author: HOLCOMB, J.,

text:
    Ex Parte Bryan P. SUHRE, Applicant.
    No. AP-75033.
    Court of Criminal Appeals of Texas.
    Feb. 8, 2006.
    Jack F. Holmes, Temple, for Appellant.
    Sean K. Proctor, Asst. District Atty., Belton, Matthew Paul, State’s Atty., Austin, for State.
   HOLCOMB, J.,

delivered the opinion of the unanimous Court.

This is a post-conviction habeas corpus proceeding, initiated under Article 11.07, § l, in which Bryan P. Suhre seeks relief from a trial court order denying his motion for forensic DNA testing. We will dismiss Suhre’s application for habeas corpus relief.

The record reflects the following relevant facts. In June 1996, a Bell County petit jury found Suhre guilty of murder under Tex. Penal Code § 19.02. The jury assessed his punishment at imprisonment for 99 years. In February 1996, the Third Court of Appeals affirmed Suhre’s conviction and sentence. Suhre v. State, No. 03-96-00438-CR, 1996 WL 727376 (Tex.App.-Austin, Dec.19, 1996, pet.ref'd) (not designated for publication). In October 2001, Suhre filed in the convicting court a pro se motion for forensic DNA testing. See Art. 64.01(a). In June 2002, the convicting court appointed counsel to represent Suhre in the DNA proceeding. See Art. 64.01(c). In November 2002, the convicting court issued an order denying Suhre’s motion for forensic DNA testing. Suhre’s appointed counsel, however, took no steps to determine whether the convicting court had ruled on Suhre’s motion and did not inform Suhre that his motion had been denied. In January 2003, Suhre filed an untimely pro se notice of appeal from the convicting court’s order denying his motion for forensic DNA testing. In February 2003, the Third Court of Appeals dismissed Suhre’s appeal for want of jurisdiction. In re Suhre, No. 03-03-00066-CR, 2003 WL 328849 (Tex.App.-Austin, Feb.13, 2003) (not designated for publication).

In January 2004, Suhre filed an application for a writ of habeas corpus in the convicting court, seeking an out-of-time appeal from the convicting court’s order denying his motion for forensic DNA testing. In the application, Suhre, citing the Sixth Amendment to the United States Constitution, argued that his “appointed counsel [in the DNA proceeding had been] ineffective for failing to take reasonable steps to advise [him] that his ... motion for forensic DNA testing [had been] denied so that [he] could pursue [appellate] remedies.” In July 2004, the convicting court forwarded Suhre’s application to this Court, along with the convicting court’s recommendation that Suhre be granted an out-of-time appeal. In October 2004, we ordered Suhre’s application filed and set for submission “to determine whether an inmate who has been appointed counsel pursuant to a motion for DNA testing filed under Chapter 64 has the right to effective assistance of counsel under the Sixth Amendment.” Ex parte Suhre, No. AP-75,033 (Tex.Crim.App.-Oct.27, 2004) (not designated for publication).

In Ex parte Baker, No. AP-75,196, 185 S.W.3d 894, 898 (Tex.Crim.App.2006), decided this day, we held, after a thorough discussion, that “the post-conviction writ of habeas corpus is not available for ... claims of ineffective assistance of counsel in [Chapter 64 DNA] proceedings.” However, in the course of our analysis, we noted that “Chapter 64 does not prohibit a second, or successive, motion for forensic DNA testing, and ... a convicting court may order testing of material that was not previously tested through no fault of the convicted person [if] the interests of justice require DNA testing.” Id. at 897-98 (some internal punctuation omitted). Therefore, it is conceivable that a convicted person who receives ineffective assistance of counsel in a DNA proceeding may be entitled to relief by way of a second DNA proceeding.

In accordance with our decision in Ex parte Baker, we dismiss Suhre’s application for habeas corpus relief.

      . All references and citations to articles are to those in the Tex.Code of Crim. Proc.


source: Caselaw Access Project

author: JOHNSON, J.,

license: Public Domain

text:
    Marvin Luther MARSHALL, Appellant v. The STATE of Texas.
    No. PD-2016-04.
    Court of Criminal Appeals of Texas.
    Feb. 15, 2006.

      Judy R. Hodgkiss, Paris, for Appellant.
    Betty Marshall, Asst. State Prosecuting Atty., Matthew Paul, State’s Atty., Austin, for State.
   OPINION

JOHNSON, J.,

delivered the unanimous opinion of the Court.

A jury convicted appellant of burglary of a habitation and sentenced him to forty-five years’ imprisonment and a $10,000 fine. The court of appeals affirmed the conviction, but vacated the sentence and remanded to the trial court for a new trial on punishment. Marshall v. State, No. 06-03-00215-CR, 2004 WL 2715398 (Tex.App.-Texarkana, delivered December 1, 2004)(unpublished). We granted the State Prosecuting Attorney’s petition for discretionary review and refused appellant’s petition.

The indictment alleged burglary of a habitation with intent to commit theft but, significantly, contained no enhancement paragraphs. On April 17, 2003, the state filed a “Notice of Intent to Seek Enhanced Sentence as a Repeat Offender Pursuant to Texas Penal Code Sec. 12.42(b).” Section 12.42(b) describes enhancement of the penalty range for a second-degree felony to a first-degree penalty range if it is proved at trial that the defendant has one prior final felony conviction. The enhancement notice described two prior convictions from Oklahoma and listed dates of final adjudication of the convictions that were more than four years apart. The notice expressed the state’s intention to ask that appellant be sentenced as a repeat offender in accordance with § 12.42(b), which would increase the penalty range from “a minimum of 2 years to 20 years imprisonment ... and a fine not to exceed $10,000.00” to “a minimum of 5 years and a maximum of 99 years/life” in prison.

On April 22, 2008, the state filed its “Notice of Intent to Introduce Evidence of Extraneous Offenses.” This notice described five additional Oklahoma convictions, but did not include the dates of conviction. It also expressed the state’s intention to introduce at trial evidence of those Oklahoma offenses and cited Tex. Code Crim. PROC., Article 37.07(3)(a) and (g), and Texas Rules of Criminal Evidence 404(b) and Rule 609(f).

The record reflects that none of the Oklahoma convictions were read to the jury until the punishment phase. After the sole punishment witness, the state’s fingerprint expert, had testified and both parties had closed, the trial court said to defense counsel, “I’m going to enter a plea of not true as to each prior on behalf of your client. Is that correct?” Defense counsel responded, “That’s correct, judge.” The trial court then read the punishment charge to the jury.

The punishment jury charge that the trial court read to the jury instructed the jury that it was alleged that appellant “was two times duly and legally convicted of a felony, namely” the two Oklahoma convictions set out in the enhancement notice. Those two Oklahoma convictions were identified by district court, cause number, and date and offense of conviction. However, the names in the style of the cases included in the jury charge, “State of Oklahoma v. Marshall Michael Brown” and “State of Oklahoma v. Melvin B. Marshall,” differed from Marvin Luther Marshall, appellant’s name as listed in the enhancement notice.

The punishment charge instructed the jury that the punishment range for burglary of a habitation, enhanced by two prior felony convictions, “is confinement ... for a period of not less than 25 years nor more than 99 years or life” and that, in addition, the jury may assess a fine not to exceed $10,000. Such an enhancement of penalty range for habitual criminals with two prior felony convictions was authorized under Texas Penal Code Sec. 12.42(d), but was at odds with the state’s notice of its intent to seek an enhanced penalty range for repeat offenders with one prior felony conviction pursuant to Texas Penal Code Sec. 12.42(b). The charge also instructed the jury that, if it found beyond a reasonable doubt that appellant previously had been two times duly and legally convicted of felonies, it would find the allegations “true” and assess the punishment at “imprisonment ... for any term of not more than 99 years, or life, or less than 25 years” and a fine not to exceed $10,000. The jury returned a verdict finding the two Oklahoma prior convictions “true” and assessed punishment at imprisonment for a term of 45 years and a $10,000 fine.

On direct appeal, appellant raised several claims, including complaints about due process, ineffective assistance of counsel, failure to read the enhancement allegations and take appellant’s plea as to those allegations at the beginning of the punishment phase, and jury-charge error. After addressing these claims, the court of appeals vacated appellant’s sentence and remanded for a new punishment trial because it found that the evidence of the prior convictions was procedurally insufficient to support the enhancement of the sentence. Relying on Welch v. State, 645 S.W.2d 284 (Tex.Crim.App.1983), the court of appeals ruled that, because the only evidence in support of the prior convictions was introduced before both the reading of the enhancements to the jury and the taking of appellant’s pleas as to those convictions, “no issue was joined.” The state was required to either re-offer the evidence or obtain a stipulation from appellant. Marshall, supra, slip op. at 4. The court of appeals also found that the punishment jury charge was defective, that the failure to read the enhancement paragraph or take appellant’s plea at the beginning of the punishment phase was error, and that appellant’s trial counsel made errors during the punishment phase of trial. However, because it had already reversed on other grounds, the court of appeals did “not assess harm as to those items.” Id. at 3. We granted the State Prosecuting Attorney’s grounds for review.

In its first ground for review, the state asserts that the court of appeals failed to address the issue of preservation of error. We observe that the court of appeals did indeed discuss Tex.R.App. P. 33.1(a)’s requirement of a specific trial objection being necessary to preserve error for appellate review. Marshall, supra, slip op. at 9-10. The court of appeals specifically overruled appellant’s due-process points of error because appellant failed to object to the variance between the notice and jury charge and did not object to the jury charge with regard to the variance in penalty range. Id. at 10. Thus, the state’s ground number one, that the court of appeals “erred in failing to address the issue of preservation of error,” is overruled.

In its second ground for review, the state asserts that, in its sufficiency review, the court of appeals failed to consider all the evidence that supported enhancement. The court of appeals very specifically based its ruling on what it termed “procedural sufficiency,” finding that, because the supporting evidence was introduced before the reading of the prior conviction allegations and the taking of appellant’s plea, “no issue was joined.” Id. at 4 (citing Welch at 285). When evaluating a claim of legal or factual sufficiency, the reviewing court must consider all admitted evidence, but this defect arose from a trial error, rather than a true lack of evidence. Because sufficiency of the evidence was not the issue, consideration of all admitted evidence would not have changed the result. The state’s second ground for review is overruled.

