author: PHYLIS J. SPEEDLIN, Justice.

text:
    MG BUILDING MATERIALS, LTD., Appellant, v. MOSES LOPEZ CUSTOM HOMES, INC., Appellee.
    No. 04-04-00336-CV.
    Court of Appeals of Texas, San Antonio.
    July 27, 2005.
    Rehearing Overruled Aug. 16, 2005.

      David R. Montpas, Barry G. Benton, Glast, Phillips & Murray, San Antonio, for appellant.
    Paul T. Curl, Paul T. Curl, a Professional Corporation, San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

MG Building Materials, Ltd. appeals a final judgment rendered against it in a suit by a homebuilder to foreclose the builder’s statutory mechanic’s lien and for damages based on breach of contract and promissory estoppel. Because we conclude the homebuilder had assigned all of its rights, privileges, and equities associated with the residential construction contract, we reverse the trial court’s judgment as to the mechanic’s lien and affirm the remainder of the judgment.

Factual and Procedural BACKGROUND

Douglas and Ana Gonzales (collectively, “Gonzales”) entered into a new home contract with Moses Lopez Custom Homes, Inc. (“Lopez”), a custom homebuilder, to purchase a lot and construct a new home for the total sales price of $120,740.00. The contract, although not dated, was executed on or about October 30, 2001, and specified that Lopez would complete all improvements in accordance with the homeowner’s blueprints, would complete construction within eight months, and would be allowed six draws for working capital and construction overhead.

Gonzales subsequently selected MG Building Materials, Ltd. (“MG”) to provide interim financing for the construction project. On November 20, 2001, Gonzales executed a series of documents. Gonzales signed a real estate hen note payable to MG in the amount of $143,740.00 to fund construction of the home. To secure the note, Gonzales signed a construction deed of trust and security agreement through which Gonzales transferred title to the home and real property to a trustee, with MG as the beneficiary. In addition, Gonzales executed a mechanic’s Ken contract with Lopez in the amount of $120,740.00, in which Lopez agreed “to furnish the materials and labor and to complete the Construction on the Property on or before the Completion Date.” The mechanic’s Ken contract further provided, “[t]o secure payment of the Note, Owner [Gonzales] grants to Contractor [Lopez] a mechanic’s, artisan’s and materialman’s Ken on the Property and on all improvements and fixtures on the Property at any time.” Finally, Lopez simultaneously executed an assignment of Ken in favor of MG which transferred and assigned to “the Lender [MG] all of Contractor’s [Lopez’s] rights, privileges and equities under and by virtue of the indebtedness, Ken and Mechanic’s Lien Contract.”

Lopez began construction on the Gonzales home in December 2001. Between December 2001 and February 2003, Lopez submitted six draw requests to MG for payments to cover the completed stages of construction. All of these draw requests were processed and paid by MG. In March 2003, Lopez submitted his seventh and final draw request in the amount of $17,044.51 to cover the costs of completing the home. At the time the request was submitted, only $4,683.87 remained under the Gonzales’ note. MG issued a check for $4,683.87, but gave it to Alamo Title Company to hold in escrow until Lopez and Gonzales reached an agreement on payment of the final draw request in excess of the funds available under the note.

Because of their pending divorce, Mr. and Mrs. Gonzales never obtained permanent financing to close on the home and defaulted on their note to MG. As a result, MG never released the escrowed $4,683.87 to Lopez. MG posted the Gonzales residence for foreclosure, and foreclosed its deed of trust lien on April 1, 2003. Prior to that foreclosure, however, on March 28, 2003, Lopez filed an “Original Contractor Affidavit of Claim for Mechanic’s Lien” in the amount of its final draw request for $17,044.51. Lopez then filed suit on March 31, 2003, seeking foreclosure of the mechanic’s lien and damages against MG for breach of contract and promissory es-toppel. Prior to trial, Lopez successfully obtained a partial summary judgment foreclosing its lien against the removable improvements at the Gonzales’ residence. Lopez and MG then proceeded to trial before a jury on the remaining issues. The trial court submitted special issues to the jury on breach of contract, promissory estoppel, and Lopez’s attorney’s fees. The jury answered all questions in favor of Lopez.

The trial court entered judgment in favor of Lopez incorporating both the partial summary judgment and the jury’s verdict. MG now appeals from that final judgment claiming the trial court erred in foreclosing Lopez’s mechanic’s lien because the lien had been assigned to MG, and challenging the sufficiency of the evidence to support the jury’s verdict on breach of contract, promissory estoppel, and attorney’s fees.

PARTIAL SUMMARY JUDGMENT ON LlEN CLAIM

The first issue presented by MG is whether the trial court erred in granting partial summary judgment foreclosing Lopez’s statutory lien and ordering the sale of eight removable items located on the Gonzales property. Because rendition of summary judgment involves a question of law, we review the trial court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). The movant for a traditional summary judgment must show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law on a ground expressly set forth in the motion. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). When reviewing a summary judgment, we take all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 548-49. If the movant establishes its right to summary judgment as a matter of law, the burden then shifts to the non-movant to raise a fact issue that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

Lopez filed a traditional motion for partial summary judgment on the ground that it had perfected a statutory mechanic’s and materialman’s lien on the Gonzales residence and was entitled to foreclosure as a matter of law. In support of its motion, Lopez attached the affidavit of Moses Lopez, president of Moses Lopez Custom Homes, Inc., stating in relevant part that: (1) his company had entered into a “New Home Contract” with Gonzales on October 30, 2001 to construct a residence in Atasco-sa County, Texas; (2) his company was owed $17,044.51 under the final draw request on the Gonzales residence (consisting of $12,044.51 in unreimbursed expenses and $5,000.00 in builder’s fees); (8) he had signed and timely filed in the Atas-cosa County real property records an “Original Contractor Affidavit of Claim for Mechanic’s Lien” on March 28, 2003; and (4) he was familiar with the Gonzales house and eight items were “installed at the Gonzales residence [that] can be removed without damage to the items themselves or to the residence.” A “Certified Contractor Affidavit of Claim” was also attached as summary judgment evidence.

Lopez’s summary judgment motion, supporting affidavit, and affidavit of claim set forth its status as an original contractor under the Texas mechanic’s lien statute. See Tex. PhopUode Ann. § 53.021(a)(2)(Vernon Supp.2004-2005). The summary judgment evidence further established a home construction contract between Lopez and Gonzales, work done by Lopez under the contract, the amount of payments outstanding, the location of the property, the supplying of qualified labor and materials by Lopez, and Lopez’s perfection of the lien. See id.; Tex. PROP. Code Ann. § 53.054 (Vernon Supp.2004-2005) (listing contents of affidavit required to perfect hen); see also CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 248 (Tex.2002) (Hankinson, J. dissenting) (fisting elements of proof to establish lien once suit is filed). Finally, the summary judgment affidavit of Moses Lopez established his familiarity with the Gonzales residence and the presence of eight specific items installed at the residence that could be removed without damage. See Tex. PROp.Code Ann. § 53.022(a) (Vernon 1995); see also First Nat’l Bank in Dallas v. Whirlpool Corp., 517 S.W.2d 262, 266 (Tex.1974) (statutory lien claim extends to removable personal property that has been incorporated into structure). As our rules require, the summary judgment proof offered by Lopez is clear, positive and direct, is credible and free from contradictions and inconsis-tences, and could have been readily controverted by MG. Tex.R. Civ. P. 166a (c). Accordingly, Lopez met its initial burden of establishing its right to foreclose its statutory mechanic’s lien against the removable improvements on the Gonzales property. The burden thus shifted to MG to raise a material fact issue that would preclude summary judgment. Clear Creek, 589 S.W.2d at 678.

In its response to Lopez’s motion for summary judgment, MG challenged none of Lopez’s summary judgment evidence. Instead, MG argued that Lopez had transferred and assigned to MG any and all lien rights securing its payment for work performed under the mechanic’s lien contract. As summary judgment evidence, MG filed certified copies of the mechanic’s lien contract between Gonzales and Lopez, and the assignment of lien signed by Lopez in favor of MG, which were both executed on November 20, 2001 and filed in the Atasco-sa County real property records.

An assignment generally transfers some right or interest from one person to another. See Univ. of Tex. Med. Branch at Galveston v. Allan, 777 S.W.2d 450, 452 (Tex.App.-Houston [14th Dist. ]1989, no writ); see also Restatement (Second) of ContRacts § 317(1) (1981) (“[a]n assignment of a right is a manifestation of the assignor’s intention to transfer it by virtue of which the assignor’s right to performance by the obligor is extinguished ... and the assignee acquires a right to such performance”). The right to assert a mechanic’s and materialman’s lien may be assigned. See William, J. Burns Int’l Detective Agency, Inc. v. Gen. Elec. Supply Co., 413 S.W.2d 775, 777 (Tex.Civ.App.-Texarkana 1967, no writ); see also Wortham v. Trane Co., 432 S.W.2d 520, 520 (Tex.1968). When construing a written assignment, we apply the rules of interpretation and construction applicable to contracts. Cadle Co. v. Henderson, 982 S.W.2d 543, 546 (Tex.App.-San Antonio1998, no pet.). Our primary goal is to ascertain the intent of the parties as it is expressed in the written assignment. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). In order to accomplish that objective, we examine and consider the entire writing in an effort “to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.” Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 158 (1951). Under settled rules of contract construction, if the written assignment can be given a definite legal meaning, then it is not ambiguous and the court will construe the assignment as a matter of law. Id. at 157. Ambiguity is a question of law for the court to decide by examining the contract as a whole in the context of the circumstances present when the contract was executed. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983). When a contract contains an ambiguity, summary judgment is improper because the interpretation of the contract becomes a fact issue. Id.

