author: Chief Justice MORRISS.

text:
    Ricky GILMORE, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 06-09-00233-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted July 6, 2010.
    Decided Aug. 12, 2010.
    Discretionary Review Refused Jan. 12, 2011.

      William M. Curley, Palestine, for Appellant.

      Donna G. Kaspar, County Atty., Crockett, for Appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

The January 2009 anonymous tip that ultimately led to the conviction of Ricky Gilmore, Sr., in a Houston County jury trial for possession of a controlled substance with intent to deliver, came in a telephone call to Houston County Deputy H.D. Gresham. Without divulging how he or she had come by the information, the tipster told Gresham that Gilmore had just left Trinity County traveling to Houston County in a white Dodge truck and was concealing drugs “in his ass.” Gresham asked Deputy Clayton Smith to accompany him in his attempt to locate Gilmore. The deputies were aware that Gilmore had outstanding child support warrants.

While traveling down State Highway 19 toward Trinity County, Gresham and Smith observed Gilmore, with whom they were acquainted, pass them traveling in the opposite direction in a vehicle matching the description given by the tipster. The deputies stopped Gilmore and arrested him on the child support warrants. The deputies conducted a pat down search of Gilmore and an inventory search of the vehicle, but found no drugs or drug paraphernalia. They did find $364.00 cash in Gilmore’s possession.

At the Houston County jail, Smith conducted a visual body-cavity search of Gilmore, requiring Gilmore to remove all his clothing, lift his scrotum, and spread his butt cheeks. The officers discovered, under Gilmore’s scrotum and partially concealed in Gilmore’s anus, a bag containing a substance later identified as containing forty-one grams of cocaine, including adulterants.

The anonymous caller then called Gresham again and stated that Gilmore had been selling drugs from his residence. The deputies obtained a search warrant for the residence and there discovered glassine bags and two sets of digital scales.

The jury found Gilmore guilty and assessed punishment at seventy-five years’ imprisonment. The trial court sentenced Gilmore consistent with the jury’s assessment. Gilmore appeals, raising four issues. We affirm the judgment of the trial court, because we hold that (1) the visual body-cavity search of Gilmore’s person was reasonable, (2) probable cause supported the search of Gilmore’s residence, (3) any error in refusing Gilmore a continuance was not preserved, and (4) insufficient causal connection was established to permit impeaching Gresham with federal charges.

(1) The Visual Body-Cavity Search of Gilmore’s Person Was Reasonable

Gilmore argues that the trial court erred in denying his motion to suppress evidence seized during the visual body-cavity search because the deputies lacked reasonable suspicion to conduct the search incident to arrest. The State argues the balancing of the four factors of Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), indicates the search was reasonable.

In general, a search incident to arrest authorizes the police to conduct “a full search of the person.” United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). “But Robinson did not do away with the requirement that all searches be reasonable, nor did it hold that all searches incident to arrest, no matter how intrusive, are per se reasonable.” McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.2003). Whether a search is reasonable “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell, 441 U.S. at 559, 99 S.Ct. 1861 (concluding searches in jails and prisons can be conducted with less than probable cause).

We are to consider four factors in determining the reasonableness of the search: (1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted. Id.; see McGee, 105 S.W.3d at 616. Each analysis will depend on the particular facts and circumstances of the underlying case, and no one factor is determinative. McGee, 105 S.W.3d at 616.

(a)The Scope of the Intrusion Weighs Against Reasonableness

The search of Gilmore’s person conducted in this case is sometimes called a strip search in the briefs of the parties and at trial. But it is properly called a “visual body-cavity search.”

The term “strip search” generally refers to an inspection of a naked person, without any scrutiny of the person’s cavities. A “visual body-cavity search” includes a visual inspection of a person’s anal or genital areas. A “manual body-cavity search” involves some degree of probing or touching a person’s body cavities.

Id. at 615. Because the search at issue included a visual inspection of Gilmore’s anal and genital areas, the search was a visual body-cavity search. The Texas Court of Criminal Appeals has noted “[visual body-cavity searches are among the most intrusive of searches” and their intrusiveness “cannot be overstated.” Id. at 616 (quoting Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 711 (9th Cir.1989)). Visual body-cavity searches can be demeaning, dehumanizing, terrifying, and humiliating. Id. This factor clearly weighs against the reasonableness of the search and requires the other factors, on balance, to justify the search.

(b) How the Search Was Conducted Favors Reasonableness

The record indicates the visual body-cavity search was conducted in a professional manner with no more intrusion than necessary. The deputies escorted Gilmore to a room in the book-in area of the Houston County jail, which the deputies referred to as the “strip-search area.” Once there, the deputies ordered Gilmore to remove his clothes and then inspected the clothes. The deputies then advised Gilmore to “turn and face [the deputies] and lift his scrotum and turn and spread his butt cheeks....” When Smith observed “something being concealed,” he asked Gilmore to remove the item; Gilmore eventually complied. There are no allegations the deputies required Gilmore to remain exposed for unreasonable durations, subjected Gilmore to endure degradation or ridicule, or conducted the search based on any abusive or unprofessional motivation on the part of the deputies. This factor weighs in favor of reasonableness.

(c) The Justification for the Search Favors Reasonableness

The third factor concerns the justification the deputies had for the search. That involves the level of suspicion the deputies had that a search would yield either contraband or a weapon. Although a pretrial detainee has a diminished expectation of privacy while at a jail — the location of this search — there is some debate about the appropriate level of suspicion for such a search.

Gilmore argues that the trial court erred in denying his motion to suppress evidence seized during the visual body-cavity search because the deputies lacked reasonable suspicion to conduct the search. He explains that Article 38.23 of the Texas Code of Criminal Procedure requires the exclusion of the evidence because (a) the lack of reasonable suspicion violated the United States Constitution, (b) the lack of reasonable suspicion violated the Houston County jail’s search policy, and (c) the lack of reasonable suspicion violated the Texas Administrative Code.

In Bell, the United States Supreme Court announced, due to the “significant and legitimate security interests” of penal institutions, visual body-cavity searches may be conducted based on less than probable cause. Bell, 441 U.S. at 560, 99 S.Ct. 1861. The Court, though, failed to specify what level of suspicion is necessary, if any. The Texas Court of Criminal Appeals, similarly, has yet to specify what level of suspicion, if any, is required for visual body-cavity searches. McGee, 105 S.W.3d at 617. McGee upheld a visual body-cavity search conducted in a fire station, not a jail, as a search incident to arrest but, in deciding the search was reasonable, noted the police had probable cause. Id. McGee endorsed the four-part weighing test set out by Bell and explicitly stated that no single factor of the test is determinative. Id. at 616. If, as is stated by McGee, a single factor cannot be determinative, then no particular level of suspicion, not even reasonable suspicion, can be said to be an absolute requirement to validate a search.

Notwithstanding the lack of an absolute standard requiring reasonable suspicion, we believe the deputies had reasonable suspicion to search Gilmore. We review the trial court’s decision on a motion to suppress evidence by applying a bifurcated standard of review deferring to the trial court’s determination of historical .facts that depend on credibility, but reviewing de novo the trial court’s application of the law. Wiede v. State, 214 S.W.3d 17, 25 (Tex.Crim.App.2007); see Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The trial court’s eviden-tiary ruling “will be upheld on appeal if it is correct on any theory of law that finds support in the record.” Gonzalez v. State, 195 S.W.3d 114, 126 (Tex.Crim.App.2006). Generally, we review de novo determinations of reasonable suspicion and probable cause after granting deference to the trial court’s determination of historical facts. Guzman, 955 S.W.2d at 87.

