author: JIM R. WRIGHT, Chief Justice.

text:
    Owen FUQUA and Norma Fuqua, Appellant, v. ONCOR ELECTRIC DELIVERY COMPANY, Appellee.
    No. 11-08-00117-CV.
    Court of Appeals of Texas, Eastland.
    April 1, 2010.

      Owen Fuqua, Early, pro se.
    Fred I. Franklin, Jr., Brownwood, for appellant.
    Mary H. Barkley, Sidney T. Lange, Ryan Logan Valdez, Cantey Hanger, LLP, Fort Worth, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

JIM R. WRIGHT, Chief Justice.

This is an appeal from a final judgment enjoining Owen Fuqua and Norma Fuqua from using an airstrip on their property because the airstrip crossed an easement owned by Oncor Electric Delivery Company. Owen, an experienced pilot, sometimes flew his small planes under Oncor’s high voltage power line when landing on his airstrip, which was perpendicular to the power line with one end extending under the power line and across the easement. The trial court entered a partial summary judgment, finding as a matter of law that Oncor had an easement across the Fuquas’ land, and a jury trial was conducted to determine if the airstrip violated that easement. The jury found that the airstrip constituted an “obstruction” to On-cor’s easement. The trial court subsequently entered a final judgment enjoining the Fuquas’ use of the airstrip and awarding attorney’s fees to Oncor. The Fuquas appeal. We affirm in part, vacate and remand in part, and reverse and render in part.

Norma Fuqua presents eight issues on appeal, and Owen Fuqua presents the same eight issues but also adds a ninth issue in his brief. In the first issue, the Fuquas contend that their land is not burdened by an easement to Oncor or its predecessors and that the alleged easement fails to describe the Fuquas’ land.

The trial court concluded as a matter of law that the Fuquas property was burdened by an express easement recorded in the Brown County deed records in volume 505, page 569. The document, which was recorded on May 15, 1963, reflects that an easement and right-of-way was granted to Oncor’s predecessor, Texas Power & Light Company (TP & L), by a previous record owner of the Fuquas’ land: Eula Byrd, individually and as independent executrix of the estate of W.S. Byrd. The easement was obtained for the Dublin to Brownwood transmission line and purports to cover “Tract No. 38-91.” Byrd, who also owned the tracts on both sides of the tract that the Fuquas now own, conveyed the following:

[A]n easement and right of way for an electric transmission and distribution line, consisting of variable numbers of wires, and all necessary or desirable appurtenances, and for a telephone line and appurtenances, over, across and upon Grantor’s land in the R.M. Ferguson Survey, Abstract No. 315, and Brown County School Land Survey, Abstract No. 41, Brown County, Texas, more particularly described in [three specific deeds].

The location of the easement was described as beginning at a specific point in the east boundary line of the property and then continuing in a southwesterly direction for 9,905 feet to a specific ending point in the east boundary line of a county road.

The Fuquas’ contention is that their tract, though included within the R.M. Ferguson Survey, Abstract No. 315, and the Brown County School Land Survey, Abstract No. 41, was not included within any of the three specific deeds provided for in the written easement but, rather, was located between the tracts specified in those deeds. They assert that the description is insufficient to meet the requirements of the Statute of Frauds. Tex. Bus. Com.Code Ann. 26.01 (Vernon 2009).

An express easement is an interest in land that is subject to the Statute of Frauds. Pick v. Bartel, 659 S.W.2d 636, 637 (Tex.1983). “To be sufficient, the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty.” Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex.1972). Whether an agreement falls within the Statute of Frauds is a question of law. West Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 264 (Tex.App.-Austin 2002, no pet.). If an easement, though uncertain, is susceptible to a reasonable construction as to its true intent and meaning, the easement satisfies the Statute of Frauds. Id. When construing a conveyance, the court does not look at terms in isolation; rather, it must give effect to all parts of the conveyance and construe the document as a whole. Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 789 (Tex.1995). Even if different parts of a deed appear contradictory or inconsistent, the court must strive to harmonize all of the parts and construe the deed to give effect to all of its provisions. Luckel v. White, 819 S.W.2d 459, 462 (Tex.1991).

The court in Compton v. Texas Southeastern Gas Co., 315 S.W.2d 345 (Tex.Civ.App.-Houston 1958, writ refd n.r.e.), was faced with facts similar to the case before this court. In Compton, a pipeline easement, which was obtained through condemnation proceedings, specifically included by reference to prior deeds two of three tracts owned by the landowner; however, it omitted the middle tract. 315 S.W.2d at 347-48. The court determined that the metes and bounds description of the right-of-way was sufficient and that the omitted tract was included in the general description clause. Id. at 349. The right-of-way was described as being “all that certain tract or parcel of land lying and being situated in Waller County, Texas, being part of the Justo Liendo 5 Leagues Grant, being part of [the two tracts specified by deeds].” Id. The Compton court rejected the landowner’s contention that the reference to the Justo Liendo 5 Leagues Grant should be ignored and full effect should be given to the description of the two specific tracts.

Likewise, because we must attempt to harmonize and give effect to all parts of the document granting the easement, we reject the Fuquas’ contention that we should ignore the general conveyance language and the description of the easement as beginning at a certain point and continuing for 9,905 feet to a certain ending point. The record established that the beginning and ending points described in the conveyance from Byrd to TP & L could be identified with reasonable certainty and that the distance between these two points was 9,905 feet. The record also established that this easement crossed the Fuquas’ property. We hold that the Statute of Frauds was satisfied and that the trial court properly determined as a matter of law that an express easement existed across the Fuquas’ land. The first issue is overruled.

In the second issue, the Fuquas contend that the injunction should be overturned because the easement is not in their chain of title and because they were not parties to the instrument, had no notice of the terms of the easement, and were good faith purchasers. The undisputed evidence shows that the above-ground, high voltage power line was erected in the early 1960s and was open and obvious; that the Fuquas’ predecessor in title conveyed an easement to Oncor’s predecessor in 1963; that, pursuant to a title opinion rendered at the time of the Fu-quas’ purchase, the Fuquas were notified of the existence and location in the county’s records of the easement to TP & L; and that the 1985 deed to the Fuquas provides that the sale was specifically “made and accepted subject to ... [existing easements for utility and water lines.” The second issue is overruled.

In the third issue, the Fuquas assert that the terms of the injunction are over-broad and unreasonable in scope, limiting the Fuquas’ use of their property beyond the boundaries of the easement. The trial court enjoined the Fuquas from utilizing, allowing others to utilize, and continuing to maintain “the Airstrip on or near the Easement on the Property, which necessarily includes the superjacent airspace extending horizontally for 200 feet beyond each end of the Airstrip and then outward and upward for 5,000 feet at a slope of 20 to 1.” Among the rights granted in the easement to TP & L were the following:

[T]he right to trim or cut down trees or shrubbery to the extent, in the sole judgment of the Company, necessary to prevent possible interference with the operation of said line or to remove possible hazard thereto, and the right to remove, or prevent the construction of, for a distance of 50 feet on each side of the actual center of said line, any or all buildings, structures or other obstructions which, in the sole judgment of the Company, may endanger or interfere with the efficiency, safety, or convenient operation of said line and its appurtenances ....
The right is reserved by Grantor to use the land within the 100 foot space above described for general agricultural and grazing purposes, provided such use shall not include the growing of trees thereon or any other use which might, in the sole judgment of the Company, interfere with the exercise by the Company of the rights hereby granted.

A trial court generally possesses great discretion in issuing an injunction. However, a trial court abuses its discretion by entering an injunction that is so broad as to either grant a plaintiff more relief than it is entitled to or enjoin a defendant from conducting lawful activities and exercising legal rights. Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871, 875 (1948); Fairfield Estates L.P. v. Griffin, 986 S.W.2d 719, 723 (Tex.App.-Eastland 1999, no pet.); see also Holubec v. Brandenberger, 111 S.W.3d 32, 39-40 (Tex.2003) (“injunctions must be narrowly drawn and precise”).

Oncor introduced testimony supporting its contention that the airstrip interfered with the exercise of Oncor’s rights as granted in the easement. One of the hazards associated with high voltage power lines is that the electricity jumps and can electrocute someone even though he is not touching the line. The power line crossing the Fuquas’ land is a 138,000-volt line. The lowest wire is 25-29 feet above the runway, and the small, shield wire is about 50 feet above the runway. The placement of the runway underneath the power line impeded the obstacle-free zone as determined by Oncor engineers using FAA guidelines. An Oncor engineer and line design manager detailed various safety risks involving the runway and testified that the runway constituted an obstruction to the safe and efficient use of the power line.

An experienced pilot and instructor who was familiar with the design and construction of airstrips near power plants and power lines testified that the Fuquas’ runway constituted an obstacle to the operation of the power line and was not safe. The FAA determined that the Fuquas’ airstrip was “objectionable” but that the FAA could not prevent the Fuquas from using the airstrip because the Fuquas designated the airport as a private-use airport. The FAA further advised, “The power line over the runway is a hazard and needs to be removed. Once removed or buried, we will remove the objectionable determination.”

