Opinion issued April 2, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00953-CV

———————————

THE STATE OF TEXAS, Appellant

V.

JASDEEP SINGH CHANA, MANJIT SINGH CHANA, AND 

AMAR PAL SINGH CHANA, Appellees

On Appeal from County Civil Court at Law No. 2

Harris County, Texas

Trial Court Case No. 969941

O P I N I O N

This eminent-domain case involves a dispute over the fair market value of 

2.072 acres of land, acquired by the State from the Chana family for the purpose of 

constructing a detention pond associated with the roadway expansion of FM 529. 

On appeal, the State challenges the trial court’s judgment, which awarded the 

Chanas $922,256.00 as compensation for the condemnation of their property. 
2

The State identifies four issues in which it complains that the trial court 

abused its discretion in making certain evidentiary rulings. In its first two issues, 

the State asserts that the trial court abused its discretion when it admitted the 

testimony of the Chana’s real estate appraisal expert. The State’s third issue

challenges the admission of certain comparable land sales, and the State’s fourth 

issue assails the trial court’s exclusion of records from a tax-protest hearing in 

which the Chanas challenged the taxes assessed for the property. 

We affirm. 

Background

Jasdeep Singh Chana, Manjit Singh Chana, and Amar Pal Singh Chana (“the 

Chanas”) owned a 7.765-acre tract of vacant land in Harris County, Texas. The 

land sat at the intersection of FM 529 and Enchanted Creek Drive in Katy, Texas. 

The rectangular-shaped tract was bounded by FM 529 on its northern side and 

Enchanted Creek Drive on its western side. The tract’s eastern side was bounded 

by Dinner Creek. Behind the tract’s southern property line was a housing 

subdivision. 

In 2010, the State sought to obtain 2.385 acres out of the 7.765-acre tract for 

the construction of a detention pond, needed as part of the roadway expansion of 

FM 529. The State planned to construct the detention pond on the eastern most 
3

part of the Chanas’ property next to Dinner Creek. The Chanas requested the State 

to decrease the size of the taking to permit the Chanas’s remaining 5.693 acres of 

land to maintain access to Dinner creek for drainage and detention purposes. The 

State agreed and shifted the back boundary of the taking 30 feet forward to the 

north. This gave the Chanas a strip of land behind the State’s taking, which 

connected the remainder of their property to Dinner Creek, allowing for future 

drainage and water detention. After this change, the amount of land condemned by 

the State for construction of the detention pond was reduced from 2.385 acres to 

the 2.072 acres. 

The State petitioned the county court to condemn the 2.072 acres to use in

conjunction with TxDOT’s roadway expansion of FM 529. The county court 

appointed three special commissioners to determine the fair market value of the 

land. Following a hearing, the commissioners awarded the Chanas $722,176.00. 

The State objected to the award and requested a jury trial. On November 29, 2010, 

the State deposited the full amount of the commissioner’s award into the court’s 

registry, thereby establishing the date of the taking and the date that the State 

acquired the 2.072 acres of land. 

The case proceeded to trial before a jury for a determination of the amount 

of money due the Chanas for the 2.072 acres of land condemned by the State for its 
4

roadway-expansion project. Each side offered the testimony of its own real-estate 

appraisal expert to show the fair market value of the property as of November 29, 

2010. 

The State filed a pre-trial motion to exclude the testimony of the Chanas’ 

real-estate appraisal expert, Mark Sikes. The trial court denied the motion and,

over the State’s continued objections at trial, permitted Sikes to testify. Sikes 

testified that the highest and best use for the Chanas’ 7.765-acre piece of land was 

to divide it into three separate, independent land parcels or “economic units” for 

commercial development. He opined that the 2.072 acres taken by the State would 

be part of a 2.385-acre self-sufficient economic unit. Located on the eastern most 

side of the Chanas’ property, this rectangular-shaped economic unit was fronted on 

its northern side by FM 529, a major thoroughfare. The economic unit had Dinner 

Creek on its eastern boundary, the Chanas’ remaining property on its western 

boundary—which Sikes opined should be divided into two other self-sufficient 

economic units—and a housing subdivision behind its southern boundary. 

Although he testified that the Chanas’ remaining property could be divided into 

two additional economic units, Sikes testified that he did not appraise those 

economic units because he had been retained to appraise only the property 

condemned by the State, which was part of the eastern economic unit. 
5

Sikes acknowledged that the economic unit, containing the condemned 

property, mirrored the dimensions of the parcel of land that the State had originally 

planned to condemn before agreeing to permit the Chanas to retain a 30-foot strip 

at the back of the property for drainage purposes. Sikes testified that the 2.385-

acre economic unit was independent of, and could be marketed and sold separately 

from, the remaining land owned by the Chanas. 

According to Sikes, the highest and best use of the 2.385-acre economic unit 

would be commercial development. Sikes testified that, both before and after the 

condemnation in this case, the commercial real-estate market was active in the area 

where the Chanas’ property is located. He stated that there had been commercial 

development of properties to the east and to the west of the land. Sikes pointed out 

that the Chanas’ property was located less than a mile from the major intersection 

of Fry Road and FM 529. This intersection had been commercially developed with 

nationally recognized stores and a bank. Sikes testified that these businesses 

generated traffic and that the Chanas’s property was in the “sphere of influence” of 

that intersection. Sikes also stated that, in the last decade, there had been a growth 

of housing subdivisions in that area, which provided a residential base for 

commercial property. According to Sikes, there had been “quite a bit” of 

residential development around the Chanas’ property, and it sat at “one of the 
6

primary commercial thoroughfares that provides access to that residential 

property.” 

In forming his opinion, Sikes relied on the sale of 10 properties, which he 

averred were comparable to the condemned property. He testified that he had 

based his conclusion that the condemned property could be sold as part of a 

separate 2.385-acre economic unit for commercial development on these property 

sales. He stated that these comparable properties were in the area surrounding the 

Chanas’ property. Eight of the ten properties were less than one mile from the 

Chanas’ property and two were slightly further away. The sales of these 10

properties occurred between June 2006 and November 2011. These properties 

ranged in size from .776 acres to 2.939 acres in size. The sales price of these 

properties ranged from $7.70 to $20.00 per square foot. Sikes stated that it is 

unusual for him as an appraiser to find so many property sales in such close 

proximity to the property that is the subject of appraisal. Sikes stated that this 

indicated that real estate, sold as smaller economic units for commercial develop,

was in demand in the area of the Chanas’ property.

A few of the properties relied on by Sikes to appraise the subject property 

had been subdivided from larger tracts of land and then sold as separate economic 

units for commercial development. With regard to the area where the Chana’s 
7

property was located, Sikes testified that “everybody’s selling and developing 

smaller tracts out of larger tracts. I think that the highest and best use of the 

Chanas’ [property] would be the exact same, what the market is doing.” Sikes 

testified that he did not find property along FM 529 being sold as large seven acre 

tracts of land. Rather, he stated that landowners in the area were dividing their 

property and selling off smaller economic units. 

