author: LAURA CARTER HIGLEY, Justice.

text:
    Antonio J. VILLALON, Appellant, v. BANK ONE, Trustee, Appellee.
    No. 01-03-00446-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 24, 2004.

      Antonio J. Villalon, Sugar Land, TX, pro se.
    Jerome K. Wade, Austin, for Appellant.
    Gary D. Janssen, Sugar Land, TX, J. Allen Smith, Settle & Pou, P.C., Jack O’Boyle, Garth J. Fennegan, Dallas, TX, for Appellee.
    Panel consists of Justices NUCHIA, ALCALA, and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

This appeal arises from a forcible de-tainer action initiated in justice court by Bank One, acting as trustee, against Antonio J. Villalon (‘Villalon”), after a foreclosure of real property at 4111 Laguna Circle Missouri City, Texas. Villalon appealed the justice court’s judgment to county court. Following a de novo bench trial, the county court judge signed a judgment awarding possession of the property to Bank One. Challenging the county court’s judgment in this Court, Vil-lalon raises two issues. Villalon contends that (1) he was denied due process because he did not receive notice of the trial setting in the justice court and (2) the provisions of the deed of trust, which establishes the landlord-tenant relationship between Villalon and the bank, cannot be enforced because Bank One’s agents did not comply with certain provisions of the federal Fair Debt Collection Practices Act (“FDCPA”) in conjunction with the foreclosure action.

We affirm.

Background

Villalon was the record owner of real property located at 4111 Laguna Circle Missouri City, Texas (“the property”). Villalon became delinquent in paying his mortgage and eventually defaulted on his note. In response, Bank One accelerated the note and foreclosed on the property under a deed of trust. Bank One was the successful bidder at the foreclosure sale. The bank filed a forcible detainer action in justice court, alleging that it was the owner of the property under a substitute trustee’s deed and that Villalon refused to vacate the property.

Villalon filed an answer in the justice court alleging, in part, that the deed of trust securing the promissory note on the property could not be enforced because Bank One’s collection agents had not complied with certain provisions of the FDCPA. Although he filed an answer, Villalon did not receive notice of the trial setting in justice court. Following a bench trial, the justice court signed a judgment awarding Bank One immediate possession of the property. Villalon appealed the justice court’s judgment to the county court by filing a $7,500 bond.

In the county court, Villalon’s attorney stipulated on the record to the following: (1) Villalon financed the purchase of the property with a promissory note that was secured by a deed of trust; (2) Bank One foreclosed on the property and was the successful bidder at the foreclosure sale; and (3) the deed of trust provided that Villalon and all other occupants of the property became tenants in sufferance following a foreclosure sale. Despite these stipulations, Villalon also requested the county court to dismiss Bank One’s forcible detainer action on the basis that he had a constitutional right to notice of the trial setting in the justice court. Bank One responded that any “error” that occurred relating to Villalon’s lack of notice of the justice court trial setting was cured by the trial de novo Villalon received in the county court.

Villalon also reasserted his defense that the deed of trust could not be enforced because, in pursuing the foreclosure action, the bank’s agents had not complied with certain provisions the FDCPA. Bank One responded that Villalon’s FDCPA defense related to whether Bank One had proper title to the property — an issue that neither the justice court nor the county court had jurisdiction to decide in a forcible detainer action. The county court agreed that it was without authority to decide title issues. Based on the stipulated facts and evidence presented, the county court judge signed a judgment awarding Bank One possession of the property. Villalon appeals the county court judgment in this Court.

No Notice of Trial Setting in Justice Court

In his first issue, Villalon contends that the trial court erred in failing to dismiss Bank One’s forcible detainer action “when it found out that Villalon had not received notice of the trial setting in the justice court.” Villalon asserts that the justice court’s judgment was void because he had not received notice of the trial setting. Villalon further asserts that “the County Court had no jurisdiction to hear Bank One’s suit since its authority is based on the appeal of a valid judgment from the Justice Court.” Under this point, Villalon also contends that the de novo trial he received in the county court did not ameliorate the violation of his due process rights.

Undoubtedly, the appellate jurisdiction of a statutory county court is confined to the jurisdictional limits of the justice court, and the county court has no jurisdiction over an appeal unless the justice court had jurisdiction. See Aguilar v. Weber, 72 S.W.3d 729, 731 (Tex.App.-Waco 2002, no pet.). When appeal is taken from a void judgment, the appellate court must declare the judgment void. See Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961); Dallas County v. Sweitzer, 971 S.W.2d 629, 630 (Tex.App.-Dallas 1998, no writ). Because the appellate court may not address the merits in such instances, it must set aside the trial court’s judgment and dismiss the appeal. See Mellon Serv. Co. v. Touche Ross & Co., 946 S.W.2d 862, 864 (Tex.App.-Houston [14th Dist.] 1997, no writ).

However, in this matter the justice court’s judgment was not “void,” as Villalon claims. A judgment is void only when it is apparent that the court rendering the judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 702 (Tex.1990). Unlike the requirements for service of citation, strict compliance with the rules governing notice of a trial setting is not necessary to the trial court’s jurisdiction. See Prihoda v. Marek, 797 S.W.2d 170, 171 (Tex.App.-Corpus Christi 1990, writ denied). Here, it is undisputed that Villalon received service of citation and answered in the justice court. Thus, the justice court’s judgment was not void as claimed by Villalon.

Moreover, it is well-settled that perfection of an appeal to county court from a justice court for trial de novo vacates and annuls the judgment of the justice court. See Mullins v. Coussons, 745 S.W.2d 50, 50 (Tex.App.-Houston [14th Dist.] 1987, no writ); Poole v. Goode, 442 S.W.2d 810, 812 (Tex.Civ.App.-Houston [14th Dist.] 1969, writ ref’d, n.r.e.). Once a county court acquires jurisdiction by perfection of an appeal from justice court, the rules of procedure permit only that the county court try the case de novo or dismiss it if it is not prosecuted. Hall v. McKee, 179 S.W.2d 590, 593 (Tex.App.-Fort Worth 1944, no writ). A. county court cannot affirm or reverse the judgment of the justice court nor can it remand the cause to the justice court. Id. Thus, it logically follows that, absent an agreement of the parties, the county court in this case was also without authority to dismiss the forcible detainer action based on any violation of Villalon’s due process rights for lack of notice of the justice court’s trial setting.

Under the facts of this case and the applicable law, we hold that the county court properly refused to dismiss Bank One’s forcible detainer action based on Villalon’s claim that he was denied due process.

We overrule point of error one.

FDCPA Violation

In point of error two, Villalon contends that the county court erred “in not dismissing Bank One’s suit when Villalon introduced undisputed evidence that Bank One’s debt collectors had not complied with” the provisions of the FDCPA that require debt collectors to verify certain information related to a disputed debt. See 15 U.S.C. § 1692g(a),(b). Villalon asserts that the foreclosure of the property was wrongful because Bank One had not complied with the cited FDCPA provisions. Because the foreclosure was wrongful, Villalon argues, the provision of the deed of trust providing that Villalon became a tenant at sufferance following foreclosure was not enforceable. Without that provision, Villalon contends, Bank One could not show that a landlord-tenant relationship existed between the parties — -an element necessary to a successful forcible detainer action.

To preserve the simplicity and speedy nature of the remedy of forcible detainer, the applicable rule of civil procedure provides as follows: “[T]he only issue shall be as to the right to actual possession; and the merits of the title shall not be adjudicated.” Tex.R. Civ. P. 746. Thus, the sole issue in a forcible detainer action is who has the right to immediate possession of the premises. Ward v. Malone, 115 S.W.3d 267, 270 (Tex.App.-Corpus Christi 2003, pet. denied). To prevail in a forcible detainer action, a plaintiff is not required to prove title but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession. Rice v. Pinney, 51 S.W.3d 705, 709 (Tex.App.-Dallas 2001, no pet.). If the question of title is so intertwined with the issue of possession, then possession may not be adjudicated without first determining title. Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex.App.-San Antonio 2001, pet. dism’d). In a case involving a genuine issue of title, neither the justice court nor the county court on appeal has jurisdiction. Rice, 51 S.W.3d at 709; Haith v. Drake, 596 S.W.2d 194, 196 (Tex.Civ.App.-Houston [1st Dist.] 1980, writ ref’d n.r.e.).

Because a forcible detainer action is not exclusive, but cumulative, of any other remedy that a party may have in the courts of this state, the displaced party is entitled to bring a separate suit in the district court to determine the-question of title. Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 818-19 (1936); Dormady, 61 S.W.3d at 558; Rice, 51 S.W.3d at 709. Forcible detainer actions in justice courts may be brought and prosecuted concurrently with suits to try title in district court. Dormady, 61 S.W.3d at 558; Rice, 51 S.W.3d at 709; Haith, 596 S.W.2d at 196.

