author: COCHRAN, J.,

text:
    Thessalonians LANGS, Appellant, v. The STATE of Texas.
    No. PD-1763-04.
    Court of Criminal Appeals of Texas.
    Jan. 25, 2006.

      Barry J. Alford, Fort Worth, for Appellant.
    Sylvia Mandel, Asst. Criminal District Atty., Fort Worth, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the unanimous Court.

In this case we reiterate that the face of the trial record must clearly show a double jeopardy violation before a defendant may successfully raise a “multiple punishment” double jeopardy claim for the first time on appeal.

Appellant was convicted of two offenses: burglary of a habitation and retaliation. Under the disjunctive application paragraph of the charge, the jury could convict appellant of burglary of a habitation under either of two theories: (1) entry with the intent to commit retaliation; or (2) entry and the commission (or attempted commission) of retaliation. The general verdict form did not require the jury to specify which theory it relied upon.

On appeal, appellant claimed that his two convictions constituted multiple punishment in violation of the Double Jeopardy Clause because the jury could have rested its verdict on the second burglary theory which made retaliation a lesser-included offense of burglary. The court of appeals held that appellant failed to preserve his double jeopardy claim because he did not object to the disjunctive jury charge at trial. We agree and affirm that decision.

I.

At trial, the evidence showed that appellant and Amanda had been involved in a four-year relationship that Amanda ended on November 3, 2001. That very night, appellant physically assaulted Amanda. She filed criminal charges against him. Appellant then embarked upon a campaign to harass and threaten Amanda into dropping the assault charge.

Appellant’s campaign began with phone calls. Soon after the November 3rd assault, both appellant and his family called Amanda to persuade her to drop the charges. Amanda repeatedly refused and asked them to leave her alone. On December 3rd, appellant fabricated a story about his father recently dying to garner Amanda’s sympathy. She again refused to meet with him and again asked him to leave her alone. Amanda was so distraught that she contacted the police, and they cited appellant for criminal trespass.

On December 5th, appellant contacted one of Amanda’s friends and asked her a series of detailed questions to find out exactly where Amanda would be throughout the day. Concerned, Amanda’s friend contacted Amanda to tell her about the conversation with appellant. Amanda felt scared and decided to spend the night at her mother’s house.

That night, while Amanda slept, appellant knocked on the door of her mother’s home. When Amanda’s mother, Vickie, answered the door, appellant declared that he needed to see Amanda. Vickie told him to wait outside, and she shut the door behind her. Nonetheless, appellant barged through the door, went to Amanda’s bedroom, grabbed her arm, and pulled her from her bed. Amanda told appellant, “You’re not supposed to be here and you need to leave.” Appellant ignored her. He dragged her out of her bedroom, bumping her shoulder against the walls, while she “was screaming ‘No’ the whole way down the hall.” Appellant pulled her out to his car, demanding that she sign an affidavit of non-prosecution. He fled in his car when police officers drove up to the house.

At the conclusion of the trial, the judge instructed the jury on both burglary of a habitation and retaliation. Under the burglary application paragraph, the jury could find that appellant entered a habitation without the effective consent of the owner and either: (1) entered with the intent to commit retaliation; or (2) after entering, attempted to commit or committed retaliation. The verdict form required only that the jury indicate whether it found appellant guilty of burglary of a habitation and whether it found him guilty of the separate offense of retaliation. Appellant did not object to the burglary application paragraph or the general verdict form.

The jury found appellant guilty of both offenses and assessed his punishment at fifteen years’ imprisonment for the burglary and ten years for the retaliation offense. Although appellant filed a motion for new trial, he made no double jeopardy claim.

On appeal, appellant claimed that the disjunctive application paragraph could have allowed a double jeopardy “multiple punishments” violation because the jury might have convicted appellant of burglary based on the second théory — one based on retaliation as a lesser-included offense. The court of appeals, relying on our opinion in Gonzalez v. State, held that “an objection is required to preserve a double jeopardy complaint when the face of the record fails to show a multiple punishment violation.” Because the jury’s verdict “could have rested. on paragraph one, which alleged burglary with intent to commit retaliation, the record does not necessarily show on its face a multiple punishment violation.”

In this Court, appellant contends that the court of appeals erred by failing to apply the more nuanced analysis in Ex Parte Ervin to determine if a double jeopardy violation was clearly apparent from the record’s face.

II.

There are three distinct types of double jeopardy claims: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. A multiple punishments claim can arise in two contexts:

(1) the lesser-included offense context, in which the same conduct is punished twice; once for the basic conduct, and a second time for that same conduct plus more (for example, attempted assault of Y and assault of Y; assault of X and aggravated assault of X); and
(2) punishing the same criminal act twice under two distinct statutes when the legislature intended the conduct to be punished only once (for example, causing a single death by committing both intoxication manslaughter and involuntary manslaughter).

The “same elements” test first articulated by the United States Supreme Court in Blockburger v. United States is used to determine if two convictions constitute “multiple punishment” under the Double Jeopardy Clause:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

This Court adopted the Blockburger test long ago, and we continue to apply it as the first means of analyzing a multiple-punishment double-jeopardy claim when the legislature’s intent is not clearly expressed.

When a defendant is convicted of both burglary and a separate felony committed during that burglary, a Bloekburger multiple-punishment analysis depends on the type of burglary charged. It is well-settled that a defendant may not be punished for both the underlying felony and burglary if the burglary allegation is that the defendant entered a home without the consent of the owner and then committed the underlying felony within the home as defined in § 30.02(a)(3). Thus, the State may obtain either a burglary or the underlying felony (or theft or assault) conviction if it alleges a burglary under Section 30.02(a)(3) of the Penal Code, but not both. Under Bloekburger, burglary under Section 30.02(a)(3) requires proof of a fact that the felony charge does not, namely, entry without consent. However, to prove the burglary charge, the State must prove all of the elements of the underlying felony. Thus, the felony offense would not require proof of an additional element that the burglary offense does not also require.

Conversely, it is equally well settled that a substantive felony and a burglary by entering a home without the consent of the owner and with the intent to commit that felony are two distinct offenses. The entry of the home with felonious intent and the felony committed within are two distinct criminal acts, and each requires the State to prove an element that the other does not. A person charged with burglary under Section 30.02(a)(1) is guilty of that offense the moment that he crosses the threshold of a habitation without consent and with the intent to commit the underlying felony. It matters not whether he actually does commit that felony or even if he attempts to commit it.

III.

In this case, appellant’s two convictions may or may not violate the double jeopardy clause. Because of the jury charge and structure of the verdict form, we cannot be certain whether the jury relied upon the first (entry with intent to commit a felony) or second (entry and then commission of a felony) burglary theory. This court has, however, made it clear that a potential multiple-punishment double-j eopardy claim may be forfeited if a defendant does not properly preserve that claim.

When offenses, one of which could give rise to a multiple-punishment double-jeopardy violation, are listed disjunctively in a jury charge, the burden is upon the defendant to “preserve, in some fashion a double jeopardy objection at or before the time the charge is submitted to the jury.”

In Gonzalez, we held that because of the “fundamental nature of the double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal or even for the first time on collateral attack” if two conditions are met: (1) “the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record”; and (2) “when enforcement of the usual rules of procedural default serves no legitimate state interest.”

Morever, in Gonzalez, we reasoned that, when separate theories for an offense are issued to the jury disjunctively, a double jeopardy violation is not clearly apparent on the face of the record if one of the theories charged would not constitute a double jeopardy violation and there is sufficient evidence to support that valid theory. The fact that the jury’s verdict could have relied on a theory that would violate the Double Jeopardy Clause, is not sufficient to show a constitutional violation “clearly apparent on the face of the record.”

Here, as the court of appeals noted, the jury was instructed on one burglary theory that does not constitute a multiple-punishment violation and, as discussed below, there is sufficient evidence to support the verdict under that theory. Thus, a double jeopardy violation is not clearly apparent from the face of the record.

Appellant argues that the court of appeals, nonetheless, should have looked beyond the “same elements” test and analyzed the jury charge under the multiple-punishment discussion set out in Ervin. In Ervin, this Court noted that, in certain limited circumstances, the Blockburger “same elements” test is not the sole test for analyzing a multiple-punishment claim. In that case, the defendant killed a single person while driving a vehicle in an intoxicated state. He was charged with two crimes: manslaughter and intoxication manslaughter. The “same elements” test would not indicate a double jeopardy violation for these offenses because each offense required an element that the other did not. Manslaughter requires “recklessness,” which is not required for intoxication manslaughter, while intoxication manslaughter requires “intoxication” and “operation of a motor vehicle in a public place,” which are not required for manslaughter.

Although the two offenses passed the “same elements” test, we held that appellant could not be convicted of both offenses. Relying on United States Supreme Court precedent, we noted that the ultimate inquiry in a double jeopardy analysis is whether the legislature intended to impose multiple punishments. Because legislative intent, rather than the presence or absence of the “same elements” is the ultimate inquiry, the “same elements” test, although the usual method for discerning legislative intent, “cannot authorize two punishments where the legislature clearly intended only one,” nor, conversely, “negate a clearly expressed legislative intent to impose multiple punishments.” Since legislative intent is the ultimate end that the “same elements” test seeks, we held that, under the circumstances of that case, other factors relevant for discerning the legislature’s intent should also be considered.

However, the legislative intent is clear in regards to the offenses at issue in appellant’s case. Burglary with intent to commit an underlying felony within, and the underlying felony have long been held to be distinct and separate offenses.

Appellant’s claim is thus without merit. In this case, the jury could have convicted appellant both for the burglary of a habitation and the underlying felony of retaliation without violating the double jeopardy clause prohibition of multiple punishments. Moreover, ample facts in this record support the jury’s verdict that appellant entered Amanda’s mother’s home with the intent to commit retaliation against Amanda:

• Appellant had repeatedly attempted to persuade Amanda to drop the assault charge against him;
• He had repeatedly harassed her over the telephone;
• He had fabricated a story about his father’s death in an attempt to gain access to her own home;
• He had closely questioned a Mend of hers to find out exactly where she would be at all times that day;
• When he entered Amanda’s mother’s home, without permission, he immediately went to find Amanda and pull her out of bed;
• He snatched her out of bed, dragged her down the hall, bumping her against the walls in the process;
• During this scramble, he repeatedly told Amanda that he needed her to sign an affidavit of non-prosecution;
• He pulled her outside to his car where he had the paper for her to sign.

