author: J. HARVEY HUDSON, Justice.

text:
    Gary JORDAN and Bill Jordan, Individually and as Independent Executors of the Estate of Leonard C. Jordan, Deceased, Appellants, v. Vincent BUSTAMANTE, Appellee.
    No. 14-03-00633-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 25, 2005.
    Rehearing Overruled March 17, 2005.

      Stephen N. Riner, Shawn Russel Casey, Houston, for Appellants.
    Richard Petronella, Houston, for Appel-lee.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

J. HARVEY HUDSON, Justice.

This is a double appeal involving two tracts of land. Gary Jordan and Bill Jordan, Individually and as Independent Executors of the Estate of Leonard C. Jordan, Deceased (collectively, the “Jordans”), appeal the trial court’s final judgment of April 28, 2003, awarding Vincent Busta-mante (“Bustamante”) a 155-acre tract of land. Bustamante appeals the same judgment awarding the Jordans a 29-acre tract of land. We affirm, in part, and reverse and remand, in part.

Background

Procedural History: 155 Acres

On May 8, 1992, Cypress-Fairbanks Independent School District filed suit against the Jordans for the collection of delinquent ad valorem taxes on a 155-acre tract in the 295th District Court (the “first tax suit”). On December 1, 1993, the 295th District Court signed an agreed judgment in favor of Cypress-Fairbanks and Harris County (Intervenor) against the Jordans for delinquent real estate taxes on the 155 acres and provided for an order of sale. On January 24, 1995, the Harris County District Clerk issued an “alias” order of sale, and on April 4, 1995, Cypress-Fairbanks purchased the 155 acres at a constable’s sale held pursuant to the order of sale. On May 9, 1995, the constable’s deed to Cypress-Fairbanks was recorded in the Harris County real property records. On July 14, 1997, Cypress-Fairbanks sold the 155 acres to Bustamante for $111,024.36 in cash. Bustamante received a tax resale deed, which was recorded in the Harris County real property records on September 24,1997.

Procedural History: 29 Acres

On November 16, 1995, a tax suit was filed by Cypress-Fairbanks against the Jordans on a 29-acre tract in the 157th District Court (the “second tax suit”). On June 26, 1997, the court signed a default judgment in favor of Cypress-Fairbanks and the Intervenors — Harris County, Harris County Education Department, Port of Houston of Harris County Authority, Harris County Flood Control District, Harris County Hospital District, and Harris County Emergency Service District No. 9 — on the 29 acres. On December 5, 1997, Cypress Fairbanks assigned the judgment to Bustamante’s wife, Elaine Paleólogo.

On August 11, 1998, the Harris County District Clerk issued an order of sale, and on November 3, 1998, Bustamante purchased the 29 acres $106,129.00 in cash at a constable’s sale held pursuant to the order of sale. On January 14, 1999, the constable’s deed to Bustamante on the 29 acres was recorded in the Harris County real property records.

Excess proceeds from the sale of the 29 acres were deposited into the registry of the court. On January 21, 1999, the Jor-dans moved to withdraw the $98,000.15 in excess proceeds. On January 28,1999, the Jordans moved to set aside the tax sale of the 29 acres to Cypress-Fairbanks on the ground that such sale was void because the lienholders — the Internal Revenue Service (“IRS”) and the State — were not joined in the tax suit, and further sought subrogation to the tax liens and the return of any excess funds.

On March 1, 1999, the IRS filed a disclaimer of interest in the 29 acres, while on March 11,1999, the State of Texas claimed the excess proceeds. The Tax Master recommended that the State be awarded the excess proceeds and, accordingly, on June 14, 1999, the trial court signed an order disbursing the excess funds to the State.

