author: TERRY McCALL, Justice.

text:
    APCAR INVESTMENT PARTNERS VI, LTD., Appellant, v. Michael L. GAUS and John C. West, Appellees.
    No. 11-03-00332-CV.
    Court of Appeals of Texas, Eastland.
    Jan. 20, 2005.

      Hal Gordon, James F. Tyson, Houston, for Appellant.
    Eric D. Wade, Melinda Hudspeth, Eugene M. Nettles, Nancy Elliott, Porter & Hedges, L.L.P., Houston, for Appellees.
    Panel consists of ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

TERRY McCALL, Justice.

Apear Investment Partners VI, Ltd. brought suit for breach of a lease agreement against Smith & West, L.L.P. Apear also sought to recover for the alleged breach of the lease against Smith & West, L.L.P.’s partners, Michael L. Gaus and John C. West, in their individual capacities. The trial court granted summary judgment to Gaus and West. The trial court severed Apcar’s claims against Gaus and West from the remainder of the suit. Thus, the judgment in favor of Gaus and West became final and appealable. We reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion.

Background Facts

On March 6,1995, Smith & West, L.L.P. registered as a domestic limited liability partnership under Article 6132b-3.08 of the Texas Revised Partnership Act. TEX. REV.CIV.STAT.ANN. art. 6132b-3.08 (Vernon Supp.2004-2005). On August 11, 1999, MF Partners I, Ltd. and Smith & West, L.L.P. entered into the lease in question. Under the lease, Smith & West, L.L.P. leased office space from MF Partners I, Ltd. for a term of 60 months. In connection with the lease, Gaus and West signed a guaranty personally guaranteeing Smith & West, L.L.P.’s performance during the first 24 months of the lease.

MF Partners I, Ltd. assigned its interest in the lease to Apear. Apear claimed that, on October 31, 2002, Smith & West, L.L.P. stopped paying rent under the lease and abandoned the leased premises. Ap-ear filed suit for breach of lease against Smith & West, L.L.P.; Gaus; and West. Gaus and West moved for summary judgment on two grounds: (1) that, as partners in a registered limited liability partnership, they were not individually liable for the partnership’s obligations under the lease and (2) that the guaranty they signed in connection -with the lease limited their personal liability to the first two years of the lease term. Apear moved for partial summary judgment, asserting that Gaus and West were individually liable for Smith & West, L.L.P.’s obligations under the lease because Smith & West, L.L.P. was not a registered limited liability partnership when it entered into the lease in question. The trial court granted Gaus and West’s motion for summary judgment and denied Apear’s motion for partial summary judgment.

Issues Presented

Apear presents four points of error for review. In its first point of error, Apear argues that the trial court erred in granting Gaus and West’s motion for summary judgment and in denying its motion for partial summary judgment. Because our holding in the first issue is dispositive of this appeal, we need not address Apear’s other issues. TEX.R.APP.P. 47.1.

Standard of Review

Gaus and West’s Motion for Summary Judgment

This appeal involves the review of a traditional motion for summary judgment. We will apply the well-recognized standard of review for traditional summary judgments. We must consider the summary judgment evidence in the light most favorable to the non-movant, indulging all reasonable inferences in favor of the non-movant, and determine whether the mov-ant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). The trial court’s order granting summary judgment does not specify the grounds upon which it was based. When a trial court’s order granting summary judgment does not specify the ground or grounds relied upon for its ruling, summary judgment will be affirmed on appeal if any of the summary judgment grounds advanced by the movant are meritorious. Dow Chemical Company v. Francis, 46 S.W.3d 237, 242 (Tex.2001); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Apear’s Motion for Partial Summary Judgment

Apear also seeks review of the denial of its motion for partial summary judgment. The general rale is that the denial of a summary judgment is not reviewable on appeal because the denial of a summary judgment is not a final judgment. Cincinnati Life Insurance Company v. Cates, 927 S.W.2d 623, 625 (Tex.1996). However, when both sides move for summary judgment and the court grants one motion and denies the other motion, the denial is reviewable as part of the appeal from the granted motion. Krohn v. Marcus Cable Associates, L.P., 43 S.W.3d 577, 583 (Tex.App.-Waco 2001), aff'd, 90 S.W.3d 697 (Tex.2002). Absent an exception or statutory mandate, the parties must have both sought a final judgment for this rule to apply. Krohn v. Marcus Cable Associates, L.P., supra. Apear moved for a partial summary judgment; it did not move for a final judgment. Apear has not shown an exception or statutory mandate permitting the appeal of the denial of its motion for partial summary judgment. Therefore, we cannot review the denial of Apear’s motion in this appeal. Krohn v. Marcus Cable Associates, L.P., supra at 583-84.

Registered Limited Liability Partnership Statute

As one ground for summary judgment, Gaus and West argued that they were protected from individual liability under Article 6132b-3.08(a)(1) of the Texas Revised Partnership Act. The determination of this issue involves the interpretation of Article 6132b-3.08. No Texas case has addressed the issue before this court.

Article 6132b-3.08 is entitled “Liability in and Registration of Registered Limited Liability Partnership.”' Article 6132b-3.08(a)(1) provides that “a partner in a registered limited liability partnership is not individually hable ... for debts and obligations ... incurred while the partnership is a registered limited liability partnership.” Apear contends that the lease obligations were not incurred while Smith & West, L.L.P. was a registered limited liability partnership because Smith & West, L.L.P.’s status as a registered limited liability partnership expired in 1996-three years before the lease was executed. Therefore, Apear asserts that Gaus and West are personally liable for the lease obligations. Gaus and West contend that Smith & West, L.L.P.’s initial registration as a registered limited liability partnership in 1995 protects them from individual liability in this case. To support their argument, Gaus and West rely on cases involving the statutory filing requirements for limited partnerships. They assert that, based on the reasoning of the limited partnership eases, Smith & West, L.L.P. did not need to comply with statutory renewal requirements for maintaining its status as a registered limited liability partnership in order to protect them from individual liability under the lease.

Article 6132b-3.08(b) sets forth the requirements for registration of a limited liability partnership. Article 6132b-3.08(b)(4) provides in pertinent part:

A partnership is registered as a registered limited liability partnership on filing a completed initial or renewal application, in duplicate with the required fee, or on a later date specified in the application.

Article 6132b-3.08(b)(5) provides:

An initial application filed under this subsection and registered by the secretary of state expires one year after the date of registration or later effective date unless earlier withdrawn or revoked or unless renewed in accordance with Subdivision (7).

Article 6132b-3.08(b)(7) provides:

An effective registration may be renewed before its expiration by filing in duplicate with the secretary of state an application containing current information of the kind required in an initial application and the most recent date of registration of the partnership. The renewal application must be accompanied by a fee of $200 for each partner on the date of renewal. A renewal application filed under this section continues an effective registration for one year after the date the effective registration would otherwise expire.

Smith & West, L.L.P. filed its initial application registering as a registered limited liability partnership on March 6, 1995. Article 6132b-3.08(b)(5) provided that the initial registration would expire one year after the date of registration (on March 6, 1996) unless renewed in accordance with Subdivision (7). Smith & West, L.L.P. did not file a renewal application before the expiration date. Therefore, its status as a registered limited liability partnership expired on March 6,1996.

Smith & West, L.L.P. entered into the lease three years after its status as a registered limited liability partnership expired. Article 6132b-3.08(a)(l) protects partners from individual liability for debts and obligations that are incurred while the partnership is a registered limited liability partnership. Smith & West, L.L.P. was not a registered limited liability partnership when it incurred the lease obligations. Thus, the clear language of Article 6132b-3.08(a)(1) supports Apcar’s position that Gaus and West are not protected from individual liability for the lease obligations.

Gaus and West argue that a limited liability partnership is not required to strictly comply with the registration requirements in Article 6132b-3.08(b) for its partners to be protected from individual liability under 6132b-3.08(a)(l). In the context of limited partnerships, courts have held that it is not necessary for limited partnerships to strictly comply with statutory filing requirements for its limited partners to receive limited liability protection. See Laney v. Commissioner of Internal Revenue, 674 F.2d 342 (5th Cir. 1982); Shindler v. Marr & Associates, 695 S.W.2d 699 (Tex.App.-Houston [1st Dist.] 1985, writ refd n.r.e.); Garrett v. Koepke, 569 S.W.2d 568 (Tex.Civ.App.-Dallas 1978, writ refd n.r.e.); Voudouris v. Walter E. Heller & Company, 560 S.W.2d 202 (Tex. CivApp.-Houston [1st Dist.] 1977, no writ). In each of these cases, the courts held that limited partners did not lose their limited liability status when the partnership failed to comply with filing requirements. La-ney v. Commissioner of Internal Revenue, supra at 347-48; Shindler v. Man• & Associates, supra at 702-04; Gan’ett v. Koepke, supra at 570-71; Voudouris v. Walter E. Heller & Company, supra at 207-08.

The Texas Revised Limited Partnership Act is set forth in TEX.REV.CIV.STAT. ANN. art. 6132a-l (Vernon Supp.2004-2005). Article 6132a-l, section 2.01(a) provides that, to form a limited partnership, the partners must execute a certificate of limited partnership and the partners shall file the certificate of limited partnership with the secretary of state. Garrett involved a similar filing requirement under a predecessor statute, the Uniform Limited Partnership Act, former TEX.REV.CIV. STAT. art. 6132a, ' 3 (1970).[] In Garrett, the limited partnership failed to file the certificate of limited partnership. Garrett v. Koepke, supra at 570. The plaintiffs in Garrett claimed that the limited partners were hable as general partners because of the failure to file the certificate. The court explained that the primary purpose of the limited partnership statute is to provide notice of the limited partnership status to third parties. The court found that the plaintiffs “already had the information that would have been provided by compliance with the statute prior to dealing with the limited partnership.” Garrett v. Koepke, supra at 569. Therefore, the court held that the partnership’s failure to comply with Article 6132a did not cause the limited partners to lose their status as limited partners. Garrett v. Koepke, supra.