This was clearly a man on a mission. The jury had ample evidence to conclude that appellant had the intent to threaten to harm Amanda and make her sign an affidavit of non-prosecution at the very moment that he crossed the threshold of her mother’s home. Because the evidence is clearly sufficient to support the jury’s verdict that appellant committed burglary with the intent to commit a felony inside, no double jeopardy violation is clearly apparent on the face of the record. Thus, appellant failed to satisfy the first prong of Gonzalez.

Appellant failed to object to the disjunctive jury charge at trial and failed to meet the requirements in Gonzalez which would allow him to raise a potential double jeopardy violation for the first time on appeal. Thus, the court of appeals properly held that appellant was barred from raising his double jeopardy claim in that court on direct appeal. We therefore affirm the judgment of the lower court.

      . We granted appellant's sole ground for review:
      Did the court of appeals err in finding appellant's double jeopardy complaint regarding multiple punishments for the same offense was not preserved for appellate review?

      . Langs v. State, No. 2-03-133-CR, 2004 WL 2008623, at *1, 2004 Tex.App. LEXIS 8287 at *1 (Tex.App.-Fort Worth 2004) (not designated for publication).

      . Langs, 2004 WL 2008623, at *1, 2004 Tex.App. LEXIS 8287 at *6.

      . The jury charge’s burglary application paragraph read:
      Now, if you find from the evidence beyond a reasonable doubt that on or about the 6th day of December, 2001, in Tarrant County, Texas, the Defendant, Thessalonians Langs, did intentionally or knowingly, without the effective consent of Amanda Proctor, the owner thereof, enter a habitation with intent to commit retaliation; or if you find from the evidence beyond a reasonable doubt that on or about the 6th day of December, 2001, in Tarrant County, Texas, the Defendant, Thessalonians Langs, did intentionally or knowingly, without the effective consent of Amanda Proctor, the owner thereof, enter a habitation and did attempt to commit or commit retaliation, then you will find the defendant guilty of offense of burglary of a habitation with intent to commit retaliation or attempted retaliation, as charged in Count One of the indictment.
      Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of the offense of offense [sic] of burglary of a habitation with intent to commit retaliation or attempted retaliation, as charged in Count One of the indictment, and say by your verdict "Not Guilty.”
      The jury charge’s retaliation application paragraph read:
      Now, if you find from the evidence beyond a reasonable doubt that on or about the 6th day of December, 2001, in Tarrant County, Texas, the Defendant, Thessalonians Langs, did then and there intentionally or knowingly threaten to harm another, to-wit: Amanda Proctor, by an unlawful act in retaliation for or on account of the services or status of the said Amanda Proctor as a prospective witness, said unlawful act being, pulled Amanda Proctor from the bed in which she was sleeping, and pulled her down a hall to the door while threatening to harm her, without her consent in order to have her sign an affidavit of non-prosecution in the Defendant’s pending assault bodily injury family violence case, and said threat was communicated to Amanda Proctor in person; or if you find from the evidence beyond a reasonable doubt that on or about the 6th day of December, 2001, in Tarrant County, Texas, the Defendant, Thessalonians Langs, did then and there intentionally or knowingly threaten to harm another, to-wit: Amanda Proctor, by an unlawful act in retaliation for or on account of the services or status of the said Amanda Proctor as a person who has reported the occurrence of a crime, said unlawful act being, pulled her down a hall to the door while threatening to harm her without her consent in order to have her sign an affidavit of non-prosecution in the Defendant's pending assault bodily injury family violence case, and said threat was communicated to Amanda Proctor in person, then you will find the defendant guilty of the offense of retaliation, as charged in Count Two of the indictment.
      Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of the offense of retaliation, as charged in Count Two of the indictment, and say by your verdict “Not Guilty.”

      . In fact, the final phrase of the application paragraph, the "converse” charge, and the verdict form stated that the State was required to prove that appellant entered the habitation "with intent to commit retaliation or attempted retaliation as charged in Count One.” This wording is ambiguous and suggests that the State was, under either paragraph, required to prove a culpable mens rea of either (1) intent to commit retaliation; or (2) intent to commit attempted retaliation at the moment appellant crossed the threshold. However, neither the litigants, the trial court, or the court of appeals have ever mentioned this wording or its possible ambiguity, so we will assume that this wording was not confusing to them.

      . 8 S.W.3d 640, 645 (Tex.Crim.App.2000).

      . Langs, 2004 WL 2008623, at *1, 2004 Tex.App. LEXIS 8287 at * 3.

      . Id. 2004 WL 2008623, at *1, 2004 Tex.App. LEXIS 8287 at *6.

      . 991 S.W.2d 804 (Tex.Crim.App.1999).

      . Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App.1991).

      . See, e.g., Brown v. Ohio, 432 U.S. 161, 168-69, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (joyriding is a lesser-included offense of theft of an automobile).

      . See Ex parte Ervin, 991 S.W.2d at 816-17 (double jeopardy bars conviction for both manslaughter and intoxicated manslaughter of the same victim); see generally, Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) ("The assumption underlying the [Blockburger] rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the 'same offense,’ they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent").

      . 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . Id. at 304, 52 S.Ct. 180.

      . See, e.g., Rice v. State, 861 S.W.2d 925 (Tex.Crim.App.1993); Jones v. State, 514 S.W.2d 255 (Tex.Crim.App.1974). In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Supreme Court stated that legislative intent is the primary consideration in any multiple-punishment double jeopardy claim. Id. at 368-69, 103 S.Ct. 673. Thus, when
      a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same” conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

        Id.

      . Morgan v. Devine, 237 U.S. 632, 638, 35 S.Ct. 712, 59 L.Ed. 1153 (1915) ("An allegation simply of breaking, entering, and stealing states the burglary in a form which makes it single, and a conviction therefor will bar an indictment for the larceny or the burglary alone.”)

      . Tex. Penal Code § 30.02(a)(3) ("A person commits an offense if, without the effective consent of the owner, the person ... enters a building or habitation and commits or attempts to commit a felony, theft, or an assault”).

      . See Blockburger, 284 U.S. at 304, 52 S.Ct. 180.

      . Jones, 514 S.W.2d at 256.

      . Tex. Penal Code § 30.02(a)(1) ("A person commits an offense if, without the effective consent of the owner, the person ... enters a habitation ... with intent to commit a felony, theft, or an assault”).

      . See Garcia v. State, 571 S.W.2d 896, 899 (Tex.Crim.App.1978) (noting that "the offense of burglary [under § 30.02(a)(1) ] may be complete whether any theft ever occurs or not. If the burglarious entry is made with the intent to commit a felony or theft, the offense is complete whether any felony or the crime of theft ever subsequently happens”).

      . Gonzalez, 8 S.W.3d at 642-43. We explained:
      Our case-law on preservation of double jeopardy claims is not a model of clarity. The overriding principles expressed by this case-law are that, because of the fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal or even for the first time on collateral attack when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.

        Id. (footnotes omitted). We hastily added, "This, however, does not amount to a holding that all multiple punishments claims may be raised for the first time on appeal.” Id. at 645. Thus, requiring a defendant "to have timely raised his multiple punishments claim in the trial court serves legitimate state interests and is consistent with the underlying policies of the general rules of procedural default” when the jury is charged on multiple theories of committing a crime, at least one of which could potentially raise a multiple-punishments double-jeopardy claim. Id. "Timely raising the matter in the trial court would have provided the trial court and the prosecution an opportunity to remove the basis of the objection, and it also would have provided the prosecution the opportunity to obtain” a conviction on, for example, a burglary charge by entering with the intent to commit a felony, "without the risk of an unnecessary retrial in the face of a valid multiple punishments claim.” Id. at 645-46.

      . Gonzalez v. State, 973 S.W.2d 427, 431 (Tex.App.-Austin 1998), aff'd, 8 S.W.3d 640 (Tex.Crim.App.2000).

      . Gonzalez, 8 S.W.3d at 643 (footnotes omitted).

      . Id. at 641-42.

      . Id. at 643.

      . 991 S.W.2d at 814.

      . Id. at 814.

      . Id. at 805.

      . Id. at 806.

      . Id.

      . Id. at 817.

      . Ball v. United State, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

      . Ervin, 991 S.W.2d at 807.

        .Id.

      . Id. at 814.

      . Indeed, there was once an explicit Texas statute that said so. See Jones, 514 S.W.2d at 256, in which we noted:
      Any confusion as to whether burglary of a private residence at night with intent to commit rape and rape itself are separate and distinct offenses is removed by the statutes in force at the time of appellant's conviction. Articles 1399 and 1400, Vernon's Ann. P.C., explicitly provide that a person may be prosecuted for burglary and for any offense which he commits after entry.

        Id.


source: Caselaw Access Project

author: PAUL W. GREEN, Justice.

license: Public Domain

text:
    Theresa MARSHALL, Appellant, v. HOUSING AUTHORITY OF the CITY OF SAN ANTONIO, Appellee.
    No. 04-02-00821-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 26, 2003.
    Rehearing Overruled Jan. 16, 2004.

      David M. Winters, Texas Rural Legal Aid, San Antonio, for appellant.
    R. David Fritsehe, Law Offices of R. David Fritsehe, San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, PAUL W. GREEN, Justice, KAREN ANGELINI, Justice.
   MEMORANDUM OPINION

Opinion by

PAUL W. GREEN, Justice.

Theresa Marshall appeals the trial court’s judgment granting possession of her former residence, a unit in Woodhill Apartments, to the San Antonio Housing Authority. Marshall raises a single issue on appeal, questioning the validity of the Housing Authority’s actions under the terms of her lease and seeking a reversal of the trial court’s judgment that the Housing Authority is entitled to possession. Because the question of possession is moot, we dismiss the appeal.