In its third ground for review, the state asserts that the court of appeals failed “to address the issue of whether any error was harmless.” It argues that “[t]he failure to read the enhancement allegations and take [appellantj’s plea at the beginning of the punishment phase was error, ... but the error was not preserved for appellate review, it did not result in insufficient evidence, and it was harmless.”

Appellant argues that the enhancement allegations were never read to the jury during the evidentiary portion of the punishment phase, but rather, after the close of evidence, the trial court stated that it was entering a plea of not true. He asserts that “the entire omission of the reading of an indictment and obtaining a plea thereto is ‘structural error’ not subject to a harm analysis.” Appellant also cites Turner v. State, 897 S.W.2d 786, 788-89 (Tex.Crim.App.1995), in which we reaffirmed the principle of prior holdings that the reading of enhancement paragraphs at the penalty stage and entering a plea are mandatory and held that the error in not doing so is reversible because a harm analysis is inapplicable to such error. Id. at 789. Appellant argues that Turner is still good law and dispositive.

Just as a defense counsel has a strategy, so has a prosecutor. Among the available strategies for the state is an election not to pursue enhancements. If the enhancements are in the indictment and the state does not abandon them, the defendant is on notice that the state is still seeking a greater penalty range. Here, however, the notice of intent to seek a greater penalty was in a separate document of a kind not usually read to a jury. In such circumstances, the failure to read enhancement allegations does not put a defendant on notice that the proceedings may have gone amiss and thus no objection is required. Likewise, a failure to take a plea from a defendant at that time raises no alarms as there are no allegations to which to plead.

During the punishment phase of trial, the state introduced evidence of a number of prior convictions, but again, no alarms would be raised because the state had given notice of its intent to introduce extraneous offenses, a term that may include offenses that might otherwise be used for enhancement of penalties. Again, appellant was not required to object, as he still had no notice that the proceedings may have gone amiss. However, when the jury charge was read and it became abundantly clear that the state was asking for enhancement far beyond that specified in its notice to appellant, appellant was bound to object. We observe that appellant had a “reasonable time to examine” the charge of the court before the charge was read to the jury. TexCode Crim. Proo., Article 36.14. He was then aware that the trial court proposed to submit an issue of fact that, in his view, had not been pleaded properly, i.e. the enhancement allegations that had not been included within the indictment or timely read to the jury. At that point, appellant should have objected, but he did not.

Because appellant failed to object to the alleged error in the jury charge, he must show egregious harm before relief may be granted. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). We sustain the state’s third ground for review and remand the cause to the court of appeals so that the court may perform a harm analysis pursuant to Almanza.

      .In a case where the enhancement allegations were not read to the jury or the defendant’s plea obtained until after the State’s evidence supporting the allegations was introduced, the Court of Appeals erred in failing to address the issue of preservation of error.
      2. In the same case, the Court of Appeals erred in failing to consider all the evidence actually admitted at trial in its review of the sufficiency of the evidence supporting the enhancement of the defendant’s sentence.
      3. In the same case, the Court of Appeals erred in failing to address the issue of whether any error was harmless.

      . In Welch, this court "found trial error, not insufficient evidence.” 645 S.W.2d at 286.

      . The state points out that at no time during trial did appellant complain about the failure to read the enhancement allegations to the jury and obtain his plea or the jury's consideration of the state’s evidence, which was introduced before the enhancement allegations were read and his plea obtained. The state also notes that appellant did not object to the failure to read the enhancement allegations when his plea was tardily obtained or to the jury charge instructing the jury that he was alleged to have twice before been convicted of a felony and that he had plead "not true.” The state asserts that, had appellant objected, "the error could easily have been cured, either by reading the enhancement allegations and taking his plea before the State’s evidence was introduced or by allowing the State to reoffer its evidence after the allegations were read and the plea taken.”


author: HERVEY, J.,

text:
    David Guzman PONCIO, Appellant v. The STATE of Texas.
    No. PD-386-05.
    Court of Criminal Appeals of Texas.
    Feb. 15, 2006.
    Mary Connealy Acosta and Patrick F. McCann, Houston, for Appellant.
    Dan MeCrory, Asst. District Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion for a unanimous Court.

Appellant was convicted of burglary of a habitation. The evidence shows that someone entered the victim’s home without the victim’s consent and stole two guitars. The victim testified that he left his home at around 10:00 a.m. When he returned home between 11:00 a.m. and 11:30 a.m., he discovered that someone forcibly entered his home and stole the guitars. Appellant pawned the guitars at a pawnshop less than a mile away from the victim’s home at 10:29 a.m.

On direct appeal, the Court of Appeals decided that the evidence is legally sufficient to support appellant’s conviction because the jury could infer from the evidence, including appellant’s unexplained possession of the recently stolen guitars, that appellant was guilty of the burglary offense beyond a reasonable doubt. See Pondo v. State, No. 01-02-1174-CR, slip op. at 3-4, 2004 WL 2749492 (Tex.App.Houston [1st Dist], delivered December 2, 2004) (not designated for publication). We exercised our discretionary authority to review this decision. The ground upon which we granted discretionary review states:

Whether the Court of Appeals ignored the elements of entry when denying the petitioner’s appeal on the basis of legal insufficiency in a burglary?

Appellant argues that our case law permitting an inference of guilt in some theft cases from a defendant’s unexplained possession of recently stolen property does not apply to burglary cases. He claims that, without this inference, the evidence is insufficient to support a finding that he entered the victim’s home.

The rule in this and most, if not all, jurisdictions seems well settled that, in cases like this, a defendant’s unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the burglary. See Willis v. State, 55 S.W. 829 (Tex.Cr.App.1900) (unexplained possession of recently stolen property is sufficient to connect a defendant with the taking of the property from the burglarized house, and therefore sufficient to connect the defendant with the burglary); see also Dove v. State, 402 S.W.2d 913, 915 (Tex.Cr.App.1966) (defendant’s unexplained possession of recently stolen property in apartment that defendant shared with someone whom jury could have concluded was physically incapable of committing the offense sufficient to support defendant’s burglary conviction); State v. Rice, 93 Kan. 589, 144 P. 1016, 1017 (1914) (“weight of authority is that proof that a burglary was committed, and that goods were then and there stolen, and shortly thereafter found in the possession of the accused, will sustain a conviction”); Wade R. Habeeb, Annotation, What Amounts To “Exclusive” Possession Of Stolen Goods To Support Inference Of Burglary Or Other Felonious Taking, 51 A.L.R.3d 727 (1973) and at 200 (2005 Supp.); compare White v. United States, 300 A.2d 716, 718-20 (D.C.1973) (inference not permitted absent independent evidence of a burglary).

We reaffirm the application of this rule in cases like this. See Dove, 402 S.W.2d at 913, 915; Willis, 55 S.W. at 829. Appellant’s exclusive and unexplained possession of property recently stolen in a burglary in conjunction with the fact that he pawned the property very close to the burgled home are sufficient to support his burglary of a habitation conviction.

The judgment of the Court of Appeals is affirmed.

      . See Tex. Pen.Code, § 30.02(a)(1), (person commits burglary if, without the owner’s consent, the person enters a habitation with the intent to commit theft).

      . Compare Chavez v. State, 843 S.W.2d 586, 587-88 (Tex.Cr.App.1992) (decisional law "has long permitted the conviction of a person for theft if the evidence shows him to have been found, in possession of recently stolen property without offering an explanation inconsistent with guilt when first called upon directly or circumstantially to do so”); Hardesty v. State, 656 S.W.2d 73, 76-77 (Tex.Cr.App.1983) (unexplained possession of recently stolen property permits an inference of guilt for the offense of theft); Rogers v. State, 929 S.W.2d 103, 108 (Tex.App.-Beaumont 1996, no pet.) (when there is independent evidence of a burglary, the unexplained personal possession of recently stolen property will support an inference of guilt of the offense in which the property was stolen).


author: JAMES T. WORTHEN, Chief Justice.

text:
    In the Interest of Z.J.W., a Child.
    No. 12-05-00053-CV.
    Court of Appeals of Texas, Tyler.
    Jan. 31, 2006.

      B. Diane Heindel, Law Firm of Diane Heindel, Tyler, for appellant.
    Harold B. Beck, Tyler, John B. Worley, Rhonda A. Pressley, Austin, for appellee.
    Panel consisted of WORTHEN, C. J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Dwight Simon Wofford appeals the trial court’s default judgment establishing his paternity of Z.J.W. and setting child support. Wofford raises one issue on appeal. We reverse and remand.

Background

The Attorney General for the State of Texas sued to establish Wofford’s paternity of Z.J.W. and set child support. Wof-ford did not appear for trial, and the trial court entered a default judgment against him. This restricted appeal followed.

Service of Process

In his sole issue, Wofford argues that the trial court erred in rendering a default judgment because it does not appear affirmatively on the face of the record that he was served with process in strict compliance with the Texas Rules of Civil Procedure. Specifically, Wofford contends that the process does not contain an endorsement of the day and hour of its receipt by the officer for service.

Proper citation and return of service are crucial to establishing personal jurisdiction. See TAC Americas, Inc. v. Boothe, 94 S.W.3d 315, 318-19 (Tex.App.Austin 2002, no pet.). There are no presumptions in favor of a valid issuance, service, and return of citation in the face of an attack on a default judgment by restricted appeal. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994); Renaissance Park v. Davila, 27 S.W.3d 252, 255 (Tex.App.-Austin 2000, no pet.). For a default judgment to withstand direct attack, the record must show strict compliance with the Texas Rules of Civil Procedure governing citation and return of service, and a plaintiff defending a default judgment must show strict compliance with the procedural rules governing citation and return of service. See Silver, 884 S.W.2d at 152. Virtually any deviation will be sufficient to set aside the default judgment in a restricted appeal. See Becker v. Russell, 765 S.W.2d 899, 901 (Tex.App.Austin 1989, no writ).

“Every officer or authorized person shall endorse on all process and precepts coming to his hand the day and horn’ on which he received them, the manner in which he executed them, and the time and place the process was served and shall sign the returns officially.” Tex.R. Civ. P. 16. Likewise, Texas Rule of Civil Procedure 105 requires that the officer or authorized person to whom process is delivered shall endorse thereon the day and hour on which he received it and shall execute and return the same without delay. See Tex.R. Civ. P. 105.

In the case at hand, the process server wholly failed to endorse the process with the day and hour on which he received it. As such, the State cannot show that the process was in strict compliance with Texas Rule of Civil Procedure 105.