Current Suit on 155 and 29 Aoves

On April 13, 1999, Bustamante filed suit against the Jordans, Cypress-Fairbanks, Harris County, and the State seeking, among other relief, the removal of the cloud on his title to the 29 acres created by a hen previously filed by the State for unpaid taxes. On June 16, 1999, the Jor-dans filed a counterclaim expanding the dispute to include the 155 acres, in addition to the 29 acres. The Jordans requested that the tax sales to both the 29 and 155 acres be set aside because the lienhold-ers — the State and the IRS — were not parties to the tax suits.

On April 26, 2000, trial commenced against the Jordans on both the 29 and 155 acres. Bustamante announced to the trial court that he wanted to abandon the following sentence in his first amended petition: “In addition, Bustamante seeks a declaration that his title and right to possession of the property is superior to all of the defendants.” The Jordans filed a brief in support of their proposed findings of fact and conclusions of law arguing that Bustamante had abandoned his only viable cause of action by which he could recover the property, i.e., trespass to try title.

On July 24, 2000, the trial court signed the judgment, awarding Bustamante title to and possession of both the 29 acres and 155 acres. However, Bustamante filed a motion for new trial in which he pointed out that the Jordans had argued, in light of his abandoning the above quoted sentence from his first amended petition, that (1) his case was a trespass to try title action, (2) trespass to try title was his exclusive remedy, and (3) he did not prove his trespass to try title action. Although Bustamante did not agree with the Jor-dans, he was concerned they would appeal and title to the property would remain clouded during the pendency of the appeal. Bustamante requested the trial court grant a new trial to allow him to amend his pleadings to allege an action in trespass to try title, as well as actions under the Texas Tax Code and the Declaratory Judgment Act. On September 5, 2000, the trial court granted Bustamante’s motion for new trial and awarded $7,897.40 in attorney fees to the Jordans.

On October 8, 2001, Bustamante non-suited his case as the plaintiff against the Jordans. Bustamante also filed a motion to realign the parties in which he asserted that because he had nonsuited the Jor-dans, and the Jordans were the only parties with affirmative claims by virtue of their third amended counterclaim, they should be the plaintiffs and Bustamante the defendant. Bustamante filed an amended answer asserting a general denial, a plea of “not guilty,” and affirmative defenses to the Jordans’ counterclaim. On August 9, 2002, the trial court granted Bustamante’s motion to realign the parties, ordering that the Jordans were the plaintiffs and that Bustamante was the defendant.

The Jordans moved for summary judgment on both the 29 and 155 acres on their trespass to try title action asserting that they had proved a regular chain of conveyances from the sovereignty. The Jordans also argued that Bustamante had abandoned his trespass to try title action and his claim to superior title and right of possession, the tax sales were void because the lienholders were not joined in the tax suits, and they had standing to complain about the failure to join the lienholders in the tax suits.

On February 17, 2003, with respect to the 29 acres, the trial court granted the Jordans’ motion for summary judgment, setting aside the tax foreclosure sale on the 29 acres and ordering that any lien in existence at the time of the foreclosure sale would remain a burden on the property to the extent such lien had not been satisfied. With respect to the 155 acres, the trial court denied the Jordans’ motion for summary judgment and conducted a bench trial, after which it awarded Busta-mante the 155 acres. On April 28, 2003, trial court entered a final judgment on the 29 and 155 acres.

The Jordans’ Appeal of the Award of 155 Acres to Bustamante

Abandonment of Cause of Action for Trespass to Try Title

In their appeal, the Jordans claim the trial court abused its discretion in awarding Bustamante the 155 acres. The Jor-dans first argue that when Bustamante voluntarily abandoned his trespass to try title action during the first trial pursuant to Rule 165 of the Rules of Civil Procedure, he abandoned the only available remedy by which he could obtain title to the 155 acres. See Tex.R. Civ. P. 165 (“A party who abandons any part of his claim or defense, as contained in the pleadings, may have that fact entered of record, so as to show that the matters therein were not tried.”).