On cross-examination, Sikes acknowledged that the 10 properties he utilized

as comparable properties were either located on a corner or had access to two 

major thoroughfares. In comparison, the 2.385-acre economic unit defined by 

Sikes on the Chanas’ property had frontage on one major thoroughfare, FM 529, 

and was located “mid-block” with the nearest intersection being FM 529 and 

Enchanted Forest, a street accessing a housing subdivision. Sikes also 

acknowledged that some of the comparable properties had more infrastructure and 

utilities in place than the economic unit he had defined. 

Sikes explained, however, that appraising real estate is an art, not a science, 

entailing a subjective, qualitative analysis. He stated that an appraiser looks at the 

marketplace to find comparable properties. He indicated that, the more 

comparable properties an appraiser had to analyze, the better his analysis would be. 

Sikes explained that, when a comparable property differs in terms of location, size, 
8

utility availability, access, and frontage from the subject property being appraised, 

an appraiser makes adjustments to the valuation of the subject property. 

Sikes testified that, if he were to value the property taken by the State as a 

part of the Chanas’ whole 7.765-acre tract, then he would not be valuing the 

property at its highest and best use. Sikes explained that property sells for more 

money per square foot when it is sold as a smaller tract of land. Sikes stated that, 

as a certified real estate appraiser, it was his job to determine the highest and best 

use of the Chana’s property. 

Based on his analysis, Sikes testified that the 2.385-acre economic unit,

containing the condemned land, was worth $9.50 per square foot. Thus, the total 

value for the whole 2.385-acre economic unit would be $986,927. After 

discounting the portion of the economic unit that was not part of the condemnation, 

Sikes testified that his “compensation estimate,” that is, the amount owed the 

Chanas for the fair market value of the 2.072 acres acquired by the State, was 

$922,256. 

At trial, the State offered the testimony of David Dominy, a certified real 

estate appraiser. He testified that, in his opinion, the Chanas’ property should be 

valued as one whole 7.765-acre piece of property and that the subject property 

taken by the State should be valued as a part of that whole. According to Dominy, 
9

the market, in 2010, did not support dividing the Chanas’ property into separate 

economic units. 

According to Dominy, the highest and best use of the Chanas’ property was 

“future commercial development” after “some of the other vacant land in the 

market’s been absorbed and developed.” He stated, “[T]hen, at that point in time I 

believe commercial development would be viable.” 

Dominy acknowledged that, in the area of the subject property, it had been a 

common practice to carve out and sell smaller economic units from larger tracts of 

land. But Dominy did not believe that, in 2010, this had been a viable option for 

the Chana’s property. Dominy pointed out that there were large tracts of land 

around the Chanas’ property, which were vacant. Dominy emphasized that the 

subject property also did not have much infrastructure in place. Because of the 

lack of infrastructure, Dominy indicated that the subject property was not 

comparable to certain properties in the area that had been carved out of larger tracts

of land and sold as separate economic units for as much as $20.00 a square foot. 

When asked, Dominy opined that some of the comparable properties utilized by 

Sikes in his appraisal were not comparable to the subject property. Dominy

indicated that these other properties had more infrastructures in place than the 

subject property and were more marketable as independent economic units. 
10

To formulate his appraisal of the condemned property, Dominy relied on 

information from the sale of five properties, which he opined were comparable to 

the Chanas’ property. Dominy utilized two of the same property sales as Sikes had 

used. The five properties relied on by Dominy ranged in size from .786 acres to

4.813 acres in size. The sales price of these properties ranged from $3.67 to 

$12.95 per square foot. 

Based on his analysis, utilizing the five comparable land sales, Dominy 

opined that the Chanas’ 7.76-acre tract was worth $5.00 per square foot. Using 

that figure, Dominy explained the additional calculations he performed to arrive at 

the amount owed the Chanas’ to compensate them for the State’s condemnation of 

the 2.072 acres of their property. Dominy testified that, in his opinion, the total 

compensation owed the Chanas’ was $484,735.00.

The jury was presented the following question: “What do you determine to

be the just compensation owed to the Chanas for the value of the part taken and 

damages to the remainder as of November 29, 2010?” The jury responded by 

awarding the Chanas $922,256.000, which is the same amount as Sikes had 

testified was owed to the Chanas. 

The trial court rendered judgment on the jury’s verdict. This appeal 

followed. 
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On appeal, the State identifies four issues. In its first two issues, the State 

asserts that the trial court abused its discretion by admitting Sikes’ expert 

testimony regarding the value of the condemned property. Relatedly, in its third 

issue, the State complains that the trial court erred by admitting documentary 

evidence of five of the comparable property sales relied on by Sikes in forming his 

appraisal of the condemned property. Lastly, in its fourth issue, the State asserts 

that the trial court abused its discretion by refusing to admit a statement from a taxprotest hearing in 2010 at which the Chanas had sought to lower the tax assessed 

value on the 7.765-acre tract. 

Admissibility of Sikes’s Opinion Testimony 

In issues one and two, the State claims that the trial court abused its 

discretion by admitting Sikes’s opinion testimony regarding the compensation 

owed to the Chanas as a result of the State’s taking. 

A. Standards Applicable to Expert Opinion Evidence

If scientific, technical, or other specialized knowledge would assist the jury, 

a witness who is qualified as an expert by “knowledge, skill, experience, training, 

or education” may testify as an expert. TEX. R. EVID. 702. Such expert witness

“may testify . . . in the form of an opinion or otherwise.” Id.
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The proponent of the expert’s testimony bears the burden of showing that 

the expert’s testimony is relevant and rests on a “reliable foundation.” E.I. du Pont 

de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995) (adopting 

analysis of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589–90, 113 S. 

Ct. 2786, 2795, (1993)). The trial court must make the threshold determination of 

whether the testimony meets both the relevancy and reliability standards for 

admissibility under Rule 702. Robinson, 923 S.W.2d at 557. We review the trial 

court’s decision to admit the testimony for an abuse of discretion. Whirlpool Corp. 

v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009). Serving as an evidentiary 

gatekeeper by screening out irrelevant and unreliable expert evidence, the trial 

court has broad discretion to determine the admissibility of that evidence. 

Robinson, 923 S.W.2d 549 at 558. A court abuses its discretion when it acts 

without reference to any guiding rules or principles. Id

Appraisal expertise—as involved in this case—is a form of “‘specialized 

knowledge [used to] assist the trier of fact to determine a fact in issue.’” 

Guadalupe–Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002) (quoting 

TEX. R. EVID. 702). Thus, to be admissible, an appraisal expert’s opinion must be 

relevant and reliable. See id. 
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The relevance requirement, which incorporates traditional relevancy analysis 

under Rules of Evidence 401 and 402, is met if the expert testimony is “sufficiently 

tied to the facts of the case that it will aid the jury in resolving a factual dispute.” 

