author: EVA M. GUZMAN, Justice.

text:
    Eugene Morris HARTIS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00441-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 13, 2005.

      Charley L. Smith, Bellville, for appellants.
    Daniel W. Leedy, Bellville, for appellees.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION

EVA M. GUZMAN, Justice.

We withdraw our opinion of August 30, 2005, and issue this substitute opinion.

A jury convicted appellant Eugene Morris Hartis, Jr. of resisting arrest or transportation, and the trial court sentenced him to 180 days in jail and a $4,000 fine. In four issues, appellant challenges (1) the legal and factual sufficiency of the evidence supporting his conviction; (2) the trial court’s denial of his motion for election; and (3) the trial court’s admission of portions of a videotape evidencing his arrest. We affirm.

I. Factual and PkoceduRal Backgkound

The events at issue began with a traffic stop by Officer William Palmer of the Sealy Police Department on November 21, 2002 after he observed appellant exceeding the posted speed limit. Appellant insisted that he was not speeding and refused to sign the citation. After Palmer informed appellant that he would be arrested if he did not sign, appellant replied, “Well, then, you do it.” Appellant submitted to being handcuffed, but struggled with Palmer as they walked to the patrol car. The entire encounter was recorded on videotape by a camera inside Palmer’s patrol car. Appellant was taken to the Austin County Jail and was subsequently charged by information with “prevent[ing] or obstructing]” Palmer “from effecting an arrest, a search, or transportation,” a violation of Tex. Pen. Code Ann. § 38.03 (Vernon 2002).

Appellant made a motion for election, stating that there are three ways in which one can commit an offense violating Section 38.03, and asking the trial court to order the State to identify which of these ways it would attempt to prove. But, at the hearing on the motion, appellant took a different position, and argued that this section actually constitutes three different offenses, rather than three ways to commit a single offense; therefore, the basis of appellant’s motion is unclear. Appellant also filed a motion in limine, seeking to exclude a portion of the State’s videotaped evidence. The trial court denied both motions. At the conclusion of the trial, the court issued a jury charge that asked jurors to determine whether appellant was guilty of resisting arrest and also whether he was guilty of resisting transportation. The jury unanimously found him guilty of each individual charge.

II. Issues Presented

In four issues before us, appellant challenges (1) the legal and factual sufficiency of the evidence supporting a conviction for resisting arrest; (2) the legal and factual sufficiency of the evidence supporting a conviction for resisting transportation; (3) the trial court’s ruling on his motion for election; and (4) the trial court’s ruling on his motion in' limine. For the sake of clarity, we address these issues chronologically, reflecting the order in which they arose in the court below. We therefore turn first to appellant’s third issue.

III. Discussion

A. Did the trial court err by denying appellant’s motion to require the State to elect a theory of prosecution under Section 38.03?

In appellant’s brief, he argues the trial court erred in denying his motion to require election because “[section 38.03] provided three ways to commit the offense and the state should be required to specify the manner in which the [appellant] violated the statute.” By denying his motion, appellant argues his ability to prepare a defense was impacted because he “could have made different motions, pretrial motions, presented different evidence and different motions for directed verdict.” He also argues the trial court’s ruling “clearly confused the jury.” Because we conclude that section 38.03 states only one offense, and that appellant was on notice of the offense alleged in the information, we overrule appellant’s third issue.

The State is not required to elect between separate maimers and means of committing the same offense. Rodriguez v. State, 970 S.W.2d 66, 69 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd) (“[t]he State may plead all three forms of delivery [of cocaine] and it may not be forced to elect a particular method on which to prosecute”); Braughton v. State, 749 S.W.2d 528, 530 (Tex.App.-Corpus Christi 1988, pet. ref'd) (“[t]he State need not elect between various theories alleged and the jury may consider all theories and return a general verdict of guilty”) (citing Cook v. State, 741 S.W.2d 928, 935 (Tex.Crim.App.1987) (en banc) and Franklin v. State, 606 S.W.2d 818, 821 (Tex.Crim.App.1979) (en banc)). Although a defendant may be charged multiple times for committing the same offense in different ways, where only a single offense is charged, and when that offense can be committed in more than one way, a defendant is entitled to be informed of the manner in which he allegedly violated the statute. See Ferguson v. State, 622 S.W.2d 846, 850 (Tex.Crim.App. [Panel Op.] 1981).

In addressing this issue, we must first decide whether section 38.03 addresses more than one offense. If it does, then appellant was entitled to force the State to elect which offense it would attempt to prove. But, if the statute instead addresses various ways to commit a single offense, we must determine whether the State informed appellant of the type of violation it would attempt to prove.

1. Section 38.03 addresses only one offense

Section 38.03 of the Texas Penal Code states:

Resisting Arrest, Search, or Transportation
(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.

Tex. Pen.Code Ann. § 38.03 (Vernon 2002). Appellant argues arrest, search, and transportation constitute three separate offenses, whereas the State argues these words describe three different ways of committing a single offense. Although we approached the issue in dicta in Vaughn v. State, 983 S.W.2d 860 (Tex.App.-Houston [14th Dist.] 1998, no pet.), this is the first time that this court has been asked to address this issue directly.

In Vaughn, the defendant pleaded not guilty to the offense of resisting arrest under section 38.03. On appeal, he challenged both the legal and factual sufficiency of the evidence to support his conviction of the offense as charged in the information. Id. at 861-62. Vaughn’s information stated:

Defendant, on or about January 30, 1997, did then and there unlawfully intentionally PREVENTS [sic] a person he knows is A PEACE OFFICER from effecting AN ARREST of LARRY MICHAEL VAUGHN buy using force against S.D. THOMPSON, namely by STRIKING S.D. Thompson WITH HIS HANDS.

Id. To convict Vaughn under this information, the State was required to prove beyond a reasonable doubt the elements of the offense with which he was charged. See id. at 862. Those elements were (1) that the appellant intentionally; (2) prevented or obstructed; (3) a person he knows is a peace officer; (4) from effecting an arrest; (5) of himself; and (6) by using force against the peace officer. Id. At trial, Officer Thompson testified that Vaughn “wasn’t under arrest, but he was resisting just me detaining him....” Id. at 863. He further testified that Vaughn’s action in flailing his arms did not constitute force directed against him, but was to avoid being handcuffed. Id. We concluded that the evidence was legally insufficient to support appellant’s conviction because no evidence established defendant was ever under arrest. Id.

Though not necessary to the holding of the case, this court also stated:

Three different offenses are covered in section 38.03 — resisting arrest, resisting search or resisting transportation.... The State could have charged appellant alternatively with all three offenses which would have forced appellant to file a motion to quash the information and require the State to charge him more specifically. See Ferguson v. State, 622 S.W.2d 846, 850 (Tex.Crim.App.1981). Rather, the State charged appellant specifically with resisting arrest, thus relieving appellant from defending against the other two offenses.

Id. at 862. As support for the conclusion that resisting arrest, resisting search, and resisting transportation constitute three separate offenses, this court merely restated the statute and cited to Ferguson. Id. at n. 1. A closer reading of Ferguson, however, reveals that Ferguson did not address a situation in which more than one offense was or could have been alleged. To the contrary, Ferguson explained that there can be more than one type of act or omission by which a defendant could commit the same offense.

In Ferguson, the defendant was charged with delivery of a controlled substance, and the Court noted that the statute allowed “three different and distinct ways of establishing the accused’s criminal conduct.” Ferguson, 622 S.W.2d at 850 (emphasis added). The Court of Criminal Appeals found that the type of delivery the State would attempt to prove would be critical to the appellant’s defense, because the “ ‘delivery’ is the act by the appellant which constitutes the criminal conduct.” Id. Accordingly, the Court held that when there is more than one distinct manner by which the defendant could have committed an offense, the State must put the defendant on notice of the manner it intends to prove. Id. 622 S.W.2d at 851.

Ferguson was applicable to the facts in Vaughn, and would have dictated the same result that Vaughn reached. By stating in the information that Vaughn resisted arrest, the State provided notice to Vaughn that it intended to prove he committed an offense in that manner. But by stating only that Vaughn resisted arrest, the State was limited to proving he violated section 38.03 in that manner only. As a result, Vaughn could not lawfully have been convicted by proof that showed only that he resisted search or transportation.

Because Vaughn’s references to section 38.03’s “three offenses” are mere dicta, no court has followed that language, nor do we feel bound to do so. See Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (noting, “Dictum is not binding as precedent under stare decisis”). In Vaughn, we did not conduct a “separate offense” analysis, nor did we refer to any of the cases acknowledging that a single offense can be committed in different ways. See, e.g., Gibbons v. State, 652 S.W.2d 413, 415 (Tex.Crim.App. [Panel Op.] 1983) (holding when the penal statute provides multiple ways an offense may be committed, the charging instrument must allege every alternative means of commission upon which a conviction will be sought); Renfro v. State, 827 S.W.2d 532 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (allowing each method of committing the same offense to be submitted alternatively in the charge to jury); Finster v. State, 152 S.W.3d 215 (Tex.App.-Dallas 2004, no pet.) (conducting a “separate offense” analysis on section 38.03 and concluding that it addresses one offense that can be committed in a variety of ways). Although such analysis was unnecessary to the holding in Vaughn, it is required in the present case.

Where a statute proscribes different types of conduct, the use of the word “or” between the descriptions of that conduct is some indication that the legislature intended each to be a separate offense. Vick v. State, 991 S.W.2d 830, 832-33 (Tex.Crim.App.1999). Such use is not dispositive, however. In order to determine the number of offenses addressed by the statute, we examine the language of the statute to identify the conduct that constitutes a violation, and the object of the prohibited conduct for whose benefit the statute was likely enacted.

