author: SHARON G. LEE, J„

text:
    John CARTER d/b/a Carter Real Estate v. Maria PATRICK.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Sept. 22, 2004 Session.
    Oct. 18, 2004.
    Permission to Appeal Denied by Supreme Court March 21, 2005.
    Francis Xavier Santore, for the Appellant, Maria Patrick.
    William S. Nunnally, for the Appellee, John Carter d/b/a Carter Real Estate.
   OPINION

SHARON G. LEE, J„

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J. and D. MICHAEL SWINEY, J„ joined.

This is a suit brought by a real estate broker against a client for a commission which he claimed she owed him under a listing agreement to sell real property belonging to her. Client alleged that, in order to induce her to enter into the listing agreement, the broker had promised to make mortgage payments due on her property, that broker subsequently discontinued making these payments and that, as a result, her property was placed at risk of foreclosure, and she was thereby compelled to sell the property at a price lower than the price set "forth in the listing agreement with broker. Client alleged that, in consequence of broker’s failure to continue making the mortgage payments he was in breach of contract and guilty of fraud. Client further alleged that broker breached their agreement by failing to properly maintain the property. The trial court held that the broker did not fail to meet his obligations under the parties’ agreement with respect to either the payment of the landowner’s mortgage or the maintenance of the subject property and was not in breach of their agreement or guilty of fraud. Accordingly, the trial court awarded broker a commission in the amount of $13,600.00, along with pre-judgment interest in the amount of $1,497.86. We affirm the judgment of the trial court and remand for collection of costs.

Plaintiff/Appellee, John Carter d/b/a Carter Real Estate, was, at all times relevant to the matters herein, engaged in the business of listing and selling real estate in Greene County, Tennessee. In November of 1998, Appellee auctioned property consisting of approximately 29 acres, improved with a house and miscellaneous farm structures, to Defendant/Appellant, Maria Patrick; Appellant’s daughter, Kelly Harris; and Ms. Harris’s husband, Christopher A. Harris. The purchase price of the property at the time of auction was $131,000.00. At the same time the property was purchased, Appellant, her daughter and son-in-law signed a deed of trust pursuant to which the property secured indebtedness to a mortgage company in the amount of $98,250.00.

At some time in the summer of 2000, Appellant, her daughter and son-in-law decided to sell the property and Kelly Harris contacted Gary Carter, an employee/agent of Appellee, and requested that Appellee list the property for sale. After an inspection of the property, Appellee offered to list it at a maximum price of $159,000.00. This offer was refused by Ms. Harris and the Appellee declined the listing. Thereafter, the property was listed with another local realty company at a price of $199,000.00. The property remained listed with this company until expiration of the listing agreement in October of 2001, whereupon Kelly Harris contacted Gary Carter and requested that he view the property once again and reconsider listing it. Mr. Carter again viewed the property; however, the parties could not agree to a listing price and, as before, Appellee declined the listing.

Later in October of 2001, Appellant contacted Gary Carter and advised him that there were no longer funds available to make the mortgage payments on the property and that it was at risk of foreclosure. Mr. Carter testifies that Appellant advised him that, in addition to the mortgage on the subject property, she was confronting other debts in Florida, where she then resided, and that her daughter, Kelly Harris, had taken financial advantage of her. Mr. Carter testifies that he felt sorry for Appellant and told her that “we would catch [the mortgage] payments up, keep [the property] out of foreclosure and try to get the property sold in a reasonable length of time.” Mr. Carter’s testimony further indicates that because of Appellant’s pressing financial problems there was a need to sell the property quickly. “I thought at [$159,000.00] we had a chance to get something — an offer close to that and maybe get it sold for her at a reasonable length of time; and if not, sell it at auction for her.”

Shortly after this meeting between Appellant and Mr. Carter, Kelly and Christopher Harris quitclaimed their interest in the property to Appellant, whereupon, she became the sole owner of the property.

Pursuant to the discussions between Appellant and Gary Carter described above, on November 6, 2001, Gary Carter prepared and forwarded to Appellant three documents — a cover letter, a listing contract and an addendum to the listing contract.

The cover letter is addressed to Appellant and provides as follows:

Dear Maria:
Enclosed is a listing contract for your property located at 2025 Marvin Road, along with a separate agreement authorizing Carter Real Estate to make payments on your behalf. Please sign all the documents in the designated areas and return them to me. As soon as I receive the signed papers, I will contact the mortgage company and make arrangements to keep the property out of foreclosure. Remember to contact the mortgage company and instruct them to give me any information that I may need concerning your mortgage.
Thank you for allowing me to represent you in this transaction, and we will do our best to get you top dollar for your property.
If you have any questions, please give me a call.
Sincerely,
Gary Carter

The listing contract sets forth a listing price of $159,000.00 and provides that Ap-pellee shall have the exclusive right to sell the property at issue. The contract further provides that Appellee shall receive a commission of ten per cent if the property is sold during the period of the contract which is described as commencing on November 7, 2001 and expiring on November 7,2002.

The addendum to the listing contract is brief and provides in full as follows:

November 6, 2001
To Whom It May Concern:
I, Maria F. Patrick, hereby authorize Carter Real Estate & Auction Company to make payments on my behalf, i.e. mortgage payments, property clean-up, repairs, and any necessary deed and title work required, and deduct the reimbursement for those expenses from the proceeds of the sale of my property located at 2025 Marvin Road, Bulls Gap, Tennessee.
I further agree that Carter Real Estate & Auction Company will be the exclusive agent for the sale of the above mentioned property until it is sold, either by privately negotiated sale, or as a last resort, at a public auction sale.
Carter Real Estate & Auction Company agrees to perform only the repair and clean-up it deems necessary to make the property presentable to sell and achieve the highest possible sales price at the least cost to the seller.
Maria F. Patrick Date Gary Carter Date

Both the listing contract and the addendum were subsequently signed by Appellant and by Gary Carter as Appellee’s agent. Appellant also put Appellee in contact -with her mortgage company, Litton Loan Servicing, and arranged for them to provide Appellee with any requested information regarding her mortgage.

Kelly Harris and her husband had resided on the property since the time of purchase and continued to reside there at the time of the above interchange between Mr. Carter and Appellant. By this time the relationship between the Harrises and Appellant was in a state of deterioration. By letter dated November 6, 2001, Appellant advised Kelly Harris that she understood that the Harrises intended to vacate the property within fifteen days and that they were not to remove anything from the house “such as fans or plumbing or anything that is screw[ed] down or nailed down.”

The Harrises subsequently moved out of the property after which Gary Carter further inspected the interior and exterior' of the residence. Evidence was presented that the appearance of the house’s interior “was really bad” — that there was a significant amount of garbage and trash in the house and that there were urine stains and animal fecal matter on the carpet. Gary Carter also testified that the exterior of the buildings and grounds had deteriorated considerably since 1998.

Appellee had the property cleaned so that it could be shown to prospective purchasers and, as of December 12, 2001, had made all mortgage payments then due on the property.

At some time in late January or early February of 2002, Appellant contacted Gary Carter and demanded that the listing price of the property be increased from $159,000.00 to $169,000.00. Gary Carter attests that, although he advised Appellant that he did not think there was a chance of selling the property at the increased price, Appellant was insistent and, therefore, he prepared a form which changed the listing price to $169,000.00 and mailed it to Appellant for her signature. However, Appellant never executed this form. At the same time that Appellant told Gary Carter that she wanted to increase the listing price of the property to $169,000.00, she also informed him that she would need to realize a net profit of $35,000.00 from the sale because that is the sum that she would require to pay off some debts in Florida.

Appellee asserts that Appellant’s artificial needs and goals bore no relation to the property’s value and that this indicated to him that Appellant was unlikely to reasonably entertain good purchase offers which might be forthcoming. Appellant states, that for this reason, he discontinued making mortgage payments although he continued to show and market the property. At trial Appellee testified as to his reaction to Appellant’s insistence that the listing price of the property be raised to $169,000.00 after Appellee had advanced $3,135.00 to bring the mortgage payments current and had incurred additional expenses in the amount of $1,708.51 for cleanup of the property and for preparation and recordation of the quitclaim deed from the Harrises:

A. My money’s been spent, the payments have been made, and we’re attempting to sell it. Then I’m informed by Gary [Carter] we can no longer sell it for 159, Maria has changed her mind and gone to 169, which threw up red flags.
Q. And why is that? Why did, in your opinion, that complicate matters?
A. I might have to keep it out of foreclosure forever. If we got a 1-69 offer, she might go to 1-79. And I couldn’t force her to sign a deed, so it was a—
Q. Significant change?
A. —that was an eyebrow-raiser. Yes, it was.
Q. Increased your risk significantly. Would you have accepted the listing had you known that she was going to insist on a 1-69 asking price?
A. No, I wouldn’t.
Q. So now you’re stuck. You’ve got a 159 agreement, you’ve spent money, wouldn’t have taken a 169 listing, and she calls and demands that it be increased to 169, and you’re trapped.
A. We’re trapped. That’s right.
Q. So as a result of that, did you just give up, or did you just go ahead and try to market in hopes you can — or to get it worked out.
A. Actually, we just about redoubled our efforts to get the farm sold. Because at that time, I saw what I thought was coming down the pike, and I wanted to get it up and over with and hunt a buyer and close it and get our commission, get her loan paid off and — because I knew my ground was shaky right there.