“A trespass to try title action is the method for determining title to lands, tenements, or other real property.” Tex. PROP.Code Ann. § 22.001(a) (Vernon 2000); Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex.1994). It is the exclusive remedy by which to resolve competing claims to property. Ely v. Briley, 959 S.W.2d 723, 727 (Tex.App.-Austin 1998, no pet.). Any suit involving a dispute over the title to land is, in effect, an action in trespass to try title, whatever its form and regardless of whether legal or equitable relief is sought. Hawk v. E.K. Arledge, Inc., 107 S.W.3d 79, 84 (Tex.App.-Eastland 2003, pet. denied); Jordan v. Exxon Corp., 802 S.W.2d 880, 883 (Tex.App.-Texarkana 1991, no writ).

In his first amended petition (the “live” pleading during the first trial), Busta-mante sought, among other relief, “a declaration that his title and right to possession [are] superior to all of the defendants.” During the first trial, Bustamante announced to the trial court that he wanted to abandoned that sentence. The Jordans allege Bustamante, having abandoned his trespass to try title action, effectively abandoned the only cause of action he had and, therefore, the trial court should have entered judgment that Bustamante take nothing.

In response, Bustamante asserts that he did not file a trespass to try title action. Bustamante sought a judicial determination that “his title and right to possession [are] superior to all of the defendants.” Bustamante’s petition has clearly alleged a competing claim to title to the 155 acres. See Hawk, 107 S.W.3d at 84 (stating that any suit involving dispute over title to land is action in trespass to try title); Jordan, 802 S.W.2d at 883 (same). However, it appears Bustamante sought this determination in the context of a declaratory judgment action. While the Declaratory Judgment Act provides a procedural method for the construction or validity of deeds by those whose rights are affected by such instruments, the substantive rights of the parties are governed by the trespass to try title statutes. Kennesaw Life & Acc. Ins. Co. v. Goss, 694 S.W.2d 115, 117-18 (Tex.App.-Houston [14th Dist.] 1985, writ ref d n.r.e.). Therefore, a declaratory judgment action cannot be used to adjudicate title and a trespass to try title action because section 22.01 is the exclusive remedy by which to do so. Ely, 959 S.W.2d at 727. For reasons addressed below, however, we need not address whether Bustamante attempted to have title to the property determined in a declaratory judgment action or whether he abandoned his trespass to try title action during the first trial to resolve the question of the 155 acres.

After the trial court awarded Busta-mante title and possession to both the 29 and 155 acres during the first trial, Busta-mante filed a motion for a new trial in which he pointed out that the Jordans had argued (1) his case was a trespass to try title action, (2) a trespass to try title action was his exclusive remedy, and (3) he had not proved superior title to the property. Bustamante explained he was concerned the Jordans would appeal the judgment, and title to the property would remain clouded during the pendency of the appeal. Bustamante requested that the trial court grant a new trial to allow him to amend his pleadings in order to allege an action in trespass to try title, as well as actions under the Texas Property Tax Code and the Declaratory Judgment Act. On September 5, 2000, the trial court granted Bustamante’s motion for new trial.

Rule 165 of the Rules of Texas Civil Procedure provides that “[a] party who abandons any part of his claim or defense, as contained in the pleadings, may have that fact entered of record, so as to show that the matters therein were not tried.” Tex.R. Civ. P. 165. Rule 165 permits the abandonment of a claim or defense before, but not after, trial and entry of judgment. Person v. Latham, 582 S.W.2d 246, 250 (Tex.Civ.App.-Beaumont 1979, writ ref d n.r.e.).