The Fuquas presented evidence showing that their airport was not for public use and, therefore, that they need not comply with FAA regulations. They also presented evidence that their airstrip was used only by them, that flying under the power line is easier and safer than flying over it due to visibility issues, and that crop dusters regularly fly under power lines. Substantial evidence regarding Owen’s impeccable credentials as a pilot was introduced and was not controverted. The only time Owen flies underneath the power line is when landing from the north. He does not fly underneath the power line when taking off in either direction or when landing from the south. Owen testified that there are no regulations prohibiting taxiing, taking off, or landing underneath a power line. He also testified that, where the runway was located, there had been a road since at least 1981.

Though we are concerned about the safety issues involved in landing an airplane near a high voltage power line, we are constrained to address the issues presented in this case. We agree with the Fuquas that the terms of the injunction are overbroad. The trial court enjoined the Fuquas from using the airstrip on “or near” the easement. The trial court also imposed FAA regulations on the airstrip and the superjacent airspace even though the evidence showed that the Fuquas’ private-use airstrip was not subject to those FAA regulations. Oncor does not contend, nor does the record indicate, that the Fuquas were in violation of any applicable ordinance, statute, or FAA regulation. The Fuquas own the land, and Oncor has a 100-foot easement for its power lines. Pursuant to that easement, Oncor may remove any obstruction within the 100-foot easement. The terms of the easement do not prohibit the Fuquas from utilizing their land or the airspace outside the easement; however, the injunction does. The injunction goes so far as to extend the easement “horizontally for 200 feet beyond” the opposite end of the airstrip, which is approximately 2,000 feet from the power line, and “then outward and upward for 5,000 feet at a slope of 20 to 1.” We hold that the trial court abused its discretion by including the overly broad language “or near” in the injunction and by imposing inapplicable FAA guidelines to effectively extend the boundaries of the easement. The third issue is sustained.

In the fourth issue, the Fuquas challenge the factual sufficiency of the evidence in support of the jury’s finding that the airstrip constituted “an obstruction as that term is used in the easement.” To address this issue, we must consider and weigh all of the evidence and determine whether the evidence in support of the finding is so weak as to be clearly wrong and unjust or whether the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). In addressing this issue, we must keep in mind that the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.2005).

The record shows that the evidence on this issue was controverted. Oncor offered testimony that the airstrip itself constituted an obstruction. Oncor’s transmission engineering line design manager testified that the asphalt airstrip itself was objectionable because Oncor’s trucks, while driving on the easement, would have to cross the airstrip and would damage the asphalt runway thereby creating a safety hazard. Oncor also offered testimony that the airstrip as defined in the jury charge, meaning the runway and its usage, constituted an obstruction to the operation of the power line. The Fuquas offered testimony indicating that the airstrip did not constitute a building, structure, or obstruction and did not interfere with the power lines. As the judge of the credibility of the witnesses, the jury was free to believe the testimony that the airstrip constituted an obstruction. After reviewing all of the evidence, we cannot hold that the evidence is insufficient to support the finding or that the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The fourth issue is overruled.

In the fifth issue, the Fuquas assert that the trial court erred in charging the jury that the term “airstrip” as used in the jury charge includes both the runway “and its usage.” We must review an allegation of jury charge error for an abuse of discretion. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). In its petition, Oncor sought to enjoin, among other things, the use of the airstrip. Although the terms of the easement in this case did not specifically limit the landowner’s “usage” of the property, it has been held pursuant to common law that a landowner has no right to “use” his property in such a way as to interfere with an easement holder’s reasonable use and enjoyment of the easement. Still v. Eastman Chem. Co., 170 S.W.3d 851, 854-55 (Tex.App.-Texarkana 2005, no pet.). We cannot hold that the trial court acted arbitrarily without reference to any guiding rules or principles when it charged the jury consistent with the petition and common law. The fifth issue is overruled.

In the sixth issue, the Fuquas complain that the trial court erred in refusing to instruct the jury on the issue of the Fuquas’ lack of notice of the terms of the easement. In the seventh issue, the Fuquas argue that the trial court erred in refusing to admit evidence regarding their lack of notice of the terms of the easement. The Fuquas assert that they were good faith, or bona fide, purchasers because they did not have notice of the terms of the easement.

To be a bona fide purchase, the purchase must have been made for valuable consideration and without notice, either actual or constructive, of the adverse claim. Cleaver v. Cundiff, 203 S.W.3d 373, 378 (Tex.App.-Eastland 2006, no pet.) (citing F.J. Harrison & Co. v. Boring & Kennard, 44 Tex. 255, 263 (1875)). Notice is sufficient if it would lead an ordinarily prudent man to inquire into the matter. Id. Owen testified that he knew the power fines were there at the time he purchased the property in the mid-1980s. The evidence established that the power fine was open and obvious, that the Fuquas were aware of the high voltage power fine and poles crossing the property when they purchased it, and that the deed to the Fuquas was expressly made subject to existing utility easements. The Fuquas’ alleged lack of notice of the specific terms of the easement does not alter the fact that they had notice of the existence of the easement and, therefore, could not be bona fide purchasers. The trial court did not err in refusing to admit evidence or instruct the jury on the issue of the Fuquas’ notice of the specific terms of the easement. The sixth and seventh issues are overruled.

In the eighth issue, the Fuquas assert that Oncor waived the right to attorney’s fees by failing to submit them to the jury for determination. The record shows that Oncor requested and the trial court awarded attorney’s fees incurred from the inception of the suit until the date of the order granting Oncor’s motion for partial summary judgment. After conducting a post-verdict hearing on the contested issue of attorney’s fees that had been incurred prior to the summary judgment order, the trial court in its final judgment awarded reasonable and necessary attorney’s fees for that time period in the amount of $59,755.75 pursuant to Tex. Civ. Peac. & Rem.Code Ann. ch. 37 (Vernon 2008). Section 37.009 provides that “the court may award costs and reasonable and necessary attorney’s fees as are equitable and just” in a declaratory judgment proceeding. Pursuant to Section 37.009, the judge is to determine whether an award of attorney’s fees is equitable and just; however, even when declaratory relief has been determined by summary judgment, the issue of whether attorney’s fees are reasonable and necessary is a question of fact for the jury to determine when the jury is the trier of fact. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex.2000); Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex.1998).

The record in this case shows not only that Oncor failed to request that the issue be submitted to the jury but also that Oncor affirmatively requested that the judge, rather than the jury, determine the issue of the reasonableness and necessity of attorney’s fees. The Fuquas objected, correctly asserting that the reasonableness and necessity of attorney’s fees was an issue of fact for the jury. In accordance with Oncor’s request, the issue was not submitted to the jury. Under these circumstances, we agree with the Fuquas that Oncor has waived its claim to the recovery of attorney’s fees. See Tex.R. Civ. P. 279 (which provides that, upon appeal, all independent grounds of recovery “not conclusively established under the evidence and no element of which is submitted or requested are waived”); University of Tex. at Austin v. Ables, 914 S.W.2d 712, 717 (Tex.App.-Austin 1996, no writ). The Fuquas’ eighth issue is sustained.

In the ninth issue, Owen complains of error in the denial of his motion to recuse or disqualify Judge Stephen Ellis. See Tex.R. Civ. P. 18b. We must review the denial for an abuse of discretion. Tex.R. Civ. P. 18a(f). The record shows that William Bell had written the title opinion that was issued when the Fu-quas purchased the property in 1985. When this fact came to light during a hearing on the temporary injunction, Judge Ellis stopped the proceeding and notified all parties that he had been Bell’s law partner but that he had not been involved in the matter and that he had no knowledge of it. At that time, Judge Ellis offered to “recuse” himself from serving in this case. Judge Ellis asked in open court if there was an issue with him serving as the judge in this case. Owen, who was representing himself pro se and was on the witness stand at the time, did not voice any objection. The attorneys for Oncor and Norma affirmatively stated that they had no objection. However, two months later — after Judge Ellis had issued a temporary injunction against the Fuquas— Owen filed a motion for disqualification and, alternatively, recusal of Judge Ellis.

The matter was assigned to and heard by Judge John G. Hyde. Judge Hyde conducted a hearing and denied Owen’s motion. Owen contends that Judge Ellis was disqualified pursuant to Rule 18b(l). He does not contend that Judge Ellis was constitutionally disqualified pursuant to Tex. Const, art. V, § 11. Rule 18b(l) provides in part that judges shall disqualify themselves in all proceedings in which “(a) they have served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced law served during such association as a lawyer concerning the matter; or (b) they know that, individually or as a fiduciary, they have an interest in the subject matter in controversy.” The record does not support the contention that either Bell or Judge Ellis had any direct interest in the subject matter of this suit. Furthermore, according to the record from the hearing, Bell did not serve as counsel to a party to this suit but, rather, represented the bank that conveyed the property to the Fuquas. See In re O’Connor, 92 S.W.3d 446, 448-49 (Tex.2002). Nor, is the matter in controversy in this case the same as that at issue in 1985. See id.

