author:
WANDA McKEE FOWLER, Justice. SEYMORE, J.,
      CHARLES W. SEYMORE, Justice,

text:
    T.F.W. MANAGEMENT, INC. and Timothy F. Williams, Appellants, v. WESTWOOD SHORES PROPERTY OWNERS ASSOCIATION, Appellee.
    No. 14-03-01358-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 9, 2004.
    Rehearing En Banc Overruled April 28, 2005.

      J. Bennett White, Adam Allen, Tyler, for appellants.
    Charles A. Daughtry, James H. Leeland, Patrick Sullivan, Houston, for appellee.
    Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
   MAJORITY OPINION

WANDA McKEE FOWLER, Justice.

T.F.W. Management, Inc. (“TFW”) filed this accelerated appeal to protest a temporary injunction granted to the Westwood Shores Property Owners Association (“the Association”). TFW argues the trial court abused its discretion in granting the temporary injunction because (1) the evidence demonstrated TFW did not breach its contract with the Association, (2) the trial court misinterpreted the contract, (3) the trial court impermissibly granted specific performance, (4) the trial court lacked authority to alter the terms of the contract, (5) equity favors TFW, and (6) the Association was unable to show a probable injury. We hold that the trial court abused its discretion because the trial court misinterpreted the contract and we do not reach TFW’s alternate arguments. Finding that a new water rate implemented by the Trinity River Authority was substantially different that the rate TFW agreed to pay, we reverse the trial court’s order granting the temporary injunction.

FACTUAL AND PROCEDURAL BACKGROUND

In 1972, BRL Joint Venture, later known as Westwood Shores, Inc. (“the Developer”), developed nineteen subdivisions collectively known as Westwood Shores. The subdivisions were centered around the Westwood Shores Country Club, which included a golf course and other amenities.

On October 31, 1996, the Developer sold the Westwood Shores Country Club to TFW. In conjunction with the sale, the Developer executed a Deed Without Warranty (“the Deed”) conveying Westwood Lake to the Association, and an Assignment of Water Rights (“the Assignment”) assigning TFW an easement right in use of water from the lake. The Deed provided that:

[The Association] acknowledges that Grantor’s reservation of water rights could possibly result in the availability of little or no water within Westwood Lake for purposes other than those benefiting the property commonly referred to as Westwood Shores Country Club, and [the Association] agrees to accept this conveyance subject to and burdened by such reservation of water rights. However, [TFW] shall have the duty and obligation to maintain the water at a sufficient level so that Members of [the Association] may also enjoy the benefits of Westwood Lake for aesthetic and recreational purposes so long as water sufficient for these purposes is reasonably available from Trinity River Authority of Texas under terms substantially similar to those contained within the Limited Raw Water Sales Agreement from Reservoir, by and between [the Developer] and the Trinity River Authority in effect as of the date of this Deed Without Warranty, -with adjustments for inflation.

The Assignment similarly provided that:

TFW shall have the duty and obligation to maintain the water [within Westwood Lake] at a sufficient level so that Association members may also enjoy the benefits of Westwood Lake for aesthetic and recreational purposes so long as water suitable for these purposes is reasonably available from Trinity River Authority of Texas under terms substantially similar to those contained within the Limited Raw Water Sales Agreement From Reservoir, between [the Developer], and Trinity River Authority in effect as of the date of this Assignment of Water Rights, with adjustments for inflation.

In 1997, TFW and the Trinity River Authority entered into a Limited Raw Water Sales Agreement From Reservoir (the “Sales Agreement”) substantially similar to the one referenced in the Deed and the Assignment. The Sales Agreement provided that TFW was to pay the Trinity River Authority a minimum annual charge of $1551, and that TFW would be able to divert up to 470 acre-feet of water. TFW could also divert additional water, at a rate of $3.30 per acre-foot.

But, in December of 1999, the Trinity River Authority implemented new, greatly increased water rates. The rate was increased to $35 per acre-foot effective December 1, 2000, with additional escalation to $55 in 2002, $75 in 2004, and $95 in 2006. After the rate increases went into effect, TFW stopped replacing the water it used for irrigation of the Westwood Shores Country Club.

The Association filed a petition for temporary injunction, requesting that TFW cease irrigation of the Westwood Shores Country Club and replenish Westwood Lake to its original level. The trial court granted the temporary injunction, prompting this accelerated appeal.

ANALYSIS

I. Standard of Review

“To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). A trial judge has broad discretion in deciding whether to grant or deny temporary injunctions, and the standard of review is a clear abuse of discretion. See Liberty Mut. Ins. Co. v. Mustang Tractor & Equip. Co., 812 S.W.2d 663, 666 (Tex.App.Houston [14th Dist.] 1991, no writ). The trial court abuses its discretion when “the law is misapplied to established facts, or when the evidence does not reasonably support the conclusion that the applicant has a probable right of recovery.” State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex.1975).

II. Water Was Not Available Under Terms Substantially Similar to Those in Effect in 1996.

TFW argues that it was no longer obligated to replenish Westwood Lake because the rate per acre-foot of water increased from $3.30 in 1996 to $35 in 2000. TFW bases its argument on the language in the Deed and the Assignment that conditions its obligation to purchase water on water being available “under terms substantially similar to those contained within the Limited Raw Water Sales Agreement from Reservoir, ... with adjustments for inflation.” The primary question before us in this case is whether the new rates the Trinity River Authority implemented were substantially similar to those contained in the Raw Water Sales Agreement. A secondary question is whether the increase in the price of water was a result of inflation.

When examining the language of the Deed and the Assignment, we must give effect to the true intention of the parties as expressed in the instruments. See Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex.1996). The language in a contract is to be given its plain meaning unless doing so would defeat the parties’ intent. DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex.1999). We presume that the parties intended every clause to have an effect. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996).

A. The Rate Was Substantially Different.

The evidence before us indicates that the rate for one acre-foot of water increased from $3.30 in 1996 to $35 in 2000, an increase of approximately 960%. The parties agree that all other terms of the water purchase agreement are substantially similar to those in 1996.

The rate at which water is available does not appear to be substantially similar to the rate at which it was available in 1996. The price of a good is a material element of a contract. John Wood Group USA, Inc. v. ICO, Inc., 26 S.W.3d 12, 20 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). In fact, price is often the very essence of the contract, without which there cannot be a contract. See Gerdes v. Mustang Exploration Co., 666 S.W.2d 640, 644 (Tex.App.-Corpus Ghristi 1984, no writ) (holding that a contract for the sale of water was not binding because the price was not specified). Thus, although the remainder of the terms are similar, we cannot say that the “terms are substantially similar” when the evidence indicates the rate at which water was available changed drastically.

The Association points to language in the Sales Agreement providing for possible rate increases. The Sales ' Agreement states that the “Annual Standby Charge may be revised from time to time to conform to [the Trinity River Authority’s] Resolution No. R-157....” However, while the anticipation of rate increases indicates that the Trinity River Authority did not breach the contract, it does not indicate that water is still available under the original terms.

We determine that the Association has not demonstrated that water to replenish Westwood Lake was available under substantially similar terms to those available at the time the Deed and the Assignment were entered into. However, the Deed and the Assignment also provided that inflation could cause a difference in the terms. Therefore, we next address whether the change in terms could have been due to inflation.

B. The Difference Is Greater than Could Be Accounted for by Inflation.

1. We Apply the Ordinary Definition of Inflation.

Although the term “inflation” was used in the Deed and the Assignment, it is never defined. We will therefore apply the plain, ordinary, and generally accepted meaning of the term. Heritage Res., 939 S.W.2d at 121. Inflation is defined as “[a]n overall rise in prices which results in a decline in the real value of the dollar,” Black’s Law Dictionary 779 (6th ed.1990), and “an increase in the volume of money and credit relative to available goods resulting in a substantial and continuing rise in the general price level.” WEBSTER’S THIRD New INTERNATIONAL DICTIONARY Unabridged 1159 (1993). These definitions of inflation indicate that inflation affects the general prices of goods; thus, a price increase due to scarcity of a particular good would not be inflationary. See id.

2. The Rate Increase Was Greater than Inflation.

The Deed and the Assignment do not supply an index to measure inflation against, nor have the parties supplied us with any historical data to compare this rate to. In the absence of a specified measure of inflation, we will look to the Consumer Price Index prepared by the Bureau of Labor Statistics. See Black’s Law Dictionary 779 (6th ed. 1990) (“The primary indexes for measuring the rate of change are the Consumer Price Index and the Producer Price Index.”); Ark. La. Gas Co. v. Fed. Energy Regulatory Comm’n, 654 F.2d 435, 443 n. 19 (5th Cir.1981) (stating that the Consumer Price Index is one of the three measures of inflation traditionally relied upon by economists). According to the Consumer Price Index, the total inflation from 1996 to 2000 was approximately 10%. See U.S. Department of Labor, Bureau of Labor Statistics, Inflation and Consumer Spending, Inflation Calculator (Aug. 30, 2004), available at http://www.bls.gov/cpi/home.htm. The rate increase from $3.30 in 1996 to $35.00 in 2000 corresponds to an increase of approximately 960%. This rate increase thus appears to be greater than could be accounted for by inflation alone.