In section 38.03, the conduct proscribed is not “effecting an arrest, search, or transportation;” it is “intentionally preventing] or obstructing] ... by using force.” We must therefore determine if “preventing” and “obstructing” are different types of conduct. The definitions of the word “obstruct” include “to hinder or prevent from progress, check, stop, ... to impede; to interpose impediments to the hindrance or frustration of some act or service, as to obstruct an officer in the execution of his duty.” Black’s Law DiCtionaRY 1077 (6th ed.1990). “Prevent” is similarly defined as “to hinder, frustrate, prohibit, impede, or preclude; to obstruct ... [t]o stop or intercept the approach, access, or performance of a thing.” Black’s Law Dictionary 1188 (6th ed.1990). Both words can be used to mean “hinder,” “prevent,” “stop,” or “impede.” Based on the definitions and common usage of these words, we cannot conclude that they describe different types of conduct.

The object of the conduct is also relevant to the determination of the number of offenses a statute proscribes. A defendant violates section 38.03 by intentionally preventing or obstructing a peace officer or a person acting at a peace officer’s direction “from effecting an arrest, search or transportation ... by using force....” In other words, the conduct proscribed is the act of intentionally preventing or obstructing an authorized person from effecting his duties. See Finster, 152 S.W.3d at 219. The particular duty the defendant impedes “is simply another means by which a person could be interfering with a police officer in effecting his duties.” Id. We therefore agree with the Fifth Court of Appeals in finding that section 38.03 of the Texas Penal Code addresses a variety of ways in which to commit a single offense. See id.

Because the text of section 38.03 does not prohibit differing types of conduct, we do not read the statute as describing different offenses. Accordingly, we conclude the information did not allege that appellant committed more than one offense, therefore the State was not required to make an election.

2. Appellant had notice of the type of violation alleged

Because the information charged appellant with the commission of a single offense, our next inquiry focuses on whether the State informed appellant of the type of violation it attempted to prove. The rule requiring the State to elect serves four purposes: (1) ensuring unanimous verdicts; (2) giving the defendant notice of the particular offense with which he is charged; (3) protecting the accused from the introduction of extraneous offenses; and (4) minimizing the risk that the jury may convict because the combined weight of several offenses convinced the jury the defendant was guilty. See Francis v. State, 36 S.W.3d 121, 123-25 (Tex.Crim.App.2000) (en banc); O’Neal v. State, 746 S.W.2d 769, 772-73 (Tex.Crim.App.1988) (en banc); Fisher v. State, 33 Tex. 792, 794 (1870). We now examine whether these purposes were frustrated by the trial court’s ruling.

The need to ensure a unanimous verdict is not at issue. At the hearing on the motion to require election, the appellant and the State agreed to submit separate verdicts regarding each way he allegedly violated the statute. See Renfro v. State, 827 S.W.2d 532 (Tex.App.-Houston [1st Dist.] 1992, pet. refd) (allowing each method of committing same offense alleged in indictment to be submitted alternatively in charge to jury). The jury unanimously found him guilty of resisting arrest, and in a separate finding, unanimously found him guilty of resisting transportation. In other words, the jury unanimously agreed on the facts supporting the conviction. Based on these findings, the trial court entered judgment on a single count of “resisting arrest or transportation.”

The third and fourth purposes underlying a motion to elect are also not applicable here. We are not concerned with the possible effect of extraneous or multiple offenses in this case because the appellant was charged with only one offense. We are concerned instead with the whether the information provided appellant with sufficient notice of the charged offense.

Appellant focuses his argument on the second of the four goals. He argues that the information impermissibly alleged all of the ways in which the statute can be violated. Although it appears to be appellant’s position that the State can charge him with only one way of violating section 38.03, Texas courts have identified the circumstances under which the State can charge a defendant with committing a single offense in more than one way. If a statute sets out several ways for committing an offense, and those ways embrace the same definition, are punishable in same manner, and are not repugnant to each other, the State need not elect between various theories alleged; rather, the jury may consider all of the theories and return a general verdict of guilty. See, e.g., Renfro, 827 S.W.2d at 536; Sperling v. State, 924 S.W.2d 722, (Tex.App.-Amarillo 1996 pet. ref'd); State v. Garrett, 798 S.W.2d 311 (Tex.App.-Houston [1st Dist.] 1990, aff'd, 824 S.W.2d 181 (Tex.Crim.App.1992) (en banc)) (holding an indictment for delivery of controlled substance that alleged the delivery was by actual transfer, by constructive transfer, or by offer to sell, provided sufficient notice to defendant that he should prepare to defend prosecution on all three theories of delivery); see also, Carpenter v. State, 952 S.W.2d 1 (Tex.App.-San Antonio 1997, aff'd, 979 S.W.2d 633) (finding an indictment paragraph stating defendant “did then and there, with the intent to defraud and harm Ernest Míreles, intentionally remove, conceal, and impair the availability of a government record, to-wit” properly alleged alternative ways of committing offense of tampering with government documents and did not allege three different offenses in same count of indictment); Kingsley v. State, 744 S.W.2d 191, 194 (Tex.App.-Dallas 1987), pet. dism’d, 784 S.W.2d 688 (Tex.Crim.App.1990) (en banc) (holding indictment against defendant alleging “purchase of child” did not violate article pertaining to joinder of certain offenses, despite claim that it alleged multiple means for commission of the offense or alleged more than one offense in a single paragraph; allegations that defendant gave money to pregnant woman for purposes of acquiring child to place for adoption complied with article 21.24 of the Texas Code of Criminal Procedure); Carlock v. State, 8 S.W.3d 717, 721 (Tex.App.-Waco 1999, pet. ref'd) (stating, “It has long been held that where there are several ways or means by which an offense may be committed set forth in the same statute, and those ways or means are subject to the same punishment, they may be charged conjunctively in one paragraph”). The State may specifically allege, in the conjunctive or disjunctive, any or all of the statutorily-defined types of conduct regarding an offense. State v. Carter, 810 S.W.2d 197, 199 (Tex.Crim.App.1991) (en banc) (citing Ferguson, 622 S.W.2d at 851). Such a charging instrument still places a defendant on clear notice of what the State will attempt to prove at trial. Id. (citing State v. Winskey, 790 S.W.2d 641 (Tex.Crim.App.1990) (en banc)).

A defendant is constitutionally entitled to know what behavior he allegedly engaged in so that he can properly prepare a defense to that allegation. Id. (citing Ferguson, 622 S.W.2d at 850-51). Under the constitutional guarantee of adequate notice, a defendant may not “be left to guess or assume that the State [is] going to prove one or all the types of [statutorily-defined] conduct.” Id. (citing Ferguson, 622 S.W.2d at 851).

The information in this case met the standard set forth in Ferguson and Carter for providing notice. It identified several ways (resisting arrest, search, or transportation) a single offense (intentionally preventing or obstructing a peace officer in the completion of his duties by using force) could be committed. Each of these ways of committing the offense was set forth in the same statute, and was subject to the same punishment. Because appellant was not entitled to greater notice than that which was given to him in the information, the trial court properly denied his motion to elect.

Accordingly, we overrule appellant’s third issue.

B. Did the trial court err in admitting the videotaped evidence of verbal resistance?

In his motion in limine, appellant argued that the State should not be allowed to show or refer to those portions of the videotape showing appellant’s verbal — but not physical — resistance to Palmer’s questioning. Appellant objected to the evidence as irrelevant and prejudicial on the grounds that oral statements do not constitute a “use of force” in violation of section 38.03. The State argued that the evidence was relevant to show appellant’s intent to use physical force against Palmer. The trial court denied the motion, finding appellant’s verbal actions to be part of the resistance. We agree.

1. Standard of Review

The Texas Rules of Evidence favor admissibility of relevant evidence and the presumption is that relevant evidence will be more probative than prejudicial. Smith v. State, 105 S.W.3d 203, 207 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App.1990) (en banc)); Tex.R. Evid. 403. The burden is on the opponent of the proffered evidence to demonstrate the negative attributes of the evidence and to show how these negative attributes substantially outweigh the probative value of the evidence. Id. Further, an appellate court reviewing the trial court’s decision to admit certain evidence may reverse it only for an abuse of discretion, i.e., only when it is outside the zone of reasonable disagreement. Id. (citing Guzman v. State, 955 S.W.2d 85, 94 (Tex.Crim.App.1997) (en banc); Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App.2005)). An abuse of discretion occurs only when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003).

2. Analysis

The videotape in this case shows the entire traffic stop from beginning to end. While the videotape depicts appellant’s harsh language toward Palmer, it also shows the escalating degree of force appellant used in pulling against Palmer as Palmer led him to the patrol car. Palmer testified that appellant was belligerent and continually cursed, yelled, and screamed at Palmer. He further stated appellant repeatedly pulled against him, and was able to break his grasp. Although appellant reurged his objections to admitting the videotape, he did not object to Palmer’s testimony. Although appellant now contends that the prosecutor compounded error by “argu[ing] over and over” during closing arguments that Palmer received a great deal of verbal abuse from the appellant, appellant did not object to those comments.

Section 38.03 only prohibits conduct that is intentional. In addition to showing the escalating degree of force appellant used, the audio portion of the tape was relevant in deciding whether appellant intentionally used force against Palmer. For example, the tape revealed that immediately after Officer Palmer told appellant he would be taken to jail, appellant twice told the officer “you’re going to regret this,” and repeatedly said “get your hands off of me.” Although Palmer testified that he outweighed appellant by almost a hundred pounds, the videotape showed appellant pulling Palmer up an incline. Appellant was not merely pulling away from the officer, but pulling the officer.

Viewing the entire videotape and Palmer’s testimony, we cannot say the probative value of the videotape is substantially outweighed by its prejudicial effect. See Tex.R. Evid. 403. Palmer testified without objection to a similar course of events and some of the dialogue contained in the videotape. The videotape was helpful to the jury because it placed Palmer’s testimony about appellant’s increasing use of force against him in the proper context and provided an objective measure of that force. It also provided objective evidence that appellant’s use of force was intentional. We conclude the trial court’s decision to admit the videotape was well within the zone of reasonable disagreement, and therefore overrule appellant’s fourth issue. See Apolinar, 155 S.W.3d at 186.

