author: ANN CRAWFORD McCLURE, Justice.

text:
    FORD MOTOR COMPANY, Appellant, v. Patricia CHACON, Individually and as Independent Administrator and Personal Representative of the Estate of Oscar Chacon, Deceased, Oscar Chacon, Sr., and Patricia Chacon as Next Friend of Valerie Chacon, Minor, Appellees.
    No. 08-08-00173-CV.
    Court of Appeals of Texas, El Paso.
    May 19, 2010.

      Craig A. Morgan, Austin, for appellant.
    G. Daniel Mena, El Paso, for appellees.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

We consider today the propriety of a fee award to a guardian ad litem in a wrongful death and survival action against Ford Motor Company and other defendants. Those claims were fully settled and are not at issue here. On appeal, Ford challenges the $17,087 awarded to G. Daniel Mena, who was appointed for the minor plaintiff. We reverse and render judgment for Mena in the amount of $10,562.50.

FACTUAL SUMMARY

This case arose from a tragic automobile accident involving a 1998 Ford Explorer that rolled over on Interstate Highway 25 when the tread on the right rear tire separated. Oscar Chacon, a passenger in the vehicle, sustained fatal injuries. His wife, Patricia Chacon, brought this wrongful death and survival action against Ford Motor Company, Pirelli Tire Corporation, and Darrel Brown. She sued individually, on behalf of her husband’s estate, and on behalf of their minor daughter, Valerie Chacon. The lawsuit was assigned to the 120th District Court. Plaintiffs alleged products liability claims against Ford and Pirelli Tire. They also alleged that the owner of the vehicle was liable because he had negligently entrusted it to a “reckless driver” who was operating it at the time of the accident. The decedent’s father, Oscar Chacon, Sr., later joined the lawsuit as an additional plaintiff.

After the case had been on file almost a year, Plaintiffs informed the court that they had reached a “tentative settlement” with Cooper Tire, against whom they were then asserting their claims for the defective tire. In connection with that settlement, Plaintiffs requested the appointment of a guardian ad litem for Valerie Chacon. The trial court promptly signed an order appointing Mena to that role. The friendly suit hearing, severance, and judgment resolving those claims occurred in October 2006. At that time, Mena was awarded a fee of $11,000 for serving as guardian ad litem in.connection with the Cooper settlement.

At the friendly suit hearing in the Cooper litigation, Ford tendered a settlement offer that mirrored the terms of the Cooper settlement. According to Mena, Mrs. Chacon was not satisfied with the offer and from that moment in the Ford litigation, her interests conflicted with those of her daughter. The attorneys met in chambers with Judge Luis Aguilar, the then-presiding judge of the 120th District Court. In a “highly volatile” and emotional encounter, Judge Aguilar advised Mrs. Chacon that she was foolish not to take the offer and that her decision was not in Valerie’s best interest. The case was set for trial a few weeks later in November 2006, but it was continued at Ford’s request. Having lost his re-election bid, Judge Aguilar left the bench at the end of December 2006. Because of concerns that the case would not proceed to trial for at least a year, the Ford litigation was transferred from the 120th District Court to County Court at Law No. 6, Judge M. Sue Kurita presiding.

In September 2007 — ten days before the final trial setting — Judge Kurita denied Ford’s motion for continuance and ordered mediation with regard to the Plaintiffs’ claims against Ford and Darrell Brown. That mediation was successful, and the parties reached a settlement. Again acting as guardian ad litem for Valerie, Mena submitted an ad litem report recommending the settlement. He attached a document entitled “Billable Hours Mena Ad Litem-Chacon v. Ford.” This document did not indicate an hourly rate or the total amount Mena sought in attorney’s fees. But it listed time entries totaling 87.25 hours, with additional time which would be incurred at attending the friendly suit hearing and in handling the Order of Investment. The chronology of these time entries began in August 2006. Ford asked for an evidentiary hearing.

On the morning of the hearing, Mena filed a verified Report of Hours that presented time entries totaling 80.75 hours for which he sought compensation. The trial court awarded Mena fees of $17,087. This appeal follows.

GUARDIAN AD LITEM FEES

Ford brings four issues for review, complaining that the trial court abused its discretion by awarding excessive guardian ad litem fees. We address each point in turn.

Standard of Review

A guardian ad litem must be appointed for a minor party when a conflict of interest exists between the child and the child’s guardian or next friend. Tex. R.Civ.P. 173.2(a); Brownsville-Valley Reg. Med. Ctr. v. Gamez, 894 S.W.2d 753, 755 (Tex.1995). However, the conflict need not be actual; potential for conflict during trial or settlement negotiations also authorizes the appointment of a guardian ad litem. Borden, Inc. v. Martinez, 19 S.W.3d 469, 472 (Tex.App.-San Antonio 2000, no pet.); Clark v. McFerrin, 760 S.W.2d 822, 828 (Tex.App.-Corpus Christi 1988, writ denied). Once appointed, the ad litem acts as both an officer and advisor to the court. Tex.R.Civ.P. 173.4(a). When a settlement of the child’s claim is proposed, the guardian ad litem has “the limited duty to determine and advise the court whether the settlement is in the party’s best interest.” Tex.R.Civ.P. 173.4(c). As the personal representative of the minor, he may seek reasonable compensation for necessary services performed. TexR.CivP. 173.6(a). “A reasonable hourly rate multiplied by the number of hours spent performing necessary services within the guardian ad litem’s role yields a reasonable fee.” Land Rover U.K., Ltd. v. Hinojosa, 210 S.W.3d 604, 608 (Tex.2006)(per curiam). Because the guardian ad litem has a limited role, not all litigation services are necessary or required. Id. at 607 (guardian ad litem may not recover fees for services that duplicate work performed by plaintiffs attorney); Brownsville-Valley Reg. Med. Ctr., 894 S.W.2d at 756-57 (guardian ad litem may not recover fees for services that duplicate duties imposed on the trustee and the minor’s parents). “If a guardian ad litem performs work beyond the scope of this role, such work is non-eompensable.” Land Rover U.K., Ltd., 210 S.W.3d at 607. We review a fee award under an abuse of discretion standard based on the sufficiency of the evidence that the fee was reasonable and necessary. Id.; Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999)(per curiam). A trial court abuses its discretion in “ordering payment of a fee in excess of the product of the hours spent and the hourly fee supported by the testimony using the Andersen factors.” Land Rover U.K., Ltd, 210 S.W.3d at 608, referencing Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997).

The amount of the fee is left to the trial court’s discretion and will not be overturned absent evidence that the trial court abused its discretion. Garcia, 988 S.W.2d at 222; Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 794 (Tex. 1987). To determine a reasonable fee, a trial court applies the factors generally used to determine the reasonableness of attorney’s fees. Garcia, 988 S.W.2d at 222. These factors include:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
(2) the likelihood ... that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

Id., citing Arthur Andersen v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997), quoting Tex. DISCIPLINARY R. Prof’l ConduCt 1.04, reprinted in Tex. Gov’t Code, tit. 2, subtit. G app. A (Tex. State Bar R. art. X, § 9). To apply these factors, a reviewing court “may draw upon the common knowledge of the justices and their experience as lawyers and judges to view the matter in light of the evidence and the amount in controversy.” Borden, 19 S.W.3d at 471; see generally Garcia, 988 S.W.2d at 219; Brownsville-Valley Reg. Med. Ctr., 894 S.W.2d at 753.

The Cooper Tire Settlement

In Point of Error One, Ford complains that Mena’s time records included 38.00 hours attributable to his services in connection with the Cooper Tire settlement. Ford maintains that Mena was compensated for those services in 2006 when he recovered an $11,000 fee award. During the hearing, Mena addressed the time entries involving both Cooper Tire and Ford.

Q. All this time up until October 10th, 2006, for example, you had the hearing on the judgment and severance order signed on October 10th, you have that exact same time for Cooper Tire, don’t you?

A. I was also assuring myself that Ford Motor Company was not let out of this case, yes, sir. The answer is yes.

Q. Everything that you have got from August until October 10th, 2006, you may be billing to Ford but you did the same work for Cooper Tire?

A. I did some of the work simultaneously, sir, for the Defendant Ford, Defendant Brown, and Defendant Cooper.

Q. I want you to go from all your billings from August 21st of 2006 to October 20th 2006, and tell me which were ones you never billed Cooper Tire for?

A. I couldn’t tell you. I don’t have that file. I told you.

Judge Kurita explained that she would award Mena fees for all 80.25 hours submitted based on an hourly rate of $350 per hour, except for two small entries totaling .50 hours. To solve the “double billing” problem, the court then reduced the fee by $11,000 to account for what Mena had already been paid:

THE COURT: I’m going to go ahead and award $350.00 for 80.25 hours. We are deleting the point — the time on the conference regarding ad litem fees, and we are also giving credit for the $11,000 that was paid by Cooper Tire already so that there is not an issue of double billing. And the amount that I have left is $17,087.00.

It is thus clear that the trial court did not intend to award fees for the work Mena performed on the Cooper Tire settlement. Instead, the court gave Ford a credit of $11,000. We overrule Point of Error One.

We recognize, however, that because the trial court awarded fees at the rate of $350 per hour, the $11,000 credit is insufficient. We readdress this portion of the argument in connection with our analysis of Point of Error Four.

Time Records for Period Between Settlement with Cooper Tire and Ford Motor Mediation

In Points of Errors Two and Three, Ford challenges the hours that Mena billed during the year between the settlement with Cooper Tire and the mediation with Ford. Ford emphasizes that there was no need for a guardian ad litem during that time because there was no pending settlement offer.