The limited partnership cases are distinguishable from registered limited liability partnership cases for two reasons. First, the clear language of Article 6132b-3.08(a)(1) provides that partners are protected from individual liability only for debts and obligations that are incurred while the partnership is a registered limited liability partnership. Article 6132b-3.08(b)(5) and (b)(7) provides that registration expires in one year unless it is renewed prior to the expiration date. To apply the reasoning of the limited partnership cases would conflict with the clear language of Article 6132b-3.08. Second, the Texas Revised Limited Partnership Act (Article 6132a-l) contains a provision that is not present in Article 6132b-3.08. Article 6132a-l, section 2.01(b) provides in part as follows:

[A] limited partnership is formed at the time of the filing of the initial certificate of limited partnership with the secretary of state or at a later date or time specified in the certificate if there has been substantial compliance with the requirements of this section.

Article 6132b-3.08 does not contain a “substantial compliance” section, nor does it contain a grace period for filing a renewal application. We hold that a partnership must be in compliance with the registration requirements in Article 6132b-3.08(b) for its partners to receive protection from individual liability under Article 6132b-3.08(a)(1). Smith & West, L.L.P. was not a registered limited liability partnership when it incurred the lease obligations; therefore, Gaus and West are not protected from individual liability for the lease obligations under Article 6132b-3.08(a)(l).

The Guaranty

As an additional ground for summary judgment, Gaus and West argued that the guaranty they signed in connection with the lease limited their personal liability to the first two years of the lease term. The guaranty stated as follows:

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, PROVIDED LESSOR HAS NOT ASSERTED ANY CLAIM AGAINST THE UNDERSIGNED FOR PAYMENT UNDER THIS GUARANTY, THIS GUARANTY SHALL TERMINATE AND BE OF NO FURTHER FORCE OR EFFECT ON THE DATE THAT IS 24 MONTHS AFTER THE COMMENCEMENT DATE.

While Gaus’s and West’s liability under the guaranty may have been limited to the first two years of the lease, the issue of their liability under the guaranty is different from the issue of their liability under the lease itself. We have determined that Gaus and West, as partners in Smith and West, L.L.P., may be individually liable for Smith & West, L.L.P.’s lease obligations because Smith and West, L.L.P. was not a registered limited liability partnership when it incurred the lease obligations. The guaranty did not limit Gaus’s and West’s liability as partners for the partnership’s lease obligations. Gaus and West failed to show that they were entitled to judgment as a matter of law.

The trial court erred in granting summary judgment to Gaus and West. Apcar’s first point of error is sustained insofar as it complains of the granting of summary judgment to Gaus and West.

This Court’s Ruling'

The judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.

      . See also Laney, Shindler, and Voudouris that involved similar filing requirements under the Uniform Limited Partnership Act.


source: Caselaw Access Project

author: Justice CARTER.

license: Public Domain

text:
    Barry Jerome HALL, Appellant, v. The STATE of Texas, Appellee.
    No. 06-03-00253-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 8, 2004.
    Decided Jan. 25, 2005.
    Opinion Overruling Rehearing March 8, 2005.

      George E. West, Dallas, for appellant.
    Christopher Parker, Martin E. Braddy, Asst. Dist. Attys., Sulphur Springs, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Facts and Procedural History

Late in the evening of May 11, 2002, Trooper Greg Hollingsworth with the Texas Department of Public Safety (DPS) pulled over a car driven by Donna Richardson on Interstate 30, about two hours east of Dallas. The car was rented from a leasing agency in Dallas; it had been leased to Richardson’s cousin, Beverly Norris. Richardson was listed as an approved driver on the rental agreement. Appellant, Barry Jerome Hall, who was riding in the front passenger’s seat of the car, was not an approved driver. Hollings-worth stopped the vehicle for speeding. On making contact with Richardson and Hall, Hollingsworth noticed that Richardson was very nervous, even after he advised she would be issued a warning, not a speeding ticket. Hall failed to make eye contact with Hollingsworth. These circumstances, combined with the late hour and the fact that Dallas had shown, in Hollingsworth’s experience, to be a source city of illegal narcotics trafficking, aroused his suspicions. He asked Richardson for consent to search the vehicle, and she agreed.

In the trunk, Hollingsworth found a large blue cooler containing drinks and snacks. The cooler also held ice, and Holl-ingsworth noticed that the ice was not melted. Reaching under the ice, Hollings-worth found two bricks of cocaine wrapped in duct tape. The cocaine weighed 1.97 kilograms.

Richardson pled guilty to a first-degree felony of possession of a controlled substance, cocaine, in an amount more than 400 grams. She was placed on deferred adjudication and was required to testify at Hall’s trial.

Hall testified in his own defense and denied any knowledge of the cocaine or the cooler in the trunk. Hall testified that the trip to Dallas was Richardson’s idea, that he never put anything in the trunk, and that Richardson’s trial testimony was all lies.

The jury convicted Hall and later assessed his punishment at sixty years’ confinement and a fine of $40,000.00. The court sentenced Hall accordingly.

Hall’s Points of Error

On appeal, Hall raises four points of error: (1) legal sufficiency of the evidence; (2) failure to instruct the jury that the testimony of the accomplice witness must be corroborated; (8) insufficient corroboration of accomplice Richardson’s testimony; and (4) ineffective assistance of counsel at his trial.

We find that the evidence was legally sufficient, but also find that Hall did suffer egregious harm because the trial court did not instruct the jury on the accomplice witness rule. We further find that trial counsel’s representation fell below a reasonable standard of competence, thereby prejudicing Hall. We reverse Hall’s conviction and remand the case to the trial court for a new trial.

1. Legal Sufficiency of Evidence

Hall complains there was insufficient evidence to prove he was guilty of possession of more than 400 grams of a controlled substance. The evidence is legally sufficient if, when viewing the relevant evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).

In sum, the following evidence was presented to the jury:

Richardson testified that she lives in Little Rock, Arkansas; that she became acquainted with Hall, who always drove rental cars; and that Hall was not employed. In May 2002, Hall called her and asked her to ride with him to Dallas, Texas. She went along to visit her sister. Hall picked her up in a rental car, and he drove to Dallas. After arriving in Dallas, Richardson went to her sister’s house, and Hall was to call her when he was ready to return to Little Rock. Later that day, Hall called and said he could not charge another rental car on his credit card and asked her cousin to rent the car so they could return home. Her cousin, Beverly Norris, knew Hall and agreed to rent the vehicle. Richardson obtained the rental car after her cousin rented it, then picked up Hall. Hall asked for the keys to the automobile. They went to a Target store, and Hall purchased a cooler. Hall then placed the cooler in the trunk. They went to a gasoline station and purchased ice. Hall put a bag of ice in the cooler in the trunk. Richardson “had a pretty good idea ... there was something in there that I didn’t want to see” “possibly” drugs. They then left Dallas traveling toward Little Rock. There was no doubt in her mind Hall knew exactly what he was going to put in the cooler in the trunk of the car.
Hollingsworth found the 1.97 kilograms of cocaine in a cooler located in the trunk of the vehicle in which Hall was a passenger.
Hollingsworth testified that Dallas is a source city for narcotics and that Interstate 30 is often used as a route on which illegal narcotics are transported.
Hall would not make eye contact with Hollingsworth and continued to look straight ahead as Hollingsworth talked to him.
Hall lied to Hollingsworth about previous arrests.
Rental cars are commonly used by drug runners.
A cooler with ice is a technique used to foil drug dogs.
The cooler was in the trunk, inaccessible to the car’s occupants, despite containing food and drinks, while the parties’ luggage was in the back seat.
Neither Richardson nor Hall seemed surprised when they were arrested.
After Hollingsworth read Hall his Miranda rights and asked him about the drugs and cooler in the car, Hall said he did not know to whom the cooler belonged, and “I’m ready to go” and “put me in the' car.”
A pager, two cell phones, and a walkie-talkie type radio were in the car.

The jury was presented with Hall’s explanation of events leading up to the drugs being found in the car, and it was free to evaluate Hall’s credibility.

Although there was error in failing to instruct the jury about the need for accomplice Richardson’s testimony to be corroborated (as we discuss later in this opinion), in evaluating the legal sufficiency, we review the evidence received and the elements of the offense as defined by the hypothetically-correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997) (sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically-correct jury charge which, inter alia, is authorized by the indictment). When considered, we believe the evidence is legally sufficient to support the verdict. Richardson testified Hall initiated the trip, purchased the cooler and ice, and placed them in the trunk where the drugs were found. Other circumstances that Hollingsworth testified were indicative of “moving narcotics” were that Hall was in a rental ear, it was late at night, and he was traveling from a known source of drags. He was a passenger in the vehicle where the drugs were located and was evasive in responding to the officer. Cell phones and a walkie-talkie type radio were located in the car. We find the evidence is legally sufficient.

2. Accomplice Witness Instruction

a. Error

Hall complains the trial court erred in failing to include an instruction on the accomplice witness rule in the court’s charge. Richardson drove the car and had pled guilty to the same felony with which Hall was charged, and was therefore an accomplice as a matter of law. See State v. Trevino, 930 S.W.2d 713 (Tex.App.-Corpus Christi 1996, pet. ref'd). Where the evidence clearly shows a witness is an accomplice as a matter of law, the trial court must so instruct the jury, but if the appellant fails to object to the omission of the instruction, as in Hall’s case, he or she must prove egregious harm to prevail on appeal. Solis v. State, 792 S.W.2d 95, 98 (Tex.Crim.App.1990). Egregious harm results from errors that deny the defendant a “fair and impartial trial,” “go to the very basis of the case,” deprive the defendant of a “valuable right,” or “vitally affect his defensive theory.” Almanza v. State, 686 S.W.2d 157, 172 (Tex.Crim.App.1984) (op. on reh’g). “Egregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis.” Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996); see Batiste v. State, 73 S.W.3d 402, 407 (Tex.App.-Dallas 2002, no pet.). In reviewing the trial court’s failure to instruct the jury on the accomplice witness rule, we examine the record for evidence corroborating the accomplice witness testimony. If the evidence “clearly warrants conviction independent of the accomplice testimony, the court’s failure to instruct on the law of accomplice testimony is not reversible error.” Hall v. State, 937 S.W.2d 580, 586 (Tex.App.-Texarkana 1996, pet. ref'd), citing Solis, 792 S.W.2d at 98.