Robinson, 923 S.W.2d at 556. Evidence that has no relationship to any issue in the 

case does not satisfy Rule 702; it is thus inadmissible under Rule 702, as well as 

under Rules 401 and 402. Id.

Rule 702’s reliability requirement centers on the principles, research, and 

methodology underlying an expert’s conclusions. Exxon Pipeline Co. v. Zwahr, 88 

S.W.3d 623, 629 (Tex. 2002). “Under this requirement, expert testimony is 

unreliable if it is not grounded ‘in the methods and procedures of science’ and is no 

more than ‘subjective belief or unsupported speculation.’” Id. (quoting Robinson, 

923 S.W.2d at 557). If an expert relies on unreliable foundational data, any 

opinion drawn from that data likewise is unreliable. Helena Chem. Co. v. Wilkins, 

47 S.W.3d 486, 499 (Tex. 2001) (citing Merrell Dow Pharm ., Inc. v. Havner, 953 

S.W.2d 706, 714 (Tex. 1997)). Expert testimony also is unreliable if “there is too 

great an analytical gap between the data the expert relies upon and the opinion 

offered.” Zwahr, 88 S.W.3d at 629.
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B. Project-Enhancement Rule

The State asserts, “Sikes’s opinion impermissibly relies on project 

enhancement because his economic unit is defined by the State’s parameters of its 

acquisition area; therefore, his opinion is unreliable and inadmissible under Texas 

Rule of Evidence 702.” In support of this assertion, the State relies on Exxon 

Pipeline Company v. Zwahr, 88 S.W.3d 623 (Tex. 2002).

In Zwahr, the supreme court determined whether the trial court had abused 

its discretion in admitting the opinion testimony of Brad Kangieser, a real estate 

appraisal expert. See id. at 626. Kangieser testified regarding the fair market 

value of a pipeline easement taken by condemnation by Exxon. See id. The

supreme court restated the well-established legal standards applicable to valuing 

real property in a condemnation proceeding:

Compensation for land taken by eminent domain is measured by the 

fair-market value of the land at the time of the taking. The general 

rule for determining fair-market value is the before-and-after rule, 

which requires measuring the difference in the value of the land 

immediately before and immediately after the taking. When, as here, 

only part of the land is taken for an easement, a partial taking occurs. 

In this situation, the before-and-after rule still applies, but 

compensation is measured by the market value of the part taken plus 

any diminution in value to the remainder of the land.

In determining market value, the project-enhancement rule 

provides that the factfinder may not consider any enhancement to the 

value of the land-owner’s property that results from the taking itself. 

This is because the objective of the judicial process in the 
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condemnation context is to make the landowner whole. To 

compensate a landowner for value attributable to the condemnation 

project itself, however, would place the landowner in a better position 

than he would have enjoyed had there been no condemnation. . . .

On the other hand, the factfinder may consider the highest and 

best use to which the land taken can be adapted. The existing use of 

the land, . . . is its presumed highest and best use, but the landowner 

can rebut this presumption by showing a reasonable probability that 

when the taking occurred, the property was adaptable and needed or

would likely be needed in the near future for another use.

Finally, Texas law permits landowners to introduce testimony 

that the condemned land is a self-sufficient separate economic unit, 

independent from the remainder of the parent tract with a different 

highest and best use and different value from the remaining land. In 

this situation, the market value of the severed land can be determined 

without reference to the remaining land. But when the portion of the 

land taken by eminent domain cannot be considered as a separate 

economic unit, the before-and-after method requires determining 

market value by evaluating the taken land as a proportionate part of 

the remaining land.

Id. at 627–28 (internal citations omitted).

Applying these legal principles, the Zwahr court concluded that Kangieser’s 

testimony was irrelevant, and therefore inadmissible, to determining the value of 

the land taken from the Zwahrs; thus, the trial court had abused its discretion in 

admitting Kangieser’s testimony. Id. at 631. The Zwahr court provided two reasons for its holding: (1) Kangieser had impermissibly premised his valuation of the 

easement on the fact of Exxon’s taking, in violation of the project-enhancement 
16

rule, and (2) Kangieser had failed to utilize the before-and-after method in valuing 

the easement. Id. at 630–31.

The supreme court concluded that “Kangieser’s testimony as a whole 

reveal[ed] that he premised his valuation on the fact of Exxon’s condemnation, 

thus improperly including project enhancement in that valuation.” Id. at 629. Of 

particular relevance to the Zwahr court was Kangieser’s testimony that Exxon’s 

condemnation defined the parameters of the economic unit. Id. at 629–30. 

Kangieser testified that the 1.01 acre easement acquired by Exxon was a separate 

economic unit, which had a “highest and best use” as a pipeline easement. Id. at 

626, 629. Kangieser stated that Exxon’s taking “created the economic unit.” Id. at 

630. 

The court also emphasized that “[n]ot only did Kangieser rely on the Exxon 

project to establish a separate economic unit, he relied on Exxon’s condemnation 

to assign a value to the condemned land.” Id. The Exxon easement overlapped an 

existing easement owned by Koch by 82%, or approximately .82 acres. Id. 

Kangieser testified that before Exxon’s project, the Zwahrs’ interest in the .82 

acres burdened by the Koch easement was of “negligible” or “nominal” value 

because it was an exclusive easement owned by Koch. Id. He then testified that 

once Exxon received Koch’s consent to lay another pipeline within the easement, 
17

the value of the .82–acres increased to $35,720 per acre, making the 1.01–acre 

Exxon easement worth $36,077. Id. “In other words, had the Exxon project never 

come along, the .82 acres would have continued to have no value to the Zwahrs.” 

Id. In addition, Kangieser “admitted twice that the value he placed on the land did 

not exist before Exxon’s condemnation.” Id. 

Because Kangieser relied on Exxon’s condemnation in establishing a 

separate economic unit and in assigning a value to that unit, his final 

opinion reflected enhancement in the land’s value that occurred only 

because of the Exxon project itself. As explained earlier, value that 

exists because of the condemnation project is not, under the projectenhancement rule, value for which a landowner may recover. . . . In 

addition, after Kangieser identified the 1.01–acre tract as a separate

economic unit, he evaluated it without reference to the Zwahrs’ entire 

49–acre tract. Thus at best, Kangieser determined the value of the 

easement to Exxon, not the value of the loss to the Zwahrs for the 

taking of the easement. . . . Kangieser failed to apply the before-andafter valuation method, which would have required him to evaluate 

the 1.01–acre as a proportionate part of the entire forty-nine acres.

Id. at 630–31 (citations omitted). The Zwahr court concluded that “Kangieser’s 

testimony was irrelevant to determining the value of the land taken from the 

Zwahrs and therefore inadmissible under Texas Rule of Evidence 702.” Id at 631. 

The court held that the trial court had abused its discretion in admitting 

Kangieser’s testimony. Id. 

In both WestTex 66 Pipeline Co. v. Bulanek, 213 S.W.3d 353 (Tex.—App. 

