Opinion issued September 27, 2012




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-11-00197-CV
                            ———————————
                         STATE OF TEXAS, Appellant
                                        V.
               CLEAR CHANNEL OUTDOOR, INC., Appellee



               On Appeal from County Civil Court at Law No. 3
                            Harris County, Texas
                       Trial Court Case No. 857472



                          MEMORANDUM OPINION

      The State of Texas, appeals from the trial court’s grant of summary

judgment against it on liability and subsequent rendition of judgment against it and

in favor of Clear Channel Outdoor, Inc. following a trial on damages in an inverse
condemnation proceeding. In three issues, the State argues (1) the trial court erred

by ruling as a matter of law that the State had taken Clear Channel’s billboards as

part of its condemnation of the land; (2) the trial court abused its discretion by

allowing certain testimony from Clear Channel’s expert on valuation of the

billboards; and (3) the evidence is legally and factually insufficient to support the

trial court’s award on damages.

      We affirm the judgment of the trial court.

                                   Background

      In 2001, Clear Channel obtained a leasehold interest in a parcel of land,

identified as Parcel 709, located in Harris County within view of the Katy

Freeway. In 2004, Clear Channel obtained a leasehold interest in an abutting

parcel of land, identified as Parcel 708. Pursuant to the leases, Clear Channel

erected and maintained two billboards on the parcels. The billboards back each

other and form a V shape, each being visible to opposing directions of traffic on

the Katy Freeway.

      In connection with a planned freeway expansion, the State petitioned to

condemn Parcels 708 and 709 in separate proceedings and named the landowner

and Clear Channel as defendants in each proceeding. Each of the county civil

courts appointed a panel of special commissioners to determine the fair market

value of the properties.       Clear Channel filed objections to the special


                                         2
commissioners’ award in each proceeding and asserted claims of inverse

condemnation, seeking compensation for the billboards.

      The State brought a plea to the jurisdiction in each proceeding. Each plea

was denied, and the State appealed. Each denial was affirmed.1

      During the time that the State brought its pleas to the jurisdiction, Clear

Channel brought a motion for partial summary judgment on its interest in Parcel

709, arguing that the billboard on Parcel 709 was part of the realty, that the

billboard, therefore, had been condemned, and that the State was required to

adequately compensate Clear Channel for the condemned property. The trial court

for that proceeding granted the motion for summary judgment.

      After the denials to the pleas to the jurisdiction were affirmed on appeal, the

State had settled most of its condemnation claims for both parcels. The State had

resolved the amount of compensation to be paid to the owners of the parcels and

had agreed on the amounts owed to Clear Channel on all of its leasehold interests

other than the billboards.

      After the interlocutory judgments were entered, the trial court in the

proceeding for Parcel 708 granted the parties’ agreed motion to consolidate the two

proceedings. Clear Channel subsequently brought a partial motion for summary

1
      See State v. Clear Channel Outdoor, Inc., 274 S.W.3d 162, 166 (Tex. App.—
      Houston [1st Dist.] 2008, no pet.); State v. Clear Channel Outdoor, Inc., No. 14-
      07-00369-CV, 2008 WL 2986392, at *5 (Tex. App.—Houston [14th Dist.] July
      31, 2008, no pet.).
                                          3
judgment on its interest in the billboard on Parcel 708, arguing the State had

condemned its interest in the billboard on that parcel. The trial court granted this

motion for summary judgment as well.

      The parties tried the remaining damages issues to a jury. Clear Channel

presented Rodolfo Aguilar at trial as its expert for valuation of the billboards.

Aguilar presented four methods for valuing the billboards: one based on the cost

method, two based on the comparable sales method, and one based on the income

method.      The State objected to and sought to exclude Aguilar’s testimony

regarding the comparable sales methods and the income method. The trial court

denied these objections and admitted all of Aguilar’s testimony regarding

valuation.

                           Condemnation of Billboards

      In its first issue, the State argues the trial court erred by ruling as a matter of

law that the State had taken Clear Channel’s billboards as part of its condemnation

of the land.

A.    Standard of Review

      The summary-judgment movant must conclusively establish its right to

judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.