Owen contends that Judge Ellis should have recused himself pursuant to Rule 18b(2) because Bell was a material witness concerning the proceeding and because Judge Ellis had an interest in the proceeding due to a possible allegation of malpractice on the part of Bell. The record does not show that Bell was a material witness, that Bell committed malpractice, or that Judge Ellis had any interest in the subject matter of the proceedings at issue in this ease. We find no abuse of discretion in the denial of Owen’s motion for disqualification or recusal. The ninth issue is overruled.

The judgment of the trial court is vacated insofar as it permanently enjoined the Fuquas from maintaining, utilizing, and allowing others to utilize the airstrip “near the Easement on the Property, which necessarily includes the superjacent airspace extending horizontally for 200 feet beyond each end of the Airstrip and then outward and upward for 5,000 feet at a slope of 20 to 1,” and the cause is remanded to the trial court for the entry of a permanent injunction in accord with this court’s opinion. The judgment of the trial court is reversed with respect to the award of attorney’s fees to Oncor, and we render judgment that Oncor take nothing on its claim for attorney’s fees. In all other things, the judgment of the trial court is affirmed.

      . See 14 C.F.R. §§ 77.21(c), 77.23, 77.25.

      . The parties note that Tex. Health & Safety Code Ann §§ 752.004-.005 (Vernon 2003) restrict activities within six feet of a high voltage overhead line. Nothing in the record suggests that the Fuquas ever came within six feet of the power line.


source: Caselaw Access Project

author: JOHN G. HILL, Justice.

license: Public Domain

text:
    STATE of Texas, Appellant, v. Christopher Robert CLARK, Appellee.
    No. 11-09-00042-CR.
    Court of Appeals of Texas, Eastland.
    April 8, 2010.

      James Eidson, District Attorney, Patricia Dyer, Assistant, Criminal District Attorney’s Office, Abilene, for appellant.
    ■ Brandon J. Logan, Cade Weston Browning, Browning, Eyssen & Logan, PC, Abilene, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and HILL, J.

      . John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

   OPINION

JOHN G. HILL, Justice.

The State of Texas appeals from the granting of Christopher Robert Clark’s motion to suppress evidence, which he presented in the underlying case in which he is charged with the offense of driving while intoxicated. In its sole point, the State urges that the trial court abused its discretion in granting Clark’s motion to suppress. We reverse the order granting Clark’s motion to suppress and remand for further proceedings consistent with this opinion.

We review the trial court’s ruling on a motion to suppress evidence for an abuse of discretion. Swain v. State, 181 S.W.3d 359, 365 (Tex.Crim.App.2005). We review the evidence in the light most favorable to the trial court’s ruling. Id. When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court’s ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). We then review the trial court’s legal ruling de novo unless its explicit fact findings that are supported by the record are also disposi-tive of the legal ruling. Id. We will sustain the trial court’s decision if it is correct on any theory of law applicable to the case. Swain, 181 S.W.3d at 365.

Clark contended in his motion to suppress that the arresting officer violated his constitutional and statutory rights, urging that he did not violate any law that would cause reasonable suspicion on the part of the officer to justify the officer in stopping and detaining him. The arresting officer, Sergeant Eric Katona of the Abilene Police Department, testified at the hearing on Clark’s motion to suppress that he and Sergeant McKeever were on patrol at about 3:20 a.m. when they heard what sounded like a very loud screeching of tires. He said that, within two blocks, he observed a pickup that was not moving except for the back tires, which were spinning and producing a huge cloud of black smoke and a very loud noise. He indicated the driver was forcing the engine to “rev” and forcing the tires to move without going anywhere. Sergeant Katona related that the driver was forcing the accelerator hard enough to continue to screech the tires even after the vehicle was moving, creating a very loud noise. Sergeant Ka-tona indicated that the immediate area included residential homes and McMurry University. He stated that it was not a particularly loud area.

Sergeant Katona testified that, when he told Clark that he was stopping him because of the screeching tires and smoke coming off the back of the vehicle, Clark told him he knew it was an exhibition of acceleration. Sergeant Katona acknowledged that Clark was not engaged in a race. He insisted that he pulled Clark over for “the disturbance of a motor vehicle.” Sergeant Katona agreed that, in his report, he stated, “He was doing an exhibition of acceleration with his tires. And the tires squealing on the ‘payment’ [sic] was making the smoke and the noise.”

The trial court entered the following findings of fact and conclusions of law:

FINDINGS OF FACT
1. The Court finds that Officer Kato-na stopped Christopher Clark’s vehicle for exhibition of acceleration.
2. The Court finds that Christopher Clark’s vehicle was not in competition or racing any other vehicle.
3. The Court finds that the traffic stop was conducted in a business, residential, and college dormitory area.
4. The Court finds that the traffic stop was in a public place.
5. The Court finds that the screeching of tires is what drew Officer Kato-na’s attention to Christopher Clark’s vehicle
CONCLUSIONS OF LAW
1. The reason for the stop was exhibition of acceleration. Texas Transportation Code 545.420.
2. Texas Transportation Code 545.420, as amended, no longer includes exhibition of acceleration unless it is in competition with another motor vehicle.
3. The Court ruled that the stop was not reasonable under Texas Transportation Code 545.420.
4. The Court ruled that exhibition of acceleration, Texas Transportation Code 545.420, is not the same as disturbance by motor vehicle, Abilene Municipal Code Section 18-153.

The trial court took judicial notice of Section 18-153 of the Abilene Municipal Code. It provides:

No person, in a public place or public way, shall race the motor of any motor vehicle, needlessly bringing to a sudden start or stop any motor vehicle, blow any horn of any motor vehicle, drive in any manner calculated to draw immediate attention to a motor vehicle or cause to be made any loud or unseemly noise, nuisance or disturbances, whereby the quiet, safety or good order of a public place, premises or neighborhood area is disturbed.

Abilene, Tex., Municipal Code art. VII, § 18-153 (2003).

Objectively, it was reasonable for Sergeant Katona to stop Clark because he appeared to be in violation of Section 18-153 of the Abilene Municipal Code. The trial court apparently granted the motion on the basis that Sergeant Katona thought he was stopping Clark for exhibition of vehicle speed or acceleration in violation of Section 545.420 of the Texas Transportation Code when, in fact, Clark was not in violation of that section because he was not racing anyone. The section had previously been amended to provide that an exhibition of vehicle speed or acceleration is only a violation of that section when done in connection with a drag race. Tex. Transp. Code Ann. § 545.4220 (Vernon Supp.2009).

We hold that the trial court erred in granting Clark’s motion to suppress because the evidence before the court showed a reasonable basis for Sergeant Katona to suspect Clark of violating Section 18-153 of the Abilene Municipal Code. There need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001); Singleton v. State, 91 S.W.3d 342, 346 (Tex.App.-Texarkana 2002, no pet.). Consequently, any subjective intent on the part of Sergeant Katona to stop Clark for the violation of the state statute that was no longer applicable is irrelevant.

Clark first argues that Section 18-153 of the Abilene Municipal Code is unconstitutionally void for vagueness. He did not present this challenge to the constitutionality of Section 18-153 at the trial court level. Because Section 18-153 of the Abilene Municipal Code constitutes the objective basis for the stop of Clark, not the basis for his prosecution, his claim as to its constitutionality was not preserved and may not be presented for the first time on appeal. See Webb v. State, 899 S.W.2d 814, 817-19 (Tex.App.-Waco 1995, pet. refd).

Clark also urges that Sergeant Ka-tona did not present specific, articulable facts showing that he violated Section 18-153 of the Abilene Municipal Code. We hold that the facts stated by Sergeant Katona, which we have previously set forth, constitute specific, articulable facts sufficient to show a reasonable basis for the belief that Clark was violating Section 18-153 of the Abilene Municipal Code just prior to being stopped by Sergeant Kato-na.

In urging that the facts given by Sergeant Katona are not specific, articulable facts sufficient to show a reasonable basis for the belief that Clark was violating Section 18-153 of the Abilene Municipal Code, Clark relies on the case of Ford v. State, 158 S.W.3d 488, 493-94 (Tex.Crim.App.2005). We find that case to be distinguishable. In Ford, the only evidence offered in support of a stop was that, in the police officer’s judgment, Ford was following another car too closely in violation of Section 545.062(a) of the Texas Transportation Code. Id. at 494. That section provides:

An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle, or veering into another vehicle, object, or person on or near the highway.

Tex. Transp. Code Ann. § 545.062(a) (Vernon 1999).

Given the fact that the officer did not testify about the distance Ford was behind the preceding vehicle or offer any evidence of the speed of the vehicles, the traffic, or conditions of the highway, the appellate court had no reasonable basis upon which it could determine that the officer’s suspicion that Ford was in violation of this statute was correct. In the case at bar, the evidence established that there was a very loud screeching of tires while Clark was “revving his engine” so as to cause his tires, but not his vehicle, to move and that his vehicle continued creating a very loud noise after it started moving because Clark was forcing the accelerator hard enough to continue to screech the tires. The evidence also established that all of this occurred at about 3:20 a.m. in an immediate area that included residential homes. This constituted sufficiently specific, articulable facts by which we are able to determine that there was a reasonable basis upon which to stop Clark. Clark notes that there is no evidence that anyone was actually disturbed. However, it would have been reasonable for Sergeant Katona to suspect that the sound of a revving engine and a very loud screeching of tires would be disturbing to nearby residents when the sound is made at 3:20 a.m. in a residential neighborhood. Having concluded that the trial court abused its discretion in granting Clark’s motion to suppress, we sustain the State’s sole point on appeal.