In the county court, Bank One established that it is the owner of the property by virtue of a deed from the substitute trustee following the foreclosure sale. The landlord-tenant relationship between Bank One and Villalon was established in the deed of trust. The landlord-tenant relationship established in the deed of trust provided a basis for the county court to determine that Bank One had the right to immediate possession without resolving whether Bank One wrongfully foreclosed on the property, an issue relating directly to who has title to the property. Villalon has the right to sue in district court to determine whether Bank One’s deed should be cancelled because of wrongful foreclosure. See Dormady, 61 S.W.3d at 559; Martinez v. Beasley, 572 S.W.2d 83, 85 (Tex.Civ.App.-Corpus Christi 1978, no writ). Such determination is independent of the county court’s determination in the forcible detainer action that Bank One is entitled to immediate possession of the property. See Dormady, 61 S.W.3d at 559; Martinez, 572 S.W.2d at 85. We hold that the county court properly refused to dismiss the forcible detainer action on the basis that Bank One’s agents had not complied with the FDCPA.

We overrule Villalon’s point of error two.

Conclusion

We affirm the judgment of the trial court.

      . Bank One filed the foreclosure action against Antonio J. Villalon and “and/or all Occupants of 4111 Laguna Circle Missouri City, Texas, 77459.’’

      . See 15 U.S.C. §§ 1692-1692o (Law. Coop. 1993 & Supp.2003).

      . Indeed, the record reflects that Villalon filed suit in district court on this very basis.


source: Caselaw Access Project

author: SAM NUCHIA, Justice.

license: Public Domain

text:
    Joseph Earl CAVENDER, Appellant, v. HOUSTON DISTRIBUTING COMPANY, INC., Appellee.
    No. 01-03-00753-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 1, 2004.

      Dawn P. Lin, Law Offices of Lin & Associates, Houston, TX, for Appellant.
    R. Michael Moore, Houston, TX, for Ap-pellee.
    Panel consists of Justices NUCHIA, ALCALA, and HIGLEY.
   OPINION

SAM NUCHIA, Justice.

Appellant, Joseph Earl Cavender, sued appellee, Houston Distributing Company, Inc., for wrongful termination of his employment in violation of section 451.001 of the Texas Labor Code. A jury found in favor of appellee, and the trial court rendered judgment that appellant take nothing. We affirm.

BACKGROUND

Appellant was injured in the course and scope of his employment with appellee and filed a workers’ compensation claim. Appellant began his leave.due to his injury on August 10, 2000 and was released by his physician to return to work on October 21, 2001. During appellant’s employment with appellee, it was appellee’s policy to discharge an employee who had missed more than 180 consecutive days of work. Consistent with this policy, appellee terminated appellant’s employment on June 22, 2001 for having missed more than 180 consecutive days of work. Appellant then sued appellee for wrongful termination for filing a workers’ compensation claim.

The case was tried to a jury. In the court’s charge, the jury was asked,

Did Houston Distributing Company, Inc. discharge Joseph Earl Cavender because he filed a worker’s compensation claim in good faith?
There may be more than one cause for an employment decision. An employer does not discharge an employee for filing a worker’s compensation claim in good faith if the employer would have discharged the employee when it did even if the employee had not filed a worker’s compensation claim in good faith.
Answer ‘Yes” or “No.”

The jury answered “No.” The trial court rendered a take-nothing judgment against appellant and in favor of appellee.

DISCUSSION

Appellant presents a single issue on appeal: “Houston Distributing Company, Inc. violated Joseph Earl Cavender’s rights, under Texas Labor Code § 451.001, as a matter of law.” Section 451.001 provides in pertinent part:

A person may not discharge or in any other manner discriminate against an employee because the employee has:
(1) filed a workers’ compensation claim in good faith....

Tex. LaboR Code Ann. § 451.001 (Vernon 1996). Appellant reasons as follows: appellant was discharged for having missed more than 180 consecutive days from work; the only reason appellant missed more than 180 consecutive days from work was that he was on workers’ compensation leave due to his injury; therefore, appellant was discharged because he applied for workers’ compensation benefits. Appellant’s reasoning is not supported by Texas case law.

The Supreme Court of Texas has held that “[ujniform enforcement of a reasonable absence-control provision ... does not constitute retaliatory discharge.” Tex. Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994). Carrozza, who had been on workers’ compensation leave, was discharged for violating a three-day rule after he recovered. Id. The three-day rule called for the mandatory termination of any employee who was absent three consecutive work days without receiving prior permission or giving notice during the three days. Id. The plaintiff sued, contending that he was discharged because he had filed a workers’ compensation claim. Id. The supreme court determined that the plaintiff offered no evidence to controvert Tranter’s explanation that the plaintiff was discharged as a result of the nondiscriminatory application of the three-day rule. Id. at 313-14.

Appellant cites Continental Coffee Products Co. v. Cazarez, a case that also involved termination for violation of a three-day rule. 937 S.W.2d 444 (Tex.1996). Appellant quotes Cazarez, which states, “The three-day rule did not apply while Cazarez was on compensation leave” and “The three-day rule applies to employees receiving workers’ compensation benefits as soon as they are released to return to work by their treating physician.” Id. at 446, 451. Appellant interprets these statements as legal rulings of the court. They are not. Rather, they further explain the three-day rule as applied by the employer, Continental. Nevertheless, based on his incorrect premise, appellant argues that “it appears that the Court would follow the opinion of the Attorney General of Texas and the holdings of other jurisdictions that an employer cannot terminate an employee for the sole reason that the employee misses time from work while on worker’s compensation leave.” Appellant cites no Texas cases to support his argument.

Nothing in the supreme court’s opinions in Cazarez and Carrozza indicates that the court would limit its holding to absence-control provisions outside workers’ compensation leave. In fact, in Carrozza, the court cited, with approval, two Federal Fifth Circuit Court of Appeals eases in which the plaintiffs were discharged, while on workers’ compensation leave, as a result of the enforcement of an absence-control policy. See 876 S.W.2d at 313.

We overrule appellant’s sole issue and affirm the judgment of the trial court.

      . Appellant is apparently referring to Attorney General Opinion No. JM-227, issued on November 7, 1984, in which the attorney general stated that a state agency may not terminate its employees who are on workers’ compensation leave based on a policy that automatically terminates any employee who is absent more than six weeks. Op. Tex. Att’y Gen. No. JM-227 (1984). Attorney General’s opinions, although persuasive authority, are not binding on the courts of this state. See Houston Indep. Sch. Dist. v. Houston Chronicle Pub. Co., 798 S.W.2d 580, 588 (Tex.App.-Houston [1st Dist.] 1990, writ denied). Moreover, Opinion No. JM-227 has been impliedly overruled by the Supreme Court’s decision in Continental Coffee Products Co. v. Cazarez and Texas Division-Tranter, Inc. v. Carrozza. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex.1996); Tex. Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994).

      . Appellant cites Ohio, Kansas, Maine, and California decisions to support his position that an employer cannot terminate an employee for being absent from work while on workers’ compensation leave. See Coolidge v. Riverdale Local Sch. Dist., 100 Ohio St.3d 141, 797 N.E.2d 61 (2003); Pilcher v. Bd. of County Comm’rs, 14 Kan.App.2d 206, 787 P.2d 1204 (1990); Lindsay v. Great N. Paper Co., 532 A.2d 151 (Me.1987); Judson Steel Corp. v. Workers’ Comp. Appeals Bd., 22 Cal.3d 658, 150 Cal.Rptr. 250, 586 P.2d 564 (1978).


author: EVELYN V. KEYES, Justice.

text:
    Michael Gene JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00319-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 1, 2004.
    Discretionary Review Refused Dec. 1, 2004.

      Michael P. Fosher, Houston, TX, for Appellant.
    Kelly Ann Smith, Assistant District Attorney, William J. Delmore, III, Chief Prosecutor, Appellate Division, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and BLAND.
   OPINION

EVELYN V. KEYES, Justice.

A jury found appellant, Michael Gene Johnson, guilty of the first degree offense of aggravated robbery. After making an affirmative deadly weapon finding, the jury-assessed his punishment at 25 years’ confinement. In four points of error, appellant contends that (1) the evidence is legally and factually insufficient to support his conviction and (2) he received ineffective assistance of counsel at the guilt/innocence and punishment stages. We affirm.