The Jordans assert that an abandoned cause of action cannot be revived. In support of this contention, the Jordans rely on an opinion from this court, Gojfney v. Robson, 56 S.W.3d 186 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). A review of our opinion in Gojfney establishes that it does not support the proposition for which it is cited by the Jordans. In Gojf-ney, the plaintiff sued her attorney for legal malpractice, breach of contract, Deceptive Trade Practices Act-Consumer Protection Act (DTPA) violations, and breach of fiduciary duty in connection with her attorney’s representation of her. Id. at 188. Prior to trial, the plaintiff dropped her legal malpractice claim from her petition and proceeded to trial on her remaining claims with the jury finding in her favor on the claims against her attorney. Id. The trial court entered a final judgment in favor of the plaintiff. Id. The narrow issue addressed in our opinion was whether the plaintiffs breach of contract, breach of fiduciary duty, and DTPA claims were essentially legal malpractice claims. Id. at 190. We determined that those claims were, in fact, legal malpractice claims and held, under well-settled law, that a client cannot “divide or fracture” legal malpractice claims into additional causes of action and, therefore, the plaintiff could not recover from her attorney because she had no viable cause-of-action upon which to recover after she had abandoned her legal malpractice claim. Id.

The Jordans also rely on an opinion from the United States Court of Appeals for the Tenth Circuit, Casto v. Arkansas-Louisiana Gas Co., 597 F.2d 1323 (10th Cir.1979), for the proposition that abandonment of a cause of action precludes any subsequent action for the same cause. We find Casto is also inapplicable to the case at hand. In Casto, the plaintiffs sued a gas company for damages for loss of property and loss of consortium sustained in a gas explosion in their home. Id. at 1324. However, prior to trial, the husband elected not to proceed on his claim for loss of consortium. Id. Explaining that a plaintiff may not split a single cause of action, the Casto court held where a plaintiff “includes multiple claims for his damages from the single tort on which the suit is based, and in silence drops one claim, he may not, after judgment in that suit, maintain a separate second suit on that dropped claim.” Id. at 1326 (emphasis added).

We recognize that abandoning a cause of action can have a res judicata effect. See Jones v. Nightingale, 900 S.W.2d 87, 90 (Tex.App.-San Antonio 1995, writ ref d). In Jones, the plaintiff brought claims for negligence and breach of contract, but abandoned (pursuant to Rule 165) her breach of contract claim the day after the trial began. Id. at 88. The jury found no negligence and judgment was entered and became final. Id. Thereafter, the plaintiff sent a letter to the defendant threatening litigation over the previously abandoned breach of contract claim. Id. Rejecting the plaintiffs argument that her contract claim was not barred by res judi-cata because she had expressly and properly excluded it when she abandoned it pursuant to Rule 165, the San Antonio Court of Appeals explained that the plaintiff sought to recover for injuries stemming from a single occurrence under negligence and contract theories. Id. at 89. That situation did not occur here.

Unlike Gojfney, Casto, and Jones, the trial court in this case granted a new trial, reinstating the case on the docket as if no trial had occurred and, therefore, the final judgment did not stand.

Moreover, Bustamante still claimed better title to the property. On October 8, 2001, Bustamante nonsuited his case as the plaintiff against the Jordans and filed a motion to realign the parties in which he asserted that because he had nonsuited the Jordans, and the Jordans had filed a third amended counterclaim, the Jordans were the only parties with affirmative claims and, therefore, they should be the plaintiffs and Bustamante the defendant. Bus-tamante also filed an answer, asserting a plea of “not guilty,” a general denial, and several affirmative defenses. By his general denial and his plea of “not guilty” to the Jordans’ trespass to try title action, Bustamante claimed better title to the property. See Bellaire Kirkpatrick Joint Venture v. Loots, 826 S.W.2d 205, 209 (Tex.App.-Fort Worth 1992, writ denied) (explaining that when title is disputed, defendant admits possession, but claims better title).

