In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00020-CV
______________________________
CAMMACK THE COOK, L.L.C., JASON CAMMACK,
LAUREN CAMMACK, AND MILTON CAMMACK, Appellants
V.
MARTA BEYEN EASTBURN, Appellee
On Appeal from the County Court at Law No. 2
Gregg County, Texas
Trial Court No. 2007-2609-CCL2
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
O P I N I O N
Cammack the Cook, L.L.C., Jason Cammack, Lauren Cammack, and Milton Cammack (collectively referred to as the Cammacks) appeal from a trial court's summary judgment granted in favor of Marta Beyen Eastburn. The Cammacks contend that the trial court misconstrued the parties' lease agreement in granting Eastburn's motion for summary judgment and in denying the Cammacks' partial motion for summary judgment. We affirm in part and reverse and remand in part for adjudication of the Cammacks' remaining counterclaims.
I. Factual and Procedural Background
Eastburn leased several rooms in her interior decorating store to the Cammacks for use as a restaurant and catering facility. Despite the relatively short term of the lease, the Cammacks extensively remodeled the property in order to convert it into a functioning restaurant. (1) The remodeling took two months, cost between $60,000.00 to $70,000.00, and included changes made to the concrete structure, and plumbing and electrical systems. A "gigantic," 1,500-gallon "grease trap was put in the backyard using a crane." Holes were cut into: the ceiling and roof to attach equipment for exhaust fans, the floor and tile to install several eight-by-eight-inch floor drains and kitchen sinks emptying into the sewer system, and the walls to make space for gas and water pipes. Can lights were discarded and replaced with fluorescent lights, interior walls were removed and replaced with new drywall covered with FRP, (2) and stainless steel was mounted or glued on the wall behind the stove in order to shield it from heat.
The Cammacks were able to make timely rental payments for the first four months after the renovations were complete. However, late rental payments began in January 2006 and continued until August 2006. Exasperated with these late payments, Eastburn increased the Cammacks' initial security deposit of $3,115.00 to $6,230.00. The additional deposit failed to deter the Cammacks from making further late rental payments in September, October, and November 2006.
Pursuant to the lease, Eastburn immediately accelerated the due date of all rents. A written notification of default, notice of acceleration, and demand for payment was sent to the Cammacks on October 12, 2006. They did not comply with the notice, the lease was terminated, and Eastburn claimed the Cammacks did not vacate the premises in a timely fashion. She filed a petition in county court for breach of lease of the holdover provision, failure to make timely rental payments, and failure to remove improvements and return the premises to its previous condition. Eastburn further alleged the Cammacks left the property in a "filthy, deplorable condition," and, in violation of lease terms, failed to remove alterations, decorations, and additions in order to return the premises to the condition in which it previously existed. Included in the laundry list of complaints were: vents on the roof which were not removed, holes in the roof, missing or damaged molding, damaged tile and flooring, a damaged window, a grease trap in the backyard which had to be removed and required the ground to be restored, plumbing and gas fixtures which should have been capped and covered, abandoned items, and general failure to clean the premises.
The Cammacks' answer denied holdover tenancy, arguing that the lease expired by its own terms on July 30, 2007, that all kitchen renovations were completed with Eastburn's consent, that they had no duty to restore the premises, and that some of the repairs requested were not authorized by the lease. They also counterclaimed for return of the security deposit and alleged under Chapter 92 of the Texas Property Code, which only applies to residential leases, that Eastburn was retaliating against them for failure to repair air conditioning, despite the Cammacks' repeated demands, and that they were entitled to attorney's fees. Tex. Prop. Code Ann. §§ 92.331-.333 (Vernon 2007).
The Cammacks next filed a motion for partial summary judgment arguing Eastburn had no evidence to demonstrate they were holdover tenants. Also, since most of the work completed included permanent changes to the structure, and "[l]ogic and reality dictates that these items cannot be removed without damage to either the property, the building or the premises," the Cammacks argued that the lease provisions did not require them to restore the premises as Eastburn demanded. Eastburn also filed a motion for summary judgment on her own claims, taking the obverse position. She provided bid proposals demonstrating that it would cost $19,155.00 to restore the premises and $16,914.06 to remove the grease trap and fill the hole in the ground. She attached the deposition of Jason Cammack, who testified no work was done to refurbish or restore the facility. He admitted that the lease required the Cammacks to take FRP off the walls and clean the space and that neither task was completed. Jason also admitted that he "had an obligation to remove all of my fixtures." Next, he described the condition in which the Cammacks left the property. Jason clarified cardboard covered a large hole in the ceiling leading to the attic because the vent was removed, that gas and water pipes were not capped and were visible in the wall, that an electrical conduit was coming out of the floor, and that the stainless steel wall shield was not removed. Last, Jason testified the 1,500- gallon grease trap still contained collections from the kitchen drains.
On December 5, 2008, the Cammacks filed amended counterclaims under Chapter 93 of the Texas Property Code, which applies to commercial leases. They alleged Eastburn wrongfully withheld the security deposit, wrongfully excluded them from the premises, and also alleged a cause of action called "failure of consideration," seeking credit for the weeks of rent in which Eastburn allegedly failed to repair the air conditioning. On December 19, they filed a "Response to Eastburn's [Partial] Motion for Summary Judgment Motion to Renew the Cammacks' Motion for Partial Summary Judgment." While the new counterclaims were briefly mentioned, no summary judgment was sought on the counterclaims. (3)
The trial court considered the motions for summary judgment on December 30, 2008, and rendered final judgment awarding Eastburn $36,069.06. Consistent with the affidavit of attorney's fees and costs, the trial court awarded $19,945.00 in fees and $1,067.10 in costs. On appeal, the Cammacks essentially argue, in a brief which challenges the reader, that the trial court erred because the unambiguous lease agreement did not require them to remove improvements made to the property and restore the premises and that Eastburn did not sufficiently prove damages and attorney's fees.