Background

On July 20, 2002, Minh Truong was working in her florist shop when a clean-shaven black man, later identified as appellant, knocked on her door. Truong testified that the man had no hah* and wore an orange T-shirt, jean shorts, clean socks, and bright white tennis shoes. Truong assumed that, because he was “[a] clean-cut man, maybe [she could] trust him.” When Truong opened the door, appellant told her he needed some flowers. While in the store, appellant picked up a knife used to make flower arrangements from a nearby table. He then stormed at Truong with the knife, threatening to kill her unless she handed over her money. Appellant struck Truong with the knife handle and knocked her to the floor. He hit her so hard that the knife broke. Appellant quickly grabbed another knife from the nearby workstation table and continued to hit appellant and demand money. As Truong told appellant that she did not have any money, she stared at his face and eyes. Truong eventually handed him her credit card. When appellant stopped hitting her and reached for the credit card, Truong ran into the bathroom and locked the door. When Truong believed appellant had left, she emerged from the bathroom and found the contents of her purse scattered about her shop; approximately $230 was missing.

Truong was taken to the hospital for injuries, where she was treated for a fractured skull and undeiwent surgery to remove blood clots. While there, she described her assailant to Houston Police Officer Ha. She told him that the robber was a heavy-set black male who was clean-shaven and clean-cut with a thick square build. Ha testified that Truong also told him that the robber was approximately six feet tall, weighed 200 pounds, and had brown eyes. Although Truong also described the clothing the robber wore, Ha did not include Truong’s complete description in his police report.

After speaking with Truong, Officer Ha returned to the shop. Although Ha found a lot of blood evidence in the shop, he did not test the blood, nor did he request that photographs or fingerprints be taken. A few days after the robbery, Truong spoke with Sergeant Defee. She provided him with a description of the robber consistent with that she had given Officer Ha. After her release from the hospital, Truong and her ex-husband found the knife used in the robbery and brought it to Defee at the police station. No fingerprints were found on the knife.

About four weeks later, on August 19, 2002, Truong saw the man who robbed her walking across the parking lot in front of her shop. He walked through the driveway and headed towards a drug rehabilitation center next door to the flower shop. He wore shorts, socks, and shoes similar to those worn by the robber. Truong called the police and told them the man who robbed her was next door. Police subsequently arrested appellant.

After appellant was arrested, Truong identified him from a photographic lineup. She also positively identified appellant in court as the man who had robbed her. She testified that she does not forget a face and that she knew he was the man who robbed her “because of his eyes.”

In his defense, Tawana Norwood, appellant’s girlfriend, testified that, on July 20, 2002, the day of the robbery, she and appellant were supposed to help appellant’s brother move and appellant was with her. She testified that there was no possibility appellant could have left without her knowing it. The jury rejected appellant’s alibi defense and convicted him of aggravated robbery.

Discussion

Sufficiency of the Evidence

In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction.

We review the legal sufficiency of the evidence by reviewing all of the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. 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 reweigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562.

We review the factual sufficiency of the evidence by reviewing all the evidence as a whole neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In a factual-sufficiency review, we may not substitute our own judgment for that of the factfinder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.1996). The Court of Criminal Appeals has recently stated:

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004) (footnote omitted). We must consider the most important evidence that the appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

A person commits the offense of aggravated robbery if that person (1) in the course of committing theft, (2) with intent to obtain and maintain control of property, (3) knowingly and intentionally, (4) threatens or places another in fear of imminent bodily injury or death, and (5) then and there uses or exhibits a deadly weapon. Tex. Pen.Code Ann. §§ 29.02-.03 (Vernon 2003). Although a knife is not a deadly weapon per se, the Court of Criminal Appeals has held that an object such as a knife can be a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 502-03 (Tex.Crim.App.2000).

Appellant argues that the evidence was legally insufficient to support his conviction because the evidence failed to prove that he committed the offense. In support of his argument, appellant notes that the record reflects that he was at home with his girlfriend when the crime occurred and that there was no physical evidence connecting him to the crime. Appellant also contends that “the entire case rests on the complainant’s description,” which could fit the description of many people.

After examining the record, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that appellant committed the offense of aggravated robbery. Truong testified that appellant robbed her at knife-point and threatened to kill her if she did not hand over her money. She positively identified appellant in court as the individual who robbed her at knife-point. She previously had identified appellant in a photographic line-up. Truong testified that, while appellant was beating her with the knife, she had a good opportunity to look at his face and his eyes. She explained that she was sure appellant was the robber because she never forgets a face and she could not forget his eyes. This testimony was sufficient to establish that appellant intentionally threatened or placed Truong in fear of imminent bodily injury or death. As the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, a jury may believe or disbelieve all or any part of a witness’s testimony. McKinny v. State, 76 S.W.3d 463, 468-69 (Tex.App.-Houston [1st Dist.] 2002, no pet.). We will not substitute our judgment for that of the factfinder. Accordingly, we hold that the evidence was legally sufficient to support appellant’s conviction.

In regard to his factual-sufficiency challenge, appellant merely reiterates that he was at home when the crime occurred and that there was no physical evidence connecting him to the crime. Although he recognizes the general rule that the credibility of witnesses will not be reviewed on appeal, he nevertheless “urges this Court to exercise [its] discretion, and find that the State’s evidence against him simply is not credible enough to sustain a conviction.”

Although appellant presented an alibi defense, what weight to give contradictory testimonial evidence is within the sole province of the jury, as it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App.1997). The testimony of a single eyewitness, such as Truong, is sufficient to support a felony conviction. See Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982) (holding that the testimony of a single eyewitness can be factually sufficient to support a felony conviction). Thus, the jury was free to believe all or any part of the testimony of Truong and the State’s witnesses, and disbelieve all or any part of the testimony of appellant’s witnesses. A court of appeals must show deference to such a jury finding. Cain, 958 S.W.2d at 409. The alibi testimony, the lack of physical or forensic evidence, and the differences between the testimony of the witnesses were all factors for the jury to consider in weighing the evidence. A jury’s decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Id. at 410.

Accordingly, after examining all of the evidence neutrally, we hold that the proof of guilt was not so obviously weak as to undermine confidence in the jury’s determination; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met.

We overrule appellant’s first and second points of error.

Ineffective Assistance of Counsel

In his third and fourth points of error, appellant contends that he received ineffective assistance of counsel at both the guilt/innocence and punishment stages of trial.

To determine if a defendant has been denied effective assistance of counsel, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). First, the appellant must demonstrate that his counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688, 104 S.Ct. at 2064; Howland v. State, 966 S.W.2d 98, 104 (Tex.App.-Houston [1st Dist.] 1998), aff’d, 990 S.W.2d 274 (Tex.Crim.App.1999). Second, the appellant must establish that his counsel’s performance was so prejudicial that it deprived him of a fair trial. Howland, 966 S.W.2d at 104. Thus, the appellant must show that a reasonable probability exists that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Howland, 966 S.W.2d at 104. The appellant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App.1998).

It is presumed that trial counsel’s strategy was sound and that the representation was reasonable. Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). In assessing whether a defendant has overcome these presumptions, we are limited to the facts of the case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). An appellant “making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.

Appellant contends that he received ineffective assistance of counsel at the guilt/innocence stage because counsel (1) failed to file a motion to suppress an impermissibly suggestive photo array; (2) entered the photo array into evidence; (3) failed to prepare his eyewitness expert; (4) failed to preserve error by making an offer of proof as to his expert testimony; and (5) failed to instruct his client to wear something other than an orange shirt at trial, which was suggestive of the orange shirt worn by the robber.

Appellant has failed to overcome the presumption that trial counsel’s actions and inactions were part of his trial strategy. Although appellant filed a motion for new trial, the only claim he advanced in that motion was that the verdict was contrary to the law and the evidence. Because no ineffective assistance claim was advanced in the motion, no hearing was conducted to explore appellant’s counsel’s trial strategy. In the absence of a proper evidentiary record, it is extremely difficult to show that trial counsel’s performance was deficient. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex.App.-Houston [1st Dist.] 1999, pet. ref’d); Mares v. State, 52 S.W.3d 886, 891 (Tex.App.-San Antonio 2001, pet. ref’d) (failure to file pre-trial motions is not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of his trial strategy); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App.2003) (record insufficient to support ineffective assistance of counsel claim where record was silent regarding reason counsel failed to call expert witness, failed to file pre-trial motions, and failed to adequately prepare witnesses). To find appellant’s trial counsel ineffective on the basis of the record before this Court would require us to speculate, which we will not do. Gamble, 916 S.W.2d at 93.