We reverse the trial court’s order granting Clark’s motion to suppress and remand for further proceedings consistent with this opinion.


author: BOB McCOY, Justice.

text:
    Robert ROMO, Appellant, v. The STATE of Texas, State.
    Nos. 2-09-153-CR, 2-09-154-CR, 2-09-155-CR.
    Court of Appeals of Texas, Fort Worth.
    April 8, 2010.
    Discretionary Review Refused Oct. 6, 2010.

      Law Offices of Robert D. Wilson, PC and Robert D. Wilson, Dallas, TX, for Appellant.
    Paul Johnson, Criminal District Atty., John A. Stride, Asst. Criminal District Atty. and Chief of the Appellate Section, Catherine Luft, Richard E. Jackson, and Justin Jones, Asst. Criminal District At-tys., Denton, TX, for State.
    Panel: DAUPHINOT, GARDNER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

In four points, Appellant Robert Romo appeals his three convictions for possession of a controlled substance in a drug-free zone. We affirm.

II. Factual and Procedural History

In 2007, during the third week of January, Carrollton Police narcotics investigator Travis Putman received a tip from a confidential informant that Romo was dealing a large volume of marihuana at a specific house, 2024 Topaz Drive, Carrollton, Texas, and that Romo drove a white Honda Accord. Investigator Putman ran Romo’s name through the Texas driver’s license database, and it revealed that 2024 Topaz Drive was Romo’s home address.

On February 5, 2007, Investigator Put-man drove by 2024 Topaz Drive, saw a white Honda Accord in the driveway, and ran the Accord’s license plate — it was registered to Romo. The next day, he, Carroll-ton Police Officer King, and Rocky (a trained narcotics detecting canine) went to the house around 6 a.m. intending to conduct a canine drug sniff; they left when they saw vehicles there, including the white Honda Accord. They returned around 10:30 a.m., noted that the vehicles were gone, and approached the house through the public alleyway. After Rocky alerted twice to the presence of an illegal drug odor from the house’s backyard fence and the officers saw what appeared to be marihuana in garbage bags through the slats in the fence, Investigator Putman sought a search warrant. Other officers arrived at the scene while Investigator Putman obtained the warrant; when Romo returned to the house, these officers detained him as soon as the warrant was issued.

The pertinent portion of the affidavit submitted in support of the warrant application states:

On or about the third week of January 2007, your Affiant received information from an informant who had not yet been made credible that Robert Romo was a large volume marihuana dealer that lived at 2024 Topaz Drive, in Carrollton. The informant also advised your Affiant that Robert Romo drove a white Honda Accord.
Your Affiant searched the Texas Department of Public Safety records, and located a Robert Earl Romo, with a date of birth of 11-26-1970, and an address of 2024 Topaz Drive, Carrollton, Texas.
On February 5th, 2007, your Affiant drove by the suspect location, and observed a white Honda Accord, with Texas registration “J43-FZF”, parked in the driveway located behind the suspect location. The registration showed the vehicle to be registered to a Robert Romo.
On February 6th, 2007, at approximately 1030, your Affiant, Canine Officer King # 734, and Canine Rocky, a trained narcotics detecting canine, went to the suspect location. Canine Rocky conducted a free air sniff of the garage door and backyard fence of the suspect location. The suspect location’s driveway, garage door, and backyard fence is located in the rear of the residence, is accessible by a public alleyway, and is not enclosed by any fencing or barrier that would prevent access by the public. Canine Rocky alerted two separate times to the presence of the odor of an illegal drug on the wooden fence’s gate, approximately two feet south of where the wooden fence connects to the garage. After the second alert, your Affiant and Officer King looked through a hole in the wooden fence at the location where Canine Rocky alerted. The hole that King and your Affiant looked through was there prior to the Officer[s] arrival, and did not require the Officers to manipulate it in any manner in order for them to see in the backyard. Both King and your Affiant observed several black trash bags in the backyard of the suspect place. The trash bags, which were approximately one to four feet from the fence, all appeared to be full. King and your Affiant observed a green leafy substance sticking out of one of the bags. Both King and your Affiant observed that the green leafy substance had the same color, consistency, and texture of marihuana.

Among other items admitted in evidence, the trial court admitted photographs of 2024 Topaz Drive’s driveway, of the backyard fence, and of the view through the fence slats of black garbage bags — one of which had what Investigator Putman described as a hard brick form of marihuana poking out of it.

After they obtained the search warrant, the officers found four trash bags containing approximately eighty pounds of marihuana — a street value of approximately $70,000 — -in Romo’s backyard. In Romo’s garage, they found, among other things, a handgun, a plastic vacuum sealer machine, a digital scale, a grinder, a pipe, a psilocy-bin mushroom, and more marihuana. In Romo’s house, they found, among other things, methamphetamine, marihuana, and plastic baggies.

Romo was charged with possession of the following controlled substances within 1,000 feet of a middle school: psilocin (a mushroom), in the amount of more than one gram but less than four grams; methamphetamine, in the amount of less than one gram; and marihuana, in the amount of 2,000 pounds or less but more than fifty pounds.

Romo moved to suppress this evidence, and the trial court denied the motion. A jury found Romo guilty of all three charges and sentenced him to seven years’ confinement and a $10,000 fine for possession of the psilocin; five years’ confinement and a $2,000 fine for possession of the methamphetamine; and twenty years’ confinement and a $20,000 fine for possession of the marihuana, to run concurrently. This appeal followed.

III. Suppression

In his first two points, Romo complains that the trial court erred by overruling his motion to suppress because the drugs (1) “were the fruits of and seized as a direct result of the search” in violation of the Fourth and Fourteenth Amendments and (2) were seized in violation of article 1, section 9 of the Texas constitution and article 38.23 of the code of criminal procedure. In his third point, he complains that the trial court erred by overruling his motion to suppress because the search warrant’s supporting affidavit failed to state probable cause and to meet the requirements for a valid affidavit under the code of criminal procedure and the United States and Texas Constitutions.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007); State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact, even if the trial court’s determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.Crim.App.2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002). But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court’s rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson, 68 S.W.3d at 652-53.

Stated another way, when reviewing the trial court’s ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818-19. We then review the trial court’s legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 818.

When the record is silent on the reasons for the trial court’s ruling, or when there are no explicit fact findings and neither party timely requested findings and conclusions from the trial court, we imply the necessary fact findings that would support the trial court’s ruling if the evidence, viewed in the light most favorable to the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008); see Wiede, 214 S.W.3d at 25. We then review the trial court’s legal ruling de novo unless the implied fact findings supported by the record are also dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.

We must uphold the trial court’s ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App.2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003), cert. denied, 541 U.S. 974, 124 S.Ct. 1883, 158 L.Ed.2d 469 (2004).

In assessing the sufficiency of an affidavit for an arrest or a search warrant, the reviewing court is limited to the four corners of the affidavit. Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App.), cert. denied, 543 U.S. 944, 125 S.Ct. 358, 160 L.Ed.2d 256 (2004); Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 678 (1993). The reviewing court should interpret the affidavit in a common sense and realistic manner, recognizing that the magistrate was permitted to draw reasonable inferences. Davis v. State, 202 S.W.3d 149, 154 (Tex.Crim.App.2006); Hankins, 132 S.W.3d at 388. Unconstitutional portions of a search warrant do not necessarily invalidate the entire warrant or taint all of the evidence seized pursuant to the warrant. Massey v. State, 933 S.W.2d 141, 148 (Tex.Crim.App.1996). If only certain portions of a search warrant are invalid, only the evidence gathered pursuant to the offending portions is tainted. Id.

B. Analysis

The essence of Romo’s argument in his first two points is that an illegal search occurred when the drug dog sniffed his garage and backyard fence and the police officers peered into his backyard through an opening in the fence and saw what appeared to be marihuana. He concedes that an illegal search did not occur when the police officers “first looked at his garage” because that area “was obviously open for visual inspection from the alley.” Instead, he complains that the marihuana in the backyard was not knowingly exposed to public view, and that “[u]nder any analysis, an illegal search took place and the resulting information used in the affidavit to secure a search warrant later that same morning was obviously the fruits of the illegal search.”

The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const, amend. IV; Wiede, 214 S.W.3d at 24. To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.Crim.App.), cert. denied, — U.S. —, 130 S.Ct. 1015, 175 L.Ed.2d 622 (2009). A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 672-73; Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005).

