Calhoun County Appraisal Review Board and Calhoun County Appraisal District v. The Stofer Limited Partnership and Wells Fargo Bank Texas, N.A., as Trustee of the Day P. McNeel Trust and Mary Austin McNeel Trust--Appeal from 24th District Court of Calhoun County

 NUMBER 13-04-00029-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

CALHOUN COUNTY APPRAISAL REVIEW BOARD

AND CALHOUN COUNTY APPRAISAL DISTRICT, Appellants,

v.

THE STOFER LIMITED PARTNERSHIP

AND WELLS FARGO BANK TEXAS, N.A.,

AS TRUSTEE OF THE DAY P. McNEEL TRUST

AND MARY AUSTIN McNEEL TRUST, Appellees.

 On appeal from the 24th District Court of Calhoun County, Texas.

 MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Hinojosa

This appeal results from a trial court ruling in an ad valorem tax case. Appellants, the Calhoun County Appraisal Review Board and the Calhoun County Appraisal District, denied open-space valuation for the years 2001 and 2002 on a 22-acre tract in Calhoun County. Appellees, The Stofer Limited Partnership and Wells Fargo Bank Texas, N.A., as Trustee of the Day P. McNeel Trust and Mary Austin McNeel Trust (collectively AStofer@), sought review in the district court. After a trial to the bench, the trial court reversed appellants= decision and granted the open-space valuation. In six points of error, appellants contend the trial court erred in finding that the subject property met the requirements for open-space valuation. We affirm.

The issues of law presented by this case are well settled and the parties are familiar with the facts. Therefore, we will not recite the law and facts in this opinion except as necessary to advise the parties of the Court=s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

A. Admission and Exclusion of Evidence

We review a trial court's decisions on the admission or exclusion of evidence only to determine if the trial court abused its discretion by acting without regard for any guiding rules or principles. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002); Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 718-19 (Tex. 1998); United Blood Servs. v. Longoria, 938 S.W.2d 29, 31 (Tex. 1997). A challenge to a trial court=s evidentiary rulings will be successful only if a review of the entire record shows that the error was harmful in that the judgment turns on the particular evidence excluded or admitted. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995).

1. Qualification of Expert

In their fourth point of error, appellants assert that while Martin Lesikar was qualified to give expert opinions on prudent agricultural practices, the trial court erred in qualifying Lesikar as an expert witness on ad valorem taxation and open-space valuation.

To be admitted as an expert, a witness (1) must be qualified, and (2) his proposed testimony must be relevant and reliable. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995); see Tex. R. Evid. 702. Whether a witness is qualified as an expert is a preliminary question to be decided by the trial court, and the party offering the testimony must demonstrate that the witness Apossesses special knowledge as to the very matter on which he proposes to give an opinion.@ Gammill, 972 S.W.2d at 718 (quoting Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996)); see Tex. R. Evid. 104(a).

The issue underlying whether the subject property qualifies for open-space valuation is whether the property was dedicated to agricultural use to the degree of intensity generally accepted in the area. See Tex. Tax Code Ann.' 23.51(1) (Vernon Supp. 2004-05). Although Lesikar does not have training specific to ad valorem taxation in Calhoun County, the record shows that he has extensive experience and expertise in agricultural use of land and prudent land management in areas very similar to Calhoun County. Lesikar=s qualifications are sufficiently specifically related to the core issues involved that we cannot say the trial court abused its discretion in admitting Lesikar as an expert witness. Appellants= fourth point of error is overruled.

2. Testimony on Additional Acreage Available for Grazing

In their fifth point of error, appellants contend the trial court erred in excluding testimony from Andrew Hahn, Chief Appraiser for Calhoun County, regarding other Stofer properties that may have been available for the grazing of animals in addition to the subject property.

Regardless of whether the trial court erred, we conclude that any potential error was harmless because the testimony was cumulative of other testimony already admitted. See Tex. Dep=t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 1999) (regardless of admissibility, complaining party must still establish it was harmed by the decision). During cross-examination, appellants questioned Allen Junek, the manager of the property, extensively about the size and location of other Stofer properties. Junek testified that these other properties were available to lessees to rotate animals for grazing, but that he had no knowledge regarding whether any animals grazed on the subject property were moved to other Stofer properties or if lessees had access to non-Stofer properties. Additional testimony from Hahn would not have added anything new to the evidence already in the record such that it would have impacted the judgment. See Alvarado, 897 S.W.2d at 753-54. We conclude the trial court did not abuse its discretion in excluding the testimony. Appellants= fifth point of error is overruled.