The Cammacks also label the following as points of error: (1) "Appellants present an action against appellee pursuant to Texas Property Code § 93.011"; (2) "Appellants present an action against appellee pursuant to Texas Property Code § 93.002"; (3) "Appellants present a breach of contract action against appellee and a defense of failure of consideration from appellee"; (4) "As a matter of law, appellee is barred from pursuing any holdover claim against appellants. And the final summary judgment denies appellee's holdover and cleaning claims, to which she fails to object"; and (5) "Appellants' written objections, to appellee's motion for summary judgment and to her response to appellants' motion for partial summary judgment, address matters that are not relevant, that do not authorize summary judgment for appellee and which are not a defense to summary judgment against her." At a minimum, "[a] complaint on appeal must address specific errors." Velasquez v. Waste Connections, Inc., 169 S.W.3d 432, 439 (Tex. App.--El Paso 2005, no pet.); Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex. App.--Austin 1996, no pet.). Because these statements, as well as the corresponding portion of argument, fail to address specific errors made by the trial court, we overrule these "points of error."
II. Finality of the Summary Judgment
Typically, "[a]n order that adjudicates only the plaintiff's claims against the defendant does not adjudicate a counterclaim, cross-claim, or third party claim." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). (4) Thus, before we address the merits of this appeal, we must determine whether the trial court's summary judgment was final such that it "actually dispose[d] of every pending claim and party or . . . clearly and unequivocally state[d] that it finally dispose[d] of all claims and all parties." Id. "[T]he language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties." Id. at 200. "[I]ntent to finally dispose of the case must be unequivocally expressed in the words of the order itself." Id. If that intent is clear from the order, then the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment. Id.
Lehmann explained that a "statement like, 'This judgment finally disposes of all parties and all claims and is appealable,' would leave no doubt about the court's intention." Id. at 206. The summary judgment mirrors the Lehmann language, stating "[a]ll relief requested by any party in this case that is not expressly granted by this judgment is denied. This judgment finally disposes of all parties and claims in this action, is a final judgment, and is therefore appealable." In such a case, where the language of the order suggests the court intended the summary judgment to be final, but adjudicated counterclaims which were not brought by summary judgment, the judgment is "final-erroneous, but final." Id. at 200.
A judgment that grants more relief than requested is "subject to reversal, but it is not, for that reason alone, interlocutory." Id. "In those circumstances, the order must be appealed and reversed." Id. at 206. If we determine Eastburn was not entitled to summary judgment on her claims, the entire judgment of the trial court will be reversed. Page v. Geller, 941 S.W.2d 101, 102 (Tex. 1997). However, if we determine that "the summary judgment in favor of the plaintiff on its claims was proper, [we must] affirm the judgment of the trial court in part, reverse in part since only a partial summary judgment should have been rendered, and remand the case" for further proceedings in the trial court. Bandera Elec. Coop. v. Gilchrist, 946 S.W.2d 336, 336 (Tex. 1997); Page, 941 S.W.2d at 102; Jones v. Ill. Employers Ins. of Wausau, 136 S.W.3d 728, 743-44 (Tex. App.--Texarkana 2004, no pet.); Pinnacle Data Servs. v. Gillen, 104 S.W.3d 188, 199 (Tex. App.--Texarkana 2003, no pet.); Klevin v. Tex. Dep't of Criminal Justice--I.D., 69 S.W.3d 341, 344 (Tex. App.--Texarkana 2002, no pet.).
III. Standard of Review
A trial court's summary judgment is reviewed de novo. Laidlaw v. Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Lamar Corp. v. City of Longview, 270 S.W.3d 609, 613 (Tex. App.--Texarkana 2008, no pet.). Summary judgment is proper when a movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); French v. Gill, 252 S.W.3d 748, 751 (Tex. App.--Texarkana 2008, pet. denied); Powers v. Adams, 2 S.W.3d 496, 497 (Tex. App.--Houston [14th Dist.] 1999, no pet.) (citing Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985)). In deciding whether there is a disputed material fact issue which precludes summary judgment, proof favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 548-49. We indulge every reasonable inference in favor of the nonmovant. Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002).
IV. Summary Judgment on Eastburn's Breach of Contract Claim Was Proper
A. The Unambiguous Lease Provisions
Both parties believe the lease's unambiguous language supports their position. We must first answer the question of whether this lease contract is ambiguous. This is a question of law which we review de novo. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000). We cannot ignore the clear language of an unambiguous contract. Consol. Petroleum Partners, I, LLC v. Tindle, 168 S.W.3d 894, 899 (Tex. App.--Tyler 2005, no pet.). If the lease provision above can be given a certain or definite meaning or interpretation, it is not ambiguous, and we must simply apply the language in the lease. Lopez, 22 S.W.3d at 861. However, where there are two reasonable interpretations of the same language in a document, ambiguity arises. Id.
Construction of the lease provisions was key in resolving the summary judgment. Section 5.2 of the lease stated:
Upon receipt of Landlord's prior written approval, Tenant may from time to time, at its own expense, alter, renovate or improve the interior of the Premises . . . so as not to weaken or impair the strength or lessen the value of the Building . . . .
. . . .
At the expiration or other termination of this Lease, and upon obtaining the prior written consent of Landlord, Tenant shall remove such alterations, decorations, additions and improvements and restore the Premises as provided in Section 5.5, and if Tenant fails to do so and moves from the Premises, all such alterations, decorations, additions and improvements shall become the property of Landlord and Landlord may, at Tenant's expense, remove all such alterations, decorations, additions and improvements.
