source: Caselaw Access Project

author: KEASLER, J., JOHNSON, J.,

license: Public Domain

text:
    Amber LOVILL, Appellant, v. The STATE of Texas.
    No. PD-0401-09.
    Court of Criminal Appeals of Texas.
    Dec. 16, 2009.
    Rehearing Denied April 28, 2010.

      Brian C. Miller, Corpus Christi, TX, for Appellant.
    Douglas K. Norman, Asst. Dist. Atty., Jeffrey L. VanHorn, State’s Attorney, Austin, TX, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court

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

The Corpus Christi Court of Appeals held that Amber Lovill’s selective prosecution complaint was preserved because, among other things, everyone understood her complaint and she presented a selective prosecution complaint in a motion for a new trial. We disagree. Under the particular facts here, Lovill forfeited her selective prosecution complaint for appellate purposes because her revocation proceeding statements were not specific and timely as required by Rule 33.1 of the Texas Rules of Appellate Procedure.

Background

The State charged Lovill with two counts of forgery. In January 2005, pursuant to a plea agreement, Lovill pled guilty to the charges and filed an application for probation. After accepting Lo-vill’s pleas and finding her guilty, the trial judge sentenced Lovill to two years’ confinement in a state-jail facility. The judge also ordered Lovill to pay a $1,000 fine and $700 in restitution. In accordance with the plea agreement, the judge suspended the term of imprisonment and placed Lo-vill on community supervision for three years. The trial judge directed Lovill to comply with several terms and conditions while under supervision. Some of those terms and conditions required Lovill to:

• “Avoid injurious or vicious habits and or [sic], avoid the use of ... narcotics or any other controlled substances and submit to testingblood analysis/uri-nanalysis [sic] as directed ...”
• “REPORT TO THE CSCD [ (Community Supervision and Corrections Department) ] OFFICER AS DIRECTED and at least once a month”;
• Pay a number of fees associated with her supervision;
• “Participate in the SPECIALIZED CASELOAD for SUBSTANCE ABUSE Program;” and
• “[Satisfactorily participate in a screening/assessment for substance abuse and submit to any counseling, urinanalysis [sic], and/or any diversionary program as determine[d] within the CSCD’s TREATMENT ALTERNATIVE TO INCARCERATION PROGRAM (TAIP).”

The State filed its first motion to revoke Lovill’s supervision in September 2005. Lovill entered pleas of true to several allegations contained in the motion, including the allegation that she failed to comply with CSCD’s TAIP because of non-attendance. The trial judge did not revoke Lo-vill’s supervision but sanctioned her and amended the terms and conditions of her supervision. The judge specifically ordered Lovill to serve a term of confinement in the county Substance Abuse Treatment Facility (SATF). The terms and conditions of Lovill’s supervision were amended to include special conditions associated with the SATF term of confinement.

On July 17, 2007, the State filed a second motion to revoke Lovill’s supervision. The State alleged that Lovill failed to comply with the terms and conditions of her supervision by: (1) using amphetamine; (2) failing to report to her CSCD officer in the months of May, June, and July 2007; (3) failing to attend the SATF aftercare program as directed; and (4) failing to pay fines, restitution, costs, and fees. At the revocation hearing, Lovill entered pleas of true to all four allegations. The judge accepted the pleas and allowed the parties to present evidence.

The State called Sandra Garza, Lovill’s community-supervision officer. When asked about the Probation Department’s recommendation, Garza stated, “The recommendation is that she be sanctioned to the Substance Abuse Felony Punishment Facility [ (SAFPF) ], special needs unit.” Garza cited Lovill’s use of drugs as a reason and stated that Lovill should be placed in a special needs unit because of her pregnancy. On cross-examination, Garza stated that LovilFs use of drugs and pregnancy “drove this violation report” and that Lovill’s pregnancy was a “high concern of ours.” When asked whether the recommendation would be the same if Lovill were not pregnant, Garza gave no definitive answer; but she stated that the Department does “work” with some people who have tested positive for drugs. And when asked about alternative programs, Garza maintained that Lovill would benefit more at a SAFPF so she could get treatment.

Lovill’s defense attorney called Lovill to testify. She maintained that she would like to continue community supervision and be placed in “CASA,” an outpatient drug-treatment facility, so that she would be able “to keep her baby” with her. When asked about an alternative, Lovill stated that she would “take the year state jail.”

In summation, Lovill’s attorney asked the judge to reject Garza’s recommendation:

Your Honor, on behalf of Ms. Lovill, I would ask the Court to continue her on probation. It is obvious probation would have worked with her, but for the fact that she is pregnant and they decide to revoke her and send her off to SAFP[F] without even giving Ms. Lovill an opportunity to maybe work with probation even though she is pregnant. She is willing to go to CASA or some other treatment facility that is local; so she can have her baby and not to have to go to prison, Your Honor. She had like a year left or so on her probation, so she would like to try to and finish out her probation and put this case behind her. She understands that that was poor judgment in her case with testing positive ....
In the alternative, if the Court sees fit to revoke her, she would like to do one year and not have to go to SAFP[F] at all.

In response, pointing to Lovill’s drug use while pregnant, the State asked the trial judge to follow Garza’s recommendation.

The judge found that Lovill violated the terms and conditions of her supervision. But instead of revoking her supervision, the judge extended her term of supervision and ordered her to a SAFPF for three to twelve months.

Lovill filed a motion for a new trial alleging that she was subjected to selective prosecution, because of her pregnancy, in violation of the Equal Protection Clauses to the United States and Texas Constitutions, the Due Process Clause to the United States Constitution, the Texas Constitution’s due course of law provision, and the Texas Equal Rights Amendment. After holding a hearing, the trial judge denied the motion. Lovill filed a motion to amend the conditions of her probation, which the trial judge denied. Lovill then sought ha-beas corpus relief under Article 11.072, arguing that she had been selectively prosecuted because of her gender. The trial judge denied relief, finding that the State did not move to revoke Lovill’s supervision because of her pregnancy.

Court of Appeals

Lovill appealed the trial judge’s denial of her 11.072 application for a writ of habeas corpus to the Thirteenth Court of Appeals. The court of appeals rejected three separate arguments made by the State that Lovill forfeited her right to mount a selective prosecution complaint on appeal. We will review only one of the court of appeals’s forfeiture holdings because the other forfeiture conclusions and the court’s consideration of the merits of Lovill’s claim are not necessary to our disposition. Relevant to our disposition, the court rejected the State’s assertion that Lovill forfeited her selective prosecution complaint because Lovill failed to object on this basis at the revocation hearing. The court of appeals held that Lovill’s statements at the hearing preserved her claim for review. At the hearing, Lovill’s attorney informed the trial judge that the State moved to revoke her supervision because of her pregnancy. According to the court, the trial judge and the parties understood the substance of Lovill’s complaint. The State responded to the argument, and the record shows that the trial judge understood Lovill’s objection when the judge stated, “Well, I think the fact that she tested positive is the reason we are all here, right, not for the fact that she is pregnant.” The court also determined that a selective prosecution complaint may “be raised at various times during a criminal proceeding.” Citing our decision in Satterwhite v. State, the court observed that we reviewed Satterwhite’s selective prosecution claim that had been raised in a motion for a new trial.

State’s Petition for Discretionary Review

We granted seven grounds from the State’s Petition for Discretionary Review. The sole ground for review that we address is whether the court of appeals erred in concluding that Lovill’s selective prosecution complaint was preserved by a specific and timely complaint at trial. Because our resolution of this case is responsive to only one of the grounds for review that we granted and it is not necessary for us to address the other grounds, we dismiss the remaining grounds for review.

Analysis

Texas Rule of Appellate Procedure 33.1, which establishes the requirements for preserving a complaint for appellate review, governs this case. To preserve a complaint for appellate review, the record must show that a specific and timely complaint was made to the trial judge and that the trial judge ruled on the complaint. The specificity requirement is met if the complaint made at trial was clear enough to the trial judge so as to permit the trial judge to take corrective action when the complaint was made. The complaining party must have informed the trial judge what was wanted and why the party was entitled to it. A complaint will not be preserved if the legal basis of the complaint raised on appeal varies from the complaint made at trial. A party’s complaint is regarded as timely when it was “made as soon as the ground for complaint is apparent or should be apparent.”

Consistent with our preservation jurisprudence, in Gawlik v. State, we held that Gawlik did not preserve his selective prosecution complaint for appellate review because he failed to object on this basis at trial. Thus, we concluded that Gawlik forfeited his selective prosecution complaint.

Here, we must determine whether the court of appeals erred in holding that Lovill’s complaint was specific and timely as required by Rule 33.1. Based on the particular facts and circumstances here, we conclude that the court erred. First, Lovill’s statements during the revocation hearing were not specific enough to apprise the trial judge that she was complaining about gender-based selective prosecution in violation of her constitutional rights. Lovill did contend that but for her pregnancy, the Probation Department would not have reported her failure to comply with the terms and conditions of her supervision to the District Attorney’s Office. Continuing, she asserted that the District Attorney would not have moved to revoke her supervision if she had not been pregnant. However, at no time did Lovill challenge the legality of the entire revocation proceeding on the basis of gender-based selective prosecution or discrimination. While not always required, when a legal claim is rarely urged, like this one, the complaining party should invoke the controlling federal and state constitutional provisions or use key legal phrases to ensure that the trial judge is informed of the particular complaint. She could have used the words selective prosecution or equal protection under the law or cited the Equal Protection Clause. But Lovill did none of this. Her complaints went only towards mitigating the consequences that the trial judge was considering following her pleas of true. She used the State’s consideration of her pregnancy as way to challenge the Probation Department’s recommendation that she be placed in a SAFPF. She asked to be placed in an outpatient drug-abuse program or to serve a year in state jail. Her arguments for a lesser form of punishment than that recommended by the State did not adequately inform the trial judge that the revocation proceedings, as initiated, were discriminatory and therefore violated her constitutional rights. Additionally, we disagree with the court of appeals’s assertion that the trial judge understood that Lovill was advancing a selective prosecution complaint. Taken in context, the trial judge’s response — “I think the fact that she tested positive is the reason we are all here, not for the fact that she is pregnant” — indicated only his understanding that Lovill wanted the case to be resolved in her favor. The judge’s statement does not indicate that he understood Lovill’s arguments to be a challenge based on discriminatory selective prosecution. Our determination that Lovill’s complaint lacked the requisite specificity under the circumstances here is plainly shown when her trial complaints are compared to her subsequent, finely tuned contentions that she presented in her motion for new trial and 11.072 application for a writ of habeas corpus. In her motion and application, she challenged the initiation of the proceedings on constitutional grounds, arguing that she was subjected to selective prosecution, and contended that a dismissal of the prosecution is the only appropriate remedy.

