author: MAURICE E. AMIDEI, Justice.

text:
    Cecil B. STEPHENSON, Jr., Appellant, v. Diann LeBOEUF, Appellee.
    No. 14-98-00723-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 6, 2000.
    Rehearing Overruled May 25, 2000.

      H. Miles Cohn, Houston, for Appellant.
    Daryl L. Moore, Houston, for Appellee.
    Panel consists of Justices MAURICE E. AMIDEI, EDELMAN and WITTIG.
   OPINION ON REHEARING

MAURICE E. AMIDEI, Justice.

Appellee’s motion for rehearing is overruled, our previous opinion issued January 20, 2000 is withdrawn, an the following opinion is issued in its place.

Appellant, Cecil B. Stephenson, Jr. appeals the trial court’s judgment entered in favor of appellee, DiAnn LeBoeuf. We affirm in part as modified and reverse and render in part.

I. Background

Stephenson represented LeBoeuf in divorce proceedings in 1983. At the beginning of the representation, LeBoeuf paid Stephenson a $1,000.00 retainer and later payments of $900.00 and $350.00. After that, LeBoeuf was no longer able to make any payments to Stephenson. In March 1983, Stephenson had LeBoeuf sign a promissory note in the amount of $900.00 for his unpaid attorney’s fees and a deed of trust on her home to secure the note. The note also covered any additional fees that might become due and owing. By September 1983, Stephenson had negotiated a property settlement for LeBoeuf. Under the property settlement, LeBoeufs husband, Joe LeBoeuf, was to receive the house and LeBoeuf was to receive a $38,-800.00 note due in six months, secured by a deed of trust on the home, on which Stephenson named himself trustee. Joe was to refinance the house and pay Le-Boeufs note. Also, in September 1983, Stephenson had LeBouef sign another note in the amount of $8,100.00 for unpaid attorney’s fees, secured by the same deed of trust as she had signed with the $900.00 note.

The divorce became final in October 1983. In December 1983, Joe unexpectedly passed away before he had refinanced the house and paid LeBoeuf. Pursuant to the divorce decree, Joe was to pay Stephenson $1,200.00 in attorney’s fees. Before his death, Joe had paid Stephenson $600.00. Stephenson attempted to collect the $8,100.00, which LeBoeuf owed him, by filing a claim against Joe’s estate for the entire $8,100.00. Stephenson’s claim against Joe’s estate was denied. Stephenson also filed a claim against the estate of Amanda and Kyle LeBoeuf, the LeBoeufs children. This claim was also denied.

Stephenson asked LeBoeuf to sign a partial transfer of lien, assigning a portion of the $38,800.00 note to him to secure payment of his fees. LeBoeuf refused to sign the transfer, and Stephenson, subsequently sued LeBoeuf for his unpaid attorney’s fees. In 1989, Stephenson received a judgment in his favor for $7,500.00, plus interest. Stephenson filed an abstract of judgment in the Harris County Real Property Records’ Office.

In March 1986, LeBoeuf moved to Las Vegas, Nevada. In December 1989, she filed for bankruptcy in Las Vegas. In March 1990, LeBoeuf received a discharge in bankruptcy.

In August 1992, the property was sold to tenants who had been renting it. On May 28, 1992, at the request of Texas American Title Company, Stephenson advised it he was due $24,396.97 for the 1989 judgment he had received against LeBoeuf. In order to allow the sale of the property to go through, the parties agreed to place the proceeds from the sale of the property in an escrow account.

LeBouef hired a new attorney, who wrote Stephenson in September and October 1993, notifying him of LeBoeufs discharge in bankruptcy and asking him to release his claim to the proceeds of the sale. In 1994, when Stephenson refused to release his claim to the escrow funds, Le-Boeuf filed suit for declaratory judgment on the funds in the escrow account.

LeBoeufs claims against Stephenson for breach of fiduciary duty and fraud were tried to a jury. The jury found Stephenson (1) had assumed the fiduciary duty of an attorney to LeBouef by naming himself trustee of the deed of trust securing the $38,800.00 note while serving as her attorney, and (2) had “knowingly” breached that fiduciary duty when he made a claim to the proceeds from the sale of the property. The jury, however, found Stephenson had not committed fraud against Le-Boeuf. Based on its affirmative finding of breach of fiduciary duty, the jury awarded Leboeuf $51,511.05 from the escrow account, $7,750.00 for past mental anguish, and $25,000.00 in exemplary damages. The jury awarded LeBoeuf $100,000.00 in attorney’s fees for trial, $10,000.00 for appeal to the court of appeals, and $10,000.00 for appeal to the Texas Supreme Court.

The jury determined Stephenson was entitled to $6,530.00 of the funds in the escrow account. The jury also awarded Stephenson $34,000.00 in attorney’s fees for trial, $10,000.00 for appeal to a court of appeals, and $10,000.00 for appeal to the Texas Supreme Court.

In its judgment, the trial court, stating that the declaratory judgment action had been tried to the court, declared that Le-Boeuf has all rights in the escrow account and Stephenson has no rights in those funds. Based on the declaratory judgment, the court entered judgment for Le-Boeuf for attorney’s fees in the same amount as that which the jury had awarded her. The court also granted LeBoeufs motion notwithstanding the verdict on the jury’s findings that Stephenson was entitled to a portion of the escrow funds and attorney’s fees on the basis that there were no pleadings to support the jury’s findings and the issue was not tried by consent. Finally, the trial court entered judgment on the jury’s award of $7,750.00 in mental anguish damages and $25,000 in punitive damages.

II. Fiduciary Duty

Stephenson challenges the legal sufficiency of the evidence in support of the jury’s finding that he assumed a fiduciary duty. When reviewing a challenge to the legal sufficiency of the evidence, i.e., a “no evidence” point of error, the reviewing court may consider only the evidence and inferences that support the challenged findings and should disregard all evidence and inferences to the contrary. See ACS Inv., Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). If there is more than a scintilla of evidence to support the finding, the claim is sufficient as a matter of law, and any challenges merely go to the weight of the evidence. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993). The court may sustain a “no evidence” point if the record reveals one of the following:

(1) a complete absence 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 scintilla; and
(4) the evidence established conclusively the opposite of the vital fact.

See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). When the reviewing court sustains a “no evidence” point, it is the court’s duty to render judgment for the appellant because that is the judgment the trial court should have rendered. See Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176 (Tex.1986); National Life & Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969).

LeBoeuf based her assertion that Stephenson owed her a fiduciary duty on two relationships: (1) as her attorney, and (2) as trustee on her deed of trust. A fiduciary duty requires the fiduciary to place the interest of the other party above his own. See Hoggett v. Brown, 971 S.W.2d 472, 487 (Tex.App.-Houston [14 th Dist.] 1997, writ denied). There are two types of fiduciary relationships. The first is a formal fiduciary relationship, which arises as a matter of law, including attorney-client relationships. See Insurance Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex.1998); Texas Bank & Trust Co. v. Moore, 595 S.W.2d 502, 507 (Tex.1980). The second is an informal fiduciary relationship, which may arise “from a moral, social, domestic or purely personal relationship called a confidential relationship.” Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 287 (Tex.1998). A confidential relationship exists in cases in which “ ‘influence has been acquired and abused, in which confidence has been reposed and betrayed.’ ” Id. (quoting Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992)).

Stephenson argues his representation of Leboeuf in her divorce could not give rise to a fiduciary duty with respect to the escrow account because' that representation terminated upon her divorce in 1983. We agree. The attorney-client relationship is based a contractual relationship in which the attorney agrees to render professional services for the client. See Vinson & Elkins v. Moran, 946 S.W.2d 381, 405 (Tex.App.-Houston [14th Dist.] 1997, writ dism’d by agr.) (citing Yaklin v. Glusing, Sharpe & Krueger, 875 S.W.2d 380, 383 (Tex.App.-Corpus Christi, 1994, no writ); Parker v. Carna-han, 772 S.W.2d 151, 156 (Tex.App.-Texar-kana 1989, writ denied)). To establish the relationship, the parties must explicitly, or by their conduct, manifest an intention to create it. See id. (citing Terrell v. State, 891 S.W.2d 307, 313 (Tex.App.-El Paso 1994, pet. refd)). In the absence of an agreement to the contrary, an attorney-client relationship generally terminates upon the completion of the purpose of the employment. See Simpson v. James, 903 F.2d 372, 376 (5 th Cir.1990); Dillard v. Broyles, 633 S.W.2d 636, 643 (Tex.App.-Corpus Christi 1982, writ refd n.r.e.).

LeBoeuf hired Stephenson to represent her in her divorce. Stephenson testified that he did not represent LeBoeuf any further after her divorce. In fact, when Joe LeBoeuf died in December 1983, Stephenson recommended to LeBoeuf that she hire another attorney to represent her. LeBoeuf did not testify or otherwise present any evidence that Stephenson agreed to represent her in any matters beyond her divorce. Indeed, it cannot be said there was any attorney-client relationship when Stephenson sued LeBoeuf for his unpaid attorney’s fees.