C. Is the Evidence Legally and Factually Sufficient to Support the Conviction?

In his first two issues, appellant contends the evidence is legally and factually insufficient to support the jury’s finding that he resisted arrest and resisted transportation. In support of his argument, he argues that there is no evidence to show he performed any act that could be construed as resisting arrest. He also argues that his actions could not be interpreted as resisting transportation. Although appellant separated these two issues in his brief, we consider them under the same standard of review.

1. Standard of Review

When an appellant challenges both the legal and factual sufficiency of the evidence, we address the legal sufficiency challenge first because an affirmative finding on that issue will result in a rendition of a judgment of acquittal, while a finding of factual insufficiency warrants a remand for a new trial. Nickerson v. State, 69 S.W.3d 661, 668 (Tex.App.-Waco 2002, pet. ref'd).

When conducting a legal sufficiency review, we must determine whether, after viewing the evidence in the light most favorable to the verdict, a 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); Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App.2004). During this process, we do not re-evaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the fact-finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App.1998). We affirm the judgment if any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997) (en banc).

In reviewing the evidence for factual sufficiency, we view it neutrally, setting aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004). In our evaluation of the evidence, we must be deferential to the jury’s findings and resist intruding on its role as the sole judge of the witnesses’ credibility and of the weight to be given to the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000) (en banc).

2. Analysis

Although appellant separates his sufficiency issues into resisting arrest and resisting transportation, the judgment reflects that appellant was convicted of a single offense. To obtain a conviction, the State was required to prove appellant intentionally prevented or obstructed Palmer, a person appellant knew to be a police officer, from effecting the arrest or transportation of appellant by using force against Palmer. See Tex. Pen.Code Ann. § 38.03(a) (Vernon 2002).

An arrest is a process with a beginning and an end, the end being a successful restriction of liberty of movement by either force or submission. See Medford v. State, 13 S.W.3d 769, 773 (Tex.Crim.App.2000). Appellant argues nothing in the record shows he resisted arrest because the (1) videotape shows him turning around and placing one hand behind his back after Palmer told him he was being arrested, and (2) Palmer stated that at that point, he was “in control of the situation.”

Appellant further claims he did not resist transportation because “merely pulling away” from the officer is not sufficient to resist transportation, nor did appellant “shove the officer or hit the officer or touch the officer in any way.” But, the videotape shows that as Palmer led appellant to the patrol car, appellant attempted to twist away from Palmer’s grasp, and pulled Palmer up an incline, away from the patrol car. The record also reflects that out of the camera’s view, appellant was able to break Palmer’s grasp and “pull [Palmer] off [his] feet.” Further, as Palmer attempted to place appellant in the patrol car, appellant repeatedly pulled Palmer away from the door’s lock, causing Palmer to have to “struggle” to unlock the door. Palmer also testified that after appellant was placed in the patrol car, he was told not to kick the window, but continued to do so. The videotape demonstrates the shaking of the patrol car as appellant kicked the window with enough force to dislodge it. Palmer testified without objection that another officer was standing “right there next to the car,” and that the appellant’s actions at this time might have been directed at the other officer.

Viewing the evidence in the light most favorable to the verdict, we conclude a reasonable juror could have found beyond a reasonable doubt that appellant resisted arrest or transportation. See Moff, 131 S.W.3d at 488. The evidence showed appellant intentionally obstructed Palmer, a person appellant knew to be a peace officer, from effectuating appellant’s arrest or transportation by using force against Palmer. Further, when the evidence is cast in a neutral light, we are not convinced the evidence supporting conviction, taken alone, is too weak to sustain the jury’s finding of guilt beyond a reasonable doubt, nor is the contrary evidence so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. Accordingly, we overrule appellant’s first and second issues concerning sufficiency of the evidence.

IV. Conclusion

In sum, we conclude Section 38.03 encompasses various ways of committing the single offense of resisting arrest, search, or transportation. Appellant was charged by information with violating section 38.03 in three different ways, and received sufficient notice of the need to defend against evidence of resisting arrest and resisting transportation. Appellant specifically agreed to separate jury questions on resisting arresting and resisting transportation, and the evidence was legally and factually sufficient to support the jury’s unanimous finding on both of these issues. The trial court did not err in admitting the challenged portions of the videotape of appellant’s traffic stop; the tape provided evidence that appellant used force against a police officer effecting an arrest or transportation, and that appellant did so intentionally.

Having overruled each of appellant’s objections and sustained each challenged ruling, we affirm the judgment of the trial court.

      . Appellant's sentence was suspended and he was placed on community supervision for 180 days.

      . The State abandoned the allegation that appellant resisted a search.

      . See Carlock v. State, 8 S.W.3d 717, 721 (Tex.App.-Waco 1999, pet. ref'd) (stating, “It has long been held that where there are several ways or means by which an offense may be committed set forth in the same statute, and those ways or means are subject to the same punishment, they may be charged conjunc-tively in one paragraph”).

      . See Queen v. State, 662 S.W.2d 338, 340 (Tex.Crim.App.1983) (en banc) (noting, "We observe then that the Ferguson opinion stands for the proposition that an indictment for the delivery of a controlled substance must specify which type or types of delivery the State would rely upon and need not allege the precise manner by which a specified type of delivery was performed”) (emphasis in original).

      . If the mere use of the word "or” indicated a different offense, section 38.03(a) would not constitute three offenses, but forty-eight offenses, addressing every combination of “prevents or obstructs” (two possibilities) "a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction” (two possibilities) from effecting "an arrest, search, or transportation” (three possibilities) "of the actor or another” (two possibilities) by using force "against the peace officer or another”: (two possibilities). See Tex. Pen.Code Ann. § 38.03(a) (Vernon 2005) (emphasis added).

      . But see n. 5, supra.

      . Though the information in this case alleged alternate means of committing the same offense in a single paragraph, appellant did not object to the information on that basis. For a complaint to be preserved on appeal, there must be a timely objection stating the specific grounds for the ruling sought. Tex.R.App. P. 33.1; Tex.Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2002). That is to say, the specific complaints urged on appeal must have been made obvious to the trial court at the time trial objections were made. See Jones v. State, 843 S.W.2d 92, 98 (Tex.App.-Dallas 1992, pet. ref'd). Because appellant failed to object to the information on the basis that a single paragraph contained more than one means of committing the same offense, we do not address that issue.

      . Appellant’s own counsel asked Palmer to identify "which cuss word” on the videotape coincided with the end of appellant’s use of force.

      . Appellant’s argument on this issue is likely predicated on his claim that the portion of the videotape to which he objected in his motion in limine was inadmissible. Having overruled appellant's issue contesting the trial court's ruling in the section above, we will consider the contents of all admitted portions of the video as part of our legal and factual sufficiency analysis.

      . The other officer's voice is heard on the videotape during this time, although he is out of range of the camera.

      . Appellant was aware prior to trial that the State abandoned its claim of resisting search.


source: Caselaw Access Project

author: BILL VANCE, Justice.

license: Public Domain

text:
    Lisa Martinez PAUL and Steven Edward Martinez, Appellants, v. MERRILL LYNCH TRUST COMPANY OF TEXAS, Acting in the Capacity of Independent Executor of the Estate of Jose Eduardo Martinez, Deceased, and Toni Wasson Salvaggio Martinez, Appellees.
    No. 10-04-00185-CV.
    Court of Appeals of Texas, Waco.
    Dec. 14, 2005.

      Karen L. Watkins, McGinnis, Loehridge & Kilgore, Mary E. Haught, Ikard & Golden PC, Austin, for appellants.
    James H. Stilwell, William T. Miller & Kendall M. Gray, Andrews & Kurth, The Woodlands, Billy M. Payne, Payne Watson Miller & Malechek PC, Bryan, for appel-lees.
    Billy M. Payne, for Toni Wasson Martinez.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Appellants Lisa Martinez Paul (Lisa) and Steven Edward Martinez (Steve) (collectively Appellants) raise four issues complaining of a probate court’s rulings on the characterization of a gun collection and on attorney’s fees. We will modify the probate court’s judgment and affirm it as modified.

Factual Background

At the time of his death on August 25, 2002, Jose Eduardo Martinez (Ed) was married to Appellee Toni Wasson Martinez (Toni). As an accident reconstruction expert, Ed had amassed a multi-million dollar estate that included a large home in College Station, 594 acres of land, at least twelve motor vehicles, multiple businesses, stocks and bonds, jewelry, a watch collection, and a large gun collection.

Two documents govern the disposition of Ed’s property. Ed and Toni had entered into a premarital agreement in 1996 (reaffirmed as a marital agreement soon after their marriage) providing that the undefined “contents of the home” became the property of the survivor of the parties (Toni, in this case) in the event of death. On November 29, 2000, Ed executed a will that was later amended by a codicil executed on August 21, 2001. The residuary of Ed’s property — the property other than the “contents of the home” — passes under the will and, after several specific bequests to his children are deducted, “pours over” in a family trust. The will does not otherwise refer to Ed’s tangible personal property.

Toni is the primary beneficiary of the trust, having only an income interest. Appellants — Ed’s adult children from a previous marriage — receive the remainder of the trust when it terminates because Toni dies or remarries or cohabits with a man. In his will, Ed appointed Appellee Merrill Lynch Trust Company of Texas (now known as Merrill Lynch Trust Company FSB) to be the sole independent executor of his estate — without court intervention and without bond — and the sole trustee of the trust.

The will contains a “no-derivative action” clause that explicitly prohibits Appellants from bringing any derivative cause of action, particularly “any derivative cause of action to collect damages on behalf’ of Ed’s estate or the trust. The will also contains an “in terrorem clause” forfeiting all gifts, even if a beneficiary’s challenge to the dispositions under the will “was taken in good faith and with probable cause.” However, the will gave Lisa the power to seek removal of Merrill Lynch as “the current fiduciary” and appointment of a replacement fiduciary.