Appellant also contends that he received ineffective assistance of counsel at the punishment stage of trial because his trial counsel (1) failed to object to a victim impact statement; (2) commented on the parole law; (3) failed to object to comments on the parole law; and (4) failed to present mitigating evidence. Appellant’s trial counsel’s comments on parole law and failure to object to the State’s comments on parole law in the punishment stage were strategic, even if appellant believes the strategy was unsuccessful; even appellant’s appellate counsel admits that “defense counsel may have thought he was helping.” That a trial strategy does not work does not mean that counsel was ineffective. Again, appellant has failed to overcome the presumption that counsel’s actions were part of a strategic plan. See Tong v. State, 25 S.W.3d 707, 713-14 (Tex.Crim.App.2000) (counsel’s failure to object to victim impact testimony and evidence not ineffective assistance of counsel when trial record silent as to counsel’s strategy). To find that trial counsel was ineffective would call for us to speculate which we will not do. Gamble, 916 S.W.2d at 93.

We overrule appellant’s third and fourth points of error.

Conclusion

We affirm the judgment of the trial court.

      . Appellant has failed to sufficiently brief his sub-issue that his counsel was ineffective at the punishment stage for failing to present mitigating evidence. He does not cite to the record, or to any authority for his proposition; he merely makes the contention. Accordingly, appellant has waived this sub-issue. See Tex.R.App. P. 33.1.


author: GEORGE C. HANKS, Jr., Justice.

text:
    ECKLAND CONSULTANTS, INC., Appellant, v. RYDER, STILWELL INC., Cove Properties, Ltd., Ryder, Stilwell Properties, Inc., Individually, and Ryder, Stilwell Properties, Inc., Derivatively for Cove Properties, Ltd., Appellees.
    No. 01-01-00194-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 1, 2004.

      Charles T. Fraizer, Jr., Cowles & Thompson, P.C., Dallas, for Appellant.
    Steven A Fleckman, Austin, for Appel-lees.
    Panel consists of Justices TAFT, HANKS, and HIGLEY.
   OPINION

GEORGE C. HANKS, Jr., Justice.

After a bench trial, the trial court awarded appellees, Ryder, Stilwell Inc. (RS); Cove Properties, Ltd.(Cove); Ryder, Stilwell Properties, Inc.(RSP), individually and derivatively for Cove (collectively “the Plaintiffs”), $1,389,711.30 on their breach of contract claim against appellant, Eckland Consultants, Inc., which was based on Eckland’s performance of an inspection of an apartment complex and its preparation of a property condition report.

In 11 points of error, Eckland challenges the judgment and argues that (1) the trial court erred in awarding judgment for RS; (2) the trial court erred in awarding judgment for RSP; (3) the trial court erred in finding that Cove was a party to the contract; (4) Cove was not a third-party beneficiary of the contract; (5) Cove did not have standing to sue Eckland; (6) the Eekland-RS contract was unambiguous as to standing; (7) Cove was not an “affiliate” of RS; (8) Eckland did not give prior written consent that RSP and/or Cove could rely on its property condition report; (9) the trial court only made findings of fact on the breach of contract cause of action; (10) the evidence was legally and factually insufficient to support DTPA and breach of warranty causes of action; and (11) in the event that this Court reverses and renders a take-nothing judgment, Eckland is entitled to recover its attorneys’ fees and expenses. We affirm the trial court’s judgment.

Factual and Procedural Background

On February 23, 1996, RS, a corporation and holding company that provides investment and management services to its clients, entered into an earnest money contract with La Maison at Lakeside Residence, Ltd. to purchase an apartment complex for $3.85 million. The contract was signed by La Maison’s president and by R.J. Considine, Jr., in his capacity as RS’s senior vice president.

On March 27, 1996, RSP, a wholly-owned subsidiary of RS, entered into a contract with Eckland, wherein Eckland agreed to inspect and to provide a property condition report and phase one environmental assessment report of the 132-unit apartment complex. The contract was signed by Eekland’s executive vice president and by R.J. Considine, Jr., in his capacity as RSP’s president. The contract was in letter form, with a nine-page attachment outlining the details. The contract was sent to Considine, as president of RS, but was signed by him as president of RSP. The contract stated that

[i]t is agreed that the information provided by [Eckland] is for the exclusive use of [RS], Piper Jaffray, or its affiliated companies, and Holliday, Fenoglio, Dockerty and Gibson, and no other party shall have any right to so rely on any service provided by [Eckland] without prior written permission.

The apartments were being sold “as is,” and Considine testified that, to him, that meant that “all faults and flaws and so on of the building were my responsibility to determine.... [T]he seller was making no warranty on the condition of the property.” Considine testified that he informed Eckland that he “needed to have a thorough evaluation of the large ticket items ... things like the roof, the base structure, the mechanicals, appliances, HVAC.” Eckland required an additional sum for the HVAC inspection, but not for its evaluation of the structural soundness of the complex. Con-sidine further testified that, if Eckland’s reports had reflected unfavorable environmental tests or significant structural problems in the complex, he was not obligated to close on the property.

On April 1 and 3, 1996, Cove was created, and its certificate of limited partnership was signed by its two general partners — one of whom was RSP. The certificate of limited partnership was filed with the Secretary of State on April 8.

That same day, Eckland sent RS the property condition report. Among other things, the report indicated that Eckland’s licensed architect “did not observe any conditions that would indicate widespread deficiencies in the structural, mechanical, or electrical system of the improvements.” The “Procedures and Limitations” section of the report provided, as follows:

This Report is written for the exclusive use of [RS], Piper Jaffray or its affiliated companies, American Select Portfolio, Inc., and Holliday, Fenoglio Dockerty & Gibson, Inc., their affiliates, designees and assignees, rating agencies, and prospective bondholders. No third party or other persons may use or rely on the information contained herein without the written consent of [Eckland].

On April 10, 1996, RS assigned Cove its rights and interests in the earnest money contract with La Maison for the purchase of the apartment complex. A purchase price of $3.85 million was agreed upon, and La Maison and Cove closed the sale a couple of days later.

In March and April 1997, after the complex’s on-site manager had received tenant complaints of falling drywall and had noticed a tilting floor in one building, an architectural firm was hired to perform further inspections of the complex. Major structural problems were discovered in the building. A complete structural analysis revealed deflection and rolling of certain structural-support beams underneath the flooring of several buildings. Cove received bids from several structural engineers indicating that it would cost more than $1 million to repair the complex. Considine testified that, on at least one occasion, a couple of the buildings had to be evacuated for fear that they would collapse during a strong wind storm. On October 5,1998, Cove sold the property for $3,052,257.18.

On February 20, 1998, Cove and RS sued Eckland for, among other things, breach of contract. On November 20, 2000, the trial court signed a final judgment awarding the Plaintiffs $735,242.82 in damages and $202,040.68 in pre-judgment interest. Pursuant to a rule 11 agreement, the judgment also awarded $312,427.80 in attorneys’ fees and $140,000 in expenses. Appellate attorneys’ fees and post-judgment interest were also awarded.

In conjunction with its judgment, the trial court made the following findings of fact and conclusions of law:

Findings of Fact

1. On February 23, 1996, [RS] entered into an earnest money contract to purchase La Maison at Lake Cove Apartments (sometimes referred to as “La Maison”) (PX 1).
2. On April 10, 1996, [RS] assigned the earnest money contract for the purchase of La Maison to [Cove] at the price of $3,850,000.00 (PX 56).
3. [RSP] served as the general partner of [Cove].
4. On April 15, 1996, [Cove] purchased La Maison at Lake Cove Apartments paying a total purchase price, including costs, of $4,024,030.44 (PX 8).
5. On March 27, 1996, [RS], [Cove], and [RSP] contracted with [Eck-land] for a property condition assessment to be performed on La Maison at Lake Cove Apartments (PX 2).
6. [RS], [Cove], and [RSP] were parties to the contract for the property condition assessment with [Eck-land].
7. [Cove] and [RSP] were intended beneficiaries of the contract for [the] property condition report with [Eckland].
8. [Cove] and [RSP] were entitled to rely on the property condition report issued by [Eckland] as they were the affiliates, designees, and assignees of [RS] (PX 5, 6).
9. The limiting language in the Eck-land March 26, 1996 contract does not preclude recovery by [Cove] because Cove is an assignee of [RS]; [Cove] is an affiliated company of [RS] and the affiliated language in the contract extends to [RS]; and, [Cove] is an intended third party beneficiary of the contract.
10. The buildings at La Maison contained serious structural defects at the time of Eckland’s inspection on March 29, 1996, and at the time of the purchase by [Cove] on April 15, 1996.
11. Eckland failed to properly evaluate the visible building structures, thus failing to comply with the contract.
12. The failure to comply was a proximate cause of damages to [Cove] because James Considine would have canceled the deal or renegotiated the price of the apartments prior to the April 15, 1996 closing deadline had he known of the condition of the property as detectable by a proper visible inspection.
13. Plaintiffs sold La Maison on October 5, 1998 for $3,052,257.18, incurring closing costs associated with the sale of $145,931.22, netting Plaintiffs $2,906,325 (PX 22).
14. [Cove] has been damaged $797,742.82 (diminution of value represented by the purchase price of $3,850,000.00 less the net sales price of $3,052,257.18), resulting from the failure to comply, and the damages are a natural, probable, and foreseeable consequence of Eckland’s failure to comply.
15. The reasonable and necessary cost to repair La Maison, at all material times from April 15, 1996 through the time of sale, was $1,557,057.00 (PX 15).
16. The difference between the price paid for La Maison by [Cove] and the value it received as of April 15, 1996, was $1,557,057.00 (PX 15).
17. The Court finds that La Maison could have been repaired without economic waste or impairing the structure as a whole.
18. The difference in the value of La Maison as represented, and the actual value received by [Cove] as of April 16, 1996, was $1,557,057.00 (PX 15).
19. Pursuant to [the] agreement of the parties, Plaintiffs shall recover from Eckland their reasonable and necessary attorneys’ fees in the amount of one-third of the total recovery. [Eckland] shall pay $50,000.00 to Plaintiffs for the cost of appealing this case to the Houston Court of Appeals, and $25,000.00 for the cost of appealing the case to the Texas Supreme Court should [Eckland] appeal the judgment of this Court, and should Plaintiffs prevail on said appeals.
20. Pursuant to agreement of the parties, Plaintiffs shall recover from Eckland their reasonable and necessary legal expenses in the amount of $140,000.00.