Around this period of time Appellee, through an affiliate seller, was negotiating with Jeff and Kristi Cattrell who were considering purchasing the property. Evidence shows that on April 12, 2002, the Cattrells offered to purchase the property for $145,000.00. This offer was rejected by Appellant who presented them with a counter offer of $165,000.00. The Cattrells then offered $152,000.00 which was also rejected by Appellant who presented a counter offer of $160,000. Finally, on May 7, 2002, the Cattrells offered $155,000.00; however, Appellant declined this offer, also.

After receiving the Cattrells’ offer of $155,000.00, Appellant contacted Litton Loan Servicing for information as to what her net profit would be in the event the property were sold, whereupon, she discovered that mortgage payments had been discontinued and foreclosure of the property was imminent.

In addition to the Cattrells, another couple, Greg and Sheila Harrison, also expressed an interest in purchasing the house during this period of time. It was the Harrisons’ intent to purchase Appellant’s property on a contingency basis whereby they would have Appellee list their own property for sale and use the proceeds from its sale to purchase Appellant’s property. However, upon inspection of the Harrisons’ property Appellee determined that its value was approximately the $110,000.00 which was owed upon it. Ap-pellee testified that, because this amount was significantly less than the $169,000.00 to $179,000.00 the Harrisons wanted for their property he declined the listing and concluded that the Harrisons’ proposal would not satisfy the need to sell Appellant’s property quickly. Thereafter, the Harrisons were contacted directly by Appellant who stated that she advised them “that because [Appellee] had failed to make the mortgage payments and keep the house out of foreclosure, she considered the contract breached, and void.” Discussions ensued between Appellant and the Harrisons regarding terms under which they might purchase the house; however, an agreement was never reached. When Appellee discovered that Appellant was attempting to negotiate a sale of the property without his involvement, he contacted the Harrisons and advised them that, because he had a listing contract with Appellant, any negotiations would have to be done through his company.

On May 24, 2002, notice was published that a foreclosure sale of Appellant’s property would be held on June 14, 2002. At Appellee’s instruction Gary Carter re-contacted the Cattrells who presented a purchase offer of $159,000.00 contingent upon a satisfactory walk-through inspection of the property. Appellant agreed to this offer and the foreclosure sale was postponed upon notification of the mortgage company. However, upon the walk-through inspection of the property it was discovered that door knobs, latches and bathroom cabinets were missing. Also missing were ceiling fans and tin from the roof of the horse stable which Appellant testified she had given Kelly Harris permission to remove. As a result of the walk-through inspection, the Cattrells withdrew their offer to purchase the property.

After the sale to the Cattrells fell through, the Defendant contracted with Massengill Auction Company to sell the property and on September 19, 2002, the property was sold at auction for $136,000.00.

On May 28, 2002, Appellee filed suit against Appellant in the Greene County Chancery Court alleging that Appellant had breached the parties’ agreement with respect to the sale of her property. By amended complaint filed on October 13, 2003, Appellee alleged, inter alia, that the Cattrells would have purchased Appellant’s property for the $159,000.00 sum set forth in the listing agreement but for the fact that items had been removed from the property by an agent of Appellant. Accordingly, the complaint requests that Ap-pellee be awarded a ten percent commission based upon the sales price of $159,000.00.

By agreed order entered December 9, 2002, $4,841.51 of the proceeds realized from the auction of the property were disbursed to Appellee as reimbursement of expense, including mortgage payments, which had been incurred by him relative to the property. The order further provided that $15,500.00 be placed in the Chancery Court registry account pending further orders of the Court. Remaining proceeds from the sale were used to pay the mortgage, a commission to Massengill Auction Company and other expenses of the sale.

Trial of Appellee’s suit for a commission was held on October 15, 2003, after which the Chancery Court rendered its memorandum opinion and final judgment in favor of Appellee and granting Appellee damages in the amount of $15,097.86 representing $13,600.00 compensatory damages for breach of contract reflecting a ten per cent commission based upon the $136,000.00 received at auction, along with pre-judgment interest in the amount of $1,497.86. Thereafter, Appellant timely filed the appeal now before us.

Appellant raises four issues for our review:

I. Whether Appellee violated his fiduciary duty to Appellant and is for that reason not entitled to a sales commission.

II. Whether the Chancery Court erred in finding that one year was an unreasonable time for Appellee to make Appellant’s mortgage payments on her property.

III. Whether Appellee breached the listing agreement with Appellant by failing to properly maintain the condition of Appellant’s property.

IV. Whether the Chancery Court erred in failing to find that Appellee engaged in fraudulent conduct.

Our standard of review in this non-jury case is de novo upon the record of the proceedings below and there is no presumption of correctness with respect to the Chancery Court’s conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996) and T.R.A.P. 13(d). A trial court’s factual findings are, however, presumed to be correct, and we must affirm such findings absent evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). In a non-jury case such as this one the question of witness credibility is exclusively for the trial judge trying the case and cannot be reviewed by the appellate court. Harwell v. Harwell, 612 S.W.2d 182, 184 (Tenn.Ct.App.1980).

The first issue we address is whether Appellee violated a fiduciary duty owed to Appellant.

Appellee does not deny that he was in a fiduciary relationship with Appellant, and Tennessee case law does provide that a real estate broker is a fiduciary. Alexander v. C.C. Powell Realty Co., Inc., 535 S.W.2d 154, 155 (Tenn.Ct.App.1975). The fiduciary relationship between an agent, such as Appellee, and his principal imposes “a duty to be careful, skillful, diligent and loyal in the performance of [the] principal’s business,” and a cause of action for damages arises when there is a breach of this duty. Thomson McKinnon Securities, Inc. v. Moore’s Farm Supply, Inc., 557 F.Supp. 1004, 1011 (W.D.Tenn.1983). A real estate broker owes undivided fidelity and faithfulness to his principal and may not prejudice the interests of his principal to favor himself or others. Reece v. Homestead Realty, Inc., 626 S.W.2d 711, 712 (Tenn.Ct.App.1981).

Appellant alleges that Appellee breached his fiduciary duty to her in this case when, after inducing her to execute the listing agreement by promising to keep her property out of foreclosure, he unilaterally discontinued making mortgage payments on the property without notice to her. Appellant argues that because the term of the listing agreement was one year Appellee was obligated to continue making mortgage payments on her property for that period of time. Appellant further contends that, after her property was placed in foreclosure as a result of Appel-lee’s actions, Appellee pressured her into taking less than $169,000.00 for the property. Our review of the record compels us to the conclusion that Appellant’s argument that Appellee breached his fiduciary duty on these grounds is without merit.

The listing agreement itself contains no reference to Appellant’s agreement to make mortgage payments on the subject property. While the addendum to the listing agreement authorizes the Appellee to make mortgage payments on behalf of Appellant, it does not indicate for what period of time these payments are to be made. The cover letter which accompanied these documents states that Appellant “will contact the mortgage company and make arrangements to keep the property out of foreclosure,” but contains nothing as to an agreement beyond those specifics. As previously noted, Appellee testified at trial that he advised Appellant that he “would catch [the mortgage] payments up, keep the property out of foreclosure and try to get the property sold in a reasonable period of time.” We find nothing in any of this evidence which suggests that Appellee agreed to make mortgage payments on the property for the one year duration of the listing agreement. Rather, our construction of the evidence is that Appellee agreed to make only those mortgage payments necessary to prevent foreclosure of the property. When Appellant approached Appellee in October of 2000, Appellant apparently no longer had the financial ability to pay the mortgage on her property. Appellee subsequently advanced over $3,000.00 of his own funds in satisfying mortgage debt on the property and prevented foreclosure. Thus, Appel-lee satisfied the full extent of his obligation to Appellant in this regard. We further note that, in fact, there was never a foreclosure of the property in this case. When foreclosure was again impending in May of 2002, Appellee again prevented its occurrence by producing the Cattrells as purchasers offering to purchase the property at its full listing price of $159,000.00. Although a sale to the Cattrells was not consummated, foreclosure was avoided and the property was ultimately auctioned by Massengill Auction Company. Appellant’s argument that she was pressured into accepting less than $169,000.00 for the property because Appellee discontinued making mortgage payments is without merit, not only for the reasons stated thus far, but also based upon evidence that Appellant initially agreed to the listing price of $159,000.00, and she subsequently declined to sign documentation prepared by Appellant at her instigation which would have increased the listing price to $169,000.00. Additionally, evidence is before us that during the course of negotiations with the Cattrells, and prior to her discovery that Appellee was no longer paying her mortgage, Appellant made a counteroffer of sale in the amount of $160,000.00 — an amount significantly less than the $169,000.00 Appellant implies she would have demanded but for the impending foreclosure and an amount which closely approximates the offer of $159,000.00.

The next issue presented by Appellant is whether the Chancery Court erred in finding that one year was an unreasonable amount of time for Appellee to make the mortgage payments on Appellant’s property when the only time restriction contemplated by the parties was one year.

As Appellee correctly points out in his brief, contrary to the assertion of Appellant, the Chancery Court did not make a finding that one year was an unreasonable amount of time for Appellee to make mortgage payments on behalf of Appellant. Based on the evidence presented by the parties, the Chancery Court found, as do we, that the listing agreement does not require that Appellee make mortgage payments for one year but only to the extent necessary to prevent foreclosure. As stated by the Court in its memorandum opinion, “The evidence preponderates in favor of a finding that during the one year term of the listing contract, Plaintiff tendered sufficient payments to prevent foreclosure, and no subsequent foreclosure occurred prior to the public auction conducted by Massengill Auction Company.” As we have noted, we are in agreement with this determination.

