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 2010-12

BMTP Holdings, L.P. v. City of Lorena ( 2010 )


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    IN THE

    TENTH COURT OF APPEALS

     

    No. 10-09-00146-CV

     

    BMTP Holdings, L.P.,

                                                                                        Appellant

     v.

     

    City of Lorena,

                                                                                        Appellee

     

       


    From the 170th District Court

    McLennan County, Texas

    Trial Court No. 2008-1516-4

     

    MEMORANDUM  Opinion

     

                BMTP Holdings, L.P. appeals the granting of the City of Lorena’s traditional motions for summary judgment, the denial of BMTP’s traditional motion for summary judgment, and the award of attorney’s fees to the City of Lorena.  BMTP sued the City of Lorena seeking a declaratory judgment that a moratorium and its progeny imposed by the City relating to permits for sewer connections did not apply to its developments, and that the City could not refuse to grant permits based on such a moratorium and an inverse condemnation cause of action alleging a regulatory taking.  The trial court granted two separate traditional motions for summary judgment in favor of the City and awarded the City its attorney’s fees.

                BMTP complains that the trial court erred by granting the City’s motion for summary judgment and by denying their competing motion on the declaratory judgment action.  BMTP further complains that the trial court erred by granting the City’s motion for summary judgment on its inverse condemnation claim.  BMTP complains that the trial court abused its discretion in the award of attorney’s fees to the City.  Because we find that the moratorium did not apply to BMTP, we reverse the judgment of the trial court in its entirety, render judgment in favor of BMTP on its declaratory judgment claim, and remand the inverse condemnation claim and the award of attorney’s fees to the trial court for further proceedings.

    Statement of Facts

                BMTP was a developer of subdivisions in and around the City of Lorena, Texas.  BMTP typically acquired and platted land, constructed infrastructure on that land, and then sold individual subdivided lots to builders or individuals who then built residences on those lots.  BMTP would generally complete this in phases, which could each last several years.  In 2003, the infrastructure of Phase IV of the South Meadows Estates was completed. 

                In early 2003, BMTP submitted a preliminary plat for Phase V to the city manager of Lorena, which included the technical details about the infrastructure that BMTP intended to construct.  After the city planner and engineers had input, the preliminary plat was reviewed by the Planning and Zoning Commission and then the Lorena City Council voted to approve the preliminary plat.  After the approval of the preliminary plat, BMTP began construction of the infrastructure, which included the necessary facilities to service each lot with water, sewer, and other utilities as well as streets, curbs, and gutters.  The sewer system was constructed by installing a line that connected to the City’s existing line and then extended a sewer tap to each lot within the subdivision to be later connected to a residence when it was constructed.

                The final plat for Phase V was submitted to the City Council for approval, and was approved by the Council’s vote on January 16, 2006.  Approval of the plat signified that the City had accepted the plat, that the plat complied with any relevant city ordinances, and that the subdivision was ready for residential construction.  Prior to the plat’s final approval, the sewer taps were required to be connected to the City’s sewer system and tested.  Before beginning construction on a residence, an application for a sewer connection was required in order to secure a residential building permit from the City.

                Although the vote approving the final plat regarding Phase V by the City Council took place on January 16, 2006, the final plat was not delivered to a representative of BMTP until June 5, 2006. The plat was recorded with the McLennan County Clerk by BMTP the same day.  When the City Manager delivered the final plat to BMTP’s representative, he informed the representative that a moratorium on the issuance of sewer taps had been adopted earlier that day, June 5, 2006.  The infrastructure had been fully completed prior to that date.  Additionally, by that time BMTP had sold fifteen of the twenty-one lots in Phase V, and all of the lots in Phase IV but one.

                The City was aware that it was having substantial capacity problems in its sewer system as early as 2003; however, the City contended that it was not until May of 2006 that they realized the depth of the problem, which led to the initial moratorium.  According to the City Manager, it was the responsibility of the City’s engineers to review the plat prior to approval and to determine, in part, that the City’s infrastructure, including its sewer capacity, was sufficient.  It was the opinion of the engineers that the sewer capacity of the City was sufficient to support the subdivision until the end of May, 2006 when the engineers informed the City that the City was operating above its capacity, and that the moratorium was needed to attempt to get the problem under control until a new sewer plant could be constructed.

    The final approval of the plat included a statement by the City Engineer that the plat conformed to the City’s subdivision ordinance and recommended approval of the final plat.  A second engineer certified that “proper engineering consideration” had been given to the plat that had been signed on June 5, 2006, which was the same day that the first moratorium was voted on by the City Council.  The plat did not become effective until it was recorded with the County Clerk of McLennan County, which was on June 5, 2006.

                The City’s moratorium was adopted by an ordinance on its second reading on June 12, 2006 to prevent the connection of any new residential or commercial buildings to the City’s sewer system for a period of 120 days.  During the 120 days, the City agreed to exempt from the moratorium the fifteen lots in Phase V that had either been sold or were under contract to be sold by BMTP as of June 5, 2006.  The original moratorium was extended and reworded at various times until November 17, 2008, when it was repealed and replaced by a new moratorium that was in large part substantively the same as the prior moratoriums. 

