dissenting.
I respectfully dissent. The trial court’s action in granting the temporary injunction should be upheld.
The majority correctly states the standard for appellate review in temporary injunction cases: the trial court will be reversed only upon a clear showing of abuse of discretion. Where there is some evidence of a probable right and probable injury, there is no abuse of discretion. The record contains ample evidence of a probable right and probable injury and the trial court, therefore, did not abuse its discretion.
Appellant’s first point of error attacks the admission of testimony given by Sergeant Kessler of the Vice Division, Harris County Sheriff’s Office. When Sergeant Kessler testified that the general reputation of the Satellite Club was that it was a place of prostitution, appellant objected on the grounds that Sergeant Kessler’s opinion was based upon his personal knowledge derived from the Vice Division Records and not upon the club’s actual reputation within the community. The trial court admitted the testimony for the purposes of the temporary injunction hearing which was held without a jury. The record reflects that Sergeant Kessler’s response to the inquiry about the club’s reputation was made prior to any objection. Moreover, appellant made no more than an unsupported allegation that Sergeant Kessler’s testimony was based on the Vice Division records and not on the true general reputation of the club in the community. Appellant failed to avail himself of the opportunity to determine the true basis for Sergeant Kessler’s statement through voir dire and Sergeant Kessler made no further statement with regard thereto. Appellant attempts to supply the missing link in his argument by making the highly attenuated contention that Sergeant Kessler’s opinion must have sprung from the records of the Vice Division because those records “were not generally available” and the reputation of such an establishment in a small, quiet community such as Humble, Texas, would not be “the subject of general inquiry and community con-*368elusion . . . Such speculation and conjecture on the part of appellant surely cannot bridge the gap. If the admission of this testimony were error, we may properly assume it was disregarded by the court. Valley International Properties, Inc. v. Los Campeones, Inc., 568 S.W.2d 680 (Tex.Civ.App. — Corpus Christi 1978, writ ref’d n. r. e.). At worst, it constitutes harmless error rather than reversible error as argued by the majority. Indeed, its admission was unnecessary to support the granting of the temporary injunction.
Under his second point of error, appellant contends that there was insufficient evidence to support the court’s finding that appellant was operating a public nuisance by allowing prostitutes to ply their trade. This point of error should not be sustained. There is uncontroverted testimony in the record that Morgan was bartender and manager of the premises before he became the lessee on January 10, 1979. Prior to January 10, 1979, there had been twelve arrests for solicitation or prostitution. There is no competent evidence in the record of how many of these arrests resulted in convictions. Subsequent to the transfer of the lease on the club to appellant, two additional arrests were made. These two cases had not gone to trial as of the date of the hearing wherein this injunction was granted.
The majority appears to discount the ongoing pattern of illicit activity established during appellant’s tenure as bartender and manager, pointing out that “[n]o evidence was introduced that tended to prove that under appellant’s ownership the Satellite Club was being used for the illegal purpose of prostitution” [emphasis added]. In fact, Tex.Rev.Civ.Stat.Ann. art. 4667(a)(2) and (b) (Vernon Supp.1980), the authority under which this suit for injunction was brought, provides in pertinent part:
(a) The habitual use, actual, threatened or contemplated, of any premises, place or building or part thereof, for any of the following uses shall constitute a public nuisance and shall be enjoined at the suit of either the State or any citizen thereof:
(2) For the promotion or aggravated promotion of prostitution, or compelling prostitution;
(b) Any person who may use or be about to use, or who may be a party to the use of any such premises for any purpose mentioned in this Article may be made a party defendant in such suit.
As is apparent, one need not be the owner of the premises, but only a user or party to the use of them, to be named a defendant and enjoined from permitting the continued operation of a public nuisance. Consequently, as appellant had been the manager of the premises prior to acquiring the leasehold, evidence of arrests for solicitation on the premises during his tenure would have supported a temporary injunction at that time, evidencing his use or being a party to the use of the premises for the promotion of prostitution.
The majority appears to assume that, as appellant was not enjoined for any activities which took place at the club prior to January 10, 1979, those activities have no relevance in assessing the propriety of an injunction applicable to activities subsequent to that date. However, those prior activities, including twelve arrests for prostitution or solicitation, lend substantial support to the significance of the two arrests made subsequent to the acquisition of the leasehold by appellant, as appellant was manager of the premises when one or more of those prior arrests were made. That is to say, if the two subsequent arrests, without convictions, were the only evidence of an on-going public nuisance, those arrests might not constitute sufficient evidence and the granting of a temporary injunction based thereon could be an abuse of discretion. However, the twelve prior arrests make it evident that the two subsequent arrests were consistent with the established pattern of illicit conduct on the premises and, for purposes of a temporary injunction hearing, constitute evidence. In fact, it is substantially more evidence than is required.
