author: EVELYN V. KEYES, Justice.

text:
    Shawn Anthony LEDET, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00437-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 10, 2005.
    Discretionary Review Refused Sept. 14, 2005.

      Jerome Godinich, Jr., R. Scott Shearer, R. Scott Shearer, Houston, TX, for Appellant.
    Carmen Castillo Mitchell, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Shawn Anthony Ledet, was convicted by a jury of engaging in organized criminal activity. The jury assessed appellant’s punishment at ten years’ confinement, suspended for ten years, community supervision, and a fine of $5,895.47. The trial court ordered appellant to serve 180 days in the Harris County Jail and to pay $400,000 in restitution to Texan Ford as a condition of his community supervision. In four issues, appellant contends (1) that the evidence was legally insufficient to support his conviction and (2) that the 180 days incarceration and the restitution order were unconstitutional. We affirm.

Background

In April 2001, Houston Police Officer Michael Ingels, assigned to the Auto Theft Division, was contacted by a detective from Benbrook Police Department regarding a stolen vehicle that had been placed for auction in Fort Worth. Prompted by the information provided by the Benbrook police, Ingels and his partner, Officer Joe Smith, discovered that Leona Chrichlow had sold the stolen vehicle to a Car Max dealership in Houston.

Ingels and Smith went to the Car Max to review the sales records for the stolen vehicle, as well as completed sales deals and attempted sales deals conducted in the last name of Chrichlow. They discovered that Tamara Chrichlow (Chrichlow), Leona Chrichlow’s daughter, had sold two other vehicles with altered vehicle identification numbers (VINs) to Car Max. Ingels and Smith also discovered that Chrichlow was attempting to sell a 2001 Ford Expedition to the Car Max.

Using the information provided by Car Max, Ingels went to Chrichlow’s apartment. Chrichlow arrived at the apartment driving the Expedition she had attempted to sell to the Car Max, but she left shortly after she arrived. When she left, a marked Houston Police car pulled her over for a traffic violation. Chrichlow presented proof of insurance, a Florida registration, and her driver’s license. Upon looking at the Expedition’s VIN, In-gels believed it looked “bogus.” Based on this belief, Ingels became suspicious that the vehicle was stolen; he had Chrichlow taken into custody for possession of a stolen vehicle. After Chrichlow’s arrest, the Expedition was searched. The search uncovered several pieces of mail from Texan Ford regarding three vehicles other than the Expedition.

Ingels and Smith went to Texan Ford and contacted Hart Oshman, the General Manager. Oshman pulled the sales records for the Expedition and the other three vehicles. Ingels found that all four sales were conducted by the same salesman, appellant. Ingels concluded that all four vehicles were stolen by identity theft. Oshman testified that, once he knew about the fraud relating to the first four vehicles, he pulled the sales records for all of appellant’s sales deals.

Ingels discovered that a total of 19 vehicles (including the initial four) were purchased using the names and credit information of people who never took possession of the vehicles. All of the named purchasers had very high credit scores, which Ingels stated was unusual. All but two of the purchasers had out-of-town addresses, which was also unusual. Almost all of the vehicles were sold for the manufacturer’s suggested retail price, which was also very rare. Most of the sales deals included extended warranties, which was unusual. All of the sales deals were conducted over a six-week period, and appellant was the salesman on each deal. In all of the deals, the purchaser never came to the dealership.

Oshman testified that appellant had been a weak salesman until the middle of February 2001, when his gross profits shot up dramatically. Appellant made significant profits on each of the 19 sales deals conducted from the middle of February until he was arrested in April. The gross profits were also unusually high on each of the deals. None of the deals had a trade-in vehicle or money down, which was unusual. Each sale was made off-site, which Oshman explained was very unusual. Osh-man testified that the approximate value of the vehicles sold was $700,000-$800,000. He further testified that Texan Ford was still liable for the cost of the vehicles and that the cost to the dealership was approximately $500,000.

Mike Capel, the General Sales Manager at Texan Ford in 2001, testified that each of the sales deals had discrepancies, including problems with the driver’s licenses and the insurance card copies. Several copies of the driver’s licenses had fingerprints over the faces; and several of the sales deals had the same face on the driver’s licenses. Officer Smith testified that multiple sales deals had driver’s licenses with the same audit number. The same insurance cards were also used in several deals. In a few of the sales deals, the VINs on the copies of the insurance cards were not legitimate VINs. Oshman testified that, until Ingels and Smith requested the sales documents, no one had noticed the problems. He also testified that the salesman was responsible for obtaining the documents for the sales.

Appellant testified that the purchasers signed the paperwork at the time he delivered the vehicles to them and that he never saw the purchasers again. He stated that a check of each purchaser’s credit was run before the paperwork was completed or the vehicle was delivered. Appellant also testified that he received the information necessary to run credit checks by fax. However, no faxed documents were found in any of the sales files.

William Ammons testified that he and Edward Waddell were involved in dealing with stolen and forged checks. Waddell told Ammons that he could help him obtain a vehicle. Waddell arranged for Ammons to meet him at a mall parking lot. Wad-dell and appellant drove up in a 2000 Lincoln Navigator. Appellant gave Ammons the keys, but never asked him to sign any paperwork or to produce a driver’s license or insurance. There was no trade-in, and Ammons made no down payment. Wad-dell gave Ammons a payment book for the vehicle in the name of Edward Bedell, but with Chrichlow’s home address. Ammons made three cash payments directly to Chase Bank, the issuer of the payment book.

John Hinz, a special agent with the Secret Service, testified that he investigated and arrested Demeris Davis for counterfeit securities, specifically checks. Hinz testified that Waddell worked with Davis with regard to counterfeit checks. When Hinz arrested Davis, he too was in possession of one of the 19 vehicles sold by appellant.

Appellant testified that he had met Chri-chlow and a man named Henry Harris in the dealership and sold them vehicles, and that subsequently Harris had referred a lot of customers to him. Appellant stated that he met each customer off-site, with the approval of sales managers, and that each showed him identification, a copy of his driver’s license, and his insurance. Oshman testified, in rebuttal to appellant’s testimony, that he found sales documents and some partially doctored driver’s licenses and insurance cards in appellant’s desk after appellant was discharged from Texan Ford.

Appellant was indicted for engaging in organized crime in violation of section 71.02 of the Texas Penal Code. The indictment alleged that appellant

with intent to establish, maintain and participate in a combination and in the profits of a combination, said combination consisting of SHAWN LEDET, EDWARD WADDELL, TAMARA CHRICHLOW, AND DEMERIS DAVIS, [DID] COMMIT AND CONSPIRE TO COMMIT the offense of THEFT, namely in that he did unlawfully pursuant to one scheme and continuing course of conduct, appropriate, by acquiring and otherwise exercising control over property, namely, EIGHTEEN AUTOMOBILES, owned by HART OSHMAN, ... with the intent to deprive [HART OSHMAN] of the property and the total value of the property appropriated was over two hundred thousand dollars.

The jury found appellant guilty, and assessed punishment at 10 years’ confinement, suspended for 10 years, and assessed a $5,895.47 fine appellant. The trial court ordered appellant to spend 180 days in county jail and to pay $400,000 in restitution to Texan Ford as conditions of his community supervision.

Discussion

Organized Criminal Activity

In his first issue, appellant argues that the evidence was legally insufficient to prove (1) that an illegal “combination” under Penal Code section ■ 71.02 existed and (2) that he committed the predicate offense of theft, as required to prove the offense of engaging in organized criminal activity. See Tex. Pen.Code Ann. § 71.02 (Vernon Supp.2004-2005).

Standard of Review

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562.

