author: BOB McCOY, Justice.

text:
    William Lane ETHEREDGE, Jr., Appellant, v. HIDDEN VALLEY AIRPARK ASSOCIATION, INC., Appellee.
    No. 2-04-184-CV.
    Court of Appeals of Texas, Fort Worth.
    June 30, 2005.

      Shannon, Gracey, Ratliff & Miller, L.L.P., Paul Gianni, and Chris Nickelson, Fort Worth, for Appellant.
    Minor & Jester and Kurt S. Elieson, Denton, for Appellee.
    Panel B: DAUPHINOT, WALKER, and McCOY, JJ.
   OPINION ON REHEARING

BOB McCOY, Justice.

After reviewing Appellee Hidden Valley Airpark Association, Inc.’s motion for rehearing, we deny the motion. We withdraw our June 2, 2005 opinion and judgment and substitute the following in their place.

I. INTRODUCTION

Appellant William Lane Etheredge, Jr. appeals the trial court’s grant of summary judgment in favor of appellee Hidden Valley Airpark Association, Inc. (“HVAA”). Because the face of the record shows that the trial court erred by granting summary judgment despite Etheredge’s lack of notice of the summary judgment motion and hearing, we will reverse and remand.

II. BACKGROUND

In 1989, Etheredge bought lot 6a in the Hidden Valley Estate subdivision. HVAA, a Texas nonprofit corporation, operates and maintains an airstrip, clubhouse, private lake, and other facilities related to the Hidden Valley Estate subdivision. HVAA admitted Etheredge as a member, and he commenced paying dues and assessments. In 1991, Etheredge decided to build an airplane hangar on his property, and he began construction after HVAA and the town of Shadyshores approved his plans. Following complaints from neighbors that the structure being built was dissimilar from the approved plans, Etheredge met with HVAA’s board of directors to explain the changes. On August 7,1991, the members of HVAA and Etheredge reached a compromise, approved at a special meeting of the HVAA membership, regarding the construction of the hangar.

Nearly four years later, on May 31, 1995, Etheredge inexplicably notified HVAA that he intended to cease paying dues until he had recouped approximately $4,200, claiming that he incurred that amount due to delays in construction during the 1991 dispute over the hangar. The compromise reached in 1991 contains no mention of recoupment of costs. Ether-edge asserted that he would resume paying dues sometime in 2002, when he had recouped the $4,200. HVAA did not respond to Etheredge’s intention to withhold dues. In March 2002, after Etheredge began paying dues again, HVAA’s attorney sent him a letter stating that HVAA had applied his recent payments to his unpaid dues invoices and demanding $5,210 in past due fees and assessments and $250 in attorney’s fees. In response, Etheredge stopped paying dues altogether.

HVAA then sued Etheredge in January 2003 for defaulting on his obligation to pay dues and assessments. Upon being served with the lawsuit, Etheredge sent a letter to the district clerk asserting that he was not in default. Etheredge sent a second letter to the district clerk explaining that he had withheld dues payments to offset additional construction costs incurred during the airplane hangar dispute. Ether-edge never hired an attorney, instead choosing to proceed pro se.

Several months later, HVAA sent Eth-eredge a request for admissions via certified mail, return receipt requested, postmarked September 19, 2003, to the return address listed on Etheredge’s letters to the district clerk. The request for admissions was returned “unclaimed.” HVAA next filed a motion for summary judgment, set it for hearing on December 18, 2003, and sent the motion and notice of hearing to the same address via certified mail, return receipt requested, postmarked November 4, 2003. Again, this mailing was returned “unclaimed.”

On December 18, 2003, the trial court conducted a hearing on HVAA’s motion for summary judgment, at which Etheredge did not appear. The trial court granted the motion and signed a judgment in favor of HVAA. In its judgment, the trial court found that Etheredge had been properly served with HVAA’s requests for admissions and with HVAA’s motion for summary judgment and notice of hearing. Etheredge filed no postjudgment motions or notice of appeal until June 16, 2004, when he filed this restricted appeal.

III. RESTRICTED APPEAL

A restricted appeal is a procedural device available to a party who did not participate, either in person or through counsel, in a hearing that resulted in a judgment against the party. Tex.R.App. P. 80. The party must not have timely filed a postjudgment motion, request for findings of fact and conclusions of law, or a notice of appeal. Id. In this situation, a party may institute a restricted appeal by filing a notice of appeal within six months after the judgment is signed. See Tex.R.App. P. 26.1(c).

Specifically, a direct attack on a judgment by restricted appeal must (1) be brought within six months after the trial court signs the judgment (2) by a party to the suit (3) who did not participate in the actual trial, and (4) the error complained of must be apparent from the face of the record. Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.1997). These requirements should be liberally construed in favor of the right to appeal. Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex.1985). The parties agree that the first three elements of the restricted appeal requirements have been met and that the focus of this appeal is whether error is apparent on the face of the record.

A. Notice of Motion for Summary Judgment

In his first issue, Etheredge argues that the trial court erred in concluding that he received actual and constructive notice of HVAA’s motion for summary judgment and the summary judgment hearing setting. The Texas Rules of Civil Procedure require motions for summary judgment and notices of hearings to be served on all parties of record. Tex.R. Crv. P. 21, 166a(c). Rule 166a gives the nonmovant the right to have minimum notice of the hearing on a motion for sum-rnary judgment. See Lewis v. Blake, 876 S.W.2d 314, 315 (Tex.1994). Lack of notice to the nonmovant of the summary judgment hearing violates the nonmovant’s due process rights. See Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 672 (Tex.App.-Fort Worth 1996, no writ) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84-85, 108 S.Ct. 896, 899, 99 L.Ed.2d 75 (1988); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.1988); Mosser v. Plano Three Venture, 893 S.W.2d 8, 12 (Tex.App.-Dallas 1994, no writ)).

A document may be served on a party by delivering a copy via certified or registered mail to the party’s last known address. Tex.R. Civ. P. 21a. Service by mail is complete upon deposit of the document, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service. Id. A certificate by a party or an attorney of record is prima facie evidence of the fact of service. Id. Accordingly, Rule 21a creates a presumption that a notice of hearing setting, when properly mailed, was received by the addressee. See Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex.1987).

However, the opposing party may rebut this presumption by offering proof that the notice or document was not received. Id.; see also Tex.R. Crv. P. 21a (“Nothing [in Rule 21a] shall preclude any party from offering proof that the notice or instrument was not received.... ”). Here, it is apparent on the face of the record that Etheredge did not receive notice either of the motion for summary judgment or of the hearing on the motion: an affidavit of HVAA’s attorney filed with the trial court in support of HVAA’s motion for summary judgment states that the envelope containing copies of HVAA’s motion for summary judgment and the fiat setting the motion for hearing was returned bearing a stamp in red ink indicating that the envelope was unclaimed by the addressee. The affidavit attaches a copy of the envelope, which is stamped “UNCLAIMED.”

HVAA argues that proper service by mail under Rule 21a does not depend upon actual receipt by the addressee and that all Rule 21a requires of a serving party is to deposit the document in the mail. We disagree. “[IJmplieit in the concept of service is the need for the party upon whom an item is served to actually receive it.” Payton v. Ashton, 29 S.W.3d 896, 898 (Tex.App.-Amarillo 2000, no pet.); see also Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 928 (Tex.1999) (concluding that nonmovant had not been served with motion of nonsuit when presumption of receipt raised by certificate of service was rebutted by evidence of nonreceipt). If not, “then there would be no reason for those who drafted Rule 21a to state that nothing precluded a party from establishing non-receipt.” Payton, 29 S.W.3d at 898. Accordingly, a notice of hearing setting sent by certified mail and returned “unclaimed” does not provide the notice required by Rule 21a. Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 764 (Tex.App.-Dallas 2004, pet. denied); see also Payton, 29 S.W.3d at 898-99 (holding that trial court did not err in refusing to deem unanswered requests for admissions admitted because requests had been returned to sender unclaimed); Rabie v. Sonitrol of Houston, Inc., 982 S.W.2d 194, 197 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (holding that motion for summary judgment and notice of motion’s submission sent by certified mail but returned unclaimed did not provide non-movant with due notice).

Even when a party does not receive actual notice, if the serving party has complied with the requirements of Rule 21a, “constructive notice” may be established if the serving party presents evidence that the intended recipient engaged in instances of selective acceptance or refusal of certified mail relating to the case, see Gonzales v. Surplus Ins. Servs., 863 S.W.2d 96, 102 (Tex.App.-Beaumont 1993, writ denied), overruled on other grounds, Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex.2002), or that the intended recipient refused all deliveries of certified mail, see Roberts v. Roberts, 133 S.W.3d 661, 663 (Tex.App.-Corpus Christi 2003, no pet.). Here, even though the presumption of receipt was rebutted by evidence that the notice of hearing was returned “unclaimed,” HVAA presented no evidence that Etheredge dodged or refused delivery of certified mail. Accord ingly, constructive notice of the summary judgment hearing could not be imputed to Etheredge. See Pessel v. Jenkins, 125 S.W.3d 807, 810 (Tex.App.-Texarkana 2004, no pet.) (holding that trial court erred in determining that defendants received notice of trial setting when notice was returned unclaimed and plaintiffs offered no proof of “selective aeceptance/re-fusal” of certified mail). Because the face of the record shows that Etheredge received neither actual nor constructive notice of HVAA’s motion for summary judgment and the hearing on the motion, we sustain Etheredge’s first issue.

B. Notice of Request for Admissions

Etheredge argues in his second issue that the trial court also erred in concluding that he received actual and constructive notice of HVAA’s request for admissions. Again, the presumption of receipt was rebutted by proof on the face of the record that Etheredge did not receive the request for admissions: an affidavit of HVAA’s attorney filed with the trial court in support of HVAA’s motion for summary judgment states that the envelope sent to Etheredge containing the requests for admissions was returned unclaimed and attaches a copy of the envelope, which is stamped “UNCLAIMED.” See Payton, 29 S.W.3d at 898. And again, without evidence in the record that Etheredge dodged or refused delivery of certified mail, constructive notice of the request for admissions cannot be imputed to him. See Pessel, 125 S.W.3d at 810; Roberts, 133 S.W.3d at 663. We sustain Etheredge’s second issue.