An anonymous telephone call rarely will, standing alone, establish the requisite level of reasonable suspicion because “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); see Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). Only an anonymous tip, suitably corroborated or otherwise exhibiting sufficient indicia of reliability, will provide reasonable suspicion for a temporary or investigative detention. See J.L., 529 U.S. at 270,120 S.Ct. 1375. Police can provide other indicia of reliability by independent corroboration of the informant’s information. See Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Cassias v. State, 719 S.W.2d 585, 590 (Tex.Crim.App.1986) (op. on reh’g). “Corroboration by the police officer means that, in light of the circumstances, the officer confirms enough facts to reasonably conclude that the information provided is reliable.... ” Jones v. State, 949 S.W.2d 509, 515 (Tex.App.-Fort Worth 1997, no writ).

In general, corroboration of mere innocent details is insufficient to corroborate an anonymous tip. Davis v. State, 144 S.W.3d 192, 199-200 (Tex.App.Fort Worth 2004, pet. ref'd). The independent corroboration by the police must establish that the anonymous tip is “reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” J.L., 529 U.S. at 271, 120 S.Ct. 1375. “[T]he corroboration of details that are easily obtainable at the time the information is provided, and which do not indicate criminal activity, will not lend support to the tip.” Stewart v. State, 22 S.W.3d 646, 648 (Tex.App.-Austin 2000, pet. ref'd); see J.L., 529 U.S. at 272, 120 S.Ct. 1375; Johnson v. State, 146 S.W.3d 719, 721 (Tex.App.-Texarkana 2004, no pet.); Davis v. State, 989 S.W.2d 859, 861 (Tex.App.Austin 1999, pet. ref'd); Parish v. State, 939 S.W.2d 201, 204 (Tex.App.-Austin 1997, no pet.); Correll v. State, 696 S.W.2d 297, 299 (Tex.App.-Fort Worth 1985, writ ref'd). The United States Supreme Court, though, has recognized an exception when the anonymous tip correctly predicts future movements of the suspect. See White, 496 U.S. at 332, 110 S.Ct. 2412; Gates, 462 U.S. at 245, 103 S.Ct. 2317. The Court reasoned:

Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to rehable information about that individual’s illegal activities.

White, 496 U.S. at 332, 110 S.Ct. 2412. Both Gates and White, however, involved unusual travel itineraries. When the travel itinerary is more commonplace, knowledge of a suspect’s travel plans may not be sufficient. See, e.g., Smith v. State, 58 S.W.3d 784, 793 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (finding no reasonable suspicion for various reasons, including that travel was down “well traveled corridor”). The question is whether, under the totality of the circumstances, “an informant’s tip contains a range of details relating not only to easily obtained facts and conditions existing at the time of the tip, but also to future actions of third parties ordinarily not easily predicted.” Id. at 789 (citing Gates, 462 U.S. at 245, 103 S.Ct. 2317).

The corroboration that Gilmore was traveling toward Houston County in a white Dodge pickup truck was not sufficient, by itself, to create reasonable suspicion. The travel was down a well traveled corridor, which was the usual route between Crockett and Trinity, and the tip merely predicted Gilmore’s current course of travel, not his future travel itinerary. The United States Supreme Court has noted:

An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

J.L., 529 U.S. at 272, 120 S.Ct. 1375 (citations omitted). At trial, Gresham testified the anonymous caller advised him “Ricky Gilmore had just left Trinity County....” As made clear in Gresham’s trial testimony, the anonymous tip in this case did not predict Gilmore’s future travel plans, but only described Gilmore’s current travel plans. As such, the exception for correctly predicting future travel plans does not apply. Although the corroboration is still relevant to the anonymous caller’s reliability, it is not sufficient corroboration by itself.

The corroboration that Gilmore was traveling toward Houston County in a white Dodge truck was not the only indicia of reliability known to the deputies. Although the deputies knew Gilmore had previously been arrested for drug offenses, it is not clear whether they knew if Gilmore had any prior convictions. The deputies had also received a tip from a named informant that Gilmore was selling drugs. Several weeks previously, another deputy had received a statement from a named informant who stated, “I go to the trailer behind Jan’s to purchase crack cocaine. I gave the money to Jesse McKnight and he goes to the back door to get the dope from Ricky Gilmore. This occurs in Crockett, Texas.”

While none of the information known to the deputies would have been sufficient by itself to create reasonable suspicion, the information was sufficient when considered together. We conclude the anonymous tip, corroborated by Gilmore’s current course of travel, considered with the tip from a named informant and Gilmore’s arrest record was sufficient under the totality of the circumstances to create reasonable suspicion.

The justification for the search favors reasonableness.

(d) Where the Search Was Conducted Favors Reasonableness

The Texas Court of Criminal Appeals has held “the search must be conducted in a hygienic environment where there is no risk of infection.” McGee, 105 S.W.3d at 617. The search was conducted in a room in the book-in area of the Houston County jail which the deputies referred to as the “strip-search area.” Although the search was not conducted in a location as sterile as a hospital, the search did not involve any probing of body cavities. In McGee, the Texas Court of Criminal Appeals suggested that, when there is no penetration of the body, a less sterile environment may be satisfactory. This is not to say visual body-cavity searches may be conducted in unsanitary conditions, but merely that the location does not have to be as sterile as a hospital when no penetration is involved. We conclude the place where the search was conducted was reasonable.

Three of the four factors favor a finding of reasonableness. Like the situation in McGee, the only factor that weighs against reasonableness is the intrusiveness of the search. Balancing the need for the particular search against the invasion of personal rights, we conclude that the visual body-cavity search was reasonable.

We overrule this contention.

(¾) Probable Cause Supported the Warrant to Search Gilmore’s Residence

Gilmore also contends that the trial court erred in denying his motion to suppress evidence discovered during the search of his residence. The Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution guarantee the right of the people to be secure against unreasonable searches of their persons, houses, papers, and effects. U.S. Const, amend. IV; Tex. Const, art. I, § 9. After discovering the cocaine during the visual body-cavity search, the deputies obtained a search warrant authorizing a search of Gilmore’s residence. They discovered glassine bags and electronic scales. Gilmore complains that the affidavit used to apply for the warrant fails to allege sufficient facts to establish probable cause.

As an exception to the general rule articulated in Guzman, the issuing magistrate’s decision to grant the search warrant should be reviewed with a deferential standard of review. Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App.2004). Great deference should be paid to a magistrate’s determination of probable cause, and warrants should not thereafter be invalidated through “hypertechnical” interpretation of their supporting affidavits. Gates, 462 U.S. at 236, 103 S.Ct. 2317. Affidavits for arrest or search warrants should be interpreted in a commonsense and realistic manner. Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App.1991). Granting great deference to the issuing magistrate’s determination, the appellate court will sustain the issuance of the warrant if the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Gates, 462 U.S. at 236, 103 S.Ct. 2317; see Swearingen, 143 S.W.3d at 811.

An application for a search warrant must be supported by an affidavit setting forth facts establishing probable cause. Tex.Code Crim. Proc. Ann. art. 1.06 (Vernon 2005), art. 18.01(b) (Vernon Supp. 2009). The determination of the sufficiency of an arrest or search warrant is limited to the four corners of the affidavit. Oubre v. State, 542 S.W.2d 875, 877 (Tex.Crim.App.1976); Burke v. State, 27 S.W.3d 651, 654 (Tex.App.-Waco 2000, pet. ref'd). The facts contained in the probable cause affidavit must be sufficient to justify a conclusion that the object of the search is probably on the premises at the time the warrant is issued. State v. Delagarza, 158 S.W.3d 25, 26 (Tex.App.-Austin 2005, no pet.). The warrant must contain “sufficient information” to allow the issuing magistrate to determine probable cause because the magistrate’s action “cannot be a mere ratification of the bare conclusions of others.” Gates, 462 U.S. at 239, 103 S.Ct. 2317.

Because probable cause is determined from the “four corners” of the affidavit alone, there are no credibility choices to be made by the trial court in determining whether the issuing magistrate had a substantial basis to conclude that probable cause existed. Burke, 27 S.W.3d at 654. Thus, we review de novo the trial court’s ruling on the motion to suppress. Id.