In early to mid-September 2002, after Merrill Lynch accepted the estate as a client but before it qualified as executor, Scott Luhnau, Merrill Lynch’s representative, began inspecting and identifying the estate’s property. Luhnau drove to College Station, inspected the home and cars, and had the guns and jewelry appraised. He met with Toni, who told him that Ed had told her that she was to receive “all the cars” and “everything in the house.” Toni testified that Luhnau told her that she would not be making decisions on the property. Toni had previously gone to Ed’s office and removed all of his personal property and mementos, storing them in boxes as requested by Merrill Lynch.

Faced with the marital agreement’s disposition language and the will, Merrill Lynch, as independent executor, had to determine Ed’s intent and decide what personal property (the “contents of the home”) went to Toni under the marital agreement and what property passed under the will to the estate and into the trust (property other than the “contents of the home”). After discussions -with Toni and with some of Ed’s business associates, including his bookkeeper, Merrill Lynch distributed to Toni some of the property that Appellants later contested. In its disposition of Ed’s property, Merrill Lynch defined “contents of the home” as tangible personal property contained in or associated with the residence structure and lot, and tangible non-business personal property wherever located or usually located. Merrill Lynch concluded that Toni was entitled to the following property: eight vehicles; a watch collection and jewelry; and a gun collection that was being kept at Ed’s office in a gun safe. With respect to vehicles that Toni had sold, Merrill Lynch had Toni place the proceeds in a separate Merrill Lynch account pending the resolution of the brewing dispute over the property.

Procedural Background

Appellants sued Merrill Lynch in November 2003. Their live pleading at the time of trial (Plaintiffs’ Fifth Amended Original Petition) essentially claimed that Ed’s will revoked his marital agreement with Toni and that Toni was not entitled to any of Ed’s property as the “contents of the home.” Appellants alleged that Merrill Lynch committed gross misconduct and gross mismanagement by transferring property to Toni, and they sought removal of Merrill Lynch as independent executor and disgorgement of its executor fee ($175,000). They sought actual damages (approximately $625,000) on behalf of the estate caused by Merrill Lynch’s (1) alleged failure to collect and gather all of the estate’s property and place it in the trust, and (2) alleged breach of fiduciary duties under sections 230 and 233 of the Texas Probate Code. Appellants asked for exemplary damages of $500,000 and attorney’s fees. Appellants did not request a declaratory judgment or construction of any will provisions.

Merrill Lynch filed a counterclaim that added Toni as a third-party defendant. Its five pleading at the time of trial (Fifth Amended Counterclaim in the Form of Petition for Relief, Declaratory Judgment and Constructive Trust) sought resolution of the contested property in light of the provisions in the marital agreement and the will, along with recovery of attorney’s fees. Merrill Lynch specifically asked the court to construe the marital agreement’s provision at issue, to declare the owners of the contested property, to impose a constructive trust on any property improperly given to Toni, and to award it attorney’s fees under the Declaratory Judgments Act. Alleging that it was defending in good faith Appellants’ claim to remove it as independent executor, Merrill Lynch sought to recover its attorney’s fees under section 149C(c) of the Probate Code. Merrill Lynch also alleged that Appellants were precluded from bringing their alleged derivative action by the no-derivative action clause and the in terrorem clause and that they lacked standing under these clauses as a result of their bringing claims.

Toni’s original answer was a general denial. She subsequently filed a motion for leave to file a trial amendment to allege a claim for attorney’s fees, and the probate court granted Toni leave.

At trial, the parties focused on twelve categories of property that Appellants contended were trust property (rather than “contents of the home”) and on which Merrill Lynch sought declaratory judgment and a constructive trust imposed on Toni if necessary. Eight of those twelve categories were cars. The remaining categories were: (1) the contents of the home; (2) the contents of Ed’s office; (3) Ed’s gun collection; and (4) Ed’s watch collection and jewelry. At the close of Appellants’ casein-chief, the probate court granted Merrill Lynch’s motion for judgment in part and ordered that Appellants take nothing on their damage claims on three of the cars, the contents of the home, and exemplary damages against Merrill Lynch based on fraud, specific-intent malice, and bad faith.

After a four-day trial, the probate court entered a final judgment that Appellants take nothing on all of their remaining claims, rejecting Appellants’ claims to remove Merrill Lynch as independent executor and to disgorge any fees and Appellants’ claim for exemplary damages based on conscious-indifference malice. The trial judge issued a helpful 52-page Memorandum Opinion that formed the basis for its subsequent 29 pages of findings of fact and conclusions of law.

On the other contested cars, the probate court found that the 1995 Ferrari 855 Challenge was a gift from Ed to Toni. It ruled that the other four cars are personal property of the estate and should pass to the trust as follows: (1) the 2001 Ferrari Spider; (2) the 2002 Porsche 911 Turbo; (3) the 2002 Subaru Impreza; and (4) the 1999 Ford Explorer. These four vehicles were all titled in Ed’s name, and because they all were personal property that required a title for transfer, the probate court ruled that they were not “contents of the home.”

As for the contents of Ed’s office — posters, diplomas, pictures, model cars, etc. that had a de minimis value — that were being stored by Toni, no damages were sought by Appellants, but the probate court found that this property was an estate asset and should pass to the trust. The probate court imposed a constructive trust on the contents of Ed’s office and the four cars found to belong to the estate, or on the proceeds from the sale of these assets, and Toni was ordered to deliver these assets or their proceeds to Merrill Lynch within thirty days.

The probate court found that the estate had suffered no damage, did not lose the value of any of the contested property, and did not lose the property itself from the decisions that Merrill Lynch made on what property was “contents of the home.” The probate court found that Merrill Lynch’s decisions on the contested property were made in good faith and that it successfully defended Appellants’ action to remove it as independent executor in good faith. Merrill Lynch was, however, ordered to post a $300,000 bond to protect the estate’s beneficiaries.

The probate court concluded that Ed’s gun collection was being temporarily stored at Ed’s business and that it was Ed’s intention to keep it ih the home. Thus, it came within the “contents of the home” and was not the property of the estate; Appellants were to take nothing on their damage claim relating to the gun collection.

On Merrill Lynch’s claim that Appellants were violating the will’s no-derivative action and in terrorem clauses, the probate court ruled that Appellants violated the no-derivative action clause in part by filing a derivative action for damages on the estate’s behalf, in violation of the in terro-rem clause, but that Appellants had filed the action in good faith and with probable cause and they did not forfeit the bequests to them in the will. Merrill Lynch does not appeal that ruling.

The probate court found that Appellants were not entitled to recover their attorney’s fees, reasoning that they did not prevail on their removal and disgorgement claims, that they prevailed on only five of the twelve categories of property that Merrill Lynch had determined were “contents of the home,” but even on those five categories, Merrill Lynch’s determinations were within a zone of reasonable disagreement. The probate court also noted that Appellants had failed in their attempt to recover exemplary damages.

Merrill Lynch was awarded attorney’s fees from the estate in the sum of $153,246.32 at trial, an additional attorney’s fee of $15,000 if Appellants unsuccessfully appeal to the court of appeals, and an additional attorney’s fee of $8,000 if Appellants unsuccessfully appeal to the Supreme Court of Texas.

Toni was awarded attorney’s fees from Appellants in the sum of $46,764.80 at trial, an additional attorney’s fee of $15,000 if Appellants unsuccessfully appeal to the court of appeals, and an additional attorney’s fee of $8,000 if Appellants unsuccessfully appeal to the Supreme Court of Texas. Court costs were taxed against Appellants.

Issues

Appellants’ four issues are whether the probate court erred: (1) in concluding that the gun collection was among the “contents of the home,” rather than property of the trust; (2) in denying Appellants recovery of their attorney’s fees; (3) in awarding Merrill Lynch attorney’s fees; and (4) in awarding Toni attorney’s fees.

Analysis

The Gun Collection

Regarding Appellants’ first issue on the gun collection, Merrill Lynch prefaces its response with an assertion that Appellants do not have standing and have not preserved their complaint because they did not seek in the probate court the relief that they now seek on appeal. Merrill Lynch correctly notes that it — not Appellants — pled claims for declaratory relief (later dismissed by the probate court) and constructive trust relating to the gun collection. Appellants did not sue Merrill Lynch or Toni for return of the gun collection to the estate by imposition of a constructive trust or for a declaratory judgment on the ownership of the gun collection. While they did plead in the probate court that Merrill Lynch had improperly transferred the gun collection to Toni in breach of its fiduciary and statutory (Probate Code section 233) duties, Appellants sought only money damages for these alleged breaches and Merrill Lynch’s removal and fee disgorgement. Appellants lost on these claims in the trial court and have not appealed these adverse rulings.

In their first issue, Appellants are indirectly attempting to do on appeal what they did not do in the probate court so as to avoid violating the will’s no-derivative action and in terrorem clauses. In their brief, Appellants state that they “challenge the trial court’s determination that certain guns which were always stored in a gun safe at Dr. Martinez’s office should be considered ‘contents of the home,’ and not included in the assets of the estate.” They ask us to find that the probate court’s characterization of the gun collection as “contents of the home” was error, to reverse the judgment in that respect, and to render judgment imposing a constructive trust on the gun collection and the proceeds of any gun sales. As noted above, it was Merrill Lynch that asked the probate court to impose a constructive trust on any property improperly given to Toni.

A party cannot complain on appeal about a trial court’s failure to award relief when the party never pled for that relief in the trial court. Nor can a party complain about relief not awarded to another party; that party lacks standing to make such a complaint. The relief that Appellants seek on appeal is the relief that the probate court refused to grant Merrill Lynch at trial — the imposition of a constructive trust on the gun collection or on proceeds from any gun sales. In the probate court, Appellants sought only damages from Merrill Lynch for its delivery of the gun collection to Toni. Appellants lack standing to seek constructive trust relief on appeal.

