author: Justice WHITTINGTON.

text:
    Frank Maryan Brandstetter HUBICKI, Appellant, v. FESTINA, a Liechtenstein Foundation, Appellee.
    No. 05-04-00805-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 4, 2005.
    Rehearing Overruled March 21, 2005.

      Clifford A. Lawrence, Houston, John Howell House, Burt Barr & Associates, L.L.P., Dallas, for Appellant.
    Alan S. Loewinsohn, Carol E. Farquhar, Steven C. Wagner, Loewinsohn & Flegle, L.L.P., Dallas, for Appellee.
    Before Justices MORRIS, WHITTINGTON, and O’NEILL.
   OPINION

Opinion by

Justice WHITTINGTON.

Frank Maryan Brandstetter Hubicki appeals a default judgment entered in favor of Festina, a Liechtenstein Foundation. In three issues, Hubicki contends service of process was defective; the trial court should not have entered judgment for punitive damages; and there was no or insufficient evidence to support an award of damages. We affirm the judgment of the trial court.

Background

In its original petition, Festina alleged it loaned Hubicki a sum exceeding two million dollars. Hubicki allegedly promised the loan would be repaid from the proceeds of the sale of his home in Acapulco, Mexico and other assets of his estate upon his death. After Festina made the loan, Hubicki “refused to execute any of the documents necessary to carry out his promises” with respect to the loan. Festi-na sued Hubicki, asserting causes of action for breach of contract and fraud. Festina alleged Hubieki’s fraud was “intentional, willful and malicious,” and sought punitive damages in addition to actual damages of $2,030,000 and its attorneys’ fees. The petition alleged Hubicki’s “residence address” was in Dallas, but Hubicki “may be served” at an address in Acapulco. Festi-na unsuccessfully attempted to serve Hu-bicki by certified mail in Mexico.

Festina filed a motion for alternative service under rule 106(b) of the Texas Rules of Civil Procedure. Ih the motion, Festina argued its process server had been unsuccessful in its attempt to serve process on Hubicki by certified mail. Festina sought the court’s permission to serve Hu-bicki by regular first class mail. Accompanying its motion, Festina filed the affidavit of Steven W. Thomas. Thomas’s affidavit states he is authorized by written order of the court to serve process in cases filed in the district courts of Dallas County. Thomas further states Hubicki is currently in Mexico and can usually be found at a specific address in Acapulco. Thomas then explains he has attempted to serve the petition and citation on Hubicki by certified mail, return receipt requested, but Hubicki “has failed or refused to receive the certified mail,” and service in this manner has been unsuccessful. Thomas concludes Hubicki “would be reasonably likely to receive the process” if it were sent by regular mail “because it would be delivered to his address without the necessity of being signed for or retrieved.”

The trial judge granted Festina’s motion for alternative service, but required service to be attempted by certified mail, return receipt requested, as well as by first class mail. Thomas filed returns of service showing attempts by first class mail and by certified mail, return receipt requested. Hubicki did not file an answer, and Festina moved for a default judgment.

After a hearing in which Festina presented the testimony of one fact witness and Festina’s attorney, the trial court entered judgment of $2,302,000 as the principal amount of the loan and $4 million in punitive damages. The judgment also awarded Festina attorneys’ fees, costs of court, and pre- and post-judgment interest. Hubicki appeals.

STANDARD OF REVIEW

Hubicki brings a restricted appeal under rule 30, Texas Rules of Appellate Procedure. To obtain relief, Hubicki must demonstrate he filed notice of appeal within six months of the signed default judgment; he was a party to the litigation; he did not participate in the default hearing; he did not timely file postjudgment pleadings; and there was error on the face of the record. See Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997) (per curiam); Tex. Rs. App. P. 26.1(c) and 30. The only dispute is whether there was error on the face of the record.

In a restricted appeal, we are limited to considering only the face of the record, but our scope of review is otherwise the same as that in an ordinary appeal; that is, we review the entire case. See Norman Communications, 955 S.W.2d at 270. The face of the record, for purposes of restricted appeal review, consists of all the papers on file in the appeal, including the reporter’s record. See Norman Communications, 955 S.W.2d at 270. Thus, “[i]t necessarily follows that review of the entire case includes review of legal and factual insufficiency claims.” Norman Communications, 955 S.W.2d at 270.

When a specific attack is made upon the legal or factual sufficiency of the evidence to support the trial court’s determination of damages in a default judgment, the appellant is entitled to a review of the evidence produced. Dawson v. Briggs, 107 S.W.3d 739, 748 (Tex.App.-Fort Worth 2003, no pet.). In deciding a legal sufficiency challenge, we consider only the evidence and inferences which, when viewed in the light most favorable to the judgment, tend to support the judgment; we disregard all evidence to the contrary. Dawson, 107 S.W.3d at 748. In determining a factual sufficiency challenge, we consider all of the evidence to determine if the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the judgment should be set aside and a new trial ordered. Dawson, 107 S.W.3d at 748.

SERVICE OF PROCESS

In his first issue, Hubicki complains service of process was deficient. Hubicki makes several complaints about service, including (1) failure to use reasonable diligence to effectuate personal service; (2) service by a person not authorized to serve process; (3) seeking alternative service before properly attempting service; and (4) sending notice to Mexico that was not reasonably calculated to give Hubicki notice of the suit.

A default judgment will be set aside if the record does not affirmatively show strict compliance with the rules governing service of citation. Primate Constr. Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) (per curiam); Payless Cashways, Inc. v. Hill, 139 S.W.3d 793, 795-96 (Tex.App.-Dallas 2004, no pet.). There are no presumptions in favor of proper issuance, service, and return of citation. Primate Constr. Inc., 884 S.W.2d at 152; Payless Cashways, 139 S.W.3d at 795-96.

Under rule 106 of the Texas Rules of Civil Procedure, a citation is to be served “by any person authorized by Rule 103” by either delivering a copy of the citation to the defendant in person, or “mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.” See Tex.R. Civ. P. 106(a)(2). Any person “authorized by law or written order of the court who is not less than eighteen years of age” may serve process under rule 103. See Tex.R. Civ. P. 103. The record contains a copy of an order authorizing Steven W. Thomas to serve citations and other notices pursuant to rule 103. Under rule 106(b), upon motion supported by affidavit stating specific facts showing service has been attempted under either rule 106(a)(1) or (2) and has not been successful, the court may authorize service in another manner reasonably calculated to give defendant notice of the suit. See Tex.R. Civ. P. 106(b). Under rules 108 and 108a, service may be made outside the state or in a foreign country in the manner provided in rule 106. See Tex. Rs. Crv. P. 108 and 108a.

Festina complied with the requirements of rules 106, 108, and 108a in its attempted service on Hubicki. Although Hubicki contends service by certified mail by Thomas-, rather than delivery to the defendant in person, does not constitute reasonable diligence to obtain personal service, rule 106 expressly permits service by certified mail “by any person authorized by rule 103.” See Tex.R. Civ. P. 106(a). Hu-bicki argues- the court order authorizing Thomas to serve process does not permit Thomas to attempt service by certified mail, because it provides “EXCEPT IN SPECIFIC CASES where a court has entered a Rule 106 order, all process must be served only by STEVEN WALTER THOMAS. A/K/A STEVEN W. THOMAS handing it to the person named therein. It may not be handed to any other person, even if the named person is present.” Hu-bicki argues the order limits Thomas to serving process by personal delivery.

The order also includes, however, a specific finding that Thomas “is an individual who is authorized to serve citations and notices pursuant to Tex.R. Civ. P. 103,” and provides that Thomas is authorized by certain courts (including the trial court) “to serve citations, notices, subpoenas, and all writs which do not involve taking into possession any person, property or thing.” Although the order contains numerous restrictions on Thomas, including prohibiting him from serving certain writs and carrying a firearm, there is no provision prohibiting him from serving process by certified mail pursuant to rule 106. As required by rule 103, Thomas is a person authorized by written order of the court to serve citations and other notices. See Palomin v. Zarsky Lumber Co., 26 S.W.3d 690, 694-95 (Tex.App.-Corpus Christi 2000, pet. denied) (order appointing private process server should be construed in its entirety and read as a whole; although order authorized service of subpoena, it was also effective to authorize service of process because it provided service would be reasonably effective to give notice of suit). By the express provisions of rule 106, “any person authorized by Rule 103” may serve process either by personal delivery or by certified mail. See P & H Transp., Inc. v. Robinson, 930 S.W.2d 857, 859 (Tex.App.-Houston [1st Dist.] 1996, writ denied) (service by mail may be made not only by clerk but also by other persons authorized by rule 103).

In an affidavit, Thomas explained his unsuccessful attempt to serve Hubicki under rule 106(a)(2). He stated the address where Hubicki could usually be found, and stated Hubicki would be reasonably likely to receive the process if it was sent by first class mail. Festina was not required to attempt service both by delivery in person and by certified mail; “a party need only show that attempts have failed under either Rule 106(a)(1) or Rule 106(a)(2)” before moving for alternative service under rule 106(b). State Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298, 299 n.2 (Tex.1993). Festina complied with rule 106.

Hubicki further argues Festina violated rule 108a because service was not reasonably calculated to give Hubicki actual notice of the proceedings and because Festi-na did not attempt the other methods of service permitted by rule 108a. Rule 108a, however, expressly permits service “in the manner provided by Rule 106,” and does not require that each permissible method be attempted to effect service. See, e.g., Comm’n of Contracts v. Arriba Ltd., 882 S.W.2d 576, 584-85 (Tex.App.-Houston [1st Dist.] 1994, no writ) (even though rule 108a narrowly drawn, it employs permissive language; methods of service in rule 108a not exclusive). Festina offered evidence that first class mail would be more likely to give Hubicki actual notice of the suit. Hu-bicki does not cite authority explaining why service that complied with rules 106, 108, and 108a was not reasonably calculated to give him notice of the suit. We overrule Hubicki’s first issue.