Combination

A person engages in organized criminal activity “if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, ... he commits or conspires to commit” one of several enumerated offenses, including theft. Tex. Pen.Code Ann. § 71.02(a)(1) (Vernon Supp.2004-2005). The State has the burden of proving the combination. Hart v. State, 89 S.W.3d 61, 63 (Tex.Crim.App.2002). A “combination” requires three or more people who collaborate in carrying on criminal activities. Tex. Pen.Code Ann. § 71.01(a) (Vernon 2003). The State must prove that the defendant intended to establish, maintain, participate in, or participate in the profits of a combination and that the members of the combination intended to work together in a continuing course of criminal activity. Hart, 89 S.W.3d at 63; Dowdle v. State, 11 S.W.3d 233, 236 (Tex.Crim.App.2000). Participants in the combination need not know each other’s identity, and membership in the combination may change. Tex. Pen.Code Ann. § 71.01(a)(l)-(2). However, there must be evidence of an agreement to act together in this continuing course of activity. Barber v. State, 764 S.W.2d 232, 235 (Tex.Crim.App.1988). Direct evidence of intent is not required; circumstantial evidence may be used. See Hart, 89 S.W.3d at 64.

A jury may infer intent from any facts which tend to prove its existence, including the acts, words, and conduct of the accused, and the method of committing the crime and from the nature of wounds inflicted on the victims. A jury may also infer knowledge from such evidence.

Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App.1999).

Viewed in the light most favorable to the jury’s verdict, the evidence shows that appellant sold 19 vehicles under unusual circumstances, including the vehicles driven by Chrichlow and Davis when they were arrested. Appellant sold each of the vehicles for the manufacturer’s suggested retail price and with an extended warranty. The identities used to purchase the 19 vehicles had high credit scores and out-of-town addresses. None of the purchasers of the 19 vehicles came into the dealership. Each of the sales deals had discrepancies in the sales paperwork, specifically in the insurance cards and the driver’s licences photographs and audit numbers. Although appellant stated that each of the 19 buyers faxed their information to him so he could run a credit check, no such faxes were found; however, doctored documents, such as those used to obtain the vehicles from Texan Ford, were found in appellant’s desk after he was terminated. None of the persons identified as purchasers took possession of the vehicles; rather, each sale was obtained by identity theft. Appellant’s profits and Texan Ford’s gross profits shot up dramatically from the sales of the 19 vehicles.

The evidence shows that Chrichlow visited appellant at the dealership several times a week and was arrested while in possession of one of the 19 vehicles. The search subsequent to her arrest led to the discovery of mail relating to three of the 19 vehicles sold by appellant. Chrichlow’s address was used on several payment books for the false deals, including the payment book found in Ammons’s vehicle. The evidence further shows that Waddell arranged for Ammons to receive one of the 19 vehicles and that Waddell and appellant delivered a Lincoln Navigator to Ammons. Appellant did not have Ammons sign any paperwork; nor did he obtain any identification information from Ammons. Finally, when Davis was arrested for counterfeiting checks in a scheme with Waddell, Davis was in possession of one of the 19 vehicles.

Viewed in the light most favorable to the verdict, the evidence was legally sufficient for a rational juror to conclude that appellant intended to and did participate in a combination that collaborated in carrying on criminal activities through the appropriation of automobiles from Texan Ford.

Theft

To prove the offense of engaging in organized criminal activity as a party, the State must also prove that the defendant had the mental state required for commission of the underlying offense. Hart, 89 S.W.3d at 63. Here, the underlying offense charged was theft. Theft is committed when a person “unlawfully appropriates property with the intent to deprive the owner of the property.” Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp.2004-2005).

The evidence shows that appellant actively participated in a combination to appropriate over $500,000 worth of property from Texan Ford, namely 19 vehicles. All vehicles were purchased through identity theft. Each of the sales documents, which appellant was required to gather, had discrepancies, including the use of the same photograph on multiple licenses, multiple licenses with the same audit numbers, and several insurance cards with false VINs. Similarly doctored documents were found in appellant’s desk after he was discharged. The named purchasers had unusually high credit scores and out-of-town addresses. No down payments were made, and no vehicle was used as a trade-in. Appellant delivered each of the vehicles off-site. We conclude that, viewed in the light most favorable to the verdict, the evidence was legally sufficient for a rational juror to conclude that appellant intended to deprive Texan Ford of property as alleged in the indictment.

We overrule appellant’s first issue.

Conditions of Community Supervision

The jury assessed appellant’s punishment at ten years’ confinement and recommended that he be given community supervision for ten years. The jury also imposed a $5,895.47 fine. The trial court ordered appellant to serve 180 days’ confinement in the Harris County Jail and to pay $400,000 in restitution to Texan Ford, as conditions of his community supervision.

In his second issue, appellant contends that the 180 days’ confinement the trial judge imposed as a condition of his community supervision is a violation of his Sixth Amendment right to trial by jury. Appellant argues that the recent United Supreme Court decision in Blakely v. Washington prohibits trial judges from adding a time of incarceration to a jury’s assessed punishment of probation. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In his third and fourth issues, appellant contends the $400,000 restitution order imposed by the trial judge is unconstitutional because (1) it violates his Sixth Amendment right to trial by jury and (2) it violates his right to due process. Specifically, in his third issue, appellant argues that Blakely prohibits trial judges from adding a restitution order to a jury’s assessed punishment of probation. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In his fourth issue, appellant contends the restitution order violates his right to due process because the trial court did not orally add the restitution order at the sentencing hearing and there was no factual basis for the amount of the restitution.

Article 42.12 of the Code of Criminal Procedure governs the imposition and terms of community supervision. Tex. Code Crim. Peoc. Ann. art. 42.12 (Vernon Supp.2004-2005).

“Community supervision” means the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which ... a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part.

Id. art. 42.12 § 2(2)(B). The judge must determine the conditions of community supervision, and may alter or modify the conditions at any time. Id. art. 42.12 § 11(a). “The judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.” Id. The conditions of community supervision may include a number of requirements, including submitting a defendant in a felony case to a term of confinement for no longer than 180 days in county jail. Id. art. 42.12 § 12(a). If a defendant is placed on community supervision, the payment of restitution is also a condition of the community supervision. Tex.Code Crim. PROC. Ann. art. 42.037(h) (Vernon Supp.2004-2005).

Generally, a defendant must make a timely and specific objection at trial to preserve his complaint on appeal. Tex.R.App. P. 33.1(a). A defendant’s failure to object to the conditions of community supervision at trial affirmatively accepts the terms. Speth v. State, 6 S.W.3d 530, 534-35 (Tex.Crim.App.1999). Appellant did not object to the conditions of community supervision at the punishment hearing; nor did he file a motion for new trial. Appellant first complained of the conditions of community supervision on direct appeal. Furthermore, appellant signed a copy of the conditions of community supervision stating that he understood the terms and the consequences for failing to comply. The document specifically included a provision confining him to the Harris County Jail for 180 days. The condition of supervision document signed by appellant also included the $400,000 restitution order.

We hold that appellant did not preserve his complaints for appellate review regarding the 180 days’ confinement or the restitution order. See Tex.R.App. P. 33.1(a); Speth, 6 S.W.3d at 534-35. His second, third, and fourth issues were waived.

We overrule appellant’s second, third, and fourth issues.

CONCLUSION

We affirm the judgment of the trial court.

      . Smith explained that, in this type of scheme, the people who receive the vehicles are usually instructed to make three to five payments. By making a few payments, the sales deal goes beyond the "period of recourse,” meaning that the dealership is no longer required to repurchase the vehicle from the finance company.

      . The jury charge included an instruction on the law of parties. A person is "criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both.” Tex. Pen.Code Ann. § 7.01(a) (Vernon 2003). A person is criminally responsible for an offense committed by another if, "acting with intent to promote or assist the commission of the offense he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” Id. at § 7.02(a)(2) (Vernon 2003). "Each party to an offense may be charged with the commission of the offense.” Id. at § 7.01(b).

      . The indictment charged appellant with the theft of 18 vehicles. Theft of property valued at more than $200,000 is a first degree felony. Tex. Pen.Code Ann. § 31.03. "When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.” Tex. Pen.Code Ann. § 31.09 (Vernon 2003).