Furthermore, Appellants plainly did not plead a cause of action for return of the gun collection, for declaratory relief regarding the gun collection, or for imposition of a constructive trust on the gun collection. In addition to lacking standing to request the relief that was not awarded to Merrill Lynch, Appellants also have not preserved their complaint for appeal. Tex. R.App. P. 33.1(a). We overrule their first issue.

Appellants’Attorney’s Fees

Section 245 of the Probate Code provides for the recovery of reasonable attorney’s fees incurred in obtaining compliance regarding any statutory duty that the personal representative has neglected. Tex. PROb.Code Ann. § 245 (Vernon Supp.2005). Arguing that because the probate court imposed a constructive trust on five of the twelve categories of contested property as a result of Merrill Lynch’s alleged neglect, Appellants in their second issue complain that the trial court abused its discretion in refusing to award them their attorney’s fees.

An appellate court reviews a trial court’s decision on the award of attorney’s fees for an abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). “Whether to award attorney’s fees, and to which party, is a decision that is solely within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion.” Sammons v. Elder, 940 S.W.2d 276, 284 (Tex.App.Waco 1997, writ denied). A trial court abuses its discretion when it acts “without reference to any guiding rules or principles,” or stated another way, when the trial court acts in an arbitrary and unreasonable manner. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex.2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985)). An abuse of discretion does not occur when a trial court bases its decision on conflicting evidence. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997); Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978).

The probate court specifically concluded that Merrill Lynch did not fail to use due diligence in recovering property belonging to the estate. And the probate court noted that on the five times that it disagreed with Merrill Lynch on the categorization of property as estate property or “contents of the home,” those disagreements were within the zone of reasonable disagreement and amounted to approximately only 7% of the value of the entire estate. Merrill Lynch adds that it was not Appellants, but Merrill Lynch, which initially sued for a constructive trust and for declaratory relief on the contested property. Additionally, in its decision to deny Appellants recovery of their attorney’s fees, the probate court emphasized that Appellants had lost on their claims to remove Merrill Lynch and to disgorge its executor’s fee. On the other hand, the probate court found that in some instances Merrill Lynch’s conduct deviated from the ordinary standard of care and in some instances may have been inadvertent, but the conduct did not rise to the level of ■willful, malicious, or bad-faith conduct.

Based on the above and on the probate court’s extensive and careful consideration of all the evidence and claims in this case, we cannot say that the probate court abused its discretion in refusing to award Appellants attorney’s fees. Appellants’ second issue is overruled.

Merrill Lynch’s Attorney’s Fees

Appellants’ third issue challenges the probate court’s award of attorney’s fees to Merrill Lynch. The probate court found that Merrill Lynch defended Appellants’ removal action in good faith and was entitled to recover its attorney’s fees under section 1490(c) of the Probate Code. That section permits an independent executor to recover necessary expenses, including attorney’s fees, if it defends an action for removal in good faith, “whether successful or not.” Tex. Prob.Code Ann. § 1490(c) (Vernon 2008). “[A]n executor acts in good faith when [it] subjectively believes [its] defense is viable, if that belief is reasonable in light of existing law.” Lee v. Lee, 47 S.W.3d 767, 795 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

Merrill Lynch prevailed on Appellants’ claim to remove it as independent executor for alleged gross misconduct or gross mismanagement. Appellants have not appealed the probate court’s ruling on their removal claim. Appellants’ brief points out several instances of Merrill Lynch’s conduct that served as the basis for their removal claim, but those instances do not pertain to Merrill Lynch’s defense of the removal action in good faith. Moreover, Appellants do not point to any actual harm that they suffered, and the probate court specifically found that the estate suffered no actual harm or damages from Merrill Lynch’s incorrect categorization of some of the contested property.

The probate court did take issue with the reasonableness of Merrill Lynch’s interpretation that the phrase “contents of the home” included “personal property wherever located,” but in finding that Merrill Lynch defended the action in good faith, the court noted that the estate was not harmed and again that Merrill Lynch’s disagreements were reasonable. The probate court did not abuse its discretion in awarding Merrill Lynch attorney’s fees. We overrule Appellants’ third issue.

Toni’s Attorney’s Fees

Finally, in their fourth issue, Appellants complain of the probate court’s award of attorney’s fees to Toni, recoverable from Appellants. They assert that the probate court abused its discretion in granting Toni leave to file a trial amendment, that no legal basis for the award exists, and that Toni did not substantially prevail.

In Appellants’ earlier, superseded petitions, they specifically sued Merrill Lynch for declaratory relief on the terms of the will and the marital agreement, alleging that Toni had forfeited her benefits under the will because of her alleged violations of the in terrorem clause. But in their live trial pleading, Appellants were not requesting a declaratory judgment or construction of any will provisions.

In response to Appellants’ suit, Merrill Lynch filed a counterclaim, adding Toni as a third-party defendant and seeking declaratory relief on the property being contested by Appellants. As noted above, during trial the probate court dismissed the part of Merrill Lynch’s counterclaim that sought declaratory relief and attorney’s fees under the Declaratory Judgments Act.

At the time of trial, Toni’s answer consisted of only a general denial. She thus filed a motion for leave to file a trial amendment to allege a claim for attorney’s fees, and the probate court granted Toni leave. Toni’s amended answer requested an award of attorney’s fees “as are reasonable and necessary to defend her against the claims of the Plaintiff [Appellants] and Defendant [Merrill Lynch].” Toni did not seek declaratory or any other affirmative relief.

Thus, no party was seeking declaratory relief under the Declaratory Judgments Act or attorney’s fees under the Act at trial. See Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001-011 (Vernon 1997 & Supp.2005). A prevailing party cannot recover attorney’s fees from an opposing party unless permitted by statute or a contract between the parties. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex.1999). Section 37.009 provides that “[i]n any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (emphasis added).

The probate court found that Appellants’ and Merrill Lynch’s live pleadings implicitly sought declaratory relief; as a basis for awarding Toni her attorney’s fees, it relied on Edwards Aquifer Auth. v. Bragg, 21 S.W.3d 375, 381 (Tex.App.-San Antonio 2000) (court has discretion to construe pleading as containing implicit request for declaratory judgment), aff'd, 71 S.W.3d 729 (Tex.2002). Bragg does not address, however, either the propriety of an attorney’s fee award to any party or whether a claim the implicitly requests declaratory relief can properly be treated as a claim under Chapter 37.

Because this case does not involve any claims under Chapter 37, there was no legal basis to award Toni attorney’s fees, and the probate court erred in awarding Toni attorney’s fees under Chapter 37. We sustain Appellants’ fourth issue.

Conclusion

We delete from the probate court’s final judgment the award of attorney’s fees to Toni. Because Appellants have been unsuccessful as to Merrill Lynch in this appeal, Merrill Lynch is entitled to recover an additional attorney’s fee of $15,000 from the estate. As modified, the judgment is affirmed.

      . An "in terrorem clause,” also called a no-contest clause, is a "testamentary provision that threatens to dispossess any beneficiary who challenges the terms of a will." Black’s Law Dictionary 1073 (8th ed.2000).

      . Those eight vehicles were: two Ferrari road cars parked in their usual place in the marital home’s garage; a 2002 Porsche that was usually parked in the garage but was out for repairs; a personal-use Ford Explorer usually parked either at the home or office; a personal-use Subaru parked at the office; a 2001 Porsche and a 1995 Ferrari given to Toni as gifts; and Toni’s personal Mercedes parked at the home.

      . Luhnau had Toni sign a receipt and release dated October 31, 2002, pertaining to all of Ed’s property that she had received: the contents of the home, including a gun collection and a watch collection; a 2001 Ferrari 360 Spider Modena; a 2000 Ferrari 550 Maranel-lo; a 2002 Porsche 911 Turbo; a 1999 Ford Explorer; and a 2002 Subaru Impreza.

      .During trial, the probate court granted in part Appellants’ motion to dismiss by written order, dismissing Merrill Lynch's claim for declaratory relief as to the contested property, the trust, or Toni, and dismissing Merrill Lynch's claim for attorney’s fees to the extent it was based on the Declaratory Judgments Act.

      . At the start of the trial, Appellants amended their pleading to remove the jewelry and the watch collection as contested assets. The probate court thus found that the jewelry and the watch collection were contents of the home, not trust property.

      . Specifically, the probate court granted Merrill Lynch’s motion for judgment without objection by Appellants on their damage claims as to these three cars: (1) the 2000 Ferrari 550 Maranello (whose debt exceeded its value and which had been surrendered); (2) the 2001 Porsche 911 (whose debt exceeded its value); and (3) the Mercedes ML 55-AMG, for which no title evidence was adduced and which Toni claimed as her personal car.

      . On two grounds the probate court ruled against Appellants that all of Ed’s personal property that could be “contents of the home” passed to the trust: (1) applying section 4.005 of the Family Code, the will did not revoke Ed and Toni’s marital agreement; and (2) the marital agreement was not an invalid testamentary transfer of Ed’s entire estate under section 450 of the Probate Code.

      . The probate court found that "contents of the home” was ambiguous, so it utilized section 58 of the Probate Code in ruling on the cars. That section defines "contents" as "tangible personal property, other than titled personal property, found inside of or on a specifically bequeathed or devised item.” Tex. Prob.Code Ann. § 58(d)(1) (Vernon 2003). And it defines "titled personal property” to include motor vehicles. Id. § 58(d)(2).

      . Toni testified that Ed had given the Explorer to his stepdaughter Nina (Toni's child from a previous marriage) but that she could not drive it until she entered college. Because a rift developed between Ed and Nina, in his codicil Ed deleted a $100,000 bequest to Nina and deleted practically every reference to Nina. The probate court thus concluded that Ed never “delivered” the Explorer to Nina as a gift.