Next, we conclude that the court of appeals erred in holding that Lovill’s complaint was timely. The first time that she specifically informed the trial judge that she was challenging the constitutionality of the revocation proceedings based on selective prosecution, as required by Rule 38.1, was in her motion for a new trial. But this was not the first time that the basis of her complaint was apparent. The factual basis underlying her legal complaint became apparent when Garza testified at the revocation proceedings. Lovill took the factual basis into consideration at that time when arguing for lesser punishment. However, as stated above, she did not assert a particular legal theory and did not use the requisite specificity. Further, the court of appeals erred in relying on our decision in Satterwhite to conclude that a motion for a new trial claiming selective prosecution is sufficient for preservation purposes. We did not address the preservation requirement in Satterwhite. Silence on the issue does not mean that we issued a ruling contrary to the decision that we render today. In fact, given our prior decision in Gawlik, we could not have made such a determination. Additionally, the systemic nature of error preservation was not necessarily ingrained in our jurisprudence until the early 1990’s, years after we issued Satterwhite.

Conclusion

We conclude that the court of appeals erred in holding that Lovill’s selective prosecution complaint was preserved for appellate review. As a result, we reverse the court of appeals’s judgment and affirm the trial judge’s decision to deny Lovill’s 11.072 application, although for a different reason than that stated by the trial judge.

JOHNSON, J., filed a concurring opinion in which WOMACK and COCHRAN, JJ„ joined.

JOHNSON, J.,

concurring in which WOMACK and COCHRAN, JJ., joined.

Appellant was placed on community supervision in January 2005. The first motion to revoke was filed in September 2005, nine months later. One of the allegations in that motion was that she had failed to complete drug treatment. The trial judge modified the terms of appellant’s supervision and continued her on community supervision, again requiring her to participate in a drug-treatment program. Twenty-two months later, in July 2007, appellant was back in court on a second motion to revoke her community supervision, and once again, the allegations in the motion included failure to complete drug treatment, plus failure to report, failure to comply with financial obligations, and use of an illegal substance.

The expected judicial response to this pattern of behavior is revocation, but the trial judge elected to again extend the period of supervision and to require appellant to enter a locked-down treatment program. While there was some discussion in court of her pregnancy, the trial judge was very clear that appellant was in court because of her drug use and failure to fulfill other obligations imposed by the terms of her supervision. Appellant’s community-supervision officer was also clear that appellant was in court because of her drug use. The recommendation of treatment in a special-needs unit is a common and appropriate response to any defendant with special medical needs, such as diabetics, those with certain disabilities or chronic diseases, and pregnant females.

Appellant’s community-supervision officer stated on cross-examination that appellant’s drug use and pregnancy “drove this violation report” and that the pregnancy concerned her, but there is no evidence in the record that appellant faced revocation became of the pregnancy. Under these facts, only if she were revoked because of the pregnancy would she have a legitimate claim of selective prosecution. If her urine samples had been clear of drugs, if she had reported as required, and if she had fulfilled her financial obligations, it is doubtful that a motion to revoke would have been filed. Her pregnancy was incidental to the motion to revoke, not causative.

I concur in the judgment of the Court.

      . Lovill v. State, 287 S.W.3d 65, 76-77 (Tex.App.-Corpus Christi 2008).

      . Lovill, 287 S.W.3d at 69.

      . Id. at 74-77.

      . Id. at 76-77.

      . Id. at 76.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id. (citing Satterwhite v. State, 726 S.W.2d 81, 84 (Tex.Crim.App.1986)).

      . Tex.R.App. P. 33.1; see also TexCode Crim. Proc. Ann. art. 11.072, § 8; Tex.R.App. P. 1.1 ("These rules govern procedure in appellate courts and before appellate judges and post-trial procedure in trial courts in criminal cases.”); Tex.R.App. P. 31.1 ("Filing the Record; Submission”); Tex.R.App. P. 31.2 ("Hearing”); Tex.R.App P. 31.3 ("Orders on Appeal”).

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

      . Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App.2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992)).

      . Id.

      . Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App.2004) (citing Euziere v. State, 648 S.W.2d 700, 703-04 (Tex.Crim.App.1983)).

      . Aguilar v. State, 26 S.W.3d 901, 906 (Tex.Crim.App.2000) (Wilson v. State, 7 S.W.3d 136, 146 (Tex.Crim.App.1999); Hollins v. State, 805 S.W.2d 475, 477 (Tex.Crim.App.1991)).

      . Gawlik v. State, 608 S.W.2d 671, 673 (Tex.Crim.App.1980); see also United States v. Huber, 404 F.3d 1047, 1054 (8th Cir.2005) (holding that appellant's selective prosecution claim was forfeited by his failure to lodge a timely pretrial objection); United States v. Bryant, 5 F.3d 474, 476 (10th Cir.1993) (same).

      . Gawlik, 608 S.W.2d at 673; see also Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App. 1993) (rights belonging to a litigant are subject to forfeiture).

      . See United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) ("A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.”).

      . Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 490, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (“Even in the criminal-law field, a selective prosecution claim is a rara avis”).

      . Cf. Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App.2009); Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App.2005); Heidelberg v. State, 144 S.W.3d 535, 543 (Tex.Crim.App.2004).

      . See Resendez v. State, No. PD-0917-08, 2009 WL 3365656, at *5, 2009 Tex.Crim.App. LEXIS 1439, at *13 (Tex.Crim.App. Oct. 21, 2009) ("Only when there are clear contextual clues indicating that the party was, in fact, making a particular argument will that argument be preserved.”).

      . Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (reversing based on selective prosecution and remanding to lower court with "directions to discharge the petitioners from custody and imprisonment.”); Richard H. McAdams, Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi.Kent L.Rev. 605, 653 n.144 (1998) ("The conventional remedy for such claims is a dismissal of the criminal charge .... ” and opining that "when a defendant shows that the state would not have prosecuted him but for the illegitimate factors of race, he is entitled to be free from prosecution, just as the similarly situated persons of other races were legitimately free from prosecution.”) (citing Duncan v. Perez, 445 F.2d 557 (5th Cir.1971) (enjoining retrial); United States v. Steele, 461 F.2d 1148, 1152 (9th Cir.1972); United States v. Crowthers, 456 F.2d 1074, 1080-81 (4th Cir.1972); United States v. Robinson, 311 F.Supp. 1063, 1065-66 (W.D.Mo.1969)). But see Armstrong, 517 U.S. at 461 n. 2, 116 S.Ct. 1480 ("We have never determined whether dismissal of the indictment, or some other sanction, is the proper remedy if a court determines that a defendant has been the victim of prosecution on the basis of his race.”).

        .Lovill, 287 S.W.3d at 76.

      . Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex.Crim.App.1997); Hughes v. State, 878 S.W.2d 142, 151 (Tex.Crim.App.1992); Fuller v. State, 829 S.W.2d 191, 199 n. 4 (Tex.Crim.App.1992); Marin, 851 S.W.2d at 278.

      . Cf. Ex parte Medellin, 223 S.W.3d 315, 322 (Tex.Crim.App.2006); Ex parte Dutchover, 779 S.W.2d 76, 77 (Tex.Crim.App.1989).


author: PER CURIAM.

text:
    Ex Parte Michael FLORENCE, Applicant.
    No. AP-76,228.
    Court of Criminal Appeals of Texas.
    May 19, 2010.
    Michael Florence, pro se.
    Cindy Mariea Garner, Asst. Dist. Atty., Huntsville, Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   PER CURIAM.

Pursuant to Article 11.07 of the Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus.

We shall dismiss this application because, in a case such as this in which a convicted person is seeking credit for pre-sentence confinement, habeas corpus is not the correct procedure.

In 1991, Applicant was convicted of aggravated sexual assault of a child. On July 6, 1992, while serving a sentence for that conviction, he committed the offense of possession of a deadly weapon in a penal institution. He was indicted for the subsequent offense on March 29, 1993, and convicted and sentenced on July 12, 1993. Pursuant to Article 42.03, Section 2(a)(1) of the Code of Criminal Procedure, the trial court gave Applicant credit on his subsequent sentence for the time he served from March 29 to July 12,1993.

In November 2008, Applicant filed a motion for judgment nunc pro tunc in the trial court seeking credit on his sentence for the subsequent offense for the time he served between July 6, 1992, and March 29, 1993. The trial court denied the motion, and Applicant filed an application for writ of mandamus in the Tenth Court of Appeals. The Court of Appeals denied the application, finding that Applicant was not entitled to credit for such time because no detainer was lodged against him prior to his indictment on March 29,1993.

In this application for writ of habe-as corpus filed on September 1, 2009, Applicant makes three claims. In his first claim, he alleges that he is entitled to pre-sentence time credit, and that such time credit would move his mandatory supervision discharge date up to November 2009. In his second and third claims, he alleges that the Tenth Court of Appeals exhibited unethical conduct and violated due process in denying his application for a writ of mandamus that would have ordered the trial court to give him the time credits. We shall dismiss all the claims.

