author: SAM GRIFFITH, Justice.

text:
    Linda ZORN, Appellant, v. The STATE of Texas, Appellee.
    No. 12-09-00134-CR.
    Court of Appeals of Texas, Tyler.
    May 28, 2010.

      Tonda L. Curry, Tyler, for appellant.
    Michael J. West, for appellee.

      Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
   OPINION

SAM GRIFFITH, Justice.

Linda Zorn appeals her conviction for manslaughter. In five issues, Appellant argues that the evidence is legally and factually insufficient to support the verdict and that the trial court erred by allowing the State to offer certain evidence and by excluding certain testimony offered by the defense. We affirm.

Background

On the evening of June 27, 2008, Appellant struck a pedestrian, J.B. Nowell, with her car as she drove through the Hide-AWay Lake community outside Lindale, Texas. The collision occurred on a narrow roadway on a downhill curve. Nowell died from his injuries. Appellant was found a short distance away, her car crashed into a stand of small trees. She was disoriented and uncooperative with the police. A subsequent evaluation of her blood indicated that she had a blood alcohol concentration of 0.20 grams of alcohol per 100 milliliters of blood or two and one half times the legal limit for operating a motor vehicle.

A Smith County grand jury indicted Appellant for the felony offense of manslaughter. Appellant pleaded not guilty, and a jury trial was held. The jury found Appellant guilty as charged. Following a trial on punishment, the jury assessed punishment at imprisonment for twenty years and a fine of $10,000. This appeal followed.

Sufficiency of the Evidence

In her first, second, and third issues, Appellant argues that the evidence is legally and factually insufficient to support the verdict. Specifically, she argues that the trial court erred in overruling her motion for a directed verdict and that there is insufficient evidence to establish that she acted with criminal recklessness.

Applicable Law

The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. See Jackson v. Virginia, 448 U.S. 307, 315-16, 99 S.Ct. 2781, 2786-87, 61 L.Ed.2d 560 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009); Willis v. State, 192 S.W.3d 585, 592 (Tex.App.-Tyler 2006, pet. refd). Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; see also Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App.2007). A challenge to a trial court’s denial of a motion for directed verdict is a challenge to the legal sufficiency of the verdict. See Canales v. State, 98 S.W.3d 690, 693 (Tex.Crim.App.2003).

While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court of Criminal Appeals has determined that the Texas Constitution requires further review of the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129-30 (Tex.Crim.App.1996). Factual sufficiency review differs from legal sufficiency review only slightly. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006). In a factual sufficiency review, we review the evidence without the light most favorable to the verdict and we are authorized, “albeit to a very limited degree,” to disagree with the jury’s resolution of contested factual issues. See id,.; Watson v. State, 204 S.W.3d 404, 414, 417 (Tex.Crim.App.2006). In a review of the factual sufficiency of the evidence, we will conclude that the evidence is insufficient only if the great weight and preponderance of the evidence contradicts the jury’s verdict or the verdict is clearly wrong and manifestly unjust. See Rollerson, 227 S.W.3d at 724; Watson, 204 S.W.3d at 417.

Under either standard, our role is that of appellate review, and the fact finder is the principal judge of the weight and credibility of a witness’s testimony. Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex.Crim.App.2000). The fact finder may choose to believe all, some, or none of a witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986).

The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). A hypothetically correct jury charge “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.” Id.

A person commits manslaughter if she recklessly causes the death of an individual. Tex. Penal Code Ann. § 19.04(a) (Vernon 2003). A person acts recklessly with respect to circumstances surrounding her conduct or the result of her conduct when she is aware of, but consciously disregards, a substantial and unjustifiable risk that the circumstances exist or the result will occur. Id. § 6.03(c) (Vernon 2003). The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all circumstances as viewed from the actor’s standpoint. Id.; Garza v. State, 50 S.W.3d 559, 564 (Tex.App.-Houston [1st Dist.] 2001, no pet.). “At the heart of reckless conduct is conscious disregard of the risk created by the actor’s conduct.” Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App.1975). Recklessness can be applied generally to the act of driving. See Porter v. State, 969 S.W.2d 60, 63 (Tex.App.-Austin 1998, pet. refd).

In this case, the State was required to prove that Appellant recklessly caused the death of J.B. Nowell by operating a vehicle into Nowell while intoxicated. See Tex. Penal Code Ann. § 19.04.

Analysis

When evaluating whether conduct is reckless, a finder of fact and a reviewing court must examine (1) whether the act, when viewed objectively at the time of its commission, created a “substantial and unjustifiable” risk of the type of harm that occurred, (2) whether that risk was of such a magnitude that disregard of it constituted a gross deviation from the standard of care that a reasonable person would have exercised in the same situation, (3) whether the defendant was consciously aware of that risk, and (4) whether the defendant consciously disregarded that risk. See Williams v. State, 235 S.W.3d 742, 755-56 (Tex.Crim.App.2007).

At trial and on appeal, the State argues that Appellant was reckless in the operation of her vehicle because she drove at a speed that was inappropriate for the setting and because she drove while intoxicated. Appellant does not argue that the speed of her driving cannot support the verdict. Instead, she argues that there was no competent evidence as to her speed at the time of the wreck.

Appellant does not directly address the two issues raised specifically by the indict-merit, namely that striking Nowell with a vehicle, and doing so while intoxicated, created an unacceptable risk of his death. Instead, she argues that the evidence showed only that she was operating a vehicle in a twenty-five miles an hour zone and that her car collided with Nowell. She argues that there is no evidence of excessive speed or other act which, under the standard articulated in Williams, shows that she created and then disregarded a substantial and unjustifiable risk. We disagree.

Viewing the evidence in a light most favorable to the verdict, there is evidence from several eyewitnesses that Appellant was travelling at a rate of speed that was unsafe for the circumstances. Denver Gentry, a security officer with the Hide-A-Way community, testified that the roads within the community were not built for speed. Kim Dockery, a resident, testified that the roadway where Appellant struck Nowell was a curvy hill that required a motorist to slow down. Pat Kesey, Kristin Kubin, and Emilee Alcock testified that they saw Appellant’s vehicle before the wreck travelling at what appeared to be high rate of speed for the area. Two witnesses testified that it was common for pedestrians to be present on the streets in the community in the evening hours.

There was a dispute about the speed at which Appellant was travelling. Appellant did not testify, but she called an expert witness who testified that she had to have been travelling at a rate below the speed limit because, in his opinion, she would not have been able to control the vehicle through the turn if she had exceeded the speed limit. Although the State did not offer the testimony of a witness who had done a formal reconstruction of the wreck, several police officers offered opinions that Appellant was travelling too fast for the roadway.

Additionally, there is the issue of Appellant’s intoxication. The court of criminal appeals has held that intoxication is recklessness per se. See Ormsby v. State, 600 S.W.2d 782, 783-84 (Tex.Crim.App.1979). That holding no longer controls because it was based on the legislature’s grouping the offense of intoxication manslaughter with the offense of involuntary manslaughter. See Burke v. State, 80 S.W.3d 82, 90-91 (Tex.App.-Fort Worth 2002, no pet.) (op. on reh’g). The legislature separated those offenses in 1994. Id. But that does not mean that the act of driving while intoxicated could not, in this case, be reckless conduct by Appellant. And, there was ample evidence that Appellant was intoxicated, including a high blood alcohol concentration as well as her disorientation and demeanor following the wreck.

When viewed in a light most favorable to the evidence, we hold that a rational jury could conclude that based either on the speed at which Appellant drove her vehicle or on her level of intoxication that Appellant was aware of, but consciously disregarded, a substantial and unjustifiable risk that a pedestrian would be struck by her vehicle. Appellant was intoxicated and driving too fast on narrow roads clustered with pedestrians in her own neighborhood. The jury’s conclusion that she was reckless is reasonable. Accordingly, we overrule Appellant’s first and second issues.

We reach the same conclusion with respect to the factual sufficiency of the evidence. As we will discuss in a following section, some of the testimony about the speed of Appellant’s vehicle is problematic. But the problem presented is the specific estimate of speed by lay, and youthful, witnesses. Several lay witnesses testified, without objection, that Appellant was trav-elling at too high a rate of speed. For example, one witness testified that when the car passed it looked like a bullet or a “big blur.” Others testified that she was travelling too fast or that the resultant impact was powerful.

Appellant does not contest the evidence that shows she was intoxicated. There was some dispute as to whether Nowell was in the roadway when he was struck. Appellant’s expert witness testified that, in his opinion, it was “more likely than not [that] the pedestrian would have been either in the street completely or kind of on and off the street.” A State’s witness testified that the area of impact was “well off the roadway,” although he conceded that he had not done a formal reconstruction of the wreck and that it was difficult to pinpoint the exact location of the impact because of the way Appellant’s vehicle struck Nowell.