C. Effect of Lack of Notice on Trial Court’s Grant of Summary Judgment

Etheredge argues in his third issue that, because he did not receive proper notice of the summary judgment hearing, the trial court’s grant of summary judgment was improper. Because summary judgment is a harsh remedy, we must strictly construe the notice requirements of the rule. See Int’l Ins. Co. v. Herman G. West, Inc., 649 S.W.2d 824, 825 (Tex.App.-Fort Worth 1983, no writ). The movant must comply with all the requirements of Rule 166a before being entitled to summary judgment, and proper notice to the nonmovant of the summary judgment hearing is a prerequisite to summary judgment. Id.; Rozsa v. Jenkinson, 754 S.W.2d 507, 509 (Tex.App.-San Antonio 1988, no writ). Accordingly, because Eth-eredge received neither actual nor constructive notice of the summary judgment hearing, the trial court erred by granting HVAA’s motion for summary judgment without notice to Etheredge. See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.1998); Rozsa, 754 S.W.2d at 509.

Contrary to HVAA’s argument, our conclusion that Etheredge was not served with proper notice of the summary judgment motion and hearing and request for admissions is not guided by improper considerations of equitable grounds under the Craddock standard for motions for new trial. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). Instead, without regard to equitable principles, we look solely to the issue of whether the record shows that the trial court erred by finding that Etheredge had proper notice of the motion and hearing. See Norman Communications, 955 S.W.2d at 270. The affidavits of HVAA’s counsel and the copies of the envelopes stamped “UNCLAIMED” provide this showing on the face of the record. Accordingly, we sustain Etheredge’s third issue.

IV. CONCLUSION

Because we hold that the trial court erred by granting HVAA’s summary judgment motion without proper notice to Etheredge, and because evidence of this error is apparent on the face of the record, we reverse the trial court’s judgment and remand the case for proceedings consistent with this opinion.

      . Norman Communications refers to the appeal by "writ of error” procedure under the former appellate rules, which has been Te-placed by the restricted appeal. See Tex. R.App. P. 30 notes and comments.

      . Because of our disposition of Etheredge’s first three issues on appeal, we need not reach his remaining issues. See Tex.R.App. P. 47.1.

      . Etheredge asks to be allowed on remand to respond to HVAA’s request for admissions. A party responding to a request for admissions must serve a written response "within 30 days after service of the request.” Tex.R. Civ. P. 198.2(a). Because receipt is implicit in the concept of service, a party’s duty to respond to requests for admissions is triggered upon receipt of the requests. Payton, 29 S.W.3d at 898. Therefore, on remand, Rule 198.2 will allow Etheredge thirty days to respond upon receiving HVAA’s request for admissions unless HVAA establishes that Etheredge has already received constructive notice of the request. See Tex.R. Civ. P. 198.2(a); Roberts, 133 S.W.3d at 663; Payton, 29 S.W.3d at 898.


source: Caselaw Access Project

author: TERRIE LIVINGSTON, Justice.

license: Public Domain

text:
    Danny Lee BELL, Sr. a/k/a Danny Lee Bell, Appellant, v. The STATE of Texas, State.
    No. 2-03-214-CR.
    Court of Appeals of Texas, Fort Worth.
    July 7, 2005.

      Law Offices of Moore & Cummings, Larry M. Moore, Fort Worth, for appellant.
    Tim Curry, Criminal District Attorney, Charles M. Mallín, Debra Ann Windsor, Mark Thielman, Richard Bland, Assistant Criminal District Attorneys, Fort Worth, for state.
    PANEL A: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

Appellant appeals from his conviction by a jury for the offense of murder. In six points, appellant argues that the trial court erred by (1) failing to include in its charge to the jury an instruction on causation as defined by section 6.04(a) of the penal code, (2) including in its charge to the jury an instruction on the law of parties as defined by section 7.02(a)(2) of the penal code, (3) submitting a supplemental charge to the jury on the issue of transferred intent under section 6.04(b) of the penal code, (4) denying appellant’s motion to suppress his written statement, (5) denying appellant’s motion to suppress evidence seized from his car, and (6) including in its judgment an affirmative finding of the use of a deadly weapon. We affirm.

II. Background Facts

On January 29, 2000, appellant and his girlfriend Amy Burdick went to the Pink Poodle lounge in Fort Worth. While they were there, appellant’s father, who was also at the Pink Poodle that night, got into an argument with Kevin Murphy, who worked at the lounge. In the early morning hours of January 30, Kevin Murphy and James Thompson, a customer, left the Pink Poodle and started walking across the parking lot toward the cafe next door. Appellant and Burdick were in the parking lot at the time, and Burdick got into an argument with Thompson. Appellant and Burdick then got into appellant’s car, a maroon Ford Thunderbird. Appellant was driving and Burdick was in the passenger seat. They sped through the parking lot, hitting Thompson. They left the parking lot without stopping to help Thompson, who later died of his injuries.

Cathy Collins had known appellant for around twenty years or more. Collins and her friend Rhonda Burcham lived in a house near the Pink Poodle and were at the Pink Poodle that night. Both later told the police that appellant and Burdick stopped by their house that night and that appellant told them that he had meant to hit Murphy with his car. Burcham told the police that appellant said that he had meant to hit Murphy but had hit Thompson instead.

Fort Worth police arrested appellant at his aunt’s home in Tolar, Texas ten days later. Fort Worth police found appellant’s car in nearby Somervell County. In a statement to the police, appellant said that on January 30, Burdick and Thompson had argued in the parking lot of the Pink Poodle. Appellant stated that he was just trying to get Burdick out of there and that he drove fast through the parking lot to avoid a confrontation between Burdick and Thompson. According to appellant, as he drove past Thompson, Burdick opened the passenger door, hitting Thompson. She then yelled, “Go, go, go. I got the mother* * * * * Appellant stated that he did not intend to hit Thompson. Appellant pled not guilty to one count of murder.

Before his trial, appellant filed several motions to suppress the evidence seized as a result of his arrest, his oral and written statements, and the physical evidence obtained from his car. The trial court denied appellant’s motions. A jury found him guilty of murder and assessed his punishment at life imprisonment. Because appellant’s fourth and fifth points are potentially dispositive of his appeal, we will address those points first.

III. Appellant’s Written Statement

In his fourth point, appellant argues that the trial court erred by denying his motion to suppress his written statement. He argues that his statement resulted from an illegal arrest based on a warrant that lacked probable cause, resulted from violations of articles 15.18 and 15.19 of the code of criminal procedure, and was involuntary.

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); State v. Ballman, 157 S.W.3d 65, 68 (Tex.App.-Fort Worth 2004, pet. filed); Harrison v. State, 144 S.W.3d 82, 85 (Tex.App.-Fort Worth 2004, pet. granted); Best, 118 S.W.3d at 861-62. However, when the trial court’s rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court’s rulings on mixed questions of law and fact. Johnson, 68 S.W.3d at 652-53.

A. Arrest Warrant Affidavit

Appellant argues that the affidavit drafted by Detective Jose Antonio Hernandez in support of the warrant for appellant’s arrest fails to state sufficient facts from which a neutral and detached magistrate could determine that probable cause existed to believe that appellant murdered Thompson. An affidavit supporting an arrest warrant “must provide the magistrate with sufficient information to support an independent judgment that probable cause exists to believe that the accused has committed an offense.” Ware v. State, 724 S.W.2d 38, 39-40 (Tex.Crim.App.1986). Mere conclusions in the affidavit are not sufficient. Id. at 40.

For an arrest to be justified under the Fourth Amendment, there must be probable cause to believe that a person has engaged in or is engaging in criminal activity. Ballman, 157 S.W.3d at 68. We apply a deferential standard of review when reviewing the propriety of an arrest with a warrant. See Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App.2004); Davis v. State, 144 S.W.3d 192, 196-97 (Tex.App.-Fort Worth 2004, pet. ref'd) (op. on reh’g). We look to the “totality of the circumstances” regarding the information contained in the affidavit. Davis, 144 S.W.3d at 196-97. However, our review is limited to examining the four corners of the affidavit to determine whether probable cause exists. Id. at 197.

Here, Detective Hernandez stated in the arrest warrant affidavit that several witnesses, including Kevin Murphy, saw a white male and a white female hit Thompson with their car after arguing with him. Thompson died several days later. Detective Hernandez stated that he met with Cathy Collins and Rhonda Burcham on February 7, 2000 and that both women told him that appellant had visited their house the night Thompson was hit and had told them that he had tried to hit Murphy with his car. According to Burcham, appellant said that he had tried to hit Murphy, but had hit Thompson instead. Further, Detective Hernandez stated that both women identified pictures of appellant and Burdick from a photo line-up as the persons who came to their house that night.

Detective Hernandez’s affidavit contained specific facts based on the personal observations of Murphy, Collins, Burcham, and Ronald Schultz, who were identified in his affidavit and interviewed by him. See Matamoros v. State, 901 S.W.2d 470, 478 (Tex.Crim.App.1995) (holding that a probable cause affidavit is sufficient if it specifies a named informant as supplying the information upon which probable cause is based and is sufficiently detailed to suggest direct knowledge on the informant’s part.) We conclude that these facts provided the magistrate with a substantial basis to make a probable cause determination that appellant committed murder.

B. Articles 15.18 and 15.19 of the Code of Criminal Procedure

Appellant also argues that his written statement should have been suppressed because it resulted from violations of articles 15.18 and 15.19 of the code of criminal procedure. Tex.Code Crim. PROC. Ann. arts. 15.18, 15.19 (Vernon 2005). Article 15.18 of the code of criminal procedure requires that a person arrested under a warrant issued in a county other than the one in which the person is arrested be taken before a magistrate of the county in which the person was arrested. Id. art. 15.18. The magistrate shall take bail, if allowed by law, and immediately transmit the bond taken to the court having jurisdiction of the offense. Id. According to article 15.19, if the person fails or refuses to give bail, he shall be committed to the jail of the county in which he was arrested. Id. art. 15.19.