1986). Because summary judgment is a question of law, we review a trial court’s




                                           4
summary judgment decision de novo. Mann Frankfort Stein & Lipp Advisors, Inc.

v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

      To prevail on a “traditional” summary-judgment motion, asserted under

Rule 166a(c), a movant must prove that there is no genuine issue regarding any

material fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV.

P. 166a(c); Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex.

2004). A matter is conclusively established if reasonable people could not differ as

to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168

S.W.3d 802, 816 (Tex. 2005).

      When a party moves for summary judgment on a claim for which it bears the

burden of proof, it must show that it is entitled to prevail on each element of its

cause of action. See Parker v. Dodge, 98 S.W.3d 297, 299 (Tex. App.—Houston

[1st Dist.] 2003, no pet.). The party meets this burden if it produces evidence that

would be sufficient to support an instructed verdict at trial. Id.

      To determine if there is a fact issue, we review the evidence in the light most

favorable to the nonmovant, crediting favorable evidence if reasonable jurors could

do so, and disregarding contrary evidence unless reasonable jurors could not. See

Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827). We

indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

                                           5
B.     Analysis

       Clear Channel sought summary judgment on the liability portion of its

inverse condemnation claim. “Inverse condemnation occurs when (1) a property

owner seeks (2) compensation for (3) property taken for public use (4) without

process or a proper condemnation proceeding.” City of Houston v. Boyle, 148

S.W.3d 171, 178 (Tex. App.—Houston [1st Dist.] 2004, no pet.). The trial court

granted Clear Channel’s motion.

       On appeal, the State’s challenges to the trial court’s grant of summary

judgment fall into three categories: (1) whether the billboards must be considered

part of the realty; (2) whether the State intended to condemn the billboards; and (3)

whether Clear Channel consented to any alleged damages. Before we address each

of these matters, however, we must address Clear Channel’s argument that this

issue has been waived by the State.

       1.       Waiver

       Clear Channel argues, “The State has not assigned error to the summary

judgments and has therefore waived its right to challenge those judgments.” This

is incorrect.

       As pointed out by the State, the Texas Rules of Appellate Procedure were

amended in 1997. One of those changes was allowing an appellant to present

either issues or points of error. See TEX. R. APP. P. 38.1(f) & Notes & Comments.


                                         6
When a party raises a complaint in an issue, an appellate court must “look to the

argument to determine the nature of the complaints. . . . If the court is able to

ascertain the nature of the complaint from the argument, the issue will be preserved

for appellate review.” John Hill Cayce, Jr., Anne Gardner & Felicia Harris Kyle,

Civil Appeals in Texas: Practicing Under the New Rules of Appellate Procedure,

49 BAYLOR L. REV. 867, 947–48 (1997).

      In its brief on the merits, the State raised an issue complaining of the trial

court’s determination that the billboards were part of the condemned realty. This

is enough to present the matter for appellate review. It has been the practice in

Texas for almost 15 years that failure to assign a point of error to the specific

interlocutory summary judgments containing the trial court’s ruling does not waive

any error. See id. at 947 (noting that “[t]he new ‘issues presented’ practice signals

the intention of the Supreme Court to have all appeals judged on the merits of

controversies rather than hypertechnical waiver issues”).

      We hold that the State has not waived this issue.

      2.     Inclusion of the Billboards with the Realty

      Clear Channel claimed a right to compensation for its billboards under the

federal and state constitutions. See U.S. CONST. amend. V (providing “nor shall

private property be taken for public use, without just compensation”); TEX. CONST.




                                         7
art. I, § 17 (providing “[n]o person’s property shall be taken . . . without adequate

compensation being made”).

      “[I]t is generally held that the power to take property for public use extends

to every species of property and every character of right, title, or interest therein.”

Hous. N. Shore Ry. Co. v. Tyrrell, 98 S.W.2d 786, 793 (Tex. 1936). When the

State condemns real property, however, it is not required to condemn the personal

property contained on the premises or reimburse the owner for the expense of

removing the property. Luby v. City of Dallas, 396 S.W.2d 192, 198 (Tex. Civ.