Here, the parties agree • that they entered into. a written assignment and that the terms of the assignment are not ambiguous. The parties disagree, however, about the scope of the assignment. MG contends Lopez had no lien to foreclose against the Gonzales property because Lopez had transferred and assigned all of its lien rights to MG. Lopez responds that it only assigned the “contractual lien” created by the mechanic’s lien contract, and retained a statutory hen. Lopez asserts that its foreclosure suit was based on a separate “statutory hen” that arose by operation of law and that was never assigned to MG. By finding no genuine issues of material fact and rendering partial' summary judgment in favor of Lopez, the trial court agreed with Lopez. For the reasons set forth below, we disagree and reverse the trial court’s grant of partial summary judgment.

The record before us estabhshes that Gonzales initially signed a contract with Lopez to purchase a lot and construct a new home for the total sales price of $120,740.00. This “New Home Contract” specifically contemplated that Gonzales would seek and obtain financing for the new home. Approximately three weeks later, Gonzales and Lopez signed a “Mechanic’s Lien Contract” which set forth the terms of the financing to be provided by MG, and granted Lopez a “mechanic’s, artisan’s, and materialman’s hen on the Property and on all improvements and fixtures on the Property at any time.” On the same day, and before delivery of any material or commencement of any work, Lopez executed an “Assignment of Lien” in favor of MG. The assignment reads in pertinent part:

[Lopez] ... has sold and conveyed, and does by these presents sell and convey to [MG] that certain Mechanic’s Lien Contract ... and the liens and security interests against the following described real property ... together with all materials, supplies, equipment and fixtures incorporated and to be incorporated thereon whether located on the aforesaid real property or elsewhere, to secure the payment of all indebtedness owed under that certain Mechanic’s Lien Note of even date herewith ... and [Lopez] does hereby TRANSFER AND ASSIGN unto [MG] all of [Lopez’s] rights, privileges and equities under and by virtue of the indebtedness, Hen and the Mechanic’s Lien Contract.

The plain language of the assignment conveys to MG: (1) the mechanic’s Hen contract between Lopez and Gonzales; (2) “Hens and security interests” against the Gonzales home and “all materials, supplies, equipment and fixtures incorporated and to be incorporated thereon.” The assignment further transfers and assigns to MG all of Lopez’s “rights, privileges and equities under and by virtue of the indebtedness, Hen and the Mechanic’s Lien Contract.” The words used in the assignment are broad in scope, encompassing “all materials, suppHes and fixtures,” “incorporated and to be incorporated,” and “all of Contractor’s rights, privileges and equities.” Accordingly, we hold that the intent of the parties as expressed in the written assignment was to transfer and assign to MG aH Hen rights that Lopez possessed by virtue of its status as an original contractor for the Gonzales home.

We further hold that Lopez can not avoid the effect of this broad assignment by arguing that it only assigned the Hen created by the mechanic’s Hen contract, and did not assign its right to assert a statutory Hen under the pre-existing new home contract. In order to establish a statutory Hen, Lopez had to prove it provided labor or materials under a contract with the owner. See Tex. PROP.Code Ann. § 53.021(a)(2). It is undisputed that both contracts at issue in this suit, the new home contract and the mechanic’s Hen contract, employed Lopez to construct the Gonzales residence. Both contracts involved the same new home construction, the same real property, the same contract price, and the same Hen and indebtedness. When deaHng with two documents comprising a single agreement, a court should read and construe them together. Mem’l Med. Ctr. of East Texas v. Keszler, 943 S.W.2d 433, 434 (Tex.1997); see also Jones v. Kelley, 614 S.W.2d 95, 98 (Tex.1981) (separate instruments executed at the same time, for the same purpose, and in the course of the same transaction are to be considered as one instrument and construed together). It is further undisputed that at the time Lopez executed the assignment of Hen in favor of MG, no work had begun on the Gonzales construction. Therefore, we conclude that when Lopez assigned to MG “all of Contractor’s rights, privileges and equities under and by virtue of the indebtedness, Hen and the Mechanic’s Lien Contract,” it intended to assign to MG whatever right it might have to assert a future Hen claim associated with the construction of the Gonzales home, whether by virtue of the new home contract or the mechanic’s Hen contract. Accordingly, once it executed the assignment in favor of MG, Lopez no longer had the right to enforce a mechanic’s or materialman’s Hen for its own benefit. See Wortham, 432 S.W.2d at 520 (laborer may perfect mechanic’s Hen after assignment, but Hen only benefits assignee regardless of whether assignor was acting as agent of assignee). Because we conclude that Lopez assigned to MG all rights to assert a mechanic’s and materialman’s Hen claim involving the con-

struction of the Gonzales home, we hold the trial court erred in granting partial summary judgment in favor of Lopez and ordering the foreclosure sale of the removable improvements. We therefore reverse the trial court’s judgment to the extent that it orders foreclosure of Lopez’s mechanic’s and materialman’s lien in the amount of $17,044.51, plus interest.

BReach of Contract and PROMISSORY Estoppel

In its next four issues, MG complains the evidence is legally and factually insufficient to support the jury’s findings of breach of contract and promissory estop-pel. When a party not bearing the burden of proof on an issue challenges the legal sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s finding, disregarding all evidence and inferences to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). If more than a scintilla of evidence supporting the finding exists, we uphold the finding. Id. When reviewing a factual sufficiency challenge, we examine the entire record to determine whether the evidence supporting the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).

Both the breach of contract and promissory estoppel claims against MG were founded in part upon a letter written by MG’s counsel, Barry Benton, in connection with the settlement of an unrelated lawsuit filed by Alfredo and C. Linda Garcia. MG argues on appeal that the court erred in admitting the settlement letter because it is not relevant to the issues in this lawsuit, and, alternatively, because it is part of a settlement agreement and therefore inadmissible under Texas Rule of Evidence 408. Tex.R. Evid. 408 (evidence of compromise or offers of compromise are inadmissible to prove liability for or invalidity of the claim or its amount). MG further argues that, even if admissible, the letter standing alone is not a valid and enforceable contract, and MG was not obligated to fund Lopez’s final draw request based on any promise stated in the letter because certain conditions precedent had not been met.

The subject letter, dated January 3, 2003, from MG’s attorney to Lopez’s attorney states in relevant part:

In connection with the settlement by and between Alfredo G. Garcia and C. Linda Garcia ... and Moses Lopez Custom Homes, Inc. and MG Building Materials, Ltd., MG agrees, and will immediately inform Douglas and Ana Gonzalez (sic) ... in writing, that the foreclosure sales previously noticed by MG for January 7, 2003 will not occur, and that no such sales will occur prior to February 4, 2003.... MG further agrees to promptly process for payment any additional draw requests pertaining to the Gately and Gonzalez (sic) residences, and to pay such further requests within two business days after approval of each draw request by inspection.

The letter is relevant and material to Lopez’s claims in this lawsuit that MG agreed to promptly process and fund draw requests upon approval, and that MG failed to comply with that agreement. See Tex.R. Evid. 401 (relevant evidence is that which has a tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence). The letter is therefore admissible under Rule 402. Tex.R. Eved. 402.

The purpose of Rule 408 is to encourage settlement of disputed claims. See State Farm Mut. Auto. Ins. Co. v. Wilborn, 885 S.W.2d 260, 261 (Tex.App.Houston [14th Dist.] 1992, orig. proceeding) (settlement offers are excluded to allow a party to “buy his peace and encourage settlement of claims outside the courthouse”). Under Rule 408, the parties to the Garcia lawsuit would be prevented from introducing the existence and terms of any proposed settlement agreement between them for the purpose of establishing a party’s liability in the event the case proceeded to trial. Tex.R. Evid. 408; see also Ford Motor Co. v. Leggat, 904 S.W.2d 648, 649 (Tex.1995) (orig.pro-eeeding). Settlement agreements and offers may be admissible for purposes other than establishment of liability, such as to demonstrate bias or prejudice of a party or witness, or, as here, to establish the existence of a promise or agreement made by a non-party to the settled lawsuit. See Ochs v. Martinez, 789 S.W.2d 949, 959-60 (Tex.App.-San Antonio 1990, writ denied). The burden is on the party objecting to the evidence to show that it was not offered for some other valid purpose permitted by Rule 408. Haney v. Purcell Co., 796 S.W.2d 782, 790 (Tex.App.-Houston [1st Dist.] 1990, writ denied). We review the trial court’s determination that the evidence was offered for another valid reason, and was therefore not excluded by Rule 408, for abuse of discretion. Tatum v. Progressive Polymers, Inc., 881 S.W.2d 835, 837 (Tex.App.-Tyler 1994, no writ). Here, the settlement letter was offered to show that MG made an agreement to promptly process and pay Lopez’s draw requests. It was not offered to show that MG made the agreement in recognition of its Lability on Lopez’s claims. Accordingly, the trial court did not abuse its discretion in determining that the letter was offered for a valid purpose, and therefore was not excluded by Rule 408.