In sum, viewing the evidence in a neutral light, a rational finder of fact could have concluded that Appellant was travel-ling too fast for the conditions and the roadway, failed to keep an adequate lookout, and was intoxicated. In such a situation, the jury’s conclusion that Appellant was reckless is not against the weight and preponderance of the evidence, is not clearly wrong, and does not represent a manifest injustice. We overrule Appellant’s third issue.

Exclusion of Testimony

In her fourth issue, Appellant argues that the trial court erred in excluding the testimony of a witness who would have testified that Appellant suffered from various mental illnesses and took medicine for anxiety. Appellant argues that the trial court ruling violated her right to present a defense.

Background and Procedural History

Appellant proposed to call Jean Davenport to testify about her interactions with Appellant in the days and years that preceded the wreck. Outside the presence of the jury, the State objected to Davenport’s testimony based on counsel’s preview of that evidence during her opening statement. In order to make a ruling, the trial court invited Appellant to present the proposed testimony outside the presence of the jury. Appellant did so.

The testimony proffered by Appellant showed that Jean Davenport is Appellant’s friend. They are members of the same church. Appellant did not have any immediate family in the area, and Davenport and her husband, who is also Appellant’s minister, became a surrogate family for her. For the nine years that preceded that trial, Davenport assisted Appellant with her daily responsibilities. Appellant had been discharged from the military and was disabled. Davenport testified at the offer of proof hearing that Appellant had been diagnosed with paranoid schizophrenia. She also had colon surgery, and Davenport helped Appellant deal with issues that arose between Appellant and the Veteran’s Administration. She said that she had a power of attorney for Appellant for “about eight years.”

Davenport testified that Appellant was an alcoholic but that she had been sober for about a year before the wreck. She testified that she had Appellant involuntarily committed because she had been suicidal. She also testified that Appellant was under a great deal of stress at the time of the wreck because her house was being remodeled. Appellant could not stay at the house at the time of the remodeling. Davenport testified that Appellant could achieve balance when she was in familiar surroundings but that changes to her routine were very difficult for Appellant to manage.

The State objected to this evidence on the grounds that it was hearsay, that Davenport was not an expert witness and was not qualified to make a medical or psychiatric diagnosis, and that a witness could not testify about another person’s mental state. Appellant’s attorney responded that Davenport should be permitted to testify that Appellant does not have the “emotional responses or the judgment abilities” that others may have or possess. The trial court ruled that the testimony was inadmissible for the guilVinnocence phase of the trial.

Standard of Review and Applicable Law

Generally, we review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. See Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002); see also Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App.1991) (op. on reh’g). We reverse only when the trial court’s decision was so clearly wrong as to fall outside the zone of reasonable disagreement. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). We uphold the trial court’s ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. See Willover, 70 S.W.3d at 845.

If it is a defendant’s evidence that is excluded, an error can be a violation of the defendant’s constitutional right to compel the attendance of witnesses in his favor. See Potier v. State, 68 S.W.3d 657, 659 (Tex.Crim.App.2002); see also Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1922-23, 18 L.Ed.2d 1019 (1967) (Sixth Amendment insures compulsory process to obtain favorable witnesses). Evidentiary rulings rarely rise to the level of denying the fundamental constitutional rights to present a meaningful defense. See Potier, 68 S.W.3d at 663. There are two circumstances in which the improper exclusion of evidence may establish a constitutional violation: (1) when a state evidentiary rule categorically and arbitrarily prohibits the defendant from offering relevant evidence that is vital to his defense; or (2) when a trial court erroneously excludes relevant evidence that is a vital portion of the case and the exclusion effectively precludes the defendant from presenting a defense. Id. at 659-62; Wiley v. State, 74 S.W.3d 399, 405 (Tex.Crim.App.2002).

A nonexpert witness may offer opinion testimony or testimony about inferences made, but such testimony is limited to opinions or inferences that are rationally based on the perception of the witness and are helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. See Tex.R. Evid. 701. Hearsay is a statement not made at trial that is offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). Unless it meets an exception, hearsay is not admissible. Tex.R. Evid. 802.

Analysis

Appellant argues that she was denied her ability to present evidence that “if believed, squarely brought Appellant’s mental status” into question and raised the issue of “whether she was capable of being reckless as that term is defined in Texas under [the facts of the case.]” By excluding Davenport’s testimony, Appellant argues that the jury “was left without vital information as to Appellant’s ability to be reckless,” specifically whether she was able to appreciate and then consciously disregard a substantial and unjustifiable risk.

Appellant does not cite any authority in support of her argument for admissibility of this specific kind of evidence. We agree with the State that some of this evidence is inadmissible hearsay. For example, Appellant’s diagnosis by a medical doctor is an out of court statement that Appellant proposed that Davenport repeat in court for the truth of the matter asserted. And Appellant did not present evidence that Appellant was unfamiliar with an automobile, or with the neighborhood, or other experience-based information relevant to the issue of whether she could appreciate and then disregard the risks involved in this case. Nor does Appellant argue that this evidence should be admissible to explain Appellant’s awkward and inappropriate behavior following the wreck. In fact, Appellant’s counsel told the court during the hearing that she did not contest that Appellant was intoxicated.

What remains of the evidence proffered by Appellant is testimony that she was paranoid, that she is different when she is out of her comfort zone, and that she had stress in her life at the time of the wreck. The court of criminal appeals has held, and the State forthrightly acknowledges, that evidence about the mental state of a defendant can be admissible when it is relevant to the issue of mens rea. See Ruffin v. State, 270 S.W.3d 586, 597 (Tex.Crim.App.2008). Texas does not recognize a diminished capacity defense, but, for lack of a better term, psychological evidence is admissible if it is relevant to the question of whether the defendant had the mens rea to commit the crime. See Jackson v. State, 160 S.W.3d 568, 573-74 (Tex.Crim.App.2005). In the Ruffin decision, the court drew an analogy between a blind person and a person with a mental disease or defect. Ruffin, 270 S.W.3d at 593-94. The court reasoned that just as a blind person would be permitted to offer evidence that his blindness prevented him from understanding that a person he shot at was a police officer, so too could a person suffering from mental delusions offer evidence about those delusions if they prevented him from apprehending that the person he shot at was a police officer. Id. at 594.

In that case, the court held that the proffered testimony that the defendant, because of a mental disease and attendant delusions, believed he was shooting at someone other than police officers was “clearly relevant.” Id. at 596. By contrast, this case turns, essentially, on whether Appellant understood and disregarded the risk she undertook in driving while intoxicated. The nonhearsay portion of Davenport’s testimony allows the conclusion that Appellant was easily flustered, occasionally suicidal, and in a state of anxiety the day before the wreck. Rule 701 does not prevent the admission of this kind of evidence because, as here, it is based on the witness’s perception of Appellant.

Because the right to present a defense is a constitutional right, many jurists would allow this testimony, if only in an abundance of caution. But as to the relevance of the evidence, we do not conclude that Davenport’s testimony was directly germane to the question of whether Appellant understood the risk she created. Her testimony is not that Appellant suffered from a delusion that caused her to fail to apprehend that she was driving or intoxicated or to think that she was driving in a different locale. Nor did her testimony show or tend to show that Appellant could not understand the risks her actions created. In this way, this case is more like Mays v. State, 318 S.W.3d 368, —-—(Tex.Crim.App.2010). In that case, the defendant’s mental illness evidence explained why he acted — he was paranoid and thought the deputies had “mistreated” him — but did not touch on the mens rea element of the offense. Id. Similarly, in this case, Appellant’s lowered ability to navigate stressful situations explains why she was drinking and why she was in a hurry, but does not serve to negate the mens rea or to show that she could not appreciate the risk that her conduct created. We overrule Appellant’s fourth issue.

Opinion Testimony

In her fifth issue, Appellant argues that the trial court erred in allowing six witnesses to testify as to the speed at which Appellant was travelling. The State does not argue that such evidence is proper, but instead argues that Appellant failed to preserve a complaint and that any error is harmless.

Applicable Law

As a prerequisite to presenting a complaint on appeal, there must be a contemporaneous objection in the trial court. Tex.R.App. P. 33.1. Even the erroneous admission of evidence will not result in reversible error if the same evidence is admitted elsewhere in the trial without objection. See Saldano v. State, 232 S.W.3d 77, 102 (Tex.Crim.App.2007); Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998).

Analysis

Several witnesses testified about having seen Appellant’s vehicle travelling through the Hide-A-Way Lake community before the wreck. Several other witnesses testified as to their impressions based on having arrived at the scene following the wreck. Each witness offered some quantitative assessment of Appellant’s rate of travel. We will discuss the testimony of each witness individually.

Detective Goodman

In a bench conference, Appellant’s counsel stated that she objected to testimony from Detective Goodman that it was a “high-impact collision.” That objection was overruled. The State then asked the detective, “[H]ow would you describe the impact?” Appellant did not object when he described the impact as “very forceful.”