The search of Gilmore’s residence cannot be justified merely on the fact that Gilmore was found to possess drugs or that Gilmore was a drug dealer. “[I]t is not enough to simply conclude that contraband is in one’s home merely because the suspect has a home.” Taylor v. State, 54 S.W.3d 21, 27 (Tex.App.-Amarillo 2001, no pet.) (finding warrant for search of suspect’s residence invalid); see State v. Ozuna, 88 S.W.3d 307, 313 (Tex.App.-San Antonio 2002, pet. ref'd). There must be probable cause that drugs would be found at the residence.

The deputies had information which indicated drugs would be found at Gilmore’s residence. The probable cause affidavit in this case provides as follows, in pertinent part:

A. On January 14, 2008[,] Your Affiant received information from an anonymous source who stated that Ricky Gilmore was traveling from Trinity, TX to Crockett, TX on State Hwy 19 driving a white 1990s model Dodge truck. The source stated that the subject was going to have in his possession a quantity of cocaine that he had picked up in Trinity, TX. The source also explained to your affiant that Gilmore would be carrying the cocaine between his scrotum and anus.
C. Your Affiant located a white Dodge pick-up truck traveling northbound on State Hwy 19. The truck was a 1996 Dodge displaying Texas license plate 24PDX8. Deputy Smith positively identified that Ricky Lane Gilmore was the driver of the truck.
I. Once at the jail[,] a strip search was conducted which is common operating procedure for suspects that have a prior arrest record for narcotics and for person[s] suspected of concealing narcotics on there [sic] person. During the strip search[,] Deputy Smith located a foreign object underneath Gilmore’s scrotum and between his anus. When asked to remove the object[,] Gilmore hesitated but then complied and removed a clear plastic sandwich type bag that contained a white powdery substance believed to be cocaine.
J. A field test of the substance showed positive for cocaine and the unofficial weight of the substance and the packaging is approximately forty-two grams.
K. At approximately 11:45AM[,] your affiant received a telephone call from the anonymous source again who wanted to know if Gilmore had been caught. The source stated that Gilmore had bragged to him about making ten thousand dollars a week from the sales of cocaine, and the informant stated that Gilmore was known to keep illegal narcotics and United States currency derived from the sale of narcotics on his property, and inside his residence located at 110 Cypress street in Crockett, TX.
L. On December 29, 2008[,] Deputy Massingill received a hand written witness statement from Emil James Mos-er[,] a thirty eight year old male who had information about Gilmore. In Moser[’]s statement he writes[,] “I go to the trailer behind Jan’s grocery to purchase crack cocaine. I give the money to Jesse McKnight and he goes to the back door to get the dope from Ricky Gilmore. This occurs in Crockett, TX.
M.Your Affiant has known Gilmore to sell cocaine and has been selling cocaine for several years. Gilmore’s criminal history shows arrest for Manufacture/ Delivery/Possession of Controlled Substance less than 28 grams, Cocaine pos-, session, Possession of Controlled substance penalty group 1 less than one gram, and driving while license invalid.

Thus, the probable cause affidavit includes two tips, one from an anonymous informant and one from a named informant, that drugs would be found at Gilmore’s residence.

Because of the potential unreliability of statements given by anonymous informants, the United States Supreme Court developed the Aguilar-Spinelli analysis, which required a two-pronged test asking whether (1) the informant obtained the relevant information in a reliable manner, and (2) the informant was reliable. See Gates, 462 U.S. at 230, 103 S.Ct. 2317. In response to “hypertechnical” interpretations of the Aguilar-Spinelli analysis, the United States Supreme Court subsequently relaxed the rigid standards in the Aguilar-Spinelli analysis to allow consideration of the totality of the circumstances. See id. Because the focus of inquiry is whether the statements are sufficiently reliable for a finding of probable cause, a deficiency in one of the two factors of reliability of the informant may not be fatal if the totality of the circumstances indicates reliability. Id. The totality of the circumstances includes the “veracity,” “reliability,” and the “basis of knowledge” of the informant and the informant’s information. “[A]n informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” Id. Gates “did not dispense with the two requirements used in the Aguilar-Spinelli test. Rather, the United States Supreme Court simply held that the prongs should not be applied too rigorously, and the entire affidavit should be examined to determine whether, as a whole, probable cause is established.” Ware v. State, 724 S.W.2d 38, 40 (Tex.Crim.App.1986).

There are a number of concerns with the probable cause affidavit in this case. The anonymous tip fails to provide much information on either the veracity or reliability of the informant. The discovery of drugs during the visual body-cavity search indicates the source is reliable, but does not alleviate the concerns about the basis of knowledge of the informant. The tip fails to provide any information about how the informant obtained the information. The anonymous tip merely states, “Gilmore was known to keep illegal narcotics ... inside his residence.” The tip fails to specify how the anonymous source learned the narcotics were at the residence. The phrase “was known” is clearly insufficient, by itself, to establish the basis of knowledge of the anonymous call.

The tip from the named informant also lacks any information concerning the basis of the knowledge. The named informant stated, “I give the money to Jesse McKnight and he goes to the back door to get the dope from Ricky Gilmore.” This tip fails to specify how the named informant knew the drugs were kept at Gilmore’s residence. Did the named informant personally observe McKnight go to Gilmore’s residence, or did the named informant merely presume that is where McKnight went? A named informant’s declarations against the informant’s own penal interest may be used to corroborate the reliability of information in an affidavit. Abercrombie v. State, 528 S.W.2d 578, 583-85 (Tex.Crim.App.1974) (op. on reh’g); Barton v. State, 962 S.W.2d 132, 143 (Tex.App.-Beaumont 1997, pet. ref'd). Although the named informant’s admissions against the informant’s own penal interests may corroborate the named informant’s reliability, the named informant’s veracity is still suspect. The deputies lacked any information about how the named informant knew drugs were kept at Gilmore’s residence.

Despite these shortcomings, the tip from the named informant provides additional indicia of reliability to the anonymous call. In addition, the deputies knew Gilmore had previously been arrested for drug offenses and had been found in possession of cocaine only a few hours earlier. We are to afford great deference to the issuing magistrate. Whether we would have found probable cause under the facts presented in the probable cause affidavit, our review is concerned only with whether there is a substantial basis for the issuing magistrate to find probable cause existed. While the anonymous tip was deficient concerning both veracity and reliability, these deficiencies were compensated for by other indicia of reliability. The deputies had received a tip from a named informant that was consistent with the anonymous tip. In addition, the deputies knew that Gilmore had been arrested for drug offenses in the past. Finally, the first tip from the anonymous tipster had proven to be correct by the visual body-cavity search. Under the totality of the circumstances, the anonymous tip, considered with the other indicia of reliability, was sufficient to provide the issuing magistrate a substantial basis to conclude probable cause existed.

We overrule this contention.

(3) Any Error in Refusing Gilmore a Continuance Was Not Preserved

Gilmore also argues that the trial court erred in denying a motion for continuance made by an attorney his family had retained a week before trial. The motion was presented orally to the trial court the day of trial, immediately preceding voir dire. The State responds that the trial court did not abuse its discretion.

First, the error, if any, is not preserved for our review. A motion for continuance made during trial that is not in writing and is not sworn to will not preserve error if it is denied. Anderson v. State, 801 S.W.3d 276, 279 (Tex.Crim.App.2009); Matamoros v. State, 901 S.W.2d 470, 478 (Tex.Crim.App.1995); see Tex.Code CRiM. Proc. Ann. arts. 29.03, 29.08 (Vernon 2006). The record in this case does not contain any written motion requesting a continuance so that Gilmore’s newly retained counsel could represent him. The request for a continuance made by Gilmore’s newly retained counsel was made orally to the trial court. The issue raised by Gilmore on appeal is not preserved for appellate review.

