged the tension between the government code and the rules of appellate procedure. Nevertheless, we concluded that whether appellant’s request for the record was timely and the loss or destruction of the record was through no fault of appellant should be determined by considering whether the request was timely under rule 34.6, not the provisions of the government code generally setting out the duties of court reporters. We did not, however, consider the effect of rule of appellate procedure 13.6 in our discussion.

Rule 13.6 of the rules of appellate procedure provides as follows:

When a defendant is convicted and sentenced, or is granted deferred adjudication for a felony other than a state jail felony, and does not appeal, the court reporter must — within 20 days after the time to perfect the appeal has expired— file the untranscribed notes or the original recording of the proceeding with the trial court clerk. The trial court clerk need not retain the notes beyond 15 years of their filing date.

Tex.R.App. P. 13.6.

In these cases, appellant was convicted on June 20, 1997. The court of criminal appeals granted appellant out-of-time appeals on April 25, 2005, stating in its mandate that for purposes of the rules of appellate procedure, all time limits would be calculated as if the sentences had been imposed on May 28, 2005. Appellant then filed his notices of appeal and request for the record within thirty days, making his request timely pursuant to the rules of appellate procedure. See Tex.R.App. P. 34.6(b)(1). Because he was convicted on June 20, 1997, and did not file his notices of appeal until May 23, 2005, rule 13.6 required the court reporter to file the un-transcribed notes of the proceeding with the district court clerk. The district court clerk was then under the obligation to retain the notes for fifteen years from the time they were filed. That the records cannot be found in the district clerk’s office either because the court reporter failed to file them or the records have been lost while in the custody of the district clerk’s office is not the fault of appellant.

In reaching this conclusion, we necessarily reject the State’s argument that the duties of the court reporter under rule 13.6 are in conflict with the duties set out in section 52.046(a)(4) of the government code, requiring the rule to yield to the statute. Section 52.046(a)(4) of the government code requires a court reporter, upon request, to preserve the notes for three years from the date on which they were taken. When, as here, the record shows no such request until years after the time limit imposed on the court reporter has passed, the court reporter’s duty to retain the record for three years from the time the notes were taken (and ability to destroy it thereafter) under section 52.046(a)(4) does not arise. Rather, because appellant did not file a notice of appeal or otherwise request that the record be retained until after the time line imposed by rule 13.6 had already passed, rule 13.6 applies and the court reporter was under the obligation to file the untran-scribed notes with the district clerk to be retained for fifteen years.

We likewise reject the State’s contention that applying rule 13.6 in this case would somehow enlarge rights guaranteed to appellant by section 52.046(a)(4). Section 52.046(a)(4) sets out the obligations of a court reporter and requires, among other things, that upon request, the court reporter retain the notes for three years. It does not confer a substantive right to appellant to have a record available to him for a given period of time. We note, however, that the legislature has conferred the right to certain collateral proceedings in which either the State or the defendant may use records from the underlying trial years after conviction. See, e.g., Routier v. State, No. AP-75617, 2008 WL 2486417, at *1 n. 2 (Tex.Crim.App. June 18, 2008) (reviewing evidence adduced at trial in appeal from denial of motion for post-conviction DNA testing); Ex parte Moreno, 245 S.W.3d 419, 423-25 (Tex.Crim.App.2008) (considering mitigating evidence at punishment phase of capital murder trial to determine merits of application for writ of habeas corpus raising Penry error). And, the State or other parties may utilize court records from criminal proceedings in certain civil proceedings which may occur more than three years after a defendant is convicted. See, e.g., Laney v. State, 223 S.W.3d 656, 659 n. 3 (Tex.App.-Tyler 2007, no pet.) (record in ongoing commitment proceedings could have been supplemented by State with record from underlying capital murder trial); Nelms v. State, 761 S.W.2d 578, 579 (Tex.App.-Fort Worth 1988, no writ) (trial court took judicial notice of record “presumably including the statement of facts” from underlying criminal trial in civil proceeding to determine ownership of cash).

The legislature gave the court of criminal appeals rulemaking authority relative to “posttrial, appellate and review procedure” in criminal cases. Tex. Gov’t Code Ann. § 22.108 (Vernon 2004). Under that authority, the court of criminal appeals adopted rule 13.6. Rule 13.6 provides the procedural mechanism to have certain criminal trial records available to all parties for use in collateral proceedings, both civil and criminal, that have been provided by the legislature. It does not, as the State suggests, operate to enlarge a substantive right guaranteed to appellant by section 52.046(a)(4).

■ Finally, we reject the State’s assertion that using one time line for appellant and another for the State is inherently unfair. The time lines imposed by rule 13.6 or section 52.046 that are at issue in this case apply to the court reporter and the trial court clerk, not to appellant or the State. Contrary to the State’s suggestion, we cannot conclude that when the court of criminal appeals later returns a defendant to a point in time so that he may obtain a meaningful appeal, the court of criminal appeals has somehow undone a time limit imposed on the court reporter that has already passed.

Because we conclude rule 13.6 does not change our determination that appellant was not at fault for the missing recordings either being lost or destroyed, and for the additional reasons expressed in our original opinion, we sustain appellant’s sole issue. We reverse the judgments in the three aggravated robbery cases and remand for new trials. We reverse and remand for new punishment hearings in the four aggravated assault cases.

      . Specifically, we reverse the judgments in cause numbers 05-05-01052-CR, 05-05-01053-CR, and 05-05-01056-CR, and reverse and remand for new punishment in cause numbers 05-05-01050-CR, 05-05-01051-CR, 05-05-01054-CR, and 05-05-01055-CR.