3. The Trinity River Authority Indicated that the Rate Increase Was Due to More than Just Inflation.

Further, the evidence indicated that the rate increase was due, at least in part, to factors other than inflation. Robert Stevens of the Trinity River Authority stated:

Q: Why did the TRA institute an increase in price?
A: Well, there were several reasons. The rates have not increased since 1972. As I say, times are changing. Water is becoming very valuable. It’s a valuable resource. It’s declining in quantities; and we had a firm do a study, first of cost of service, the cost for us to provide that amount of water to replace the amount of water in Lake Livingston, as well as a market survey. And our rates were — since they had not been increased in thirty years— were way too low.
Q: So the changes were based upon inflation and costs of water in general; is that correct?
A: Just in general in Texas, yes.

Thus, there were at least two factors responsible for the increase in the water rate: (1) inflation, and (2) the increased value of water. The Association argues that the rate increase could be the result of inflation despite the presence of additional factors, but the Deed and the Assignment provide only for increases due to inflation, not for increases due to other causes. The mention of only inflation supports an inference that the parties did not mean to include the increased value of water. See Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 854 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (applying the maxim expressio unius est exclusio alterius — that the naming of one thing excludes another).

Stevens also testified that the price increase had not been changed since 1972. However, the Deed and the Assignment appear to provide only for inflation increasing the price since 1996, not retroactively-applied inflation; the applicable language refers to the terms “in effect as of the date of this Deed ..., with adjustments for inflation” and “in effect of the date of this Assignment ..., with adjustments for inflation.” Reading the Deed and the Assignment otherwise could lead to the anomalous result that twenty-four years of inflation would have been applicable the date the agreements took effect. Cf. Bode v. United States, 919 F.2d 1044, 1053 n. 8 (5th Cir.1990). As a result, the appropriate base date appears to be 1996. Cf. id. (“[T]he effective date of the current version of the statute is the appropriate base date for a cost-of-living adjustment. ...”). Thus, the portion of the rate increase that was due to inflation that occurred before 1996 would not be within the language of the Deed or the Assignment.

In short, we conclude the Association has not demonstrated that adjustments for inflation caused the rate increase. Under the terms of the Deed and the Assignment, TFW would be excused from having to supply water to replenish Westwood Lake. However, before we can determine that the trial court erred in granting the temporary injunction, we must address the Association’s arguments that TFW should be estopped from asserting the contract provision.

III. The Clause Requiring Substantially Similar Terms is a Condition Precedent, Not a Covenant.

First, the Association argues that the clause requiring that water be available under substantially similar terms is a covenant, not a condition precedent. A condition precedent may be either a condition to the formation of a contract or to an obligation to perform an existing agreement. Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.1976). A condition precedent to an obligation to perform is an act or event, which occurs subsequently to the making of a contract, that must occur before there is a right to immediate performance and before there is a breach of contractual duty. Id. However, when the intent of the parties is doubtful or when a condition would impose an absurd or impossible result, then the agreement will be interpreted as creating a covenant rather than a condition. Id. Because of their harshness in operation, conditions are not favorites of the law. Criswell v. European Crossroads Shopping Ctr., Ltd., 792 S.W.2d 945, 948 (Tex.1990). Thus, in construing a contract, forfeiture by finding a condition precedent is to be avoided when another reasonable reading of the contract is possible. Id.

We reject the Association’s contention that the clause is not a condition precedent, because the Deed and Assignment unambiguously state that TFW is only obligated to maintain the water level “so long as water sufficient for these purposes is reasonably available from Trinity River Authority of Texas under terms substantially similar [to the 1996 terms].” Further, the Deed provides that the Association “acknowledges that Grantor’s reservation of water rights could possibly result in the availability of little or no water within Westwood Lake.... ” To construe the clauses within the Deed and the Assignment as other than conditions precedent would be to ignore their plain language.

IV. TFW Did Not Breach a Duty to Protest the Rate Increase.

Second, the Association argues that TFW cannot assert a condition precedent because TFW made the performance of the condition precedent impossible. The Association argues that TFW did not protest the rate increase to the Trinity River Authority, and thus should not be allowed to use the rate increase to escape its obligation to replenish Westwood Lake.

A. TFW Did Not Have a Duty To Protest the Rate Increase.

Although the Association claims that TFW had an express duty to protest any rate increase, an examination of the Sales Agreement does not reveal any such express duty. The Sales Agreement provided:

This Agreement is subject to all applicable Federal, State and local laws and any applicable ordinances, rules, orders and regulations of any local, State or Federal governmental authority having or asserting jurisdiction including, but not limited to, the rate-fixing power of the Texas Natural Resource Conservation Commission under Section 12.013, Water Code. Provided, however, that nothing contained herein shall be construed as a waiver of any right to question or contest any such law, ordinance, order, rule or regulation in any forum having jurisdiction, and each party agrees to make a good faith effort to support such proposed laws and regulations which would be consonant with the performance of the Agreement in accordance with its terms.

The Sales Agreement thus only provides that TFW is required to comply with the applicable laws, not that TFW is required to avail itself of the procedures provided by the applicable laws. Because there is no indication that TFW failed to comply with the applicable laws, TFW has not breached an express duty.

B. There is No Evidence that a Protest Would Have Been Effective.

The Association also argues that TFW prevented or made impossible the condition precedent. See Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (“Prevention of performance by one party excuses performance by the other party, both of conditions precedent to performance and of promise.”).

The Association asserts that TFW should have been required to protest the rate increase. However, the only evidence before us indicates that any such protest would have been ineffective. Stevens stated that the price of water had not been raised since 1972, and he also stated that water has been increasing in value. Thus, there appears to have been a reasonable basis for the rate increase. The applicable statute only provides for protest when the increase is unreasonable, not when the increase is greater than inflation. See Tex. Water Code § 12.013(a) (“The commission shall fix reasonable rates for the furnishing of raw or treated water-”). Because the evidence indicates the price increase was due to the Trinity River Authority’s failure to raise its rates since 1972 and the increased value of water, TFW’s inactivity would not have prevented occurrence of the condition precedent.

CONCLUSION

We hold that the Association has not proven a probable right to the relief sought because it has not demonstrated that water was available under terms substantially similar to those available in 1996. Under the terms of the Deed and the Assignment, TFW would therefore not be obligated to replenish water in the lake. Further, we hold that TFW was not es-topped from asserting it was not obligated to replenish water in the lake. Because the trial court erred in granting the temporary injunction, we affirm appellant’s first issue.

We reverse the judgment of the trial court and order the temporary injunction dissolved.

SEYMORE, J.,

dissenting.

CHARLES W. SEYMORE, Justice,

dissenting.

I respectfully dissent.

The majority seems to acknowledge then ignore our standards for review of the trial court’s decision to grant a temporary injunction. The purpose of a temporary injunction is to preserve the status quo of a litigation’s subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). The decision to grant or deny a temporary injunction is within the sound discretion of the trial court. Id. We should reverse the grant of a temporary injunction only if the trial court abused that discretion. Id. We may not substitute our judgment for that of the trial court, but we must determine only whether the trial court’s action was so arbitrary that it exceeded the bounds of reasonable discretion. Id. We should draw all legitimate inferences from the evidence in the light most favorable to the judgment of the trial court. Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 883 (Tex.App.-Dallas 2003, no pet.). Additionally, we should not assume that the evidence presented at a preliminary hearing will be the same as the evidence developed at a full trial on the merits. Id. at 885.

An applicant for a temporary injunction must plead and prove (1) a cause of action against the defendant, (2) a probable right to the relief sought, and (3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204. These are the only issues before the trial court; the underlying merits of the case are not presented. See Tom James, 109 S.W.3d at 882. Therefore, an appeal from an order granting a temporary injunction does not present for appellate review the ultimate legal issues of the case. Id. at 883 We may review only whether the trial court abused its discretion in concluding that an applicant showed a cause of action, a probable right to the relief sought, and a probable, imminent, and irreparable injury. See id.

Discussion

The assignment of water rights requires TFW to

maintain the water at a sufficient level so that Association members may also enjoy the benefits of Westwood Lake for aesthetic and recreational purposes so long as water suitable for these purposes is reasonably available from Trinity River Authority of Texas [TRA] under terms substantially similar to those contained within the [Water Sales Agreement], between [WSI], and [TRA] in effect as of the date of this Assignment of Water Rights, with adjustments for inflation.

In its first and second issues, TFW claims that by issuing the injunction, the trial court impliedly found that under the contract (1) the Lake water level was inadequate, and (2) the terms of a current Water Sales Agreement were substantially similar to the terms of the Water Sales Agreement in effect in 1996. TFW further claims the trial court abused its discretion by making these findings because they are not supported by any probative evidence. However, because the underlying merits of a case were not before the trial court, I do not agree with appellant’s contention that issuance of the injunction implies the trial court made findings on these ultimate legal questions. Therefore, an appeal of the temporary injunction does not present for review the ultimate questions of whether TFW is in breach of the contract because the water level was insufficient, or because water is available under terms similar to the previous contract. See id. at 882-83 (holding that the ultimate question of whether covenants not to compete were enforceable was not at issue in an appeal from the denial of a temporary injunction). We may review only the trial court’s exercise of discretion in determining whether appellee showed it had a probable right to relief in its breach of contract claim. See id. at 883.