Conclusions of Law

1. The assignment of the earnest money contract for the purchase of La Maison on April 10, 1996 from [RS] to [Cove] was a valid, effective assignment.
2. On March 27, 1996, [RS], [Cove], and [RSP] contracted with [Eck-land] for a property condition assessment to be performed on La Maison at Lake Cove Apartments (PX 2).
3. [RS], [Cove], and [RSP] were parties to the contract for the property condition assessment with [Eck-land].
4. [Cove] and [RSP] were intended beneficiaries of the contract for [the] property condition report with [Eckland].
5. [Cove] and [RSP] were entitled to rely on the property condition report issued by [Eckland] as they were the affiliates, designees, and assignees of [RS] (PX 5, 6).
6. The limiting language in the Eck-land March 26, 1996 contract does not preclude recovery by [Cove] because Cove is an assignee of [RS]; [Cove] is an affiliated company of [RS] and the affiliated language in the contract extends to [RS]; and, [Cove] is an intended third party beneficiary of the contract.
7. Eckland failed to properly evaluate the visible building structure, thus failing to comply with the contract.
8. Pursuant to [the] agreement of the parties, Plaintiffs shall recover from Eckland their reasonable and necessary attorneys’ fees in the amount of one-third of the total recovery. [Eckland] shall pay $50,000.00 to Plaintiffs for the cost of appealing this case to the Houston Court of Appeals, and $25,000.00 for the cost of appealing the case to the Texas Supreme Court should [Eckland] appeal the judgment of this Court, and should Plaintiffs prevail on said appeals.
9.Pursuant to agreement of the parties, Plaintiffs shall recover from Eckland their reasonable and necessary legal expenses in the amount of $140,000.00.
10.Prejudgment interest shall be awarded from date of the filing of this case, February 20, 1998, at a rate of 10% simple interest. Johnson v. Kenneco Energy, Inc., 962 S.W.2d 507, 532 (Tex.1998).

In 11 points of error, Eckland appeals the trial court’s judgment.

Standard of Review

In an appeal from a bench trial, a trial court’s findings of fact have the same weight as a jury’s verdict. Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex.App.-Houston [1st Dist.] 1996, writ denied). When challenged, findings of fact are not conclusive if, as here, there is a complete reporter’s record. Id. When there is a reporter’s record, the trial court’s findings of fact are binding only if supported by the evidence. Id. If the findings are challenged, the court of appeals will review the sufficiency of the evidence supporting the findings. See State Bar of Tex. v. Roberts, 723 S.W.2d 233, 235 (Tex.App.-Houston [1st Dist.] 1986, no writ). We review the legal and factual sufficiency of the evidence supporting a trial court’s findings of fact by the same standards that we apply to reviewing the legal or factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994).

When an appellant challenges the legal sufficiency of the evidence to support a finding on which it did not have the burden of proof at trial, the appellant must demonstrate on appeal that no evidence exists to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In conducting a no-evidence review, an appellate court must “view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary.” Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001). A no-evidence point may be sustained only when the record discloses one of the following: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998).

If there is more than a scintilla of evidence to support the finding, the claim is sufficient as a matter of law. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993). But, if the evidence offered to prove a vital fact is so weak that it does nothing more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). “More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)).

In reviewing a factual-sufficiency point, we consider all the evidence supporting and contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We set aside the verdict only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In a bench trial, the trial court, as factfinder, is the sole judge of the credibility of the witnesses. Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex.App.-Houston [1st Dist.] 1992, writ denied).

Breach of Contract

The essential elements of a breach of contract action are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. Valero Mktg. & Supply Co. v. Kalama Int’l, L.L.C., 51 S.W.3d 345, 351 (Tex.App.-Houston [1st Dist.] 2001, pet. denied).

Valid Contract

In points of error three, four, five, six, and seven, Eckland contends that the trial court erred when it implicitly found that Cove had standing to bring a breach of contract claim because (1) Cove was not a party to the contract, (2) Cove was not a third-party beneficiary to the contract, (3) RS’s assignment of the earnest money contract did not give Cove standing to sue Eckland, (4) the Eckland-RS contract was not ambiguous as to standing, and (5) Cove was not an “affiliate” under the contract.

As noted above, on March 27, 1996, RSP entered into the contract with Eckland. Less than two weeks later, Cove’s certificate of limited partnership was filed with the secretary of state. On appeal, Eckland argues that Cove could not have been a party or an intended third-party beneficiary of the March 27 contract because it did not exist at that time. Eck-land argues that the following passage from the contract prohibits Cove from having standing:

It is agreed that the information provided by [Eckland] is for the exclusive use of [RS], Piper Jaffray, or its affiliated companies, and Holliday, Fenoglio, Dockerty and Gibson, and no other party shall have any right to so rely on any service provided by [Eckland] without prior written permission.

(Emphasis added.) Eckland argues that, pursuant to this provision of the contract, only (1) RS; (2) Piper Jaffray or its affiliated companies; and (3) Holliday, Fenoglio, Dockerty and Gibson had the right to rely on Eckland’s services and had standing to sue for any alleged breach of the contract. Eckland argues that Cove had no such right. We disagree.

The doctrine of quasi-estoppel precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position previously taken by that party. Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 240 (Tex.App.-Corpus Christi 1994, writ denied). This doctrine applies when it would be unconscionable to allow a party to maintain a position inconsistent with one in which it had acquiesced, or from which it had accepted a benefit. Vessels v. Anschutz Corp., 823 S.W.2d 762, 765-66 (Tex.App.-Texarkana 1992, no writ); Steubner Realty 19, Ltd. v. Cravens Road 88, Ltd., 817 S.W.2d 160, 164 (Tex.App.-Houston [14th Dist.] 1991, no writ); El Paso Nat’l Bank v. Southwest Numismatic Investment Group, Ltd., 548 S.W.2d 942, 948 (Tex.Civ.App.-El Paso 1977, no writ). Thus, quasi-estoppel forbids a party from accepting the benefits of a transaction and then subsequently taking an inconsistent position to avoid corresponding obligations or effects. Mexico’s Indust., Inc. v. Banco Mexico Somex, S.N.C., 858 S.W.2d 577, 581 n. 7 (Tex.App.-El Paso 1993, writ denied); Turcotte v. Trevino, 499 S.W.2d 705, 712-13 (Tex.Civ.App.-Corpus Christi 1973, writ ref’d n.r.e.). Unlike equitable estop-pel, quasi-estoppel requires no showing of misrepresentation or of detrimental reliance. Vessels, 823 S.W.2d at 765; Steubner Realty, 817 S.W.2d at 164; El Paso Nat’l Bank, 548 S.W.2d at 948.

Under the circumstances presented, Eckland is estopped from arguing that Cove has no standing to bring this action. Here, Eckland accepted the benefits of its contract to provide the property condition report. However, its current interpretation of the contract language in defense of this lawsuit is inconsistent with its prior conduct. Although Eckland now maintains that only the parties named in the contract could rely on and had standing to sue based on its subsequent report, this position is clearly inconsistent with the language it included in its report. For example, American Select Portfolio, Inc. was not named in the contract as one of the entities that could rely on Eckland’s work product, but Eckland identified it as such an entity in the report. Similarly, while Cove was not included in the contract as one of the entities that could rely on the work product, as discussed in greater detail below, Eckland identified Cove as such an entity in its report by referring to affiliates, designees, and assignees of RS. As noted above, the “Procedures and Limitations” provision of the report reads as follows:

This Report is written for the exclusive use of [RS], Piper Jaffray or its affiliated companies, American Select Portfolio, Inc., and Holliday, Fenoglio Dockerty & Gibson, Inc., their affiliates, designees and assignees, rating agencies, and prospective bondholders. No third party or other persons may use or rely on the information contained herein without the written consent of [Eckland].

