author: Justice LANG-MIERS.

text:
    TIG INSURANCE COMPANY, Appellant/Cross-Appellee v. NORTH AMERICAN VAN LINES, INC. and North American Van Lines of Texas, Inc., Appellees/Cross-Appellants.
    No. 05-04-00522-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 26, 2005.

      Greg Winslett and Matthew Ryan Pick-elman, Quilling, Selander, Cummiskey <& Lownds, P.C., Dallas, for Appellant.
    Robert F. Henderson and David C. Myers, Jackson & Walker, Dallas, for Ap-pellee.
    Deborah G. Hankinson, Law Offices of Deborah G. Hankinson, Dallas, Mediator.
    Before Justices FITZGERALD, RICHTER, and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

This is an insurance coverage dispute. TIG Insurance Company, an excess insurer, appeals the denial of its motion for summary judgment and the granting of summary judgment in favor of its insured, North American Van Lines, Inc. and North American Van Lines of Texas, Inc. (collectively, NAVL). The issue on appeal is whether the limits of the underlying insurance policies were exhausted, triggering indemnification by the TIG policy, and, if so, the amount of that indemnification. We modify the trial court’s judgment and remand for recalculation of prejudgment interest.

Background

NAVL became a defendant in a personal injury lawsuit entitled Emmons v. North American Van Lines. That suit resulted in a judgment against NAVL in the amount of $8,947,273.60 in actual damages plus prejudgment and postjudgment interest for a total judgment of $15,174,289. NAVL had three layers of insurance coverage which it argues provided coverage for the Emmons judgment.

A.Self-Funded Retention/USF & G Policy

NAVL contracted with United States Fidelity and Guaranty Specialty Insurance Company (USF & G) to provide a primary Texas trucker’s liability policy with a $5,000,000 limit of liability. The policy contained an “Automobile Self-Funded Retention” endorsement (SFR), pursuant to which NAVL was responsible for funding the $5,000,000 liability limit. The policy also contained a provision whereby USF & G would indemnify a portion of “claim expenses,” defined to include defense costs, prejudgment and post-judgment interest, attorney’s fees, and court costs, when NAVL’s legal liability for an accident exceeded the $5,000,000 policy limit.

B.The Royal Policy

NAVL contracted with Royal Indemnity Company to provide commercial umbrella liability coverage of $5,000,000 per occurrence with a $5,000,000 aggregate limit in excess of the amount recoverable under the primary underlying insurance, identified in the Royal policy as the USF & G policy. The Royal policy provided coverage for the “ultimate net loss” in excess of the $5,000,000 USF & G policy. “Ultimate net loss” is defined in the main Royal policy and also in an endorsement to that policy. Although the parties disagree about which definition controls, they do not dispute that under either definition, prejudgment and postjudgment interest are included as part of “ultimate net loss.”

C.The TIG Policy

NAVL also contracted with TIG to provide a “second layer” excess umbrella liability policy with $25,000,000 coverage per occurrence and a $25,000,000 aggregate limit in excess of Royal’s umbrella policy and the primary policy. TIG’s policy provided that its coverage is triggered when the “ultimate net loss” exceeded the underlying insurance, in this case $10,000,000. The policy defined “ultimate net loss” as “the amount of the principal sum, award or verdict actually paid or payable in cash in the settlement or satisfaction of claims for which the insured is liable ... after making proper deduction for all recoveries and salvages.”

PROCEEDINGS BELOW

Under its SFR in the USF & G policy, NAVL paid $5,000,000 of the actual damages awarded in the Emmons judgment, and Royal tendered its $5,000,000 policy limits, leaving over $5,000,000 of the total judgment unpaid by insurance. NAVL sought indemnification from its TIG policy for the remainder of the judgment amount.

TIG filed this lawsuit seeking a declaration that it has no duty to indemnify NAVL under its excess policy for any portion of the Emmons judgment. TIG argued its definition of “ultimate net loss” meant that the underlying insurance had to be exhausted by the payment of actual damages and not “claim expenses” before its coverage was triggered. And because the actual damages in the Emmons judgment were under $10,000,000, the combined limits of the USF & G and Royal policies, TIG argued its coverage was not triggered. TIG also argued its coverage was not triggered because all “claim expenses” should have been paid by NAVL and none should have been apportioned to the Royal policy. Had this occurred, the Royal policy limits would have covered the remainder of the actual damages and the TIG coverage would not have been triggered.

NAVL filed a counterclaim against TIG alleging breach of contract, contending the underlying policy limits had been exhausted, that these limits were insufficient to satisfy the Emmons judgment, and that TIG owed the remainder of the judgment.

TIG and NAVL both filed motions for summary judgment on their claims. After hearing argument on the competing motions, the trial court issued a letter ruling, holding, in part: (1) the USF & G policy provides $5,000,000 primary insurance plus indemnification of a percentage share of NAVL’s “claim expenses,” which the court calculated as 44.1%; and (2) NAVL may apportion its share of the “claim expenses” (55.9%) to the Royal policy provided the apportionment is consistent with the terms of the Royal policy. The trial court then allocated the damages and “claim expenses” as follows:

Actual Damages $8,947,274 $5,000,000 $1,519,099 00 3
Prejudgment Interest $2,488,077 $1,097,242 $1,390,835 ,
Postjudgment Interest $3,738,938 $1,648,872 $2,090,066

TIG objected to the trial court’s calculation of the ratio used to apportion “claim expenses.” After a supplemental hearing and briefing on whether defense costs should have been included in “claim expenses,” the trial court issued a second letter, ruling that defense costs should not be applied against the limits of the Royal policy. Based on its rulings, the trial court denied TIG’s motion for summary judgment, granted in part NAVL’s motion for summary judgment, and awarded final judgment for NAVL in the amount of $2,428,175 against TIG, plus interest and attorney’s fees.

Analysis

A. Standard of Review and Applicable Law

When both parties move for summary judgment, each bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). If the trial court grants one motion and denies the other, the non-prevailing party may appeal the granting of the prevailing party’s motion as well as the denial of its own motion. Holmes v. Morales, 924 S.W.2d 920, 922 (Tex.1996). We review the summary judgment evidence presented by both parties and determine all questions presented. Dallas Morning News, 22 S.W.3d at 356. We may affirm the trial court’s summary judgment or reverse and render the judgment the trial court should have rendered. Morales, 924 S.W.2d at 922; Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988).

When interpreting the terms of an insurance contract, we follow the general rules of contract construction. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995). Our primary concern is to ascertain the true intent of the parties as expressed in the written contract. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995); Vincent v. Bank of Am., N.A., 109 S.W.3d 856, 866 (Tex.App.-Dallas 2003, pet. denied). If the contract can be given an exact or certain legal interpretation, it is not ambiguous, and we must interpret the insurance policy’s meaning and intent from its four corners. Houston Lighting & Power Co. v. Tenn-Tex Alloy & Chem. Corp., 400 S.W.2d 296, 300 (Tex.1966); La. Nat’l Gas Pipeline, Inc. v. Bludworth Bond Shipyard, Inc., 875 S.W.2d 458, 461 (Tex.App.Houston [1st Dist.] 1994, writ denied); Carrabba v. Employers Cas. Co., 742 S.W.2d 709, 716 (Tex.App.-Houston [14th Dist.] 1987, no writ).

An ambiguity does not arise merely because the parties to an agreement advance differing interpretations. Vincent, 109 S.W.3d at 867; see Lopez v. Munoz, Hockema & Reed, 22 S.W.3d 857, 861 (Tex.2000). The contract is ambiguous only if the application of established rules of construction leaves an agreement susceptible to more than one reasonable meaning. Vincent, 109 S.W.3d at 867. If a contract of insurance is susceptible to more than one reasonable meaning, we must resolve the uncertainty by adopting the construction that most favors the insured. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co., Inc., 811 S.W.2d 552, 555 (Tex.1991). In particular, exceptions or limitations on liability are strictly construed against the insurer and in favor of the insured. Id. We give effect to the whole policy when construing a particular provision, using each clause to help interpret the others. Wynnewood State Bank v. Embrey, 451 S.W.2d 930, 932 (Tex.Civ.App.-Dallas 1970, writ ref'd n.r.e.); Western Indem. Ins. Co. v. American Physicians Ins. Exch, 950 S.W.2d 185, 188 (Tex.App.-Austin 1997, no writ).

B. Arguments on Appeal

TIG argues the trial court should have granted its motion for summary judgment because the actual damages were less than the combined limits of the USF & G and Royal policies and coverage under the TIG policy was never triggered. Alternatively, TIG argues the trial court miscalculated the amount of indemnification TIG owed NAVL. In its cross-appeal, NAVL argues the trial court should have included defense costs in its calculation of “claim expenses” and apportioned NAVL’s share of those costs to the Royal policy, resulting in greater recovery against TIG.

1. Coverage for “Claim Expenses”

The USF & G policy states:

When the “insured’s” legal obligation to pay damages under LIABILITY COVERAGE ... exceeds the self-funded retention amount shown in the above Schedule, we will indemnify you for a portion of the “claim expenses” .... in addition to the applicable Limits of Insurance.

TIG argues this provision means NAVL contracted to pay its share of the “claim expenses,” in addition to its SFR, before coverage was triggered under the Royal policy and that NAVL could not pass its obligation to pay those expenses to the Royal policy. The trial court ruled the Royal policy provided coverage for “claim expenses” and allocated a portion of the prejudgment and postjudgment interest as “claim expenses” to Royal under its policy. We agree with the trial court.

Although we can find no cases interpreting this language, the literal meaning of this provision in the USF & G policy is that USF <& G’s indemnification of a portion of NAVL’s “claim expenses,” in this case prejudgment and postjudgment interest, is in addition to the policy’s limits. The clause does not say that NAVL must pay those expenses out of its own pocket. We can find nothing in this provision or in the USF & G policy as a whole that prevents NAVL from apportioning these expenses to its excess carrier when those expenses are covered by that policy. And we can find nothing in the Royal policy precluding coverage under its terms. In fact, both TIG and NAVL agree the definition of “ultimate net loss” in the Royal policy includes coverage for prejudgment and postjudgment interest. And Royal tendered its $5,000,000 limit, which indicates Royal also believed these “claim expenses” could be apportioned to its policy.