      . Article 42.037 of the Code of Criminal Procedure governs the imposition of restitution. Tex.Code Crim. Proc. Ann. art. 42.037 (Vernon Supp.2004-2005). In addition to any fine imposed, the trial court that sentences a convicted defendant may order the defendant to make restitution to the victims of his offense. Id. art. 42.037(a). While the trial court has broad discretion when determining restitution, due process requires three limits on the restitution order. Cantrell v. State, 75 S.W.3d 503, 512 (Tex.App.-Texarkana 2002, pet. ref’d). First, the restitution amount must be just and supported by a factual basis in the record. Campbell v. State, 5 S.W.3d 693, 696-97 (Tex.Crim.App.1999). Second, restitution is limited to the offense for which the defendant is criminally responsible. Id. Third, restitution is only proper for the victims of the crime for which the defendant was charged, convicted, and sentenced. Id.


source: Caselaw Access Project

author: JANE BLAND, Justice.

license: Public Domain

text:
    Mary Eyvonne SCURLOCK, Appellant, v. Carol PENNELL, Appellee.
    No. 01-03-01339-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 10, 2005.

      Chuck Portz, Portz & Portz, Houston, TX, for Appellant.
    Larry Knapp, Houston, TX, for Appel-lee.
    Panel consists of Chief Justice RADACK, and Justices HIGLEY and BLAND.
   OPINION

JANE BLAND, Justice.

Mary Scurlock appeals a final summary judgment granted in favor of appellee, Carol Pennell. Scurlock seeks damages resulting from the partial destruction of her home by a fire that originated at Pen-nell’s vacation home next door. We hold that the trial court properly rendered summary judgment on Scurlock’s negligence claim because (1) no material fact issue exists as to whether Pennell owed a duty to Scurlock, and (2) a negligent entrustment claim does not apply to the entrustment of real property. We therefore affirm.

Facts and Procedural History

In November 2000, Pennell’s vacation home caught on fire. The flames spread to Scurlock’s home next door. The fire destroyed Pennell’s vacation home and severely damaged Scurlock’s home. In a summary judgment affidavit, Pennell avers that neither she nor her husband had visited the vacation home for 10 months before the fire. Pennell further avers that she left the home in a secure condition because she locked all the doors and turned off the electricity, gas, and water. Pennell gave no one permission to enter the property the day of the fire. Pennell avers that “about 30 year ago, the property was broken into and a stereo and some speakers were taken.”

Pennell and Scurlock agree that an unknown third party started the fire. Two witnesses offered affidavits that, on the day of the fire, a U-Haul truck was parked at the Pennell home, the garage doors were open, and the house lights were on before they observed a fire.

Scurlock sued Pennell for damages caused by the fire, alleging that Pennell negligently left the home unlocked and the utilities on, thereby inviting vagrants. Alternatively, Scurlock alleges that Pennell negligently entrusted the home to a third party who started the fire. Scurlock’s petition alleges Pennell’s negligent acts as follows:

1. Leaving the home in an open and unsecured condition which was inviting to vagrants and vandals.
2. Leaving the home in a condition that was inviting to vagrants and vandals in an area where homes are prone to trespass and vandalism.
3. Increasing the normal lure of the home to vagrants and vandals by leaving the electricity turned on and available for use by any vagrant or vandal.
4. Essentially advertising the availability of the home to vagrants and vandals by leaving the garage’s light on with its door fully open, thus exposing that the premises had been vacated by the owner.
5. Leaving the garage’s interior fully open and visible, thus communicating that the owner had vacated and removed all but secondary items of property.
6. Leaving the home unsupervised in its obviously opened and available condition to unknown third parties.
7. Failing to take adequate steps to have the security of the home supervised in its obviously opened and available condition.

The trial court granted Pennell’s no-evidence motion for summary judgment.

Standard of Review

After adequate time for discovery, a party may move for summary judgment on the ground that no evidence exists of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R. Crv. P. 166a(i). The motion must state the elements as to which no evidence exists. Id. The trial court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Id.

Pennell styled her motion as a “no-evidence” motion for summary judgment, and based it solely under subsection (i). See Tex.R. Civ. P. 166a(i). Attached to her motion, however, she incorporated her affidavit. The Texas Supreme Court recently has held that, if a motion for summary judgment brought solely under subsection (i) attaches evidence, such as Pennell’s motion here, then “that evidence should not be considered unless it creates a fact question, but such a motion should not be disregarded or treated as a motion under subsection (a) or (b).” Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004); see also Tex.R. Crv. P. 166a(a), (b), (i). We thus do not consider Pennell’s affidavit, except to the extent it creates an issue of material fact. See Binur, 135 S.W.3d at 651.

Negligence

A negligence cause of action has three elements: a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). “Proximate cause requires both cause in fact and foreseeability.” Id. Foreseeability exists if the actor, as a person of ordinary intelligence, should have anticipated the dangers his negligent act creates for others. Id.

Pennell characterizes this case as one alleging negligent activity, rather than one alleging premises liability against a landowner. In Timberwalk Apartments, Partners, Inc. v. Cain, the Texas Supreme Court explains these two concepts. 972 S.W.2d 749, 753 (Tex.1998). Recovery for a negligent activity requires that a person have been injured by the activity itself, rather than by a condition created by the activity; in contrast, recovery for premises liability depends upon a failure to use ordinary care to reduce or to eliminate an unreasonable risk of harm created by a premises condition about which the owner or occupier [of land] knows or, in the exercise of ordinary care, should know. Id.

In Timberwalk, a tenant who had been raped in her apartment sued the landlord and management company for their negligent failure to provide adequate security. 972 S.W.2d at 751. The tenant asserted that the landlord’s failure to provide adequate security measures created an unreasonable risk of harm about which the landlord knew or should have known, but failed to correct. Id. at 753. The Timberwalk court held that “a complaint that a landowner failed to provide adequate security against criminal conduct is ordinarily a premises-liability claim,” and therefore, the trial court had properly refused a jury charge under a negligent-activity theory. Id.

Like Timberwalk, the present case involves a complaint that a landowner failed to provide adequate security against criminal conduct. Scurlock was injured by the criminal actions of a third party, and alleges that Pennell failed to exercise reasonable care to reduce or eliminate a foreseeable risk that criminal activity might occur. Scurlock did not sue for nuisance or trespass. Although Scurlock is not an invitee, we follow the analysis in Timberwalk in analyzing Seurlock’s allegations of negligence. See id.

Property owners owe a legal duty to those whom a third-party criminal act may harm only if the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 655 (Tex.1999); see also Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 550 (Tex.1985) (“Usually, the criminal conduct of a third party is a superseding cause relieving the negligent actor from liability. However, the tortfeasor’s negligence will not be excused where the criminal conduct is a foreseeable result of such negligence.”). Foreseeability is a dominant consideration in determining whether a legal duty exists. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). The Texas Supreme Court analyzes foreseeability with a two-prong test:

[I]t is not required that the particular accident complained of should have been foreseen. All that is required is (1) “that the injury be of such a general character as might reasonably have been anticipated; and (2) that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.”

Mellon Mortgage, 5 S.W.3d at 655 (quoting Nixon, 690 S.W.2d at 551). Stated broadly, we determine both the foreseeability of the general danger and whether that danger would harm a particular plaintiff. Id. Factors that a court should consider in determining whether certain criminal conduct is foreseeable include: (1) whether any criminal conduct previously occurred on or near the property, (2) how recently such conduct occurred, (3) how often it occurred, (4) how similar the prior conduct was to the conduct on the property, and (5) what publicity surrounded the occurrences to indicate that the landowner knew or should have known about them. Timberwalk, 972 S.W.2d at 757. “If, after applying the Timberwalk factors of similarity, recency, frequency, and publicity, we determine that the general danger of the criminal act was foreseeable, we then apply the second prong of the foreseeability analysis and determine whether it was foreseeable that the injured party, or one similarly situated, would be the victim of the criminal act.” Mellon Mortgage, 5 S.W.3d at 656-57 (citing Timberwalk, 972 S.W.2d at 756-57).

In her affidavit, Pennell acknowledges one episode of criminal activity associated with the vacation home, occurring 30 years before the date of the fire. Scurlock presented affidavit evidence from one witness of “a few” burglaries in the surrounding area at other residences, as well as evidence that the lights were on in Pennell’s home on the day of the fire. Scurlock also presented evidence that a U-Haul truck was present at Pennell’s home on the day of the fire.