                On April 24, 2008, BMTP filed a declaratory judgment action against the City of Lorena seeking a declaration that the City’s moratorium in effect at that time did not apply to Phase V; that the City could not enforce the moratorium as to the lots in Phase V because they were previously approved for development; and that the City could not deny building permits for the remaining lots in Phase V due to the moratorium.[1]

                BMTP filed a motion for summary judgment and the City filed a plea to the jurisdiction, both of which were denied by the trial court.  The City then filed a traditional motion for summary judgment. BMTP responded to the City’s motion, filed a motion to reconsider the denial of its motion for summary judgment, and amended its petition to include an inverse condemnation cause of action.  The trial court granted the City’s motion for summary judgment and denied BMTP’s motion to reconsider the trial court’s prior denial of its motion for summary judgment.  The City filed another motion for summary judgment based on the inverse condemnation claim, which the trial court also granted.  The trial court also awarded the City its attorney’s fees.

    Standard of Review

    Both parties’ motions for summary judgment sought judgments that would declare the parties’ rights pursuant to the declaratory judgment actions.  We review declaratory judgments under the same standards as other judgments.  See Tex. Civ. Prac. & Rem. Code Ann. § 37.010 (Vernon 2008).  We look to the procedure used to resolve the issue before the trial court to determine the standard of review on appeal.  City of Galveston v. Tex. Gen. Land Office, 196 S.W.3d 218, 221 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).  When a trial court resolves a declaratory judgment action on competing motions for summary judgment, we review the propriety of the declaratory judgment using the same standards that we follow in reviewing a summary judgment.  Id.

    We review a trial court’s decision to grant or to deny a motion for summary judgment de novo.  See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192, 199 (Tex. 2007) (citing rule for review of grant of summary judgment and reviewing denied cross-motion for summary judgment under same standard).  Although a denial of summary judgment is not normally reviewable, we may review such a denial when both parties move for summary judgment and the trial court grants one motion and denies the other.  Id. at 192.  In our review of such cross-motions, we review the summary judgment evidence presented by each party, determine all questions presented, and render the judgment that the trial court should have rendered.  Tex. Mun. Power Agency, 253 S.W.3d at 192 (citing Comm’rs Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)).

    Under the traditional summary judgment standard, the movant has the burden to show that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985).  If the order granting the summary judgment does not specify the grounds upon which judgment was rendered, we must affirm the summary judgment if any of the grounds in the summary judgment motion is meritorious.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

    Local Government Code Chapter 212

                BMTP complains that the trial court erred by granting the City’s motion for summary judgment and denying its motion for summary judgment because chapter 212 of the Local Government Code prohibits the imposition of a moratorium on its property that had already been approved for development prior to the imposition of the original moratorium.

                Under section 212.135 of the Local Government Code, a municipality has the power to institute a moratorium on property development if it demonstrates a “need to prevent a shortage of essential public facilities.”  Tex. Loc. Gov’t Code Ann. § 212.135(a) (Vernon 2008).  Sewer facilities are included in public facilities.  Tex. Loc. Gov’t Code Ann. § 212.131(1) (Vernon 2008).  Property development is defined as “the construction, reconstruction, or other alteration or improvement of residential or commercial buildings or the subdivision or the replatting of a subdivision of residential or commercial property.”  Tex. Loc. Gov’t Code Ann. § 212.131(3) (Vernon 2008). 

                In order to impose a moratorium on property development to prevent a shortage of essential public facilities, certain written findings must be included by the municipality, one of which is a summary of “evidence demonstrating that the moratorium is reasonably limited to property that has not been approved for development because of the insufficiency of existing essential public facilities.”  Tex. Loc. Gov’t Code Ann. § 212.135(b)(2)(B) (Vernon 2008).

                BMTP contends that the approval of their plats constituted “property development” pursuant to section 212.131, and that the moratorium therefore did not, and could not, apply to sewer connections on any of the vacant lots in their approved subdivisions pursuant to the restriction in section 212.131(b)(2)(B) that excludes property that has been approved for development.  The City contends that BMTP’s scope of approved property development is too broad and that once BMTP completed all of the property development that it was permitted to complete, which was the subdivision and infrastructure only, additional approval was required separate and apart from that to develop the property further, including connections to the sewer system.  According to the City, once the subdivision was complete according to the approved plat, then BMTP’s property development that was approved was completed and the City could institute a moratorium to prevent additional development of that property.

                Prior to the amendment of the statute in 2005, “property development” was defined in section 212.131 of the Local Government Code as “the construction of residential buildings.”  See Acts 2001, 77th Leg., ch. 441, effective September 1, 2001; amended by Acts 2005, 79th Leg., ch. 1321 (H.B. 3461), § 1, effective September 1, 2005.  The statute was amended in 2005 to add other types of residential development as well as commercial development into the definition of “property development.” The City contends that the statute should be read to contain two separate types of property development; the first being the “construction, reconstruction, or other alteration or improvement of residential or commercial buildings,” and the second, “the subdivision or replatting of a subdivision of residential or commercial property.”  The City further contends that each of the two types of development is separate and distinct for purposes of determining whether property has been “approved for development.”  See Tex. Loc. Gov’t Code Ann. § 212.135(b)(2)(B) (Vernon 2008). 

    Neither party has cited to, nor have we found any authority regarding the scope of chapter 212.  We find that the definition of “property development” includes the full range of development contemplated by section 212.131(3) and that it does not describe each of the component parts separately and distinctly from the others. 