Article 38.23 provides that no evidence obtained by an officer in violation of the Constitution or laws of the State of Texas shall be admitted in evidence against the accused in a criminal case. Id. art. 38.23(a) (Vernon 2005). However, evidence is not “obtained ... in violation” of the law if there is no causal relationship between the illegal conduct and the acquisition of the evidence. Gonzales v. State, 67 S.W.3d 910, 912 (Tex.Crim.App.2002).

Fort Worth police officers and Hood County sheriffs deputies arrested appellant at his aunt’s house in Hood County under an arrest warrant that was issued in Tarrant County. He was Mirandized and taken to the Hood County courthouse, where a magistrate advised him of his rights again. After the magistrate released appellant into their custody, the Fort Worth police officers transported appellant to Fort Worth, where Detective Hernandez Mirandized him again before interviewing him. Appellant signed a form that contained a statement of his rights. Appellant then gave a written statement in which he voluntarily waived his rights.

Appellant argues that he should have been placed in the Hood County jail after being taken before the Hood County magistrate rather than being transported to Tarrant County. Without deciding whether officials violated articles 15.18 and 15.19, we conclude that appellant presented no evidence that he would not have given a written statement had he been booked into the Hood County Jail. Appellant has not shown that the alleged violations caused him to involuntarily give his written statement. In fact, appellant has not shown that the alleged violations resulted in anything other than his expedited return to Fort Worth. Therefore, appellant has not shown a causal connection between the alleged violations of the code of criminal procedure and the acquisition of his written statement.

C. Involuntariness

Appellant also argues that he did not voluntarily give his written statement. We must examine the totality of the circumstances to determine whether a statement was given involuntarily. Creager v. State, 952 S.W.2d 852, 856 (Tex.Crim.App.1997). The ultimate question is whether the defendant’s will was overborne. Id. To answer this question, courts look at circumstances such as length of detention, incommunicado or prolonged interrogation, denying family access to a defendant, refusing a defendant’s request to telephone a lawyer or family, and physical brutality. Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Crim.App.1985), overruled on other grounds, Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App.1998).

Appellant was arrested around 11:00 a.m. on February 10, 2000 and was given his Miranda warnings by the arresting officer. A Hood County magistrate advised appellant of his rights before releasing him into the custody of the Fort Worth police officers. The police transported appellant to the Fort Worth police station. There, after noticing that appellant had several scrapes, Detective Hernandez made appellant take his clothes off so that a crime scene officer could photograph his body. Detective Hernandez again read appellant his Miranda warnings. Appellant waived his rights and initialed a form containing a written statement of his rights. Detective Hernandez began interviewing appellant around 2:00 p.m. that day, and appellant signed his written statement around 10:00 p.m. that night. Appellant never indicated that he did not want to answer any more questions or that he wanted to speak to a lawyer. Moreover, there is no evidence that police physically abused appellant. Although appellant was in handcuffs and leg shackles during the interview, there is no evidence that appellant requested but was denied food, water, or bathroom breaks. Based on the totality of the circumstances, we conclude that appellant’s written statement was voluntarily given. We overrule appellant’s fourth point.

IY. Evidence from Appellant’s Car

In his fifth point, appellant argues that the trial court erred by denying his motion to suppress evidence seized from his car. Specifically, appellant contends that the evidence should have been suppressed because (1) the police trespassed onto private property to seize the evidence, (2) the affidavits supporting the search warrants lacked probable cause, (3) the police violated the code of criminal procedure by removing from Somervell County appellant’s car and the evidence seized under the warrant, and (4) the police violated the code of criminal procedure by failing to make a proper inventory and return and properly maintain the property seized under the Tarrant County search warrant.

A. Trespass

Appellant argues that evidence seized from his car should be excluded under article 38.23 because officers committed trespass when they seized the car. See Tex.Code Ckim. PROC. Ann. art. 38.23. After appellant was arrested, he told Fort Worth police officers that his car was located at the home of Carla Goodwin in nearby Somervell County. Appellant’s aunt, Beverly Martin, called Goodwin and told her that the police were coming to seize the car. Fort Worth police drove to Goodwin’s residence and were met by an investigator from the Somervell County Sheriffs Office. The officers had to drive some distance up Goodwin’s driveway before they were able to see appellant’s car parked in front of Goodwin’s house. The officers knocked on Goodwin’s door, but no one answered. Police later seized the car and transported it to the Somervell County impound yard.

Article 38.23(a) does not confer automatic third-party standing on a defendant to complain about evidence obtained in violation of the rights of others. Fuller v. State, 829 S.W.2d 191, 202 (Tex.Crim.App.1992), cert. denied, 508 U.S. 941, 113 S.Ct. 2418, 124 L.Ed.2d 640 (1993); see also Janecka v. State, 739 S.W.2d 813, 830 (Tex.Crim.App.1987) (holding that defendant has no standing to complain of an illegal search of another’s residence), cert. denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997); McArthur v. State, 1 S.W.3d 323, 329 (Tex.App.-Fort Worth 1999, pet. ref'd) (holding that defendant has no standing to complain of the seizure of phone records that belong to defendant’s employer), cert. denied, 531 U.S. 873, 121 S.Ct. 176, 148 L.Ed.2d 121 (2000). Here, appellant has no standing to complain that police trespassed on Goodwin’s land when they seized his car.

B. Search Warrant Affidavits

Appellant argues that the affidavits supporting search warrants issued in Tarrant and Somervell Counties failed to set forth sufficient facts from which a magistrate could determine there was probable cause to search his car. In reviewing a search warrant affidavit, we must determine whether there is a fair probability, not an actual showing, that evidence of a crime will be found in a particular place in light of the totality of the facts set forth in the affidavit. Davis, 144 S.W.3d at 197.

1. Somervell County

A Somervell County magistrate issued a search warrant authorizing the search of appellant’s car. In his affidavit supporting the search warrant, Detective Manny Reyes set forth the background facts of the offense. He also stated that appellant and Burdick had given voluntary statements in which they admitted hitting Thompson with appellant’s car. In light of these facts, there was a fair probability that evidence of Thompson’s murder would be found in or on appellant’s car. Therefore, the affidavit provided the magistrate with a substantial basis to conclude that a search would uncover evidence of a crime.

2. Tarrant County

After the Somervell County warrant was executed, a Tarrant County magistrate issued another search warrant for appellant’s car. Like the Somervell County search warrant affidavit, the Tarrant County search warrant affidavit set forth the background facts of the offense and stated that Burdick and appellant had given voluntary statements in which they admitted hitting Thompson with appellant’s car. The affidavit explained that certain evidence had been obtained under the Somervell warrant but that additional evidence needed to be collected from appellant’s car, which was being stored in the Fort Worth Police Department Auto Pound. Specifically, the affidavit requested permission to analyze the passenger side windshield wiper of appellant’s car and glass fragments inside appellant’s car in order to search for traces of Thompson’s blood and fibers from Thompson’s clothes. From these facts, there was a fair probability that additional evidence of Thompson’s murder would be found in appellant’s car, and therefore we hold that the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant.

C. Articles 18.09, 18.10, and 18.11 of the Code of Criminal Procedure

Appellant argues that evidence obtained from his car should have been suppressed because officers violated articles 18.09, 18.10, and 18.11 of the code of criminal procedure. Tex.Code Crim. Proc. Ann. arts. 18.09, 18.10, 18.11 (Vernon 2005). Article 18.09 requires that the officer who seizes property under a search warrant carry the property before a magistrate. Id. art. 18.09. According to article 18.10, after returning a search warrant, the officer shall deliver to the magistrate a copy of the inventory of the property taken into his possession under the warrant. Id. art. 18.10. Article 18.10 also requires the officer to retain custody of the property until the magistrate issues an order directing the manner of the safekeeping of the property and prohibits the removal of the property from the county in which it was seized without an order approving the removal from a magistrate in the county in which the warrant was issued. Id. Article 18.11 requires that property seized under a search warrant be kept as provided by the magistrate’s order issued under article 18.10. Id. art. 18.11.

In the present case, after police executed the Somervell search warrant, they moved appellant’s car and the property seized from it to Tarrant County without an order from a magistrate in Somervell County authorizing the move. In addition, police did not carry property seized under the Somervell warrant before the Somer-vell County magistrate. After executing the Tarrant County search warrant, police also failed to deliver a copy of the inventory of the property seized under the warrant to the magistrate. However, as we discussed earlier, article 38.23 does not require suppression of evidence if there is no causal relationship between the illegal conduct and the acquisition of the evidence. Tex.Code Crim. Proc. Ann. art. 38.23(a); Gonzales, 67 S.W.3d at 912. Appellant has not shown that police would not have obtained the evidence from his vehicle had they complied with the provisions in the code of criminal procedure relating to the handling of evidence seized under a search warrant. Additionally, appellant has made no showing of prejudice. Appellant argues only that the car may have been damaged on its front bumper during the tow. We overrule appellant’s fifth point.

Y. Causation

In his first point, appellant argues that the trial court erred by failing to include in its charge to the jury an instruction on “causation” as defined by section 6.04(a) of the penal code. See Tex. Penal Code Ann. § 6.04(a) (Vernon 2003).

We look to article 36.19 of the code of criminal procedure for the standards of appellate review of claimed jury charge error. Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Trevino v. State, 100 S.W.3d 232, 242 (Tex.Crim.App.2003). Appellate review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). Initially, we must determine whether error occurred; if so, we must then evaluate whether sufficient harm resulted from the error to require reversal. Trevino, 100 S.W.3d at 242; Abdnor, 871 S.W.2d at 731-32. Error in the charge, if timely objected to in the trial court, requires reversal if the error was “calculated to injure [the] rights of the defendant,” which means no more than that there must be some harm to the accused from the error. Tex.Code Crim. Proc. Ann. art. 36.19; see also Trevino, 100 S.W.3d at 242; Abdnor, 871 S.W.2d at 731-32; Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g). In other words, a properly preserved error will call for reversal as long as the error is not harmless. Almanza, 686 S.W.2d at 171. In making this determination, “the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App.2000).