PROBABLE Right to Relief

Water Level

First, TFW claims there was no evidence that the Lake water level was inadequate. It notes that a TFW representative testified the water level was adequate for recreational and aesthetic purposes. However, the Association presented evidence that its members had complained the Lake conditions were inadequate, fishing in certain areas was no longer possible, and some boat docks were unusable because of the low level of water. In addition, one homeowner had sold his home on the Lake partially because he was frustrated with the conditions resulting from the low water level. When a trial court bases a decision concerning the grant of a temporary injunction on conflicting evidence there is no abuse of discretion. Id. at 883. Based on the conflicting evidence, I would hold the trial court did not abuse its discretion in concluding the Association proved it had a probable right to relief based on TFW’s failure to maintain an adequate water level.

Terms of Water Sales Agreement

TFW also claims that under the plain language of the contract, it is relieved of any obligation to supply water to the Lake because water is no longer available from TRA under terms substantially similar to those in the Water Sales Agreement. Under the Water Sales Agreement WSI paid $1551.00 per year for up to 470 acre feet of water ($3.30 per acre foot). In 2000, TRA raised the price of water to $35 per acre foot, with rates set to increase an additional $20 per acre foot every two years through 2006. TFW claims that considering this price increase, there is no evidence the terms contained in the previous Water Sales Agreement are “substantially similar” to terms available to TFW today. Both parties agree that the price of water is the only term in the agreement that has changed.

The assignment of water rights requires TFW to maintain the water at a level sufficient for aesthetic and recreational enjoyment so long as water “suitable for these purposes” is available under terms substantially similar to those contained within the Water Sales Agreement. The deed conveying the lake to the Association is similar, but it requires maintenance so long as water “sufficient for these purposes” is available. To determine the intent of the parties to a contract, we will consider all writings that pertain to the same transaction. DeWitt Co. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex.1999). Neither the deed nor the assignment requires TFW to purchase the same amount of water previously purchased under the Water Sales Agreement. The contractual provisions require only that water “sufficient” or “suitable” be available. The Association presented evidence that until 2000, the water level of the lake was sufficient for recreational and aesthetic purposes. It presented additional evidence that from 1995 to 2000, less than 16 acre feet of water were pumped into the lake from TRA each year. Under the Water Sales Agreement TFW could use up to 470 acre feet of water from TRA each year; however less than 16 acre feet was sufficient and suitable to maintain the water level for aesthetic and recreational purposes. Accordingly, I would hold that the trial court did not abuse its discretion in concluding that the above estimated amount of water is available to TFW under substantially similar terms.

Although WSI paid $3.30 per acre foot of water, this rate was applicable only when over 400 acre feet of water were purchased. According to the rate schedule in effect at that time, which was incorporated into the Water Sales Agreement, the minimum charge was $500 per year for up to 50 acre feet of water. Under the revised water rates, the minimum charge is $1,000 for up to 10 acre feet of water. However, the cost for 20 acre feet was $1,100 in 2002, and is currently $1,500. Based on this cost increase for the amount of water sufficient to maintain the water level of the lake, I cannot conclude that the trial court abused its discretion in determining that the Association had established a probable right to the relief on the ground that water was available to TFW under substantially similar terms.

Additionally, a provision that water, under substantially similar terms, be available “with adjustments for inflation.” is included in the assignment of water rights. The Association presented evidence that the rate increase in 2000 was based on the cost of water in general and inflation. In reviewing the trial court’s decision, we must draw all legitimate inferences from the evidence in the light most favorable to the grant of the temporary injunction. See Tom James, 109 S.W.3d at 883. Based on the evidence in the record, it is my considered opinion the trial court did not abuse its discretion in determining that the Association established a probable right to the relief based on the cost of water with adjustments for inflation.

Specific PekfoRmance

In its third issue, TFW contends the temporary injunction impermissibly requires specific performance of the contract. Specific performance of a contract will be granted only if there is a mutuality of remedy, which TFW claims is not present here. See Smith v. Nash, 571 S.W.2d 372, 375 (Tex.App.-Texarkana 1978, no writ); see Fed. Sign v. Texas S. Univ., 951 S.W.2d 401, 409 (Tex.1997) (noting mutuality of remedy is the right of both parties to a contract to obtain specific performance) superseded by statute on other grounds as stated in Gen. Servs. Comm’n v. Little-Tex. Insulation Co., 39 S.W.3d 591, 593 (Tex.2001). However, by issuing a temporary injunction a trial court is not enforcing a contract, but preserving the status quo of a litigation’s subject matter pending a trial on the merits. See Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 239 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (citing Butnaru, 84 S.W.3d at 204). Accordingly, the trial court was not requiring specific performance of the contract. Nevertheless, mutuality of remedy is available in this case. Under the contract, the Association is required to accept the burden of TFW’s water rights and pay certain taxes and assessments. Accordingly, I would overrule TFW’s third issue.

Terms of Injunction

In its fourth issue, TFW claims the trial court abused its discretion by imposing new duties and obligations on TFW that were not contemplated by the contract. Under the injunction, TFW was directed to:

maintain the water level of Westwood Lake no lower from the top of the drain on the lake than the deficiency of average rainfall based on- the records for reporting at Bush Intercontinental Airport as reported by the Houston Chronicle on Monday of each week.

Additionally, under the injunction TFW’s obligation was limited to a maximum of 200 acre feet of water per year. TFW claims the trial court impermissibly altered certain terms in the original contract. This claim is based on TFW’s assertion that its contractual obligation is limited to maintaining the water at a level appropriate for aesthetic and recreational purposes. We agree with TFW’s contention that a court, while construing a contract, may not revise it so as to impose additional duties on a party. See Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 181 (Tex.1965). However, as previously noted, the purpose of a temporary injunction is to preserve the status quo of the litigation’s subject matter pending a trial on the merits. Butnaru, 84 S.W.3d at 204. By issuing a temporary injunction, a trial court is not enforcing a contract with altered terms, but preserving the status quo. See Cardinal Health Staffing Network, Inc., 106 S.W.3d at 239 (noting that the purpose of a temporary injunction is not to enforce anything). A trial court exceeds its authority if its temporary injunction order changes the status quo. Barnstone v. Robinson, 678 S.W.2d 562, 563 (Tex.App.-Houston [14th Dist.] 1984, writ dism’d).

The status quo is the last, actual, peaceable, non-contested status that preceded the pending controversy. State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex.1975). The Association presented evidence that prior to 2000, the water level of the Lake was to the top of a drainpipe, a level which was in compliance with the contract. This level fluctuated by approximately one foot during that time. The temporary injunction requires TFW to maintain the water level no lower from the top of the drain than the deficiency of average rainfall in Houston. In setting this requirement, the trial court indicated that the lowest deficiency of average rainfall of the year had been ten to twelve inches. Therefore, because this requirement will keep the water at a level that is similar to the water level prior to 2000, it does not change the status quo. Additionally, under the injunction, TFW is not required to pump more than 200 acre feet of water into the Lake per year. The trial court set this limit based on the increased price of water and the TFW’s prior contract with TRA for 470 acre feet of water. There was no evidence that more than 200 acre feet of water would be necessary to maintain the water at the required level under the injunction. Consequently, I cannot conclude that the terms of this temporary injunction change the status quo. Accordingly, it is my considered opinion that the trial court did not exceed its authority.

Balance of Equities

In its fifth issue, TFW contends the trial court abused its discretion by failing to balance the equities between the parties. In considering an application for a temporary injunction, a trial court balances the equities between the parties as well as the resulting conveniences and hardships. Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 578 (Tex.App.-Austin 2000, no pet.). A trial court may consider whether the applicant would suffer significant or slight injury if the injunction were erroneously denied, and whether the injury to the opposing party would be significant or slight if the injunction were erroneously granted. NMTC Corp. v. Conarroe, 99 S.W.3d 865, 869 (Tex.App.-Beaumont 2003, no pet.). TFW claims the trial court failed to consider the equitable hardships faced by TFW, such as the current high cost of water and the requirement that it maintain the Lake at a level not contemplated by the contract. However, the record indicates the trial judge balanced the hardship of TFW against the hardship of the Association. In its Temporary Injunction Order, the trial court noted, as supported by the record, that if TFW continued to inadequately replenish the Lake, dry areas around the Lake would increase preventing the Association members from using even more portions of the Lake. At the hearing on the motion for the temporary injunction, the court indicated that it was considering the rainfall in the area as well as the increased cost of water in setting the parameters of TFW’s obligations. Considering the supporting evidence, I would conclude that the trial court did not abuse its discretion when it balanced equities in favor of TFW.

IRREPARABLE HARM

In its sixth issue, TFW claims the trial court abused its discretion by finding ap-pellee would be irreparably harmed if the temporary injunction were denied. Harm is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204. The Association presented testimony and photographs depicting the water level at the time of the hearing to support its contention that its members cannot enjoy the recreational and aesthetic benefits of the Lake that they once enjoyed. Banks of the Lake where the water had receded were “unsightly” and sometimes emanated a bad odor. Several homes were on these banks. Boat docks that had been built in the water were on dry land and bulkheads were exposed. One former Association member testified that he sold his home because the water level of the Lake decreased, and he could no longer fish from his property. This is evidence of irreparable harm. See Hayter v. Fern Lake Fishing Club, 318 S.W.2d 912, 914 (Tex.App.-Beaumont 1958, no writ); Positive Feed, Inc. v. Wendt, Nos. 01-96-00614-CV, 01-96-01250-CV, 1998 WL 43321, at *10 (Tex.App.-Houston [1st Dist.] Feb. 5, 1998, pet. denied) (not designated for publication) (both holding the loss of enjoyment of one’s home constitutes irreparable injury for purposes of injunc-tive relief).