A person may not be convicted on the testimony of an accomplice unless there is other evidence tending to connect the defendant to the crime. Tex.Code Ceim. PROC. Ann. art. 38.14 (Vernon 1979). The corroboration is not sufficient if it merely shows that a crime was committed. Id. The test is whether, after excluding the accomplice’s testimony, there is other evidence of an incriminating character, which tends to connect the defendant with the commission of the offense. Burks v. State, 876 S.W.2d 877, 887 (Tex.Crim.App.1994); Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993); Reed v. State, 744 S.W.2d 112, 125 (Tex.Crim.App.1988).

A trial court must give the jury “a written charge distinctly setting forth the law applicable to the case — ” Tex.Code Ceim. Proc. Ann. art. 36.14 (Vernon Supp.2004-2005). The trial court should have instructed the jury that it could not convict Hall of possession of a controlled substance unless there was evidence other than Richardson’s testimony which tended to connect Hall with the offense of possession of the 1.97 kilograms of cocaine in the trunk of the car.

b. Harm

However, in this case, Hall did not object to the failure to give an accomplice witness instruction, and under Almanza is required to prove that the failure to properly instruct the jury caused him “egregious harm.” The Texas Court of Criminal Appeals has stated that the accomplice witness instruction is given to inform the jury that it cannot use the accomplice witness testimony unless there is also some nonaccomplice evidence connecting the defendant to the offense. Herron v. State, 86 S.W.3d 621, 631-32 (Tex.Crim.App.2002). Nonaccomplice evidence can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose of the instruction. Id. at 632. A harmless error analysis for the omission of the accomplice witness instruction should be flexible, taking into account the existence and the strength of any nonac-complice evidence and the applicable standard of harm. Id. Under the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating (nonaccompl-ice) evidence is “so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.” Id., citing Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App.1991). We point out that this case is not one wherein a proper accomplice witness instruction was given and raises a question on appeal as to whether the corroborating evidence tended to connect the crime to the defendant. In that instance—the jury having been properly instructed that the accomplice witness testimony must be corroborated—great deference should be given to its determination that such corroborating evidence existed.

Here, the jury had no such instruction and was authorized, by the jury charge, to convict Hall with no corroborating evidence. The combination of the omission of a proper accomplice witness rule jury instruction and extremely weak evidence corroborating the accomplice may result in a significantly less persuasive case for conviction. See Saunders, 817 S.W.2d at 692.

To determine the sufficiency of the corroboration, whether an objection was made, we eliminate the testimony of the accomplice witness and examine the testimony of the other witnesses. See Taylor v. State, 7 S.W.3d 732, 737 (Tex.App.-Houston [14th Dist.] 1999, no pet.). In determining the strength of the particular item of nonaccomplice evidence, we must examine (1) its reliability or believability, and (2) the strength of its tendency to connect the defendant to the crime. Herron, 86 S.W.3d at 632. We consider the nonaccomplice testimony to be reliable. The important issue is the strength of the evidence in its tendency to connect the defendant to the crime.

We believe the nonaccomplice testimony provides a weak inference that Hall was in possession of the drugs found in the cooler in the trunk of the car. The mere presence of a defendant at the scene of the crime is insufficient to corroborate accomplice witness testimony. Torres v. State, 137 S.W.3d 191, 196 (Tex.App.-Houston [1st Dist.] 2004, no pet.). The State relies on Hall’s conduct at the scene, namely that Hall failed to make eye contact with Trooper Hollingsworth, Hall was slouched in the passenger’s seat of the car, and he “lied” to Hollingsworth, saying he had never been arrested. However, in the videotape of the interaction between Hollingsworth and Hall, Hall almost immediately corrected himself and admitted having been arrested for “possession” of a “little ’ol joint,” which we take to mean a misdemeanor arrest for possession of marihuana. Admittedly, this is significantly less noteworthy than Hall’s two felony convictions for possession of a controlled substance. However, we find Hall’s conduct has a weak tendency to connect him with the possession of cocaine found in the rental car’s trunk.

Likewise, the fact that Hall refused to make eye contact with Hollingsworth and slouched in his seat is extremely weak in its tendency to connect him with the offense. It is true that “other suspicious circumstances,” when coupled with the accused’s presence at the scene of the crime, may tend to connect an accused with an offense to such an extent as to corroborate an accomplice witness’ testimony. The evidence presents only a tenuous connection to Hall having possession of cocaine. He had no drugs or paraphernalia on his person, and he did not have large sums of cash. He was not driving the vehicle, did not control it, and had not rented it. The fact that he was traveling on an interstate highway leaving Dallas, Texas, is very weak, if any, support for the conclusion that he was in possession of drugs. The nonaccomplice witness testimony may raise some suspicion or question by a trained officer as to whether a crime is being committed, but it has a very weak tendency to link Hall to such a crime. The corroboration must do more than tend to prove that a crime was committed: corroborating evidence must tend to connect the particular person charged to the crime. Eliminating accomplice Richardson’s testimony, there is very little evidence which could adequately corroborate that witness’ testimony. This is not to say there was no evidence, outside of the accomplice witness, to support the conviction, but the State’s case rested substantially on the testimony of Richardson. The jury instruction was extremely important to the outcome of the case. Considering the weak nature of the nonaccomplice testimony to connect Hall to the crime and the importance of the accomplice witness’ testimony, we believe a correct jury charge explaining the accomplice witness rule would have made the State’s case much less persuasive. See Howard v. State, 972 S.W.2d 121, 128 (Tex.App.-Austin 1998, no pet.).

It is clear that Hall was prejudiced by the failure to instruct the jury on the accomplice witness rule. As stated above, it was clearly error for the trial court not to instruct the jury on the law relevant to the case at bar. Hall’s defense at trial was that he had not known about the drugs in the trunk and that Richardson had care, custody, and control over the rental car and its contents, specifically the contents in the trunk. By failing to properly instruct the jury that Richardson’s testimony must be corroborated, Hall’s defensive theory was vitally affected and egregious harm resulted. See Almanza, 686 S.W.2d at 172.

We find that, under the facts of this case, the trial court’s error in failing to instruct the jury on the law applicable to the case prejudiced Hall’s right to a fair trial and resulted in egregious harm.

3. Sufficiency of Evidence Corroborating Accomplice Witness Testimony

Hall also complains there was insufficient evidence to corroborate the accomplice witness, Richardson’s, testimony. We have discussed most of the elements of this claim already. As stated above, we find that, had a correct jury charge been given, there is legally sufficient evidence for a rational jury to find all of the elements of this crime beyond a reasonable doubt. However, in light of the facts of this case, failure to give the jury instruction on accomplice witness corroboration amounted to egregious harm. We overrule this point of error.

4. Ineffective Assistance of Counsel

Finally, Hall appeals the effectiveness of his trial counsel. When ineffective assistance is raised on direct appeal, appellate counsel and the court must proceed on a trial record not developed for the object of litigating or preserving the claim, and thus it is often incomplete or inadequate for this purpose. Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App.2003). Some claims may be disposed of on direct appeal where “trial counsel’s ineffectiveness is so apparent from the record.” Id. at 507, citing Massaro v. United States, 538 U.S. 500, 508, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). After careful analysis, and cognizant of the Texas Court of Criminal Appeals’ cautious eye toward such claims made on direct appeal, we nonetheless find this to be a case where counsel’s errors have undermined confidence in the trial’s outcome.

The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986). To prevail on a claim of ineffective assistance, an appellant must, by a preponderance of the evidence, prove: (1) trial counsel’s performance fell below an objective standard of reasonableness, and (2) counsel’s deficient representation prejudiced appellant’s defense. Strickland, 466 U.S. at 688, 104 S.Ct. 2052; Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002); Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App.1999). To meet this burden, an appellant must show that the attorney’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney’s deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). In other words, the appellant must prove counsel’s representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686, 104 S.Ct. 2052 . If, however, “there is at least the possibility that the conduct could have been legitimate trial strategy,” then we must “defer to counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal.” Murphy v. State, 112 S.W.3d 592, 601 (Tex.Crim.App.2003).