    This construction of section 212.131(3) is similar to the application of the term “project” in Chapter 245 of the Local Government Code, which regulates the issuance of permit applications.  See Tex. Loc. Gov’t Code Ann. Ch. 245 (Vernon 2005).  The term “project” in Chapter 245 has been held to encompass the entire development process from the preliminary plat to the construction of a structure within the subdivision, which does not change unless the scope of the “project” changes, regardless of changes in ownership.  See Hartsell v. Town of Talty, 130 S.W.3d 325, 328-29 (Tex. App.—Dallas 2004, pet. denied).  Chapter 245 contemplates that more than one permit is required to complete a project, but the project includes the entire process, not the discrete components.  The definition of “property development” is similarly broad and includes the entire process from platting to finishing construction of infrastructure and buildings.

                We hold that the trial court erred by granting the City’s motion for summary judgment based on Subchapter E of Chapter 212 of the Local Government Code.  Further, we find that the trial court erred by denying BMTP’s motion for summary judgment to make the declarations as prayed for by BMTP.  BMTP was entitled to the following declarations:

    (1) Under Chapter 212 of the Local Government Code, any moratorium currently in effect on the issuance of sewer taps within the City of Lorena and its extraterritorial jurisdiction does not apply to any of the lots contained in South Meadows Estates, because South Meadows Estates was approved for development before the adoption of these moratoriums;

     

    (2) The City shall not enforce the current moratorium or any extension thereof to the lots contained in South Meadows Estates because those lots have already been approved for development;

     

    (3) The City shall not deny building permits for the remaining lots in South Meadows Estates based upon any existing moratorium.

     

    By this holding, we express no opinion as to whether the City has the ability to deny a permit for reasons other than the moratorium or BMTP’s damages, if any, that might be related thereto.  We sustain issue one.  We sustain issue two solely on the basis of subchapter 212.  Because we have determined that Phase V was not subject to the moratorium pursuant to chapter 212, we do not reach the issues of whether or not the moratoriums were enacted in conformance with the requirements of chapter 212 or whether chapter 245 applies.

    Inverse Condemnation

                 BMTP complains that the trial court erred by granting the City’s motion for summary judgment based on BMTP’s inverse condemnation claim.  BMTP alleged in its petition that the moratorium constituted a taking pursuant to article I, section 17 of the Texas Constitution.  Tex. Const. art. I, § 17.  The City’s motion for summary judgment sought a finding that as a matter of law the moratorium could not constitute a compensable taking. 

    A taking may be either physical or regulatory.  Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998).  A compensable regulatory taking occurs if: (1) the governmental regulations deprive a property owner of all economically viable use of the property or totally destroys the property’s value; or (2) the governmental restrictions unreasonably interfered with BMTP’s rights to use its property.  See id. We are to conduct an essentially “ad hoc, factual inquir[y]” using the following guiding factors: (1) the economic impact of the regulation on BMTP; (2) the extent to which the regulation has interfered with BMTP’s reasonable investment-backed expectations; and (3) the character of the City’s action.  Sheffield Dev. Co. v. City of Elgin Heights, 140 S.W.3d 660, 672 (Tex. 2004).  In addition to these factors, which are generally referred to as the Penn Central factors, we should consider all relevant attendant circumstances as well.  Penn Central Transport Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978); Hallco Tex., Inc v. McMullen County, 221 S.W.3d 50, 56 (Tex. 2006).

    We note that, based on the precedent of the Texas Supreme Court in Sheffield, the burden required in the factual allegations presented by BMTP is a high one.  Id.  Sheffield complained that a temporary moratorium constituted a compensable taking but the Court disagreed.  Sheffield also related to a purchaser of property who purchased the property relying on certain zoning standards then in effect, who had extensive contacts with City officials regarding his plans for the development, and who was similarly, as the Court put it, “blindsided” by the City’s moratorium.  See Sheffield Dev. Co., 140 S.W.3d at 678.  However, while the Court did not approve of the City’s methods in Sheffield, the Court nevertheless found that there was not a constitutionally compensable taking, either for the change in zoning or for the temporary moratorium. 

    In Sheffield, however, there was not a challenge to the ability of the City to impose the moratorium.  Sheffield Dev. Co., 140 S.W.3d at 679.  In this case, however, the City’s motion for summary judgment on the inverse condemnation action was premised upon the application of the moratorium to BMTP.  Therefore, we believe that the judgment entered on the inverse condemnation cause of action must also be reversed and remanded because of our finding that the moratorium did not apply to BMTP’s lots.  We sustain issue three.

    Attorney’s Fees

    BMTP complains that the trial court abused its discretion by awarding attorney’s fees to the City and denying its request for attorney’s fees pursuant to the Uniform Declaratory Judgment Act.  Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 2008).  Section 37.009 allows for the recovery of attorney’s fees that are reasonable and necessary as well as equitable and just.  Id.  Because we have determined that the trial court erred by granting the City’s motion for summary judgment and by denying BMTP’s motion for summary judgment, we reverse the award of attorney’s fees to the City and remand that issue to the trial court for a determination of whether attorney’s fees should be awarded and to which party, if any.  See State Farm Lloyds v. Borum, 53 S.W.3d 877, 894-95 (Tex. App.—Dallas 2001, pet. denied) (reversing and remanding “because the record does not reflect the trial court’s reasons for its award of fees to [the prevailing party], there is no evidence to indicate whether the trial court’s award of fees would also be equitable and just in light of our opinion in this case.”).  We sustain issue four.