Pre-sentence time credit claims typically must be raised by a motion for judgment nunc pro tunc filed with the clerk of the convicting trial court. The applicant used that procedure.

If the trial court denies the motion for judgment nunc pro tunc or fails to respond, relief may be sought by filing an application for writ of mandamus in a court of appeals. The applicant also used that procedure.

If the court of appeals denies the application, as in this case, relief may be sought by filing an application for writ of mandamus in this Court. The applicant did not use that procedure. Instead he has sought relief by a post-conviction writ of habeas corpus under Article 11.07.

An application for writ of habeas corpus under Article 11.07 may be used to raise a claim for pre-sentence time credit if an applicant alleges that he is presently being illegally confined because he would have discharged his sentence if given the proper time credit.

Therefore, this application for writ of habeas corpus is dismissed without prejudice to the applicant’s applying to this Court for a writ of mandamus to the Court of Appeals, ordering that Court to issue a writ of mandamus to the trial court.

      . Ex parte Young, 418 S.W.2d 824, 826 (Tex.Cr.App.1967).

      . In re Florence, 2009 WL 944200 (Tex.App.Waco April 8, 2009) (mem. op.) (citing Ex

        parte Bynum, 772 S.W.2d 113, 114 (Tex.Cr.App.1989) (per curiam)).

      . Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex.Cr.App.2004); see also Ex parte Pena, 71 S.W.3d 336, 337 n. 5 (Tex.Cr.App.2002) ("This Court long ago held that a writ of habeas corpus does not lie to correct an inaccurate criminal judgment, and that the proper mode of correction is a nunc pro tunc motion and order.”) (emphasis in original).

      . Ybarra, 149 S.W.3d, at 149; see also Padilla v. McDaniel, 122 S.W.3d 805 (Tex.Cr.App.2003) (“[W]hen a court of appeals and this court have concurrent, original jurisdiction of a petition for a writ of mandamus against the judge of a district or county court, the petition should be presented first to the court of appeals unless there is a compelling reason not to do so.").

      . Hill v. Fifth Court of Appeals, 67 S.W.3d 177, 180 (Tex.Cr.App.2001) (“[T]he only remedy from an adverse ruling in an original mandamus proceeding in the court of appeals is by way of a writ of mandamus to this Court.”).

        .See Ybaira, 149 S.W.3d, at 148 n. 2 ("If Applicant has been incarcerated past his presumptive discharge date, this is no longer a time credit claim but an illegal confinement claim.”); Ex parte Deeringer, 210 S.W.3d 616, 618 n. 7 (Tex.Cr.App.2006) (noting that claims for pre-sentence time credit are cognizable in an application for writ of habeas corpus when an applicant alleges that he has been held past his presumptive discharge date, or that but for the trial court's failure to grant the correct pre-sentence time credit, he would have discharged his sentence); see also Collins v. State, 240 S.W.3d 925 (Tex.Cr.App.2007) (holding that judgment nunc pro tunc was not the proper remedy for the failure to award pre-sentence time credit where the trial court exercised judicial reasoning in allowing the terms of a plea bargain to control).


author: HOLCOMB, J., MEYERS, J.,

text:
    Felix FLORES, Appellant, v. The STATE of Texas.
    No. PD-1016-09.
    Court of Criminal Appeals of Texas.
    May 19, 2010.

      Ken Mahaffey, Austin, for appellant.
    David A. Mendoza, Asst. D.A., San Marcos, Jeffrey L. Van Horn, State’s Attorney, Austin, for the State.
   HOLCOMB, J.,

delivered the opinion of the Court,

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

In this case, we must determine whether the magistrate who issued the search warrant for Felix Flores’s residence had a substantial basis for concluding that probable cause existed. We hold that the magistrate did have a substantial basis.

On March 6, 2007, Detective Attila Far-kas and other members of the Hays County Narcotics Task Force obtained a magistrate’s warrant to search the residence at 1920 Ramona Circle in San Marcos. The warrant authorized a search for cocaine, marihuana, and other evidence of drug trafficking. The probable cause affidavit in support of the warrant read in relevant part as follows:

“Affiant, Attila Farkas, is a peace officer employed by the Hays County Sheriffs Office and is currently assigned to the Hays County Narcotics Task Force. Affiant has been employed as a peace officer for over 9 years. Affiant has been involved in numerous narcotic investigations during Affiant’s career and has received numerous hours of training and experience in narcotic investigations.
“Affiant has observed cocaine, crack cocaine, methamphetamine, 3, 4-methy-lenedioxy methamphetamine or ecstasy, marijuana, lysergic acid diethylamide or LSD, heroin, psilocybin mushrooms and other illegal narcotics in these investigations and is aware of how they are manufactured, cultivated, packaged for sale, transported, and used.
“In February of 2007, Affiant received a phone call from a concerned citizen regarding narcotics activity at a house located on Ramona Circle in San Marcos, Texas. The caller wished to remain anonymous for reasons of his/her safety. The concerned citizen could not give an exact address but did describe the vehicles that are typically found at the residence. The vehicle descriptions were a black F-150 truck and a gold Firebird. The concerned citizen also stated that an individual by the name of Felix Flores resides at the residence with his girl friend. The female was only identified as a white female by the name of Tiffany. The concerned citizen also stated that he/she had observed a quantity of cocaine inside the residence in the past and that Child Protective Services had conducted an investigation [of] Flores regarding the use of marihuana in the presence of his children.
“Affiant with the aid of Detective Ronald Verette located the suspected residence. Detective Verette observed a residence on Ramona Circle with vehicles matching the descriptions given to Affiant. Detective Verette observed the residence was marked 1920 and provided the license plates of the vehicles to Affiant. Affiant checked both vehicle registrations through the DPS, MVD data base. The black truck, TX registration 4WKS82 returned to a Felix Flores with a Maxwell, Texas address. The registration of the gold Firebird returned to a Maria Wardell at 1920 Ramona Circle, San Marcos, TX.
Affiant conducted a utility subscriber check to establish who had utility information at 1920 Ramona Circle, San Marcos, TX. Tiffany Wardell was the name listed on the account. The account information provided the TX drivers license # 112487791. Affiant checked that number through the DPS data base and it returned to a Tiffany Wardell with the address of 1920 Ramona Circle, San Marcos, TX. Affiant checked the Hays County Sheriffs Office data base for any information on Felix Flores. The information obtained gave his address as being located in Maxwell, TX. Affiant checked the Hays County Narcotics Task Force data base for any information regarding Felix Flores. The only information provided stated that the Task Force had obtained information regarding Flores several years ago and the information was turned over to Caldwell County Narcotics since Flores did not live in this jurisdiction at that time.
“Affiant contacted Caldwell County Narcotics and spoke with Jesse Hernandez regarding Felix Flores. Hernandez advised Affiant that Flores had been under investigation but that no charges had been filed. Affiant contacted Child Protective Services and spoke with Cheryl Smith regarding Flores. Smith advised that there had been an investigation regarding the welfare of children at Flores’ residence but that it had occurred at his residence in Maxwell.
“On 03-01-07, Affiant obtained the abandoned household garbage from the garbage can located in the street, directly in front of the residence located at 1920 Ramona Circle, San Marcos, Hays County, Texas.[] Affiant examined the garbage for any evidence of narcotics use. Affiant located two empty packages of cigarette rolling papers. Affiant from his experience and training knows that [this] type of rolling papers [is] commonly used to smoke marijuana cigarettes. Affiant also located a plastic bag believed to contain a small amount of marijuana residue. Affiant swabbed the inside of the bag using a q-tip. Affi-ant placed the q-tip inside a marijuana field test kit. The q-tip turned a purple color indicating the presence of marijuana.
“On 03-05-07, Affiant again obtained the abandoned household garbage from the garbage can located on the street, directly in front of the residence at 1920 Ramona Circle, San Marcos, Hays County, Texas. Affiant again examined the contents of the garbage for any evidence of narcotics use. Affiant located several marijuana stems, seeds and marijuana residue.”

On March 7, 2007, Farkas and other members of the Task Force executed the search warrant. In the course of their search, they discovered small quantities of marihuana and cocaine.

On September 13, 2007, a Hays County grand jury returned an indictment charging Flores with the felony offense of possession of more than four grams but less than 200 grams of cocaine with intent to deliver. See Tex. Health & Safety Code § 481.112(d).

On March 10, 2008, Flores filed a written motion to suppress all of the items found during the March 7, 2007, search of the Ramona Circle residence. In his motion, Flores, citing both the Fourth Amendment to the United States Constitution and Article I, § 9, of the Texas Constitution, argued that the search of the residence had been carried out without probable cause and, thus, without a valid warrant. More specifically, Flores argued:

“[T]he affidavit for the search warrant [did] not contain sufficient underlying facts adequately to inform the magistrate of how the alleged informant obtained his/her information and [did] not contain sufficient underlying facts to establish the credibility and reliability of the alleged informant. Additionally, the searches of the trash receptacles[] outside of the residence [were] insufficient to establish probable cause to search the residence.”

On May 12, 2008, immediately before Flores’s trial, the trial court held a brief, non-evidentiary hearing on Flores’s motion to suppress, and then denied it. The jury later found Flores guilty as charged and assessed his punishment at imprisonment for twelve years.

On direct appeal, Flores, again citing both the Fourth Amendment and Article I, § 9, argued that the trial court had erred in denying his motion to suppress. Flores’s argument proceeded as follows:

“The search warrant affidavit failed to provide a [substantial] basis for the magistrate to believe there was contraband in the house to be searched and at the time the warrant issued. An anonymous tip will rarely be sufficient to provide probable cause. Here, the tip did not even give a date. Although the affi-ant corroborated some information in the tip, these facts were essentially matters of public knowledge. The officers did find traces of marijuana in the two trash searches, but the affidavit did not establish an affirmative link to [Flores] or his house. Because garbage is readily available to the public, these two discoveries alone were insufficient to establish probable cause.”