Error due to erroneous omissions in the jury charge can result from either “omissions of issues upon which a trial court has a duty to instruct without a request from either party or issues that have been timely brought to the trial court’s attention.” Huizar v. State, 12 S.W.3d 479, 483 (Tex.Crim.App.2000) (quoting Posey v. State, 966 S.W.2d 57, 63-64 (Tex.Crim.App.1998)); Bluitt v. State, 70 S.W.3d 901, 904-06 (Tex.App.-Fort Worth 2002), rev’d on other grounds, 137 S.W.3d 51 (Tex.Crim.App.2004); see also Tex.Code Crim. Proc. Ann. arts. 36.14,36.15 (Vernon Supp.2004-05), art. 36.16. An accused is entitled to an instruction on every defensive issue raised by the evidence regardless of whether the evidence is strong, feeble, unimpeached, or contradicted, and even if the trial court thinks that the evidence should not be believed. Warren v. State, 565 S.W.2d 931, 933-34 (Tex.Crim.App.1978).

According to section 6.04(a) of the penal code, “A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” Tex. Penal Code Ann. § 6.04(a). Section 6.04(a) requires the State to establish a “but for” causal connection between the defendant’s conduct and the resulting harm. Robbins v. State, 717 S.W.2d 348, 351 (Tex.Crim.App.1986). As the Robbins court explained,

If concurrent causes are present, two possible combinations exist to satisfy the “but for” requirement: (1) the defendant’s conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause; or (2) the defendant’s conduct and the other cause together may be sufficient to have caused the harm.

Id. Section 6.04(a) limits the “but for” causality by providing that the defendant cannot be convicted if the additional cause, other than defendant’s conduct, is clearly sufficient by itself to produce the result, and the defendant’s conduct by itself is clearly insufficient to produce the result. Id.

Under appellant’s defensive theory, the cause of Thompson’s death was not appellant’s act of driving the car but Burdick’s independent act of opening the car door. In his statement to the police, appellant claimed that he did not intend to hit Thompson with the car and that he was unaware that Burdick intended to open the car door to hit Thompson. But appellant presented no evidence that the concurrent cause was clearly sufficient by itself to produce the result. That is, appellant presented no evidence that Burdick’s act of opening the door, by itself, was sufficient by itself to cause Thompson’s death. Absent appellant’s act of actually driving the ear, there is no evidence that Burdick’s act of opening the car door would have caused Thompson’s death. But appellant’s act of driving the car and ultimately hitting Thompson could have been sufficient by itself to have caused Thompson’s death. Therefore, the trial court did not err by failing to include in the jury charge an instruction on concurrent causation. We overrule appellant’s first point.

VI. Law of Parties

Appellant argues in his second point that the trial court erred by including in its charge to the jury an instruction on the law of parties under section 7.02(a) of the penal code. See Tex. Penal Code Ann. § 7.02(a) (Vernon 2003). Appellant contends that the evidence showed either that he did not intend to commit the crime or that he intended to commit the crime but acted alone.

A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Id. § 7.01(a). Section 7.02(a)(2) of the penal code provides that a person is criminally responsible for an offense committed by the conduct of another if “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2). Generally, the trial court may instruct the jury on the law of parties if there is sufficient evidence to support a jury verdict that the defendant is criminally responsible under the law of parties. Ladd v. State, 3 S.W.3d 547, 564 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). The court may consider the events that took place before, during, and after the commission of the crime. See Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App.2004); Goff v. State, 931 S.W.2d 537, 545 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997).

In the present case, there is evidence that appellant and Burdick had argued with Thompson the night he was hit by the car. In his statement to police, appellant said that Burdick had told him that he should “kick [Thompson’s] ass” and that she wanted to “get [Thompson].” He also said that he was “a little ticked” that Thompson had called Burdick a whore.

Appellant admitted that he drove the car that hit Thompson but stated that he did not intend to hit Thompson and that Thompson was struck when Burdick opened her car door. According to statements given to the police by Collins and Burcham, however, appellant told them that he had meant to hit Murphy but had hit Thompson instead. Physical evidence suggested that the passenger door had struck Thompson; the passenger door window was broken out and there was damage to the passenger door itself. However, there was also damage to the windshield on the passenger side of the car, suggesting appellant had been hit by the front of the car. Also, eyewitness testimony showed that appellant was the driver, that he revved the car engine before striking Thompson, and that he drove fast through the parking lot.

Based on these facts, we conclude that there was sufficient evidence for the jury to find that appellant acted with the intent to promote or assist the commission of murder and solicited, encouraged, directed, aided, or attempted to aid Burdick in murdering Thompson. Accordingly, the trial court did not err by including an instruction on the law of parties in its charge to the jury. We overrule appellant’s second point.

VII. Transferred Intent

Appellant argues in his third point that the trial court erred by submitting a supplemental charge to the jury on the issue of transferred intent. Section 6.04(b) of the penal code codifies the doctrine of transferred intent, which is a theory of criminal responsibility. Chimney v. State, 6 S.W.3d 681, 700 (Tex.App.-Waco 1999, pet. ref'd). Section 6.04(b) provides,

A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:
(1) a different offense was committed; or
(2) a different person or property was injured, harmed, or otherwise affected.

Tex. Penal Code Ann. § 6.04(b). Under the statute, a defendant can be “criminally responsible” for the death of another if he actually caused the victim’s death while acting with the intent to kill a different person, even if he did not intend to kill the actual victim. Chimney, 6 S.W.3d at 700. Transferred intent is an issue to be determined during the guilt-innocence phase of the trial. Id.

The trial court’s original charge to the jury included an instruction on the law of transferred intent in the abstract portion of the charge but did not address the law of transferred intent in the application paragraphs. The State referred to transferred intent during its closing argument, and appellant objected, arguing that the State’s argument was improper because the charge did not contain an application paragraph on the issue of transferred intent. The trial court sustained appellant’s objection and instructed the jury to disregard the State’s last statement referring to transferred intent. The trial court proposed giving the jury a supplemental charge that would include an application paragraph on the law of transferred intent. Appellant objected, arguing that the evidence did not support an instruction on transferred intent and that the State waived the issue of transferred intent by not requesting that an application paragraph be included in the charge. The trial court overruled appellant’s objection and submitted a supplemental charge to the jury with an application paragraph on the law of transferred intent.

Appellant contends that the State waived any error in the trial court’s failure to include an application paragraph on transferred intent in its original charge and that the trial court should have sustained his objection to the State’s improper argument, instructed the jury to disregard, and done nothing more. We disagree.

A trial court’s charge to the jury must include not only an abstract statement of the law but also an application of the law to the facts in the case. Tex.Code Crim. Proc. Ann. art. 36.14; Gray v. State, 152 S.W.3d 125, 127-28 (Tex.Crim.App.2004); Williams v. State, 622 S.W.2d 578, 579 (Tex.Crim.App. [Panel Op.] 1981). The omission of the applica tion portion of the charge is trial court error. Gray, 152 S.W.3d at 127-28; Barrera v. State, 982 S.W.2d 415, 416 (Tex.Crim.App.1998). According to section 36.16 of the code of criminal procedure, “After the argument begins[,j no further charge shall be given to the jury unless required by the improper argument of counsel or the request of the jury.” Tex. Code Crim. Proc. Ann. art. 36.16. However, the trial court may, before verdict, withdraw and correct its charge if an erroneous charge has been given. Bustillos v. State, 464 S.W.2d 118, 125 (Tex.Crim.App.1971); Roberson v. State, 113 S.W.3d 381, 384 (Tex.App.-Fort Worth 2003, pet. ref'd). In the present case, the original charge submitted to the jury was erroneous because it did not include an application paragraph on the law of transferred intent. See Gray, 152 S.W.3d at 127-28; Barrera, 982 S.W.2d at 416. Therefore, the trial court did not err when it corrected the erroneous charge by giving the jury a supplemental charge applying the law of transferred intent to the facts in the case.

The purpose behind requiring an objection to preserve error on appeal is to give the trial court or opposing party the opportunity to correct the error or remove the basis for the objection. See Martinez v. State, 22 S.W.3d 504, 507 (Tex.Crim.App.2000). Here, although the State did not object to the original jury charge on this issue, appellant objected to the State’s closing argument and thereby called the trial court’s attention to the lack of an application paragraph on transferred intent in the jury charge. The trial court then corrected the error by submitting a supplemental charge to the jury with a paragraph applying the law of transferred intent to the facts in the case. Because the State is not the party appealing the trial court’s ruling and judgment, it was not required to preserve error. Accordingly, waiver does not apply. See Garza v. State, 126 S.W.3d 79, 81-82 (Tex.Crim.App.2004); see also Gaines v. State, 710 S.W.2d 630, 633 (Tex.App.-Dallas 1986, pet. ref'd) (holding that trial court did not err by correcting a jury charge that did not include a necessary application paragraph and that the State did not acquiesce in the omission). We overrule appellant’s third point.

VIII. Deadly Weapon

In his sixth point, appellant argues that the trial court erred by including an affirmative finding of the use of a deadly weapon in its judgment. In the indictment, appellant was charged with intentionally or knowingly causing the death of Thompson with a deadly weapon, namely, an automobile. In its jury charge, the trial court instructed the jury that appellant was guilty of murder if (1) he intentionally or knowingly caused Thompson’s death by striking him with a deadly weapon, namely, an automobile; (2) he intentionally, with the intent to cause serious bodily injury to Thomson, committed an act clearly dangerous to human life, namely, striking Thompson with a deadly weapon, namely, an automobile; (3) Burdick intentionally or knowingly caused Thompson’s death by striking him with a deadly weapon, namely, an automobile, and appellant, acting with intent to promote or assist the commission of the offense, encouraged, directed, aided, or attempted to aid Burdick in the offense; or (4) Burdick intentionally, with intent to cause serious bodily injury to Thompson, committed an act clearly dangerous to human life, namely, striking Thompson with a deadly weapon, namely, an automobile, and appellant, acting with intent to promote or assist the commission of the offense, encouraged, directed, aided or attempted to aid Burdick in committing the offense.