3. Aerial Photographs of Property

In their sixth point of error, appellants contend the trial court erred in excluding aerial photographs taken of the subject property the week before trial. Appellants acknowledge their failure to produce the photographs in response to a written discovery request, see Tex. R. Civ. P. 192.3(b), but they argue that because they were being offered to rebut and impeach testimony denying that the land was heavily covered with brush, and that much of the cleared area on the property was made up of the cleared public rights-of-way, there was no way to know before trial that the photographs would be needed.

If a party fails to timely supplement a discovery response, see Tex. R. Civ. P. 193.5, the evidence is automatically excluded unless the court finds that (1) there was good cause, or (2) it will not unfairly surprise or unfairly prejudice the other parties. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 913-14 (Tex. 1992); see Tex. R. Civ. P. 193.6 (a). The party seeking to introduce the evidence bears the burden of establishing good cause or lack of surprise or unfair prejudice, and such a finding by the court must be supported by the record. Tex. R. Civ. P. 193.6 (b).

After reviewing the entire record, we conclude that appellants did not establish good cause as to why the photographs should be admitted. While the aerial photographs were excluded, Andrew Hahn testified that he flew over the property and saw no significant interior pastureland, and that the public rights-of-way were the most visible cleared areas. In addition, appellees= expert witness testified that only twenty-five to thirty percent of the property could support vegetation adequate for grazing, and a portion of that percentage was made up of the long-strait areas designated by appellants as the public rights-of-way. We consider this evidence to serve the same substantive purpose for which appellants sought to admit the photographs. Therefore, we conclude the trial court did not abuse its discretion in excluding the photographs. Appellants= sixth point of error is overruled.

B. Sufficiency of the Evidence

In their first point of error, appellants contend there is no evidence or insufficient evidence to support the trial court=s judgment that the Stofer property is entitled to open-space valuation under the Property Tax Code.[1] See Tex. Tax Code Ann. '' 23.51 et seq. (Vernon 2001 & Supp. 2004-05). In their second and third points of error, appellants contend there is no evidence or insufficient evidence to support (1) the trial court=s findings of fact that the Stofer property was devoted principally to agricultural use to the degree of intensity generally accepted in the area in the years 2001 and 2002, and (2) the trial court=s conclusions of law that under the provisions of the Property Tax Code the Stofer property qualifies for Aopen-space@ appraisal or valuation for the years 2001 and 2002.

The standards of review for legal sufficiency (no evidence) and factual sufficiency (insufficient evidence) challenges are well settled, and we will not recite them here. See Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001) (legal sufficiency); Plas Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989) (factual sufficiency); see also Hickey v. Couchman, 797 S.W.2d 103, 109 (Tex. App.BCorpus Christi 1990, writ denied) (legal and factual sufficiency).

To qualify for open-space valuation, land must (1) be currently devoted principally to agricultural use to the degree of intensity generally accepted in the area, and (2) must have been principally devoted to agricultural use for five of the preceding seven years. Tex. Tax Code Ann. ' 23.51 (1) (Vernon Supp. 2004-05); see Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 813 S.W.2d 197, 200 (Tex. App.BDallas 1991), rev=d on other grounds, 835 S.W.2d 75 (Tex. 1992). Agricultural use includes the raising and keeping of livestock, Tex. Tax Code Ann. ' 23.51(2), and does not have to be an occupation or business. Reiss v. Williamson County, 725 S.W.2d 633, 637 (Tex. App.BAustin 1987, writ denied).

1. Findings of Fact

An appellant may challenge a trial court=s findings of fact for both legal and factual sufficiency, and we review those findings of fact under the same legal standards applied to the review of jury verdicts. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). Appellants challenge the trial court=s finding that the subject property was devoted principally to agricultural use to the degree of intensity generally accepted in the area during the years 2001 and 2002.

The record shows that prior to the years in question, the subject property had been qualified for open-space valuation based on the raising of goats, and all parties appear to be in agreement that the subject property is best suited for the raising of goats. However, Junek testified that the goats were removed from the property based on information from Hahn, Chief Appraiser for Calhoun County, that the raising of goats would no longer qualify for open-space valuation. Subsequently, Junek arranged with a lessee to rotate cows onto the subject property until July 2000, when the cows were removed due to overgrazing. In July 2001, Junek again arranged with lessees to graze ten to twelve cows on the property based on further information from Hahn that he needed more animals on the property. The number of cows was reduced to six or seven by November or December of 2001, when again all cows were removed from the property due to over-grazing.