Services Rendered

At the evidentiary hearing, Mena’s Report of Hours was admitted into evidence:

10-10-06 Motion to Quash and Review Release .50

10-10-06 Motion for Summary Judgment 1.0

10-16-06 Motion to Quash .50

10-17-06 Review Kennedy correspondence to Ms. Chacon .50

10-18-06 Review Kennedy correspondence to Chambless .25

10-18-06 Review court Notice of Setting .25

10-19-06 Motion Summary Judgment 1.5

10-20-06 Review Jeff Ray authorization settlement .25

10-23-06 Review compel motion Dr. Juan Herrera .25

10-25-06 Final pretrial 1.0

10-30-06 Motion hearing compel 1.0

11-01-06 Motion to strike witness 1.0

11-01-06 Discussion with Judge on motion to transfer 1.0

11-01-06 Discussion with Judge Kurita for acceptance of transfer .50

12-05-06 Review Kurita order on trial setting .25

12-11-06 Review Prichard correspondence on pre-trial .25

12-13-06 Review Notice of hearing status .25

1-08-07 Status hearing 2.0

1-10-07 Review court order pre-trial order and charge .50

1-22-07 Review and approval discovery control plan .50

02-26-07 Review Prichard proposed Rule 11 .25

02-28-07 Pro Hac Vice Order reviewed .25

03-08-07 Final pre-trial 1.5

05-23-07 Review Jeff Ray correspondence on strike designated Witness .25

06-01-07 Review Prichard Notice of Deposition dates .25

06-01-07 Review Ford Motion to Compel .75

06-09-07 Review Ford Reply to Response to Compel .50

06-12-07 Motion to Compel 1.0

06-14-07 Review Correspondence Prichard to Midlo .25

06-15-07 Hearing on Independent Medical evaluation 1.0

06-19-07 Review Correspondence Ford expert deposition .25

06-26-07 Review Jeff Ray correspondence to strike Shapley .25

06-28-07 Motion to strike witness 1.0

07-13-07 Review Prichard correspondence Rule 11 .50

07-23-07 Review Karen Gold report 1.5

07-23-07 Review correspondence Prichard paralegal on Lee Deposition ' .25

07-27-07 Review Notice of appearance additional counsel .50

08-01-07 Review Chambless correspondence .25

08-23-07 Final pre-trial 2.0

08-31-07 Review emergency motion for continuance 1.5

09-04-07 Review correspondence .25

09-13-07 Review Ford Motor Motion to Strike designated and compel trial deposition and summary judgment 2.0 29.50

The Rules

Rule 173.4 of the Texas Rules of Civil Procedure outlines the role of a guardian ad litem:

(a) Court Officer and Advisor. A guardian ad litem acts as an officer and advisor to the court.
(b) Determination of Adverse Interest. A guardian ad litem must determine and advise the court whether a party’s next friend or guardian has an interest adverse to the party.
(c) When Settlement Proposed,. When an offer has been made to settle the claim of a party represented by a next friend or guardian, a guardian ad litem has the limited duty to determine and advise the court whether the settlement is in the party’s best interest.
(d) Participation in Litigation Limited. A guardian ad litem:
(1) may participate in mediation or a similar proceeding to attempt to reach a settlement;
(2) must participate in any proceeding before the court whose purpose is to determine whether a party’s next friend or guardian has an interest adverse to the party, or whether a settlement of the party’s claim is in the party’s best interest;
(3) must not participate in discovery, trial, or any other part of the litigation unless:
(A) further participation is necessary to protect the party’s interest that is adverse to the next friend’s •or guardian’s, and
(B) the participation is directed by the court in a written order stating sufficient reasons.

Tex.R.Civ.P. 173.4. The comments to Rule 173 also address the ad litem’s responsibility:

3. The rule contemplates that a guardian ad litem will be appointed when a party’s next friend or guardian appears to have an interest adverse to the party because of the division of settlement proceeds. In those situations, the responsibility of the guardian ad litem as prescribed by the rule is very limited, and no reason exists for the guardian ad litem to participate in the conduct of the litigation in any other way or to review the discovery or the litigation file except to the limited extent that it may bear on the division of settlement proceeds. See Jocson v. Crabb, 133 S.W.3d 268 (Tex. 2004)(per curiam). A guardian ad litem may, of course, choose to review the file or attend proceedings when it is unnecessary, but the guardian ad litem may not be compensated for unnecessary expenses or services.
4. Only in extraordinary circumstances does the rule contemplate that a guardian ad litem will have a broader role. Even then, the role is limited to determining whether a party’s next friend or guardian has an interest adverse to the party that should be considered by the court under Rule 44. In no event may a guardian ad litem supervise or supplant the next friend or undertake to represent the party while serving as guardian ad litem.

Tex.R.Civ.P. 173.7 emt. 3, 4.

Pertinent Authority

We understand the historical controversy over hefty ad litem fees. For example, in Land Rover U.K., Ltd., guardian ad litem Juan Hinojosa was awarded $100,000 for the work he performed in his appointed capacity. 210 S.W.3d 604, 608 (Tex.2006)(per curiam). Hinojosa testified that he talked to someone from the plaintiffs’ attorney’s office almost every day “to discuss strategy and prepare for trial.” Specifically, he helped engineer a trial strategy to address the “empty chair” of the settling defendant. Id. The court concluded that Hinojosa gave extensive advice to the plaintiffs’ attorney that was beyond the formal role of a guardian ad litem. Id. at 609. This included daily consultations about trial strategy. Id. The court noted that even though the services may indeed have benefitted the minor, they were within the duties of the attorney representing the minor in the litigation and not additional fees to be assigned as costs payable to a guardian ad litem. Id., citing Brownsville-Valley Reg. Med. Ctr., 894 S.W.2d at 756-57 (holding the guardian ad litem may not recover fees for post-judgment services because they were not necessary to representing the minor and they duplicated duties imposed on the trustee and the minor’s parents).

Similarly, in Magna Donnelly Corp. v. DeLeon, the appellants argued that the trial court abused its discretion by awarding the guardians ad litem compensation for tasks that were more appropriately performed by the children’s attorney. 267 S.W.3d 108, 112 (Tex.App.-San Antonio, 2008, no pet.h.). One of the ad litems, Sylvia Rodriguez, testified that she spent approximately ten hours locating and reviewing the “very, very lengthy file,” placing several calls to the plaintiffs’ attorney “to figure out what had happened,” and speaking with the other ad litems “regarding the rest of the children.” Id. Rodriguez spent two hours with her client and his mother discussing “the judgment, the motion to discover, and the effect of the release forms.” Id. Rodriguez explained these matters to the mother, even though she knew the attorney already had, because it was her job as an ad litem to make sure they understood. Id. A second ad litem, Grady Roberts, spent 12 to 15 total hours reviewing the “whole file,” including discovery, pleadings, and correspondence; talking to the plaintiffs’ attorney or his office “a number of times;” discussing the matter with the other two ad litems; and meeting with his client and her mother on one occasion for approximately one hour, at which time he warned the minor about the hazards of spending her money quickly. Id. The court concluded that the guardians ad litem took on tasks that were more appropriately performed by the children’s attorney, thereby exceeding their limited roles. Id. In its analysis, the court criticized the ad litems for spending a majority of their time obtaining and reviewing the “lengthy” case file. Id. Neither Rodriguez nor Roberts clarified exactly what was reviewed or why such an extensive review was necessary when none of the minors had pending claims for personal injuries. Id. at 113. The record did not reflect proof of particular legal services that were rendered to evaluate the propriety and fairness of the proposed settlement. Id. The court concluded that the fees were improper because the services rendered were either unnecessary or fell outside the scope of a guardian ad litem’s role. Id.

And in Youngstown Area Jewish Federation v. Dunleavy, the Dallas Court of Appeals found that the guardian ad litem, William Dunleavy, went beyond the scope of his duties. 223 S.W.3d 604, 609 (Tex.App.-Dallas 2007, no pet. h.). The record showed that Dunleavy traveled to SMU law library to conduct research regarding Ohio law and reviewed case law provided by the minor’s attorney. Id. He also billed for obtaining the minor’s medical records. Id. The court recognized that an ad litem’s duties include evaluating and reviewing documents reflecting the damages suffered by the minor for purposes of adequate settlement negotiations; however, the billing entries included time for telephone calls and letters to obtain the records without any explanation of why such efforts were necessary. Id. The court found these activities to be non-compensable because they were more appropriate for the minor’s attorney. Id. at 610. The court remanded the case, ordering that the trial compensate Dunleavy only for the tasks necessary to protect the minor’s interest and tasks that did not duplicate the work more properly performed by the attorney. Id.

The Ad Litem Report

We cannot review the propriety of the fee award without considering the ad li-tem’s recommendation to the trial court. Mena prepared a six page report in which he noted that Valerie Chacon suffered the loss of her father on her fifteenth birthday as she was planning her quincenera. She was first evaluated by a clinical psychologist in Edinburg, Texas, who diagnosed the child as suffering from major depression with anxiety. Valerie was later evaluated by Dr. Karen Gold at Ford’s behest. Mena reported that Valerie had become much more dependent upon her mother and had attended every court hearing as well as meetings with psychologists, experts, and attorneys. She looked to her mother for guidance in assessing the value of any potential settlement. The minor was “candid in her assessments of her losses, very soft spoken, and ... still burdened with the loss of her father.” She was consoled by the presence of her father’s ashes in the living room and felt his presence in her home every day. While she denied adjustment problems, she recognized that her prolonged grief had created some social withdrawal.

Mena analyzed the settlement offer and weighed the risks of proceeding to trial. He ultimately recommended that the trial court approve the settlement. Because the settlement required a confidentiality agreement, the amount of recovery is not disclosed in the record.