Punitive Damages

In his second issue, Hubicki alleges error in the award of punitive damages. Hubicki argues there was no finding of fraud, malice, or gross negligence, and further argues Festina presented no evidence or insufficient evidence to support its recovery of punitive damages. Hubicki does not argue the punitive damages awarded were excessive; instead, he challenges Festina’s right to recover punitive damages at all.

Festina was required to present evidence on punitive damages. Although a default judgment has the effect of admitting all matters properly alleged, if damages are unliquidated or not proved by an instrument in writing, the prevailing party must present evidence on damages. See Tex.R. Civ. P. 243; Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 872 (Tex.App.-Houston [1st Dist.] 1995, no writ). Unliquidated claims include exemplary damages. See Herbert, 915 S.W.2d at 872. Festina presented evidence at the default judgment hearing.

To recover exemplary damages, Festina was required to prove by clear and convincing evidence that the harm it suffered resulted from fraud, malice, or gross negligence. Tex. Civ. Prac. & Rem.Code Ann. § 41.003(a) (Vernon Supp. 2004-05); see also Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 566 (Tex.App.-Austin 2004, no pet.) (exemplary damages proper in default judgment case if plaintiff showed by clear and convincing evidence that harm suffered was caused by defendant’s fraud or malice). In reviewing the evidence for legal sufficiency under the clear and convincing standard, we must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that its finding was true. Southwestern Bell Tel. Co. v. Garza, — S.W.3d -, -, No. 01-1142, 2004 WL 3019205 (Tex., December 31, 2004), slip op. at 31-32; see also Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 483 (Tex.App.-Fort Worth 2004, no pet.), citing In re J.F.C., 96 S.W.3d 256, 265 (Tex.2002). We must review all the evidence in the light most favorable to the finding and judgment. Garza, at -, slip op. at 31-32; Citizens Nat’l Bank, 142 S.W.3d at 483. We must also disregard all evidence a reasonable factfinder could have disbelieved, but we must consider undisputed evidence even if it does not support the finding. Garza, at -, slip op. at 31-32; Citizens Nat’l Bank, 142 S.W.3d at 483. In a factual sufficiency review, we must determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the allegations in the petition were proven. Citizens Nat’l Bank, 142 S.W.3d at 483.

Plaintiffs petition alleges causes of action for breach of contract and fraud. The fraud allegations are made “on information and belief,” and claim Hubicki made false representations to induce Fes-tina to make the loan. Festina alleges Hubicki “represented impliedly and/or expressly to Festina” he would “execute any and all documents necessary to make sure that the proceeds of the sale of the Acapulco House would be used to pay off the Loan.”

Tort damages are recoverable for a fraudulent inducement claim irrespective of whether the fraudulent representations are later subsumed in a contract or whether the plaintiff only suffers an economic loss relating to the subject matter of the contract. Yeldell v. Goren, 80 S.W.3d 634, 637 (Tex.App.-Dallas 2002, no pet.). A fraud cause of action requires “a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was relied upon, and which caused injury.” Yeldell, 80 S.W.3d at 637 (quoting Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex.1998), and Sears, Roebuck & Co. v. Meadows, 877 S.W.2d 281, 282 (Tex.1994)). A promise of future performance constitutes an actionable misrepresentation if the promise was made with no intention of performing it at the time it was made. See Yeldell, 80 S.W.3d at 637. Thus, Hubieki’s promises could constitute actionable misrepresentations for the purpose of Festina’s fraud claim if Festina offered evidence Hubicki made the representations with intent to deceive and with no intention of performing as represented. See Yeldell, 80 S.W.3d at 637. Evidence of the mere failure to perform a contract, however, is not evidence of fraud. See Yeldell, 80 S.W.3d at 637.

At the default hearing, Festina offered evidence, through the testimony of its representative Gordon Barton McLendon, Jr., that Hubicki promised Festina the house “would be put up as security for Festina’s loans” and he would execute the necessary documents to do so. McLendon also testified Festina relied on these promises in making the loans to Hubicki, and would not have made the loans if the promises had not been made. McLendon testified he had known Hubicki for over forty years. McLendon further testified, based on his longstanding relationship with Hubicki, his knowledge of Hubieki’s business practices, and statements made by Hubicki in refusing to execute the necessary documents, that he believed Hubicki never intended to execute the documents necessary to ensure payment of the loans.

While a party’s intent is determined at the time the party made the representation, it may be inferred from the party’s subsequent acts after the representation is made. See Yeldell, 80 S.W.3d at 637. Intent to defraud is not susceptible to direct proof; it invariably must be proven by circumstantial evidence. See Yeldell, 80 S.W.3d at 637. Slight circumstantial evidence of fraud, when considered with the breach of a promise to perform, is sufficient to support a finding of fraudulent intent. See Yeldell, 80 S.W.3d at 637. Here, Festina presented evidence Hubicki made a promise he did not perform. McLendon’s testimony about his long; experience with Hubicki, his knowledge of Hubicki’s business practices, and statements made by Hubicki constituted circumstantial evidence of Hubicki’s intent not to fulfill his promises. The trial judge could reasonably form a firm conviction or belief that Festina proved its allegations in the petition that Hubicki fraudulently induced Festina into making loans to him. See Garza, at -, slip op. at 31-32; Citizens Nat’l Bank, 142 S.W.3d at 483.

Hubicki also argues punitive damages were improper because there was no finding of fraud in the judgment. Citing McLendon v. McLendon, 862 S.W.2d 662, 671 (Tex.App.-Dallas 1993, writ denied), Hubicki argues there must be a finding of fraud, malice, or gross negligence in the judgment to support the award of punitive damages. McLendon, however, does not stand for the proposition that a default judgment must contain an express finding of fraud before punitive damages may be awarded. McLendon was an appeal after a jury trial. We observed, citing section 41.003 of the Texas Civil Practice and Remedies Code, “[t]he trial court may award exemplary damages only if the claimant proves that the personal injury, property damage, death, or other harm about which the claimant seeks recovery of exemplary damages results from: (1) fraud; (2) malice; or (3) gross negligence. The imposition of exemplary damages requires a finding of fraud, malice, or gross negligence.” McLendon, 862 S.W.2d at 671 (citations and footnotes omitted). We then went on to review the evidence supporting the jury’s finding. Here, the court heal'd evidence relating to Festina’s claim for exemplary damages, and noted in the judgment that Festina “presented competent evidence of damages and causation.” The pleadings, proof, and judgment were sufficient to support the trial court’s award of punitive damages. We overrule Hu-bicki’s second point of error.

Actual Damages

In his third issue, Hubicki contends the evidence was legally and factually insufficient to support the trial court’s award of actual damages. We disagree.

As with punitive damages, Festina had the burden to prove the amount of its actual damages that were unliquidated or were not proved by an instrument in writing. See Tex.R. Civ. P. 243. McLendon testified the loans were made in the amount of $2,302,000. Hubicki complains, however, that the record does not reflect McLendon was authorized to testify on behalf of Festina, how McLendon obtained his knowledge regarding the loans, “how he came to know the thought processes of the principals of plaintiff,” what representations were made, and on what representations Festina relied. As noted above, McLendon did testify regarding the representations made on which Festina relied. Further, McLendon testified he had personal knowledge of the loans made by Festina; the loans were were made in the amount of $2,302,000; the loans were not repaid and the documentation to ensure repayment after Hubicki’s death was not signed; and he was authorized to serve as agent for Festina. This testimony was sufficient to support the trial court’s award of actual damages in the amount of $2,302,000. See Dawson, 107 S.W.3d at 748. We overrule Hubicki’s third issue.

Because there is no error on the face of the record, we overrule Hubicki’s issues and affirm the judgment of the trial court.


source: Caselaw Access Project

author: STEVE McKEITHEN, Chief Justice.

license: Public Domain

text:
    Dawn Kay BEATY, Appellant, v. The STATE of Texas, Appellee.
    Nos. 09-04-111 CR, 09-04-118 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Feb. 9, 2005.
    Delivered Feb. 16, 2005.

      Tom Brown, Livingston, for appellant.
    John S. Holleman, Criminal Dist. Atty., Jonathan Petix, Asst. Criminal Dist. Atty., Livingston, for appellee.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

Appellant, Dawn Kay Beaty, was charged under two separate indictments with having obtained controlled substances by forgery, under the provisions of Tex. Health & Safety Code Ann. § 481.129(a)(5)(A) & (B) (Vernon 2003). Because one of the controlled substances was listed in Schedule II of the Controlled Substances Act, and the other controlled substance was listed in Schedule IV, appellant was facing punishment exposure for both a second degree felony and a third degree felony. See Tex. Health & Safety Code Ann. § 481.129(d)(1) & (2) (Vernon 2003); Tex. Health & Safety Code .Ann. § 481.032 (Vernon Supp.2005). A consolidated trial was conducted on both charges with the jury finding appellant guilty in each cause. As appellant elected for the trial court to assess punishment, a Pre-Sentence Investigation was ordered. Thereafter, the trial court assessed punishment in each cause at confinement in the Texas Department of Criminal Justice— Correctional Institutions Division for a term of ten years, but suspended imposition of the sentences and placed appellant on community supervision for a period of ten years. In each appeal, appellant raises the identical issue, complaining of legally insufficient evidence to sustain the convictions “in that there is no evidence that Appellant knew that the prescription form used to obtain the controlled substance was forged.” For the reasons stated below, we affirm the judgments in both causes.