(Emphasis added.) Accordingly, we hold that Eckland cannot now argue that the contract language deprives Cove of standing to bring this action.

Nevertheless, Eckland contends that we cannot refer to the property condition report to resolve whether Cove has standing to sue for breach of contract unless we first hold that the contract is ambiguous. We disagree. While the rules of contract interpretation generally prohibit the reference to parol or other evidence beyond the four corners of a contract unless the contract is first found to be ambiguous, a court may look at a party’s representations and actions to determine the issue of estoppel. See Steubner Realty, 817 S.W.2d at 164.

In its findings of fact, the trial court found that Cove and RSP were intended beneficiaries of the contract and that they were entitled to rely on Eckland’s property condition report because they were affiliates, designees, and assignees of RS. Eckland contends that the trial court erroneously concluded that the report’s language pertaining to “affiliates, designees and assignees” applies to Cove. Eckland argues that the “only logical reading” of this phrase is that it modifies only American Select Portfolio and Holliday. We disagree. We must next determine whether the trial court erred when it found that Cove was an affiliate, designee, and as-signee.

“Affiliate” is not defined in the contract or in the report, so its ordinary meaning must be used. Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). It is generally defined as a “corporation that is related to another corporation by shareholdings or other means of control,” Black’s Law Dictionary 59 (7th ed.1999), and as a “company effectively controlled by another or associated with others under common ownership or control.” WebsteR’s Third New International Dictionary 35 (1971).

It is undisputed that RSP was a general partner in Cove’s limited liability partnership, and that, as a general partner, RSP controlled the business affairs of Cove. Eckland contends that, despite the fact that RSP is a wholly-owed subsidiary of RS, a finding that Cove is an affiliate of RSP does not mean that Cove is an affiliate of RS. We disagree. We hold that the trial court did not err in finding that Cove was an affiliate of RS. Thus, there was a valid contract between Eckland and Cove.

Accordingly, we hold that the trial court did not err when it implicitly found that Cove had standing to assert a breach of contract claim against Eckland.

Performance by the Plaintiffs

There is no allegation that the Plaintiffs failed to compensate Eckland for the services that it provided. Absent such an allegation, we must presume that there was adequate performance by the Plaintiffs. Thus, there was performance.

Breach of the Contract

In its findings of fact and in its conclusions of law, the trial court determined that “Eckland failed to properly evaluate the visible building structures, thus failing to comply with the contract.” On appeal, Eckland does not contest this determination. Thus, there was a breach.

Damages

In points of error one and two, Eckland contends that the judgment, as to RS and RSP, should be reversed because the evidence was legally and factually insufficient to support a finding of any damages as a result of Eckland’s conduct.

Eckland seeks reversal of the judgment because neither RS nor RSP sustained independent damages from Eckland’s performance of the contract. The judgment ordered Eckland to pay “Plaintiffs [RS], [Cove], [RSP], Individually, and [RSP], derivatively for [Cove],” $785,242.82 as damages and $202,040.68 as pre-judgment interest. In its findings of fact, the trial court noted that Cove had been damaged by the diminution of value between the purchase price of the complex less the net sales price. The judgment, however, is silent as to any damages sustained by RS or RSP.

A breach of contract claim cannot survive if the plaintiff was not damaged by the breach. See Valero, 51 S.W.3d at 351. Accordingly, the trial court erred in awarding judgment for RS and RSP in the absence of a finding that they incurred damages as a result of Eckland’s contract breach. However, Eckland has failed to show how it was harmed by the error. Eckland does not argue that the amount of the judgment was erroneous. It simply argues that RS and RSP should not be prevailing parties. Because we have held that Cove had standing to sue for and recover contractual damages from Eckland, the amount of the judgment against Eckland would not change, only the number of parties entitled to recover under the judgment. Therefore, Eckland cannot show that it was harmed by the trial court’s error.

We hold that the trial court erred in rendering judgment that, in the absence of a damage finding, RS and RSP were entitled to damages. We further hold that this error was harmless.

We overrule Eckland’s points of error one through seven.

Written Consent

In point of error eight, Eckland contends that it did not give written consent that RSP and Cove could rely on the information in the report. Because we have held that the limitations’ paragraph of the report constituted a clarification of the contract, we need not address this point of error.

Other Causes of Action

In points of error nine and ten, Eckland contends that the trial court did not make findings of fact on the non-breach-of-contract causes of action and that there was legally and factually insufficient evidence to support any “omitted elements” of the DTPA and breach of warranty causes of action.

The Plaintiffs sued Eckland for breach of contract, negligence, negligent misrepresentation, DTPA violations, unconscionable conduct, and breach of implied and express warranties. Before trial, the trial court granted Eckland summary judgment on the negligence and negligent misrepresentation claims. Therefore, at the time of trial, the live claims consisted of breach of contract, DTPA violations, unconscionable conduct, and breach of implied and express warranties. The record is clear that the Plaintiffs only pursued their breach of contract claims against Eckland at trial. The trial court’s findings and conclusions only address the breach of contract claims. Therefore, we must presume that the Plaintiffs abandoned their other claims. Furthermore, the Plaintiffs did not respond to Eckland’s points of error nine and ten, further emphasizing their decision to pursue only their breach of contract claim.

We overrule points of error nine and ten as moot.

Attorneys’ Fees

In point of error 11, Eckland asserts that, in the event that we reverse the judgment of the trial court and render judgment that the Plaintiffs take nothing from Eckland, Eckland is entitled to recover its attorneys’ fees and expenses from one or more of the Plaintiffs. Because we have not found any reversible error in the trial court’s judgment, we overrule point of error 11.

Conclusion

We affirm the trial court’s judgment.

      . The Plaintiffs filed a notice of appeal and paid a filing fee in this case. However, these parties do not present any points of error challenging the trial court’s judgment. Accordingly, their appeal is dismissed. See Tex.R.App. P. 42.3(b).

      . Piper Jaffray represented RS’s lender, and Holliday, Fenoglio, Dockerty & Gibson was the mortgage broker that had recommended Eckland to RS.

      .Although “HVAC” was not defined in the contract, it is generally accepted to mean “heating, ventilating, and air conditioning.” See Ebasco Constructors, Inc. v. Rex, 923 S.W.2d 694, 694 (Tex.App.-Corpus Christi 1996, pet. denied).

      . The original petition named several defendants. All defendants, except Eckland, were nonsuited before trial. Similarly, Eckland brought numerous cross-claims against its co-defendants, but all cross-claims were nonsuit-ed during trial.

      . In paragraph I of their "Supplemental Answer to Defendant Eckland Consultants, Inc’s Sixth Amended Original Answer, Counterclaim and Cross Claims,” the Plaintiffs asserted the affirmative defense of estoppel to Eckland’s assertion that Cove lacked standing to bring a suit for breach of contract. A general plea of estoppel is sufficient to raise the affirmative defense of quasi-estoppel. See Steudner Realty, 817 S.W.2d at 164.

      . Under Eckland’s current argument as to the effect of the contract language, RSP, the party that signed the contract and paid for Eckland’s services, also could not have relied on the report and did not have standing to sue Eckland for any errors in the report. Although RSP is not identified in the contract or in the report as an entity that could rely on the report, RSP, and not RS, actually signed the contract and paid Eckland for its services.

      . The amount awarded in the judgment is $62,500 less than the amount of damages found by the trial court in its findings of fact. Neither party references this discrepancy in their appeal; therefore, we need not address this inconsistency. See Tex.R.App. 33.1.

      . Although the Plaintiffs could arguably have been harmed by this error, as we have previously stated, they abandoned their appeal by failing to raise any issues on appeal.


author: JANE BLAND, Justice.

text:
    Daniel Adam BELL, Appellant, v. The STATE of Texas, Appellee.
    No. 01-02-01258-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 1, 2004.
    Discretionary Review Refused Dec. 15, 2004.

      Daniel Adam Bell, La Marque, pro se.
    Winston E. Cochran Jr., Rayford L. Carter, Houston, for Appellant.
    Alan Curry, Assistant District Attorney, William J. Delmore, III, Chief Prosecutor, Appellate Division, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and BLAND.
   OPINION

JANE BLAND, Justice.