Our review of counsel’s representation is highly deferential, and we indulge a strong presumption that counsel’s conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Tong, 25 S.W.3d at 712. An appellate court should not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex.Crim.App.1979). That another attorney, including appellant’s counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Hamer v. State, 997 S.W.2d 695, 704 (Tex.App.-Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).

a. Failure to Request Instruction on Accomplice Witness Testimony

Counsel did not request a jury instruction that the accomplice witness testimony must be corroborated. The failure of counsel to request an accomplice witness instruction when facts warrant such an instruction may constitute deficient performance. Henson v. State, 915 S.W.2d 186, 197 (Tex.App.-Corpus Christi 1996, no pet.), citing Ex parte Zepeda, 819 S.W.2d 874, 877 (Tex.Crim.App.1991); see Hernandez v. State, 907 S.W.2d 654, 660 (Tex.App.-Corpus Christi 1995, pet. filed) (Hinojosa, J., dissenting). We have previously discussed the weak nature of the evidence corroborating the testimony of Richardson. In such instance, it is even more crucial that a jury be properly instructed on this issue. Here, the jury was authorized to convict Hall without any corroborating evidence, which relieved the State from proving the portion of its case that would have been the most difficult to prove. Under the facts of this case, which have been fully discussed previously, we find the failure to request a proper accomplice witness jury instruction to be deficient performance by defense counsel.

b. Failure to Object to Evidence of Unadjudicated Offenses

Hall points to several other instances of his trial counsel’s conduct that support a finding of ineffectiveness. Chief among these is counsel’s failure to object to the State’s references to Hall’s arrests for unadjudicated offenses or to request a limiting instruction be given to the jury for the extraneous arrests. During the guilt/innocence phase of the trial, while cross-examining Hall, the State was allowed to ask him how many times he had been arrested. Hall stated, “[t]wice plus this one be three.” Then the following interchange occurred:

Q [Prosecutor] Okay. In 1992 there in Little Rock, Arkansas, you were arrested for credit card fraud, weren’t you?
A [Hall] No, sir.
Q In 1994 you were arrested for aggravated assault, engaging in violent criminal activity, unlawfully discharging of a firearm from a vehicle, weren’t you?
A I wasn’t convicted of it.
Q I’m sorry?
A I wasn’t convicted of that.
Q .... Do you understand my question? Have you been arrested in 1994 for aggravated assault? Yes or no?
A Yes.
Q Were you arrested for unlawfully discharging a firearm from a vehicle? Yes or no?
Drive-by shooting is what that’s commonly called, right? Right?
A I guess.
Q Engaging in violent criminal activity. That would [be] gang-banging, right, Mr. Hall? That’s what you’d call it on the street, wouldn’t you, Mr. Hall?
A I have no recollection of that, sir.

No evidence was offered that Hall had been convicted of credit card abuse, aggravated assault, engaging in violent criminal activity, or unlawfully discharging a firearm from a vehicle. Hall’s trial counsel never objected, and the State continued to question Hall, referring to the unadjudicat-ed offenses as “gang-banging” and “drive-by shooting.” Specifically, the State mentioned Hall’s alleged history of “gang-banging” at least five times in the span of six pages of cross-examination. This conduct was alleged to have happened about 1992 or 1994; Hall once said he was in the tenth grade when it happened, later in the twelfth. The State next questioned Hall about his felony convictions in March 1996 for delivery of a controlled substance. Later, the State attempted to show Hall a copy of a charging instrument from the (unproved) charges of aggravated assault, engaging in violent criminal activity, and unlawfully discharging a firearm from a vehicle. A short, unrecorded bench conference was held, and the State ceased this line of questioning and passed the witness.

Hall’s felony convictions were admissible when he took the stand. See Tex.R. Evid. 609. The trial court and Hall’s trial counsel warned Hall that his prior convictions could be admitted if he testified. Of a different cloth, though, is the introduction of alleged prior bad acts by Hall as many as eleven years before the instant trial. If extraneous offense evidence is not relevant apart from supporting inference of character conformity, it is inadmissible. Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App.1990) (op. on reh’g). We can find no basis for the admission of the unadjudicated offenses of credit card abuse, aggravated assault, engaging in violent criminal activity, or unlawfully discharging a firearm from a vehicle. There was no showing that Hall was ever found guilty of any of these offenses, and there was no evidence offered to show beyond a reasonable doubt Hall committed these offenses. Evidence of other “crimes, wrongs or acts” may be admissible if it has relevance apart from its tendency to prove the character of a person in order to show that he or she acted in conformity therewith. Tex.R. Evid. 404(b). A party may introduce such evidence where it logically serves to make more or less probable an elemental fact or an evidentiary fact that inferentially leads to an elemental fact. Bishop v. State, 869 S.W.2d 342, 346 (Tex.Crim.App.1993); Montgomery, 810 S.W.2d at 387-88. The extraneous offenses introduced by the State had nothing to do with the offense charged in this case. They were clearly objectionable and inadmissible. As they had no probative value regarding the charged offense, they were prejudicial and, on proper objection, should not have been admitted.

The question is whether failure to object to these alleged bad acts constitutes ineffective assistance of counsel. Extraneous offenses are inherently prejudicial, and when counsel fails to object to numerous extraneous and prejudicial matters, counsel is ineffective. Brown v. State, 974 S.W.2d 289, 293 (Tex.App.-San Antonio 1998, pet. ref'd), citing Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1983); Cude v. State, 588 S.W.2d 895 (Tex.Crim.App.1979); Wenzy v. State, 855 S.W.2d 52, 58 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd). There was no showing of how charges of credit card fraud, aggravated assault, engaging in violent criminal activity, and unlawfully discharging a firearm from a vehicle would have been admissible or relevant to Hall’s charged crime of possession of more than 400 grams of cocaine. As there was no possible basis for the admission of previous bad acts by Hall (of which he had not been convicted), trial counsel was deficient in failing to object. Cf. Ortiz v. State, 93 S.W.3d 79, 93 (Tex.Crim.App.2002), cert. denied, 538 U.S. 998, 123 S.Ct. 1901, 155 L.Ed.2d 824 (2003) (to base a claim of ineffective assistance on counsel’s failure to object to admission of evidence, claimant must show the evidence was not admissible; defendant’s membership in a prison gang admissible to prove access to heroin and rebut defense’s impeachment evidence).

c. Failure to Object to State’s Comment on Post-Arrest Silence

Hall claims trial counsel was ineffective for failing to object to comments of the State during opening and closing arguments. The State said that, after being arrested, Hall “chose not to” give a statement or explanation to the officer. After Hollingsworth received consent from Richardson to search the vehicle, he can be heard going through the ice in the cooler. He then placed Hall, then Richardson, under arrest, read them their Miranda rights separately, and also separately asked each to whom the cooler belonged and what was in the cooler.

As seen on the videotape exhibit of the stop, Hall had clearly been arrested and read his Miranda rights. His comments to the effect of “put me in the car” and “I’m ready to go,” together with a statement that he did not wish to speak to Hollingsworth further without consulting a lawyer, clearly indicate Hall’s intent to avail himself of his right to remain silent. The Fifth Amendment to the United States Constitution, protects post-arrest silence after Miranda warnings have been given, and the Texas Constitution protects a defendant’s post-arrest silence even before such warnings have been administered. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App.2004), citing Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982); Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (that the Fifth Amendment to the United States Constitution protects post-arrest silence after Miranda warnings are given); Sanchez v. State, 707 S.W.2d 575, 582 (Tex.Crim.App.1986) (that the Texas Constitution protects a defendant’s post-arrest silence even before Miranda warnings have been given). The State referred to Hall’s silence in the opening statement and closing argument. The State’s comments were objectionable, and had Hall’s trial counsel made a timely objection, the trial court would have been obligated to sustain such objections.

d. Do These Errors Amount to Ineffective Assistance?

We have identified three discernible deficiencies on the part of trial counsel. Although we regard trial counsel’s performance with deference and consider the totality of his representation, a full inquiry into the strategy or tactics of counsel should be made only if, from all appearances after trial, there is no plausible basis in strategy or tactics for counsel’s actions. See Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981); Ex parte Burns, 601 S.W.2d 370, 372 (Tex.Crim.App.1980); Stenson v. State, 695 S.W.2d 569, 571 (Tex.App.-Dallas 1984, no pet.).

We are well aware of the difficulties in evaluating trial counsel’s competency on direct appeal, and generally such claims are better pursued in the arena of habeas corpus. We cannot envision a reason for counsel’s failure to request an instruction on accomplice witness testimony, for allowing the State to question Hall about unad-judicated offenses, or for failing to object to comments by the State about Hall’s post-arrest silence. We next consider whether, but for these deficiencies, there is a reasonable probability that the result of the trial would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Hernandez, 907 S.W.2d at 660 (Hinojosa, J., dissenting).

The Strickland prejudice prong requires the defendant to show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine the court’s confidence in the outcome. Id. When addressing this second step of Strickland, the reviewing court should examine counsel’s errors not as isolated incidents, but in the context of the overall record. Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App.1986).

Even on direct appeal, without any record of Hall’s trial counsel’s reasons or strategies, we conclude there could be no sound basis for certain aspects of his representation. Failing to object to the omission of an accomplice witness instruction allowed the jury to convict without any corroborating evidence. The facts of this case, particularly, demanded that a jury have the proper instruction requiring corroboration of the accomplice witness testimony. Allowing the State to cross-examine Hall, without objection, about previous charges and arrests, not clearly related or relevant to the instant crime, and refer to the charges as “drive-by shooting” and “gang-banging” and using them in jury argument was extremely and unfairly prejudicial. Commenting on Hall’s failure to offer an explanation of the drugs in the trunk, after Hall had received his Miranda warnings and told Hollingsworth he did not want to continue the interview, was likewise prejudicial error. After considering the combined effects of these failures by counsel, we find counsel’s deficient performance prejudiced Hall’s defense and so undermined the trial process that the trial cannot be relied on as having produced a just result. We find there is a reasonable probability that, but for counsel’s deficiencies during trial, the result would have been different.

We reverse the judgment and remand this case to the trial court for a new trial.

OPINION ON MOTION FOR REHEARING

The State asserts in its motion for rehearing that it is “well settled that evidence of past bad conduct is admissible against the accused if the Defendant leaves a false impression with the jury regarding the extent of his past troubles with the law.” See Prescott v. State, 744 S.W.2d 128, 131 (Tex.Crim.App.1988). Relying on that accurate statement of law, the State argues that the cross-examination of Hall regarding his prior unadjudicated arrests was proper and therefore failure of counsel to object to such evidence was sound strategy. We disagree.