    Conclusion

                We find that the trial court erred by granting the City’s motions for summary judgment and by denying BMTP’s motion for summary judgment based on the declaratory judgment action.  We reverse and render judgment in favor of BMTP on its declaratory judgment action.  We reverse and remand the inverse condemnation claim to the trial court for further proceedings.  We find that the award of attorney’s fees should be reversed and remanded to the trial court for further proceedings in accordance with this opinion.

     

                                                                            TOM GRAY

                                                                            Chief Justice

     

    Before Chief Justice Gray,

                Justice Davis, and

                Judge Sowder[2]

    Reversed and rendered in part; reversed and remanded in part

    Opinion delivered and filed December 22, 2010

    [CV06]


    [1] The petition seeking the declaratory judgment was later amended by BMTP to include all of South Meadows Estates, which included Phase IV.

    [2] The Honorable William C. Sowder, Judge of the 99th District Court of Lubbock County, sitting by assignment of the Chief Justice of the Supreme Court of Texas pursuant to section 74.003(h) of the Government Code.  See Tex. Gov’t Code Ann. § 74.003(h) (Vernon 2005).

    ermined that Salas initiated subsequent communication with the police. We hold that the court did not abuse its discretion.

          Our next determination is whether Salas’ waiver of his right to counsel was voluntary. A suspect may waive his constitutionally-protected rights if he does so knowingly, voluntarily, and intelligently. Carroll v. State, 975 S.W.2d 630, 632 (Tex. Crim. App. 1998). A suspect’s voluntary waiver of counsel must constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege. Edwards, 451 U.S. at 483, 101 S. Ct. at 1884. Woodruff read Salas his Miranda rights and had him initial a written copy before Salas gave his second and third statements. Woodruff also had Salas read and review his statements before he signed them and had a witness present to verify that Salas signed his statements voluntarily. The trial court was in the best position to determine the credibility of the witnesses and chose to believe Woodruff. We hold that the trial court did not abuse its discretion when it held that Salas voluntarily waived his right to counsel under the Fifth Amendment.

          Salas next claims that Woodruff’s promise that he would not have to take a second polygraph examination if he gave another statement rendered his subsequent statements involuntary. A promise renders a suspect’s confession involuntary if the promise: (1) was positive; (2) was of some benefit to the suspect; (3) was made or sanctioned by someone in authority; and (4) was of such an influential nature that a defendant would speak untruthfully in response thereto. Davis v. State, 961 S.W.2d 156, 159 (Tex. Crim. App. 1998); Blanks v. State, 968 S.W.2d 414, 421 (Tex. App.—Texarkana 1998, pet. ref’d). Whether a promise renders a suspect’s confession involuntary is determined by the totality of the circumstances. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997).

          Salas does not detail why Woodruff’s alleged promise of no further polygraph examinations would be enough to render his confession involuntary. Even assuming that Woodruff did make such a promise to Salas, this promise does not render a benefit to Salas nor is it so influential that it would render his consent involuntary. The trial court held that the promise that Salas would not have to take a second polygraph examination was not a promise that would induce him to make a false statement. We hold that the trial court did not abuse its discretion.

          Salas further claims that the police also violated his right to counsel under the Sixth Amendment when they allegedly initiated subsequent communication with him after he told the police that he wanted to speak to his attorney. A suspect’s right to counsel under the Sixth Amendment is offense-specific and attaches when adverse judicial proceedings have been initiated against the suspect. Brewer v. Williams, 430 U.S. 387, 398, 97 S. Ct. 1232, 1239, 51 L. Ed. 2d 424 (1977); Green v. State, 934 S.W.2d 92, 97 (Tex. Crim. App. 1996). Actions which mark the initiation of adverse judicial proceedings include the filing of an indictment, filing an information and complaint, an Article 15.17 “warning hearing” where an arrest warrant was present, a preliminary hearing, and an arraignment. McFarland v. State, 928 S.W.2d 482, 507 (Tex. Crim. App. 1996); Green v. State, 872 S.W.2d 717, 719 (Tex. Crim. App. 1994); Neumuller v. State, 953 S.W.2d 502, 514 (Tex. App.—El Paso 1997, pet. ref’d). An arrest alone does not trigger adverse judicial proceedings, either with or without a warrant. McFarland, 928 S.W.2d at 507; Green, 872 S.W.2d at 720; see also Nichols v. State, 754 S.W.2d 185, 190 (Tex. Crim. App. 1988) (arrest and subsequent questioning does not initiate adverse judicial proceedings); Neumuller, 953 S.W.2d at 513 (holding that arrest and questioning of a person does not trigger the Sixth Amendment).

          Salas had been arrested and was in custody when he gave his second and third statements on September 19, 1996. However, he was not indicted for the two offenses until November 20, 1996, and he subsequently waived arraignment on December 5, 1996. We hold that Salas’ right to counsel under the Sixth Amendment had not attached when he gave his second and third statements.

          We overrule Salas’ first through twelfth and twenty-fifth through thirty-sixth issues.

    MOTION FOR NEW TRIAL

          Salas’ thirteenth through twenty-fourth issues claim that the trial court erred when it denied his motion for new trial because his second and third statements were obtained in violation of his right to counsel under the Fifth, Sixth, and Fourteenth Amendments.