Even if error had been preserved, Gilmore has failed to show the trial court abused its discretion. A criminal defendant has a right to secure counsel of his or her own choice. United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006); Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The United States Supreme Court, though, specifically acknowledged the right “is circumscribed in several important respects.” Gonzalez-Lopez, 548 U.S. at 144, 126 S.Ct. 2557 (quoting Wheat, 486 U.S. at 159, 108 S.Ct. 1692). A defendant cannot wait until the day of trial to demand different counsel or to request that counsel be dismissed so that he or she may retain other counsel. Neal v. State, 689 S.W.2d 420, 427 (Tex.Crim.App.1984); Ramirez v. State, No. 2-09-136-CR, 2010 WL 1946825, at *7-8, 2010 Tex.App. LEXIS 3663, at *20-21 (Tex.App.-Fort Worth May 13, 2010, no pet. h.) (mem. op., not designated for publication).

The Texas Court of Criminal Appeals has announced several factors which trial courts may consider in deciding whether to grant a continuance, including:

(1) the length of the delay requested, (2) whether other continuances were requested and whether they were denied or granted, (3) the length of time in which the accused’s counsel had to prepare for trial, (4) whether another competent attorney was prepared to try the case, (5) the balanced convenience or inconvenience to the witnesses, the opposing counsel, and the trial court, (6) whether the delay is for legitimate or contrived reasons, (7) whether the case was complex or simple, (8) whether a denial of the motion resulted in some identifiable harm to the defendant, (9) the quality of legal representation actually provided.

Ex parte Windham, 634 S.W.2d 718, 720 (Tex.Crim.App.1982); see Rosales v. State, 841 S.W.2d 368, 375 (Tex.Crim.App.1992). “In addition to all of these factors, it must be remembered that the public interest in the fair and orderly administration of justice may be greater than a defendant’s right to have counsel of his choice.” Id. Although the trial court had scheduled the trial date approximately three months before the date of trial, Gilmore’s counsel of choice was not retained until the week before trial. Gilmore’s newly retained counsel first orally requested a ninety-day continuance. After the trial court denied the substitution of counsel, Gilmore’s newly retained counsel orally requested a sixty-day continuance, which the trial court also denied. The State represented to the court that it did not have any other cases ready for trial on that day. Even if this issue had been preserved for review, the trial court did not abuse its discretion.

We overrule this contention.

(Jp) Insufficient Causal Connection Was Established to Permit Impeaching Gresham ivith Federal Charges

Gilmore also asserts the trial court erred in refusing to permit Gilmore to impeach Gresham based on pending criminal charges that had been filed against Gresham in federal court. Gresham received the initial anonymous tip and assisted in the investigation of Gilmore. Gresham had been charged with a violation of civil rights and entered a plea agreement in which he agreed to plead guilty to simple assault. Gresham was awaiting sentencing on the plea agreement. The trial court refused to permit the impeachment evidence to be introduced.

Gilmore cites Maxwell v. State, 48 S.W.3d 196, 200 (Tex.Crim.App.2001), overruled to the extent it conflicts with Carpenter v. State, 979 S.W.2d 633, 634 (Tex.Crim.App.1998), by Irby v. State, - S.W.3d - (Tex.Crim.App.2010), in support of his argument. The State argues Gilmore failed to establish a causal connection between the pending charges in federal court and a bias or motive to testify favorably for the State.

Impeachment based on proof of circumstances showing bias is permitted unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See Tex.R. Evid. 403, 613; see also Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (right to confront witnesses includes right to cross-examine witnesses concerning their possible bias, self-interest, or motives in testifying); Hammer v. State, 296 S.W.3d 555, 561 (Tex.Crim.App.2009). The Texas Court of Criminal Appeals has held that the existence of an express agreement between the witness and the State is not determinative of whether pending charges reveal bias. Carroll v. State, 916 S.W.2d 494, 500 (Tex.Crim.App.1996). The proponent of the impeachment evidence, however, “must establish some causal connection or logical relationship between the pending charges and the witness’ ‘vulnerable relationship’ or potential bias or prejudice for the State, or testimony at trial.” Carpenter, 979 S.W.2d at 634. The facts in Carpenter were similar to this case. The Texas Court of Criminal Appeals held there was no causal connection between the existence of pending federal charges and the witness’ testimony at trial. As in Carpenter, Gilmore has failed to establish a causal connection between the pending federal charges and Gresham’s testimony at trial. At trial, Gilmore argued, because Gresham’s presentence investigation report had not been completed, Gresham had a motive to be biased toward the State. This argument is the equivalent of the mere existence of federal charges and fails to establish a nexus or causal connection indicating bias. The trial court did not err in refusing to permit the impeachment of Gresham.

For the reasons stated, we affirm the judgment of the trial court.

      . Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov't Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R.App P. 41.3/

      . The search policy of the Houston County jail states that an unclothed search is "[a] search where reasonable suspicion exists to justify the search." According to Gilmore, the search should have been suppressed because the deputies lacked specific, articulable facts that Gilmore possessed a controlled substance. Gilmore's argument relies on the definition of "reasonable suspicion" that applies to Fourth Amendment purposes, rather than the definition of the term in the policy. The policy, though, assigned a different definition to the term “reasonable suspicion" than the definition of the term for the purpose of a Fourth Amendment analysis. Section 1.08 of the policy provides reasonable suspicion exists if "the individual's criminal history shows previous arrests for drug offense....” The record reflects that the deputies were aware Gilmore had been previously arrested for drug offenses.
      A departmental policy, however, is merely a guide to assist the employees of the department; it is not a law or a regulation. A policy is "a definite course or method of action selected from among alternatives and in light of given conditions to guide and determine present and future actions.” Merriam Webster's Collegiate Dictionary 960 (11th ed.2003). Although a policy might have relevance in some situations, it has no relevance to the admissibility of evidence under Article 38.23. It is a guide to aid the department's employees in complying with the department's preferred course of action. While often used to aid a department in complying with the law, a policy is still nothing more than a guide. A policy does not modify or expand the law. A policy is not a law of the State of Texas under Article 38.23.

      . The Texas Commission on Jail Standards has issued a regulation concerning searches on admittance. Section 265.2 of Title 37 of the Texas Administrative Code provides as follows in pertinent part:
      (a) A thorough pat or frisk search shall be conducted on each inmate upon entry into the facility and prior to booking.
      (b) When facility personnel reasonably believe it to be necessary, inmates should undergo a thorough strip search for weapons and contraband which may pose a threat to the security or safety of the facility....
      37 Tex Admin. Code § 265.2 (2010). Gilmore argues, because the deputies lacked reasonable suspicion, they could not "reasonably believe” a search was necessary. Thus, according to Gilmore, the search violated the Texas Administrative Code and the prohibition contained in Article 38.23 applies to the search.
      In general, a valid regulation adopted by an administrative agency in accordance with its delegated powers has the force and effect of a legislative enactment. Ne. Tarrant County Water Auth. v. Bd. of Water Eng’r, 367 S.W.2d 720, 723 (Tex.Civ.App.-Austin 1963, no writ); see 25-421 Dorsaneo, Texas Litigation Guide § 421.02 (2010); B-R Dredging Co. v. Rodriguez, 564 S.W.2d 693, 696 (Tex.1978). However, the issue of whether the general rule applies under the circumstances presented in this case is not clear. Neither Gilmore nor the State have briefed whether the Texas Legislature contemplated that Article 38.23 would apply to violations of agency regulations or whether "reasonably believed" is consistent with or more expansive than reasonableness under the Fourth Amendment. Because the deputies had reasonable suspicion, it is not necessary for us to decide this issue.

      . The testimony of the deputies at trial differed in a number of minor respects from their testimony at the pretrial hearing. In reviewing a trial court's decision concerning a motion to suppress, we generally consider only evidence adduced at the suppression hearing, since the ruling was based on that evidence, rather than evidence introduced later in the trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996). When the legality of the seizure is relitigated at trial, however, consideration of relevant trial testimony is appropriate in our review. Id. In this case, the issue was relitigated at trial and presented to the jury in the court’s charge. Therefore, we will consider the testimony introduced at trial in our analysis.