The State, however, argues that although “strict compliance” means literal compliance with the rules, see Amato v. Hernandez, 981 S.W.2d 947, 949 (Tex.App.-Houston [1st Dist.] 1998, pet. denied), it does not require obeisance to the minutest detail. See Williams v. Williams, 150 S.W.3d 436, 443-44 (Tex.App.-Austin 2004, pet. denied); Regalado v. State, 934 S.W.2d 852, 854 (Tex.App.-Corpus Christi 1996, no writ); Herbert v. Greater Gulf Coast Enterprises, Inc., 915 S.W.2d 866, 871 (Tex.App.-Houston [1st Dist.] 1995, no writ). In conjunction with this principle, several courts of appeals have held that as long as the citation and return show, with reasonable certainty, that the citation was served on the defendant in the suit, service of process will not be invalidated. See, e.g., Williams, 150 S.W.3d at 444 (omission of petitioner’s name from citation not fatal where no confusion about whether the correct party was actually served); Regalado, 934 S.W.2d at 854 (hand-written notation “c/o Maria Regalado” on the return of the citation did not invalidate service where citation and return show, with reasonable certainty, that the citation was served on the defendant in the suit); Ortiz v. Avante Villa at Corpus Christi Inc., 926 S.W.2d 608, 613 (Tex.App.Corpus Christi 1996, writ denied) (the omission of the accent mark and the substitution of the symbol “@” for the word “at” are akin to the errors that do not invalidate service); Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex.App.-Houston [14th Dist.] 1987, writ ref d n.r.e.) (judgment upheld where petition and citation reflected registered agent “Philippe Petitfrere,” the return reflected “Philipee Petitfreere”); Popkowsi v. Gramza, 671 S.W.2d 915, 918 (Tex.App.Houston [1st Dist.] 1984, no writ) (judgment upheld where there was dispute of fact whether handwritten return of service said “Michael Poprowski” or “Michael Pop-kowski”). In other words, it has been held that in certain instances, substantial compliance will suffice.

Yet, for well over a century, the Texas Supreme Court has required that strict compliance with the rules of service of citation affirmatively appear on the record in order for a default judgment to withstand direct attack. See Silver, 884 S.W.2d at 152 (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965); Flynt v. Kingsville, 125 Tex. 510, 82 S.W.2d 934, 934 (1935); Sloan v. Batte, 46 Tex. 215, 216 (1876); Roberts v. Stockslager, 4 Tex. 307, 309 (1849)). We iterate that “strict compliance” means literal compliance with the rules. See Hernandez, 981 S.W.2d at 949.

In the instant case, the process wholly failed to comply with Texas Rule of Civil Procedure 105. We cannot conclude that the entirety of the text of Rule 105 amounts to a minute detail or formality. Were we to so conclude, it would amount to a holding that Rule 105 is ineffectual and could be disregarded. Inasmuch as the Texas Supreme Court has not sought to repeal Rule 105, we conclude that literal compliance with its mandates is required for service to support a default judgment. Therefore, because the process in the case at hand wholly failed to comply with Rule 105, the default judgment rendered against Wofford was improper. Wofford’s sole issue is sustained.

Disposition

Having sustained Wofford’s sole issue, we reverse the trial court’s default judgment and remand the matter for a new trial.

      . See Tex.R.App. P. 30.

      . This court has recently cited Herbert for the proposition that strict compliance does not require obeisance to the minutest detail. See, e.g., Fidelity & Guarantee Ins. Co. v. Drewery Constr. Co., Inc., No. 12-04-00084-CV, 2005 WL 468323, at *2 (Tex.App.-Tyler February 28, 2005, pet. filed). Cases such as these turn on their facts. As set forth herein, we do not consider the omission in the instant case to be a minute detail.

      . Wofford has noted other defects concerning the process and return of service in conjunction with his sole issue. Because Woford’s first argument was dispositive of the issue, we did not reach his remaining arguments.


author: DAVID PURYEAR, Justice.

text:
    In the Matter of E.P.
    No. 03-04-00352-CV.
    Court of Appeals of Texas, Austin.
    Feb. 2, 2006.

      Gregory D. Freed, Juvenile Public Defender, Austin, for appellant.
    C. Bryan Case, Jr., Erika Nicole Sipiora, Asst. Dist. Atty., Austin, for appellee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

In December 2003, a Wal-Mart loss prevention officer named Roberto Galaviz saw E.P., who was fourteen years old, remove the price tags from merchandise worth a total of $21.94 and place the items in her pockets. When Galaviz stopped E.P. after she left the store, E.P. took the items from her pockets and handed them to Galaviz. E.P. was charged with intentionally and knowingly removing a writing with intent to defraud the property’s owner. See Tex. Pen.Code Ann. § 32.47 (West 2003). E.P. admitted that she took the price tags off the items and put the items in her pockets, intending to steal them, and that she removed the tags so the alarm would not sound as she left the store. At trial, E.P. argued that she should have been charged with class C misdemeanor theft, see id. § 31.03(e)(1) (West Supp.2005), rather than under section 32.47, which is a class A misdemeanor. See id. § 32.47(c). The trial court overruled E.P.’s complaint and found the charged offense to be true beyond a reasonable doubt, placing E.P. on six months’ probation in her mother’s custody. E.P. appeals, arguing the evidence is legally and factually insufficient to support the adjudication of delinquency because there was insufficient evidence that she acted with fraudulent intent. We affirm the trial court’s judgment.

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In reviewing the factual sufficiency, we view all of the evidence in a neutral light, comparing evidence in support of a disputed fact with evidence tending to disprove that fact. Id. We will set aside a verdict for factual insufficiency only if the proof of guilt is so obviously weak or so greatly outweighed by contrary proof as to undermine confidence in the verdict. Id. at 11.

A person commits an offense under section 32.47 if, with an intent to defraud or harm another person, she “destroys, removes, conceals, alters, substitutes, or otherwise impairs the verity, legibility, or availability of a writing.” Tex. Pen.Code Ann. § 32.47(a). A writing is defined to include “universal product codes, labels, price tags, or markings on goods.” Id. § 32.47(b)(4). The penal code does not define “defraud.” In such a case, we give that word its “plain meaning unless the statute clearly shows that [it was] used in some other sense,” Coggin v. State, 123 S.W.3d 82, 88 (Tex.App.Austin 2003, pet. ref'd), and look to the dictionary or other such sources to determine the word’s definition. See Oler v. State, 998 S.W.2d 363, 368 (Tex.App.-Dallas 1999, pet. ref'd, untimely filed) (noting that fraud and deception are not statutorily defined and referring to dictionary definition for ordinary usage of terms). Fraud is defined as “trickery or deceit,” “intentional misrepresentation, concealment, or nondisclosure for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him,” or “a false representation of a matter of fact by words or conduct ... or by the concealment of what should have been disclosed that deceives or is intended to deceive another so he shall act upon it to his legal injury.” Webster’s Third New International Dictionary 904 (1986). A person defrauds another if she takes or withholds from another “some possession ... by calculated misstatement or perversion of truth, trickery, or other deception.” Id. at 593; see also Margraves v. State, 34 S.W.3d 912, 923 (Tex.Crim.App.2000) (Johnson, J., concurring) (because penal code does not define “defraud,” courts are to use common meaning; “[a]n entry in a thesaurus gives the synonyms of dupe, swindle, cheat, or deceive,” and defraud “appears to be a specific way of causing ‘harm’ ”); Gonzales v. State, 670 S.W.2d 413, 415 (Tex.App.-Corpus Christi 1984, no pet.) (in cases involving criminal fraud, “the common thread running through the various schemes and plots is that the defendant participated in some form of deceit or deception”).

E.P. argues that because most of the cases prosecuted under section 32.47 involve the substitution of price tags or price codes in an attempt to buy a product for an incorrect, lower price, this shows that section 32.47 is not intended to apply to her actions and that she instead should have been charged with Class C misdemeanor theft. We disagree.

Although most cases brought under section 32.47 involve the kind of scenario described by E.P., this does not mean that section 32.47 cannot apply to E.P.’s actions as well. E.P. states that she never “represented] — either overtly or by implication — the items were hers.” To the contrary, by her actions, E.P. asserted that she did not have to pay for items concealed in her pockets and that those items were her property. E.P. attempts to distinguish other section 32.47 cases, arguing that in those cases the defendants used deception to acquire the items in question. However, she does not explain how switching price tags is deceptive while removing tags and concealing items is not. We see very little distinction between placing an untagged necklace in one’s pocket and putting an untagged necklace on one’s neck, in both cases attempting to leave a store without paying for the item, setting off an alarm, or drawing the store employees’ attention. Nor do we see a meaningful difference between switching price tags in an attempt to pay a lower price for an item and removing tags and concealing items in an attempt to leave without paying at all.

E.P. also notes that, when challenged by Galaviz, she did not attempt to assert that the items belonged to her and points to civil cases involving the tort of fraud. She relies on the civil definition of fraud and argues that she did not make an inducement or false representation and cannot be found to have had a fraudulent intent. Again, we disagree.

Fraud as used in the penal code does not rely on the specialized civil tort definition of fraud, nor does the State have to show an oral misrepresentation of ownership to prove a fraudulent intent. Instead, a defendant’s actions — whether switching price tags or removing tags and concealing an item — may show an intent to defraud or harm the owner of the property. Put another way, E.P.’s “inducement” or deceptive conduct can be characterized as removing the tags and hiding the items in her pocket, just as in another case the inducement or deceit might be substituting a lower-priced tag. See Mills v. State, 722 S.W.2d 411, 415 (Tex.Crim.App.1986) (discussing whether section 31.03 (consolidated theft statute) and section 32.46 (“securing execution of document by deception”) are in pari materia and stating that: section 31.03 created new offense encompassing all types of acquisitive conduct that were earlier proscribed in separate statutes, that “[t]he gravaman of the offense remains the penalization of unlawful acquisitive conduct,” and that “deception is not of itself ‘forbidden conduct’ ” under section 31.03; whereas under section 32.46, “the ‘forbidden conduct’ is deception” and deceptive conduct “must be perpetrated with the specific ‘intent to defraud or harm any person’ ”); Dodson v. State, No. 04-96-00427-CR, 1997 WL 136500, at **1-2, 1997 Tex.App. LEXIS 1450, at *4-*6 (Tex.App.-San Antonio Mar. 26, 1997, no pet.) (not designated for publication) (defendant who replaced tags with lower-priced tags and was convicted of felony theft complained on appeal that he should have been charged under section 32.47 instead; court observed that legislature’s intent with theft statute was to “create a generalized standard against which the unlawfulness of all acquisitive conduct can be measured,” whereas in section 32.47, legislature proscribed “conduct that is deceptive rather than acquisitive”; because two statutes prohibit different kinds of conduct and have different elements of proof, State may charge defendant with theft and need not limit charges to misdemeanor offense under section 32.47).