Under the Texas Property Code, the judgment of a county court may not under any circumstances be stayed pending appeal unless, within 10 days of the signing of the judgment, the appellant files a su-persedeas bond in the amount set by the county court. Tex. Prop.Code Ann. § 24.007 (Vernon 2000); Kemper v. Stonegate Manor Apartments, Ltd., 29 S.W.3d 362, 363 (Tex.App.-Beaumont 2000, pet. dism’d w.o.j.). An appellate court is empowered to stay the judgment of a county court in a forcible detainer action only if a supersedeas bond has been filed. Id. Otherwise, the judgment of the county court may not be stayed and the prevailing party may proceed to take possession. Id.; See McCartney v. California Mortgage Serv., 951 S.W.2d 549, 550 (Tex.App.-El Paso 1997, no writ) (appeal alone will not supersede a writ of possession). Once this has occurred, the case becomes moot. Kemper, 29 S.W.3d at 363.

A justiciable controversy between the parties must exist at every stage of the legal proceedings, including the appeal, or the case is moot. See James v. Hubbard, 21 S.W.3d 558, 560 (Tex.App.-San Antonio 2000, no pet.). We are prohibited from deciding moot controversies. See Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex.1999); Kemper, 29 S.W.3d at 363.

Marshall failed to file a supersede-as bond with the trial court and, on November 14, 2002, she vacated the premises in order to prevent the execution of a writ of possession. Accordingly, we are past the point at which we could have granted effectual relief.

In her show cause response, Marshall argues she has a vital and continuing interest in obtaining a reversal of the judgment and that the requirement to post a supersedeas bond under the Texas Property Code is unconstitutional under the open courts mandate because she is indigent. See Tex. PROp.Code Ann. § 24.007 (Vernon 2000). In support of her proposition, Marshall cites the cases of Dillingham v. Putnam, 109 Tex. 1, 14 S.W. 303, 305 (1890) and R Communications, Inc. v. Sharp, 875 S.W.2d 314, 315 (Tex.1994). While these cases discuss an individual’s right to access the courts and the constitutionality of a legislative imposition of bonds, neither case accurately demonstrates the unconstitutionality of Texas Property Code § 24.007.

In conjunction with her open courts argument, Marshall also contends the trial court’s imposition of the bond acts to deny her the right to seek review based on a financial barrier in violation of the Texas Constitution. Under the constitution citizens are guaranteed the right to access the courts “unimpeded by unreasonable financial barriers.” Texas Ass’n of Business v. Texas Air Control Board, 852 S.W.2d 440, 448 (Tex.1993). Although Marshall claims that the supersedeas requirement is an unreasonable financial barrier, she fails to explain why or how the bond requirement is unconstitutional.

Finally, Marshall argues the bond is not required to perfect appeal, but only to supercede enforcement. Assuming this statement holds true, Marshall fails to explain how the issue is not moot once possession has changed hands. In addition, the record demonstrates that Marshall did little, if any, to protect her continuing right to the property.

We find Marshall’s arguments unpersuasive and dismiss the appeal.

      . Woodhill Apartments are a part of Woodhill Public Facility Corporation which is owned and operated by the Housing Authority.

      . Marshall also briefly addresses the imposition of the bond as an equal protection violation, the voluntariness of her relinquishment of possession, and the stigma of the judgment.


author: J. HARVEY HUDSON, Justice. WANDA McKEE FOWLER, Justice,

text:
    MAJORITY OPINION Milton Stanford MOSK, III, Appellant, v. Cheryl Warren THOMAS f/k/a Cheryl Warren Mosk, Appellee.
    No. 14-02-01130-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 4, 2003.

      Michael D. Conner, Erie Lipper, Houston, for appellant.
    Elton L. Brownshadel, Randall D. Wilkins, Houston, for appellee.
    Panel consists of Justices YATES, HUDSON, and FOWLER.
   MAJORITY OPINION

J. HARVEY HUDSON, Justice.

Milton Mosk, III (“Mosk”) appeals from a judgment ordering him to pay $17,500 in attorney fees for bringing a frivolous suit under section 17.50(c) of the Texas Deceptive Trade Practices Act (DTPA). Characterizing the award of attorney fees as a sanction, Mosk claims (1) the evidence is legally and factually insufficient to support the sanction, (2) the trial court abused its discretion in imposing the sanction, (3) the sanction violates his constitutional right of due process, and (4) the trial court committed reversible error by abusing its discretion. We affirm.

Milton Mosk and Cheryl Thomas (formerly Cheryl Mosk) were first married on November 9, 1992. The marriage was terminated by divorce in November 1997. As part of the property settlement agreement, Mosk gave Thomas a promissory note in the amount of $37,200.

Mosk and Thomas were remarried in February 1999. Thomas sold her residence and the couple purchased a house in Sugar Land located at 31 Pembroke. The second marriage also ended in divorce on March 23, 2000. The property division in the second divorce was facilitated by a mediated property settlement agreement. Under the terms of the Rule 11 agreement, Mosk was to get the Pembroke property. To assure recovery of her half of the marital estate, the parties agreed that Thomas would take a promissory note for $47,500. The pertinent handwritten provisions of the agreement are as follows:

g. Agreements regarding property (division of community estate, confirmation of separate property and allocation of debts): (l)House to H; W to vacate by 1+115/00. H to be responsible for mortgage & SW note. (2)H to execute a real property lien note in principal amount of $1+7,500 — with payments to commence October 1, 2000 — $800/month ($1+00 on 1st & $1+00 on the 15th of each month). This note will replace the promissory note in the original amount of $37,200 executed by H on 11/18197 & which note will be considered null & void no interest shall accrue unless note becomes delinquent, then interest at rate of 10% per annum.

Pursuant to the Rule 11 agreement, Thomas executed a special warranty deed conveying her interest in the Pembroke property to Mosk. Mosk, in turn, executed a real property lien note in the amount of $47,500. The real property lien note, however, contained the following proviso that was not in the handwritten Rule 11 agreement:

In the event the property securing this Note is sold or transferred, Payee [Thomas] shall release any hen created by this note upon written demand by the Grantor [Mosk] herein. Grantor shall replace the collateral with a lien of equal stature on replacement property acquired by him.

The real property lien note was secured by a third lien deed of trust containing similar terms regarding the sale of the property:

11. If all or any part of the Property is sold or transferred, Beneficiary [Thomas] agrees that Grantor [Mosk] will be entitled to a release of the hen created herein upon written demand by Grantor. Further, in the event that all or any part of the above described property is sold or transferred, Grantor shall replace the collateral with a hen of equal stature to the lien herein created on a replacement Property acquired by Grantor. In the event Beneficiary fails to tender the required release within five (5) business days of demand therefore, Beneficiary grants to Grantor a power of attorney coupled with an interest to execute said release.

Although both the real property hen note and the third hen deed of trust purport to bind Thomas, the documents were executed solely by Mosk.

Thereafter, Mosk married Denise thicker in June 2000, and he moved out of the Pembroke property. Mosk put the property up for sale, and shortly thereafter, Samy Rehem agreed to buy the property for $285,000. Mosk executed a sales agreement with Rehem in which both parties agreed to close on the sale by July 11, 2000. On June 19, 2000, Mosk’s attorney sent a letter to Thomas’s attorney making the following demand:

Pursuant to the terms of paragraph 11 of the above referenced document [third hen deed of trust], please be advised that Milton Mosk has an Earnest Money Contract for the sale of the above described real property. Mr. Mosk is prepared to replace the hen granted upon the referenced real property with a first and superior security interest in and to his 1995 Toyota 4 door automobile. All things considered, a security interest in the Toyota probably constitutes a superior hen position than that created by the Third Lien Deed of Trust. As you are aware, Ms. Mosk [Thomas] has 5 days to tender a release of the Third Lien Deed of Trust document.

Thomas refused to tender a release of her hen. Thus, on June 27, 2000, Mosk’s attorney sent .another letter directly to Thomas in which he threatened to sue her if she did not execute a release:

Your refusal to release the subject real property from operation of the Lien is clearly a breach of your contract with my client. In addition, since my client is a consumer as that term is defined by the Texas Business and Commerce Code, your actions probably constitute a violation of the Texas Deceptive Trade Practices Act. Since the transaction in question involves the acquisition of real property, your actions further constitute a violation of Article 27.01 (Fraud in a Real Estate Transaction) of the Texas Business and Commerce Code. I bring these matters to your attention because I am recommending to my client that he file a civil lawsuit against you for the recovery, of his damages. In addition, as you may be aware, both the Texas Deceptive Trade Practices Act and Fraud statute allow for recovery of exemplary damages and attorney’s fees by a successful Plaintiff.

The threats proved unsuccessful and Thomas refused to release her deed of trust. Mosk could not, therefore, complete the sale of the Pembroke property. On July 28, 2000, Rehem’s attorney sent a demand letter to Mosk seeking recovery of $3,198.01 in damages stemming from Mosk’s breach of the sales agreement. When Mosk refused to pay, Rehem sued to recover his damages.

Mosk, in turn, sued Thomas for breach of contract, fraud in a real estate transaction, indemnification for claims asserted against him by Rehem, DTPA violations, and a declaratory judgment. Mosk also sought punitive damages of at least $250,000.

Thomas responded with a general denial and a counterclaim for common law fraud, fraudulent misrepresentation, intentional infliction of emotional distress, breach of contract, and violations of the DTPA.

To facilitate a resolution of all the claims, Rehem’s suit against Mosk was consolidated with Mosk’s suit against Thomas and her counterclaims against Mosk.

Both Thomas and Mosk filed motions for summary judgment. The trial court granted Mosk an interlocutory summary judgment on all of Thomas’s claims except her DTPA cause of action. Thomas’s motion for summary judgment was denied. Accordingly, the trial court ordered that Thomas take nothing as to all of her claims save her DTPA cause of action. Thereafter, the parties proceeded to trial before the court. After considering the evidence adduced by the parties, the trial court rendered a final judgment in which it ordered that Mosk take nothing on his claims against Thomas, that Thomas recover attorney fees from Mosk in the amount of $17,500, and that Rehem recover from Mosk $5,554.21 in damages and attorney fees.