Stephenson further contends no fiduciary duty arose from his position as trustee of LeBoeufs deed of trust. In Texas, a deed of trust is used in the nature of a mortgage in the transfers of real property. See Lucky Homes, Inc. v. Tarrant Sav. Ass’n, 379 S.W.2d 386, 388 (Tex. Civ.App.-Fort Worth, 1964), rev’d on other grounds, 390 S.W.2d 473 (Tex.1965). The power of the trustee to sell the deed for the parties is derived solely from the trust instrument. See Bonilla v. Roberson, 918 S.W.2d 17, 21 (Tex.App.-Corpus Christi 1996, no writ.) (citing Winters v. Slover, 151 Tex. 485, 251 S.W.2d 726, 728 (1952)). The powers conferred upon a trustee in a deed of trust must be strictly followed. See American Sav. & Loan Ass’n v. Musick, 531 S.W.2d 581, 587 (Tex.1975); Bonilla, 918 S.W.2d at 21 (citing Durkay v. Madco Oil Co., 862 S.W.2d 14, 17 (Tex. App.-Corpus Christi 1993, writ denied)); see also University Sav. Ass’n v. Springwoods Shopping Ctr., 644 S.W.2d 706, 706 (Tex.1982). A trustee’s duties are fulfilled by complying with the deed of trust. See Peterson v. Black, 980 S.W.2d 818, 822 (Tex.App.-San Antonio 1998, no. pet.).

When exercising a power in a deed of trust, the trustee becomes a special agent for both parties, and he must act with absolute impartiality and with fairness to all concerned in conducting a foreclosure. See id.; Bonilla, 918 S.W.2d at 21 (citing First Fed. Sav. & Loan Ass’n v. Sharp, 359 S.W.2d 902, 904 (Tex.1962)); First State Bank v. Keilman, 861 S.W.2d 914, 925 (Tex.App.-Austin 1993, writ denied). The word “trustee” is equated with fairness, impartiality, and a maximum effort to achieve the object of the trust. See First Fed. Sav. & Loan Ass’n of Dallas, 359 S.W.2d at 904. The Fort Worth Court of Appeals explained:

In connection with any actual execution of the power of sale the person who has given the deed of trust is a cestui que trust of him who acts as trustee thereunder, and the trustee in effecting the sale pursuant to the authority granted in the deed of trust owes to him at least the duty to carry out the authority devolved, in scrupulous honesty, according to law and the provisions of the instrument.

Lucky Homes, Inc., 379 S.W.2d at 388. The trustee, however, does not owe a fiduciary duty to the mortgagor. See Keilman, 851 S.W.2d at 925; see also Castillo v. First City Bancorporation of Texas, 43 F.3d 953, 960 (5th Cir.1994) (applying Texas law); FDIC v. Myers, 955 F.2d 348, 350 (5th Cir.1992) (applying Texas law).

LeBouef relies on a case fi’om this court in support of her assertion that Stephenson owed her a fiduciary duty as trustee. See American Sav. & Loan Ass’n v. Musick, 517 S.W.2d 627 (Tex.Civ.App.-Houston [14 th Dist.] 1974), rev’d on other grounds, 531 S.W.2d 581 (Tex.1975). In American Sav. & Loan Ass’n, the court stated the law -with respect to trustees:

“The powers conferred upon a trustee in a deed of trust must be strictly followed. The deed of trust creates a true fiduciary relationship between the grantor and trustee, and the trustee may not delegate his duties without strict compliance with express terms of the trust. A sale made without such compliance is void and passes no title.”

Id. at 631. (citations omitted) (emphasis added).

LeBoeuf s reliance on American Sav. & Loan Ass’n, however, is misplaced. The above stated law concerns a claim that a substitute trustee could not have been appointed to sell the property because the trustee had not refused to act under the trust. See id. at 631-32. A reading of the entire passage, rather than just the italicized portion upon which LeBoeuf relies, reflects the well-settled principal in Texas law that the trustee has the duty to follow strictly the terms of the deed of trust. The Austin Court of Appeals addressed a similar argument. See Keilman, 851 S.W.2d at 925. The Keilman court noted that while the American Sav. & Loan Ass’n court used the phrase “fiduciary relationship,” the opinion indicates the duty owed is simply a duty to act with impartiality and fairness by strictly complying with the terms of the deed of trust. See id. (citing American Sav. & Loan Ass’n, 517 S.W.2d at 631).

As trustee, the only “duty” Stephenson could have owed LeBoeuf was to adhere to the terms of the deed of trust. LeBoeuf has not asserted that Stephenson failed to act under the terms of the trust. Indeed, LeBoeuf never asked Stephenson to sell the property and Stephenson was not required to sell the property until asked.

LeBoeuf also relies on Edwards v. Holleman, in her assertion that Stephenson, as trustee, owed her a fiduciary duty. See 893 S.W.2d 115 (Tex.App.-Houston [1st Dist.] 1995, writ denied). Edwards, however, is distinguishable from the case at bar. In Edwards, based on a finding that the trustee had charged an unreasonable trustee’s fee, the jury found that the trustee had breached his fiduciary duty by intending to gain an additional benefit for himself. See id. at 119. Here, there is no allegation that Stephenson charged or attempted to collect any trustee’s fee.

On appeal, LeBoeuf appears to be asserting a fiduciary relationship arose from a confidential relationship, which, as previously stated, arises in cases in which influence has been acquired and abused and in which confidence has been reposed and betrayed. See Associated Indem. Corp., 964 S.W.2d at 287; Crim Truck & Tractor Co., 823 S.W.2d at 594. She claims Stephenson acquired and abused his position as trustee to protect his own interest in collecting his fees.

Stephenson asserts that LeBoeuf neither pled a confidential relationship nor raised this argument before the trial court. In response, LeBoeuf contends that the jury’s finding of a confidential relationship is deemed found in support of the judgment. We disagree. There are two types of relationships: (1) a formal relationship such as attorney-client, and (2) an informal fiduciary relationship arising from a confidential relationship. See Hoggett, 971 S.W.2d at 487. LeBoeufs assertion of a fiduciary relationship was submitted to the jury on one distinct theory, that “of an attorney to DIANN LEBOEUF by naming himself as the Trustee in the Deed of Trust ... while he was serving as her attorney,” not a confidential relationship.

Finally, Stephenson claims that even if he had assumed a fiduciary duty, there is no evidence or insufficient evidence that he breached a fiduciary duty when he made a claim to a portion of the escrow funds. We agree. Under the Texas Disciplinary Rules of Professional Conduct an attorney may “acquire a lien granted by law to secure the lawyer’s fee or expenses.” Tex. R. Disciplinary PROf’l Conduct 1.08(h)(1), reprinted in Tex. Gov’t Code Ann. tit. 2, subtit. G. app. A (Vernon 1998) (Tex. State Bar R. art. X, § 9).

In any event, when the title company contacted Stephenson, it was because he was a judgment creditor, not because he was a trustee, attorney, or fiduciary. He had a right to obtain the money judgment for his fees. The judgment hen is both automatic and authorized by law.

We find the evidence is not legally sufficient to support the jury’s finding that Stephenson had assumed a fiduciary duty or that Stephenson had breached such duty. LeBoeufs claims for mental anguish and punitive damages are based on her claim for breach of fiduciary duty. Therefore, because there is no evidence to support an assumption or a breach of a fiduciary duty, we reverse the judgment of the trial court awarding LeBoeuf mental anguish and punitive damages.

III. Trial Amendment

Stephenson contends the trial court erred in denying his claim to a portion of the funds on the basis that he failed to plead for it. He also asserts the trial court erred in denying his motion for trial amendment. The jury determined Stephenson was entitled to assert a claim for $6,530.00 out of the escrow funds and attorney’s fees for trial and appeal. The trial court granted LeBoeufs motion for judgment notwithstanding the verdict on the grounds that there were no pleadings to support the jury’s findings and the issue had not been tried by consent.

In the prayer of his Second Amended Answer, which is the pleading on which Stephenson went to trial, Stephenson requested “recovery of the amount due, if any within the escrow funds and for any and all relief, at law or in equity to which he may show himself justly entitled.” In Ms First Amended Answer, Stephenson had asked “the Court to determine who is entitled to these funds.” TMs request, however, was omitted from the Second Amended Answer.

In response to the trial court’s determination that he had not pled a claim to the funds in the escrow account, Stephenson sought leave to file a trial amendment to cure the deficiency. The trial court denied leave. Rule 66 of the Rules of Civil Procedure provides:

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading, or if during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining Ms action or defense upon the merits. The court may grant a postponement to enable the objecting party to meet such evidence.

Tex. R. Civ. P. 66.

The trial court, therefore, has no discretion to refuse a trial amendment unless: (1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense and, therefore, is prejudicial on its face and the opposing party objects to it. See Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex.1992); Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex.1980); Lege v. Jones, 919 S.W.2d 870, 875 (Tex.App.Houston [14 th Dist.] 1996, no writ). An amendment is mandatory if it is merely procedural in nature such as conforming the pleadings to the evidence at trial. See Chapin & Chapin, Inc., 844 S.W.2d at 665. An amendment is not mandatory if it is substantive, i.e., changing the nature of the trial. See id. If the amendment is not mandatory, the decision to allow or deny the amendment is within the sound discretion of the trial court. See State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.1994). Therefore, the trial court’s decision to allow or deny the amendment may be reversed only if it is a clear abuse of discretion. See id.