      . Rule 13.6 of the rules of appellate procedure did not take effect until September 1, 1997. Tex.R.App. P. 13.6, 60 Tex. B.J. 878. At the time of appellant’s trial, rule 11 set out the duties of court reporters. Tex.R.App. P. 11, 49 Tex. B.J. 561 (Tex. Sup.Ct. and Tex.Crim. App.1986). Rule 11(d) was similar to rule 13.6, and provided that when a defendant was convicted and sentenced to a term of more than two years and no appeal was taken, the court reporter was required to file the untran-scribed notes of the proceeding with the district clerk to retain for fifteen years. Id. For convenience, we will refer to the current version of the rule.

      . The record from the hearing to determine the status of the record shows the court reporter was deceased, her daughter searched for but had not found the missing records, and the boxes in county storage containing hearings from the year of appellant’s hearings did not contain the missing records.

      . See Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (jury must be empowered by trial court’s instructions to give “meaningful effect” to all mitigating evidence, including evidence of mental retardation, introduced at punishment phase of capital murder trial).


author: Chief Justice MORRISS.

text:
    George D. SOLOMON and Wife, Jini Solomon, Appellants, v. Perry STEITLER, d/b/a North East Texas Land & Timber, Larry Bullard, and Tina Bullard, Appellees.
    No. 06-09-00031-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted: March 24, 2010.
    Decided: April 22, 2010.

      Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, TX, for appellants.
    Darrin M. Walker, Law Office of Darrin Walker, Kingwood, TX, W. Joel Smith, Adams, King & Smith, Longview, for Larry and Tina Bullard.
    Gary D. Grimes, Howell & Grimes, Tex-arkana, TX, for Perry Steitler, d/b/a North East Texas Land & Timber.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

In the beginning, the uses intended for the adjoining tracts of rural land in Titus County owned by neighbors Larry and Tina Bullard and George D. and Jini Solomon did not seem to be at odds. The Bullards established a rural residence there and planted pine trees on part of their property to provide future retirement income and to enhance their pastoral lifestyle. The Solomons, on the adjoining property, built a lake using Perry Steitler, d/b/a North East Texas Land & Timber, as their contractor. The conflict developed when the Solomons’ lake flooded part of the Bullards’ property, killing some of the Bullards’ trees.

The Bullards filed a lawsuit against the Solomons and Steitler, seeking damages wrought by the flooding of their land. This lawsuit was consolidated with Steit-ler’s breach of contract lawsuit against the Solomons. On conclusion of a three-day trial, the jury determined that Solomon diverted or impounded the natural flow of surface waters in such a manner as to damage the property of the Bullards in violation of the Texas Water Code and that such damage would continue in the future.

The jury further determined that Solomon was negligent and grossly negligent in proximately causing damage to the Bul-lards’ property and awarded, in addition to actual damages, exemplary damages in the amount of $50,000.00. Finally, the jury awarded damages to Steitler based on Solomon’s breach of contract, finding no breach by Steitler. In addition, the Bul-lards and Steitler were awarded attorney’s fees, $7,500.00 of which was awarded to each party specifically for representation in the court of appeals.

In addition to the award of monetary damages and attorney’s fees, the final judgment imposes a permanent injunction binding on Solomon, commanding Solomon to reduce “the Levee (Dam) level on Williamson Creek on his property to a point where the surface water level on his property will remain below the surface level on the West, South and Southeast portion of Larry and Tina Bullard’s land described below....”

Solomon appeals. We affirm the judgment of the trial court, because we determine that (1) . punitive damages can be assessed against the Solomons predicated on their gross negligence in violating Section 11.086 of the Texas Water Code, (2) the Bullards’ pleadings support damages of $15,300.00 for loss of use of real property, (3) Steitler’s directed verdict against the Solomons was not error, (4) granting the challenge for cause did not abuse the trial court’s discretion, (5) the award of appellate attorney’s fees was impliedly conditioned on a successful appeal, (6) Solomon waived his complaint concerning the issuance of the injunction, and (7) reconsidering attorney’s fees is not necessary.

(1) Punitive Damages Can Be Assessed Against the Solomons Predicated on Their Gross Negligence in Violating Section 11.086 of the Texas Water Code

Solomon relies on Section 41.004 of the Texas Civil Practice and Remedies Code in support of his position that punitive damages are not recoverable. This section of the Code requires the recovery of actual damages as a predicate to the recovery of punitive damages. See Travelers Indem. Co. v. Fuller, 892 S.W.2d 848, 852 (Tex.1995). Solomon further contends that the recovery of punitive damages requires a finding of an independent tort with accompanying actual damages. Fed. Express Corp. v. Dutschmann, 846 S.W.2d 282, 284 (Tex.1993). Because the damage findings were solely related to his violation of the Texas Water Code, Solomon disputes the viability of the punitive damage award. Said another way, Solomon claims that the law requires punitive damages to be based on an independent underlying tort and that, therefore, the failure to secure a finding that damages awarded were proximately caused by Solomon’s independent negligence is fatal to the recovery of punitive damages. The jury initially found that “George Solomon diverted or impounded the natural flow of surface waters which proximately caused damage to the property of Larry and Tina Bullard,” followed by a monetary award for each element of damage submitted to it. Immediately following the damage findings, the jury was asked to determine “whether the negligence, if any, of ... George Solomon proximately caused the damages, if any, to the property owned by Larry Bullard and wife, Tina Bullard.” The jury answered “yes” to this question.

The jury was then asked to determine whether the harm to the Bullards resulted from the gross negligence of Solomon. This question was predicated on an affirmative and unanimous response to question number one, which asked the jury to determine whether there was a violation of the Texas Water Code. Solomon contends the damage findings (for violation of the Texas Water Code) were not tied to Solomon’s negligence or gross negligence, and therefore, because there is no independent tort on which exemplary damages are based, the exemplary damage award cannot stand. Dutschmann, 846 S.W.2d at 284 (recovery of punitive damages requires finding of independent tort with accompanying actual damages).