Scurlock offered no evidence of how recently these area burglaries had occurred, how many burglaries occurred, how similar the burglaries were to the criminal conduct at the Pennell home, the location of such burglaries, and whether the media publicized the burglaries in a manner that Pen-nell either knew or should have known about them. We thus hold that the summary judgment evidence is insufficient to raise a fact issue that Scurlock’s injury is “of such a general character as might reasonably have been anticipated.” See Mellon Mortgage, 5 S.W.3d at 655.

Even assuming that criminal activity in “the area” raises a fact issue as to whether a general risk of criminal conduct exists, Pennell could not foresee that Pennell would be the victim of this third-party criminal act. See Timberwalk, 972 S.W.2d at 759 (holding that a sexual assault on defendant’s property was not foreseeable when no violent personal crime had occurred on the property in 10 years). Assuming that Pennell should have known about recent burglaries in the area, none of the summary judgment evidence suggests that Pennell could have foreseen this occurrence — that of arson to Scurlock’s home, spreading to the adjoining property. See id.

As the Texas Supreme Court has observed, “[Pjlacing a duty on landowners to prevent criminal acts on their property simply because criminals could gain access to their land would make landowners the insurers of crime victims, regardless of the lack of connection between the landowner and either the victim or the perpetrator.” Mellon Mortgage, 5 S.W.3d at 658. We hold that the record, viewed in a light favorable to the non-movant, raises no evidence that Pennell owed a legal duty to Scurlock.

Negligent Entrustment

Scurlock contends that the trial court erred in rendering summary judgment on her negligent entrustment claim. Negligent entrustment in Texas applies only to chattels; Texas courts have not extended the concept to include the en-trustment of real property. See, e.g., Schwartz v. Forest Pharm., Inc., 127 S.W.3d 118, 122 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (automobile); Amaya v. Potter, 94 S.W.3d 856, 866 (Tex.App.-Eastland 2002, pet. denied) (automobile); Prather v. Brandt, 981 S.W.2d 801, 806 (Tex.App.-Houston [1st Dist] 1998, pet. denied) (&earm). The trial court thus properly granted Pennell’s motion for summary judgment on Scurlock’s negligent entrustment claim.

Conclusion

We hold that the trial court properly rendered summary judgment on Scurlock’s negligence claim because (1) no material fact issue exists as to whether Pennell owed a duty to Scurlock, and (2) a negligent entrustment claim does not apply to the entrustment of real property. We therefore affirm the judgment of the trial court.

      . Pennell does not contend that no duty to Scurlock exists because Scurlock is an adjoining landowner and not an invitee or licensee.

      . Dennis Walker's affidavit states as follows: I saw a U-Haul truck. Mrs. Martin remembered seeing one also that day. Fire started around 12:30 or so. Lights were on in house — . Saw smoke as driving home 20 min. later & lights were off. Saw fire upstairs in red house (Pennell's). No signs of suspicious people or vehicles. Saw fire spread to Scurlock's house. A few burglaries in area w/ other residences, but no suspicious signs w/ the Pennell house. Fire investigator said all fuse boxes were off. Fire investigator thought what was left in the house were secondary items. Not stuff someone would furnish a home with.


text:
    Bernave SOSA, Appellant, v. The STATE of Texas, Appellee.
    Nos. 01-04-00074-CR, 01-04-00075-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 24, 2005.

      Floyd W. Freed, III, Houston, for Appellant.
    Eric Kugler, Asst. Dist. Atty. of Harris County, Charles A. Rosenthal, Jr., Dist. Atty.-Harris County, Houston, for Appel-lee.
    Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
   OPINION

JANE BLAND, Justice.

In cause number 934032, appellant, Ber-nave Sosa, pleaded not guilty to the aggravated robbery of Darlene Galvan. The trial court found him guilty and sentenced him to 40 years’ confinement. In cause number 934033, Sosa pleaded not guilty to the aggravated assault of Adriana Galvan. The trial court found him guilty and sentenced him to 20 years’ confinement. We hold that the evidence is legally and factually sufficient to support the convictions. We therefore affirm.

Facts

Darlene Galvan lived at 1002 Avenue B with her boyfriend, Glen Ellis, and her daughters, Janelle (age 14), Vanessa (age 12), and Adriana (age 8). One afternoon in December 2002, two men broke into Darlene’s home. Both suspects wore black ski masks and carried guns. One intruder was heavyset and wore a blue sweat shirt and jeans. The other intruder, later identified as Sosa, was smaller and wore a white T-shirt and jeans.

Darlene, her three daughters, and her daughter’s friend were home during the break-in. Ellis was not home. From her bedroom, Darlene heard Adriana run down the hallway, screaming, “Mommy, mommy, help me.” Janelle testified that she saw one of the intruders chase Adriana with a gun. Janelle was not certain, but she thought the man in the dark sweat shirt was the one who chased Adriana.

When Darlene opened her bedroom door, Sosa pointed a gun to her head. Sosa then grabbed Darlene and threw her onto the floor in Janelle’s bedroom, where Adriana, Janelle, and her friend lay on the floor screaming. The two gunmen demanded money, and Darlene replied, “Please don’t kill my kids.” Both gunmen walked in and out of Janelle’s room; however, the man in the blue shirt remained in the bedroom for most of the time. Darlene testified that the man who remained in the bedroom pointed the gun at Darlene and the girls, demanding them to sit still. One of the men grabbed Darlene’s small safe from her bedroom and threw it on top of Darlene.

From a different area of the house, Vanessa saw the man in the white T-shirt holding a gun at her mother’s head. Vanessa was afraid and ran out of the house. She saw a Suburban parked in the driveway. When the driver noticed Vanessa, he honked his horn and drove away. Vanessa ran to the neighbor’s house, and the neighbor called the police.

Officers Michael Amador and Mark Mills responded to the call. Officer Ama-dor entered the home and pursued the two masked men, who ran into Darlene’s bedroom, shut the door, and broke a window in an attempt to escape. Officer Amador saw Sosa climbing out through the window. Officer Amador stayed inside to protect the victims. Officer Mills ran outside and followed Sosa as he ran through the adjacent back yard, into a nearby alleyway, and into a breezeway between two businesses. Remaining in constant radio communication with the other officers, Officer Mills chased Sosa. Officer Mills lost sight of Sosa for “a matter of seconds” as he rounded the corners; however, no other people were outside during the chase. Detective Chance, who had been monitoring the chase via his car radio, drove to the scene and apprehended Sosa.

The officers arrested Sosa and drove him back to Darlene’s house. Darlene and Officer Amador identified Sosa based on his clothing, height, and build. Janelle identified Sosa based on his clothing. The intruders had ransacked Darlene’s bedroom and had taken Ellis’s gun. The officers recovered the ski masks, weapons, and bullets, none of which contained evidence as to the identity of the intruders.

Standards of Review

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004). In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Id. (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex.Crim.App.2004)). Although our analysis considers all the evidence presented at trial, the trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986). We may not substitute our own judgment for that of the fact finder. Johnson v. State, 23 S.W.3d 1, 12 (Tex.Crim.App.2000).

Sufficiency of the Evidence

A person commits aggravated robbery if he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death, in the course of committing theft, with intent to obtain or to maintain control of the property, and uses or exhibits a deadly weapon (here, a firearm). See Tex. Pen.Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003). A person commits aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury, and uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen.Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2004^-2005).

Identity

With regard to the aggravated robbery and aggravated assault convictions, Sosa contends that the evidence is legally and factually insufficient to establish his identity because the witnesses did not describe his facial appearance. Rather, the witnesses identified him based upon his clothing, height, and build. Identification based upon an individual’s build, when corroborated with additional evidence, can be legally sufficient. See Hutchinson v. State, 42 S.W.3d 336, 342-43 (Tex.App.-Texarkana 2001), aff'd 86 S.W.3d 636 (Tex.Crim.App.2002) (holding that evidence sufficient based upon testimony of defendant’s build, gait, and hat); Lunn v. State, 753 S.W.2d 492, 495-96 (Tex.App.-Beaumont 1988, no pet.) (holding that evidence sufficient based upon victim’s recognition of defendant’s eyes, voice, and words used during assault).