The Trial Court’s Knowledge

Because we must review the order for an abuse of discretion, we think Judge Kurita’s own knowledge of the conflicts of interest warrant mention. Because her procedural recitation is precise and articulate, we quote it at length.

THE COURT: [Counsel] I think you are in a very bad disadvantage because you came into the case at the friendly suit and did not follow this case from the inception. And I supposed [sic] that I am probably in the same position you were but not as bad as you were since I took this case from the 120th. From the moment that I took this case, it has been very contentious. It was very bad because the plaintiff at sometimes indicated that she had no confidence not only in her own counsel, but in the entire system. And it was represented at some of the pre-trial hearings and the status conferences that she didn’t care if she got zero, that her position was that she was going to make the individuals that she thought were responsible for her husband’s death, at least — well, she wanted justice for that. And she didn’t care if she was zeroed out, but she wanted her day in court. That certainly was a terrible position for the minor when there was an offer on the table. Because of the Cooper Tire settlement, financially, the mother and the child had some financial security. And that they were going to roll the dice and it came up with zero, the mother really didn’t care. But she wanted to make sure, or at least she wanted to make sure, that she had her day in court, and her husband had some justice, and she was out for blood. Not necessarily money, but she wanted to hold Ford’s feet to the fire. I know that there were attempts to settle and mediate this case on numerous occasions. And every time they fell short usually [with] the plaintiff leaving the mediation, or at least indicating that she had no confidence in the system, no confidence in the courts, no confidence in the attorneys. And after her conversations with the judge of the 120th, who told her that she was a fool not to settle, and that she was hurting the child, she had lost confidence in the judiciary as well. It wasn’t until last summer with the efforts of Mr. Mena, mainly, that Ms. Chacon was, I suppose her fears were soothed. She became less emotional and more rational as to what was going to be in the best interests of the child. The attendance by the ad litem at these hearings, I think, was extremely important because it was critical as to what the outcome was eventually going to be in the case.

Analysis

The crux of the issue is when the conflict of interest arose between Mrs. Chacon and Valerie. Ford contends there was no conflict until there was a settlement offer on the table and that the settlement did not arise until mediation on September 20, 2007. Yet the record clearly reveals uncontradicted testimony that Ford tendered an offer on the date of the friendly suit in the Cooper Tire litigation. We also have a vivid description of how Mrs. Chacon was confronted by Judge Aguilar that very day and told that she was a fool if she did not accept the offer. She did not follow his advice. Instead she stormed out of the conference and took a position that directly conflicted with her daughter’s interest. She wanted blood, not money, even if that meant that Valerie received nothing from Ford. Ford does not mention this first offer, or the volatile emotional cascade that followed. This is the most glaring flaw in Ford’s argument.

A second flaw relates to Dr. Karen Gold’s examination of Valerie. Mena noted in his report that Dr. Gold evaluated the child at Ford’s request. Mena’s time records reveal that he reviewed Dr. Gold’s written report on July 23, 2007 and billed 1.5 hours to the file. Ford does not want to pay for these services because at the time Mena received the report, there was purportedly no settlement offer on the table and no potential conflict of interest. Even if we were to discount the first offer and Mrs. Chacon’s reaction to it, we are still left to ponder three questions. Should Mena have put aside a psychological evaluation of his own client on the day he received it? If he had waited until the mediation to read it, would Ford be willing to pay for it? How could he possibly recommend any settlement until he knew the extent of the injuries — psychological or physical — that Valerie had suffered? We cannot accept the line Ford wishes to draw in the sand.

Of the disputed 42 time entries, 28 relate to reading pleadings and correspondence that were routed to his desk. Although Ford does not suggest that he shouldn’t read his mail, it does argue that fees for reading these documents are not compensable because there was no pending offer to settle. Of course, Mena would have no knowledge of what was contained in the envelopes until he opened them. Nor would he be able to ascertain the significance of the contents to the representation of Valerie until he read them. Given the conflict between Mrs. Chacon’s scorched earth strategy and Valerie’s interests, Mena quite properly monitored the status hearings. Over time, Mrs. Cha-con did come to trust Mena and it was his concerted effort to reassure her that led to a successful conclusion of the litigation.

The Plaintiffs’ legal team apparently had difficulty keeping and controlling their client. Yet Mena did not jump in to take over as counsel, nor do his time records reveal daily consultations about trial strategy. See Land Rover U.K., Ltd., 210 S.W.3d at 608. For each entry, Mena specified exactly what he was reviewing. Magna Donnelly Corp., 267 S.W.3d at 112. There was no affirmative testimony of du-plicative work already performed by the attorney. Id. Nor did Mena bill for his own legal research. Youngstown Area Jewish Federation, 228 S.W.3d at 609. He did not conduct his own discovery. But he properly monitored the hostile relationships, particularly since Valerie was becoming more and more dependent on her mother for settlement advice while Mrs. Chacon grew more and more willing to roll the dice.

Two time entries reflect conversations with Judge Kurita. The final twelve entries relate to attendance at court hearings. At the evidentiary hearing, Judge Kurita explained that she encourages attendance of the guardian ad litem at proceedings that impact the minor, including attendance at pretrial or scheduling conferences. She then distinguished participation from attendance:

THE COURT: Participation and attendance are two different things. I think it is important for an ad litem if he is going to be looking out for what is in the best interest of the child to be present and to be aware of what’s going on. Participating, asking questions, and doing that, that’s certainly another thing.

Bearing in mind that we apply an abuse of discretion standard of review, we conclude that the services rendered fell within the scope of the guardian ad litem’s duties and are compensable. We overrule Points of Error Two and Three.

Hourly Rate

In Point of Error Four, Ford complains that the trial court compensated Mena at an hourly rate greatly in excess of what the evidence will support. Here, the trial court awarded fees at the rate of $350 per hour. At the evidentiary hearing, Mena testified that a reasonable fee for his services would be between $200 to $250 per hour. Ford’s counsel testified that a reasonable hourly rate would be between $150 to $200 per hour.

Time Incurred After Ford’s Final Settlement Offer

Mena’s Report of Hours contains the following time entries:

09-13-07 Correspondence lawyers on mediation .50

09-16-07 Confer client 2.0

09-20-07 Mediation 5.5

09-20-07 Conference with court on settlement .25

09-21-07 Conference with court on mediation agreement 1.0

10-04-07 Conference on Friendly suit .50

10-06-07 Phone Ray-Ad Litem fees .25

10-09-07 Phone Ray-Ad Litem fees .25

10-10-09 Review Ray correspondence .25

10-11-07 Review settlement .25

10-11-07 Report to Court 1.5

10-12-07 Friendly suit pending

10-12-07 Order of Investment pending

Ford does not challenge the compensability of the services rendered.

The Trial Court’s Calculations

THE COURT: Bear with me for just a moment. I’m going to go ahead and award $350.00 for 80.25 hours. We are deleting the point — the time on the conference regarding ad litem fees, and we are also giving credit for the $11,000 that was paid by Cooper Tire already so that there is not an issue of double billing. And the amount that I have left is $17,087.00.

Because we find nothing in the record to support the $350 hourly rate, we sustain Point of Error Four. This not only affects the fees charged to Ford for compensable services, it impacts the double billing credit. Because the trial court awarded fees at the rate of $350 per hour, the 38 hours billed to Cooper Tire would total $13,300. Thus, Ford has been charged $2,300 for work that was originally billed to Cooper Tire.

Reformation of Judgment

When reversing a trial court’s judgment, we must render the judgment that the trial court should have rendered unless a remand is necessary for further proceedings or in the interest of justice. Tex. R.App.P. 43.3. An additional evidentiary hearing is not required. Judge Kurita intended to compensate Mena for 80.25 billable hours. Ford is entitled to a credit for the 38 hours attributable to the Cooper Tire Settlement, leaving 42.25 compensa-ble hours. Ford concedes that the evidence supports an hourly rate of $250. We thus render judgment for Mena in the amount of $10,562.50.

      . Because this case was filed in August 2005, it is governed by the current amendments to Texas Rule of Civil Procedure 173, which became effective on February 1, 2005. See Tex. R. Civ P. 173.

      . Our arithmetic varies from Ford’s by one hour.


source: Caselaw Access Project

author: LESLIE B. YATES, Justice.

license: Public Domain

text:
    Christopher ROBERTS, Appellant, v. The STATE of Texas, Appellee.
    No. 14-08-00596-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 10, 2010.
    Rehearing Overruled Aug. 5, 2010.
    Discretionary Review Refused Dec. 8, 2010.

      Stanley L. Schwieger, Waco, for appellant.
    Matthew McGregor Boyle, Fairfield, for the State.
    Panel consists of Justices YATES, SEYMORE, and BROWN.
   OPINION

LESLIE B. YATES, Justice.

Appellant Christopher Roberts was convicted of possession of a controlled substance and sentenced to fifty years’ imprisonment. In four issues, appellant contends that the evidence is legally and factually insufficient to support his conviction, the trial court’s punishment charge contained error, and the State failed to provide him with adequate notice of an enhancement allegation. We affirm.