The rationale for the State’s argument is that, at the time of his arrest, Hall gave statements to the arresting officer minimizing his prior arrest record. The videotape of the arrest was introduced by the State without objection. Generally, a defendant may be impeached only with conduct resulting in a felony conviction or crime of moral turpitude. Tex.R. Evid. 609(a). An exception to that general rule arises when a witness leaves a false impression as to the extent of either his or her prior (1) arrests, (2) convictions, (3) charges, or (4) “trouble” with the police. Prescott, 744 S.W.2d at 130-31. “The exception does not apply when the false impression is created by the State’s cross-examination of the defendant.” Shipman v. State, 604 S.W.2d 182, 184-85 (Tex.Crim.App. [Panel Op.] 1980). A critical element of such a situation is that the defendant voluntarily testifies about the collateral matter, usually his or her trouble or lack thereof with law enforcement authorities.

[W]hen a defendant voluntarily testifies as to his prior criminal record without any prompting or maneuvering on the part of the State’s attorney and in so doing he leaves a false impression with the jury, the State is allowed to correct that false impression by introducing evidence of the defendant’s prior criminal record.

Martinez v. State, 728 S.W.2d 360, 362 (Tex.Crim.App.1987).

Hall did not create a false impression by any of his testimony on direct examination or by any volunteered statement on cross-examination. The State argues that Hall created a false impression by his answers to questions asked of him at the time of his arrest, which the State introduced. The State then cross-examined Hall concerning his prior unadjudicated arrests, referring to them as “drive-by shooting” and “gang-banging.” The Texas Court of Criminal Appeals has made it clear that impeachment to correct a false impression can only be done when the defendant has voluntarily testified to the collateral matter. See Lopez v. State, 928 S.W.2d 528, 531 (Tex.Crim.App.1996). The State cannot open the door to matters not otherwise admissible and prove the collateral events, unless the events themselves were independently admissible. Alexander v. State, 740 S.W.2d 749, 764 (Tex.Crim.App.1987).

The State further argues not only that this evidence was proper, but also that trial counsel acted appropriately in failing to object to the State’s cross-examination concerning the unadjudicated arrests. To the contrary, we believe that this sequence of events further emphasizes the deficiency in trial counsel’s performance. Counsel failed to object to that part of the videotape referring to prior arrests for unadju-dicated offenses. There was no sound trial strategy for failing to object to such evidence when it was originally presented by the State’s videotape or in failing to object to the State’s cross-examination on the unadjudicated arrests.

We overrule the State’s motion for rehearing.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The State, in its brief, does not address the admission of Hall's prior arrests or unadjudi-cated offenses.

      . Hall also complains of other inadequacies in trial counsel’s representation, including not objecting to certain comments of the State during opening and closing arguments, bolstering codefendant Richardson’s testimony, and inserting the prosecutor's personal opinions into the arguments. We will not address those, as we find the issues addressed to be dispositive.

      . See Aldrich v. State, 104 S.W.3d 890, 896 (Tex.Crim.App.2003) (the proper procedure for raising an ineffective assistance claim is therefore almost always habeas corpus); Ryan v. State, 937 S.W.2d 93, 98 (Tex.App.Beaumont 1996, pet. ref’d) (“When the record contains no evidence of the reasoning behind trial counsel's action, we cannot conclude counsel’s performance was deficient.”).


author: Justice ROSS.

text:
    Dennis RITTENHOUSE, Appellant, v. SABINE VALLEY CENTER FOUNDATION, INC., d/b/a Oak Haven Recovery Center, et al., Appellees.
    No. 06-04-00064-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Jan. 20, 2005.
    Decided Feb. 3, 2005.

      Danna K. Mayhall, Danna Kirk Mayhall, PC, Athens, for appellant.
    Douglas W. Black, Carvan E. Adkins, Tim G. Sralla, Taylor, Olson, Adkins, Sral-la & Elam, LLP, Fort Worth, for Sabine Valley Center Foundation, Inc., d/b/a Oak Haven Recovery Center.
    Ken W. Good, Kent, Good & Anderson, PC, Tyler, for Isidore J. Lamothe, Jr., M.D.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Dennis Rittenhouse appeals the dismissal of his medical malpractice suit against Sabine Valley Center Foundation, Inc., d/b/a Oak Haven Recovery Center, Dr. Isidore Joseph Lamothe, Jr., Dr. Shahrokh Safarimary Aki, Millie Brown, Philip Glover, Laura Henderson, W. Robinson, Jim Louvier, Johnny Oliver, Jr., Twilla Simmons, and Claudia Gonzales due to failure to file an expert report pursuant to Article 4590(f). Rittenhouse’s attorney withdrew shortly before the expert report was due under the statute. Although Rit-tenhouse’s prior attorney obtained approximately a thirty-day extension with most of the parties, Rittenhouse did not file a report by the extended deadline.

Rittenhouse alleges in his first point of error the trial court abused its discretion by dismissing his claim when he had timely filed a motion for extension. In his second point of error, Rittenhouse contends the motion to withdraw was defective because it failed to state the date on which the expert report was due; therefore, the trial court violated Rittenhouse’s due process rights by granting the motion to withdraw. We first address the unassigned error concerning the lack of a reporter’s record. Because the record contains no objection to the failure to record the proceedings, Rittenhouse has not preserved error for our review. Next, we address whether Rittenhouse has shown reversible error due to the denial of the motion for extension. Because there is no reporter’s record, we must presume the trial court reached the correct decision in finding no accident or mistake. Therefore, the trial court did not err in dismissing the suit. Last, we address whether Rittenhouse has shown that his due process rights were violated. Because this issue was not raised before the trial court, any error was waived. We affirm the judgment of the trial court.

Factual Background

On August 15, 2003, Rittenhouse sued Oak Haven for improperly removing him from Xanax, which removal allegedly caused him to become delusional and re-suited in injuries and damages. On February 6, 2004, Rittenhouse’s counsel filed a motion to withdraw as Rittenhouse’s attorney and sent a copy of the motion to Rittenhouse. Although the motion to withdraw was filed five days before the expert report was due, Rittenhouse’s counsel did obtain an agreed extension of the deadline with most of the parties to file the expert report. On February 9, 2004, the trial court granted the motion to withdraw. On March 15, 2004, Oak Haven and Dr. Lamothe filed motions to dismiss for failure to file an expert report. On March 18, 2004, Rittenhouse’s new counsel filed a notice of appearance and a motion to extend the deadline for submission of the expert report. On March 22, 2004, an unsigned expert report dated March 17, 2004, was filed, and the trial court held a hearing concerning the motions for extension and for dismissal. Rittenhouse alleges in his brief that the proceedings were “not electronically recorded.”

In the record on appeal, there is no reporter’s record of the hearing. On April 1, 2004, the trial court denied the motion for extension. The trial court granted both motions to dismiss April 2, 2004.

Discussion

As a medical malpractice action, this appeal is governed by the Medical Liability and Insurance Improvement Act as codified in former Section 4590i of the Texas Revised Civil Statutes. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985-87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 884 (hereafter cited as 1995 Tex. Gen. Laws 985-87). Section 13.01(d) of the Act provides:

Not later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period ..., the claimant shall, for each physician or health care provider against whom a claim is asserted:
(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or
(2) voluntarily nonsuit the action against the physician or health care provider.

1995 Tex. Gen. Laws 985-87.

The trial court denied Rittenhouse’s motion to extend and dismissed the lawsuit. Rittenhouse has failed to show reversible error on appeal because 1) the error concerning the lack of a reporter’s record is not preserved; 2) we must presume the trial court’s conclusion, that Rittenhouse did not prove that an accident or mistake prevented the timely filing of an expert report, was correct since there is no reporter’s record; and 3) in the absence of a reporter’s record, any error in granting the motion to withdraw has not been shown to have resulted in harm.

The Error in Failing to Record Proceedings is not Preserved

Although not raised by Rittenhouse, we note the court reporter apparently failed to report the hearing held on the motions for extension and to dismiss. Under the Rules of Appellate Procedure, a court reporter must make a full record of all proceedings unless excused by agreement of the parties. See TexRApp. P. 13.1. However, any error in this failure was not preserved for appellate review.

Before the 1997 amendment to the Rules of Appellate Procedure, a record was only required when requested. Rule 13.1(a) replaced Rule of Appellate Procedure 11(a)(1) and (2), which required the court reporter to record proceedings only when requested by the trial court or the attorney for any party. Compare Tex. R.App. P. 13.1(a) with Tex.R.App. P. 11(a), 49 Tex. B.J. 561 (Tex. and Tex.Crim.App.1986, amended 1997). Rule of Appellate Procedure 13.1(a) provides “[t]he official court reporter or court recorder must: (a) unless excused by agreement of the parties, attend court sessions and make a full record of the proceedings.” Tex.R.App. P. 13.1(a).

We note there is disagreement among the courts of appeals as to the interpretation and effect of Rule 13.1(a) of the Rules of Appellate Procedure. This Court and the Corpus Christi Court of Appeals have held the court reporter has a duty to record all proceedings unless a party expressly waives his or her right to have a court reporter record the proceedings. Brossette v. State, 99 S.W.3d 277, 284 (Tex.App.-Texarkana 2003, pet. dism’d, untimely filed); Palmer v. Espey Huston & Assocs., 84 S.W.3d 345, 351 (Tex.App.Corpus Christi 2002, pet. denied); Tanguma v. State, 47 S.W.3d 663, 670 (Tex.App.-Corpus Christi 2001, pet. ref'd), overruled in part, Valle v. State, 109 S.W.3d 500, 508-09 (Tex.Crim.App.2003) (an objection is still required to preserve error for appellate review). In contrast, the First District Court of Appeals found that Rule 13.1(a) was in conflict with Texas Government Code Section 52.046(a) and held that Section 52.046(a) governs the recording of court reporters. As we held in Brossette, the court reporter must record all proceedings unless the parties expressly waive their right to have a court reporter record the proceedings. See Brossette, 99 S.W.3d at 284. Unless the parties expressly waive their right to a record, the court reporter’s failure to transcribe the proceedings violates Rule 13.1(a) and constitutes error.