Whether a search is reasonable is a question of law that we review de novo. Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.2004). Reasonableness is measured by examining the totality of the circumstances. Id. at 63. It requires a balancing of the public interest and the individual’s right to be free from arbitrary detentions and intrusions. Id. A search conducted without a warrant is per se unreasonable unless it falls within one of the “specifically defined and well-established” exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.), cert. denied, 540 U.S. 1004, 124 S.Ct. 536, 157 L.Ed.2d 410 (2003); see Best, 118 S.W.3d at 862.

However, before we reach reasonableness, we must first determine whether a search even occurred. Our sister court has held that a dog sniff of a front door is not a search. See Rodriguez, 106 S.W.3d at 228-29 (holding that appellant did not have a reasonable expectation of privacy outside his home where the drug dog sniffed because the front door area was not enclosed, it was used as a main entrance to the house, and it was not protected from observation by passersby); see also Smith v. State, No. 01-02-00503-CR, 2004 WL 213395, at *3 (Tex.App.-Houston [1st Dist.] Feb. 5, 2004, pet. ref'd) (mem. op., not designated for publication) (holding that appellant’s privacy interests under the U.S. and Texas Constitutions were not invaded when officer walked up appellant’s driveway to allow drug dog to sniff appellant’s garage door), cert. denied, 544 U.S. 961, 125 S.Ct. 1726, 161 L.Ed.2d 602 (2005). The Rodñguez court reasoned that because a dog sniff discloses only the presence or absence of narcotics, in which there is no reasonable expectation of privacy, and does not expose noncontraband items, activity, or information that would otherwise remain hidden from public view, it does not intrude on a legitimate expectation of privacy and is thus not a “search” for Fourth Amendment purposes. 106 S.W.3d at 228-29; see also Porter v. State, 93 S.W.3d 342, 346-47 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (holding same). We agree with this reasoning and conclude that Rocky’s sniffs of the garage door and the backyard fence were not searches under the Fourth Amendment or the Texas constitution because he sniffed areas that were not protected from observation by passersby and because Romo had no reasonable expectation of privacy in the odor of marihuana coming from his backyard.

Furthermore, we need not address whether the officers peeking through the fence after Rocky alerted twice constituted a search, because probable cause to support the issuance of a search warrant exists when the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex.Crim.App.1986). An alert by a drug-detection dog outside a person’s residence is sufficient to provide probable cause to search the site. See Stauffer v. State, No. 14-03-00193-CR, 2004 WL 253520, at *3 (Tex.App.Houston [14th Dist.] Feb. 12, 2004, pet. ref'd) (not designated for publication) (relying on Rodriguez and holding that drug dog’s alert outside the garage area of the home provided probable cause to search), cert. denied, 543 U.S. 1151, 125 S.Ct. 1326, 161 L.Ed.2d 114 (2005); Smith, 2004 WL 213395, at *5 (“Because the drug-dog’s positive alert for drugs was alone sufficient to establish probable cause for the search, we need not address the other allegations stated in the affidavit.”) (citation omitted); Porter v. State, Nos. 14-01-00687-CR, 14-01-00688-CR, 2002 WL 1488983, at *3 (Tex.App.-Houston [14th Dist.] July 11, 2002, pet. refd) (not designated for publication) (reciting that a canine sniff is not a search under the Fourth Amendment or under article I, section 9 of the Texas constitution, and that a trained canine’s alert is sufficient to provide probable cause for a search). The affidavit in support of the search warrant specifically set out that Rocky alerted two separate times to the backyard fence. Therefore, without considering Investigator Putman’s statements about seeing the marihuana through the fence slats, or whether the tip provided by the confidential informant was “stale” because it was over a week old, the affidavit contained sufficient information to support a determination of probable cause. See Massey, 933 S.W.2d at 148.

Additionally, besides reporting Rocky’s two alerts, the affidavit was supported by other facts recited prior to Investigator Putman’s statements about what he saw by looking through the fence slats. That is, Investigator Putman recited that, during the third week of January 2007, a confidential informant gave him information that Romo was a large volume marihuana dealer that lived at 2024 Topaz Drive in Carrollton and drove a white Honda Accord. He then verified these facts before he and Officer King approached the house and Rocky sniffed the fence. See Richardson v. State, No. 01-04-00833-CR, 2006 WL 488661, at *4-5 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (mem. op., not designated for publication) (concluding that the affidavit alleged sufficient information for probable cause to justify issuing warrant when it was based on informant’s tip, subsequent corroboration of the information in the tip, and drug dog alerted at the front and back doors of appellant’s home); Blackburn v. State, No. 02-02-00158-CR, 2003 WL 22311253, at *2-3 (Tex.App.-Fort Worth Oct. 9, 2003, pet. ref'd) (mem. op., not designated for publication) (concluding that affidavit alleged sufficient information for probable cause to justify issuing warrant when it was based on informant’s tip, subsequent corroboration of the information in the tip, and drug dog alerted to appellant’s storage unit). We overrule Romo’s first three points.

IV. Jury Charge

In his final point, Romo argues that the trial court erred by overruling his request for special issues to be presented to the jury. Specifically, he contends that the trial court should have included the following special issues to the jury: “(1) Was the Carrollton Police Department on the residence property of Robert Romo prior to the judge signing the warrant?” and “(2) Do you find the evidence seized on the residence property of Robert Romo was the result of the search that started without a warrant?” The State responds that the requested issues were improper because there was no disputed fact issue for the jury to determine.

Although Romo did not specifically request an article 38.23 instruction, this section governs our analysis. See Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon 2005); see also Oursbourn v. State, 259 S.W.3d 159, 181 & n. 85 (Tex.Crim.App.2008) (requiring 38.23 instruction as law applicable to the case if there is a disputed fact issue). Under article 38.23, no evidence obtained in violation of the federal or state constitutions or laws may be admitted in evidence against the accused. Tex.Code Crim. Proc Ann. art. 38.23. When the evidence raises an issue regarding a violation, the jury must be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the law, it must disregard the illegally obtained evidence. Id.

A defendant’s right to the submission of a jury instruction under article 38.23 is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible. Madden v. State, 242 S.W.3d 504, 510 (Tex.Crim.App.2007); see also Holmes v. State, 248 S.W.3d 194, 199 (Tex.Crim.App.2008) (“There is, of course, nothing to instruct the jury about if the suppression question is one of law only, and there is nothing to instruct the jury about unless there is affirmative evidence that raises a contested fact issue.”). To raise a disputed fact issue warranting an article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question. Madden, 242 S.W.3d at 513. If there is no dispute regarding the factual basis for the challenged search or seizure, then the legality of the conduct is determined by the trial judge alone — as a question of law — and a jury instruction is inappropriate. Id. at 510. “The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct.” Id. at 511.

Here, the first requested issue would have asked the jury whether the officers were on the “residence property of Robert Romo prior to the judge signing the warrant^]” However, it was undisputed that Investigator Putman, Officer King, and Rocky were on Romo’s property prior to obtaining a warrant. Therefore, Romo was not entitled to inclusion in the jury charge of the first requested issue because it did not present an issue of fact that was affirmatively contested. See id.

The second requested issue would have asked the jury whether the evidence seized on Romo’s property was the result of a search that started without a warrant. Again, however, there was no factual dispute about the steps Investigator Putman, Officer King, and Rocky took prior to obtaining a warrant — rather, the legality of their conduct was determined as a question of law by the trial court. See id. Therefore, Romo was also not entitled to inclusion in the jury charge of the second requested issue.

We overrule Romo’s fourth point.

V. Conclusion

Having overruled Romo’s four points, we affirm the trial court’s judgments.

DAUPHINOT, J., concurs without opinion.

      . 2024 Topaz Drive is approximately 270 feet from a middle school.

      . Investigator Putman described the driveway of 2024 Topaz Drive as an open driveway backing up to a public alleyway. Carrollton Police Officer Edward Teniente described the driveway as located in the rear of the house. Along the driveway were gas meters accessible by the alleyway.

      . See Tex. Health & Safety Code Ann. § 481.102(6) (Vernon Supp.2009) (stating that penalty group 1 includes methamphetamine); id. § 481.103(a)(1) (stating that penalty group 2 includes psilocin); id. § 481.115(b) (stating that possession of less than one gram of a penalty group 1 substance is a state jail felony); id. § 481.116(c) (stating that possession of more than one gram but less than four grams of a penalty group 2 substance is a third degree felony); id. § 481.121(b)(5) (stating that the offense of possession of marihuana is a second degree felony if the amount possessed is 2,000 pounds or less but more than 50 pounds); id. § 481.134 (enhancing the punishment for committing possession offenses in, on, or within 1,000 feet of the premises of a school).

      . During the suppression hearing held during the trial of this case, the trial court took judicial notice of the earlier proceedings in this case prior to its dismissal and reindictment, including a motion to suppress filed on October 4, 2007, and a suppression hearing held on the same day. The trial court in the earlier case took judicial notice of the affidavit at the hearing and denied the motion based on the affidavit. It filed written findings of fact and conclusions of law stating that Romo failed to properly challenge probable cause for the search warrant and to raise any challenge to the truthfulness or accuracy of the officer's statements in the affidavit and that probable cause existed and the search was proper.