An objection lodged at a bench conference is sufficient to preserve a complaint. See Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991). However, in this instance, it appears that the State was attempting to ask a more direct question and avoid Appellant’s objection. On appeal, Appellant asserts that Goodman testified that it was a high-speed impact. That was not his testimony. Goodman testified that it was a very forceful impact and later testified, without contemporaneous objection, that it was consistent with someone travelling faster than the speed limit. Because Appellant did not object to the testimony about the forcefulness of the impact, no complaint is preserved for appellate review. Assuming Appellant preserved a complaint as to Goodman’s testimony that Appellant was exceeding the speed limit, such evidence is not reversible error in this case because Appellant did not object when other witnesses offered the same testimony. See Leday, 983 5.W.2d at 718.

Emilee Alcock

The State asked fourteen year old Emilee Alcock the following question, “About how fast would you estimate just approximately do you think [Appellant’s vehicle] was going?” Appellant objected on the basis of Alcock’s lack of qualifications to answer the question, pointing out that she was not old enough to have a driver’s license. The court overruled the objection, and Alcock estimated that Appellant was travelling at thirty-five to forty miles an hour before the collision.

The State agrees that it was improper to allow Alcock to estimate the speed of Appellant’s vehicle. The State argues that Appellant waived this objection because she failed to object to other witnesses who testified as to their opinions about the speed of Appellant’s vehicle. However, no other witness made a specific estimate about the speed of the vehicle. Several witnesses testified that Appellant was travelling over the speed limit. And others testified that Appellant was travelling too fast for the roadway. There was no objection to that testimony, so any error in admitting Alcock’s statement that Appellant was travelling too fast is not reversible error. See Leday, 983 S.W.2d at 718.

Alcock’s specific, numerical estimate of the speed of Appellant’s vehicle was not duplicated by the other witnesses. Any qualifications the fourteen year old Alcock possessed to make a specific estimate as to the speed of Appellant’s vehicle were not presented by the State before it elicited that estimate from her. Nevertheless, we hold that this error is harmless. See Tex.R.App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). Alcock’s specific estimate of the speed is not inconsistent with the testimony of other witnesses and may actually have served to damp down the jury’s estimate of the speed the vehicle was travel-ling. Cf. Ochoa v. State, 994 S.W.2d 283, 285 (Tex.App.-El Paso 1999, no pet.) (error in admitting radar evidence harmless because defendant did not object to officer’s testimony that, in his opinion, appellant exceeded speed limit). Furthermore, it is unlikely that the jury was unreasonably swayed by the testimony of a fourteen year old as to the speed of a motor vehicle, especially in this instance where the State did not offer any foundation on which the jury could conclude that Alcock had any basis to make such an estimate. Accordingly, we hold that any error in the admission of Alcock’s specific estimate of the speed of Appellant’s vehicle did not have a substantial and injurious effect or influence in determining the jury’s verdict. After examining the record as a whole, we have a fair assurance that any error did not influence the jury, or had but slight effect. See Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000).

Kristin Kubin

Kristin Kubin answered in the affirmative when asked, “And do you feel like that car was going faster than 25 miles an hour?” At the time of trial, Kubin was a young person not yet of legal driving age. Appellant did not object to this testimony and has not preserved a complaint about this testimony for appellate review. See Tex.R.App. P. 33.1.

Pat Kesey

Pat Kesey testified that Appellant’s car was travelling “fast” and that it appeared to her to be a “red streak.” She also answered in the affirmative when asked if Appellant was travelling “way too fast” for the road. Appellant did not object to this testimony and has not preserved a complaint about this testimony for appellate review. See Tex.R.App. P. 33.1.

Denver Gentry

Denver Gentry, a supervisor of patrol officers working within Hide-A-Way Lake, testified that in his estimation, Appellant was travelling over the speed limit at the time of the wreck. Appellant did not object to this testimony and has not preserved a complaint about this testimony for appellate review. See Tex.R.App. P. 33.1.

Aaron Goodwin

Aaron Goodwin, a paramedic, testified that there was “a lot of speed involved” based on his assessment of the damage to the vehicles and the injuries. Appellant did not object to this testimony and has not preserved a complaint about this testimony for appellate review. See Tex.R.App. P. 33.1.

Detective Martin

Detective Martin testified that he was not an accident reconstruction expert, but he described the accident as a “high-force impact.” Appellant did not object to this testimony and has not preserved a complaint about this testimony for appellate review. See Tex.R.App. P. 33.1.

Conclusion

Appellant objected to Alcock’s testimony in which she estimated the speed of Appellant’s vehicle immediately before the wreck. Appellant did not object to several other witnesses who testified that Appellant was driving too fast or that the impact of the wreck was powerful. Those complaints, therefore, are not preserved for our review. To the extent that Alcock’s testimony is the same as the testimony of the other witnesses admitted without objection, Appellant has not shown reversible error. Any error in the admission of a specific estimate of the speed of Appellant’s vehicle is harmless. We overruled Appellant’s fifth issue.

Disposition

Having overruled Appellant’s five issues, we affirm the judgment of the trial court.

      . See Tex. Penal Code Ann § 49.01(2)(B) (Vernon 2003).

      . There is no impediment to charging Appellant with manslaughter even if intoxication manslaughter had also been available as a potential charge. See Burke v. State, 28 S.W.3d 545, 549 (Tex.Crim.App.2000); see also Lomax v. State, 233 S.W.3d 302, 312 n. 32 (Tex.Crim.App.2007).

      . The Texas Penal Code defines “intoxicated” as either (1) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (2) having an alcohol concentration of 0.08 or more. Tex. Penal Code Ann. § 49.01(2)(A), (B) (Vernon 2003).

      . Davenport was more specific when she testified during the punishment phase of the trial. She testified that Appellant drank that day because of the stress of having her home repainted and the concomitant disruption to the orderliness of her life.

      . In Ruffin, the trial court allowed lay testimony but not expert testimony as to the defendant’s delusional thinking at or near the time of the assault. Ruffin, 270 S.W.3d at 589, 597.

      . The relevant portion of the brief reads as follows: "Appellant then argues that Emilee Alcock was improperly allowed, over [Appellant’s] objection, to estimate the speed of Appellant’s vehicle. [] This is true.”


source: Caselaw Access Project

author: Justice O’NEILL.

license: Public Domain

text:
    Amanda HAM, Appellant, v. EQUITY RESIDENTIAL PROPERTY MANAGEMENT SERVICES, CORP. and The Wimberly Apartment Homes, Ltd., Appellees.
    No. 05-08-01297-CV.
    Court of Appeals of Texas, Dallas.
    June 1, 2010.
    Rehearing Overruled July 27, 2010.

      J.J. Knauff, Miller & McCarthy, P.C., Dallas, for Appellant.
    Timothy S. Perkins, Charles W. Blount, III, P. Theodore Stoinoff, II, Smith, Underwood & Perkins, P.C., Gene A. Hamm II, Dallas, for Appellees.
    Before Justices O’NEILL, LANG-MIERS, and FILLMORE.
   OPINION

Opinion by

Justice O’NEILL.

Amanda Ham was an overnight guest at The Wimberly Apartment Homes when she was shot by an intruder. She suffered injury and brought suit against appellees alleging negligence and gross negligence. The trial judge granted a no-evidence summary judgment. Ham appeals, alleging the trial judge erred by granting appellees’ no-evidence summary judgment. Ham also contends the trial court abused its discretion in denying her motions relating to spoliation of evidence and appellees’ designation of a responsible third party. We conclude there was no evidence to support the cause-in-fact element of Ham’s claims against appellees, and affirm the trial court’s judgment.

Background

In the early morning hours of June 10, 2005, an armed man entered The Wimberly Apartment Homes complex. Apartment 1311, in which Ham was an overnight guest, is visible from the front gate of the complex, and the area bordering its patio was unlit. The assailant kicked in the patio door and entered the apartment. Ham attempted to escape by jumping the patio railing into the unlit expanse between buildings. She ran approximately ten feet before hearing the sound of a gun being cocked. She turned around and was shot by the assailant; her left breast was blown off by the blast.

Ham sued appellees for damages, alleging causes of action for negligence, breach of statutory duty, negligent hiring and retention, and gross negligence. Appellees moved for summary judgment, contending there was no evidence to support essential elements of Ham’s claim, including no evidence of proximate cause. Discovery proceeded, including the designations and depositions of expert witnesses. In response to the motion for summary judgment, Ham contended she brought forth more than a scintilla of evidence to support each of her claims. Specifically, she contended five acts or omissions were the cause of her damages:

Defendants (i) did not have a sufficient notification policy to inform residents of criminal activity at the Complex; (ii) had burned-out lights, holes in fencing, and an inoperable gate at the Complex at the time of the shooting; (iii) had awareness that criminal activity increases in the summertime and when the gates are not functioning properly; (iv) had no security patrol working during the summer; and (v) was aware of prior criminal activity, similar in nature, in the days, weeks, and months proceeding the shooting. These acts and/or omissions separately and in combination allowed the assailant to gain entry to the Complex thereby causing Plaintiffs damages.