The case was submitted to the jury on alternative theories of breach of contract and promissory estoppel. The jury answered affirmatively on both. Therefore, we will affirm the judgment if the record includes sufficient evidence on either claim. See, e.g., Regency Advantage, L.P. v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex.1996). The elements of a breach of contract claim are: (1) a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. McLaughlin, Inc. v. Northstar Drilling Tech., Inc., 138 S.W.3d 24, 27 (Tex.App.-San Antonio 2004, no pet.). MG initially contends that the settlement letter does not represent a valid contract because it does not show acceptance by Lopez and because the letter was not signed by Lopez or its counsel. A valid and enforceable contract is formed by an offer, an acceptance, a meeting of the minds, and an expression of the terms with sufficient certainty so that there is no doubt regarding the parties’ intentions. Harris v. Balderas, 27 S.W.3d 71, 77 (Tex.App.-San Antonio 2000, pet. denied). Consideration is also an essential element of any valid contract. Copeland v. Alsobrook, 3 S.W.3d 598, 604 (Tex.App.-San Antonio 1999, pet. denied). At trial, the settlement letter was offered as evidence of MG’s agree"ment to promptly process and fund Lopez’s pending and future draw requests in exchange for Lopez’s agreement to relinquish its hen against the Garcia property. A contract containing mutual obligations that has been reduced to writing and signed by one of the parties can be accepted by the non-signing party by their conduct, thus making it a binding agreement on both parties. Hearthshire Braeswood Plaza Ltd. P’ship v. Bill Kelly Co., 849 S.W.2d 380, 392 (Tex.App.-Houston [14th Dist.] 1993, writ denied); see also Velasquez v. Schuehle, 562 S.W.2d 1, 3 (Tex.Civ.App.-San Antonio 1977, no writ). Mr. Lo pez testified that MG’s commitment in the letter to process and fund his draw requests was very important to him because it allowed him to continue construction on the Gately and Gonzales residences with some expectation that he would be able to regain the losses he sustained on the Garcia home. He stated that he relied on MG’s promise and would not have gone forward with completion of the Gately and Gonzales homes absent that agreement from MG. In addition, the jury heard testimony from Barry Benton, attorney for MG, that he anticipated, intended, and hoped that Lopez would rely on his agreement. Pursuant to the settlement letter, Lopez released its lien against the Garcia property and continued with the construction already underway on the Gately and Gonzales residences with the expectation that the costs would eventually be recovered by MG funding its draw requests. Likewise, MG funded Lopez’s draw requests which were pending at the time of the agreement. The terms of the agreement are straightforward and both parties’ actions leave no doubt regarding their intent to be bound by the agreement. We conclude that the evidence of a valid and enforceable contract is legally and factually sufficient.

MG further argues that, even if there is sufficient evidence of a contract, MG was not obligated to comply with the agreement because the conditions precedent to its obligation had not been met. The process by which Lopez normally received payment for his work involved several steps. Lopez would complete a stage of construction and then, once it was completed, would submit a draw request to MG for payment of the completed work. MG would then order an inspection of the work that Lopez claimed to have completed. Following the inspection, the work also had to be approved by the homeowner, in this case Gonzales, before MG would fund Lopez’s draw request. MG claims that the inspection and homeowner approval preconditions were never met with respect to Lopez’s final draw request.

In Lopez’s first amended petition, Lopez alleged that “[a]ll conditions precedent to this action have been performed or have occurred.” In response, MG filed a general denial accompanied by special exceptions, affirmative defenses, and a counterclaim. MG, however, did not specifically deny that all conditions precedent had occurred; therefore, Lopez was not required to prove the occurrence of conditions precedent to MG’s obligation. See Tex.R. Civ. P. 54.

Based on the record, we hold the evidence is both legally and factually sufficient to support the jury’s finding that MG failed to comply with its agreement to pay construction draws on the Gonzales residence. Accordingly, we affirm that portion of the trial court’s judgment awarding Lopez the sum of $4,683.87, plus interest, from MG based on breach of contract.

Attorney’s Fees

In its sixth issue, MG challenges the trial court’s award of attorney’s fees to Lopez based on its contention that Lopez was not entitled to prevail on either its mechanic’s lien claim or its suit for damages. We agree in part. The jury’s verdict segregated the attorney’s fees awarded to Lopez. The verdict reflects an award of attorney’s fees of $16,320 on Lopez’s lien claim; $8,160 on Lopez’s claim for damages; and $2,000 for post-trial representation. Because we reverse the trial court’s judgment with respect to foreclosure of Lopez’s mechanic’s hen, we also reverse the trial court’s award of attorney’s fees on the hen claim. See State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex.1995). However, because we affirm Lopez’s recovery of damages based on breach of contract, we also affirm the remaining attorney’s fees awarded. Therefore, the trial court’s judgment is reversed as to the award of $16,320 in attorney’s fees, and affirmed as to the remaining attorney’s fees awarded.

Agreement to Indemnify

In its eighth and final issue, MG contends that even if Lopez has any vahd claims, Lopez is prevented from recovering on them pursuant to a provision in the assignment of lien stating that Lopez agrees to hold MG “harmless from any loss, claim, or expense” incurred in connection with Lopez’s construction of the Gonzales home. Both MG and Lopez characterize the provision as an indemnity agreement. MG asserts that the indemnity provision includes any claims brought by Lopez against MG, while Lopez asserts the indemnity provision is not a release and only indemnifies MG against claims brought by third parties. We agree with Lopez.

An indemnity agreement is a promise by the indemnitor to safeguard or hold the indemnitee harmless against existing or future loss or liability, or both. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex.1993); see also Wallerstein v. Spirt, 8 S.W.3d 774, 779 (Tex.App.-Austin 1999, no pet.); Derr Constr. Co. v. City of Houston, 846 S.W.2d 854, 858 (Tex.App.-Houston [14th Dist.] 1992, no writ). An indemnity provision does not apply to claims between the parties to the agreement, but obligates the indemnitor to protect the indemnitee against claims brought by third parties. Derr, 846 S.W.2d at 858. An indemnity agreement creates a potential cause of action in the indemnitee. Dresser, 853 S.W.2d at 508. A release, on the other hand, is an agreement by one party to surrender its own cause of action against the other party. Id.; see also Lloyd v. Ray, 606 S.W.2d 545, 547 (Tex.Civ.App.-San Antonio 1980, writ refd n.r.e.). A release extinguishes any claim the releasor might have against the releasee without regard to the releasee’s liability to third parties. Derr, 846 S.W.2d at 858. A release is designated as an affirmative defense and must be pled. Tex.R. Civ. P. 94; Dresser, 853 S.W.2d at 508. Typical indemnity language is “indemnify, save, protect, save/hold harmless.” Derr, 846 S.W.2d at 859. Typical release language is “release, discharge, relinquish.” Id.

The language used in the assignment of hen provision providing that Lopez agreed to “hold MG harmless” from any loss, claim, or expense arising out of construction of the Gonzales home constitutes an indemnity agreement, not a release; consequently, the provision did not release MG from liability on Lopez’s claims. We overrule MG’s eighth issue.

Conclusion

Based on the foregoing analysis, we reverse the trial court’s judgment granting foreclosure of Lopez’s mechanic’s and ma-terialman’s hen in the amount of $17,044.51, plus pre-and post-judgment interest, and the award of $16,320 in attorney’s fees with respect to this claim. In all other respects, we affirm the trial court’s judgment.

      . The eight items were listed as: air conditioning and heating units; interior doors; appliances; interior and exterior light fixtures; toilets; sinks and plumbing fixtures; ceiling fans; and mirrors.

      . Lopez maintains that it sought to foreclose a "statutory lien” perfected on March 28, 2003, not the "contractual lien” described in the mechanic’s lien contract which was assigned to MG. Lopez points out that its motion for partial summary judgment did not mention the mechanic’s lien contract, instead relying solely on the new home contract.

      . Because we reverse this portion of the trial court’s judgment, we do not address MG’s seventh issue in which it argues the trial court's judgment violates the election of remedies doctrine and constitutes a double recovery.