We conclude the trial court did not err in holding that NAVL may apportion its share of the “claim expenses” to the Royal policy.

2. Ratio of “Claim Expenses” Apportioned to USF & G

Next we examine whether the trial court used the correct ratio in apportioning “claim expenses” to USF & G. Under the USF & G policy,

When the “insured’s” legal obligation to pay damages under LIABILITY COVERAGE ... exceeds the self-funded retention ... we will indemnify you for a portion of the “claim expenses” in the ratio that the portion of the total loss in excess of such self-funded retention bears to the total loss payable (inclusive of the self-funded retention) under this policy....

The trial court interpreted this provision as requiring USF & G to indemnify NAVL for 44.1% of the “claim expenses,” allowing NAVL to apportion 55.9% of those expenses to the Royal policy. The trial court arrived at this ratio by dividing the total actual damages which exceeded the self-funded retention, or $3,947,274 (actual damages of $8,947,274 minus the SFR of $5,000,000) by the total actual damages including the self-funded retention, or $8,947,274.

The parties agree the trial court correctly calculated the numerator in the ratio as $3,947,274. However, the parties disagree about the court’s calculation of the denominator. We conclude the trial court erred in using the total actual damages as the denominator.

The USF & G policy states the denominator in the ratio is the “total loss payable (inclusive of the self-funded retention) under this policy.” The “total loss payable (inclusive of the self-funded retention)” under the USF & G policy is $5,000,000, or the policy limits, because the total loss exceeds the policy limits. When the total loss exceeds the policy limits, as in this case, the denominator cannot be higher than $5,000,000, or it would exceed the “total loss payable ... under this policy.”

NAVL does not argue that the language is ambiguous. Instead, it argues that calculating the ratio in this way can lead to absurd results because, in some cases, the ratio could exceed 100% and no insurer would agree to indemnify its insured for more than the amount of “claim expenses.” But to adopt NAVL’s interpretation of this provision would require us to ignore the language “payable under this policy,” and rewrite it to delete that language, which we cannot do under the rules of contract construction. See Beaston, 907 S.W.2d at 433; Vincent, 109 S.W.3d at 866; Tan It All, Inc., Ill S.W.3d at 679. Applying the correct denominator, USF & G’s share of claim expenses is 78.9% and NAVL’s share is 21.1%.

As a result, we conclude the trial court erred in calculating the ratio to be used in allocating claim expenses to USF & G. The allocation should be:

Actual Damages $8,947,274 $5,000,000 $3,686,100 $261,174
Prejudgment Interest $2,488,077 $1,963,093 $ 524,984 0
Postjudgment Interest $3,738,938 $2,950,022 $ 788,916 0

3. Should defense costs have been allocated as part of “claim expenses”?

Next we consider whether the trial court should have included defense costs in its allocation of “claim expenses” to the Royal policy. NAVL argues that because the definition of “claim expenses” under the USF & G policy includes defense costs, NAVL’s share of the defense costs should have been apportioned to the Royal policy. The dispute arises from the Royal policy’s two conflicting definitions of “ultimate net loss.” In its policy, Royal agreed to pay:

[T]he Ultimate Net Loss, in excess of the applicable Underlying or Retained Limit, which the Insured shall become legally obligated to pay because of:
ía) Personal Injury

The policy then provides:

“Ultimate Net Loss” means: the total sums actually paid or payable as damages in settlement of a claim ... or in satisfaction of a judgment for which the Insured is legally liable ... and also includes investigation, adjustment, appraisal, appeal and defense costs paid or incurred by the Insured with respect to damages covered hereunder.

(emphasis added). However, the Royal policy contains a “Defense Settlement Amendatory Endorsement” which provides:

Section IV — Definition—Item 6 “Ultimate Net Loss” is amended as follows:

Ultimate Net Loss means: the total sums actually paid or payable as damages in settlement of a claim ... or in satisfaction of a judgment for which the Insured is legally liable.... Ultimate Net loss does not include ... (d) investigation, adjustment, appraisal, appeal and defense costs paid or incurred by the Insured, with respect to damages covered hereunder, which are payable by [Royal] in addition to the applicable limit of liability of this policy.

(emphasis added).

NAVL argues that because the endorsement only amends the definition of “ultimate net loss” and does not delete and replace it, as with other endorsements to the policy, the original definition of ultimate net loss must also be given effect. NAVL also argues the amended definition applies only in “drop down” situations, where Royal has a duty to defend NAVL. Because Royal did not owe a duty to defend NAVL in the Emmons case, NAVL argues the original definition applies and defense costs are included in Royal’s definition of “ultimate net loss” and should have been allocated to its policy limits.

Conversely, TIG argues the two definitions are in conflict and irreconcilable because one definition includes defense costs within the policy’s limits and the other definition does not. The trial court agreed and held “the Royal insurance policy does not encompass paying defense costs paid or incurred by NAVL in such a way as to erode the Royal policy limits” and refused to allocate defense costs to Royal.

An insurance policy and its endorsements should be construed together unless they are so much in conflict they cannot be reconciled. Mesa Operating Co. v. Cal. Union Ins. Co., 986 S.W.2d 749, 754 (Tex.App.-Dallas 1999, pet. denied). In that case, endorsements to a policy generally supersede and control over conflicting printed terms within the main policy. Mesa Operating Co., 986 S.W.2d at 754; Mut. Life Ins. Co. v. Daddy$ Money, Inc., 646 S.W.2d 255, 259 (Tex.App.-Dallas 1982, writ ref'd n.r.e.); United States Fire Ins. Co. v. Aetna Cas. & Sur. Co., 781 S.W.2d 394, 399 (Tex.App.-Houston [1st Dist.] 1989)(no writ).

The definition of “ultimate net loss” in the main Royal policy includes defense costs; the definition of “ultimate net loss” in the endorsement excludes defense costs. The only difference is that the amended definition contains the additional language, “which are payable by [Royal] in addition to the applicable limit of liability of this policy.” NAVL argues the definition of “ultimate net loss” in the amendatory endorsement applies only in situations where Royal owes a duty to defend NAVL. But the language of the amendatory endorsement does not include such a limitation, NAVL cites no authority in support of this argument, and we decline to so hold.

We conclude the trial court did not err in refusing to apportion defense costs against Royal’s $5,000,000 policy limits.

4. “Ultimate Net Loss” Under the TIG Policy

TIG agreed to pay:
the ULTIMATE NET LOSS (1) in excess of all UNDERLYING INSURANCE, and (2) only after all UNDERLYING INSURANCE has been exhausted by the payment of the limits of such insurance for losses arising out of occurrences insured by all of the policies designated in the Declarations as UNDERLYING INSURANCE.

The TIG policy defines “ultimate net loss” as:

[T]he principal sum, award or verdict actually paid or payable in cash in the settlement or satisfaction of claims for which the insured is liable, either by adjudication or compromise with the written consent of [TIG], after making proper deduction for all recoveries and salvages.

TIG argues its definition of “ultimate net loss” means the USF & G and Royal policy limits had to be exhausted by the payment of actual damages, not “claim expenses,” before TIG’s coverage was triggered because “principal sum” includes only actual damages. NAVL agrees that “principal sum” means actual damages only. However, NAVL argues, and we agree, that the TIG policy cannot be interpreted to say that the underlying insurance must be exhausted by the payment of actual damages only.

The TIG policy pays for actual damages in excess of the USF & G and Royal policy limits that have been exhausted by the payments of losses arising out of occurrences insured by those policies. The TIG policy does not define “losses” but, as we have seen, the Royal policy included “claim expenses” in its definition of “ultimate net loss.” TIG did not exclude “claim expenses” from its definition of “losses ... insured by ... underlying insurance.” And an intent to exclude or limit coverage must be expressed in clear and unambiguous terms. Hudson Energy, 811 S.W.2d at 555. We can find no such contractual provision in the TIG policy. We conclude the trial court did not err when it held that, by payment of actual damages and “claim expenses,” the USF & G and Royal policy limits were exhausted, thereby triggering coverage under the TIG policy.

Conclusion

We conclude the trial court did not err by denying TIG’s motion for summary judgment and granting, in part, NAVL’s motion. However, because we conclude the trial court used an incorrect ratio in allocating “claim expenses” to USF & G, we modify the trial court’s judgment to award NAVL the sum of $261,174 from TIG, and we remand to the trial court for recalculation of prejudgment interest.

      . We express no opinion on the possible results from such a hypothetical situation as argued by NAVL. NAVL argues, for example, when the judgment is $11,000,000, the ratio would be $6,000,000 divided by $5,000,000, or 120%. However, what would happen if USF & G is faced with those facts is not before us. We must give words their plain, ordinary and generally accepted meaning unless the policy indicates another meaning should apply. See Evergreen Nat’l Indem. v. Tan It All, Inc., 111 S.W.3d 669, 677 (Tex.App.-Austin 2003, no pet.). And we may not ignore words or create an ambiguity when there is none. See id. at 678; Lubbock County Hosp. Dist. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 143 F.3d 239, 244-45 (5th Cir.1998).


source: Caselaw Access Project

license: Public Domain

text:
    US BANK, N.A., formerly known as Firstar Bank, N.A., Appellant v. PRESTIGE FORD GARLAND LIMITED PARTNERSHIP and STV Incorporated, Appellees.
    No. 05-03-01641-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 26, 2005.

      S. Cass Weiland, Jennifer L. Keefe, Patton Boggs L.L.P., Dallas, for Appellant.
    James D. Blume, Jennifer S. Stoddard, Joshua H. Northam, Shelly L. Skeen, Blume & Stoddard, Scott A. Whisler, James W. Grau, Grau-Koen, P.C., Dallas, for Appellee.
    Before Justices O’NEILL, LANG and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

This appeal arises from a dispute over the ownership of motor vehicles. In November 2000, Unlimited, an automobile leasing company, and U.S. Bank signed a Dealer Agreement whereby U.S. Bank would provide funding for Unlimited’s purchase of vehicles in exchange for an assignment of Unlimited’s interest in the lease agreements to those vehicles. In September 2002, Unlimited approached Prestige Ford, a dealership in Garland, about purchasing eight Ford motor vehicles that it intended to then lease to STV, Inc. Unlimited and STV signed lease agreements for the vehicles that same month. The lease agreements required STV to make its payments to U.S. Bank. STV took possession of the vehicles pending the sale from Prestige Ford to Unlimited. Prestige Ford contends it loaned the vehicles to STV pending the sale to Unlimited, and U.S. Bank contends the delivery of the vehicles to STV was effectively the delivery to Unlimited pursuant to a sale.