A jury convicted appellant Daniel Adam Bell of felony theft of property valued at over $1,500, and the trial court assessed punishment at confinement for two years. Bell appeals, contending that (1) the trial court erred in admitting business records offered to prove the value of the stolen property, and (2) if his trial counsel’s objection to the admission of this evidence failed to preserve error, then he lacked effective assistance of counsel. We conclude that the trial court did not abuse its discretion in admitting the records and, therefore, affirm. As Bell conditioned his ineffective assistance claim upon his trial counsel’s failure to preserve error regarding the trial court’s admission of the business records, we do not address his second point of error.

Facts

In December 2001, Bell brought a tractor on a trailer to HeavyQuip, a business that repairs heavy equipment located in Houston, Texas. Bell left the tractor and trailer at HeavyQuip. The trailer that Bell left was “rusty red” in color, and described as “old” and “rusted out.” In January 2001, an employee of B & D Construction brought a piece of heavy equipment in need of repair to HeavyQuip on a trailer, and like Bell, left the equipment and trailer on HeavyQuip’s property. B & D’s trailer was comparable to Bell’s trailer in that it was a gooseneck trailer of about the same length, but unlike Bell’s trailer, B & D’s trailer was “brand-new.”

Although HeavyQuip had not finished repairing Bell’s tractor, Bell arrived at HeavyQuip several days after B & D left its trader to check on the status of the repair. Witnesses saw Bell’s truck leave HeavyQuip later that day, towing B & D’s trailer. B & D filed a claim on Heavy-Quip’s liability insurance policy, underwritten by St. Paul Guardian Insurance Company (“St.Paul”).

At trial, HeavyQuip’s records custodian, Ellen Neadom, testified that she communicated with St. Paul and received documents from it regarding B & D’s claim. Included among these documents is (1) a letter from St. Paul to HeavyQuip informing HeavyQuip that it had offered to settle B & D’s claim for $7,125 and (2) a letter from St. Paul to HeavyQuip reflecting that it had settled B & D’s claim for $7,864. The trial court admitted both documents as HeavyQuip’s business records, over Bell’s hearsay objection.

The Admission of Evidence

A trial court has broad discretion in determining the admissibility of evidence. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). Thus, we will not reverse an evidentiary ruling unless the record shows a clear abuse of discretion. Williams v. State, 535 S.W.2d 637, 639-40 (Tex.Crim.App.1976). An abuse of discretion occurs when the trial court acts without reference to guiding rules or principles or acts arbitrarily or unreasonably. Galliford v. State, 101 S.W.3d 600, 604 (Tex. App.-Houston [1st Dist.] 2003, pet. ref’d).

Bell contends that the State failed to establish a proper predicate for admitting the two letters, because the State did not offer a business records affidavit or testimony from a St. Paul records custodian. Instead, the State offered the testimony of Ellen Neadom, HeavyQuip’s records custodian, to establish a predicate under the business records exception to the hearsay rule. See Tex.R. Evid. 803(6). Bell contends that, to meet the hearsay exception set forth in Rule 803(6), “the same ‘business activity’ must both make and keep the records in question,” and thus Neadom’s testimony is an insufficient foundation for admissibility of the letters.

Under these facts, we disagree with Bell’s assessment. Rule 803(6) of the Texas Rules of Evidence excepts from the hearsay rule:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. ‘Business’ as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

Tex.R. Evid. 803(6). A document prepared by a third party may be admissible under Rule 803(6) if: (1) it is incorporated and kept in the course of the testifying witnesses’ business; (2) that business typically relies upon the accuracy of the contents of the document; and (3) the circumstances otherwise indicate the trustworthiness of the document. See Harris v. State, 846 S.W.2d 960, 963-64 (Tex.App.-Houston [1st Dist.] 1993, pet. ref’d).

In Harris, we held that a certificate of origin from the General Motors Corporation was admissible under Rule 803(6) as the business record of a local automobile dealership, notwithstanding the fact that the State’s testifying witness was unaware whether the General Motors employee who created it had personal knowledge of the information contained within it. Id. at 963. In Harris, we adopted the Tenth Circuit’s analysis in United States v. Hines, in which that court held that documents created by a third party incorporated into the regular course of the testifying witness’s business are admissible under Federal Rule of Evidence 803(6). Harris, 846 S.W.2d at 964 (quoting United States v. Hines, 564 F.2d 925, 928 (10th Cir.1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 748, 54 L.Ed.2d 770 (1978)) (“The test of whether such records should be admitted rests on their reliability.”). We concluded in Harris that the document at issue possessed a high degree of trustworthiness and was kept in the regular course of the testifying witnesses’ business, and thus the trial court did not abuse its discretion in admitting the document under Rule 803(6). See id.

In Air Land Forwarders, Inc. v. United States, 172 F.3d 1338, 1343 (Fed.Cir.1999), the Federal Circuit Court of Appeals reached a similar conclusion, specifically with regard to claims for loss or damage to property. In Air Land, the Federal Circuit reviewed federal decisions regarding incorporating business records, and observed that courts consider two factors: (1) whether the incorporating business relies on the accuracy of the document incorporated, and (2) the presence of other circumstances indicating the trustworthiness of the document. Id. It concluded that third party repair or loss estimates met the reliability test of Rule 803(6), as the estimates had been relied upon to settle property damage claims. Id. at 1343-44.

Applying the rule in Harris to this case, the trial court heard evidence that Heavy-Quip relied upon and incorporated the St. Paul letters into its business records. Neadom testified that she was the legal custodian of the business records for HeavyQuip, and that her responsibilities included notifying HeavyQuip’s corporate office in the event that “something turns up missing,” so that the corporate office could notify St. Paul of a claim. She testified that the letters are records that Heavy-Quip kept in the regular course of its business, and that the letters were created at or near the time of the disappearance of the missing trailer because a claim had been made on HeavyQuip’s insurance policy. St. Paul contacted HeavyQuip’s Houston office, and Neadom testified that she communicated with and received the letters from St. Paul in connection with those communications. Neadom explained that one letter notifies HeavyQuip that it had offered to settle B & D’s claim for $7,125. The other letter is a “closing report” from St. Paul informing HeavyQuip that it had resolved B & D’s claim for $7,864. Heavy-Quip relied upon the letters in its business, as Neadom testified that HeavyQuip was hable to B & D for the value of the trailer. Thus, St. Paul’s payment resolved Heavy-Quip’s liability for the stolen trailer, and resolved HeavyQuip’s claim on its insurance policy.

Moreover, the circumstances indicate the letters’ trustworthiness. They identify B & D as the claimant, HeavyQuip as the insured, and that the date of the occurrence giving rise to B <& D’s claim was January 15, 2002. St. Paul sent the letters to HeavyQuip in compliance with Article 21.56 of the Texas Insurance Code, in order to notify HeavyQuip of the status of the claim made under HeavyQuip’s policy. See Tex. Ins.Code Ann. art. 21.56 (Vernon Supp.2004). St. Paul’s financial interest corresponds to Bell’s, as St. Paul was financially responsible for paying B & D’s claim, and thus would seek to resolve the claim within the lowest possible fair market evaluation of the trailer. Finally, Hea-vyQuip relied upon these letters to show resolution of B & D’s claim against it. The evidence thus provides support for the reliability of the letters. We therefore conclude that the trial court did not abuse its discretion in admitting them- under the Rule 803(6) business records exception.

Conclusion

Business records used in one business, created by a third party at their behest, may be admissible under Rule 803(6) of the Texas Rules of Evidence if (1) the incorporating business relies upon the information transmitted in the records in the normal course of its business and (2) the circumstances otherwise indicate the trustworthiness of the document. HeavyQuip incorporated the two letters that St. Paul created into its business records and relied upon them. Moreover, the circumstances indicate their trustworthiness. We therefore conclude that the trial court did not abuse its discretion in admitting the letters, and affirm the trial court’s judgment.

      . See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (appellant must show deficient performance and prejudice in order to prevail on ineffective assistance claim); Reno v. State, 882 S.W.2d 106, 108 (Tex.App.-Fort Worth 1994, pet. ref’d) (if ineffective assistance claim predicated upon properly admitted evidence, ineffective assistance claim fails).

      . The Texas Rules of Evidence are patterned after the Federal Rules of Evidence, and thus cases that interpret the federal rules guide us unless the Texas rule clearly departs from its federal counterpart. Cole v. State, 839 S.W.2d 798, 801 (Tex.Crim.App.1990).


author: EVELYN V. KEYES Justice.

text:
    Tyrone Eugene JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00292-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 28, 2004.
    Discretionary Review Refused April 6, 2005.