Although Appellant does not designate it as a separate issue in her brief, Appellant next argues that Appellee breached their agreement by not keeping the property properly cleaned and that, as a result, the Cattrells withdrew their offer to purchase the property for $159,000.00 and Appellant had to sell the property for $136,000.00. Appellant asserts that we “should remand this case to the trial court with directions to enter judgment against appellee and in favor of appellant in the sum of $23,000.00: the difference between the price that was not paid because of appellee’s indifference to its own property, less the amount actually received by appellant through the subsequent sale.” (Emphasis in original).

The following testimony of Gary Carter indicates the circumstances which led to the Cattrells’ decision to withdraw their purchase offer of $159,000.00:

A _ Mr. Cattrell went — we made the arrangements — I’m not sure how those arrangements were made — for him to do his walk-through inspection.
Q. And as a result of that walk-through inspection, were problems detected with respect to missing items that had been in the house before that?
A. Yes, there were several missing items.
Q. All right. Based on your — -what you had learned, that there were problems with missing items, did you go to the property to see what the problem was?
A. Yes, I did.
Q. And what did you personally observe to be missing?
A. Ceiling fans were gone; doorknobs and latches were gone; bathroom cabinets gone; the tin had been removed from the horse stable.
Q. After Mr. Cattrell withdrew on account of the fact that things were missing, were you asked by [the Defendant] to do anything more?
A. I don’t recall anything else. They offered to reduce the purchase price by $200.00 to make up for the items that were missing.
Q. And was that acceptable to the Cattrells?
A. No. By this point in time he was— totally disillusioned with the whole process.
Q. Anyway his motive was he had lost trust in the situation. That was the last straw, so to speak. He was out.
A. It failed the walk-through inspection and he ran.

Although it was never conclusively established who was responsible for the removal of some of the missing items, Appellant testified that she herself gave Kelly Harris permission to remove the ceiling fans and the tin from the horse stable. “... Take tin, take the ceiling fans. It’s going for foreclosure. They’re going to get what’s owed on the mortgage. I’m going to get nothing. What is the difference?” Furthermore, as the Chancery Court correctly notes in its memorandum opinion, by May of 2002, the lock box placed on the property residence by the Plaintiff had been removed, new locks were in place and other individuals were residing in the property with Appellant’s permission. The Court also correctly observes that the listing agreement provides that Appellee is absolved from liability for theft, vandalism or damage to the property during the term of the agreement. In light of all this and upon our review of the record as a whole, we are compelled to conclude that the evidence does not preponderate against the ruling of the Chancery Court that Appellee did not breach his agreement with Appellant with regard to proper maintenance of the property.

The final issue raised by Appellant is whether the Chancery Court erred in failing to find that Appellee committed fraud in his transactions with Appellant.

In Stacks v. Saunders, 812 S.W.2d 587, 592 (Tenn.Ct.App.1990), we set forth those elements necessary to maintain a cause of action for fraud:

The basic elements for a fraud action are: (1) an intentional misrepresentation with regard to a material fact, (2) knowledge of the representation falsity-that the representation was made “knowingly” or “without belief in its truth,” or “recklessly” without regard to its truth or falsity, (3) that the plaintiff reasonably relied on the misrepresentation and suffered damage, and (4) that the misrepresentation relates to an existing or past fact, or if the claim is based on promissory fraud, then the misrepresentation must “embody a promise of future action without the present intention to carry out the promise.” (Citations omitted)

Appellant, in apparent support of her contention that these elements exist in the present case, asserts that Appellee “procured [her] signature by his promise to make the mortgage payments and keep the house out of foreclosure,” that she “clearly relied upon appellee’s promise to make the mortgage payment” and “that appellee had no intention of meeting his contractual obligation to appellant to satisfy the mortgage payments for the duration of the contract.”

As we have heretofore indicated in this opinion, it is our conclusion that the evidence does not preponderate against the Chancery Court’s ruling that Appellee did satisfy his obligations under the agreement with Appellant as to mortgage payments and the prevention of foreclosure. Appellant’s contention that the Appellee misrepresented matters in that regard which she relied on to her detriment is without merit.

For the foregoing reasons we affirm the judgment of the Chancery Court and remand for collection of costs below. Costs of appeal are adjudged against Maria Patrick and her surety for which execution may issue, if necessary.


source: Caselaw Access Project

author: Justice MEDINA

license: Public Domain

text:
    In the Interest of J.L., a Child.
    No. 04-0307.
    Supreme Court of Texas.
    Argued Nov. 30, 2004.
    Decided April 8, 2005.
    Rehearing Denied June 17, 2005.

      John F. Healey Jr., Dist. Atty., David Christopher Newell, Catherine Lisa Fisher, Fort Bend County Asst. Dist. Attys., Richmond, Fred M. Felcman, Rosenberg, for the Texas Department of Protective and Regulatory Services.
    Samuel Leon Childs, Houston, for J.L.
    R.S. (Steve) Monks, Stephen A. Doggett, Richmond, for Betty Chavez.
    Teana Viltz Watson, Sugar Land, for Chris Edwards.
    Pat King, Richmond, pro se.
   Justice MEDINA

delivered the opinion of the Court.

In this termination-of-parental-rights case, we decide three issues: (1) whether the notice of appeal was timely filed within 20 days of the date of the modified final judgment; (2) whether the court of appeals erred in taking judicial notice of expert testimony that was not presented in the trial court; and (3) whether the evidence was legally sufficient to support the jury’s finding that parental rights should be terminated. We conclude, as did the court of appeals, that the appeal was perfected timely. We, however, also conclude that the court of appeals erred in its analysis of the legal sufficiency of the evidence supporting termination and should not have taken judicial notice of expert testimony. Accordingly, we reverse the judgment of the court of appeals but remand the case to that court for its review of the factual sufficiency of the evidence supporting termination.

I

This case concerns the parental rights of Bettina Lohner Chavez, who had two children out of wedlock with Chris Edwards: J.L., who was born in October 1995, and Hallie, who was born in September 1997. Bettina subsequently met Prank Chavez, whom she and her two children began living with in March 1998. In October 1999, Bettina gave birth to Frank’s child. Two months later Frank lost his job and became the primary caretaker for all three children. On April 15, 2000, Bettina and Frank were married.

On May 3, 2000, while Frank was taking care of the children, Hallie became ill with a fever and nausea, which caused her to vomit several times. That night, Bettina noticed Hallie was having trouble breathing and had turned blue. Bettina called 911, and Frank began to perform CPR on Hallie. CPR was continued unsuccessfully in the ambulance, and Hallie was pronounced dead at the hospital.

A couple of weeks later, Bettina and Frank were arrested in connection with Hallie’s death and criminal charges were filed. Dr. Patricia Moore, who performed Hallie’s autopsy, concluded that Hallie’s death was a homicide caused by blunt force trauma to the abdomen. The Texas Department of Protective and Regulatory Services (the Department) took possession of the children, placing J.L. with his biological father, Chris Edwards, and the infant with Frank’s sister.

The Department thereafter filed suit to terminate the parental rights of Frank and Bettina. The Department claimed their rights should be terminated because Frank had allegedly caused Hallie’s death and Bettina had knowingly endangered the children by leaving them in Frank’s care when she knew of the danger he posed. The criminal charges remained pending at the time of this trial but were subsequently dismissed. The parental termination charges, however, were tried to a jury which found that (1) the parent-child relationship between Bettina and J.L., should be terminated; (2) Chris Edwards should be appointed J.L.’s sole managing conservator; (3) Bettina and Frank’s parent-child relationship with the infant should not be terminated; and (4) Bettina and Frank should be appointed the infant’s sole managing conservators.

The trial court rendered judgment on the jury’s verdict, terminating Bettina’s parental rights to J.L. Bettina appealed. The Department chose not to appeal the jury’s failure to terminate Bettina and Frank’s parental rights to the infant.

The court of appeals, after taking judicial notice of the testimony of an expert witness in Frank’s criminal prosecution, concluded the evidence was legally insufficient to support the termination of Betti-na’s parental rights to J.L. 127 S.W.3d 911. The court accordingly reversed the trial court’s judgment and rendered judgment restoring Bettina’s rights. In reaching this judgment, the court of appeals also denied the Department’s motion to dismiss Bettina’s appeal as untimely, a jurisdictional issue again raised by the Department in this Court. We begin with that issue.

II

The Family Code provides that an appeal from a final judgment in a parental rights termination suit is. governed by the rules for accelerated appeals. Tex. Fam. Code § 263.405(a). These rules require that the notice of accelerated appeal be filed within 20 days after the final judgment is signed. Tex.R.App. P. 26.1(b). The Family Code further provides that the deadline for filing the notice of an accelerated appeal is not extended by the filing of post-trial motions. Tex Fam.Code § 263.405(c); In re K.A.F., 160 S.W.3d 923, 926 (Tex.2005).

Following the original final judgment in this case, Bettina did not file her notice of appeal within 20 days, although she did timely file a motion for new trial and also a motion to modify, correct, or reform that judgment. The trial court overruled the motion for new trial but granted the other motion, correcting and making a number of changes to its original judgment. Three days after the signing of the corrected judgment, Bettina filed her notice of accelerated appeal.

The Department contends that because Bettina failed to file her notice of appeal within 20 days of the original judgment, she did not perfect her appeal in a timely manner; thus, the court of appeals did not acquire jurisdiction. While the Department does not maintain that Bettina’s post-trial motions were untimely, it relies on the Family Code provision which states that such motions do “not extend the deadline for filing a notice of appeal.” Id. Moreover, the Department argues that even if a corrected judgment would otherwise have restarted the appellate timetable, it did not do so here because the court’s purpose was not to make corree^ tions but to give Bettina a second chance to file her notice of appeal.