Darlene described Sosa as a smaller man, wearing a white T-shirt and jeans. When the police arrived at Darlene’s house after arresting Sosa, Darlene identified Sosa as the same man who had pointed a gun at her in her hallway. She recognized Sosa based upon his clothing, the way his clothing fit, his height, build, and the “way he looked.” Janelle identified Sosa based on his clothing. She testified that Sosa’s white T-shirt was torn “like somebody was pulling him,” and he had facial cuts from the broken glass. Officer Amador identified Sosa as the intruder he had seen inside Darlene’s home based upon his clothing, height, and build.

Moreover, Sosa fled from the scene of a home invasion. The mere presence of an accused at the scene of an offense is not alone sufficient to support a conviction; however, it is a circumstance tending to prove guilt which, combined with other facts, may suffice to show that the accused was a participant. Valdez v. State, 623 S.W.2d 317, 321 (Tex.Crim.App.1979). While flight alone will not support a guilty verdict, evidence of flight from a crime scene is a circumstance from which an inference of guilt may be drawn. Id. Officer Mills chased Sosa from the adjacent backyard to the point of arrest. Officer Mills lost sight of Sosa for mere seconds as he rounded the corners; however, no other people were outside during the chase. Officer Mills identified Sosa based on his clothing and build.

Thus, the witnesses identified Sosa based upon more than his build. They also identified his clothing and height. See Hutchinson, 42 S.W.3d at 342, aff'd 86 S.W.3d 636. Additionally, Sosa’s presence at the scene and flight therefrom are circumstances tending to prove guilt. See Valdez, 623 S.W.2d at 321. Sosa’s contention that the identification is unreliable because the intruder wore a mask goes to the witnessess’ credibility. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.1999) (stating that trier of fact is sole judge of credibility of eyewitnesses and strength of evidence).

Viewing all of the evidence in the light most favorable to the verdict, a rational trier of fact could have established Sosa’s identity beyond a reasonable doubt with regard to the aggravated robbery and aggravated assault convictions. See Escamilla, 143 S.W.3d at 817. We thus hold that the evidence is legally sufficient. Sosa’s factual sufficiency complaint reasserts the same claims as those in his legal sufficiency complaint. Sosa did not testify at trial and the State’s evidence is not inherently weak. Viewing all of the evidence in a neutral light, the evidence is not so weak that the verdict is clearly wrong and manifestly unjust; therefore, we hold that the evidence is factually sufficient. See id.

Imminent Bodily Injury

With regard to the aggravated assault conviction, Sosa contends that the evidence is legally and factually insufficient to establish that he threatened Adriana with imminent bodily injury because Adriana did not testify. Janelle testified that, although she was not certain, she thought the other intruder—the man in the dark sweat shirt—chased Adriana while pointing his gun at her. Darlene testified that the other intruder pointed a gun at Darlene, Adriana, and the other girls, demanding them to sit still. Darlene and Janelle testified that Sosa demanded money while he walked in and out of the bedroom, where Darlene, Adriana, and the other girls remained on the floor.

“The display of a deadly weapon of and within itself constitutes a threat of the required imminent harm.” Robinson v. State, 596 S.W.2d 130, 138 n. 7 (Tex.Crim.App.1980) (holding that omission of “imminent” from jury instruction on element of placing another in fear of imminent bodily injury or death was not error); cf. Peterson v. State, 574 S.W.2d 90, 92 (Tex.Crim.App.1978) (holding that, “implicit in the allegation that a ‘Deadly Weapon’ was used to threaten the complainant is the possibility that the complainant was threatened with death as well as bodily injury”). The evidence in this case establishes that the other intruder, not Sosa, “pointed” a gun at Adriana. Darlene and Janelle testified, however, that Sosa held a gun in his hands, demanded money, and walked in and out of the bedroom where Adriana remained on the floor. Sosa’s display of a deadly weapon while demanding money constitutes a threat of the required imminent harm. See Robinson, 596 S.W.2d at 133 n. 7.

Moreover, under the law of parties—which the trial court, as fact-finder, could consider—a person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen.Code Ann. § 7.02(a)(2) (Vernon 2003). The evidence establishes that the other intruder pointed his gun and chased Adriana. Under the law of parties, Sosa is criminally responsible for the aggravated assault because Sosa, acting with intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid the other person to commit the offense. See Johnson v. State, 6 S.W.3d 709, 711 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) (holding sufficient evidence of aggravated robbery under law of parties because defendant performed reconnaissance of robbery location and drove getaway car, but was not present at robbery when gun was displayed); see also Escobar v. State, 28 S.W.3d 767, 774 (Tex.App.-Corpus Christi 2000, pet. ref'd) (holding sufficient evidence of aggravated robbery under law of parties because defendant entered getaway vehicle with stolen merchandise while third party pointed gun at victim); Brewer v. State, 852 S.W.2d 643, 647 (Tex.App.-Dallas 1993, pet. ref'd) (holding sufficient evidence of aggravated robbery under law of parties because defendant dropped off and picked up accomplice who committed armed robbery).

Viewing all of the evidence in the light most favorable to the verdict, a rational trier of fact could have established beyond a reasonable doubt that Sosa threatened Adriana with imminent bodily injury. See Escamilla, 143 S.W.3d at 817. We thus hold that the evidence is legally sufficient. Here, Sosa’s factual sufficiency complaint reasserts the same claims as those in his legal sufficiency complaint. Sosa did not testify at trial and the State’s evidence is not inherently weak. Viewing all of the evidence in a neutral light, the evidence is not so weak that the verdict is clearly wrong and manifestly unjust; therefore, we hold that the evidence is factually sufficient. See id.

Conclusion

We hold that the evidence is legally and factually sufficient to support the convictions. We therefore affirm the judgments of the trial court.

      . The record is unclear as to which man threw the safe.

      . The State's brief asserts that Sosa pointed the gun at "everyone in the room at one point or another,” demanding them to sit still. In contrast, the record indicates that the other intruder pointed the gun at everyone in the room. Specifically, Darlene testified that the man in the blue shirt "pretty much stayed in Janelle's bedroom,” while Sosa was “in the master bedroom more.” Darlene further testified that the man in Janelle’s bedroom pointed the gun at her and the girls, and he demanded that they sit still.


author:
LAURA HIGLEY, Justice.
      JANE BLAND, Justice,

text:
    Wanda HUDSON, As the Mother of Sun, Appellant, v. TEXAS CHILDREN’S HOSPITAL, Appellee.
    No. 01-05-00143-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 1, 2005.

      Mario Caballero, Houston, TX, for Appellant.
    Glenda Hobbs Kirsch, Marcia Morgan Pevey, Earnest W. Wotring, Connelly, Baker, Maston, Wotring & Jackson, L.L.P., Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
   OPINION

LAURA HIGLEY, Justice.

Appellant, Wanda Hudson, as the mother of Sun, sought injunctive relief in the trial court, requesting that appellee, Texas Children’s Hospital (“the hospital”) be ordered to continue life-sustaining treatment for her infant (“Sun”). Hudson based her claims on Texas Health and Safety Code subsection 166.046(g) (hereinafter “subsection 166.046(g)”), the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”), and the Texas Health and Safety Code section 311.022 (commonly referred to as “the Texas anti-dumping statute”).

Of the seven issues presented by Hudson on appeal, the dispositive issue that we address is whether the trial judge erred by denying Hudson’s motion to recuse himself, rather than referring the motion to the presiding judge of the statutory probate courts for assignment to another judge for determination, as required by our rules of procedure. Because we conclude that the trial judge did not follow this mandatory, prescribed procedure with regard to Hudson’s motion to recuse, we reverse and remand.