The record indicates that appellant brought a written prescription into the Wal-Mart store pharmacy, located in Livingston, Texas, and later picked up the medications. The prescription indicated the prescribing doctor, Achi Chary, M.D., issued it on January 22, 2003, to a “Laura Green,” for “Lortab” and “Xanax.” However, Dr. Chary testified at trial that he did not write the prescription to “Laura Green,” and that he had never seen a “Laura Green.” Dr. Chary further testified that he had seen and prescribed similar medication to appellant on January 15, 2003. Dr. Chary also testified that a blank prescription pad was stolen from his office. Therefore, anyone could have forged the “Laura Green” prescription.

The jury also heard testimony from the Wal-Mart pharmacy manager, Jeffrey Plunket. Mr. Plunket identified a Wal-Mart pharmacy signature log indicating that on January 25, 2003, appellant signed her name and produced her driver’s license so that she could pick up the prescriptions for the fictitious “Laura Green.” Mr. Plunket further stated that a pharmacist at Wal-Mart noticed “some irregularities” on the “Laura Green” prescription and called Dr. Chary’s office to verify its validity. Dr. Chary’s office informed the pharmacist that Dr. Chary did not have a patient by the name of “Laura Green.” The record shows that Wal-Mart personnel filled the “Laura Green” prescriptions; appellant picked up the “Laura Green” prescriptions on January 25, 2003; and Wal-Mart personnel promptly called the police to report that the forged prescriptions for “Laura Green” had been picked up.

Sergeant Anthony Lowrie of the Polk County Sheriffs Office testified that he investigated the prescription forgery and subsequently conducted a videotaped interview with appellant. Without objection, the videotaped interview was played to the jury. During the interview, appellant initially lied to Sergeant Lowrie as to how she acquired the “Laura Green” prescription. Appellant first told Sergeant Lowrie that a woman she knew only as “Missy” asked appellant to fill the prescriptions because she (Missy) had no identification and “Laura Green” was not present. As appellant did have identification, she agreed to get the prescriptions filled. When Sergeant Lowrie questioned the truthfulness of appellant’s story, she changed the story and indicated that the prescriptions were actually for her friend, Jolynn Lawson. Appellant went on to describe her role in helping Jolynn Lawson acquire controlled substances such as hy-drocodone and alprazolam. Appellant essentially admitted to having acquired her prescription on January 15, 2003, from Dr. Chary under false pretenses, and then giving Jolynn Lawson all but one of the prescribed controlled substances. During this taped interview, Sergeant Lowrie had appellant provide a handwriting sample, which indicated to Lowrie that appellant was not the person who wrote the “Laura Green” prescriptions. Appellant denied knowing the “Laura Green” prescriptions were forgeries, and stated that had she known, she would not have provided her driver’s license to the Wal-Mart personnel when she picked up the controlled substances.

The State’s theory of the charges against appellant can be summed up by the following direct testimony of Sergeant Lowrie:

Q.[State] What role did Dawn Kay Beaty perform in this investigation?
A.[Lowrie] She filled a fraudulent prescription and dropped the pills off to somebody. And during the interview, she — she admitted that she did not know the person on the prescription, that she’s filled several of these prescriptions before, that she did not know any of the people on the prescriptions.
Q. And, in fact, did she state that, you know, she was filling these prescriptions for Jolynn Lawson?
A. Yes, she did.
Q. And that she didn’t know who Laura Green was?
A. She did not know who Laura Green was. She thought it was an aunt.
Q. And that she’s done this on many, many times in the past?
A. Yes, sir.
Q. Filled prescriptions for Jolynn Lawson for other people?
A. Yes, sir.
Q. Now, just speaking to you as a citizen, hypothetically if your best friend came up to you and gave you a prescription for someone that you didn’t know, would you go and fill that prescription?
A. No, I would not.
Q. Why wouldn’t you?
A. It just would seem suspicious to me.
Q. And did Dawn Kay Beaty also admit to going to the doctor and getting a script filled for herself on January 15th, 2003?
A. Well, she admitted she went and had a prescription filled and it was in her name. She did give those to the — to Ms. Lawson, also.
Q. And that’s what she told you, that she gave those in her name to Ms. Lawson?
A. Yes. They — Ms. Lawson had actually paid for the doctor visit for the pills.

Sergeant Lowrie further testified that he made telephone contact with Jolynn Lawson and she agreed to come to the Polk County Sheriffs Office to meet with him. Ms. Lawson advised Lowrie that “she had no idea what Ms. Beaty was talking about, that those are Ms. Beaty’s pills, and it went on from there.” At that point, Sergeant Lowrie felt he did not have enough evidence to file charges on Ms. Lawson.

Mental states are almost always inferred from acts and words. Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App.1998). “Mental culpability is of such a nature that it generally must be inferred from the circumstances under which a prohibited act or omission occurs.” Id. (quoting Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App.1991)). A defendant’s mental state is “concealed within his own mind and can only be determined from his words, acts, and conduct.” Id. (quoting Norwood v. State, 135 Tex.Crim. 406, 120 S.W.2d 806, 809 (1938)). The jury in the instant cases was instructed that a person acts “knowingly” or “with knowledge,” with respect to the nature of his conduct when he is aware of the nature of his conduct. See Tex. Pen.Code Ann. § 6.03(b) (Vernon 2003). Culpable mental state is most commonly grounded upon inferences to be drawn by the factfinder from the attendant circumstances. Lane v. State, 763 S.W.2d 785, 787 (Tex.Crim.App.1989). Thus, the jury may infer intent or knowledge from any facts in evidence that tend to prove the existence of such a culpable mental state. Hernandez, 819 S.W.2d at 810.

An essential element of the instant offenses is the knowing misrepresentation, fraud, forgery, deception, subterfuge, or knowing use of a fraudulent prescription form to possess or attempt to possess the controlled substances in question. As the culpable mental state for this offense is similar to that required for conviction under the forgery provisions of the Texas Penal Code, we look to such eases for guidance. See Tex. Pen.Code Ann. § 32.21(a)(1)(A) & (B), (b) (Vernon Supp. 2005). In Griffin v. State, 908 S.W.2d 624 (Tex.App.-Beaumont 1995, no pet.), we reversed the conviction and ordered acquittal of a defendant convicted of forgery, finding the evidence legally insufficient to prove he intended to “defraud or harm another” when he presented a forged check made payable to him. Id. at 626, 628. As we noted, in a forgery case, the culpable mental state requires proof of knowledge that the check is forged, and if the State proves that an actor has knowledge that a particular check is forged, proof of intent to defraud is inferred. Id. at 627 (citing Williams v. State, 688 S.W.2d 486, 488 (Tex.Crim.App.1985)).

In Griffin, after we reviewed the record evidence for “knowledge” of the forgery, we looked to other eases addressing the issue and noted that “[i]n each opinion sustaining a forgery conviction, there has been some additional evidence of ‘suspicious circumstances’ which show that the defendant knowingly and intentionally passed the forged check.” Griffin, 908 S.W.2d at 627 (quoting Spencer v. State, 700 S.W.2d 300, 302 (Tex.App.-Austin 1985, no pet.)). The first example of “suspicious circumstances” we listed was: “Where the defendant made an affirmative statement explaining possession of the check which proved false.” Griffin, 908 S.W.2d at 627 (citing, inter alia, Williams, 688 S.W.2d at 490). The record in the instant appeal reflects that appellant was a knowing and willing participant in a scheme to acquire controlled substances having “a high degree of abuse potential.” Whether the identical medications acquired on January 15, 2003, under false pretenses from Dr. Chary were turned over to Ms. Lawson or not, for whatever reason, appellant chose to implicate herself in her interview with Sergeant Lowrie in a scheme rooted in deceit and misrepresentation. More importantly, she began the interview with the false explanation as to how she acquired the forged “Laura Green” prescription and her role as merely doing a favor for “Missy.” When confronted by Sergeant Lowrie with this obvious lie, appellant provided the more incriminating version of the purported events surrounding the “Laura Green” prescription. Nevertheless, she insisted she had no knowledge of the fictitious nature of the prescription while acting as a willing participant in the continued fraudulent acquisition of addictive controlled substances.

Appellant frames her issue as one of legal insufficiency. When we review a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App.2004). In examining the record evidence in the light most favorable to the verdict, we disregard any evidence that does not support the verdict. See Clewis v. State, 922 S.W.2d 126, 132 n. 10 (Tex.Crim.App.1996). We consider all of the “light most favorable” evidence presented, whether properly or improperly admitted. See Miles v. State, 918 S.W.2d 511, 512 (Tex.Crim.App.1996). This standard leaves to the factfinder the responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. See Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App.2000). The factfinder is the sole judge of the credibility of the witnesses and the weight given their testimony. Tex.Code Crim. Proc. Ann. art. 88.04 (Vernon 1979). Thus, the factfinder is free to accept or reject any or all of a witness’s testimony. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). The jury in the instant appeal was presented with sufficient evidence to reasonably infer that appellant presented the “Laura Green” prescription to the Wal-Mart pharmacy with full knowledge that the prescription was not the act of Dr. Chary. We must disregard appellant’s protestations to the contrary under a legal sufficiency analysis. Issue one is overruled in both causes, and the judgments in both causes are affirmed.

AFFIRMED.

      . Simply entitled "Offense: Fraud,” section 481.129 provides, in pertinent part:
      (a) A person commits an offense if the person knowingly:
      (5) possesses, obtains, or attempts to possess or obtain a controlled substance ...
      (A) by misrepresentation, fraud, forgery, deception, or subterfuge; [or]
      (B) through use of a fraudulent prescription form; ...