On the verdict form, the jury stated, ‘We, the jury find [appellant] guilty of the offense of murder, as charged in the indictment.” In its judgment, the trial court stated that “the jury affirmatively finds that [appellant] used or exhibited a deadly weapon, to-wit: an automobile during the commission of the offense or during the immediate flight therefrom.”

When an affirmative finding is made that a deadly weapon was used or exhibited during the commission of a felony offense and that the defendant used or exhibited the weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited, the trial court must enter that finding in its judgment. Tex.Code ÜRIM. PROC. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp.2004-05). A jury makes an affirmative finding that a deadly weapon was used or exhibited when it (1) finds the defendant guilty as charged in the indictment and the indictment alleged the use of a “deadly weapon,” (2) finds the defendant guilty as charged in the indictment and, though not specifically pled in the indictment as a deadly weapon, the weapon pled is a deadly weapon per se, or (3) affirmatively answers a special issue on deadly weapon use. Davis v. State, 897 S.W.2d 791, 793 (Tex.Crim.App.1995); Edwards v. State, 21 S.W.3d 625, 627 (Tex.App.-Waco 2000, no pet.).

Although the indictment in the present case charges appellant with using a deadly weapon and the jury found appellant guilty as charged in the indictment, appellant argues that because the jury charge allowed the jury to convict appellant as a party, the jury was required to make an express finding that appellant knew that a deadly weapon would be used or exhibited during the commission of the offense. We disagree.

To convict appellant of murder under the law of parties, the jury was required to find that appellant intended to promote or assist the commission of the offense. See Tex. Penal Code Ann. § 7.02(a)(2). In other words, the jury was required to find that appellant intended to promote or assist Burdick in murdering Thompson with a deadly weapon, namely, appellant’s car. Therefore, before the jury could convict appellant as a party, it had to find that he knew a deadly weapon would be used in the commission of the offense. See Sarmiento v. State, 93 S.W.3d 566, 570 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). The trial court did not err by including an affirmative finding of the use of a deadly weapon in its judgment. We overrule appellant’s sixth point.

IX. Conclusion

Having overruled all of appellant’s points, we affirm the trial court’s judgment.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We also note that there was sufficient evidence of transferred intent for the trial court to place the issue before the jury. Both Collins and Burcham told police that appellant said that he had meant to hit Murphy. Further, Burcham told police that appellant said he had meant to hit Murphy but had hit Thompson instead.


author: RICHARD BARAJAS, Chief Justice.

text:
    In re Jaime LUEVANO, Relator.
    No. 08-05-00192-CV.
    Court of Appeals of Texas, El Paso.
    July 7, 2005.

      Jaime Luevano, El Paso, relator pro se.
    Sam M. Paxson, Presiding Judge, County Court at Law No. 1, El Paso, respondent.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION ON PETITION FOR WRIT OF MANDAMUS

RICHARD BARAJAS, Chief Justice.

This is an original proceeding in mandamus. Jaime Luevano, Relator, seeks a writ of mandamus requiring the trial court to “Review a Hearing and Grant a Hearing” in connection with a “Petition to Reinstate Driver’s License” filed by Relator as a result of the administrative suspension of his driver’s license for his refusal to submit a specimen of his breath for analysis. For the reasons stated below, we deny relief.

STANDARD OF REVIEW

Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). Moreover, there must be no other adequate remedy at law. Id.

1. Clear abuse of discretion

An appellate court rarely interferes with a trial court’s exercise of discretion. A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding). With respect to resolution of factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for that of the trial court. Walker, 827 S.W.2d at 839. The relator must therefore establish that the trial court could reasonably have reached only one decision. Id. at 840. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. Id. With respect to a trial court’s determination of the legal principles controlling its ruling, the standard is much less deferential. A trial court has no “discretion” in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Id.

2. No adequate remedy by appeal

An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Street v. Second Court of Appeals, 715 S.W.2d 638, 639-10 (Tex.1986) (orig. proceeding). Mandamus will not issue where there is “ ‘a clear and adequate remedy at law, such as a normal appeal.’ ” Walker, 827 S.W.2d at 840 (quoting State v. Walker, 679 S.W.2d 484, 485 (Tex.1984)). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue “ ‘only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.’ ” Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989) (quoting James Sales, Original Jurisdiction of the Supreme Court and the Courts of Civil Appeals of Texas in Appellate Procedure in Texas, Sec. 1.4(1)(b) at47 [2d Ed.1979]).

APPLICATION OF THE LAW TO THE FACTS BEFORE THE COURT

Relator is attempting to challenge the final judgment entered by County Court at Law Number 1, the Honorable Sam M. Paxson presiding, affirming the findings of the administrative law judge and ordering the surrender of Relator’s driver’s license. Said judgment is a final judgment and was signed on March 21, 2005. Relator’s Petition for Writ of Mandamus requests that this Court grant a hearing in review of the trial court’s judgment. Review of the judgment entered by the trial court is subject to review via the normal appellate process and is an adequate remedy, and thus intervention in trial court proceedings by appellate courts through the extraordinary remedy of writ of mandamus is not justified. See Walker, 827 S.W.2d at 840.

The record before us requests only that this Court review the hearing held by the trial court, review the judgment filed therein, and grant a hearing. Relator’s remedy, if any, lies in appeal. Accordingly, we deny the relief requested in the petition for writ of mandamus.


text:
    Carole Salome MEYER, Appellant, v. Peter PECA, Esq., Honorable Max Higgs, Michael Milligan, Esq., and Estate of Mary J. Salome, Appellees.
    No. 08-05-00084-CV.
    Court of Appeals of Texas, El Paso.
    July 7, 2005.
    Carole (Carol) Salome Meyer, El Paso, pro se.
    Michael R. ‘Mickey5 Milligan, El Paso, pro se.
    Maria A. Salas-Mendoza, Assistant County Attorney, Robert A. Skipworth, El Paso, for appellees.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

On May 23, 2005, this Court provided notice of its intent to dismiss the appeal pending before this Court under Tex. R.App. P. 38.8 for the reason that Appellant has failed to file her brief and no motion for extension of time has been filed. The notice provided that Appellant must show grounds within 10 days for good reason to continue the appeal. Not having received a response from Appellant, this Court pursuant to Tex.R.App. P. 42.3, and on its own motion, hereby dismisses this appeal for want of prosecution.

We therefore dismiss this appeal.

CHEW, J., not participating.


author: LEE ANN DAUPHINOT, Justice.

text:
    FFP MARKETING COMPANY, INC., Appellant, v. LONG LANE MASTER TRUST IV and MTGLQ Investors, L.P., Appellees.
    No. 2-04-057-CV.
    Court of Appeals of Texas, Fort Worth.
    July 7, 2005.

      Robert R. Bodoin, Mark Edwin Burge, Bodoin, Burnside, Burge & Agnew, P.C., Fort Worth, for appellant.
    Matthew W. Moran, Bruce E. Miller, Vinson & Elkins L.L.P., Dallas, for appel-lees.
    PANEL B: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

Appellant FFP Marketing Company, Inc. (“FFP Marketing”) appeals from a summary judgment granted by the trial court in favor of Appellees Long Lane Master Trust IV (“LLMT”) and MTGLQ Investors, L.P. (“MTGLQ”). In six issues, FFP Marketing complains that the trial court erred in granting LLMT and MTGLQ’s motion for summary judgment because: (1) LLMT, as a trust, did not have capacity to bring this suit except through a trustee, (2) the amount of the final judgment cannot be calculated from either the face of the judgment or the summary judgment record, (3) LLMT and MTGLQ did not conclusively prove legal ownership of the notes and guaranties, (4) the trial court erred by overruling FFP Marketing’s special exceptions to LLMT and MTGLQ’s motion for summary judgment, (5) the trial court erred by overruling FFP Marketing’s objections to LLMT and MTGLQ’s summary judgment evidence, and (6) the trial court erred by granting a permanent injunction to LLMT and MTGLQ where none was requested in their motion for summary judgment. Because we hold that LLMT and MTGLQ failed to prove their claims as a matter of law, we reverse the trial court’s final judgment, including the injunction, and remand this case for trial on the merits.

I. BACKGROUND FACTS

FFP Operating Partners, L.P. (“FFP Operating”) operates a number of convenience stores and gas stations. In February and June of 1999, FFP Operating executed thirty-one promissory notes (the “Long Lane notes”) in favor of Franchise Mortgage Acceptance Company (“FMAC”). In connection therewith, FFP Marketing executed guaranties of payment (the “Long Lane guaranties”) in favor of FMAC for all thirty-one notes. FFP Operating also executed two additional notes in June of 1999 (the “MTGLQ notes”) in favor of FMAC with corresponding guaranties (the “MTGLQ guaranties”) by FFP Marketing. Loan and security agreements were executed in connection with all thirty-three transactions.

LLMT and MTGLQ assert that Bay View Franchise Mortgage Acceptance Company (“Bay View FMAC”) became the successor in interest to FMAC with respect to the notes, guaranties, and associated loan documents and, in turn, assigned all of its interests to LLMT and MTGLQ. LLMT and MTGLQ also assert that since January 11, 2003, FFP Operating has failed to make payments on the notes as scheduled and therefore has been in default of its obligations under the Long Lane notes and the MTGLQ notes. On January 20, 2003, LLMT gave notice to FFP Operating of the defaults, accelerated the obligations under the Long Lane notes, and demanded payment. MTGLQ did the same with respect to the MTGLQ notes on February 21, 2003.