Section 5.5 entitled "Trade Fixtures" provided:
Tenant shall have the right, at the termination of this Lease, to remove any and all trade fixtures, equipment and other items of personal property not constituting a part of the freehold which it may have stored or installed in the Premises, including, but not limited to, counters, shelving, showcases, chairs and movable machinery purchased or provided by Tenant and which are susceptible of being moved without damage to the Property . . . ; and provided further that Tenant, at its own cost and expense, shall repair any damage to the Premises caused thereby. . . . Further, upon termination of this Lease, or within five (5) days thereafter, Tenant shall replace the wall surfaces in the kitchen are [sic] of the Premises with taped and floated sheet rock. The right granted Tenant in this Section shall not include the right to remove any plumbing or electrical fixtures or equipment, heating or air conditioning equipment, floor coverings (including wall-to-wall carpeting) glued or fastened to the floors or any paneling, tile or other materials fastened or attached to walls or ceilings, all of which shall be deemed to constitute a part of the freehold, and, as a matter of course, shall not include the right to remove any fixtures or machinery that were furnished or paid for by Landlord. The Premises and the immediate areas in front, behind and adjacent to it shall be left in a broom-clean condition, and in the condition in which they existed as of the Lease Commencement Date, normal wear and tear excepted. . . . If Tenant shall fail to remove its trade fixtures or other property at the termination of this Lease or within five (5) days thereafter, such fixtures and other property not removed by Tenant shall be deemed abandoned by Tenant, and, at the option of Landlord, shall become the property of Landlord, and Landlord may, at Tenant's expense, remove such trade fixtures and other property and store or dispose of the same, at Tenant's sole cost and expense.
Section 10.5, entitled "Surrender of Premises and Holding Over," stated:
At the expiration of the tenancy, Tenant shall surrender the Premises in good condition, reasonable wear and tear excepted . . . Tenant shall remove all its trade fixtures and any alterations or improvements, subject to the provisions of Section 5.5, before surrendering the Premises, and shall repair, at its own expense, any damage to the Premises caused thereby.
When read as a whole, we believe the language in the contract is unambiguous for the reasons discussed below. The Cammacks suggest that they were not responsible for removing the items complained of because Section 5.5 of the lease, entitled "Trade Fixtures," does not give them the right to remove: trade fixtures which they may have installed, plumbing, electrical heating or air conditioning equipment, floor coverings, tiles, or other materials constituting a part of the freehold. "Trade Fixtures" have been defined many times by the courts to include:
such articles as may be annexed to the realty by the tenant to enable him properly or efficiently to carry on the trade, profession, or enterprise contemplated by the tenancy contract or in which he is engaged while occupying the premises, and which can be removed without material or permanent injury to the freehold.
Boyett v. Boegner, 746 S.W.2d 25, 27 (Tex. App.--Houston [1st Dist.] 1988, no pet.); see Ashford.Com, Inc. v. Crescent Real Estate Funding III, L.P., No. 14-04-00605-CV, 2005 WL 2787014, at *9 (Tex. App.--Houston [14th Dist.] Oct. 27, 2005, no pet.) (mem. op.) (citing Connelly v. Art & Gary, Inc., 630 S.W.2d 514, 515 (Tex. App.--Corpus Christi 1982, writ ref'd n.r.e.)). In other words, trade fixtures are those that are only removable without permanent or material injury to the premises. Ashford.Com, 2005 WL 2787014, at *9; Connelly, 630 S.W.2d at 515. We must reject the Cammacks' argument because the items Eastburn required to be removed are improvements or alterations, as admitted by Jason Cammack in his affidavit, and, by definition, are not trade fixtures such that they could be covered by Section 5.5.
We harmonize and give effect to all the lease provisions in relation to the whole instrument so that none will be rendered meaningless. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Here, Sections 5.2 and 10.5 set forth the general requirement that the Cammacks must surrender the premises in good condition, remove all trade fixtures and alterations and improvements, restore the premises, and repair any damage to the property caused due to removal at their own expense. Even Section 5.5 reiterates the general requirement that the Cammacks are to leave the property in "broom-clean condition, and in the condition in which they existed as of the Lease Commencement Date."
B. The Cammacks' Breach
When reviewing the laundry list of complaints in Eastburn's demand notice, it is clear that several of Eastburn's complaints involved failure to clean the premises, a duty that Jason realized he had, but, by his admission, failed to perform. Although the Cammacks removed their trade fixtures, according to Eastburn's affidavit, they did nothing to remove their improvements and restore the premises. Specifically, Jason admitted to not removing the 1,500-gallon grease trap, stainless steel on the wall behind the stove, vents on the roof of the kitchen area, and the FRP from the walls. He also admitted to throwing away Eastburn's can lights and replacing them with fluorescent lighting. Eastburn's uncontroverted affidavit stated the walls had not been repaired with taped and floated drywall as required by Section 5.5. Eastburn's affidavit also mentioned the Cammacks failed to make repairs to restore the premises to its condition prior to the lease, including the following admitted by Jason: failure to repair holes in the roof, ceiling, floor and tile, replace Eastburn's lights which were thrown away, and cap and cover various gas and plumbing fixtures and an electrical conduit. Eastburn's uncontroverted affidavit also complains of the Cammacks' failure to repair damaged or missing molding, a damaged window, and restore the ground where the grease trap was placed after its removal. Photographs submitted in support of the summary judgment motions confirm the condition in which the property was left.
Further, Eastburn's affidavit also established that the Cammacks continually failed to pay rent on time, a fact that was never contested by the Cammacks. Also, Section 10.5 of the lease, entitled "Surrender of Premises and Holding Over," provided:
Tenant shall remove all its trade fixtures and any alterations or improvements, subject to the provisions of Section 5.5, before surrendering the Premises, and shall repair, at its own expense, any damage to the Premises caused thereby. Tenant's obligations to observe or perform this covenant shall survive the expiration or other termination of this lease. If Tenant remains in possession of the Premises after the expiration of the tenancy created hereunder, whether or not with the consent or acquiescence of the Landlord, and without the execution of a new lease, Tenant, at the option of landlord, shall be deemed to be occupying the Premises as a tenant at will on a month-to-month tenancy.