The evidence shows that E.P. took the price tags off of several items, threw the tags away, concealed the items in her pocket, and left the store without paying for the merchandise. By “the concealment of what should have been disclosed,” E.P. attempted to deceive the Wal-Mart employees into believing she did not have any merchandise for which she had not paid. See Webster’s Third New International Dictionary 904. In other words, E.P. attempted to take the items from Wal-Mart by “trickeryf ] or other deception.” See id. at 593. The evidence is therefore legally and factually sufficient to support the trial court’s determination that E.P. removed the tags with a fraudulent intent and thus is sufficient to support the court’s adjudication of delinquency. We overrule E.P.’s issues and affirm the trial court’s judgment.

      . See Commons v. State, 575 S.W.2d 518, 519 (Tex.Crim.App.1978), overruled, on other grounds by Johnson v. State, 606 S.W.2d 894, 896 (Tex.Crim.App.1980) (defendant convicted of fraudulently substituting price tags after substituting $.99 tag for $1.79 tag); Canto-Deport v. State, 751 S.W.2d 698, 699 (Tex.App.-Houston [1st Dist.] 1988, pet. ref’d) (defendant convicted of fraudulent removal of writing after she removed $39 price tag and substituted $16 price tag).

      .At least two defendants have made the inverse argument, asserting that they should have been charged under section 32.47 rather than with theft; in both cases, the defendants placed lower-priced tags on merchandise. See Dodson v. State, No. 04-96-00427-CR, 1997 WL 136500, at **1-2, 1997 Tex.App. LEXIS 1450, at *4—*6 (Tex.App.-San Antonio Mar. 26, 1997, no pet.) (not designated for publication) (defendant who substituted price tags on computer argued that he should have been charged under section 32.47 rather than with felony theft; court held that evidence supported conviction for theft); see also Martin v. State, No. 10-03-00071-CR, 2004 WL 2305154, at *1, 2004 Tex.App. LEXIS 9095, at *2 (Tex.App.-Waco Oct. 13, 2004, pet. refd) (not designated for publication) (defendant waived complaint that he should have been charged under section 32.47 by failing to object at trial).

      . On cross-examination, E.P.’s counsel asked Galaviz, "She was not attempting to wear them [the untagged items] out of the store; isn’t that right,” and in closing arguments, he said, "She did not try to hold out that it [the merchandise] was hers. Had she put it on her arm and tried to wear it out, in that case there would be fraud, because what she would be holding out to Mr. Galaviz is that this is her property because she had it on her arm. There’s not a price tag on it.”

      . In the civil context, fraud requires a false representation of material fact intentionally or recklessly made by a defendant, intended to be and actually relied upon by a plaintiff to the plaintiff’s detriment. See Formosa Plastics Corp. USA v. Presidio Engrs. & Contractors, Inc., 960 S.W.2d 41, 47 (Tex.1998).


author: Justice RODRIGUEZ.

text:
    Terese Anne MOSER, Appellant, v. Deborah ROBERTS, Appellee.
    No. 13-03-486-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Feb. 16, 2006.

      Neil E. Norquest, Rodriguez, Colvin, Chaney & Saenz, McAllen, for appellant.
    A. Peter Thaddeus, McAllen, for appel-lee.
    Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.
   OPINION

Opinion by

Justice RODRIGUEZ.

Appellee/cross-appellant, Deborah Roberts (Roberts), filed suit against appellant/cross-appellee, Terese Anne Moser (Moser), asserting multiple causes of action, including slander, libel, intentional infliction of emotional distress (IIED), and three complaints for malicious prosecution. The jury returned a verdict in favor of Roberts on libel, IIED, and two of her three claims for malicious prosecution, and against Roberts on slander and the remaining claim for malicious prosecution. Finding that the “various causes of action contain[ed] the same damages,” the trial court limited the form of recovery to IIED and awarded only those damages assigned by the jury to that cause of action. Thereafter, this appeal ensued.

By eight issues, Moser generally complains of the sufficiency of the evidence with respect to Roberts’s claims for libel, IIED, and malicious prosecution. On cross-appeal, Roberts contends the trial court erred (1) by limiting her award to IIED damages and (2) alternatively, by granting, sua sponte, a judgment notwithstanding the verdict on her libel and malicious prosecution causes of action. We reverse and remand.

I. Background

Roberts and her former husband, Mark Roberts, divorced in 1993. Mr. Roberts was named managing conservator of their two children, while Roberts was named possessory conservator of the children with restricted visitation rights. Subsequent to the divorce, Moser became involved in a relationship with Mr. Roberts. Therefore, it became necessary, on occasion, for Roberts to communicate with Moser to make arrangements regarding the visitation of her children or to speak with her children when she called the home of Moser and Mr. Roberts. At times, conflicts arose between the two parties.

At trial, Roberts established that Moser recorded a voice message on her cell phone that stated: “If this is Deborah Roberts calling to harass me again, I’m sorry, your number has been blocked.” The record also shows that Moser published a letter to Roberts’s father, which read in part: “They [Moser’s children] have a fear of her [Roberts] as a child would of a ‘mad dog.’ ... I find it laughable ... given her uneducated, unsophisticated, fowl [sic] mouthed, bitter rages.... I have witnessed ... this maniac trying to destroy their commitment and homelife.” In addition, the record demonstrates that Moser filed complaints with the Brownsville Police Department that resulted in the criminal prosecution of Roberts for telephone harassment, obscene phone calls, and trespass.

Based on the above facts, Roberts filed the underlying lawsuit against Moser asserting claims for slander, libel, IIED, and malicious prosecution. Eight questions, one for each cause of action and one for damages based on each claim, were submitted to the jury. Although the jury awarded Roberts $193,000 for libel, $340,000 for IIED, and $30,000 for malicious prosecution, the trial court limited her recovery to the $340,000 awarded by the jury for IIED.

II. Intentional Infliction of Emotional Distress

Moser has filed two supplemental letter briefs to bring to the Court’s attention two cases recently decided by the Texas Supreme Court that address the limited availability of the tort of IIED. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 815-16 (Tex.2005); Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 446-48, 450 (Tex.2004). Before addressing the issues raised by the parties, we must first address the threshold issue of whether Roberts was entitled to recover under her claim for IIED when she also brought claims for slander, libel, and malicious prosecution.

A. The Law

The Texas Supreme Court first recognized the independent tort of intentional infliction of emotional distress in 1993. Standard Fruit & Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 65 (Tex.1998) (citing Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex.1993)). To recover under IIED, a plaintiff must prove that (1) the defendant acted intentionally or recklessly, (2) the conduct was extreme and outrageous, (3) the actions of the defendant caused the plaintiff emotional distress, and (4) the resulting emotional distress was severe. Id. (citing Twyman, 855 S.W.2d at 621). However, the tort of IIED is first and foremost a “gap-filler” tort which was created for the “limited purpose of allowing recovery in those rare instances where a defendant inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.” Hoffmann-La Roche, Inc., 144 S.W.3d at 447 (citing Standard Fruit & Vegetable Co., Inc., 985 S.W.2d at 68). The tort’s clear purpose is to supplement existing forms of recovery by providing a cause of action for egregious conduct that might otherwise go unremedied. Id.; see Standard Fruit & Vegetable Co., Inc., 985 S.W.2d at 68. The tort of IIED “simply has no application when the actor intends to invade some other legally protected interest, even if emotional distress results.” Hoffmann-La Roche, Inc., 144 S.W.3d at 447 (citing in accord Messick v. Toyota Motor Mfg., Ky., Inc., 45 F.Supp.2d 578, 582 (E.D.Ky.1999) (no claim for intentional infliction of emotional distress because plaintiff had an existing form of recovery for emotional distress under civil rights statute); K.G. v. R.T.R., 918 S.W.2d 795, 799 (Mo.1996) (intentional infliction of emotional distress claims “will not lie where the alleged conduct is intended to invade other legally protected interests of the plaintiff’); McIntyre v. Manhattan Ford, Lincoln-Mercury, Inc., 256 A.D.2d 269, 682 N.Y.S.2d 167, 169 (N.Y.App.Div. 1998) (no reason to apply tort of intentional infliction of emotional distress where an applicable statute expressly provides for emotional distress damages); Haubry v. Snow, 106 Wash.App. 666, 31 P.3d 1186, 1193 (Wash.Ct.App.2001) (“employee may recover damages of emotional distress ... but only if the factual basis for the claim is distinct from the factual basis for the discrimination claim”)); Standard Fruit & Vegetable Co., Inc., 985 S.W.2d at 67 (citing Restatement (Second) of Torts § 47 cmt. a (1965)). Thus, where the gravamen of a plaintiffs complaint is really another tort, IIED is not available as a cause of action. Hoffmann-La Roche, Inc., 144 S.W.3d at 447-48 (citing Provencher v. CVS Pharmacy, 145 F.3d 5, 12 (1st Cir. 1998) (defamation); Thompson v. Sweet, 194 F.Supp.2d 97,103 (N.D.N.Y.2002) (malicious prosecution, false imprisonment); Norris v. Bangor Publ’g Co., 53 F.Supp.2d 495, 508-09 (D.Me.1999) (defamation); Barker v. Huang, 610 A.2d 1341, 1351 (Del.1992) (defamation); Banks v. Fritsch, 39 S.W.3d 474, 481 (Ky.Ct.App.2001) (false imprisonment and assault and battery); Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 316 (Mo.1993) (defamation); Quaker Petroleum Chems. Co. v. Waldrop, 75 S.W.3d 549, 555 (Tex.App.-San Antonio 2002, no pet.) (negligence, gross negligence); Rice v. Janovich, 109 Wash.2d 48, 742 P.2d 1230, 1238 (Wash.1987) (assault)).