On August 20, 2003, LLMT and MTGLQ again sent default notices to FFP Operating and demanded payment under the guaranties from FFP Marketing. The notes went unpaid. LLMT asserts that as of September 8, 2003, the outstanding principal under the Long Lane notes was $13,212,199.30, with unpaid interest of $1,488,899.04, and late fees of $9,610.00. Likewise, MTGLQ asserts that as of the same date, the outstanding principal balance under the MTGLQ notes was $373,832.94, with unpaid interest of $41,059.29, and late fees of $917.52.

On April 24, 2003, LLMT and MTGLQ filed suit against FFP Operating and FFP Marketing (collectively “the FFPs”) as a result of the alleged defaults under the thirty-three separate notes and guaranties. LLMT and MTGLQ subsequently filed a combined motion for summary judgment on their respective claims of default under the thirty-three notes and guaranties for the amounts due as of September 8, 2003.

In support of their motion for summary judgment, LLMT and MTGLQ offered the affidavit of Bradford A. Wagoner, Vice President of Asset Management of America, LLC, the general partner of Asset Management Company of America, L.P., the servicer of the Long Lane and MTGLQ notes, guaranties, and related loan documents. Attached to the Wagoner affidavit are sworn copies of those documents. In response, the FFPs amended their original answer to include a verified denial challenging LLMT’s capacity to sue. They also filed a response to LLMT and MTGLQ’s motion for summary judgment which included special exceptions to the summary judgment motion and evidence. Finally, the FFPs filed objections to the Wagoner affidavit.

The trial court held a hearing on the motion for summary judgment and on the objections and special exceptions filed by the FFPs. Before the trial court ruled, however, FFP Operating filed for bankruptcy protection under chapter 11 of the Bankruptcy Code and was nonsuited from this cause. The trial court entered a final judgment that expressly granted LLMT and MTGLQ’s motion for summary judgment against FFP Marketing, overruled all of FFP Marketing’s special exceptions and objections to summary judgment evidence, and included an injunction pursuant to Texas Civil Practice and Remedies Code section 52.006(e). This appeal resulted.

II. Summary Judgment on the Notes and Guaeanties

A. Standard of Review

In a summary judgment case, the issue on appeal is whether the movants met their summary judgment burden by establishing that no genuine issue of material fact exists and that the movants are entitled to judgment as a matter of law. The burden of proof is on the movants, and all doubts about the existence of a genuine issue of material fact are resolved against the movants. Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmov-ant.

In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the nonmovant is accepted as true. Evidence that favors the movants’ position will not be considered unless it is uncontroverted. The summary judgment will be affirmed only if the record establishes that the mov-ants have conclusively proved all essential elements of the movants’ cause of action or defense as a matter of law.

B. Ownership of the Notes and Guaranties

1. Parties’ Contentions

In its third issue, FFP Marketing contends that the trial court erred in granting summary judgment because LLMT and MTGLQ failed to prove conclusively their legal ownership of the respective thirty-three notes and guaranties. LLMT and MTGLQ respond that the notes are negotiable instruments governed by the Texas Uniform Commercial Code, that Texas law requires that they establish that they either own or hold the notes and guaranties, and that they established their status as holders of the notes and guaranties. Further, they point out that FFP Marketing has not denied under oath FFP Operating’s execution of the notes, its own execution of the guaranties, or the assignment of the notes and guaranties to LLMT and MTGLQ. LLMT and MTGLQ assert that absent such a sworn challenge, the notes, guaranties and other loan documents are to be received into evidence as fully proved. Accordingly, they argue that no issue of material fact exists as to this element of their cause of action.

In reply, FFP Marketing asserts that this court, along with most other Texas courts of appeals, has historically required a promissory note claimant to prove that he is both the owner and holder of the promissory note. In addition, FFP Marketing asserts that the Wagoner affidavit is internally inconsistent and thus insufficient to support summary judgment. FFP Marketing also argues that LLMT and MTGLQ cannot for the first time on appeal assert their entitlement to summary judgment under the Texas Uniform Commercial Code because LLMT and MTGLQ did not plead or prove the elements of a suit on a negotiable instrument. In particular, FFP Marketing argues that LLMT and MTGLQ have not proven that the notes are negotiable instruments subject to article 3 of the Texas Uniform Commercial Code.

2. The Thirty-three Promissory Notes are not Negotiable Instruments; Proof of Ownership is Therefore Required

The Texas version of the Uniform Commercial Code (“the Code”) recognizes that the holder of a negotiable instrument has the right to enforce the instrument whether or not he is the instrument’s lawful owner. Under the Code, the “holder” of a financial instrument is “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” However, to be subject to the Code’s governance, a promissory note must be a negotiable instrument. A promissory note is a negotiable instrument subject to the Code if it is a written unconditional promise to pay a sum certain in money, upon demand or at a definite time, and is payable to order or to bearer. The negotiability of an instrument is a question of law.

In the case before us, both the Long Lane notes and the MTGLQ notes broadly define the maker’s liability to include obligations found outside the four corners of the instruments. That is, each note includes the following:

FOR VALUE RECEIVED, the Borrower promises to pay to the order of the Lender the Principal Amount specified above, together with interest, according to the following terms and conditions:
1. DEFINITIONS. ...
“Obligations”: All indebtedness and all liability, responsibility and obligation of the Borrower, each Guarantor or any of their respective Affiliates to the Lender or to any of the Lender’s Affiliates for payment or performance, whether accrued or contingent, whether direct or indirect, whether arising from tort, contract, or otherwise, and whether incurred in the capacity of maker, co-indorser or obligor or as surety, guarantor or in any other capacity, under: (I) this Note, (ii) the Loan Agreement, (iii) the Indenture, (iv) each Guaranty, (v) the other Loan Documents, or (vi) any other present or future agreement, commitment, undertaking, instrument or obligation of the Borrower to the Lender or any Affiliate of the Lender with respect to the Facility, including any future advances (whether or not pursuant to a written commitment); in each case whether due or to become due or whether now existing or subsequently incurred or arising. The term “Obligations” specifically includes but is in no way limited to principal, accrued interest and late payment processing fees under this Note, all advances made by or on behalf of the Lender under the Loan Agreement, the Indenture or any other Loan Document, and all collection and other costs and expenses incurred by or on behalf of the Lender, whether incurred before or after judgment, and specifically includes all Obligations, as such term is defined in the Indenture.

This overarching definition is referenced in several sections of the notes, including

• section 2.7, stating that default interest “shall accrue on the outstanding Principal Amount of this Note and the other Obligations at the Default Rate”;
• section 3.1, discussing “security for the payment and performance of this Note and the other Obligations”;
• section 5.1, stating that, upon the occurrence of a Default Event, “[t]his Note and all of the other Obligations shall at the option of the Lender become immediately due and payable without further notice or demand”;
• section 5.3, stating that, after a Default Event, “[t]he Lender may, immediately and without notice, hold, apply, freeze or set-off, on account of any Obligation, (I) funds on deposit with the Lender ..., (ii) any funds that the Lender ... may owe to the Borrower or any Guarantor ...; and (iii) any other funds or property, tangible or intangible, in or en route to the Lender’s ... possession or control belonging or owed to the Borrower, [or] any Guarantor”; and
• section 7.2., providing that the “Lender shall be under absolutely no duty ... whatsoever to ... seek repayment of any Obligation from any particular source.”

The presence of this definition in the notes defeats the sum certain requirement because one cannot determine from the face of each note the extent of the maker’s liability.

In addition, the notes fail the requirement for an unconditional promise because each note specifically “incorporates by reference” the terms of other documents, requiring one to examine those documents to determine if they place conditions on payment. Although a promise is not made conditional by reference to a separate writing for information regarding rights and obligations with respect to collateral, here, as security for each note’s payment and performance, each note incorporates by reference the terms of both the loan and indenture agreements executed in conjunction with the transaction;

3. SECURITY.
3.1. Loan Agreement; Indenture. As security for the payment and performance of this Note and the other Obligations, the Borrower has today signed and delivered the Loan Agreement and the Indenture (as defined in the Loan Agreement), granting the Lender a first lien and security interest in the “Collateral” and the “Trust Property”, as defined in the Loan Agreement. All of the terms of the Loan Agreement and the Indenture are incorporated into this Note by reference, with the same effect as if they were reprinted here in full.

Each note also incorporates by reference the waivers, consents, and acknowledgments of the maker found in other loan documents. Thus, each note is governed by the terms of another writing, requiring one to look outside the note to determine if payment is conditional or if the terms of that document alter the rights with respect to payment. Accordingly, we conclude that the notes in this case are not negotiable instruments. Because the promissory notes in this case are not negotiable instruments, the Code does not govern their enforcement; contract law does.

While negotiation or assignment can change ownership of a promissory note, the endorsement of a non-negotiable promissory note does not create a presumption of ownership in the transferee. Thus, to recover on a non-negotiable promissory note, the holder must establish his status as the instrument’s legal owner. This same proof is required to establish LLMT and MTGLQ’s right to recover on the promissory notes through the guaranties. A general denial is sufficient to raise the issue of legal ownership and places the burden on the plaintiff to prove his status.

3. LLMT and MTGLQ’s Evidence of Ownership Is Internally Controverting

In support of their motion for summary judgment, LLMT and MTGLQ offered the affidavit of Bradford A. Wagoner, Vice President of their loan servicing agent. Attached to the Wagoner affidavit are sworn copies of the notes, guaranties, and related loan documents, including assignment documents evidencing assignment of the mortgages from Bay View FMAC (the alleged successor in interest to FMAC) to LLMT and MTGLQ. FFP Marketing filed no sworn challenge to the execution of the notes, guaranties, or related loan documents, or to the genuineness of the assignment of those instruments to LLMT and MTGLQ. On appeal, LLMT and MTGLQ argue, in effect, that FFP Marketing’s failure to file a verified plea challenging the execution of the instruments or the genuineness of the assignments precludes it from asserting that the evidence is insufficient to prove as a matter of law that LLMT and MTGLQ are both the legal owners and holders of the respective notes and guaranties. We disagree.