      . MG was a signatory to the settlement agreement between the Garcias and Lopez in the Garcias' lawsuit, but was not a party to the suit. As part of the settlement, Lopez agreed to release a lien against the Garcias’ home and MG agreed to fund Lopez's outstanding and future draw requests on the Gately and Gonzales homes.

      . Nevertheless, the jury did hear testimony that Lopez had been advised by an MG employee that the inspection had in fact been completed and the final draw had been approved by Gonzales. Kevin Sullivan, MG’s chief financial officer, testified that he had issued the check for the remainder of the funds under the Gonzales note at the instruction of Mrs. Gonzales. Mrs. Gonzales testified that she was satisfied with Lopez's performance and construction of the home, and that she was prepared to try to come up with the additional money to pay Lopez the full amount he had requested in his final draw beyond what was available under the original note. Mrs. Gonzales testified that it was the circumstances of her divorce, not dissatisfaction with Lopez’s performance, that prevented her from closing on the home. She also testified that she never told Kevin Sullivan not to fund Lopez's final draw request.

      . Because we find sufficient evidence of breach of contract, we need not reach MG's challenge to the sufficiency of the evidence on the promissory estoppel claim.


source: Caselaw Access Project

author: KAREN ANGELINI, Justice.

license: Public Domain

text:
    Raul RANGEL, Appellant, v. The STATE of Texas, Appellee.
    No. 04-04-00758-CR.
    Court of Appeals of Texas, San Antonio.
    Aug. 3, 2005.
    Discretionary Review Refused March 8, 2006.

      Richard E. Wetzel, Austin, for appellant.
    Richard R. Hicks, III, Asst. Dist. Atty., Seguin, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

Raul Rangel was convicted by a jury on two counts: Count I for burglary of a habitation and Count II for aggravated assault. At sentencing, Rangel pled true to the enhancement paragraph. Rangel was sentenced on June 23, 2004 to thirty years imprisonment for burglary of a habitation and twenty years for aggravated assault. Rangel appeals. Because Ran-gel’s double jeopardy argument has merit, we reverse and render a judgment of acquittal with respect to Count II. However, we affirm the judgment on Count I.

Background

On November 10, 2003, Michelle Hatzen-buehler was at home with her children and her on-and-off boyfriend, Antonio Medra-no. Medrano and Hatzenbuehler awoke at two o’clock in the morning to the sound of Raul Rangel, her other on-and-off boyfriend, banging on the door and yelling Hatzenbuehler’s name. The yelling and banging continued for about thirty to forty-five minutes until Rangel left. Later that morning, Rangel returned and again banged on the door and yelled Hatzen-buehler’s name. Medrano needed to go to work, but decided to wait until Rangel left. As Medrano was walking down the stairs with a knife, Rangel entered the apartment through a side window. A fight quickly ensued between the two men.

Rangel, also holding a knife, cut Medra-no’s neck, face, chest, and back. Medra-no’s knife broke when it struck a wall. The men struggled over Rangel’s knife, and Medrano began to feel dizzy from the loss of blood. Medrano bit Rangel in an attempt to get Rangel to drop the knife. Rangel and Medrano eventually agreed to stop fighting, and Medrano went outside. He was quickly joined by Rangel and Hat-zenbuehler. Rangel began arguing with Hatzenbuehler, but he left before the police and EMS arrived. Medrano was helicoptered to a hospital and required a two-day stay.

Later that day, Rangel was contacted by Officer Adrian Tijerina. Officer Tijerina testified that he had no problems communicating with Rangel. Rangel was brought to the police station, and Officer Jerry Hernandez took a statement from him in English. In his statement, Rangel claimed to “black out” from anger, but he remembers struggling and a knife. Officer Hernandez did not see any injury to Rangel except for a bite mark on his arm and some minor scratches on his head. Officer Hernandez also testified that he had no problems communicating with Rangel.

Rangel was offered a plea bargain of no more than fifteen years. Rangel, however, declined to accept the deal and chose, instead, to proceed to trial. Rangel communicated easily in English with the trial judge.

At trial, Rangel attempted to have evidence of a prior altercation between himself and Medrano admitted, but the trial court sustained the State’s objection to relevance. Later, Hatzenbuehler testified that she had given Rangel effective consent to enter the apartment whenever he liked. However, she admitted that she had previously told the police that he did not have permission to enter the apartment. She also testified about an earlier incident where she and Medrano had been caught by Rangel, and the two men had had a fist fight. After the State rested, the defense also rested, calling no witnesses. The jury found Rangel guilty of burglary of a habitation and aggravated assault. Rangel appeals, bringing five issues.

Discussion

A. Failure to Appoint an Interpreter for Trial

In his first issue, Rangel argues that the trial court violated his right to confrontation under the Sixth Amendment when it failed to appoint an interpreter. For support, Rangel relies on Garcia v. State, 149 S.W.3d 135 (Tex.Crim.App.2004). In Garcia, it was undisputed that the defendant did not speak English. Id. at 142. His lawyer’s legal assistant translated for him at times; however, the legal assistant was not instructed to translate the witnesses’ testimony at trial for the defendant, and she testified at the motion for new trial hearing that she did not do so. Id. Indeed, the legal assistant “had never once been called upon to sit during a trial and give an ongoing translation, and she was not sworn in as an interpreter in this case.” Id. On appeal, the defendant argued that the lack of translation during his trial violated the Sixth Amendment’s Confrontation Clause. Id. at 140. According to the State, however, the defendant was prevented from bringing the issue on appeal because he had failed to preserve it. Id. The court of criminal appeals disagreed, holding that failure to preserve error did not prevent the defendant from bringing the issue on appeal because the right to an interpreter must be implemented by the legal system unless expressly waived. Id. at 144. “[W]hen a trial judge is aware that the defendant has a problem understanding the English language, the defendant’s right to have an interpreter translate the trial proceedings into a language which the defendant understands” must be implemented by the trial judge unless expressly waived. Id. at 145.

In these circumstances, the judge has an independent duty to implement this right in the absence of a knowing and voluntary waiver by the defendant. The judge may become aware of the defendant’s language problem either by being informed of it by one or both parties or by noticing the problem sua sponte.

Id. (emphasis in original).

Unlike the facts in Garcia, here, the trial court did not have any reason to believe Rangel could not understand the English language. Rangel’s police statement was written in English and had a factual correction that Rangel made to the statement. Before trial began, the parties discussed a plea-bargain offer made by the State. Rangel spoke to the court in English, clearly indicating that he understood the State’s plea-bargain offer. Rangel then told the court that he wanted to proceed to trial. At trial, Officer Hernandez and Officer Tijerina testified that they had both communicated with Rangel in English with no problems.

In his brief, Rangel argues that the trial court was informed that Rangel did not speak English by his defense counsel. However, the portion of the record on which Rangel relies shows the opposite:

Defense counsel: You don’t know Mr. Rangel’s education, do you?
Officer Tijerina: No, ma’am.
Defense counsel: And would you agree with me that he speaks broken English?
Officer Tijerina: That he what, ma’am?
Defense counsel: His English is not great?
Officer Tijerina: I don’t — I never dealt with him that extensively. Whenever I talked to him — when I did talk to him at South River Street, we communicated fine.

Therefore, the record does not reflect the trial court was made aware that Rangel had a problem understanding the English language.

We overrule Rangel’s first issue.

B. Legal Insufficiency for Burglary of a Habitation

In his second issue, Rangel argues that the evidence is legally insufficient to support his conviction for burglary of a habitation. When conducting a legal sufficiency-of-the-evidence review as prescribed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we do not weigh the evidence tending to establish guilt against the evidence tending to establish innocence, nor do we assess the credibility of witnesses on each side. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex.Crim.App.1996). Instead, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

Rangel was charged with violating section 30.02(a)(3) of the Texas Penal Code. Pursuant to section 30.02(a)(3), a person commits burglary if, without the effective consent of the owner, the person enters a building or habitation and commits or attempts to commit a felony, theft, or an assault. Tex. Pen.Code ANN. § 30.02(a)(3) (Vernon Supp.2004-05).

Rangel argues that there is no evidence that he entered the habitation without the effective consent of the owner, Michelle Hatzenbuehler. For support, he points to Hatzenbuehler’s testimony at trial that Rangel “always had permission” to enter her home. However, when questioned by the State, Hatzenbuehler admitted that at the time of the incident, she and Rangel were not seeing one another. Indeed, she testified that on the night of the incident, Medrano, not Rangel, had spent the night with her. According to Hatzenbuehler, when Rangel began banging on the door, she did not want to open the door to him until Medrano left. When the State asked her about whether Rangel had permission on the morning of the incident to come inside, Hatzenbuehler testified that she “was going to open the door as soon as [Medrano] was out the back.” Hatzen-buehler admitted that she gave a statement to the police the morning of the incident in which she stated, “There have been times when [Rangel] has been allowed to stay at my house, but he didn’t have permission to come in the house today.”

Viewing the evidence in the light most favorable to the verdict, the jury could have reasonably believed that Hatzenbueh-ler’s statement the morning of the incident was truthful and that her testimony at trial that Rangel “always had permission” to enter her home was not truthful.