Any error here, however, was not preserved for appellate review. The record contains no indication that any objection was made to the failure of the court reporter to record the proceedings. Rule 33 provides: “(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion_” Tex.R.App. P. 33.1(a). In Valle, the Texas Court of Criminal Appeals held that an objection is still required to preserve the failure to record the proceedings for appellate review. Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App.2003); Brossette, 99 S.W.3d at 284; see Williams v. State, 937 S.W.2d 479, 487 (Tex.Crim.App.1996) (former Rule 11); see also Morin-Spatz v. Spatz, No. 05-00-01580-CV, 2002 WL 576513, at *8 (Tex.App.-Dallas Apr. 18, 2002, no pet.) (not designated for publication). We hold that Rittenhouse did not preserve the error for appellate review.

The Failure to Grant an Extension was not Reversible Error

Rittenhouse contends the trial court erred in dismissing his suit when he had timely filed a motion for extension. He contends that his original trial counsel never adequately informed him of the deadline and that the failure to file the report was due to confusion surrounding the substitution of counsel. According to Rittenhouse, the motion was timely filed as a motion under Section 13.01(g) and the trial court was required to grant a thirty-day extension. Because there is no record of the hearing on the motion, or other evidence of accident or mistake, we overrule Ritten-house’s first point of error.

Article 4590i, Section 13.01(d) requires a plaintiff asserting a claim against a healthcare provider or physician to submit an expert report, along with the expert’s curriculum vitae, no later than the 180th day after filing suit. The Act requires an expert report to provide “a fair summary of the expert’s opinions ... regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01, 1995 Tex. Gen. Laws 985-87.

If an expert report is not furnished to each defendant physician or healthcare provider within 180 days and no extensions are granted, the trial court must dismiss the suit with prejudice. Dismissal under Article 4590i, Section 13.01(e) is treated as a sanction and is reviewed for an abuse of discretion. Russ v. Titus Hosp. Dist, 128 S.W.3d 332, 339 (Tex.App.-Texarkana 2004, pets, denied [2 pets.]); see Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). Article 4590i, § 13.01(e) states:

If a claimant has failed, for any defendant physician or health care provider, to comply with Subsection (d) of this section within the time required, the court shall, on the motion of the affected physician or health care provider, enter an order awarding as sanctions against the claimant or the claimant’s attorney:
(1) the reasonable attorney’s fees and costs of court incurred by that defendant;
(2) the forfeiture of any cost bond respecting the claimant’s claim against that defendant to the extent necessary to pay the award; and
(3) the dismissal of the action of the claimant against that defendant with prejudice to the claim’s refiling.

1995 Tex. Gen. Laws 985-87.

The question before this Court is whether the trial court erred in not granting Rittenhouse’s motion for extension. We review the trial court’s ruling on a motion for extension of time to file an expert report under an abuse of discretion standard. Russ, 128 S.W.3d at 336. “However, to the extent resolution of this issue requires interpretation of the statute itself, we review under a de novo standard.” Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.-Houston [14th Dist.] 2004, no pet.). An abuse of discretion occurs when a trial court acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Russ, 128 S.W.3d at 336; see Moore v. Sutherland, 107 S.W.3d 786, 789 (Tex.App.-Texarkana 2003, pet. denied). A trial court will be deemed to have acted arbitrarily and unreasonably if it could have only reached one decision, yet reached a different decision. Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex.App.-Texarkana 2003, no pet.). “[A] clear failure by the trial court to ... apply the law correctly will constitute an abuse of discretion, -” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

Article 4590i, Section 13.01 provides two methods by which a claimant may receive an extension to the 180-day deadline. Under Section 13.01(f), “[t]he court may, for good cause shown after motion and hearing, extend any time period specified in Subsection (d) of this section for an additional 30 days. Only one extension may be granted under this subsection.” Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01, 1995 Tex. Gen. Laws 985-87. Section 13.01(f) has been interpreted by this Court to be discretionary rather than mandatory. Russ, 128 S.W.3d at 336; Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 402 (TexApp.-Texarkana 1999, pet. denied). Under the second method, found in Section 13.01(g), if “the court finds that the failure of the claimant or the claimant’s attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection.” Section 13.01(g) has been interpreted to be mandatory on a finding that the failure was a result of accident or mistake. Russ, 128 S.W.3d at 336; Moore, 107 S.W.3d at 789; Finley v. Steenkamp, 19 S.W.3d 533, 539 (Tex.App.-Fort Worth 2000, no pet.). An extension under Section 13.01(g) can be obtained for either failure to file a report or for an inadequate report, provided the failure was not intentional or the result of conscious indifference. Russ, 128 S.W.3d at 336; In re Morris, 93 S.W.3d 388, 391 (Tex.App.-Amarillo 2002, orig. proceeding).

The motion for extension in the instant case does not clearly indicate the subsection under which an extension was being sought. The motion does recite, though, that good cause exists for the extension and alleges some facts indicating confusion caused by the withdrawal of counsel. The motion states in part:

Plaintiff states that good cause exists to extend said submission time of said report in that Plaintiff was previously represented by Ray Brooks. Mr. Brooks did not notify Plaintiff that he had not secured an expert report until mid-February, 2004. Mr. Brooks filed a motion to withdraw from representing Plaintiff on or about February 6, 2004. Plaintiff immediately began to work on finding an expert who could complete the report and will be able to file the report within the next ten days. Plaintiff would plead that once he began [sic] aware of the insufficiency of his claim, he began to secure substitute counsel and the expert report.

Rittenhouse argues on appeal it is uncon-troverted that the failure to file the report was not intentional or the result of conscious indifference, but rather the result of accident or mistake.

A motion should be construed by its substance to determine the relief sought, not merely by its form or caption. Russ, 128 S.W.3d at 338; see Surgitek v. Abel, 997 S.W.2d 598, 601 (Tex.1999). While the motion for extension quotes the standard for a motion under Section 13.01(f), i.e., “good cause,” the motion also alleges facts sufficient to constitute an accident or mistake. The motion alleges that the confusion surrounding the withdrawal of counsel resulted in the failure to file the expert report. While the motion does not quote the standards of Section 13.01(g), the facts alleged in the motion are sufficient to indicate an accident or mistake similar to the situation in Russ. The motion is sufficient to request an extension under Section 13.01(g).

The motion was timely filed under Section 13.01(g). A motion under Section 13.01(g) “shall be considered timely if it is filed before any hearing oii a motion by a defendant under Subsection (e) of this section.” 1995 Tex. Gen. Laws 985-87. Because the motion for extension was filed several days before the hearing, the motion to extend was timely filed under Section 13.01(g). See Russ, 128 S.W.3d at 337. The remaining question is whether Rittenhouse has shown that the trial court committed reversible error in denying the motion.

An extension under Section 13.01(g) requires a finding that the failure was not the result of conscious indifference or intentional, but rather the result of a mistake or accident. Id. at 336. Although the extension is mandatory once it is established that the failure was not due to intentional or conscious indifference but rather to an accident or mistake, Ritten-house has failed to present some evidence that the failure to furnish the report was due to an accident or mistake. Ritten-house had the burden to show some evidence of accident or mistake to demonstrate he did not act intentionally or with conscious indifference. Tesch v. Stroud, 28 S.W.3d 782, 787 (Tex.App.-Corpus Christi 2000, pet. denied); Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 732 (Tex.App.-San Antonio 1999, no pet.). It is then the defendant’s burden to controvert the plaintiff’s evidence of mistake, or else an issue of mistake exists and an extension of time must be granted. Tesch, 28 S.W.3d at 787; Finley, 19 S.W.3d at 539; Schorp, 5 S.W.3d at 732. Because there is no reporter’s record on appeal and no affidavits were filed in support of the motion, there is no evidence that the failure to file the expert report was due to an accident or mistake.

We note that we held in Russ that an attorney’s unsworn statements at a hearing could conclusively establish that the failure to file a report was due to an accident or mistake and not intentional or the result of conscious indifference. However, that conclusion was based on the opponent’s failure to object to the unsworn statements during the hearing on the issue. The general rule is that an attorney’s statements must be under oath to constitute evidence. Russ, 128 S.W.3d at 338; see Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997); Presbyterian Healthcare Sys. v. Afangideh, 993 S.W.2d 319, 323 (Tex.App.-Eastland 1999, pet. denied). However, such error is waived by the failure to object when the opponent knew or should have known an objection was required. Russ, 128 S.W.3d at 338; Moore, 107 S.W.3d at 793; Knie v. Piskun, 23 S.W.3d 455, 463 (Tex.App.-Amarillo 2000, pet. denied). In Russ, we held that the “eviden-tiary nature of the statements was obvious, particularly after the attorney had offered to take the witness stand,” and concluded “the failure of either defense counsel to object waived the requirement that the statement be made under oath.” Russ, 128 S.W.3d at 338. This case is distinguishable from Russ, because there is no reporter’s record of the hearing. There was a reporter’s record in Russ. Without a reporter’s record of the hearing, there is no evidence of the reason for the failure to file the expert report.

When a reporter’s record is necessary for appellate review and the appellant fails to file the reporter’s record, a presumption arises that the reporter’s record would support the trial court’s judgment. We note that Rittenhouse alleges facts on appeal sufficient to show that the failure to file was not intentional or due to conscious indifference, but rather due to an accident or mistake. Rittenhouse alleges that the confusion surrounding the substitution of counsel resulted in the failure to file the report. “Generally, an accident or mistake is characterized by inadequate knowledge of the facts or an unexpected happening that precludes compliance.” Castellano v. Garza, 110 S.W.3d 70, 73 (Tex.App.-San Antonio 2003, no pet.). As we noted in Russ and Moore, the accident or mistake need not necessarily be a good excuse, provided the act or omission was, in fact, an accident or mistake. Russ, 128 S.W.3d at 338-39; Moore, 107 S.W.3d at 792. If the failure to file an expert report resulted from an accident or mistake, even negligence does not defeat a right to an extension. Russ, 128 S.W.3d at 339; see Moore, 107 S.W.3d at 792; Roberts, 988 S.W.2d at 403. Further, even some mistakes of law may negate a finding of intentional conduct or conscious indifference, entitling the claimant to an extension. Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 84 (Tex.1992). However, without a reporter’s record, we must presume the trial court was correct in finding that the failure in the instant case was not due to an accident or mistake.