Houston [1st Dist.] 2003), aff’d as modified 209 S.W.3d 98 (Tex. 2006) and 
18

WesTTex 66 Pipeline Co. v. Baltzell, No. 01-01-00826-CV, 2003 WL 21665312 

(Tex. App.—Houston [1st Dist.] 2003, pet. denied) we were presented with the 

issue of whether the trial court had abused its discretion by admitting the testimony 

of a real estate appraisal expert who had testified regarding the value of a pipeline 

easement taken by condemnation. In each case, the pipeline company, WesTTex,

objected to the testimony, asserting that the experts had impermissibly included 

project enhancement in their appraisals by relying on WesTTex’s condemnation to 

define the economic unit and to compute the easement’s fair-market value. 

Baltzell, 2003 WL 21665312 at *2; Bulanek, 213 S.W.3d at 357. We agreed.

As in Zwahr, the experts in Baltzell and in Bulanek testified that the pipeline 

easements being acquired were separate economic units, thereby demonstrating 

that the condemnation involved in each case defined the parameters of the 

economic unit. See Zwahr, 88 S.W.3d at 629; Baltzell, 2003 WL 21665312 at *5;

Bulanek, 213 S.W.3d at 357. From the experts’ testimony, it was clear that the 

separate economic unit derived from the condemnation itself and would not have 

existed independent of the condemnation. Baltzell, 2003 WL 21665312 at *5;

Bulanek, 213 S.W.3d at 357. 

In addition, as in Zwahr, the experts’ testimony in Baltzell and in Bulanek

indicated that, not only had they relied on the condemnation to define the 
19

economic unit, they had also relied on the condemnation in each case to assign 

value. Baltzell, 2003 WL 21665312 at *6–7; Bulanek, 213 S.W.3d at 358. In other 

words, the experts had improperly assessed the value of the easements to 

WesTTex, not the loss suffered by the landowners. Baltzell, 2003 WL 21665312 

at *7; Bulanek, 213 S.W.3d at 358. We also concluded that the experts failed to 

employ the before-and-after valuation method, which, as stated in Zwahr, is the 

appropriate method to apply in pipeline condemnation proceedings in which the 

subject land is not a separate economic unit. Baltzell, 2003 WL 21665312 at *7;

Bulanek, 213 S.W.3d at 358. 

Applying the standards enunciated in Zwahr, we concluded in both Baltzell

and Bulanek that the experts’ opinions were irrelevant to determining the value of 

the property taken by WesTTex and, therefore, the testimony was inadmissible 

under Rule of Evidence 702. Baltzell, 2003 WL 21665312 at *7; Bulanek, 213 

S.W.3d at 358. We held that the trial courts had abused their discretion in 

admitting the expert appraisal testimony. See Baltzell, 2003 WL 21665312 at *8;

Bulanek, 213 S.W.3d at 358–59.

Here, citing Zwahr, Baltzell, and Bulanek, the State asserts that “Sikes’ 

appraisal methodology defines an economic unit created from the State’s 

condemnation itself, which violates the project enhancement rule.” The State 
20

points out that the boundaries of the 2.385-acre economic unit appraised by Sikes 

has the same parameters as the original acquisition the State had planned to take

for the detention pond. At the Chanas’ request, the State did not take a 30-foot 

strip at the back of the originally-defined acquisition to provide drainage access to 

Dinner Creek for the reminder of the Chanas’ property. This reduced the size of 

the State’s acquisition from the 2.385 acres originally planned to the 2.072 acres

that was ultimately condemned. 

The State points to Sikes’s testimony on direct examination in which he 

stated that the reason he valued the eastern portion of the Chanas’ 7.765-acre tract 

was because “that’s what’s actually being taken here.” Also, near the end of his 

direct examination, when asked whether he was “valuing that eastern [part of the 

property] because that’s where the state . . . took the property?” He answered, 

“Correct.” 

The State further points to Sikes’s testimony on cross-examination in which 

he acknowledged that the economic unit, appraised by him, appeared to be nearly 

identical to the State’s originally-planned acquisition. He also acknowledged that, 

had the State not agreed to move the southern boundary, the economic unit 

appraised by him would have had the same parameters as the State’s acquisition. 
21

It is, however, useful to place the testimony cited by the State in context. In 

this respect, Sikes testified as follows on cross-examination:

Q. [I]t’s your testimony that when you determine the size and shape of 

this separate economic unit that would sell in the open place, you did 

that based upon market data that you identified and not on the 

acquisition?

A. I based it upon market data, you know, that the property would be 

subdivided into three economic units.

Q. And you further said it’s going to be 2.3-acre—three point—2.385-

acre tract?

A. Yeah, that’s my opinion.

Q. Almost identical boundaries as the State’s acquisition?

A. That’s my opinion.

Q. And you did that based on market data, not the acquisition itself?

A. I looked at the market and how the property would be developed to 

its highest and best use.

Q. And the State’s acquisition had absolutely no influence on your 

articulation of the boundaries of your separate economic unit?

A. It’s—it is the economic unit.

Q. But that’s not what I asked. I asked you whether the State’s 

acquisition had any influence on your articulation of the parameters of 

your separate economic unit?

A. No, it didn’t.

Q. So, it’s just a coincidence that they’re virtually identical?
22

A. Well, yeah. It’s not a coincidence. It’s based upon what’s 

happening in the market.

Q. That’s right. It’s not based on the survey order here?

A. No. It’s not based upon the survey; but, you know, as we started 

the process, the role is to estimate just compensation to the Chanas.

Sikes’s testimony on cross-examination was consistent with his testimony 

given on direct examination. During direct examination, testified as follows:

Q. Did you do that analysis with regard to your appraisal of the Chana 

property?

A. I did.

Q. And what did you determine was the highest and best use for the 

Chana property?

A. A commercial development. The vacant land would be developed 

commercially.

Q. Is this also—well, let me ask you this, first of all: Are you, in fact, 

required to value the Chana property as though it’s put to its highest 

and best use in this proceeding?

A. That’s all appraisals, by the definition of market value.

Q. Okay. So, you determine a commercial use. Does that—is this 

also—the highest and best use analysis also where you evaluate the 

economic unit concept?

A. Exactly. They have over a 7-acre tract, but if you look in the 

marketplace how the market was developed—you can look right 

down the road and see these economic units cut out of this larger 

parcel. That’s how this property would be developed. That would be 
23

the highest and best use of the property. So, in my opinion, the 

economic use is the highest and best use.

Q. The economic unit—

A. Yes.

Q. —is the highest and best use?

A. Economic unit.

Q. Okay. And during the—there’s been some suggestion, maybe in 

opening statement or whatnot, that you—your economic unit has 

some problems because it’s all the way on the eastern side of the 

property. Can you explain to the jury your overall analysis and why 

you valued the part on the eastern portion of the property?