      . A person's arrest record may be considered along with other specific, articulable facts in determining whether reasonable suspicion exists. See Coleman v. State, 188 S.W.3d 708, 719 (Tex.App.-Tyler 2005, pet. ref'd). Of course, knowledge that Gilmore had been convicted of prior drug offenses would be considerably more persuasive.

      . The tip from the named informant was made to the deputies several weeks before the search of Gilmore’s residence. It is well established that a search warrant cannot be issued based on facts which occurred at too remote a time. See Garza v. State, 120 Tex. Crim. 147, 48 S.W.2d 625, 626 (1932); Serrano v. State, 123 S.W.3d 53, 60 (Tex.App.Austin 2003, pet. ref'd). A probable cause affidavit is “inadequate if it fails to disclose facts which would enable the magistrate to ascertain from the affidavit that the event upon which the probable cause was founded was not so remote as to render it ineffective.” Sherlock v. State, 632 S.W.2d 604, 608 (Tex. Crim.App.1982) (citing Garza, 48 S.W.2d at 627-28). On the other hand, the issue of staleness becomes less of a concern when the information known to the police shows a continuing course of conduct. See Bernard v. State, 807 S.W.2d 359, 365 (Tex.App.-Houston [14th Dist.] 1991, no pet.); see also Bills v. State, 855 S.W.2d 79, 82 (Tex.App.-Fort Worth 1993, no pet.). We conclude the tips in this case are sufficient to conclude Gilmore was engaging in a continuing course of conduct. Therefore, the concerns about the tip from the named informant being stale are alleviated.

      . The record contains a written motion for continuance filed by Gilmore’s appointed counsel which requests a continuance because Gilmore had ceased discussing the case with his appointed counsel on learning his family had retained another attorney to represent him. This motion, though, does not request a continuance on behalf of the newly retained attorney.

      . The Texas Court of Criminal Appeals issued its opinion in Irby after the parties had filed their briefs in this case.


source: Caselaw Access Project

author: GUADALUPE RIVERA, Justice.

license: Public Domain

text:
    TEXAS MUTUAL INSURANCE COMPANY as Subrogee of Evaristo Medrano, Appellant, v. Maurillo Urquidi OLIVAS, Individually and d/b/a Olivas Trucking, Appellee.
    No. 08-09-00150-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 25, 2010.

      Jackie M. Kenyon, Austin, TX, Loren R. Smith, Kelly, Smith & Murrah, P.C., Houston, TX, for Appellant.
    James M. Rush, Odessa, TX, for Appel-lee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

In four issues, Appellant, Texas Mutual Insurance Company, (Texas Mutual), asserts that the trial court committed error in dismissing this case for want of prosecution, in granting Appellee’s motion to dismiss, in denying Texas Mutual’s motion to reinstate, and in striking Texas Mutual’s petition for intervention. We affirm the judgment of the trial court.

BACKGROUND

On January 21, 2008, Plaintiff, Evaristo Medrano (Medrano), filed suit against Ap-pellee, Maurillo Urquidi Olivas, individually and doing business as Olivas Trucking (Olivas), for personal injuries arising from a motor vehicle accident that occurred on or about March 28, 2006, while Medrano was allegedly engaged in the course and scope of his duties as an employee of Longhorn Service & Drilling Co. (Longhorn). According to the pleadings, Longhorn carried a policy of worker’s compensation insurance issued by Texas Mutual. Texas Mutual was not a named party in Medrano’s suit against Olivas.

Dismissal of Case

On October 17, 2008, the trial court issued an order setting the case for trial on March 10, 2009. At 4 p.m. on March 9, 2009, the day before trial, Medrano’s attorney, Mr. Israel Guardiola, filed a motion for continuance stating that Medrano had been deported to Mexico, that he had been unable to effectively communicate with Medrano, and that he needed more time to attempt to secure Medrano from Mexico and to file additional medical documentation by affidavit. Mr. Guardiola also filed a motion to withdraw because he would not be able to prepare for trial without the assistance of Medrano.

Olivas responded to the motion for continuance, arguing that the case had been set for trial after settlement negotiations failed and that Olivas, a sole proprietor who earned his living with his truck, was ready for trial, had made business arrangements to attend trial, and was ready to bring the litigation to a close. Olivas also submitted an affidavit in which he specified that he had been relieved to know that the litigation would conclude during the week of March 10, 2009, and stated that, if the trial was continued, he would have to worry about further business interruptions until the trial was rescheduled, would be required to make new arrangements with customers, and would again be required to miss work in order to attend trial.

On March 10, 2009, the date of trial, the trial court conducted a hearing at which it considered Medrano’s request for continuance. At the hearing, Mr. Guardiola informed the trial court that: (1) Medrano had been deported “sometime last year;” (2) there had been limited telephonic communications between them; (3) he had not been able to bring Medrano back into the United States; and (4) he did not know if he would be able to bring Medrano back into the country for trial. Mr. Guardiola stated that he would like to attempt to bring Medrano back to the United States because he would not be able to prove his case, specifically as to damages, without Medrano present.

In response, Olivas’s counsel, Mr. James Rush, objected to Medrano’s motion for continuance, announced that he was ready for trial, and noted that Mr. Olivas had made arrangements to be present for trial since October 2008. Mr. Rush stated that he had filed a motion to dismiss the case due to Medrano’s failure to appear for trial.

Responding to Olivas’s motion to dismiss, Mr. Guardiola explained that, without a continuance and without Medrano, he could not present a case. The trial court denied Medrano’s motion for continuance and, granting Olivas’s motion, dismissed the case for want of prosecution without prejudice.

Post-dismissal Motions

On April 8, 2009, Texas Mutual filed a plea in intervention as a subrogee of Me-drano, seeking to assert a right of subro-gation to recover from Olivas benefits paid to and on behalf of Medrano. Texas Mutual contended that the intervention was almost essential to effectively protect its interest and would not complicate the case excessively as it arose from the same facts and circumstances as the original suit. Texas Mutual also filed a verified motion to reinstate the case. Citing Texas Mutual Insurance Company v. Ledbetter, 251 S.W.3d 81, 36 (Tex.2008), in both its plea and motion, Texas Mutual asserted that the plea in intervention may be filed after judgment is rendered when the intervenor is a subrogee whose interest was at first adequately represented by someone else but was later abandoned.

Olivas filed both a motion to strike Texas Mutual’s plea in intervention and a response to the motion to reinstate the case, noting that the Ledbetter case permitted a subrogee to intervene after judgment or on appeal only if there is neither delay nor prejudice to the existing parties. Olivas asserted that he would suffer substantial delay and prejudice as he had already appeared and was ready for trial on March 10, 2009, and had incurred significant expenses in the form of attorney’s fees and videography services secured for the March 10, 2009, trial. Olivas noted that if Texas Mutual’s plea and motion were granted, he would again be subject to the process of discovery, and claimed that any additional discovery or new theories of the case that Texas Mutual may wish to pursue would adversely impact Olivas’s livelihood as he would again need to set aside time from his business to subject himself to discovery and trial for a second time. Olivas contended that the intervention and reinstatement of the case would not only adversely affect him but would result in lost time to the Court as it evaluated Texas Mutual’s theories, would further delay resolution of the case, and argued that Texas Mutual had not offered a remedy for the situation that led to the case being dismissed for want of prosecution, namely, that Medrano was not within the country. Olivas also noted that Texas Mutual had not provided in its motions any of the grounds for reinstatement of a case dismissed under Rule 165a of the Texas Rules of Civil Procedure. Tex.R. Civ. P. 165a.