I. Factual and Procedural Background

Shortly after midnight on June 27, 2005, appellant and two acquaintances — Christopher Sheppard and Travoy Hollie — left a club in a vehicle driven by appellant and registered to appellant’s wife. Officer Wade Harrison of the Teague Police Department stopped appellant’s vehicle after appellant failed to use a turn signal while turning at an intersection. During the traffic stop, Officer Harrison obtained appellant’s consent to search the vehicle. Officer Harrison discovered a clear plastic bag containing an off-white powder substance in one of the pockets of a jacket lying on the back seat. A field test of the substance performed by Officer Harrison indicated a positive result for the presence of cocaine. None of the vehicle’s occupants claimed possession of the plastic bag. Officer Harrison informed the occupants he would have to arrest each of them if no one claimed possession. A few minutes later, Officer Harrison asked appellant if the drugs belonged to him and appellant responded, “Yeah I’ll take the charge.” Following this statement, Officer Harrison arrested appellant. Officer Corey House assisted Officer Harrison during the stop of appellant’s vehicle. Officer House observed appellant’s vehicle while it was parked outside the club prior to the traffic stop. Officer House noticed a steady stream of foot traffic to and from the vehicle’s driver’s side door. Based on his knowledge and experience, Officer House believed appellant was dealing drugs from the vehicle. Following appellant’s arrest, the substance contained in the plastic bag was sent to the Texas Department of Public Safety Crime Lab, where forensic testing showed it to be 21.26 grams of cocaine.

Appellant was subsequently indicted with the offense of possession with intent to deliver cocaine in the amount of four grams or more but less than two-hundred grams. See Tex. Health & Safety Code ANN. §§ 481.102(3)(D), 481.112(a), (d) (Vernon Supp.2009). Appellant pleaded “not guilty” to the charged offense, and the case proceeded to trial. At the conclusion of the guilt/innocence phase of trial, the trial court included an instruction in the jury charge for the lesser-included offense of possession of cocaine in an amount more than four but less than two-hundred grams in addition to an instruction regarding the charged offense of possession with intent to deliver. See id. §§ 481.112, 481.115(a), (d). Appellant was convicted of the lesser-included possession offense. The jury was unable to reach a unanimous punishment verdict, however, and the trial court declared a mistrial. Approximately one month later, a second jury was empanelled and assessed appellant’s punishment at fifty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed.

II. Analysis

1. Legal Sufficiency of the Evidence

In his first issue, appellant contends that the evidence is legally insufficient to show that he possessed the 21.26 grams of cocaine recovered by Officer Harrison. When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App.2005). We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). In our review, we afford great deference to the fact-finder’s responsibility to fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences regarding basic to ultimate facts. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996). We presume the fact-finder resolved any evi-dentiary conflicts in favor of the prosecution and defer to that resolution. Id. at 133 n. 13.

A person commits an offense if he knowingly or intentionally possesses between four and two-hundred grams of cocaine, including adulterants or dilutants. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(a), (d). To prove possession, the State must show the accused (1) exercised control, management, or care over the contraband and (2) knew the substance possessed was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App.2006); Cuong Quoc Ly v. State, 273 S.W.3d 778, 781 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd). Possession may be proved through either direct or circumstantial evidence. Poindexter v. State, 153 S.W.3d 402, 405-406 (Tex.Crim.App.2005); see also Rice v. State, 195 S.W.3d 876, 881 (Tex.App.-Dallas 2006, pet. ref'd) (stating jury could infer knowing or intentional possession of contraband).

When, as here, the accused is not in exclusive possession or control of the place where contraband is discovered, the State must show additional facts and circumstances linking the accused to the contraband to show the accused’s knowledge of or control over the contraband. Poindexter, 158 S.W.3d at 406; Grisso v. State, 264 S.W.3d 351, 355 (Tex.App.-Waco 2008, no pet.). We consider the totality of the circumstances when determining whether the accused is linked to the recovered contraband. See Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). The accused’s connection with the contraband must be “more than just fortuitous.” Poindexter, 153 S.W.3d at 405-06. The accused’s presence at the scene where contraband is found is insufficient, by itself, to establish possession. Evans, 202 S.W.3d at 162. However, presence or proximity combined with other direct or circumstantial evidence (e.g., “links”) may be sufficient to establish the elements of possession beyond a reasonable doubt. Id. Additionally, when narcotics are secreted, the State must address whether the accused knew of the existence of the secret place and its contents. Medina v. State, 242 S.W.3d 573, 576 (Tex.App.-Waco 2007, no pet.).

Reviewing courts have developed several factors showing a possible link between the accused and contraband, including: (1) the accused’s presence when the search was conducted, (2) whether the contraband was in plain view, (3) the accused’s proximity to and the accessibility of the contraband, (4) whether the accused was under the influence of narcotics when arrested, (5) whether the accused possessed other contraband or narcotics when arrested, (6) whether the accused made incriminating statements when arrested, (7) whether the accused attempted to flee, (8) whether the accused made furtive gestures, (9) whether there was an odor of contraband, (10) whether other contraband or drug paraphernalia were present, (11) whether the accused owned or had the right to possess the place where the contraband was found, (12) whether the contraband was found in an enclosed place, (13) whether the accused was found with a large amount of cash, and (14) whether the conduct of the accused indicated a consciousness of guilt. See Cuong Quoc Ly, 273 S.W.3d at 781-82; Grisso, 264 S.W.3d at 355. The number of linking factors present is not as important as the “logical force” they create to prove the accused knowingly or intentionally possessed the controlled substance. Evans, 202 S.W.3d at 162; see also Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (recognizing proof of links between the accused and contraband “generates a reasonable inference that the accused knew of the contraband’s existence and exercised control over it”).

There are several factors linking appellant to the cocaine recovered in this case. As the driver of the vehicle at the time Officer Harrison performed the traffic stop, appellant was in sole control of the vehicle. The vehicle was registered in appellant’s wife’s name, and appellant’s wife testified that she and appellant owned the vehicle together. Appellant thus had ownership of the vehicle and had the right to possess the place where the contraband was found. Appellant consented to the search of the vehicle, and the 21.26 grams of cocaine were found in a jacket belonging to appellant’s wife. During the course of the traffic stop, appellant told Officer Harrison ‘Yeah, I’ll take the charge” when asked whether the drugs belonged to him. The jury was shown a video recording of this exchange taken from Officer Harrison’s dashboard camera, and Officer Harrison identified appellant as the individual in the video claiming possession of the cocaine. At trial, appellant admitted making this incriminating statement to Officer Harrison. Appellant was also carrying a large amount of cash at the time of his arrest, and Officer House testified that he believed appellant was involved in drug transactions due to the steady stream of foot traffic to and from appellant’s vehicle door while the vehicle was in the club’s parking lot. We conclude this evidence establishes sufficient facts and circumstances linking appellant to the cocaine, thus showing appellant’s knowledge of and control over the contraband. See Poindexter, 153 S.W.3d at 405; Grisso, 264 S.W.3d at 354. The jury could also conclude that appellant was aware of the place where the drugs were secreted and the existence of the contraband from his statements to Officer Harrison that the jacket belonged to his wife and that he claimed ownership of the cocaine. See Medina, 242 S.W.3d at 576.

After viewing the evidence in a light most favorable to the verdict, we find that a rational juror could have concluded that appellant exercised actual care, custody, control or management over the 21.26 grams of cocaine recovered by Officer Harrison. See Evans, 202 S.W.3d at 166. The State therefore met its burden of proving the essential elements of the charged offense beyond a reasonable doubt. See Tex. Health & Safety Code Ann. § 481.115(a), (d). This renders the evidence legally sufficient to support appellant’s conviction. See Salinas, 163 S.W.3d at 737. We overrule appellant’s first issue.

2. Factual Sufficiency of the Evidence

In his second issue, appellant argues that the evidence is factually insufficient to show he possessed the 21.26 grams of cocaine recovered by Officer Harrison. When evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and may set aside a verdict only if we are able to say, with some objective basis in the record, that a conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the verdict. Watson v. State, 204 S.W.3d 404, 414, 417 (Tex.Crim.App.2006). We cannot order a new trial simply because we disagree with the fact-finder’s resolution of an evidentiary conflict, and we do not intrude on the fact-finder’s role as the sole judge of the weight and credibility of witness testimony. See id. at 417; Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.1999). In our review, we discuss the evidence appellant contends is most important in undermining the fact-finder’s decision. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

Appellant points to conflicting evidence presented at trial regarding who possessed the cocaine recovered from appellant’s vehicle. Appellant and appellant’s wife testified that the cocaine did not belong to appellant. Appellant’s wife stated that there were no drugs in her jacket when appellant took the vehicle to pick up Sheppard and Hollie. When asked who he believed the drugs belonged to, appellant stated that Hollie likely put them in the jacket. Officer Harrison, however, testified that appellant was the only occupant of the vehicle who claimed ownership of the cocaine, and the jury was able to view a video recording of the traffic stop and hear appellant’s statements to Officer Harrison. Appellant also argues that Sheppard and Hollie had easier access to the cocaine than appellant. Officer Harrison agreed that appellant was as far away from the jacket as anyone in the vehicle. While either Sheppard — the vehicle’s front passenger — or Hollie — the vehicle’s rear passenger — may have been in closest proximity to the cocaine, the jury could reasonably infer that the drugs were well within appellant’s reach from the driver’s seat. See Irons v. State, No. 06-06-00192-CR, 2007 WL 1362639, at *2-4 (Tex.App.-Texarkana May 10, 2007, pet. refd) (mem. op., not designated for publication) (concluding contraband discovered under several jackets in vehicle’s back seat was accessible to appellant, the vehicle’s front passenger, and finding the logical force of the evidence linked appellant to the contraband even though the vehicle’s driver testified the contraband belonged to him and that appellant did not know the contraband was in the vehicle).

The jury bears the responsibility for resolving conflicts in the evidence and is free to accept or reject any or all of the evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 706 (Tex.Crim.App.2008); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). Based upon the verdict, the jury chose to disbelieve any testimony that appellant did not possess the drugs or know the contraband was in the vehicle. The jury was in the best position to evaluate the credibility of the witnesses, and we afford due deference to this determination. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006).