App.—Dallas 1965, writ ref’d n.r.e.).

      The State argues that the billboards are personalty and that, accordingly, it is

not obligated to treat them as part of the condemned property. Clear Channel

argues that the billboards are part of the realty and that, accordingly, the State must

give just compensation for its condemnation.

      The Texas Supreme Court has held, “It is a general rule that improvements

situated upon the portion of land taken are to be considered as a part of the realty.”

State v. Carpenter, 89 S.W.2d 979, 980 (Tex. 1936); see also Almota Farmers

Elevator & Warehouse Co. v. United States, 409 U.S. 470, 477 n.5, 93 S. Ct. 791,

796 n.5 (1973) (holding “[i]f the . . . fixtures are attached to the real estate, they

must be treated as real estate in determining the total award”). While the court

identified this as a general rule, it followed with only one exception: “[I]f the

                                          8
improvements which are situated upon the portion of land taken are essential to the

use and enjoyment of the remainder of the land, or if their replacement, by removal

or reconstruction, is necessary in order to obviate depreciation in the value of the

residue, the cost of removal, and/or reconstruction and/or replacement may be a

proper inquiry in connection with the issue of diminished market value of the

remainder.” Carpenter, 89 S.W.2d at 980–81. In other words, the sole exception

is when an improvement would need to be removed and relocated to preserve the

value of the remainder, which has not been condemned. See id.

      There has been no claim, by the State or Clear Channel, that relocation of

the billboards is necessary to preserve the value of any remainder. It is undisputed

that the billboards are “improvements situated upon the portion of land taken.” See

id. at 980. Accordingly, they are part of the realty, and the State must give Clear

Channel adequate compensation for them. See id.; see also State v. Clear Channel

Outdoor, Inc., 274 S.W.3d 162, 165 (Tex. App.—Houston [1st Dist.] 2008, no

pet.) (applying Carpenter in previous appeal between parties).

      The State argues that we should determine whether the billboards are a

fixture in order to determine whether they are part of the realty. The State then

applies the test for what constitutes a fixture to this case, citing Logan v. Mullis,




                                         9
686 S.W.2d 605, 607 (Tex. 1985). We have already held that Logan does not

apply to condemnation claims.2 Clear Channel Outdoor, 274 S.W.3d at 165.

      The State points out that Clear Channel agreed with both landowners in the

leases that the billboards would be treated as Clear Channel’s personal property.

The State argues that this should establish that the billboards are, in fact, personal

property and not part of the realty. The United State Supreme Court has already

held that this is not a relevant inquiry. Such requirements in leases “exist[] entirely

for the protection of the tenant, and cannot be invoked by the condemnor. If the

buildings or fixtures are attached to the real estate, they must be treated as real

estate in determining the total award.” Almota, 409 U.S. at 477 n.5, 93 S. Ct. at

796 n.5; see also Brazos River Conservation & Reclamation Dist. v. Adkisson, 173

S.W.2d 294, 300 (Tex. Civ. App.—Eastland 1943, writ ref’d3) (holding “that an

agreement between landlord and tenant that the tenant shall have the right to



2
      In its reply brief, the State of Texas acknowledges this previous holding. It
      explains that it presented this argument, in part, to preserve it for review by the
      Supreme Court of Texas. It also invites this Court to overrule or restrict the
      application of our previous ruling. We decline this invitation.
3
      In cases decided before September 1, 1997, “writ refused” identifies an opinion as
      having “equal precedential value with the Texas Supreme Court’s own opinions.”
      Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 754 n.52 (Tex. 2006) (citing The
      Greenbook: Texas Rules of Form (Texas Law Review Ass’n ed., 10th ed. 2005)).
      While the Texas Supreme Court relied on The Green Book for the authority that
      the effect of this designation arose in 1927, we note that the most recent edition
      indicates that the effect of this designation arose in 1892. The Greenbook: Texas
      Rules of Form app. E (Texas Law Review Ass’n ed., 12th ed. 2010).
                                          10
remove improvements placed upon the premises by him shall not inure to the

benefit of the condemnor, is supported by considerable authority”).