We overrule Rangel’s second issue.

C. Exclusion of Prior Difficulties

In his third issue, Rangel argues that the trial court erroneously excluded evidence of prior difficulties between Ran-gel and Medrano, which would have shown that Medrano was the aggressor. Rangel, however, has failed to properly preserve this issue for our review. At trial, defense counsel questioned Medrano about a prior “fist fight.” The State objected, arguing that the testimony was not relevant, and the trial court sustained the objection. To preserve a complaint that the trial court erroneously excluded evidence, the complaining party must bring forward a record indicating the nature of the evidence. See Tex.R.App. P. 33.1, 33.2; Tex.R. Evid. 103(a)(2); Shafer v. State, 82 S.W.3d 553, 555 (Tex.App.-San Antonio 2002, pet. ref'd). If the excluded evidence is not apparent from the context of the record, it must be brought forward either through a timely offer of proof or a formal bill of exception. See Tex.R.App. P. 33.1, 33.2; Tex.R. Evid. 103(a)(2); Shafer, 82 S.W.3d at 555.

Here, Rangel did not bring an offer of proof or a formal bill of exception. Instead, Rangel argues that the excluded evidence is apparent from the context of the record. All that is apparent from the context of the record is that Rangel had caught Medrano and Hatzenbuehler together in bed before and that Rangel and Medrano had gotten into a fist fight. Indeed, if this is what Rangel claims is apparent from the context, then any error is harmless because Hatzenbuehler testified to these events at trial. According to Hat-zenbuehler, Rangel had caught her and Medrano “in a worse condition” before, in bed and in their “birthday suits.” Hatzen-buehler testified that on that occasion, Rangel and Medrano got into a “fist fight” and that Rangel had had to defend himself against Medrano. Thus, anything that was apparent from the context of the record was admitted through Hatzenbuehler’s testimony. See Sterling v. State, 800 S.W.2d 513, 520 (Tex.Crim.App.1990) (holding admission of illegally obtained confession was harmless in light of second admissible confession containing substantially same facts); see also Franks v. State, 90 S.W.3d 771, 805-06 (Tex.App.Fort Worth 2002, no pet.) (holding that because complained of testimony was generally cumulative of other evidence introduced in case, no harm attached).

We overrule Rangel’s third issue.

D. Double Jeopardy

In his fourth issue, Rangel contends that because aggravated assault is a lesser-included offense of burglary of a habitation, his convictions for aggravated assault and burglary of a habitation violate his double jeopardy rights. In Count I, the indictment charged that Rangel “intentionally or knowingly enter[ed] a habitation without the effective consent of Michelle Hatzenbuehler, the owner thereof, and attempted to commit or committed the felony offense of aggravated assault.” In Count II, the indictment charged that Rangel “did then and there intentionally, knowingly, or recklessly cause bodily injury to Antonio Medrano by stabbing the said Antonio Medrano with a knife; and [Rangel] did then and there use or exhibit a deadly weapon, to wit: a knife, during the commission of said assault.”

A double jeopardy claim must generally be raised in the trial court to preserve the error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 643-46 (Tex.Crim.App.2000); Honeycutt v. State, 82 S.W.3d 545, 547 (Tex.App.-San Antonio 2002, pet. refd). However, an appellant may raise a double jeopardy claim for the first time on appeal (1) when the undisputed facts show the double jeopardy claim violation is clearly apparent from the face of the record, and (2) when enforcement of the usual rules of procedural default serve no legitimate state purpose. Gonzalez, 8 S.W.3d at 643; Honeycutt, 82 S.W.3d at 547.

“In cases where the trial court either knew or should have known of the jeopardy problem, no purpose is served in enforcing the state procedural rule and the defendant may assert this interest after trial.” Honeycutt, 82 S.W.3d at 547 (citations omitted). And, “where a defendant is charged in the same indictment with two counts, and assuming one count is a lesser-included offense of the other, the error is apparent on the face of the record.” Id. Here, Rangel was charged in the same indictment with two counts, and he claims that one count is a lesser-included offense of the other. Thus, we conclude that any error would be apparent on the face of the record.

Additionally, we hold that enforcement of the usual procedural default rules would serve no legitimate state purpose. The appropriate remedy for any double jeopardy violation is to vacate one of the convictions. Ball v. United States, 470 U.S. 856, 864, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); Landers v. State, 957 S.W.2d 558, 559 (Tex.Crim.App.1997). Under Texas law, we are required to retain the conviction with the “most serious punishment,” and vacate any remaining convictions that are the “same” for double jeopardy purposes. Landers, 957 S.W.2d at 560. Here, if Rangel is successful, we would vacate his conviction for aggravated assault and retain his conviction for burglary of a habitation. A successful challenge would not require a retrial or even a remand to the trial court. Therefore, there are no legitimate state interests that would be negatively impacted from allowing Rangel to raise his double jeopardy claim for the first time in this appeal. Shaffer v. State, 477 S.W.2d 873, 875 (Tex.Crim.App.1971); Honeycutt, 82 S.W.3d at 547. We, therefore, hold that Rangel may raise this issue for the first time on appeal.

Double jeopardy protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Lopez v. State, 108 S.W.3d 293, 295-96 (Tex.Crim.App.2003). Rangel’s claim is based on the third category.

In a case in which the same act or transaction constitutes a violation of two distinct statutory provisions, under the Blockburger test, we ask whether each provision requires proof of a fact which the other does not. Mallett v. State, 65 S.W.3d 59, 68 (Tex.Crim.App.2001). Here, as charged in Count I, the burglary of a habitation charge required the State to prove that Rangel, without the effective consent of the owner, entered a habitation and committed or attempted to commit the felony offense of aggravated assault. As charged in Count II, the aggravated assault charge required the State to prove that Rangel “did then and there intentionally, knowingly, or recklessly cause bodily injury to Antonio Medrano with a knife, and [Rangel] did then and there use or exhibit a deadly weapon, to-wit: a knife, during the commission of said assault.”

Under Blockburger, burglary, as charged in this case, clearly requires proof of a fact that the aggravated assault charge does not. However, to prove the burglary charge, the State had to necessarily prove the elements of aggravated assault. Thus, it would seem that the aggravated assault charge does not require proof of a fact that burglary does not.

One might argue that aggravated assault, as charged, does require a proof of a fact that burglary does not because (1) under the burglary charge, the jury could have found that Rangel committed aggravated assault by determining that Rangel caused serious bodily injury to Medrano, and (2) under the aggravated assault charge, the jury could have determined that Rangel committed aggravated assault by determining that Rangel used or exhibited a deadly weapon during the commission of the assault. Thus, one could argue that, as charged, the offenses required proof of a fact that the other did not: the burglary charge required proof of serious bodily injury, and the aggravated assault charge required proof of a deadly weapon.

In Mitchell v. State, 137 S.W.3d 842 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd), the First Court of Appeals was confronted with this argument in a different context. In Mitchell, the court considered whether the trial court lacked jurisdiction to convict the defendant of aggravated assault with a deadly weapon because it was not a lesser-included offense of burglary. Id. at 845. The court noted that the State could have proven the commission of an aggravated assault by showing that the appellant had assaulted the complainant and had caused her to suffer serious bodily injury or by showing that the appellant had assaulted the complainant and had used or exhibited a deadly weapon. Id. at 846. The court explained that “in the burglary indictment, the State was not required to set out the elements of the felony allegedly committed and attempted by appellant after he entered the complainant’s habitation, i.e., aggravated assault.” Id. Despite this fact, the court held that aggravated assault was a lesser-included offense of burglary:

Under either theory of aggravated assault, the State would have had to prove essentially the same facts, i.e., that appellant had squirted lighter fluid on the complainant and had set her on fire. Thus, the offense to which appellant pleaded guilty, “aggravated assault with a deadly weapon, fire,” did not “enlarge upon” the offense charged, burglary under section 30.02(a)(3), and it was therefore a lesser included offense.

Id. Accordingly, the court held that because aggravated assault with a deadly weapon was a lesser-included offense of burglary, the trial court had jurisdiction to convict the appellant of aggravated assault with a deadly weapon. Id. at 846-47.