      . The probate court found that Appellants had violated the no-derivative action clause in part but nonetheless did not forfeit Appellants’ bequests under the will. No issue about these rulings is presented on appeal.

      . A claim, issue, or allegation may not be raised for the first time on appeal. Adams v. First Nat'l Bank, 154 S.W.3d 859, 871 (Tex.App.-Dallas 2005, no pet.) ("A claim that was not presented to the trial court cannot be considered on appeal."); Carrizales v. Tex. Dep't Prot. & Reg. Servs., 5 S.W.3d 922, 925 (Tex.App.-Austin 1999, pet. denied) ("As a rule, a party may not raise an issue, even a constitutional claim, for the first time on appeal."); General Ass’n Branch Davidian Seventh Day Adventist v. McLennan County Appraisal Dist., 715 S.W.2d 391, 393 (Tex.App.-Waco 1986, no writ) (issue may not be raised for first time on appeal); see also California Dep’t of Mental Hygiene v. Bank of the Southwest, N.A., 163 Tex. 314, 354 S.W.2d 576, 581 (1962) (“An allegation raising this contention is not contained in petitioner’s pleadings and was not raised in the trial court. The issue cannot be raised for the first time on appeal.”).
      Additionally, Appellants' general prayer for relief in their petition is insufficient to cure the absence of the specific claim and relief that they are seeking for the first time on appeal; a general prayer for relief must be consistent with the claims in the petition. See Kissman v. Bendix Home Sys., Inc., 587 S.W.2d 675, 677 (Tex.1979) ("Only the relief consistent with the theory of the claim reflected in the petition may be granted under a general prayer."); Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex.1979) (general prayer for relief cannot “enlarge a pleading to the extent that it embraces an entirely different cause of action for which fair notice does not exist.”).

      . Given the issues in this case involving construction of the will and the marital agreement, the probate court necessarily had to construe and interpret these documents. See Tex. Prob.Code Ann. § 5(f) (Vernon 2003) (probate court has “power to hear all matters incident to an estate”); id. § 5A(a) ("incident to an estate” includes "actions to construe will”); see also McRae Exploration & Prod. Co. v. Reserve Petroleum Co., 962 S.W.2d 676, 684-85 (Tex.App.-Waco 1998, pet. denied) (reversing attorney’s fee award because suit was action for trespass to try title, not for declaratory judgment).


author:
FELIPE REYNA, Justice.
      TOM GRAY, Chief Justice,

text:
    Efren AVILA, Appellant, v. LONE STAR RADIOLOGY, Bob Kubicki, Dr. Kenneth Lustik, Family Care Pharmacy, Derrick Ford, and Karen Powell, Appellees.
    No. 10-04-00021-CV.
    Court of Appeals of Texas, Waco.
    Dec. 14, 2005.

      Domingo A. Garcia, Dallas, for appellant.
    John A. Stephens, Fulbright, Winnford & Marable, Waco, for appellees.
    Lone Star Radiology & Dr. Tamara Up-tigrove, Dallas, pro se.
    Bob Kubicki, Dallas, pro se.
    Dr. Kenneth Lustik, Open Ah’ MRI, Dallas, pro se.
    Family Care Pharmacy, Plano, pro se.
    Derrick Ford, Dallas, pro se.
    Karen Powell, Plano, pro se.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   CORRECTED OPINION

FELIPE REYNA, Justice.

Avila appeals from a judgment in an interpleader action claiming that the trial court abused its discretion by failing to award him attorney’s fees. We reverse.

Background

Alfredo Saldana and Efren Avila were driving back from work in a tractor when a pick-up truck struck them from behind. The truck, owned by Andy Christopher, was driven by Daniel Alan Christopher. Avila and Saldana suffered multiple injuries and filed suit against Andy, Daniel, and B.G. Williams d/b/a Williams Asphalt, Saldana’s employer. Andy and Daniel offered to settle with Avila for their policy limit, $20,000. Avila agreed, but his medical bills totaled over $70,000. Avila negotiated with his medical creditors and offered them a pro-rata share of the settlement less attorney’s fees. The medical creditors refused. Subsequently, Avila filed an in-terpleader action, and the trial court divided the settlement among the providers, but did not award Avila attorney’s fees from the settlement funds. The trial court severed this cause from the remainder of the issues in the case, and Avila appealed.

Attorney’s Fees in an Interpleader Action

Avila argues in his sole issue that the trial court abused its discretion in failing to award him attorney’s fees.

An interpleader action permits an innocent stakeholder facing rival claims to allow the courts to decide who is entitled to the fund and thus avoid the peril of acting as judge and jury itself. Union Gas Corp. v. Gisler, 129 S.W.3d 145, 153 (Tex.App.-Corpus Christi 2003, pet. denied); Olmos v. Pecan Grove Mun. Utility Dist., 857 S.W.2d 734, 741 (Tex.App.-Houston [14th Dist.] 1993, no pet.). The elements of an interpleader action are: (1) the party is either subject to, or has reasonable grounds to anticipate, rival claims to the same fund or property; (2) the party has not unreasonably delayed filing an action for interpleader; and (3) the party has unconditionally tendered the fund or property into the court’s registry. Hanzel v. Herring, 80 S.W.3d 167, 173 (Tex.App.-Fort Worth 2002, no pet.) (citing Bryant v. United Shortline Inc., 984 S.W.2d 292, 296 (Tex.App.-Fort Worth), aff'd, 972 S.W.2d 26 (Tex.1998)). “The in-terpleader asks only that he be released and discharged from any liability on account of the proceeds, that he recover his attorney’s fees for bringing the interpleader, and that he be paid his fees and costs out of the proceeds.” Id. However, the award of attorney fees is within the sound discretion of the trial court. Olmos, 857 S.W.2d at 741; Beneficial Standard Life Ins. Co. v. Trinity Nat’l Bank, 763 S.W.2d 52, 56 (TexApp.-Dallas 1988, writ denied).

Several creditors claimed an interest in Avila’s settlement. There is no evidence that Avila delayed in bringing the interpleader action once it became clear that the matter could not be resolved. Further, Avila tendered the settlement amount to the trial court. Therefore, as an innocent stakeholder, Avila is entitled to recover attorney fees under Texas inter-pleader law. United States v. Ray Thomas Gravel Co., 380 S.W.2d 576, 581 (Tex.1964) (holding that in Texas an innocent stakeholder is entitled to attorney’s fees); Heggy v. American Trading Employee Retirement Account Plan, 110 S.W.3d 692, 703 (Tex.App.-Houston [14th Dist.] 2003, pet denied); Olmos, 857 S.W.2d at 741. Therefore, we find that the trial court abused its discretion in failing to award Avila reasonable attorney’s fees for bring the interpleader action. Accordingly, we sustain Avila’s sole issue.

Conclusion

We reverse and remand this cause to the trial court for further proceedings consistent with this opinion.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

Unfortunately, I do not see any chance of getting to the right result in this case on further review. Who is going to appeal? Who can? Where is there sufficient economic incentive to make it right? Maybe the representatives of the medical creditors would prefer not to be named as appellees or judgment creditors enough that they will pursue it. While the dollar amount is small, the implications are enormous. The majority has made persons and entities parties to this appeal because they were identified in a brief, and some did not even receive a copy of that brief.

OVERVIEW

The original opinion issued on June 29, 2005. No motion for rehearing was filed. Thus, our plenary jurisdiction ended 60 days thereafter on August 28, 2005. Tex.R.App. P. 19.1(a). The mandate issued on October 21, 2005. Any jurisdiction we had to modify the opinion or the judgment, other than for a purely clerical error, has long since passed. Tex.R.App. P. 19.3. So the operative question is whether purporting to add some parties on appeal, long after the appeal was in progress, and now changing the assessment of cost to those “parties” is a purely clerical error that we can correct. Tex.R.App. P. 19.3(a). I do not believe it to be a purely clerical error, and thus, I dissent.

Background

The majority memorandum opinion and my dissenting opinion in this case were issued on June 29, 2005. Avila v. Christopher, No. 10-04-00021-CV, 2005 Tex.App. LEXIS 5038, 2005 WL 1531170 (Tex.App.-Waco June 29, 2005, no pet.). At that time, the full style of the case was: Efren Avila v. Andy Christopher, Daniel Alan Christopher and B.G. Williams d/b/a Williams Asphalt. There was no motion for rehearing filed. There was no petition for review filed. The mandate issued in the usual course of proceeding. Tex.R.App. P. 18.1. Then, seven days after the mandate was issued, we received a letter from counsel for the Christophers. The letter copied only Avila’s attorney.

Who ARE PkopeR ly PaRties To This Appeal?

In the letter, counsel asserted that his clients were released by Avila and dismissed from the underlying case “well before Avila appealed.” The letter indicates a common misconception — that once dismissed from a case, the party is no longer subject to the possibility of being impacted by subsequent events that occur in the case or of being a party to a subsequent appeal. When a party has settled a claim and secured an order of dismissal, until that dismissal order is final, the party is just that, a party to the case, and must be served with all documents pursuant to Texas Rule of Civil Procedure 21 and, if the entity remains a party on appeal, Texas Rule of Appellate Procedure 9.5. If the case is proceeding against other parties, the only way to avoid continuing involvement, cost, and risk in the case is to secure a severance so that the order dismissing the party can be made a final judgment as to the dismissed party.

It appears that the Christophers may also have been operating under the mistaken belief that they were not parties to the severed case in the trial court. The letter seems to imply that it was only the interpleader action that was severed. This is, however, contrary to the severance order. The severance order “severs Efren Avila’s claim against Andy Christopher and Daniel A. Christopher and the inter-pleader action from the rest of the suit.” The documents ordered to be included in the severed action include all the pleadings and answers in which the Christophers were involved. There can be no question that the Christophers were parties in the severed case.

