









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-01-00100-CR
______________________________


MICHAEL MARION ALLEN, SR., Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 16,602-2001





Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Ross

O P I N I O N

	Michael Marion Allen, Sr. was indicted on five charges of aggravated kidnapping, (1)
two charges of aggravated assault with a deadly weapon, (2) and one charge of felon in
possession of firearms. (3)  By agreement between the State and Allen, all cases were
consolidated for purposes of trial, and in a single hearing, Allen waived formal reading of
the indictments on all charges and pled guilty to all charges and enhancements thereto,
and the trial court found him guilty on each cause. 
	Allen elected to have the jury decide his punishment.  The jury returned a verdict
assessing punishment at seventy-five years' imprisonment.  The trial court sentenced Allen
in accordance with the jury's verdict.  Sentences on all causes were to run concurrently. 
Allen filed a timely notice of appeal. 
	Allen raises two issues on appeal:  1) that the trial court committed reversible error
in failing to sustain his challenge for cause to a prospective juror; and 2) that the trial court
committed reversible error in excluding evidence favorable to him at punishment.  One brief
was filed by each party for this case and all companion cases, raising the same issues in
each case.
Disposition
 We have reviewed both briefs and all the arguments raised therein in our opinion
issued this date in Michael Marion Allen, Sr. v. State of Texas, No. 06-01-00096-CR.
	For the reasons stated in that opinion, we affirm the judgment.

							Donald R. Ross
							Justice

Date Submitted:	April 23, 2002
Date Decided:	May 21, 2002

Do Not Publish


1. Nos. 06-01-00096-CR (Trial Court No. 16,597-2001); 06-01-00097-CR (Trial Court
No. 16,598-2001); 06-01-00099-CR (Trial Court No. 16,601-2001); 06-01-00100-CR (Trial
Court No. 16,602-2001); 06-01-00101-CR (Trial Court No. 16,603-2001).
2. Nos. 06-01-00102-CR (Trial Court No. 16,607-2001); 06-01-00103-CR (Trial Court
No. 16,608-2001).
3. No. 06-01-00098-CR (Trial Court No. 16,599-2001).


_________


OSCAR WARDON STILL, ET AL., Appellants
 
V.
 
EASTMAN CHEMICAL COMPANY, TEXAS OPERATIONS, AND                   
  ENBRIDGE PIPELINES (EAST TEXAS), L.P., Appellees


                                              

On Appeal from the County Court at Law II
 Gregg County, Texas
Trial Court No. 2004-1861-CCL2


                                                 



Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Chief Justice Morriss


O P I N I O N
            All-terrain vehicles, including four-wheelers and other motorized vehicles, using the ATV
Park operated by Oscar Wardon Still, Future Income L.L.C., Rabbit Creek Mountain Mud Blast,
Rabbit Creek ATV-RV Park, and East Texas All-Terrain Monsters (collectively Still), ranged over
Still's land, as well as over the pipelines buried in five pipeline easements crossing his land.  Soon
after personnel of Eastman Chemical Company and Enbridge Pipelines (East Texas), L.P.
(collectively Appellees), noticed erosion and rutting of the soil over and adjacent to the pipelines,
Appellees sought to stop Still from allowing the vehicles to continue using the pipeline easements
in a way that caused such erosion or rutting.
            From the trial court's award of a temporary injunction in favor of Appellees—which prohibits
Still from, among other things, allowing four-wheelers or other motorized vehicles to ride over
Appellees' pipelines inside Still's ATV park—Still appeals.  We hold that, since there was conflicting
evidence before the trial court and part of that evidence supported a temporary injunction, the trial
court did not abuse its discretion in issuing the temporary injunction.  Thus, we affirm the trial
court's judgment.
            Appellees are the successors-in-interest to five pipeline easements running through Still's
ATV park.  In mid-December 2003, Appellees noticed the soil covering their pipelines had begun
to erode.   On further inspection, they saw evidence of "a lot of ATV traffic on the right-of-way,"
including the formation of large ruts above some of the pipelines.  These ruts concerned Appellees
because the ruts meant a loss of "depth cover" above the company's pipelines.  For example, two of
the pipelines at issue carry ethylene and propane, and these pipelines were buried at a general depth
of forty to sixty inches below the surface.  Appellees discovered, however, that as a result of the
ATV traffic, the displaced dirt left only twenty-four inches of soil above these pipelines, which
according to Appellees "would be an unsafe situation under the Railroad Commission rules."  
            According to Appellees, Still did nothing to prevent any further damage to the soil covering
the pipelines between December 2003 and September 2004.  To the contrary, Appellees saw
evidence of continued erosion of the soil covering the pipelines during the summer and early fall of
2004.  So in September 2004, Appellees sued Still and sought to have him enjoined from allowing
ATVs to be operated over the pipelines.  The trial court ultimately granted a temporary injunction,
which Still now challenges on appeal.
            The purpose of a temporary injunction is to maintain the status quo pending trial.  Flagship
Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 563 (Tex. App.—Texarkana 2003, pet. denied). 
A temporary injunction should issue only if the applicant demonstrates a probable injury and a
probable right to recovery after a final hearing.  Id.  A temporary injunction may not issue "upon
mere fear, apprehension, or possibility of injury."  Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713,
716 (Tex. App.—Corpus Christi 2001, no pet.) (citing Calvary Baptist Church at Tyler v. Adams,
570 S.W.2d 469, 473 (Tex. Civ. App.—Tyler 1978, no writ); Thomas v. Bunch, 41 S.W.2d 359, 362
(Tex. Civ. App.—Fort Worth 1931), aff'd, 121 Tex. 225, 49 S.W.2d 421 (1932)).
            "Our review of the trial court's action in granting a temporary injunction is limited to
determining whether the action constituted an abuse of discretion."  Bay Fin. Sav. Bank, FSB v.
Brown, 142 S.W.3d 586, 589 (Tex. App.—Texarkana 2004, no pet.) (citing Gannon v. Payne, 706
S.W.2d 304, 305 (Tex. 1986)).  A trial court abuses its discretion if it acts without reference to
guiding rules and principles, acts unreasonably or arbitrarily, or if it misapplies the law to the facts
before the court.  Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985)).  A trial court does not abuse its discretion if its decision is based on conflicting evidence. 
Id.  When the trial court does not issue written findings of fact and conclusions of law, as is the case
here, we must affirm the trial court's judgment if that ruling is correct under any theory applicable
to the case.  Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); 2300, Inc. v. City of Arlington, 888
S.W.2d 123, 126 (Tex. App.—Fort Worth 1994, no writ).  We must also view the evidence in the
light most favorable to the trial court's judgment and draw all legitimate inferences from the evidence
in support of that judgment.  City of Irving v. Dallas County Flood Control Dist., 383 S.W.2d 571,
575 (Tex. 1964).
            At the October 8 hearing on Appellees' request for a temporary injunction, the trial court
received testimony from three witnesses.  The first witness was David Joseph McDaniel, a pipeline
supervisor and chemical engineer for Eastman.  McDaniel testified that one mud hole above one of
the pipelines appeared to be eighteen or twenty inches deep.  McDaniel stated he observed numerous
ATV trails running beside and crossing Appellees' pipelines.  McDaniel said he could not tell
whether the trails had been created as a result of Still's purposeful designation or whether the ATV
riders had themselves independently created the trails.  But during one site visit, McDaniel did find
a printed sign reading "Poker Run Station 1"
 near Eastman's right-of-way. 
            McDaniel then testified that the risk of an explosion, fire, or other injury was so great that
it would be imprudent for Appellees to merely seek a legal remedy after the explosion, fire, or other
injury had occurred and, therefore, an injunction was necessary to pre-empt Still's activities from
causing the feared injury.  McDaniel believed, "From what we've witnessed out there, it's pretty
likely that an accident will occur in the next few months."  He even thought it was possible the
damage to the pipeline would occur as quickly as the weekend following the trial court's hearing on
the temporary injunction. 
            Kyle Jack Hart, the North Area Operations Manager for Enbridge, testified next.  Hart said
the burial depth of one pipeline was thirty-six inches at the time of construction.  Another pipeline
was buried forty inches below the surface.  The depth of a third pipeline, however, which was
constructed between 1958 and 1959, varied from "very, very shallow to very deep, depending on
what the construction company ran into when they were building it."  Hart admitted on cross-examination that parts of this third pipeline were probably laid at a depth of less than twenty-four
inches.          
            Hart told the trial court he had seen a significant loss of soil cover over the pipelines at Still's
ATV park.  Hart hypothesized that, if the ATVs continued cutting deep ruts along the pipelines, the
pipelines would eventually be exposed, which "increases the likelihood of significant damage to the
pipeline."  "The exposure will—can take the coating of the pipeline off, which will then accelerate
the rate of corrosion . . . ."    
            Finally, Still testified in opposition to the injunction.  Still began operating Rabbit Creek RV
Park on Memorial Day weekend of 2002.  Still claimed he has not designated, built, or created any
specific four-wheeler trails over Appellees' pipelines.  Instead, he merely allowed patrons to roam
across the surface estate as they saw fit.  Still does not try to regulate where the ATV riders go, and
his testimony made it clear he plans to continue allowing ATV patrons unfettered access to the entire
park.  Still discounted the impact that ATVs had on the soil cover over Appellees' pipelines.  Instead,
he blamed Appellees' own tractors, used to mow the rights-of-way, for causing the deep ruts in
question.  At oral argument, however, Still made certain factual concessions:
Now, for purposes of this issue and this argument, I will concede that the conduct
complained of was intended to be continued.  I will concede that the conduct
complained of did some disturbance or damage to the surface estate—that it caused
ruts.  There's no question [that] riding four-wheelers across the ground is going to
disturb the grass; it's eventually going to cause a rut if you ride it through mud
. . . .  It's going to do it whether you do it on this pipeline or whether you do it
anywhere in the world.
 