Based on the assumption that the evidence of the arrests prior to January 10, 1979, were irrelevant, the majority proceeds *369in attempting to invalidate the testimony with regard to the two arrests made subsequent to that date. In so doing, the majority states, “[tjhere is nothing in the record to indicate whether the arrestees were apprehended while soliciting or while merely present at the club.” The context, however, surrounding the testimony regarding the arrests clearly indicates that the arrests were made for solicitation on the premises; otherwise, the questions, “Was Mr. Morgan present on the premises at that time?” and “So Mr. Morgan did not have any actual knowledge of what was going on at that time?” posed by appellant’s attorney would be meaningless and irrelevant.
The majority also indicates that no connection was made between the two females arrested in the club after January 10, 1979, and the club managership and that appellant was not present at the time of the arrest. However, these are not requirements of the Act. In the case of Moore v. State, 107 Tex. 490, 181 S.W. 438 (1915), our Supreme Court, in construing Tex.Rev.Civ. Stat.Ann. art. 4689 (Vernon 1911), the predecessor of article 4667, was faced with the analogous question of whether the owner of a bawdy house who in fact did not have actual knowledge of the use of the premises for said purpose, could be properly enjoined from operating that public nuisance.
The Supreme Court said:
[Ajfter a careful consideration, in the light of general principles and the statute, we are convinced that she was, at least, a proper party to the proceeding, and the issuance of an injunction running against her, as well, was therefore not unauthorized. If this had been a criminal prosecution against the owner, knowledge on her part of the unlawful use of the premises would clearly have been essential to justify conviction. But the proceeding was not of that nature. It was a civil suit for the suppression of a public nuisance by means of a civil remedy. The object of the statute would be defeated if the elements necessary to constitute the criminal offense must exist in order for it to apply. Its purpose was a broad one, and it should be given a construction which is consonant with that purpose.
With regard to the question of who may be sued under what circumstances, article 4689 differs in no material way from article 4667. Therefore, the rule remains that an owner of a bawdy house need not have actual knowledge of the use of the premises in order to be subject to this type of temporary injunction. Accord Dodd et ux. v. State, 193 S.W.2d 569 (Tex.Civ.App. — Dallas 1946, writ ref’d n. r. e.). Moreover, the owner of a leasehold estate is conceptually indistinguishable from the owner of a fee simple in this context. Therefore, the rule cited above should be made applicable to appellant.
The majority also makes light of the fact that the two arrestees have not yet been brought to trial “and until such time are presumed innocent . .” While the majority correctly states the presumption of innocence in criminal proceedings, this presumption does not render the evidence of the arrests inadmissible. The appellee need only produce some evidence of probable right and probable injury, and it is not required to establish that it will ultimately prevail in the litigation. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953); Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961). The fourteen arrests clearly constitute some evidence.
Finally, the majority, apparently as a matter of dictum, opined that all of Sergeant Kessler’s testimony with regard to the various arrests and convictions was inadmissible. The basis for this conclusion appears to be that the testimony was derived from the records of the Vice Division which had not been admitted into evidence under Tex.Rev.Civ.Stat.Ann. art. 3737e. Under the prompting of the court, the appellant objected that the proper predicate had not been laid. The testimony, reproduced in the opinion of the majority, then followed wherein, under the questioning of the court, the predicate was properly laid. *370While appellant complained to the trial court that it had “proved up what he has left out,” no proper objection was made and none was preserved in this appeal by a point of error. Therefore, any error committed by the court in this regard is waived.
Further, it cannot be maintained that this portion of Sergeant Kessler’s testimony was hearsay and no evidence at all when the records on which the testimony rested had been qualified as business records under article 3737e and so acknowledged by appellant. Indeed, appellant must have realized the impropriety of such a claim as it was not raised in any fashion in his brief.
As stated by the Supreme Court in Texas Foundries v. International Moulders & Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952):
The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion. [citations omitted] ....
The appellate court cannot substitute its discretion for that of the trial court. It has no independent discretion in reviewing such an order; its sole function is to determine whether there has been a clear abuse of discretion by the trial judge. While the trial judge in this case may have erred in his judgment . . ., it cannot be said that this record discloses an abuse of discretion by him. We held in Railroad Commission v. Shell Oil Company, supra of [146 Tex. 286, 206 S.W.2d 235], that even though the district court erred in its conclusion on the applicable substantive law, it did not follow that that court abused its discretion in granting a temporary injunction to preserve the rights of the parties pending trial on the merits.
Id. at 462-464. In reversing the trial court below and dissolving the temporary injunction as it applies to appellant, the majority has substituted its discretion for that of the trial court. Further, it is apparent that no case for abuse of discretion has been made by appellant, in accordance with the standards for so determining as set down by the Supreme Court. The only action taken by the trial court was to enjoin the commission of illegal acts. The majority concludes by saying, “While this court recognizes that the type of facility operated by Morgan may well degenerate into a disorderly house, we are bound by the rules of evidence.” Based on the foregoing, the rules of evidence do not compel dissolution of the temporary injunction, and a reasonable person could well conclude that we are faced not with the possibility of degeneration but with an accomplished fact.