In October, U.S. Bank gave Unlimited a check for over $155,000 as payment for the vehicles. Unlimited in turn tendered a check to Prestige Ford. Unknown to U.S. Bank, the check from Unlimited to Prestige Ford was dishonored. When Prestige Ford was unable to collect from Unlimited, Prestige Ford asked STV to return the vehicles. STV returned the vehicles to Prestige Ford and also stopped making lease payments to U.S. Bank. Prestige Ford then sold or leased the vehicles to persons unrelated to this lawsuit.

US Bank sued Prestige Ford for conversion and declaratory judgment claiming that it has superior title to the vehicles. US Bank claimed its title was superior to Prestige Ford’s because U.S. Bank attained all right, title and interest in the vehicles when Unlimited and STV executed the lease agreements and because U.S. Bank was a good faith purchaser and/or buyer in the ordinary course of business. See Tex. Bus. & Com.Code Ann. § 2.401(a), 2.403(a), & 2.403(b) (Vernon 1994). US Bank sued STV claiming STV breached its contract when it stopped making lease payments.

In response, Prestige Ford argued that it was the legal owner of the vehicles because U.S. Bank never received the certificates of title to the vehicles and because Prestige Ford never sold the vehicles to Unlimited. STV argued its lease agreements with Unlimited failed for lack of consideration.

All parties filed for summary judgment on their respective claims. After a hearing, the trial court denied U.S. Bank’s motion and granted Prestige Ford and STVs joint motion on the conversion and breach of contract claims and granted Prestige Ford’s supplemental motion on the declaratory judgment action without stating the grounds for its decision. US Bank appeals the trial court’s judgment in favor of Prestige Ford and STV. For the reasons that follow, we affirm in part and reverse and remand in part.

STANDARD OF REVIEW

When both parties move for summary judgment, each bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). If the trial court grants one motion and denies the other, the non-prevailing party may appeal the granting of the prevailing party’s motion as well as the denial of its own motion. Holmes v. Morales, 924 S.W.2d 920, 922 (Tex.1996). We review the summary judgment evidence presented by both parties and determine all questions presented. Dallas Morning News, 22 S.W.3d at 356. We may affirm the trial court’s summary judgment or reverse and render the judgment the trial court should have rendered. Morales, 924 S.W.2d at 922; Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). When the trial court does not specify the basis for its summary judgment, the appealing party must show that each independent ground alleged is insufficient to support the summary judgment granted. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995); Caldwell v. Curioni, 125 S.W.3d 784, 789 (Tex.App.-Dallas 2004, pet. denied). And we consider only the theories that were presented in writing and considered by the trial court. Casso v. Brand, 776 S.W.2d 551, 553 (Tex.1989).

Analysis

A. Conversion Claim Against Prestige Ford

In its first and second issues, U.S. Bank argues the trial court erred by granting Prestige Ford’s motion for summary judgment and denying its motion for summary judgment because U.S. Bank proved it has superior title to the vehicles. US Bank argues three theories in support of its claim: (1) U.S. Bank acquired title to the vehicles pursuant to its Dealer Agreement when Unlimited executed the lease agreements with STV, (2) U.S. Bank was a good faith purchaser for value, and (3) U.S. Bank was a buyer in the ordinary course of business.

In the summary judgment proceedings below, U.S. Bank argued it proved the elements of conversion against Prestige Ford as a matter of law. And Prestige Ford argued it disproved the first element of U.S. Bank’s conversion claim — legal ownership — as a matter of law.

Conversion is the wrongful exercise of dominion or control over the property of another in denial of, or inconsistent with, the other’s rights in the property. Morey v. Page, 802 S.W.2d 779, 786 (Tex.App.-Dallas 1990, no writ) (citing Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 446 (Tex.1971)). Conversion has been defined in various ways. Basically, conversion is a wrongful deprivation of property. Lone Star Beer, Inc. v. Republic Nat’l Bank of Dallas, 508 S.W.2d 686, 687 (Tex.Civ.App.-Dallas 1974, no writ). Conversion may be committed against one who has legal possession regardless of the question of title. Id.

To prevail on its motion, U.S. Bank was required to prove, as a matter of law, that (1) it owned, had legal possession of, or was entitled to possession of the vehicles; (2) Prestige Ford assumed and exercised dominion and control over the vehicles in an unlawful and unauthorized manner, to the exclusion of and inconsistent with U.S. Bank’s rights; and (3) Prestige Ford refused U.S. Bank’s demand for return of the vehicles.- See Huffmeyer v. Mann, 49 S.W.3d 554, 558 (Tex.App.-Corpus Christi 2001, no pet.); Longaker v. Evans, 32 S.W.3d 725, 732 (Tex.App.-San Antonio 2000, pet. filed). To prevail on its motion, Prestige Ford had to negate, as a matter of law, one of these elements of conversion. See Huffmeyer, 49 S.W.3d at 558. We conclude neither party met its burden.

Under its first theory, U.S. Bank argued it has superior title to the vehicles because its Dealer Agreement with Unlimited provided an assignment of Unlimited’s interest when Unlimited executed the lease agreements with STV. The Dealer Agreement provided:

[Unlimited] shall forward the executed documents to [US Bank] and such execution shall constitute a sale and assignment of all [Unlimitedj’s right, title and interest in the ... Vehicle....

The lease agreements between Unlimited and STV stated:

The authorized signature of [Unlimited] below has the effect of ... assigning to [US Bank] ... all right, title and interest in, and to the Vehicle....

U.S. Bank argued that these provisions proved that when Unlimited and STV executed the lease agreements, U.S. Bank received all of Unlimited’s rights in the vehicles, whether or not U.S. Bank had received the certificates of title to the vehicles.

Under its second theory, U.S. Bank argued it received title to the vehicles as a good faith purchaser when Prestige Ford delivered the vehicles in exchange for Unlimited’s dishonored check, which it argued completed Prestige Ford’s performance under the contract. See Tex. Bus. & Com. Code Ann. §§ 2.401(b) & 2.403(a)(2). And under its third theory, U.S. Bank argued it received title to the vehicles as a buyer in the ordinary course of business when Prestige Ford entrusted the vehicles to Unlimited, a dealer in automobiles, by delivering them to STV. See id. § 2.403(b).

Prestige Ford argued that no valid assignment occurred from Unlimited to U.S. Bank under the Dealer Agreement because Prestige Ford never sold the vehicles to Unlimited, so Unlimited never acquired any right, title, or interest in the vehicles that it could assign, and because U.S. Bank did not fund the assignment and did not obtain certificates of title from Unlimited. Prestige Ford also argued U.S. Bank was not a good faith purchaser for value under section 2.401(b) and 2.403(a)(2) or a buyer in the ordinary course of business under section 2.403(b) because Prestige Ford never delivered the vehicles to U.S. Bank or to Unlimited; Prestige Ford loaned the vehicles to STV, which was not in the business of selling or leasing vehicles; and Prestige Ford never had a transaction of purchase with Unlimited.

Critical to the parties’ arguments under any of U.S. Bank’s theories is the nature of the transfer of the vehicles from Prestige Ford to STV. U.S. Bank contends the transfer was pursuant to a sale under the business and commerce code, while Prestige Ford contends the transfer was only a loan pending a sale.

As summary judgment evidence, U.S. Bank presented the affidavit of Carol Man-ry who stated that U.S. Bank funded over $155,000 for the purchase of the vehicles and that Prestige Ford refused to turn over the vehicles’ title documents to U.S. Bank. She also concluded that U.S. Bank had superior title to the vehicles by virtue of the Dealer Agreement with Unlimited.

Prestige Ford presented the affidavit of Charlie Nixon, its general manager, who stated that Unlimited expressed an interest in purchasing the eight vehicles but that “no contract for sale was ever entered between Prestige Ford and Cars Unlimited” and that “[w]hile this proposed sale was pending Prestige Ford loaned the eight vehicles in question to STV.” Nixon explained in his affidavit that it is common practice in the industry for a car dealership to permit a prospective purchaser to drive a vehicle pending financing and execution of the required contracts, but that the purchaser understands the dealership still owns the vehicle.

Prestige Ford also presented the affidavit of Debi Arnette, STV’s business manager. She stated that “STV received the eight Ford vehicles from Unlimited Cars, pending the receipt of the proper registration and tags for the vehicles, which was to be provided by Unlimited Cars.” She did not state that STV received the cars from Prestige Ford or that STV received the cars on loan.

As a result, the summary judgment evidence does not resolve the dispute over the nature of the transfer of the vehicles from Prestige Ford to STV. Under all of U.S. Bank’s theories in its first and second issues (Dealer Agreement, good faith purchaser for value, and buyer in the ordinary course of business), it would have acquired only the interest Unlimited acquired. But if Unlimited never acquired any interest in the vehicles, then it had no interest to assign to U.S. Bank.

For example, under U.S. Bank’s theory, if Prestige Ford loaned the vehicles to STV, then there would be no delivery under a transaction of purchase under sections 2.401 and 2.403(a)(2) by which Unlimited would have received title to the vehicles: Similarly, if Prestige Ford loaned the vehicles to STV and did not deliver them to Unlimited, it did not entrust the vehicles to a merchant who deals in goods of that kind under ■ section 2.403(b).,

The dispute about this issue demonstrates there are genuine issues of material fact precluding summary judgment for either party. As a result, we do not reach the merits of the underlying legal theories raised by U.S. Bank and Prestige Ford, but leave that to the trial court on remand.

We conclude the trial court erred by granting Prestige Ford’s motion for summary judgment on U.S. Bank’s conversion claim. We sustain U.S. Bank’s first and second points of error.

B. Declaratory Judgment Claim

In its third issue, U.S. Bank argues the trial court erred by granting Prestige Ford’s supplemental motion for summary judgment and denying its motion for summary judgment on U.S. Bank’s claim for declaratory relief that it has superior title to the vehicles.