In an ordinary appeal, a timely filed post-trial motion extends both the trial court’s period of plenary jurisdiction and the time for filing the notice of appeal. Tex.R. Crv. P. 329b(e); Tex.R.App. P. 26.1(a). The Family Code clearly anticipates the acceleration of this type of case by shortening the appellate deadlines and instructing the appellate court to render its decision “with the least possible delay.” Tex. Fam.Code § 263.405(a). It further provides that the filing of post-trial motions does not extend the time for filing a notice of appeal as might otherwise be the case. Id. § 263.405(c). The Family Code, however, does not purport to eliminate post-trial motions or otherwise constrict the trial court’s plenary power. Cf. Johnstone v. State, 22 S.W.3d 408, 410-11 (Tex.2000) (stating a formal motion for new trial was not a necessary predicate to challenge factual sufficiency of the evidence in an accelerated temporary mental commitment proceeding).

In this case, Bettina’s timely filed motion for new trial extended the trial court’s plenary power but did not extend the deadline for filing the notice of appeal. See In re K.A.F., 160 S.W.3d at 926. However, because the trial court actually modified and corrected its judgment while it retained plenary power jurisdiction to do so, the time for filing the notice of appeal must be calculated from the date of the new final judgment. The time for filing a notice of accelerated appeal is restarted not by the filing of the motion but by the act of the court. Thus, we conclude that the notice of appeal, filed three days after the signing of the corrected judgment, was timely. See Tex.R. Civ. P. 329b(h) (“If a judgment is modified, corrected, or reformed in any respect, the time for appeal shall run from the time the modified, corrected, or reformed judgment is signed....”).

The Department contends, however, that the corrected final judgment in this ease was simply a sham to extend the time for appeal. Relying on Mackie v. McKen zie and Anderson v. Casebolt, the Department argues that the appellate timetable should not restart when the record reveals that the trial court signed its new judgment “for the sole purpose of extending the appellate timetable.” Mackie v. McKenzie, 890 S.W.2d 807, 808 (Tex.1994) (discussing Anderson v. Casebolt, 493 S.W.2d 509, 510 (Tex.1973)). The Department submits that any change to the judgment was purely cosmetic and solely for the purpose of extending Bettina’s time for appeal.

In Anderson, the modified judgment was identical to the former judgment except for its date. 493 S.W.2d at 510. The trial court even stated that the modified judgment was issued because the “counsel for the plaintiff did not discover such entry [of the former judgment] until too late to file a motion for new trial....” Id. We held the appellate timetable did not restart because the record revealed that the modified judgment “could serve no purpose other than to enlarge the time for appeal.” Id. at 510-11.

The changes made to the judgment in this case are not so transparent. They include: revising the docket number to reflect a severance of the case as to J.L. from the case concerning the infant; correcting an attorney’s misspelled name; reflecting that the trial court, not just the jury, made the requisite findings for termination; deleting an erroneous reference to an inapplicable statute; and adding language regarding J.L.’s continued right to inherit from Bettina. In Check v. Mitchell, we held that “any change, whether or not material or substantial, made in a judgment while the trial court retains plenary power” will restart the appellate timetable from the date the modified judgment is signed. 758 S.W.2d 755, 756 (Tex.1988). The trial court’s changes to its judgment satisfy Check’s standard and thus created a new judgment from which to calculate the time for appeal.

Ill

Next, the Department argues that the court of appeals erred in taking judicial notice of the expert testimony of Dr. Harry Lee Wilson. Dr. Wilson was designated as an expert by the State in the criminal proceedings filed against Frank and Bettina. His testimony at a preliminary hearing in the criminal case appeared to contradict the autopsy performed by Dr. Moore. Dr. Wilson testified that Hallie had experienced trauma to her abdomen at least a week prior to her death, her rib fractures were likely caused by her accidental fall from a merry-go-round weeks earlier, and her areas of acute bleeding were caused by CPR. In contrast, Dr. Moore’s autopsy indicated that Hallie had died soon after experiencing blunt force trauma to her abdomen and that her rib fractures and areas of acute bleeding had been caused by abuse. Dr. Moore testified for the Department in this case. Dr. Wilson’s testimony in the criminal proceeding occurred nearly two years later, after this case was already pending in the court of appeals.

To bring this new evidence to the court of appeals’ attention, Bettina filed a motion to abate the appeal and to remand the case to the trial court for a new hearing. She argued that the State had changed its position on the cause of Hallie’s death by using Dr. Wilson instead of Dr. Moore. Rather than rule on Bettina’s motion, the court of appeals took judicial notice of Dr. Wilson’s testimony, including it as part of its analysis of the legal sufficiency of the evidence.

Bettina argues that the court of appeals correctly took judicial notice of Dr. Wilson’s testimony under Sparkman v. Maxwell, 519 S.W.2d 852, 855 (Tex.1975). In Sparkman, a party requested that we take judicial notice of the 1967 Texas Manual on Uniform Traffic Control Devices to resolve whether the court of appeals had erred in holding a traffic signal was legally installed. Id. Because the legality.of the traffic signal was not a controlling issue in the case,, we declined to take judicial notice of the 1967 manual. Id. Discussing appellate judicial notice, we stated:

[A]n appellate court is naturally reluctant to take judicial notice of matters such as municipal charters and regulations promulgated by state agencies when the trial court was not requested to do so and was not given an opportunity to examine the necessary source material. This does not mean that we would refuse to take judicial notice under similar circumstances where necessary to avoid an unjust judgment.

Id. (citations omitted) (emphasis added).

Even assuming that this statement from Sparks may be read to create the opportunity for judicial notice of new evidence to avoid an unjust judgment, it would not apply to the expert testimony at issue here. “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” Tex.R. Evid. 201(b). If a fact is generally known, then obviously no expert is needed. Moreover, expert testimony invariably concerns matters in dispute which are not capable of accurate resolution from, outside, unquestioned sources. Because Dr. Wilson’s testimony concerned disputed facts and opinions, it should not have been judicially noticed.

IV

Finally, we must consider the Department’s contention that the court of appeals erred in holding the evidence legally insufficient to support the termination of Bettina’s parental rights. The decision to terminate parental rights must be supported by clear and convincing evidence. In re J.F.C., 96 S.W.3d 256, 264 (Tex.2002). Under the clear and convincing standard, to be legally sufficient, the evidence must be such that “a ‘factfinder could reasonably form a firm belief or conviction about the truth” of the allegation. Id. at 266. Thus, there must not only be evidence to support the relevant finding but also that evidence must produce “a firm belief or conviction that the allegation is true.” S.W. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 621, 2004 WL 3019205, at *11 (Tex.2004).

To terminate parental rights, the trial court must make two findings. First, the parent must have committed one of the acts prohibited under section 161.001(1) of the Texas Family Code, and second, the termination of parental rights must be in the child’s best interest. Tex. Fam.Code § 161.001(l)-(2). Here, the trial court found that the Department had proven by clear and convincing evidence that Bettina had (1) knowingly placed or knowingly allowed J.L. to remain in conditions or surroundings which endangered his physical or emotional well-being; and (2) engaged in conduct or knowingly placed J.L. with persons who engaged in conduct that endangered J.L.’s physical or emotional well-being. Tex. Fam.Code § 161.001(1)(D), (E). The trial court also found that the termination of Bettina’s parental rights was in the best interest of J.L. Tex. Fam. Code § 161.001(2).

In In re J.F.C., we outlined the procedure for conducting a legal sufficiency review of parental-rights termination cases as follows:

In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the fact-finder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.
If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient. Rendition of judgment in favor of the parent would generally be required if there is legally insufficient evidence.

96 S.W.3d 256, 266 (Tex.2002) (citations omitted).

A

In our legal sufficiency review, we first consider the evidence supporting the jury’s finding that Bettina (1) knowingly placed or knowingly allowed J.L. to remain in conditions or surroundings which endangered his physical or emotional well-being; and (2) engaged in conduct or knowingly placed J.L. with persons who engaged in conduct that endangered J.L.’s physical or emotional well-being. Tex. Fam. Code § 161.001(1)(D), (E). In support of the jury verdict, the Department points to the following evidence:

• Bettina testified that Frank, her husband, would fly off the handle, lose his temper, and be too rough with Hallie and J.L., his stepchildren. She and Frank had arguments about how he disciplined Hallie and J.L.
• The Department presented evidence of two incidents involving Frank’s rough discipline of the children. In December 1998, Frank spanked J.L. with a belt to discipline him for hitting Hallie over the head with a plastic t-ball bat; the spanking left a red mark on J.L.’s hand. On April 24, 2000, Hallie urinated in her pants during a family trip to Walmart. An angry Frank lifted Hallie by one arm to put her into the car and used his foot to push Hallie into the house when the family arrived home. After the Wal-mart incident, Bettina argued with Frank about his treatment of Hallie and said she would get a babysitter if Frank could not handle keeping the kids. The argument lead to a physical confrontation with Bettina hitting Frank and ended with Frank pushing Bettina onto the bed. Despite the Walmart incident, Bettina continued to leave the children in Frank’s care. Frank was the primary caretaker of the children on the day Hallie died.
• The Department presented evidence that Bettina was neglectful in seeking health care for her child. In December 1998, Hallie was ill for five days before Bettina took her to the hospital, where she was diagnosed as having suffered a stroke. On May 3, 2000, aware that Hallie had vomited three times that day, Bettina considered taking her to a doctor but decided against it, “because CPS [was] going to hound” them. Leaving Hallie in Frank’s care, Bettina left the house with J.L. to visit a friend. While Bet-tina was gone, Hallie vomited a fourth time. When Bettina came home, she noticed that Hallie was not breathing normally and took Hallie to bed with her and Frank. Soon after, Bettina noticed Hallie had turned blue and stopped breathing. Bettina called 911, and Frank attempted CPR. Hallie was taken to the hospital in an ambulance and pronounced dead at midnight. The Department presented evidence that Hallie required a higher level of care than a normal child, based on her medical history, which included a diagnosis of asthma, a hospitalization in June 1998 for an E. coli bacterial infection, and a hospitalization in December 1998 for suffering a stroke and seizures. Despite Hallie’s medical history, Bettina failed to promptly seek medical care for Hallie’s illness on May 3, 2000.
• As evidence that Frank’s rough treatment caused Hallie’s death, the Department presented the expert testimony of Dr. Moore, the medical examiner who performed the autopsy on Hallie. Dr. Moore testified that Hallie’s death was a homicide and that she died of blunt force trauma to the abdomen shortly after suffering a blow that was equivalent to a fall from a ten-story building. Dr. Moore testified that the blunt force trauma causing Hallie’s death was not likely inflicted by CPR attempts to revive her, another child jumping on her, or her fall from a staircase or a merry-go-round accident that occurred a few weeks prior to her death.
• The guardian ad litem recommended Bettina’s parental rights to J.L. be terminated. His recommendation was based on Dr. Moore’s autopsy report concerning the cause of Hallie’s death and the fact that the Department had previously investigated Bettina and Frank in December 1998 concerning • Hallie’s stroke.

We must also consider the undisputed evidence that does not support the jury’s finding that Bettina endangered J.L. under sections 161.001(1)(D) and (E).

• In December 1998, the Department conducted two separate investigations of Bettina and Frank. One investigation concerned the bruise on J.L.’s hand from the spanking Frank gave him with a belt. The other investigation related to the stroke Hallie suffered. In both investigations, the Department determined there was no . abuse.
• The hospital evaluated Hallie for abuse when she was admitted in December 1998. The hospital records reflect that Hallie’s stroke and seizures were not caused by abuse.
• Dr. Moore testified that there were no bruises on Hallie’s abdomen despite the medical conclusion that Hallie died from blunt force trauma to the abdomen.
• Both Dr. Moore and Dr. Paul Radelat, Bettina’s expert, testified that Hallie’s symptoms would not necessarily have been such as to alert Bettina and Frank that Hallie needed emergency care.
• At the hospital after Hallie’s death, Chris Edwards, the biological father of Hallie and J.L., shook Frank’s hand and thanked him for taking care of his kids.

Viewing all of this evidence in the light most favorable to the jury’s verdict and recognizing that the jury is the sole arbiter when assessing the credibility and demeanor of witnesses, we conclude that a reasonable factfinder could form a firm belief or conviction that Bettina (1) knowingly placed or knowingly allowed J.L. to remain in conditions or surroundings which endangered his physical or emotional well-being; and (2) engaged in conduct or knowingly placed J.L. with persons who engaged in conduct that endangered J.L.’s physical or emotional well-being. Tex. Fam.Code § 161.001(1)(D), (E).

B

Next, we evaluate the evidence in support of the jury’s finding that the termination of Bettina’s parental rights was in J.L.’s best interest. Tex. Fam.Code § 161.001(2). The jury charge instructed that some factors to consider in determining the best interest of the child were: the desires of the child; the emotional and physical needs of the child now and in the future; the emotional and physical danger to the child now and in the future; the parenting ability of the individuals seeking custody; the programs available to assist those individuals to promote the best interest of the child; the plans for the child by those individuals or by the agency seeking custody; the stability of the home or proposed placement; the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and any excuse for the acts or omissions of the parent. As support for the jury’s finding concerning J.L.’s best interest, we consider all the evidence previously listed in support of the finding that Bettina endangered J.L. in the manner described by sections 161.001(1)(D) and (E). In addition, the following evidence also supports the jury’s finding that the termination was in J.L.’s best interest:

• The guardian ad litem testified that because Bettina was continuing to live with Frank, the man accused of killing Hallie, J.L. would be in a safer environment with Chris Edwards, his biological father.
• The Department case manager also testified that J.L. was in a safer environment by being placed with Chris, rather than Bettina.
• The Department presented evidence that Bettina had financial difficulties after Hallie’s death and had unstable living arrangements that caused her to move often.
• Chris lives with his grandmother, as he has done for most of his life. His family is close, and he has many relatives living nearby. Bettina’s psychologist testified that Bettina did not have much family support. Bettina was estranged from her father, had lost her mother to cancer, found no support from her drug-addicted brother, and had many other relatives living out of state.

We also consider the undisputed evidence that does not support the jury’s finding that the termination of Bettina’s parental rights was in the best interest of J.L.:

• After Hallie’s death, as recommended by the Department, Bettina completed a psychological evaluation, attended parenting classes, and went to therapy sessions with a psychologist. Chris did not attend the parenting classes recommended by the Department because he felt he did not need them.
• At the time of trial, Bettina was employed with a law firm and was attending school part-time, studying to become a paralegal. Prior to Hallie’s death, Bettina had worked at a grocery store for four-and-a-half years. Chris testified that he has had at least six different jobs between 1995-2001, was employed only about 50% of that time, and was unemployed at the time of trial. He loses his jobs when his sickle-cell disease makes him sick for three to four days at a time. He is typically sick from his sickle-cell disease about four to five times a year.
• Chris’ child support payments to Bet-tina for Hallie and J.L. were in arrears. He had missed at least six months of payments in 1999. He also is required to pay child support for two older daughters that he had with another woman.
• Chris testified that it was good for J.L.’s emotional well-being to be allowed to see his mother in the future. Whether Bettina has a legal right to visit J.L. or not, Chris testified that he would allow her visitation as long as Frank was not present.
• Chris’ testimony indicated that he, at age 27, has lived with his grandmother his entire life, except for the one year he lived with Bettina, during which time Chris was unemployed and Bettina paid the bills. Chris testified that he now contributes to at least half of his grandmother’s bills.
• Chris testified that, while in his custody, J.L.’s bedtime, at age 5, has been about 10:00 p.m. or 11:00 p.m. Since obtaining custody of J.L., Chris has been home most nights to tuck J.L. into bed unless he is out at dinner or a movie or something.
• Chris testified that in the past, he sold LSD. He was arrested and charged with delivery of a controlled substance, but the charges were later dropped.

In spite of this undisputed evidence, when considering all the evidence in the light most favorable to the verdict, a fact-finder could reasonably form a firm belief or conviction that the termination of Betti-na’s parental rights was in J.L.’s best interest. Therefore, the evidence, under a clear and convincing standard, is legally sufficient to support the jury’s findings that Bettina endangered J.L. under sections 161.001(1)(D),(E) and that the termination was in J.L.’s best interest.

¥ ⅜ ¡i* ⅞» ⅜: ⅜

For the foregoing reasons, we reverse the court of appeals’ judgment and remand the case to the court of appeals to consider Bettina’s complaints about the factual sufficiency of the evidence.


author: BRIAN QUINN, Justice. JAMES T. CAMPBELL, Justice,

text:
    Edward L. MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0305-CR.
    Court of Appeals of Texas, Amarillo.
    Dec. 3, 2004.

      Edward L. Martinez, Muleshoe, pro se.
    Ronald Delarose, Lubbock, for Appellant.
    Wade Jackson, Asst. Criminal District Atty., Lubbock, for Appellee.
    Before QUINN, REAVIS and CAMPBELL, JJ.
   ON ABATEMENT AND REMAND

BRIAN QUINN, Justice.

Edward L. Martinez, appellant, filed with this court various documents involving his appellate counsel and the appellate brief filed by him. In them, he contends that his counsel, Ronald Delarose, “plain out lie[d]” in and “omitted facts from” the brief as well as denied him effective assistance of counsel “on first appeal.” He also posits that his attorney failed to raise issues “that he should have brought up.” Along with these allegations appear requests that Delarose “withdraw or abate the appeal,” that Delarose amend the brief, that the clerk of this court send appellant a copy “of my transcripts,” and that Delarose be denied the authority to represent him on any petition for discretionary review which may need to be filed.

It is clear that one has the right to counsel on appeal, though he does not have the right to appointed counsel of his own choosing. Camacho v. State, 65 S.W.3d 107, 109 (Tex.App.-Amarillo 2000, no pet.). Similarly certain is that an appellant is not entitled to hybrid representation on appeal. Rudd v. State, 616 S.W.2d 623, 625 (Tex. Cr.App. [Panel Op.] 1981). He may have counsel represent him. And, while a panel of this court has held that an appellant has no right to represent himself on appeal, e.g., Felder v. State, No. 07-03-0260-CR (Tex.App.-Amarillo, October 17, 2003, no pet.) (not designated for publication), as have other intermediate appellate courts, e.g., Cormier v.State, 85 S.W.3d 496, 498 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (and the cases cited therein), the Texas Court of Criminal Appeals held in Webb v. State, 533 S.W.2d 780 (Tex.Crim.App.1976) that such a right exists. Thus, a question remains as to whether he has a right to represent himself.

Nonetheless, if problems with counsel arise it is encumbent upon the appellant to inform the court in a timely manner. Hubbard v. State, 739 S.W.2d 341, 344 (Tex.Crim.App.1987). In other words, he cannot use his desire for self-representation or any friction between himself and appointed counsel as a means of manipulating or obstruct the orderly procedure of the court or interfering with the fair administration of justice. Id.