A proposed trial amendment, which asserts a new cause of action may be prejudicial on its face. See Whole Foods Market Southwest, L.P. v. Tijerina, 979 S.W.2d 768, 776 (Tex.App.-Houston [14 th Dist.] 1998, pet. denied). Merely because an amended pleading asserts a new cause of action, however, does not make it prejudicial to the opposing party as a matter of law. See id. Rather, the amendment must be evaluated in the context of the entire case. See id.

An amendment prejudicial on its face has three defining characteristics ascertainable from the amendment viewed in the context of the record. First, the amendment must assert a new substantive matter that reshapes the nature of the trial itself. See id. Second, the new matter asserted must be of such a nature that the opposing party could not have anticipated it in light of the development of the case up to the time the amendment was requested. See id. “[M]erely because the opposing party did not anticipate the issues in the amendment is not the test. The question is whether the opposing party could have anticipated the newly asserted matter as revealed by the record of the case.” See id. (quoting Smith Detective Agency & Nightwatch Serv., Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743, 749 (Tex.App.-Dallas 1996, writ denied)) (emphasis in the original). Third, the opposing party’s presentation of the case would be detrimentally affected by the filing of the amendment. See id.

Although the assertion of a previously unpled claim to the escrow funds is a substantive matter, it was not prejudicial on its face. Stephenson’s assertion of a claim to the escrow funds did not reshape the nature of the trial. This case involves limited facts and issues. We do not see that any additional facts would have been injected into the trial on this issue. For the same reasons, Stephenson’s claim to the escrow funds would not have affected LeBoeufs presentation of her case. Also, LeBouef could anticipate the assertion of a claim to the escrow funds because Stephenson had previously asserted a claim in his first amended answer and had requested such relief in the prayer of the his second amended answer. Therefore, the trial court abused its discretion in denying Stephenson’s trial amendment.

The trial court granted LeBoeufs motion notwithstanding the verdict and ordered that Stephenson take nothing on the jury’s findings that he was entitled to a portion of the funds in the escrow account and attorney’s fees on the ground that Stephenson’s pleadings did not support those jury findings. A motion for judgment not withstanding the verdict may be granted only if a directed verdict would have been proper. See Tex. R. Civ. P. 301; Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991). A motion for directed verdict is proper when a defect in the opponent’s pleadings makes them insufficient to support a judgment. See Knoll v. Neblett, 966 S.W.2d 622, 627 (Tex.App.-Houston [14 th Dist.] 1998, pet. denied). Finding that it was an abuse of discretion for the trial court to deny Stephenson’s trial amendment, we conclude it was error for the court to grant LeBoeufs motion notwithstanding the verdict that Stephenson take nothing on his claim for a portion to the escrow funds and attorney’s fees on the basis that he did not plead for such claim.

We must now determine if Stephenson’s claim for unpaid attorney’s fees was discharged in LeBoeufs bankruptcy action.

IV. Bankruptcy Discharge

Stephenson contends his claim was not discharged in LeBoeufs bankruptcy proceedings. First, Stephenson argues he was not properly listed and did not receive notice of the bankruptcy case. Although LeBoeuf listed Stephenson as an unsecured creditor, the address she listed for him was not his then current address. Therefore, Stephenson did not learn of the bankruptcy case until 1993, after the bankruptcy case was closed and the parties had entered into the escrow agreement.

A creditor must have notice of the bankruptcy or have actual knowledge of the bankruptcy in time to permit timely filing of a proof of claim. See Matter of Springer, 127 B.R. 702, 707 (Bankr. M.D.Fla.1991). Section 523(a)(3)(A) of the Bankruptcy Code provides that a debt is not discharged in bankruptcy if the creditor is neither properly listed nor scheduled. See 11 U.S.C. § 523(a)(3)(A) (1993). It further requires the debtor to list the address where the creditor is destined to receive notice. See In re Nicholson, 170 B.R. 153, 155 (Bankr.W.D.Mo.1994); In re Lyman, 166 B.R. 333, 335 (Bankr.S.D.Ill. 1994); Matter of Springer, 127 B.R. at 707. The Bankruptcy Code places the burden on the debtor to complete the schedule accurately. See Matter of Springer, 127 B.R. at 707.

LeBoeuf contends a debt will not be discharged if the debtor’s failure to list properly a creditor was due to intentional design, fraud, or improper motive. See Matter of Stone, 10 F.3d 285, 289 (5th Cir.1994). On the other hand, if the failure is attributable to negligence or inadvertence, then equity favors discharge of the debt. See id. LeBoeuf listed the same address as was on Stephenson’s lien filed with the Harris County Clerk’s Office. Therefore, according to LeBoeuf, there is no evidence that her failure to provide Stephenson’s correct address was intentional.

LeBoeuf filed for bankruptcy in 1989, only months after Stephenson had obtained a judgment against her. LeBoeuf should have known of Stephenson’s then current address from that litigation. “Use of an address that is two years old does not constitute reasonable diligence for purposes of the statute excepting from discharge a debt not listed or scheduled.” In re Meek, 126 B.R. 1021, 1023 (Bankr. E.D.Ark.1991). Here, LeBoeuf used an address that was several years old, demonstrating a lack of diligence. Admittedly, “[t]here may be situations which arise wherein the creditor’s business address is not known and that there may even be a need for some kind of publication or substituted notice.” In re Nicholson, 170 B.R. at 155. This is not such a case. LeBoeuf has not shown that she was misled or unaware of Stephenson’s correct address. See id. It was LeBoeufs burden to complete her bankruptcy schedule accurately. See Matter of Springer, 127 B.R. at 707. This she did not do.

Second, Stephenson argues LeBoeuf should be judicially estopped from asserting that his claims against her have been discharged. When LeBoeuf filed for bankruptcy, she did not list the $38,800.00 promissory note or rental payments on her schedule of assets; instead, her sworn schedules showed no assets. In the present case, LeBoeuf has claimed the same asset, i.e., her former home or the funds in escrow from its sale, which was omitted from her sworn statements filed in bankruptcy court. Because the asset was not disclosed in bankruptcy court, Stephenson contends he lost the opportunity to participate in LeBoeufs bankruptcy proceedings.

Judicial estoppel applies to a party who tries to contradict a sworn statement made in prior litigation. See Stewart v. Hardie, 978 S.W.2d 203, 208 (Tex.App.-Fort Worth 1998, pet. denied) (citing Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir.1988)); Andrews v. Diamond, Rash, Leslie & Smith, 959 S.W.2d 646, 649 (Tex.App.-El Paso 1997, writ denied). The purpose of the doctrine is to protect the integrity of the judicial process by preventing the parties from “ ‘playing fast and loose with the courts, and prohibiting changing positions according to the exigencies of the moment.’ ” Matter of Coastal Plains, Inc., 179 F.3d 197, 206 (5th Cir.), cert. denied, 68 U.S.L.W. 3311, — U.S. -, 120 S.Ct. 936, 145 L.Ed.2d 814 (1999) (quoting United States v. McCaskey, 9 F.3d 368, 378 (5th Cir.1993)); see also Andrews, 959 S.W.2d at 649. Generally, it applies when “ ‘intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.’ ” Matter of Coastal Plains, Inc., 179 F.3d at 206 (quoting Scarano v. Central R.R. Co., 203 F.2d 510, 513 (3d Cir.1953)).

Debtors in bankruptcy have “an absolute duty to report whatever interests they hold in property, even if they believe the asset is worthless or unavailable to the bankruptcy estate.” See Stewart, 978 S.W.2d at 208 (citing In re Yonikus, 974 F.2d 901, 904 (7 th Cir.1992)); see also Matter of Coastal Plains, Inc., 179 F.3d at 207-08 (stating the Bankruptcy Code imposes on the debtor an express, affirmative duty to disclose all assets). The courts will not allow a debtor to obtain relief from the bankruptcy court by representing that a claim does not exist and then subsequently assert that claim for her own benefit in a separate proceeding. See Matter of Coastal Plains, Inc., 179 F.3d at 208.

Although LeBoeuf filed a signed sworn schedule with the bankruptcy court stating she had no assets, she, nonetheless, contends she did not intentionally represent to the bankruptcy court that she had no interest in the property. She testified that she explained to her bankruptcy attorney her interest in the property. According to LeBoeuf, her attorney discussed the issue with the bankruptcy trustee, who determined that any interest she might have would be exempt on the basis that it was her homestead.

LeBouefs rebanee on her attorney’s advice does not bar the appbeation of judicial estoppel in this case. “A debtor’s reliance on advice of counsel constitutes an excuse for his transfer or concealment of property from creditors and will prevent the court from denying his discharge only where his reliance is reasonable and in good faith.” In re Dreyer, 127 B.R. 587, 597 (Bankr.N.D.Tex.1991). The court in Dreyer rejected the debtor’s argument that he relied on his attorney to prepare schedules. The court observed that the debtor signed the statements and schedules prepared for him and he had declared under penalty of perjury that he had read the statements and schedules and that they were true and correct. See id. Similarly, LeBoeuf swore under penalty of perjury that she had read the schedules, that the schedules were true and correct, and that she had no assets.