(Emphasis added.) 
            At common law, a fee owner may not interfere with an easement holder's reasonable use and
enjoyment of that easement.  Harris County v. S. Pac. Transp. Co., 457 S.W.2d 336, 340 (Tex. Civ.
App.—Houston [1st Dist.] 1970, no writ).  Nor may the property owner make a use of the surface
that might endanger or interfere with a pipeline.  Phillips Pipe Line Co. v. Razo, 420 S.W.2d 691,
695 (Tex. 1967); Mobil Pipe Line Co. v. Smith, 860 S.W.2d 157, 159–60 (Tex. App.—El Paso 1993,
writ dism'd w.o.j.).  The rights of an easement holder may be protected by injunction.  Craft v.
Freeport Oil Co., 563 S.W.2d 866, 867–68 (Tex. App.—Amarillo 1978, no writ).
            In this case, Appellees sought to enjoin Still from allowing his ATV patrons to further erode
the soil covering Appellees' pipelines.  The trial court heard conflicting evidence over who was
responsible for the loss of depth cover.  Appellees' testimony and evidence attributed the lost depth
cover to ATV use, use which was clearly sponsored and encouraged by Still.  Appellees' witnesses
warned of an imminent threat of a pipeline breach that would endanger the pipeline and the nearby
neighborhood if the ATV use were allowed to continue over Appellees' pipelines. 
            Viewing the evidence in the light most favorable to the trial court's ruling, we cannot say the
trial court's ruling was made without reference to guiding rules and principles, was arbitrary and
unreasonable, or was not supported by any evidence.  There was direct testimony that the harm
caused by allowing the ATVs to continue to ride over Appellees' pipelines could lead to an explosion
as quickly as the weekend following the hearing on the temporary injunction (or, alternatively, within
the next few months).  Such an explosion would, in turn, endanger the surrounding homes and
neighborhood.  The common law in Texas expressly forbids a surface estate owner from making use
of the surface in any way that endangers a pipeline, and—drawing all reasonable inferences from the
evidence before the trial court—it is clear that the trial court had before it evidence that would
support a conclusion that allowing Still to continue his activities, unfettered, would endanger
Appellees' pipelines.  Accordingly, we cannot say the trial court abused its discretion by granting the
temporary injunction.  We overrule Still's first point of error.
            Because the common law supports the trial court's judgment, we need not reach Still's second
point of error, which asks us to determine whether Section 756.103 of the Texas Health and Safety
Code supports the trial court's decision to issue a temporary injunction.  See Tex. Health & Safety
Code Ann. § 756.103 (Vernon Supp. 2004–2005).
            For the reasons stated, we affirm the trial court's judgment.
 
                                                                                    Josh R. Morriss, III
                                                                                    Chief Justice

Date Submitted:          July 13, 2005
Date Decided:             August 16, 2005