B. Analysis

In her second amended petition, Roberts incorporated all facts set out in support of her claims for slander, libel, and malicious prosecution to support her cause of action for IIED. She also asserted that such conduct (1) was extreme and outrageous, (2) was intentional and/or reckless, and (3) caused plaintiff emotional distress that was severe. See Standard Fruit & Vegetable Co., Inc., 985 S.W.2d at 65 (identifying the elements of IIED). The gravamen of Roberts’s complaint as pleaded rested on her claims for slander, libel, and malicious prosecution. See Hoffmann-La Roche, Inc., 144 S.W.3d at 447-48. Because Roberts’s claims for slander, libel, and malicious prosecution afforded her a remedy for any resulting emotional distress, there was no gap left to fill with an IIED cause of action. See Creditwatch, Inc., 157 S.W.3d at 816 (providing that even if other remedies do not explicitly preempt the tort of IIED, them availability leaves no gap to fill). Thus, we conclude the tort of IIED was not available to her based on the facts supporting those causes of action. Id.; see Hoffmann-La Roche, Inc., 144 S.W.3d at 447-48.

Nonetheless, Roberts argues on appeal that Moser’s “continuous insidious conduct” was a separate event for which a claim of IIED could stand alone. See Hoffmann-La Roche, Inc., 144 S.W.3d at 441, 447 (stating that when the gravamen of the plaintiffs complaint is really another tort, the plaintiff must proceed solely under the other tort unless there are additional, unrelated facts to support an independent claim for IIED). However, Roberts does not refer the Court to additional, unrelated facts in the record that support an independent claim for IIED, and she does not support her contention with clear and concise arguments. Therefore, this assertion has been waived. See Tex.R.App. P. 38.1(h) (providing contentions on appeal must be supported by clear and concise arguments with appropriate citations to authorities and to the record); id. at rule 38.2(a) (setting out that an appellee’s brief must conform to the requirements of rule 38.1).

III. Conclusion

Accordingly, we reverse the trial court’s judgment and remand the cause to the trial court for the rendition of judgment consistent with this opinion.

      . The jury found for Roberts on her claims for malicious prosecution relating to obscene phone calls and trespass and against Roberts on her claim for malicious prosecution with respect to telephone harassment.

      . Moser also contends that Roberts's claims for malicious prosecution were barred by limitations.

      . In the criminal prosecution of Roberts, the jury found Roberts not guilty on the telephone harassment and trespass charges. The charge related to obscene phone calls was dismissed by directed verdict.

      .On her claim for libel, the jury awarded Roberts $80,000 for past mental anguish and humiliation, $33,000 for future mental anguish and humiliation, $60,000 for loss of reputation in the past, and $20,000 for loss of reputation in the future. With respect to her claim for IIED, the jury awarded Roberts $50,000 for past mental anguish and humiliation, $50,000 for future mental anguish and humiliation, $40,000 for loss of reputation in the past, and $200,000 for loss of reputation in the future. On her claim for malicious prosecution, the jury awarded Roberts $5,000 for mental anguish and humiliation and $25,000 in attorney’s fees.

      . Having remanded the cause to the trial court for rendition of appropriate judgment, we do not reach appellant's and appellee’s issues. See Tex.R.App. P. 47.1.


author: BEA ANN SMITH, Justice.

text:
    Willie Fred HOUSTON, Appellant, v. The STATE of Texas, Appellee.
    No. 03-05-00167-CR.
    Court of Appeals of Texas, Austin.
    Feb. 16, 2006.

      Richard E. Wetzel, Austin, for appellant.
    C. Bryan Case, Jr., Asst. Dist. Atty., Austin, for appellee.
    Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

A jury found Willie Fred Houston guilty of robbery, and the court sentenced him to forty years in prison. See Tex. Pen.Code Ann. § 29.02 (West 2003). Houston appeals his conviction, contending that the trial court erred by overruling his motion to suppress his confession, that the trial court abused its discretion by admitting evidence of the existence of a Crime Stoppers tip, and that the trial court abused its discretion by failing to grant his request for a mistrial. We affirm the judgment of conviction.

BACKGROUND

Houston was convicted of a robbery that took place in the early morning hours of January 1, 2004, at a Diamond Shamrock convenience store in central Austin. The robbery was captured on the store’s security cameras. The robber approached store employee Esedar Abegaz and announced “this is a robbery.” The robber then told Abegaz, “I’m not playing. I have a pistol. Give me all your twenties.” Abe-gaz opened the cash register, and the robber grabbed the money and left. It was later determined that $28 was taken from the register. The security footage contained clear images of the robber, who was neatly dressed in a sport jacket, dark slacks, dress shoes, and thick glasses.

Detective Dennis Clark of the Austin Police Department was assigned to investigate the case. Clark, who had received a Crime Stoppers tip that Houston was involved in the robbery, produced still photographs of the robber from the security footage. On January 8, Houston voluntarily came to the police station to speak with Detective Michelle Woodfin about his possible involvement in an assault. Clark was informed that Woodfin was questioning Houston and joined the two in an interrogation room at the police station. Although Woodfin’s initial questioning of Houston was not recorded, Clark activated a hidden video camera before entering the room.

Clark immediately confronted Houston with a photograph from the robbery:

You’re wearing the same coat. Too close to the camera Willie. You got too close to the camera. Yeah, you’ve got glásses on but it’s you.... This convenience store is on Guadalupe. I think you remember it. Girl attendant. Yeah you do. You’ve got people snitching you off anyway. Let me read you your rights. Have a seat.

After detailing a bit of the evidence of Houston’s guilt, Clark read Houston the Miranda warnings. Houston responded that he understood his rights and did not want to speak with Clark about the robbery:

Clark: Do you agree to that? Do you agree to waive your rights so that you can talk to me?
Houston: No. I’m not gonna [inaudible].
Clark: That’s fine. I’m going to have to do what I’m going to have to do.

Detectives Woodfin and Clark then began asking Houston to admit his involvement in the robberies. They assured Houston of the strength of the State’s case and appealed to him to tell his side of the story. The detectives also told Houston that he was not under arrest:

Houston: Are you going to arrest me now?
Clark: No sir, I am not going to arrest you now. You know what’s going to happen though. How did you get down here?
Houston: I got a ride.
Clark: Did your momma bring you down here? Is she here? No? Your momma’s not downstairs?

Clark again urged Houston to admit to the robbery:

Now, I’m going to ask you again you know, I’ve read you your rights and you understand your rights and I’m going to ask you one more time sit down and' talk to me Willie. This is silly. You know I’ve got you.

Houston then admitted that, since his release from prison, he had resumed smoking crack and had committed several robberies, including the one at the Diamond Shamrock store. After Houston provided details of the robberies, Clark told Houston that he would be released that day if Houston agreed to turn himself in once a warrant was issued for his arrest. Before the interview ended, another officer pulled Clark aside and told him of allegations that Houston had set fire to his girlfriend’s home. Clark then explained to Houston that he would not be allowed to leave based on this new information.

DISCUSSION

Motion to Suppress

In his first two points of error, Houston contends that his inculpatory statements should have been suppressed because he was subjected to custodial interrogation after he had told the police that he wished to remain silent. See U.S. Const, amends. V, XIV; Tex.Code Crim. Proc. Ann. art. 38.22 (West 2005); Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is settled law that custodial interrogation must cease once a person invokes his right to remain silent. Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602; Maestas v. State, 987 S.W.2d 59, 61 (Tex.Crim.App.1999) (right to remain silent and cut off questioning must be scrupulously honored). However, the protections afforded under Miranda and article 38.22 of the code of criminal procedure require that a person be in custody. See Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994); Tex.Code Crim. Proc. Ann. art. 38.22 §§ 2, 3. The custody requirement stems from the underlying purpose of Miranda, to protect an individual from the “inherently compelling pressures” of custodial interrogation. Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (quoting Miranda, 384 U.S. at 467, 86 S.Ct. 1602). Absent these pressures, it is presumed that a person will freely assert his privilege against self incrimination and no protection is needed.

A person is in custody if, under the totality of the circumstances, a reasonable person would believe his freedom of movement was restrained to the degree associated with a formal arrest. Stansbury, 511 U.S. at 322, 114 S.Ct. 1526; Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996). The initial determination of custody depends on the objective circumstances of the interrogation, not the subjective views of the police or the person being questioned. Stansbury, 511 U.S. at 323, 114 S.Ct. 1526; Dowthitt, 931 S.W.2d at 254. The subjective views of the police regarding custody may be relevant as a circumstance of the interrogation if they are conveyed to the individual being questioned, but only to the extent that the communication of those views would affect a reasonable person’s understanding of his freedom of action. See Stansbury, 511 U.S. at 325, 114 S.Ct. 1526; Dowthitt, 931 S.W.2d at 254. Stationhouse questioning is not, in and of itself, custodial. Dowthitt, 931 S.W.2d at 255; see Oregon v. Mathiason, 429 U.S. 492, 496, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). But “the mere fact that an interrogation begins as non-custodial does not prevent custody from arising later; police conduct during the encounter may cause a consensual inquiry to escalate into custodial interrogation.” Dowthitt, 931 S.W.2d at 255.

The parties agree that Houston voluntarily came to the police station in order to speak with Detective Woodfin about an unrelated matter and that he was not in custody prior to Detective Clark’s arrival. Houston contends that custody arose soon after Clark began questioning him. Indeed, some of Clark’s actions indicate that Houston was in custody. Clark read Houston Miranda warnings — a recitation that has become synonymous in our culture with formal arrest. Clark searched through the pockets of Houston’s sport coat, while he was not wearing it, without Houston’s consent. Clark also conveyed the strength of the State’s case to Houston, including the fact that Houston resembled and was wearing the same clothes as the man pictured in the videotape of the robbery.

However, the detectives explicitly told Houston that he was not under arrest prior to his confession. Other statements by the detectives made before Houston’s confession also implied that Houston was not under arrest and was free to go:

Clark: But, like I told you, yeah, there’s other people out there that’s already told us that your doing the robberies of the convenience stores. Now, I’m glad that you ain’t done that damn many of them yet. Don’t do any more until we get you arrested, okay? That just ain’t gonna do you no good.
Woodfin: Willie, you walk out of here and you lose your chance to tell us how you honestly feel.

Clark’s post-confession arrangements for Houston to turn himself in confirm Clark’s subjective belief that Houston was not in custody.