LeBoeuf also claims she did not successfully maintain in bankruptcy court that she had no interest in the property because successfully maintaining a position in the bankruptcy court would involve submitting the issue to the court and obtaining a favorable determination of the issue. To the contrary, LeBoeufs debt was discharged on the bankruptcy trustee’s finding that she had no assets.

LeBoeuf further contends the bankruptcy court had notice of her interest in the property. Included in the bankruptcy file is a letter from Linda Goerhs, the children’s guardian, to Old Republic Surety Company, which is attached to a proof of claim filed by Lawyers Surety Corporation. The letter makes reference to Le-Boeufs hen. This does not change the fact that LeBoeuf swore under penalty of perjury that she had no assets or that the trustee reported to the bankruptcy court that LeBoeuf had no assets. We conclude LeBoeuf is judicially estopped to assert that Stephenson’s claim against her was discharged in bankruptcy.

Y. Claim to Escrow Funds

On review of a declaratory judgment action, the court of appeals must uphold the judgment of the trial court if it can be sustained on any legal theory supported by the evidence. See Bell v. Katy Indep. Sch. Dist., 994 S.W.2d 862, 864 (Tex. App-Houston [1st Dist.] 1999, no pet.); Oak Hills Properties v. Saga Restaurants, Inc., 940 S.W.2d 243, 245 (Tex. App.-San Antonio 1997, no writ). The court of appeals has a duty to render the judgment the trial court should have rendered. See City of Galveston v. Giles, 902 S.W.2d 167, 172 (Tex.App.-Houston [1st Dist.] 1995, no writ); Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478, 488-89 (Tex.App.-Houston [1st Dist.] 1993, writ denied). The court of appeals, however, may only render judgment in cases where the material facts are undisputed. See Mitchell v. Rancho Viejo, Inc., 736 S.W.2d 757, 762 (Tex.App.-Corpus Christi 1987, writ refd n.r.e.) (citing Donald v. Carr, 407 S.W.2d 288, 291 (Tex.Civ.App.-Dallas 1966, no writ)).

Finding that Stephenson’s claim for unpaid attorney’s fees was not discharged in LeBoeufs bankruptcy proceedings, we conclude the trial court erred in declaring that Leboeuf has all rights to the funds in the escrow account, while Stephenson has none. The trial court submitted to the jury a question on Stephenson’s entitlement to the escrow funds. The jury determined Stephenson was entitled to $6,530.00. Therefore, because there are no facts left to be determined, we render judgment that Stephenson recover $6,530.00 of the funds in the escrow account and that LeBoeuf recover the remaining amount.

VI. Attorney’s Fees

Stephenson claims the trial court erred in awarding attorney’s fees to LeBoeuf. Under the declaratory judgments act, the granting of attorney’s fees is with the discretion of the trial court. See Tex. Prac. & Civ. Rem.Code Ann. § 37.009 (Vernon 1997) Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998). The act, however, imposes four limitations on that discretion. See Bocquet, 972 S.W.2d at 21. The attorney’s fees must be (1) reasonable, (2) necessary, (3) equitable, and (4) just. See id. Whether the attorney’s fees are reasonable and necessary are fact questions. See id. Whether the attorney’s fees are equitable and just are matters of law, which come within the trial court’s discretion. See id. The court may conclude it is not equitable or just to award reasonable and necessary attorney’s fees. See id.

In her Nevada bankruptcy proceedings, LeBoeuf did not properly list Stephenson as a creditor, even though she had burden to do so. Stephenson did not receive notice of the bankruptcy proceedings or Le-Boeufs discharge in bankruptcy until nearly four years after the fact and, therefore, was not able to assert a claim for his unpaid attorney’s fees. LeBoeuf further declared under penalty of perjury that she had no assets when, in fact, she had an interest in her former homestead, only to claim, in this case, an interest in that same property. Under these circumstances, we find that an award of attorney’s fees to LeBoeuf is neither equitable nor just. Therefore, the trial court abused its discretion in awarding attorney’s fees to Le-Boeuf. We reverse the portion of the judgment awarding LeBoeuf attorney’s fees and render judgment that LeBoeuf take nothing on her claim for attorney’s fees under the declaratory judgments act.

The trial court submitted a question to the jury on Stephenson’s claim for reasonable attorney’s fees. The jury award Stephenson $34,400.00 in attorney’s fees for trial, $10,000 for appeal to the court of appeals, and $10,000 for appeal to the Texas Supreme Court.

On rehearing, LeBoeuf claims that Stephenson is not entitled to attorney’s fees because (1) he did not assert the right to attorney’s fees in an issue or raise it in his argument and therefore waived it; and (2) he judicially admitted he was not entitled to attorney’s fees by stating in his Brief, “there was no purpose or object of the declaratory action as between LeBouef and Stephenson.” We disagree as to both contentions.

The rule which applies to statement of issues in appellate briefs is TRAP 38.1(e) which provides:

The brief must state concisely all issues or points presented for review. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.

(Emphasis added).

Even before Rule 38.1(e) was made effective September 1, 1997, a point of error was sufficient if it directed attention of the appellate court to the error about which the complaint is made. Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex.1995). Also, courts liberally construe briefing rules. Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex.1990).

The new rules simplified appellate procedure so cases are decided on their merits rather than be dismissed on procedural or technical grounds.

Under the appellate rules, parties are now permitted to use the federal courts’ “issues presented” practice rather than the traditional Texas “point of error” practice. This represents a major change in one of the most picayune areas of appellate law under the old rules. Under the old rule, courts of appeals often elevated form over substance and held points of error to be waived on a myriad of hypertechnical deficiencies in the terminology of the points.... The new ‘issues presented’ practice signals the intention of the Texas Supreme Court to have all appeals judged on the merits of the controversies rather than hypertechnieal waiver issues. Appellate courts must now look to the argument to determine the nature of complaints, including any subsidiary issues, rather than the points or issues alone. If the court is able to ascertain the nature of the complaint from the argument, the issue will be preserved for appellate review. Only in the rare instance of an indecipherable argument should an issue be deemed waived by the court....

5 Tex. JuR. 3b Appellate Review §§ 429 (citing John Hill Cayce, Jr., et al., Civil Appeals in Texas: Practicing under the New Rules of Appellate Procedure, 49 BayloR L. Rev. 867 (1997)), 430 & 431 (1999).

The attention of the court is directed to the error about which Stephenson complains, that is, the trial court’s granting of LeBoeuf s motion notwithstanding the verdict, which denied the jury award in favor of Stephenson in the amount of $6,530 as to the escrow funds and attorney’s fees in connection with the trial and appeal of the case. We find that Stephenson’s statement of issues and argument regarding his claimed interest in the escrow account include the subsidiary issue of his attorney’s fees, his statement of facts clearly sets forth the facts necessary to a determination of this issue, and his prayer specifically requested “attorney’s fees as found by the jury.”

The trial court denied Stephenson’s recovery of the escrow funds and attorney’s fees not because of any substantive defect in Stephenson’s claim but because of a perceived defect in his pleadings. As we have held, because Stephenson’s trial amendment correcting such defect should have been allowed by the trial court and the motion for judgment n.o.v. should not have been granted, we are required to enter the judgment the trial court should have entered. Although the attorney’s fees portion of Stephenson’s claim is dependent on his recovery of a portion of the escrow funds, it necessarily follows that if he recovers the escrow funds he sought, he should also recover the attorney’s fees. If we had denied Stephenson any escrow funds, then the attorney’s fees, which are dependent on such recovery, would have been denied regardless of whether LeBoeuf requested them. See First Am. Title Ins. Co. v. Willard, 949 S.W.2d 342, 352 (Tex.App.-Tyler 1997, writ denied).

Moreover, Stephenson did not judicially admit in his Brief that he was not entitled to attorney’s fees. Stephenson was referring to the trial court’s reasoning in denying his claim to the escrow funds, i.e., his “supposed” failure to plead his claim, and LeBouefs reason for failing to submit a jury issue regarding her claim to the escrow funds, i.e., Stephenson not disputing the merits of the underlying claim. Because Stephenson did not dispute LeBoeufs claim to the escrow funds there was no need or purpose for declaratory relief to LeBoeuf which would justify an award to her of attorney fees and costs. See Hartford Casualty Ins. Co. v. Budget Rent-A-Car Systems, Inc., 796 S.W.2d 763, 772 (Tex.App.-Dallas 1990, writ denied); Barnett v. City of Colleyville, 737 S.W.2d 603, 606-07 (Tex.App.-Fort Worth 1987, writ denied). Because we allowed Stephenson’s trial amendment, the trial court’s ruling that Stephenson’s pleadings were defective has been corrected to allow Stephenson’s claim for a portion of the escrow funds and attorney’s fees.

Having determined that Stephenson is entitled to a portion of the escrow funds, we reverse the trial court’s judgment that Stephenson take nothing on his claim for attorney’s fees and render judgment, under the declaratory judgments act, that Stephenson recover attorney’s fees in the amounts awarded by the jury.