Although the court in Mitchell was presented with a different issue than we are here, we find Mitchell’s analysis of whether aggravated assault with a deadly weapon is a lesser-included offense of burglary instructive. Like in Mitchell, here, to prove either charge, the State had to prove that Rangel used a knife to stab and injure Medrano. The State could not prove serious bodily injury or use of a deadly weapon without proving the other. If, however, the State had charged in Count I that Rangel had committed burglary by entering a habitation with the intent to commit aggravated assault, Rangel’s double jeopardy rights would not have been violated. The court of criminal appeals has held that aggravated assault is not a lesser-included offense of burglary with the intent to commit aggravated assault:

[T]he facts required to establish this charged offense [burglary] are that appellant, without the effective consent of the owner, entered a habitation with intent to commit aggravated assault. Under this charged offense, the State is not required to prove that an aggravated assault occurred. Rather, the State must show only that the defendant intended to commit such assault. Contrast an indictment charging burglary under Section 30.02(3), which would require that the State show the commission of an aggravated assault or acts constituting an attempt to commit aggravated assault. While it may be true that when the State proves aggravated assault, the proof shows an intent to commit the assault, under article 37.09(1), facts showing a completed assault are not “required” to prove the intent to commit such assault. Intent to commit requires less proof. While it certainly may be used to show that intent, it is not legally required because intent to commit can be established by facts showing something less than commission of the offense.... [W]e agree with the Court of Appeals that because evidence showing a completed aggravated assault is not part of the facts legally required to show burglary with intent to commit aggravated assault, under article 37.09(1), aggravated assault is not a lesser included offense of burglary under section 30.02(a)(1).

Jacob v. State, 892 S.W.2d 905, 909 (Tex.Crim.App.1995) (emphasis added). As noted by the court of criminal appeals, an indictment charging burglary under section 30.02(3), which is what we are presented with here, would require the State to show the commission of an aggravated assault. Because under the facts presented here the State would have to prove the offense of aggravated assault in proving burglary under section 30.02(3), we hold that when Rangel was convicted and sentenced on both charges, his right against double jeopardy was violated.

The appropriate remedy for any double jeopardy violation is to vacate one of his convictions. Ball, 470 U.S. at 864, 105 S.Ct. 1668; Landers, 957 S.W.2d at 559. We are required to retain the conviction with the “most serious punishment,” and vacate any remaining convictions that are the “same” for double jeopardy purposes. Landers, 957 S.W.2d at 560. We, therefore, vacate his conviction for aggravated assault; however, we affirm his conviction for burglary of a habitation.

E. Ineffective Assistance of Counsel

We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex.Crim.App.1986). Under this two-prong test, an appellant must first show that his attorney’s performance was deficient, i.e., that her assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). Second, assuming the appellant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. Id. In other words, the appellant must show a reasonable probability that, but for his attorney’s unprofessional errors, the result of the proceeding would have been different. Id.

Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. at 813. Absent both showings an appellate court cannot conclude that the conviction resulted in a breakdown in the adversarial process that renders the result unreliable. Id. An appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective, and we look at the totality of the representation and the particular circumstances of each in evaluating the effectiveness of counsel. Id. When reviewing a claim of ineffective assistance of counsel, we must be highly deferential to trial counsel and avoid “deleterious effects of hindsight.” Id. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Id.

The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged effectiveness. Id. Under normal circumstances the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical and strategic decisionmaking as to overcome the presumption that counsel’s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id.; Thompson, 9 S.W.3d at 813. In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Bone, 77 S.W.3d at 833.

In his brief, Rangel alleges a cornucopia of errors committed by his trial court counsel. The following allegations, however, are not firmly founded in the record and, as such, are undeveloped and cannot reflect the fadings of trial counsel:

(1)Counsel failed to remove for cause or peremptorily juror Venglar on the basis he had a bias against a convicted felon;
(2) Counsel failed to preserve for review the denial of two challenges for cause to prospective jurors Burdette and Pintirsch;
(3) Counsel failed to peremptorily remove juror Bodin after she revealed she knew some of the law enforcement officers who would be called to testify;
(4) Counsel failed to utilize all of her allotted peremptory challenges;
(5) Counsel failed to object to the State using four of its seven peremptory challenges to remove prospective jurors with Hispanic surnames;
(6) Counsel engaged in inappropriate jury argument;
(7) Counsel failed to secure an adverse ruling to the improper admission of hearsay evidence;
(8) Counsel failed to object to the improper admission of hearsay evidence;
(9) Counsel failed to perfect a bill or make a proffer on the exclusion of evidence concerning prior difficulties between [Rangel] and Medrano;
(10) Counsel failed to perfect a bill or make a proffer on the exclusion of evidence concerning Medrano’s pri- or conviction for attempted murder;
(11) Counsel failed to object to an extraneous offense involving obstruction or retaliation against Michelle Hat-zenbuehler;
(12) Counsel failed to object to a non responsive answer by a police offi-eer referring to Medrano as a victim;
(13) Counsel objected to the admission of crime scene photographs on the basis of a nonexistent rule of evidence;
(14) Counsel failed to request a jury charge on defense of a third person even though [Rangelj’s statement indicates that he heard a strange voice in the apartment, he knew his child was in the apartment, and he “tried to do for my family”;
(15) Counsel stipulated to the enhancement paragraph alleging a prior aggravated assault conviction involving the use of a knife without any discernable benefit to [Rangel];
(16) Counsel failed to request the preparation of a presentence investigation report before sentencing;
(17) Counsel did not understand the State’s pretrial plea offer;
(18) Counsel did not understand the statutory limitations on court-ordered community supervision; and
(19) The record fails to reflect counsel communicated a final pretrial plea offer to [Rangel].
(20) Counsel informed the jury panel [Rangel] has a prior felony conviction.

Because any error is not firmly founded in the record, we must presume that counsel had a trial strategy for her actions. See Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813.

Rangel also alleges that his counsel incorrectly stated the law of self-defense during voir dire. However, Rangel has failed to show prejudice, as the jury was correctly instructed on the law of self-defense in the jury charge.

Finally, Rangel complains that counsel failed “to object to the punishment phase charge which authorized multiple punishments for the same offense in violation to [Rangel]’s double jeopardy rights.” We have, however, remedied the double jeopardy violation by vacating one of Rangel’s convictions.

We overrule Rangel’s fifth issue.

Conclusion

Because Rangel’s right against double jeopardy was violated, we reverse and render a judgment of acquittal on Count II. However, we affirm the trial court’s judgment on Count I.

      . See Tex. Pen.Code Ann. § 22.02(a)(1) (Vernon Supp.2004-05) ("A person commits [aggravated assault] if the person commits assault as defined in § 22.01 and the person: (1) causes serious bodily injury to another ..."). Under section 22.01(a)(1), a person commits an assault if the person intentionally, knowingly, or recklessly causes bodily injury to another. See Tex Pen.Code Ann. § 22.01(a)(1) (Vernon Supp.2004 — 05).

      . See Tex Pen.Code Ann. § 22.02(a)(2) (Vernon Supp.2004-05) ("A person commits [aggravated assault] if the person commits assault as defined in § 22.01 and the person: ... (2) uses or exhibits a deadly weapon during the commission of the assault.”).

      . Article 37.09(1) of the Texas Code of Criminal Procedure provides that an offense is a lesser-included offense if it is established by-proof of the same or less than all the facts required to establish the commission of the offense charged. TexCode Crim. Proc. Ann. art. 37.09(1) (Vernon 1981).

      . Rangel has further waived this issue on appeal by failing to properly brief it. See Tex.R.App. P. 38.1(h). Rangel points to a page in the reporter’s record in support of this statement, but fails to identify which statement made by trial counsel on that page was inappropriate. Moreover, Rangel cites no legal authority in support of any such statement being inappropriate.

      . Counsel objected to the photographs pursuant to "Rule 403(b).” However, it is clear from the context that counsel was objecting pursuant to Texas Rule of Evidence 403, as she stated that the photographs were more prejudicial than probative.

      . The record does not reflect that counsel did not understand the plea offer or the statutory limitations on court-ordered community supervision. Moreover, the record reflects that counsel did explain the offer to Rangel. And, the record also reflects that Rangel knew the terms of the State’s plea offer. The plea offer was thoroughly discussed in court before trial, and when asked by the court, Rangel stated that he still wanted to proceed to trial.


text:
    GENERAL MOTORS CORPORATION, Appellant, v. Elodia M. GARZA, David and Aleida Luera, Alfredo and Alicia Rodriguez, Carlos and Diana Hughes, Guadalupe Gonzales, Irma Lopez and Melissa Lopez, Humberto and Rosario Morin, and Shelley Cantu-Rivas, On Behalf of Themselves and All Others Similarly Situated, Appellees.
    No. 04-03-00702-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 3, 2005.

      A. Erin Dwyer, Andrew P. Speicher Timothy A. Daniels, Figari & Davenport, L.L.P., Dallas, Rene P. Montalvo, Law Office of Rene P. Montalvo, P.C., Rio Grande City, for appellant.
    Kelly Cox Bilek, Thomas E. Bilek, Dinah Acord Weems, Hoeffner & Bilek, L.L.P., Houston, Lee S. Shalov, Shalov Stone & Bonner, LLP, New York, NY, Timothy Patton, Timothy Patton, P.C., San Antonio, for appellees.
    Sitting: PAUL W. GREEN, Justice (not participating), SARAH B. DUNCAN, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION ON APPELLEES’ MOTION FOR REHEARING

Opinion by

PHYLIS J. SPEEDLIN, Justice.