TFW claims that the Association presented no evidence of injury because the photographs they submitted depicting the condition of the Lake were taken on random dates and did not accurately represent the average water level of the Lake. Because the evidence on this issue was conflicting, I would hold that the trial court did not abuse its discretion by finding the Association would suffer irreparable harm. See Tom James, 109 S.W.3d at 883. Accordingly, I would affirm the trial court’s order granting a temporary injunction.

      . Because we reverse the judgment of the trial court, we do not reach appellant’s remaining issues.


source: Caselaw Access Project

author: RICHARD BARAJAS, Chief Justice.

license: Public Domain

text:
    Julian SERRANO and Rosa Serrano, Appellants, v. UNION PLANTERS BANK, N.A. and Beverly Mitrisin, Trustee, Appellees.
    No. 08-03-00101-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 2, 2004.
    Rehearing Overruled May 18, 2005.

      Rosa Serrano, Santa Tererea, NM, for appellants.
    Corey Haugland, James, Goldman & Haugland, P.C., El Paso, for appellees.
    Before Panel No. 4 BARAJAS, C.J., LARSEN and McCLURE, CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s granting of a directed verdict rendered against Appellants after a trial to the court. For the reasons stated herein, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The brief filed by Appellants contains a convoluted and obscure recitation of the alleged facts and procedural history of this case, therefore, it is difficult to determine the precise sequence of events leading to this dispute. Some facts, however are established by the appellate record. The current dispute arises out of a foreclosure action filed by Appellees regarding certain real property owned by Appellant Julian Serrano and in which Appellant Rosa Serrano claims an interest. Appellants filed a lawsuit seeking a declaratory judgment and temporary injunction related to a pending foreclosure of the property. During the pendency of this lawsuit, the Appellants filed numerous bankruptcies which were dismissed. The most recent bankruptcy case was filed by Appellant Julian Serrano in late 2000 under Chapter 13 of the Federal Bankruptcy Code. A trial was held before the Honorable Larry E. Kelly and the bankruptcy court prepared Findings of Facts and Conclusions of law related to the value of the unpaid principal and interest and arrearages on the property, including fees. Julian Serrano’s bankruptcy case was ultimately dismissed for failure to make plan payments on November 26, 2001.

The property in question was sold pursuant to the Deed of Trust on February 5, 2002. Appellee Union Planter’s Bank, N.A. obtained a judgment for possession of the property which was appealed to County Court at Law Number 7 by Appellants. In that case, Appellants raised all issues related to the property including wrongful acceleration, wrongful foreclosure, and the validity of the title to the property. A final judgment in that case was rendered granting possession to Appellees on July 17, 2002 Appellants appealed that case to this court in case number 08-02-00346-CV. This court dismissed that appeal as moot by judgment dated September 12, 2002.

Appellants then resumed prosecution of the underlying case filing their First Amended Petition on December 16, 2002 adding a claim for intentional infliction of emotional distress.

A non-jury trial of this case was conducted by the Court on January 30, 2003. After the Appellants presented their casein-chief and rested, Appellees moved for a directed verdict which was granted. The trial court determined that Appellants did not present evidence establishing the elements of intentional infliction of emotional distress. A judgment was signed on January 31, 2003. Appellants appealed the judgment on February 28, 2003. Appellants did not request findings of fact or conclusions of law and none were filed.

Appellants, pro se, filed a poorly drafted and convoluted brief purporting to assert various points of error. The list of issues, numbering eighteen, and included at the beginning of the brief, are virtually incomprehensible and nonsensical and do not frame any issues for review by this court. In the body of the brief, at the beginning of Appellant’s argument, Appellant includes a complaint that we will read as their sole issue on appeal. We read this point as complaining that there is no or insufficient evidence to support the trial court’s non-finding of damages to Appellants based upon Appellee’s intentional infliction of emotional distress.

II. Issue on Appeal

In their sole issue, Appellants challenge the court’s granting of the Appellees’ motion for directed verdict. In a compound argument, issue number one attempts to complain of the granting of Appellees’ motion for directed verdict for the reason that Appellants have suffered emotional distress, embarrassment, harassment, and humiliation as a matter of law. The subis-sues included in the brief do not adequately articulate an issue for review by this court nor do they cite to the record to provide a factual basis in support of Appellants’ argument. The issue does not articulate a complaint about the trial court’s ruling other than stating that the trial court erred in entering judgment in favor of Appellees and that Appellants have suffered irreparable damage and intentional infliction of emotional distress.

In sum, the myriad issues listed as a series of questions and comments in the Appellants’ brief appear to complain of the trial court’s granting of Appellee’s motion for directed verdict for the reason that Appellants believe that they should be able to pursue a claim against the Appellees for the tort of intentional infliction of emotional distress.

In the interest of attempting to address Appellants’ challenge on appeal, we read this issue as a complaint that there is more than a scintilla of evidence to support a cause of action against the Appellees for the alleged injuries suffered by Appellants and caused by the foreclosure on the property by Appellees and that the trial court erred in granting the Appellees’ motion for directed verdict as a matter of law.

III. Standard of Review

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law.” When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” In re Estate of Livingston, 999 S.W.2d 874, 876 (Tex.App.-El Paso 1999, no pet.); see Creative Manufacturing, Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex.App.-Fort Worth 1987, writ ref'd n.r.e.).

When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which he had the burden of proof, i.e., challenging the trial court’s finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. In re Estate of Livingston, 999 S.W.2d at 879; Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex.1989); Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex.App.-El Paso 1994, no writ); Chandler v. Chandler, 842 S.W.2d 829, 832 (Tex.App.-El Paso 1992, writ denied). A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Second, if there is no evidence to support the finding, then, the entire record must be examined to see if the contrary proposition is established as a matter of law. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Only if the contrary position is conclusively established will the point of error be sustained. In re Estate of Livingston, 999 S.W.2d at 879; Kratz, 890 S.W.2d at 902; Chandler, 842 S.W.2d at 832.

In reviewing a factual sufficiency point of error, the appeals court must weigh all of the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). Findings of fact may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. In that event, the appeals court must state clearly why the finding is factually insufficient or so against the great weight and preponderance as to be manifestly unjust. Id.

An “insufficiency” point invokes a broader standard, requiring this court to consider all of the evidence and ascertain whether the evidence supporting the finding is so weak, or the evidence to the contrary so overwhelming, that the finding should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

Legal and factual sufficiency of the evidence standards of review govern appeals of nonjury trials on the merits. IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex.1997); Chrysler Corp. v. Blackmon 841 S.W.2d 844, 851 (Tex.1992); Hall, Standards of Appellate Review in Civil Appeals, 21 ST. MARY’S L.J. 865, 919-20 (1990). When a party appeals from a nonjury trial, it must complain of specific findings and conclusions of the trial court, because a general complaint against the trial court’s judgment does not present a justiciable question. Fiduciary Mortgage Co. v. City Nat’l Bank of Irving, 762 S.W.2d 196, 204 (Tex.App.-Dallas 1988, writ denied). Accordingly, findings of fact and conclusions of law are mandatory for a party to file to avoid the onerous presumptions that apply in an appeal from a nonjury trial. When an appellant does not request or file findings and conclusions by the trial court, the appellate court presumes the trial court found all fact questions in support of its judgment, and the reviewing court must affirm that judgment on any legal theory finding support in the pleadings and evidence. Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.1987).

If the appellant does not challenge the trial court’s findings of fact, when filed, these facts are binding upon both the party and the appellate court. Wade v. Anderson, 602 S.W.2d 347, 349 (Tex.Civ.App.-Beaumont 1980, writ refd n.r.e.). Accordingly, it is incumbent for the appellant to attack the findings by appropriate legal and factual sufficiency points of error. Lovejoy v. Lillie, 569 S.W.2d 501, 504 (Tex.Civ.App.-Tyler 1978, writ refd n.r.e.). In an appeal of a nonju-ry trial, findings are specifically and meaningfully tied to appropriate standards of appellate review and are therefore truly beneficial to appellate review. See Blackmon, 841 S.W.2d at 853.

It would have been helpful for the court to have articulated its findings of facts and conclusions of law but because no findings of fact or conclusions of law were requested or filed in this case, we will presume that the trial court found all necessary facts to support the judgment.

A review of the record presented on appeal supports Appellee’s contention that the record is completely devoid of any credible evidence to support a finding that Appellants have met their burden of proving Appellee’s have committed the tort of intentional infliction of emotional distress. In fact the record does not contain more than a scintilla of evidence to support Appellants’ position. The lack of evidence, therefore, supports the trial court’s non-finding and ruling in favor or Appellees.