In his first and second issues for review, Mosk contends the evidence is legally and factually insufficient to support “an award of sanctions,” ie., Thomas’s attorney fees. The attorney fees at issue were awarded to Thomas under the authority of section 17.50(c) of the DTPA. The statute provides, as follows:

c) On a finding by the court that an action under this section was groundless in fact or law or brought in bad faith, or brought for the purpose of harassment, the court shall award to the defendant reasonable and necessary attorneys’ fees and court costs.

Tex. Bus. & Com.Code Ann. § 17.50(c) (Vernon 2002). Notwithstanding the fact the trial court awarded attorney fees to Thomas under the DTPA, Mosk supports his contention by citing a number of decisions regarding the imposition of sanctions under Rule IB. See Tex.R. Civ. P. 13.

The Texas Supreme Court has held the term “groundless” has the same meaning in the DTPA and Rule 13, ie., “[n]o basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law.” Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634, 637 (Tex.1989). Moreover, the same conduct may implicate both section 17.50(c) and Rule 13, and some courts have categorized the award of attorney fees under section 17.50(c) as a sanction. See Hartman v. Urban, 946 S.W.2d 546, 551 (Tex.App.Corpus Christi 1997, no writ); Davila v. World Car Five Star, 75 S.W.3d 537 (Tex.App.-San Antonio, no pet.); Bohls v. Oakes, 75 S.W.3d 473, 480 (Tex.App.-San Antonio 2002, pet. denied). However, we do not deem the award of attorney fees under the DTPA as punitive sanctions. While a sanction may include the award of attorney fees, restitution is not punishment; it is simply the restoration of a loss caused by one’s own misfeasance or malfeasance. See Falk & Mayfield L.L.P. v. Mohan, 974 S.W.2d 821, 823 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). Accordingly, we omit from our analysis any reference to decisions, standards of review, or rationale associated with the imposition of Rule 13 sanctions.

The trial court was authorized to award attorney fees to Thomas under the theory that Mosk’s suit was “groundless.” Tex. Bus. & Com.Code Ann. § 17.50(c). The standard for determining whether a suit is groundless considers “whether the totality of the tendered evidence demonstrates an arguable basis in fact and law for the consumer’s claim.” Selig v. BMW of N. Am., Inc., 832 S.W.2d 95, 103-04 (Tex.App.-Houston [14th Dist.] 1992, no writ) (quoting Splettstosser v. Myer, 779 S.W.2d 806, 808 (Tex.1989)). Moreover, here the trial court was authorized to award attorney fees if Mosk’s suit was groundless either in law or fact; whether a suit is groundless in law is a legal question. See Donwerth, 775 S.W.2d at 637; Riddick v. Quail Harbor Condominium Ass’n, Inc., 7 S.W.3d 663, 677-78 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Thus, while Mosk raises issues regarding sufficiency of the evidence, our review of a trial court’s determination to award attorney fees under section 17.50(c) is a question of law-under an abuse of discretion standard. Riddick, 7 S.W.3d at 678; Selig, 832 S.W.2d at 103-04.

Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds for asserting error, but are relevant factors in assessing whether the trial court abused its discretion. Gray v. Gray, 971 S.W.2d 212, 213 (Tex.App.-Beaumont 1998, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or when it acts without reference to any guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate justice in a similar circumstance does not demonstrate that an abuse of discretion occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). An abuse of discretion does not occur when the trial court bases its decisions on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); Gray, 971 S.W.2d at 214; Valdez v. Valdez, 930 S.W.2d 725, 731 (Tex.App.-Houston [1st Dist.] 1996, no writ.). Furthermore, an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court’s decision. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

The evidence establishes that Mosk’s suit was groundless in law. Mosk was not entitled to bring a DTPA suit because he was not a “consumer” as that term is defined by the act. A “consumer” is defined under the act as “an individual ... who seeks or acquires by purchase or lease, any goods or services.” Tex. Bus. & Com.Code Ann. § 17.45(4) (Vernon 2002). Whether a plaintiff is a consumer under the DTPA is a question of law to be determined by the trial court from the evidence. Ford v. City State Bank of Palacios, 44 S.W.3d 121, 133 (Tex.App.-Corpus Christi 2001, no pet.). Here, Mosk’s own pleadings admit that he acquired the Pembroke property not by purchase or lease, but by virtue of a property settlement in a divorce proceeding. Therefore, Mosk was not a “consumer” and was not authorized to bring a DTPA suit. See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 273-74 (Tex.1995). By finding this suit “frivolous,” the trial court did not abuse its discretion in granting attorney fees to Thomas. Accordingly, Mosk’s first and second issues for review are overruled.

In his third issue, Mosk contends the trial court abused its discretion in ordering “sanctions.” For reasons we have already set forth above, the trial court did not abuse its discretion in awarding attorney fees to Thomas. However, here Mosk specifically complains that the trial court should have assessed Thomas’s attorney fees not against him personally, but against his attorney who filed the frivolous suit. Mosk cites no direct authority in support of his position, and we have found none. Section 17.50(c) sets out a mechanism for a defendant to recover his or her attorney fees. Moreover, it is well established that attorney fees can be assessed against a party in a DTPA action. See, for example, Selig, 832 S.W.2d at 104; Maronge v. Cityfed Mortgage Co., 803 S.W.2d 393, 396 (Tex.App.-Houston [14th Dist.] 1991, no writ). Accordingly, we find the trial court did not abuse its discretion in ordering Mosk to pay Thomas’s attorney fees. Mosk’s third issue is overruled.

In his fourth issue, Mosk claims the “sanctions” violate his due process rights because he is being punished for his attorney’s culpability. However, as we have already stated, we do not construe the award of attorney fees as a punitive sanction requiring review under the standards set forth in TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). Accordingly, Mosk’s discussion of “punishment” and “culpability” is misplaced. Mosk’s fourth issue is overruled.

In his fifth issue, Mosk contends the errors previously alleged by him constitute reversible error because they were harmful to him. However, we have found no error in the trial court’s award of attorney fees. Accordingly, Mosk’s fifth issue is overruled.

The judgment of the trial court is affirmed.

FOWLER, J., filed a concurring opinion.

WANDA McKEE FOWLER, Justice,

concurring.

I fully agree with and join in the majority opinion. I write separately only to address two issues.

First, appellant has argued that we should apply the whole panoply of sanctions case law-most notably TransAmerican—to this case. See, e.g., TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991); Spohn Hosp. v. Mayer, 104 S.W.3d 878 (Tex.2003); Braden v. Downey, 811 S.W.2d 922 (Tex.1991). Based on this case law, he claims the trial court had to hold a hearing to develop his reasons for filing suit and the intentions of appellant and his lawyer. His argument continues that, without an evidentiary hearing on this issue — his reasons for filing suit and his and his lawyer’s intentions — the court cannot determine if it is fair to order appellant to pay the attorney’s fees of his opposing counsel. This is wrong for several reasons.

To begin with, section 17.50(c) of the Deceptive Trade Practices Act is different from Rule 13 and the discovery sanctions rule, Rule 215.2(b). Compare Tex. Bus. & Com.Code § 17.50(c), with Tex.R. Civ. P. 13, 215.2(b). Section 17.50(c) authorizes imposition of attorneys’ fees simply on a showing that the suit is groundless in law. Tex. Bus. & Com.Code § 17.50(c). Unlike the other sanction settings, there need not also be a showing of bad faith; groundlessness in law alone is enough. See id.

Also, whether a suit is groundless in law is a legal question, not a fact question. See Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634, 637 (Tex.1989); Riddick v. Quail Harbor Condominium Ass’n, Inc., 7 S.W.3d 663, 677-78 (Tex.App.-Houston [14th Dist.] 1999, no pet.). As long as the trial court knows the factual bases for the suit, which for most part should be in the petition, it need not hold a factual hearing to determine why the lawyer included a particular legal claim. That question simply does not bear on whether the suit is based on a valid or arguably valid legal theory. So, certainly in the case of a novel theory of law, the court would need to hear argument from counsel, but it would not need to hold a factual hearing. Appellant’s claim that he was entitled to a factual hearing is incorrect.

Second, I want to address appellant’s claim that the court should have ordered appellant’s attorney, not appellant, to pay opposing counsel’s fees; after all, the attorney, not appellant, drafted the pleadings. Once again, section 17.50(c) is written differently than the various rules imposing sanctions discussed. Section 17.50(c) does not state that the attorneys’ fees can be imposed against either the party or the lawyer. See Tex. Bus. & Com.Codb § 17.50(c). But other statutes and rules allowing costs and fees to be imposed against lawyers clearly do. One part of Rule 13 refers to “attorneys or parties”; another part provides, “If a pleading, motion, or other paper is signed in violation of this rule, the court after notice and hearing ... shall impose an appropriate sanction upon the person who signed it, a represented party, or both.” Tex.R. Civ. P. 13. Likewise, section 10.004(a) of the Civil Practice and Remedies Code, which appellant also cites, refers to both the party and the lawyer: “A court that determines that a person -has signed a pleading or motion in violation of Section 10.001 may impose a sanction on the person, a party represented by the person, or both.” Tex. Civ. PRAC. & Rem.Code § 10.004(a). And, in the same manner, Rule 215.2(b) refers to both the party and the lawyer. Tex.R. Civ. P. 215.2(b)(2)(8). Section 17.50(c) does not refer to a “person or party” or “both,” as these other sanctions provisions do. It says the following:

On a finding by the court that an action under this section was groundless in fact or law ..., the court shall award to the defendant reasonable and necessary attorneys’ fees and court costs.

Tex. Bus. & Com.Code § 17.50(c).

The clear language of Rules 13 and 215.2(b) and section 10.004 is missing from section 17.50(c). For these reasons, TrcmsAmeñcan and its progeny do not control this case and the court was not free under section 17.50(c) to impose sanctions against the attorney.