Because the Cammacks failed to remove their improvements and restore the premises, they were subject to the holdover provision under the lease. The affidavit of Jason states the lease terminated on June 30, 2007, and that Eastburn changed the locks on July 1, 2007, and only allowed entry onto the premises during her business hours, as stated in the lease. He complains that the Cammacks should not be held liable for holdover damages because Section 5.5 of the lease allowed a five-day period to remove trade fixtures. However, this five-day period was allowed only if the Cammacks were not in default, and did not guarantee twenty-four-hour access. Thus, the Cammacks failed to present a genuine issue of material fact to counter Eastburn's holdover claim.
In sum, the summary judgment evidence left no issue of material fact regarding the Cammacks' breach of lease.
C. Damages and Attorney's Fees
On appeal, the Cammacks do not challenge the amount of damages, but simply claim Eastburn was not entitled to recover them because she was not entitled to summary judgment. We overrule this point of error. (5)
The lease agreement provided attorney's fees to the prevailing party for any litigation arising out of enforcement of the lease. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 2008). The Cammacks complain that Eastburn's attorney's fees are not reasonable or necessary, especially since counsel did not furnish a time record. Production of a time record is not essential when requesting attorney's fees. While reasonableness of an attorney's fee award often presents a question of fact, an "affidavit filed by the movant's attorney that sets forth his qualifications, his opinion regarding reasonable attorney's fees, and the basis for his opinion will be sufficient to support summary judgment, if uncontroverted." In re Estate of Tyner, No 12-08-00232-CV, 2009 WL 1609963, at *4 (Tex. App.--Tyler June 10, 2009, no pet.) (citing Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373 (Tex. App.--San Antonio 1999, pet. denied)); Haden v. Sacks, No 01-01-00200-CV, 2009 WL 1270372, at *5 (Tex. App.--Houston [1st Dist.] May 7, 2009, no pet. h.). Counsel submitted an affidavit of attorney's fees totaling $19,945.00. It detailed the involvement with the case, stated counsel's associate worked 43.8 hours at the rate of $125.00 per hour, and that he worked 84 hours, 9.2 hours of which were billed at $150.00 per hour and 74.8 hours of which were billed at $175.00 per hour. Eastburn's affidavit established that she was required to pay these fees.
Based on a false assumption that the final order denied the "holdover and cleaning claims," the Cammacks argue Eastburn should not receive attorney's fees because their counsel did not segregate the "cleaning and holdover claims" from the restoration claims. (6) When a plaintiff seeks to recover attorney's fees where at least one claim supports an award of attorney's fees and at least one does not, segregation is required unless the claims arise out of the same transaction and are so interrelated that the award or denial depends on the same facts. Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 709 (Tex. App.--Fort Worth 2006, pet. denied); Lesikar v. Rappeport, 33 S.W.3d 282, 317 (Tex. App.--Texarkana 2002, pet. denied); Flint & Assocs. v. Intercontinental Pipe & Steel, Inc., 739 S.W.2d 622, 624-25 (Tex. App.--Dallas 1987, writ denied). All of Eastburn's claims were for breach of the lease, any of which would support an award for attorney's fees. Further, the claims all arose from the same transaction and involved essentially the same facts. Segregation of the breach of lease claims was not needed in this case.
Thus, unless the necessity for or the reasonableness of attorney's fees was controverted by raising a fact question in a manner which would successfully preclude the summary judgment award of attorney's fees, Eastburn was entitled to have them awarded to her. "[A] summary judgment award of attorney's fees is improper where the nonmovant produces a controverting affidavit regarding fees." AU Pharm., Inc. v. Boston, 986 S.W.2d 331, 338 (Tex. App.--Texarkana 1999, no pet.). To constitute proper summary judgment evidence, an affidavit must be made on personal knowledge, set forth facts which would be admissible in evidence, and show the affiant's competence. Id.; see Tex. R. Civ. P. 166a(f). "Conclusory statements or statements based purely on opinion are not competent summary judgment evidence." Hawthorne v. Star Enter., Inc., 45 S.W.3d 757, 759 (Tex. App.--Texarkana 2001, pet. denied); see Haden, 2009 WL 1270372, at *5. Although an expert witness's opinion testimony in a summary judgment affidavit can defeat a summary judgment claim, it is the basis of the expert's claim, and not the expert's bare opinions alone, that can settle a question as a matter of law. See Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999).
Here, the affidavit submitted by the Cammacks' attorney attempting to controvert the merit of the movant's summary judgment affidavit supporting an award of attorney's fees which had been incurred stated, "[t]he attorney fees plaintiff's attorney claims are not necessary or reasonable, and they are an excessive and bad faith demand" without providing a rationale upon which the statement was based. The affidavit contains no recitation that the hourly rates charged by Eastburn's attorneys were unreasonably high, that the time alleged to have been expended was excessive to accomplish the work which was provided, that work performed by her attorneys was unnecessary to prosecute the case, or that the work as alleged was not performed. In sum, there is no evidence underlying the conclusion that Eastburn's requested attorney's fees at the trial level are unreasonable or unnecessary. Therefore, since the affidavit does not provide any basis for the statement made, the statement is simply conclusory in nature. The remainder of the affidavit claims that the fees are unreasonable because the lease did not support an award for Eastburn, the claims were not segregated, and Eastburn's summary judgment motion was groundless. These are legal arguments, not facts, which are resolved in Eastburn's favor. The controverting affidavit makes no mention of Eastburn's anticipated attorney's fees on appeal, and those fees remain uncontested.
V. Conclusion
We affirm the summary judgment of the trial court on Eastburn's claims, and by implication, against the Cammacks' counterclaim regarding the security deposit. However, because the trial court did not adjudicate the Cammacks' remaining counterclaims, we reverse and remand in part for further proceedings consistent with this opinion.
Bailey C. Moseley
Justice
Date Submitted: July 13, 2009
Date Decided: September 25, 2009
1. The lease was entered on June 6, 2005, and expired by its own terms on June 30, 2007.
2. Fiberglass-reinforced plastic.
3. "A motion for summary judgment shall state the specific grounds therefor. Except on leave
of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and
served at least twenty-one days before the time specified for the hearing." Tex. R. Civ. P. 166a(c).