Appellant acknowledged telling Officer Harrison, “Yeah, I’ll take the charge,” when asked if the drugs were his but argues that the jury could have interpreted this statement in several ways. In addition to interpreting appellant’s response as an incriminating statement, appellant contends that the jury could have believed he only claimed ownership of the cocaine because he did not want all three of the vehicle’s occupants to be arrested. In deciding whether the evidence is sufficient to link contraband to the accused, the fact-finder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Poindexter, 153 S.W.3d at 406; Cuong Quoc Ly, 273 S.W.3d at 781. Where there are two permissible views of the evidence, the fact-finder’s conclusion cannot be clearly erroneous. Evans, 202 S.W.3d at 163. In such a situation, the fact-finder chooses which view to accept. Id. at 165. The jury was free to conclude that appellant claimed ownership of the cocaine because it was his, rather than because he was did not want his acquaintances to be arrested. See Villarreal Lopez v. State, 267 S.W.3d 85, 100-01 (Tex.App.-Corpus Christi 2008, no pet.) (observing that appellant’s statement of “Who point the finger?” to police could be interpreted as an innocent or incriminating statement and declining to reevaluate the weight the jury gave the statement in arriving at a guilty verdict).

Appellant further argues that although there are evidentiary links between appellant and the cocaine, “the links not present here are far stronger than the mere fact that [a]ppellant was driving a truck in which drugs were found.” While the absence of several links may weigh in appellant’s favor, each case must be determined on its own facts, and factors that contribute to the sufficiency of the evidence in one situation may be of little value under different facts. Roberson, 80 S.W.3d at 736. We conclude that the links established by the evidence in this case are sufficient to support a finding that appellant knowingly possessed the 21.26 grams of cocaine recovered by Officer Harrison.

After examining the entire record in a neutral light, we cannot say that the great weight and preponderance of the evidence contradicts the jury’s verdict or that appellant’s conviction is clearly wrong or manifestly unjust. The evidence is therefore factually sufficient to support appellant’s conviction. See Watson, 204 S.W.3d at 414, 417. We overrule appellant’s second issue.

3. State’s Notice of Enhancement Allegations

The State sought to use four prior convictions to enhance appellant’s punishment in this case. The indictment charging appellant included allegations that appellant had previously been convicted of three felony offenses, including:

• a June 23, 1994 conviction in cause number W-94-CR-023 in the United States District Court, Western District of Texas, for felony possession with intent to distribute cocaine (“Enhancement Allegation One”);
• a November 17, 1994 conviction in cause number 8245-A in Limestone County, Texas, for felony aggravated assault on a peace officer (“Enhancement Allegation Two”); and
• a December 8, 1994 conviction in cause number 14,026-CR in Houston County, Texas, for felony unlawfully carrying a weapon on a licensed premises (“Enhancement Allegation Three”).

Prior to trial, the State filed a notice of intent to also use, for enhancement purposes, a July 28, 1993 conviction in cause number 7889-A in Limestone County, Texas, for possession of a controlled substance (“Enhancement Allegation Four”).

Appellant asserts in his fourth issue that the State failed to provide pre-trial notice of its intent to use Enhancement Allegation Four. However, the supplemental clerk’s record provided for our review reflects that the State filed a notice of intent in the trial court on October 23, 2007, nearly six months before appellant’s trial. The State’s notice identified the offense of conviction, trial cause number, convicting court, and date of conviction. This provided appellant with sufficient information to allow appellant to find the record of former conviction and prepare for trial concerning whether appellant is the same person named in the prior judgment. See Pena v. State, 191 S.W.3d 133, 144 (Tex.Crim.App.2006). Appellant was therefore provided with adequate notice of the State’s intent to use Enhancement Allegation Four. See Villescas v. State, 189 S.W.3d 290, 295 (Tex.Crim.App.2006) (concluding notice received thirteen days prior to defendant’s punishment hearing constituted adequate notice); Hines v. State, 269 S.W.3d 209, 217 (Tex.App.-Texarkana 2008, pet. ref'd, untimely filed; pet. ref'd [2 pets.]) (finding adequate notice where motion to enhance was filed six days before trial). We overrule appellant’s fourth issue.

4. Jury Charge Error

During appellant’s second punishment trial, appellant pleaded “true” to Enhancement Allegations One, Two, and Three and “not true” to Enhancement Allegation Four. However, the punishment charge instructed the jury “to find ‘True’ the allegations of the enhancement paragraphs.” In his third issue, appellant contends that he suffered egregious harm because the punishment charge instructed the jury to find Enhancement Allegation Four “true” after he entered a plea of “not true.”

We employ a two-step process in analyzing alleged charge error. We first determine whether error exists in the charge. See Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.2003). Here, the punishment charge contains error because it instructed the jury to find each enhancement allegation “true” despite appellant’s plea of “not true” to Enhancement Allegation Four. We next review the record to determine whether there is sufficient harm to necessitate reversal. Id.

The degree of harm necessary for reversal depends upon whether error was preserved. Id. After the punishment charge was read to the jury, the trial court asked both parties if there were any objections to the charge. Defense counsel replied “No, none, Judge.” The State now contends that appellant waived any allegations of charge error by affirmatively stating there were no objections to the charge. The Court of Criminal Appeals has resolved this issue adversely to the State. An affirmative statement of no objection to the jury charge is deemed equivalent to a failure to object. Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App.2004); see also Williams v. State, 273 S.W.3d 200, 224 n. 86 (Tex.Crim.App.2008). In such situations, an appellant may raise jury charge error for the first time on appeal but may not obtain a reversal unless the error resulted in egregious harm. Bluitt, 137 S.W.3d at 53; Ortiz v. State, 144 S.W.3d 225, 231 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd).

Egregious harm is a difficult standard that must be determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002); Green v. State, 233 S.W.3d 72, 78 (Tex. App.-Houston [14th Dist.] 2007, pet. ref d). Egregious harm due to charge error exists if the error affects the very basis of the case, deprives the accused of a valuable right, or vitally affects a defensive theory. Allen v. State, 258 S.W.3d 260, 264 (Tex.Crim.App.2008). In sum, the error must have been so harmful as to effectively deny the accused a fair and impartial trial. See Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App.2008); Green, 233 S.W.3d at 78. Neither party has a burden to show harm; rather, we review the record before us and make an independent assessment as to whether the jury’s verdict was affected by the charge error. See Warner, 245 S.W.3d at 464; Swearingen v. State, 270 S.W.3d 804, 813 (Tex.App.-Austin 2008, pet. ref'd). In determining whether appellant suffered egregious harm, we consider (1) the entire jury charge, (2) the state of the evidence, including the contested issues and weight of the probative evidence, (3) arguments made by counsel, and (4) any other relevant information revealed by the record as a whole. Allen, 253 S.W.3d at 264.

a) Charge of the Court

Here, the punishment charge informed the jury that appellant had been found guilty of possession of cocaine and instructed the jury to assess appellant’s punishment at imprisonment for any term between five and ninety-nine years or life. The jury could also assess a fine up to $10,000. This is the proper range of punishment for an enhanced second-degree felony conviction. See Tex. Penal Code Ann. §§ 12.32, 12.42(b) (Vernon Supp. 2009). The charge also authorized the jury to consider all the facts shown by the evidence during the guilt/innocence phase of trial and named the jurors as the exclusive judges of the facts and credibility to give any witness testimony, but bound the jury to follow the law contained in the charge. Additionally, the charge reiterated that the State bore the burden of proof throughout all stages of trial. The charge correctly recited appellant’s pleas of “true” to Enhancement Allegations One, Two and Three. After reciting appellant’s plea of “not true” to Enhancement Allegation Four, the charge instructed the jury to find each of the enhancement allegations “true.” Absent evidence to the contrary, we presume the jury understood and followed the court’s charge and found Enhancement Allegation Four “true,” despite appellant’s plea to the contrary. See Miles v. State, 204 S.W.3d 822, 827-28 (Tex.Crim.App.2006). An erroneous jury charge, however, does not result in automatic reversal of a conviction. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994); Wood v. State, 271 S.W.3d 329, 336 (Tex.App.-San Antonio 2008, pet. ref'd). While the charge in this case was clearly erroneous, our analysis of the remaining factors leads us to conclude that appellant did not suffer egregious harm.

b) The State of the Evidence

We consider the state of the evidence at both the guilt/innocence and punishment phases of trial. See Zarco v. State, 210 S.W.3d 816, 824 (Tex.App.Houston [14th Dist.] 2006, no pet.). During both phases of trial, appellant called several witnesses to testify that he was not involved with drugs and that he did not possess the cocaine found by Officer Harrison. According to these witnesses, appellant was a church-going man who was involved in several community youth activities. The State also presented much of the same evidence during each phase of trial. Officer Harrison testified at both phases and reviewed the circumstances leading to appellant’s arrest. The State also introduced appellant’s penitentiary packets for Enhancement Allegations One, Two, and Three into evidence at both phases of trial, as well as a copy of the trial court’s “Judgment on Jury Verdict of Guilty” for Enhancement Allegation Four. During guilt/innocence, appellant admitted being convicted of the first three enhancement offenses. Appellant also acknowledged being arrested for the offense referenced in Enhancement Allegation Four, but denied being convicted. Thus, at both phases of trial, appellant contested whether he had been convicted of the underlying offense contained in Enhancement Allegation Four.