In an opinion and judgment dated January 26, 2005, we reversed the trial court’s order certifying the class and remanded the cause to the trial court for further proceedings. Appellees filed a motion for rehearing and a motion for rehearing en banc. We deny the motions for rehearing, but withdraw our opinion and judgment of January 26, 2005 and issue this opinion and judgment in its place.

In this accelerated appeal, appellant General Motors Corporation (“GM”) challenges the trial court’s class certification and trial plan. Because we hold the class fails to meet the requirements for certification under Rule 42 of the Texas Rules of Civil Procedure, we reverse the trial court’s order certifying the class and remand the cause to the trial court for further proceedings consistent with this opinion.

Factual AND Procedural Background

The six named plaintiffs allege, and their expert testified, that all Chevy Malibu vehicles manufactured from 1997 through 2001 have a brake system defect that will, at some time during the life of the vehicle, cause the vehicle to pulsate when the brakes are applied. Plaintiffs also presented evidence that GM never developed an effective repair to prevent the pulsation from returning. GM, on the other hand, presented expert testimony that, although GM experienced some brake problems with Malibus of that period, not all of the vehicles developed pulsation and, of those that did, many were effectively repaired. GM also offered testimony that improper servicing or repair and the use of non-GM replacement parts could cause pulsation in vehicles that had not previously experienced a problem.

The plaintiffs seek damages based on their theory that the Malibu was defective at the time of sale; and no repair will completely eliminate the pulsation problem. Therefore, the plaintiffs claim, the damage occurred at the moment each plaintiff bought the vehicle, so the amount of damage is calculated as the difference between the value of a Malibu without a brake defect and the value of a vehicle with the brake defect. Based on this benefit-of-the-bargain measure of damages, the plaintiffs argue no individual issues exist in the case since the measure of damages is the same for each and every purchaser of a defective Malibu. The plaintiffs state their claim as follows:

At the time of sale, each purchaser thus received a Malibu that, because of its irreparably defective braking system, was worth less than he or she paid for it. Nothing a plaintiff, a mechanic, a dealership or anyone else did or didn’t do post-sale could have possibly contributed to GM’s delivery of a Malibu with diminished value at the time of sale — the diminished value of the Malibu at delivery being the only damage sought by the plaintiffs who have disclaimed any recovery of consequential damages.

The trial court certified a class consisting of “persons who are residents of the State of Texas (‘the Class’) who purchased or leased in Texas, new at retail, a 1997, 1998, 1999, 2000, or 2001 model year Chevrolet Malibu sedan.” The trial court also defined a Subclass of persons who meet the definition of the Class and, additionally, are not “business consumers” (¿a, not persons with assets of more than $25 million who are in the business of seeking or acquiring by purchase or lease, any goods or services for commercial or business use). The trial court identified two causes of action that may be pursued by the Class (breach of implied warranty of merchantability ; and breach of express warranty to repair) and one cause of action that may be pursued only by the Subclass based on the above breaches of warranty (violation of the Texas Deceptive Trade Practices— Consumer Protection Act [DTPA]). The Subclass will thus be allowed to seek statutory treble damages under the DTPA based on GM’s “knowing” breaches of warranty.

In the trial plan, the trial court identified sixteen common factual and legal questions to be answered by the jury. These can be summarized in the following categories: (1) whether there was a defect in the Malibu brake system and if so, whether there was a safer alternative design; (2) whether GM breached its implied warranty of merchantability and its express warranty to repair; (8) whether the defect caused the Class members to pay more than fair market value; (4) the difference between the amounts paid and the fair market value of the defective vehicles; (5) whether GM had actual awareness of the defect, the ineffectiveness of repairs, and the resulting diminution in value; and (6) the amount of punitive damages under the DTPA. If the jury finds a defect, the trial plan calls for the jury to determine the vehicle’s diminished value for each model year. After the jury determines liability and damages, the Class will be determined by a claim form requesting the following information:

(1) the name, address, and identity of the claimant;
(2) the VIN number and model year of the vehicle;
(3) the date of purchase or lease and the name of the dealer;
(4) the state of the claimant’s residence at the time of purchase;
(5) the cost of purchase or lease;
(6) whether the vehicle was purchased new or used; and
(7) information to determine whether the claimant is a business consumer.

The trial plan contemplates that the only individual issue will be whether a particular member of the Class is a business consumer or not.

GM asserts the trial court abused its discretion in certifying the Class because: (1) the trial court failed to correctly analyze and apply the law to the plaintiffs’ causes of action; (2) the trial plan is fatally flawed; (3) plaintiffs failed to establish commonality or typicality; (4) the named plaintiffs are not adequate class representatives; (5) class action is not a superior method of handling the claims; and (6) damages cannot be determined on a class basis.

STANDARD AND SCOPE OF REVIEW

Rule 42 of the Texas Rules of Civil Procedure governs class certification. Tex.R. Civ. P. 42. “All class actions must satisfy four threshold requirements: (1) numerosity (‘the class is so numerous that joinder of all members is impracticable’); (2) commonality (‘there are questions of law or fact common to the class’); (3) typicality (‘the claims or defenses of the representative parties are typical of the claims or defenses of the class’); and (4) adequacy of representation (‘the representative parties will fairly and adequately protect the interests of the class’).” Southwestern Refining Co. v. Bernal, 22 S.W.3d 425, 433 (Tex.2000) (quoting Tex.R. Civ. P. 42(a)). In addition, class actions must satisfy at least one of the subdivisions of Rule 42(b). Id. In this case, plaintiffs assert the class action satisfies former Rule 42(b)(4), now Rule 42(b)(3), which requires two findings: (1) common questions of law or fact predominate over questions affecting individual members; and (2) class treatment is “‘superior to other available methods for the fair and efficient adjudication of the controversy’.” Id. (quoting former Tex.R. Crv. P. 42(b)(4)). “The test for predominance is not whether common issues outnumber uncommon issues but ... ‘whether common or individual issues will be the object of most of the efforts of the litigants and the court.’” Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 693 (Tex.2002) (quoting Bernal, 22 S.W.3d at 434).

On appeal, we review the trial court’s decision to certify a class under the abuse of discretion standard. Id. at 691. Accordingly, although we do not indulge every presumption in favor of the trial court’s ruling, “some of [the trial court’s] determinations—like those based on its assessment of the credibility of witnesses, for example—must be given the benefit of the doubt.” Id. “[A]ctual, not presumed, conformance with [the rule] remains ... indispensable.” Id. (quoting Bernal, 22 S.W.3d at 435). “Compliance with Rule 42 must be demonstrated; it cannot be presumed.” Id.; see generally Tex.R. Civ. P. 42.

Discussion

The class action serves to “eliminate or reduce the threat of repetitive litigation,” “prevent inconsistent resolution of similar cases,” and provide a means of redress for individual claims too small to make independent actions economically feasible. Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 452 (Tex.2000). Properly used, a class action saves resources for both the courts and the parties by allowing class-wide issues to be tried in an economical fashion. However, the class action format “must not unduly restrict a party from presenting viable claims or defenses without that party’s consent.” Bernal, 22 S.W.3d at 435 (citing Tex.R. Civ. P. 815; Tex. Gov’t Code Ann. § 22.004(a)); see also Tracker Marine, L.P. v. Ogle, 108 S.W.3d 349, 362 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Further, class certification does not eliminate the need for the plaintiffs to prove every element of their claims. As the Texas Supreme Court has stated:

[E]vidence insufficient to prove [a claim] in a suit by an individual does not become sufficient in a class action simply because there are more plaintiffs. Inescapably individual differences cannot be concealed in a throng. The procedural device of a class action eliminates the necessity of adducing the same evidence over and over again in a multitude of individual actions; it does not lessen the quality of evidence required in an individual action or relax substantive burdens of proof.

Schein, 102 S.W.3d at 693-94. Accordingly, we must review the elements of the plaintiffs’ claims to determine whether, in light of the evidence necessary to prove or defeat the claims, class certification imper-missibly permits the plaintiffs to recover without proving each element of their claims or impermissibly deprives GM of the opportunity to present legitimate defenses.

(1) Implied Warranty of Merchantability

To establish a breach of the warranty of merchantability, a plaintiff must first show the product has a defect that renders it unfit for its ordinary purpose, i.e., the product lacks something necessary for it to be adequate. Gen. Motors Corp. v. Brewer, 966 S.W.2d 56, 57 (Tex.1998); Polaris Indus., Inc. v. McDonald, 119 S.W.3d 331, 336 (Tex.App.-Tyler 2003, no pet.). If “a product is shown to be unmerchantable,' a plaintiff must then establish that the defect caused him to suffer injury.” Polaris, 119 S.W.3d at 336. “A product that performs its ordinary function adequately does not breach the implied warranty of merchantability merely because it does not function as well as the buyer would like, or even as well as it could.” Trobaugh Constr., Inc. v. Home Depot, USA, Inc., No. 01-02-00340-CV, 2003 WL 23000025, at *3 (Tex.App.-Houston [1st Dist.] Dec. 23, 2003, no pet.) (citing Gen. Motors, 966 S.W.2d at 57). Instead, the plaintiff must show that the defect caused injury. See id.