      . In trial cause number 17,180, appellant fraudulently obtained the generic substitute of Xanax (Alprazolam), listed in Schedule IV of the Controlled Substances Act, and also fraudulently obtained the generic substitute of Lortab (Hydrocodone), listed in Schedule II. Also, revisions to section 481.032 took effect on January 1, 2003. As these revisions have no application to the controlled substances in the instant causes, we refer to the current version of section 481.032 to lessen confusion.

      . Although revisions to section 32.21 took effect on September 1, 2003, they have no impact on the section for purposes of our analysis. We therefore refer to the current version to lessen confusion.


author: Justice GARZA.

text:
    LOS FRESNOS CONSOLIDATED, INDEPENDENT SCHOOL DISTRICT, Appellant, v. Shelly R. SOUTHWORTH, Individually and as Next Friend of April Clark, a Minor, et al., Appellees.
    No. 13-03-729-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Feb. 17, 2005.

      Amanda Snowden, Kevin D. Jewell, Ma-genheim, Bateman & Helfand, William S. Helfand, Houston, for appellant.
    Randall P. Crane, Law Office of Randall P. Crane, San Benito, for appellees.
    Before Justices YÁÑEZ, CASTILLO and GARZA.
   OPINION

Opinion by

Justice GARZA.

Appellant, Los Fresnos Consolidated Independent School District (“the School District”), brings this interlocutory appeal of the trial court’s denial of its plea to the jurisdiction in a case arising from injuries sustained by April Clark and Veronica Contreras when a school bus driven by Raquel Fortuna, an employee of the School District, rolled off the road. The School District complains that the trial court erred in denying its plea to the jurisdiction because its immunity from suit as a governmental entity has not been waived. We conclude the School District is not immune and affirm the trial court’s order denying its plea to the jurisdiction.

INTRODUCTION

In this case, we are asked to determine the relationship between three provisions of the Texas Civil Practice and Remedies Code. In four issues, the School District claims that it has not waived immunity under the Texas Tort Claims Act (“TTCA”) because (1) appellees failed to plead facts sufficient to trigger the School District’s waiver of immunity under section 101.021; (2) the School District is entitled to rely on the official-immunity defense available to Fortuna; (8) the School District’s liability cannot exceed that of Fortu-na as set by section 108.002; and (4) the School District’s limitation of liability applies regardless of whether Fortuna is a party to the suit.

BACKGROUND

On August 27, 2001, April Clark and Veronica Contreras were riding as passengers in a school bus owned by the School District. According to appellees’ petition, the school bus was traveling east on FM 510 when it veered off the road and rolled onto its right side in a plowed field. Ap-pellees contend that at the time of the accident, the bus was being driven by Raquel Fortuna in the course and scope of her employment with the School District. Appellees allege Fortuna was negligent in the manner in which she operated the school bus and negligent per se in violating various provisions of the Texas Transportation Code. Appellees sued Fortuna and the School District seeking damages for the alleged physical injuries sustained by Clark and Contreras, as well as medical expenses incurred by Shelly Southworth and Isabel Gutierrez.

Fortuna was covered by liability or errors and omissions insurance provided by the School District. The insurance carrier resolved nearly all the claims against For-tuna asserted by other claimants involved in the accident; however, it did not settle the claims of appellees. As of November 2003, the insurer had paid various claimants, collectively, an amount in excess of $100,000 for damages allegedly caused by Fortuna’s conduct.

The School District filed a plea to the jurisdiction arguing it was immune from appellees’ claims because Fortuna enjoyed immunity for any amount in excess of the statutory cap of $100,000 set by Section 108.002 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem.Code Ann. § 108.002 (Vernon Supp.2004-05). Appellees responded to the School District’s jurisdictional plea and simultaneously moved to non-suit Fortuna. The trial court granted the non-suit and denied the plea to the jurisdiction. Appellant then filed an interlocutory appeal with this Court. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004-05).

JURISDICTION

We have jurisdiction to hear an interlocutory appeal of an order granting or denying a plea to the jurisdiction by a governmental unit. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004-05). It is undisputed that the School District is such a governmental unit. See Tex. Crv. Prac. & Rem.Code Ann. § 101.001(3)(B) (Vernon Supp.2004-05). Accordingly, we conclude that we have jurisdiction to consider the issues raised on appeal by the School District.

STANDARD OF REVIEW

We review a trial court’s ruling on a plea to the jurisdiction under a de novo standard of review. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). The plaintiff bears the burden of alleging facts affirmatively demonstrating the trial court’s jurisdiction to hear a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex.App.-Corpus Christi 2001, no pet.).

PLEA TO THE JURISDICTION

1. Sufficiency of the pleadings

A plea to the jurisdiction asserts that the factual allegations in the plaintiffs pleadings, even when taken as true, fail to invoke the court’s jurisdiction. Mission Consol. Ind. Sch. Dist., 39 S.W.3d 674, 676 (Tex.App.-Corpus Christi 2001, no pet.). A trial court must construe the plaintiffs pleadings liberally in favor of jurisdiction. Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989). Nevertheless, the plaintiff ultimately bears the burden of alleging sufficient facts to demonstrate that the trial court does indeed have jurisdiction to hear a case. See Tex. Ass’n of Bus., 852 S.W.2d at 446. A party may submit a plea to the jurisdiction in order to assert that it enjoys sovereign immunity from suit and therefore is not properly within the subject matter jurisdiction of the trial court. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999) (per curiam).

In its plea, the School District alleged that the case was not within the trial court’s jurisdiction because plaintiffs failed to plead facts sufficient to invoke waiver of the School District’s sovereign immunity under Section 101.021(1) of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1) (Vernon 1997). Citing Texas Ass’n of Bus., 852 S.W.2d at 446, the School District contends that “it is a plaintiffs burden to affirmatively demonstrate lack of immunity and, therefore, jurisdiction over the plaintiffs claims.” The School District also argues that “when a sovereign is made a party to a suit, without legislative consent, the result is clear: its plea to the jurisdiction should be granted.” See State v. Lain, 162 Tex. 549, 849 S.W.2d 579, 582 (1961).

Texas courts have long recognized that sovereign immunity protects the State of Texas, its agencies, and its officials from lawsuits for damages absent a legislative consent to sue. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997); Mount Pleasant Indep. Sch. Dist. v. Lindburg, 766 S.W.2d 208, 211 (Tex.1989). Legislative consent to sue must be by clear and unambiguous language, in either a statute or by other express legislative permission. See Jones, 8 S.W.3d at 638; Fed. Sign, 951 S.W.2d at 405.

Mere reference to the TTCA does not establish consent to be sued and is therefore insufficient to confer jurisdiction on the trial court. Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001). The TTCA provides a limited waiver of sovereign immunity, allowing suits to be brought against governmental units only in certain narrowly defined circumstances. Id. Therefore, we must look to the terms of the TTCA to determine the scope of its waiver. Id. Then, we must consider the particular facts of the case before us to determine whether it comes within that scope. Id. Section 101.021 of the Texas Civil Practice and Remedies Code identifies three different circumstances in which the sovereign’s immunity will be waived. Tex. Civ. Prac. & Rem.Code Ann. § 101.021. Subsection (1) of section 101.021, which is the applicable provision in this case, provides:

A governmental unit is liable for: property damage, personal injury, and death proximately caused by the wrongftd act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arose from the operation or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law.

Id.

In a case brought under the TTCA, we must examine the plaintiffs pleadings to decide whether sovereign immunity has been waived. Miller, 51 S.W.3d at 587 (citing Jones, 8 S.W.3d at 639). To determine whether the plaintiff has affirmatively demonstrated the court’s jurisdiction to hear the case, “we consider the facts alleged by the plaintiff, and to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties.” Id; Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001); Tex. Ass’n of Bus., 852 S.W.2d at 446.

Appellees pleaded and proffered evidence that (1) the School District is a governmental unit as described in Texas Civil Practice and Remedies Code Section 101.001(3); (2) Fortuna was acting in the course and scope of her employment with the School District at the time of the accident; (3) the personal injuries sustained by appellees arose from Fortuna’s operation or use of a motor-driven vehicle, namely, the school bus owned by the School District; (4) the resulting injuries were proximately caused by the negligence of Fortuna; and (5) Fortuna could be personally liable to appellees according to Texas law. We conclude that appellees pleaded facts sufficient to invoke the TTCA waiver of the School District’s immunity under section 101.021. Tex. Civ. Prac. & Rem.Code Ann. § 101.021. Appellant’s first issue is overruled.

2. Official Immunity

In its second issue, the School District claims that it is entitled to rely on Fortuna’s official immunity defense because the basis of its liability is respondeat superior. The School District relies on the Texas Supreme Court’s interpretation of the TTCA: “In Texas, a governmental entity’s limited liability is derivative of the employee’s official immunity.” K.D.F. v. Rex, 878 S.W.2d 589, 596-97 (Tex.1994). The School District argues that if Fortuna is protected from liability by official immunity, then she is not personally liable to appellees, and therefore, the School District retains its sovereign immunity under section 101.021(1). Tex. Civ. Prac. & Rem. Code Ann. § 101.021; see Rex, 878 S.W.2d at 596-97.

Under Texas Civil Practice and Remedies Code Section 101.021(1)(B), a governmental entity may be liable for the torts of its employee arising from the operation or use of motor-driven vehicles or equipment if, among other things, “the employee would be personally liable to the claimant under Texas law.” Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1)(B). If the employee is protected from liability by official immunity, the employee is not personally liable to the claimant and the government retains its sovereign immunity. DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex.1995) (citing Rex, 878 S.W.2d at 597; City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.1993) (per curiam)).