Putting aside the issue of whether the negligence question — though not fully developed independent of the statutory violation — could nevertheless support the damage findings, we believe the more pertinent issue here is whether the punitive damage award can be upheld on the basis of the jury’s finding that Solomon was grossly negligent in violating Section 11.086 of the Texas Water Code. See Tex. Water Code Ann. § 11.086. That section of the Code provides that

(a) No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.
(b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow. ...

Id.

Subsection (b) of this section provides that a person “injured by an overflow” has “remedies at law” and may “recover damages occasioned by the overflow.” The issue, therefore, is whether the statutory language providing for “remedies at law” and the recovery of “damages” includes only actual damages or whether the statute also permits recovery of punitive damages.

The Bullards contend that the holding in Whole Foods Market Southwest, L.P. v. Tijerina, 979 S.W.2d 768 (Tex.App.-Houstoh [14th Dist.] 1998, pet. denied), should control the decision in this case. In Tijeri-na, the court rejected an argument similar to the issue raised by Solomon. Tijerina involved an employment discrimination claim brought under the Texas Workers’ Compensation Act’s anti-retaliation provision. The court held that, because the statute permitted recovery of exemplary damages when the employer acted with malice, the employer’s contention that the employee “was required to plead and prove a separate tort in order to support her punitive damage award [was] merit-less.” Id. at 781.

■ To apply the reasoning used by the court in Tijerina, we first must determine whether the statute permits the recovery of exemplary damages. The issue of whether the terms “remedies at law” and “damages,” as used in Section 11.086, include punitive damages has not been directly addressed. There are, however, several cases in which punitive damages have been held to be recoverable as a result of a violation of this section.

In Planet Plows, Inc. v. Evans, 600 S.W.2d 874, 877 (Tex.Civ.App.-Amarillo 1980, no writ), Evans brought an action for damages to her home, alleging that Planet Plows violated Section 11.086 of the Texas Water Code by diverting the natural flow of surface waters onto, and impounding the waters on, her property. Actual and punitive damages were awarded. On appeal, Planet Plows argued that punitive damages were not recoverable on a mere violation of a statute. To the contrary, the court held that, if there is evidence of an intentional violation of Section 11.086, the defendant may be required to respond in exemplary damages. Id. at 877.

Punitive damages were awarded for violation of Section 11.086 in Bily v. Omni Equities, Inc., 731 S.W.2d 606 (Tex.App.Houston [14th Dist.] 1987, writ ref'd n.r.e.). In that ease, Bily sued for injunctive relief and damages, alleging that Omni impounded the natural flow of surface waters from his property. The trial court entered judgment for recovery of actual damages, but disallowed recovery of punitive damages. On appeal, the court noted that Bily’s action against Omni was based on Section 11.086 and was not dependent on any finding that Omni was negligent. Id. at 611. The jury specifically found each element of the statutory cause of action for violation of Section 11.086. Moreover, the jury determined that Omni’s conduct in impounding the flow of surface waters was intentional and unreasonable and that Omni acted with “heedless and reckless” disregard in failing to make any provision for drainage of Bily’s property. “Heedless and reckless” disregard was defined:

[Mjore than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to indicate that the act or omission in question was the result of conscious indifference to the rights, welfare, or safety of the persons affected by it.

Id. at 613.

While Bily raised questions of sufficiency of the evidence to support the affirmative response to these inquiries, it recognizes the propriety of a punitive damage award for violation of Section 11.086 with conscious indifference to a plaintiffs rights.

Finally, the 1998 case of Boatman v. Lites, 970 S.W.2d 41 (Tex.App.-Tyler 1998, no writ), supports the proposition that exemplary damages may be awarded on a showing of gross negligence in violation of Section 11.086. In that case, the Lites maintained that the Boatmans negligently diverted the natural flow of water from their land onto the Lites’ land by the use of “berms.” The Lites alleged this to be negligence and a violation of Section 11.086. Id. at 43. The jury returned a judgment for actual and punitive damages. On appeal, the Boatmans claimed there was insufficient evidence to support a submission of gross negligence and an award of exemplary damages. “Gross negligence” was defined:

[Mjore than momentary thoughtlessness, inadvertence or error of judgment. It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected.

Id. at 45. The punitive damage award was upheld on appeal.

Here, the jury likewise determined that Solomon acted with conscious indifference to the rights, safety, or welfare of the Bullards in his violation of Section 11.086. Question number five in the charge of the court asks the jury if there is “clear and convincing evidence that the harm to Larry and Tina Bullard resulted from gross negligence of George Solomon, if any?” Clear and convincing evidence was defined as “the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established.” “Gross negligence” was defined:

[A]n act or omission by George Solomon (a) which when viewed objectively from the standpoint of George Solomon at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to Larry and Tina Bullard; and (b) of which George Solomon has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of Larry and Tina Bullard.

Solomon does not assign error to the way the issues were worded or defined. Instead, he claims exemplary damages cannot be awarded without the finding of an independent tort on which actual damages are awarded. Because an intentional or grossly negligent violation of Section 11.086 of the Texas Water Code will support the imposition of exemplary damages, we overrule this point of error.