Rittenhouse has not shown he was entitled to an extension under Section 13.01(g). Without evidence establishing an accident or mistake, we must presume the trial court’s decision was correct. Because no expert report was filed by the deadline and Rittenhouse has not shown he was entitled to an extension, dismissal was mandatory under the statute. Therefore, the trial court did not err in dismissing the suit with prejudice. We overrule Rittenhouse’s first point of error.

Rittenhouse’s Due Process Rights

According to Rittenhouse’s second point of error, the granting of Rittenhouse’s first attorney’s motion to withdraw violated Rit-tenhouse’s due process rights. While the record does not indicate when Rittenhouse retained his current counsel, the notice of appearance was not filed until after the deadline to file a report had passed. Rit-tenhouse argues that the failure to specify the date of the expert report deadline in the motion violated his right to due process.

An attorney may withdraw from representation of a client only if the attorney satisfies the requirements of Rule 10 of the Texas Rules of Civil Procedure. Rogers v. Clinton, 794 S.W.2d 9, 10 n. 1 (Tex.1990). Rule 10 provides that “the motion shall state: that a copy of the motion has been delivered to the party; that the party has been notified in writing of his right to object to the motion; whether the party consents to the motion; the party’s last known address and all pending settings and deadlines.” Tex.R. Crv. P. 10 (emphasis added). We note that the failure to specify any pending settings or deadlines may violate the client’s right to due process. Misium v. Misium, 902 S.W.2d 195, 197 (TexApp.-Eastland 1995, writ denied). While the motion did acknowledge there was a deadline, the motion did not provide a date for the deadline.

Even if the failure to specify the date of the deadline for the expert report violated Rittenhouse’s due process rights, the error, if any, was waived. Fundamental error is very limited in Texas jurisprudence. “Fundamental error survives today in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas.” Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982). Alleged error, including claims that an individual’s constitutional rights were violated, is waived if not asserted in the trial court. There is no indication in the record Ritten-house preserved error by objecting to the motion to withdraw or raised the issue of whether his due process rights were violated at the trial court level. Because error was waived, we overrule Rittenhouse’s second point of error.

Conclusion

Rittenhouse has failed to show reversible error on appeal. Any error concerning the lack of a reporter’s record was not preserved for appellate review. In the absence of a reporter’s record, we must presume the trial court was correct in concluding Rittenhouse did not prove that an accident or mistake prevented the timely filing of an expert report. Any violations of Rittenhouse’s due process rights were waived.

We affirm the judgment.

      . The appellees are referred to collectively as "Oak Haven” unless otherwise designated.

      . Xanax, which contains alprazolam, is used for the management of anxiety disorder. Physicians’ Desk Reference 2798 (58th ed. 2004). Rittenhouse had taken Xanax for approximately fifteen years to treat anxiety disorder.

      . The agreed extension extended the deadline until March 12, 2004. However, the record does not indicate Dr. Lamothe agreed to the extension. Further, the record on appeal does not indicate whether the extension, which was in writing, was filed with the trial court, as required under Rule 11. See Tex.R. Civ. P. 11.

      . Polasek v. State, 16 S.W.3d 82, 88-89 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Section 52.046 of the Government Code provides:
      (a) On request, an official court reporter shall:
      (1) attend all sessions of the court;
      (2) take full shorthand notes of oral testimony offered before the court, including objections made to the admissibility of evidence, court rulings and remarks on the objections, and exceptions to the rulings;
      (3) take full shorthand notes of closing arguments if requested to do so by the attorney of a party to the case, including objections to the arguments, court rulings and remarks on the objections, and exceptions to the rulings; ....
      Tex Gov't Code Ann. § 52.046 (Vernon 1998).

      . The record on appeal does not indicate whether the parties expressly waived their rights to have the proceedings recorded.

      . 1995 Tex. Gen. Laws 985-87. This Act, as amended, was recodified at Tex Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp.2004-2005) (effective September 1, 2003). This action was filed August 15, 2003, before the new Act’s September 1, 2003, effective date.

      . See Bryant v. United Shortline Inc. Assurance Servs., N.A., 972 S.W.2d 26, 31 (Tex.1998); Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); Harmon Truck Lines, Inc. v. Steele, 836 S.W.2d 262, 264 (Tex.App.-Texarkana 1992, writ dism’d). We also note there is no agreed record pursuant to Rule 34.2. See Tex.R.App. P. 34.2.

      . We note the Texas Supreme Court has held that not all mistakes of law are mistakes under the statute; specifically, "a purportedly mistaken belief that the report complied with the statute does not negate a finding of 'intentional or conscious indifference.’ ” Walker v. Gutierrez, 111 S.W.3d 56, 65 (Tex.2003).

      . The motion to withdraw simply specified that the expert report needed to be filed. The motion states "[t]he following settings and deadlines are pending in this matter: .... [pjlaintiff needs to file an expert report pursuant to 4590Í setting out the negligence of Defendants and damages caused by that negligence.” We believe the rule requires an attorney to inform the client of the date(s) of any pending setting or deadline. See 1 William V. Dorsaneo III, Texas Litigation Guide § 3.106 (2004).

      . Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.1993) (declining to consider due process and equal protection arguments). We note that the failure to object to a constitutional right not recognized at the time of trial does not waive the right on appeal when the claim was so novel that the basis of the claim was not reasonably available at the time of trial or the law was so well settled at the time that an objection would have been futile. Jones v.

        Martin K. Eby Constr. Co., 841 S.W.2d 426, 428 (Tex.App.-Dallas 1992, writ denied).


author: W.G. ARNOT, III, Chief Justice.

text:
    OSCAR M. TELFAIR, III, P.C., Appellant, v. Merita BRIDGES and Marvin Bridges, Appellees.
    No. 11-03-00195-CV.
    Court of Appeals of Texas, Eastland.
    Feb. 10, 2005.

      Oscar M. Telfair, III, Houston, pro se.

      James D. Evans, James D. Evans, III & Associates, Houston, for appellant.
    Melvin Houston, Melvin Houston & Associates, P.C., Houston, for appellees.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion and Order of Contempt

W.G. ARNOT, III, Chief Justice.

This appeal arises from a fee dispute between a law firm and its former clients. Appellant, Oscar M. Telfair, III, P.C., represented appellees, Merita Bridges and Marvin Bridges, in a suit concerning a defect in the foundation of appellees’ home. The law firm obtained a settlement on behalf of appellees in the amount of $86,000.00 to resolve the claim. The law firm alleged in the underlying action that it agreed to represent appellees in pursuing the defective foundation claim on the basis of an oral contingent fee contract. The law firm obtained a recovery against appellees in the amount of $25,638.00 for its services in pursuing the defective foundation claim under the theory of quantum meruit. The law firm also obtained a recovery for its attorney’s fees in the amount of $10,250.00 in prosecuting the underlying action to obtain the quantum meruit recovery.

Appellees asserted a counterclaim against the law firm regarding its representation of appellees in an unrelated personal injury claim. Appellees successfully alleged that the law firm misappropriated settlement funds obtained on their behalf in connection with the personal injury claim. See TEX. DISCIPLINARY R. PROF’L CONDUCT 1.14, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G app. A (Vernon 1998 & Supp.2004-2005) (TEX. STATE BAR R. art. X, § 9); Brown v. Commission for Lawyer Discipline, 980 S.W.2d 675 (Tex.App.-San Antonio 1998, no pet’n). The jury awarded appellees $2,457.50 on them misappropriation claim. The jury also determined the amount of appellees’ reasonable and necessary attorney’s fees to be $10,250.00. The trial court awarded $10,250.00 to appellees for their attorney’s fees based upon the jury’s determination of the amount of attorney’s fees.

On appeal, the law firm attacks the trial court’s award of appellees’ attorney’s fees. The law firm contends in its first issue that no legal basis existed for appellees to recover their attorney’s fees for either defending the law firm’s quantum meruit claim or prosecuting their misappropriation claim. We agree with the law firm’s contention in this regard. As set forth below, the judgment of the trial court is modified and, as modified, is affirmed.

As a general rule, attorney’s fees are not recoverable in Texas unless allowed by contract or by statute. Dallas Central Appraisal District v. Seven Investment Company, 835 S.W.2d 75, 77 (Tex.1992). Appellees contend that they are entitled to recover their attorney’s fees under an equitable exception to the general rule. They rely upon our opinion in Baja Energy, Inc. v. Ball, 669 S.W.2d 836 (Tex.App.-Eastland 1984, no writ), for this proposition. We recognized a recovery of attorney’s fees in Baja Energy based upon equitable grounds when a claimant is required to prosecute or defend litigation involving a third party as a consequence of the wrongful act of the defendant. Baja Energy, Inc. v. Ball, supra at 838-39. As we stated:

The exception applies when the wrongful act or contractual violation involves the claimant in litigation with third parties and forces the claimant to incur expenses to protect his interests. Such costs and expenses, including attorney’s fees, are treated as the legal consequence of the original wrongful act and are permitted to be recovered as damages.

Baja Energy, Inc. v. Ball, supra at 839.

The exception we recognized in Baja Energy is narrow. It only applies when a wrongful act requires the claimant to incur attorney’s fees in prior litigation involving a third party. See Lesikar v. Rappeport, 33 S.W.3d 282, 306 (Tex.App.-Texarkana 2000, pet’n den’d) (“attorney’s fees incurred in prior litigation with a third party are recoverable in a subsequent suit as actual damages”). The exception is inapplicable in the instant appeal because appellees are not seeking attorney’s fees which they incurred in prior litigation involving a third party. To the contrary, the attorney’s fees they seek are those incurred in the original litigation with the party alleged to have committed the wrongful act.