At the time of Ham’s injury, appellees employed a courtesy patrol officer to maintain security at the complex. The courtesy officer completed 111 days of reports and submitted them to appellees’ management. The deficiencies listed in the reports, such as deficient gates, lights, fencing, and criminal activity were to be remedied through the issuance of work orders. Ham sought these reports and work orders in discovery, but appellees did not produce any of them. Ham then sought sanctions and a spoliation presumption that the reports would be unfavorable to appellees. The trial judge denied Ham’s motion, and granted appellees’ no-evidence motion for summary judgment.

Appellees sought to designate the assailant as a responsible third party, first as John Doe, and then as Stanley Ledbetter. Ham moved to strike the designation of Ledbetter under section 33.004(7) of the Texas Civil Practice and Remedies Code on the ground that there was no evidence he was involved in the shooting. Appel-lees offered evidence in support of the designation, to which Ham objected. The trial court overruled Ham’s objections and permitted the designation.

Ham seeks reversal of the trial court’s summary judgment and the denial of her motions for a spoliation presumption and to strike the designation of Ledbetter as a responsible third party.

Standards of Review

We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. See Tex.R. Civ. P. 166(a)(i); Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). We must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. See Gen. Mills, 12 S.W.3d at 833. When analyzing no-evidence summary judgments, we consider the evidence in the light most favorable to the nonmovant. See id. at 833. A party submits less than a scintilla of evidence when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. King Ranch, Inc. v. Chapman, 118 S.W.Sd 742, 751 (Tex.2003).

When a defendant files a motion for ’ summary judgment asserting there is no evidence of one or more essential elements of a plaintiffs claims, the burden shifts to the plaintiff to present enough evidence to raise a genuine issue of material fact on the challenged elements. Tex.R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); Patino v. Complete Tire, Inc., 158 S.W.3d 655, 659 (Tex.App.-Dallas 2005, pet. denied). If the plaintiff does not raise a genuine issue of material fact, the trial judge must grant the motion. Patino, 158 S.W.3d at 659. If the trial court’s order does not specify the grounds on which the summary judgment was granted, “we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious.” See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003).

Ham also complains about the trial court’s refusal to make a spoliation presumption in response to appellees’ no-evidence summary judgment motion. Spoliation is the deliberate destruction of, failure to produce, or failure to explain the non-production of relevant evidence, which, if proved, may give rise to a presumption that the missing evidence would be unfavorable to the spoliator. See Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex.2003). A trial court’s denial of a spoliation instruction is reviewed for abuse of discretion. Id. at 723; MRT, Inc. v. Vounckx, 299 S.W.3d 500, 510 (Tex.App.Dallas 2009, no pet.).

Ham moved to strike appellees’ designation of a responsible third party, citing section 33.004(Z) of the Civil Practice and Remedies Code:

(l) After adequate time for discovery, a party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant’s alleged injury or damage. The court shall grant the motion to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person’s responsibility for the claimant’s injury or damage.

Tex. Civ. Prac. & Rem.Code Ann. § 33.004(í) (Vernon 2008). When a motion to strike is filed under this section, the defendant must produce “sufficient evidence to raise a genuine issue of fact.” Id. Whether the proof establishes as a matter of law that there is no genuine issue of fact is a question of law we review de novo. See Flack v. Hanke, — S.W.3d —, —, — (Tex.App.-San Antonio 2009, no pet. h.) (concluding standard of review under section 33.004(0 mirrors standard of review for no-evidence summary judgment).

Discussion

In her second issue, Ham contends the trial court erred by granting appellees’ no-evidence motion for summary judgment. Ham contends she offered evidence to raise a genuine issue of material fact on each of her claims. To prevail on her claims, Ham must establish the existence of a duty, a breach of that duty, and damages proximately caused by the breach. Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). “Proximate cause has two elements: cause in fact and foreseeability.” Id. at 551 (citing Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992)). Cause in fact and foreseeability “cannot be established by mere conjecture, guess, or speculation.” Urena, 162 S.W.3d at 551 (quoting Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995)). The Urena court explained, “[t]he test for cause in fact is whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred.” Id. (citing Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003)). The court also noted, “[i]f the defendant’s negligence merely furnished a condition that made the injuries possible, there can be no cause in fact.” Id. (citing IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex.2004)).

In Ham’s summary judgment response, regarding her negligence claim, she contended, “[tjhus, Defendants’ failure to secure the premises and remedy lighting, fencing, and gate issues are the proximate cause of the initial burglary and subsequent shooting of Amanda Ham (Exhibit “N”).” Exhibit N is the report of Bruce A. Jacobs, Ph.D., criminologist. Jacobs testified that he was asked to render his “professional opinion on the foreseeability of this incident and on the adequacy and I guess reasonableness of the crime prevention posture at the property in which— where this took place.” Jacobs’s report discusses foreseeability based upon similarity, recency, frequency, and proximity of criminal activity near the premises, as set forth in Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749, 756-57 (Tex.1998). He concludes these factors “made the apartment intrusion and shooting of Plaintiff reasonably foreseeable to the Defendant.” As to cause in fact, however, he states only: “The failures and omissions identified in the above paragraphs contributed substantially to the occurrence of the subject incident. Had these failures and omissions not been committed, the subject incident, in all reasonable probability, would not have occurred.”

Jacobs testified about the scope of his opinion:

Real straightforward, my opinion is gonna focus on foreseeability, inadequacy of crime prevention measures, those two areas.... I came here to offer two opinions .... The first one is that the — the apartment intrusion and assault of Ms. Ham was reasonably foreseeable. And the second opinion would be that the crime prevention posture in place at the subject property at the time of the incident was not adequate relative to the risk of victimization.... My job here is to analyze foreseeability and adequacy of crime prevention.
Jacobs concluded,
An apartment intrusion, assault and serious violent crime with a weapon was reasonably foreseeable, should have been reasonably foreseeable to this property.

Ham’s summary judgment response continued: “Moreover, Defendants’ failure to warn or make the Complex safe caused the tenants to act without full knowledge and proximately caused the injuries to Ms. Ham (Jacobs depo p. 151/17-20).” In the cited reference, Jacobs testified:

Well, she [Ham] wouldn’t have gone there in the first place because either or both of those roommates would not have lived there. So that’s very relevant to proximate cause.

Jacobs admitted that he had been unable to speak with either of the roommates.

Ham also relied on Jacobs’s testimony to support her claim for negligent hiring. Ham argued in her summary judgment response, “If Gutierrez [the courtesy patrol officer] had completed the daily reports and light checks required of her then the gate, lights, and fencing would have been repaired so the assailant would not have entered the Complex and injured Ms. Ham.” In support she cites to an excerpt from Jacobs’s deposition. The excerpt is in response to the question whether the assailant who attacked Amanda Ham “is an undeterrable offender.” Jacobs answered:

Well, what I will tell the jury is that based on the evidence from this crime scene and his MO and the — and the nature of the location that he selected, on the situational variables that swirl around this crime, he was sensitive to risk. Risk sensitivity is the most important precondition for deterability. So I will tell the jury that because of that risk sensitivity, although you may not prevent him from doing something somewhere else, you will move him down the street and it wouldn’t happen here, if the right posture was in place. So I will make that distinction for the jury, period.

In sum, Jacobs provided expert opinion and analysis on the question of foreseeability. He researched and considered crime statistics in light of the Tim-berwalk factors, as well as evaluating ap-pellees’ “responses to ambient crime risk.” As noted, he concluded Ham’s injury was reasonably foreseeable to appellees, and further concluded the incident would not have occurred in the absence of the failures and omissions he identified. But neither his report nor his testimony provides a factual basis for his conclusion that the incident would not have occurred but for the appellees’ failures and omissions. As the court noted in Urena:

Simply stated, Urena presented no evidence that L.U.’s sexual assault could have been prevented if Front Royale had done the three things the plaintiff claimed it should have done. Even assuming Front Royale’s acts or omissions constituted a breach of a duty owed to the Urenas, as they allege, the Urenas presented no evidence that such acts or omissions were a substantial factor in causing L.U.’s injury.

Urena, 162 S.W.3d at 552. Jacobs did not testify, and the evidence did not show, that the assailant on the night in question entered the complex through the gate, or through a hole in the fence, or as a result of inadequate lighting. If appellees’ negligence “merely furnished a condition that made the injuries possible, there can be no cause in fact.” Id. at 551.

In City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex.2009), the court explained that “conclusory opinions are legally insufficient evidence to support a judgment even if the party did not object to the admission of the testimony.” If “no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence,” regardless of whether an objection has been made. Id. at 818. A conclusory statement of an expert witness is insufficient to create a question of fact to defeat summary judgment. McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex.2003). The basis for Jacobs’s opinions in his report was his analysis of the risk of crime at the complex and appellees’ response to the risk. His report did not contain a basis for his additional opinion that Ham’s injury would not have occurred but for appel-lees’ negligence. He concludes the assailant was “risk averse,” and therefore could have been deterred from entering the complex by fencing, gates, and better lighting. His conclusion that the assailant was risk averse is based on “the nature of the location” and “the situational variables.” Jacobs concludes the assailant chose this property as the location for a crime because he was risk averse. The evidence he cites to show that the assailant was risk averse, however, is the assailant’s choice of the property. These conclusory statements are not evidence of cause in fact. We conclude the trial court did not err in granting summary judgment because there was no evidence appellees’ negligence was the cause in fact of Ham’s injuries. We overrule Ham’s second issue.