We do not construe the Cammacks' brief references to its counterclaims in a motion filed less than
twenty-one days before the summary judgment hearing as a proper motion for summary judgment
on the counterclaims. Also, it appears to us that the Cammacks mistakenly argued, through
references such as "[t]here is at least a fact issue whether Eastburn is entitled to keep all of the
deposit," that summary judgment on Eastburn's claims should be precluded because fact issues
existed regarding the Cammacks' amended counterclaims.
4. 5. 6.
Trial Court No. 23608
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
Dissenting Opinion by Justice Carter
O P I N I O N
Samuel Coy Haagensen appeals his conviction by a jury for delivery of less than one gram of methamphetamine. See Tex. Health & Safety Code Ann. §§ 481.102, 481.112 (Vernon 2010). After obtaining a search warrant for Haagensens residence, Officer Leigh Foreman was contacted by a confidential informant who advised he could make a methamphetamine purchase from Haagensen. Based on this offer, the police officers decided to wait before executing the search warrant. Prior to the purchase, Foreman searched the confidential informant and provided him with money to make the purchase. The confidential informant purchased methamphetamine from Haagensen and an audio recording of the purchase was made. Later that evening, police officers stopped a vehicle being driven by Haagensen and arrested him. Although no incriminating evidence was found on Haagensens person, the money provided to the confidential informant was found in a jacket on which Haagensen had been sitting. The police eventually executed a search warrant for Haagensens residence and discovered scales, baggies, and a spoon with white residue in his bedroom.[1]
The State charged Haagensen with delivery of methamphetamine based on the purchase by the confidential informant. The State alleged the transaction occurred in a drug-free zone because it occurred within 1,000 feet of a day-care center. See Tex. Health & Safety Code Ann. § 481.134 (Vernon 2010). The State further alleged that Haagensen had been previously convicted of the felony offense of violation of a protective order. See Tex. Penal Code Ann. § 12.42 (Vernon 2011). Haagensen pled not guilty to the charged offense, not true to the drug-free zone, and true to the prior felony conviction. The jury found both enhancements to be true and assessed punishment at fifteen years imprisonment.
Haagensen raises five issues on appeal. Haagensen argues the evidence is insufficient to support the jurys finding that the transaction occurred in a drug-free zone. In addition, Haagensen claims he received ineffective assistance of counsel and the jurys verdict is defective because it contained the wrong cause number.
The Evidence Is Sufficient to Support the Drug-Free Zone Enhancement
In his first and second issues, Haagensen argues that the evidence is insufficient[2] to support the jurys finding that the delivery occurred in a drug-free zone. The State alleged the offense occurred within a drug-free zone (i.e., within 1,000 feet of Little Ark Learning Center). Haagensen argues the evidence is insufficient on two bases: (1) the State failed to prove that the facility was licensed, certified, or registered; and (2) the State failed to prove that the offense was committed within 1,000 feet of the day-care center.
In evaluating sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of the drug-free-zone enhancement beyond a reasonable doubt. Brooks, 323 S.W.3d at 912 (citing Jackson, 443 U.S. at 319). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Id. at 917 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 31819).
Legal sufficiency of the evidence is measured by the elements of the enhancement as defined by a hypothetically-correct jury charge. Young v. State, 14 S.W.3d 748, 750 (Tex. Crim. App. 2000) (Malik applies to drug-free-zone enhancements); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the States burden of proof or unnecessarily restrict the States theories of liability, and adequately describes the particular offense for which the defendant was tried. Malik, 953 S.W.2d at 240. The hypothetically correct jury charge cannot wholly re-write the indictment, but is not required to track exactly all of the allegations in the indictment. Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001). [I]f the penal offense sets out various statutory alternatives for the distinct elements of the crime, the jury charge may contain only those alternative elements that are actually alleged in the indictment. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011). Stated succinctly, the hypothetically-correct jury charge must include allegations that are statutory alternatives for an element of the offense and material variances. See id.
The State alleged the above alleged offense was committed in, on, or within 1000 feet of a school, to-wit: Little Ark Preschool . . . .[3] Section 481.134 provides:
(d) An offense otherwise punishable under Section 481.112(b) . . . is a felony of the third degree if it is shown on the trial of the offense that the offense was committed:
(1) in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school . . . .
Tex. Health & Safety Code Ann. § 481.134(d). Section 481.134 also defines School as a day-care center as defined by Section 42.002, Human Resources Code. Tex. Health & Safety Code Ann. § 481.134(a)(5). Section 42.002 defines Day-care center as a child-care facility that provides care for more than 12 children and defines Child-care facility as a facility licensed, certified, or registered by the department . . . . Tex. Hum. Res. Code Ann. § 42.002 (Vernon Supp. 2010). Operation of a day-care facility without a license issued by the State is prohibited; violation of this prohibition subjects the violator to civil penalties. Tex. Hum. Res. Code Ann. §§ 42.041(a), 42.075 (Vernon Supp. 2010).
The question in this case is whether the definition of a day-care center is an element of the offense. Not all definitions constitute elements of an offense. In Gray v. State, the Texas Court of Criminal Appeals held that the definition of intoxicant is not an element of the offense of driving while intoxicated. 152 S.W.3d 125, 132 (Tex. Crim. App. 2004). The court reasoned the intoxicant did not describe the forbidden conduct, the required culpability, any required result, or the negation of an exception. Id.
A definition, though, can be an element of the offense. In Curry, the Texas Court of Criminal Appeals held the statutory alternatives contained in the definition of abduction were essential elements of the offense because the alternatives described the mens rea necessary to establish the offense. See Curry v. State, 30 S.W.3d 394, 403 (Tex. Crim. App. 2000) (State bound by the statutory alternative alleged). In Curry, the Texas Court of Criminal Appeals distinguished prior cases where the variance did not describe the forbidden conduct, the required culpability, any required result, or the negation of an exception. Id.