The absence of a sworn plea challenging the execution of an instrument or the genuineness of an assignment only affects waiver of a challenge to the execution of the instrument or the genuineness of the assignment; it does not preclude a party from arguing that the evidence is insufficient to support summary judgment. Thus, FFP Marketing is not precluded on appeal from arguing that the evidence is insufficient to establish LLMT’s and MTGLQ’s status as legal owners and holders of the notes and guaranties.

On the other hand, a photocopy of a note attached to the affidavit of the holder, who swears that it is a true and correct copy of the note, is sufficient as a matter of law to prove the status of owner and holder of the note absent controverting summary judgment evidence. In this case, however, controverting evidence is provided by the Wagoner affidavit and attachments. Specifically, FFP Marketing asserts that the Wagoner affidavit is internally inconsistent, and thus insufficient to support summary judgment, because Wagoner as-serfs in the affidavit that LLMT and MTGLQ are the beneficial owners and holders of the notes and guaranties, not the instruments’ lawful owners. We agree.

Rule 166a(c) of the Texas Rules of Civil Procedure provides in part that a summary judgment may be based on un-controverted testimonial evidence of an interested witness if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted. Here, the affidavit testimony of Wagoner directly contradicts the summary judgment evidence attached to his affidavit. In his affidavit, Wagoner states that LLMT is the current “holder and beneficial owner” of the Long Lane notes, the Long Lane guaranties, and related loan documents. Likewise, in his affidavit, Wagoner states that MTGLQ is the current “holder and beneficial owner” of the MTGLQ notes, the MTGLQ guaranties, and related loan documents. But attached to the Wagoner affidavit are copies of the notes, guaranties, and related loan documents, including evidence of assignment of legal ownership of those documents to LLMT and MTGLQ.

In his affidavit, Wagoner does not explain the inconsistency between the assertion in the affidavit that the ownership is beneficial and the implication in the attachments that the ownership is legal, nor do LLMT and MTGLQ attempt to explain the inconsistency on appeal. This inconsistency is sufficient to raise an issue because there is a difference under Texas law between the beneficial or equitable owner of a promissory note and the note’s legal owner.

For example, under Texas law, the legal owner of a promissory note may maintain a cause of action even though actual or beneficial ownership of the note lies in another. The beneficial owner of a promissory note is not even a necessary party to a suit on the note. Importantly, it is legal ownership that must be proved to enforce a note. Thus the inconsistency between the Wagoner affidavit and its attachments is sufficient to establish a genuine issue of material fact precluding summary judgment. Resolving all conflicts in the evidence in favor of FFP Marketing, we hold that a genuine issue of material fact exists as to the current ownership of the notes and guaranties; consequently, LLMT and MTGLQ did not prove legal ownership of the notes and guaranties as a matter of law. Accordingly, we sustain FFP Marketing’s third issue.

Because of our disposition of this issue we need not address the remainder of FFP Marketing’s issues; in the interest of judicial economy, however, we will address FFP Marketing’s fourth issue to the extent that it argues that LLMT and MTGLQ failed to conclusively prove the current balance due under the notes and guaranties.

C. Amount Due

In its fourth point, FFP Marketing contends that the trial court erred by granting summary judgment based on an aggregated amount due and owing on the thirty-three separate promissory notes and guaranties. In addition, FFP Marketing asserts that the trial court erred in granting summary judgment because LLMT and MTGLQ failed to establish the applicable rate of interest on each note as a matter of law.

In a cause of action on a promissory note, the plaintiff must establish the amount due on the note. Generally, an affidavit that sets forth the total balance due on a note is sufficient to sustain an award of summary judgment. Detailed proof of the balance is not required. However, the summary judgment evidence must establish the applicable rate of interest on a note as a matter of law, otherwise the movants have failed to meet their summary judgment burden to establish the amount due on the note Further, where an affidavit submitted in support of summary judgment lumps the amounts due under multiple notes with varying terms and provisions, an ambiguity can arise as to the balance due, precluding summary judgment.

In the case before us, each note provides for interest at the lesser of the interest rate specified in the note or at the highest rate allowed by Connecticut law. Similarly, in the event of default, each note provides for interest at the lesser of five percent over the note rate or the highest rate allowed by Connecticut law. Because nothing in the summary judgment evidence establishes the highest rate allowed under Connecticut law or, consequently, the actual default rate charged on any single note, we conclude that the evidence is insufficient to prove the applicable rate of interest for each note as a matter of law.

Further, Wagoner’s affidavit provides that as of September 8, 2003, FFP Marketing owed $13,212,199.30 in principal, $1,488,899.04 in interest, and $9,610.00 in late fees, for a total of $14,710,708.34 on the thirty-one Long Lane notes. Similarly, the affidavit also provides that as of the same date, FFP Marketing owed $373,832.94 in principal, $41,059.28 in interest, and $917.52 in late fees, for a total of $415,809.24 on the two MTGLQ notes.

FFP Marketing argues that Wagoner is an interested witness and that by providing only aggregated amounts due respectively under the thirty-one Long Lane notes and the two MTGLQ notes, the Wagoner affidavit fails the requirement of rule 166a(c) that an interested witness affidavit be easily controvertible. Specifically, FFP Marketing argues that the assertion of an aggregated amount due effectively denied it the opportunity at the trial court level to controvert the alleged amounts due on each note.

LLMT and MTGLQ respond that the assertion of a lump sum is sufficient to establish the amounts due on each note. In support of their assertion, LLMT and MTGLQ argue that this court, in L & T Charters, Inc. v. American National Leasing Company, recently held that an affidavit asserting a single collective balance due under multiple leases was sufficient to established a sum certain. We disagree with LLMT and MTGLQ’s interpretation of our holding in that case. In L & T Charters, the issue was not whether the evidence was sufficient to support the motion for summary judgment, but rather, whether the final judgment was sufficiently certain so that it could be understood and enforced by a ministerial officer. Accordingly, this court’s holding in L & T Charters has no application to the case before us. After reviewing the summary judgment evidence, we conclude that the assertion of a lump sum balance, given multiple notes with varying principal balances and interest rates, creates an ambiguity sufficient to preclude summary judgment. Thus, because (1) no summary judgment evidence establishes the applicable interest rate on each note as a matter of law, and (2) an ambiguity exists in the summary judgment proof as to the amounts due on each note, we hold that LLMT and MTGLQ failed to establish the amounts due on each note as a matter of law. Accordingly, we sustain FFP Marketing’s fourth issue to the extent that it contends that LLMT and MTGLQ failed to conclusively prove the current balance due on each note and guaranty.

III. Conclusion

Having held that LLMT and MTGLQ failed to establish as a matter of law (1) legal ownership of the promissory notes and guaranties and (2) the amount due on each note and guaranty, we reverse the trial court’s final judgment, including the injunction, and remand the case to the trial court for trial on the merits.

      . Tex. Civ. Prac. & Rem.Code Ann. § 52.006(e) (Vernon Supp.2004-05).

      . Tex.R. Civ. P. 166a(c); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

      . S.W. Elec. Power Co., 73 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

      . Great Am., 391 S.W.2d at 47.

      . Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995).

      . Great Am., 391 S.W.2d at 47.

      . Clear Creek Basin, 589 S.W.2d at 678.

      . Tex. Bus. & Com.Code Ann. § 3.301 (Vernon 2002); Jernigan v. Bank One, 803 S.W.2d 774, 776 (Tex.App.-Houston [14th Dist.] no writ) (indicating the Texas Business and Commerce Code allows for recovery by either the owner or holder of a promissory note).

      . Tex. Bus. & Com.Code Ann. § 1.201(21)(A) (Vernon Supp.2004-05).

      . See id. § 3.102(a) (Vernon 2002).

      . Id. § 3.104(a); Diversified Fin. Sys., Inc. v. Hill, Heard, O’Neal, Gilstrap, & Goetz, P.C., 99 S.W.3d 349, 357 (Tex.App.-Fort Worth 2003, no pet.).

      . Cartwright v. Mbank Corpus Christi, N.A., 865 S.W.2d 546, 549 (Tex.App.-Corpus Christi 1993, writ denied).

      . See Tex. Bus. & Com.Code Ann. § 3.104(a); Bailey, Vaught, Robertson and Co. v. Remington Invs., Inc., 888 S.W.2d 860, 864 (Tex.App.-Dallas 1994, no writ) (indicating “sum certain” requirement is designed to provide commercial certainty in transfer of negotiable instruments and to make negotiable instruments functional equivalent of money).

      . See Tex Bus. & Com.Code Ann. § 3.106(a).

      . See id§ 3.106(b).

      . See Resolution Trust Corp. v. 1601 Partners, Ltd., 796 F.Supp. 238, 240 (N.D.Tex.1992) (holding promissory note non-negotiable where deed of trust was incorporated by reference into promissory note).

      . See Cont’l Nat’l Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928, 931 (1948) (indicating that an otherwise negotiable instrument can be rendered non-negotiable if it is burdened with the conditions of another agreement).

      . See Tex. Bus. & Com.Code Ann. §§ 3.104(a), 3.106(a); Cont’l Nat'l Bank of Fort Worth, 214 S.W.2d at 931; Bailey, Vaught, Robertson and Co., 888 S.W.2d at 864; Resolution Trust Corp., 796 F.Supp. at 240.

      . See Dillard v. NCNB Tex. Nat’l Bank, 815 S.W.2d 356, 360 (Tex.App.-Austin 1991, no writ), overruled on other grounds, Amberboy v. Societe de Banque Privee, 831 S.W.2d 793, 797 (Tex.1992).

      . See Diversified Fin. Sys., 99 S.W.3d at 357.