Appellees additionally contend that they are entitled to recover their attorney’s fees under TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (Vernon 1997). To recover attorney’s fees under this provision, a party must (1) prevail on a cause of action for which attorney’s fees are recoverable under the statute and (2) recover damages. Green International, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.1997). Appellees assert that their claim regarding the alleged misappropriation of settlement funds constituted a claim to recover on an oral contract. See Section 38.001. We disagree with this contention. The misappropriation claim is in the nature of a conversion cause of action. Attorney’s fees are not recoverable as either actual or exemplary damages on a conversion claim. Jay Filces and Associates v. Walton, 578 S.W.2d 885, 888 (Tex.Civ. App.-Amarillo 1979, writ refd n.r.e.). Furthermore, Section 38.001 does not permit appellees to recover their attorney’s fees for defending the law firm’s quantum meruit claim. Howard v. City ofKerrville, 75 S.W.3d 112, 119 (Tex.App.-San Antonio 2002, pet’n den’d). The law firm’s first issue is sustained.

The law firm’s second issue addresses a postjudgment order entered by the trial court on June 9, 2003, directing the law firm to return settlement funds to the registry of the trial court. During the pendency of the underlying lawsuit, the trial court entered an order requiring $45,000.00 of the $86,000.00 in settlement proceeds obtained in connection with the defective foundation claim to be deposited into the trial court’s registry. After the trial of the underlying suit and the entry of the judgment on May 9, 2003, the trial court entered an order on May 27, 2003, directing the trial court clerk to pay the law firm $39,987.25 from the court’s registry. The trial court entered a subsequent order on June 9, 2003, which directed the law firm to pay the amount of $39,987.25 back into the registry of the trial court by June 17, 2003.

The law firm contends on appeal that the trial court was without jurisdiction to enter the challenged order because it was allegedly entered after the law firm filed its notice of appeal. The law firm further asserts that the trial court erred by entering the order without notice to the law firm. Our resolution of the law firm’s first issue and the eventual issuance of the mandate in this appeal will effectively render the law firm’s second issue moot. Accordingly, we do not address the law firm’s second issue on the merits. However, the law firm’s compliance with the trial court’s order of June 9, 2003, is the subject of a contempt proceeding initiated in this court which remains pending.

Contempt Findings

Upon the law firm’s failure to comply with the trial court’s order of June 9, 2003, appellees filed a motion in this court seeking the enforcement of the trial court’s order. We granted the relief requested by appellees in our order of September 8, 2003, wherein we ordered the law firm to comply with the terms of the trial court’s order of June 9, 2003, by paying the amount of $39,987.25 into the registry of the trial court by September 19, 2003. We specifically advised the law firm that the failure to comply with our order of September 8, 2003, might result in the institution of contempt proceedings.

The law firm did not comply with our order of September 8, 2003, which required compliance with the trial court’s order of June 9, 2003. Instead, the law firm filed a motion for reconsideration. The law firm asserted in the motion for reconsideration that the trial court lacked jurisdiction to enter the order of June 9, 2003. The law firm argued that the filing of its notice of appeal on June 9, 2003, divested the trial court of jurisdiction to enter any further orders in the underlying cause. We overruled the law firm’s jurisdictional contention in a written order issued on October 2, 2003.

The law firm next filed a motion for rehearing with respect to our denial of the motion for reconsideration. We overruled the motion for rehearing in another written order issued on October 24, 2003. This order specifically directed the law firm to comply with the trial court’s order of June 9, 2003. This order further warned the law firm that we would entertain a motion for contempt if it did not comply with the terms of the trial court’s order of June 9, 2003, by November 7, 2003.

Accordingly, this court issued more than one written order directing the law firm to comply with the terms of the trial court’s order of June 9, 2003. We also specifically warned the law firm that its failure to comply with this court’s orders could possibly result in contempt proceedings brought against the law firm. However, the law firm did not comply with the orders of this court because the law firm did not deposit the amount of $39,987.25 into the registry, of the trial court.

We subsequently issued a “show cause” order on December 5, 2003, directing the law firm’s principal officer, Oscar M. Tel-fair, III, P.C., to personally appear before this court on January 15, 2004, and show cause why the law firm should not be held in contempt for failing to comply with the terms of this court’s orders. The show cause order specifically warned the law firm that it could be held in contempt for failing to abide by the terms of this court’s orders. The show cause order further warned the law firm that the possible punishment for contempt of court is a fine of not more than $500.00, confinement in jail for a term of not more than six months, or both such fine and confinement. See TEX. GOV’T CODE ANN. § 21.002(b) (Vernon 2004). ■

Prior to the “show cause” hearing conducted on January 15, 2004, the law firm deposited the sum of $13,500.00 into the registry of the trial court! The court proceeded with conducting the “show cause” hearing because the law firm had not fully complied with this court’s orders to deposit the amount of $39,987.25 into the registry of the trial court. The law firm appeared at the hearing through its attorney of record and its principal officer. These representatives advised the court at the hearing for the first time that the law firm did not have sufficient funds to pay the full amount of $39,987.25 into the registry of the court. The law firm did not offer any legitimate reason why this information was not previously provided to the court. This court took the issue of holding the law firm in contempt under advisement until the issuance of the opinion and judgment in this appeal.

We find that appellant, Oscar M. Telfair, III, P.C., has failed to comply with two written orders issued by this court on September 8, 2003, and October 24, 2003, directing it to pay the amount of $39,987.25 into the registry of the court pursuant to the trial court’s written order of June 9, 2003. We further find that appellant, Oscar M. Telfair, III, P.C., has failed to provide the court with a sufficient reason why it did not comply with this court’s written orders issued on September 8, 2003, and October, 24, 2003. As a result of appellant Oscar M. Telfair, III, P.C.’s dilatory conduct, both appellees and this court have been required to expend time and resources on this matter which were unnecessary to resolving the issues on appeal.

This Court’s Ruling

The portion of the trial court’s judgment awarding appellees $10,250.00 for their attorney’s fees is modified to delete this award. As modified, the trial court’s judgment is affirmed.

Order of Contempt

NOW, THEREFORE IT IS ORDERED, ADJUDGED AND DECREED by the Court of Appeals, Eleventh District of Texas, that Oscar M. Telfair, III, P.C. is in contempt and is fined $500.00 to be paid to the Clerk of the Court of Appeals, Eleventh District of Texas, on or before 30 days after mandate has issued.

IT IS ORDERED that all writs and other process necessary for the enforcement of this judgment be issued.

      . Section 82.065 of the Government Code expressly provides that contingent fee contracts for legal services must be in writing. TEX. GOV’T CODE ANN. § 82.065(a) (Vernon 1998). An oral contingent fee contract is voidable by the client. See TEX. GOV’T CODE ANN. § 82.065(b) (Vernon 1998); Enochs v. Brown, 872 S.W.2d 312, 318 (Tex.App.-Austin 1994, no writ).

      . Quantum meruit is an equitable remedy based upon an implied promise to pay for benefits received. Heldenfels Brothers, Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992). To recover in quantum meruit, a claimant must prove (1) valuable services were rendered or materials furnished, (2) for the person sought to be charged, (3) which services and materials were accepted by the person sought to be charged, (4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged. Heldenfels Brothers, Inc. v. City of Corpus Christi, supra at 41.

      . Appellees did not offer evidence segregating the amount of their attorney’s fees incurred for defending the law firm’s quantum meruit claim from those incurred in prosecuting their claims for affirmative relief.

      . The law firm preserved this alleged error for review by objecting to the submission of a jury question regarding appellees’ attorney's fees.

      . We note that other courts have declined to recognize the recovery of attorney’s fees on equitable grounds which we adopted in Baja Energy. See Burnside Air Conditioning and Heating, Inc. v. T.S. Young Corporation, 113 S.W.3d 889, 899 (Tex.App.-Dallas 2003, no pet’n).

      . Conversion occurs when one person makes an unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another to the exclusion of or inconsistent with the owner’s rights. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex.1971).

      . We have previously rejected the law firm's jurisdictional contention in previous written orders issued by this court. The law firm has not preserved error with respect to its “lack of notice" contention because the law firm did not present this claim to the trial court for consideration. See TEX.R.APP.P. 33.1(a).

      . The law firm filed its initial notice of appeal “[a]fter [hjours” on June 9, 2003, at 7:03 p.m. Since the notice of appeal was filed after hours, the appellate record does not necessarily establish that the notice of appeal was filed prior to the entry of the order of June 9, 2003. The act of the law firm filing the notice of appeal obviously could not have divested the trial court of jurisdiction to enter the order of June 9, 2003, if the notice of appeal was filed after the entry of the order.
      Moreover, even if the notice of appeal was filed prior to the entry of the order of June 9, 2003, the trial court maintained jurisdiction to enter the order. The trial court entered the final judgment in this cause on May 9, 2003. Therefore, the trial court entered the order of June 9, 2003, while its plenary jurisdiction remained in effect. See TEX.R.CIV.P. 4 & 329b(d). The filing of a notice of appeal does not divest the trial court of its plenary jurisdiction. See Rule 329b(d) (“The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed”). (Emphasis added)
      The law firm cited Gano v. Villarreal, 745 S.W.2d 586, 587 (Tex.App.-Corpus Christi 1988, orig. proceeding), for the proposition that a trial court is without authority to enter orders after a notice of appeal has been filed. The law firm’s reliance on Gano was misplaced. Gano only held that a trial court does not retain jurisdiction to conduct contempt proceedings with respect to an alleged violation of an order that has been appealed. The trial court’s order of June 9, 2003, was not a contempt ruling. Moreover, the holding in Gano has effectively been overruled in the Texas Supreme Court's recent opinion in In re Sheshtawy, 154 S.W.3d 114, 124 (Tex.2004).