          We review the trial court’s denial of a motion for new trial under an abuse of discretion standard. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). As was discussed previously, Salas’ right to counsel under the Fifth Amendment was not violated and his right to counsel under the Sixth Amendment had not attached. Therefore, the trial court did not abuse its discretion when it denied Salas’ motion for new trial.

          We overrule Salas’ thirteenth through twenty-fourth issues.

    LEGAL AND FACTUAL SUFFICIENCYWhen conducting a legal sufficiency review, we review the evidence in the light most favorable to the prosecution and determine whether, based on that evidence and all reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Weightman v. State, 975 S.W.2d 621, 624 (Tex. Crim. App. 1998).

          When conducting a factual sufficiency review we must view the evidence without the prism of “in the light most favorable to the prosecution” and set aside the verdict only if the verdict is so contrary to the overall weight of the evidence to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We must review all of the evidence and consider it as a whole, not just viewing it in the light most favorable to the other party. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). When performing our review, we must give due deference to the fact finder’s assessment of the weight and credibility of the evidence in order not to act as the “thirteenth juror.” Calhoun v. State, 951 S.W.2d 803, 810 (Tex. App.—Waco 1997, pet. ref’d).

          Salas’ thirty-seventh and thirty-eighth issues claim that the evidence is legally and factually insufficient to support his aggravated robbery conviction because the State failed to establish that Colunga sustained “serious bodily injury.”

          A defendant commits aggravated robbery if he: (1) commits a robbery and (2) causes serious bodily injury to another. Tex. Pen. Code Ann. § 29.03(a)(1) (Vernon 1998). “Serious bodily injury” is defined as bodily injury which “creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex. Pen. Code Ann § 1.07(a)(46) (Vernon 1998). The determination of whether an injury constitutes “serious bodily injury” must be determined upon a case-by-case basis. Hernandez v. State, 946 S.W.2d 108, 111 (Tex. App.—El Paso 1997, no pet.); Madden v. State, 911 S.W.2d 236, 244 (Tex. App.—Waco 1995, pet. ref’d). In order to establish “serious bodily injury,” the State must prove that the injury was life-threatening, that it was so grave or serious that it must be regarded as differing in kind from other bodily harm, and that a consequence of the injury is that it created a substantial risk of death. Moore v. State, 739 S.W.2d 347, 352 (Tex. Crim. App. 1987).

          The State presented Dr. Ciarochi, Colunga’s treating physician, who testified that when Colunga arrived by care-flight, his head was completely swollen and he had a large laceration over his left temple. Dr. Ciarochi further testified that Colunga had to be intubated and placed on a ventilator because he was unable to breathe on his own. Dr. Ciarochi testified that when Colunga arrived, he was given a Glascow coma score of three, on a scale of one through fifteen. Colunga’s score of three indicated that he was completely unconscious and not responsive to any stimuli. Dr. Ciarochi testified that as a result of Salas’ attack, Colunga remained in intensive care for eleven days before he was eventually discharged from the hospital. The State, after reading the definition for “serious bodily injury,” asked Dr. Ciarochi if Colunga sustained serious bodily injury as a result of Salas’ attack. Dr. Ciarochi testified “Yes.” This testimony was uncontroverted by Salas. Dr. Ciarochi’s testimony that Colunga’s injuries created a substantial risk of death as a result of Salas’ attack is sufficient to establish that Colunga sustained “serious bodily injury.” See Fancher v. State, 659 S.W.2d 836, 838 (Tex. Crim. App. 1983) (doctor’s testimony that victim’s injuries “serious” and fact that victim was hospitalized for nine days and had to have extensive surgery sufficient to establish “serious bodily injury”); Boney v. State, 572 S.W.2d 529, 532 (Tex. Crim. App. [Panel Op.] 1978) (doctor’s testimony that victim’s wound could cause a substantial risk of death sufficient to establish “serious bodily injury”); Dusek v. State, 978 S.W.2d 129, 133 (Tex. App.—Austin 1998, pet. ref’d) (doctor’s testimony supported finding of “serious bodily injury”); Barrera v. State, 820 S.W.2d 194, 196 (Tex. App.—Corpus Christi 1991, pet. ref’d) (doctor’s testimony that injuries created substantial risk of death sufficient to establish “serious bodily injury”).

          We overrule Salas’ thirty-seventh and thirty-eighth issues.

          Salas’ fortieth and forty-first issues claim that the evidence is legally and factually insufficient to support his robbery conviction because it is based upon the uncorroborated testimony of Anita Courson, an accomplice as a matter of law.

          The test to determine whether a witness is an accomplice as a matter of law is whether there is evidence in the record to support a charge against the witness, regardless whether the witness is actually charged and prosecuted for her participation in the offense. Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998). If a witness is an accomplice as a matter of law, her testimony must be corroborated by other evidence which tends to connect the defendant with the offense committed. Tex. Code. Crim. Proc. Ann. art. 38.14 (Vernon 1998). In order to determine the sufficiency of the corroborative evidence, the accomplice witness testimony is eliminated from consideration and the remaining evidence is examined to ascertain if there is some evidence which tends to connect the defendant with the commission of the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997). The non-accomplice corroborative evidence does not need to establish the defendant’s guilt beyond a reasonable doubt, nor does it need to directly link the defendant to the commission of the offense. Id.; Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). The evidence must only tend to connect the defendant with the offense committed. Hernandez, 939 S.W.2d at 176; Gill, 873 S.W.2d at 48.