      . See id. at 353; Dillard, 815 S.W.2d at 359 (requiring plaintiff to establish ownership to recover in case involving non-negotiable promissory note); see also Nitishin v. Fed. Debt Mgmt., Inc., No. 05-95-00531-CV, 1996 WL 76232, at *4 (Tex.App.-Dallas Feb. 21, 1996, no writ) (not designated for publication) (indicating where a note is non-negotiable, a transferee can still recover as the owner of the note).

      . See Universal Metals & Mach., Inc. v. Bohart, 539 S.W.2d 874, 877-78 (Tex.1976).

      . See Tex.R. Civ. P. 92; Schindler v. AG Aero Distribs., Inc., 502 S.W.2d 581, 585 (Tex.Civ.App.-Corpus Christi 1973, no writ).

        .See Tex.R. Civ. P. 93(7), (8); Vahlsing v. Collier Cobb & Assocs. of Dallas, Inc., 560 S.W.2d 117, 117-118 (Tex.Civ.App.-Dallas 1977, no writ) (indicating failure to file sworn plea waives challenge to genuineness of assignment, it does not dispense with proof of the existence of the transfer); Am. Fiber Glass, Inc. v. Gen. Elec. Credit Corp., 529 S.W.2d 298, 300 (Tex.Civ.App.-Fort Worth 1975, writ ref’d n.r.e.) (indicating failure to file sworn plea waives challenge to execution of note, but that note must be introduced into evidence to prove its terms); see also Clear Creek Basin, 589 S.W.2d at 678 (indicating that failure to file response does not preclude one from arguing on appeal that evidence is insufficient as a matter of law to support summary judgment).

      . Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex.1983).

      . Tex.R. Civ. P. 166a(c).

      . See Russell v. People’s Nat’l Bank of Belton, 2 S.W.2d 961, 962 (Tex.Civ.App.-Austin 1928, writ ref'd); Rabb v. Seidel, 218 S.W. 607, 610-11 (Tex.Civ.App.-San Antonio 1920), rev’d on other grounds, 250 S.W. 420 (Tex.Com.App.1923).

      . Russell, 2 S.W.2d at 962; Rabb, 218 S.W. at 610-11.

      . Rabb, 218 S.W. at 611.

      . See Diversified Fin. Sys., 99 S.W.3d at 354.

      . See Tex.R. Civ. P. 166a(c).

      . See Harwell, 896 S.W.2d at 173.

      . See Tex.R.App. P. 47.1.

      . See e.g., Diversified Fin. Sys., 99 S.W.3d at 357.

      . Martin v. First Republic Bank, Fort Worth, N.S., 799 S.W.2d 482, 485 (Tex.App.-Fort Worth 1990, writ denied).

      . Hudspeth v. Investor Collection Servs. Ltd. P’ship, 985 S.W.2d 477, 479 (Tex.App.-San Antonio 1998, no pet.).

      . See Bailey, Vaught, Robertson and Co., 888 S.W.2d at 867.

      . See Gen. Specialties, Inc. v. Charter Nat'l Bank-Houston, 687 S.W.2d 772, 774 (Tex.App.-Houston. [14th Dist.] 1985, no writ).

      . See Bailey, Vaught, Robertson and. Co., 888 S.W.2d at 867.

        .See Tex.R. Civ. P. 166a(c).

      . See No. 2-03-379-CV, 2004 WL 1219079, at *2 n. 3 (Tex.App.-Fort Worth June 3, 2004, no pet.) (mem. op.).

      . See id. at *1.

      . See Gen. Specialties, Inc., 687 S.W.2d at 774.

      . See id.; Bailey, Vaught, Robertson and Co., 888 S.W.2d at 867.


author: Opinion by Justice ROSS.

text:
    Robbie Lynn NEWBY, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00061-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted June 6, 2005.
    Decided July 8, 2005.

      James P. Wheeler, Quitman, for appellant.
    Marcus D. Taylor, Dist. Atty., Henry Whitley, Special Asst. Dist. Atty., Quit-man, for state.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

Robbie Lynn Newby appeals his conviction and sentence for possession of marihuana in an amount greater than four ounces, but less than five pounds. See Tex. Health & Safety Code Ann. § 481.121(b)(3) (Vernon 2003). In a single point of error, Newby raises three issues: He challenges (1) the factual and (2) legal sufficiency of the evidence to support the finding that he used or exhibited a deadly weapon during the commission of his offense; and he contends the trial court erred by failing to make an oral finding that he had been twice previously, finally, and sequentially convicted of a felony offense.

“The practice of combining two or more separate issues into a single point of error is strongly discouraged, as it often results in the combined point of error being overruled as multifarious.” Harris v. State, 133 S.W.3d 760, 764 n. 3 (Tex.App.-Texarkana 2004, pet. ref'd) (referencing Foster v. State, 101 S.W.3d 490, 499 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Parra v. State, 935 S.W.2d 862, 875 (Tex.App.-Texarkana 1996, pet. ref'd)). However, in the interest of resolving substantive issues, we will not overrule Newby’s point of error as multifarious. Nevertheless, for the reasons stated below, we affirm the trial court’s judgment.

I. Legal and Factual Sufficiency

On August 12, 2002, Wood County sheriffs deputies executed a search warrant at Newby’s home in Wood County. According to a police check with the local electric utility company, Newby had lived at that residence since March 2000. When they executed the warrant, officers discovered several flower beds around the house in which seventy-eight marihuana plants were growing. Officers also found dried marihuana in an outbuilding on Newby’s property. Inside the home, officers discovered more dried marihuana in the living room and seized an SKS assault rifle located in Newby’s bedroom. Newby was subsequently arrested and charged with possession of marihuana.

Newby pled “not guilty” and submitted guilt/innocence to a jury. At trial, the court submitted a special issue to the jury asking it to determine whether Newby used or exhibited a firearm during the commission of the charged offense. The jury answered that question affirmatively. Newby now challenges that finding. The deadly weapon finding is important because it affects Newby’s parole eligibility. See Tex. Gov’t Code Ann. § 508.145(d) (Vernon 2004); Coleman v. State, 145 S.W.3d 649, 652 (Tex.Crim.App.2004).

In Coleman, the Texas Court of Criminal Appeals reviewed a case in which the trial court had entered a deadly weapon finding in its judgment, yet there had been no testimony that Coleman had ever held or “exhibited” the weapon during the offense. Instead, the officers testified they found the 9-millimeter pistol and a .22 rifle inside Coleman’s house, but they did not testify that Coleman had been seen displaying or exhibiting the weapon at the time the officers saw Coleman selling illegal narcotics. The Texas Court of Criminal Appeals nevertheless affirmed the trial court’s deadly weapon finding. Id. at 655. The court first expressly disagreed with Coleman’s contention that “where no individual is observed in actual physical control over the weapon, and where the weapon is found a significant distance from the controlled substance, then the evidence is not sufficient to support an affirmative finding of use or exhibition of a deadly weapon during the commission of an alleged narcotics offense.” Id. at 653-54. The court noted that an accused’s distance from the weapon is not dispositive. Id. at 654. The court then emphasized that the evidence showed no one else had access to the home, the weapon was found in the same room with mail addressed to Coleman, and Coleman had told police that he lived in the house alone. Id. The Coleman court ultimately concluded the trial court did not err by entering an affirmative deadly weapon finding.

In Gale v. State, 998 S.W.2d 221 (Tex.Crim.App.1999), the court similarly affirmed a deadly weapon finding in a narcotics case. In Gale, the evidence showed officers found several firearms (including an Uzi-style assault rifle) in the same closet in which they found twenty pounds of narcotics. The Texas Court of Criminal Appeals affirmed the trial court’s deadly weapon finding because there had been uncontroverted testimony that weapons such as those found by the police were often used by drug traffickers to protect their drugs and the proceeds from the sales of illegal narcotics. Id. at 225-26.

In this ease, Newby was the only person present in the small, four-room house when the officers executed their search warrant. Joyce Box, a deputy with the Wood County Sheriffs Department, testified that most people who have narcotics also have weapons. More specifically, Box testified she generally only sees rifles of the type seen in Newby’s bedroom when she assists the narcotics teams in executing drug search warrants.

The house where officers executed the search warrant and arrested Newby had four rooms: a kitchen, a bathroom, one bedroom that had a bed, and a second bedroom that lacked a bed and appeared to be used only for storage. The officers found drug paraphernalia in the house. The rifle that is the subject of the trial court’s deadly weapon finding was discovered on the bed in Newby’s bedroom. Officers found a telephone bill in the house addressed to Newby. The electric company had listed Newby as the billing addressee at that location since March 2000. And, finally, there was testimony that the rifle in question was located within ten steps of where officers found Newby when they entered the house.

Applying the usual standards for legal and factual sufficiency, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000); Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App.2004), and in light of the Texas Court of Criminal Appeals’ jurisprudence in both Coleman and Gale, we conclude the evidence to be factually and legally sufficient to support the jury’s finding that Newby used or exhibited a deadly weapon during the commission of the charged offense.

II. The Trial Court’s Failure To Make an Oral Pronouncement Regarding the Weapon

Newby next contends the trial court erred by failing to make an oral pronouncement regarding the punishment enhancement allegations. Newby did not raise this objection at the trial court level. Accordingly, nothing has been preserved for our review. See Tex.R.App. P. 38.1(a)(1); Mendenhall v. State, 15 S.W.3d 560, 567 (Tex.App.-Waco 2000), aff'd, 77 S.W.3d 815 (Tex.Crim.App.2002); Garner v. State, 858 S.W.2d 656, 659 (Tex.App.-Fort Worth 1993, pet. ref'd). Moreover, while it is better practice for the trial court to make an oral pronouncement regarding its findings on punishment enhancement allegations, a trial court does not err when it overlooks making that pronouncement, especially when the issue of sentencing is submitted to the court rather than a jury. Garner, 858 S.W.2d at 660.

III. Conclusion

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

      . The evidence showed Coleman was dealing drugs from his vehicle. The police did not find any firearms until they subsequently searched Coleman’s home. Coleman, 145 S.W.3d at 650-51.