The State argued in response:

“Contrary to [Flores’s] belief, the magistrate had a substantial basis for concluding that illegal drugs would be found in the residence targeted for the search, because the confidential informant had first-hand, detailed knowledge of the presence of drugs in the home and knowledge of a CPS investigation involving drug use by [Flores]. Moreover, the information provided by the informant was corroborated with vehicle identification, a utility subscription, and a [background] search which revealed [possible] prior drug activity by [Flores], a confirmed CPS investigation [of Flores], and two trash runs which produced evidence of drugs.”

The court of appeals, after a lengthy analysis, held that “the anonymous informer’s tip and related information did not give the magistrate a substantial basis for believing that cocaine, marihuana, or evidence of unlawful controlled substance dealing would be found in the house at 1920 Ramona Circle on March 6, 2007.” Flores v. State, 287 S.W.3d 307, 313 (Tex.App.-Austin 2009). The court of appeals also held, however, that Farkas’s two “trash runs,” as described in his affidavit, did provide the magistrate with a substantial basis for concluding that probable cause existed:

“[T]he fact that Farkas found marihuana residue in the trash container outside the residence at 1920 Ramona Circle on two different occasions suggests that the incriminating material had not been placed there by a neighbor or some passer-by, but that it actually came from inside the house. The situation is analogous to ‘the doctrine of chances,’ which states that unusual events are unlikely to repeat themselves inadvertently or by happenstance. This presents a very close case, but keeping in mind the deference that is due the magistrate’s determination of probable cause, we conclude that the affidavit gave the magistrate a substantial basis for concluding that there was probable cause to search the premises for marihuana.” Id. at 316-17 (citation omitted).

We granted Flores’s petition for discretionary review in order to determine whether the court of appeals erred in holding that the magistrate who issued the search warrant for Flores’s residence had a substantial basis for concluding that probable cause existed to search that residence for marihuana. In his brief to this Court, Flores argues that the court of appeals erroneously “created a bright line rule [whereby] any discovery of contraband traces in a publically available trash container on two consecutive occasions ... authorizes issuance of a residential search warrant.” The State responds that “the trash runs coupled with the [partially corroborated anonymous tip] gave the magistrate a substantial basis for concluding that illegal drugs would probably be found on the premises.”

The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The cornerstone of the Fourth Amendment is that a magistrate may not issue a search warrant without first finding “probable cause” that a particular item will be found at a particular location. Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.Crim.App.2007). Probable cause for a search warrant exists if, under the totality of the circumstances presented to the magistrate, there is at least a “fair probability” or “substantial chance” that contraband or evidence of a crime will be found at the specified location. Illinois v. Gates, 462 U.S. 213, 238, 243 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Probable cause for a search warrant does not require that, more likely than not, the item or items in question will be found at the specified location. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). In his determination of whether probable cause exists, the magistrate may interpret the probable cause affidavit in a non-technical, common-sense manner and he may draw reasonable inferences from it. Illinois v. Gates, 462 U.S. at 235-38, 103 S.Ct. 2317; Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App.2004).

The duty of a reviewing court, including a reviewing trial court, is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. 2317. This “substantial basis” standard of review “does not mean the reviewing court should be a rubber stamp but does mean that the magistrate’s decision should carry the day in doubtful or marginal cases, even if the reviewing court might reach a different result upon de novo review.” W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.7(c) at 452 (4th ed. 2004 & Supp. 2009-2010) (internal punctuation omitted) (citing cases).

From the four corners of Farkas’s probable cause affidavit, the magistrate could directly find the following facts: (1) Far-kas was a longtime peace officer with extensive training and experience in narcotics investigations. (2) Farkas, in the course of his career, had observed marihuana and other illegal drugs. (3) In February 2007, Farkas received an anonymous tip regarding “narcotics activity,” on an unspecified date, at the Ramona Circle residence. (4) The anonymous informer also told Farkas that he “had observed a quantity of cocaine inside the [Ramona Circle] residence in the past.” (5) The informer gave several details about Flores and the Ramona Circle residence that were later corroborated in whole or in part. (6) On March 1, 2007, Farkas found residue, which field-tested positive for marihuana, in a garbage can located on the street directly in front of the Ramona Circle residence. (7) On March 5, 2007, Far-kas found what he believed to be marihuana stems, seeds, and residue in a garbage can located on the street directly in front of the Ramona Circle residence.

Given what the magistrate could find directly from Farkas’s affidavit, the magistrate could also reasonably infer the following additional facts: (1) The anonymous informer had some familiarity with Flores and his affairs. (2) The items that Farkas found in the garbage can on March 5, 2007, were in fact marihuana stems, seeds, and residue. (3) The garbage can in question was from the Ramona Circle residence and not from a neighboring residence. (4) The marihuana residue in the garbage can on March 1, 2007, and on March 5, 2007, originated from the Ramona Circle residence and not from a neighbor or passer-by. The magistrate could reasonably draw that last inference because, under the “doctrine of chances,” it was objectively unlikely that a person or persons unconnected to the Ramona Circle residence would have placed marihuana in that residence’s garbage can twice within a five-day period. See De La Paz v. State, 279 S.W.3d 336, 347-48 (Tex.Crim.App.2009) (discussing the “doctrine of chances”); E. Imwinkelried, Uncharged, Misconduct Evidence § 5:28 (2009) (same).

Finally, given that the magistrate could reasonably infer that the anonymous informer had some familiarity with Flores and his affairs, the magistrate could reasonably conclude that the informer’s tip regarding illegal drugs at the Ramona Circle residence, although perhaps insufficient in itself to establish probable cause to search, was nevertheless a circumstance to be considered, along with all of the other circumstances, in the determination of whether probable cause existed. See W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.3(f) at 193-94 (4th ed. 2004) (although informer’s tip standing alone might be insufficient to establish probable cause, magistrate may consider that tip along with other circumstances) (citing cases).

In view of the foregoing, we hold that the magistrate had a substantial basis for concluding that probable cause existed, i.e., that there was at least a fair probability or substantial chance that marihuana would be found at the Ramona Circle residence on March 7, 2007. We affirm the judgment of the court of appeals.

MEYERS, J., filed a dissenting opinion.

MEYERS, J.,

dissenting.

Finding marijuana stems, seeds, and residue in the trash does not provide probable cause to search the adjacent house for drugs. While remnants of drugs in the trash may indicate that someone possessed drugs in the past, it does not show current possession of drugs and certainly is not an indicator that there will be drugs in the house. Drug residue in the trash is equivalent to someone saying “I used to do drugs,” which may show prior possession, but does not provide probable cause to arrest the person or search their home. Even if the drag residue in the trash did provide probable cause to arrest for possession, that still doesn’t give probable cause to search the house for drugs. There must be articulable facts sufficient to believe that there are drugs in the house in order to get a warrant to search the house, and drug residue in a trash can doesn’t rise to that level.

The anonymous tip from someone saying that he or she had observed cocaine in the house in the past was also not sufficient to provide probable cause to issue a search warrant for the house. Appellant correctly argued that there were not adequate facts to inform the magistrate how the alleged informant obtained his or her information and not enough information to establish the credibility or reliability of the alleged informant.

I agree with Appellant and with the court of appeals that the anonymous informer’s tip did not give the magistrate a substantial basis for believing that drugs would be found in the house. I disagree, however, with the court of appeals’s determination that the drag residue found in the searches of the trash did establish probable cause to search the house. I understand that this is a close case, but the tie goes to the runner.

I respectfully dissent.

      . The State’s evidence at Flores’s trial established that he resided at the Ramona Circle address at the time of the search.

      . Flores has never argued that he had a reasonable expectation of privacy in the contents of the garbage can. See California v. Greenwood, 486 U.S. 35, 37, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home).

      . Flores has never contested that the State had a magistrate’s warrant to support its search of the Ramona Circle residence. Thus, Flores has the burden of showing that the magistrate's warrant was invalid. Russell v. State, 111 S.W.2d 7, 9-10 (Tex.Crim.App.1986).

      . In Flores’s written motion to suppress, he referred to "the trash receptacles” (plural), but in Farkas’s affidavit, he referred to "the garbage can” (singular).

      . The record reveals that the search warrant was actually executed on March 7, 2007.

      . The court of appeals also held that, although "the affidavit presented to the magistrate gave him probable cause to issue a warrant to search the suspect premises for marihuana," "the trial court did not reversibly err by overruling the motion to suppress as it applied to cocaine” because "[t]he officers found the cocaine in plain view while lawfully searching for marihuana.” Flores v. State, 287 S.W.3d 307, 318 (Tex.App.-Austin 2009). Flores, in his petition for discretionary review, did not challenge that holding, and we did not grant review to consider it.

      .Flores's sole ground for review reads as follows: "When no other facts in a search warrant affidavit establish probable cause, should Texas have a blanket rule that finding traces of contraband in trash outside a residence on two consecutive weeks automatically supports issuance of a warrant to search that home?”

      . Flores has never argued that Article I, § 9, provides more protection than the Fourth Amendment, so we resolve this case under the Fourth Amendment only. See Heitman v. State, 815 S.W.2d 681, 690 n. 23 (Tex.Crim.App.1991).

      . The Fourth Amendment was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).

      .Deference to the magistrate's determination of probable cause "encourage[s] police officers to use the warrant process rather than making a warrantless search and later attempting to justify their actions by invoking some exception to the warrant requirement." Rodriguez v. State, 232 S.W.3d 55, 59-60 (Tex.Crim.App.2007).

      . If someone is found with drugs in their car and they park their car in a garage attached to their house, that does not give probable cause to search the house for more drugs.


author: Opinion by Justice MAZZANT.

text:
    The STATE of Texas, Appellant, v. Carol Collins SAYLOR, Appellee.
    No. 05-08-00530-CR.
    Court of Appeals of Texas, Dallas.
    April 28, 2009.
    Discretionary Review Refused Sept. 23, 2009.