      Mary Connealy Acosta, Houston, for Appellant.
    Charles A. Rosenthal, Jr., Dist. Atty-Harris County, Alan Curry, Asst. Dist. Atty., Houston, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

EVELYN V. KEYES Justice.

Tyrone Eugene Johnson, appellant, was found guilty by a jury of the felony offense of murder. The jury found two prior enhancements for aggravated assault true and assessed punishment at life in prison. In three points of error, appellant argues that (1) the trial court erred in finding that the State’s copy of the punishment jury charge was an accurate copy of the missing court’s charge; (2) the trial court erred in not instructing the jury during the punishment phase of the trial that the State must prove extraneous offenses beyond a reasonable doubt; and (3) appellant’s trial counsel was ineffective for not requesting the trial court to instruct the jury that the State must prove extraneous offenses beyond a reasonable doubt. We affirm.

Factual and Procedural Background

In June 2002, appellant attempted to break up an argument. Appellant and the thirteen-year-old complainant had a physical altercation. At some point, a crowd formed in the parking lot where the encounter occurred. The physical confrontation escalated and a male friend of the complainant’s joined in the physical fight to defend her against appellant. The physical confrontation eventually ended, but the argument continued. The complainant, her male friend, and the others in her group left the parking lot and went into an apartment. Appellant continued to taunt the complainant’s group after they went into the apartment. After complainant’s family arrived at the apartment, she left with them to go home. In the meantime, the complainant’s stepfather asked appellant what had happened. Appellant began yelling at the complainant’s stepfather. While appellant was yelling, the complainant and her family started to walk home. Appellant retrieved a gun, ran down the street towards the complainant’s family, and started shooting the gun. Appellant shot the complainant, her stepfather, and her mother. The complainant died from a gunshot wound to the head the following day. The jury convicted appellant of murder.

At the start of the punishment phase of the trial, appellant pleaded not true to the two enhancement paragraphs, both for aggravated assault with a deadly weapon. In response to appellant’s pleas of “not true,” the State put on testimony from an expert from the Harris County Sheriffs Office and two witnesses who had been assaulted by appellant in the past, resulting in the convictions referenced in the two enhancement paragraphs. The first witness explained that on June 2, 1993, appellant shot both him and his companion in the back; appellant was subsequently convicted of aggravated assault with a deadly weapon on both counts. The second witness explained that, on August 10, 1997, appellant hit her many times with a bat, resulting in the conviction that was the subject of the second enhancement paragraph. Penitentiary packets, jail cards, probation orders, judgments, and sentences were also admitted into evidence, showing that appellant was convicted of the offenses in the two enhancement paragraphs, and that he had three additional convictions for aggravated assault with a deadly weapon, delivery of cocaine, and auto theft. A fingerprint expert with the Harris County Sheriffs Office established that appellant was the same person convicted of the five offenses. The jury assessed appellant’s punishment at life in prison.

In October 2003, this Court abated and remanded appellant’s case for a hearing in the trial court because a deputy clerk in the Harris County District Clerk’s Office had filed an affidavit attesting that the punishment charge in the case could not be located. We directed the trial court to determine whether the original punishment charge had been lost or destroyed, and, if so, whether the parties could agree that an accurate copy existed. If the parties could not agree, we directed the trial court to determine what constituted an accurate copy and to order it included in the clerk’s record or in a supplemental record. See Tex.R.App. P. 34.5(e).

The trial court held the hearing in January 2004. Supplemental records of the proceedings have been filed in this Court. The trial court heard from the district attorney, appellant’s trial counsel, and the court’s clerk. The State produced a copy of the punishment jury charge from its file in this case. The court had the copy marked as Court’s Exhibit No. 1. The court found that (1) the original punishment charge had been lost through no fault of the parties; (2) the parties did not agree that an accurate copy of the punishment charge existed; and (3) the State’s copy of the punishment charge was “apparently an accurate copy” of the original, except that there were two underlinings on the first page of the verdict and the copy did not include the signatures of the trial court or the jury foreperson.

Discussion

In his first point of error, appellant contends the trial court erred in finding that the State’s copy of the punishment jury charge was “apparently an accurate copy” of the missing charge, and, therefore, the case should be reversed and remanded for a new trial on punishment.

Trial Court’s Order Supplementing the Record

When a filing designated for inclusion in the clerk’s record has been lost or destroyed, Texas Rule of Appellate Procedure 34.5(e) provides that the parties may, by written stipulation, deliver a copy of the filing to the trial court clerk for inclusion in the record. Tex.R.App. P. 34.5(e). If the parties cannot agree, the trial court must determine what constitutes an accurate copy of the missing document and order it included in the record. Id.; Camp v. State, 16 S.W.3d 920, 921 (Tex.App.-Waco 2000, pet. ref’d). We afford almost total deference to a trial court’s rulings on questions of fact, particularly when the trial court’s ruling turns on the credibility of the witnesses. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

The trial court heard from appellant’s trial counsel, the court’s clerk, and an assistant district attorney. The court’s clerk stated that she believed the likelihood of her finding the missing jury charge was almost non-existent. Appellant’s counsel stated that he was unable to find a copy of the missing jury charge in his records. He believed there may have been one or two charges made prior to giving the charge to the jury. He stated he did not believe that he had a copy of the charge. The court then heard from the assistant district attorney. The assistant district attorney had located the State’s copy of the missing charge in its file. He explained this was the only copy in the State’s file, that it was not signed by the judge, and that the word “life” was underlined; he believed this was the only copy in existence. At this point, the assistant district attorney offered the State’s copy of the punishment charge to the trial court.

The trial court concluded on the basis of this evidence that the charge found in the State’s file was “apparently an accurate copy” of the missing jury charge, except that the copy did not contain the signatures of the trial judge or the foreman of the jury and had two underlinings on the first verdict page. The trial court ordered the clerk to supplement the record with this copy. There was no contravening evidence to show that, with the exceptions noted, the charge was not an accurate copy of the charge submitted to the jury.

According almost total deference to the trial court’s implied finding that the copy was an accurate copy of the charge submitted to the jury, with the exceptions noted, we hold that the trial court did not err in ordering the record supplemented with the charge found in the State’s file.

We overrule appellant’s first point of error.

Jury Charge

In his second point of error, appellant contends the trial court erred in not instructing the jury during the punishment phase of the trial that the State must prove extraneous offenses beyond a reasonable doubt. Appellant specifically complains that the jury charge lacked an instruction that the jury must find beyond a reasonable doubt that appellant committed any extraneous offenses or bad acts that the State introduced at the punishment phase of appellant’s trial.

Article 37.07 § 3(a)(1) of the Texas Code of Criminal Procedure provides:

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the pri- or criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has been charged with or finally convicted of the crime or act.

Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a) (Vernon Supp.2004). A plain reading of the article shows that extraneous crimes or bad acts that are not part of the defendant’s prior criminal record must be proved beyond a reasonable doubt. However, Article 37.07 § 3(a) does not require the State to prove beyond a reasonable doubt those offenses for which a defendant has already been convicted; the only acts requiring such proof are those extraneous bad acts for which the defendant has not been convicted. See Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App.2004) (analyzing the plain language of Article 37.07 § 3 and finding that the “criminal record of the defendant is not grouped with extraneous offenses, and therefore we presume that the legislature did not intend to require the same burden of proof that it attached to extraneous, unadjudicated offenses.”).

Appellant relies on Huizar v. State, which holds that a trial court should instruct the jury sua sponte on the burden of proof for extraneous offenses or bad acts admitted at the punishment stage of the trial. Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App.2000). In the instant case, the only evidence admitted in the punishment stage of the trial concerned appellant’s prior convictions. No evidence was admitted or discussed for extraneous offenses or bad acts for which appellant had not been convicted. Therefore, Huizar does not apply. We hold that the trial court did not err by not instructing the jury that extraneous offenses must be proved beyond a reasonable doubt because the only testimony and evidence admitted in appellant’s punishment stage of trial concerned his prior convictions.

We overrule appellant’s second point of error.

Ineffective Assistance of Counsel

In his third point of error, appellant argues that his trial counsel was ineffective because he did not request the trial court to instruct the jury that the State must prove extraneous offenses beyond a reasonable doubt. As explained above, this cannot be ineffective assistance of counsel because no unadjudicated extraneous offense evidence was admitted during appellant’s trial and, thus, no Huizar charge was required.

We overrule appellant’s third point of error.

We affirm the trial court’s judgment.

      . Tex. Pen.Code Ann. § 19.02 (Vernon 2003).

      . An enhancement paragraph raises the statutory minimum sentence for a repeat or habitual felony offender. See Tex. Pen.Code Ann. § 12.42 (Vernon 2003).

      . Appellant’s conviction for the aggravated assault with a deadly weapon against the witness’s companion was not used as an enhancement paragraph.