Official immunity is an affirmative defense that protects governmental employees from personal liability. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex.1994); Perry v. Tex. A & I Univ., 737 S.W.2d 106, 110 (Tex.App.-Corpus Christi 1987, writ refd n.r.e.). The burden is on the defendant to establish all elements of the defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994) (citing Montgomery v. Kennedy, 669 S.W.2d 309, 310-311 (Tex.1984)). Governmental employees are entitled to official immunity from suit arising from their (1) performance of a discretionary function (2) in good faith (3) within the scope of the employee’s authority. Id.

In determining whether an employee is entitled to the official-immunity defense, we must clarify any disputed facts material to its elements. See Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex.2002). In the present case, it is undisputed that Fortuna was a governmental employee acting within the scope of her authority. However, the School District did not address whether Fortuna was performing a discretionary function, nor did the School District provide evidence that Fortuna’s acts were performed in good faith. The first element is important because official immunity protects “discretionary” acts performed by a state employee but does not protect ministerial functions performed by an employee. Kassen, 887 S.W.2d at 9. Thus, if the position held by the public servant is classified as a mere ministerial post, he is liable for his tortious conduct to the same extent as a person who holds no government position. Garza v. Salvatierra, 846 S.W.2d 17, 22 (Tex.App.-San Antonio 1992, writ dism’d w.o.j.) (citing Baker v. Story, 621 S.W.2d 639, 645 (Tex.Civ.App.-San Antonio 1981, writ ref'd n.r.e.)). In determining whether the School District can rely on Fortuna’s official immunity in order to retain its sovereign immunity, we must decide whether Fortuna’s acts were discretionary or ministerial.

A function is ministerial if the law prescribes and defines the duties to be performed with such precision and certainty that nothing is left to the discretion of the actor. Chambers, 883 S.W.2d at 654. In contrast, actions requiring personal deliberation, decision, and judgment are discretionary. Kassen, 887 S.W.2d at 9. The test to determine whether a governmental employee’s act is discretionary focuses on whether the employee is performing a discretionary function, not whether the employee has discretion to do an allegedly wrongful act when discharging that function. Chambers, 883 S.W.2d at 653.

The act of driving a school bus has been determined to be ministerial. Garza v. Salvatierra, 846 S.W.2d 17, 22 (Tex.App.-San Antonio 1992, writ dism’d w.o.j.) (holding discretion used by bus driver was traffic judgment, not governmental judgment). We agree with the analysis of our sister court and find it to be applicable here. “Ministerial functions involve carrying out the specifics of a policy decision, such as the driving of a bus along a given route on a certain day, at a specified time, and in accordance with the law and the driving rules and regulations promulgated by the policy-decision makers.” Id. “The act of driving a bus is ministerial, not discretionary.” Id.

In the present case, Fortuna was not under any duty to make any decision other than driving the bus. The accident which caused appellees’ injuries allegedly resulted from the manner in which the bus was being driven and not from any discretionary decision or election made by Fortuna. The School District offered no evidence to the contrary. We conclude that Fortuna’s duties were ministerial; therefore, she is not protected by official immunity. See Kassen, 887 S.W.2d at 9. Because the first element of the defense of official immunity has not been met, there is no need to address the remaining element of good faith. Fortuna is not entitled to official immunity and therefore may be held personally liable to appellees under Texas law. Appellees have met all the required elements of section 101.021(1). Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1). Accordingly, the School District is not entitled to assert Fortuna’s official immunity defense and does not retain its sovereign immunity under section 101.021(1). Id; see DeWitt, 904 S.W.2d at 653 (citing Rex, 878 S.W.2d at 597; Kilburn, 849 S.W.2d at 812). Appellant’s second issue is overruled.

3. Statutory cap on damages

In its third issue on appeal, the School District argues that its liability cannot exceed that of Fortuna. Specifically, the School District argues that Fortuna’s liability is limited to $100,000 under section 108.002 and that Fortuna is immune because her liability insurer has paid more than $100,000 to multiple claimants involved in the accident. Tex. Civ. Prac. & Rem.Code Ann. § 108.002. In essence, the School District is arguing that section 108.002 repeals or reduces the limits set in section 101.023. Id.; Tex. Civ. Prac. & Rem.Code Ann. § 101.023 (Vernon Supp. 2004-05). Section 108.002 limits the liability of public servants and provides that:

a public servant is not personally liable for damages in excess of $100,000 arising from personal injury, death, or deprivation of a right, privilege, or immunity if: (1) the damages are the result of an act or omission by the public servant in the course and scope of the public servant’s office, employment, or contractual performance for or service on behalf of a state agency, institution, department, or local government; and (2) for the amount not in excess of $100,000, the public servant is covered: ... (C) by liability or errors and omissions insurance ...

Tex. Civ. Prac. & Rem.Code Ann. § 108.002.

The School District argues that since its liability, is vicarious and derivative in nature it cannot be liable for more than Fortuna, which makes it immune. The School District relies on Kilburn for its argument that because Fortuna is immune from liability for any amount over $100,000, it too is immune. However, Kilburn does not stand for the proposition that an employee who is not otherwise entitled to official immunity may nonetheless assert it once the statutory cap in section 108.002 has been exhausted; instead, it states that if an employee is protected from liability under the doctrine of official immunity, then the governmental entity’s sovereign immunity remains intact “based on” the employee’s assertion of official immunity. Kilburn, 849 S.W.2d at 812. Any personal immunity that Fortuna may enjoy is by application of section 108.002, but such immunity does not equate to official immunity. Tex. Civ. Prac. & Rem.Code Ann. § 108.002. Therefore, the School District’s application of Kilburn to the present case is misplaced because we have already determined that Fortuna is not entitled to official immunity.

The appropriate cap on damages for a unit of local government is set forth in chapter 101 of the Texas Civil Practice and Remedies Code. Section 101.025 provides: “(a) Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter, (b) A person having a claim under this chapter may sue a governmental unit for damages allowed by this chapter.” Tex. Civ. Prac. & Rem.Code Ann. § 101.025 (Vernon 1997). Section 101.023(b) specifies that the liability of a unit of local government is limited to “money damages in a maximum amount of $100,000 for each person and $300,000 for each single occurrence for bodily injury or death and $100,000 for each single occurrence for injury to or destruction of property.” Tex. Civ. Prac. & Rem.Code Ann. § 101.023. When a plaintiff suffers an injury that falls within the TTCA, the legislature has agreed to hold the government liable up to a specified dollar amount. Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81-82 (Tex.1997). Chapter 101 does not mention or cross-reference section 108.002 as imposing any limitation or as calling for a reduction of the maximum amount of liability imposed under section 101.023. Tex. Civ. Prac. & Rem.Code Ann. § 101.023.

While not directly on point, similar arguments have arisen in cases where damages exceeding the statutory maximum have been awarded and a governmental unit argues that it is entitled to offset its maximum liability by the amount of settlement with the employee. In such cases, courts have reduced the amount of any settlement with the employee from the total damages rather than from the governmental unit’s liability. See Trevino, 941 S.W.2d at 82; City of Houston v. Aber, 770 S.W.2d 89, 90 (Tex.App.-Houston [14th Dist.] 1989, no writ).

In Trevino, the court held that a plaintiffs settlement with a defendant does not affect the degree of waiver of sovereign immunity that the legislature has prescribed. Trevino, 941 S.W.2d at 81-82. Although the dollar amount of a settlement must be reduced from the verdict under the “one satisfaction” rule, the settlement does not affect the maximum dollar amount to which the government has agreed to waive its immunity. Id at 82.

In Aber, the court decided whether a $100,000 settlement with a city employee operated to extinguish the city’s liability as was argued by the city. See Aber, 770 S.W.2d at 89. Both parties agreed that the TTCA applied to limit the liability of the city to $100,000; however, the city contended that the judgment should be reduced to the maximum liability under the TTCA and the settlement subtracted from the $100,000 limit, thereby negating any liability of the city. Id. The appellee contended that the TTCA should be liberally construed in favor of the claimant so that the court correctly credited the settlement to the entire judgment against the city. Id. The court agreed with the appel-lee and held that the settlement with the city employee was not in full settlement of appellee’s claim against the city. Id. The court further stated that “a plaintiff may always settle with the employee without losing his action against the employer under respondeat superior.” Id.

In light of the above cases, we would be hard pressed to find merit in appellant’s argument that payments made by Fortuna’s liability insurance carrier to other plaintiffs should be offset against the $100,000 limit provided in section 101.023. Tex. Civ. Prac. & Rem.Code Ann. § 101.023. Section 101.023 further provides for a maximum limit of $300,000 for each single occurrence. See id. Because the latter has not been exhausted, the School District may be held liable to appellees up to the amounts provided for in this section. Appellant’s third issue is overruled.

4. Fortuna as a party

In its final issue, the School District argues that it retains its sovereign immunity because it is entitled to rely on the immunity and limitation provided for in section 108.002 regardless of whether For-tuna is a party to the proceeding. Tex. Civ. PRAC. & Rem.Code Ann. § 108.002.

Given our disposition of appellant’s third issue, we need not address appellant’s fourth issue. We have already determined that section 101.023(b) determines the School District’s liability whether or not Fortuna is a party to the suit. Tex. Civ. Prac. & Rem.Code Ann. § 101.023(b). Appellant’s fourth issue is overruled.

CONCLUSION

We affirm the trial court’s order denying appellant School District’s plea to the jurisdiction.

      . The suit is brought by appellees, Shelly Southworth, individually and as next friend of April Clark, a minor, and Isabel Gutierrez, individually and as legal guardian of Veronica Contreras, a minor.