Appellant maintains he was egregiously harmed by the error in the charge because the State failed to prove that he was convicted of the offense referenced in Enhancement Allegation Four. Because appellant pleaded “not true” to Enhancement Allegation Four, the State was required to prove beyond a reasonable doubt that the alleged prior conviction existed and that appellant was linked to the conviction. See Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App.2007); Kucha v. State, 686 S.W.2d 154, 155 (Tex.Crim.App.1985). The State may satisfy its burden of proof in a number of ways, including (1) documentary proof, such as a judgment, that contains sufficient information to establish both the existence of a prior conviction and the accused’s identity as the person convicted and (2) the testimony of a witness who personally knows the accused and the fact of his prior conviction and identifies him. See Flowers, 220 S.W.3d at 921-22; Davis v. State, 268 S.W.3d 683, 716 (Tex.App.-Fort Worth 2008, pet. ref'd). Any type of evidence, documentary or testimonial, can suffice. See Flowers, 220 S.W.3d at 922.

Here, the State presented documentary evidence naming “Christopher Roberts” as the individual convicted in Limestone County on July 28, 1993, in cause number 7889-A for possession of a controlled substance, namely cocaine. Appellant denied being convicted in cause number 7889-A, but did acknowledge being arrested for the underlying offense. To show that appellant had been convicted in cause number 7889-A, the prosecutor asked Officer Mike Bell, formerly with the Mexia Police Department, the following question during the punishment phase:

[Prosecutor]: Do you have any knowledge of his [appellant’s] conviction on 7/28/93 for possession of a controlled substance, cocaine, there in Limestone County?
[Officer Bell]: I do know that he was convicted, yes, sir.

Officer Bell further testified that he knew appellant and had dealt with appellant in multiple narcotics and assault investigations while employed with the Mexia Police Department.

We conclude that these facts, when viewed together, sufficiently establish appellant’s identity as the person who committed the offense referenced in Enhancement Allegation Four. See id. at 923 (concluding the links between an accused and a prior conviction are sufficiently proved when the totality of the evidence establishes the existence of the prior conviction and the defendant’s identity as the person convicted); see also Jones v. State, 500 S.W.2d 661, 664-65 (Tex.Crim.App.1973) (finding testimony by prosecuting attorney that he knew appellant had been convicted in a previous case was sufficient to prove the prior conviction, although the prosecuting attorney was not the prosecutor in the previous case); Davis, 268 S.W.3d at 716-17 (determining a judgment naming appellant as individual previously convicted and testimony by appellant’s ex-wife that she had personal knowledge of appellant’s prior conviction was sufficient to prove the prior conviction). Because the evidence is sufficient to support a finding of “true” regarding Enhancement Allegation Four, the state of the evidence does not weigh in favor of a finding of egregious harm.

c) Jury Arguments

During closing argument at the punishment phase, the prosecutor urged the jury to sentence appellant to “serious time” and “send a message” that drugs would not be tolerated in the community. The prosecutor also reviewed appellant’s prior convictions and argued that appellant had not been truthful in pleading “not true” to Enhancement Allegation Four. This was followed by a discussion of why the punishment range available for the jury’s consideration was imprisonment for life or five to ninety-nine years. During this discussion, the prosecutor stated:

... under Texas law, if someone goes to the penitentiary and comes out, for a felony offense, and then picks up another felony, goes to the penitentiary and comes out, and then the third time, then the minimum is going to be twenty-five years in the penitentiary.
Now, in the present case, we have multiple prior felonies, but the time is also — the floor is not twenty-five. In other words, it’s not a — the sentence is not finished and then comes back out and then starts another one, comes back out. So in this one, the — the penalty range is going to be five to ninety-nine years.

Appellant’s defense counsel then made his closing statement. Counsel used the testimony of appellant’s friends and family members to argue that appellant was no longer the “same person” who had committed the enhancement offenses listed by the State. Counsel also pointed to the long amount of time that had passed since appellant’s prior convictions and the lack of evidence that appellant had “been in any trouble” since being released from prison. Finally, counsel urged the jury to assess punishment at five years’ imprisonment, the minimum punishment allowed.

The prosecutor then gave a short rebuttal argument, arguing that appellant had not changed since being released from prison and asking the jury to “bring [appellant] to justice, to give him — to have the sentence that he deserves.” The prosecutor closed with the following statements:

Now, but for a technicality, he would be having a minimum floor of twenty-five years to ninety-nine. I think that’s where your deliberations should start, at a minimum of twenty-five years, ninety-nine, and I hope that you can come up with a sentence somewhere in between those two.

Appellant asserts that these statements constitute “a blatant attempt to get the jury to disregard the applicable law.” See, e.g., Whiting v. State, 797 S.W.2d 45, 48 (Tex.Crim.App.1990) (stating it is error for the State to present a statement of the law that is contrary to that presented in the jury charge). Even if the prosecutor’s statements regarding the “floor” of appellant’s punishment constituted improper jury argument, appellant did not object at any time during closing argument or request an instruction to disregard the prosecutor’s statements. See Newby v. State, 252 S.W.3d 431, 438 (Tex.App.-Houston [14th Dist.] 2008, pet. refd) (“Almost any improper argument may be cured by an instruction to disregard.”). Additionally, the jury charge included the proper range of sentencing for the jury to consider: imprisonment for life or between five and ninety-nine years. The jury charge also instructed the jury to follow the law as provided by the charge. We presume the jury understood the jury charge and considered the entire range of punishment authorized by the charge, and there is no evidence that the jury failed to do so. See Miles, 204 S.W.3d at 827-28. For these reasons, a review of the jury arguments does not weigh in favor of a finding of egregious harm.

d) Other Relevant Factors

Appellant urges us to consider the severity of the punishment assessed in determining whether appellant suffered egregious harm due to charge error. See, e.g., Bolden v. State, 73 S.W.3d 428, 432 (Tex.App.-Houston [1st Dist.] 2002, pet. refd) (reviewing the punishment assessed while analyzing alleged charge error). Upon proof that an accused has once before been convicted of a felony, the jury is free to assess punishment at imprisonment for life or for any term between five and ninety-nine years. See Tex. Penal Code Ann. §§ 12.32(a), 12.42(b); cf. also Ex parte Chavez, 213 S.W.3d 320, 323 (Tex.Crim. App.2006) (recognizing the sentencer has virtually “unfettered” discretion to impose any punishment within the prescribed range). Here, the jury was presented with evidence that appellant had been previously convicted of four felony offenses. Appellant’s punishment — fifty years’ confinement — falls within the appropriate range of punishment, and thus does not weigh in favor of finding that appellant suffered egregious harm.

In light of the entirety of the jury charge, the state of the evidence, the arguments of counsel, and the record in general, we conclude that the trial court’s erroneous punishment charge did not affect the very basis of the case, deprive appellant of a valuable right, vitally affect a defensive theory, or effectively deny appellant a fair and impartial trial. See Allen, 253 S.W.3d at 264; Warner, 245 S.W.3d at 461. Accordingly, appellant did not suffer egregious harm due to the punishment charge’s erroneous instruction to find each of the enhancement allegations recited by the State “true” despite appellant’s plea of “not true” to Enhancement Allegation Four. We therefore overrule appellant’s third issue.

III. Conclusion

After reviewing the record, we conclude that the evidence is legally and factually sufficient to support appellant’s conviction. We also find that the trial court’s charge to the jury did not cause appellant egregious harm and that the State provided appellant with constitutionally adequate notice of its intent to use prior convictions to enhance appellant’s sentence. For these reasons, we overrule each of appellant’s issues on appeal and affirm the judgment of the trial court.

      . This appeal was transferred to this court from the Tenth Court of Appeals. In cases transferred from one court of appeals to another, the transferee court must decide the case in accordance with the precedent of the transferor court if the transferee court's decision would have been inconsistent with the precedent of the transferor court. See Tex R.App. P. 41.3.

      . While reviewing courts previously referred to the necessary connection between an accused and contraband as "affirmative links,” we now refer to these connections simply as “links.” See Evans, 202 S.W.3d at 161 n. 9.

      . Appellant had $609 in his possession when he was arrested.

      . According to appellant's testimony, Hollie was a known drug user who had spent time in drug rehabilitation programs.

      . See also, e.g., Medina, 242 S.W.3d at 576-77 (concluding evidence of contraband discovered in vehicle engine compartment and appellant's possession of scales was sufficient to link appellant to contraband although contraband was found in driver’s purse and not in any of appellant's belongings); Flores v. State, No. 07-06-0349-CR, 2007 WL 2990543, at *2-3 (Tex.App.-Amarillo Oct. 15, 2007, no pet.) (mem. op., not designated for publication) (stating jury could conclude appellant, the driver, could easily reach pocket behind passenger's seat where drugs were found).

      . Appellant points to the following links not established by the evidence: the contraband was not in plain view, appellant was not under the influence of narcotics when arrested and no other contraband was found, appellant did not attempt to flee or make furtive gestures, there was no odor of contraband or drug paraphernalia present, there were no fingerprints on the bag containing the cocaine, there were no drugs found in areas "private” to appellant, appellant’s name did not appear on any documents related to the cocaine, the cocaine was not found on the same side of the car as where appellant was sitting, and appellant was not stopped in a suspicious area or under suspicious circumstances.

      . Possession of between four and two-hundred grams of cocaine is a second-degree felony punishable by imprisonment for any term between two and twenty years. See Tex. Health & Safety Code Ann. § 481.115(d); Tex. Penal Code Ann. § 12.33(a) (Vernon Supp. 2009). If a defendant convicted of a second-degree felony is shown to have been once before convicted of a felony, the defendant "shall be punished for a first-degree felony.” Tex. Penal Code Ann. § 12.42(b) (Vernon Supp. 2009). A first-degree felony is punishable by imprisonment for life or for any term between five and ninety-nine years, as well as a fine not to exceed $10,000. Id. § 12.32 (Vernon Supp.2009).