      Michael R. Casillas, Asst. Dist. Atty.Chief Prosecutor, Dallas, for Appellant.
    Mike McCollum, Supervising Atty.-Crim. Justice Clinic, Jeff P. Buchwald, Dallas, for Appellee.

      Before Justices FRANCIS, LANG-MIERS, and MAZZANT.
   OPINION

Opinion by Justice MAZZANT.

Carol Collins Saylor was convicted of driving while intoxicated and sentenced to nine days in the county jail. In one issue, the State claims the trial court abused its discretion by granting appellee’s motion for new trial. We vacate the trial court’s order granting the motion for new trial and reinstate the trial court’s judgment.

Background

Appellee was charged with, and pleaded not guilty to, misdemeanor driving while intoxicated (DWI), which was alleged to have occurred on May 5, 2006. At the start of trial, the trial court agreed with the State’s request to invoke Rule of Evidence 614, which is commonly known as “the Rule.” The trial court explained the Rule as follows: “The Rule’s been invoked, and what that means is you cannot sit in the courtroom while another witness is testifying. You may not speak about this case with each other or any other witness. You may talk to the attorneys, but that is all.” Shortly before recessing at the end of the first day of trial, the court informed additional witnesses that the Rule had been invoked and told those witnesses, “What that means is that you may not talk about this case with any other witness in this case. And you may not be in the courtroom while another witness is testifying. You may talk with the attorneys but that is all.”

Appellee was convicted and sentenced to nine days in the county jail. The judgment was signed on February 1, 2008. Appellee’s motion for new trial, which was timely filed on February 19, 2008, alleged she was entitled to a new trial “in the interest of justice” because the State had violated the Rule, that is, “a fact witness was instructed by the State’s attorney as to what a previously-called witness from the State had testified to regarding central fact issues.”

During the hearing on appellee’s motion for new trial, which took place on April 10, 2008, the trial court heard the testimony of the lead prosecutor on the case, the chief prosecutor of the misdemeanor division of the Dallas County District Attorney’s office, and an assistant public defender. Of these witnesses, only the prosecutor and the public defender could provide any information regarding the alleged violation of the Rule.

The public defender testified that, at some point during the trial of this case, she was in a “work room” waiting to talk to another prosecutor when the lead prosecutor in this case entered the work room and started talking to the toxicologist, a State’s witness, in the presence of yet another State’s witness, a nurse. The public defender started to listen more closely to the conversation, which she described as follows:

At that time I began to listen, you know, more closely, because it struck me as odd that she was saying that. And at that point she began to talk about — said something about a lock — she was talking about a refrigerator saying somebody said and I don’t recall — I don’t know what witness she was talking about because I hadn’t seen any of the trial.
She said somebody, you know, said something about the lock not being — the refrigerator not being locked and whether or not it was locked. She said she thought that was going to be an issue, and asked the witness what the witness was going to say about that. And then she also said that someone else had testified that the door to the refrigerator may or may not have been opened and the effects of that may or may not have [sic] on a blood sample.
And what really caught my attention was then she looked right at me and said, oh, I really can’t be telling you that, what are you going to say.

At that point, the public defender’s supervisor, who was also present, said, “[D]id she just say what I thought she said.” The public defender replied, “I think so.”

The public defender never heard the prosecutor mention the name of the witness who had testified about the refrigerator-related issues. Her recollection was that the prosecutor mentioned a witness had testified about something but did not mention the witness’s name. Regarding the prosecutor’s initial comments to the toxicologist, the public defender summarized what she heard by saying, “Actually, all I heard was testified [sic] that the lock, blah, blah, blah. So I don’t — I never heard — I had no idea who she was speaking about.” The public defender also said, “To be honest, the first time when she [the prosecutor] was speaking about the lock, she said — all I heard was testified [sic] that the lock X-Y-Z. The second time I heard her say witness [sic] testified about the refrigerator being open, not opened, contamination and whatnot.” The public defender assumed the prosecutor was asking the witness, in effect, “I told you what these other people’s testimony is, what’s yours going to be?” When asked if it would have been proper for the prosecutor to ask the toxicologist about whether the blood sample could have been compromised by facts such as those raised in appellee’s cross-examination questions, the public defender replied, “Well, certainly it would be okay for her to ask if it would compromise it. But I don’t think it’s okay to say it in front of other witnesses within earshot, and tell that witness what other witnesses have testified to.”

The public defender said she did not immediately report the incident in the work room because at that point she “didn’t really know what to do.” She reasoned that if the defense won the trial “the whole thing would be moot,” so she decided to wait until the end of trial. When she found out appellee had been convicted, she spoke with some other attorneys in her office and decided to inform the trial court. The public defender said she believed the prosecutor knew that she had reported the alleged Rule violation because, shortly after speaking to the trial court, the prosecutor treated her differently and “wouldn’t really deal with me, wouldn’t look at me, [and] wouldn’t engage in a normal work room relationship with me.” Since that time, their working relationship has deteriorated.

The prosecutor testified her understanding of the Rule was that each witness could talk only with the attorneys once the Rule had been invoked. She explained that the witness in question, the toxicologist, was an expert witness who was called to discuss the blood test result and “the scientific theory behind it.” He was the last witness who testified for the State. When asked whether she had “ever talked to a witness about what a prior witness had testified to,” the prosecutor said she “may have talked about what a prior witness said on cross-examination in the form of a question to find out about an issue that came up on cross.” That issue had “to do with the validity of the blood sample based on the way it was maintained by the police department.” The prosecutor further explained that the issue “came up through cross-examination” and it concerned “yeast and the temperature of the refrigerator, if it was locked, who had access to it, and things like that.” She also stated, “So I know that I then would have talked to the forensic toxicologist about whether that would invalidate that blood test result.”

The prosecutor also testified she did not remember telling the toxicologist anything to the effect of, “I shouldn’t have said that.” She suggested the hearing on the motion for new trial was the first time she had ever heard the allegation that she told the toxicologist, “I shouldn’t have said that.” The prosecutor also noted appel-lee’s case was the first “blood test case” she had tried and that it constituted “a totally different area than even a breath test or a DWI refusal.” She explained that since the defense raised questions through its cross-examination of the State’s witnesses concerning the validity of appellee’s blood sample, the prosecutor wanted to review this subject with the toxicologist “before proceeding on with the trial.” When asked whether, as a prosecutor, she would want to know if a blood test had been “compromised in any way,” the prosecutor replied, “Absolutely.” Additionally, she suggested that determining whether the blood sample had been compromised was consistent with her ethical duties as a prosecutor under Brady v. Maryland.

According to the chief prosecutor, approximately a week after the trial of this case had concluded, the prosecutor came to her office and told her that the trial judge had informed her about an accusation “[t]hat the Rule had been violated.” The prosecutor did not know who was making the allegation against her or what conduct allegedly violated the Rule, and the prosecutor could not tell the chief prosecutor whether she had, in fact, violated the Rule. The chief prosecutor recalled she immediately asked the prosecutor whether she violated the Rule because the district attorney’s office would have agreed to the motion for new trial if there was a violation of the Rule. But since the prosecutor “was not clear” about the allegation or who made it, the chief prosecutor “could not make the decision at that time.” The chief prosecutor agreed that, once the Rule is invoked, it is a violation for a lawyer, in the presence of other witnesses in the case, to inform a witness, who has not been called to testify, about, a prior witness’s testimony.

Following the presentation of the evidence and closing arguments, the trial court granted the motion for new trial and inquired about setting a new trial date. The court denied appellee’s request to set aside the verdict and enter a judgment of acquittal. The court ruled that, on retrial, the toxicologist would not be allowed to testify but declined to suppress the blood evidence, noting, “If they can come up with another way to present that, they’re free to do that.”

DISCUSSION

In its only issue, the State claims the trial court abused its discretion by granting appellee’s motion for new trial because appellee failed to show her trial was not conducted in accordance with the law. Appellee argues the evidence at the motion for new trial hearing showed that the prosecutor knowingly violated the Rule by advising one key witness about a prior witness’s testimony in front of another State’s witness.

“A trial judge has discretion to grant or deny a motion for new trial ‘in the interest of justice,’ but ‘justice’ means in accordance with the law.” State v. Herndon, 215 S.W.3d 901, 906 (Tex.Crim.App.2007). The decision to grant or deny the motion for new trial is reviewed for an abuse of discretion. Id. The court of criminal appeals has noted, however, that a trial court’s discretion to grant a new trial in the interest of justice is not “unbounded or unfettered.” Id. at 907. The court wrote:

A trial judge does not have authority to grant a new trial unless the first proceeding was not in accordance with the law. He cannot grant a new trial on mere sympathy, an inarticulate hunch, or simply because he personally believes that the defendant is innocent or “received a raw deal.”... Although not all of the grounds for which a trial court may grant a motion for new trial need be listed in statute or rule, the trial court does not have discretion to grant a new trial unless the defendant shows that he is entitled to one under the law. To grant a new trial for a non-legal or legally invalid reason is an abuse of discretion.

Id.

The test for abuse of discretion is not whether the appellate court believes “the facts present an appropriate case for the trial court’s action; rather, it is a question of whether the trial court acted without reference to any guiding rules or principles.” Id. at 908. The “mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse.” Id. The court also noted:

While a trial court has wide discretion in ruling on a motion for new trial which sets out a valid legal claim, it should exercise that discretion by balancing a defendant’s “interest of justice” claim against both the interests of the public in finality and the harmless-error standards set out in Rule 44.2. Trial courts should not grant a new trial if the defendant’s substantial rights were not affected. Otherwise, the phrase “interest of justice” would have no substantive legal content, but constitute a mere platitude covering a multitude of unreviewable rulings.