VII. Conclusion

In summary, we find no evidence to support the jury’s finding that Stephenson had either assumed or breached a fiduciary duty and, accordingly, we reverse the portion of the judgment of the trial court awarding LeBoeuf $7,750.00 in mental anguish damages and $25,000.00 in exemplary damages and render judgment that LeBoeuf take nothing on her claim that Stephenson breached a fiduciary duty. We conclude the trial court abused its discretion in denying Stephenson’s trial amendment and erred in granting Le-Boeufs motion for judgment notwithstanding the verdict. We further find the trial court erred in declaring that all rights to the funds in the escrow account belong to LeBoeuf. Therefore, we reverse the portion of the judgment that Stephenson take nothing on his claim for the funds in the escrow account and render judgment that Stephenson recover $6,580.00 of the funds in the escrow account and modify the judgment so that LeBoeuf recovers the remaining amount of the funds in the escrow account. Finding that the trial court abused its discretion in awarding LeBouef attorney’s fees, we reverse the portion of the judgment awarding LeBoeuf attorney’s fees and render judgment that LeBoeuf take nothing on her claim for attorney’s fees. Finally, we reverse the judgment awarding Stephenson no attorney’s fees and render that Stephenson recover attorney’s fees in the amount of $84,400.00 for trial, $10,-000.00 in the event of appeal to the court of appeals, and $10,000.00 for appeal to the Texas Supreme Court.

      . LeBoeuf contends Stephenson has waived this issue for appeal. A review of the record reflects that Stephenson objected to the submission of the jury questions on fiduciary duty on the ground that there was no evidence of a fiduciary relationship based on Stephenson’s role as attorney or trustee. In his motion for judgment non obstante vere-dicto, Stephenson further challenged the sufficiency of the evidence supporting the jury’s findings that he had assumed and breached a fiduciary duty.

      . The court, agreeing with Leboeuf that Stephenson had not pled for any recovery of the escrow funds and that the issue had not been tried by consent, submitted the question to the jury “so that we can have complete answers to all of the questions that we might need answers to in the event of action taken by the Court of Appeals.”

      . The trustee stated that he had "neither received any property nor paid any money on the account of this estate except exempt property; that the trustee has made diligent inqui-iy into the whereabouts of property belonging to the estate and that there is no properly available for distribution from the estate over and above that exempted by the debtor(s).”


source: Caselaw Access Project

author: SAM NUCHIA, Justice.

license: Public Domain

text:
    Nathaniel John MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 01-99-00260-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 6, 2000.

      Frances Northcutt, Houston, for Appellant.
    Calvin Hartmann, John B. Holmes, Houston, for State.
    Panel consists of Justices O’CONNOR, NUCHIA, and DUGGAN.

      . The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

SAM NUCHIA, Justice.

Appellant was charged with capital murder. A jury found him guilty of the lesser included offense of murder and assessed punishment at 60 years confinement. Appellant contends the court erred in denying his request for a jury charge on manslaughter. We affirm.

BACKGROUND

Joanie Nash invited Dan Cox to a party. Appellant was also at Nash’s party. Appellant had been drinking beer, smoking marihuana, and doing cocaine throughout the evening. Appellant and Cox left the party together to go to Cox’s apartment to contact Cox’s dealer to get cocaine. Appellant returned to the party alone wearing different clothes. Appellant eventually told Nash and his brother that he had killed Cox because Cox had tried to molest him. No one contacted the police that night.

The next day, after friends became concerned about his welfare, Cox’s body was found seated on the couch in the living room of his apartment. The assistant medical examiner determined that he had been stabbed 24 times in the neck, and his throat had been cut. Cox also had a broken nose, facial abrasions, a stab wound to the chest, and a stab wound to the abdomen.

Police got a warrant after learning from appellant’s mother’s boyfriend, a deputy constable, that appellant admitted killing Cox. Appellant gave the police two written statements. In the first statement, appellant claimed he had stabbed Cox in self-defense after Cox made sexual advances toward him. Appellant stated, “all [he] could see was being raped and killed,” and he used his knife “to make him stop” after Cox attempted to pull his shorts down. In the second statement, appellant admitted he took $420 out of Cox’s wallet and put the wallet and the clothes he had been wearing in a restaurant dumpster.

A crime scene expert testified appellant’s account of how he stabbed Cox, as Cox was leaning over him, pulling at his shorts, was inconsistent with the physical evidence at the scene. The pattern of blood splatter and the absence of blood in the area directly behind Cox’s head indicated Cox was seated normally on the couch, in the approximate position in which he was found, while he was being stabbed.

ANALYSIS

In his point of error, appellant alleges the court erred in denying his request for a jury charge on manslaughter. He asserts that the issue of manslaughter was raised by his testimony that he did not intend to kill the victim. The State argues appellant’s testimony raised the issue of self-defense, precluding an instruction that he committed manslaughter by acting recklessly.

A charge on a lesser included offense must be given if (1) the lesser included offense is included within the proof necessary to establish the charged offense, and (2) there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.1993). The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a lesser included offense should be given. Banda v. State, 890 S.W.2d 42, 60 (Tex.Crim.App.1994). Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim. App.1992).

Manslaughter can be a lesser included offense of capital murder. Adanandus v. State, 866 S.W.2d 210, 232 (Tex. Crim.App.1993). We must next determine whether the record contains evidence that appellant is guilty of only manslaughter. Rousseau, 855 S.W.2d at 673. We examine all of the evidence for any that would support a verdict of guilt only on the lesser charge. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994). Manslaughter requires a finding that appellant recklessly caused the death of Cox. See Tex. Penal Code Ann. § 19.04 (Vernon 1994). In determining whether there is evidence to support a charge on recklessness, a statement that a defendant did not intend to kill the victim “cannot be plucked out of the record and examined in a vacuum.” Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim.App.1986).

On direct examination, appellant testified to the following:

Defense counsel: When you opened the knife. Do you know if he saw it or not?
Appellant: I’m not sure if he did.
Defense counsel: Did you take action at that point?
Appellant: Yes.
Defense counsel: What did you have to do?
Appellant: I swung the knife a couple times towards him.
Defense counsel: Do you think you hit him?
Appellant: Yes.
Defense counsel: Why were you swinging the knife towards Dan Cox?
Appellant: To get him off me.
Defense counsel: Did you have any intent to kill him at that point?
Appellant: No, Sir.

Throughout the direct examination, appellant denied having any specific intent to kill Cox; however, he repeatedly claimed that he acted in self-defense. During cross examination, appellant testified that he intended to defend himself by hurting Cox.

Prosecutor: You testified earlier that you had no intent to hurt Mr. Cox. You plunged a knife two, two and half, a half an inch into him, different variations, 24 times. What did you intend to do?
Appellant: To get him off me.
Prosecutor: By hurting him?
Appellant: Yes, ma'am. I guess it’s to defend myself.
Prosecutor: But you meant to hurt him?
Appellant: Yes, ma'am.
Prosecutor: Why did you tell your lawyer that you didn’t mean to hurt him?
Appellant: I didn’t have intent to go over there to hurt him, but at that time, yes.
Prosecutor: You pulled this gun (sic) out and you slashed his throat. You intended to hurt him, didn’t you?
Appellant: No. I pulled the knife out.
Prosecutor: Pm sorry. When you pulled the knife out, you intended to hurt him, didn’t you?
Appellant: Yes, ma'am.

The record does not establish that appellant, if guilty, was guilty only of the lesser included offense of manslaughter. Even though appellant claimed that he stabbed Cox and cut his throat without intending to kill him, his intent to “hurt him” with a knife is intent to cause serious bodily injury. The commission of an act clearly dangerous to human life suffices to support a conviction for murder under section 19.02(b)(2) of the Texas Penal Code and is not an accidental or reckless act. Tex. Penal Code Ann. § 19.02(b)(2) (Vernon 1994). Furthermore, one cannot accidentally or recklessly act in self-defense. Johnson v. State, 915 S.W.2d 653, 659 (Tex.App. — Houston [14th Dist.] 1996, pet. refd); Avila v. State, 954 S.W.2d 830, 843 (Tex.App.- — El Paso 1997, pet. ref'd) (holding intentional conduct is implicit in a claim of self-defense; thus, a defendant’s testimony that he acted in self-defense effectively precludes an instruction that he committed manslaughter by acting recklessly). The trial court did not err in refusing appellant’s requested charge on manslaughter.

We overrule appellant’s point of error.

We affirm.


author: J. WOODFIN JONES, Justice.

text:
    Terrance HORTON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 03-99-00213-CR, 03-99-00214-CR.
    Court of Appeals of Texas, Austin.
    April 13, 2000.

      James Adkins, Austin, for Appellant.
    Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, for Appellee.
    Before Justices JONES, YEAKEL and PATTERSON.
   J. WOODFIN JONES, Justice.

After his motion to suppress evidence was overruled by the district court, appellant Terrance Horton pleaded guilty to possessing less than one gram of cocaine and to the attempted possession of a firearm by a felon. See Tex. Health & Safety Code Ann. § 481.115(a), (b) (West Supp. 2000); Tex. Penal Code Ann. §§ 15.01, 46.04 (West 1994). In the cocaine case, appellant also admitted a previous felony conviction alleged for enhancement of punishment. See Tex. Penal Code Ann. § 12.42(a)(1) (West Supp.2000). In accord with a plea bargain, the court assessed punishment in each cause at imprisonment for two years. By three points of error, appellant contends he was unlawfully seized and searched and that the evidence thereby obtained should have been suppressed. We will sustain one of appellant’s contentions and reverse.