Recently, the Texas Court of Criminal Appeals has suggested in dictum that the definition of owner is an element of theft. See Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) (concluding State bound by its allegation because name of owner was material variance). This Court has recognized the statutory definition of deliver is an element of delivery of a controlled substance. See Stephens v. State, 269 S.W.3d 178, 180 (Tex. App.Texarkana 2008, pet. refd) (concluding hypothetically-correct jury charge included allegation of constructive delivery); accord Mihnovich v. State, 301 S.W.3d 354, 358 (Tex. App.Beaumont 2009, pet. refd) (concluding hypothetically-correct jury charge included allegation of constructive delivery).
The Texas Penal Code specifies that forbidden conduct, the required culpability, any required result, or the negation of an exception form elements of an offense. The Texas Penal Code defines an Element of offense as:
(A) the forbidden conduct;
(B) the required culpability;
(C) the required result; and
(D) the negation of any exception to the offense.
Tex. Penal Code Ann. § 1.07(a)(22) (Vernon 2011). The definition of day-care center describes the forbidden conduct because it limits which day-care centers create a drug-free zone. Unlike primary and secondary schools,[4] not all day-care centers create drug-free zones. Not all day-care centers, though, create drug-free zones. Only a day-care center, as defined by Section 42.002, Human Resources Code creates a drug-free zone. Tex. Health & Safety Code Ann. § 481.134. If a day-care center does not serve more than twelve students or if a day-care center is not licensed, certified, or regulated, the day-care center does not create a drug-free zone. Thus, in order to prove a drug-free zone exists, the State must establish the day-care center at issue meets the statutory definition of school.
The State notes Haagensen has not provided any cases which have reversed a drug-free-zone finding based on the definition of a school. The State further asserts it has been unable to find any cases in its own research. The State, though, has not provided this Court with any casesand we have not discovered any in our own researchthat hold the State is not required to prove a day-care center qualifies as a school under Tex. Hum. Res. Code Ann. § 42.002. Although it appears this may be an issue of first impression, the State must prove all the statutory elements of the enhancement.
We conclude the definition of a day-care center contained in Tex. Hum. Res. Code Ann. § 42.002 is an essential element of the enhancement. Thus, the definition of a day-care center must be included in the hypothetically-correct jury charge. The hypothetically-correct jury charge required the State to prove that (1) the offense charged (2) was committed (3) within 1,000 feet of any real property that is owned, rented, or leased to (4) a facility (5) that provides care (6) for more than twelve children and (7) is licensed, certified, or registered by the department.
Haagensen argues the State failed to prove the Little Ark Learning Center is licensed, certified, or registered. Officer Foreman replied in the affirmative when asked, As you understand the law, [the day-care center] is a school? No objection was made to this testimony. Although Foremans testimony is, perhaps, conclusory and is a mixed conclusion of fact and law, we conclude it is some evidence that could be considered by the jury and provides legally sufficient evidence of its existence as a statutorily-defined child-care facility. In addition to the testimony of Foreman, the State presented the testimony of Marie Rushing, the child-care director at Little Ark Learning Center. Rushing testified that Little Ark provides its services for more than twelve children under the age of fourteen for less than twenty-four hours per day. This description matches most of the statutory requirements to meet the definition of a child-care center; the only missing element is that there was no direct testimony that Little Ark was licensed, certified, or registered by the Texas Department of Human Services. Absent testimony to the contrary, we will not assume that the First United Methodist Church was illegally operating the child-care center and the failure to specifically identify it as being licensed, certified, or registered was not a sufficiently consequential lapse to invalidate its characterization as a child-care facility. We also determine that the jury could infer from the evidence provided by Rushing and Foreman that this was a child-care facility as defined in the statute. When reviewing the sufficiency of the evidence, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see Neal v. State, 256 S.W.3d 264, 277 (Tex. Crim. App. 2008). Further, Officer Foreman testified he based his measurements on a map he obtained at city hall from the city engineer.[5] We conclude, based on Foremans testimony, that a rational person could have found that the day-care center was licensed, certified, or registered.
In the alternative, Haagensen argues the State failed to prove the offense occurred within 1,000 feet of the day-care center. Haagensen argues the record only establishes the offense occurred in the yard of some unidentified house on East Price Street. Foreman testified the transaction occurred in the yard of the house to the east of the third house on East Price Street. Foreman estimated the location was approximately 950 feet from the property line of the day-care centers parking lot and testified it was well within the 1,000-foot circle of the day-care center.[6] Officer Foreman testified he based his measurements from the parking lot of the day-care center. Haagensen argues this parking lot actually belongs to a neighboring church and is not leased to, owned, or rented by the day care. Haagensen has not directed this Court to where the record establishes the parking lot belongs to the neighboring church. Further, a rational juror could have concluded the parking lot belonged to the day-care center. Foreman testified the parking area for Little Ark goes past the third house -- the house just east of the house he was parked in front of. The jury could reasonably make the deduction that the parking lot was owned, rented, or leased to the day-care center. We note that Rushing testified she was employed by First United Methodist Church, Little Ark Learning Center . . . . Thus, the jury could have alternatively deduced, from Rushings testimony and Foremans testimony, that the day-care center is owned by the neighboring church and the parking lot of the neighboring church is also the parking lot of the day-care center. We conclude a rational juror could have concluded, beyond a reasonable doubt, that the offense occurred in a drug-free zone. The evidence is sufficient.
The Record Does Not Establish Haagensen Received Ineffective Assistance of Counsel
Haagensen, in his third and fourth issues, claims he received ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments. See U.S. Const. amend V, VI, XIV. Haagensen also argues he received ineffective assistance of counsel in violation of Article I, Sections 10 and 19 of the Texas Constitution.[7] See Tex. Const. art. I, §§ 10, 19. Haagensen argues he received ineffective assistance of counsel because his trial counsel failed to object to hearsay and irrelevant evidence used in obtaining the search warrant and evidence of extraneous bad acts.