      From all of these rules, it follows that, “[i]f personalty would be a fixture if

attached to the land by the fee owner of the land, then a condemning authority

must pay for such property as real estate in a condemnation action.” Harris Cnty.

Flood Control Dist. v. Roberts, 252 S.W.3d 667, 670 (Tex. App.—Houston [14th

Dist.] 2008, no pet.). Even accepting the State’s characterization of the Billboards

as fixtures under Logan, then, the State is still obligated to give adequate

compensation for them in a condemnation proceeding.

      The State also seeks to avoid application of these rules by arguing that the

billboards are treated as personal property by local taxing entities and the Internal

Revenue Code and that other states treat billboards as personal property.

Regardless of how persuasive the other states’ holdings may be, we are bound by

the holdings of the Supreme Court of Texas and the United States Supreme Court.

Lubbock Cnty. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002)

(requiring intermediate appellate courts to follow supreme court precedent and

leave to the supreme court the matter of abrogating or modifying its own

precedent); Ex parte Twedell, 309 S.W.2d 834, 844 (Tex. 1958) (holding Texas

courts are required to follow United State Supreme Court in its application of the

United States Constitution and federal law). To that end, none of the holdings by

                                         11
the Supreme Court of Texas or the United States Supreme Court allow for

consideration of how property is characterized for tax purposes in determining

whether property is part of the condemned realty. As a result, how the billboards

are treated for tax purposes is not relevant to our inquiry in this appeal.

      3.     Intent to Take

      The State correctly argues that, to prevail on an inverse condemnation

proceeding, the plaintiff must establish that the State intended to take the property

in question. See Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex.

2004). The question of intent is typically only relevant in regulatory takings cases,

however. See, e.g., id. at 554 (concerning regulatory taking by construction of

reservoir near property).

      Here, it is undisputed that the State has initiated condemnation proceedings

on the real property upon which the billboards stand as well as the lease for the

property held by Clear Channel. The State appears to argue that, because it does

not want to compensate Clear Channel for the billboards, it lacks the intent to

condemn the billboards. As we have held above, the billboards are part of the

condemned property. Because the State has intended to condemn the property, it

follows that the State has intended to condemn the billboards, regardless of

whether it wanted to condemn the billboards.




                                          12
      4.     Consent

      Finally, the State argues that Clear Channel consented to the taking of its

billboards. The State correctly asserts that article one, section 17 of the Texas

Constitution applies only when property is taken without the owner’s consent. See

TEX. CONST. art. I, § 17. The State argues that Clear Channel consented to the

taking of its billboards because “it intentionally declined the opportunities offered

pursuant to [the Texas Department of Transportation]’s Relocation Assistance

Program.”    The Relocation Assistance Program allows municipalities to pay

relocation benefits for billboards relocated under the program.          See 43 TEX.

ADMIN. CODE §§ 21.195, .196 (2011) (Tex. Dep’t of Transp., Relocation of Sign

within Municipality, Relocation Benefits).        Under this program, the City of

Houston has established a process for relocation of billboards and payment of

related relocation benefits. Houston, Tex., Building Code ch. 46, § 4617.4

      As Clear Channel points out, however, it was not required to relocate its

billboards under this program. Id. § 4617(b) (providing “[n]othing contained in

this section shall be construed to abrogate the right of a sign owner . . . to refuse to

accept the proposal by the governmental unit for the alteration or relocation of a

sign under this section and to choose instead to seek monetary compensation”).


4
      Accessed through the City of Houston’s website, Details for Houston Sign Code,
      http://documents.publicworks.houstontx.gov/document-center/doc_details/2498-
      houston-sign-code.html (last updated September 12, 2011).
                                          13
Instead, Clear Channel had the choice to relocate its signs and obtain relocation

benefits or to seek monetary compensation for the loss of the billboards. Id. The

State cannot legitimately claim that a party given two choices loses its rights to the

second by declining the first.

       We hold that the trial court did not err by granting summary judgment on the

liability portion of Clear Channel’s inverse condemnation claim. We overrule the

State’s first issue.

                           Evidence of Valuation of Billboards

       In its second issue, the State argues the trial court abused its discretion by

allowing certain testimony from Clear Channel’s expert on valuation of the

billboards.