      . These provisions are sections 101.021, 101.023, and 108.002. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021 (Vernon 1997), 101.023, 108.002 (Vernon Supp.2004-05).

      . Fortuna’s liability insurance carrier made payments to other injured parties, but it is not clear whether any payments were made to appellees. In any event, the School District has not exhausted the maximum statutory cap in section 101.023. Tex. Civ. Prac. & Rem.Code Ann. § 101.023.


author: Justice MORRIS.

text:
    Michael and Elaine TODD, Appellant, v. PERRY HOMES, A Joint Venture, Appellee.
    No. 05-04-00396-CV.
    Court of Appeals of Texas, Dallas.
    March 7, 2005.

      Jeffrey Lee Clark, Kelsoe, Anderson, Khoury & Clark, P.C., Dallas, TX, for Appellant.
    Mike F. Pipkin, Sedgwick, Detert, Moran & Arnold, Stacy R. Obenhaus, Gregory Harwell, Jeremy Martin, Gardere Wynne Sewell LLP, Dallas, TX, for Appellee.
    ■ Before Justices MORRIS, MOSELEY, and FITZGERALD.
   OPINION

Opinion By

Justice MORRIS.

In this case arising out of the alleged faulty construction of a home, the trial court granted Perry Homes’ no-evidence motion for summary judgment on Michael and Elaine Todd’s claims for breach of implied warranty of habitability and unconscionable conduct under the Texas Deceptive Trade Practices Act. The Todds raise three issues on appeal arguing there were genuine issues of material fact precluding summary judgment. For the reasons that follow, we affirm the trial court’s judgment.

The Todds are the subsequent purchasers of a house built by Perry Homes. The Todds claim that improper drainage caused rainwater to flow into their garage and crawlspace resulting in standing water under a portion of the house for up to five days. According to the Todds, the driveway had to be replaced and the drainage slopes around the house revised to correct the drainage problems. The Todds sued Perry Homes asserting causes of action for negligence, a “construction defect” under Section 27.001 et seq. of the Texas Property Code, breach of implied warranties of good workmanship and habitability, and violations of the DTPA. Perry Homes moved for both a traditional and a no-evidence summary judgment on all the Todds’ claims. The trial court granted the no-evidence motion on the claims for breach of implied warranty of habitability and unconscionable conduct under the DTPA. The remaining claims were resolved by a jury trial. The Todds appeal only the trial court’s granting of the no-evidence summary judgment.

To maintain a cause of action for breach of implied warranty of habitability, a plaintiff must show the property at issue is unsuitable for its intended use as a home and unfit for human habitation. See Centex Homes v. Buecher, 95 S.W.3d 266, 273 (Tex.2002). Perry Homes moved for summary judgment on the ground that there was no evidence the house was uninhabitable. In response, the Todds had the burden to present sufficient evidence to raise a genuine issue of fact on the issue of habitability. See Gen. Mills Rest., Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.).

In their first two issues on appeal, the Todds claim they raised genuine issues of material fact regarding the home’s habitability. Specifically, the Todds argue they presented evidence showing the drainage problems created a risk of mold, rot, or termites in the house. Evidence of a risk of future problems does not, however, create a fact issue with respect to the home’s current condition or suitability for habitation. Accordingly, the Todds did not raise a genuine issue of material fact as to the element of habitability.

In addition, the implied warranty of habitability extends only to latent defects. Id. at 275. In this case, the Todds admitted knowing before they purchased the house that there was soil movement in the backyard and that the driveway and the pool decking tilted toward the house. Thus, the cause of the drainage problems was a visible condition known to the Todds, and there is no evidence there was a hidden or latent defect in the home. We resolve the Todds’ first two issues relating to the implied warranty of habitability against them.

In their third issue, the Todds assert they raised genuine issues of material fact regarding their claim that Perry Homes engaged in an unconscionable course of action under the DTPA. The purpose of the DTPA is to “protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.” Tex. Bus. & Com.Code Ann. § 17.44 (Vernon 2002); Amstadt v. U.S. Brass Corp. 919 S.W.2d 644, 649 (Tex.1996). To be actionable under the DTPA, the defendant’s deceptive conduct must occur in connection with a consumer transaction. Id. at 649-50. Where there is no contractual privity between the defendant seller and the consumer, “the connection can be demonstrated by a representation that reaches the consumer or by a benefit from the second transaction to the initial seller.” Marshall v. Kusch, 84 S.W.3d 781, 786 (Tex.App.Dallas 2002, pet. denied).

The evidence shows that, in 1995, Perry Homes constructed the home at issue and sold it to the original homeowners, the Smiths. In 2001, the Todds purchased the home from the Smiths without relying on any representation from Perry Homes. The Todds presented no evidence that Perry Homes was connected to their purchase of the home, that any representations Perry Homes made about the house reached the Todds, or that Perry Homes benefitted from their purchase of the house. Without evidence of a connection between the actions of Perry Homes and the sale of the house to the Todds, Perry Homes cannot be held liable for unconscionable action under the DTPA. See Marshall, 84 S.W.3d at 787. We overrule the Todds’ third issue.

We affirm the trial court’s judgment.

      . In a footnote in PPG Indus., Inc. v. JMB/Houston Ctrs. Partners L.P., 146 S.W.3d 79, 86 n. 27, the Texas Supreme Court stated that "Amstadt [v. U.S. Brass Corp. 919 S.W.2d 644, 649 (Tex.1996)] appears to overrule Gupta v. Ritter Homes, Inc., [646 S.W.2d 168, 169 (Tex.1983)] in which we held an implied warranty asserted under the DTPA could be brought by a subsequent purchaser.” In her concurrence and dissent to the PPG opinion, however, Justice O’Neill stated the majority "vastly overstates our holding in Amstadt ...." and "nothing in our Amstadt opinion [suggests] that, had the defendants' misrepresentations been directly connected with the homes' sale, subsequent buyers of the homes could not assert DTPA claims by assignment.” See PPG, 146 S.W.3d at 110. Because we conclude the Todds failed to raise a genuine issue of fact with respect to the issues of habitability and unconscionable action, we do not address the legal viability of their claims as subsequent purchasers.


author: Justice MAZZANT.

text:
    In re John Michael DAISY, Relator.
    No. 05-05-00004-CV.
    Court of Appeals of Texas, Dallas.
    March 7, 2005.

      John Michael Daisy, Dayton, TX, for relator.
    William T. Hill, Dallas, TX, for Real Party in Interest.
    Before Justices MORRIS, RICHTER, and MAZZANT.
   OPINION

Opinion By

Justice MAZZANT.

In this original proceeding, we must decide whether the trial court judge erred in not giving relator John Michael Daisy additional credit for time served. Because we conclude the trial court erred, we conditionally grant the writ.

Background

Relator was arrested and jailed in the Irving jail on July 31, 2001 for an assault involving family violence. On August 7, 2001, relator was transferred from the Irving jail to the Dallas County Jail. On that same date, a magistrate informed relator of his rights and set bail in the amount of $15,000. Relator did not post bail, and remained in jail until the date of his trial. On November 8, 2001, relator was convicted of felony assault involving family violence. See Tex. Pen.Code Ann. § 22.01(a), (b)(2) (Vernon Supp.2004-05). Punishment was assessed at five years’ imprisonment and a $500 fine. The trial court’s judgment gave appellant credit for presen-tence time served from August 7, 2001 to November 8, 2001. Appellant appealed, and this Court affirmed the trial court’s judgment on November 15, 2002 and issued its mandate on February 11, 2003. Appellant did not raise the issue of back time credit on appeal.

Appellant thereafter filed a motion for a nunc pro tunc judgment, seeking credit for the time he was in jail from the date of his arrest on July 31, 2001 until August 7, 2001. There are several form letters in the clerk’s record from the trial court judge to relator giving various reasons why the judge could not or would not rule on his motion. On January 3, 2005, relator filed a pro se petition for writ of mandamus complaining of the trial judge’s failure to grant him the additional back time credit. Neither the State nor the respondent filed a response.

Analysis

To obtain mandamus relief, relator must demonstrate that (1) he has no other adequate legal remedy, and (2) under the relevant facts and law, the act sought to be compelled is purely ministerial. State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex.Crim.App.2001). An act is ministerial if it does not involve the exercise of any discretion and the relator has a clear right to relief. See id. The relief sought must be clear and indisputable, such that its merits are beyond dispute. See id. at 927-28.

The code of criminal procedure provides that

[i]n all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, other than time served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court.

Tex.Code Crim. Proc. Ann. art. 42.03, § 2(a) (Vernon Supp.2004-05) (emphasis added); see also Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex.Crim.App.2004) (per curiam) (trial court required to grant presentence jail time credit when sentence is pronounced). If the trial court fails to award back time credit at the time the sentence is imposed, the trial court has the authority to correct the judgment to reflect the appropriate back time credit by a nunc pro tunc order and should do so. Ex parte Ybarra, 149 S.W.3d at 148; see also Tex.R.App. P. 23.2 (nunc pro tunc order). Because the trial court is required to award credit for pre-sentence time served, the judge’s failure to do so violates a ministerial duty. See State ex rel. Hill, 34 S.W.3d at 927-28. Further, if a motion for a nunc pro tunc order for back time credit is filed and the trial judge fails to respond, relief may be sought by petition for writ of mandamus to the court of appeals. See Ex parte Ybarra, 149 S.W.3d at 148-49.

Relator filed a motion seeking additional credit for the time he spent in the Irving jail from the date of his arrest on July 31, 2001 until he was transferred to the Dallas County Jail on August 7, 2001. The record shows that relator was confined on the family violence assault during that time period. Therefore, he is entitled to additional back time credit for the dates of July 31, 2001 through August 6, 2001. The trial judge’s failure to enter a nunc pro tunc order giving him that credit violated a ministerial duty, for which relator’s remedy is mandamus relief.