On this record, we find that a reasonable person would not have believed his freedom of movement was restrained to the degree associated with a formal arrest. See Stansbury, 511 U.S. at 322, 114 S.Ct. 1526; Dowthitt, 931 S.W.2d at 254. Although there was probable cause to arrest and the strength of the State’s case was readily apparent to all, the existence of probable cause is only a factor in determining custody when “law enforcement officers do not tell the suspect he is free to leave.” Dowthitt, 931 S.W.2d at 255 (emphasis added). Here, the detectives specifically told Houston that he was not under arrest and implied through their questioning that he could leave. Moreover, the district court rejected Houston’s argument that the detectives’ statements that Houston was not under arrest were a “ruse,” and we defer to the trial court’s determination of the detectives’ credibility in this regard. Having found that Houston was not in custody, we overrule his first two points of error.

Crime Stoppers Evidence

In his third point of error, Houston contends that the trial court abused its discretion when it overruled his hearsay objection to Detective Clark’s testimony that Houston was identified as a suspect through a Crime Stoppers tip. Houston argues that the mention of the Crime Stoppers tip permitted the jury to improperly infer that some unknown source had implicated Houston in the robbery.

In Schaffer v. State, the court of criminal appeals held that the hearsay rule may not be circumvented by inference. 777 S.W.2d 111, 114 (Tex.Crim.App.1989). In that case, the defendant asserted that he had committed the crime charged in his role as a police informant. See id. at 112-13. The investigating officer was permitted to testify that he spoke with the officer for whom the defendant claimed to be working and that, based on his conversation, he would not “ask the State to drop charges against [the defendant].” Id. at 113. The court of criminal appeals stated that the sole intent of this line of questioning was to convey to the jury that the investigating officer had been told that the defendant was not an informant. Id. at 114. Because the out-of-court statement was offered for its truth, the court held that it was hearsay. Id. at 115.

In doing so, the court of criminal appeals distinguished this inferential hearsay from out-of-court statements offered to provide necessary context:

Frequently, testimony will have an impermissible hearsay aspect along with a permissible nonhearsay aspect. Almost always it will be relevant for a testifying officer to relate how she happened upon the scene of a crime or accident; thus, it is permissible for her to testify that she was acting in response to “information received.” “[A]n arresting officer should not be put in the false position of seeming just to have happened upon the scene, he should be allowed some explanation of his presence and conduct.” A police officer, however, should not be permitted to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports on the grounds that she was entitled to tell the jury the information upon which she acted.

Id. at 114 (internal citation omitted); see also McCormick on Evidence, § 249, at 735 (3d ed.1984). However, the court cautioned of the potential for abuse in which officers are permitted to relate out-of-court statements under the guise of providing context. Schaffer, 777 S.W.2d at 114-15 n. 3. “The appropriate inquiry focuses on whether the ‘information received’ testimony is a general description of possible criminality or a specific description of the defendant’s purported involvement or link to that activity.” Poindexter v. State, 153 S.W.3d 402, 408 n. 21 (Tex.Crim.App.2005).

Here, the testimony in question was Detective Clark’s statement that he. developed a lead in his investigation of the robbery from a Crime Stoppers tip implicating Houston. This testimony did not reveal the details of the tip or comment on the reliability of its source. See Schaffer, 111 S.W.2d at 114 n. 3; McCullough v. State, 116 S.W.3d 86, 89 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (Baird, J., dissenting) (criticizing admission of testimony that Crime Stoppers tip “gave us the name of [appellant] that was responsible for robbing this hotel”). Clark’s reference to Crime Stoppers was merely a general description of possible criminality that provided a necessary explanation for why Clark developed Houston as a suspect and interviewed him. See Poindexter, 153 S.W.3d at 408 n. 21. Accordingly, we hold that the district court properly admitted Clark’s brief reference to a Crime Stoppers tip.

Even if the admission of the Crime Stoppers testimony was error, it was harmless under rule of appellate procedure 44.2(b). We must disregard a non-constitutional error that does not affect Houston’s substantial rights. Tex.R.App. P. 44.2(b); see also Tex.R. Evid. 103(a) (error may not be predicated on ruling admitting or excluding evidence unless substantial right of party affected). We may not reverse if, after examining the record as a whole, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury’s verdict. Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App.2004). Having closely examined the record in this case, we are fairly assured that any error in admitting the reference to the Crime Stoppers tip had no substantial and injurious effect on the jury’s verdict. See id. Houston confessed to the crime, and the victim of the robbery testified that she was eighty-percent sure that Houston was the man who robbed her. Furthermore, Houston was easily identified from the security videotape of the robbery and appeared at the police station wearing the same jacket as the one pictured in the video of the robbery. Although the single reference to the Crime Stoppers tip may have bolstered the State’s case on identity, there was other, overwhelming evidence of guilt. We overrule Houston’s third point of error.

Extraneous Offenses

In his fourth point of error, Houston contends that the trial court erred by denying his. request for a mistrial after Detective Clark made reference to “three cases” that Houston was alleged to have been involved with. Houston’s objection came during the following exchange:

Q. Then what is the meaning behind “I advised him he’s going to prison and all we need to talk about is how long?” Why would he need to talk to you if you couldn’t control that?
A. Well, there were three cases that he was ...

Clark’s response was interrupted by an objection that the answer was non-responsive. The district court sustained the objection and instructed the jury to disregard Clark’s answer.

“Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding extraneous offenses.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App.2000). A mistrial is appropriate for only a narrow class of highly prejudicial and incurable errors. Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App.2000). We review a court’s decision to deny a request for a mistrial under an abuse of discretion standard. Id. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999)). In this case, Clark’s improper testimony was interrupted, and the jury was immediately instructed to disregard the testimony. Such a vague reference to “three cases,” immediately followed by an instruction to disregard, did not so infect the trial with error that an impartial verdict could not be reached. See id. Moreover, the same testimony had already been elicited by Houston’s counsel without objection. See Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998) (erroneous admission of testimony not cause for reversal if same fact proven by other testimony not objected to). Accordingly, we overrule Houston’s fourth point of error.

CONCLUSION

Having overruled all of Houston’s points of error, we affirm the judgment of conviction.

      . In Court’s Exhibit 1, Houston’s response is transcribed as "No, I don’t want to talk about anything [difficult to hear].” Although Houston's exact response is inaudible, it is clear from the video that he expressed his desire not to make a statement.

      . The reading of Miranda warnings does not transform a noncustodial setting into custodial interrogation. See United States v. Bautista, 145 F.3d 1140, 1148 (10th Cir.1998); Sprosty v. Buckler, 79 F.3d 635, 642 (7th Cir. 1996); Davis v. Allsbrooks, 778 F.2d 168, 172 (4th Cir.1985) (to hold that Miranda warnings create custody "would convert admirable precautionary measures on the part of officers into an investigatory obstruction”); United States v. Charles, 738 F.2d 686, 693 n. 6 (5th Cir.1984). However, the giving of Miranda warnings is a factor in the determination of whether a reasonable person would believe that he is under arrest. See Bautista, 145 F.3d at 1148; Sprosty, 79 F.3d at 642. Moreover, there may be "circumstances where a clash of wills over a suspect’s desire to remain silent would create custody through overbearing police behavior.” Davis, 778 F.2d at 172 n. 1.

      . The trial court granted Houston’s motion to suppress a pair of glasses found by Detective Clark in Houston’s coat. The district court explained that because Houston was not in custody, that State could not "have it both ways” and Clark could not legally search Houston’s jacket without consent.

      . We note that details of out-of-court statements may be admissible if "the officer’s conduct has been challenged, for instance, as lacking probable cause.” Poindexter v. State, 153 S.W.3d 402, 408 n. 21 (Tex.Crim.App.2005).

      . The court of criminal appeals singled out its own opinion in Locke v. State, 169 Tex.Crim. 361, 334 S.W.2d 292, 293 (1960), in which an officer was permitted to testify that he acted on "information received from a reliable source " as an example of overreaching. See Schaffer v. State, 777 S.W.2d 111, 114 n. 3 (Tex.Crim.App.1989).

      .This recent statement of the inquiry from the court of criminal appeals differs from our prior holding that testimony is "backdoor hearsay” only if "the sole intent in introducing the evidence was to prove the contents of the out-of-court statement.” Gurka v. State, 82 S.W.3d 416, 421 (Tex.App.-Austin 2002, pet. ref'd). We will follow the more recent standard set forth by the court of criminal appeals. See Poindexter v. State, 153 S.W.3d at 408 n. 21.


author: Justice O’NEILL.

text:
    B. Alicia DE LA GARZA, Appellant, v. Leland DE LA GARZA, Appellee.
    No. 05-04-01453-CV.
    Court of Appeals of Texas, Dallas.
    March 3, 2006.

      Steven E. Clark, Clark & Associates, Dallas, for appellant.
    Leland C. De La Garza, Shackelford, Melton & McKinley, LLP, Dallas, pro se.
    Before Justices O’NEILL, FITZGERALD, and LANG.
   OPINION

Opinion by

Justice O’NEILL.

B. Alicia de la Garza filed suit to enforce alimony payments under an Agreement Incident to Divorce and cash payments awarded to her in the divorce decree. She appeals from a summary judgment granted in favor of Leland de la Garza. In two points of error, appellant contends generally that the trial court erred in granting appellee’s motions for summary judgment. We overrule appellant’s points of error and affirm the trial court’s judgment.

Background

The parties entered into an Agreement Incident to Divorce (“Agreement”) which was incorporated into the divorce decree (“Decree”) signed on April 8, 1999. The Agreement provided for contractual alimony payments. Appellee agreed to make monthly payments of $4,000.00 to appellant on the first of each month from April 1, 1999 through December 1, 2002. From January 1, 2003 through December 1, 2007, appellee agreed to make monthly payments of $3,500.00 to appellant. In addition, the divorce decree awarded appellant as her separate property $30,000.00 to be paid in three equal installments of $10,000.00 on January 1st of 2000, 2001, and 2002.

Appellee did not make any of the three $10,000.00 payments on time. Two of the installment payments were not completely paid until more than a year after its due date. The entire $30,000.00 award was finally paid by April, 2002.

Approximately two-thirds of the monthly alimony payments were untimely paid. On March 7, 2003, appellant’s attorney made written demand on appellee to pay past-due alimony payments. Only after appellant retained counsel and made demand upon appellee to pay amounts owed, did appellee became up-to-date on his payments.

Appellant filed suit to enforce alimony payments on July 1, 2003. In her first amended petition, appellant alleged claims for breach of contract, attorney’s fees, and contempt. As damages, appellant sought pre-judgment interest on all late alimony payments and reimbursement for interest charges on funds borrowed to pay her obligations.