(¾) The Bullards’ Pleadings Support Damages of $15,300.00 for Loss of Use of Real Property

Solomon contends the trial court erred in entering judgment which included damages of $15,300.00 for “loss of use of real property” because it exceeds the damages amount pled. Generally, a judgment for damages in excess of the amount sought by the pleadings is error, even if a larger award might be warranted by the evidence. See Tex.R. Civ. P. 301; Employers Ins. of Wausau v. Schaefer, 662 S.W.2d 414, 419 (Tex.App.-Corpus Christi 1983, no writ). Thus, a trial court cannot render judgment for an amount in excess of what a plaintiff requested in the live pleadings. Picon Transp., Inc. v. Pomerantz, 814 S.W.2d 489, 491 (Tex.App.-Dallas 1991, writ denied).

Here, the jury awarded $15,300.00 for “loss of use of real property,” even though the Bullards use in their pleadings the number $12,000.00 in connection with this element of damage. The Bullards contend that this award is nevertheless valid, because they did not plead the amount of $12,000.00 as a maximum on these damages. The Bullards’ pleading is not, by its terms, limited to $12,000.00:

As a direct and/or proximate result of Defendant Solomon’s negligent, wrongful, or illegal acts and/or conduct, Plaintiffs Bullard have been deprived of the use of a portion of their land, to their damage in a sum to be determined by the jury within the jurisdictional limits of this court estimated to be but not limited to the following .... Loss of use of land ... $12,000.00.

(Emphasis added.)

In support of their position that the award is valid, the Bullards rely on City of Wichita Falls v. Dye, 517 S.W.2d 680, 682 (Tex.Civ.App.-Fort Worth 1974, writ ref'd n.r.e.) (when counterclaim pleaded for damages “in the sum of at least $900.00,” and plaintiff did not specially except, pleading supported award of $1,007.50 because “[t]he term ‘at least’ asserts the minimum and not the maximum amount sought”).

When a requested damage amount is preceded by the words “at least,” this is sufficient to support an award of a higher amount. Tex. Corrugated Box Corp. v. Ambrosia Group, Inc., No. 01-87-00389-CV, 1988 WL 75774, at *3 (Tex.App.-Houston [1st Dist.] July 26, 1988, no writ) (not designated for publication). Here, the damage amounts were “estimated to be but not limited to” the amounts listed. This defining language, rather than restricting the amount of recovery, supports an award of a higher amount. Accordingly, the damages awarded by the jury and entered in the judgment for “loss of use of real property” are appropriate under the live pleadings at the time of trial.

(3) Steitler’s Directed Verdict Against Solomon Was Not Error

At the close of evidence, Steitler was granted a directed verdict on Solomon’s claim for breach of contract, alleging that Steitler left large stumps above four inches high and removed trees marked for retention. The directed verdict was based on insufficient evidence of damages. Solomon claims the trial court erred in granting the directed verdict, because he introduced evidence of the purchase price of a chain saw used to cut tree stumps.

Review of a directed verdict is conducted under a legal sufficiency analysis of the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005). The evidence should be considered in the light most favorable to the party against whom the verdict was directed, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 667 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). A directed verdict is properly granted when “no evidence of probative force raises a fact issue on the material questions in the suit.” Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000).

Solomon points out that the appellate record contains some evidence of damages resulting from Steitler’s breach of contract based on failure to cut the tree stumps to an agreed height. This evidence comes from Jini Solomon, who testified that she purchased a chain saw for $237.06, which was used for cutting down stumps. Mrs. Solomon also testified that the chain saw was used “all over the property and not only to cut stumps” and that she still has the chain saw.

Evidence of damages resulting from the alleged breach is scant, at best. There is evidence that a chain saw was purchased to cut stumps and to use on the entire property. There is neither evidence creating a nexus between the act of breach (leaving stumps over four inches high) and the need to purchase the chain saw, nor evidence that the chain saw was used to cut stumps previously left too tall by Steit-ler. The chain saw was purchased merely to “cut stumps.” Without more, this evidence is not of sufficient probative force to raise a material fact issue on damage. See id.

Because Solomon failed to present evidence to raise a fact issue essential to his right of recovery, the trial court did not err in directing a verdict against him. See Latham v. Castillo, 972 S.W.2d 66, 67-68, 70-71 (Tex.1998). This point of error is overruled.

(h) Granting the Challenge for Cause Did Not Abuse the Trial Court’s Discretion

A person is disqualified to serve as a juror on a particular case if he or she has a bias or prejudice in favor of or against a party in the case. Tex. Gov’t Code Ann. § 62.105(4) (Vernon 2005). Thus, a veniremember may be statutorily disqualified because of a general inability to follow a trial court’s instructions regarding the law. See Hyundai Motor Co. v. Vasquez, 189 S.W.Bd 743, 751 (Tex.2006). If a prospective juror’s bias or prejudice for or against a party in a lawsuit is established as a matter of law, the trial court must disqualify that person from service. Malone v. Foster, 977 S.W.2d 562, 564 (Tex.1998).

A trial court’s decision regarding challenges for cause is reviewed using an abuse-of-discretion standard. Guerra v. Wal-Mart Stores, 943 S.W.2d 56, 59 (Tex.App.-San Antonio 1997, writ denied). Under an abuse-of-discretion standard, the court of appeals cannot overrule the trial court’s decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles. Beaumont Bank, N.A. v. Butter, 806 S.W.2d 223, 226 (Tex.1991). Moreover, the court of appeals cannot substitute its judgment for the trial court’s reasonable judgment even if it would have reached a contrary conclusion. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). The trial court does not abuse its discretion if some evidence reasonably supports the trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002).

Solomon claims the trial court erroneously granted Steitler’s challenge for cause of venireperson Evelyn Riepe because the court misinterpreted Riepe’s answer to a question posed by counsel for Steitler. The relevant exchange is brief:

[STEITLER’S COUNSEL]: You’re the only person that can answer there, Ms. Riepe. Based upon your personal contact with the Russells, the fact that you have sold them a house, that you’ve maintained a friendship with them over a number of years, can you tell me that wouldn’t affect your judgment in this case at all?
MS. RIEPE: It might.
THE COURT: Okay. I have to make the ultimate decision on these, and I need either a yes or a no. Possibly, maybe I could, maybe, okay, or whatever, I need a yes or no.
MS. RIEPE: Yes.
THE COURT: I’ll take up any challenges at the end of the voir dire.