      . Romo did not have a reasonable expectation of privacy in his open driveway area and no Fourth Amendment right was violated by the officers when they approached the rear of the house through this area because “[a]reas around a home that are readily accessible, such as driveways ... are not accorded the same degree of Fourth Amendment protection as is the interior of a residence.” Rodriguez v. State, 106 S.W.3d 224, 228 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd), cert. denied, 540 U.S. 1189, 124 S.Ct. 1432, 158 L.Ed.2d 98 (2004). Nothing in the record indicates that Romo displayed any "no trespassing” signs or other evidence indicating that he wished to keep people off his property, and as previously articulated, the back driveway of the home was not enclosed, was open to the alleyway at the rear of the house, and gas meters were located on the driveway.

      . The Rodriguez court states, "There is no legitimate expectation or interest in ‘privately’ possessing an illegal narcotic.” 106 S.W.3d at 229; see Wilson v. State, 98 S.W.3d 265, 272-73 (Tex.App.-Houston [1st Dist.l 2002, pet. ref'd) (holding that a dog sniff of the area outside the door of a hotel room is not a search under the Fourth Amendment or the Texas constitution because the dog's sniff does not explore the details of the hotel room and the sniff reveals nothing about the room other than the presence of cocaine, in which there is no legitimate privacy interest); see also United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 1661, 80 L.Ed.2d 85 (1984) ("The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities.”).

      . And although Romo argues in his third point that the search warrant and affidavit failed to state probable cause because the supporting affidavit: (1) "failed to set out any facts which would justify a search of the inside of the house,” (2) "failed to state probable cause to search at the exact address of 2024 Topaz Drive, Carrollton, Denton County, Texas named in the search warrant,” (3) is stale and "[n]o specific dates at all [were] given for the allegations concerning ‘what an informant not yet made credible’ said to the Affiant,” (4) "does not state probable cause to believe that a crime was being committed by any particular person,” and (5) does not describe or state anything about the quantity of marihuana seen in Romo's backyard, he did not raise the first, second, fourth, and fifth sub-points in either his October 2007 or April 2009 motions to suppress or during the hearings on these motions. These four sub-points have not been preserved. See Tex.R.App. P. 33.1. Based on our discussion below, we also need not discuss his third sub-point. See Tex. R.App. P. 47.1.


author: GUADALUPE RIVERA, Justice.

text:
    Maria O. ARELLANO and Josefa A. Arellano, Appellants, v. Martha MAGANA and Francisco Magana, Appellees.
    No. 08-08-00341-CV.
    Court of Appeals of Texas, El Paso.
    April 14, 2010.
    Josefa A. Arellano, Maria 0. Arellano, El Paso, TX, for Appellants.
    Veronica Carbajal, Texas RioGrande Legal Aid, Inc., El Paso, TX, for Appellees.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

Appellants, Maria 0. Arellano and Josefa A. Arellano, appeal the trial court’s judgment in favor of Appellees, Martha Magana and Francisco Magana. We affirm.

BACKGROUND

The factual background and proceedings are well known to the parties, and we do not recite them here in detail. An abbreviated recitation shows that after Appel-lees purchased a lot sold by Maria Arella-no, they sued her for deceptive trade practices and breach of warranties of title when she failed to transfer title following payment of the purchase price. Appellees later obtained a judgment against Maria Arellano for $49,577.60, and recorded the judgment in the Office of Deed Records. Appellees later sought collection on the judgment by filing an application for turnover relief and petition for fraudulent transfer, requesting the trial court to levy execution on two lots. The title to both lots belonged to Maria Arellano although she claimed that she transferred title to one of the lots to Josefa Arellano. After a bench trial, the trial court found that Maria Arellano fraudulently transferred one of the lots and ordered that its title be turned over to Appellees in partial satisfaction of their judgment, and that Appel-lees, as judgment creditors could use the turnover statute to order their debtor, that is, Maria Arellano, to turnover the other lot.

DISCUSSION

On appeal, Appellants, representing themselves pro se, bring three issues. The first contends that the evidence is insufficient to support the trial court’s findings for violations of fraudulent transfer, the second alleges that “[t]he trial court should not have submitted general damages,” and the third asserts that the trial court erred by ruling for Appellees when they did not “have the proper foundations of suing.” Finding their issues inadequately briefed, we overrule their complaints.

Although we recognize that Appellants are acting pro se and we must construe their appellate brief liberally, see Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989), Appellants must still comply with all applicable briefing rules. See Valadez v. Avitia, 288 S.W.3d 843, 845 (Tex.App.-El Paso 2007, no pet.); Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex.App.-El Paso 2006, no pet.); Milteer v. Western Rim Corp., 303 S.W.3d 334, 335 (Tex.App.-El Paso 2009, no pet.). If that were not the case, pro se litigants would be afforded an unfair advantage over those represented by counsel. Valadez, 238 S.W.3d at 845; Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex.App.-El Paso 2007, pet. struck).

Accordingly, on appeal, the pro se litigant’s brief must contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex.R.App. P. 38.1(i). Indeed, the burden rests on Appellants to discuss their assertions of error. Valadez, 238 S.W.3d at 845. We have no duty to perform an independent review of the record and applicable law to determine whether there was error. Id. Therefore, when an appellate issue is unsupported by argument or contains an argument lacking citation to the record or legal authority, nothing is presented for review. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004); Valadez, 238 S.W.3d at 843; Martinez, 218 S.W.3d at 844; Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

Here, Appellants’ first issue merely consists of a few conclusory statements, unsupported by any recitation of the applicable standard of review for legal and factual sufficiency. Although they attack the credibility of Appellees’ attorney, they fail to discuss why the evidence supporting the verdict is insufficient. Moreover, Appellants’ second and third issues merely recite the issues stated without providing any discussion, argument, authority, or substantive analysis. Accordingly, we find Appellants inadequately briefed their complaints and overrule the same. See Tex. R.App. P. 38.1; Kupchynsky v. Nardiello, 230 S.W.3d 685, 692 (Tex.App.-Dallas 2007, pet. denied) (issue inadequately briefed when party gave general cite to one case stating elements of cause of action); Santillan v. National Union Fire Ins. Co., 166 S.W.3d 823, 824 (Tex.App.-El Paso 2005, no pet.) (issue inadequately briefed when party failed to recite standard of review and merely uttered conclusory sentences); Sterling v. Alexander, 99 S.W.3d 793, 799 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (issue inadequately briefed when party failed to make a cogent argument).

CONCLUSION

The trial court’s judgment is affirmed.


author: RICK STRANGE, Justice.

text:
    William Thomas LEONARD, Appellant, v. STATE of Texas, Appellee.
    No. 11-09-00032-CR.
    Court of Appeals of Texas, Eastland.
    April 15, 2010.
    Discretionary Review Granted Sept. 29, 2010.
    Jack V. Strickland, Law Office of Jack V. Strickland, Fort Worth, for appellant.
    Joe Shannon, Jr., Dist. Atty., Charles M. Mallín, Asst. Dist. Atty., Tarrant County Dist. Attorney’s Office, Fort Worth, for appellee.
    Panel consists of WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

William Thomas Leonard received deferred adjudication for injury to a child— bodily injury. The trial court found that he violated a condition of his community supervision, adjudicated his guilt, and sentenced him to seven years confinement. We reverse and remand.

I.Background Facts

Leonard pleaded guilty to injury to a child — bodily injury and was sentenced to five years deferred adjudication and a $750 fine. The conditions of Leonard’s community supervision required him to submit to evaluation for sex offenders and to attend and successfully complete psychological counseling/treatment sessions for sex offenders. Leonard was also required to submit to polygraph exams and to show no deception on any polygraph or other diagnostic test or evaluation.

The State filed a petition to proceed to adjudication, alleging that Leonard had been unsuccessfully discharged from sex offender treatment, failed to make satisfactory progress in the timely completion of his treatment, failed to pass polygraph examinations, failed to pay a supervision fee, and failed to pay his fine. The State waived the failed polygraph exams, unpaid supervision fee, and unpaid fine allegations at the revocation hearing. Leonard pleaded not true to being unsuccessfully discharged and to not making satisfactory progress in his treatment.

The State called psychotherapist George Michael Strain as a witness. Leonard was referred to him for therapy. Strain testified that he discharged Leonard from treatment for failing five polygraphs. Strain testified that he used polygraph examinations as part of sex offender treatment and that he and other experts in his field reasonably relied upon them. Leonard presented no evidence. The trial court found the State’s allegation that Leonard had been unsuccessfully discharged from sex offender treatment true but found the failure to make satisfactory progress allegation not true. The trial court found Leonard guilty of injury to a child-bodily injury, revoked his community supervision, and sentenced him to seven years confinement.

II.Issues

Leonard challenges his adjudication with five issues, all of which contend that the trial court erred by considering and acting upon his polygraph test results.