Factual and Procedural Background

Sun was born on September 25, 2004 at Hermann Hospital. Shortly thereafter, the infant was transferred to Texas Children’s Hospital where he was diagnosed with the genetic disorder “thanatophoric dysplasia” and placed on a ventilator. Sun’s treating physicians determined that, based on the infant’s prognosis, it was inappropriate to continue life-sustaining treatment. On October 13, 2004, the hospital’s bioethics committee met to review the decision of the treating physicians as required by Texas Health and Safety Code subsection 166.046(a). The committee agreed with the decision of the treating physicians to discontinue life-sustaining treatment and informed Hudson of its determination. The hospital’s bioethics committee reconvened and finalized its decision on November 18, 2004. On that date, the hospital also notified Hudson in writing that it would discontinue care of Sun within 10 days, as provided in Health and Safety Code section 166.046, unless Hudson located a physician and hospital willing to care for Sun. Hudson requested an extension until December 6 to locate alternate medical care for her infant. The hospital agreed to the extension.

Litigation ensued with Hudson filing suit, seeking an injunction to compel the hospital to continue life-sustaining treatment for Sun and monetary damages. At the outset, the trial court issued a temporary restraining order, preventing the hospital from discontinuing life-sustaining treatment for Sun. The restraining order was extended as the litigation progressed.

On February 8, 2005, the trial court granted the hospital’s special exceptions as to Hudson’s EMTALA and Texas anti-dumping claims. The trial court also dismissed these claims, leaving only Hudson’s claim for injunctive relief under subsection 166.046(g). Also on February 8, the trial court granted the hospital’s motion to quash subpoenas, which had been filed by Hudson.

The trial court set Hudson’s temporary injunction for hearing on February 9, 2005. At the hearing, Hudson requested the trial court to reconsider its rulings on the special exceptions. The trial court agreed, but expressed concern over further delaying the ultimate resolution of the matter. In this regard, the presiding judge remarked, “I am concerned about this continuing to go on and on because I am concerned about the baby. I understand that the baby is in significant pain. I think the longer we are going on with this, especially, if the end result is going to be the same-I think, you know, it’s something that we all need to take into account.” At that point, Hudson’s counsel asked, ‘Your Honor, may I ask how the Court knows that the child is in significant pain, since, we haven’t heard any testimony?” and inquired whether there had been ex parte communication. The trial judge responded, “I don’t know where it would have been. I think I read it in the newspaper. I don’t know who told me.” Hudson orally moved for a mistrial; the trial court did not expressly rule on the motion for mistrial.

The hearing then continued with regard to Hudson’s subsection 166.046(g) claim, requesting the court to order the hospital to continue life-sustaining treatment for Sun. To obtain that relief, Hudson had the burden to show by a preponderance of the evidence that there was a reasonable expectation that another physician or health care facility would honor her directive to continue life-sustaining treatment to Sun. Hudson admitted that she had no evidence to present at that time and had not found a healthcare provider who would care for Sun.

The court ruled that, pending the hearing on Hudson’s motion for reconsideration, its order requiring the hospital to continue life-sustaining treatment for Sun remained in effect. The court also held that it deferred its final ruling on Hudson’s subsection 166.046(g) request until the hearing on the motion for reconsideration to allow additional time for Hudson to find an alternate healthcare provider for Sun.

On February 14, Hudson filed her “Motion for New Trial and To Reconsider Ruling Granting Defendant’s Special Exceptions and to Quash Subpoenas.” The hearing on the motion was scheduled for 2:00 p.m. on February 16. Shortly before the hearing began on the 16th, Hudson filed a verified motion to recuse the trial judge. The motion was based on the remarks that the trial judge had made at the February 9th hearing pertaining to Sun’s being in “significant pain.” The motion alleged that the trial judge has “a preconceived factual opinion that creates a bias and prejudice that prevents him from making a fair decision.”

At the beginning of the February 16th hearing, the trial judge stated on the record that Hudson had filed the motion for recusal shortly before the hearing. The hospital argued that the motion to recuse had not been brought in good faith but for purposes of delay. The trial judge orally denied the motion, concluding that, because Hudson had knowledge of the basis for the motion since the 9th, the motion was untimely. The trial judge also clarified that he had read in the pleadings that Sun was in pain.

The court then continued with the hearing and heard arguments related to Hudson’s motion for reconsideration. At the conclusion of the hearing, the trial court ruled that Hudson’s motion for rehearing on the special exceptions was denied. The court also stated that Hudson’s subsection 166.046(g) request for the court to order the hospital to continue life-sustaining treatment was denied. The trial court then signed (1) an order denying Hudson’s motion for new trial and motion to reconsider the granting of the hospital’s special exceptions and motion to quash subpoenas, (2) a final judgment denying Hudson’s request for extension of time under Texas Health and Safety Code subsection 166.046(g), and (3) an order denying Hudson’s motion to recuse. The order denying the motion to recuse provided, in part, that the motion was not timely filed and that Hudson had not shown good cause for not filing the motion earlier.

Hudson filed a notice of appeal in this Court on February 16, 2005. We stayed the enforcement of the trial court’s final judgment and ordered an expedited briefing schedule.

Recusal

In her first issue, Hudson contends that the trial judge did not follow proper procedure when he denied her motion to recuse. In response, the hospital contends that the trial judge was permitted to determine the motion’s timeliness and then dismiss it on that basis.

Once a motion to recuse is filed in statutory probate court, the trial judge has two options before taking any other action: (1) recuse himself or (2) request that the presiding judge of the statutory probate courts assign a judge to hear the motion to recuse. Tex. Gov’t Code Ann. § 25.00255(f) (Vernon 2004); Tex.R. Civ. P. 18a(e). The Texas Supreme Court has held that the recuse or refer procedure is mandatory. See McLeod v. Harris, 582 S.W.2d 772, 774 (Tex.1979).

The recusal movant must file her motion to recuse 10 days before the next trial or hearing. Tex. Gov’t Code Ann. § 25.00255(b); Tex.R. Civ. P. 18a(a). However, “[the] ten-day requirement of Rule 18a does not contemplate the situation in which a party cannot know the basis of the recusal until after a motion for recusal is no longer timely.” Keene Corp. v. Rogers, 863 S.W.2d 168, 171 (Tex.App.-Texarkana 1993, no writ); see also Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (‘Where the mov-ant in a motion to recuse does not receive 10 days notice of the hearing on the matter from which he seeks to recuse the judge, the 10-day requirement of rule 18a(a) cannot apply.”).

We acknowledge that this Court has implied that a trial judge may determine whether the 10-day requirement of Rule 18a(a) has been met before deciding whether to recuse or refer. Petitt v. Laware, 715 S.W.2d 688, 692 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.) (concluding that mandatory provisions to recuse or refer do not come into play if motion is untimely filed). The instant case, however, belongs to a subset of cases in which the 10-day requirement of Rule 18a(a) does not apply because either (1) the claimed event that triggers recusal occurs less than 10-days before the next scheduled hearing or (2) the movant in a motion to recuse does not receive 10 days notice of the hearing on the matter from which he seeks to recuse the judge. We have found no authority in which the triggering event occurred within the 10-day period preceding trial or a scheduled hearing and it was held that it was proper for the trial judge to determine whether the written motion to recuse was filed timely. To the contrary, when the timing of events renders the 10-day requirement inapplicable, courts have held that the trial judge has only two options: recuse or refer. See Metzger, 892 S.W.2d at 49; see also In re Healthmark Partners, L.L.C., No. 14-04-00743-CV, 2004 WL 1899953, at *1-*2 (Tex.App.-Houston [14th Dist.] Aug. 26, 2004, orig. proceeding) (mem.op.) (ruling that trial judge could not refuse to act on motion to recuse filed three days before trial and based on judge’s comments made five days before trial; rather, judge was required to recuse or refer).