The Declaratory Judgment Act provides a means by which a party “may have determined any question of construction or validity arising under [a] statute ... [or] contract ... and obtain a declaration of rights, status, or other legal relations thereunder.” Tex. Civ. Pra.c. & Rem. Code Ann. § 37.004 (Vernon 1997). It is “not available to settle disputes already pending before a court.” BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 841 (Tex.1990) (citing Heritage Life v. Heritage Group Holding, 751 S.W.2d 229, 235 (Tex.App.-Dallas 1988, writ denied)). Ordinarily declaratory relief will not be granted where the cause of action has fully matured and invokes a present remedy at law. See Tucker v. Graham, 878 S.W.2d 681, 683 (Tex.App.-Eastland 1994, no writ); Sylvester v. Watkins, 538 S.W.2d 827, 831 (Tex.Civ.App.-Amarillo 1976, writ ref'd n.r.e.). A declaratory judgment is improper if the relief requested is raised for the first time in an amended petition and merely addresses the same issues as were raised in the original petition. See Hartford Cas. Ins. Co. v. Budget Rent-A-Car Sys. Inc., 796 S.W.2d 763, 772 (Tex.App.-Dallas 1990, writ denied); Kenneth Leventhal & Co. v. Reeves, 978 S.W.2d 253, 258-59 (Tex.App.-Houston [14th Dist.] 1998, no pet.); Tucker, 878 S.W.2d at 683.

US Bank initially sued Prestige Ford for, among other things, conversion. As we have discussed, to prove conversion, ownership of or a superior right of possession to the vehicles must be shown. In its second amended petition, U.S. Bank sought declaratory relief that it is the legal owner of the vehicles, exemplary damages, and attorney’s fees. US Bank had no need for declaratory relief on the ownership issue because it had already placed that issue before the trial court in its original and first amended petitions. See BHP Petroleum, 800 S.W.2d at 841; Hartford, 796 S.W.2d at 772; Heritage, 751 S.W.2d at 235.

Prestige Ford argues U.S. Bank’s declaratory judgment action was an effort to recover attorney’s fees in an action where attorney’s fees otherwise are not authorized. See Hageman/Fritz, Byrne, Head & Harrison, L.L.P. v. Luth, 150 S.W.3d 617, 626-27 (Tex.App.-Austin 2004, no pet. h.) (attorney’s fees not authorized in conversion action). A declaratory relief plea may not be coupled with a damages action simply to pave the way to recover attorney’s fees. Hartford, 796 S.W.2d at 772. Additionally, whether to award attorney’s fees in a declaratory judgment action is within the discretion of the court. Park Cities Ltd. P’ship v. Transpo Funding Corp., 131 S.W.3d 654, 661 (Tex.App.-Dallas 2004, pet. denied).

We conclude the trial court did not err by granting Prestige Ford’s supplemental motion for summary judgment on U.S. Bank’s declaratory judgment action. We overrule U.S. Bank’s third issue.

C. Breach of Contract Against STY

In its fourth issue, U.S. Bank argues the trial court erred in granting STV’s motion for summary judgment and denying its motion because STV breached the lease agreements when it stopped making lease payments. STV raised the affirmative defense of failure of consideration because it never received the registration and tags to the vehicles from Unlimited and because Unlimited could not have leased the vehicles to STV having never owned them.

Generally, failure of consideration occurs when, because of some supervening cause after an agreement is reached, the promised performance fails. Stewart v. United States Leasing Corp., 702 S.W.2d 288, 290 (Tex.App.-Houston [1st Dist.] 1985, no pet.). Failure of consideration may result as a consequence of one party’s failure to perform its obligations under the agreement. Austin Lake Estates, Inc. v. Meyer, 557 S.W.2d 380, 384 (Tex.Civ.App.-Austin 1977, no writ).

After STV executed the lease agreements, it paid over $23,000 in taxes and registration for the lease of the eight Ford vehicles yet never received the registration and also lost the use of the vehicles when Prestige Ford demanded their return. Having concluded that there is a fact issue about whether Unlimited ever acquired any right, title or interest in the vehicles so that it could in turn lease the vehicles to STV, we also conclude there is a fact issue as to whether the contract between STV and Unlimited failed for lack of consideration.

We conclude the trial court erred by granting STV’s motion for summary judgment. We sustain U.S. Bank’s fourth issue.

Conclusion

We conclude the trial court erred by granting Prestige Ford’s motion for summary judgment on U.S. Bank’s conversion claim. We also conclude the trial court erred by granting STV’s motion for summary judgment on U.S. Bank’s breach of contract claim. We sustain U.S. Bank’s first, second, and fourth issues.

We conclude the trial court did not err by granting Prestige Ford’s supplemental motion for summary judgment and denying U.S. Bank’s motion on U.S. Bank’s declaratory judgment action. We overrule U.S. Bank’s third issue.

Accordingly, we affirm that part of the judgment ordering that U.S. Bank take nothing by way of its declaratory judgment action against Prestige Ford and STV. We reverse that part of the judgment ordering that U.S. Bank take nothing by way of its conversion and breach of contract claims against Prestige Ford and STV and remand those causes to the trial court for further proceedings consistent with this opinion.

      . Unlimited is referred to as both Unlimited Cars and Cars Unlimited. For clarity, we will refer to it as Unlimited. Unlimited and U.S. Bank entered into an agreed judgment and Unlimited is not a party to this appeal.

      . US Bank cites section 2.403(a)(2) of the business and commerce code, which states in part:
      A purchaser of goods acquires all title which his transferor had... .A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though ... (2) the delivery was in exchange for a check which is later dishonored....
      Tex. Bus. & Com.Code Ann. § 2.403(a)(2) (Vernon 1994).

      . US Bank cites the following provision of the business and commerce code:
      Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business....
      Tex. Bus. & Com.Code Ann. § 2.403(b).

      . STV contends that it raised these issues separately in its motion for summary judgment and that U.S. Bank failed to respond to the first argument. However, a fair reading of STV’s motion for summary judgment and U.S. Bank’s reply shows that U.S. Bank responded to all issues raised by STV.


author: Justice FITZGERALD.

text:
    Ex parte Russell W. URQUHART.
    No. 05-05-00673-CR.
    Court of Appeals of Texas, Dallas.
    Aug. 26, 2005.

      John Hendrik, Duncanville, TX, for Appellant.
    John R. Roach and M. Emily Johnson-Liu, District Attorneys, McKinney, TX, for The State.
    Before Justices WRIGHT, BRIDGES, and FITZGERALD.
   OPINION

Opinion by

Justice FITZGERALD.

Russell Urquhart was convicted of driving while intoxicated. The conviction was affirmed on direct appeal. See Urquhart v. State, 128 S.W.3d 701 (Tex.App.-El Paso 2003, pet. ref'd). Appellant later filed an application for writ of habeas corpus asserting he received ineffective assistance of counsel at trial. See Tex.Code CRiM. Proc. Ann. art. 11.072 (Vernon 2005). Following a hearing, the trial court denied appellant the relief he sought. In his sole issue, appellant asserts the trial court erred in denying him relief. We affirm the trial court’s order.

Background

Appellant was stopped for driving while intoxicated. The officer read appellant the statutory warnings contained in section 742.015 of the transportation code. See Tex TRAnsp. Code Ann. § 724.015 (Vernon Supp.2004-05). Several times, appellant questioned the arresting officer about the consequences of refusing or taking the in-toxilyzer test. Although he initially told appellant he could not give an interpretation of the warning, the officer ultimately gave appellant extra-statutory information regarding the consequences of refusing, failing, and passing the intoxilyzer test. In essence, the officer told appellant he would remain in jail if he refused to take or failed the test and would be released if he passed the test. Appellant took the intoxilyzer test, which showed a result of .13. Appellant was arrested for and charged with driving while intoxicated.

Appellant’s trial counsel filed a motion to suppress the intoxilyzer results, asserting the officer’s extra-statutory information rendered appellant’s consent involuntary. See Erdman v. State, 861 S.W.2d 890 (Tex.Crim.App.1993). The motion and trial counsel’s argument focused on the officer having advised appellant of the consequences of passing the test. The trial judge denied the motion to suppress, finding the record showed appellant’s consent to take the intoxilyzer test was voluntary. Appellant was convicted of the offense and appealed.

On appeal, the Eighth Court of Appeals affirmed the trial court’s judgment. In doing so, the court held that appellant waived his complaint regarding the officer’s information about refusing to take or failing the test because appellant focused on the officer’s statements about appellant passing the test. See Urquhart, 128 S.W.3d at 704. The court then addressed the claim it held was preserved and concluded the record supported the trial court’s finding that appellant’s consent was voluntary.

Appellant’s trial attorney, Keith Gore, testified at the habeas corpus hearing. Gore testified that he filed the motion to suppress the intoxilyzer results, relying on Erdman. Gore considered the motion to have properly raised all three extra-statutory warnings discussed in Erdman, that is: refusing to take, failing, and passing the test. Gore focused on the officer’s statements about the consequences of appellant passing the test because appellant complained to him only about that part of the officer’s extra-statutory warnings. Gore did not believe that by focusing on the one complaint he had waived the others. Gore further testified that he believed the trial judge’s ruling on the motion to suppress was very specific, that he understood it to apply to all of the issues raised regarding the refusal to take/fail/ pass language, and that he did not reurge the objection due to the specificity of the ruling. Gore further testified that he did not offer the videotape into evidence because the judge spoke in detail about the tape and made very specific rulings; Gore believed the ruling covered all three extra-statutory statements; the judge mentioned the portions of the videotape to which appellant objected; and Gore did not want the videotape in evidence before the jury.

Appellant testified at the habeas corpus hearing that on the night he was arrested, he was scared and was asking questions to understand what was happening. He believed the officer was - getting frustrated with the questions. Appellant told Gore everything that had happened. When asked if he told his trial counsel that the only reason he took the test was because the officer told appellant he could go if he passed it, appellant responded “yes,” adding “[b]ut it was a combination of things.” Upon further questioning, appellant stated that this warning was not the only reason he decided to take the test.