          Salas claims that because Courson assisted him in discarding Juarez’s wallet, remained in the car after the robbery, and is married to the driver of the car that she is an accomplice witness as a matter of law. Salas does not deny that Courson did not participate in the actual robbery. Therefore, Courson can only be an accomplice witness as a matter of law if she can be prosecuted under the law of the parties for her participation in the offense. A person is criminally responsible as a party to the offense if she, acting with intent to promote or assist the commission of the offense, solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 1998). Mere presence at the scene of an offense is not sufficient to support a conviction under the law of the parties but it is a factor to be considered when determining whether one was a participant. Patterson v. State, 950 S.W.2d 196, 202 (Tex. App.—Dallas 1997, pet. ref’d). The extent of Courson’s participation in the robbery of Juarez was limited at best—she threw Juarez’s wallet out of the car window. She did not drive Salas to the scene of the robbery; nor did she help plan the robbery; nor did she share the proceeds of the robbery with Salas. The record does not support that Courson had the requisite intent to promote or assist the robbery. Therefore, Courson was not an accomplice as a matter of law.

          We overrule Salas’ fortieth and forty-first issues.

    OPENING STATEMENT

          Salas’ thirty-ninth issue claims that the trial court erred when it overruled his objection to the State’s opening statement because the State speculated on the reason that Colunga would not be present to testify and failed to present any evidence in support of their speculation. Specifically, Salas complains about the following exchange:

    PROSECUTOR:We believe the evidence is going to show you further that this defendant, . . . walked up on a fellow by the name of Mr. Ismael Colunga, who unfortunately is not going to able (sic) to testify here today because of the severity of the injuries that he sustained and that they beat him.

     

    We believe the evidence is going to show you he sustained a very, very, very serious beating that has basically left him . . .

     

    SALAS: Judge, I’m going to object. He’s testifying. If Mr. Colunga is not going to be here, how do we know the severity of his injuries. I believe . . .

     

    COURT: I assume the State is relating that they anticipate what the testimony is going to show, and I’ll let him do that.

     

          Salas objected at trial that the State was speculating as to the severity of Colunga’s injuries and whether he actually sustained “serious bodily injury” as required for aggravated robbery. However, on appeal Salas complains that the State failed to prove the causal connection between Colunga’s failure to testify and the severity of his injuries. Salas’ argument on appeal does not comport with his objection at trial. An objection at trial stating one legal basis may not be used to support a different legal theory on appeal. Curry v. State, 910 S.W.2d 490, 495 (Tex. Crim. App. 1995); Burks v. State, 876 S.W.2d 877, 908 (Tex. Crim. App. 1994). We hold that Salas did not make the same objection at trial as he does on appeal. Therefore, we find that he did not preserve error. Burks, 876 S.W.2d at 908. However, we will address his argument in the interest of justice.

          A State’s opening statement should tell the jury the nature of the charges against the defendant and the facts that it expects to prove in support of those charges. Tex. Code Crim. Proc. Ann. art. 36.01 (Vernon 1998); Taylor v. State, 947 S.W.2d 698, 706 (Tex. App.—Fort Worth 1997, pet. ref’d). It is not error for the State to tell the jury in its opening statement what it expects to prove, even if it does not offer such proof at trial. Matamoros v. State, 901 S.W.2d 470, 475 (Tex. Crim. App. 1995). The State claimed that it would show that Colunga sustained “serious bodily injury” as a result of Salas’ attack and it did. As stated earlier in this opinion, the State presented the testimony of Dr. Ciarochi who testified that when Colunga arrived at the hospital, he was unresponsive and was placed on a ventilator. Further, the State asked Dr. Ciarochi whether Colunga sustained “serious bodily injury,” as described by section 1.07 of the Texas Penal Code, and Dr. Ciarochi responded “Yes.” The State presented evidence that Colunga sustained serious injuries from Salas’ attack. Therefore, the State’s opening statement was proper. Id.; see also Hullaby v. State, 911 S.W.2d 921, 927-28 (Tex. App.—Fort Worth 1995, pet. ref’d) (holding that error was removed from State’s opening statement when evidence admitted to support State’s position during opening statement).

          We overrule Salas’ thirty-ninth issue.

    INEFFECTIVE ASSISTANCE OF COUNSEL

          A. Ineffective Assistance of Counsel During Guilt-Innocence Phase

          Salas’ forty-second, forty-fourth, and fiftieth through fifty-seventh issues claim that his trial counsel’s failure to object to the State’s improper remarks during closing argument in the guilt-innocence phase of his trial and his waiver of Salas’ Fifth and Sixth Amendment objections to the admission of his second and third statements amounted to ineffective assistance of counsel.