Appellee filed a motion for summary judgment on all of appellant’s claims. After appellee filed his motion, appellant filed an amended petition, raising for the first time a claim for breach of the divorce decree. The trial court granted appellee’s motion for summary judgment on all claims except the breach of the divorce decree.

Appellee then filed a second motion for summary judgment with respect to appellant’s claim for post-judgment interest on the cash awards that were untimely paid. The trial court granted the motion, thereby disposing of all of appellant’s claims on September 13, 2004. This appeal timely followed.

Standard of Review

The standard of review in summary judgment is well-established. Tex.R. Civ. P. 166(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990). In reviewing a traditional motion for summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgm’t Co., 690 S.W.2d 546, 548-49 (Tex.1985). To prevail on summary judgment, a defendant as movant must either disprove at least one element of each of the plaintiffs theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiffs cause of action. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Ma rine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).

A no-evidenee motion for summary judgment places the burden on the nonmovant to present summary judgment evidence raising a genuine fact issue. Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 683 (Tex.App.-Dallas 2000, no pet.). We review a no-evidence motion for summary judgment under the same legal sufficiency standard used to review a directed verdict. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). Thus, we must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. Id. at 833. A no-evidence motion, however, is not the proper means to seek summary judgment on an affirmative defense which involves a question of law. See Harrill v. A.J.’s Wrecker Service, Inc., 27 S.W.3d 191, 194 (Tex.App.-Dallas 2000, writ dism’d w.o.j.) (improper for defendant to assert a no-evidence motion for summary judgment on the affirmative defense of preemption).

The Alimony Payments

Appellant sued appellee for breach of the Agreement. Appellant sought damages in the form of: (1) prejudgment interest on the late alimony payments; and (2) reimbursement of interest charges on borrowed funds necessitated by the late alimony payments. Appellee filed both a no-evidence and traditional motion for summary judgment on the ground that appellant cannot recover on her breach of contract claim because: (1) she has not suffered any damages; (2) pre-judgment interest is not available under the Agreement, statute, or common law; (3) consequential damages in the form of interest charges paid on borrowed funds is not available; and (4) attorney’s fees are not available because appellant is not a prevailing party.

In her brief, appellant contends that ap-pellee’s no-evidence motion for summary judgment was improper because appellee sought a legal determination that she “had not suffered any damage, and that the parties could not have contemplated when the [Agreement] was signed that Appellant would be forced to borrow funds if Appel-lee failed to timely pay alimony payments.” We disagree. Appellee’s no-evidence motion for summary judgment asserted that there was no evidence of the elements of appellant’s claims.

Pre-Judgment Interest

A party may recover pre-judgment interest where it is provided for in a contract, statute or the common law. It is undisputed that the Agreement does not provide for pre-judgment interest in the event alimony payments are not timely made. Thus, we look to see whether any statute allows for the recovery of prejudgment interest or whether pre-judgment interest is recoverable under common law.

Appellant relies upon a version of section 302.002 of the finance code in effect when the Agreement was signed to support her contention that the prejudgment interest accrued on the alimony payments. That section read: “When no specified rate of interest is agreed on by the parties, interest at the rate of six percent per year is allowed on all accounts and contracts ascertaining the amount payable, beginning on the 30th day after the date on which the amount is due and payable.” See Act of May 24, 1997, 75th Leg., R.S., ch. 1008, § 1, 1997 Tex. Gen. Laws 3091, 3422, amended by Act of April 23, 1999, 76th Leg., R.S., ch. 62, § 7.18, 1999 Tex. Gen. Laws 127, 222-54.

Contrary to appellant’s contention, however, it is the pre-judgment interest statute in effect at the time of judgment that controls. See Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528, n. 9 (Tex.1998); Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 413 (Tex.App.-Amarillo 2003, pet. denied). In Natural Gas Clearinghouse, Midgard Energy recovered on its breach of contract claim. At the time the parties entered into the contract, the statute provided for six percent interest per year on all contracts where the parties do not specify otherwise. Id. at 413. This statute, however, was not in effect when the trial court rendered judgment. Natural Gas argued that the trial court should have calculated pre-judgment interest at six percent as opposed to ten percent. The court of appeals disagreed. It held that the statute in effect on the date of judgment and not on the date of the contract controls. Id. at 412-14.

Thus, to determine whether appellant may recover pre-judgment interest, we look to the statute in effect at the time the trial court rendered judgment on September 13, 2004. The current version of section 302.002 was in effect on September 13, 2004. It provides:

If a creditor has not agreed with an obligor to charge the obligor any interest, the creditor may charge and receive from the obligor legal interest at the rate of six percent a year on the principal amount of the credit extended by the creditor to the obligor beginning on the 30th day after the date on which the amount is due.

Tex. Fin.Code Ann. § 302.002 (Vernon Supp.2005). Under the Finance Code, a creditor is a person who loans money and an obligor is a person to whom money is loaned. Tex. Fin.Code Ann. § 301.002(a)(3) & (13) (Vernon Supp.2005).

The Agreement between appellant and appellee did not involve an extension of credit. Appellant is not an obligor and appellee is not a creditor under the Agreement. For these reasons, we conclude section 302.002 does not provide appellant with the means to recover pre-judgment interest.

Section 304.103 also provides for recovery of pre-judgment interest. See Tex. Fin.Code Ann. § 304.103 (Vernon Supp. 2005). However, pre-judgment interest under this statute is not available to appellant because it applies only to wrongful death, personal injury, and property damage cases. See Tex. Fin.Code Ann. § 304.101 (Vernon Supp.2005).

We have determined that neither the Agreement nor any statute allows appellant to recover pre-judgment interest. Thus, we now turn to see whether prejudgment interest is recoverable under common law. In Johnson & Higgins, the Texas Supreme Court held that prejudgment interest awarded under common law should conform to the statutory accrual and compounding formulas applicable to suits for wrongful death, personal injury, and property damages. See Johnson & Higgins, 962 S.W.2d at 530-32. Under that statutory accrual formula, prejudgment interest begins to accrue “on the earlier of the 180th day after the date the defendant receives written notice of a claim or the date the suit is filed.” Tex. Fin.Code Ann. § 304.104 (Vernon Supp. 2005); Johnson & Higgins, 962 S.W.2d at 531.

In his affidavit attached to his motion for summary judgment, appellee states that he never paid an alimony payment more than 180 days late. In her response to the motion for summary judgment, appellant does not dispute that any of the alimony payments were more than 180 days late. Rather, she points out that it was more than 180 days before appellant made the $10,000.00 cash payment that was due on January 1, 2001. This fact is irrelevant to appellant’s claim for pre-judgment interest on untimely paid alimony payments.

The summary judgment evidence established that appellee did not pay any of the alimony payments more than 180 days late. Thus, even under common law, prejudgment interest never accrued. See Johnson & Higgins, 962 S.W.2d at 531. Accordingly, appellant is not entitled to pre-judgment interest under common law.

We hold the trial court did not err in granting appellee’s motion for summary judgment with respect to appellant’s claim for pre-judgment interest on the late alimony payments.

The Borrowed Funds

Appellant also claimed that because of appellee’s failure to timely make the alimony payments, she had to obtain cash advances on her credit card. Appellant sought to recover as damages the cash advance fees and finance charges on those funds. She admitted that she used the cash advances to pay her attorney’s fees.

A party is not entitled to pre-judgment interest on attorney’s fees because attorney’s fees are not considered a part of the “amount of the judgment.” C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 325 (Tex.1994). Appellee contends that appellant’s label of the interest she seeks as consequential damages is an attempt to side-step the supreme court’s holding in Thompson. We see no difference between recovering pre-judgment interest on an award of attorney’s fees and recovering interest on money borrowed to pay attorney’s fees. In neither case are the attorney’s fees part of “the amount of a judgment.” Moreover, it is also undisputed that on each' of the three dates that appellant obtained the cash advances, ap-pellee was current on all his payments under the Agreement and the Decree.

We conclude that appellant cannot recover as consequential damages the interest on the funds borrowed to pay her attorney’s fees. The trial court did not err in granting appellee’s motion for summary judgment on appellant’s claims for prejudgment interest on the alimony payments and interest on the borrowed funds as consequential damages. Accordingly, we overrule appellant’s first point of error.

The Cash Awards

In her second point of error, appellant contends the trial court erred in granting appellee’s motion for summary judgment on her claim for breach of the Decree. She sought to recover post-judgment interest on the money awarded in the Decree.

Post-judgment interest is recoverable only on a money judgment. Appellant argues that the $30,000.00 award was not merely a judgment, but a money judgment on which post-judgment interest accrued. We disagree. Appellant relies on the language in the Decree to support her argument that she obtained a money judgment for the $30,000.00 cash award. Specifically, appellant relies upon the following language:

IT IS ORDERED, ADJUDGED AND DECREED that B. Alicia de la Garza, Respondent, be, and is hereby awarded all estate, right, title, and interest of, in, and to the following as her sole and separate property ...

The Decree then lists the $30,000.00 award payable in three installments along with other items as appellant’s separate property. Appellant also relies on the following language in the decree:

IT IS ORDERED, ADJUDGED AND DECREED that Petitioner and Respondent shall execute all instruments necessary to effect this Decree and that Petitioner and Respondent have all appropriate and necessary writs, execution, and process, as may and as often as necessary to accomplish the execution and final disposition of this judgment.

The trial court ordered that appellant receive a cash award payable by appellee as part of her separate property. The cash award was part of the property division. The trial court, however, did not award a money judgment to appellant in the Decree.

A party who does not receive payments of money awarded in a divorce decree may file suit to enforce the decree and the trial court may render a money judgment for the amount of unpaid payments. See Tex. Fam.Code Ann. § 9.001(a) & 9.010(b) (Vernon 1998). A money judgment is a remedy available to a spouse where the other spouse does not make payments as ordered in the divorce decree. See Office of the Attorney General of Texas v. Wilson, 24 S.W.3d 902, 905 (Tex.App.-Dallas 2000, no pet.); Jenkins v. Jenkins, 991 S.W.2d 440, 445 (Tex.App.-Fort Worth 1999, pet. denied).