      . TransAmerican requires that sanctions be just, and Mosk relies heavily upon that decision for support. We note, however, that TransAmerican involved sanctions imposed for discovery abuse pursuant to Rule 215 of the Texas Rules of Civil Procedure. Trans-American, 811 S.W.2d at 916. The case before us involves neither Rule 215 sanctions nor any similar "offensive conduct.” See id. at 917.

      . A factual hearing probably would have been necessary if the court had found that the suit was groundless in fact or brought in bad faith or for the purpose of harassment. Here, though, the court found that the suit was groundless in law, and he had before him documents which clearly showed how appellant acquired the property; he did not need to have a factual, hearing.

      . Part of appellant’s argument in this point is that the trial court had the authority to impose sanctions against the lawyer pursuant to section 10.004 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code § 10.004(a) (providing court may impose sanctions on the party, the lawyer, or both). The trial court had the authority to enter these sanctions on its own initiative, see id. § 10.002(b), but the record reveals no evidence that the court did so. Further, the trial court did not issue an order directing appellant to explain his conduct, which the court would have been required to do when entering sanctions on its own initiative. See id.


author: DIANE DeVASTO, Justice.

text:
    Le Anthony YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 12-04-00018-CR.
    Court of Appeals of Texas, Tyler.
    Aug. 10, 2005.
    Discretionary Review Refused Jan. 25, 2006.

      James H. Dyer, for appellant.
    Charles J. Breaux, Jr., for state.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

DIANE DeVASTO, Justice.

A jury convicted Appellant Le Anthony Young of delivery of a controlled substance and assessed his punishment at forty years of imprisonment. In five issues, Appellant contends that (1) the State introduced insufficient evidence corroborating the testimony of its confidential informant, (2) the trial court erred in the admission of a plastic bag containing cocaine, (3) the trial court abused its discretion in admitting a copy of an audio tape recording of the alleged drug transaction, (4) Appellant was denied a fair trial by the State’s failure to comply with the trial court’s discovery order, and (5) the indictment improperly alleged an actual delivery of the cocaine. We affirm.

Background

Sergeant John Catoe with the Deep East Texas Regional Narcotics Task Force (the “Task Force”) testified that he was working an undercover operation in Crockett, Texas. He met with Steven McCullough, who agreed to serve as a confidential informant for Catoe. McCullough advised Catoe that he could purchase crack cocaine from Appellant. Ca-toe equipped McCullough with an audio monitoring and recording device and supplied him with three hundred dollars to buy the cocaine from Appellant.

McCullough told Catoe that Appellant lived at 604 North 8th Street in Crockett. Catoe followed McCullough to that address, where Appellant was staying with Deborah Evans. McCullough entered the residence and purchased 6.28 grams of crack cocaine. Catoe followed McCullough back to a predetermined location and took custody of the cocaine.

The State presented three witnesses at trial: Catoe, McCullough, and Kelvin Minor, a criminalist in the drug section of the Texas Department of Public Safety (“DPS”). Thirteen State’s exhibits were admitted during trial, including the cocaine and the audio tape.

A jury found Appellant guilty of delivery of a controlled substance, and the court sentenced him to forty years of imprisonment. This appeal followed.

Corroboration of Informant’s Testimony

In his first issue, Appellant complains that the evidence was insufficient to corroborate McCullough’s testimony as a confidential informant. The legislature has mandated that a defendant may not be convicted by the statements of a confidential informant unless that testimony is corroborated in the following manner:

(a) A defendant may not be convicted of an offense under Chapter . 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.

Tex.Code Crim. Proc. Ann. art. 38.141(a), (b) (Vernon 2005).

A challenge to the sufficiency of the corroboration is not the same as a challenge to the sufficiency of the evidence to support the verdict as a whole. See Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App.1999). To corroborate a confidential informant’s testimony, all the law requires is that there be some non-confidential-informant evidence that tends to connect the accused to the commission of offense. See Young v. State, 95 S.W.3d 448, 451 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). To determine the sufficiency of the corroborative evidence, we eliminate the testimony of the confidential informant and ask whether other inculpa-tory evidence tends to connect the accused with the commission of the offense. See id. (citing McDuff v. State, 939 S.W.2d 607, 612 (Tex.Crim.App.1997)). The “tends-to-connect” standard does not present a high threshold. See Cantelon v. State, 85 S.W.3d 457, 461 (Tex.App.-Austin 2002, no pet.).

McCullough testified that he had known Appellant for five years and that he purchased the crack cocaine from Appellant on December 18, 2002 at the house located at 604 North 8th Street in Crockett. He also identified Appellant’s voice on the audio recording. Appellant contends that the State introduced insufficient non-confidential-informant evidence to corroborate McCullough’s testimony. Therefore, Appellant contends, the State failed to meet the “tends-to-connect” standard imposed by Article 38.141. In support of his argument, Appellant relies on Young in which the conviction was reversed because there was no evidence except the testimony of the informant that connected the appellant with the offense. See Young, 95 S.W.3d at 451-52. In Young, no law enforcement officer could verify that the informant went to the appellant’s house on the day of the drug transaction. Moreover, no other witnesses testified that the informant entered the appellant’s house or that a drug transaction took place there. See id.

In the instant case, Catoe testified that the planned drug purchase occurred on December 18, 2002. Before executing the plan, Catoe searched McCullough to ensure that he had no drugs on him and provided him with three hundred dollars in cash. Catoe then followed McCullough to 604 North 8th Street in Crockett, where Appellant was staying with Deborah Evans. Catoe observed McCullough enter the house and testified that McCullough remained inside for three to five minutes. Catoe maintained audio surveillance while McCullough was in the house. Catoe testified that through his employment at the Crockett Police Department, he had become familiar with Appellant’s voice. He also said that, as he listened to what was happening inside the house, he heard a conversation between Appellant and McCullough that sounded like a drug transaction. When McCullough exited the house, Catoe followed him to a predetermined location where Catoe received the crack cocaine from McCullough and confirmed that McCullough no longer had the three hundred dollars in cash. Thus, Ca-toe’s testimony provided the corroboration in this case that was missing in Young.

Based on the foregoing evidence, we conclude that the informant’s testimony was corroborated by sufficient other evidence tending to connect Appellant to the drug purchase. Appellant’s first issue is overruled.

Chain of Custody

In his second issue, Appellant argues that the trial court erred in admitting the cocaine into evidence because the State failed to properly authenticate or identify the exhibit through a “chain of custody.” Appellant further argues that the trial court erred in admitting the cocaine during the testimony of McCullough, which was conditional, irrelevant, and inadmissible. The State contends that the exhibit was properly authenticated and identified. Alternatively, the State argues that Appellant did not preserve this issue for our review. After reviewing the record, we conclude that the issue was properly preserved. Therefore, we will address it.

It is within the trial court’s discretion to determine the sufficiency of a predicate. Smith v. State, 683 S.W.2d 393, 405 (Tex.Crim.App.1984). Absent an abuse of discretion, we will not disturb the trial court’s finding. Id. When the State shows the beginning and the ending of the chain of custody, any gaps in between go to weight rather than the admissibility of the evidence, particularly if the chain of custody from seizure to the laboratory is shown. Id.

In this case, chain of custody affidavits executed by Catoe, Jack Carter (a Task Force representative), and Minor (a DPS criminalist), respectively, and a certificate of analysis prepared by Minor were admitted into evidence. See Tex.Code CRiM. Peoc. Ann. arts. 38.41 (certificate of analysis), 38.42 (chain of custody affidavits) (Vernon 2005). These affidavits established that Catoe received the cocaine from McCullough and transferred it to Carter who, in turn, transferred it to the DPS Crime Lab, where it was stored in a secured vault until analysis. At trial, Catoe testified that after receiving the suspected crack cocaine from McCullough, he conducted a field test that was positive for cocaine and described the identification procedure he used for the cocaine when he later submitted it for analysis. Catoe also identified, as State’s Exhibit No. 5, the evidence bag containing a small bag of off-white substance as the crack cocaine he received from McCullough on December 18, 2002. According to his testimony, his identification was based on the unique case number assigned to and noted on the exhibit, his signature and initials noted on the exhibit, and the date and time of receipt, also noted on the exhibit. Minor testified about the results of his analysis of the cocaine.

This evidence shows a complete chain of custody from seizure to the laboratory. The record reveals no evidence of tampering and no gaps in the chain of custody. Therefore, we hold that the trial court did not abuse its discretion in overruling Appellant’s chain of custody objection and admitting the cocaine into evidence. Appellant’s second issue is overruled.

Admission of Audio Tape

In his third issue, Appellant argues that the trial court erred in admitting the audio tape recording into evidence.

Texas Rule of Evidence 901 governs the admissibility of electronic recordings. Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App.1998). Rule 901 requires authentication or identification as a condition precedent to admissibility. Tex.R. Evm 901(a). This requirement is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Id. Appellant contends that the tape was not properly authenticated under Rule 901 and that the oral testimony of McCullough did not establish that the audio tape was “what its proponent claims.” See Tex.R. Evid. 901. The State argues that the objection made at trial was a “mere predicate objection” and insufficient to preserve the issue for our review.

To preserve an issue for review, a party must timely object and state the grounds for the ruling sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context of the objection. Tex.R.App. P. 33.1(a)(1)(A). Here, Appellant objected to the admission of the tape stating that McCullough had no knowledge of how the tape was produced and that the proper predicate was not laid for the introduction of the tape. Objecting on the basis that no predicate has been laid is a general objection that lacks the specificity necessary to advise the trial court of the basis for the objection. See Smith v. State, 683 S.W.2d 393, 403-04 (Tex.Crim.App.1984). Such an objection fails to preserve the issue for review. Id. An objection to an improper predicate that fails to inform the trial court exactly how the predicate is deficient will not preserve error. Bird v. State, 692 S.W.2d 65, 70 (Tex.Crim.App.1985). In his objection, Appellant did not inform the trial court how the predicate was deficient. Therefore, he failed to preserve this issue for review. See Tex.R.App. P. 33.1(a)(1). Appellant’s third issue is overruled.

Failure to Comply with Discovery Order

In his fourth issue, Appellant contends that the State failed to comply with the trial court’s discovery order. He maintains that he was denied the signed agreement between the Task Force and McCullough, which was a violation of the order and constituted “vital impeachment evidence.” Consequently, Appellant concludes, he was denied a fair trial.