Id.

As a general rule, a trial court will not abuse its discretion by granting a motion for new trial if the defendant (1) articulated a valid legal claim in his motion, (2) produced evidence or pointed to evidence in the trial record that substantiated his legal claim, and (3) showed prejudice to her substantial rights under the rules of appellate procedure. Id. at 909; see Tex.R.App. P. 44.2.

The defendant need not establish reversible error as a matter of law before the trial court may exercise its discretion in granting a motion for new trial. On the other hand, trial courts do not have the discretion to grant a new trial unless the defendant demonstrates that his first trial was seriously flawed and that the flaws adversely affected his substantial rights to a fair trial.

Herndon, 215 S.W.3d at 909. Appellee had the burden of proof at the hearing on her motion for new trial. See Patrick v. State, 906 S.W.2d 481, 498 (Tex.Crim.App.1995).

Rule 614 provides for the exclusion of witnesses from the courtroom during trial. Tex.R. Evid. 614. The purpose of the Rule is to prevent the testimony of one witness from influencing the testimony of another. Russell v. State, 155 S.W.3d 176, 179 (Tex.Crim.App.2005); Phillips v. State, 64 S.W.3d 458, 459 (Tex.App.-Houston [1st Dist.] 2001, no. pet.). Once the Rule is invoked, witnesses are instructed by the court that they may not converse with one another or with any other person about the case, except by permission from the court. Tex.Code Crim. Proc. Ann. art. 36.06 (Vernon 2007); Russell, 155 S.W.3d at 179. Further, the trial court must exclude witnesses from the courtroom during the testimony of other witnesses. Tex.R. Evid. 614.

A violation of the Rule occurs when a nonexempt prospective witness remains in the courtroom during the testimony of another witness, or when a nonexempt prospective witness learns about another’s trial testimony through discussions with persons other than the attorneys in the case or by reading reports or comments about the testimony.

Drilex Sys., Inc. v. Flores, 1 S.W.3d 112, 117 (Tex.1999). If a witness violates the Rule, the trial court has discretion to allow testimony from the witness. Bell v. State, 938 S.W.2d 35, 50 (Tex.Crim.App.1996). On appeal, the trial court’s decision to admit testimony will not be disturbed absent an abuse of that discretion. Id.

Applying these principles, the trial court could have reasonably concluded, based on the testimony at the motion for new trial hearing, that the prosecutor made a comment to the effect that she should not have told the toxicologist “something.” Yet it is impossible to determine whether the prosecutor actually violated the Rule without knowing what she said to the toxicologist. The prosecutor and the public defender were the only witnesses who could testify concerning the alleged violation of the Rule, but neither of them could recall the events of that day with any precision. They agreed that, at some point during the trial of this ease, the public defender was in the work room waiting to talk to another prosecutor regarding an unrelated matter when she saw the prosecutor enter the room and speak with the toxicologist, a State’s witness, concerning whether appel-lee’s blood sample could have been compromised in some way by faulty refrigeration. But the record does not establish the substantive content of the conversation between the prosecutor and the toxicologist. Additionally, appellee has not shown that the prosecutor disclosed the name of the witness who testified about the refrigeration-related issues or that she disclosed the names of any witnesses. Appellee also failed to establish what, if anything, the nurse-witness who was present in the work room actually heard of the conversation between the prosecutor and the toxicologist. Although she testified at trial, the nurse was not called to testify at the motion for new trial hearing. Finally, it is undisputed that the nurse testified before the events in question and was not recalled to the stand, so her trial testimony could hardly have been influenced by the conversation between the prosecutor and the toxicologist, regardless of its content. We also note the trial court’s repeated explanations of the Rule expressly permitted witnesses to talk with the attorneys, and the Rule was not violated simply because the prosecutor spoke to the toxicologist. Accordingly, appellee failed to demonstrate the Rule was violated or that her trial was not in accordance with the law.

We therefore conclude the trial court abused its discretion by granting appel-lee’s motion for new trial. We sustain the State’s issue and vacate the trial court’s order granting a new trial. We reinstate the trial court’s judgment of February 1, 2008.

      . Justice Amos L. Mazzant authored the original March 27, 2009 unpublished opinion in this case. However, due to his appointment as a federal magistrate, Justice Mazzant did not participate in the panel's decision to grant the State’s motion to publish. Justice Francis, as the senior member of the panel, has signed the published version of the opinion.

      . The public defender was not the attorney of record. Another attorney represented appel-lee during the DWI trial.

      . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Because appellee failed to show the Rule was violated, we express no opinion on the State's alternative arguments that, assuming the prosecutor violated the Rule, (1) she had an ethical obligation under Brady v. Maryland to discuss the previous testimony with the toxicologist, and (2) review of the trial record shows that disclosure of the prior witness’s testimony could not have influenced the toxicologist’s testimony.


author: ANN CRAWFORD McCLURE, Justice.

text:
    Sheila ARTHUR and David Magiera, Appellants, v. Janet Lyn GRIMMETT, Appellee.
    No. 08-07-00040-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 12, 2009.
    Rehearing Overruled Sept. 28, 2009.

      John M. Weaver, Maloney, Bean, Horn & Hull, P.C., Irving, TX, John J. Reenan, Dallas, TX, for Appellants.
    Charles R. Houssiere, Houssiere, Durant, Houssiere, Houston, TX, for Appel-lee.
    Before CHEW, C.J., McCLURE, and CARR, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is the tragic story of a private airplane crash in Ozona, Texas, on October 19, 2001. The cause of the accident is undisputed. Stated bluntly, the Piper PA-30 Twin Comanche simply ran out of gas or, as phrased by the expert witnesses, the crash occurred as the result of “fuel starvation.” Two passengers, Janet Lyn Grimmett, and her boyfriend, Dennis Otts, filed suit against the pilot, John Willison; the owner, Sheila Arthur; Arthur’s husband, David Magiera; and Magiera’s business entity, Dove Homes, L.L.C. Following a two-week trial, the jury returned a verdict in favor of the plaintiffs for $14,266,238.75. Arthur and Magiera have appealed. Because we conclude that the evidence is legally insufficient to support either theory of Grimmett’s recovery, we reverse and render.

FACTUAL SUMMARY

We begin by examining the individual actors and the relationships that existed between them. Sheila Arthur is a former executive secretary who is married to David Magiera. At the time of the events involved here, Arthur was involved in an Internet-based ministry. Magiera is an artist, sculptor, and website designer. Through their church, the couple had become friends with John Willison, a pilot. The three of them also became friends with Jose Hernandez, a young man from El Salvador. Hernandez found work in Texas as a framer and ultimately started a subcontracting framing business operated as JOH Construction. This company employed up to eighty workers engaged in construction contracts throughout the United States.

Magiera and Hernandez came up with the idea of entering business together as home builders. They incorporated Dove Homes, L.L.C. in June 2001 as a limited liability corporation, with each man owning fifty percent of the company. They agreed that Magiera would act as the sales and promotion arm of the company while Hernandez handled the construction end of the business. Their intent was to build houses in Irving, Texas, where Magiera and Arthur lived. Hernandez and his family lived in nearby Fort Worth.

Throughout the late summer and early fall of 2001, Hernandez worked on a construction contract at a golf resort in Laji-tas, Texas, which is an eleven hour drive from Fort Worth. On five or six occasions, Hernandez leased a private airplane to fly home for the weekend to visit his family. On at least one of these occasions, Willison piloted the plane. Hernandez and Willison then began discussing the purchase of an airplane to facilitate the business travel. Although Hernandez had sufficient income to afford payments and expenses related to owning a plane, neither he nor Willison had the credit necessary to obtain financing. Willison then talked to Magiera about buying an airplane. And so the plan unfolded. Because Arthur had the necessary credit, she would be the owner in name only. Hernandez would be the owner-in-fact. Arthur would arrange the loan and Hernandez would make the payments, including maintenance expenses. To protect Arthur’s credit, Hernandez would make the payments to her and she in turn would pay the lender. After the note was repaid, Arthur would transfer title to Hernandez.

The aircraft would enable Hernandez to fly between Lajitas and the Dallas-Fort Worth metroplex both to visit his family and to begin construction projects through Dove Homes. For Arthur and Magiera, the plan would allow them to travel for leisure; it would also further the business of Dove Homes. Willison would pilot the plane, for free, in return for the ability to use it in his wallpaper business as well as for his own personal reasons. Because he hoped to obtain an ownership interest, Wil-lison wanted to “work off’ his part of the down payment by flying the plane. All parties agree there was never an intent to operate the aircraft for profit or for charter. The attorneys apparently all agreed that this arrangement was “loosey-goo-sey.”

There is some evidence in the record of a hierarchy or pecking order of use. Hernandez was to have access to the plane when he needed it. Arthur and Magiera would use the plane if Hernandez weren’t using it, and Willison could use the plane when no one else was using it.

Within a couple of weeks, the four friends decided to move forward with their plan. Willison began looking at planes and reporting to the others. Willison found the Piper PA-30 Twin Comanche on the Internet and Arthur authorized him to purchase the plane for $90,000. Willison booked a commercial flight to South Carolina to inspect the plane and he negotiated the purchase on everyone’s behalf. Hernandez put up the down payment of $10,000 and Arthur signed a promissory note for the balance. The purchase was completed on October 18, 2001, and the airplane was registered in Arthur’s name. Willison then flew the plane to Meacham Field at Fort Worth where it was to be hangared. At the time of the purchase, Hernandez was in Lajitas.