Texas Mutual responded by providing documentary evidence to show that Mr. Rush was aware of its interest as a subro-gee, but did not provide any evidence in support of its assertion that Mr. Guardiola had agreed to represent Texas Mutual’s subrogation interest at trial. Rather, Texas Mutual attached letters showing that it had notified Mr. Guardiola as well as Mr. Rush and Olivas’s insurance carrier that it was claiming a subrogation lien, was pursuing a subrogation claim or action regarding the accident, and asserting that it had first right to receive reimbursement in the event that Medrano received any money as a result of a settlement or judgment. Texas Mutual also provided an affidavit from its subrogation specialist, Mr. Guerrero, in which he averred: (1) that he had spoken with Olivas’s attorney about its subrogation lien, and (2) that he was notified on March 3, 2009, a week before trial was scheduled to commence, that Mr. Guardio-la planned to file a motion for continuance as well as a motion to withdraw as Medra-no’s counsel. Mr. Guerrero stated that he had expected the motion for continuance to be granted.

Post-dismissal Hearing

The trial court held a hearing to consider Texas Mutual’s plea in intervention and motion to reinstate. At the hearing, Texas Mutual again asserted that Mr. Guardiola had been representing it at trial and then abandoned the case. Texas Mutual declared to the trial court that it knew how to contact Medrano and would go into Mexico to depose him, and it also asserted that its intervention was timely and involved the same facts as the dismissed case. Then, the following colloquy ensued:

Texas Mutual: [W]e are a proper party, and this intervention is essential to represent our interests. All parties were on notice of our interests at the time the case was called to trial. And dismissing the case without any notice to us prejudices our rights in that we will not be able to recover anything from Mr.—
Trial Court: Well, who is giving you notice?
Texas Mutual: Excuse me?
Trial Court: Who do you expect to give you notice?
Texas Mutual: I guess I would expect that someone would notify us if ... a motion to dismiss [was] filed in this case in order that we would intervene and know that we could protect our rights instead of being notified after the fact that the case was dismissed.
Trial Court: So there is an obligation by somebody to notify all people that might have a possibility to intervene? How is that possible?
Texas Mutual: Your Honor, what I’m saying is if the case had been continued, we would have known to intervene because the Plaintiffs counsel notified us he was withdrawing. But by just calling the case for trial and dismissing it out of hand without any opportunity for us to intervene does prejudice our rights. And so that’s why we’re here today asserting our—
Trial Court: So the court should always grant a continuance in case there is somebody that might be able to intervene?
Texas Mutual: The claimant has that right to his day in court, Your Honor. And if his counsel was withdrawing, it seemed ... that he should be given the opportunity to retain new counsel.
Trial Court: What about [defense counsel]? He and his [client] prepared for trial and were sitting here ready to go on that day.
Trial Court: Who bears the cost of that?
Texas Mutual: I don’t know, Your Hon- or, but ... the cost of litigation is the cost of litigation anywhere. And I saw that the bill was $650. And, yes, the ease has been prepared for trial and we can bring it to trial.
Trial Court: When?
Texas Mutual: I knew you were going to ask me that. I don’t know when the court has the next trial setting. We need some time to go find Mr. Medrano.
Trial Court: Well, that’s what I’m saying, you — first of all, you told me that you could do it and it’s not going to require any delay to the [defendant] in this case, but then you tell me you’ve got to find Mr. Medrano and go take his deposition.
Texas Mutual: Well, we have other records that we can present.... I mean, we don’t have only Mr. Medrano, but we do have to get the case ready for trial. And I don’t know when the next trial setting is that you could give us.... And I think that, you know, in order to give us our day in court is the right thing for the court to do.
Trial Court: Well, you have to ask for your day in court, don’t you?
Texas Mutual: That’s what I’m doing here today, Your Honor. I’m intervening and asking that the case be reinstated. Plaintiffs counsel abandoned our case. He was representing us up until that day.

Mr. Rush reminded the trial court of the facts it had before it when it dismissed the case, argued that the intervention was not proper as it would delay the case for an unknown period of time, perhaps years, especially since Medrano had been deported to Mexico and was not readily available for trial, and noted that it had been Me-drano’s failure to appear at trial, and not counsel’s withdrawal or alleged abandonment of the case, that had formed the trial court’s basis for dismissing the case for want of prosecution. Mr. Rush further contended that granting Texas Mutual’s requests would otherwise severely prejudice Olivas in that every additional appearance for a deposition or hearing would again interfere with his ability to make a living, and noted that Olivas had already spent thirteen months preparing for trial before the case was dismissed and had already expended funds for trial-related services during that time.

Without filing any findings of fact or conclusions of law, the trial court granted Olivas’s motion to strike intervention and denied Texas Mutual’s motion to reinstate the case. Texas Mutual filed this appeal.

DISCUSSION

Standard of Review

We review a trial court’s decision to dismiss a case for want of prosecution under a clear abuse-of-discretion standard. See State v. Rotello, 671 S.W.2d 507, 508-09 (Tex.1984); Fox v. Wardy, 234 S.W.3d 30, 32 (Tex.App.-El Paso 2007, pet. dism’d w.o.j.); Dick Poe Motors, Inc. v. Daimler-Chrysler Corp., 169 S.W.3d 478, 484 (Tex.App.-El Paso 2005, no pet.); Herrera v. Rivera, 281 S.W.3d 1, 6 (Tex.App.-El Paso 2005, no pet.); Fox v. Wardy, 225 S.W.3d 198, 199 (Tex.App.-El Paso 2005, pet. denied) (“The decision to dismiss a case for want of prosecution rests within the sound discretion of the trial court, and can be disturbed on review only if it amounted to a clear abuse of discretion.”). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); Fox, 234 S.W.3d at 32; Dick Poe Motors, 169 S.W.3d at 484; Herrera, 281 S.W.3d at 6. However, a trial court does not abuse its discretion when it bases its decision on conflicting evidence or when some evidence of a substantive and probative character exists to support the trial court’s decision. In re Barber, 982 S.W.2d 364, 366 (Tex.1998). We may not reverse for abuse of discretion merely because we disagree with the decision of the trial court. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995); Beaumont Bank, N.A. v. Butler, 806 S.W.2d 223, 226 (Tex.1991); Herrera, 281 S.W.3d at 6.

Failure to Provide Notice of Intent to Dismiss

Appellant’s first issue contends that the trial court abused its discretion by dismissing the case without providing notice. A party must be provided with notice and an opportunity to be heard before a trial court may dismiss a case for want of prosecution under either its inherent power or Rule 165a. See Tex.R. Civ. P. 165a(l); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999). Therefore, a trial court’s failure to provide adequate notice generally requires reversal as a party’s due-process rights have been violated. Villarreal, 994 S.W.2d at 680-31. However, “a trial court does not abuse its discretion by denying a motion to reinstate if the movant (a) receives notice of the actual order of dismissal in time to file a motion to reinstate, and (b) has an opportunity to be heard on the motion.” Keough v. Cyrus U.S.A., Inc., 204 S.W.3d 1, 5-6 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). Consequently, a “motion to reinstate with the opportunity for a hearing cures the due process violations.... ” Finlan v. Peavy, 205 S.W.3d 647, 655 (Tex.App.-Waco 2006, no pet.); see also Wright v. Tex. Dept, of Criminal Justice-Institutional Div., 137 S.W.3d 693, 695 (Tex.App.Houston [1st Dist.] 2004, no pet.); Tex. Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648-50 (Tex.App.-San Antonio 2002, pet. denied); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 402-03 (Tex.App.-Dallas 2001, pet. denied).