We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 726 S.W.2d 53, 5657 (Tex. Crim. App. 1986). To prevail on his claim, Haagensen must show (1) his appointed trial counsels performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsels errors, the result would have been different. See Strickland, 466 U.S. at 68788. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). An appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). It is well-settled that any claim of ineffective assistance must be firmly founded in the record. Flowers v. State, 133 S.W.3d 853, 857 (Tex. App.Beaumont 2004, no pet.); see Thompson, 9 S.W.3d at 813.
Haagensen argues his trial counsel was deficient because he failed to object to hearsay and evidence of extraneous bad acts and unadjudicated offenses. The State introduced evidence concerning evidence used to obtain the search warrant; evidence obtained as a result of the search warrant, including baggies, scales, syringes, pipes, and a spoon with white residue; testimony concerning Haagensens prior arrests; and drug ledgers which listed names and numbers of persons whom a police officer testified were associated with narcotics use and drug trafficking.
The question is whether failure to object to these alleged bad acts constitutes ineffective assistance of counsel. Extraneous offenses are inherently prejudicial, and when counsel fails to object to numerous extraneous and prejudicial matters, counsel may be ineffective. Brown v. State, 974 S.W.2d 289, 293 (Tex. App.San Antonio 1998, pet. refd). An accused must be tried only for the offense charged; [t]he accused may not be tried for a collateral crime or for being a criminal generally. Jackson v. State, 320 S.W.3d 873, 882 (Tex. App.Texarkana 2010, pet. refd). While much of the evidence may have been admissible, some of the evidence was clearly not admissible.
We note that trial counsel may have elected not to object based on trial strategy. The review of defense counsels representation is highly deferential and presumes that counsels actions fell within a wide range of reasonable professional assistance. Mallett, 65 S.W.3d at 63. Much, although not all, of the evidence complained of would have been within the trial courts discretion to admit. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (appellant must demonstrate that if counsel had objected on indicated grounds, trial court would have erred in overruling objection). We note trial counsels reasons do not appear in the record. Trial counsels strategy in not objecting may have been an effort to build rapport with the jury and prevent the jury from concluding he was attempting to hide information from them. Counsel also may have not objected because an objection would have emphasized the evidence. If counsels reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsels decisions and deny relief on an ineffective assistance claim on direct appeal. Ortiz v. State, 93 S.W.3d 79, 8889 (Tex. Crim. App. 2002). Because trial counsels failure to object may have been based on trial strategy, we are unable to conclude counsels actions fell outside the wide range of reasonable professional assistance.
Further, even if trial counsel was deficient for failing to object, Haagensen has not met the second prong of Strickland. Haagensen argues he has demonstrated prejudice because the jury was inundated with details concerning the process for obtaining a search warrant and the jury was informed a judge had found sufficient evidence to conclude probable cause existed for the issuance of a search warrant. Haagensen argues this was done under the guise of educating the jury and was used to lead the jury to the conclusion that the judge already knew Appellant was a known drug dealer and the judge already believed him to be guilty. Haagensen claims he was tried for being a criminal generally and the jury could have concluded the confidential informant lied.
We disagree there is a reasonable probability that a different result would have occurred. Even though there is a theoretical possibility the jury could have disbelieved the confidential informant, Haagensen has not demonstrated a reasonable possibility that the jury would have disbelieved the confidential informant.[8] The State introduced evidence that the confidential informant had been searched prior to the transaction, the confidential informant had methamphetamine in his possession after the transaction, methamphetamine was found in the car being driven by Haagensen, and the money provided to the confidential informant had been found in a jacket on which Haagensen had been sitting. The State also introduced an audio recording of the transaction. The record before us does not demonstrate that Haagensens trial counsel rendered ineffective assistance.
Any Error Concerning the Cause Number on the Verdict Form Is Not Preserved for Appellate Review
In his fifth issue, Haagensen contends his conviction must be reversed because the jurys verdict form specified an incorrect cause number. This case is an appeal from cause number 23608 in the trial court. The indictment, courts charge, and judgment all specify cause number 23608. The jurys verdict form, though, specified cause number 22949.[9] Haagensen has not directed this Court to the place in the record where he objected in the trial court to the error.
As a general rule, in order to preserve a complaint for review on appeal, the claimed error must have been presented in the trial court, thereby providing the trial court the opportunity to correct any error during the course of the trial. See Tex. R. App. P. 33.1(a). The Texas Court of Criminal Appeals has held our system may be thought to contain rules of three distinct kinds: (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), modified in part by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997); see Saldano v. State, 70 S.W.3d 873, 88788 (Tex. Crim. App. 2002).
Haagensen has not presented any argument or authority that the error complained of is absolute error or waivable only error. The Beaumont Court of Appeals has held the error complained ofan incorrect cause numbercan be forfeited if not objected to. See Metcalfe v. State, No. 09-08-00256-CR, 2009 Tex. App. LEXIS 6720, at *45 (Tex. App.Beaumont Aug. 26, 2009, pet. refd) (mem. op., not designated for publication) (failure to object to incorrect cause number forfeited error).[10] We agree with the Beaumont court. By failing to object to the error in the trial court, any error has been forfeited. Nothing is preserved for appellate review. We overrule Haagensens fifth point of error.
Conclusion
The evidence is sufficient to support the jurys finding that the offense occurred in a drug-free zone. We conclude the record does not establish that Haagensen received ineffective assistance of counsel. Any error in the cause number contained in the verdict form has not been preserved for appellate review. We affirm.