The very next day, Hernandez called Magiera and asked him to call Willison. Hernandez wanted Willison to fly to Laji-tas, pick him up, and fly him back to Fort Worth. Magiera relayed the message to Willison and arranged to meet him at Meacham Field. Magiera wanted to fly with Willison to Hicks Field in Dallas to try out their new plane. Willison took on fuel at Hicks and Magiera paid for it with Arthur’s credit card. Hernandez later reimbursed Arthur for the fuel. At this point, Willison flew to Addison Airport to pick up an electrician and his family who Hernandez wanted flown to Lajitas. Willi-son did not purchase fuel at Addison. He then flew to Lajitas where he dropped off these passengers and picked up Hernandez, Otts and Grimmett. Otts was a contractor/friend of Hernandez and Grimmett was Otts’ girlfriend. Neither Magiera nor Arthur knew there would be additional passengers on the flight.

Willison planned to fly from Lajitas to San Angelo to refuel because the Lajitas airport had no fuel service. At some point after takeoff, Willison realized that there was probably less fuel than he had calculated prior to take-off. He decided to divert to Ozona, where there was a lighted airstrip and available fuel. By this time it was dark and Willison had difficulty locating the air field. Before he could find the runway, the plane crash-landed. All of the passengers survived, but Grimmett suffered catastrophic injuries.

PROCEDURAL SUMMARY

In their original petition, Janet Grim-mett and David Otts sued Crockett County, Charles McCleary d/b/a McCleary Aircraft, Dove Homes, L.L.C., and the pilot, John Willison. They later amended their petition to add as defendants the owners of Dove Homes, Sheila Arthur and David Ma-giera. Otts entered into a settlement and his cause of action was severed. Upon deciding that neither Crockett County nor Charles McCleary bore any fault in the accident, Grimmett dismissed her claims against them. During trial, Judge Brock Jones granted a directed verdict as to Dove Homes.

THE CAUSES OF ACTION AND THE VERDICT

Grimmett pursued six theories of recovery against Willison, Arthur and Magiera which were submitted to the jury. Question One submitted negligence. The jury found that Willison was negligent, but that neither Arthur nor Magiera were negligent. It did not answer Question Two, which would have apportioned fault among the defendants. Questions Three and Four inquired whether Willison was Arthur’s employee or agent. The jury answered both of these in the negative. By its answer to Question Five, the jury found that Willison, Arthur, and Magiera were engaged in a joint enterprise. And in response to Question Six, the jury determined that Willison, Arthur, and Magiera were engaged in a joint venture.

THE ISSUES ON APPEAL

Arthur and Magiera bring seven and six issues for review, respectively. The issues are for the most part identical, but the order in which they are presented is not. Both parties complain that the evidence is legally and factually insufficient to support the jury’s findings of joint enterprise and joint venture. Alternatively, they contend that a fatal conflict exists by virtue of the jury’s negative findings on employee/agency and its affirmative findings on joint enterprise and joint venture. Arthur maintains that the judgment improperly imposes individual liability against her. Finally, Appellants allege that the jury’s liability findings should be disregarded as a matter of law by virtue of 49 U.S.C. § 44112 of the Federal Aviation Act. We begin with a review of the sufficiency of the evidence.

STANDARDS OF REVIEW

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. Serrano v. Union Planters Bank, N.A., 162 S.W.3d 576, 579 (Tex.App.-El Paso 2004, pet. denied). There are two separate “no evidence” claims. Id. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law.” Id. When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” Id.; In re Estate of Livingston, 999 S.W.2d 874, 876 (Tex.App.-El Paso 1999, no pet.).

An appellate court will sustain a legal sufficiency or “no-evidence” challenge if the record shows: (1) the complete absence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005); El Paso Independent School District v. Pabon, 214 S.W.3d 37, 41 (Tex.App.-El Paso 2006, no pet.). In conducting our review, we consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822. Even if evidence is undisputed, it is the province of the trier of fact to draw from it whatever inferences it wishes so long as more than one inference is possible. Id. at 821. But if the evidence allows only one inference, neither the trier of fact nor the reviewing court may disregard it. Id. We are also mindful that the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. at 819. When there is conflicting evidence, it is the province of the trier of fact to resolve such conflicts. Id. at 820. In every circumstance in which a reasonable trier of fact could resolve conflicting evidence either way, the reviewing court must presume it did so in favor of the prevailing party, and disregard the conflicting evidence in its sufficiency review. Id. at 821. If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then the trier of fact must be allowed to do so. Id. at 822. So long as the evidence falls within this zone of reasonable disagreement, we may not substitute our judgment for that of the trier-of-fact. Id. The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Id. at 827.

In reviewing a challenge to the factual sufficiency of the evidence supporting a vital fact, we must consider, weigh, and examine all of the evidence in the record, both supporting and against the finding, to decide whether the verdict should be set aside. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). When a party attacks the factual sufficiency of an adverse finding on an issue on which the opposing party has the burden of proof, we should set aside the verdict only if the evidence supporting the jury finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We are not permitted to substitute our judgment for that of the jury. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). Further, we bear in mind that the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Id.

JOINT ENTERPRISE

The essential elements of a joint enterprise are (1) an express or implied agreement among the members of the group, (2) a common purpose to be carried out by the group, (3) a community of pecuniary interest in that purpose, and (4) an equal voice in the direction of the enterprise, which gives an equal right of control. Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex.1995); Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 16-17 (Tex.1974); Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 850 (Tex.App.Fort Worth 2006, no pet.). Arthur and Magiera concede there is some evidence to support an agreement between the parties. They do, however, challenge the sufficiency of the evidence to support the remaining three elements.

Common Purpose

As Arthur and Magiera describe the evidence, the only common purpose among members of the group was “to buy and use an aircraft.” While each member wanted to buy the plane and use it, Arthur and Magiera contend that each individual’s contemplated use of the plane was distinct in nature — “in other words, it is not a common purpose to be carried out by the group.” [Emphasis in Appellants’ briefing]. They point out:

• that Arthur never intended to own the airplane ultimately;
• that Magiera was neither an owner in name nor in fact;
• that Arthur and Magiera had no agreement with Willison as to his ownership rights;
• that Willison’s use of the plane was not a common purpose for Arthur or Magi-era;
• that each person had his or her own reason for using the plane;
• that Arthur and Magiera wanted to use it for personal travel; and
• that Willison could use it only when no one else was.

Grimmett responds that the enterprise was joined to ensure that the parties were able to afford, pay for, hangar, and utilize an airplane. They intended to reduce the cost of chartering a plane, which generally costs $150 per hour. By pooling their resources, Hernandez could pursue contracts with JOH Construction as well as profit through Dove Homes. Magiera and Arthur also wanted Dove Homes to be profitable. Willison could use the plane in connection with his own business needs.

We conclude that the evidence is both legally and factually sufficient to establish a common purpose. Our analysis is informed by Shoemaker v. Estate of Whistler, 513 S.W.2d 10 (Tex.1974).

Shoemaker is eerily familiar to the case at bar. Wylie Shoemaker filed suit for damages arising from the death of his son in the crash of a private airplane in Sand-erson, Texas. The aircraft was owned by five gentlemen, two of whom were on board the plane at the time. The two owner/occupants, Clyde Whistler and C.D. Carroll, were both pilots. They and their two passengers died in the crash. By the time of trial, only the estate of Clyde Whistler remained as a defendant. A jury determined the pilot to have been negligent, although no one could determine whether Whistler or Carroll had been in the command seat since all of the occupants were ejected. The trial court entered judgment against Whistler’s estate and against his widow. This court of appeals reversed and rendered judgment that Shoemaker take nothing, and he appealed.

The Supreme Court found three bases upon which liability could be imposed against a joint owner: (1) that Whistler was in actual control of the airplane; (2) that whether or not he was in actual control, he was chargeable as an active participant in the negligence of taking off in bad weather; and (3) that negligence could be imputed to Whistler under the Texas doctrine of joint enterprise, regardless of whether he was in active command of the airplane or an active participant at takeoff. Discounting the first two theories, the Supreme Court reached the question of joint enterprise. Tracing the history of the doctrine, the court noted that the law of partnership and the principles of agency serve as the foundation for joint enterprise. Id. at 16.

A step away from partnership is joint venture, a concept that is generally more limited in time and in purpose than a partnership. While a joint venture encompasses fewer objectives than a partnership, both exist in a business or commercial setting. Joint enterprise, which may be considered a third stage of development, is an unique creation of American jurisprudence.

Id. The theory of joint enterprise is to hold each party the agent of the other and thereby hold each responsible for the negligence of the other. But the court noted that it had not limited the doctrine to those having a commercial or business purpose. Id. at 15. Instead, it had considered a broad range of activities by fellow travelers as fulfilling the joint purpose requirement, such as driving to work, going to church and to buy groceries, and even driving to a masquerade dance. Id. at 16. It concluded that “the facts now before us fall well within the elements of joint enterprise articulated by this Court, i.e., a joint interest in the object and purpose of the enterprise....” Id. The facts here compel the same conclusion.

Community of Pecuniary Interest

But the Shoemaker court did not find that the facts established a community of pecuniary interest. In adopting Section 491, comment c of the Restatement, the court limited the application of the doctrine “to an enterprise having a business or pecuniary purpose....” Id. at 17. This avoids the imposition of a commercial concept upon relationships not having that characteristic. Id. Because the two owner/pilots had no pecuniary interest in the common purpose of the flight — a voluntary search mission for the Civil Air Patrol— Whistler could not be held vicariously liable. Id. Arthur and Magiera direct us to St. Joseph Hospital v. Wolff, 94 S.W.3d 513 (Tex.2002). There, a minor patient and her parents brought a medical malpractice claim against a surgical resident, the teaching hospital that sponsored the residency program, and the Foundation that actually employed the resident. Among other issues, the jury found that St. Joseph Hospital and the Foundation were engaged in a joint venture. Judgment was rendered in favor of the plaintiffs for $9.5 million. The court of appeals affirmed. Id. at 518. The Supreme Court reversed and rendered judgment in favor of the hospital, finding no evidence of a community of pecuniary interest. Id. at 534, 544.