III.Discussion

A. Standard of Review.

We review an order revoking community supervision for an abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.2006). The State has the burden of showing by a preponderance of the evidence that the defendant committed a violation of the conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993). If the State fails to meet its burden of proof, the trial court abuses its discretion by revoking community supervision. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App.1984). The trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and the evidence is reviewed in the light most favorable to the trial court’s ruling. Id. at 493. Proof of one violation of the conditions of community supervision is sufficient to support a revocation order. Tex.Code CRiM. Proc. Ann. art. 42.12, § 21(b) (Vernon Supp.2009).

B. Polygraph Exams.

This case presents an interesting paradox: courts routinely require sex offenders on community supervision to take and pass polygraph exams — even though their mere existence, let alone results, is inadmissible. The propriety of that practice is not at issue here. If the trial court can order a polygraph but is prohibited from hearing any polygraph evidence, how does it monitor compliance and is there any consequence to lying during an exam?

Polygraph examinations are regularly imposed as a condition of community supervision for sex offenders. One court has held that this is a reasonable condition, and Leonard concedes that it was appropriate in his case. But Texas law is clear that the existence and results of a polygraph examination are inadmissible for all purposes. The ban on polygraph evidence is comprehensive. It applies “[e]ven if the State and the defendant agree and stipulate to use the results of a polygraph at trial.” And it applies to revocation proceedings.

The State acknowledges that polygraphs are generally inadmissible but argues that Leonard’s test results were admissible under Tex.R. Evid. 703 because Strain was an expert and because he testified that experts in his field reasonably rely upon polygraph exams when treating sex offenders. The State assumes that heretofore polygraph test results have been excluded because there was insufficient evidence of reliability in each case. But in fact, polygraph test results are inadmissible because the Court of Criminal Appeals has determined that, as a matter of law, they are unreliable. Consequently, the trial court did not have the discretion to consider Leonard’s test results under Rule 703.

The State also argues that, because a polygraph exam can be a condition of community supervision, it is only logical to require a defendant to show no deception during a test and that, otherwise, polygraph exams will lose much of their benefit. The State cites us decisions from several other state and federal courts that it contends support the use of polygraph tests when determining whether to revoke community supervision. Those decisions are not binding upon this court. Unless, and until, the Court of Criminal Appeals lifts its ban on polygraph test results, trial courts lack the discretion to revoke an individual’s community supervision for failing an exam.

Finally, the State argues that Leonard was not revoked for failing a polygraph but that he was revoked because Strain did not believe he was telling the truth and, therefore, was putting other children at risk. The failed exams were not merely a tool Strain used as part of a larger diagnostic process. Leonard’s test results were the sole basis for his discharge. Strain was asked:

Q. Mr. Strain, why was Mr. Leonard discharged from treatment?
A. Because he failed five polygraphs.
Q. And so you’re saying that was your reason for unsuccessfully discharging him from treatment?
A. That’s correct.
Q. Mr. Strain, to make sure on this, the — the—as you related to me yesterday, the sole basis for your making the discharge was because of this — because of the reasons that you previously stated to the prosecutor regarding polygraphs?
A. That’s correct.
Q. Okay. With — and your — your basis for your testimony of saying that you were concerned that he was not being completely honest with him rests entirely on the failure of the polygraphs; is that correct?
A. Yes, it does.

Leonard’s revocation was, essentially, trial by polygraph.

The trial court abused its discretion by considering evidence of Leonard’s failed polygraph exams when determining whether to revoke his community supervision. When that evidence is excluded, the trial court abused its discretion by revoking Leonard’s community supervision. Leonard’s first, second, and third issues are sustained. This holding makes it unnecessary to address his fourth or fifth issues.

We do not hold that polygraph exams cannot be imposed as a condition of community supervision or used as part of a sex-offender treatment program. Even though the test results are inadmissible, polygraph exams allow treatment providers to monitor compliance, and they can serve as a catalyst for further investigation. Nor do we hold that the failure to take a test is inadmissible or that trial courts lack the discretion to revoke community supervision for failing or refusing to take a court-ordered polygraph.

IV. Conclusion

The judgment adjudicating Leonard’s guilt is reversed, and the cause is remanded to the trial court.

      . The following cases note that taking a polygraph exam was a term or condition of community supervision: Oveal v. State, No. 14-09-00124-CR, 2010 WL 547065 (Tex.App.Houston [14th Dist] Feb. 18, 2010, no pet. h.) (mem. op., not designated for publication); Whitton v. State, No. 14-08-00611-CR, 2010 WL 307911 (Tex.App.-Houston [14th Dist.] Jan. 28, 2010, no pet.) (mem. op., not designated for publication); Henry v. State, No. 01-09-00145-CR, 2009 WL 3491051 (Tex.App.Houston [1st Dist.] Oct. 29, 2009, no pet.) (mem. op., not designated for publication); Stracener v. State, 06-08-00045-CR, 2009 WL 3364979 (Tex.App.-Texarkana Oct. 21, 2009, no pet.) (mem. op., not designated for publication); Wood v. State, No. 03-08-00464-CR, 2009 WL 1364352 (Tex.App.-Austin May 14, 2009, no pet.) (mem. op., not designated for publication); Jones v. State, Nos. 14-07-00900-CR & 14-07-00901-CR, 2009 WL 839660 (Tex.App.-Houston [14th Dist.] Mar. 31, 2009, no pet.) (mem. op., not designated for publication); Few v. State, No. 01—01—00678-CR, 2002 WL 1869600 (Tex.App.Houston [1st Dist] Aug. 15, 2002, no pet.); Brisco v. State, No. 01-00-00762-CR, 2002 WL 595075 (Tex.App.-Houston [1st Dist.] April 18, 2002, pet. ref'd) (op. on rehearing, not designated for publication).

      . See Ex parte Renfro, 999 S.W.2d 557, 560 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd).

      . Tennard v. State, 802 S.W.2d 678, 683 (Tex.Crim.App.1990).

      . Nethery v. State, 692 S.W.2d 686, 700 (Tex.Crim.App.1985).

      . See Nesbit v. State, 227 S.W.3d 64, 66 n. 4 (Tex.Crim.App.2007) (noting the prohibition on polygraph evidence while discussing the evidence (including a failed polygraph exam) that was offered during a revocation proceeding).

      . Romero v. State, 493 S.W.2d 206, 210-11 (Tex.Crim.App.1973).

      . See Renfro, 999 S.W.2d at 560-61.


text:
    Errol C. ANDERSON, M.D., Appellant, v. Jessica GONZALEZ, Individually and as Representative of the Estate of Daisy Silvas Gonzalez, Deceased, Appellee.
    No. 11-09-00305-CV.
    Court of Appeals of Texas, Eastland.
    April 22, 2010.

      Arlene C. Matthews, W.C. Bratcher, Crenshaw, Dupree & Milam, L.L.P., Lubbock, for appellant.
    B. Kent Buckingham, Buckingham Law Firm, Midland, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

This is an accelerated interlocutory appeal in a health care liability suit. In one issue, appellant, Errol C. Anderson, M.D., complains that the trial court abused its discretion in overruling his objections to the qualifications of the plaintiffs expert and in finding the plaintiffs expert report sufficient under the Medical Liability Act. We affirm.

Background Facts

Jessica Gonzalez, individually and as representative of the estate of Daisy Silvas Gonzalez, deceased, sued Dr. Anderson for the wrongful death of Daisy. Daisy was born prematurely and was admitted to the Neonatal Intensive Care Unit. In order to help Daisy digest her food, a PICC line was placed. A PICC line is a long flexible tube inserted into the vein of the arm and then threaded to the superior vena cava, a major vein near the heart. A PICC line is used to distribute nutrients, fluids, or drug treatment directly into the bloodstream. To confirm the proper placement of the PICC line, a chest X-ray was ordered. Dr. Anderson read Daisy’s chest X-ray and stated that the PICC line was properly placed. The PICC line was used to administer total parenteral nutrition (TPN). Four days later, Daisy suffered a cardiac arrest and died.

Gonzalez alleges that Dr. Anderson’s failure to determine that the PICC line was improperly placed resulted in Daisy’s death. Gonzalez filed the expert report and curriculum vitae of Randall M. Patten, M.D. Dr. Anderson objected to Dr. Patten’s expert report stating that it was insufficient under Section 74.351(a) and asking that the cause be dismissed. After a hearing, the trial court found that the expert report was sufficient.

Standard of Review

We review a trial court’s determination on the sufficiency of an expert report in a health care liability claim for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). We may not substitute our own judgment for the trial court’s judgment. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). When reviewing the adequacy of an expert report, the only information relevant to the inquiry is the information contained within the four corners of the document. Bowie Mem’l Hospital v. Wright, 79 S.W.3d 48, 52 (Tex.2002). We cannot fill in gaps in an expert report by drawing inferences or guessing as to what the expert likely meant or intended. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 463 (Tex.2008); Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.).

Texas Medical Liability Act

Within 120 days of filing a health care liability claim, a plaintiff must serve an expert report with the expert’s curriculum vitae to each defendant against whom a liability claim is asserted. Section 74.351(a). An expert report is defined as:

[A] written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Section 74.351(r)(6).