In her third issue, Ham contends the trial court granted appellees more relief than was requested in their no-evidence motion for summary judgment. Ham contends that as to her negligence per se claims, appellees’ motion was directed to only one statutory violation alleged in her petition regarding required door locks. After the motion was filed, she amended her petition to allege additional statutory violations. Appellees cite our opinion in McIntyre v. Wilson, 50 S.W.3d 674, 684-85 (Tex.App.-Dallas 2001, pet. denied), for the proposition that if the grounds initially asserted in the summary judgment motion conclusively negate an element that is common to the allegations asserted in the amended petition, then summary judgment is proper. We agree that appellees’ motion was broad enough to reach the later-pled claims. The new allegations arise out of provisions of the Dallas City Code and the International Property Maintenance Code regarding fencing and lighting. The same deficiencies were pleaded in her negligence claims, and proximate cause is an element of both. See Missouri Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex.1977) (negligence per se claim requires proof that negligence was proximate cause of damages). We conclude the trial court did not grant more relief than was requested in appellees’ motion for summary judgment. See also Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 437 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (no-evidence summary judgment motion addressed claims in amended petition that asserted new variations of original negligence claim, and motion adequately covered elements of duty, breach, and causation). We overrule Ham’s third issue.

In her first issue, Ham complains the trial judge erred in denying her motion for a spoliation presumption to be applied regarding 111 missing reports by the “courtesy patrol” officer at the complex, work orders for repairs to be made at the complex, and files of six other tenants who were victims of criminal activity. Ham argues, “[a]ppellees used their swords by spoliating important evidence, then hid behind their shields by bringing a motion wherein they argued Appellant had no evidence to establish her claims.” In analyzing this issue, we consider (1) whether there was a duty to preserve evidence; (2) whether the alleged spoliator breached that duty; and (3) whether the spoliation prejudiced the non-spoliator’s ability to present its case. Adobe Land Corp. v. Griffin, L.L.C., 236 S.W.3d 351, 357 (Tex.App.-Fort Worth 2007, pet. denied) (citing Trevino v. Ortega, 969 S.W.2d 950, 954-55 (Tex.1998) (Baker, J., concurring)).

Assuming appellees had a duty to preserve the evidence and breached it, we consider whether the spoliation prejudiced Ham’s ability to present her case. See id. Ham argues the missing evidence “supports key issues in this case,” including the Timberwalk factors, the inadequacy of the lighting, gates, and fencing, and appellees’ notice of other crimes occurring in the complex. Assuming the reports showed “burned-out lights, holes in fencing, and an inoperable gate at the Complex at the time of the shooting,” as alleged in Ham’s petition, and that appellees had notice of other crimes at the complex, the evidence would be relevant to the foreseeability analysis under Timberwalk.

Appellees note there was other similar evidence available, citing Trevino. See Trevino, 969 S.W.2d at 958 (“Additionally, courts should consider whether the destroyed evidence was cumulative of other competent evidence that a party can use in place of the destroyed evidence, and whether the destroyed evidence supports key issues in the case.”). Appellees cite to police reports, call logs, and incident reports for criminal activity at the complex. Other security reports and logs showed information about the adequacy of the lighting and the gates, and several witnesses testified on these subjects. Appel-lees also note that two of Ham’s experts “gave no indication of an inability to present opinions because of missing evidence,” and Jacobs testified “I have enough data and documentation right now to render these opinions.”

In our review of the trial court’s no-evidence summary judgment, we concluded Ham presented no evidence on the cause-in-fact element of proximate cause. Because the missing evidence would have been probative of foreseeability rather than cause in fact, a spoliation presumption would not alter our conclusion. The missing evidence would not have provided a factual basis on which a jury could conclude Ham’s injury would not have occurred in the absence of appellees’ alleged failures and omissions. See Urena, 162 S.W.3d at 551. We conclude the trial judge did not abuse his discretion in denying Ham’s request for a spoiliation presumption, and overrule Ham’s first issue.

In her fourth and fifth issues, Ham contends her motion to strike appellees’ designation of a responsible third party should have been granted, and her objections to appellees’ evidence relating to the designation should have been sustained. Appel-lees counter that any error in the trial judge’s ruling is not reversible error because it did not cause the rendition of an improper judgment, as required by Rule 44.1, Texas Rules of Appellate Procedure. See Tex.R.App. P. 44.1 (“No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes the error complained of ... probably caused the rendition of an improper judgment ... ”). Appellees argue the designation of Ledbet-ter as a responsible third party had no effect on the no-evidence summary judgment granted by the trial court. Ham concedes, “it is true the trial court’s ruling in this regard had no effect on the summary judgment,” but argues we should address the claim in the interest of judicial economy, as the issue will arise again on remand. As we have affirmed the trial court’s summary judgment, we need not address these issues.

We affirm the trial court’s judgment.

      . The fifth Timberwalk factor, the publicity surrounding a previous crime to help determine whether a landlord knew or should have known of a foreseeable danger, is not mentioned in Jacobs's report. See Timberwalk, 972 S.W.2d at 758-59. Jacobs instead opines that appellees were negligent in failing to solicit and analyze crime statistics on their own initiative. In her brief, Ham relies on other summary judgment evidence regarding the publicity factor. Specifically, she argues that appellees' manager was aware of incidents of drug dealing, murder, theft, burglary, and the presence of vagrants on the property. She also argues appellees were aware that "criminal activity increases in the summertime,” and "dark areas are prime targets for criminal activity.”

      . As to her claim for negligence per se, a claim that appellees violated statutes regarding fencing, lighting, safety in common areas, and the existence and size of deadbolts on apartment doors, plaintiff did not specifically cite evidence that the statutory violations were the proximate cause of her injuries. She cited testimony to establish the door lock was broken by the assailant and was smaller than the required size, but not evidence that either of these factors was a substantial factor in her injury and without which the harm would not have occurred. See Urena, 162 S.W.3d at 551.


text:
    Rupert M. POLLARD, Appellant, v. David J. HANSCHEN, Appellee.
    No. 05-09-00704-CV.
    Court of Appeals of Texas, Dallas.
    June 8, 2010.
    Rehearing Overruled July 27, 2010.

      Rupert M. Pollard, Dallas TX, pro se.
    Ruth Kollman, Kollman & Kubieki, L.L.P., Corpus Christi, TX, for Appellant.
    Before Justices O’NEILL, FRANCIS, and MURPHY.
   OPINION

Opinion By

Justice O’NEILL.

Appellant Rupert M. Pollard filed a legal malpractice suit against appellee David J. Hanschen. Appellee filed no-evidence and traditional motions for summary judgment asserting the affirmative defense of limitations. The trial court granted appellee’s motions. We affirm in part and reverse and remand in part.

Background

In the fall of 1999, appellant hired appel-lee to represent him in a divorce action. Appellant became unhappy with appellee’s representation, which eventually led to a fee dispute. Appellee withdrew as counsel in August 2000. The divorce case was set for trial in September.

Appellant hired a new attorney, who on the eve of trial, negotiated what appellant thought was an accord and satisfaction of the fees in the amount of $5,500. Appellant agreed to sign over a cashier’s check for $20,000 with the understanding that appellee would return $14,500. However, appellee retained an additional $3,400, which he refused to return.

Appellant filed his original petition against appellee alleging breach of fiduciary duties, conversion, restitution and money had and received, fraud, professional negligence, and breach of contract. Appel-lee originally filed a no-evidence motion for partial summary judgment asserting all of appellant’s claims were barred by limitations. Appellant filed a response and objections asserting appellee could not assert the affirmative defense of limitations through a no-evidence motion for summary judgment and even if construed as a traditional summary judgment motion, appellee still failed to conclusively establish as a matter of law when the causes of action accrued or disprove that the claims were tolled during the divorce proceedings.

Appellee later filed a traditional motion for summary judgment, incorporating his previous no-evidence motion, arguing appellant’s claims were time-barred. He further asserted the Hughes tolling doctrine did not apply because the August 18, 2003 reversal and remand by this Court of the underlying September 2000 divorce proceeding “severed any ‘chain of causation’ for Hanschen’s conduct before the first trial.” Appellant filed a response asserting all his claims arose out of a long-running piece of litigation (the divorce proceedings); therefore, the statutes of limitations were tolled on all of his claims.

The trial court held a hearing on January 23, 2009. The court signed an order granting appellee’s no-evidence and traditional motions for summary judgment on February 17, 2009. Appellant filed a motion for new trial, which the trial court denied. This appeal followed.