The trial court’s discovery order required the State to furnish all known convictions admissible for impeachment concerning the State’s proposed witnesses and all known convictions, pending charges, or suspected criminal offenses concerning any accomplice proposed to be used as a witness by the State. Thereafter, the State provided Appellant with a driver’s license history, a computerized history summary, and an NCIC/TCIC history on McCullough. The trial court also granted a motion for discovery, requiring the State to furnish “all promises of benefits or leniency afforded to any accomplice or prospective witness in connection with his/her proposed testimony or other cooperation with regard to the alleged offense and all exculpatory evidence pursuant to” Brady v. Maryland and related cases.

Catoe testified that before an individual is used as a confidential informant in an investigation, the person must sign a written agreement with the Task Force. He described this agreement as a DPS form governing the actions of the informant. Catoe testified that McCullough signed such an agreement and that the agreement was on file with the Task Force. Catoe stated that a confidential informant could be paid money as well as receive a favorable disposition on a case as a result of the work the informant did for the Task Force. Appellant did not cross-examine Catoe about the agreement other than to establish that McCullough signed the agreement and that the District Attorney did not provide a copy to the Appellant. McCullough admitted during his testimony that he had signed an agreement “to buy drugs” for the Task Force. He also stated that he was not paid or promised anything for his work.

According to Appellant, not only did the State have a duty to reveal the agreement pursuant to Brady, but the discovery order entered by the court required such disclosure. We agree the State has an affirmative duty under the Due Process Clause to disclose exculpatory or impeachment evidence that is material to guilt or punishment. See generally United States v. Bagley, 473 U.S. 667, 677, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); see also Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218; Thomas v. State, 841 S.W.2d 399, 407 (Tex.Crim.App.1992). Favorable evidence is “material” if there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that had the evidence been disclosed to the defense, the result of the proceeding would have been different. Thomas, 841 S.W.2d at 404. When the evidence is disclosed during trial, however, the materiality question turns on whether the defendant was prejudiced by the delayed disclosure. Williams v. State, 995 S.W.2d 754, 761-62 (Tex.App.San Antonio 1999, no pet.). Furthermore, when previously withheld evidence is disclosed at trial, the defendant has an opportunity to request a continuance. Id. The failure to request one waives any Brady violation, as well as any violation of a discovery order. Gutierrez v. State, 85 S.W.3d 446, 452 (Tex.App.-Austin 2002, pet. ref'd); Williams, 995 S.W.2d at 761-62.

In the instant case, Appellant failed to request a continuance at any time after the State disclosed the agreement between the Task Force and McCullough. Therefore, assuming arguendo that the State had a duty to disclose the challenged evidence, Appellant waived any violation of Brady or the trial court’s discovery order. Appellant’s fourth issue is overruled.

The Indictment

In his fifth issue, Appellant maintains that the indictment alleges a combination of two different types of delivery of crack cocaine. According to Appellant, the State’s failure to plead the delivery of a controlled substance by Appellant to McCullough as agent for Catoe or as a codefendant under the law of parties resulted in the violation of his constitutional rights to notice of the charges against him, procedural due process of law, and a fair and impartial trial.

The elements of the offense of delivery of a controlled substance are (1) a person (2) knowingly or intentionally (3) delivers (4) a controlled substance. Tex. Health & Safety Code Ann. § 481.112(a) (Vernon 2003) (“Texas Controlled Substances Act”); Stewart v. State, 718 S.W.2d 286, 288 (Tex.Crim.App.1986). The term “deliver” is defined in the Texas Controlled Substances Act as a “transfer, [whether actual or constructive], to another a controlled substance ..., regardless of whether there is an agency relationship”. Tex. Health & Safety Code Ann. § 481.002(8) (Vernon 2004). A “transfer” is “a voluntary relinquishment of possession in favor of another.” Thomas v. State, 832 S.W.2d 47, 51 (Tex.Crim.App.1992). An actual transfer or delivery, as commonly understood, contemplates the manual transfer of property from the transferor to the transferee or to the transferee’s agent or to someone identified in law with the transferee. See Heberling v. State, 834 S.W.2d 350, 354 (Tex.Crim.App.1992). A “constructive transfer” occurs when a defendant transfers a controlled substance either belonging to the defendant or under his direct or indirect control by some other person or manner at the instance or direction of the defendant. Daniels v. State, 754 S.W.2d 214, 221 (Tex.Crim.App.1988). An indictment for the delivery of a controlled substance must specify which type or types of delivery the State will rely upon and need not allege the precise manner by which a specified type of delivery was performed. Marable v. State, 990 S.W.2d 421, 423 (Tex.App.-Texarkana 1999), aff'd, 85 S.W.3d 287 (Tex.Crim.App.2002).

In the instant case, the indictment alleged that Appellant “did then and there knowingly deliver, by actual transfer, to John Catoe, a controlled substance, namely, cocaine, ...” The term “deliver” as defined by the Texas Health and Safety Code contemplates “the actual transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” See Tex. Health & Safety Code Ann. § 481.002(8) (emphasis added). Therefore, it was unnecessary for the State to allege that Appellant delivered the cocaine to McCullough as agent for Catoe. Moreover, it is well settled that the law of parties need not be pleaded in the indictment. Marable v. State, 85 S.W.3d 287, 288 (Tex.Crim.App.2002).

A written instrument is sufficient as an indictment under the Texas Constitution if it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective. Duron v. State, 956 S.W.2d 547, 550-51 (Tex.Crim.App.1997). The indictment in this case met those requirements. Appellant’s fifth issue is overruled.

Disposition

Having overruled Appellant’s five issues, the trial court’s judgment is affirmed.

      . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


author: JANE BLAND, Justice.

text:
    Phuong Hoai CAO, Appellant, v. The STATE of Texas, Appellee.
    Nos. 01-04-00473-CR, 01-04-00474-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 20, 2005.

      Richard Edward Banks, Charles A. Ro-senthal, Jr., District Attorney-Harris County and Tot Kim Le, Houston, TX, for Appellant.
    Amanda J. Peters, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION ON REHEARING

JANE BLAND, Justice.

A jury found appellant, Phuong Hoai Cao, guilty of two felony offenses of burglary of a habitation and acquitted him of the felony offense of possession of a firearm by a felon. After finding true an enhancement paragraph alleging a previous felony burglary, the trial court assessed punishment at forty years’ confinement for each burglary offense, with the sentences to run concurrently. In this appeal, Cao contends the evidence is legally insufficient to support his convictions for burglary of a habitation because the State failed to produce corroborating accomplice testimony as required by Article 38.14 of the Code of Criminal Procedure. We affirm the conviction in cause number 942823 and reverse the conviction and render a judgment of acquittal in cause number 961668. We withdraw our earlier opinion in this case and issue this opinion in its stead. Our disposition remains unchanged.

The Facts

In January 2003, Deputy Craig Clopton of the Harris County Sheriffs Department responded to a report of a burglary at the home of Victor Le, located at 13906 Green-side, Harris County, Texas. Deputy Clop-ton testified that the windows on each side of the door had been broken in order to force entry into the residence. The intruders ransacked the entire house, including the closets and the mattresses. Victor Le provided the sheriffs department with a list of missing items, including a Moss-berg shotgun with unique characteristics. The shotgun had been stored in the master bathroom closet. During trial, Victor Le identified a Mossberg shotgun later recovered from Cao’s apartment as the one stolen from him in January 2003.

Randy Van Le (no relation to Victor Le) owns a home at 8816 Riverwell Circle West, in Harris County, Texas. His son, Vicmor, was home alone at the time of a burglary, and testified to the events he witnessed. On the afternoon of March 11, 2003, Vicmor heard a man knocking on the door and repeatedly ringing the doorbell. Vicmor peered through an upstairs window, but did not recognize the man outside his door. He also noticed an unknown red Honda C.R.V. in the driveway. After Vic-mor failed to open the door, the man returned to his car and looked around. The man then moved his car to the street, near the residence’s mailbox, and walked toward the home’s backyard. Vicmor walked downstairs and heard a window break in his mother’s bedroom, whereupon he ran back upstairs and telephoned his parents and the police. Vicmor’s mother told him to telephone a nearby aunt, Linda Gates, and ask that she come to the house. Vicmor further testified that he could identify the man knocking at his door. He saw another man in the car, but he could not identify him.

Gates testified that she arrived at the home on Riverwell Circle and noticed a maroon-colored Honda C.R.V. parked in front of the home. Gates wrote down the Honda’s license plate number and followed the vehicle for a short distance, but then she returned to the home to check on Vicmor. As Gates stood in the front yard, telephoning her sister from a mobile phone, the Honda returned. The occupants of the Honda saw Gates and sped away. Gates saw two people occupying the Honda, but she was unable to identify them.

Harris County Sheriffs Department Deputy Puichi Ung responded to the burglary call. Ung testified that the burglars had shattered the master bedroom window, located at the back of the home’s first floor. Ung further testified that the Les’ bedroom had been ransacked and that several pieces of jewelry were missing.

The sheriffs department deputies traced the license plate number from the maroon Honda vehicle to Giang Vu Do. Do admitted that he committed the burglaries at the Greenside and Riverwell residences. Do also told the deputies that Cao helped him to commit the two burglaries. Do admitted that he and Cao stole guns from Victor Le’s residence, and he stated that deputies could find the guns in Cao’s apartment. The deputies recovered the Mossberg shotgun stolen from the Green-side residence at Cao’s apartment during his arrest.

Do pleaded guilty to burglary and received a reduced sentence for testifying against Cao. Do testified that he and Cao burglarized the Greenside and Riverwell residences together. Do stated that he and Cao drove his red Honda C.R.Y. to the Riverwell burglary. After the burglaries, Do took the stolen property to Cao’s apartment and exchanged it for money. Do further testified that among the items he left with Cao was the shotgun taken from the Greenside burglary.