Further, because the issue is not properly briefed or argued, the point is not preserved for appeal. When a party fails to include any meaningful citation of authority or discussion of relevant facts to support its contention, “we will not perform an independent review of the record and applicable law to determine whether the error complained of occurred.” Happy Harbor Methodist Home, Inc. v. Cow- ins, 903 S.W.2d 884, 886 (Tex.App.-Houston [1st Dist.] 1995, no writ). Thus, we consider appellant’s challenge regarding the court’s granting of the motion for directed verdict to be waived. See, e.g., Rendleman v. Clarke, 909 S.W.2d 56, 59 (Tex.App.-Houston [14th Dist.] 1995, writ dism’d as moot).

For the reasons stated, we affirm the judgment of the trial court and overrule Appellants’ sole issue on review.

      . This is sometimes referred to as a "failure to find” or a "non-finding.”


text:
    CEMENTOS DE CHIHUAHUA, S.A. DE C.V., Appellant, v. INTERMODAL SALES CORPORATION, Appellee.
    No. 08-03-00064-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 27, 2005.

      Roger C. Davie, Ray, Valdez, McChris-tian & Jeans, El Paso, for Appellant.
    John P. Mobbs, El Paso, for Appellee.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the decision of the trial court after a bench trial entering a final judgment finding that Appellee, is entitled to judgment on a sworn account. For the reasons stated, we reverse and render.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee is a licensed freight broker which provides both interstate and intrastate freight services. Eurotec is a Mexican corporation which was in the business of manufacturing, among other things, gardening products which were being produced for a customer in New Jersey. Eurotec procured the services of Transportation and Maquila Services (“TMS”) to arrange for shipment of the goods to New Jersey. TMS arranged for the shipping of Eurotec’s products and provided warehousing and import services for Eu-rotec.

Appellee provided shipping services for Eurotec’s products as arranged by TMS. Appellee had no contact with Eurotec; Ap-pellee’s witness testified that it would be unethical for it to communicate with Euro-tec because of Eurotec’s contracts with TMS. Appellee negotiated the shipping rates with TMS, invoiced TMS and did not copy Eurotec at any time for the costs. Appellee accepted payment from TMS and, in fact, many of the invoices were paid by TMS. When Appellee began having trouble with the payments from TMS, it contacted Eurotec to discuss the situation Eurotec was not aware that any invoices had not been paid by TMS.

Appellee originally sued both Eurotec and TMS on a sworn account contending that the shipping costs for Eurotec products had not been paid by TMS. At some point, Appellee became aware that TMS was insolvent and out of business. Appel-lee amended its petition and dropped TMS as a defendant and joined Cementos and CA as defendants. Appellee contended that Eurotec was organized as a tool or business conduit of the co-defendants, Ce-mentos and CA and that Eurotec was abandoned as a means of avoiding the debt owed to Appellee. Eurotec and Cementos are both Mexican Corporations owned by a Control Administrativo Mexicano, S.A. de C.V. Though larger and more profitable, Cementos is a sister corporation of Euro-tec. The evidence presented at trial, indicated that at some point, certain employees from Cementos were sent to Eurotec to evaluate Eurotec’s condition and assist in making Eurotec profitable to make it attractive to a buyer. Eventually, all Eu-rotec’s known debts were paid and its assets were sold, though Eurotee still continues to exist as a corporate entity.

Eurotec did not receive any invoices from Intermodal and paid all invoices received from TMS.

A bench trial was held and Appellee called several witnesses in support of its position. Margaret Julianna Rocha was called as the agent and representative of Intermodal Sales. What is most significant about Ms. Rocha’s testimony is what was not included. Ms. Rocha testified that she was contacted by Frankie Contreras from TMS and was asked to provide shipping rates for a third party shipper. Initially, Ms. Rocha did not know who the third party would be. Ms. Rocha testified that her company, Intermodal, dealt exclusively with TMS but, based upon representations made by TMS, believed that Ce-mentos was an owner of Eurotec. Ms. Rocha confirmed that the only contact Ap-pellee had regarding these invoices was with TMS and the fact that Cementos was a corporation related to Eurotec was only communicated to Intermodal by employees of TMS, orally Appellee did not receive any written documentation regarding the corporate relationship between Eurotec and Cementos and had no knowledge what-so-ever of the type of corporate relationship, if any, that existed between Eu-rotee and Cementos. Appellee’s only evidence of corporate intermingling is limited to a few anecdotal, verbal representations by TMS’s employees that Cementos was an owner of Eurotec. It is not apparent from the record when these representations were made, but clearly, they do not rise to the level of more than a scintilla of evidence that Eurotec ever operated as a mere tool or business conduit of Cementos.

Appellee’s evidence regarding the operational structure of the corporate defendants is virtually non-existent. The fact that Appellee’s manager, believed that Ce-mentos was an owner of Eurotec, does not make it so. Further, there is not a single bit of evidence which suggests that any employee from any of the defendants ever represented to Appellee that Cementos was other than a “sister corporation” to Eurotec. The only evidence presented at trial regarding the relationship of the defendants was presented by Raul Ambriz an executive of Cementos. He explained the corporate relationship of the three entities and confirmed that Eurotec still exists, though has no assets. Appellee never dealt with any employees or officers of Eurotec, Cementos or CA until it began having trouble collecting on its outstanding invoices. While providing shipping services to TMS, Appellee never invoiced Eu-rotec, did not list Eurotec on any of its invoices, did not copy Eurotec with any invoices, listed TMS as the shipper on its invoices, and addressed all its invoices only to TMS.

After a bench trial, the trial court entered judgment in favor of Appellee entering a judgment against Cementos de Chihuahua only, in the amount of $77,729.40 including prejudgment interest. The additional sum of $5,546.75 was awarded for attorney’s fees. Cementos as Appellant, appeals asserting two issues.

II. Issues on Appeal

In its first issue on appeal, Appellant complains that the trial court erred in disregarding the corporate entity of Euro-tec and entering judgment against Cemen-tos. Significantly, Appellant’s prayer only requests that this court review the trial court’s decision and reverse and render. Appellee correctly asserts that the challenges as presented are only to the legal sufficiency of the evidence. Thus, we read this issue as a contention by Appellant that there is no evidence to support the trial court’s findings as a matter of law. Because of our decision on Appellant’s issue number one we do not reach issue number two.

III. Standard of Review

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law.” When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” In re Estate of Livingston v. Nacim, 999 S.W.2d 874, 876 (Tex.App.-El Paso 1999, no pet.); see Creative Manufacturing, Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex.App.-Fort Worth 1987, writ ref'd n.r.e.).

When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which he had the burden of proof, i.e., challenging the trial court’s finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. In re Estate of Livingston, 999 S.W.2d at 879; Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex.1989); Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex.App.-El Paso 1994, no writ); Chandler v. Chandler, 842 S.W.2d 829, 832 (Tex.App.-El Paso 1992, writ denied). A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Second, if there is no evidence to support the finding, then, the entire record must be examined to see if the contrary proposition is established as a matter of law. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Only if the contrary position is conclusively established will the point of error be sustained. In re Estate of Livingston, 999 S.W.2d at 879; Kratz, 890 S.W.2d at 902; Chandler, 842 S.W.2d at 832. We review appellant’s issue to resolve the question of whether the trial court erred by disregarding the corporate entity of Eurotec and entering judgment against Cementos, as a matter of law.

IV. Discussion of Evidence

After a trial to the court, the court entered a judgment against Cementos in favor Appellee. It also filed findings of fact and conclusions of law. A review of the findings reveals that the trial court made no findings which will support the judgment as entered. We also note that neither party filed proposed findings of fact or conclusions of law nor objected to the findings as issued. On appeal, Appellant does not challenge the findings of fact or conclusions of law individually but rather attacks the judgment as a whole as entered. Appellant contends that the court committed error by disregarding the corporate existence of Eurotec and entering judgment against its sister corporation Cementos as a matter of law. We review the findings on a legal sufficiency basis.

Ultimately we look to the record on appeal for review of this issue. We cannot agree that more than a scintilla of evidence exists to support the trial court’s entry of a judgment against Cementos. In fact, a review of the record does not establish a legal basis to hold either defendant, Euro-tec or Cementos, liable for the debts of TMS. The facts establish a complete lack of privity between the parties and no contact between Eurotec and Appellee until such time as TMS defaulted on its obligations. The only evidence presented in the record is that Eurotec paid all its debts and obligations as owed and that TMS did not. The fact that TMS defaulted on its obligations, does not, as a matter of law, create an obligation on the part of Eurotec. Any legal obligations between Eurotec and TMS are separate and distinct from legal obligations owed by TMS to Appellee.

It is important to note at the outset that disregard of the “legal fiction of corporate entity” is “an exception to the general rule which forbids disregarding corporate existence.” Lucas v. Texas Industries, Inc., 696 S.W.2d 372, 374 (Tex.1984); First National Bank in Canyon v. Gamble, 134 Tex. 112, 132 S.W.2d 100 (1939).