A. Well, very commonsensical. That’s what’s actually being taken 

here. The corner in Enchanted Oak is not being taken. We’re here to 

estimate the value of that acquisition. If you look at the property, 

where it’s located, the size of the parent tract, it could be cut up into

three different tracts. So, I’m looking at the economic unit based 

upon, okay, I've got a 7-acre parent tract; but if I look at the properties 

in the marketplace, everybody’s selling and developing smaller tracts 

out of the larger tract. I think the highest and best use of the Chanas’ 

[property] would be the exact same, what the market is doing.

Q. And so, when you say you determined an economic unit, you 

actually are—did you speak in terms of the whole property being 

divided into multiple economic units?

A. Yes.

Q. Okay. So, there would be one—an economic unit at the hard 

corner of Enchanted Creek?
24

A. I think you’re—you’re—if you look at the Chana property and 

look at how the property was developed across the street, you can see 

how it’s cut up. 

Q. But we’re talking in this lawsuit about the eastern and that—and 

you valued the eastern economic unit.

A. Correct. I didn’t value anything to the west of the . . . [line] there. I 

just valued that component, that economic unit.

Q. Okay. And why did you value the eastern economic unit?

A. Well, it’s my opinion that that property can stand on its own. It 

doesn’t need the entire 7 acres. And if you look at other development 

that’s. You know, just down the street from us, that’s how those 

properties were developed.

Q. Okay. But I’m kind of thinking even more basic than that. You 

say two or three—three or four economic units on the Chana property. 

That would be the highest and best use.

A. You know multiple economic units.

Q. Okay. But why are we talking about the ones to the east?

A. Because they’re not taking the ones to the west.

Q. Okay. So, in order to assist the jury when determining value, you 

valued what the State is taking?

A. Right, because it can stand alone.

Q. If the State were taking the hard corner at enchanted Creek, would 

you have valued an economic unit there?

A. That would be a different analysis.
25

Q. Okay. But it would be—would it be correct to say that you only 

carved out one economic unit from this property, and it’s all the way 

to the eastern boundary of the property?

A. Correct.

Q. Would that be correct to say?

A. That would be correct.

Q. Okay. But—make sure—I don’t think we’re communicating.

A. Okay.

Q. Overall, you would carve up the Chana property into multiple 

economic units?

A. Yeah. I think of the 7 acres, you’d have three economic units—

three different pad sites.

Q. Okay. And all my question is: If there’s a suggestion that you’re 

only creating one economic unit on the property and it’s all the way to 

the eastern boundary, that wouldn’t be correct, would it?

A. No.

Q. But you valued that one because that’s where they’re taking it?

A. Exact—exactly. And they’re not taking the—the other economic 

units.

Sikes’s testimony stands in contrast to the testimony of the appraisal expert 

in Zwahr and in Baltzell. In Zwahr, the landowners’ expert testified that “Exxon’s 

condemnation ‘created the economic unit,’” and that the 1.01 acre “did not exist 

until after the condemnation.” See Zwahr, 88 S.W.3d at 630. 
26

Similarly, in Baltzell, the landowners’ experts determined the economic unit 

to be the same 5.47 acres of land that had been condemned for a pipeline easement. 

2003 WL 21665312 at *7. One of landowners’ appraisal experts testified that 

“WesTTex created the economic unit that I valued.” Id. at *5. Their other expert 

testified that he adopted the pipeline easement as his economic unit and stated that 

pipeline’s placement on the 5.47–acre strip of land was what made it a separate 

economic unit. Id. 

Here, unlike the experts in Zwahr and Baltzell, Sikes expressly denied using 

the State’s original condemnation survey as the basis for his opinion regarding the 

boundaries of the economic unit. In addition, Sikes explained why he appraised 

the eastern section of the Chanas’ property, taken by the State, as a separate 

economic unit; that is, he explained the basis for his opinion. 

Sikes testified that the highest and best use for the Chanas’ 7.765 acre tract 

was to subdivide it into three separate, independent tracts to be sold individually 

for commercial use. Sikes testified that this is how other comparable properties in 

the area were selling at the relevant time. Larger properties like the Chanas were 

not selling as a whole but were being divided and sold as smaller properties for 

commercial use. Sikes stated that he appraised only the eastern most of the three 
27

economic units because that economic unit contains the property condemned by 

the State. 

We conclude that the trial court had ample evidence to reject the State’s 

assertion that Sikes’s testimony violated the project-enhancement rule because the 

economic unit appraised by Sikes had the same dimensions as the original 

condemnation planned by the State. We hold that the trial court did not abuse its 

discretion by refusing to exclude Sikes’s testimony on the ground that his appraisal 

violated the project enhancement rule as set forth in Zwahr. 

C. Separate Economic Unit

The State further assails Sikes’s valuation methodology by asserting that 

Sikes should not have evaluated the condemned 2.072 acres as part of a separate 

2.385-acre economic unit; rather, the State asserts that Sikes should have evaluated 

the condemned property as a proportionate part of the entire 7.765 acres owned by 

the Chanas. To support this assertion, the State relies on the following language 

from Zwahr:

Texas law permits landowners to introduce testimony that the 

condemned land is a self-sufficient separate economic unit, 

independent from the remainder of the parent tract with a different 

highest and best use and different value from the remaining land. In 

this situation, the market value of the severed land can be determined 

without reference to the remaining land. But when the portion of the 

land taken by eminent domain cannot be considered as a separate 

economic unit, the before-and-after method requires determining 
28

market value by evaluating the taken land as a proportionate part of 

the remaining land.

Zwahr, 88 S.W.3d at 628 (citations omitted). The State first asserts that, pursuant 

to the foregoing language in Zwahr, Sikes’s testimony did not establish that the 

2.385-acre tract he appraised was a separate economic unit because it did not have 

a different highest and best use from the remainder of the Chanas’ property. 

As shown above, Sikes testified that the highest and best use of the Chanas’ 

7.765 acres was dividing it into three separate, self-sufficient tracts. The highest 

and best use for each of these individual parcels, including the one appraised by 

Sikes, is commercial development. Under this methodology, there is no 

“remaining property”; rather, the whole property is comprised of three separate, 

self-sufficient units. Nonetheless, Sikes’s testimony indicated that the highest and 

best use of the 7.765-acre parent tract (division into three parcels) is not the same 

as the highest and best use for the economic unit appraised by Sikes (commercial 

development).

The State further asserts that Sikes’s testimony failed to show that the 

appraised economic unit was self-sufficient or independent from the remaining 

acreage. The State points to Sikes’s testimony in which he explained how access 

to the appraised economic unit could be gained. Sikes stated that there would be a 

driveway on FM 529 for direct access. He also stated that access could be gained 
29

from Enchanted Creek Drive by cross-access over the two economic units to be 

developed on the Chanas’ property. Sikes testified: “[Y]ou’re going to have a 

portion of access off 529; but since the Chanas own all that other property, you’re 

going to have cross access over to Enchanted [Creek], just like many of these tracts 

in the marketplace have cross access.” 