Whether Hudson’s motion to re-cuse was not timely because no good cause was shown for the seven-day delay in its filing was not for the trial judge to determine. Rather, the determination of whether a motion to recuse is timely, particularly when the 10-day requirement of Rule 18a(a) is inapplicable, is a fact-intensive inquiry to be made by the judge assigned to hear the motion to recuse. See In re Healthmark Partners at *2 (concluding that determination of whether recusal movant brought motion for purposes of delay and without sufficient cause, in context of Rule 18a(f) sanctions, was for judge who heard recusal motion to decide). Thus, once a motion to recuse is filed, a trial judge must either recuse or refer and make no other determinations. “To hold otherwise undermines the purpose of the rule: to distance the trial judge from the recusal proceedings and afford a neutral arbitration of the movant’s complaint.” Bruno v. State, 916 S.W.2d 4, 9 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd) (Hedges, J., concurring). This is especially true, when, as here, the movant complains that the trial judge’s handling of the proceedings may be governed by personal bias. Such procedure serves not only to protect the movant and the integrity of the proceedings, but also to protect the judge from later accusations that his decision to deny the motion was equally motivated by bias or prejudice.

Based on the circumstances presented, the trial judge had two options: to recuse himself or refer the motion for determination by another judge. See Metzger, 892 S.W.2d at 49. Because he did neither, his actions taken after the motion to recuse was filed are “void.” Johnson v. Pumjani, 56 S.W.3d 670, 672 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Brosseau v. Ranzau, 28 S.W.3d 235, 238 (Tex.App.-Beaumont 2000, no pet.); In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 180 (Tex.App.-Corpus Christi 1999, orig. proceeding). Such actions include the trial judge’s signing of (1) the order denying Hudson’s motion for new trial and motion to reconsider the granting of the hospital’s special exceptions and motion to quash subpoenas, (2) the final judgment denying Hudson’s request for extension of time under Texas Health and Safety Code § 166.046(g), and (3) the order denying Hudson’s motion to recuse.

The hospital also contends that the motion to recuse was properly denied because (1) the motion was not based on personal knowledge, (2) the motion failed to state valid grounds for recusal, (3) Hudson orally disavowed the motion filed by her counsel at the hearing on February 16, 2005, and (4) Hudson was estopped from fifing the motion because she had requested affirmative relief from the trial court after the event on which she based the motion to recuse. However, these are also issues that were not appropriate for the trial judge to determine. See Carson v. McAdams, 908 S.W.2d 228, 228 (Tex.App.Houston [1st Dist.] 1993, orig. proceeding); Carson v. Gomez, 841 S.W.2d 491, 492-93 (Tex.App.-Houston [1st Dist.] 1992, no writ). As we have stated, the trial here had two options after the motion to recuse was filed: recuse or refer.

The dissent states that our holding that the trial judge is required to either recuse or refer a motion to the administrative judge is “in error and contrary to this Court’s precedent.” We feel duty-bound to point out that the dissent’s statement is contrary to the applicable law of this case and is supported by inapposite authority.

The dissent cites Texaco v. Pennzoil, 729 S.W.2d 768, 855 (Tex.App.-Houston [1st Dist.] 1986, writ. ref'd n.r.e.) and Gill v. Texas Department of Criminal Justice, 3 S.W.3d 576, 579 (Tex.App.-Houston [1st Dist.] 1999, no pet.), in support of its position. Both Texaco and Gill, however, involved circumstances and issues distinct from what is presented here. Neither case stands for the proposition that a trial judge may review a motion to recuse to determine whether it states valid grounds for recusal before the trial judge must follow the mandatory requirements of Rule 18a to recuse himself or refer to the administrative judge. To the contrary, and significantly, both Texaco and Gill involved circumstances in which the trial judge had followed the recuse or refer mandate of Rule 18a. Texaco, 729 S.W.2d at 853; Gill, 3 S.W.3d at 578.

In Gill, the trial judge refused to recuse himself and then referred the matter to the administrative judge, as required by Rule 18a. Gill, 3 S.W.3d at 578. The administrative judge then assigned the motion to another judge for determination. Id. After the assignment, the recusal mov-ant filed objections to the assigned judge hearing the motion. Id. at 579. The assigned judge denied the motion to recuse the trial judge without addressing the movant’s objections to his own assignment. Id. On appeal, the movant asserted that the assigned judge was required to disqualify himself pursuant to Texas Government Code section 74.053, which governs peremptory challenges to visiting judges. Id. at 578.

This Court determined that the mov-ant’s objections to the assigned judge were governed by the requirements of Rule 18a. Id. at 579. One of the requirements of Rule 18a is that the motion be verified. Id. We concluded that the motion was not properly verified, even under the less rigid standards afforded prison inmates such as the movant. Id. For this reason, we held that the movant had waived his right to complain of the visiting judge’s assignment on appeal. Id.

In contrast, the instant case does not involve an objection to a visiting judge and does not involve an unverified motion. Indeed, the motion in this case was verified. Thus, our holding in Gill is inapposite to the instant issue before us.

Our holding in Texaco is also inapplicable to the instant case. In Texaco, the trial judge referred the motion to recuse to the administrative judge, who determined the motion to recuse. Texaco, 729 S.W.2d at 853. The administrative judge found that the reason stated in the motion to recuse the trial judge was not valid and refused to hold a further hearing on the matter. Id. at 852. The issue in Texaco was not whether the trial judge could determine the validity of the motion on its face before deciding to recuse or refer. Rather, the issue presented in Texaco was whether the administrative judge was required to hold an evidentiary hearing on the motion to recuse before denying it. Id. Thus, it was in this context that we recognized that “[wjhile rule 18a does mandate a hearing on a motion to recuse, such requirement is not triggered unless the recusal motion states valid grounds for disqualification.” Id. at 855. Because the instant case does not involve whether the judge to whom a motion to recuse is assigned must hold a hearing before denying the motion, our holding in Texaco is equally inapposite to the issue before us.

With respect to recusal motions filed within the 10-day period before a hearing or trial, as discussed above, this Court’s decisions are entirely internally consistent and are consistent with that of our sister court, the Fourteenth Court of Appeals. See Metzger, 892 S.W.2d at 49; Healthmark Partners, L.L.C., No. 14-04-00743-CV, 2004 WL 1899953, at *1-*2. This Court has never held that a trial judge may deny a motion to recuse based on his or her own judgment that the motion failed to present valid grounds for recusal. This Court has also never held, as advocated by the dissent, that a recusal movant “waives” her right to appeal the trial judge’s failure to follow the mandatory recuse or refer procedure under such circumstances, when the motion does not state valid grounds. Such holdings would nullify the fundamental purpose of the rule: to have a neutral arbitration of the movant’s complaint.

We sustain Hudson’s first issue.

Conclusion

We hold that the trial judge erred when he did not follow the mandatory requirements either to recuse himself or to refer the motion to recuse to the presiding judge of the statutory probate courts and instead denied the motion to recuse.

Accordingly, we reverse the final judgment of the trial court and remand the cause to that court to allow the trial judge either to recuse or to refer to the presiding judge of the statutory probate courts. The case, in effect, returns to the point in time when the motion to recuse was filed.

Because of the time-sensitive nature of what is at stake in this case, no motion for rehearing will be entertained. See Tex. R.App. P. 49.4. The mandate may issue early in this case if the parties so agree, or for good cause on the motion of a party. Tex.R.App. P. 18.1(c).

Justice BLAND, concurring.

En banc consideration was requested.

A majority of Justices voted against en banc consideration.

Justice JENNINGS, dissenting from the denial of en banc consideration.

JANE BLAND, Justice,

concurring.

I join the court’s opinion and write separately to add two observations.

First, our holding that the motion to recuse must be referred to another judge for review is not an opinion as to the timeliness or the merit of the motion, nor should it be read as a criticism of the character of the trial judge. See In re Union Pacific Resources Co., 969 S.W.2d 427, 429 (Tex.1998) (Hecht, J., concurring) (“While no judge likes to think of being perceived as partial, a hearing on a motion to recuse is simply not a trial of the judge’s character and should not be treated as such.”). Although the motion ultimately may prevail or fail, the method by which our court system handles such motions is fundamental to public confidence in the judiciary. See Johnson v. Pumjani, 56 S.W.3d 670, 672 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (holding that procedurally insufficient motions to recuse must be referred so as to avoid even the appearance of impropriety; court system’s handling of motions to recuse “goes to the very heart of the promise of impartiality.”). Thus, “[t]he less a judge is involved in recusal proceedings, voluntarily or involuntarily, the better.” Union Pacific, 969 S.W.2d at 429 (Hecht, J., concurring).