Here, and like the situation in Hubbard, appellant informed us of his concerns with Delarose after the latter filed the appellant’s brief but before the State replied to it. So too were the concerns broached within six months from the date the appeal was perfected and before the appeal was ripe for submission and resolution. Given this, we cannot say that appellant acted untimely. Moreover, he asked not only that his counsel withdraw but also that he (appellant) be given a copy of the transcripts and that Delarose be precluded from representing him in any subsequent appeal. So too was it alleged that counsel failed to raise issues appellant thought appropriate and misrepresented matters in the brief. Though not clear and unequivocal, these allegations could be interpreted as effort by appellant to act pro se. Or, they could be viewed as indication that the attorney/client relationship has deteriorated to such a degree that Delarose can no longer effectively represent his client. See Neill v. State, No.04-03-0763-CR, 2004 Lexis 6015 (Tex.App.-San Antonio July 7, 2002, no pet.) (holding that if the appellant raised “seemingly substantial complaint about counsel” then the trial court should make a thorough inquiry into the reasons for the complaint but mere disagreements concerning strategy or personality conflicts do not warrant the removal of appointed counsel).

Consequently, we abate this appeal and remand the cause to the 137th District Court of Lubbock County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:

1. whether appellant desires to prosecute the appeal;
2. whether appellant asks to waive appointed counsel and represent himself pro se;
3. if appellant opts to represent himself, whether appellant’s decision is competently and intelligently made. See Hubbard v. State, 739 S.W.2d at 345 (holding that to competently and intelligently choose self-representation, the defendant should be made aware of the dangers and disadvantages of self-representation so that the record will illustrate that he knows what he is doing);
4. whether circumstances, if any, warrant the substitution of Delarose with another counsel, should appellant not care to represent himself; and
5. assuming appellant wishes to proceed pro se, whether allowing him to do so is in his best interests.

We further direct the trial court to issue findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court determine that appellant not only desires new counsel but also is entitled to same, then new counsel must be appointed by the trial court, and the latter shall include in its findings of fact the name, address, telephone and fax number, and state bar number of the new counsel appointed. Additionally, the trial court shall also cause to be developed 1) a supplemental clerk’s record containing the findings of fact and conclusions of law and 2) a reporter’s record transcribing the evidence and argument presented at the aforementioned hearing. The trial court shall cause the supplemental clerk’s record to be filed with the clerk of this court on or before January 7, 2005. Should additional time be needed to perform these tasks, the trial court may request same on or before January 5, 2005. Finally, the deadline of the State to file an appellee’s brief is stayed until further order of the court.

It is so ordered.

CAMPBELL, Justice, filed a concurring opinion.

JAMES T. CAMPBELL, Justice,

concurring.

I fully concur with the Court’s decision to abate the appeal and remand this case to the trial court for determination of the matters set out in the Court’s opinion. For the reasons discussed in opinions such as the First Court of Appeals’ order in Cormier v. State, 85 S.W.3d 496 (Tex.App.-Houston [1st Dist.] 2002, no pet.), however, I.continue to be of the opinion that a Texas criminal defendant does not have a right or entitlement to represent himself on appeal.

      . Various of the intermediate courts that have rejected Webb did so on the basis that the decision was founded upon the United States Supreme Court decision in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (dealing with the right to self-representation at trial, not appeal). And, because the United States Supreme Court later said in Martinez v. Court of Appeal, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) that the Sixth Amendment to the United States Constitution does not grant one the right to self-representation on appeal, then the reliance placed on Faretta by the court in Webb was misplaced. See, e.g. Cormier v.State, 85 S.W.3d 496, 498 n. 2 (Tex.App.Houston [1st Dist.] 2002, no pet.); accord, Glenn v. State, No. 03-03-00212-CR, 2003 WL 22409453, 2003 Lexis 7082 (Tex.App.-Austin Oct. 23, 2003, no pet.). Yet, the Supreme Court in Martinez took care to note that its decision did not preclude the differing states from recognizing such a right under their own laws. Martinez, 528 U.S. at 163, 120 S.Ct. at 692, 145 L.Ed.2d 597. Moreover, the Court of Criminal Appeals in Webb plainly held that "the right of an accused to reject the services of counsel and instead represent himself extends beyond trial into the appellate process.” Webb v. State, 533 S.W.2d 780, 784 (Tex.Crim.App.1976). And though it mentioned Faretta in arriving at its holding, it did not expressly state that either Faretta or the Sixth Amendment afforded an appellant the right to self-representation. Instead, the court said that "[i]t has long been held in this State [Texas] that a trial court may not force an accused to accept an attorney if he wishes to waive representation and defend himself” and supported the statement via precedent of the Court of Criminal Appeals issued long before Faretta. Webb v. State, 533 S.W.2d at 783-84. So too was it said that because one has a right to counsel at trial and on appeal (something no one disputes) "it would follow that the correlative right to reject the assistance of counsel would be equally applicable to both the trial and appeal of a criminal case.” Id. Given this, one can legitimately ask whether the court in Webb held as it did because of Faretta and a belief that the Sixth Amendment granted the right of self-representation on appeal or because the right to self-representation at that level arises from this state's own jurisprudence and the concept of correlative rights and simple logic. If it is the former, then Webb may well have been overruled by implication. If it is the latter, then it is still viable controlling precedent, even under Martinez. Finally, none of the cases rejecting Webb have addressed that. See e.g. Glenn v. State, supra; Cormier v. State, supra. Nor has the highest criminal court in Texas directed any intermediate court to ignore .the precedent of Webb.


author: BRIAN QUINN, Justice.

text:
    Edward L. MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0305-CR.
    Court of Appeals of Texas, Amarillo.
    May 4, 2005.

      Ronald Delarose, Lubbock, for Appellant.
    Wade Jackson, Asst. Criminal District Atty., Lubbock, for Appellee.
    Before QUINN, REAVIS, and CAMPBELL, JJ.
   BRIAN QUINN, Justice.

Edward L. Martinez appeals, via three issues, his conviction for burglarizing a habitation with intent to commit theft. We address only the third for it is disposi-tive. Therein, appellant contends that the trial court erred when it refused to provide the jury with an accomplice witness instruction. We sustain the issue and reverse the judgment.

Background

The home of A.L. Hawkins, which is located across the street from Monterey High School in Lubbock, was burglarized during the night of April 23, 2003. Hawkins operated an insurance business from the abode and often accepted cash payments from his customers. Appellant knew this since he was employed by a contractor who earlier remodeled portions of the house. At the time, appellant’s duties allowed him access to Hawkins’ office during business hours. This also afforded him opportunity to see Hawkins receive cash from his clients, according to one witness.

On the night of the burglary, several individuals broke into the home, ransacked it, and assaulted Hawkins with a knife. According to one of the burglars, the idea to enter this particular home was appellant’s. Prior to the trial of appellant, the burglars who participated in the trial had already admitted to or been convicted of the crime.

Issue 3 — Accomplice Witness Instruction

In his third issue, appellant attacks the trial court’s decision to exclude an accomplice witness instruction from the jury charge. We sustain the issue.

Authority holds that a conviction may not rest upon the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant to the offense. Tex. Code CRiM. PROC. -Ann. art. 38.14 (Vernon 1979). The other evidence contemplated need not directly link the accused to the crime or establish his guilt beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.1997). It need only tend to connect him to the offense. Id. at 613. In addition, the phrase “tending to connect” has been interpreted as “ ‘to serve, contribute or conduce in some degree or way ... to have a more or less direct bearing or effect,’ and while not contemplating conjecture, ‘has a tendency to prove the averments in the indictment.’ ” Holladay v. State, 709 S.W.2d 194, 198 (Tex.Crim.App.1986), quoting Boone v. State, 90 Tex.Crim. 374, 235 S.W. 580 (Tex.Crim.App.1922); In re C.M.G., 905 S.W.2d 56, 58 (Tex.App.-Austin 1995, no pet.). This standard does not present a high threshold but simply reflects a legislative determination that accomplice testimony should be viewed with some caution. In re C.M.G., 905 S.W.2d at 58. More importantly, each case must be decided upon its own facts and circumstances. Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988).

Next, an accomplice is someone who participated in the crime before, during, or after its commission. McFarland v. State, 928 S.W.2d 482, 514 (Tex.Crim.App.1996); In re A.D.L.C., 598 S.W.2d 383, 385 (Tex.App.-Amarillo 1980, no writ). Moreover, participation requires the performance of an affirmative act to promote its commission. McFarland v. State, 928 S.W.2d at 514.

The dispute at bar concerns whether two particular witnesses were accomplices. One was Margarita Estrada and the other, Michael Johnson. The former testified that she lived with James Fox, that Fox and appellant wanted to get some bolt cutters from her so they could do a “hustle,” and that she acquired the bolt cutters from her closet and gave them to appellant. This was done by her while knowing that the “hustle” “had to do with ... some type of burglary or something like that, ... a house or building....” From the act of providing an instrumentality for use in a crime while knowing that it was to be so used, one could reasonably infer that the individual aided in the commission of the crime while acting with the intent to promote or assist its commission. And, since that is the definition of a party, Tex. Penal Code Ann. § 7.01(c) (Vernon 2003), and because some evidence illustrates that Estrada so acted, we cannot but conclude she fell into the category of an accomplice to the burglary.