Generally, a court will not disregard the corporate fiction and hold a corporation liable for the obligations of its subsidiary except where it appears the corporate entity of the subsidiary is being used as a sham to perpetrate a fraud, to avoid liability, to avoid the effect of a statute, or in other exceptional circumstances. Lucas, 696 S.W.2d at 374-75. See also, Torregrossa v. Szelc, 603 S.W.2d 803 (Tex.1980); Pace Corp. v. Jackson, 155 Tex. 179, 284 S.W.2d 340 (1955). There must be something more than mere unity of financial interest, ownership and control for a court to treat the subsidiary as the alter ego of the parent and make the parent liable for the subsidiary’s tort. Lucas 696 S.W.2d at 374-75; Hanson Southwest Corp. v. Dal-Mac Construction Co., 554 S.W.2d 712 (Tex.Civ.App.-Dallas 1977, writ ref'd n.r.e.); see also Bell Oil & Gas Co. v. Allied Chemical Corp., 431 S.W.2d 336 (Tex.1968). The corporate entity of the subsidiary must have been used to “bring about results which are condemned by the general statements of public policy which are enunciated by the courts as ‘rules’ which determine whether the courts will recognize their own child.” Lucas, 696 S.W.2d at 374-375; Roylex, Inc. v. Langson Brothers Construction Co., 585 S.W.2d 768 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.); Sutton v. Reagan & Gee, 405 S.W.2d 828 (Tex.Civ.App.-San Antonio 1966, writ ref'd n.r.e.). The plaintiff must prove that he has fallen victim to a basically unfair device by which a corporate entity has been used to achieve an inequitable result. Lucas, 696 S.W.2d at 374-75; Torregrossa, 603 S.W.2d at 803; Preston Farm & Ranch Supply, Inc. v. Bio-Zyme Enterprises, 615 S.W.2d 258 (Tex.Civ.App.-Dallas), aff'd, 625 S.W.2d 295 (Tex.1981).

The type of proof needed to satisfy the plaintiffs burden in an alter ego case varies depending on whether the underlying cause of action is for breach of contract or tort. Lucas, 696 S.W.2d at 374-75; Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571 (Tex.1975); Bell Oil & Gas Co. v. Allied Chemical Corp., 431 S.W.2d 336 (Tex.1968).

In its brief, Appellee asserts that the evidence presented at trial established as a matter of law that the corporation, Cemen-tos was the “alter ego” of Eurotec and therefore, the trial court was justified in disregarding the corporate fiction to hold Cementos liable. We note that Appellees did not plead that Cementos functioned at any time as the “alter ego” of Eurotec and only plead allegations grounded in fraud, the use of Eurotec as a mere tool or business conduit and the abandonment of Eurotec as a means of avoiding legal obligations. We still consider the record as a whole, however, to determine whether there is any evidence to support the trial court’s judgment as entered under any theory.

We agree with Appellee that the case of Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex.1986) provides guidance when evaluating a corporate existence to determine whether the corporate formalties should be set aside. We also note that Castleberry deals with the question of whether to pierce the corporate veil and hold individual officers and directors liable for the debts of the corporation. Castle-berry provides that the corporate fiction should be disregarded when:

(1) when the fiction is used as a means of perpetrating fraud;
(2) where a corporation is organized and operated as a mere tool or business conduit of another corporation;
(3) where the corporate fiction is resorted to as a means of evading an existing legal obligation;
(4) where the corporate fiction is employed to achieve or perpetrate monopoly;
(5) where the corporate fiction is used to circumvent a statute; and
(6) where the corporate fiction is relied upon as a protection of crime or to justify wrong.

Castleberry, 721 S.W.2d at 272.

We do not agree with Appellee, however, that the evidence presented at trial supports a finding that Cementos was an “alter ego” of Eurotec and, therefore, should be liable for the judgment in this case. There is no evidence presented in the record and certainly not more than a scintilla that Cementos functioned as the “alter ego” of Eurotec nor does any evidence exist to support a finding on the other Castleberry factors. Specifically there is no evidence to support a finding that Eurotec was organized as a mere tool or business conduit of Cementos, no evidence to establish that the corporate fiction was maintained as a means of evading an existing legal obligation, and no evidence to establish that the corporate fiction was maintained as a means to justify a wrong or perpetuate a fraud.

Turning to the trial court’s judgment, we observe that the trial court entered judgment only against Cementos and did not address the potential liability of Euro-tec. Consequently, only Cementos appears as Appellant. We see no basis for the trial court’s decision to ignore the corporate formalities creating Cementos as an independent corporate entity to assist Ap-pellees who are suffering as a result of the failure of a business. In fact, the findings themselves do not support a judgment against Cementos on any of the Castleber-ry factors. We sustain Appellant’s issue number one.

Because we have sustained issue number one and render judgment in favor of Appellant, we do not reach issue number two.

Having sustained Appellant’s issue number one, we reverse the judgment of the trial court and render judgment in favor of Appellant.

LARSEN, J., not participating.

      . Appellee filed suit on a sworn account against Transportation and Maquila Services Inc. ("TMS”) and Eurotec De Mexico S.A. de C.V. ("Eurotec”) on March 26, 1997 on claims related to unpaid invoices for shipping services provided by Appellee. Subsequent to the filing, TMS became insolvent and went out of business. Appellee filed an amended petition on June 26, 1998 and joined Cemen-tos De Chihuahua, S.A. de C.V. ("Cementos”) and Control Administrativo Mexicano, S.A. de C.V. ("CA”) as defendants. At trial, the court only proceeded against Eurotec and Cemen-tos, but ultimately entered judgment only against Cementos.

      . Though not clear from the record, for some reason, Control Administrativo did not participate in the trial of the case.

      . This is sometimes referred to as a "failure to find” or a "non-finding.”

      . Castleberry, 721 S.W.2d at 272, provides other circumstances which may justify a disregarding of the corporate veil but which are not relevant here.

      . The findings of fact and conclusions of law do not make specific findings to support a judgement under any factor enumerated in Castleberry. Interestingly, the findings make no reference to any findings regarding Ce-mentos at all and the only mention of Cemen-tos occurs in the style of the case.


text:
    SCENIC MOUNTAIN MEDICAL CENTER, a/k/a Big Spring Hospital Corporation, Appellant, v. Melissa CASTILLO, Individually and as Next Friend for Matthew Castillo, A Minor Child, Appellee.
    No. 08-03-00380-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 27, 2005.

      G. Ben Bancroft, Bancroft & Mouton, Big Spring, for Appellant.
    Robert E. White, Childs, Bishop & White Law Offices, Odessa, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the granting of a default judgment against Appellant, Scenic Mountain Medical Center, a/k/a Big Spring Hospital Corporation. For the reasons stated, we affirm the judgment of the trial court.

I. PROCEDURAL HISTORY

In her original petition filed April 11, 2003, Appellee herein, filed suit against Eddie Michael Hughes and Brandon Hughes, alleging a right to recover for personal injuries to the minor Plaintiff incurred as a result an automobile accident. In that petition, Appellee named Scenic Mountain Medical Center, a/k/a Big Spring Hospital Corporation as a party claiming an interest in the matter made the subject of the original petition. Service upon the interested party was perfected by service on its registered agent by certified mail on April 24, 2003 with a proper return of service filed on May 1, 2003. The answer was due on May 19, 2003 and a default judgment was filed on May 20, 2003. The cause involving Appellants was severed on May 20, 2003. The Appellants filed a motion for new trial on June 19, 2003 and a hearing on the Appellant’s motion for new trial was held on August 7, 2003. An order denying Scenic Mountain Medical Center, a/k/a Big Spring Hospital Corporation’s motion for new trial was filed on August 12, 2003. This appeal was timely filed on August 18, 2003.

II.DISCUSSION

In its sole complaint, Scenic Mountain Medical Center, a/k/a Big Spring Hospital Corporation asserts that the trial court abused its discretion in denying Appellant’s motion for new trial after entry of a default judgment against Appellant.

A. Standard of Review-Abuse of Discretion

A motion for new trial is addressed to the trial court’s discretion and the court’s ruling will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987); Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984).

In Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939), the Supreme Court established the guiding rule or principal which trial courts must follow when presented with a motion for new trial after a default judgment has been entered. A default judgment should be set aside and a new trial ordered in any ease in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Cliff, 724 S.W.2d at 779; Craddock, 133 S.W.2d at 126. A trial court abuses its discretion by not granting a new trial when all three elements of the Craddock test are met. Director, State Employees Workers’ Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994).

B. Summary of the Evidence

In determining whether the failure to answer was due to intentional conduct or conscious indifference, we must look to the knowledge and acts of the defendant as shown by all the evidence contained in the record before the court. Evans, 889 S.W.2d at 269; Strackbein, 671 S.W.2d at 38-39. If the factual assertions in the defendant’s affidavits are not controverted by the plaintiff, the defendant satisfies his burden if his affidavit sets forth facts that, if true, negate intentional or consciously indifferent conduct by the defendant. Strackbein, 671 S.W.2d at 38-39. However, conclusory allegations are insufficient. Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80, 82 (Tex.1992); Folsom Investments, Inc. v. Troutz, 632 S.W.2d 872, 875 (Tex.App.-Ft. Worth 1982, writ ref'd n.r.e.). To determine if the defendant’s factual assertions are controverted, the court looks to all the evidence in the record. Evans, 889 S.W.2d at 269. The defaulting defendant has the burden of proving all three elements of the Craddock test are met before a trial court is required to grant a motion for new trial. Sunrizon Homes v. Fuller, 747 S.W.2d 530 (Tex.App.-San Antonio 1988, writ denied). In contravention of the Defendant’s case, the nonmovant may present evidence tending to show intentional or consciously indifferent conduct creating a question for the trial court to determine. See, Young v. Kirsch, 814 S.W.2d 77, 80-81 (Tex.App.-San Antonio 1991, no pet.). Jackson v. Mares, 802 S.W.2d 48, 50 (Tex.App.-Corpus Christi 1990, writ denied). The defaulting defendant bears the burden of setting forth facts that prove all three elements of the Craddock test are met. Sunrizon Homes, Inc., 747 S.W.2d at 532.