          A claim of ineffective assistance of counsel at the guilt-innocence phase requires a defendant to show that: (1) counsel’s performance was deficient to the extent that counsel failed to function as the “counsel” guaranteed by the Sixth Amendment and (2) that counsel’s deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In order to show prejudice, the defendant must show that there is a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997); Chambers v. State, 903 S.W.2d 21, 32 (Tex. Crim. App. 1995). The defendant has the burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

          Our review of a claim of ineffective assistance of counsel is highly deferential. Strickland, 46 U.S. at 689, 104 S. Ct. at 2065; McFarland, 928 S.W.2d at 500. We must indulge a strong presumption that counsel’s conduct falls within a wide range of reasonable representation and that the challenged action might be considered sound trial strategy. McFarland, 928 S.W.2d at 500; Jackson, 877 S.W.2d at 771. The defendant must affirmatively prove that the acts or omissions alleged to constitute ineffective assistance of counsel fall below the professional norms for reasonableness. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; McFarland, 928 S.W.2d at 500. After proving error, the defendant must affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693, 104 S. Ct. at 2067; McFarland, 928 S.W.2d at 500. Counsel’s error, even if professionally unreasonable, does not warrant setting the conviction aside if counsel’s error had no effect on the judgment. Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. The defendant must prove that counsel’s errors, judged by the totality of representation and the totality of the evidence before the jury, denied him a fair trial. McFarland, 928 S.W.2d at 500. If the defendant fails to make the required showing of either deficient performance or prejudice, his claim must fail. Id.

          Specifically, Salas’ forty-second and forty-fourth issues complain about counsel’s failure to object to the following exchange:

    PROSECUTOR:What else did we bring you? We brought you Anthony Valles. Anthony is a young man. Anthony probably never thought back on August 25th or 26th when he gave Todd Woodruff that statement, he never thought about the fact that he was going to have to come in here and face this animal.

     

    As far as I’m concerned, that’s just what he and Joe Castillo and Samson Maldonado are. They’re animals. They’re animals that need to be caged. But Anthony told what he saw. He didn’t say anywhere in that statement that – y’all are free, by the way, to take this back there with you and you’re free to take these photographs back there with you and I suggest you do if you want to.

     

    *******************************

     

    There’s no testimony in the trial that this man here (Juarez) or Castillo or Salas – or Samson Maldonado knew either one of these victims. They just happened to pick them out. And those same victims could have been you, your spouse, could have been some of your kids.

     

    This animal and his friends are roaming around here in Ellis County, and it’s my job to bring them up here and present the evidence to you.


          Proper jury argument must be confined to four permissible areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to the arguments of opposing counsel; and (4) pleas for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996); Davila v. State, 952 S.W.2d 872, 878-79 (Tex. App.—Corpus Christi 1997, pet. ref’d). When the State’s jury argument falls outside these areas, error occurs and an instruction to disregard the argument generally cures the error. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995).

          The Court of Criminal Appeals generally disapproves of the State’s characterization of a defendant as an “animal” during its closing arguments, but whether such argument requires reversal is determined upon a case-by-case basis. See Tompkins v. State, 774 S.W.2d 195, 218 (Tex. Crim. App. 1987). Assuming Salas’ counsel had objected to the State’s characterization of Salas as an “animal” and the trial court sustained the objection, the trial court would have likely cured any harm by giving an instruction to the jury to disregard. See Dinkins, 894 S.W.2 at 357; see also Giesen v. State, 688 S.W.2d 176, 178 (Tex. App.—Dallas 1985, pet. ref’d) (holding that trial court’s instruction to disregard cured any error resulting from State’s closing argument in which it referred to defendant as “one of the animals”).

          Further, Salas has not affirmatively proven that he was prejudiced by these remarks as required by the second prong of Strickland. Looking at the totality of the evidence presented by the State—Salas’ three written confessions and the testimony of Castillo, Courson, Valles, and Woodruff—it is unlikely that the State’s remarks during closing arguments persuaded the jury to convict Salas. Rather, the State’s presentation of strong evidence, pointing to Salas’ guilt, was responsible for his conviction.

          We overrule Salas’ forty-second and forty-fourth issues.

          Salas’ fiftieth through fifty-seventh issues claim that his counsel’s waiver of his Fifth and Sixth Amendment objections to the admission of his second and third written statements amounted to ineffective assistance of counsel. As mentioned previously under issues one through thirty-six, Salas’ right to counsel under the Fifth and Sixth Amendments was not violated. Therefore, if Salas’ right to counsel under the Fifth and Sixth Amendments was not violated, then he can not have a valid ineffective assistance of counsel claim for the alleged waiver of these objections.

          We overrule Salas’ fiftieth through fifty-seventh issues.

          B. Ineffective Assistance of Counsel During Punishment Phase

          Salas’ forty-third and forty-fifth through forty-seventh issues claim that his trial counsel’s failure to object to the State’s improper remarks during closing arguments when the State characterized him as an “animal” and a “scumbag” amounted to ineffective assistance of counsel. The Court of Criminal Appeals recently held that Strickland applies to the punishment phase of a noncapital case. Hernandez v. State, No. 506-97, 1999 WL 212791 (Tex. Crim. App. April 14, 1999). As mentioned previously, Strickland requires a defendant to show that: (1) counsel’s performance was deficient to the extent that counsel failed to function as the “counsel” guaranteed by the Sixth Amendment and (2) counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Jackson, 877 S.W.2d at 771. Under Duffy and its progeny, the standard for punishment phase proceedings was whether the defendant received “reasonably effective assistance of counsel.” Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997) (citing Ex parte Duffy, 607 S.W.2d 507, 516 (Tex. Crim. App. 1980)). When utilizing Duffy, the defendant did not have to show prejudice as a result of counsel’s ineffective assistance at the punishment phase, as required under the second prong of Strickland. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). However, a defendant must now show both counsel’s deficient performance and that counsel’s deficient performance prejudiced the defense for an ineffective assistance of counsel claim during the punishment phase. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Hernandez, 1999 WL 212791.