The trial court also addressed the issue of venireperson Riepe at the conclusion of voir dire:

THE COURT: Does the Plaintiff Steitler have any challenges for cause?
[STEITLER’S COUNSEL]: We do, your Honor. We would challenge juror number seven, Evelyn Alice Riepe.
THE COURT: And it’s granted.
THE COURT: ... Does the Plaintiff Bullard have any challenges for cause?
[COUNSEL FOR BULLARD]: I missed his.
[STEITLER’S COUNSEL]: Seven and 28.
[COUNSEL FOR BULLARD]: Number six, which she admitted—
[DEFENSE COUNSEL]: Related.
[COUNSEL FOR BULLARD]: Yeah. She knew Mr. Russell, and she said that would affect her ability to sit on this case. She knew him, and she didn’t feel like that she could hear the evidence fairly. Number six.
THE COURT: Number six?
[COUNSEL FOR BULLARD]: Yes, sir.
THE COURT: The one I recall, her response was that she had been to a birthday party and some of that stuff, but now Ms. Riepe was the one that actually said she couldn’t, juror number seven.
[COUNSEL FOR BULLARD]: Okay. So you’re saying I’ve got the wrong juror.
THE COURT: I’ve got number six is not—
[COUNSEL FOR BULLARD]: Number six, I think. Number seven. I’ve got it circled, number seven, and it says that she could not be fair.

Solomon contends that, since Riepe answered a negative question in the affirmative, the trial court was presumably confused by the negative question. Solomon interprets this exchange as Riepe acknowledging that actually, “yes,” her friendship with Russell would not affect her judgment.

Steitler contends that Solomon failed to preserve this issue for appellate review, and even if the issue was preserved, any error was harmless. In general, voir dire objections must be timely and plainly presented. Vasquez, 189 S.W.3d at 759; see, e.g., Hallett v. Houston Nw. Med. Ctr., 689 S.W.2d 888, 889-90 (Tex.1985) (appellant waived trial court’s error in failing to excuse juror for cause by not informing court before exercise of peremptory challenges that counsel lacked sufficient peremptory challenges to remove all objectionable jurors); see also Tex.R.App. P. 33.1(a)(1) (timely objection to trial court required to preserve complaint for appeal).

We find only one civil case involving this precise issue. In Urista v. Bed, Bath & Beyond,, Inc., 245 S.W.3d 591 (Tex.App.Houston [1st Dist.] 2007, no pet.), the trial court announced the juror numbers of those who were being excused for cause. At no point in the proceedings did Urista’s attorney request that the trial court bring the contested juror forward for individual questioning, nor was there objection to the trial court’s ruling granting the challenge for cause of this juror. The Urista court determined that, in light of the failure to object when the trial court granted the challenge for cause, Urista waived his complaint on appeal. Id. at 596 (citing Tex. R.App. P. 33.1(a)(1)).

To preserve error, a timely, specific objection must be made. Tex.R.App. P. 33.1(a). A “timely” objection is one interposed at a point in the proceedings which gives the trial court the opportunity to cure any alleged error. Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex.App.-El Paso 1993, writ denied). In this case, there was an opportunity for Solomon’s attorney to object, or to have venireperson Riepe called forward for individual questioning in order to clarify the apparent confusion. Having failed to do so, we find that Solomon waived this point of error on appeal.

While we believe the failure to properly preserve error on appeal is determinative on this point, there is another reason why the point cannot be sustained. Solomon does not allege or attempt to demonstrate how any harm resulted by reason of the adverse ruling. It has long been the established rule in this state that, even though the challenge for cause was improperly sustained, no reversible error is presented unless appellant can show he or she was denied a trial by a fair and impartial jury. City of Hawkins v. E.B. Germany & Sons, 425 S.W.2d 23, 26 (Tex.Civ. App.-Tyler 1968, writ refd n.r.e.); see Gray v. State, 233 S.W.3d 295, 298 (Tex.Crim.App.2007). The record before us fails to show that Solomon’s attorney objected to any juror on the panel. It must, therefore, be presumed that Solomon was afforded a fair and impartial jury, and no harm could have resulted by reason of the court’s dismissal of venireperson Riepe. The trial court did not abuse its discretion in granting this challenge for cause.

(5) The Award of Appellate Attorneys’ Fees Was Impliedly Conditioned on a Successful Appeal

The jury assessed attorneys’ fees for the Bullards and Steitler. These awards were incorporated into the final judgment of the trial court. In addition to fees awarded for pretrial and trial work, Solomon was ordered to pay $7,500.00 to Steitler and $7,500.00 to the Bullards “if appealed to court of appeals.” Because these fees were conditioned only on an appeal being filed, and not expressly on Steitler and the Bullards’ successful appeals, Solomon contends the attorney fee awards are void.

The trial court may not grant an award of appellate attorney’s fees unless such award is conditioned on a successful appeal, as doing so could penalize a party for pursuing a meritorious appeal. Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 400 (Tex.App.-Dallas 2000, pet. denied). The Bullards and Steitler agree with this proposition, but claim the judgment of the trial court implicitly conditions the award of appellate attorney’s fees on a successful appeal. Spiller v. Spiller, 901 S.W.2d 553, 560 (Tex.App.-San Antonio 1995, no writ); see also Dorman v. Arnold, 932 S.W.2d 225, 229 (Tex.App.-Texarkana 1996, no writ) (where attorney’s fees are contingent on success, award should be read to implicitly require success).