Applicable Law

In reviewing the trial court’s decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court’s ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim.App.2003) (per curiam). We will uphold the trial court’s ruling absent an abuse of discretion. Id. In conducting our review, we afford almost total deference to the judge’s determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demean- or. Id. We afford the same amount of deference to the trial judge’s rulings on “application of law to fact questions” if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. If the resolution of those ultimate questions turns on an application of legal standards, we review the determination de novo. Id.

To prevail on a claim of ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that: (1) counsel’s performance fell below the standard of prevailing professional norms; and (2) there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). A reasonable probability is one sufficient to undermine confidence in the outcome of the proceeding. See Thompson, 9 S.W.3d at 812. Allegations of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See id. at 813. Moreover, appellate scrutiny of trial counsel’s performance must be highly deferential to avoid the deleterious effects of hindsight. See id.

Analysis

In his sole issue, appellant asserts the trial court erred in denying habeas corpus relief because appellant’s trial attorney was ineffective in waiving a valid Erdman objection to the officer’s extra-statutory warnings about the intoxilyzer test. Appellant asserts that had counsel introduced the videotape into evidence and preserved his complaint about the officer’s statements regarding the consequences of failing or refusing the intoxilyzer test, the Eighth Court of Appeals “would have been forced” to consider the consequences of the warnings about failing or refusing the test.

The State responds that appellant suffered no prejudice because the Eighth Court of Appeals actually overruled appellant’s voluntariness complaint on the merits. The State contends that, contrary to appellant’s assertion, the court of appeals did not merely hold appellant did not sustain his burden of showing coercion. Rather, the court affirmatively concluded that the record supported the finding that appellant’s consent to take the intoxilyzer test was voluntary. Therefore, the State argues, despite any alleged error on the part of trial counsel, the court of appeals had a separate and independent basis for rejecting appellant’s complaint. Additionally, the State asserts that we are to judge trial counsel’s actions based on the law and facts at the time of the trial and, in the context of the entire representation, counsel was not deficient.

The Eighth Court of Appeals held that appellant had waived any complaint except the one regarding the consequences of passing the test. Urquhart, 128 S.W.3d at 704. The court then addressed and distinguished the facts of Erdman from appellant’s case. The court noted that in Erd-man, the focus was on the warning about the consequences of refusing the intoxilyzer test. The Erdman court held the warning was of the type that “would normally result in considerable psychological pressure upon a D.W.I. suspect to consent to the taking of a breath sample,” and there was a complete absence of anything in the record to show the extra-statutory warning had no bearing on Erdman’s decision to take the intoxilyzer test. See id. (quoting Erdman, 861 S.W.2d at 894). The court concluded under the totality of the circumstances in this case, however, that , there was considerable other evidence (including the officer’s testimony, appellant’s signed consent form, and two videotapes that showed appellant’s interaction with the officers) supporting the trial court’s ruling that the consent to take the test was voluntary. See id. at 705-06.

Although the court of appeals did review the merits of the voluntariness issue, it did so within the context of the complaint it determined had been preserved — that the warning about the consequences of passing the intoxilyzer test rendered his consent involuntary. Because the court did not address the complaints regarding the warning about failing or refusing the test, we cannot read the opinion to have reached the merits of the voluntariness issue on those grounds.

Nevertheless, we conclude appellant has not met his burden on the second prong of Strickland to show the result of the proceeding would have been different. See Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Appellant asserts that had counsel preserved the complaints, the Eighth Court of Appeals would have been forced to review the issues. However, the different result appellant had to show was that the court of appeals would have concluded the trial court erred in admitting the intox-ilyzer results into evidence and would have reversed the conviction. See Collum v. State, 96 S.W.3d 361, 367 (Tex.App.-Austin 2002, no pet.).

Section 724.015 of the transportation code sets out the information an officer must give before requesting a specimen. See Tex. TRAnsp. Code Ann. § 724.015. Extra-statutory information conveyed to the accused regarding the consequences of passing, failing, or refusing the test is not contemplated by the statute. See Erd- man, 861 S.W.2d at 893-94. Moreover, extra-statutory warnings that refusing the test would mean arrest and jailing is of the type that “would normally result in considerable psychological pressure” upon a DWI suspect to take the test. Id. at 894. Therefore, absent evidence in the record showing the extra-statutory warning had no bearing on appellant’s decision to take the test, the intoxilyzer results would not be admissible under article 38.23. See id.; Urquhart, 128 S.W.3d at 706; see also Tex.Code Crim. PROC. ÁNN. art. 38.23 (Vernon 2005).

The videotape shows that appellant responded intelligently to the officer’s questions and also asked pertinent questions of the officer. The officer read the statutory warnings verbatim while appellant followed along on a duplicate form, using his finger to keep his place. After the officer completed the first read-through, appellant said he was not clear what his “rights were.” The officer responded that he could not give appellant an interpretation of the warnings. The officer then began to read through the statutory warnings a second time, when appellant began reading the warnings aloud along with the officer. Appellant discussed the contents of the warnings with the officer and summarized what he believed the warning said about refusal to take the test. The officer confirmed the correctness of appellant’s summary. Appellant asked, “If I refuse, will there be a subsequent prosecution?” The officer said, “Yes.” Appellant said he did not feel comfortable “with it,” and indicated his concerns as the officer read the form for a third time. Finally, in response to appellant’s questioning, the officer told appellant that if he passed the test, he would be released, but if appellant failed the test or refused the test, he would “stay here.” However, the officer also always referred appellant back to the statutory warnings. The officer said he was not trying to persuade appellant, and appellant replied, “Oh, no, no, no,” and said he was just trying to understand. After thinking about it, appellant agreed to take the in-toxilyzer test. Although appellant testified he only took the intoxilyzer test after the officer convinced him, in light of the record before it, the trial court was free to disbelieve that testimony. See Ex parte Peterson, 117 S.W.3d at 819.

Having reviewed the record under the appropriate standards, we conclude it supports the trial court’s finding that appellant’s consent to take the intoxilyzer test was voluntary and not based on the officer’s extra-statutory information. Therefore, appellant did not meet his burden of showing the result would have been different on appeal had trial counsel preserved his complaints regarding the extra-statutory warnings about failing or refusing the intoxilyzer test. We conclude the trial court did not abuse its discretion in denying appellant relief and resolve appellant’s issue against him.

We affirm the trial court’s order denying appellant the relief sought by his application for writ of habeas corpus.

      . The appeal was transferred to the Eighth Court of Appeals pursuant to a transfer order from the Texas Supreme Court.

      . Trial counsel was also questioned about why he did not object to the officer’s warnings concerning the consequences of refusing to take or failing the test. He responded that if the trial court had granted the motion to suppress based on all three of the officer's statements about the consequences of refusing to take, failing, or passing the test, and appellant subsequently testified at trial that his consent was involuntary only because of the "pass” warning, the court could have retracted its order of suppression and admitted the results of the test to appellant's prejudice. Trial counsel also stated he believed he had , an ethical duty to be candid with the court.

      . Appellant further testified as follows on direct examination:
      [Counsel]: Did you tell him — bottom line, did you tell him that the only reason you didn’t take it — that you took it, excuse me, was because the officer told you you could go if you took it and passed?
      [Appellant]: After he told me about this, then I said: Yes. But it was a combination of things. But yes, I was just — -you know— you know, I would not — I did not have any intention of taking that.
      [Counsel]: Until the officer convinced you?
      [Appellant]: Right. Right. Right.
      [Counsel]: But the consequences of passing, was that a decision breaker for you or was that just a factor?
      [Prosecutor]: Asked and answered, Your Honor.
      [Court]: Overruled. You may answer.
      [Appellant]: Could you ask me the question again?

        [Counsel]: The one little part about the officer telling you about the consequences of passing — the officer says: If you take this and pass it, I’ll let you go. That one part, was that the only reason you decided?
      [Prosecutor]: Objection to leading.
      [Court]: Overruled. I will allow the question.
      [Counsel]: Was that little part of it the only reason?
      [Appellant]: No. No.

      . In Strickland, the Court held that "in order to determine whether counsel performed below the level expected from a reasonably competent attorney, it is necessary to 'judge ... counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.’ ” Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). The defendant must overcome the "presumption that ... the challenged action ‘might be considered sound trial strategy.’ ” Bell v. Cone, 535 U.S. 685, 698, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
      The Strickland Court also stated, "The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

      . Because we resolve the ineffective assistance of counsel claim by addressing the prejudice component of Strickland, we need not address the performance element.


author: Justice GARZA.

text:
    Dominic McKAINE, Appellant, v. The STATE of Texas, Appellee.
    No. 13-03-430-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 31, 2005.

      Patti Hutson Mays, Victoria, for Appellant.
    Michael A. Sheppard, Dist. Atty., Robert C. Lassmann, Asst. Dist. Atty., Cuero, for Appellee.
    Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
   OPINION ON REHEARING

Opinion by

Justice GARZA.

By two issues, Dominic McKaine challenges his conviction and sentence for burglary of a habitation and committing aggravated assault therein. The Court’s original opinion in this case reversed the trial court’s judgment and remanded the case to the trial court for a new punishment hearing. McKaine v. State, No. 13-03-00430-CR, 2004 WL 905562, 2004 Tex. App. LEXIS 3777 (Tex.App.-Corpus Christi, April 29, 2004, no pet. h.). We now grant the State’s motion for rehearing, withdraw our previous opinion, and issue this opinion, affirming the judgment of the trial court.

Background

The conviction from which McKaine appeals stems from the following events. On November 12, 2002, McKaine and three other people used force to unlawfully enter the residence of Charles and Amy in Cue-ro, Texas. McKaine entered the home carrying a twenty-gauge shotgun. His cohorts were armed with handguns. With their weapons drawn, the group forced Charles down onto the kitchen floor, threatening to kill him if he resisted. McKaine then pointed his shotgun at Charles’s wife, Amy, and told her to take off her shirt. With her husband and three small children watching, Amy removed her shirt for McKaine, exposing her breasts. McKaine’s companions then took Charles into the couple’s bedroom, and McKaine took Amy and two of her children into a second bedroom. Once inside, he began to touch Amy, fondling her breasts and repeatedly telling her that he wanted to have sex and that he was going to have sex with her on her child’s bed in front of her children. He threatened to kill her, her husband, and her children if she told anyone. McKaine then took Amy into the living room and in front of all three of her children, ordered her to pull down her pants. She refused. McKaine repeated his demand, and again, she refused, saying that she was “on her period.” McKaine put his shotgun against the head of Amy’s three year old son and said, “Pull down your pants and spread your legs, or I’m going to kill your son.” She complied, but McKaine did not have sex with her. He and his companions left, taking a knife, cigarettes, and money belonging to the family. Before leaving, McKaine repeated his threat that he would kill all of them if they told anyone what happened.