Austin Police Officer Cara Boyd testified that she and her partner, Officer Soto, were on routine patrol shortly after midnight on July 27, 1998, when they received a call to assist emergency medical personnel. At the specified address, they found the EMS vehicle and an automobile occupied by a man who appeared to be asleep or unconscious. Boyd ran a license check on the automobile, which proved negative. As Boyd was doing this, Soto walked up to the automobile on the passenger (curb) side and awakened the occupant, who was appellant.

Soto asked appellant, who was sweating profusely, to step out of the car, and he did so. According to Boyd, appellant seemed nervous. “He was moving a lot and wouldn’t stand still and just seemed like a nervous person, just moving around a lot, looking around, not standing still.” Boyd got the impression that appellant wanted to get back in his car. She testified, “I felt like that he wanted to get back in the car either to hide something or to get something,” adding, “There is always a chance that there is a weapon.” Boyd took appellant’s keys “[bjecause of the way he was acting, I didn’t want him to use [the keys] as a weapon.” Boyd acknowledged that appellant was not free to leave. By this time, a second pair of police officers had arrived at the scene.

Boyd asked appellant for identification, and “[w]hen he said his ID was in his car, I told him that I would get it for him, and he told me where it was.” Boyd reached inside appellant’s car for a notebook on the passenger seat that appellant said contained his identification. She did not see a weapon or contraband. Boyd took appellant’s driver’s license to the patrol car to run a warrant check. Meanwhile, Soto began to “frisk” appellant’s car. Boyd explained, “When we do a vehicle frisk, it is to make sure there [are] no weapons in a lungeable area, so that when we allow him back in the car, the officers are safe.” During this search, for which consent was neither requested nor received, Soto found a pistol in the space between the driver’s seat and the center console.

Appellant was arrested for unlawfully carrying a weapon. Cocaine was found in appellant’s pocket during a search of his person incident to the arrest. Following the arrest, EMS took appellant to Brack-enridge Hospital.

Appellant contends he was arrested in violation of article 14.01 of the Code of Criminal Procedure. See Tex.Code Crim. Proc. Ann. art. 14.01 (West 1977). He also urges that he was detained, arrested, and searched in violation of the United States and Texas constitutions. See U.S. Const, amends. IV, XIV; Tex. Const, art. I, § 9. Finally, he asserts that the search of his automobile violated the Fourth Amendment. In reviewing these contentions, we defer to the district court’s factual determinations but review de novo the court’s application of the law to the facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.App.1997). Because the district court did not make explicit findings of fact, we review the evidence in the light most favorable to the court’s ruling and assume the court made findings that are supported by the record and buttress its conclusion. See Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App.2000).

Not every encounter between a civilian and a police officer is of constitutional dimension. A police officer may approach a person without probable cause or reasonable suspicion to ask questions or even to request a search. See Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995); Armstrong v. State, 966 S.W.2d 150, 152 (Tex.App. — Austin 1998, no pet.). So long as the person remains free to disregard the officer’s questions and go about his business, the encounter is consensual and merits no further constitutional analysis. See Johnson, 912 S.W.2d at 235 (citing California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)); State v. Shamsie, 940 S.W.2d 223, 225 (Tex.App. — Austin 1997, no pet.). The Fourth Amendment and article one, section nine are invoked only when the encounter rises to the level of a seizure. Under both the federal and state constitutions, a person is seized when he yields to an officer’s show of authority under circumstances in which a reasonable person would believe he is not free to leave. See Johnson, 912 S.W.2d at 236; Shamsie, 940 S.W.2d at 225.

The seizure of a person by a police officer may take two forms: an arrest or a temporary detention for purposes of investigation. Both forms of seizure involve a restraint on a person’s liberty of movement. Whether a particular seizure is an arrest or merely a temporary detention is a matter of degree, and turns on such factors as the length of the detention, the amount of force employed, and whether the officer actually conducts an investigation. See Woods v. State, 970 S.W.2d 770, 775 (Tex.App. — Austin 1998, pet. ref d). There is no bright-line test to distinguish an arrest from a detention. See Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim.App.1997) (handcuffing is not always equivalent to arrest).

In the cause before us, EMS technicians somehow found themselves confronted after midnight with an unidentified man in a parked car who appeared to be unconscious. Under the circumstances, it was reasonable for police officers rather than the emergency medical technicians to make first contact with the man. While the encounter between appellant and the officers did not begin as a seizure, it became a seizure when the officers ordered him out of his car, took his keys, and prevented him from reentering the car. Appellant argues that he was arrested at this point, but we disagree. Considering all the circumstances shown by the record, we conclude that appellant was merely detained for investigation. Appellant had been in the officers’ presence for only a few moments, he was not physically restrained, and the officers were actively investigating the situation before them. Viewed objectively, appellant’s freedom of movement had not been restrained to the degree which the law associates with formal arrest. See Medford v. State, 13 S.W.3d 769, 773-74 (Tex.Crim.App. 2000) (discussing nature of arrest in context of prosecution for escape).

The seizure of appellant did not escalate into an arrest until the pistol was found in his car. Because appellant’s contention that his warrantless arrest violated article 14.01 is premised on his assertion that he was arrested prior to the discovery of the pistol, the argument fails. Point of error one is overruled.

In overruling the motion to suppress, the district court said, “This is community caretaking.” The court was referring to the community caretaking doctrine recognized in Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Relying on this doctrine, the Court of Criminal Appeals recently held that the Fourth Amendment permits a police officer to stop and detain a person for further investigation if the officer reasonably suspects that the person may be ill and in need of assistance. See Wright v. State, 7 S.W.3d 148, 151-52 (Tex.Crim. App.1999). The court earlier held that the Texas Constitution permits a detention under such circumstances. See Hulit v. State, 982 S.W.2d 431, 438 (Tex.Crim.App. 1998). Although appellant contends that his detention was unjustified in this case, we do not reach this question. Even if appellant’s detention was a lawful exercise of the officers’ community caretaking function, we find no justification in the record for the search of appellant’s car.

A police officer who has lawfully detained a person for investigation of suspected criminal activity may conduct a limited search for weapons only if the circumstances give the officer reason to believe that the person detained is armed and dangerous. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Spillman v. State, 824 S.W.2d 806, 811 (Tex.App. — Austin 1992, pet. refd). Under some circumstances, this right to conduct a protective frisk may also extend to the passenger compartment of the detainee’s automobile.

[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). A police officer may not search an automobile for weapons whenever the officer effects an investigative stop, but may do so only if the officer possesses the level of suspicion identified in Terry. See id. n. 14, 88 S.Ct. 1868.

A police officer’s authority to search for weapons in the absence of probable cause is narrowly drawn, even when the officer reasonably suspects criminal activity. See Terry, 392 U.S. at 27, 88 S.Ct. 1868. In determining whether an officer acted reasonably in a particular case, due weight must be given, not to the officer’s inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which the officer is entitled to draw from the facts in fight of experience. See id. When the detention is based on the officer’s community caretaking function, the authority to search for weapons must be restricted at least to the same extent.

It is instructive to consider the facts in Long. See 463 U.S. at 1036-36, 103 S.Ct. 3469. Two sheriff’s deputies were on patrol shortly after midnight when they saw a car traveling erratically and at excessive speed on a rural road. As they watched, the car swerved off the road into a shallow ditch. The officers stopped to investigate. Long, the only occupant of the car, got out and met the deputies as they approached the car on foot. Long appeared to be “under the influence of something” and did not immediately respond to the deputies’ questions. When asked to produce his vehicle registration, Long began to walk toward the car. As they followed him, the deputies saw through the open door a large hunting knife on the driver’s side floorboard. The deputies stopped Long from entering the car and frisked him, finding no weapons. One of the deputies then searched the interior of Long’s car for other weapons and found a bag of marihuana protruding from under the front seat armrest. The United States Supreme Court concluded that under these circumstances, the deputies “did not act unreasonably in taking preventive measures to ensure that there were no other weapons within Long’s immediate grasp before permitting him to reenter his automobile.” Id. at 1051,103 S.Ct. 3469.

This Court has had a previous occasion to apply Long. See Ramsey v. State, 806 S.W.2d 954 (Tex.App. — Austin 1991, pet. refd). In that case, an Austin police officer saw a car speeding down a city street at 2:00 a.m. As the officer followed, the car cut through a business parking lot and, without stopping, turned onto a major thoroughfare. The officer stopped the car. As the officer walked up to the stopped car, he saw the driver, Ramsey, pick up a shaving Mt and throw it onto the passenger-side floorboard. Ramsey got out of his car at the officer’s request and exhibited his driver’s license. Ramsey appeared to be disoriented and his eyes were glassy. The officer believed he was intoxicated. The officer removed the shaving kit from Ramsey’s car and searched it, saying that he believed that it might contain a weapon. See id. at 955. We concluded from this evidence that the officer had specific and articulable facts warranting a reasonable belief that Ramsey posed a danger if he were permitted to reenter his car, and that the officer acted reasonably in taking preventive measures to ensure that there were no weapons within Ramsey’s grasp before allowing him to return to the car. See id. at 958.