The State argues that the appraised economic unit was not self-sufficient 

because cross-access to the unit would need to be through the other portions of the 

Chanas’ property. We disagree that such evidence showed that the appraised 

economic unit was not independent and self-sufficient. Sikes testified that the 

economic unit would have its own direct access from FM 529, a major 

thoroughfare. In addition, Sikes indicated that, not only is cross-access common in 

the market between economic units, it is beneficial to the economic unit and adds 

to its value: He testified: 

You’d have what would be cross access around the front so you could 

drive from the east to the west. Economic units, they like synergy. 

They share customers. If you look at the properties right up here 

(indicating), there is an access drive you can see there. And there’s 

also an access drive back here (indicating). That’s how that property 

was developed. You might have rear access, as well; but you’re going 

to try to—you know, properties with more access are worth more than 

properties with less access, all other things being equal.

The State further assails Sikes’s opinion that the appraised economic unit 

was self-sufficient on the ground that “basic infrastructure,” such as sewer and 
30

water, had not been developed on the unit. However, a review of the record 

reveals that the State’s claim of the lack of basic infrastructure is not entirely 

accurate. 

The State points out that, although a sanitary sewer line existed on the 

western boundary of the Chanas’ 7.765-acre tract, the line would need to be 

extended 550 feet to reach the appraised economic unit. However, Sikes testified, 

“That’s [i.e., 550 feet] fairly close for this type of development.” 

The evidence also showed that a water line ran along the northern boundary 

of the appraised economic unit and a storm sewer existed on the property’s

southern border. The evidence further showed that the property was within a 

municipal utility district (MUD). Sikes testified that much of the costs of 

developing the infrastructure were reimbursable from the MUD, although he 

acknowledged that reimbursement was not guaranteed. 

In addition, the State assails Sikes’s appraisal of the property as a separate 

economic unit on the ground that the Chanas’ property had not been previously 

partitioned or marketed as a separate 2.385-acre tract. The State also asserts that 

this rendered Sikes’s opinion “too speculative to be admitted as direct evidence of 
31

market value.”1

 In support of this assertion, the State relies on State v. Willey, 360 

S.W.2d 524 (Tex. 1962) and City of Harlingen v. Sharboneau, 48 S.W.3d 177, 182 

(Tex. 2001). We agree with the Chanas that these cases are distinguishable. 

In Willey, the landowner sought to offer evidence that the best and highest 

use of a 3-acre tract, which had been condemned out of a 104-acre tract, was 

“subdivision into residential homesites, with some commercial sites.” State v. 

Willey, 351 S.W.2d 904, 905 (Tex. Civ. App.—Waco 1961), rev’d, 360 S.W.2d

524 (Tex. 1962). The Supreme Court of Texas held that this evidence was not 

admissible because “at the time of the taking . . . there had been no subdivision or 

development of the 104–acre tract in question.” Willey, 360 S.W.2d at 524. The 

court also held that “one seeking to prove the value of such a tract of land may not 

show what the price of the lots would be if subdivided, or show the price for which 

already subdivided lots were selling.” Id. at 525. 

Here, unlike in Willey, Sikes’s valuation methodology is not based on selling 

the property as a residential subdivision; rather, it is based on “something much 

simpler.” In re State, 355 S.W.3d 611, 616 (Tex. 2011) (holding that Willey did 

not bar admittance of landowner’s evidence that highest and best use of property 

 

1 This argument was made under the State’s third issue, but because it is related to 

argument made under the State’s second issue, we discuss it here.
32

was partitioning it into separate parcels to be sold as highway frontage commercial

property). Sikes testified that the highest and best use of the Chanas’ entire 

property was partitioning it into three separate tracts, which could each be sold for

commercial development. Sikes explained that his opinion was supported by what 

he found was happening in the market in the area surrounding the property. He 

stated that larger parcels, such as the Chanas’ 7.765-acre tract, were not being sold 

as whole properties for future development. Rather, the sales in the area showed 

that smaller tracts were being sold from larger tracts to be used for development of 

a single commercial enterprise. Because it is distinguishable, the holding in Willey 

does not negate Sikes’s designation of the 2.385-acre tract as a separate economic 

unit or render his opinion speculative. 

Sharboneau involved the condemnation of a 10-acre tract of land to be used 

for a city park. See 48 S.W.3d at 180. Before trial, the parties stipulated that the 

highest and best use for the land was a residential subdivision. Id. At trial, the 

landowners’ expert used the subdivision development method to appraise the 

condemned land. Id. “This method values an undeveloped tract by calculating 

what a developer could expect to realize from sales of individual lots, taking into 

account the costs of development and discounting future revenues to present 

value.” Id. The analysis employed by the landowner’s expert under the 
33

subdivision development method was complicated and complex. See id. at 180–

81. 

In contrast, the city’s expert in Sharboneau used the comparable-sales 

method of appraisal to determine the land’s value. Id. The city’s expert offered 

evidence of three comparable land sales that were suitable for residential 

development. Id. The city’s expert determined the value of the condemned 

property after making adjustments to the three comparable properties to 

compensate for their varying characteristics. Id. 

The Sharboneau court explained that the subdivision development method is 

distinct from the comparable sales approach. Id. at 183–84. “Although 

subdivision development analysis requires the appraiser to examine the market for 

ready-to-build lots, such properties are not comparable to the larger, unsubdivided 

property actually being appraised. 

The court also recognized that “[c]ourts have long favored the comparable 

sales approach when determining the market value of real property.” Id. at 182. 

The court continued, 

If the goal of an appraisal is to ascertain market value, then logically 

there can be no better guide than the prices that willing buyers and 

sellers actually negotiate in the relevant market. Under a comparable 

sales analysis, the appraiser finds data for sales of similar property, 

then makes upward or downward adjustments to these sales prices 

based on differences in the subject property.
34

Id.

Ultimately, the Sharboneau court recognized that the subdivision 

development method may be a valid appraisal methodology for undeveloped land. 

Id. at 186. However, the court held the subdivision development method could not 

serve as a basis for the judgment in that case because the expert’s opinion “did not 

demonstrate what a willing buyer would pay to a willing seller in the relevant 

market”; thus it was not reliable or relevant. Id.

Unlike the landowner’s expert in Sharboneau, Sikes did not appraise the 

condemned property in this case utilizing the subdivision development method. 

Rather, as the city’s expert did in Sharboneau, Sikes appraised the property using 

the comparable-sales method. 