A.     Standard of Review

       An expert’s opinion must be relevant and reliable.             State v. Cent.

Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009); Gammill v. Jack

Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998). “Appraisal expertise

is a form of ‘specialized knowledge used to assist the trier of fact to determine a

fact in issue.’        It is therefore subject to Gammill’s relevance and reliability

requirements.” Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex.

2002) (quoting TEX. R. EVID. 702).




                                            14
      We review the trial court’s ruling on admission of an expert’s opinion based

on relevance and reliability for an abuse of discretion. Cent. Expressway Sign

Assocs., 302 S.W.3d at 870.       A trial court does not abuse its discretion by

admitting expert testimony if the testimony is relevant to the issues in the case and

is based on a reliable foundation. See id.

      In determining the reliability of an expert’s opinion, the trial court must

independently evaluate the underlying data. Kraft, 77 S.W.3d at 808; Merrell Dow

Pharm., Inc. v. Havner, 953 S.W.2d 706, 713 (Tex. 1997). “If the foundational

data underlying opinion testimony are unreliable, an expert will not be permitted to

base an opinion on that data because any opinion drawn from that data is likewise

unreliable.” Havner, 953 S.W.2d at 714.

B.    Analysis

      In a condemnation proceeding, the burden to establish the value of the

condemned property is on the condemnee. Religious of Sacred Heart of Tex. v.

City of Hous., 836 S.W.2d 606, 613 (Tex. 1992). Texas has recognized three

approaches to determining the market value of condemned property: the

comparable sales method, the cost method, and the income method.               Cent.

Expressway Sign Assocs., 302 S.W.3d at 871 (citing City of Harlingen, v. Estate of

Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001)). The comparable sales method is

the preferred method for valuation, and the other two methods should only be used


                                         15
“[w]hen comparable sales figures are lacking or the method is otherwise

inadequate as a measure of fair market value.” Estate of Sharboneau, 48 S.W.3d at

182, 183.

      Clear Channel’s valuation expert, Rodolfo Aguilar, valued the billboards

based on all three methods for valuation and testified on the results of each of these

methods. The State objected to Aguilar’s testimony regarding the comparable

sales method and the income method. The trial court denied these objections. The

State raises each of these objections again on appeal. We begin with the income

method. The State argues that Aguilar’s income method was improperly based on

advertising revenue. We disagree.

      The State correctly argues that, in a condemnation proceeding, “income

from a business operated on the property is not recoverable and should not be

included in a condemnation award.” Cent. Expressway Sign Assocs., 302 S.W.3d

at 871. However, any valuation method is meant “to approximate the amount a

willing buyer would pay a willing seller for the property.” Id.

      While the income method, as its name suggests, values a property according

to the income that it generates, this method has been approved by the Supreme

Court of Texas as a proper valuation method in certain instances.           Estate of

Sharboneau, 48 S.W.3d at 183; see also State v. Bristol Hotel Asset Co., 293

S.W.3d 170, 172 (Tex. 2009) (holding “the income approach is especially

                                         16
appropriate when . . . property would be valued on the open market according to

the amount of income it already generates”); Cent. Expressway Sign Assocs., 302

S.W.3d at 871 (noting “[t]he income approach is appropriate when the property

would be priced according to the rental income it generates”). The State cannot

assert, then, that this is an impermissible method of valuation. We hold that the

State has not established that the trial court abused its discretion by allowing

Aguilar’s testimony regarding the income method.

      The State’s argument for why it has been harmed by the admission of

Aguilar’s testimony regarding valuation of the billboards under the income method

and under the sales comparison method is that, without both of these valuation

methods, there would be legally insufficient evidence in the record to support the

jury’s verdict on the value of the billboards. The State raises this same argument

again in its third issue: assuming the exclusion of Aguilar’s valuation of the

billboards both under the income method as well as under the sales comparison

method, there is legally insufficient evidence to support the jury’s verdict on the

value of the billboards.