Second, our own court — as well as other courts of appeals — has taken divergent positions as to whether the sitting judge may deny a recusal motion as procedurally deficient and thus be excused from referring it to another judge for a hearing. These opinions differ in result depending upon the circumstances. Such inconsistent decisions create uncertainty for a trial court faced with an untimely or otherwise procedurally defective motion to recuse — sometimes the trial judge may be found to have the authority to deny the recusal motion without referring it, but sometimes not. If a trial judge cannot determine timeliness (and Rule 18a does not provide that he can), then we should say so consistently— so that referral of recusal motions becomes automatic, no matter the circumstance. See Tex.R. Civ. P. 18a.

TERRY JENNINGS, Justice, dissenting from the denial of en banc consideration.

TERRY JENNINGS, Justice, dissenting.

I respectfully dissent from the denial of en banc consideration of this case. Appellant filed an inadequate motion to recuse the trial judge and waived her right to complain about this issue on appeal. The panel’s holding that the trial judge was required either to “recuse himself or refer [appellant’s motion to recuse] for determination by another judge” is in error and contrary to this Court’s precedent, and extraordinary circumstances require en banc consideration. See Tex.R.App. P. 41.2(c).

Here, appellant, in her motion to recuse, asserts that the trial judge “made a factual finding that Sun was in ‘significant pain.’ ” Appellant alleges that “[s]uch a view could cause prejudice and bias and impartiality” because the judge was “likely [to] feel inclined to decide to make a ruling that would remove Sun from life support in order to relieve him of the pain.” From this, appellant concludes that the trial judge had “a preconceived factual opinion that creates bias and prejudice that prevents [him] from making a fair decision.”

A party in a hearing or trial in a statutory probate court may file a motion stating grounds for the recusal or disqualification of a judge. Tex. Gov’t Cobe Ann. § 25.00255(a) (Vernon 2004); Tex.R. Civ. P. 18a(a). Such a motion “must” be verified and “state with particularity” the “grounds” for recusal or disqualification of the judge. Tex. Gov’t Code Ann. § 25.00255(b) (Vernon 2004); Tex.R. Civ. P. 18a(a). The allegations in the motion must be based on “personal knowledge” or “specifically state” the grounds for the party’s belief of the allegations. Tex. Gov’t Code Ann. § 25.00255(b)(3) (Vernon 2004); Tex.R. Civ. P. 18a(a). Once such a motion is filed in statutory probate court, the trial judge must either (1) recuse himself or (2) request that the presiding judge of the statutory probate courts assign a judge to hear the motion. Tex. Gov’t Code Ann. § 25.00255(f) (Vernon 2004); Tex.R. Civ. P. 18a(c).

However, when a recusal motion is filed, the trial judge against whom the motion is directed may properly make an initial decision of whether the motion conforms with Rule 18a. Barron v. State, 108 S.W.3d 379, 382 (Tex.App.-Tyler 2003, no pet.). We have previously held that if a party does not comply with the mandatory requirements of Rule 18a, she waives her right to complain of a judge’s refusal to recuse himself. Gill v. Texas Dep’t of Criminal Justice, 3 S.W.3d 576, 579 (Tex.App.-Houston [1st Dist.] 1999, no pet.). In construing a previous version of Rule 18a, which provided that a trial judge was required to request that the presiding judge assign another judge to hear a motion to recuse, this Court noted that:

While rule 18a does mandate a hearing on a motion to recuse, such requirement is not triggered unless the recusal motion states valid grounds for disqualification.

Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 855 (Tex.App-Houston [1st Dist.] 1987, writ ref'd n.r.e.). We. held that “Texaco’s rule 18a motion was inadequate” and “no additional hearing was mandated.” Id. at 856. To support our holding we cited Gaines v. Gaines, 677 S.W.2d 727, 731 (Tex.App.-Corpus Christi 1984, no writ), wherein the court held that the contentions raised in a motion to disqualify were “without merit” because the appellant did “not establish enough information to warrant referral of the motion to the presiding judge.”

Likewise, here, appellant’s cursory and conclusory motion to recuse the trial judge was inadequate because appellant did not state with particularity enough information to warrant referral of the motion to the presiding judge of the statutory probate courts. She simply did not “specifically state” grounds for her belief that the trial judge was biased or prejudiced. The fact that the trial judge expressed, in the context of expediting the case, concern that Sun was experiencing “significant pain,” in no way supports an inference that the trial judge had “a preconceived factual opinion that creates bias and prejudice.”

Because appellant’s motion to recuse the trial judge did not comply with the mandatory requirements of Government Code section 25.00255 and Rule 18a, I would hold that appellant has waived her right to complain of the trial judge’s refusal to request that the presiding judge of the statutory probate courts assign a judge to hear the motion. The panel’s holding that the trial judge was required either to “re-cuse himself or refer [appellant’s motion to recuse] for determination by another judge” is in error and contrary to our previous holdings in Texaco and Gill. Accordingly, I would overrule appellant’s first issue and reach the merits of the appeal.

      . Tex Health & Safety Code Ann. § 166.046(g) (Vernon Supp.2004-2005).

      . 42 U.S.C. 1395dd (Law. Co-op.2001 & Supp.2004).

      . Tex. Health & Safety Code Ann. § 311.022 (Vernon 2001).

      . The fundamental background facts of the underlying suit appear to be undisputed.

      . Tex Health & Safety Code Ann. § 166.046(a).

      . Tex. Health & Safety Code Ann. § 166.046(g).

      . It is difficult to measure whether a motion to recuse is “untimely” when the only objective standard — the 10-day requirement — is not applicable. Although stated in terms of "timeliness,” the issue in reality appears to be whether Hudson delayed unreasonably when she waited until February 16th to file her motion. We note that Rule 18a(h) provides for sanctions if the motion to recuse is brought for delay and without sufficient cause. But that determination should also be made by the judge hearing the motion to recuse. See Tex.R. Civ. P. 18a(h); see also In re Healthmark Partners, L.L.C., No. 14-04-00743-CV, 2004 WL 1899953, at *2 (Tex.App.-Houston [14th Dist.] Aug. 26, 2004, orig. proceeding) (mem.op.)

      . Because we sustain Hudson’s first issue, we need not address her other issues.

      . See In re Union Pacific Resources Co., 969 S.W.2d 427, 429 (Tex.1998) (Hecht, J., concurring).

      . Compare, e.g., Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (holding that trial judge must refer issue of timeliness), with Petitt v. Laware, 715 S.W.2d 688, 692 (Tex.App.-Houston [1st Dist.] 1986, writ ref’d n.r.e.) (holding that trial judge excused from referring untimely motion); Leon County v. Grayson, No. 10-03-101-CV, 2003 WL 21780961, at *2-3 (Tex.App.-Waco July 30, 2003, no pet.) (mem.op.) (majority holding that trial judge must refer motion; dissent contending that motion was untimely and thus judge could deny it), with Spigener v. Wallis, 80 S.W.3d 174, 181 (Tex.App.-Waco 2002, no pet.) (holding that trial judge excused from referring recusal motion because it was not timely filed or verified); In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 178-79 (Tex.App.-Corpus Christi 1999, no pet.) (holding that referral is mandatory, regardless of sufficiency of motion), with Wright v. Wright, 867 S.W.2d 807, 811 (Tex.App.-El Paso 1993, writ denied) (holding that trial judge need not refer untimely motion), and Lamberti v. Tschoepe, 776 S.W.2d 651, 652 (Tex.App.-Dallas 1989, writ denied) (holding that “regardless of the ‘procedural sufficiency' of the motion, [judge] has only the option to act in one of two ways: to recuse himself, or refer the case to the presiding judge.").

      .This is not to disagree that, at minimum, the motion must be in writing. See Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex.1982).

      . The panel goes to great lengths to distinguish both Gill and Texaco. Their distinctions are without a difference. A party can either waive their right to complain of the issue of recusal or they cannot; this Court has already held that the recusal issue can be waived.