Pollard raises nine separate issues, which fall into two categories: challenges to the no-evidence motion and the traditional motion for summary judgment based on the affirmative defense of limitations. We will address these issues accordingly.

Standards of Review

The standard of review in traditional summary judgment cases is well-established. The issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Thomas v. Omar Inn, Inc., 129 S.W.3d 290, 292-93 (Tex.App.-Dallas 2004, no pet.). A defendant is entitled to summary judgment if he conclusively negates an essential element of the plaintiffs case or conclusively establishes all necessary elements of an affirmative defense. Thomas, 129 S.W.3d at 293.

A no-evidence summary judgment is essentially a pretrial directed verdict. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). After an adequate time for discovery has passed, a party without the burden of proof at trial may move for summary judgment on the ground that the nonmoving party lacks supporting evidence for one or more essential elements of his claim. See Tex R. Civ. P. 166a(i); Thomas, 129 S.W.3d at 293. The moving party must file a motion that specifies which elements of the nonmoving party’s claim lack supporting evidence. Tex.R. Civ. P. 166a(i). Once a proper motion is filed, the burden shifts to the non-moving party to present evidence raising any issues of material fact. Murray v. Ford Motor Co., 97 S.W.3d 888, 890-91 (Tex.App.-Dallas 2003, no pet.). A party should not move for a no-evidence summary judgment based on an affirmative defense that he has the burden to prove at trial. Thomas, 129 S.W.3d at 293; see also Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex.App.-Houston [14th Dist.] 2003, no pet.).

The Hughes Doctrine

Central to this appeal is whether the Hughes doctrine applies. In Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 155 (Tex.1991), the Texas Supreme Court determined “the proper application of the statute of limitations in a legal malpractice case when the attorney allegedly commits malpractice while providing legal services in the prosecution or defense of the claim which results in litigation.” The court concluded the statute of limitations is tolled until all appeals are exhausted on the underlying suit in which the malpractice allegedly occurred. Id. It further supported its conclusion by stating the viability of the second action depends on the outcome of the first. Id. at 157. Where “a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” Id. (citing Walker v. Hanes, 570 S.W.2d 534, 540 (Tex.Civ.App.-Corpus Christi 1978, writ refd n.r.e.)). Application of this doctrine will be further discussed below.

No-Evidence Motion for Summary Judgment

Appellee filed a no-evidence motion for summary judgment arguing the statute of limitations barred appellant’s seven causes of action. Appellant argues a no-evidence motion for summary judgment is an inappropriate procedural vehicle for adjudicating the limitations issue. We agree.

A party may not file a no-evidence summary judgment motion on an affirmative defense he has the burden to prove at trial. Nowak, 110 S.W.3d at 680 (party need not respond to such a motion because the motion should not have been filed at all); see also Burges v. Mosley, 304 S.W.3d 623, 628 (Tex.App.-Tyler 2010, no pet.); Adams v. First Nat’l Bank of Bells/Savoy, 154 S.W.3d 859, 876 (Tex.App.-Dallas 2005, no pet.). Appellee filed the motion on his own “claim,” the affirmative defense of limitations. As a result, the motion failed to state that appellant could show no evidence of a specific element of his causes of action, which is required under rule 166a(i). Tex.R. Civ. P. 166a(i).

A defendant urging summary judgment on an affirmative defense is in the same position as a plaintiff urging summary judgment on a claim. Nowak, 110 S.W.3d at 680. The party asserting the defense has the burden of pleading and proving it. Tex.R. Civ. P. 94. Appellee seems to recognize this by stating “in a motion for summary judgment based on a statute of limitations, the burden is on the movant to establish as a matter of law that the applicable statute of limitations bars the action.” However, he has confused the traditional summary .judgment standard with the no-evidence standard. Because a party may never properly move for a no-evidence summary judgment to prevail on his own affirmative defense, the trial court erred in granting appellee’s no-evidence motion for summary judgment. Thus, we sustain appellant’s ninth issues. Having sustained his ninth issue, we need not determine whether appellant presented competent summary judgment evidence sufficient to raise a fact issue to overcome the no-evidence motion for summary judgment.

Traditional Motion for Summary Judgment

Despite the court improperly granting the no-evidence motion for summary judgment, appellee later filed a traditional motion for summary judgment incorporating his arguments from the previous motion and again arguing all of appellant’s causes of action are barred by limitations.

Appellee correctly categorizes appellant’s claims into two groups: (1) a cashier’s check transaction following termination of the attorney-client relationship between the two parties and (2) appellee’s legal malpractice in handling the divorce case. Although both parties discuss numerous dates in support of their limitations arguments throughout their motions, responses, and replies, we will focus only on those dates specifically relied on by appellee in his motions for summary judgment. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993) (holding motion for summary judgment must itself expressly present the grounds upon which it is made and “the motion must stand or fall on the grounds expressly presented in the motion”).

Appellant provides three relevant dates for purposes of his limitations defense: September 11, 2000, which is the trial date for the divorce case and date by which appellee had withdrawn as counsel; “on the eve of trial,” which is the date appellant asserted in his original petition was the date of an agreement between the parties regarding payment of outstanding fees by a cashier’s check transaction; and March 26, 2004, the date the Texas Supreme Court denied a motion for rehearing for petition of review by appellant’s ex-wife regarding this Court’s reversal of the underlying divorce case.

The first two dates are relevant for the claims involving the cashier check transaction, and we will address them first. Ap-pellee contends the claims for restitution and unjust enrichment, conversion, money had and received, breach of contract, and fraud did not at any time depend on the outcome of the underlying litigation; therefore, the Hughes doctrine does not apply. Appellant argues because all of his claims against appellee arose out of appel-lee’s conduct in the divorce case, limitations on all of his claims were tolled until the divorce case concluded. We agree with appellee.

Appellant’s claims involving the cashier’s check transaction did not occur in the prosecution or defense of a claim that resulted in the litigation. His underlying malpractice claim stems from appellee’s actions in the divorce case. None of the claims for recovery of the alleged $3,400 are dependent on the outcome of the divorce proceedings. Thus, the rationale for the Hughes tolling doctrine does not apply to those causes of action.

Appellant relies on Davenport v. Verner & Brumley, P.C, 05-98-01240-CV, 2001 WL 969249 (Tex.App.-Dallas 2001, no pet.) (op. on rehearing) to support his argument that the Hughes doctrine applies to these causes of action. In that case, this Court concluded the trial court erred in granting summary judgment and dismissing claims for negligence, breach of fiduciary duty, breach of implied warranty, and fraud based on limitations. Id. at *1. The court held the Hughes doctrine applied to toll the limitations on the claims until the underlying appeal became final. Id. at *2.

Davenport is distinguishable and therefore does not support appellant’s broad argument that any and all claims are tolled under the Hughes doctrine when a party files a legal malpractice claim. The causes of action raised in Davenport were directly related to the legal malpractice, which was tied to the underlying divorce proceeding. The court applied the doctrine because to hold otherwise would “force the client into adopting inherently inconsistent litigation postures in the underlying case and the malpractice case.” Hughes, 821 S.W.2d at 156. Limitations should be tolled for the second cause of action when the viability of the second cause of action depends on the outcome of the first. Id. at 157. As previously stated, that is not the case with the causes of action related to the cashier’s check. Thus, we do not find appellant’s reliance on Davenport persuasive.

Because the Hughes doctrine does not apply, we must now consider the statute of limitations for each cause of action and determine if appellant’s original petition was timely filed. A two-year statute of limitations applies to conversion and restitution claims. Tex. Crv. Prac. & Rem. Code Ann. § 16.003(a) (Vernon Supp.2009); Elledge v. Friberg-Cooper Water Supply Corp., 240 S.W.3d 869, 870 (Tex.2007). Likewise, a claim for money had and received is equitable in nature and “belongs conceptually to the doctrine of unjust enrichment.” Edwards v. Mid-Continent Office Distrib., L.P., 252 S.W.3d 833, 837 (Tex.App.-Dallas 2008, pet. denied). As such, the two-year statute of limitations applies. See Elledge, 240 S.W.3d at 870 (holding unjust enrichment claims fall under section 16.003).

Appellant admits in his original petition the parties reached an agreement regarding outstanding legal fees and exchanged a cashier’s check to cover the fees “on the eve of trial.” The divorce case went to trial on September 11, 2000. Thus, appellant had until September 2002 to file his conversion, restitution, and money had and received claims against appellee. Because he filed his original petition on October 9, 2006, his claims are barred by limitations.

A four-year statute of limitations applies to fraud, breach of contract, and breach of fiduciary duty claims. Tex. Civ. Prac. & Rem.Code Ann. § 16.004(4), (5) (Vernon 2002). Appellant, therefore, needed to file his suit before September 2004, which he failed to do. Again, his claims are barred by limitations. Thus, the trial court did not err in granting appellee’s traditional motion for summary judgment on appellant’s claims for conversion, restitution, fraud, money had and received, breach of contract, and breach of fiduciary duty to the extent his arguments encompass events surrounding the cashier’s check transaction. We overrule appellant’s fifth issue.