          Specifically, Salas complains about the following remarks:

    PROSECUTOR:If a man could have someone permanently mentally impaired for the rest of his life, is that worth probation? I don’t like it, but I’ll say Ellis County juries think that is worth probation; so the next scumbag that comes in here and half beats someone to death, I’ll say just give him probation. I don’t think that’s what you want, and I don’t think I’d be doing my job if I did that.


    *******************************

     

    Probation? I don’t see it. I think this is a time for retribution or punishment certainly to protect the rest of us from John Salas. I told you he’s an animal. I still think he is. Unfortunately the punishment he should get ain’t available. I ask you to consider that this case – how could it get any worse?


          Although the State’s characterization of a defendant as an “animal” is discouraged, whether it requires reversal is determined upon a case-by-case basis. See Tompkins, 774 S.W.2d 195. If we were to assume that the trial court would have sustained Salas’ objections to the State’s remarks, the trial court could have likely cured the error by giving the jury an instruction to disregard. See Dinkins, 894 S.W.2d at 357; Tompkins, 774 S.W.2d at 218; Giesen, 688 S.W.2d at 178.

          We overrule Salas’ forty-third and forty-fifth through forty-seventh issues.

          Salas’ forty-eighth and forty-ninth issues claim that his trial counsel’s failure to object to the State’s improper remarks during closing arguments in the punishment phase of his trial amounted to ineffective assistance of counsel because the remarks were an improper comment on his failure to testify during the punishment phase because the State commented on his lack of remorse.

          The State cannot comment on a defendant’s failure to testify. Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1998); Vaughn, 931 S.W.2d at 572. Although Salas testified during the guilt-innocence but not the punishment phase of his trial, the State is prohibited from commenting on his failure to testify during the punishment phase. See Swallow v. State, 829 S.W.2d 223, 226 (Tex. Crim. App. 1992) (State’s comments on defendant’s lack of remorse during punishment phase were an improper comment on defendant’s failure to testify during the punishment phase even though defendant testified during guilt-innocence phase). In order to qualify as a comment on the defendant’s failure to testify, the State’s language, viewed from the jury’s standpoint, must refer to evidence which can only come from the defendant. Goff v. State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996); Swallow, 829 S.W.2d at 225. When there is no evidence of the defendant’s lack of remorse and the State comments upon it, the State’s comment would naturally and necessarily be a comment on the defendant’s failure to testify because only the defendant can testify as to his remorse. Swallow, 829 S.W.2d at 225; Oliva v. State, 942 S.W.2d 727, 734 (Tex. App.—Houston [14th Dist.] 1997, pet. dism’d). However, if evidence in the record supports the State’s comments, then there is no error. See Davis v. State, 782 S.W.2d 211, 222-23 (Tex. Crim. App. 1989) (when record contains evidence that supports the State’s comment that defendant did not show any remorse, no error and proper summation of the evidence); Roberts v. State, 923 S.W.2d 141, 145 (Tex. App.—Texarkana 1996, pet. ref’d) (when record contains evidence that demonstrates defendant’s lack of remorse at the scene of the crime or outside the trial setting, the State’s comments were not improper comments on failure to testify but a summation of the evidence); Richards v. State, 912 S.W.2d 374, 382 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d) (State’s comments that non-testimonial demeanor of defendant indicated no remorse was a proper summation of the evidence because record contained evidence that supported comments).

          Specifically, Salas complains about the following remarks:

    PROSECUTOR:. . . I would feel insulted – to turn around and ask for probation. I tell you what probation is for. Probation is when somebody comes up here and shows you some remorse. And sitting in this chair right here, the only, quote, remorse I heard was when I asked him, was he ashamed of what he did or was he proud of what he did. You remember what he said? Little bit. And I probably shouldn’t have done it, but I said, are you ashamed about that much or are you ashamed of it this much? There hasn’t been any remorse shown by this defendant, not one bit.


          During the State’s cross-examination, Salas denied attacking either victim and testified that his accomplices were responsible for the attacks. However, Salas admitted that he did not attempt to help either victim after they were attacked, nor did he call an ambulance for either victim. Salas also admitted that he drove off with his accomplices and left Colunga laying on the ground in the dirt and blood. Salas also admitted during cross-examination that he was not surprised when Castillo and Maldonado beat up the two victims and that he “cared a little bit.”

          The State’s comment during closing arguments of the punishment phase of the trial referenced Salas’ specific testimony in the guilt-innocence phase of his trial. The State did not comment upon testimony that Salas failed to give or upon testimony that was noticeably absent and could only come from Salas. Instead, the State commented upon testimony that Salas gave in which he admitted that he did not have much remorse for the commission of the offenses. The State commented upon Salas’ own statements. Therefore, the State’s comment during the punishment phase of the trial was a summation of the evidence that was supported by the record. Salas’ counsel’s failure to object to the State’s proper closing argument is not error and accordingly, does not amount to ineffective assistance of counsel.

          We overrule Salas’ forty-eighth and forty-ninth issues.

          For the reasons stated, we affirm the trial court’s judgment.

                                                                                   REX D. DAVIS

                                                                                   Chief Justice

    Before Chief Justice Davis

          Justice Cummings (not participating)

          Justice Vance

    Affirmed

    Opinion delivered and filed April 28, 1999

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