This issue was addressed in Spiller, wherein appellate attorney’s fees were awarded, but were not explicitly made contingent on success. The court, having recognized that unconditional awards of appellate attorney’s fees may not be awarded, determined that it was implicit in the court’s judgment that the award of appellate attorney’s fees is conditioned on a successful appeal. Robinwood Bldg. & Dev. Co. v. Pettigrew, 737 S.W.2d 110, 112 (Tex.App.-Tyler 1987, no writ).

As in Spiller, the judgment before this Court does not explicitly condition the award of appellate attorney’s fees on the Bullards’ and Steitler’s success on appeal. We recognize, however, that the award implicitly requires success in order to recover the fees. Accordingly, this Court will reform the judgment to explicitly clarify that the award is conditional. CPS Int’l, Inc. v. Harris & Westmoreland, 784 S.W.2d 538, 544 (Tex.App.-Texarkana 1990, no writ). In CPS, this Court held that an unconditional award of appellate attorney’s fees is improper. When the trial court errs by failing to condition the award of appellate attorney’s fees, this error can be corrected by reforming the judgment without the necessity of sending the case back to the trial court. Id.

(6) Solomon Waived His Complaint Concerning the Issuance of the Injunction

The final judgment incorporated the jury’s damage findings as well as a permanent injunction issued by the trial court. Solomon challenges the trial court’s issuance of a permanent injunction as a violation of the one satisfaction rule, in light of damage awards for the same harm the injunction is intended to remedy. The Bullards claim this issue was not preserved for appellate review, and was thus waived. We agree.

To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a). “To preserve a point of error in a judgment, a party must inform the trial court of its objection by a motion to amend or correct the judgment, a motion for new trial, or some other similar method.” Homes v. Humphrey, 244 S.W.3d 570, 582 (Tex.App.-Beaumont 2008, pet. denied); Dal-Chrome Co. v. Brenntag Sw., Inc., 183 S.W.3d 133, 144 (Tex.App.-Dallas 2006, no pet.); see also Holland v. Hayden, 901 S.W.2d 763, 765 (Tex.App.-Houston [14th Dist.] 1995, writ denied) (motion for new trial is appropriate method for preserving error regarding alleged defect in final judgment).

The record before us provides only a brief glance at this issue, during the following exchange at the charge conference:

[DEFENSE COUNSEL]: I had mentioned the injunction provision, Judge, and you considered that?
THE COURT: There has been a submission by the Court concerning any future damages that the Court will consider as to an injunction against the defendants to have the water removed from their property.
Mr. Russell?
[COUNSEL FOR THE SOLO-MONS]: I have nothing further other than related to the charge.
THE COURT: Okay.

From this brief exchange, we see that no objection to the issuance of injunctive relief was made. There is no indication in the record that Solomon raised the issue of the propriety of injunctive relief or otherwise contested the grant of injunctive relief in the trial court. Moreover, this issue was not raised via motion to amend or correct the judgment or in a motion for new trial.

Solomon contends that, because the issue specifically complained of, the grant of a permanent injunction, was tried to the trial court, Solomon was relieved of the error preservation requirements set forth in Rule 33.1(a) of the Texas Rules of Appellate Procedure. Instead, Solomon relies on Rule 33.1(d), which provides that, in a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence — including a complaint that the damages found by the court are excessive or inadequate — may be made for the first time on appeal in the complaining party’s brief. Tex.R.App. P. 38.1(d).

The standard for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Wilson, 168 S.W.3d at 827. The evidence is legally sufficient if it “would enable reasonable and fair-minded people to differ in their conclusions.” Id. at 822. When considering a factual sufficiency challenge, the entirety of the evidence is weighed and considered, not just that evidence which supports the verdict. Ramsay v. Tex. Trading Co., 254 S.W.3d 620, 625 (Tex.App.-Texarkana 2008, pet. denied) (citing Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998)). The verdict will be set aside only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996).

Here, the issue on appeal is not framed in terms of the sufficiency of the evidence. Said another way, Solomon does not question the sufficiency of the evidence on which the permanent injunction is based. Rather, the issue is framed in terms of a legal question, i.e., whether the grant of injunctive relief in combination with monetary damages awarded violates the one satisfaction rule. This issue, akin to an election of remedies, was not raised in the trial court. Judgment error regarding questions of law must be raised in the trial court. See Holland v. Wal-Mart, 1 S.W.3d 91, 94-95 (Tex.1999) (Wal-Mart did not waive purely legal issue of whether attorney’s fees were recoverable under statute, as it specifically challenged the availability of attorney’s fees before the error resulted); Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 600 (Tex.App.-Amarillo 1995, no writ) (constitutional challenge to grant of temporary injunction not preserved when it was merely alleged in answer that temporary injunction would violate rights under United States and Texas Constitutions, with no specification of constitutional right infringed). Thus, to preserve a complaint that the judgment awards a double recovery, a party must raise that complaint in the trial court, either before judgment or in a post-judgment motion. Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184 (Tex.1998) (party preserved complaint for appellate review when it properly requested, before judgment, that trial court require opponent to elect its remedy). Here, no such objection was raised.

Solomon relies on Boudreaux v. Culver, No. 01-03-01247-CV, 2005 WL 1111237 (Tex.App.-Houston [1st Dist.] May 5, 2005, no pet.) (mem. op.), in support of his position that the issue of double recovery need not have been raised in the trial court. As in this case, Boudreaux involved a dispute between neighbors for the alleged negligent flooding of property. The judgment included an award of monetary damages for both temporary and permanent injuries based on the jury verdict as well as an award of permanent injunctive relief by the trial court, requiring Boudreaux to implement a drainage plan.