      . The State relies on several other appellate decisions holding that an appellant failed to preserve charge error by affirmatively endorsing the charge. See McCain v. State, 995 5.W.2d 229, 242-43 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd, untimely filed); Ly v. State, 943 S.W.2d 218, 220-21 (Tex.App.Houston [1st Dist.] 1997, pet. ref'd); Reyes v. State, 934 S.W.2d 819, 820 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd); McCray v. State, 861 S.W.2d 405, 409-10 (Tex.App.-Dallas 1993, no pet.).

      . The State’s burden of proof for Enhancement Allegations One, Two, and Three was satisfied by appellant’s plea of "true” to these allegations. See Ford v. State, 243 S.W.3d 112, 117 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd).

      . Appellant contends Officer Bell’s testimony does not sufficiently link appellant to Enhancement Allegation Four because the evidence does not demonstrate that Officer Bell was present when appellant was convicted on July 28, 1993. See Flowers, 220 S.W.3d at 921-22 (noting that a defendant may be linked to a prior conviction through "testimony by a person who was present when the person was convicted of the specified crime and can identify the defendant as that person”). Testimony by a person who was not present when the accused was convicted of the prior offense may be sufficient to link the accused to the prior offense, however, so long as the person has personal knowledge of the accused and the prior conviction. See Davis, 268 S.W.3d at 716.

      . Until the close of the guilt/innocence phase, the State sought to enhance appellant's punishment under Texas Penal Code section 12.42(d), which allows for punishment by imprisonment for life or between twenty-five and ninety-nine years. See Tex. Penal Code Ann. § 12.42(d). However, the State was unable to properly prove the finality and timing of the prior convictions as required by section 12.42(d).


author: JEFFREY V. BROWN, Justice. KEM THOMPSON FROST, Justice,

text:
    Robert King CONWAY, Jr., Appellant, v. Raynaldo CASTRO, Warden II, Richard Thompson III, Asst. Warden, Jason Jeaton, Asst. Warden, Ronald Fox, Major of Correctional Officers, Nelda Sanders, Correctional Officer IV, Martina Cordell, Correctional Officer V of The Texas Department of Criminal Justice—Institutional Division, Michael Unit, Appellees.
    No. 14-08-00734-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 17, 2010.
    Rehearing Overruled Sept. 2, 2010.

      Robert King Conway, Jr., Tennessee Colony, for appellant.
    Shanna E. Molinare, David Eugene Brice, Austin, for appellees.
    Panel consists of Justices YATES, FROST, and BROWN.
   OPINION

JEFFREY V. BROWN, Justice.

Robert King Conway, an inmate in the Institutional Division of the Texas Department of Criminal Justice (“the Division”), appeals the dismissal of his pro se, in forma pauperis, action filed against the appellees who are all employees of the Division. In a single issue, Conway asserts the trial court abused its discretion in dismissing his causes of action with prejudice as frivolous for failure to meet the requirements of Chapter 14 of the Texas Civil Practice and Remedies Code. We affirm.

I

On June 26, 2003, appellee Nelda Sanders, the supervisor of the craft shop at the Division’s Michael Unit, notified Conway that his craft-shop privileges had been revoked and that he must send his craft-shop tools to someone outside the Michael Unit. Conway filed several grievances complaining about the taking of his tools, but received unsatisfactory responses. Division employees told him he must request that someone from outside the unit retrieve his tools or the tools would be destroyed. Conway asked his sister to pick up his tools; he testified that she kept the tools she could use, and disposed of the tools she did not recognize.

Conway later sued the appellees under 42 U.S.C. § 1983 alleging that their acts violated his rights to procedural due process and equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution and article I, section 19, of the Texas Constitution. He also alleged that the appellees committed conversion. Conway sued Raynaldo Castro in both his official and individual capacities, but sued the remaining appellees solely in their individual capacities. Without a hearing, the trial court determined the claims to be frivolous or malicious and dismissed Conway’s suit with prejudice pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code.

Conway appealed the trial court’s dismissal to the Twelfth Court of Appeals in Tyler. The Tyler court found that because Conway had an adequate post-deprivation remedy, he did not have a cause of action for a due-process violation under section 1983. Conway v. Castro, 12-03-00373-CV, 2004 WL 1103584, at *2 (Tex.App.-Tyler 2004, no pet.) (memo.op.). The Tyler court further held that the trial court erred in dismissing with prejudice Conway’s causes of action for conversion and equal protection without holding a hearing. Id. at *3. The court of appeals affirmed the trial court’s dismissal as to Conway’s section-1983 claim against Raynaldo Castro in his official capacity and his claim for due-process violations asserted against all the appellees in their individual capacities. The court reversed the dismissal as to Conway’s claims for equal-protection violations and conversion as to all the appellees, and remanded to the trial court for further proceedings.

On August 30, 2005, the trial court held a hearing to determine whether Conway’s conversion and equal-protection claims were frivolous or malicious pursuant to Chapter 14. At the hearing, Conway testified that he requested that his tools be stored in the craft shop when his craft-shop privileges were rescinded, but was forced to send the tools to his sister or risk having them destroyed. He further testified that he learned through inmate-to-inmate mail that the craft shops at the Robertson Unit and the Beto I Unit store tools for inmates whose privileges have been suspended rather than require the tools to be sent outside the unit. He argued that Administrative Directive 3.72 was being applied differently to him than it was to other inmates.

The State presented evidence that Conway lost his craft-shop privileges because he used another inmate’s tools to produce craft-shop items for that inmate. The State categorized this offense as a “major disciplinary action” because Conway engaged in “traffic and trade.” The State argued that none of the appellees converted Conway’s tools because he was allowed to send his tools to his sister. The State further argued that Conway’s equal-protection claim was frivolous because a mere violation of a Division policy does not constitute a constitutional violation. At the conclusion of the hearing, the trial court dismissed Conway’s conversion claim as “frivolous or malicious,” and ordered the case to “proceed under [the] equal[-]protection claim.” The court further ordered discovery to proceed on the equal-protection claim.

After the trial court’s ruling, the State argued that Conway had not met the requirement of section 14.004 of the Texas Civil Practice and Remedies Code because he failed to identify each suit previously brought as an inmate proceeding in forma pauperis. The trial court questioned Conway about a writ of habeas corpus filed in Beaumont, a case filed in Travis County, and several federal filings. Conway answered that he did not remember the filing in Beaumont, and the other filings were either listed in his unsworn declaration, or were filed after this suit was filed. The trial court decided to “leave its ruling as it has previously ruled,” and ordered that discovery proceed on the equal-protection claim.

On September 7, 2005, Conway filed a request for discovery in which he sought (1) names, numbers, and unit assignments of other inmates who had been denied craft-shop privileges, (2) the reason for removal of privileges, (3) whether the inmates’ tools were stored in the unit, or “somehow disposed of,” (4) rules concerning removal of craft-shop privileges from all units with a craft shop, and (5) his craft-shop files beginning in 1987, including all tools purchased. On September 8, 2005, Conway filed an affidavit listing inmates similarly situated, ie., those who were the subject of a major disciplinary action, but were permitted to store their tools on the unit until privileges were reinstated.

On October 4, 2005, the appellees filed a motion to dismiss on the ground that Conway’s equal-protection claim is frivolous because it lacks an arguable basis in law. See Tex. Civ. Prac. & Rem.Code Ann. § 14.003(a)(2) (Vernon 2002). The appel-lees argued that Conway’s equal-protection claim fails because he cannot establish that he was treated differently than other similarly situated inmates without a reasonable basis. Without holding another hearing, the trial court dismissed, with prejudice, both the conversion and the equal-protection claims as frivolous. From that dismissal order, Conway appealed. Pursuant to section 73.001 of the Texas Government Code, the Texas Supreme Court has transferred this cause from the Twelfth Court of Appeals to the Fourteenth Court of Appeals. Tex. Gov’t Code Ann. § 73.001 (Vernon 2005).

Chapter 14

Chapter 14 of the Civil Practice and Remedies Code applies to inmate litigation. See Tex. Civ. Prac. & Rem.Code Ann. §§ 14.001-14.014 (Vernon 2002). A court may dismiss a suit brought pursuant to that chapter before or after process is served if the court finds that the claim is frivolous or malicious. Id. at § 14.003(a)(2). In determining whether a claim is frivolous or malicious, the statute provides that the court may consider whether (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Id. at § 14.003(b). Dismissal with prejudice constitutes an adjudication on the merits and operates as if the case had been fully tried and decided. Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex.1999).

Conversion

On appeal, Conway asserts the trial court abused its discretion in dismissing appellant’s causes of action with prejudice as frivolous for failure to meet the requirements of Chapter 14. Review of a dismissal under Chapter 14 is generally controlled by the abuse-of-discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no writ). In his petition, Conway alleged that the actions of the appellees permanently deprived him of his personal property even though under Division rules he is entitled to be only temporarily deprived of his property. Conversion is the wrongful exercise of dominion and control over another’s property in denial of or inconsistent with his rights. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 210 (Tex.2002). At the hearing before the trial court, Conway stated that if he did not arrange for his tools to be delivered to someone outside the unit, the tools would be destroyed. He admitted that he asked his sister to retrieve his tools, and that she had kept some of them and disposed of some of them. Therefore, his sister, not the appellees, had dominion and control over his property. Because Conway’s conversion cause of action lacks an arguable basis in fact, the trial court did not abuse its discretion in dismissing the conversion claim.