As for Johnson, he agreed to drive the group of individuals who committed the burglary to the area wherein Hawkins lived. Furthermore, not only did an officer testify (without objection) that one of the burglars informed him that Johnson was to receive a portion of the burglary proceeds, but Johnson also admitted that he was to receive money for gas in exchange for his services. So, at around midnight, he met two of the group at a local convenience store, drove them to a house, drove them back to the store and picked up the remainder of the group. At that time, he noticed that one of the individuals possessed a set of bolt cutters. Thereafter, he drove them to the designated location. While professing ignorance of their purpose, Johnson nevertheless responded, “oh, it occurred to me” when asked: “[s]o, you see four guys who need to go somewhere, at night ... one of them carrying ... bolt cutters, and with your criminal history it didn’t occur to you that you were driving them possibly to commit a burglary?” Given that he so responded, that he himself had participated in burglaries and, therefore, knew how they were committed, that it was late at night when he drove the group to the residential area wherein the burglary occurred, and that he was to receive either gas money or a part of the burglary proceeds in exchange for his help, a rational person could reasonably infer that he aided those who actually committed the burglary while intending to promote or assist in the commission of the offense. And, because one could so infer, it can be said that Johnson held'the status of a party to the crime and, therefore, was also an accomplice.

Having determined that both Estrada and Johnson were accomplices, we conclude that the trial court was obligated to instruct the jury about the prohibitions of art. 38.14 of the Texas Code of Criminal Procedure. Because it did not, it erred. Yet, that does not end our inquiry for we must also decide if the error was harmless. See Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App.2002) (applying a harm analysis to errors like that before us). It may fall within that realm if there exists non-accomplice testimony corroborating that of the accomplice and no rational and articulable basis exists for disregarding it or finding that it fails to connect the defendant to the offense. Id. at 633. Yet, the problem with finding the error harmless at bar concerns our inability to find of record any non-accomplice testimony either placing appellant at the burglary or communicating with the burglars about the burglary. That information came only from the accomplices and those who admitted to participating in the crime. Moreover, the evidence illustrating that appellant worked at Hawkins’ abode several months before the burglary and may have seen Hawkins and his clients exchange cash is of little weight. Indeed, we have held that one’s mere presence at the scene of a crime when it is committed or near the time of its commission does not alone tend to connect the individual to the crime. In re A.D.L.C., 598 S.W.2d at 385. If being present at or near the time it occurred is not enough by itself, then being there some four months before its occurrence can hardly suffice. Nor did the State direct us to any non-accomplice testimony tending to link appellant to the burglary. Given this, we cannot say that the error was harmless.

Accordingly, we reverse the judgment and remand the proceeding to the trial court.

      . His criminal record consisted of multiple convictions some of which involved theft and burglary.

      . We note that at least one of the burglars actually denied that appellant was involved.


author: Opinion by PAUL W. GREEN, Justice.

text:
    Raymond V. FELAN, Individually and as Next Friend to Ashleigh F. Felan, a minor child, Asia F. Felan, a minor child, and Jared M. Felan, a minor child, and as Administrator of the Estate of Josephine Garcia Felan, Appellants, v. HUMANA, INC., and Humana Health Plan of Texas, Inc., Appellees.
    No. 04-03-00929-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 29, 2004.
    Rehearing Overruled March 22, 2005.

      Ted H. Roberts, M’Liss Christian, Law Office of Ted H. Roberts, P.C., San Antonio, for appellants.
    W. Richard Wagner, Patterson <& Wagner, L.L.P., San Antonio, for appellees.
    Sitting: PAUL W. GREEN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by PAUL W. GREEN, Justice.

This is a limitations case involving the misidentification of defendants. The plaintiff mistakenly sued the wrong defendant because of a similarity of names. When the correct defendant was finally sued, the limitations period had expired. The question is whether the plaintiff is saved from a limitations defense because the correct defendant had timely notice of the suit. We hold that notice of the suit by the correct but untimely sued defendant results in equitable tolling of limitations. Accordingly, the summary judgment order is reversed and the matter is remanded to the trial court.

Factual and Procedural Background

Raymond V. Felan was an employee of Humana, Inc., a health care provider. He and his wife, Josephine, were insured by Humana Health Plan of Texas, Inc., a health insurance plan made available to Humana’s employees. Josephine became ill and her medical treatment was undertaken and paid for in accordance with the terms of the insurance plan. Ultimately, Josephine’s treatment was unsuccessful and she died on January 22, 1999. On July 10, 2000, Raymond, individually and on behalf of his minor children and his wife’s estate, sued Humana Health Care n/k/a National Association of Family and Friends (NAFF), claiming it was negligent in making health care decisions for Josephine that resulted in her death. NAFF answered the suit, denying it was a proper party or that it was liable in the capacity sued. In February 2002, NAFF filed a motion for summary judgment asserting it was not liable to Raymond because it had ceased to exist as an entity some five years before the alleged wrongful conduct. No summary judgment response was filed, but before the hearing on the motion, Raymond filed his Motion to Substitute True Name of Party which, for the first time, identified Humana, Inc. and Humana Health Plan of Texas, Inc. (Humana) as the correct defendants, and acknowledging that NAFF had been incorrectly sued. The summary judgment hearing was postponed and no ruling was made on Raymond’s motion to substitute parties. In the meantime, in July 2002, Raymond filed his First Amended Original Petition which formally named Humana as defendants and deleted NAFF as a named party, effectively non-suiting that entity. Raymond thereupon agreed to a take-nothing judgment in favor of NAFF.

A month later, Raymond sought a ruling on his motion to substitute parties, but because no service of citation had been completed on Humana, and because NAFF’s counsel claimed no authority to act on behalf of Humana, the trial court refused to rule. Humana was finally served with citation in February 2003 and the same counsel who had represented NAFF was hired to defend Humana. Because suit against Humana was commenced well past the applicable limitations period, Humana’s answer alleged a limitations defense, and a motion for summary judgment was filed on the ground that the suit was time barred. Raymond responded by claiming that Humana, even though not timely sued, had notice of the suit and was thus not misled, prejudiced or disadvantaged as a result of the mistake. On the date of the summary judgment hearing, Raymond asked for a continuance for the purpose of seeking more information to support his contention that Humana was not prejudiced as a result of the pleading error. The continuance motion was denied, and a take-nothing summary judgment was thereupon rendered in favor of Humana from which judgment Raymond now appeals.

Discussion

Raymond says the trial court erred in granting the summary judgment motion on limitations grounds because the correct defendant, although misnamed, was timely sued, and because he was entitled to equitable tolling of the limitations period.

Raymond first contends this is a misnomer case. A misnomer occurs where the correct entity has been sued but has merely been misnamed. See Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex.1990). In the case of misnomer, limitations is tolled and a subsequent amendment of the petition relates back to the filing date of the original petition. Id. But as Raymond admitted, he did not sue the correct entity. NAFF was unrelated to Humana, the true target of his suit. Accordingly, rather than misnomer, this is a case of misidentification. A misidentification occurs if there are two or more separate but unrelated entities that use a similar name and the plaintiff sues the wrong one. Id. When that occurs, limitations is not tolled unless “the correct entity had notice of the suit and was not misled or disadvantaged by the mistake.” Chilkewitz v. Hyson, 22 S.W.3d 825, 830 (Tex.1999).

Because Humana is a separate and unrelated entity from NAFF, limitations is not tolled, and summary judgment is proper, unless it is determined that Humana had notice of the suit during the limitations period and would not be misled or disadvantaged by the mistake of pleading. Id.

It appears to be undisputed that Huma-na had actual knowledge of the suit that was originally filed against NAFF. Walter E. Neely, a former principal of NAFF, submitted an affidavit in support of NAFF’s motion for summary judgment explaining why it was not liable to Raymond. In his affidavit, Neely said he had “been told and understand that the Plaintiffs in [the case] have filed suit against ‘Humana Health Care Association n/k/a National Association of Family and Friends? claiming that the Defendant was negligent in failing to exercise ordinary care decisions regarding the health care of Josephine Garcia Felan, and in failing to authorize and procure a referral to a tertiary care oncology center in March 1998.” Neely also happens to be the Vice-President and Associate General Counsel for Humana.

Neely’s position with Humana was enough to impute his knowledge of the suit to his employer. Humana would then have known, or should have known, that it would be the target if Raymond ever learned the correct facts, and it would appear that it had as much opportunity to prepare a defense as if it had been named the defendant in the original petition. See Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex.1975).

Contrary to Humana’s contention, the issue is not the diligence of the plaintiff in suing the correct defendant, but “whether the legitimate purpose of the limitations statute would be served by its application under circumstances where no party is misled or placed at a disadvantage by the error in pleading.” Enserch Corp., 794 S.W.2d at 5. After all, “[t]he primary purpose of a statute of limitations is to compel the exercise of a right within a reasonable time so that the opposite party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds.” Continental Southern Lines, Inc., 528 S.W.2d at 831. If Humana had actual knowledge of Raymond’s claims and a fair opportunity to defend itself, it does not serve the purpose of the statute of limitations to impose a strict time bar on Raymond’s suit merely because of a mistake in suing the wrong, but similarly named, entity. The issue is sustained.

Conclusion

When Humana acquired actual knowledge of the suit facts, it either knew or should have known that it was the intended target of Raymond’s claims. Accordingly, it would have had as much opportunity to prepare a defense then as if it had been named the original defendant. But whether or not Humana was misled or disadvantaged by the pleading error is a fact issue that is unresolved by this record. Accordingly, the summary judgment order is reversed and the matter is remanded to the trial court.

It is not necessary to address Raymond’s remaining issues.


author: ANNE GARDNER, Justice.

text:
    Ivan Antonio FONSECA, Appellant, v. The STATE of Texas, State.
    No. 2-04-021-CR.
    Court of Appeals of Texas, Fort Worth.
    Jan. 27, 2005.
    Opinion Denying Rehearing March 17, 2005.
    Rehearing Overruled April 14, 2005.