Discussion

Cao contends the evidence is legally insufficient to sustain his conviction for the Greenside and Riverwell burglaries because the State failed to sufficiently corroborate Do’s accomplice testimony as required by Article 38.14 of the Code of Criminal Procedure. The State responds that corroborating evidence exists that tends to connect Cao to both the Greenside and Riverwell burglaries.

Article 38.14 of the Code of Criminal Procedure provides that a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence that tends to connect the accused with the offense. Tex.Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Colella v. State, 915 S.W.2d 834, 838 (Tex.Crim.App.1995); see also St. Julian v. State, 132 S.W.3d 512, 516 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). Corroborating evidence is insufficient if it merely shows the commis sion of an offense. Tex.Code Crim. Proc. Ann. art. 38.14; Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999) (citing Colella, 915 S.W.2d at 838-39); see also St. Julian, 132 S.W.3d at 516. In assessing the sufficiency of corroborative evidence, we eliminate the testimony of the accomplice witness from consideration and examine the testimony of the other witnesses to ascertain whether the non-accomplice evidence tends to connect the accused with the commission of the offense. St. Julian, 132 S.W.3d at 516 (citing Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997)). The non-accomplice evidence need not by itself establish the accused’s guilt beyond a reasonable doubt. Id. Rather, some evidence must exist that tends to connect the accused to the commission of the offense. Id.

Although Cao complains that the evidence is legally insufficient to sustain his conviction, the Court of Criminal Appeals has declined to impose legal and factual sufficiency standards on a review of accomplice witness testimony under Article 38.14. See id., 132 S.W.3d at 516 (citing Cathey, 992 S.W.2d at 462-63). The Legislature imposed the accomplice-witness rule sufficiency review, and thus it is not derived from federal and state constitutional principles that otherwise define legal and factual sufficiency review. Id.

Greenside Burglary

Victor Le testified that he collects guns and that an intruder stole a Moss-berg shotgun with particular characteristics, including a wooden slide and plastic handle. Le stored the shotgun next to a safe in his home. The deputies’ search of Cao’s apartment yielded a Mossberg in Cao’s apartment closet. Victor Le identified the shotgun as the one stolen from his residence and provided a specific description of the shotgun to the sheriffs department before viewing the one recovered from Cao’s apartment. Cao contends (1) he shared the apartment with his wife so the fact that the Mossberg shotgun was found in the apartment is not evidence that he participated in the burglary; and (2) the accomplice, Do, testified that it was he who placed the shotgun in Cao’s closet, not Cao himself, and thus the officer’s recovery of the stolen gun from Cao’s closet is insufficient corroboration of Do’s testimony.

We disagree. While the recovery of the stolen shotgun in Cao’s apartment standing alone does not establish his guilt, it is evidence that tends to connect Cao to the commission of the Greenside burglary. See, e.g., Herron v. State, 86 S.W.3d 621, 633 (Tex.Crim.App.2002) (stating that appellant’s possession of stolen property is a factor that connects appellant to offense); Edwards v. State, 106 S.W.3d 833, 843 (Tex.App.-Dallas 2003, pet. ref'd) (holding that recovery of trash containing stolen property from outside appellant’s apartment is factor that tends to corroborate accomplice testimony). Do testified that he and Cao opened Le’s safe at Cao’s apartment with a hammer, and that he left with the shotgun, but later “gave it to [Cao]” by returning it to Cao’s closet. The deputy’s recovery of the stolen shotgun in Cao’s closet and Le’s independent identification of it corroborate Do’s testimony. Article 38.14 requires only some non-accomplice evidence tending to connect the defendant with the crime, not non-accomplice evidence for every element of the crime. Vasquez v. State, 56 S.W.3d 46, 48 (Tex.Crim.App.2001). Moreover, evidence of joint, rather than exclusive, possession of stolen property may be sufficient to satisfy the accomplice witness rale. Gill v. State, 873 S.W.2d 45, 49 (Tex.Crim.App.1994). We therefore conclude that the non-accomplice evidence is sufficient to connect Cao to the commission of the Greenside burglary in cause number 942823, as required by Article 38.14. See Hernandez, 939 S.W.2d at 177-79.

Riverwell Burglary

Vicmor Le testified that he observed a red Honda C.R.V. in his family’s driveway and later parked on the street in front of his residence. Gates likewise testified that she saw a maroon Honda C.R.V. parked in front of the Les’ Riverwell home. She wrote down the license plate number, which ultimately led law enforcement authorities to Do. Although this evidence corroborates Do’s testimony, it does not tend to connect Cao to the burglary because neither of the witnesses could identify Cao as an occupant of the Honda or otherwise place him at the scene of the burglary. See Hernandez, 939 S.W.2d at 178 (providing that evidence that appellant was in company of accomplice at or near time or place of crime is proper corroborating evidence to support conviction) (citing Jackson v. State, 745 S.W.2d 4, 13 (Tex.Crim.App.1988)).

As its sole argument of a link between Cao and the Riverwell burglary, the State contends that Cao offered an in-court utterance that tended to connect him to the offense. During Do’s accomplice testimony, made via a translator who spoke Vietnamese, the following exchange occurred:

[State]: Who went inside the house?
[Do]: Phuong.
[State]: How did he get inside the house?
[The Defendant] [Cao]: Break the glass.
[Do]: He broke the glass in the back.

Cao’s interjection during the State’s examination of Do does not connect Cao to the Riverwell burglary. The record indicates that three previous witnesses already had testified that the glass was broken. Ung testified that the glass to the window was broken. Vicmor testified that he heard a window break when he was upstairs, and that he later walked downstairs and saw the broken window. Gates also testified that a window was broken. Considering all of the prior testimony regarding the broken glass, and the fact that the statement was made during translated testimony, nothing indicates that Cao’s statement was an admission, rather than a translation of the witness’s answer or the translator’s question — a question that had been answered by previous witnesses. Nothing about the statement demonstrates any independent knowledge of the events of the burglary.

On rehearing, relying upon Knox v. State, the State contends that we failed to consider Cao’s statement “in a light most favorable to the jury’s verdict.” 934 S.W.2d 678, 686-87 (Tex.Crim.App.1996) (non-accomplice evidence must be viewed in a light most favorable to the verdict). Nothing in the record, however, indicates that the statement was ever evidence before the jury. Cao was not testifying, as another witness currently held the stand, nor did the State offer the statement into evidence or otherwise contend that it supported its case. Cao moved for an acquittal at the close of the evidence based upon a lack of corroborating evidence. During the argument before the trial court on the motion, neither he nor the State referred to the statement in our record at all, much less referred to it as “evidence.” Nor did either party mention the statement in closing argument. We hold that Cao’s statement from counsel table under these circumstances — standing alone, as it does, without any non-accomplice evidence— does not tend to connect him to the commission of the Riverwell burglary as Article 38.14 requires.

Conclusion

We hold that the State sufficiently corroborated the testimony of the accomplice witness and satisfied the requirements of the accomplice witness rule pursuant to Code of Criminal Procedure Article 38.14 as to the Greenside burglary, but not as to the Riverwell burglary. We therefore affirm the judgment of the trial court in cause number 942823 and reverse and render judgment of an acquittal in cause number 961668. See Malik v. State, 953 S.W.2d 234, 240 n. 6 (Tex.Crim.App.1997). We deny both Cao’s and the State’s motions for rehearing.

      . The first indictment, cause number 942823 at trial and number 01-04-00473-CR on appeal, alleges that Cao committed burglary of Victor Le’s habitation. See Tex. Pen.Code Ann. § 30.02(a)(1) (Vernon 2003). The second ra-dictment, cause number 961668 at trial and number 01-04-00474-CR on appeal, alleges that Cao committed burglary'of Randy Van Le's habitátion. Id.

      . We note that the Texas Court of Criminal Appeals articulated a more precise standard of review for corroborative evidence of accomplice witness testimony in its later opinion in Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999) (declining invitation to impose legal and factual sufficiency standards upon a review of accomplice witness testimony under Article 38.14 because the review is statutorily imposed and limited to an examination of whether there is other evidence tending to connect the defendant to the offense). Moreover, in footnote 2, the Court of Criminal Appeals expressly stated that none of the cases where the court “reviews an accomplice/witness insufficiency claim 'in the light most favorable to the verdict’... actually holds that such is required; they simply discuss the evidence in the light most favorable to the verdict.” Id. at 463 n. 2.


author: BOB PEMBERTON, Justice.

text:
    GUADALUPE ECONOMIC SERVICES CORPORATION, Appellant, v. Pedro DEHOYOS, Jr. and Chariot DeHoyos, Appellees.
    No. 03-05-00096-CV.
    Court of Appeals of Texas, Austin.
    Oct. 27, 2005.

      Mack Ray Hernandez, Matthew C. Nichols, Austin, for appellant.
    Gregory S. Cagle, Armbrust & Brown, LLP, Austin, for appellees.

      Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

Pedro and Chariot DeHoyos sued Guadalupe Economic Services Corporation (“GES”) and others. Neither GES nor any of the other defendants appeared at trial. The district court entered a default judgment against each defendant. On restricted appeal, GES argues that the De-Hoyoses failed to send it notice of the trial date and, consequently, that the district court erred in entering a judgment against it. See Tex.R. Civ. P. 245; see also Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex.1992) (per curiam). We will affirm in part and reverse and remand in part for further proceedings.

BACKGROUND

GES is a nonprofit organization that was involved in a “lease to own” program designed to enable low-income purchasers to buy houses. Under the program, GES would purchase a house subject to a mortgage. After purchasing the house, GES would then “rent” it to a potential buyer participating in the program. The potential buyer, as tenant, would pay rent equal to the monthly mortgage payment to GES for a two-year period. GES, in turn, was responsible for the monthly mortgage payments. At the end of the lease term, and after making all the rent payments, the potential buyer would then assume the mortgage.

In June 2000, the DeHoyoses became tenants of GES under this program. In April 2002, GES stopped paying its monthly mortgage payments and would not allow the DeHoyoses to pay the remaining balance on the mortgage. U.S. Bank foreclosed on the property on March 13, 2003. On March 31, the DeHoyoses sued GES for deceptive trade practices, see Tex. Bus. & Com.Code Ann. §§ 17.46(b)(5), (b)(7), (b)(9), (b)(23), 17.50(a)(3) (West 2002); fraud, see id. § 17.45 (West 2002); and fraud in a real estate context, see id. § 27.01-.02 (West 2002).