A defendant may file a motion challenging the adequacy of the report. Section 74.351(Z). The trial court shall grant the motion if it finds, after a hearing, that the report does not represent an objective good faith effort to comply with the definitions of the expert report. Id. While an expert report need not marshal all of the plaintiffs proof, it must provide a fair summary of the expert’s opinions as to the applicable standard of care, the manner in which the standard of care was breached, and the causal relationship between the breach and the injury. Palacios, 46 S.W.3d at 878. To constitute a good faith effort, the report must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006).

A person is qualified to give expert testimony concerning the causal relationship between the damages claimed and the alleged departure from the applicable standard of care only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence. Section 74.351(r)(5)(C). To be qualified under the Texas Rules of Evidence, an expert must have knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on that particular subject. Broders v. Heise, 924 S.W.2d 148, 153 (Tex.1996). When a party can show that a subject is substantially developed in more than one field, testimony can come from a qualified expert in any of those fields. Id. at 154. An expert report authored by a person who is not qualified to testify cannot constitute an adequate report. Collini v. Pustejovsky, 280 S.W.3d 456, 462 (Tex.App.-Fort Worth 2009, no pet.); Ehrlich v. Miles, 144 S.W.3d 620, 624-26 (Tex.App.-Fort Worth 2004, pet. den’d). The proper inquiry concerning whether a doctor is qualified to testify is not his area of practice but his familiarity with the issues involved in the claim before the court. Estorque v. Schafer, 302 S.W.3d 19, 26 (Tex.App.-Fort Worth 2009, no pet.); Collini, 280 S.W.3d at 464. A physician who is not of the same school of medicine may be competent if he has practical knowledge of what is usually and customarily done by a practitioner under circumstances similar to those confronting the defendant. Broders, 924 S.W.2d at 152-53.

The Report

Gonzalez’s expert, Dr. Patten, is a board certified physician in radiology. At the time he authored his report, Dr. Patten was the chief radiologist with the Northwest Radiology Group. He has been a professor of radiology at the University of Colorado School of Medicine and a clinical associate professor of radiology at the University of Washington School of Medicine. Dr. Patten is on the active medical staff at Providence St. Peter Hospital, and he is a member of the Radiological Society of North America, the American Roentgen Ray Society, and the American College of Radiology. On a daily basis, Dr. Patten is called upon “to interpret x-ray film studies such as those performed for Daisy Gon-zale[z] by Errol C. Anderson, M.D.” He has routinely been asked to determine the radiological practice of the proper placement of a PICC line.

In his report, Dr. Patten stated that he reviewed Daisy’s medical records, the X-ray films performed on Daisy, and the autopsy report. Daisy’s medical records showed that Dr. Anderson’s X-ray report stated that the PICC line “has been inserted and terminates under the medial clavicle.” Dr. Ancerson’s chest X-ray report gave no indication that the PICC line was improperly placed, and later reports by Dr. Anderson did not mention the placement of the PICC line. The autopsy revealed that the tip of the PICC line was actually located in the right ventricle of Daisy’s heart, “terminating on the epicar-dial surface, causing a ‘mechanical disruption’ of the anterior-lateral right ventricle.” From the autopsy report, Dr. Patten determined that Daisy died “due to a pericar-dial effusion secondary to a PICC line with leakage of TPN into the pericardium. The mechanism of death was cardiac tampo-nade.”

Dr. Patten stated that the standard of care requires a radiologist interpreting a chest X-ray for proper PICC line placement to specifically and accurately identify the placement of the PICC line and to inform the treating physician either that the line is properly positioned or that the line is not properly positioned. The standard of care also requires that the radiologist continue to assess the placement of the PICC line on any subsequent chest X-rays. Dr. Patten, in his reports, stated that Dr. Anderson breached the standard of care when he reported that the PICC line “terminate[d] under the medial clavicle” when review of the images revealed that the tip of the PICC line was actually within the heart. Dr. Patten also stated that Dr. Anderson further breached the standard of care when he failed to mention the placement of the PICC line in his review of subsequent chest X-rays.

Dr. Patten concludes in his report that this breach of the standard of care proximately caused Daisy’s death. In his report, Dr. Patten stated:

Based upon reasonable medical probability, the above-noted deviations from the accepted standard of care resulted in and are a proximate cause of Daisy Gonzalez’s untimely death.
The multiple breaches of the applicable standards of care by Dr. Anderson allowed the misplaced PICC line to cause cardiac tamponade which compressed Daisy’s heart to the point of cardiac arrest and death.
Specifically, Dr. Anderson’s failure to recognize the improper placement of the PICC line that is evident in the chest x-ray taken to confirm the PICC line placement on 09/21 allowed the tip of the PICC line that was improperly pressing against the wall of the right ventricle in Daisy’s heart to disrupt the ventricular wall. Dr. Anderson’s breach of the standard of care then allowed the TPN solution to go into the pericardial space and thus cause the cardiac tamponade with resulted in Daisy’s death. Had Dr. Anderson not breached and instead met the required Standards of Care, the improper placement of the PICC line would have been detected and corrected prior to causing damage to Daisy’s heart, thus saving her life.

Analysis

Dr. Anderson argues that Gonzalez’s expert is not qualified to render an opinion on the cause of Daisy’s cardiac tamponade, cardiac arrest, or the cause of death of a premature newborn because his report and accompanying curriculum vitae indicate no experience, training or knowledge in the area of cardiac tamponade or cardiac arrest. Dr. Anderson argues that the specific issue before the court is the cause of the cardiac tamponade, cardiac arrest, or cause of death in a premature newborn. We disagree.

This case is analogous to Mosely v. Mundine, 249 S.W.3d 775 (Tex.App.-Dallas 2008, no pet.). In Mosely, an emergency room physician misread X-ray films of a patient being treated for injuries arising out of a traffic accident. The physician read the film as normal even though the X-ray showed a small tumor on the patient’s lung. The patient was released. Two years later, the tumor was found on another X-ray film. The patient sued the initial emergency room doctor alleging that, had the X-ray film been properly read and the tumor discovered at the first emergency room visit, her treatment and prognosis would have been better. The plaintiff filed an expert report authored by an emergency room physician. The defendant doctor filed objections to the report, stating that the emergency room doctor was not qualified to give opinions on the treatment and prognosis for cancer. The Dallas Court of Appeals explained that the conduct causing the plaintiffs injuries related to the ability of the emergency room physician to interpret a routine chest X-ray and identify an abnormality, not the diagnosis and treatment of cancer. Mosely, 249 S.W.3d at 779.

As in Mosely, the causation issue in this case relates to the duty of Dr. Anderson to recognize potential harm and take appropriate action. In her petition, Gonzalez alleges that Dr. Anderson’s negligence arises from his failure to identify the improper placement of the PICC line in his interpretation of the X-rays. Dr. Patten did not determine the cause of Daisy’s death. He reviewed the autopsy report and her medical records in determining the cause of her death. An expert may rely on the opinions of other individuals who have rendered reports or diagnoses. Kelly v. Rendon, 255 S.W.3d 665, 676 (Tex.App.-Houston [14th Dist.] 2008, no pet.); Cresthaven Nursing Residence v. Freeman, 134 S.W.3d 214, 234 (Tex.App.-Amarillo 2003, no pet.); see also Tex.R. Evid. 703 (stating that an expert can base an opinion on reasonably reliable data). Dr. Patten concluded that the failure to recognize the improper placement of the PICC line led to TPN being distributed into Daisy’s heart and, thus, causing cardiac arrest.

Dr. Patten does not have to be an expert in cardiology. In Livingston v. Montgomery, 279 S.W.3d 868 (Tex.App.-Dallas 2009, no pet.), an obstetrician/gynecologist provided an expert opinion on the neurological injuries a baby suffered during labor and delivery. The court held that an obstetrician in his every day practice of managing labor and delivery has the experience, knowledge, and training to opine on the complications that can stem from labor and delivery, including neurological injuries. Id. at 877. Similarly, Dr. Patten performs the type of review of chest X-rays that Dr. Anderson performed in this case on a daily basis. This practice gives Dr. Patten the experience, knowledge, and training regarding injuries that can occur when an improperly placed PICC line is not identified.

Dr. Patten has experience, knowledge, and training in the area of determining proper placement of a PICC line. He is an experienced radiologist, has authored numerous articles, has taught in the area of radiology, and has performed this type of analysis of X-ray films on a daily basis. His report outlines the standard of care for a radiologist, how Dr. Anderson breached that standard of care, and how that breach caused the damage to Daisy’s heart. The expert report constitutes a good faith effort by Gonzalez to inform Dr. Anderson of the conduct she has called into question and to provide a basis for the trial court to conclude that the claims have merit. The trial court did not abuse its discretion in finding the expert report sufficient under Section 74.351(a). We overrule Dr. Anderson’s issue on appeal.

Conclusion

We affirm the order of the trial court.

      . Tex. Civ. Prac. & ReiM.Code Ann. §§ 74.001-.507 (Vernon 2005 & Supp.2009).