The sequence of events in Boudreaux was markedly different from those presented here. In Boudreaux, a motion requesting injunctive relief was filed in the trial court, to which Boudreaux filed a motion in opposition. Thereafter, the trial court granted the motion; a copy of the drainage plan was sent to Boudreaux only after the motion was granted. Boudreaux then filed a motion requesting an injunction hearing, after which the injunction remained in place. On appeal, the court concluded there was no evidentiary basis for the issuance of a permanent injunction ordering the implementation of the proposed drainage plan, which was never introduced into evidence. Moreover, the trial court erred in granting a permanent injunction in addition to monetary damages, as both addressed the same injury.

Boudreaux is distinguished from this case inasmuch as Boudreaux preserved, via post-trial pleadings and presumed attendance at an injunction hearing he requested, his complaints regarding the issuance of a permanent injunction. Here, the record is silent with regard to any complaint regarding the issuance of a permanent injunction. Because Solomon’s complaint of error in the judgment was not preserved, that complaint cannot be considered on appeal. Tex.R.App. P. 33.1(a); see also Homes, 244 S.W.3d at 582; Dal-Chrome Co., 183 S.W.3d at 144.

(7) Reconsidering Attorney’s Fees Is Not Necessary

In his final appellate point, Solomon urges a reconsideration of the issue of attorney’s fees for all parties, if Solomon prevails on any appellate point. Because Solomon’s appellate points have been overruled, this issue is moot. We, therefore, do not address the merits of this point.

For the reasons stated herein, we overrule each of Solomon’s appellate points and reform the judgment of the trial court to require recovery of appellate attorney’s fees to be expressly conditioned on a successful appeal.

As modified, the judgment of the trial court is affirmed.

      . George D. Solomon alone is named as defendant by the Bullards; George and Jini Solomon are named as defendants by Steitler. For ease of reading, further reference to George and Jini Solomon or to George Solomon will simply be "Solomon” or "the Solo-mons."

      . This rather complex civil matter originated as a simple breach of contract claim by Steit-ler, d/b/a North East Texas Land & Timber against the Solomons for failure to pay the balance due on a contract for work performed in the construction of roads, dams, levees, ponds, and lakes on approximately 400 acres of land owned by the Solomons. The Solo-mons filed a counterclaim for damages incurred as a result of improper removal of trees and stumps. The counterclaim further alleged that the oral contract between the parties called for Steitler to construct one lake, in particular, of approximately fifty-five surface acres. Once constructed, the lake covered approximately 100 surface acres.
      The Bullards own approximately 104 acres adjacent to and surrounded on three sides by the Solomons’ property. When the 100-acre lake was constructed, water backed up and flooded the Bullards’ adjoining property. The flooding of the Bullards’ property began in March 2006. The portion of the Bullards' property flooded by the Solomons’ lake varied between 14.65 acres and 18.2 acres, depending on rainfall. At the time of trial, 4.3 acres of the Bullards' property remained under water. The flooded property was planted with pine and ornamental trees, through which the Bullards had created a canopied lane on which to ride four-wheelers. The pine trees were planted as a retirement plan, and were anticipated to be mature and ready for harvest when Mr. Bullard reached retirement age. These trees were destroyed by the flooding.

      . The jury was asked to determine whether the negligence of Steitler and/or Solomon proximately caused the damages to the Bul-lards’ property, but did not find Steitler to have been negligent.

      . Section 41.004 of the Texas Civil Practice and Remedies Code provides, in relevant part:
      Factors Precluding Recovery
      (a) Except as provided by subsection (b), exemplary damages may be awarded only if damages other than nominal damages are awarded.
      (b) Exemplary damages may not be awarded to a claimant who elects to have his recovery multiplied under another statute.
      Tex. Civ. Prac. & Rem.Code Ann. § 41.004 (Vernon 2008).

      . The question of whether such damages are recoverable under this section of the Code is a question of statutory interpretation. Questions of statutory interpretation are questions of law reviewed de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006).

      . Total compensatory damages were $82,225.00. Solomon concedes that a finding of negligence with accompanying damages would have satisfied the independent tort requirement.

      . The issue of negligence was not fully submitted, as there was no request of the jury to determine what damages, if any, were proximately caused by said negligence. One could infer, based on the inclusion of the term "the damages,” that this question refers to the damages found by the jury in response to the preceding question.

      . The jury was instructed that "Gross negligence” means an act or omission by George Solomon,
      (a) which when viewed objectively from the standpoint of George Solomon at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to Larry and Tina Bullard; and

        (b) of which George Solomon has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of Larry and Tina Bullard.
      No objections were made to the charge of the court at trial or on appeal.

      . It would appear that, while the gross negligence inquiry was perhaps improperly predicated on an affirmative response to the inquiry regarding violation of the Texas Water Code, rather than an affirmative finding of negligence, this predicate serves to tie the gross negligence finding to violation of the Texas Water Code. In other words, the affirmative response to the gross negligence inquiry indicates the jury found Solomon to have been grossly negligent in violation of the Texas Water Code.