As authority for her assertion that the monetary award accrued post-judgment interest from the point appellee became delinquent, appellant cites Office of Attorney General of Texas v. Lee, 92 S.W.3d 526 (Tex.2002) (per curiam). Appellant’s reliance upon Lee is misplaced. In Lee, the divorce decree ordered the husband to pay child support. When the husband became delinquent in his child support payments, the attorney general sued to have the amount of delinquent payments reduced to judgment. Id. at 527. The attorney general obtained a judgment for the past-due child support. Id. A year later, the attorney general directed the husband’s employer to withhold earnings from the husband’s monthly paycheck. The attorney general asserted that husband owed $5,000.00 in accrued interest on the judgment rendered a year earlier. Id. The husband disputed that he owed any interest. The trial court agreed with the husband and the court of appeal affirmed the trial court’s judgment. The supreme court reversed. The supreme court held that post-judgment interest accrued automatically on past-due child support payments that have been ‘previously reduced to judgment. Id. at 528. Unlike the attorney general in Lee, appellant never had the past-due payments on the monetary award reduced to judgment. This is a critical distinction that renders the holding in Lee inapplicable to the facts of this case.

We conclude that, through the Decree, appellant obtained a judgment ordering appellee to make three $10,000.00 payments on or before specified dates. The Decree, however, did not award appellant a money judgment for $30,000.00 on which post-judgment interest accrued. Once ap-pellee failed to make the payments as ordered, appellant had the right to seek to have that portion of the decree reduced to a money judgment. See Tex. Fam.Code Ann. § 9.010(b) (Vernon 1998). Appellant did not obtain a money judgment. For this reason, post-judgment interest did not accrue. We conclude the trial court did not err in granting appellee’s motion for summary judgment on appellant’s claim for post-judgment interest.

Attorney’s Fees

Appellant also complains on appeal that the trial court erred in granting summary judgment on her claim for attorney’s fees. Specifically, she asserts in her brief on appeal that she is entitled to attorney’s fees under section 38.001 of the civil practices and remedies code and section 9.014 of the family code.

Attorney’s fees are not recoverable in Texas unless allowed by statute or by contract. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex.1992). Attorney’s fees are recoverable in a suit on a contract. Tex. Civ. PRAC. & Rem.Code Ann. § 38.001(8) (Vernon 1997). To recover attorney’s fees under section 38.001, a party must (1) prevail on a cause of action for which attorney’s fees are recoverable, and (2) recover damages. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.1997). Appellant did not recover on any claim. Therefore, she cannot recover attorney’s fees under section 38.001.

Section 9.014 of the family code provides that “[t]he court may award reasonable attorney’s fees as costs in a proceeding under this chapter.” Tex. Fam. Code Ann. § 9.014 (Vernon 1998). The decision to grant or deny attorney’s fees under this statute is reviewed for an abuse of discretion. Cook v. Cameron, 733 S.W.2d 137, 141 (Tex.1987). Because appellant did not prevail in her suit to enforce the divorce decree, we conclude the trial court did not abuse its discretion in not awarding appellant her attorney’s fees under section 9.014 of the family code.

We conclude the trial court did not err in granting summary judgment on her claim for attorney’s fees. We overrule appellant’s second point of error.

We affirm the trial court’s judgment.

      . Appellant subsequently withdrew her claim for contempt.


author: PER CURIAM.

text:
    Clark WATTS, M.D., Appellant, v. Roger Renee RODRIGUEZ and Dorothy Rodriguez, Appellee.
    No. 03-06-00092-CV.
    Court of Appeals of Texas, Austin.
    March 24, 2006.
    Craig L. Reid, Carla G. Connolly, Connolly & Castagna, LLP, Austin, for appellant.
    Rockne W. Onstad, The Onstad Firm, Austin, for appellees.
    Before Justices B.A. SMITH, PURYEAR and WALDROP.
   ORDER

PER CURIAM.

Appellant Clark Watts, M.D. has filed a motion asking this Court to issue temporary orders staying the commencement of a trial in the trial court pending our resolution of the appeal. Section 51.014(b) of the civil practice and remedies code provides that an interlocutory appeal filed under section 51.014(a)(9) stays the commencement of trial, although other pretrial matters may proceed. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(b) (West Supp. 2005). Appellant states that his appeal was filed under section 51.014(a)(9), automatically triggering a stay of trial under section 51.014(b). The statutory stay becomes effective as soon as the interlocutory appeal is taken, therefore, temporary orders by this Court staying the commencement of trial are unnecessary. We overrule appellant’s motion for temporary orders.

It is ordered March 24, 2006.


author: SHERRY RADACK, Chief Justice.

text:
    The STATE of Texas, Appellant, v. Ruth Molina SUSTAITA, Appellee.
    Nos. 01-03-00180-CR, 01-03-00181-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 2, 2004.
    Jeffrey D. Kyle, Assistant District Attorney, Jeri Yenne, Criminal District Attorney, Angleton, for appellant.
    Kimberly De La Garza, Seguin, Norman J. Silverman, Houston, for appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION ON MOTION FOR REHEARING

SHERRY RADACK, Chief Justice.

Appellee, Ruth Molina Sustaita, has filed a motion for rehearing, which we DENY. However, we withdraw our opinion of April 29, 2004, and issue this opinion in its stead. Our judgments of April 29, 2004, remain unchanged.

The State brings two interlocutory appeals pursuant to article 44.01(a)(1) of the Texas Code of Criminal Procedure. The sole issue on appeal is whether the trial court erred by dismissing the indictments, with prejudice, pursuant to Texas Rule of Evidence 508(c)(2). We reverse and remand.

BACKGROUND

In two indictments, appellee, Ruth Molina Sustaita, was charged with possession of at least 400 grams of cocaine and investing funds to further the commission of the offense of possession of at least 400 grams of a controlled substance. On April 30, 2002, Sustaita filed a motion to disclose the identity of the State’s confidential informer. On July 5, 2002, the trial court granted Sustaita’s motion and ordered the State to disclose the identity of the confidential informer at least 20 days before trial.

On February 10, 2003, the morning the case was set for trial, the State filed a motion for continuance, arguing that it intended to call the confidential informer as a witness in the case, but that the confidential informer had been involved in a car accident. Specifically, the State’s motion for continuance stated:

The case is presently set for trial on Monday, February 10, 2003. It is necessary to continue the above cause of action for the following reasons: One state witness, a confidential informant used to set up a drug transaction, has recently had a car accident and suffered severe head trauma. Although the witness is expected to recover and present relevant and cohesive testimony, he is currently out of the county and travel would be unduly burdensome given his physical condition. The witness’s testimony is material to the matter before the court, in that he was the officer that performed the field sobriety tests on the defen■dant.

Sustaita did not directly respond to the State’s, motion for continuance, but instead moved the court to dismiss the indictments with prejudice because the State had not, as of the date of trial, provided the name of the confidential informer.

The State responded that, until the Thursday before the Monday trial date, the State believed that Sustaita planned to plead guilty pursuant to a plea bargain agreement. In ' light of the anticipated plea agreement, the State had not yet provided the identity of the confidential informer.

The trial court denied the State’s motion for continuance. The State then moved to dismiss the indictments. The trial court responded that it would not allow the State to dismiss on its own motion “under any circumstances.” Instead, it granted Sus-taita’s motions to dismiss, which were based on Texas Rule of Evidence 508. The orders of dismissal state that they are “with prejudice.”

Dismissal Pursuant to Texas Rule of Evidence 508

Texas Rule of Evidence 508 provides a qualified privilege to the State to protect the identity of confidential informers. The rule provides in pertinent part:

(a) The United States or a state or subdivision thereof has a privilege to refuse to disclose thé identify of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
(c)(1) No privilege exists, under this rule ... if the informer appears as a witness for the public entity.
(c)(2) ... If the court finds that there is a reasonable probability that the informer can give the testimony and the public entity elects not to disclose the inform er’s identity, the court ... in a criminal case, shall on the motion of the defendant, dismiss the charges as to which the testimony would relate....

Tex.R. Evid. 508(a), (c)(1), (2) (emphasis added).

The State argues that the trial court erred by dismissing the indictments pursuant to rule 508 for two reasons. First, no evidence establishes that the State had refused to disclose the informer’s identity. Second, the State affirmatively indicated in its motion for continuance that it would be revealing the identity of the informer, who it intended to call as a witness at appellant’s trial. In sum, the State argues that it did not invoke a rule 508 privilege.

Under Rule 508(c)(1), no privilege exists “if the informer appears as a witness for the public entity.” If the State was not invoking the 508 privilege to .protect the identity of its informer, the trial court could not, pursuant to 508(c)(2), dismiss the indictments.

Sustaita contends that the State had, effectively, invoked the privilege because, as of the date of the trial, it had not provided the identity of the confidential informer 20 days before trial, after being ordered to do so by the court in an order dated July 5, 2002. The State responds that it had not done so because, until the Thursday before the Monday trial date, it believed that the case was not going to trial and that Sustaita intended to plead guilty. Sustaita does not contend that the State’s belief was unfounded. The State’s motion for continuance, filed just two working days after learning that Sustaita had decided to proceed to trial, indicates the State’s willingness to identify the confidential informer. The State agreed to provide the informer’s identification, and, thus, did not invoke a rule 508 privilege.

Sustaita also argues that providing her with notice of the informer’s identity on the day of trial would deprive her of the ability to investigate and prepare for trial. The State must give notice of its witnesses upon proper request by the defense. Young v. State, 547 S.W.2d 23, 27 (Tex.Crim.App.1977). Similarly, the State was under a duty to provide Sustaita with the informer’s identity, pursuant to the trial court’s July 5, 2002 order. However, the remedy for the violation of either of these duties was not a dismissal pursuant to rule 508, because, as we have already held, the State was not invoking a privilege under rule 508. If Sustaita did not have sufficient time to investigate the informer or to prepare for trial because of the State’s untimely disclosure of the informer’s identity, she could have joined the State in requesting a motion for continuance.

CONCLUSION

The record in this case shows that the State did not timely disclose the informer’s identity to Sustaita, but it does not show that the State invoked a privilege under rule 508 by refusing to disclose the informer’s identity. Accordingly, we hold that the trial court erred by dismissing the indictments. In light of our disposition, we need not decide whether a dismissal pursuant to rule 508 should be with prejudice or without prejudice. We remand the cases for further proceedings.

      . In its response to the motion for rehearing, the State admits that the last sentence of its motion is incorrect. The confidential informer is not a police officer who performed field sobriety tests on Sustaita.

      . We express no opinion as to other remedies available to the trial court for the State’s failure to timely comply with its July 5, 2002 order.