The next question then is whether the Christophers were parties in the appeal. The original notice of appeal did not specify the “parties” against whom relief would be sought, nor did the amended notice of appeal. A notice of appeal invokes our jurisdiction of an appeal over all the “parties to the trial court’s judgment or order appealed from.” Tex.R.App. P. 25.1(b). A notice of appeal, however, does not invoke our jurisdiction over persons who were not parties in the trial court. According to the certificate of service, counsel for the Chris-tophers was served with both notices of appeal, the original and amended. The style also continued to be in their names. Thus, based upon this record, it appears the Christophers were intended to be and are parties to the appeal.

Any doubt about whether this Court considered the Christophers as parties to this appeal should have been resolved when the Court acknowledged receipt of the notice of appeal and notified the attorneys of the appellate cause number and style of the appeal as follows:

Re: Court of Appeals Number: 10-04-00021-CV
Trial Court Case Number: 03-00-12821-CV
Style: Efren Avila v. Andy Christopher, Daniel Alan Christopher and B.G. Williams d/b/a Williams Asphalt

This notice was sent only to counsel for Avila and counsel for the Christophers. No one else received this notice from the Court. Neither Avila nor the Christo-phers complained about the absence of notice being sent to the litany of medical creditors. Neither party complained about the style of the appeal. The parties and this Court proceeded with the appeal as follows:

1. Noticed the parties that the clerk’s record had not been filed, because it had apparently not been paid for.
2. Noticed the parties of the deficiencies in the record. It did not contain specified documents. Included in the list of missing documents were plaintiffs petition, defendants’ answers, summary judgment pleadings, and summary judgment.
3. Noticed the parties the clerk’s record was filed.
4. Noticed the parties the reporter’s record had not been filed.
5. Noticed the parties, again, that the reporter’s record had not been filed.
6. Noticed the parties that the reporter’s record was filed.
7. Noticed the parties of the receipt of a defective brief from appellant.

In the above litany, “parties” is in reference to only Avila’s and the Christophers’ counsel receiving notice. None of the medical creditors received any of these notices. As far as this Court was concerned, they were not parties to this appeal.

At this juncture, it is appropriate to note that normally the docketing statement would have provided the necessary information to determine who Avila intended to be appellees. A docketing statement was never filed. And the Court failed to follow up on its demand sent to Avila that one be filed. Justice Vance has characterized the docketing statement as only having administrative purposes. Hensley v. W.M. Specialty Mortgage LLC, No. 10-05-00332-CV, 2005 WL 3073000, 2005 Tex.App. LEXIS 9614 (Tex.App.-Waco Nov. 16, 2005, no pet. h.)(Vance, J., concurring note). I disagree. Determining who is a party to an appeal is substantive. We have used the docketing statement in the past to determine who was, or was not, intended as a party to an appeal. Polys v. Daney, No. 10-98-00285-CV (Tex.App.-Waco Nov. 25, 1998, no pet.)(not designated for publication). The docketing statement provides substantive information about who the appeal is being pursued by and against. It can provide outcome determinative information. That is substantive — not administrative.

Finally, over six months after the amended notice of appeal was filed, when the amended brief was filed, it appeared that maybe someone else needed to be notified of something because the style on the brief was as follows:

Efren Avila, Appellant, v. Lone Star Radiology, Accident & Injury, Open Air MRI, Family Care Pharmacy, Parkland Hospital, and Pedro Nosnik, M.D., Appellees

But the certificate of service indicates that it was served only on “representatives” of Parkland Hospital, Dr. Nosnik, and Accident & Injury. This means Lone Star Radiology, Open Air MRI, and Family Care Pharmacy were not served with the brief and it was not possible to determine from the brief if the persons served were attorneys. The list of “Parties and Counsel” did not identify the Christophers. See Tex.R.App. P. 38.1(a). But other errors in the listing of “Parties and Counsel” were readily apparent. Dr. Tamara Upti-grove was identified as counsel for Lone Star Radiology. Dr. Kenneth Lustik was identified as counsel for Open Air MRI. No counsel or representative was identified for Family Care Pharmacy, and Derrick Ford was identified as counsel for Parkland Hospital. But, in apparent response to this listing and identification of “appellees,” the Court simply “added” the following persons to our case management system on June 15, 2004, all as appellees:

Derrick Ford — Pro Se
Bob Kubicki — Pro Se
Lone Star Radiology
Dr. Kenneth Lustik — Pro Se
Family Care Pharmacy — Pro Se
Karen Powell — Pro Se
Dr. Tamara Uptigrove — Pro Se

The source of this information for these “new” appellees appears to be solely from the style and the obviously defective “identity of the Parties and Counsel” in appellant’s corrected brief.

Let the Games Begin

So without any prior involvement in the appeal, on June 24, 2004 we notified the “new” appellees and representatives that their brief had been due on June 7, 2004 and neither a brief nor a motion to extend had been filed. I am not surprised that no brief was filed by persons, entities, or representatives that had no idea that an appeal was proceeding without them. Until June 24, 2004, they had no reason to know they were parties in a case, much less that they were appellees in an appeal.

The clerk received a phone call. The phone call was followed by a letter. The full text of the letter follows:

Dear Ms. Roessler:
As we - discussed following my receipt of your June 24, 2004 letter regarding the above-referenced matter, I have no record of this matter except for correspondence from Mr. Garcia’s office. That lack of documentation leads me to believe that I made no appearance at the trial court. Furthermore, had I made such an appearance, I would have also made an appearance on behalf of Lone Star Radiology and Open Air MRI.
In any event, as we discussed and in light of the above, I represent to the court that Appellees Accident & Injury, Lone Star Radiology, and Open Air MRI will not be submitting briefs in this matter.
By copy of this letter all counsel of record are being served.
Very truly yours,
Robert Kubicki,
General Counsel

As an aside: Can a person make an appearance in an appellate court by having a representative graciously respond to a clerk’s notice that a brief is late when there was no prior involvement in the appeal by the person?

The Court thereafter notified everybody listed in our case management system, including the Christophers, that the case would be submitted without oral argument. An opinion, a dissenting opinion, and judgment were issued. Nothing was said by anyone. No motion for rehearing. No petition for review.

The mandate issued.

Seven days after the mandate issued, counsel for the Christophers responded by letter that they were not parties to the appeal and, therefore, costs should not be assessed against them in the judgment. The only person or entity provided a copy of the letter, other than the Court, was Avila’s counsel. So the medical creditors were not copied or served with the document and thus have no idea this could be coming. They have not been asked to address any of these issues; nobody has.

They should not have to because they are not parties to this appeal.

So under the guise of a clerical error, we are now revising the “style” of the appeal and rendering a judgment assessing appellate costs against persons who had no notice until the eleventh hour that they were allegedly parties to an appeal involving their rights. The final judgment rendered by a majority of this Court did not assess costs against them. But surprise, now you are not only parties to an appeal that you never had a legitimate way to participate in, but you lost and now you owe for costs! Welcome to the Tenth Court of Appeals — ; so glad we could be of service to you.

One Step Back

Before anyone accepts this as an appropriate fix, let us all take one step back. Is this actually a clerical error that we can “fix” by withdrawing an opinion and judgment and recalling a mandate? I think not.

Clerical vs. Judicial Errors

Most of the eases about correcting clerical errors arise from modification of trial court judgments. In this regard, the following discussion is typical.

A clerical error is a discrepancy between the entry of a judgment in the record and the judgment that was actually rendered. See Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986); Butler v. Cont’l Airlines, Inc., 31 S.W.3d 642, 647 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). A clerical error does not result from judicial reasoning, evidence or determination. Andrews, 702 S.W.2d at 585. Conversely, a judicial error arises from a mistake of law or fact that requires judicial reasoning to correct. Butler, 31 S.W.3d at 647. A judicial error occurs in the rendering, rather than the entering of the judgment. Escobar, 711 S.W.2d at 231.
A trial court can only correct nunc pro tunc the entry of a final written judgment that incorrectly states the judgment actually rendered. Id. at 231-32. Even if the trial court incorrectly renders judgment, the trial court cannot alter a written judgment that precisely reflects the incorrect rendition. Id. at 232. If the trial court corrects a judicial error after its plenary power has expired, the judgment is void. Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973). When deciding whether an error in a judgment is clerical or judicial, the court must look to the judgment actually rendered and not the judgment that should have been rendered. Escobar, 711 S.W.2d at 231. Whether an error is judicial or clerical is a question of law. Id.
It is well settled that the rendition of a judgment occurs when the trial court’s decision is officially announced either by a signed memorandum filed with the clerk of the court or orally in open court. In re Fuselier, 56 S.W.3d 265, 268 (Tex.App.-Houston [1st Dist.] 2001, orig. proceeding). Here, neither party disputes that the trial court’s August 2002 letter was the trial court’s rendering of judgment.
In order for a judgment nunc pro tunc to be properly granted, the evidence must be clear and convincing that a clerical error was made. Riner v. Briargrove Park Prop. Owners, Inc., 976 S.W.2d 680, 683 (Tex.App.-Houston [1st Dist.] 1997, no writ); see Broussard, 112 S.W.3d at 833. Evidence may be from oral testimony of witnesses, written documents, previous judgments, docket entries, or the trial judge’s personal recollection. Riner, 976 S.W.2d at 683. If the trial court relies on its own personal recollection of the facts, we presume that the court’s recollection supports the finding of clerical error. Id.

Barton v. Gillespie, 178 S.W.3d 121, 126-27 (Tex.App.-Houston [1st Dist.] 2005, no pet.).