Bailey C. Moseley
Justice
DISSENTING OPINION
The Legislature has determined that the penalty for some drug-related offenses are enhanced if the offense occurs in a drug-free zone. Tex. Health & Safety Code Ann. § 481.134 (Vernon 2010). To determine the location of a drug-free zone, it is necessary to examine the specific definitions of the terms as provided by the Legislature. One category involves offenses that occur near institutions of higher learning, public or private youth centers, playgrounds or public swimming pools, and video arcade facilities. Tex. Health & Safety Code Ann. § 481.134(b)(1)(2). These violations increase the punishment range for state jail felony offenses, making them punishable as third degree felonies. Another category involves higher level felonies which occur within 1,000 feet of a school or public or private playground or on a school bus. The penalty for those offenses is enhanced by increasing the minimum punishment by five years and by doubling the maximum fine. Tex. Health & Safety Code Ann. § 481.134(c). The statute provides specific definitions of Institution of higher learning, Playground, Video arcade facility, and Youth center. See Tex. Health & Safety Code Ann. § 481.134(a)(2)(3), (6)(7).
The category that the State alleged applied to this case is found in Section 481.134(d). In those instances, state jail felony offenses are punishable as third degree felonies if the offense occurs: (1) in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school. School is defined in the same statute: (5) School means a private or public elementary or secondary school or a day-care center, as defined by Section 42.002, Human Resources Code. Tex. Health & Safety Code Ann. § 481.134(a)(5). The indictment alleged the offense occurred within 1000 feet of a school, to-wit: Little Ark Preschool, Paris, Lamar County, Texas. The State made no attempt to prove that Little Ark Learning Center was a private or public elementary or secondary school and relied entirely on the alternative definition of School as including a day-care center.
Stated plainly, the State did not prove Little Ark Learning Center met all the requirements for a day-care center. A Day-care center means a child-care facility . . . . Tex. Hum. Res. Code Ann. § 42.002(7) (Vernon Supp. 2010). In turn, a Child-care facility means a facility licensed, certified, or registered by the department . . . . Tex. Hum. Res. Code Ann. § 42.002(3). There was no proof that this facility was licensed, certified, or registered.
I will be the first to acknowledge that the requirements for this proof are detailed and particularized. See Jones v. State, 300 S.W.3d 93, 99 (Tex. App.Texarkana 2009, no pet.) (jury finding drug offense occurred within 1,000 feet of playground, as defined by law, did not constitute determination offense occurred within drug-free zone under statute applicable at relevant time). For whatever reason, the Legislature only intended to include day-care facilities licensed by the State agency charged with overseeing the centers. But these specific definitions and restrictions were mandated by the Legislature, and we cannot discard the necessity for that requisite proof. The majority opinion finds that most of the evidence needed was provided (Little Ark Learning Center served more than twelve children under age fourteen for less than twenty-four hours a day) and approves the failure to produce evidence that the facility was licensed with the observation that it is unlikely the church would operate without a license. It very well may be true that the day-care center is properly licensed, but we have no evidence of that and we cannot substitute our suppositions and speculation for evidence. Further, the majority opinion shifts the burden of proof by stating, Absent testimony to the contrary, we will not assume that the First United Methodist Church was illegally operating the child care center . . . . The implication is that Haagensen must produce evidence that the center is not licensed; otherwise, the Court presumes it is.
I agree with the majority opinion that the State is required to prove the center was licensed, certified, or registered; since no such evidence is in the record, the State has failed to meet its burden of proof.
I respectfully dissent.
Jack Carter
Justice
Date Submitted: May 25, 2011
Date Decided: June 10, 2011
Publish
[1]Drugs were found in other bedrooms not used by Haagensen.
[2]Haagensen argues the evidence is legally and factually insufficient. In the Brooks v. State plurality opinion, the Texas Court of Criminal Appeals found no meaningful distinction between the legal sufficiency standard and factual sufficiency standard. Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010) (plurality decision). A plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review. Id. Since the Texas Court of Criminal Appeals has abolished factual sufficiency review, we need not address Haagensens challenge to the factual sufficiency of the evidence.
[3]Testimony by the child-care director of the facility indicates that the facility is actually called the Little Ark Learning Center, and we will refer to it that way.
[4]The State argues, The name of the premises alone may be sufficient to raise a presumption that it is a day-care center that was licensed, certified or registered by the Department. Accord Young, 14 S.W.3d at 754. We believe Young is distinguishable from this case. In Young, the Texas Court of Criminal Appeals stated, [T]he name of the premises alone may be sufficient to raise a presumption that it is a private or public elementary or secondary school. Young, 14 S.W.3d at 754 (noting State also introduced maps of drug-free zones). Young did not involve a day-care center. Under the Texas Health and Safety Code, all private and public elementary and secondary schools create drug-free zones. See Tex. Health & Safety Code Ann. § 481.134.
[5]The map used by Foreman was not introduced into evidence. There is also no evidence the map has been approved by the municipality. See Tex. Health & Safety Code Ann. § 481.135 (Vernon 2010) (drug-free-zone map approved by municipality is prima facie evidence). We note that the Texas Court of Criminal Appeals has held a map may be probative proof of the drug-free zone boundaries even if there is no evidence the map has been approved. Young, 14 S.W.3d at 754.
[6]Foreman testified he based his measurements on a map he obtained at city hall from the city engineer and by using Google Earth. We note that the Texas Health and Safety Code provides a map produced by a city engineer is admissible and prima facie evidence of drug-free zones if approved by the municipality. Tex. Health & Safety Code Ann. § 481.135. No objection was made concerning the admissibility of Foremans testimony.
[7]Haagensen does not provide any separate argument or authority explaining how the protections offered by the Texas Constitution differ from the protections guaranteed by the United States Constitution. Likewise, Haagensen does not argue that the Texas Constitution sets out a different or higher standard than the federal Constitution. Consequently, we review his claims under the federal standard. See Moore v. State, 935 S.W.2d 124, 128 (Tex. Crim. App. 1996).
[8]We note the confidential informant admitted he was on community supervision at the time of the offense and had four convictions, including two felony convictions for burglary of a habitation.
[9]Haagensen alleges on appeal that this cause number concerned another charge pending against him.
[10]Although the unpublished case has no precedential value, we may take guidance from it as an aid in developing reasoning that may be employed. Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.Amarillo 2003, pet. refd).