In addition, we note that the Supreme Court of Texas distinguished 

Sharboneau in a case in which the landowner asserted that the highest and best use 

of a 39-acre tract, condemned out of a 185-acre tract, was to partition the 39-acres 

into several individual tracts that could be sold as highway frontage commercial 

property. In re State, 355 S.W.3d at 615–16. Distinguishing Sharboneau, the 

State court wrote:

In a 10–acre tract like that considered in Sharboneau, it is unlikely 

that a 1/44th-tract lot would be bought for residential purposes unless 

the entirety of the residential subdivision had been planned and 
35

created, and substantial funds had been invested. Inferences like these 

are unnecessary to support the sale of parcels such as those into which 

the [landowners] divided their property. The costs of dividing raw 

land are insubstantial. If the [landowners] were to offer evidence that 

the typical size of highway-frontage commercial parcels was similar 

to their subdivided parcels, and that those parcels were similarly 

appropriate for that use, it would not be speculative to permit them to 

admit valuation evidence on that basis. Of course, the State would be 

permitted to offer its own evidence that the land was best valued as a 

single unit.

Id. at 616. 

This reasoning also applies in this case. Valuing the separate economic unit 

appraised by Sikes does not involve the same inferences that would be required to 

value a residential tract in an undeveloped residential subdivision. See id. Here, 

through Sikes, the Chanas offered evidence showing that similarly sized and 

situated parcels of land, comparable to the economic unit appraised by Sikes, were 

being purchased in the vicinity for commercial development.

2

 Thus, it was not 

speculative for the Chanas to offer valuation evidence based on the premise that 

the appraised economic unit was a separate, self-sufficient unit. See id. In short, 

the holding in Sharboneau does not serve to render the basis for Sikes’s opinion 

speculative. We hold that the State has not shown that the trial court abused its 

discretion by refusing to grant its motion to exclude the opinion testimony of Sikes

 

2 As discussed infra, the State objects to the admission of only five out of the ten 

comparable land sales relied on by Sikes. 
36

on the basis that the 2.385-acre tract, containing the condemned property, could not 

be valued as a separate economic unit. 

We overrule the State’s first and second issues.

Admissibility of Five Comparable Property Sales

In its third issue, the State asserts that the trial court abused its discretion by 

admitting into evidence certain property sales. Through Sikes, the Chanas offered 

into evidence ten property sales, which they asserted were comparable to the 

economic unit appraised by Sikes. The State objected to the admission of five of 

these sales: Chana Sale Numbers 4, 5, 6, 8, and 9. The State asserted that these 

five sales were not comparable to the condemned property because each sale had 

involved land that was part of an existing commercial subdivision, located at a 

busy intersection, with developed ready-to-build “pad sites,” and infrastructure 

already in place. See Sharboneau, 48 S.W.3d at 182 (“Comparable sales must . . . 

take place near in time to the condemnation, occur in the vicinity of the condemned 

property, and involve land with similar characteristics.”). The State averred that, 

in contrast, the Chanas’ property was “raw,” “undeveloped,” and not subdivided.

The State has also asserted that it would be unlikely that the appraised economic 

unit would be the first parcel to sell out of the Chanas’ land because it is an interior 

tract, not the corner tract of the property. 
37

We review the trial court’s decision to admit or exclude evidence for an 

abuse of discretion. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.

2000); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial 

court abuses its discretion when it acts without regard to any guiding rules or 

principles. Alvarado, 897 S.W.2d at 754. 

A trial court’s error in admitting evidence is reversible only if the error 

probably (though not necessarily) resulted in an improper judgment. Kia Motors 

Corp. v. Ruiz, 432 S.W.3d 865, 883 (Tex. 2014); see also TEX. R. APP. P.

44.1(a)(1) (providing that error does not result in reversal unless it “(1) probably 

caused the rendition of an improper judgment; or (2) probably prevented the 

appellant from properly presenting the case to the court of appeals”). To determine 

whether the trial court’s error was harmful, we review the entire record and require 

the complaining party to demonstrate that the judgment turns on the particular 

evidence admitted. Kia Motors Corp., 432 S.W.3d at 883. Error in admitting 

evidence is generally harmless if the objecting party later permits the same or 

similar evidence to be introduced without objection or the contested evidence is 

merely cumulative of properly admitted evidence and is not controlling on a 

material issue dispositive of the case. Bay Area Healthcare Group, Ltd. v. 

McShane, 239 S.W.3d 231, 234 (Tex. 2007); Interstate Northborough P’ship v. 
38

State, 66 S.W.3d 213, 220 (Tex. 2001); Richardson v. Green, 677 S.W.2d 497, 501 

(Tex. 1984). 

For purposes of analysis, we will presume, without deciding, that the trial 

court abused its discretion by admitting Chana Sale Numbers 4, 5, 6, 8, and 9. 

Although it has alleged that the trial court erred by admitting the five comparable 

land sales, the State has not explained how this alleged error caused harm. See 

Cortez v. HCCI–San Antonio, Inc., 131 S.W.3d 113, 119 (Tex. App.—San Antonio 

2004), aff’d, 159 S.W .3d 87 (Tex. 2005) (explaining that on appeal appellant has 

burden of showing how he or she was harmed by the exclusion of evidence). 

Nonetheless, we turn to the record to determine whether harm resulted from the 

admittance of the complained-of evidence.

The State does mention that Sikes relied on these land sales as examples 

supporting his statement that the trend in the market was to carve out and sell 

smaller tracts of land from bigger tracts for commercial development. This in turn 

supported Sikes’ opinion that the appraised tract was a separate economic unit. 

However, there were other sales admitted into evidence involving a sale of a 

smaller tract sold out of a larger tract. Chana Sale Number 1, of which the State 

does not complain, also involved the sale of a parcel of land, 2.167 acres, that was 

sold from a larger tract. This tract was less than one mile from the Chanas’ land, 
39

was equivalent in size to the appraised economic unit, and sold for $19.07 per 

square foot. 

In addition, through its expert, Dominy, the State also offered into evidence 

a sale in which a smaller tract of land had been sold out a larger tract. The State’s 

Sale Number 1 involved the sale of a 1.19-acre tract that sat at an intersection. 

That tract had been sold off from a larger tract of land. In addition, on crossexamination, Dominy acknowledged that the 1.19-acre tract had not been the first 

smaller tract to sell from that larger tract. He admitted that the first smaller tract to 

sell had been a tract “away from the intersection.” As the Chanas point out, a tract 

“away from the intersection” would be similarly situated to the economic unit

appraised by Sikes in this case.

In addition, Chana Sale Numbers 1, 2, 3, 7, and 10, of which the State does 

not complain, also provided support for the jury’s monetary award. These land 

sales involved property that sold from $7.70 to $19.07 per square foot. Sikes 

testified that he valued the condemned property to be worth $9.50 per square foot 

with the total compensation due the Chanas to be $922,256.00. Thus, Chana Sale 

Numbers 1, 2, 3, 7, and 10 support the monetary award. 
40

We hold that the trial court’s error, if any, in admitting Chana Sale Numbers 

4, 5, 6, 8, and 9 was harmless error. See TEX. R. APP. P. 44.1(a)(1). We overrule 

the State’s third issue.