In the present cause, appellant appears to have been lawfully parked and was seen to commit no traffic offense. Boyd did not testify to any furtive gestures or suspicious acts by appellant. She did not cite appellant’s location or the fact he was asleep in his car as being suspicious circumstances. As to appellant’s heavy perspiration, the officer said, “It could be from drug ingestion or any other kind of medical problem, I suppose.” The only suspicious circumstance remarked by the officer was appellant’s apparent nervousness, which caused Boyd to believe that he wanted to get back in his car. But the officer did not cite any specific fact that caused her to believe that appellant had a weapon in the car. Instead, she merely expressed the general observation that “[t]here is always a chance that there is a weapon.” It is notable that while Boyd took appellant’s keys because she “didn’t want him to use [them] as a weapon,” there is no evidence that appellant himself was frisked for weapons.

As Boyd testified, one purpose for permitting Terry searches of automobiles is “to make sure there [are] no weapons in a lungeable area, so that when we allow him back in the car, the officers are safe.” See Long, 463 U.S. at 1050-51, 103 S.Ct. 3469. Nonetheless, before such a search is undertaken, the officer conducting the search must have a reasonable basis for believing that the suspect is dangerous and may gain control of a weapon when he reenters the vehicle. Even when the evidence is viewed in the light most favorable to the district court’s ruling, the State failed to prove that the officers had specific, articu-lable facts that reasonably warranted a belief that appellant’s car contained a weapon or that appellant himself was dangerous. The unlawful vehicle search resulted in the discovery of the pistol and tainted the subsequent discovery of the cocaine. The district court erred by overruling appellant’s motion to suppress.

Point of error three is sustained insofar as it complains that the search of appellant’s automobile violated the Fourth Amendment. The judgments of conviction are reversed, and the causes are remanded to the district court.

      . The record does not reveal how EMS personnel came to be at this location.

      . We do not know why appellant was taken to the hospital or the nature of the treatment, if any, he received.

      . The State’s brief does not address the merits of appellant's contentions, but merely urges that appellant did not secure a ruling on his motion to suppress. After the State’s brief was filed, the Court received and filed a supplemental reporter’s record containing the district court’s express overruling of the motion.


author: LESLIE BROCK YATES, Justice.

text:
    Avery Gustavius BREAUX, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 14-99-00215-CR, 14-99-00216-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 13, 2000.

      Frances M. Northcutt, Houston, for appellant.
    Calvin A. Hartmann, Houston, for appel-lee.
    Panel consists of Justices YATES, FOWLER, and EDELMAN.
   OPINION

LESLIE BROCK YATES, Justice.

Appellant, Avery Gustavius Breaux, Jr., was certified to stand trial as an adult and pleaded guilty to the offenses of aggravated assault and aggravated robbery without an agreement as to punishment. Finding his judicial confession sufficient evidence to substantiate guilt, the trial court found appellant guilty of both offenses and sentenced him to twenty-five years’ imprisonment in the Texas Department of Criminal Justice — Institutional Division. On appeal, appellant raises two points of error challenging the sufficiency of the evidence to support his plea of guilty. We affirm in part and reverse and remand in part.

In his first point of error, appellant complains the evidence is insufficient in both the aggravated assault and aggravated robbery cases because his judicial confessions were not voluntary. Appellant challenges the voluntariness of his judicial confessions based on his negative answer to the judge’s query of whether he had “looked over the papers.”

When a defendant pleads guilty, article 1.15 of the Code of Criminal Procedure requires the State to “introduce evidence into the record showing the guilt of the defendant ... and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.” Tex.Code Crim. PROC. Ann. art. 1.15 (Vernon Supp.2000); Palacios v. State, 942 S.W.2d 748, 749 (Tex.App. — Houston [14 th Dist.] 1997, pet. ref'd). A judicial confession alone is sufficient to support a guilty plea. See Dinnery v. State, 592 S.W.2d 348, 853 (Tex.Crim.App.1980)(op. on reh’g). However, to constitute a judicial confession, the statement of the accused must have been voluntarily given before a magistrate, or court, in the due course of legal proceedings. See Franco v. State, 552 S.W.2d 142, 144 (Tex.Crim.App.1977); Rice v. State, 22 Tex.App. 654, 3 S.W. 791, 792 (1887).

The record reveals that, prior to entering his plea of guilty, appellant signed the following plea papers: Waivers of Constitutional Rights, Agreements to Stipulate, Judicial Confessions, and Written Plea Admonishments. The reporter’s record of the plea proceedings indicates that after explaining the range of punishment, the judge, referring to the plea papers, asked appellant, “Have you looked over these papers?” Appellant answered, “No.”

After appellant gave his negative answer, the judge made a substantial effort to ensure that the defendant understood the proceedings. The judge questioned appellant concerning the contents of the documents to determine whether he had signed the papers voluntarily. She inquired of appellant whether: (1) he wished to give up the right to a jury trial, (2) he understood his attorney’s explanation of the papers he signed, (3) he understood the English language, (4) he understood he was subject to the full range of punishment, (5) he understood that if given deferred adjudication, it could be revoked and he could be sentenced to as much as life in prison, (6) he understood that he was giving up the right to confront and cross-examine witnesses, (7) he understood his rights and wanted to give them up, (8) he was satisfied with his attorney’s representation, and (9) he realized the papers he signed would be used as evidence against him. To each of these inquiries appellant answered in the affirmative. Further, appellant indicated that no one had promised him anything in exchange for entering his plea.

Once the judge was satisfied that appellant had voluntarily signed the papers, she accepted his pleas of guilty. The Waivers of Constitutional Rights, Agreements to Stipulate, and Judicial Confessions were then offered and admitted into evidence. The judge found the evidence was sufficient to substantiate appellant’s guilt.

Appellant claims that while the trial judge specifically inquired about some of his rights, she made no specific inquiry about whether he understood that the plea papers contained a judicial confession or waived his right against self-incrimination. Therefore, appellant claims, because his judicial confession was not voluntary, it was inadmissible. To the contrary, the trial judge asked appellant if his attorney had explained the papers he had signed and if, by signing the papers, he understood his rights and wanted to give them up. Due process does not require a trial judge to enumerate, laundry-list style, every Constitutional right that a defendant possesses and demand that the defendant note for the record his separate waiver of each. See Lyles v. State, 745 S.W.2d 567, 568 (Tex.App. — Houston [1st Dist.] 1988, pet. refd).

We find that the judge’s inquiries and appehant’s affirmative answers indicate that appellant was made aware of the content and effect of the plea papers, including the judicial confessions, and that the documents were voluntarily executed. Therefore, we overrule appellant’s first point of error.

In his second point of error, appellant complains that the evidence is insufficient in the aggravated assault case to support his conviction. Appellant bases his complaint upon the omission of the element of “injury” from his judicial confession.

As noted above, the State is required to introduce evidence showing the defendant’s guilt. See Tex.Code Crim. Proc. Ann. art. 1.15 (Vernon Supp.2000). The evidence is sufficient under article 1.15 if it embraces every essential element of the offense charged and establishes the defendant’s guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App.1996). Thus, while a judicial confession alone is usually sufficient to satisfy the requirements of article 1.15, a judicial confession that omits an element of the offense is insufficient to support a guilty plea. See York v. State, 566 S.W.2d 936, 939 (Tex. Crim.App.1978); Massey v. State, 777 S.W.2d 739, 740 (Tex.App. — Beaumont 1989, no pet.). Causation of bodily injury to another is an essential element of assault. See Tex. Pen.Code Ann. § 22.01, 22.02 (Vernon 1994 & Supp.2000); Burkholder v. State, 660 S.W.2d 540, 541 (Tex. Crim.App.1983).

Appellant’s judicial confession for aggravated assault stated in pertinent part:

The charges against me allege that in Harris County, Texas, AVERY GUSTA-VTUS BREAUX, JR., hereafter styled the Defendant, on or about FEBRUARY 23,1998, did then and there unlawfully, intentionally, knowingly and recklessly, by driving a motor vehicle in the direction of JOHN UPTON, cause bodily [sic] to JOHN UPTON, hereafter called the Complainant, by striking the Complainant with a deadly weapon, namely, a motor vehicle, while the Complainant was lawfully discharging an official duty, knowing the Complainant was a public servant.
⅜ ⅜ ⅜ ⅝ ⅝
I understand the above allegations and I confess that they are true and that the acts alleged above were committed on February 23,1998.

(emphasis added).

Appellant’s judicial confession, the only evidence contained in the record to support his conviction, omitted an essential element of the offense of aggravated assault — injury. This case is remarkably similar to the facts in York. See York, 566 S.W.2d at 938-39. In York, part of the clause “without the effective consent of the owner” was omitted from the judicial confession. See id. The court found the evidence was insufficient to support the conviction because a necessary element of the offense of burglary of a habitation was not established by the confession and no other evidence was offered in support of the plea. See id. Here, there being no evidence of injury to the complainant, as necessitated by article 1.15 of the Code of Criminal Procedure and section 22.02 of the penal code, we find the evidence insufficient to support appellant’s conviction. Appellant’s second point of error is sustained.

The trial court’s judgment in trial cause number 784,223 (the aggravated robbery case) is affirmed; and the judgment in cause number 795,625 (the aggravated assault case) is reversed and remanded to the trial court.

      . These forms were signed in duplicate — one set for the aggravated assault, and the other for the aggravated robbery.