      Because we have held that the trial court did not abuse its discretion by

allowing Aguilar’s testimony regarding the income method, the State’s argument

that the evidence is legally insufficient without both methods necessarily fails. For

the reasons provided below, we hold that the evidence is legally sufficient to

                                         17
support the jury’s verdict on the valuation of the billboards based on the income

method. Accordingly, we do not need to determine whether the trial court abused

its discretion in allowing Aguilar to testify about valuation of the billboards under

the sales comparison method. See Columbia Med. Ctr. of Las Colinas, Inc. v.

Hogue, 271 S.W.3d 238, 253 (Tex. 2008) (not reaching sufficiency of the evidence

to support other grounds for gross negligence when court had held that one ground

was legally sufficient); Hatton v. Grigar, 66 S.W.3d 545, 557 (Tex. App.—

Houston [14th Dist.] 2002, no pet.) (not reaching sufficiency of evidence to

support finding of easement by prescription when legally and factually sufficient

evidence existed of implied public dedication of land, which supported trial court’s

judgment).

      We overrule the State’s second issue.

                            Sufficiency of the Evidence

      In its third issue, the State of Texas argues that the evidence is legally

insufficient to support the jury’s determination of the value of the billboards.

A.    Standard of Review

      In a legal sufficiency, or “no-evidence” review, we determine whether the

evidence would enable reasonable and fair-minded people to reach the verdict

under review. City of Keller, 168 S.W.3d at 822. In making this determination, we

will sustain a legal sufficiency challenge if the record shows one of the following:


                                          18
(1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar

the court from giving weight to the only evidence offered to prove a vital fact, (3)

the evidence offered to prove a vital fact is no more than a scintilla, or (4) the

evidence establishes conclusively the opposite of the vital fact. Id. at 810. We

credit favorable evidence if a reasonable fact-finder could, and we disregard

contrary evidence unless a reasonable fact-finder could not. We consider the

evidence in the light most favorable to the finding under review and indulge every

reasonable inference that would support it. Id. So long as the evidence falls within

the zone of reasonable disagreement, we may not substitute our judgment for that

of the fact-finder. Id. at 822. The trier of fact is the sole judge of the credibility of

the witnesses and the weight accorded to their testimony. Id. at 819. Although we

consider the evidence in the light most favorable to the challenged findings,

indulging every reasonable inference that supports them, we may not disregard

evidence that allows only one inference. Id. at 822.

B.    Analysis

      As is the case here, absent an objection to the jury charge, the sufficiency of

the evidence is reviewed in light of the charge submitted. Wal-Mart Stores, Inc. v.

Sturges, 52 S.W.3d 711, 715 (Tex. 2001). In two questions, the charge asked the

jury to determine the fair market value of Clear Channel’s interest in each of the




                                           19
two properties—that is, the fair market value of Clear Channel’s billboards—as of

a certain date.

      Aguilar’s testimony regarding the income method of valuation for each of

these billboards is legally sufficient evidence to support the jury’s verdict on these

questions. Aguilar testified that, for each billboard, he took “the billboard rent,

only the billboard rent, not any other revenue” and deducted “the cost of running

that billboard” to determine the “net operating income.” He then applied an

“overall capitalization rate,” based on prevailing rates at the time in question, to the

net operating income in order to derive the market value of the billboards.

      The State’s only complaint on appeal about this testimony is that it is

inappropriately based on income, which we have overruled. The State provides no

other objection to this testimony or the data upon which Aguilar relied, and we find

no flaws in the legal sufficiency of the testimony or the underlying data.

Accordingly, we hold that this evidence is legally sufficient to support the jury’s

verdict.

      Because we have held this evidence is sufficient to support the jury’s

verdict, we do not need to determine whether Aguilar’s valuation of the billboards

under the comparable sales method is legally sufficient. See Columbia Med. Ctr.,

271 S.W.3d at 253 (not reaching sufficiency of the evidence to support other

grounds for gross negligence when court had held that one ground was legally

                                          20
sufficient); Hatton, 66 S.W.3d at 557 (not reaching sufficiency of evidence to

support finding of easement by prescription when legally and factually sufficient

evidence existed of implied public dedication of land, which supported trial court’s

judgment).

      We overrule the State’s third issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Higley, Sharp, and Huddle.




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