We now turn to appellant’s remaining claims for professional negligence and breach of fiduciary duty. Appellee argues the Hughes doctrine tolled the statute of limitations only until all appeals of the underlying claim were exhausted. See Hughes, 821 S.W.2d at 156. Therefore, the date of the last appellate ruling from the underlying divorce proceeding was March 26, 2004, the date the Texas Supreme Court denied the motion for rehearing. Thus, because professional negligence has a two-year statute of limitations, appellant had to file his petition by March 26, 2006. See Parsons v. Turley, 109 S.W.3d 804, 807-08 (Tex.App.-Dallas 2003, pet. denied). He further alleges the remand by this Court for a new trial in the divorce case “severed any chain of causation” for his conduct. We do not agree.

The Hughes doctrine provides a bright-line rule regarding the tolling of limitations. It does not provide an exception in cases such as this, in which litigation in some form has been ongoing since 1992. Here, when the supreme court denied the ex-wife’s petition for review, our reversal and remand for a new divorce trial was upheld; therefore, litigation was still ongoing for tolling purposes. The reversal and remand did not start a new divorce case. Presently, another appeal involving the dismissal for want of prosecution of the underlying divorce after our original remand is still pending before this Court. See In the Matter of the Marriage of Marie A. Merkel and Rupert M. Pollard, Cause No. 05-08-01615-CV, submitted April 28, 2010. Thus, the Hughes doctrine continues to apply for tolling purposes until all appeals in the underlying divorce case are exhausted.

Appellee has failed to establish as a matter of law that appellant’s professional negligence and breach of fiduciary duty claims are barred by limitations. We sustain appellant’s issues one, three, seven, and eight. Having sustained these issues, we need not consider issues four and six.

Conclusion

Having addressed appellant’s nine issues, we affirm the trial court’s granting of the traditional motion for summary judgment to the extent it involves the cashier’s check transaction claims.

We reverse the trial court’s granting of the no-evidence motion for summary judgment. We further reverse and remand to the trial court the claims involving appellant’s professional malpractice and breach of fiduciary duty related to the malpractice claims.

      . Appellant contends because the trial court improperly granted the no-evidence motion for summary judgment, appellee has waived all of his claims regarding the cashier’s check because he did not argue these claims in his traditional motion for summary judgment.

        We do not agree. As noted, appellee fully incorporated his arguments from the no-evidence motion for summary judgment into his traditional motion for summary judgment. Therefore, these claims were before the trial court to consider, and we will likewise consider them.

      . In his reply to plaintiff’s response and objections to rule 166a(c) motion for summary judgment, appellee argues any tolling of limitations came to an abrupt end on either (1) the issuance of this Court’s mandate in the underlying divorce case on May 25, 2004 or (2) on the death of appellant’s ex-wife in October 2004. Appellee did not provide these dates as a basis for his arguments in his motions for summary judgment; therefore, we do not consider them in our analysis of whether the trial court properly granted the motions. See McConnell, 858 S.W.2d at 340 (noting a brief in support is not a motion, answer, or response as contemplated by rule 166a, and the motion must expressly present the grounds upon which it relies).

      . Appellant further raises a breach of fiduciary duty claim against appellee for his alleged legal malpractice, which will be discussed later. We also recognize that appellant pleaded in his original petition that appellee breached an oral contract to competently and zealously represent him in the divorce proceeding. However, the only breach of contract claim a party may bring against an attorney that does not actually fall under malpractice is a claim for excessive fees. See Jampole v. Matthews, 857 S.W.2d 57, 62 (Tex.App.-Houston [1st Dist.] 1993, writ denied). Thus, appellant’s breach of contract claim for fees involving the cashier’s check transaction needed to be filed within four years of September 2000. Tex. Civ Prac & Rem.Code Ann. § 16.004.

      .We acknowledge claims regarding the quality of a lawyer’s representation of a client are professional negligence claims, but that not all claims by clients against lawyers are professional negligence claims. Murphy v. Gruber, 241 S.W.3d 689, 696-97 (Tex.App.-Dallas 2007, pet. denied). We are not bound by the labels parties place on their claims, but rather determine what statute of limitations applies based on the real substance of the claims. Id. at 697. However, under these facts, we need not determine whether appellant has "fractured” his claims for purposes of our analysis because the Hughes tolling doctrine applies regardless.

      . This issue is presented as "the trial court erred in granting Hanschen’s traditional motion for summary judgment ... as to all claims.” To avoid any confusion, we reiterate our holding does not include causes of action regarding the cashier's check transaction. Thus, to the extent issue three encompasses those causes of action, it is overruled.

        . Issue four concerned whether appellant provided competent summary judgment evidence to raise a material fact question as to one element of appellee's affirmative defense. Issue six involved whether appellant timely filed suit within two years of the trial court dismissing the underlying divorce case on February 23, 2005 for want of prosecution.


author: Justice MYERS.

text:
    TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. SILVER CITY CLUB, A Private Membership Club, Appellee.
    No. 05-09-00422-CV.
    Court of Appeals of Texas, Dallas.
    June 10, 2010.
    Rehearing Overruled July 28, 2010.

      James C. Ho, Solicitor General, Beth Klusmann, Assistant Solicitor General, Office of the Attorney General, Austin, TX, for Appellant.
    Roger Albright, Law Offices of Roger Albright, Dallas, TX, J. Michael Murray, Berkman, Gordon, Murray & DeVan, Raymond V. Vasvari, Cleveland, OH, for Ap-pellee.
    Before Justices RICHTER, LANG-MIERS, and MYERS.
   OPINION

Opinion By

Justice MYERS.

The Texas Alcoholic Beverage Commission appeals the trial court’s judgment declaring section 32.03(k) of the Texas Alcoholic Beverage Code void for violating article III, section 35(a) of the Texas Constitution and reversing the Commission’s order refusing to renew Silver City Club’s permit to serve alcohol. The Commission brings one issue asserting the trial court erred in determining section 32.03(k)’s enactment violated the “single subject rule” of article III, section 35(a). We conclude section 32.03(k) does not violate the single-subject rule, we reverse the trial court’s judgment, and we render judgment affirming the decision of the Commission.

BACKGROUND

Silver City Club is a private club operating a sexually oriented business providing erotic dance performances. See Illusions-Dallas Private Club, Inc. v. Steen, No. 3:04-CV-0201-B, 2007 WL 4380132, at *1 (N.D.Tex. Dec. 13, 2007); see also IUu-sions-Dallas Private Club, Inc. v. Steen, 482 F.3d 299, 303 (5th Cir.2007) (describing Silver City Club as an “adult cabaret! ]” featuring “sexually oriented dancing”). Although the Club is located in an area that is “dry” for all alcoholic beverages, the Club served alcohol under a private club registration permit. Alco. Bev. Code Ann. §§ 32.01-.24 (Vernon 2007) (private club registration permits); id. § 251.71(a) (defining “dry area”). In 2003, the Texas Legislature amended section 32.03 of the alcoholic beverage code by adding paragraph (k), which prohibited the Commission from issuing or renewing a private club registration permit for a club in a dry area that operates a sexually oriented business. Id. § 32.03(k); Act of Oct. 12, 2003, 78th Leg., 3d C.S., ch. 3, § 21.04, 2003 Tex. Gen. Laws 78, 104-05 (House Bill 7). Silver City and other clubs brought suit in federal court asserting section 32.03(k) violated the United States Constitution. The Commission reached an agreement with the clubs to continue to renew them permits while they litigated the provision’s validity. On May 15, 2008, the United States District Court for the Northern District of Texas rejected the clubs’ federal constitutional claims and concluded the Commission proved “overwhelmingly” that the statute was narrowly tailored and furthered a substantial governmental interest. See Illusions-Dallas Private Club, Inc. v. Steen, No. 3:04-CV-0201-B, 2008 WL 2490457, at *1 (N.D.Tex. June 20, 2008) (mem. op.). On February 6, 2009, when the Club’s private club registration permit came up for renewal, the Commission refused the Club’s renewal application because the Club was operating in violation of section 32.03(k). The Club then filed suit in state district court under sections 11.67 and 32.18 of the alcoholic beverage code to appeal the Commission’s order refusing to renew its club permit. See Tex. Alco. Bev.Code Ann. §§ 11.67, 32.18 (Vernon 2007). The trial court concluded the enactment of section 32.03(k) violated article III, section 35 of the Texas Constitution and was void. The trial court reversed the Commission’s order refusing the Club’s permit renewal application and remanded this matter to the Commission for further proceedings. The Commission now appeals the trial court’s judgment.

SINGLE-SUBJECT RULE

In its sole issue, the Commission asserts the trial court erred in determining section 32.03(k) was enacted in violation of the Texas Constitution’s single-subject rule. We review a trial court’s determination of questions of law de novo. Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex.2009).