In this case, Appellant’s affirmative allegations as stated in the affidavit of Jennifer L. Prater, attached to its motion for new trial are controverted by her testimony elicited during the hearing. Ms. Prater’s conclusory statement that “Scenic Mountain was mistaken in [its] belief and its failure to file an answer was not intentional or the result of conscious indifference, but was a mistake or accident” is not sufficient to establish a showing that Scenic Mountain’s failure meets the threshold test of Craddock. Ms. Prater’s testimony established that she, in fact, did not know the reason for the failure to file an answer by Corporate Office. Ms. Prater was not aware of the fact that the lawsuit had not been answered until late June 2003. Further, she testified that she had no knowledge about whether the failure to answer was the result of conscious indifference or an accident or mistake on the part of either the registered agent who had been served with the lawsuit or the corporate office. The appropriate witnesses, either the registered agent, or a corporate office representative with personal knowledge of the facts and circumstances surrounding the failure to answer, did not appear in person or by affidavit.

The trial court was well within its discretion in determining that the evidence presented by Scenic Mountain was not sufficient to meet the first prong of the Crad-dock test. Ms. Prater’s testimony does not establish that Scenic Mountain’s conduct was not intentional or consciously indifferent or due to a mistake or accident. Because Scenic Mountain did not satisfy the first element of the Craddock test, we do not need to determine whether the defense alleged by Scenic Mountain was meritorious or whether the granting of the motion will cause delay or injury to the plaintiff. Appellants sole issue on review is overruled.

Having overruled Appellant’s sole issue on review, we affirm the judgment of the trial court.


author: EVA M. GUZMAN, Justice.

text:
    Kevin SAUCEDA, Appellant, v. The STATE of Texas, Appellee.
    No. 14-01-00408-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 3, 2005.

      Shawna L. Reagin, Houston, for appellant.
    Carmen Castillo Mitchell, Houston, for appellee.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION ON REMAND

EVA M. GUZMAN, Justice.

In 2001, appellant Kevin Sauceda was convicted of aggravated sexual assault of a child and sentenced to forty years’ confinement. This court affirmed the conviction in an unpublished opinion, holding that (1) the complainant’s outcry statement was sufficiently reliable; (2) appellant’s constitutional right of confrontation had not been violated; and (3) the State was entitled to introduce a videotape of the complainant’s interview with a caseworker, in its entirety, under the rule of optional completeness if the defense called the caseworker to testify. Sauceda v. State, No. 14-01-00408-CR, 2002 WL 977152, at *1 (Tex.App.-Houston [14th Dist.], Feb. 28, 2002) (“Sauceda I ”). The Court of Criminal Appeals granted review to determine whether asking a question for impeachment purposes rendered the “entire videotaped interview of extraneous offenses admissible under the rule of optional completeness.” Sauceda v. State, 129 S.W.3d 116, 117 (Tex.Crim.App.2004) (“Sauceda II ”). In a divided opinion, the Court of Criminal Appeals concluded that the videotape would not have been admissible and remanded the case to this court with instructions to conduct a harm analysis. Id. at 124. For the reasons discussed below, we hold that the error was harmless and affirm appellant’s conviction.

I. Factual and Procedural Background

The facts of this case are thoroughly set forth in Sauceda II and we need not detail them here. See id. at 117-19. However, to place our harm analysis in context, we briefly summarize the pertinent factual and procedural history of this case.

At the time of the charged offense, appellant was unable to walk without the aid of a walker or a wheelchair and required assistance with some basic functions. He was living with his mother and three nieces, C.S., M.S., and B.S. After a family reunion, appellant’s sisters became suspicious that appellant may have molested the three girls and they questioned their nieces. The circumstances surrounding the questioning were described in Sauceda I as follows:

Appellant’s family stayed at a local motel. Appellant’s sisters ... Valicia Evans, Margo Suggs, and LaNelle Sauceda, as well as them cousin, Janette LaStrape, became alarmed when appellant asked both C.S. and B.S. to sleep in his room.... That evening, the aunts questioned C.S. and M.S. separately. Both denied having been molested. The following day, the aunts spoke with the girls again. They spoke first with the youngest, B.S., who said she had been molested. According to Ms. Evans’[s] written recitation of the girls’ outcry, B.S. also said M.S. and C.S. had been molested. The aunts then called C.S. into the room. According to Ms. Evans’s narrative, the following transpired:
We told her that she needed to tell us everything because her sister, [B.S.], has told us how [appellant] has done some things to her and her sisters and she replied why would you say a thing like that. So we told [B.S.] to tell her its [sic] OK, to tell the truth, and we won’t be mad at her and that it is always better to tell the truth. It was hard at first, but she finally told us that he did ... We then called [M.S., who admitted the molestation].

Sauceda, 2002 WL 977152, at * 1 (some alterations in original). Although the State charged appellant with three counts of sexual assault, one for each niece, he was prosecuted only for the offense against M.S. Id.

At trial, M.S. testified to two incidents of sexual assault by appellant, both occurring during the summer of 1999. M.S. stated that during the first incident, appellant called her into his room and told her to take off her clothes. When she refused, he threatened her with a butcher knife. She then complied and appellant sexually assaulted her, penetrating her vagina with his penis. M.S. testified that during the second incident, which occurred approximately one week before the family reunion, appellant again called her into his room and told her to get into bed with him. When she refused, he pulled a gun out from under the covers. She again complied and appellant sexually assaulted her.

On cross-examination, appellant’s counsel questioned M.S. regarding any statements she had made to anyone about appellant’s use of the butcher knife or the gun prior to trial, including whether the information was contained in her videotaped interview with Children’s Protective Services Investigator Fiona Stephenson. M.S. testified that she could not remember whether she had mentioned the knife or the gun to her aunts and the police. Although initially M.S. stated that she thought she had mentioned it during the videotaped interview, when appellant’s counsel asked M.S., “if we look at the videotape will we see you talking about a butcher knife?,” M.S. replied that she could not recall.

After the State rested, appellant’s counsel indicated he wished to call Stephenson as an impeachment witness, claiming that M.S. made no mention of the knife or gun during the videotaped interview. Appellant informed the court that the State had indicated it would object to Stephenson’s testimony and would move to introduce the entire videotape under the rule of optional completeness if the defense attempted to impeach M.S.’s testimony through Stephenson. The trial court stated it agreed with the State and, at that point, appellant’s counsel made an offer bf proof, stating that if he had called Stephenson she would testify that M.S. never referred to the use of a gun or a knife during the videotaped interview and that Stephenson would also state she never “specifically asked [M.S.] about the presence of a weapon or the use of one as a threat.” The defense subsequently rested without calling any witnesses.

As noted, appellant’s direct appeal asserted, in part, that the trial court erred in ruling the videotape would be admissible under the rale of optional completeness if Stephenson were allowed to testify. We affirmed the trial court’s ruling, and the Court of Criminal Appeals determined we erred. Sauceda, 129 S.W.3d at 124. In accordance with that court’s mandate, we now address whether the trial court’s error was harmful.

II. Haem Analysis

A. Harmless Error Standard

The harmless error standard we apply in this case depends on whether the trial court’s erroneous exclusion of Stephenson’s testimony — the “sole defense witness” — amounted to a violation of appellant’s constitutional right to present a defense. Sauceda, 129 S.W.3d at 121; Potter v. State, 68 S.W.3d 657, 665 (Tex.Crim.App.2002); see Ray v. State, 148 S.W.3d 218, 225-26 (Tex.App.-Texarkana 2004, no pet.) (examining whether the defendant was allowed to present a defense). An erroneous evidentiary ruling may — although rarely does — rise to the level of denying a defendant the constitutional right to present a meaningful defense. Potier, 68 S.W.3d at 663. Exclusion of a defendant’s evidence is constitutional error only if “the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense.” Id. at 665.

In his brief, appellant argued that he was “greatly harmed” by the exclusion of Stephenson’s testimony because he was unable to “establish that [M.S.] had misrepresented a highly prejudicial aspect of her alleged assault, especially since this went to the heart of his defensive theory that the child’s allegations were due to her susceptibility to suggestion and penchant for embroidering upon her previous statements.” According to appellant, Stephenson’s testimony would have established that M.S. had not told anyone about a gun or knife prior to trial and that portion of her testimony was but a “confabulation.”

For the reasons discussed below, we conclude that despite appellant’s inability to present Stephenson’s testimony, he was able to impeach M.S.’s testimony concerning the weapons through his questioning of M.S. and other witnesses. Cf. Potier, 68 S.W.3d at 665-66 (listing among the evidence establishing defendant’s defense, testimony of a police officer that supported the defendant’s claim of self-defense); see also Sanchez v. State, No. 13-99-591-CR, 2004 WL 1584923, at * 3-4 (Tex.App.-Corpus Christi, July 15, 2004, pet. refd) (not designated for publication) (relying in part on counsel’s cross-examination of witnesses to conclude the defendant was not precluded from presenting his defense).