The trial court below did not provide written notice to Medrano prior to dismissing the case for want of prosecution. However, after the trial court issued its order of dismissal, Texas Mutual, rather than Medrano, filed a motion to reinstate the case, and the trial court entertained a hearing on the motion. As a result, any due-process violations resulting from the failure to give notice prior to dismissal were cured and no reversible error is shown. See Keough, 204 S.W.3d at 6. (“Keough received actual notice of the order of dismissal and timely filed a motion to reinstate. There is no indication she did not have an opportunity to be heard. Thus, if the trial court failed to notify Keough of its intent to dismiss her case, the error was cured.”); Finían, 205 S.W.3d at 655-56 (“we maintain that the timely received notice of dismissal and a motion for new trial and motion to reinstate with the opportunity for a hearing cures the due process violations, if any, caused by a lack of notice prior to the actual dismissal in this case”); Tex. Sting, 82 S.W.3d at 650 n. 6 (“we believe appellants were afforded due process in this instance because they had a post-dismissal hearing on their motion for new trial that remedied any violation of their rights occurring before the dismissal of their lawsuit”); Franklin, 53 S.W.3d at 402-03 (“Courts that have addressed this issue have uniformly held that when the trial court holds a hearing on a motion to reinstate while the court had full control of its judgment, and the dismissed party thereby receives the same hearing with the same burden of proof it would have had before the order of dismissal was signed, no harmful error is shown.”). Appellant’s first issue is overruled.

Good Cause and Motion to Reinstate

In its second issue, Texas Mutual complains that the trial court erred in dismissing the case for want of prosecution because Medrano showed good cause for retaining the case on the court’s docket. In its third issue, Texas Mutual complains that its failure, as well as Medrano’s failure, to appear at trial was not intentional nor the result of conscious indifference and, consequently, claims that the trial court erred when it denied Texas Mutual’s motion to reinstate the case. We consider these issues together.

Both Rule 165a of the Texas Rules of Civil Procedure and the court’s inherent power grant a trial court authority to dismiss a case for want of prosecution. See Tex.R. Civ. P. 165a(l)-(2); Villarreal, 994 S.W.2d at 630; Fox, 234 S.W.3d at 32; Dick Poe Motors, 169 S.W.3d at 484. Unless there is good cause to maintain the case on the docket, the trial court is required to dismiss the case at the dismissal hearing. Tex.R.Civ. P. 165a(l). A dismissal under Rule 165a is appropriate when a party fails to appear for any hearing or trial for which he had notice. See Tex.R. Civ. P. 165a(l). Under the common law, a trial court possesses the inherent power to dismiss a case independently of the rules of procedure when a plaintiff fails to prosecute its case with due diligence. Villarreal, 994 S.W.2d at 631-32; Dick Poe Motors, 169 S.W.3d at 484. The factors a trial court may consider in dismissing a case under its inherent power include the length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay. Maida v. Fire Ins. Exchange, 990 S.W.2d 836, 842 (Tex.App.-Fort Worth 1999, no pet.), citing King v. Holland, 884 S.W.2d 231, 237 (Tex.App.-Corpus Christi 1994, writ denied). We must look to the record in its entirety. Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex.App.-Houston [14th Dist.] 1993, no writ). The complaining party has the burden to bring forth a record to support its contention. See Fox, 225 S.W.3d at 200; American Paging of Texas, Inc. v. El Paso Paging Inc., 9 S.W.3d 237, 240 (Tex.App.-El Paso 1999, pet. denied). The trial court’s decision will be reviewed to determine whether the litigant demonstrated good cause for not prosecuting with greater diligence. See Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, 491 (1942). When a trial court does not specify under what ground it was exercising its authority to dismiss the case, we may affirm the judgment under any applicable legal theory. Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.1987); Fox, 225 S.W.3d at 200 (“If the order does not specify a particular reason for the dismissal, we will affirm if any proper ground supports the dismissal.”); City of Houston v. Thomas, 838 S.W.2d 296, 297 (Tex.App.-Houston [1st Dist.] 1992, no pet.).

A trial court must reinstate a case upon the proper filing of a motion if it finds after a hearing that the failure of the party or his attorney to appear at trial was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained. Tex.R.Civ. P. 165a(3). A determination of whether a failure to appear was not intentional or was the result of conscious indifference is within the trial court’s fact-finding discretion. Johnson v. Hawkins, 255 S.W.3d 394, 398 (Tex.App.-Dallas 2008, pet. denied) citing Price v. Firestone Tire & Rubber Co., 700 S.W.2d 730, 733 (Tex.App.-Dallas 1985, no writ). We review the denial of a motion to reinstate under a clear abuse-of-discretion standard. See State v. Rotello, 671 S.W.2d 507, 509 (Tex.1984), quoting Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 87 (1957); Johnson v. Hawkins, 255 S.W.3d 394, 397 (Tex.App.-Dallas 2008, pet. denied); Hung v. Bullock, 180 S.W.3d 931, 932 (Tex.App.-Dallas 2006, no pet.); Herrera, 281 S.W.3d at 6. In determining whether a trial court should have granted a motion to reinstate a case, we look to whether a party has prosecuted the matter with due diligence. Herrera, 281 S.W.3d at 6; Rainbow Home Health, Inc. v. Schmidt, 76 S.W.3d 58, 57-8 (Tex.App.San Antonio 2002, pet. denied). A trial court does not abuse its discretion when its decision is based on conflicting evidence or when some evidence of a substantive and probative character exists to support the trial court’s decision. In re Barber, 982 S.W.2d 364, 366 (Tex.1998).

Dismissal

The underlying case was on file for more than thirteen months. On the day of trial, which was approximately five months after the trial date had been set, the evidence before the trial court showed, in part, that: (1) Medrano had been deported from the United States to Mexico at some unknown time during the preceding year, which was more than two months before trial and possibly longer; (2) Mr. Guardiola had not been able “to effectively communicate” with Medrano in Mexico and allegedly had not been able to secure Medrano’s reentry into the United States for trial; (3) Mr. Guardiola could not prove his case without Medrano; and (4) Mr. Guardiola was seeking both a continuance and permission to withdraw from the case. No evidence was offered specifying what efforts, if any, had been attempted to secure Medrano’s attendance from Mexico, nor was any evidence or argument offered to show why Medrano would be permitted to reenter the United States for trial in the future. The trial court knew that Olivas was prepared to try his case on the day of trial, and the clerk’s record shows that Mr. Rush had filed both a motion in limine and a motion to exclude evidence. Medrano’s motions for continuance and withdrawal of counsel were filed with the trial court one day before trial was scheduled to commence.

The extent of Medrano’s activity in the case after it was set for trial is minimal and provides a foundation for the trial court’s rulings. We first note that Mr. Guardiola contacted Texas Mutual’s subro-gation specialist, Mr. Guerrero, on March 3, 2009, one full week before trial, and advised him that he was filing a motion for continuance and that he planned to withdraw from the case. Moreover, having reviewed the arguments and evidence contained in the record, we are also aware, as the trial court must have been, of what is not contained in the record. No evidence was presented by either Medrano or Texas Mutual on the day of trial or at the reinstatement hearing to demonstrate what efforts, if any, had been attempted or, if applicable, were underway to locate and bring Medrano back into the United States during the months before trial. Neither Medrano nor Texas Mutual provided any evidence to the trial court regarding any preparations made in furtherance of the prosecution of the case once it was set for trial. We have reviewed the docket sheet that is contained in the record on appeal. The docket sheet reveals that Medrano and Olivas were making moderate preparations in the case until the trial court issued its October 17, 2008, order setting trial for March 10, 2009. After the case was set for trial, however, the docket sheet reflects little, if any, activity by Mr. Guar-diola to advance prosecution of the case.

Because we may affirm a dismissal on the basis of the trial court’s inherent authority to dismiss the case and because we may affirm the dismissal under any applicable legal theory, we do not find that the trial court clearly abused its discretion by dismissing the case. Villarreal, 994 S.W.2d at 630; Point Lookout West, Inc., 742 S.W.2d at 278; Thomas, 838 S.W.2d at 297. The trial court could have reasonably and properly determined that Medrano failed to prosecute the case with due diligence. Villarreal, 994 S.W.2d at 630; Callahan, 161 S.W.2d at 491; see Sellers v. Foster, 199 S.W.3d 385, 400 (Tex.App.-Fort Worth 2006, no pet.). The second issue on appeal is overruled.