Exclusion of Tax Protest Records

In its fourth issue, the State asserts that the trial court abused its discretion 

when it excluded testimony from a tax-protest hearing in which the Chanas 

challenged the taxes assessed on the property. 

Four months before the date of the taking in this case, Brandon Fisher, a tax 

consultant, appeared on behalf of the Chanas before the Harris County Appraisal 

Review Board to protest the taxes assessed on the Chanas’ property. Fisher stated 

under oath at the hearing that the market value of the Chanas’ 7.765-acre tract was 

$3.24 per square foot. 

The State sought to admit the record of the tax-protest hearing, asserting that 

Fisher’s statement, as to the market value of the property, was admissible as an 

admission or a statement against interest. See TEX. R. EVID. 801(e). The Chanas 

filed a motion to exclude the tax-protest hearing record. They asserted that, 

pursuant to Rule of Evidence 403, the probative value of the evidence was 

outweighed by the danger of unfair prejudice and would confuse the issues for the 

jury. See TEX. R. EVID. 403.
41

Following a pretrial hearing, the trial court granted the Chanas’ motion to 

exclude tax protest hearing record. The trial court stated that “using . . . Rule 403, 

I do believe the probative value of this tax protest record is substantially 

outweighed by the risk of unduly prejudice[ing] and confusing the jury.” 

During trial, the State requested the trial court to reconsider its ruling on the 

Chanas’ motion to exclude the tax protest evidence. The trial court denied the 

motion to reconsider. The State made an offer of proof for the appellate record 

with respect to the transcript of the tax-protest hearing. 

On appeal, the State asserts that the trial court erred by excluding the 

evidence because “[i]t is clearly established under Texas law that a property 

owner’s prior statements regarding fair market value of the owner’s property are 

admissible as substantive evidence in an eminent domain proceeding when the 

property owner participates in or adopts the declared value.” The State further 

avers, “This rule applies even where the prior statements of value were generated 

for tax purposes.”

In their brief, the Chanas do not dispute “that evidence of a tax rendition 

valuation can be admissible as an admission, or a statement against interest . . . .” 

The Chanas assert, however, that the State sought to admit more than just Fisher’s 

statement of the property’s value. Rather, at the hearing in the trial court, the State 
42

made clear that it sought to admit the entire transcript of the tax protest hearing 

into evidence.3

 

At the tax-protest hearing, Fisher sought to lower the tax assessed value on 

the Chana’s entire 7.785-acre property to $3.24 per square foot. To support this 

valuation, Fisher relied on three property sales and six property listings in the area 

of the Chanas’ property. Before the appraisal review board, Fisher testified as 

follows:

I’m looking at some comparable properties in the area and I found 

three sales, six listings. I think the listings definitely overpower the 

sales. In fact, there was only a couple of indicated sales in the area, 

especially because it’s hard to find sales in this size. Subject’s almost 

eight acres. Most of the properties in the area that are selling are 

much smaller tracts. Based on the listings of these properties and 

three sales, the median indicated value per square foot is $3.24 a 

square [foot], divide that by the subject property, gives me a value of 

[$] 1,095,975.

The next couple pages are just a break down of their sales, their 

size, and also the listings, as well. . . .

 

3 At the pretrial hearing on the motion to exclude, the trial court asked, “The records 

we are talking about here are not only their Exhibit D, right, the hearing affidavit, 

but you’re also talking about [the] testimony on the records?” The State 

responded that it had brought the file from the proceeding, including an audio 

recording of the tax protest hearing. The trial court then asked, “[P]lease tell me 

what kind of records we’re talking about. So in addition to the audio-recording, 

what else are we talking about?” The State responded that there was “[a] sworn 

affidavit from Mr. Fisher testifying as to market value of the property . . . [a]nd 

then the hearing evidence that they submitted in support of his opinion where he 

opines that the property is valued at $3.24 per square foot . . . .” Later, during its 

offer of proof, the State offered the entire transcript from the tax protest hearing. 
43

Fisher then proceeded to discuss a number of the comparable sales and listings on 

which he based his valuation. 

As shown in the foregoing excerpt, Fisher testified that he formulated his 

opinion regarding the value of the property based—not only on what he regarded 

as comparable sales—but also on property listings, which he stated “overpowered” 

the comparable sales information. The Chanas correctly point out that, in a 

condemnation suit, evidence of the price for which a similar property is being 

offered for sale is not admissible evidence to establish the fair market value of the 

condemned property. We have previously recognized, “The law is well settled that 

unaccepted offers to buy or sell are incompetent evidence of land value in 

condemnation suits.” State v. Clevenger, 384 S.W.2d 207, 209 (Tex. Civ. App.—

Houston 1964, writ ref’d n.r.e.) (citing Hanks v. Gulf, Colo. & S. F. Ry. Co., 320 

S.W.2d 333, 336 (Tex. 1959); Taub v. Hous. Indep. School Dist., 339 S.W.2d 227, 

229 (Tex. Civ. App.—Eastland 1960, writ ref’d n.r.e.); Loumparoff v. Housing 

Auth. of City of Dall., 261 S.W.2d 224, 228 (Tex. Civ. App.—Dallas 1953, no 

writ); State v. Layton, 147 S.W.2d 515, 517 229 (Tex. Civ. App.—Eastland 1941, 

no writ)); accord Sullivan v. Missouri, K. & T. Ry. Co. of Tex., 68 S.W. 745 (Tex. 

Civ. App. 1902) (stating in condemnation case, “It is not competent as evidence of 
44

value to prove offers for adjacent and similar property, or the price at which the 

owners of such property have offered it for sale”). 

We agree with the Chanas that the evidence of the listing prices, contained 

within the tax-hearing transcript, was inadmissible. See Clevenger, 384 S.W.2d at 

209. The State made no attempt to segregate this inadmissible evidence from the 

admissible evidence from the tax hearing. “It is well settled that where evidence is 

offered as a whole, only a part of which is admissible, the court does not commit 

error in sustaining an objection to such testimony, and in such case it is not the 

duty of the court or the party objecting thereto to separate the admissible from the 

inadmissible.” Perry v. Tex. Mun. Power Agency, 667 S.W.2d 259, 265 (Tex. 

App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.). Thus, we hold that the trial 

court did not abuse its discretion by excluding the record from tax-protest hearing.4

 

We overrule the State’s fourth issue.

 

4 Although the trial court stated that it excluded the tax hearing evidence based on 

Rule of Evidence 403, we must uphold the trial court’s evidentiary ruling if there 

is any legitimate basis for the ruling. See Owens–Corning Fiberglas Corp. v. 

Malone, 972 S.W.2d 35, 43 (Tex. 1998); Oyster Creek Fin. Corp. v. Richwood 

Invs. II, Inc., 176 S.W.3d 307, 317 (Tex. App.—Houston [1st Dist.] 2004, pet. 

denied).
45

Conclusion

We affirm the judgment of the trial court. 

Laura Carter Higley

Justice

Panel consists of Justices Jennings, Higley, and Huddle.