      . We are mindful of the fact that Dutsch-mann has been relied on in support of the proposition that a statutory violation cannot support a punitive damage award. In Dutschmann, the actual damage award and attorney's fee award were based on both breach of contract and retaliatory discharge (a statutory violation). The court upheld each of these awards based on the statutory violation alone, because no contract existed as a matter of law. The retaliatory discharge claim was based on Tex Rev.Civ. Stat. Ann. art. 5221k, § 5.05, repealed by Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 5, 1993 Tex. Gen. Laws 987, 1273. Section 7.01 of former Article 5221k set forth the type of relief available through civil actions. Under this statute, courts were permitted only to order equitable relief. Article 5221k did not allow for recovery for other or additional damages, including punitive damages. Therefore, the punitive damage award could not stand. Section 7.01 has been recodified in Tex. Labor Code Ann. § 21.2585 (Vernon 2006). See Act of May 14, 1993, 73rd Leg., R.S., ch. 276, § 7.01(e), 1993 Tex. Gen. Laws 1285, 1291 (effective September 1, 1993), amended by Act of April 25, 1995, 74th Leg., R.S., ch. 76, § 9.07(b), 1995 Tex. Gen. Laws 458, 625-26, amended by Act of May 26, 1999, 76th Leg., R.S., ch. 872, § 13, 1999 Tex. Gen. Laws 3556, 3562. This section of the Code provides much the same type of equitable relief as provided by former Article 5221k. However, Section 21.2585 permits the court, in addition to equitable relief, to award compensatory and punitive damages. In Dutschmann, there was no statutory or common-law basis for the recovery of punitive damages. The court's determination that there was no basis on which the punitive damage award could be upheld cannot therefore be interpreted as broadly as Solomon would propose. That is, Dutsch-mann is not properly interpreted to stand for the broad proposition that a statutory violation can never support a punitive damage award.

      .In the context of the anti-retaliation statute, which permits an employee to recover "reasonable damages” incurred as a result of the violation of Section 451.001 of the Texas Labor Code, the Texas Supreme Court has interpreted the term "reasonable damages” to include punitive damages. Azar Nut Co. v. Caille, 734 S.W.2d 667 (Tex.1987) (interpreting Tex Labor Code Ann. § 451.002 (Vernon 2006)). The court determined that "reasonable damages,” for purposes of this provision of the statute, are not limited to actual damages, but may include future damages, as well as exemplary or punitive damages. Caille, 734 S.W.2d at 669; see also In re Poly-America, L.P., 262 S.W.3d 337, 351 (Tex.2008) ("reasonable damages” not limited to actual damages).

      . On appeal, the court determined the finding of actual damages was not supported by the evidence (finding in excess of the damage amounts proved) and remanded the case to determine actual damages.

      . In support of this proposition, Planet Plows relies on Tennessee Gas Transmission Co. v. Moorhead, 405 S.W.2d 81 (Tex.Civ.App.-Beaumont 1966, writ ref'd n.r.e.). Moorhead involved a Water Code violation in which the defendant permanently diverted the flow of the West San Jacinto River by constructing an artificial channel and dam, without consent of the plaintiffs, causing plaintiffs to lose river frontage and leaving them with no land abutting the river. The jury awarded actual and exemplary damages. On appeal, defendants alleged that the pleadings were insufficient to support a claim for exemplary damages. The court found to the contrary, and asked the jury the following question:
      Do you find from a preponderance of the evidence that the Defendant through its agents, servants, and employees acted willfully and with malice towards Plaintiffs by the construction of the dam and channel? The pleadings supported the submission of the foregoing question, which the jury answered in the affirmative. Id. at 86.

      . The jury was instructed that "unreasonable” means obstructing the flow of surface water arbitrarily, negligently, wantonly, or without due regard for the adjoining property. Bily, 731 S.W.2d at 613.

      . As our sister court explained in Tijerina:

      A careful reading of Dutschmann reveals the opinion actually stands for the longstanding rule of law in Texas that a cause of action for breach of contract alone will not support an award of punitive damages, but that there must also be a finding of an independent tort. Indeed, numerous opinions from the Texas Supreme Court and the courts of appeals have cited Dutschmann for this statement of the law. However, when alleging a violation of the Texas Anti-Retaliation law, the Texas Supreme Court has held that where actual malice is shown, punitive damages may be assessed against an employer for violating Section 451.001. Section 451.002 permits an employee to recover “reasonable damages” incurred as a result of the violation of section 451.001, and that term has been interpreted to include punitive damages. Thus, inasmuch as the statute prohibiting retaliatory discharge contemplates punitive damages, WFM’s contention that Tijerina was required to plead and prove a separate tort in order to support her punitive damage award is meritless.
      979 S.W.2d at 780-81 (footnotes and citations omitted).

      . Solomon neither specially excepted to the pleadings nor filed a motion to remit damages on the basis that the pleadings do not support the amount of the jury award.

      . We do not find this issue to have been waived. Neither a formal exception to a trial court ruling or order nor a signed, separate order is required to preserve a complaint for appeal. Tex.R.App. P. 33.1(c). More precisely, a complaint that the trial court erred in granting a directed verdict may be reviewed on appeal, even if no exception is taken from the order granting the directed verdict. See, e.g., Robertson v. Morin, No. 03-08-00527-CV, 2009 WL 2902720, at ⅜7 (Tex.App.-Austin Aug. 27, 2009, no pet.) (mem. op.).

      . Under the one satisfaction rule, a plaintiff is entitled to only one recovery for any damages suffered. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex.2000) (rule applies when multiple defendants commit the same act as well as when defendants commit technically different acts that result in single injury). This rule is further designed to prevent double recovery for actual damages. Am. Baler Co. v. SRS Sys., Inc., 748 S.W.2d 243, 246 (Tex.App.-Houston [1st Dist.] 1988, writ denied).

      . The Bullards did not file in the trial court a motion requesting injunctive relief; rather, the request was included in the petition.

      . Tex.R.App. P. 33.1(a).

      . The motion in opposition to the issuance of a permanent injunction did not raise the double recovery issue (monetary damages for both temporary and permanent injuries were awarded) and Boudreaux therefore failed to preserve for appeal complaints about the damages awarded. Boudreaux, 2005 WL 1111237, at *4. Boudreaux preseived his complaint regarding the issuance of the permanent injunction.