At the time of the incident, McKaine was sixteen years old. He was originally charged as a juvenile, but the State petitioned the juvenile court to transfer the case to district court so that he could be prosecuted as an adult. After a hearing, the juvenile court certified McKaine as an adult and transferred the case. Before the district court, McKaine pleaded guilty to burglary of a habitation and committing aggravated assault therein, a first-degree felony. He requested that a jury determine his punishment. The jury sentenced him to seventy-five years’ imprisonment.

McKaine raises two issues on appeal. First, he challenges the juvenile court’s decision to transfer his case to district court for trial as an adult. Second, he argues that the trial court abused its discretion during the punishment phase of the trial by not allowing his attorney to question Amy and Charles regarding their involvement in drug activities.

I. Transfer to District Court

In his first issue, McKaine claims that the juvenile court erred in transferring his case to district court. He complains that the court erred by considering a psychological report because it amounted to inadmissible hearsay. McKaine also contends that the author of the report should have been present at the transfer hearing to explain her evaluation and the basis for her findings. Finally, he maintains that the juvenile court had insufficient evidence to transfer his case to district court for trial as an adult.

The juvenile court has exclusive, original jurisdiction over children seventeen years of age and younger. Ex parte Waggoner, 61 S.W.3d 429, 431 (Tex.Crim.App.2001); see Tex. FaM.Code Ann. §§ 51.04(a), 51.02(2) (Vernon 2002) (discussing the jurisdiction of juvenile courts and defining “child”). Texas Family Code Section 54.02(a) provides that the juvenile court may waive its exclusive, original jurisdiction and transfer a child to the appropriate district court for criminal proceedings if the child is alleged to have committed a first-degree felony and was aged fourteen or older at the time of the alleged offense. Tex. Fam.Code Ann. § 54.02(a) (Vernon 2002). A juvenile court’s discretionary power to transfer a juvenile can be exercised only after the State files a petition or motion requesting waiver and transfer. Hidalgo v. State, 983 S.W.2d 746, 749 n. 3 (Tex.Crim.App.1999); see Tex. Fam.Code Ann. §§ 53.04, 54.02(b) (Vernon 2002). When the State requests a transfer, the juvenile court is required to conduct a hearing without a jury to consider transfer of the child for criminal proceedings. Tex. Fam.Code Ann. § 54.02(c). Before the transfer hearing, the court must order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense. Id. § 54.02(d); In re J.S.C., 875 S.W.2d 325, 326 (Tex.App.-Corpus Christi 1994, writ dism’d by agr.). Based on this information, the court must determine whether there is probable cause to believe that the child committed the offense alleged and whether the welfare of the community requires criminal proceedings because of the seriousness of the offense or the baek-ground of the child. See Tex. Fam.Code Ann. § 54.02(a); In re J.S.C., 875 S.W.2d at 326. The juvenile court’s decision to transfer a case to district court is reviewed for abuse of discretion. Faisst v. State, 105 S.W.3d 8, 12 (Tex.App.-Tyler 2003, no pet.); see In re J.S.C., 875 S.W.2d at 326.

We first consider McKaine’s argument that the trial court erred by considering a psychological report because it was inadmissible hearsay. Strict rules of evidence are not applied in transfer proceedings. In re J.S.C., 875 S.W.2d at 330; see also In re J.P.O., 904 S.W.2d 695, 699 (Tex.App.-Corpus Christi 1995, writ denied). Section 54.02(e) authorizes the juvenile court to “consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses.” Tex Fam.Code Ann. § 54.02(e). In previous case involving the use of a psychiatric evaluation in a transfer hearing, this Court overruled an alleged hearsay error, noting that juvenile courts are authorized to consider such evidence. See In re J.S.C., 875 S.W.2d at 330 (holding that there was “no error in ... the use of records even though [they] ... may not be admissible as evidence at an adjudication hearing”). We reach the same conclusion in this case. The juvenile court did not err in admitting the psychological report into evidence.

McKaine also argues that Dr. Kar-an Redus, who conducted his psychological evaluation and authored the report, should have testified at the transfer hearing. He contends that the juvenile court’s duty to conduct a “full investigation and hearing” is not complete without live testimony from the author of any reports relied upon under section 54.02(e). Tex. Fam.Code Ann. § 54.02(c), (e). The State has not responded to this argument. Nevertheless, we cannot conclude that the juvenile court abused its discretion. The family code does not specifically require that the juvenile court hear live testimony from a professional consultant whose written report is considered under section 54.02(e). Id. § 54.02(e). It allows the court to consider “written reports from ... professional consultants in addition to the testimony of witnesses.” Id. Although McKaine makes compelling arguments regarding the court’s duty to be fully informed of the juvenile’s circumstances, he has cited no cases holding that the court must receive five testimony in addition to the written reports. Our research has unearthed no such authority. Thus, we cannot conclude that the trial court abused its discretion. In so holding, we note that although McKaine’s trial counsel complained of Dr. Redus’s absence at the hearing, the record does not show that he ever attempted to subpoena her or otherwise solicit her testimony. The record shows that McKaine’s trial counsel received proper notice of Dr. Redus’s report under section 54.02(e). Id.

Finally, McKaine argues that the juvenile court erred in transferring his case to district court because the evidence was insufficient to support a transfer. McKaine has not specified whether his challenge is to the legal or factual sufficiency of the evidence or to both. See In re J.P.O., 904 S.W.2d at 699-700 (“The juvenile court’s findings of fact are reviewed by the same standards that are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury’s answers to a charge.”). He also has not cited authorities for his contention that the evidence is insufficient. See Tex. R.App. P. 38.1(h) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”). McKaine argues that the evidence adduced at the transfer hearing was insufficient to support a transfer because it showed that (1) he had never been adjudicated of a felony as a juvenile, (2) he suffered from drag addiction and had not received treatment, and (3) the Texas Youth Commission offered services that could assist in rehabilitating him. The State has not responded to McKaine’s sufficiency arguments. Assuming without deciding that McKaine has properly presented this issue for review, we hold that it does not warrant reversal because his arguments do not address all of the grounds for the juvenile court’s decision. Specifically, McKaine has not addressed the court’s finding that the seriousness of the offense necessitated criminal proceedings to protect the welfare of the community.

As noted above, the juvenile court has discretion to waive its jurisdiction and transfer a case to criminal court if it finds that there is probable cause to believe that the child committed the offense alleged and that the welfare of the community requires criminal proceedings because of the seriousness of the offense or the background of the child. See Tex. Fam.Code Ann. § 54.02(a); In re J.S.C., 875 S.W.2d at 326. In making this determination, the court is required to consider (1) whether the alleged offense was against a person or property, with greater weight in favor of transfer given to offenses against the person; (2) the sophistication and maturity of the child; (8) the record and previous history of the child; and (4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities available to the juvenile court. Tex. Fam.Code Ann. § 54.02(f). While the juvenile court must consider all of these factors before transferring the case to district court, it is not required to find that each factor is established by the evidence. In re D.D., 938 S.W.2d 172, 176 (Tex.App.Fort Worth 1996, no writ); In re J.S.C., 875 S.W.2d at 329; In re M.D.B.; 757 S.W.2d 415, 417 (Tex.App.-Houston [14th Dist.] 1988, no writ). The court is also not required to give each factor equal weight as long as each is considered. In re J.J., 916 S.W.2d 532, 535 (Tex.App.-Dallas 1995, no writ); In re C.C.G., 805 S.W.2d 10, 15 (Tex.App.-Tyler 1991, writ denied).

In its order, the juvenile court discussed each of the foregoing factors and how they influenced its decision. The court also noted that “after conducting ... [a] full investigation, including evidence and argument of counsel, the Court finds that the welfare of the community requires criminal proceedings, because of the seriousness of the offenses and the background of the child and ... [because] there is probable cause to believe the child committed the offenses.... ” On appeal, McKaine argues that his background did not require criminal proceedings for the protection of the community’s welfare, but he does not challenge the court’s finding that the seriousness of the offense warranted criminal proceedings. A court does not abuse its discretion by finding the community’s welfare requires transfer due to the seriousness of the crime alone, regardless of the child’s background. See In re D.D., 938 S.W.2d at 177; In re C.C.G., 805 S.W.2d at 15. Thus, even if we were to sustain MeKaine’s challenge regarding his background, his failure to challenge the court’s finding regarding the seriousness of the offense would preclude relief on his sufficiency arguments. Appellant’s first issue is therefore overruled.

B. Admissibility of Evidence at Punishment Phase

In his second issue, McKaine claims that the trial court erred by not allowing his trial counsel to question Amy and Charles on their involvement in drug-related activities prior to the burglary. McKaine’s attorney sought to ask Amy and Charles whether they were drug dealers and whether McKaine and his three companions had stolen cocaine and marihuana from them along with the knife, cigarettes, and money., Before trial, the State filed a motion in limine regarding this testimony, which the court granted. At trial, the testimony was ultimately excluded as irrelevant. See Tex.R. Evid. 401.

A trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996); Ford v. State, 26 S.W.3d 669, 672 (Tex.App.-Corpus Christi 2000, no pet.). Even if the trial court gave the wrong reason for its decision, Salas v. State, 629 S.W.2d 796, 799 (Tex.Crim.App.-Houston [14th Dist.] 1981), the decision will be upheld as long as it is correct on some theory of law applicable to the case. Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App.2002). Even if there is no legal basis to support the ruling, the reviewing court must still disregard the error unless it affected the defendant’s substantial rights. See Tex. R.App. P. 44.2(b).