In this ease, the trial court’s trial plan assumes that, if a jury finds a defect and finds that the defect cannot be effectively repaired, a single damage amount can be determined for each year the Malibu was sold. We disagree. The trial court’s approach does not require the plaintiffs to prove causation is the same for each individual in the Class nor does’ it permit GM to disprove damages for any given individual. Review of the testimony clearly establishes that individual questions regarding causation outweigh the common issues. For example, even if a jury found that the brakes on all Malibus will pulsate at some time, the expert testimony establishes that it is impossible to predict when the pulsation will occur during the life of the vehicle. Even a cursory examination of the testimony of the named plaintiffs shows that each of them noticed pulsation at different mileages, some at very low mileage, some at relatively high mileages. The experts also appear to agree that at least one of the named plaintiffs never experienced defect-induced pulsation but nonetheless complained of a similar brake problem with a completely unrelated cause. The trial court’s class definition and trial plan do not allow GM to challenge the claims of those individuals who either never experienced pulsation or knew of the brake problem but did not care enough to bring it back for repair within a reasonably short period of time.

In spite of the unique experiences of even the named plaintiffs, the trial court certified a Class consisting of all persons who ever purchased a new Malibu. Even if the trial court tried to limit the Class to owners who had experienced pulsation, individual questioning would be necessary to determine whether these owners actually experienced pulsation or some other type of wear-related brake problem. For those plaintiffs without documentation of their complaints or repairs, credibility assessments would be required. Although only individual questioning would reveal these distinctions among the Class members, individual questioning is not permitted or contemplated by the trial plan.

(2) Express Warranty to Repair

To establish a breach of the express warranty to repair, a plaintiff must show not only that the product was presented to the defendant for repair but also that the defendant failed or refused to repair the defect. See Bunting v. Fodor, 586 S.W.2d 144, 145 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ); see also U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 198-99 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). Moreover, “Reliance is also not only relevant to, but an element of proof of, plaintiffs’ claims of breach of express warranty (to a certain extent)-” See Schein, 102 S.W.3d at 686 (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 436 (Tex.1997)). Generally, because reliance requires an individual finding regarding each class member, class certification is improper in cases like this in which reliance is an element of the cause of action. See id. at 686-87; Ford Motor Co. v. Ocanas, 138 S.W.3d 447, 453 (Tex.App.-Corpus Christi 2004, no pet.).

GM also argues the trial plan prohibits it from presenting a defense based upon the contractual limitation restricting the remedy for breach of warranty to “performance of repairs and needed adjustments.” The trial court held the limitation was too inconspicuous to be valid. But this ruling ignores whether individual Class members had actual knowledge of the limitation. See Cate v. Dover Corp., 790 S.W.2d 559, 561-62 (Tex.1990); LaBel la v. Charlie Thomas, Inc., 942 S.W.2d 127, 132 (Tex.App.-Amarillo 1997, writ denied). Only an individual inquiry will reveal whether a particular Malibu owner had actual notice and was therefore bound by the limitation of remedy.

The trial court’s plan permits the plaintiffs to establish a uniform classwide measure of damages while denying GM the opportunity to establish differences among the Class members. A class action cannot be used to circumvent an element of damages or prevent a defendant from fairly presenting' viable defenses. See Ocanas, 138 S.W.3d at 453 (individual issues predominate where class members’ actual knowledge is an integral part of the defendant’s defense).

(3) Rule 42 Requirements

The plaintiffs argue that individual questions about the Class members’ experiences are irrelevant because the damages arose at the moment of purchase. In support of their.argument, the plaintiffs cite primarily to two computer defect cases. See Compaq Computer Corp. v. LaPray, 79 S.W.3d 779, 792 (TexApp.-Beaumont 2002), rev’d on other grounds, 135 S.W.3d 657 (Tex.2004); Microsoft Corp. v. Manning, 914 S.W.2d 602, 609 (Tex.App.-Texarkana 1995, writ dism’d). In both Compaq and Manning, software purchasers complained that a particular feature was defective and, rather than seeking individual consequential damages, asked that the software manufacturer be required to repair the feature or supply an upgrade that would make the feature work as promised. See Compaq, 79 S.W.3d at 789. In both cases, the courts held the damages sought were identical for each purchaser of the software but distinguished computer defects from alleged vehicle or tire defects.

Software, however, is not like tires or cars. Tires and cars have a distinctly limited usable life. At the end of the product’s life, the product and whatever defect it may have had pass away. If a defect does not manifest itself in that time span, the buyer has gotten what he bargained for.

Compaq, 79 S.W.3d at 792 (citing Manning, 914 S.W.2d at 609).

In this ease, the purchasers of Malibus could drive their cars with no problem until the pulsation manifested, if it ever did. For purchasers who never experienced a problem during the time they owned the car, they got what they paid for — a vehicle that provided transportation with a brake system that safely stopped the car. And, since repair was never rendered, they never experienced a breach of warranty to repair. Similarly, purchasers who bought a Malibu knowing of the alleged brake defect have no damages even under the plaintiffs’ damage theory.

We recognize that if the Malibu brake system is defective, the defect may well exist in each of the Class members’ vehicles — a significant common issue. However, that issue alone does not predominate over individual issues. See Ber-nal, 22 S.W.3d at 435.

The test for predominance is not whether common issues outnumber uncommon issues but, as one court stated, “whether common or individual issues will be the object of most of the efforts of the litigants and the court.” If, after common issues are resolved, presenting and resolving the individual issues is likely to be an overwhelming or unmanageable task for a single jury, then common issues do not predominate. Ideally, a “judgment in favor of the class members should decisively settle the entire controversy, and all that should remain is for other members of the class to file proof of their claim.”

Id. at 434 (citations omitted); see also Ocanas, 138 S.W.3d at 452. As demonstrated above, individual issues in these cases will consume most of the parties’ and the trial court’s efforts. We therefore hold the plaintiffs failed to establish either that common issues predominate or that a class action is a superior method for handling these claims.

Conclusion

Because the trial court abused its discretion by certifying a class that does not meet the requirements of Rule 42, we reverse the trial court’s order certifying the Class and remand for further proceedings consistent with this opinion.

      . The plaintiffs argue "the trial court correctly recognized that GM’s post-sale 'defenses’ (e.g., contributory negligence, failure to mitigate) are not relevant to the plaintiffs’ liability/damage theory.”

      . Tex. Bus. & Com.Code Ann. § 2.314 (Vernon 1994).

      . Tex. Bus. & Com.Code Ann. § 2.313(a) (Vernon 1994).

      . Tex. Bus. & Com.Code Ann. § 17.50(a)(2) (Vernon 2002).

      . Plaintiffs claim, and the trial court ruled, if a breach of warranty is shown under the DTPA, it need only be the producing cause of the injury. However, producing cause is not proved absent proof of cause in fact, that is, that the defect was a substantial factor in bringing about the injury. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995).

      . The plaintiffs claim that, a repair that temporarily relieves the pulsation is not "effective” because the pulsation will eventually ■ return. They thus claim not that the pulsation cannot be fixed but that the repair may or may not last the life of the vehicle.

      . One of the plaintiffs testified his vehicle exhibited pulsation when he took it for a test drive, but he purchased it anyway. This plaintiff testified the salesman told him it would go away; but, even though the pulsation allegedly continued, the plaintiff did not take his vehicle to be repaired for brake trouble until it had over 39,000 miles on it.

      . GM argues it has numerous defenses that might be asserted against individual class members, including improper maintenance, misuse of the brakes, use of non-GM parts, no pulsation experienced, or pulsation caused by something that occurred after the vehicle left the factory. The trial court’s plan does not allow GM to come forward with these defenses because it assumes each purchaser experienced damage at the moment of purchase.

      .The plaintiffs claim that the limitation is meaningless if they establish GM never developed an effective repair. However, even if the plaintiffs establish that GM’s repair will hold for only 30,000 miles, some people may be satisfied to return the vehicle for free repair every two or three years. Thus, establishing that the repair will not last the life of the vehicle does not necessarily establish breach of the warranty to repair.

      . The Beaumont and Texarkana Courts of Appeals then explained why software defects may be more amenable to class action review:
      Software’s useful life, however, is indefinite. Even though the defect is not manifest today, perhaps because the user is not using the [advertised] feature, it may manifest itself tomorrow. The only way for [a] buyer to avoid the possibility of injury is to pay for the upgrade, never use the [advertised] feature, or use another operating system. The buyer never gets what he bar-
      gained for, i.e., an operating system with an effective [advertised] feature.

        Compaq, 79 S.W.3d at 792 (citing Manning, 914 S.W.2d at 609).

      . We note the Texas Supreme Court recently recognized that Texas courts are divided in cases like this on whether plaintiffs can recover damages for unmanifested defects. See Compaq, 79 S.W.3d at 791-92 & n. 8. We do not address that issue here because we hold individual issues predominate even if we accept plaintiffs’ theory of damages.