Reinstatement

Under Rule 165a(3), a court must only reinstate a case if it finds that the failure to appear was not intentional or was not the result of conscious indifference but, rather, was due to an accident or mistake or that the failure has otherwise reasonably been explained. Tex.R. Civ. P. 165a(3). “Conscious indifference” has been defined as “failing to take some action that would seem to be indicated to a person of reasonable sensibilities under similar circumstances,” and it requires more than negligence. Sellers, 199 S.W.3d at 400. Here, Texas Mutual presented evidence that it was aware that Medrano filed a motion to continue the trial and that Mr. Guardiola had filed a motion to withdraw as counsel. There is no guarantee that a motion for continuance of a case will be granted. Having been informed that its interests could be adversely impacted by the filing of and subsequent ruling on Medrano’s motion to continue, Texas Mutual could have, but did not, enter the litigation before trial to protect its interests. Similarly, because it knew that Mr. Guardiola, who had allegedly been representing Texas Mutual’s interests in the case, was seeking to withdraw as counsel, Texas Mutual could have taken steps to protect its interests on or before the date of trial. These acts would seem to be indicated to a person of reasonable sensibilities under similar circumstances. Moreover, Texas Mutual has not shown that either it or Medrano failed to appear at trial due to accident or mistake.

We find that evidence of a substantive and probative character exists to support the trial court’s denial of Texas Mutual’s motion to reinstate the case. In re Barber, 982 S.W.2d at 366. For the foregoing reasons, and in light of our discussion concerning the second issue, we find that the trial court’s denial of Texas Mutual’s motion to reinstate was not erroneous and did not constitute an abuse of discretion. Downer, 701 S.W.2d at 241; Butter, 806 S.W.2d at 226. Because the trial court did not abuse its discretion, we overrule Issue Three.

Plea for Intervention

In its fourth issue, Texas Mutual complains that the trial court improperly struck its plea in intervention because the intervention was necessary to protect its interests and would not cause either unnecessary delay or prejudice to the existing parties.

While there is no deadline in the Rules of Civil Procedure for filing a motion to intervene, generally, one cannot intervene after final judgment. Ledbetter, 251 S.W.3d at 36. However, where a sub-rogee’s interest has been adequately represented and then suddenly abandoned by another, the subrogee can intervene after judgment or on appeal if there is neither unnecessary delay nor prejudice to the existing parties. Ledbetter, 251 S.W.3d at 36. Rule 60 also provides that an intervention is “subject to being stricken out by the court for sufficient cause on the motion of any party.” Tex.R. Civ. P. 60; In re Union Carbide Corp., 273 S.W.3d 152, 156 (Tex.2008); Zeifman v. Sheryl Diane Michels, 229 S.W.3d 460, 464 (Tex.App-Austin 2007, no pet), citing Highlands Ins. Co. v. Lumbermen’s Mut. Cas. Co., 794 S.W.2d 600, 601-02 (Tex.App.-Austin 1990, no pet.).

The first question to be resolved in determining if the trial court abused its discretion is whether Texas Mutual had a right to intervene in the action. Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex.1982). The intervenor bears the burden to show a justiciable interest, legal or equitable, in the lawsuit. Id. The ultimate determination of whether an intervention should be struck, even where a justiciable interest is shown, has long been held to be vested in the sound discretion of the trial court. Mendez, 626 S.W.2d at 499 (“It is settled law that a motion to strike an intervention is addressed to the sound discretion of the trial court.”); Law Offices of Windle Turley, 109 S.W.3d at 70; McCord v. Watts, 777 S.W.2d 809, 812 (Tex.App.-Austin 1989, no pet.).

We review a trial court’s decision on a motion to strike an intervention for abuse of discretion. See In re Lumbermans Mut. Cas. Co., 184 S.W.3d 718, 722 (Tex.2006) citing Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.1990). An abuse of discretion denotes “act[ing] without reference to any guiding rules or principles; in other words ... the act was arbitrary or unreasonable.” Wofford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). That a trial court may decide a matter within its discretion in a different manner than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion occurred. Downer, 701 S.W.2d at 241-42.

Texas Mutual’s self-proclaimed right of subrogation is minimally supported by evidence in the record, namely, Mr. Guerrero’s affidavit and the letters affixed thereto. Texas Mutual promotes its argument that the plea for intervention should have been granted by seeking to analogize the facts in the Ledbetter case with the facts in this case. Ledbetter, 251 S.W.3d at 36. In Ledbetter, Texas Mutual, our Appellant in this appeal, was also seeking subrogation and on the same day that the trial court was to consider a settlement agreement that had been submitted for the trial court’s approval, appeared and sought to intervene. Ledbetter, 251 S.W.3d at 34, 37. There, the trial court determined that there would be no unnecessary delay or prejudice by allowing the intervention. Ledbetter, 251 S.W.3d at 36.

The facts in this case support a different outcome than that in Ledbetter. One week before trial, Texas Mutual received notice that Mr. Guardiola was seeking a continuance in the case and was also seeking to withdraw not only as counsel for Medrano but, allegedly, for Texas Mutual. Texas Mutual had a right to intervene and appear but, despite the risk that the motion for continuance would be denied, failed to do either. Instead, Texas Mutual relied on its belief that the continuance would be granted and failed to take any steps to intervene or otherwise protect its interests in the week before trial when its right to recovery remained viable. On the day of trial, Texas Mutual did not appear or present evidence in an attempt to protect its interests in the event the motion for continuance was denied. Nor did Mr. Guardi-ola make any argument regarding Texas Mutual’s interests. The trial court heard evidence of delay and prejudice from Oli-vas, denied the motion to continue, and granted the dismissal, which effectively terminated Texas Mutual’s right to recovery.

Unlike Ledbetter, here Texas Mutual did not file its plea in intervention for more than three weeks after the case was dismissed, after its right to recovery had expired. See Ledbetter, 251 S.W.3d at 34, 36. The trial court conducted a hearing where Texas Mutual failed to present to the trial court a legitimate explanation for its delay in seeking intervention. Texas Mutual did not show that its failure to timely seek intervention was the result of accident or mistake but, rather, relied upon its belief that a continuance would be granted. On the day of trial, Mr. Guardio-la informed the trial court that he could only prove the case with Medrano present and, at the intervention hearing, Texas Mutual did not show that it could prove the case without him. No one presented evidence showing that any efforts had been made to return Medrano to the United States or showing a specific time frame within which Medrano could reasonably be expected to be returned to the United States for trial. In fact, Texas Mutual first claimed that it would go to Mexico to depose Medrano and then confessed to the trial court that it would first need to find Medrano in Mexico. The trial court also heard Olivas’s evidence regarding the unspecified delay in bringing the case to trial and the resulting prejudice he would suffer from the attempted intervention. Having considered the parties’ arguments, the trial court struck the plea in intervention.

Under these facts, the trial court’s ruling was within the zone of reasonable disagreement. In the absence of findings of fact and conclusions of law, we find the trial court properly could have found that the intervention of Texas Mutual would cause unnecessary delay in the case and unnecessary prejudice to Olivas. Point Lookout West, Inc., 742 S.W.2d at 278; Fox, 225 S.W.3d at 200 (“If the order does not specify a particular reason for the dismissal, we will affirm if any proper ground supports the dismissal.”); Thomas, 838 S.W.2d at 297. As the trial court did not abuse its discretion in striking Texas Mutual’s plea in intervention, we overrule the fourth issue.

CONCLUSION

The trial court’s judgment is affirmed.

      . Attached to Olivas’s motion and response was an invoice sent to Olivas dated March 13, 2009, from a video services company related to court-presentation set up, wait time, and equipment "take down” on March 10, 2009, at an expense of $450 as well as other trial-related costs incurred, totaling $650.

      . This opinion should not be construed to mean that a party may never intervene post-judgment or post-dismissal but, under these facts, we do not believe that the trial court erred in striking the plea in intervention.