On appeal, McKaine focuses almost exclusively on whether the trial court erred by ruling that the excluded evidence was irrelevant. Regardless of whether the trial court’s determination of relevance was correct, its ruling will not be disturbed if it can be upheld on some other legal basis. See Osbourn, 92 S.W.3d at 588; Salas, 629 S.W.2d at 799. Although we recognize the significance of the relevance issue, especially because it was the stated reason for the trial court’s ruling, we must also recognize that, on appeal, the State has raised other bases on which the trial court’s ruling can be upheld. In addition to defending the court’s ruling on relevance, the State argues that the evidence was properly excluded under rule 513, as it amounted to no more than denials of criminal activity and assertions of the victim’s Fifth Amendment rights. See Tex.R. Evid. 513. Appellant has not responded to this argument. Nor has appellant addressed the possibility that the evidence in question could have been properly excluded under rule 403 because its probative value was substantially outweighed by the danger of unfair prejudice it created. See Tex.R. Evid. 403.

We agree with the State’s contention that the evidence, whether relevant or not, could have been properly excluded because it was offered to allow the jury to consider the witnesses’ assertions of their Fifth Amendment rights. See Tex.R. Evid. 513. The reporter’s record includes the following exchange that took place as defense counsel examined one of the witnesses outside the jury’s presence:

Defense Counsel: [D]id you or did you not know of contraband, namely, marijuana, and cocaine that was taken from your house on this particular night we’re talking about?
Witness: I plead the Fifth.
The Court: Okay. Is that all then?
Defense Counsel: That’s all I have for her outside the presence of the jury, but I’d like to ask her that same question in front of the jury, and I think it goes towards the offense that they’ve alleged against my client, and I—
The Court: Alright. The objection of the State will be sustained.
Defense counsel was later allowed to examine the second witness outside the jury’s presence and the following exchange occurred:
Defense Counsel: During the commission of this offense were any personal items of yours taken?
Witness: I had a knife, some money, and I had a pistol, and that’s it.
Defense Counsel: There were no narcotics?
Witness: No.
Defense Counsel: You realize you’re under oath?
Witness: I realize I’m under oath.
Defense Counsel: And you will be charged with perjury, if you’re lying?
Witness: I will plead the Fifth, if you keep asking me a question like that.
Defense Counsel: Your Honor, again, I just put it to the Court that I believe that that particular witness has evidence that the jury would find relevant, as far as McKaine’s punishment goes, and I will make the same argument about the facts of ... [the first witness’s] testimony also and reurge the Court to allow that to come in.
The Court: Well, this last witness that testified, what part of the evidence— what part of the testimony do you want to have the jury hear?
Defense Counsel: Well, your Honor, he pled — he said he would take the Fifth Amendment, which is not incriminating himself. He is not on trial, he is just simply a witness, and he should be urged to testify to the truth of those questions.
The Court: And that’s the part that you want to be submitted to the jury?
Defense Counsel: That’s correct.
The Court: All right. I’ll — I’ll deny your tender.

Based on these excerpts from the reporter’s record, we cannot dismiss the possibility that the trial court excluded the testimony because defense counsel sought to have the witnesses assert their Fifth Amendment rights in the jury’s presence. A witness’s assertion of his or her Fifth Amendment rights and refusal to testify is not evidence and the jury is not allowed to draw any inferences from such actions. See Tex.R. Evm 513(d); Torres v. State, 137 S.W.3d 191, 198 n. 3 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Accordingly, we conclude that the trial court’s ruling can be upheld on a basis other than relevance. We therefore overrule McKaine’s second issue.

The judgment of the trial court is affirmed.

      . See Tex Penal Code Ann. § 30.02(a), (d) (Vernon 2003).

      . We withhold the couple’s last name because of the nature of the crimes committed against them.

      . See id.

      . Under Article 44.47 of the Texas Code of Criminal Procedure, an appeal from a juvenile court's decision to certify a defendant as an adult and to transfer the case under section 54.02 of the family code is a criminal matter. Tex.Code Crim. Proc. Ann.- art. 44.47(a), (c) (Vernon Supp.2004). A challenge to the certification and transfer order can be made only in conjunction with the appeal of a conviction of or an order of deferred adjudication for the offense for which the defendant was transferred to criminal court. Id. at art. 44.47(b).

      . Other courts of appeals have also reached this conclusion. See In re J.A.W., 976 S.W.2d 260, 264 (Tex.App.-San Antonio 1998, no pet.) ("Section 54.02(e) of the Family Code, which allows the court to consider written reports from probation officers, professional court employees, and professional consultants, provides an explicit exception to the hearsay rule in a transfer to criminal court proceeding.”); In re S.J.M., 922 S.W.2d 241, 242 (Tex.App.Houston [14th Dist.] 1996, no writ) ("Because a juvenile transfer hearing is dispositional, rather than adjudicational in nature, a juvenile court may consider hearsay reports without violating the juvenile’s right of confrontation.”); In re G.B.B., 638 S.W.2d 162, 164 (Tex.App.-Houston [1st Dist.] 1982, no writ) ("[A] juvenile court may consider hearsay reports. ...”); In re Q.D., 600 S.W.2d 392, 394 (Tex.Civ.App.-Fort Worth 1980, no writ) ("Section 54.02 of the Family Code is a statutory exception to the hearsay rule and authorizes the introduction of specified reports that would otherwise be objectionable.”); In re R.G.S., 575 S.W.2d 113, 119 (Tex.Civ.App.Eastland 1978, writ ref'd n.r.e.) ("A juvenile court may consider certain hearsay reports at a transfer ... hearing that would not be admissible at an adjudication hearing.”).


author: PER CURIAM. TOM GRAY, Chief Justice,

text:
    Alanda Suzanne FEWINS, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00189-CR.
    Court of Appeals of Texas, Waco.
    Sept. 7, 2005.
    Andrew W. Lucas, Glen Rose, for Appellant.
    B.J. Shepherd, Bosque County Dist. Atty., Meridian, for Appellee.

      Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ABATEMENT ORDER

PER CURIAM.

Alanda Suzanne Fewins’s counsel filed an Anders brief in this appeal on January 5, 2005. On April 20, this Court issued an order striking the brief as deficient and ordering counsel to file a proper brief. On May 24, the Clerk of this Court notified counsel that the appellant’s brief was overdue and instructed counsel to file a brief or extension request within ten days. To date, no brief or extension request has been filed. Therefore, we abate this cause to the trial court with instructions to hold a hearing to determine: (1) why a proper brief has not been filed on Fewins’s behalf; (2) whether her attorney has abandoned the appeal; (3) whether Fewins still desires to proceed with the appeal; and (4) whether Fewins desires to represent herself. See Tex.R.App. P. 38.8(b)(3).

If the court determines that counsel is unable or unwilling to comply with this Court’s directives, the court should consider appointing other counsel to represent Fewins. See TexCode Ceim. PROC. Ann. art. 26.04(j)(2) (Vernon Supp.2004-2005). In a similar manner, if the court determines that counsel has abandoned the appeal, the court must appoint other counsel.

If Fewins no longer wishes to pursue an appeal, she must sign and file a written withdrawal of her notice of appeal. See Tex.R.App. P. 42.2; McClain v. State, 17 S.W.3d 310, 311 (Tex.App.Waco 2000, no pet.).

If Fewins expresses a desire to proceed pro se, the trial court shall admonish her on the record “of the dangers and disadvantages of self-representation.” Tex. Code Ceim. PROC. Ann. art. 1.051(g) (Vernon 2005). If the court determines that she has voluntarily and intelligently waived her right to counsel, the court shall require her to execute a written waiver of counsel which substantially complies with article 1.051(g). Id.

Because the trial court must admonish Fewins on the record regarding her right to self-representation and because the court must ascertain whether Fewins still desires to prosecute her appeal and determine whether any waiver of counsel is voluntarily and intelligently made, Fewins must be afforded an opportunity to personally participate in the abatement hearing. This does not necessarily mean, however, that she must personally appear at the hearing.

Frequently in civil litigation involving prison inmates, trial courts permit the inmates to participate in hearings via teleconference. See In re Z.L.T., 124 S.W.3d 163, 165-66 (Tex.2003). We are aware of no reason why a similar procedure could not be employed here. Cf. Webb v. State, 533 S.W.2d 780, 784 (Tex.Crim.App.1976) (pro se criminal appellant has no right to appear before appellate court and present argument). Any paperwork (e.g., waiver of appeal or waiver of counsel) could be completed through the mail. These of course are matters we leave to the discretion of the trial court.

As stated hereinabove, we are instructing the trial court to determine in part whether Fewins desires to represent herself. However, some courts have recently concluded that a criminal appellant has no right to self-representation. We do not agree with these courts because article 1.051 of the Code of Criminal Procedure plainly provides for a right of self-representation.

In Faretta v. California, the Supreme Court of the United States held that a criminal defendant has a Sixth Amendment right to represent himself. 422 U.S. 806, 832, 95 S.Ct. 2525, 2539-40, 45 L.Ed.2d 562 (1975). To exercise this right, the record must reflect that the defendant has been “made aware of the dangers and disadvantages of self-representation” so that he can “voluntarily and intelligently” waive his right to counsel. See id. at 835, 95 S.Ct. at 2541.

The Court of Criminal Appeals extended the Sixth Amendment right of self-representation recognized in Faretta to appeals. See Hathorn v. State, 848 S.W.2d 101, 122-23 (Tex.Crim.App.1992); Webb, 533 S.W.2d at 783. However, the Court has also clarified that article I, section 10 of the Texas Constitution does not confer the right of self-representation afforded by the Sixth Amendment under Faretta. See Landers v. State, 550 S.W.2d 272, 277 (Tex.Crim.App.1977); Glenn v. State, No. 03-03-00212-CR, 2003 Tex.App. LEXIS 7082 at **2-3 & n.3 (Tex.App.-Austin Aug. 6, 2003, order) (not designated for publication); Hadnot v. State, 14 S.W.3d 348, 350 (Tex. App.-Houston [14th Dist.] 2000, order); Cain v. State, 976 S.W.2d 228, 235 (Tex. App.-San Antonio 1998, no pet.).