      . An exception to this rule provides that if the judicial confession contains a "catch-all” phrase that the defendant is guilty "as charged in the indictment,” the confession is sufficient evidence to support the conviction even where an element of the offense has been omitted. See Snyder v. State, 629 S.W.2d 930, 932 (Tex.Crim.App.1982). This exception seems also to apply to sworn oral statements made by the defendant during the course of the plea proceedings that the indictment is “true and correct.” See Dinnery, 592 S.W.2d at 353. Here, however, neither appellant’s written judicial confession, nor any oral statements made during the course of the plea proceedings contained such an admission.

      . Because appellant voluntarily entered a plea of guilty, the Double Jeopardy Clause of the Fifth amendment to the United States Constitution does not preclude a second trial. See Bender v. State, 758 S.W.2d 278, 280-81 (Tex. Crim.App.1988); Ex parte Martin, 747 S.W.2d 789, 792-93 (Tex.Crim.App.1988).


author: JOHN S. ANDERSON, Justice.

text:
    Susan ENCISO, individually and as next friend of Christina Sanchez and as representative of the Estate of William R. Sanchez, Jr., Appellant, v. Claude A. CHMIELEWSKI and Sandra S. Fairchild, individually and d/b/a The Limelight Club, Appellees.
    No. 14-99-00714-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 13, 2000.

      Scott R. Loynd, Baytown, Robert E. Hudson, Houston, for appellant.
    Charles S. Wuest, Houston, for appel-lees.
    Panel consists of Justices ANDERSON, FROST, and CANNON.
   OPINION

JOHN S. ANDERSON, Justice.

In this appeal, we address whether a wrongful death cause of action is barred by limitations for both a minor child and her mother. The mother, appellant Susan Enciso, appeals from the trial court’s grant of appellees’ motion for summary judgment. Appellees, Claude Chmielewski and Sandra Fairchild, sought summary judgment arguing the appellant’s individual wrongful death claim and the wrongful death claim brought on behalf of her minor daughter were barred by the statute of limitations. The trial court agreed and granted summary judgment for the appel-lees. We reverse in part and affirm in part and remand this case to the trial court for further proceedings.

I.

Summary Judgment

William R. Sanchez, the decedent whose death is the basis of the action below, died on February 22, 1996. The wrongful death action arising out of Sanchez’s death was filed on March 9,1998.

In their motion for summary judgment, appellees urged, as grounds for their motion, that appellant’s claims were barred by the two year statute of limitations applicable to wrongful death causes of action. See Tex. Civ. Prac. & Rem.Code Aun. § 16.003(b) (Vernon Supp.2000). Appellant responded by first conceding that Susan Enciso’s cause of action was time barred, but that the minor, Christina Sanchez’s cause of action was not barred because limitations were tolled until the child reached the age of eighteen.

Finally, appellees filed a reply to appellant’s response. In this reply, appellees noted that appellant’s original petition was styled to designate Susan Enciso as not only suing in her individual capacity and as next friend of Christina, but also as “Representative of the Estate of William Sanchez.” Appellees contended that because the estate had a representative, Civil Practice and Remedies Code section 71.004(c) abrogated the tolling provisions of Civil Practice and Remedies Code section 16.001.

Section 16.003(b) of the Texas Civil Practice and Remedies Code establishes the limitations period applicable to suits for wrongful death. Specifically, that statute provides, “[a] person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person.” Tex. Civ. PRac. & Rem.Code Ann. § 16.003(b) (Vernon Supp.2000).

Appellees contended in their reply to appellant’s response to the motion for summary judgment that because the minor’s claim was brought by the representative of the deceased’s estate, section 71.004(c) abrogated the application of the tolling provisions in section 16.001(b). However, appellees acknowledged at oral argument that the real basis of their summary judgment motion was that the two year limitations applicable to wrongful death claims barred both the parent and the minor’s causes of action. We disagree with both of appellees’ contentions.

II.

The Minor’s Claim

In her first two points of error, appellant contends the trial court erred in granting summary judgment for appellees because limitations for the minor’s claim was tolled by section 16.001(b), and no other statute in the Civil Practices and Remedies Code restricts that tolling period. Susan Enciso, the mother of Christina Sanchez, brought claims for wrongful death against the appellees, alleging they were responsible for the death of Sanchez’s father. The appellees sought summary judgment, correctly noting that these claims were subject to an absolute two year statute of limitation under section 16.003(b) of the Texas Civil Practice and Remedies Code. We agree with this assertion. See Hogan v. Hallman, 889 S.W.2d 332, 336 (Tex.App.—Houston [14th Dist.] 1994, writ denied) (concluding section 16.003(b) provides the limitations period for wrongful death actions). However, our agreement with this aspect of appellees’ argument is not the end of our analysis.

Section 16.001(b) of the Texas Civil Practice and Remedies Code states that “[i]f a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period.” Tex. Civ. PRAC. & Rem.Code Ann. § 16.001(b) (Vernon Supp.2000). The purpose of tolling provisions for minors is to protect persons who have no access to the courts, and to insure that their right to bring suit will not be precluded by the running of the statute of limitations prior to the removal of their disability. See Ruiz v. Conoco, Inc., 868 S.W.2d 752, 755 (Tex.1993); see also Bangert v. Baylor College of Medicine, 881 S.W.2d 564, 568 (Tex.App.—Houston [1st Dist.] 1994, writ denied).

The record demonstrates that at the time of her father’s death, Christina was three years old. Thus, on the accrual date of the cause of action, Christina was under a legal disability. Therefore, section 16.001(b) operates to toll the two year statute of limitations until Christina reaches the age of eighteen. See McDonald v. Procter & Gamble Co., Inc., 748 F.Supp. 473 (N.D.Tex.1990). Because section 16.001(b) tolled the limitations period, Christina’s cause of action is not time barred. See Cox v. McDonnell-Douglas Corp., 665 F.2d 566, 572 (5th Cir.1982) (noting the statutory precursor to 16.001(b) operated to toll the Texas wrongful death statute of limitations).

The concept that limitations on a minor’s wrongful death cause of action do not begin to run until the minor reaches the age of eighteen has been a part of Texas jurisprudence for more than sixty years. In Texas Utilities Co. v. West, the Amarillo court reviewed a claim, rejected by the trial court, that wrongful death claims brought on behalf of the decedent’s minor children more than two years after the date of death were barred by limitations. See Texas Utilities Co. v. West, 59 S.W.2d 459 (Tex.Civ.App.—Amarillo 1933, pet. refd). In that case, the deceased was killed on September 20, 1927. See id. at 460. Suit on behalf of the minor children of the deceased, and his wife and parents, was filed January 22, 1931. See id. The trial court sustained the defendant’s contention that the claims brought by the surviving wife and parents of the deceased were barred by limitations, but held that limitations did not defeat the rights of the minor plaintiffs. See id.

The Amarillo court observed that at the time the cause of action accrued to the minor plaintiffs, and at the time of trial, they were under the disability of minority and were not subject to the statutes of limitation. See id. The court, therefore, held the claims asserted by the minor children were correctly preserved by the trial court because their claims were not barred by limitations. See id. at 461. We agree with the Amarillo court’s opinion on this issue.

Here, because Christina was under a legal disability at the time the cause of action accrued, limitations on her claim are tolled during the time of her disability. See § 16.001(b). A minor may bring a wrongful death action even if the surviving parent’s action is time barred. See Cox, 665 F.2d at 572 (citing Texas Utilities, 59 S.W.2d 459). Accordingly, we sustain appellant’s first two points of error relating to Christina’s claim against appellees.

III.

The Mother’s Claim

In her third point of error, appellant attempts to bootstrap her claim to Christina’s by arguing that because the limitations period for Christina’s claim is tolled, logic dictates the limitations period for her mother’s claim should also be tolled. We may not consider this argument as a ground for reversal because it was not presented to the trial court. Texas Rule of Civil Procedure 166a(c) specifies that “[Tissues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Tex.R. Civ. P. 166a(c); see also City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979). Appellant’s response to the motion for summary judgment does not set out this contention; thus, we conclude it is presented for the first time on appeal. Therefore, we may not consider this argument as a ground for reversal. We overrule appellants’ third point of error.

Accordingly, we affirm the judgment of the trial court as to the mother’s claims, reverse the judgment of the trial court as to the minor’s claims, and remand the minor’s claims to the trial court for further proceedings consistent with this opinion.

      . The facts underlying the wrongful death claim are not relevant to this appeal because the points of error on appeal relate only to the application of the two year statute of limitations to the claims of the mother and the minor child. As noted above, plaintiffs’ original petition was filed more than two years after the date of death. See Tex. Civ. Prac. & Rem.Code Ann. § 16.003(b) (Vernon Supp. 2000).

      . Because section 71.004(c) makes no mention of a limitations period for bringing a wrongful death claim, it neither restricts nor expands the period that has already been held to apply to these actions. See Hogan, 889 S.W.2d at 336. Therefore, section 71.004(c) of the Texas Civil Practices and Remedies Code is irrelevant to our discussion of the limitations period for wrongful death claims.

      . Section 16.001(a)(1) provides that a person younger than eighteen years of age is under a legal disability. See Tex. Civ. Prac. & Rem.Code Ann. § 16.001(a)(1) (Vernon Supp.2000).