Accordingly, we conditionally granted relator’s petition for writ of mandamus. We order the trial judge to entered a nunc pro tunc order giving relator presentence credit for the time he spent in the Irving jail from July 31, 2001 through August 6, 2001. The trial judge is ordered to file a certified copy of its nunc pro tunc order with this Court within thirty days of the date of this opinion. Should the trial court fail to do so, the writ will issue.


text:
    Mike REAGAN, Appellant, v. Guy A. LYBERGER and Peggy Lyberger, Appellee.
    No. 05-99-01050-CV.
    Court of Appeals of Texas, Dallas.
    March 8, 2005.
    Michael Louis Strasser, Garland, Mark Heidenheimer, Mark Heidenheimer, P.L.L.C., McKinney, for Appellant.

      D. Brent Lemon, Law Office of D. Brent Lemon, Dallas, for Appellee.
    Before Justices MORRIS, WHITTINGTON, and O’NEILL.
   OPINION

Opinion by

Justice MORRIS.

In this appeal from a jury verdict, Mike Reagan contends there is no evidence or insufficient evidence to support the judgment against him on the basis of partnership, conspiracy, or joint enterprise. Guy and Peggy Lyberger respond that there is ample evidence to support the jury’s verdict against Reagan on each of these grounds. After reviewing the record, we agree the evidence is both legally and factually sufficient to support the jury’s findings with respect to Reagan. We affirm the trial court’s judgment.

I.

This case arises out of an agreement between Guy and Peggy Lyberger and Mike Anderson d/b/a Great Western Homes for the construction of a new house. During the course of building the house, issues arose with respect to how the money allocated for construction costs was being spent. In August 1994, the senior vice president of the bank funding the project called a meeting with Anderson and the Lybergers to determine the status of the construction and financing. Mike Reagan was also asked to attend the meeting because he had information about Anderson’s billing records. According to Anderson, Reagan handled the bookkeeping for Great Western Homes’s construction projects by tracking the checks and receipts going through Anderson’s account.

Peggy Lyberger testified that, shortly after the meeting was held, she and her husband stopped communicating with Anderson about financial matters and instead dealt solely with Reagan. Lyberger stated, and Anderson conceded at trial, that Anderson referred to Reagan as his partner. Reagan faxed the Lybergers financial information regarding the construction. Lyberger testified that Reagan also attempted to negotiate with them concerning items on the house that needed to be completed. On one occasion, according to Lyberger, Anderson told her he could not authorize the completion of a retaining wall for the house because Reagan told him they needed to get the money to pay for it first.

In September 1994, several subcontractors refused to continue working on the house because they were not being paid. After the subcontractors walked off the job, the house was vandalized by, among other things, holes being punched in the walls and wallpaper being torn off. Peggy Lyberger’s mother testified that while she and her husband were at the house trying to repair some of the damage, Reagan came by and told her that he was Anderson’s partner. Reagan then told her he wanted to “check out the progress of the construction site.” Reagan proceeded to walk around and inspect the house.

The Lybergers did not close on the purchase of their home until March 1995 due to the problems with the construction and financing. After investigating Anderson’s finances, criminal charges were brought against him and he pleaded guilty to misappropriation of trust funds. Anderson was required to pay $40,000 to the subcontractors on the Lyberger house. The Ly-bergers brought this civil suit against Anderson, Reagan, and Holley & Son Concrete Co., alleging claims for negligence, gross negligence, breach of contract, breach of warranty, fraud, violations of the Texas Deceptive Trade Practices Act, and conversion.

At trial, the Lybergers presented evidence that Reagan and Anderson had an ongoing business relationship that began before Anderson contracted to build the Lybergers’ home. In addition to performing bookkeeping services for Anderson, Reagan allowed Anderson to use his credit card to purchase appliances for another home being built by Great Western Homes. Furthermore, during the time that Anderson was budding the Lybergers’ house, Reagan loaned Anderson approximately $6000. Anderson repaid the loan with checks drawn off the Great Western Homes account. One of the checks to Reagan noted that it was for “consulting.” Finally, Reagan testified that while Anderson was budding the Lybergers’ home, he and Anderson were negotiating a Profits Participation Agreement under which Anderson and Great Western Homes would budd houses and Reagan, along with a man named David Hoover, would act as the business managers. The agreement set forth how the men would split the profits earned from the venture and how the losses and liabilities were to be allocated. Anderson, Reagan, and Hoover signed the Profits Participation Agreement in October 1994.

After hearing the evidence, the jury found that Anderson and Reagan were engaged in both a partnership and a joint enterprise. The jury further found that Reagan was part of a conspiracy that damaged the Lybergers. The trial court signed the judgment ordering that the Ly-bergers recover jointly and severally from Anderson and Reagan $45,799.14 in damages. Reagan brought this appeal arguing there is no evidence or insufficient evidence to support the jury’s findings of his liability on the basis of partnership, joint enterprise, or conspiracy.

II.

The standard of review when addressing issues of legal and factual sufficiency is well established. An appellant attacking the legal sufficiency of an adverse finding on an issue on which he did not have the burden of proof must demonstrate on appeal that there is no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In evaluating a no evidence challenge, we consider only the evidence and inferences tending to support the finding and disregard all contrary evidence and inferences. Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706, 711 (Tex.1997). If there is more than a scintilla of evidence to support the finding, we will not reverse the trial court’s judgment. Id. When reviewing a finding for factual sufficiency, however, we consider all of the evidence and will set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).

We first address Reagan’s contention that the evidence is legally and factually insufficient to support the jury’s finding that he and Anderson were engaged in a partnership. Under the Texas Revised Partnership Act, “an association of two or more persons to cany on a business for profit as owners creates a partnership, whether the persons intend to create a partnership and whether the association is called a ‘partnei'ship,’ ‘joint venture,’ or other name.” See Tex.Rev.Civ. Stat. Ann. art. 6132b-2.02 (Vernon Supp.2004-05). In general, a partner is hable jointly and severally for all debts and obligations of the partnership. See id. at art. 6132b-3.04. The factors indicating the creation of a partnership include: (1) receipt or right to receive a share of profits of the business; (2) expression of intent to be partners in the business; (3) participation or right to participate in control of the business; (4) sharing or agreeing to share losses of the business or liability for claims by third parties against the business; and (5) contributing or agreeing to contribute money or property to the business. Id. at art. 6132b-2.03. Not all of these factors need be present for a partnership to exist and no one factor is dispositive. See McDowell v. McDowell, 143 S.W.3d 124, 129 (Tex.App.-San Antonio 2004, pet. denied).

In this case, the Lybergers presented evidence that, at the time their house was being built, Reagan was actively participating in the home building business with Anderson and had at least some control over the business’s financial aspects. Anderson testified that he referred to Reagan as his partner and other witnesses stated Reagan identified himself as Anderson’s partner thus demonstrating an intent or understanding between the men that they were working together as partners. Finally, by loaning Anderson money and allowing him to charge appliances on his credit card, Reagan contributed money to the home building business. This evidence fits within the second, third, and fifth enumerated factors the legislature determined should be considered when determining whether a partnership exists. See Tex.Rev.Civ. Stat. Ann. art. 6132b-2.03. Because the Lybergers presented evidence that three of the five factors indicating a partnership existed between Reagan and Anderson during the time their house was being built, we conclude the evidence was sufficient to support the jury’s finding that Reagan engaged in a partnership with Anderson as to the construction of the Lybergers’ home.

The finding of partnership is further strengthened by the fact that Reagan and Anderson eventually signed a Profits Participation Agreement agreeing to split the profits and losses of the home building business in which they were engaged. Although they did not sign the agreement until after the problems with the Lybergers’ house had begun to develop, the addition of the first and fourth factors set forth in the Texas Revised Partnership Act to the other three factors already present in the business relationship between Reagan and Anderson suggests that the relationship was intended to be a partnership from its inception. Although Reagan and Anderson strongly denied at trial that they ever intended to create a partnership and disputed the Lybergers’ evidence of Reagan’s involvement in the home building business, the jury was free to resolve the inconsistencies and conflicting testimony in the Lybergers’ favor. See McGalliard v. Kuhlmann, 122 S.W.2d 694, 697 (Tex.1986).

Reagan also contends the Lybergers’ claims against him based on his alleged partnership with Anderson must fail because the Lybergers did not name the partnership as a party in the suit. Reagan relies on the cases of Fincher v. B & D Air Conditioning and Heating Co., 816 S.W.2d 509 (Tex.App.-Houston [1st Dist.] 1991, writ denied) and Texaco, Inc. v. Wolfe, 601 S.W.2d 737 (Tex.Civ.App.-Houston [1st Dist.] 1980, writ ref d n.r.e.) for the proposition that to hold him liable as a partner, the Lybergers must sue the alleged partnership. Reagan’s reliance on these cases is misplaced.

The issue before the court in Fincher was whether a partner could be held individually liable when the petition alleged a cause of action only against the partnership. The court concluded that once liability was established against the partnership, the joint and several liability of the individual partners followed as a matter of law. See Fincher, 816 S.W.2d at 513. Nothing in Fincher suggests that suing the partnership entity is necessary before holding the partners individually liable. Indeed, the court notes that the better practice is to name each individual partner as a defendant to the suit. Id.