Equal Protection

Conway also asserts an equal-protection claim in whieh he argues that inmates who are similarly situated have been treated differently than he has been treated. Specifically, he alleges that inmates in other units who have been removed from the craft shop due to major disciplinary cases have been permitted to store their tools in the unit until their privileges are restored. At the hearing, Conway referred to a Division policy of removing craft-shop tools from inmates when their privileges are suspended. The appellees maintain that the policy at the Michael Unit is to require an offender to send his tools home if he receives one major or two minor disciplinary cases.

Three months after the trial court ordered the equal-protection claim to proceed, the appellees filed another motion to dismiss Conway’s cause of action. They alleged that his equal-protection claim is frivolous because it lacks an arguable basis in law. Without holding another hearing, the trial court granted the State’s motion.

Conway’s suit against the appellees is based on 42 U.S.C. § 1983, which provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in action at law, suit in equity, or other proper proceeding for redress.

The initial analysis in a section-1988 action is to determine whether (1) the conduct complained of was committed by a person acting under color of state law; and (2) this conduct deprived a person of rights, privileges or immunities secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).

Conway complains that the appel-lees’ actions constituted a denial of his right to equal protection under the law. However, Conway has not cited any authority establishing that he has a right of access to the craft shop or the tools he used in the shop. Accordingly, Conway has not adequately alleged an equal-protection violation under section 1983. Cf. Thomas v. Brown, 927 S.W.2d 122, 125 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (discussing section-1983 claim that inmate was denied access to courts).

What Conway has alleged is that Administrative Directive 3.72 has been unequally applied to inmates in different units. But the U.S. Supreme Court has expressly limited the ability of inmates to derive constitutionally protected rights from “prison regulations primarily designed to guide correctional officials in the administration of a prison.” Sandin v. Conner, 515 U.S. 472, 481-82, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The Court reasoned that permitting litigants to derive constitutional rights from prison regulations created “disincentives for States to codify prison[-]management procedures” that may otherwise protect inmates. Id. at 482, 115 S.Ct. 2293. Accordingly, the Court limited the scope of inmates’ liberty interests to situations where the State “imposes atypical and significant hardship ... in relation to the ordinary incidents of prison life.” Id. at 484,115 S.Ct. 2293.

Because Conway faded to present evidence that the appellees’ actions deprived him of a right, privilege, or immunity secured by the Constitution or laws of the United States, the trial court properly dismissed his equal-protection claim. Conway’s issue is overruled.

The judgment of the trial court is affirmed.

FROST, J., dissenting.

KEM THOMPSON FROST, Justice,

dissenting.

Conway’s equal-protection claim is not frivolous. The trial court abused its discretion in dismissing that claim with prejudice, and this court should reverse and remand. Because it does not, I respectfully dissent.

Following the hearing on August 30, 2005, the trial court originally ruled that Conway’s claim under 42 U.S.C. § 1983 based on an alleged equal-protection violation (“equal-protection claim”) was not frivolous and should proceed. However, in the process of discovery, the appellees moved to dismiss Conway’s equal-protection claim, asserting Conway’s claim had no arguable basis in law or fact. Without holding another hearing, the trial court granted appellees’ motion and dismissed Conway’s equal-protection claim with prejudice.

Whether a claim has an arguable basis in law is a legal question to be reviewed de novo. In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994); Retzlaff v. Tex. Dep’t of Crim. J., 94 S.W.3d 650, 653 (Tex.App.Houston [14th Dist.] 2002, pet. denied). A reviewing court must take the allegations in the inmate’s petition as true and determine whether the inmate has alleged a claim that would authorize relief. For a claim to have no arguable basis in law, it must be based on an indisputably meritless legal theory or be based on wholly incredible or irrational factual allegations. See Nabelek v. Dist. Attorney of Harris County, 290 S.W.3d 222, 228 (Tex.App.-Houston [14th Dist.] 2005, pet. denied); Minix v. Gonzales, 162 S.W.3d 635, 637 (Tex.App.Houston [14th Dist.] 2005, no pet.). An inmate’s cause of action may not be dismissed merely because the court considers the allegations “unlikely.” See Nabelek, 290 S.W.3d at 228. If Conway’s petition has an arguable basis in law and fact, then the trial court erred in dismissing it as frivolous. See Retzlaff, 94 S.W.3d at 654.

Because the trial court did not sustain any special exceptions against Conway’s petition, this court must construe the petition liberally in Conway’s favor. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000). In his petition, Conway alleges a section 1983 claim based on the appellees’ alleged deprivation, under color of state law, of Conway’s constitutional right to equal protection. To prove a violation of his constitutional right to equal protection, Conway must show: (1) that he was treated differently than other similarly situated parties, and (2) that he was treated differently without a reasonable basis. See Conway v. Castro, No. 12-03-00373-CV, 2004 WL 1103584, at *3 (Tex.App.-Tyler May 12, 2004, no pet.) (mem.op.); Sanders v. Palunsky, 36 S.W.3d 222, 225 (Tex.App.-Houston [14th Dist.] 2001, no pet.). As relevant in this case, Conway alleges that he was forced to give up his craft-shop tools when his craft-shop privileges were revoked after he received a major disciplinary case. Conway alleges that similarly situated inmates at the same unit and inmates at other units in the Texas Department of Criminal Justice-Institutional Division (“TDCJ-ID”) were not forced to dispose of their tools when their craft-shop privileges were revoked after a major disciplinary case.

According to Conway’s testimony at the hearing on August 30, 2005, he does not dispute that his privileges to the craft shop were revoked by Warden Castro after he received a major disciplinary case. However, he asserts that, because he was forced to dispose of his tools as a result of the revoked craft-shop privileges, he was treated differently than other inmates in the same unit and differently than inmates at other units in TDCJ-ID, none of whom Conway claims had to dispose of their tools when they similarly received major disciplinary cases. Conway testified that (1) the tools would be considered contraband in any other part of the unit except the craft shop; (2) at other units where he has had his craft-shop privileges revoked, he was allowed to recover his tools when those privileges were reinstated; and (3) at the same Michael Unit where he was housed in the previous two years, other inmates had received major disciplinary cases and lost their privileges to work in the craft shop; those inmates, however, were not required to dispose of their tools and subsequently were able to use their tools when they had their craft-shop privileges reinstated. Conway’s privilege to work in the craft shop was reinstated when Warden Moore became warden of the Michael Unit. Conway testified that upon reinstatement of these privileges, he could not bring in tools from outside the unit and would have to buy new tools.

Conway’s claims are not based on wholly incredible or irrational factual allegations, and the majority has not stated or shown otherwise. Furthermore, Conway’s claims are not based on an indisputably meritless legal theory. Regardless of whether Conway would succeed on the merits, it is not indisputably meritless to claim, based on Conway’s allegations, that appellees treated Conway differently than other similarly situated inmates without a reasonable basis for doing so. The majority does not assert otherwise; rather, the majority concludes that Conway failed to plead or prove a valid right that was violated. The majority states that Conway has not shown that he has a right of access to the craft shop or to his tools in the craft shop. The majority concludes that Conway does not have any constitutional right arising out of Administrative Directive 3.72. Presuming that the foregoing is correct, Conway still has a constitutional right to equal protection, and he claims that appellees have deprived him of this right. See Conway, 2004 WL 1103584, at *3. The appel-lees have not asserted that’ Conway was treated the same as similarly situated inmates, and the appellees have not asserted any alleged reasonable basis for treating Conway differently. Instead, the appel-lees argue that Conway has failed to meet his burden of demonstrating that he was treated differently without a reasonable basis. This argument might be valid in a summary-judgment context. However, the trial court did not grant summary judgment; it dismissed the equal-protection claim as frivolous.

The majority’s analysis conflicts with the applicable legal standard. The only issue before this court is whether the claims asserted in Conway’s petition are based on an indisputably meritless legal theory or on wholly incredible or irrational factual allegations. See Nabelek, 290 S.W.3d at 228; Minix, 162 S.W.3d at 637. Because Conway’s claims are not so based, this court errs in affirming the trial court’s dismissal of these claims as frivolous under section 14.003(a)(2) of the Texas Civil Practice and Remedies Code. See Elias v. DeLeon, No. 12-04-00143-CV, 2005 WL 2404113, at *2 (Tex.App.-Tyler Sept. 30, 2005, no pet.) (mem.op.) (holding that prison inmate’s petition asserting conversion claim had an arguable basis in law); Mi-nix, 162 S.W.3d at 639 (holding that prison inmate’s petition asserting Theft Liability Act claim against two correctional officers in their individual capacities had an arguable basis in law); Retzlaff, 94 S.W.3d at 654 (holding that prison inmate’s petition for judicial review of prison disciplinary proceeding had arguable basis in law).

This court should reverse the trial court’s order dismissing Conway’s equal-protection claim as frivolous under section 14.003(a)(2) of the Texas Civil Practice and Remedies Code, and remand for further proceedings.

      . The majority relies on Sandin v. Conner, 515 U.S. 472, 481-82, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Sandin holds that prison regulations do not give rise to due process rights. Id. at 483, 115 S.Ct. at 2300. However, the case at hand involves an equal-protection claim, not an alleged deprivation of due process.

      . The majority also bases its decision on Conway's alleged failure "to present evidence that the appellees’ actions deprived him of a right, privilege, or immunity secured by the Constitution or laws of the United States.” See ante at p. 562 (emphasis added). Conway did not have to raise a fact issue on the essential elements of his claim to avoid a finding of frivolousness. See Nabelek, 290 S.W.3d at 228; Minix, 162 S.W.3d at 637.