The Legislature adopted article 1.051 in 1987. See Act of May 30, 1987, 70th Leg., R.S., ch. 979, § 1, 1987 Tex. Gen. Laws 3321, 3321-22 (amended 2001) (current version at Tex.Code CRiM. Peoc. Ann. art. 1.051 (Vernon 2005)). Article 1.051(d) provides in pertinent part:

(d) An eligible indigent defendant is entitled to have the trial court appoint an attorney to represent him in the following appellate ... matters:
(1) an appeal to a court of appeals; [and]
(2) an appeal to the Court of Criminal Appeals if the appeal is made directly from the trial court or if a petition for discretionary review has been granted[.]

Tex.Code CRiM. PROC. Ann. art. 1.051(d)(1), (2).

Subsection (f) then provides that a defendant may waive the right to counsel. Id. art. 1.051(f). Finally, subsection (g) requires a trial court to advise a defendant who wishes to waive his right to counsel “of the dangers and disadvantages of self-representation,” and determine whether “the waiver is voluntarily and intelligently made.” Id. art. 1.051(g).

In Burgess v. State, the Court of Criminal Appeals observed, “[W]e must presume that in enacting Article 1.051(g), supra, the Legislature intended to accommodate the Sixth Amendment right to self-representation.” 816 S.W.2d 424, 431 n. 3 (Tex.Crim.App.1991). The Court later observed:

the evident purport of article 1.051(c) insofar as it directs the trial judge to appoint counsel ‘if an indigent defendant is entitled to and requests appointed counsel’ is twofold. It first means that an accused is not entitled to have counsel provided at government expense unless he can prove that he is indigent. It also means that counsel will not be appointed to represent him in any case unless he wishes it.

Oliver v. State, 872 S.W.2d 713, 715 (Tex.Crim.App.1994) (citing Faretta and Burgess ) (other citations omitted).

In Martinez v. Court of Appeal of California however, the Supreme Court of the United States held that the Sixth Amendment right of self-representation recognized in Faretta does not extend to a “direct appeal from a criminal conviction.” 528 U.S. 152, 163, 120 S.Ct. 684, 692, 145 L.Ed.2d 597 (2000). Nevertheless, the Court hastened to add that its holding does not prevent states from recognizing a right to self-representation on appeal. Id. This is precisely what the Texas Legislature had already done when it enacted article 1.051. See Oliver, 872 S.W.2d at 715; Burgess, 816 S.W.2d at 431 n. 3.

The plain language of this statute cannot now be ignored merely because the decisions which served as its genesis have since been disavowed insofar as they found a constitutional right to self-representation on appeal.

Nevertheless, two intermediate appellate courts in Texas have explicitly concluded that a criminal appellant has no statutory right to self-representation. See e.g. Crawford v. State, 136 S.W.3d 417, 418 (Tex.App.-Corpus Christi 2004, order) (“The Texas Code of Criminal Procedure does not include a right to appellate self-representation.”); Cormier v. State, 85 S.W.3d 496, 498 (Tex.App.-Houston [1st Dist.] 2002, order) (same). However, neither court referred to article 1.051 and its history, nor did either cite any other authority to support this bold yet unsubstantiated assertion.

This Court and others have stated that a criminal appellant has no “constitutional right” to self-representation, without discussing article 1.051. See e.g. Sickles v. State, No. 10-04-00258-CR, slip op. at 1 (Tex.App-Waco June 15, 2005, order) (not designated for publication) (“Sickles does not have a constitutional right to represent himself on appeal.”); Glenn, 2003 Tex.App. LEXIS 7082 at *3 (“We conclude there is no state constitutional right of self-representation on appeal.”); Hadnot, 14 S.W.3d at 350 (“criminal appellants are not entitled, either by the state or federal constitution, to self-representation on direct appeal”); but cf. Martinez v. State, 163 S.W.3d 88, 90 & n. 1 (Tex.App.-Amarillo 2004, order) (issue of whether a criminal appellant has a state constitutional right of self-representation remains unclear in light of Webb). Of course this conclusion is unremarkable, as it is wholly consistent with the Supreme Court’s decision in Martinez and the Court of Criminal Appeals’ decision in Landers.

Article 1.051(d) provides that an indigent criminal appellant has the right to appointed counsel. Subsection (f) of that same statute provides that an indigent criminal appellant may waive that right (and thus represent himself). Any other interpretation of these statutory provisions would strain them beyond their intended meaning.

Therefore, when this Court abates an appeal because counsel has not timely filed a brief on the appellant’s behalf, we shall continue our current practice of giving the appellant the option of deciding whether he wishes to represent himself, which is a right he possesses under article 1.051(f).

The trial court shall, within thirty days after the date of this Order: (1) conduct the hearing; (2) cause a court reporter to make a record of the hearing; (3) make appropriate orders and findings of fact and conclusions of law; and (4) deliver any orders and findings of fact and conclusions of law to the trial court clerk. The trial court shall inform Fewins’s counsel, or Fewins herself if pro se, that her brief is due within thirty days after the date of the hearing.

The trial court clerk shall: (1) prepare a supplemental clerks record containing all orders and findings of fact and conclusions of law which the trial court renders or makes; and (2) file the supplemental clerks record with the Clerk of this Court within forty-five days after the date of this Order.

The court reporter shall prepare and file a supplemental reporter’s record containing a transcription of the hearing within forty-five days after the date of this Order.

Chief Justice GRAY concurring.

TOM GRAY, Chief Justice,

concurring.

Everything after the first paragraph in the foregoing order is dicta.

OBITUARY

The concept in the common law known as stare decisis, by which it is recognized that a court should follow its prior rulings, unless deciding a case under the narrow circumstances when a court decides to overrule its precedent, died in this district today after a lengthy illness. On June 15, 2005, this Court issued a unanimous order contrary to the extensive discussion regarding pro se representation in its order in this case. Sickles v. State, No. 10-04-00258-CR (Tex.App.-Waco June 15, 2005, order)(not designated for publication) (attached Appendix A). This prior holding was called to the Court’s attention, but it was ignored. Further, in Sickles, id., the issue controlled the disposition of the order and, thus, was based on the merits of the issue. In the majority’s order, we have no reason to believe that Fewins wants to represent herself and we should not engage in this extensive discussion when it is irrelevant to the disposition.

If the extensive discussion had any relevance to the order of abatement, I would have to dissent. But because an abatement to conduct a hearing to determine why no brief has been filed is what needs to happen, I concur.

APPENDIX A

This Appendix is from Sickles v. State, No. 10-04-00258-CR (Tex.App.-Waco June 15, 2005, order)(not designated for publication)

ORDER

Sickles’s counsel has filed in this Court a motion to withdraw as counsel. Counsel attached 1) a letter from Sickles requesting his withdrawal and 2) a copy of a motion for self representation signed by Sickles. Sickles also filed a motion to represent himself on appeal. Both motions are denied.

Sickles does not have a constitutional right to represent himself on appeal. See Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 163-64, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). At least two courts of appeals have determined that there is no right for an appellant in a criminal case to represent himself on appeal. See Cormier v. State, 85 S.W.3d 496, 498 (Tex.App.-Houston [1st Dist.] 2002, order); see also Crawford v. State, 136 S.W.3d 417, 418 (Tex.App.-Corpus Christi 2004, order). In determining whether to grant Sickles’s request for self-representation, we consider whether the interests of Sickles, the State, and the administration of justice would be best served by Sickles’s self-representation. Id.

Counsel represented in correspondence that he has done a considerable amount of work on this appeal, but does not want to jeopardize Sickles’s right to represent himself on appeal. We have reviewed the legal materials filed by Sickles and determine that it is in the best interest of Sickles, the State, and the administration of justice if Sickles continues this appeal represented by counsel.

Accordingly, we deny counsel’s request to withdraw and Sickles’s motion to represent himself. This appeal will proceed with Sickles being represented by counsel. Sickles’s brief is due 25 days from the date of this order.

* “(Justice VANCE concurs with a note. This order does not fully explain how it discounts Court of Criminal Appeals authority, cited by counsel, saying that a defendant has the right to represent himself on appeal. See Webb v. State, 538 S.W.2d 780, 784-85 (Tex.Crim.App.1976) (‘We hold here that the right of an accused to reject the services of counsel and instead represent himself extends beyond trial into the appellate process.... Regardless of the point in the appellate process at which an appellant chooses to assert his right of self-representation, he will be required to comply with all relevant rules of appellate procedure set forth in our Code of Criminal Procedure.”); Hubbard v. State, 739 S.W.2d 341, 345 (Tex.Crim.App.1987) (“[W]e now hold that appellant timely asserted his right of self-representation .... We now remand the appeal to the Court of Appeals and instruct them to direct the trial court to hold a hearing during which the trial court must make the appellant aware of the dangers and disadvantages of self-representation and the trial court must develop evidence as to whether appellant’s apparent decision to relinquish benefits associated with counsel and to proceed pro se is knowingly and intelligently made.”). Cor-mier notes that these two cases were decided by the Court of Criminal Appeals before the Martinez case, decided by the U.S. Supreme Court in 2000, said that the states are clearly within their discretion to conclude that the government’s interests in the fair and efficient administration of justice outweigh the invasion of the appellant’s interest in self-representation. But Martinez has been cited by the Court of Criminal Appeals in a footnote. Scheanette v. State, 144 S.W.3d 503, 510 n. 2 (Tex.Crim.App.2004) (“neither does [Appellant] have a constitutional right to represent himself on direct appeal.”). Crawford says: “Therefore, we review requests for self-representation in appeals from criminal convictions on a case-by-case basis, considering the best interests of the appellant, the State, and the administration of justice.” Applying those factors, I concur in the order.)”

      . Anders v. Cal., 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Fewins’s counsel filed a combined “Motion to Withdraw and Anders Brief in Support.” However, this Court does not have the authority to grant appointed counsel’s motion to withdraw. Sowels v. State, 45 S.W.3d 690, 692 (Tex.App.-Waco 2001, no pet.).

      . Article I, § 10 provides in pertinent part, "In all criminal prosecutions the accused shall have ... the right of being heard by himself or counsel, or both_” Tex. Const. art. I, § 10.

      . Although the Court spoke of a right to self-representation under a state's constitution, there is no reason a state cannot fashion that right by statute.