In Wolfe, the court upheld the jury’s finding that Wolfe was not hable to Texaco on the basis of partnership. The reasoning behind the court’s decision was that nowhere in Texaco’s trial pleadings or its motion for new trial was there an assertion of partnership. See Wolfe, 601 S.W.2d at 741. A litigant cannot succeed upon a theory not set forth in his pleadings. Id. By comparison, the Lybergers clearly alleged in their pleadings that Reagan and Anderson were engaged in a partnership and that Reagan was liable to them based on that relationship. As with Fincher, the Wolfe opinion does not require that the alleged partnership be named as a party to the suit for the individual partners to be held hable. Wolfe requires only that the partnership theory of liability be asserted in the pleadings as it was in this case. See id. Reagan cites us to no cases, and we have found none, requiring that the partnership entity be sued separately to hold the individual partners hable.

We conclude Reagan’s challenges to the judgment against him on the basis of partnership are without merit. Having concluded the evidence supports the judgment on this ground, it is unnecessary for us to address Reagan’s remaining issues on appeal.

We affirm the trial court’s judgment.


author: JAMES T. WORTHEN, Chief Justice.

text:
    John Aaron COX, Appellant, v. The STATE of Texas, Appellee.
    No. 12-03-00190-CR.
    Court of Appeals of Texas, Tyler.
    Aug. 25, 2004.
    Discretionary Review Refused Feb. 2, 2005.

      Dennis P. Jones, for appellant.
    William E. Walton, for state.
    Panel consisted of WORTHEN, C. J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

John Aaron Cox appeals the trial court’s order revoking his deferred adjudication probation, following which he was sentenced to imprisonment for forty years. Appellant raises three issues on appeal. We dismiss for want of jurisdiction in part and affirm in part.

Background

On March 15, 1996, Appellant sexually assaulted a six-year-old child. He was indicted for the first-degree felony offense of aggravated sexual assault. On September 17, 1996, pursuant to a plea bargain with the State, Appellant pleaded nolo con-tendere to the offense. The trial court deferred a finding of guilt and placed Appellant on community supervision for eight years. The tidal court’s community supervision judgment contained thirty-one conditions that Appellant was required to follow.

In June 2000, the State filed a petition to revoke Appellant’s community supervision alleging that Appellant had violated six of the thirty-one conditions included in the judgment. Accordingly, an alias capi-as was issued for Appellant’s arrest.

On April 2, 2003, a hearing was held on the State’s motion. Walter Wooten, a probation officer with the Kaufman County Adult Probation Office, testified that Appellant had violated conditions five, six, eleven, thirteen, and thirty-one of his community supervision judgment as alleged in the State’s motion.

Condition five required Appellant to report monthly to his community supervision officer. Wooten testified that Appellant had faded to report to his supervision officer during April and May 2000. Condition six required monthly visits by Appellant’s community supervision officer at Appellant’s home. Wooten testified that Appellant had changed his residence without the permission of his supervision officer, who was, as a result, unable to locate him. Condition eleven required Appellant to pay $50.00 per month until his fine of $3,624.50 and court costs of $124.50 were satisfied. Wooten testified that Appellant failed to make the required payments from February 1998 forward.

Condition thirteen required Appellant to pay a monthly community supervision fee of forty dollars to Kaufman County. Wooten testified that Appellant failed to make these payments from June 1998 forward. Condition thirty-one required Appellant to attend psychological counseling sessions for sex offenders at his own expense and to remain in counseling until discharged. Wooten testified that Appellant failed to attend sex offender counseling sessions during April and May 2000.

Condition twenty-six required Appellant to register as a sex offender with the law enforcement agency nearest to his residence. Frankie Farrell testified that she was the sex offender registrar’ and custodian of records for the Kaufman County Sheriff’s Department. Farrell further testified that Appellant failed to register as a sex offender as required by the trial court’s judgment.

Appellant responded to the aforementioned testimony with evidence that he had not moved without permission of the court and that he had registered with law enforcement in all of the locations in which he had lived during the duration of his community supervision. He also introduced evidence supporting his contention that he had been unable to pay for the psychological counseling sessions he was ordered to attend.

On May 7, 2003, the trial court entered a judgment adjudicating Appellant guilty of aggravated sexual assault and sentenced him to imprisonment for forty years. Appellant timely filed this appeal.

Registration as a Sex Offender

In his first issue, Appellant contends that his guilty plea was involuntarily made and that his due process rights were violated because the trial court failed to properly admonish him as to the requirement that he register as a sex offender. Appellant pleaded nolo contendere on September 17, 1996 and was admonished in accordance with Texas Code of Criminal Procedure article 26.13. Appellant admits that he was so admonished. However, Appellant contends that he did not receive an admonition as to the requirement that he register as a sex offender. That admonition requirement was enacted and became effective in 1999, three years after Appellant’s guilty plea. See Mitschke v. State, 129 S.W.3d 130, 133 (Tex.Crim.App.2004). Nonetheless, Appellant contends that his constitutional rights under Articles V, VI, and XIV of the United States Constitution were violated because he was not informed as to the sex offender registration requirement.

This issue was squarely addressed by the Texas Court of Criminal Appeals this year in Mitschke. There, the appellant, who had pleaded guilty to indecency with a child, alleged that his constitutional rights had been violated by the trial court’s failure to properly admonish him as to the sex offender registration requirement. ■ Id. at 132. The court of criminal appeals held that the failure to admonish the appellant as to a direct, non-punitive consequence of his plea, specifically, the sex offender registration requirement, did not violate due process or render his plea involuntary. Id. at 136. Therefore, we hold that the trial court in the instant case did not err in its failure to admonish Appellant that he would be required to register as a sex offender. Appellant’s first issue is overruled.

Explanation of Parole

In his second issue, Appellant argues that the trial court failed to properly admonish him concerning the parole laws that would be applicable if his. deferred adjudication probation was subsequently revoked. Appellant contends, therefore, that his plea of nolo contendere was involuntarily made. As a result, he contends, his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments were violated in that he was not aware of the danger that could result from his plea.

When the record demonstrates that the trial court gave the statutory admonishments while accepting a plea, there is a prima facie showing of a knowing and voluntary plea. See Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex.Crim.App.1985). Prior to accepting a plea of nolo contende-re, a trial court must insure that the plea is free and voluntary. See Tex.Code CRim. PROc. Ann. art. 26.13(b) (Vernon 1989). The defendant has the burden to show that he entered a plea without understanding the consequences of his action and, thus, was harmed. Gibauitch, 688 S.W.2d at 871.

Parole is the discretionary and conditional release of an eligible prisoner who may serve the remainder of his sentence under the supervision and control of the pardons and paroles division. Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir.2000). Because it is entirely speculative whether a prisoner will be released on parole, there is no constitutional expectancy of parole in Texas. Id. Thus, no consideration of parole can support any of the constitutional claims made by Appellant. Id.; see also Ex parte Retzlaff, 135 S.W.3d 45, 49 (Tex.Crim.App.2004) (“[A]n inmate does not have a statutorily vested liberty interest in being released on parole.”).

We further note that the purpose of Article 26.13 is to assist the trial court in making the determination that a guilty plea is knowingly and voluntarily entered. See Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex.Crim.App.1999). Therefore, its admonishments are not constitutionally required. See id. We hold that Appellant did not have a constitutional right to receive information regarding parole when he entered his plea of nolo contendere. Appellant’s second issue is overruled.

Sufficiency of Revocation Evidence

In his third issue, Appellant contends that the evidence was insufficient that he had violated the terms of his deferred adjudication probation. Texas Code of Criminal Procedure article 42.12, section 5(b) governs the situation at issue. Article 42.12, section 5(b) states as follows:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.

Tex.Code.CRIm. PROC. Ann. art. 42.12 § 5(b) (Vernon Supp.2004-2005) (emphasis added).

In Connolly v. State, 983 S.W.2d 738 (Tex.Crim.App.1999), the court of criminal appeals reiterated its holdings from a long line of cases concerning situations similar to the instant case. See Connolly, 983 S.W.2d at 740-741 (citing Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App.1992) (explaining that court of criminal appeals had “held from the beginning of deferred adjudication practice that the Legislature [had] meant what it said in Article 42.12 § 5(b)”); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992) (on appeal of trial court’s decision to revoke probation and adjudicate, even if the appellant’s right to counsel had been violated, the appellant could not use direct appeal as the vehicle with which to seek redress); Wright v. State, 592 S.W.2d 604, 606 (Tex.Crim.App.1980) (under the terms of the statute, no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge); Williams v. State, 592 S.W.2d 931, 932-33 (Tex.Crim.App.1979) (trial court’s decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable)). The court continued:

In all these cases, we have tried to make clear that, given the plain meaning of Article 42.12 § 5(b), an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process, (citation omitted). Moreover, since the legislature has not overturned our interpretation of the statute after all these years, we are confident that our interpretation is correct. See State v. Hall, 829 S.W.2d 184, 187 (Tex.Crim.App.1992) (prolonged legislative silence following judicial interpretation of statute implies approval of interpretation).

Connolly, 983 S.W.2d at 741.

In our view, given the factual similarities between Connolly, its progeny, and the case at hand, the holdings in Connolly and the cases cited therein control the instant case as it relates to the trial court’s decision to proceed to adjudication. Id.; see also Williams, 592 S.W.2d at 932-33. Considering the plain meaning of article 42.12, section 5(b) and the long line of authority from the court of criminal appeals on the issue, we hold that Appellant cannot contest the sufficiency of the evidence insofar as that issue arises out of the trial court’s decision to proceed with the adjudication of guilt. Id.; see also Williams, 592 S.W.2d at 932-33. Therefore, we lack jurisdiction to consider Appellant’s third issue.

Conclusion

We lack jurisdiction to consider Appellant’s issue three. We have overruled Appellant’s issues one and two. Accordingly, we affirm the trial court’s order revoking Appellant’s community supervision.