As to the issue of whether M.S. told anyone before trial that appellant had threatened her with a knife and a gun, appellant’s counsel cross-examined M.S. as follows:

Q.: Now, the day it happened you never said anything to your Aunt Jackie about [appellant] having a butcher knife; did you?
M.S.: No.
Q.: And that day you didn’t say anything to your grandmother about [appellant] having a butcher knife; did you?
M.S.: Oh, no, no, sir.
Q.: But you didn’t tell your aunts about a butcher knife; did you?
M.S.: I don’t think I did. I think — I don’t remember.
Q.: Do you remember after you talked to your aunts you talked to some people from the police department; do you remember that?
M.S.: Yes.
Q.: You didn’t tell them about a butcher knife did you?
M.S.: I don’t remember.

Counsel continued this line of questioning, specifically asking M.S. whether she told Stephenson during the taped interview about the butcher knife. Initially M.S. stated she did not remember whether she had, but then stated, “I think I did.” Following some additional questions, which evidenced M.S.’s uncertainty as to whether she had in fact told Stephenson about the knife, appellant’s counsel questioned M.S. further, as follows:

Q.: If we look at that videotape will we see you talking about a butcher knife?
M.S.: I don’t remember. I don’t know.
Q.: But that was closer to the third grade than it is now — the time you made the videotape was closer to third grade than today is to the third grade; right?
M.S.: Yes.
Q.: Things were fresher in your mind; correct?
M.S.: Yes.
Q.: You remember things a little better then; right?
M.S.: Yes, a little.
Q.: So what you said on the videotape is different than what you’re saying today. What you said on the videotape is probably more true than what you’re saying today; correct?
M.S.: No.
Q.: What’s on the videotape is not more true?
M.S.: Yes, it’s true. And everything I’m saying today, I am saying today is true.
Q.: So on the videotape if you don’t talk about a butcher knife that would be true, there was no butcher knife?
M.S.: It is [sic] a butcher knife.
Q.: Can you tell me today any reason that when you were making the videotape that you would have left the butcher knife out of your story?
M.S.: I don’t know.

Appellant’s counsel then asked M.S. if, pri- or to the reunion, she had mentioned to any of a number of individuals that appellant had threatened her with a butcher knife and a gun. These individuals were three of M.S.’s aunts present during her outcry statement, her Aunt Jackie, her two summer school teachers, her grandmother, and her mother. In response, as to each individual mentioned, M.S. stated that she had not told them. M.S. also acknowledged that after she made the videotape, she had not told anyone about the butcher knife or the gun.

The State’s outcry witness, Valida Evans, one of M.S.’s aunts attending the reunion, did not mention appellant’s use of a weapon during her direct examination when recounting what M.S. had told her about the assaults. On cross-examination of Evans, appellant’s counsel impugned the credibility of M.S.’s testimony regarding the weapons by questioning Evans as follows:

Q.: Did you try to tell the police everything important that you knew?
A.: Yes.
Q.: Did you tell the police that [M.S.] had told you that [appellant] threaten [sic] her with a gun?
A.: No.
Q.: Can you think of anything as you sit here now important that ... you didn’t tell the police about a gun or weapon or anything about a weapon that you did not tell to the police?
A.: I did to the best of my ability. No.

Appellant’s counsel also challenged M.S.’s testimony concerning the weapons through his questioning of Sharon Ballard, the detective investigating the assaults against M.S. Indeed, after establishing that Ballard watched as the videotaped interview was conducted, through closed-circuit television, counsel’s questioning of Ballard demonstrated that M.S. had not mentioned appellant had threatened her with a knife or a gun, as follows:

Q.: So if a child said to you, based on your training and experience, there’s an adult in my neighborhood and he has a big butcher knife that he threatens children with, and he has a gun that he threatens children with, would that be the kind of information where you would wait 13 days to do something about it?
A.: No sir. I’d call homicide.
⅝ * * ⅝
Q.: Based on your investigation, did you ever have any reason to be searching for a butcher knife?
A.: No, sir.
Q.: Based on your investigation, did you have any reason to be searching for a gun?
A.: No, sir.
Q.: And again, based — you’re an instructor. You’re an expert. If you thought someone was out threatening children with guns and butcher knives, would that be a priority case for you?
A.: Yes, sir.

Based on this testimony, we conclude appellant was able to impeach M.S.’s testimony regarding the knife and gun; therefore, he was not precluded from presenting his defense by the exclusion of Stephenson’s testimony and, accordingly, we apply the harmless error standard of Rule of Appellate Procedure 44.2(b).

B.Rule of Appellate Procedure 44.2(b)

Under Rule of Appellate Procedure 44.2(b), a non-constitutional error not affecting a defendant’s substantial rights must be disregarded. Tex.R.App. P. 44.2(b); Jeffrey v. State, 38 S.W.3d 847, 858 (Tex.App.-Houston [14th Dist.] 2001, pet. refd). A substantial right is affected if: “(1) the error had a ‘substantial and injurious’ effect or influence in determining the jury’s verdict or (2) leaves one in grave doubt whether it had such an effect.” Davis v. State, 22 S.W.3d 8, 12 (Tex.App.-Houston [14th Dist.] 2000, no pet.). In conducting our analysis, we are to consider the entire record, including all evidence admitted, the nature of the evidence in favor of the verdict, and “the character of the alleged error and how it might be considered in connection with other evidence in the case.” Arroyo v. State, 123 S.W.3d 517, 520 (Tex.App.-San Antonio 2003, pet. ref'd) (citing Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002)). We may also consider other factors, such as the jury instructions, theories of the parties, closing arguments, voir dire, and whether the State emphasized the error. Motilla, 78 S.W.3d at 355-56.

C.Discussion

The testimony presented above not only establishes appellant was not precluded from presenting his defense by the exclusion of Stephenson’s testimony, but also evidences that appellant’s substantial rights were not affected by the trial court’s evidentiary ruling. See, e.g., Ray, 148 S.W.3d at 226 (relying on its analysis of whether the exclusion of defendant’s evidence was a constitutional error as also evidencing that the error was harmless). Appellant’s cross-examination of M.S. demonstrated that her testimony before trial concerning appellant’s use of a knife or a gun was, at best, inconsistent and, at worst, a fabrication. Indeed, appellant’s overall questioning of M.S. regarding any specific reference to a knife or a gun during the videotaped interview indicated that M.S. had not mentioned either.

M.S.’s testimony concerning the weapons was further called into doubt by the testimony of Evans, the outcry witness, which reflected that she was unaware of appellant’s alleged use of a weapon. Most importantly, Detective Ballard, after stating she had observed the interview as it was being taped, also indicated in her testimony that she was unaware of appellant’s use of a weapon.

Moreover, although Stephenson would have testified M.S. had never mentioned that appellant threatened her with a weapon, appellant also acknowledged in his offer of proof that Stephenson would have testified that she never specifically asked M.S. about any weapons. We can only speculate as to how those two statements would be considered by a jury, but the import of Stephenson’s testimony — if any — regarding M.S.’s failure to mention weapons during the interview would likely be diminished by Stephenson’s statement that she never directly asked M.S. about any weapons.

Under the Texas Penal Code, aggravated sexual assault of a child occurs when a person, either intentionally or knowingly, causes the penetration of the child’s anus or sexual organ by any means if the victim is younger than 14 years old. Tex. Pen. Code Ann. § 22.021(a) (Vernon 2003 & Supp.2004-05); see Facundo v. State, 971 S.W.2d 133, 135 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). Here, M.S., eight years old at the time of the charged offenses, testified that appellant inserted his penis into her vagina. The State’s medical expert, Dr. Michelle Lyn, had examined M.S. and testified that she observed redness on M.S.’s vagina, indicating “some type of penetration or attempted sexual intercourse” consistent with a sexual abuse victim. Whether appellant had used a weapon during the assaults was not a factor precluding his conviction.

Considering the entire record, we conclude the exclusion of Stephenson’s testimony did not affect appellant’s substantial rights. Based on appellant’s proffer of Stephenson’s testimony, it would not have added significantly to his' defense, nor did its exclusion result in a substantial and injurious affect on the jury’s verdict.

Accordingly, we affirm the judgment of the trial court.

      . Although in Sauceda II it was stated that appellant was "confined to a wheelchair” at the time of the offense, the record indicates he used a wheelchair, but was also ambulatory with the aid of a walker.

      . This questioning of M.S. covered approximately fifteen pages of the reporter’s record.

      . According to appellant’s counsel, the videotaped interview with M.S. contained numerous references to appellant’s alleged sexual assaults of M.S.'s sisters, C.S. and B.S.

      . At that point in the proceedings, M.S. began crying and the court adjourned for a short recess.

      . Following this, appellant’s counsel asked M.S. who was the first person she "ever told about the butcher knife and the gun.” M.S. stated that she told her Aunt Val and Aunt "Nel” after they had asked her the second time. At that point, M.S. also stated that she had told the police, but she stated she did not know if she had talked about the weapons during the videotaped interview with Stephenson.

      .Detective Ballard had previously testified that the taped interview occurred on July 7, 1999, but she had not requested a warrant for appellant's arrest until July 20, 1999, a delay of thirteen days.