      Richard A. Henderson, Fort Worth, for Appellant.
    Tim Curry, Criminal District Attorney, Charles M. Mallín, Chief Appellate Division, and Debra Ann Windsor, Stan Hatch-er and C. Paige Simpson, Asst. District Attys. for Tarrant County, Fort Worth, for Appellee.
    Panel A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
   OPINION

ANNE GARDNER, Justice.

INTRODUCTION

Appellant was indicted for sexual assault of a child under seventeen. He entered an open plea of guilty and the trial court sentenced him to eighteen years’ confinement. In his sole issue Appellant complains the trial court erred by not appointing a certified court interpreter during the plea of guilty. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As the sufficiency of the evidence is not challenged, a brief recitation of the facts will suffice. On September 25, 2003, Appellant’s counsel filed a motion requesting a Spanish language interpreter for Appellant. A hearing was held that day, during which Appellant pleaded guilty. At the hearing, Appellant’s counsel was sworn in as Appellant’s interpreter. Appellant’s counsel reiterated that he had filed a motion for an interpreter because “although I interpret today I don’t want to interpret on sentencing day.” At the hearing, the trial court fully admonished Appellant before accepting his guilty plea.

The court reconvened on January 8, 2004 for a sentencing hearing. -At the sentencing hearing, the trial court noted that Appellant’s counsel had requested an interpreter and the court swore Francisco Hernandez, Jr. to serve as Appellant’s interpreter. During the sentencing hearing, the State did not call any witnesses. Appellant testified and admitted having sex with the complainant. He testified that the sexual intercourse was consensual and that he believed the complainant was eighteen or nineteen years’ old at the time of the offense. After hearing the evidence and arguments of counsel, the trial court sentenced Appellant to eighteen years’ confinement.

INTERPRETER

Appellant complains on appeal that the trial court erred by not appointing a certified interpreter during his guilty plea. Appellant contends that once he filed a motion for a Spanish language interpreter the trial court was required to appoint an independent, certified interpreter at the plea hearing and relies on the Texas Government Code and Code of Criminal Procedure as authority. The Government Code states that “[a] court shall appoint a certified court interpreter or a licensed court interpreter if a motion for the appointment of an interpreter is filed by a party or requested by a witness in a civil or criminal proceeding in the court.” Tex. Gov’t Code Ann. § 57.002(a) (Vernon Supp.2004-05). The Code of Criminal Procedure states that “[w]hen a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, it is determined that a person charged ... does not understand and speak the English language, an interpreter must be sworn to interpret for him.” Tex.Code Ceim. PROC. Ann. art. 38.30(a) (Vernon Supp.2004-05).

The Texas Court of Criminal Appeals recently held that the right to. an interpreter is a category two right. See Garcia v. State, 149 S.W.3d 135, 143 (Tex.Crim.App.2004) (agreeing with the holding of the Waco Court of Appeals in Guerrero v. State, 143 S.W.3d 283, 283 (Tex.App.-Waco 2004, no pet.)). Category two rights were defined by the court of criminal appeals as “rights of litigants which must be implemented by the system unless expressly waived.” Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997). Hence, the right to an interpreter can be waived. See Garcia, 149 S.W.3d at 143-44. In the present case, although Appellant filed a motion requesting an interpreter, his request was limited to the sentencing hearing. Moreover, Appellant’s counsel specifically stated at the guilty-plea hearing that “although I interpret today I don’t want to interpret on sentencing day.” Thus, it is apparent from the record that Appellant’s counsel expressly waived any request for another interpreter during his guilty plea. See Garcia, 149 S.W.3d at 144 (acknowledging that a litigant is never deemed to give up a waivable right unless “he says so plainly, freely, and intelligently, sometimes in writing and always on the record”). In the present case, Appellant’s counsel gave up his right to an independent interpreter plainly, freely, and intelligently on the record. Thus, Appellant has not preserved any complaint for our review. Tex.R.App. P. 33.1(a).

CONCLUSION

Having concluded that Appellant waived his right to an independent interpreter at his plea hearing we overrule Appellant’s sole issue. Thus, we affirm the trial court’s judgment.

OPINION ON REHEARING

On February 9, 2005, Appellant’s appellate counsel filed a motion for rehearing arguing that we erroneously stated in our opinion of January 27, 2005, that the motion requesting a Spanish language interpreter was waived. In this opinion on rehearing, we address appellate counsel’s argument; however, we do not change our original opinion. Accordingly, we deny the motion for rehearing.

As set out in our original opinion, we concluded that Appellant’s trial counsel waived his previous request for a “licensed” interpreter at his guilty-plea hearing with his statement that “although I interpret today I don’t want to interpret on sentencing day.” In his motion for rehearing, Appellant’s appellate counsel asserts, “There is no waiver in the record by the APPELLANT (emphasis added).” Based on this singular statement, we assume that Appellant’s appellate counsel is arguing that the Appellant, himself, was required to waive his right to a “licensed” interpreter at the plea hearing. We disagree.

The general rule is that whatever a person can do himself, mi juris, he can do by an attorney, [citation omitted] And this rule unquestionably applies in cases of attorneys appointed by the court to represent a party, as well as those cases where the party employs his attorney himself. Ordinarily the action of the attorney, as the representative of his client in the conduct of the cause, will, and should, be binding upon the client in all matters where by law the client is not specially required to act for himself.

Wray v. State, 89 Tex.Crim. 632, 636, 232 S.W. 808, 810 (1921); see also Tex. Employers Ins. Ass’n. v. Wermske, 162 Tex. 540, 543, 349 S.W.2d 90, 93 (1961) (noting the general rule is that the relationship of attorney and client is one of agency and under this rule, the omissions, as well as the commissions, of an attorney are to be regarded as the acts of the client whom he represents); Am. Home Assur. Co. v. Rodriguez, 749 S.W.2d 897, 899 (Tex.App.-San Antonio 1988, no writ) (stating that the attorney-client relationship is one of principal and agent, and the acts of one ordinarily binds the other); Portnow v. Berg, 593 S.W.2d 843, 845 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ) (same).

Additionally, for guidance we look to the right to a jury trial, which has also been classified as a category-two right. See Marin v. State, 851 S.W.2d 275, 278-79 (Tex.Crim.App.1993) (indicating that the right to a jury trial is a category-two right). In Martin v. State, the Amarillo Court of Appeals held that the defendant’s attorney’s waiver of a jury trial in municipal court was valid, even though the defendant was not personally asked if he joined in his attorney’s representation. No. 07-98-0134-CR, 1999 WL 7889,. at *3 (Tex.App.-Amarillo Jan.11, 1999, pet. ref'd) (not designated for publication). The court noted that “Code of Criminal Procedure art. 45.24, without more, simply provides that the accused may waive a trial by jury” and did not “require the municipal court to ask a defendant to personally verily that he joins in his attorney’s representation that he waives his right to a jury.” Id. Moreover, in its subsequent opinion overruling the defendant’s motion for rehearing, the Martin court stated

even though Article 45.24 provides that the “accused” may waive his right to a jury trial, it is commonly understood that attorneys are agents of their clients and any actions taken in court by attorneys are done so on behalf of their clients. Thus, when an accused’s attorney orally waives a jury trial in open court, under the general precepts of principal-agent relationships, it is the accused who is waiving, that right. In sum, appellant’s attorney legitimately waived trial by jury on behalf of appellant, and therefore, appellant’s point of error remains overruled.

Martin v. State, No. 07-98-0134-CR, 1999 WL 99087, at *2 (Tex.App.-Amarillo Feb.26, 1999, pet. ref'd) (op. on reh’g) (not designated for publication).

Accordingly, we do not find any reason, nor does Appellant’s appellate counsel argue, that the general rule that an attorney acts on behalf of his client and the acts of the attorney are attributed to the client should be abandoned in this instance. Therefore, we conclude that Appellant’s trial counsel’s waiver of his request for a “licensed” interpreter at the guilty plea hearing was effective as to Appellant. Thus, we deny the motion for rehearing.

      . Appellant argues that he was not appointed a "certified” interpreter as contemplated by the Texas Government Code. However, the code distinguishes between a "certified” and "licensed” court interpreter. See Tex. Gov’t Code Ann. § 57.002(a). The code defines “certified court interpreter” as one qualified under Article 38.31 of the Code of Criminal Procedure, section 21.003 of the Civil Practice and Remedies Code, or certified under Subchapter B by the Texas Commission for the Deaf and Hard of Hearing. See id. These sections all detail the qualifications for interpreters for the deaf, not language interpreters. A "licensed” interpreter is one licensed to interpret "for an individual who can hear but does not comprehend English or communicate in English.” Id. Thus, in essence, Appellant’s argument is more correctly defined as a complaint that he did not receive a “licensed” court interpreter, as he could hear, but had difficulty comprehending and communicating in English.

      . See Act of Jan. 1, 1966, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, 525 (former Tex.Code Crim. Proc. Ann. art. 45.24) ("The accused may waive a trial by jury; and in such case, the justice shall hear and determine the cause without a jury.”), amended and renumbered by Act of Sept. 1, 1999, 76th Leg., ch. 1545, § 23, 1999 Tex. Gen. Laws 5314, 5319 (current version at Tex.Code Crim. Proc. Ann. art. 45.025 (Vernon Supp.2004-05)) ("The accused may waive a trial by jury in writing. If the defendant waives a trial by jury, the justice or judge shall hear and determine the cause without a jury.”).