Article III, section 35(a) of the constitution provides, “No bill, (except general appropriations bills ...) shall contain more than one subject.” Tex. Const, art. Ill, § 35(a). The bill’s subject must be expressed in the title in a manner that gives reasonable notice of the subject. Id. art. Ill, § 35(b). However, a law may not be held void on the basis of an insufficient title. Id. art. Ill, § 35(c). A law that contains more than one subject matter is void as to the subject not expressed in the title. Id. art. Ill, § 35 interp. commentary (Vernon 2007). One purpose of the single-subject requirement is “to prevent logrolling legislation, i.e., to prevent the writing of several subjects having no connection with each other in one bill for the purpose of combining various interests in support of the whole.” Id.; see also LeCroy v. Hanlon, 713 S.W.2d 335, 337 (Tex.1986).

When reviewing the constitutionality of a statute, we presume the act is constitutional. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.2003); see Tex. Gov’t Code Ann. §§ 311.021(1) (Vernon 2005) (presumption that legislature, in enacting a statute, intended to comply with Texas and federal constitutions). We liberally construe both the constitutional provision and the statute in favor of the statute’s constitutionality. Robinson v. Hill, 507 S.W.2d 521, 524 (Tex.1974). “The statute will not be held unconstitutional where its provisions relate, directly or indirectly, to the same general subject, have a mutual connection, and are not foreign to the subject expressed in the title.” Id. at 524-25. The party challenging a statute’s constitutionality has the burden of proving the statute fails to meet constitutional requirements. Walker, 111 S.W.3d at 66.

The title of House Bill 7 was, “AN ACT relating to the reorganization of, efficiency in, and other reform measures applying to governmental entities and certain regulatory practices; providing a penalty.” Act of Oct. 12, 2003, 78th Leg., 3d C.S., ch. 3, § 21.04, 2003 Tex. Gen. Laws 78. The amendment to section 32.03(k) was included in article 21 of the bill, which was titled, “Alcoholic Beverage Regulation.” Id. at 104. The provision at issue was in section 21.04, which stated,

(a) Section 32.03, Alcoholic Beverage Code, is amended by adding Subsection (k) to read as follows:
(k) A private chib registration permit may not be issued to or maintained by a club for a premises located in a dry area if the club operates a sexually oriented business, as defined by Section 24.3.002, Local Government Code, on the premises.
(b) Section 32.03(k), Alcoholic Beverage Code, as added by this section, applies to a permit issued or renewed on or after the effective date of this section. A permit issued or renewed before the effective date of this section is governed by the law in effect immediately before that date only until the first renewal date for the permit that occurs on or after the effective date of this section, and that law is continued in effect for that purpose.

Id. at 104-05.

The Club presented two arguments for why House Bill 7’s amendment of section 32.03 violated the single-subject rule: (1) the bill covers a broad range of subjects, and not a single subject matter; and (2) the amendment to section 32.03 does not fall within the subject matter of House Bill 7’s title.

The Club points out that House Bill 7 contains thirty-three substantive articles affecting approximately forty chapters of twelve or more codes. The supreme court has held that a law may cover numerous areas while still complying with the single-subject requirement. In LeCroy v. Han-lon, the supreme court held that the Omnibus Fee Bill, a law containing eighty-nine substantive sections covering widely varying areas of law, did not violate the single-subject rule because the provisions all related directly or indirectly to the same general subject, the imposition and collection of fees. LeCroy, 713 S.W.2d at 337; see also Act of May 26, 1985, 69th Leg., R.S., ch. 239, Tex. Gen. Laws 1181.

Article 21 is the only portion of House Bill 7 that concerns alcoholic-beverage regulation or sexually oriented businesses. To show the bill includes more than one subject, the Club cites to thirteen other provisions in the bill as well as to article 21’s amendment of section 32.03. These provisions included such diverse areas of law as: presumptions that unclaimed wages are abandoned under certain defined circumstances under the unclaimed-property statutes (article 2); the required content of regional solid waste management plans (article 7); the training requirements for the Commissioner of Insurance (article 10); the membership of the State Board of Pardons and Paroles (article 11); extensions of eligibility for state employee benefit participation (article 16); permission for members of the Legislative Budget Board to attend board meetings telephonically (article 4); redefining of the roles of the governor and state auditor with respect to the oversight of the regional planning commissions (article 9); authorization for the City of Austin to sell small tracts of certain parks and recreational land to private adjacent land owners without the property reverting to the State (article 13); tax exemptions for nonprofit corporations providing land to state healthcare schools (article 20); provisions for the Department of Public Safety not to lose funding for employees retiring with lump-sum incentive payments (article 22); permission for the Department of Agriculture to enter into agreements with the Texas Beef Council to share the costs of campaigns promoting Texas agricultural products (article 25); permission for every independent school district’s board of trustees to require the trustees to file financial statements (article 30); and postponement of the creation of two judicial districts from January 15, 2004 to September 15, 2005 (article 32). Liberally construing these diverse provisions, we conclude they are all related, at least indirectly, under the common subject of government reform as required by House Bill 7’s title. Accordingly, the fact that House Bill 7 covers many different codes and areas of law does not violate article III, section 35’s requirement that the bill contain no more than one subject.

The Club also argued that section 21.04 of House Bill 7 did not concern the subject expressed in the title, “the reorganization of, efficiency in, and other reform measures applying to governmental entities and certain regulatory practices.” The Commission asserts the provision’s amendment to section 32.03 of the alcoholic beverage code falls -within the title because it is a reform measure increasing the Commission’s efficiency through its regulatory practices.

The secondary effects of businesses selling alcohol and of sexually oriented businesses are both well known. The sale of alcohol may result in increased social ills and criminal behavior in the area, including increased crime, drinking on premises, litter, loitering, public intoxication, urinating in public, and harassment of children and elderly residents. See City of Dallas v. Dallas Merch.’s & Concessionaire’s Ass’n, 823 S.W.2d 347, 350 (Tex.App.-Dallas 1991), rev’d on other grounds, 852 S.W.2d 489, 495 (Tex.1993). Municipalities and precincts seeking to avoid or rid themselves of these social and criminal ills have the right through public election to prohibit the sale of alcohol. See Tex. Alco. Bev. Code Ann. §§ 109.31, 251.72 (Vernon 2007). However, even in areas where the residents have voted to prohibit sales of alcohol, the law permits private clubs to serve alcohol to their members. See id. § 32.01.

Before the addition of paragraph (k) to section 32.03, the Commission could not refuse to renew a club’s permit unless it had reasonable grounds to believe and found certain conditions existed, including:

(8) the place or manner in which the applicant may conduct his business warrants the refusal of a permit based on the general welfare, health, peace, morals, and safety of the people and on the public sense of decency; ... or (15) during the six months immediately preceding the filing of the application the premises for which the permit is sought have been operated, used, or frequented for a purpose or in a manner that is lewd, immoral, or offensive to public decency.

Tex. Alco. Bev.Code Ann. § 11.46(a)(8), (15) (Vernon 2007). Such a determination, however, required an individualized investigation into the activities at the club. Section 32.03(k) reformed the way the Commission performs its regulatory functions in dry areas. No longer will it have to send investigators to dry areas to determine whether a private club operating a sexually oriented business is operating in a lewd, immoral, other manner offensive to public decency or whether the establishment is a threat to the general welfare, health, peace, morals, and safety of the people and to the public sense of decency. See id. Instead, the Commission will simply deny the permit or renewal without the time and expense of an investigation into the club’s activities and its effects on the public.

The supreme court requires that we liberally construe both article III, section 35 and alcoholic beverage code section 32.03(k) in favor of the statute’s passing constitutional muster. See Robinson, 507 S.W.2d at 524. Applying the required liberal construction to both the constitutional and statutory provisions, we conclude section 32.03(k) concerns the subject expressed in the title of House Bill 7, “the reorganization of, efficiency in, and other reform measures applying to governmental entities and certain regulatory practices.” We conclude the trial court erred in concluding section 32.03(k) violated the single-subject rule of article III, section 35 of the Texas Constitution. We sustain the Commission’s issue.

We reverse the trial court’s judgment and render judgment that the Commission’s order refusing the Club’s renewal permit application is affirmed.

      . The record contains a "Location Inspection Form” dated April 20, 2000, about two months before the Club opened, stating part of the Club's premises would be a topless bar. In its brief on appeal the Club described itself as an adult cabaret.

        . After the trial court declared section 32.03(k) void under the Texas Constitution's single-subject rule, the Fifth Circuit vacated the federal district court’s judgment without regard to the merits and remanded "so the district court can consider the precise impact of the Texas state court’s judgment on this case and the appropriate course of future action, such as a stay or a dismissal as moot or unripe.” Illusions-Dallas Private Club, Inc. v. Steen, 320 Fed.Appx. 274, 276 (5th Cir.2009).