The court specified that the ordinary meaning of “pecuniary” is “of or pertaining to money” and this monetary interest must be common among the members of the group. Id. Monetary benefits flowing from the enterprise will not suffice— there must still be evidence that the monetary benefits were shared among the members without special or distinguishing characteristics. Id. We find the following language particularly pertinent here:

The Restatement, however, requires the members of a joint enterprise to have a community of pecuniary interest in the common purpose or goal of the enterprise, not the means by which that purpose or goal is achieved. Like the co-owners who purchased the search plane that crashed in Shoemaker, St. Joseph and the Foundation may have both spent money in connection with the residency program. The investment of time and money to fulfill a common purpose, however, does not render that purpose ‘pecuniary’ in nature. Rather, such an expenditure may be evidence of a common purpose or a joint right of control concerning the project or enterprise undertaken to accomplish that purpose. It does not, however, invest a non-pecuniary purpose with a pecuniary nature. Were it otherwise, an agreement to share the costs of accomplishing a common — though non-pecuniary — purpose, such as taking a shared vacation or jointly purchasing a boat for recreational purposes, would render that purpose pecuniary in nature and, thus, sufficient to meet the third element of the Restatement’s joint enterprise definition.
Additionally, sharing the costs of accomplishing a common purpose does not render the parties’ respective interests in that purpose ‘community’ in nature. There still must be some evidence that the parties shared or held in community a pecuniary interest in the relevant common purpose.

Id. at 533. While Magiera and Hernandez hoped to make a profit from Dove Homes, that company had not built a single house at the time of the crash. More importantly, none of the parties intended to make a profit from the airplane, which was the common purpose. Arthur and Hernandez shared the expense of the purchase. Willi-son did not contribute any cash, although he contributed his time. We can’t tell from the record how long Magiera and Arthur had been married, but the record does reflect that Arthur had the credit to obtain the financing. In the absence of evidence that the lender looked only to her separate property for repayment, we must presume that the community estate contributed to the purchase. Sprick v. Sprick, 25 S.W.3d 7, 13 (Tex.App.-El Paso 1999, pet. denied) (“[D]ebts contracted during the marriage are presumed to be on the credit of the community and thus are community obligations, unless it is shown that the creditor agreed to look solely to the separate estate of the contracting spouse for satisfaction.”). Nevertheless, “[t]he investment of time and money to fulfill a common purpose ... does not render that purpose ‘pecuniary5 in nature.” Wolff, 94 S.W.3d at 533.

In turn, Grimmett relies upon Texas Department of Transportation v. Able, 35 S.W.3d 608 (Tex.2000). There, the Supreme Court found that a community of pecuniary interest existed between TxDOT and the Houston Metropolitan Transit Authority (Metro) as a result of the Transit-ways Master Operations and Maintenance Agreement by which the high-occupancy vehicle (HOV) lanes were constructed and maintained. The court relied on the language in the contract which recognized “that the Transitways project involved substantial sums of money and contemplated a sharing of resources in order to make better use of this money.” Id. at 614. The contract also contemplated an economic gain that could be realized by jointly undertaking the activities. Id. The .court concluded that the project “was not a matter of ‘friendly or family cooperation and accommodation’ but was instead a transaction by two parties that had a community of pecuniary interest in the purpose.” Id. Grimmett suggests that this reference to a “sharing of resources” likens her case to Able. We must disagree for the same reasons that the Supreme Court distinguished Able in Wolff:

The opinion in Able recited that the evidence included documents explaining the joint nature of TxDOT’s and Metro’s financial undertakings with respect to the construction and operation of the high occupancy vehicle lane involved in the case and stated that the documents ‘clearly contemplate an economic gain that could be realized by undertaking the activities in [the manner they contracted].’ By contrast, this case contains no evidence that either St. Joseph or the Foundation agreed to share with each other any financial benefits resulting from the operation of the general surgery residency program as a whole, the program’s operations at Bracken-ridge, or Wolff’s treatment.

Wolff, 94 S.W.3d at 533. While the parties here clearly agreed to share the airplane, there is no evidence that they “agreed to share with each other any financial benefits resulting from the operation of the airplane.” Id. Indirect, potential financial interests do not satisfy the test. Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 850 (Tex.App.-Fort Worth 2006, no pet.).

An Equal Right of Control

Shoemaker is also instructive on the right of control among members of the joint enterprise. “A distinction is drawn between the right of control and the actual power or physical capacity to control. The latter may be lacking without affecting the question.” 513 S.W.2d at 14. Each member of the joint enterprise must have some voice and right to be heard in its control and management. Id. at 14-15. “The Restatement 2d of Torts (1965) § 491 speaks of this essential element in terms of an equal right to a voice in the direction of the enterprise.” Id. at 15. Arthur and Magiera elicited abundant evidence that Willison, as the pilot, was in sole control of the airplane. They were not on board, and even if they had been, as non-pilots they would not have been able to exercise control. But this does not answer the question, as the Shoemaker court emphasized:

No more than one person — whether owner or non-owner pilot or driver — can be in superior command of an airplane or driving an automobile at the same time. But this does not gainsay the authority, and the right to be heard, that is inherent in the joint ownership of the passenger owner. The practical fact that a passenger or one in subordinate command is not expected to wrest the controls of an airplane from the pilot while flying through the air or, for that matter, to wrest the steering wheel of an automobile while speeding down the highway, is present to the same extent in the circumstances of joint ownership as in the circumstances of a non-owner pilot or driver and the passenger-owner situation. Yet in this latter situation we have observed in imposing vicarious liability that the owner-passenger had the right to exercise control, and we have imputed the negligence of the driver to the owner.

Id. at 15-16. Nor can this issue be decided simply on the basis that there was a pecking order among the members of the group for use of the airplane. The court rejected a test requiring that the person to whom negligence is imputed must occupy a position of superiority and an overriding authority over the negligent actor. “Indeed, not only is this test foreign to our writings but we have not found it to be recognized in any decision to which we have been cited nor considered in the writings of legal scholars on this subject.” Id. at 16. We similarly reject the argument here.

Conclusion

The evidence is both legally and factually sufficient to establish three of the elements necessary for a joint enterprise. It is legally insufficient on the element of community of pecuniary interest. Consequently, we sustain Arthur’s Issue One and Magiera’s Issue Two. We overrule as moot Arthur’s Issue Three and Magiera’s Issue Four.

JOINT VENTURE

Having determined that liability cannot be imposed on the basis of a joint enterprise, we must next address the evidence of joint venture. In Arthur’s Issues Two and Four and in Magiera’s Issues Three and Five, the couple challenges the legal and factually sufficiency of the evidence to support the jury’s findings.

The jury was charged with the following definition of joint venture:

A joint venture exists if the persons concerned have an agreement that has all of the following elements:

(1) a community of interest in the venture;
(2) an agreement to share profits;
(3) an express agreement to share losses; and
(4) a mutual right of control or management of the venture.

See Wolff, 94 S.W.3d at 535. If there is no evidence of any of these elements, the jury’s finding cannot be sustained. Id., citing Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 176 (Tex.1997).

Inasmuch as the airplane was not intended to generate a profit, nor was it to be used for chartered flights, there is no evidence of an agreement to share monetary profits from the aircraft itself. Grim-mett contends that a profitable Dove Homes would generate a profit for Magi-era and Hernandez. As Magiera’s wife, Arthur would share in the profits as well. Willison would profit by flying the airplane to and from Lajitas. Even were we to agree with this argument, there is absolutely no evidence of an express agreement to share losses. Grimmett argues that a sharing of losses does not necessarily require the loss of actual money, but can involve the loss of something of value, including sendees provided. She suggests that the airplane had value, and once it crashed, all of the members of the group shared in the loss. Willison no longer had access to the airplane to use in his business. Having lost the value of the pilot services he provided, Willison also would never obtain an ownership interest in the plane. Arthur had provided the purchase money but would never be able to use the plane. Magiera provided services in obtaining fuel for the plane, but he would never use it either. Hernandez lost his down payment and expense reimbursements.

The charge distinguished between “an agreement” (referring to profits) and “an express agreement” (referring to losses). “Express” means “clearly and unmistakably communicated; directly stated.” Black’s Law Dictionary 601 (7th ed. 1999). The “losses” that Grimmett identifies are implicit at best. No joint venture exists as a matter of law where an agreement includes a provision for sharing profits, but no express provision for sharing losses. Gutierrez v. Yancey, 650 S.W.2d 169, 172 (Tex.App.-San Antonio 1983, no writ).

We sustain Arthur’s Issue Two and Ma-giera’s Issue Three. We overrule as moot Arthur’s Issue Four and Magiera’s Issue Five. Because of our disposition of these issues, it is unnecessary for us to consider the remaining points of error. Consequently, we reverse and render judgment that Grimmett take nothing against Arthur and Magiera.

CARR, J., not participating.

      . Willison claimed that neither the airport beacon nor the runway lights were illuminated on the night of the crash, causing the plaintiffs to originally sue Crockett County and Charles McCleary, the manager of the airport. Testimony by witnesses and the pilot of a plane who landed earlier in the evening convinced the plaintiffs that the lights were indeed functioning.

      . The theory behind the negligence claims against Arthur and Magiera was negligent en-trustment. The jury was instructed that "negligence” when used with respect to the cou-pie's conduct "means entrusting an airplane to a reckless or incompetent pilot if the en-trustor knew or should have known that the pilot was reckless or incompetent.”

      . We pause here to specify precisely which individuals were identified as members of the group. The jury was instructed that they were to consider only whether Willison, Arthur, and Magiera were engaged in a joint enterprise. Hernandez was not included. Nothing in the record indicates that he was ever a party to the lawsuit.

      . We reiterate for clarity that the jury here failed to find that Willison was the agent of either Arthur or Magiera.

      . Restatement [Second] of Torts § 491 cmt. c(3)(1965).