Junek also testified that in January 2002, he returned thirteen goats and one burro to the property based on information from Hahn that goats were once again acceptable. However, due to the state of disrepair of the fence on the property, the animals were removed in May 2002. Although Junek attempted to have a new fence put in quickly, heavy rain and other factors beyond his control prevented the completion of the fence until May 2003.

Hahn testified that he never informed Junek that raising goats would not qualify the land for open-space valuation, and he never told Junek to increase the number of cows on the property. He also testified that he never discussed the option of keeping goats, and Junek never asked him about that possibility. In Hahn=s opinion, the property was not devoted to agricultural use to the degree of intensity generally accepted in the area because there were too few animals, not enough open areas for animals to graze, inadequate fencing for the years in question, and animals were not kept on the property for enough of the year. However, Lesikar testified that some landowners in areas similar to Calhoun county are satisfied with using the land in its native state. In his opinion, the goal of range management was not necessarily to clear the land to maximize its carrying capacity. He considered the property to have been utilized as a prudent manager would during both 2001 and 2002.

Appellants presented testimony from Hahn and two field appraisers for Calhoun County that throughout the years in question, they did not observe many animals on the property, nor did they observe any physical signs that animals were being kept on the property for any extended periods of time. These witnesses also testified that they did not enter the property to make their observations, and that due to the heavy brush, they could not see into the interior of the property.

As fact finder, the trial court was the sole judge of the credibility of the witnesses and the weight to be given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 770 (Tex. App.BCorpus Christi 2001, no pet.). Where there is conflicting evidence, the trial court's determination on such matters is generally regarded as conclusive. Adams, 41 S.W.3d at 770 (citing Montgomery Ward & Co. v. Scharrenbeck, 204 S.W.2d 508, 512 (Tex. 1947)).

Viewing the evidence in a light that tends to support the trial court=s findings of fact and disregarding all evidence and inferences to the contrary, we conclude that enough evidence supporting the finding exists that would enable reasonable and fair-minded people to differ in their conclusions. See Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Because the evidence supporting the trial court=s findings of fact is more than a mere scintilla, appellants= no evidence challenge fails. Accordingly, we hold the evidence is legally sufficient to support the trial court=s findings that the subject property was used to the degree of intensity generally accepted in the area during the years 2001 and 2002. See Bradford, 48 S.W.3d at 754; Havner, 953 S.W.2d at 711; Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987); Hickey, 797 S.W.2d at 109. That part of appellants= second point of error relating to the trial court=s findings of fact is overruled.

In addition, after examining all the evidence in the record that both supports and contradicts the judgment, we conclude that the evidence supporting the trial court=s findings of fact is not so slight, nor the evidence against them so strong, that the findings are clearly wrong or manifestly unjust. See Plas Tex, Inc., 772 S.W.2d at 445; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Hickey, 797 S.W.2d at 109. We hold the evidence is factually sufficient to support the trial court=s findings of fact. That part of appellants= third point of error relating to the trial court=s findings of fact is overruled.

2. Conclusions of Law

An appellant may not challenge a trial court's conclusions of law for factual insufficiency. BMC Software Belg., 83 S.W.3d at 794. That part of appellants= third point of error relating to the trial court=s conclusions of law is overruled.

We review a challenge to the trial court=s conclusions of law as a legal question, reviewing de novo the trial court's application of the law to the facts. BMC Software Belg., 83 S.W.3d at 794. Appellants do not challenge whether the subject property was principally devoted to agricultural use for the five years preceding the years 2001 and 2002. Therefore, considering the trial court=s factual finding that the subject property was devoted principally to agricultural use to the degree of intensity generally accepted in the area in the years 2001 and 2002 as conclusive, we hold the trial court correctly concluded that the subject property met the qualifications for Aopen-space@ appraisal or valuation for the years 2001 and 2002 under the provisions of the Property Tax Code. That part of appellants= second point of error relating to the trial court=s conclusions of law is overruled.

3. Judgment

Having held the trial court=s findings of fact to be both legally and factually sufficient and that the trial court correctly applied the law to the facts, we hold the evidence is legally and factually sufficient to support the trial court=s judgment. Appellants= first point of error is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 18th day of August, 2005.

[1] Section 1.01 of the Texas Tax Code provides that title 1 of that code Amay be cited as the Property Tax Code.@ See Tex. Tax Code Ann. ' 1.01 (Vernon 2001).