GES, which apparently was not represented by counsel at the time, responded to the DeHoyoses’ petition by mailing a letter to the district court requesting that the suit be dismissed. In its letter, GES justified its failure to make the mortgage payments by alleging that the DeHoyoses had failed to pay rent for eight months, had eight past-due payments, and had eight late fees. According to GES, its inability to pay was due to the DeHoyoses’ failure to pay rent. The letter did not state a cause number, and, although it identified the plaintiffs, it did not identify all the defendants. The letter was signed by Richard Lopez, GES’s Executive Director. Lopez is not a lawyer.

On August 11, 2004, the DeHoyoses sent a notice to the district court setting the trial date for September 8, 2004. See Tex.R. Civ. P. 245. Although the notice stated that it would be sent to “all parties of record,” the DeHoyoses conceded at trial and in their appeal that GES was not served.

GES did not appear at the trial. The district court then entered a judgment jointly and severally against all the defendants for $302,203 in actual damages and individually against GES for $371,402 in exemplary damages. This appeal followed.

DISCUSSION

GES raises six issues on appeal, together complaining that its due process rights were violated because it was not provided notice of the hearing even though it had filed an answer. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988) (after making appearance in case, defendant is entitled to notice of trial setting as matter of due process under Fourteenth Amendment); see also LBL Oil Co. v. International Power Servs., Inc., 777 S.W.2d 390, 390 (Tex.1989). The DeHoyoses respond that GES was not entitled to notice because it did not file an answer. See Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex.App.-Houston [1st Dist.] 2004, pet. denied).

Because GES has filed a restricted appeal, we review the district court’s decision for reversible error. See Tex.R.App. P. 44.1. The error must appear on the face of the record. Norman Comm. v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997). Therefore, we will reverse only if the decision, on its face, “probably caused the rendition of an improper judgment.” Tex.R.App. P. 44.1.

It is axiomatic that, in order for a judgment to be accorded finality, all parties to a lawsuit must have been accorded procedural due process of law. Anderson v. Anderson, 698 S.W.2d 397, 399 (Tex.App.-Houston [14th Dist.] 1985, writ dism’d). Courts have repeatedly held that due process requires that a party be given notice of a lawsuit and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 312, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex.1983). A letter filed by a non-attorney corporate officer may be an answer, albeit a defective one, sufficient to forestall a default judgment. See KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 899 n. 5 (Tex.App.-Dallas 2003, no pet.); Custom-Crete, Inc. v. K-Bar Servs., 82 S.W.3d 655, 658 (Tex.App.-San Antonio 2002, no pet.); R.T.A. Int’l v. Cano, 915 S.W.2d 149, 150-51 (Tex.App.-Corpus Christi 1996, writ denied); see also In re Lewis, No. 07-04-0432, 2004 WL 2074306, at *2, 2004 Tex.App. LEXIS, at *6-7 (Tex. App.-Amarillo 2004, no pet.).

The trial court errs if it proceeds to trial when an answer is on file without giving notice of the trial setting. Terehkov v. Cruz, 648 S.W.2d 441, 442 (Tex.App.-San Antonio 1983, no writ). The term “answer” has been construed to mean a “written pleading of some character.” Santex Roofing & Sheet Metal, Inc. v. Venture Steel, Inc., 737 S.W.2d 55, 56 (Tex.App.-San Antonio 1987, no writ) (citing State v. Patterson, 40 S.W. 224 (Tex.Civ.App.-Houston [1st Dist.] 1897, no writ)). A responsive pleading should be liberally construed in the absence of special exceptions. Id. at 56-57. However, an answer must contain sufficient information to place in issue the claims made in the suit. Terehkov, 648 S.W.2d at 443.

A defendant who timely files a pro se answer by a signed letter that identifies the parties, the case, and the defendant’s current address, has sufficiently appeared by answer and deserves notice of any subsequent proceedings. Lippmann, 826 S.W.2d at 138. In Lippmann, for example, the defendant responded to a citation by writing a letter pro se to the district clerk. Id. at 137. The letter stated: “I (Gilbert Smith) have received and signed for the citation for case number 43,846, Roe Lippmann v. Gilbert Smith, issued by the Honorable District Court 75th Judicial District of Libert (sic) County, Texas at the Court House of said County in Liberty, Texas on the 31st day of March of 1989.” Id. The letter noted the defendant’s mailing address immediately below his signature. Id. The supreme court held that although this letter was not a “standard form” of an answer, it still gave the court a timely response acknowledging receipt and acceptance of the citation and petition. Id. Therefore, the defendant was entitled to notice of the hearing. Id.

Although the supreme court stated in Lippmann that a letter possessing all of the listed identifying factors was a sufficient answer, it did not address whether a letter that included some, but not all of the factors, would also be sufficient. However, the court cited Terehkov v. Cruz as authority for its holding. Lippmann, 826 S.W.2d at 138 (citing Terehkov, 648 S.W.2d at 442). In Terehkov, the San Antonio court held that a pro se answer was sufficient even though it only contained the defendant’s signature, address and an assertion that it was not liable for the plaintiffs claims. Terehkov, 648 S.W.2d at 442. The Lippmann court did not limit Terehkov in any way. Instead, it adopted Terehkov’s proposition that a signed letter sent to a clerk that acknowledged receipt of a citation was a sufficient answer. Lippmann, 826 S.W.2d at 138.

In applying Lippmann, we have held that a pro se document does not constitute an answer if it in no way responds to the petition. See Narvaez v. Maldonado, 127 S.W.3d 313, 318 (Tex.App.-Austin 2004, no pet.). In Narvaez, the defendant signed the return portion of the citation and mailed it back to the district clerk. Id. The defendant claimed that the envelope in which the citation was mailed included his return address and should therefore constitute as an answer. Id. On appeal, we held that the document was not an answer because it was not a letter, did not include the defendant’s current address, and did not even acknowledge receipt or acceptance of the citation and petition. Id.

GES’s letter is more similar to the letter in Lippmann than to the document in Narvaez. Instead of merely containing a signature on the citation as in Narvaez, GES’s letter timely acknowledged receipt and acceptance of the citation and petition and responded to the DeHoyoses’ allegations. Specifically, the letter stated:

We have received the Citation of Personal Service filed by Pedro and Chariot Dehoyos, and have prepared this response per your request. Guadalupe Economic Services ... requests that this Citation and all charges therein be dismissed.

GES’s letter further asserted that the De-Hoyoses were eight months past due on their rent and had incurred eight months worth of late fees. GES argued that it was not capable of making mortgage payments on behalf of nonpaying tenants because it is a nonprofit and does not have sufficient cash to do so. Richard Lopez, GES’s Executive Director, signed the letter, and GES’s address was provided at the foot of its letterhead.

Although GES’s letter failed to state the cause number and the additional defendants, the information it provided about the case was sufficient to allow the district clerk’s office to identify it and file it correctly. See Harris v. Harris, 850 S.W.2d 241, 242-43 (Tex.App.-Houston [1st Dist] 1993, no writ) (information in pro se letter sufficient to identify case number constituted answer). We conclude that the letter constituted an answer sufficient to entitle GES to notice of proceedings in this case.

The DeHoyoses concede that, as long as GES gave an answer to the suit, it was otherwise legally entitled to notice of the trial date. GES had an answer on file, and, because it was not provided notice of the trial date, a default judgment against it is reversible error. See Terehkov, 648 S.W.2d at 442. We sustain GES’s issues.

CONCLUSION

We have sustained GES’s issues on appeal. We affirm in part; we reverse the judgment in part, concerning GES’s liability, and remand for further proceedings.

      . Additional defendants were U.S. Bank, N.A.; Morris Hickman, individually and d/b/a Home Ownership of Texas, Inc. (“Hickman”); National Circuit Systems, Inc., f/n/a Austin Home Partners, Inc. ("NCS”); and First Texas Mortgage Group, Inc. (“FTM”). U.S. Bank was non-suited before trial. Only GES appealed the judgment.

        . None of the defendants appeared at trial. Although NCS filed an answer and was sent notice of the trial date, it failed to appear. FTM was not sent notice of the trial date and did not appear. At trial, the DeHoyoses’ counsel stated that he had a Soldier's and Sailor's Affidavit verifying the absence of Mr. Hickman. See Soldiers' and Sailors’ Civil Relief Act of 1940, 50 U.S.C.A. app. §§ 501-548, 560-593 (West 1990) (servicemember who is party in civil judicial proceedings may obtain stay of proceedings if certain conditions are met).

      . GES did not timely file a postjudgment motion or a request for findings of fact and conclusions of law. Thus, it filed this appeal as a restricted appeal. See Tex.R.App. P. 30.

      . Only a licensed attorney can appear and represent a corporation in litigation. Kunstoplast of Am. v. Formosa Plastics Corp., USA, 937 S.W.2d 455, 456 (Tex.1996); Dell Dev. Corp. v. Best Indus. Unif. Supply Co., 743 S.W.2d 302, 303 (Tex.App.-Houston [14th Dist.] 1987, writ denied); Electronic Data Sys. Corp. v. Tyson, 862 S.W.2d 728, 737 (Tex.App.-Dallas 1993, no writ); Globe Leasing, Inc. v. Engine Supply & Mach. Serv., 437 S.W.2d 43, 45 (Tex.Civ.App.-Houston [1st Dist.] 1969, no writ); see also Tex.R. Civ. P. 7. However, when considering answers filed by non-attorney corporate officers, the courts of appeals have "gone to great lengths to excuse defects in answers to prevent the entry of default judgments against parties who have made some attempt, albeit deficient, unconventional, or flat out forbidden under the Rules of Civil Procedure, to acknowledge that they have received notice of the lawsuit pending against them." Hock v. Salaices, 982 S.W.2d 591, 593 (Tex.App.-San Antonio 1998, no pet.).