And another example:

Once a trial court loses plenary power over a judgment, it can correct clerical, but not judicial, errors by judgment nunc pro tunc. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986); see also Tex.R. Civ. P. 316. A clerical error is an error in the entry of a judgment; it is a mistake or omission that prevents the judgment as entered from accurately reflecting the judgment that was rendered. Escobar, 711 S.W.2d at 231; Univ. Underwriters Ins. Co. v. Ferguson, 471 S.W.2d 28, 29-30 (Tex.1971); Butler v. Cont’l Airlines, Inc., 31 S.W.3d 642, 647 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). In contrast, a judicial error arises from a mistake of law or fact that results from judicial reasoning or determination. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986); LaGoye v. Victoria Wood Condo. Ass’n., 112 S.W.3d 777, 783 (Tex.App.-Houston [14th Dist.] 2003, no pet.). A judicial error occurs in the rendition, as opposed to the entry, of a judgment. Escobar, 711 S.W.2d at 231.
Whether the trial court previously rendered judgment and the content of the judgment are fact questions for the trial court, but whether an error in the judgment is judicial or clerical is a question of law. Id. at 232; Butler, 31 S.W.3d at 647. Where, as here, no findings of fact or conclusions of law were filed, the trial court’s judgment implies all findings of fact necessary to support it. Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex.1996). Because a record was made of the nunc pro tunc hearing, however, these implied findings are not conclusive, and Wittau may challenge them by raising both legal and factual sufficiency of the evidence issues. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989). We review the trial court’s implied factual determinations under traditional legal and factual sufficiency standards, but are not bound by the trial court’s legal determination regarding the nature of any error in the original judgment. Roberson, 768 S.W.2d at 281; Escobar, 711 S.W.2d at 232; Finlay v. Jones, 435 S.W.2d 136, 138 (Tex.1968) (orig.proceeding).

Wittau v. Storie, 145 S.W.3d 732, 735-736 (Tex.App.-Fort Worth 2004, no pet.).

And one of the better summaries of how to distinguish clerical from judicial error is the following excerpt.

A clerical error results from inaccurately recording the decision of the court. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986); Dickens, 957 S.W.2d at 659. To be clerical in nature, the error must be one that is not the result of judicial reasoning, evidence, or determination. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986); Gutierrez v. Gutierrez, 86 S.W.3d 721, 726 (Tex.App.-E1 Paso 2002, no pet.). Correction of a clerical error does not effect a substantive change in the court’s order. Dickens, 957 S.W.2d at 659. On the other hand, a judicial error results from judicial reasoning or determination. Id. Substantive change results from correction of a judicial error. For instance, an attempt to impose a specific obligation to pay where no such obligation had previously existed is an unlawful substantive change, not a mere clarification or correction of a clerical error. McGehee v. Epley, 661 S.W.2d 924, 925-26 (Tex.1983); In re Broussard, 112 S.W.3d 827, 833-34 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding).
The salient distinction between “clerical” and “judicial” errors lies in the exercise of the judgmental offices of the court. Andrews, 702 S.W.2d at 585. In Andrews, a probate court order allowed a sale of estate property in accordance with a real estate sales contract, which included a grant of an easement. Id. The recorded deed failed to mention the easement, however. Id. The administrators obtained from the probate court an order nunc pro tune correcting the deed to reflect the conveyance of the easement. Id. After the court of appeals reversed the probate court’s decision, the Texas Supreme Court determined the correction was proper and affirmed the probate Court’s correction. Id. at 586. The court reasoned, since the entry of the order nunc pro tunc would not involve additional judicial reasoning, the error at issue was clerical in nature and the probate court could correct the deed to properly reflect the judgment originally rendered. Id.
To further illustrate the well-established rules regarding what qualifies .as a judicial error, we look to the 1891 case of Missouri Pac. Ry. Co. v. Haynes, in which respondents sued the railway company for the value of eighty-seven bales of cotton, weighing 43,064 pounds, destroyed by fire negligently caused by the company while the cotton was in its possession. 82 Tex. 448, 18 S.W. 605 (1891). There was no controversy over the number of bales or their weight, and at the trial the railway company did not deny that eighty-seven bales were burned. Id. However, in its calculation of the gross weight of the cotton destroyed, the trial court omitted the bill of lading for six bales of cotton. Id. Nearly six months after judgment was rendered, respondents moved the trial court to correct the judgment to include the value of the six bales. Id. The trial judge testified that he found for respondents the weight of the entire eighty-seven bales, that he intended to give judgment for that amount, and that he thought he had done so until the motion to correct the judgment was filed. Id. The trial court granted the motion. Id. The Texas Supreme Court disagreed, concluding that respondents’ remedy, if any, would have been by a timely motion for new trial or by appeal rather than a motion to reform a final judgment. Id. The failure of the court to consider and compute the value of the six bales of cotton was a judicial error, not a clerical error. It was a failure to consider evidence in the case and represented an erroneous judgment on the facts. Id.
Similar determinations can be found in cases involving child support orders and modifications. For instance, when, after its plenary power expired, the trial court entered a judgment that ordered a father to pay $38.00 per month in reimbursement of his child’s healthcare insurance premiums and the original judgment did not impose such an obligation, the corrected judgment was ineffective as a judgment nunc pro tunc and was void. Broussard, 112 S.W.3d at 833-34. The attempted correction did not involve a mere clerical error since it imposed an obligation where previously there had been none. Id.

In re Marriage of Ward, 137 S.W.3d 910, 913-914 (Tex.App.-Texarkana 2004, no pet.).

When this reasoning is applied to this appellate case, the error the majority is trying to correct is judicial, not clerical. The corrected judgment imposes court costs on entirely different entities than was imposed by the original judgment. The original judgment was not the result of a clerical error. Thus, the “Corrected Opinion” and judgment are void.

And for the majority to argue that they did not intend the judgment to be entered against the Christophers and Williams does not yield a flattering picture of the conduct of their offices. In the original dissenting opinion, I directed the readers’ attention to:

1. the discrepancy between the style of the case on the opinion and the style used on appellant’s brief;
2. the fact the medical creditors had never been served in the case below;
3. the only judgment to review among the parties to the case below was the settlement/dismissal with the defendants below; and
4. “the only thing that is clear is that B.G. Williams is NOT a party to this appeal. This appeal is from the claims of Avila against Andy and Daniel Christopher which were severed and settled. The only notice of appeal in the record [actually both notices of appeal] gives the original style of the case ...”

Avila v. Christopher, No. 10-04—00021-CV, 2005 WL 1531170, 2005 Tex.App. LEXIS 5038, *5-11 (Tex.App.-Waco June 29, 2005, no pet.)(Gray, C.J., dissenting).

In the face of these comments in the dissenting opinion, the majority issued an opinion identifying the Christophers and Williams as the appellees and a judgment awarding costs against those appellees. Now they say the original opinion and judgment were the result of a clerical error.

So what else could all this mean? Of course it could mean the majority read the dissent, but were consciously indifferent to the problems it identified. The only other alternative is that the majority consciously chose not to read the dissenting opinion. Under either of these scenarios, the erroneous judgment cannot be anything other than a judicial error. They either intended the result originally rendered, willfully and consciously chose not to correct it when their attention was directed to this problem by the dissenting opinion, or willfully and consciously failed to read the original dissenting opinion.

Let’s Start Over

The discussion of this original case on appeal could have been addressed very simply. The appellant failed to establish a number of the elements to show himself entitled to attorney’s fees for bringing an interpleader action. He unreasonably delayed bringing the interpleader while trying to negotiate a settlement. He failed to establish himself as an innocent stakeholder by seeking 66.66% of the interpleaded funds for himself and as an attorney fee from the fund.

During negotiations with the medical creditors Avila graphically -demonstrated the delay in tendering the funds was unreasonable and that Avila was not an “innocent” stakeholder. This is the settlement Avila proposed:

Defendant’s insurance has [sic] the maximum policy limits of $20,000.00, which this has settled for that amount. This is the maximum we can obtain from the defendant’s insurance. This settlement amount must be divided 1/3 to the client, 1/3 to the attorney, and 1/3 to all the medical providers, [sic] Please keep in mind and consider the fact that if the medicals do not decrease, we may be forced to ñle a motion of interpleader and have the court decide how much you will get. Please keep in mind that this amount ($6,666.66) must cover ALL his outstanding medical bills.

Appendix to Appellant’s Brief, tab K.

The outrageousness may not be immediately apparent unless you also know the total medicals he was trying to settle for $6,666 was $72,468, AND that there is another suit pending, the severed suit against Williams, in which the extent of his medical injuries and medical expenses will be used to maximize the recovery. Under Avila’s settlement proposal, the medical creditors’ lien on the recovery in that suit would be extinguished.

Further, Avila had not tendered the funds into the court, which is an element of an interpleader action, holding them instead in the attorney’s trust account. Avila held onto the funds so long he was ordered to pay the funds into the court and it is not clear on the record before us that he ever did.

And, finally, Avila only presented evidence of his efforts to secure the settlement and efforts to obtain the part (66.66%) Avila claimed he and his attorney were entitled to out of the fund. He presented no evidence of the fees and expenses incurred to bring the interpleader and, under his theory on appeal, that is all he might have been entitled to obtain. And on remand, that will be all that Avila is entitled to under the majority’s opinion and judgment: the fees necessary for bringing this interpleader action — not the fees necessary to obtain the settlement fund: And whatever amounts are allocated to the medical creditors on remand, it should be made clear that this is an allocation of proceeds of a partial settlement fund and does not extinguish the entirety of their medical creditor lien as Avila was demanding in his settlement proposal.

Conclusion

So I conclude where my earlier dissenting opinion began:

There is simply no pleasant way to say this. This case and its appeal have been botched beyond repair, and it is not this Court’s job to fix it.

Now the majority’s two efforts to “fix” the case for Avila have become part of the problem. This dissenting opinion as well as my original dissenting opinion address why the majority is wrong on the merits of this appeal. This dissenting opinion also addresses why the corrected opinion and judgment are void. I dissent.

      . The case style has been changed by the majority so I must use their style to make sure the opinions are issued and kept together. But, for a number of reasons that will become apparent in this dissenting opinion, I think this change is in error.