The Jordans further allege that Bustamante’s abandonment of his trespass to try title action in the first trial was a formal disclaimer of any interest in the property. A disclaimer is neither an answer nor a defensive plea; instead, it is “ ‘a solemn declaration, made in court, that the declarant has not title to either the whole or a portion of the property in litigation, and it is, in effect, an admission that the adverse party has a right to the property; ...’” Sanders v. Taylor, 500 S.W.2d 684, 686 (Tex.Civ.App.-Fort Worth 1978, no writ) (quoting Scanlan v. Hitchler, 19 Tex.Civ.App. 689, 48 S.W. 762, 764 (1898, no writ)); Haltom v. McKinley, 64 S.W.2d 1060, 1066 (Tex.Civ.App.-Texar-kana 1933, writ dism’d). Thus, a defendant’s disclaimer entitles the plaintiff to judgment against the defendant for all land at issue which has been disclaimed without the need to introduce evidence. Jordan, 802 S.W.2d at 883; Clarady v. Bonin, 597 S.W.2d 445, 447 (Tex.Civ.App.-Beaumont 1980, writ refd n.r.e.); Williams v. Humble Oil & Ref. Co., 139 S.W.2d 346, 349 (Tex.Civ.App.-El Paso 1940, writ dism’d judgm’t cor.). Once a disclaimer has been made, it cannot be withdrawn or retracted without the trial court’s permission, subject to its discretion. Sanders, 500 S.W.2d at 686 (quoting Scanlan, 48 S.W. at 764).

On October 19, 2001, after Bustamante had nonsuited the Jordans and moved to realign the parties, the Jordans filed a fourth amended counterclaim against Bus-tamante in which they asserted that Busta-mante had “abandoned and/or disclaimed his right to superior right to title and to possession of the property. Although Bustamante disagreed with the Jordans’ assertion that abandoning a sentence from his first amended petition during the first trial constituted a disclaimer of his claim to superior right to title and to possession of the property, he nonetheless moved to withdraw the “alleged disclaimer.” On February 17, 2003, the trial court granted Bustmante’s motion. Thus, any alleged disclaimer was withdrawn with the permission of the trial court. See Sanders, 500 S.W.2d at 686 (stating disclaimer cannot be withdrawn without permission of trial court). The Jordans do not otherwise assert that the trial court abused its discretion.

In summary, whether or not Busta-mante abandoned his trespass to try title action during the first trial is not relevant because the trial court granted his motion for new trial thereby returning the case to the position it was in had it never been tried. Thus, Bustamante still asserted superior title to the property in the Jordans’ trespass to try title action. Finally, to the extent that the Jordans contend Busta-mante disclaimed his interest in the 155 acres, such disclaimer was withdrawn with the trial court’s permission.

Validity of Tax Judgment and Sale

The Jordans assert the tax sale is void because when the taxing unit, Cypress-Fairbanks, initiated its suit for delinquent taxes, it prosecuted the suit to full judgment without ever joining the State or the IRS, both of which had tax liens against the property. In support of this contention, the Jordans rely on Norris v. Harry Hott & Assocs., Inc., 612 S.W.2d 630 (Tex.Civ.App.-Dallas 1981, no writ). Our review of Norris reflects that it does not support the Jordans’ position.

In Norris, when the State filed its tax foreclosure suit, two parties — Hott and Runnymead — each had a deed in their favor to the land in question on file in the deed records of Dallas County. Id. at 631. While Runnymead was made a party in the State’s tax suit, Hott was not. Id. at 632. Observing that a tax foreclosure suit must include the record owner and all parties owning or claiming any interest in the property, the Dallas Court of Appeals held that the State’s foreclosure judgment remained valid as to Runnymead (the party named in the tax suit), but did not bind Hott (the party not named in the tax suit). Id. at 632.

Here, the judgment in the first tax suit is not wholly void, but is valid as to the Jordans, who were part of that suit. See, e.g., Loper v. Meshaw Lumber Co., 104 S.W.2d 597, 599-600 (Tex.Civ.App.-Eastland 1937, writ dism’d) (stating judgment in tax suit is not void because all parties owning interest are not made parties; instead, judgment foreclosing tax lien is good as against parties joined in suit, but parties not joined are not bound by judgment); Adams v. West Lumber Co., 162 S.W. 974, 976 (Tex.Civ.App.-Texarkana 1913, writ ref d) (explaining that parties to proceedings are bound by judgment while those who were not parties to proceedings are not bound by judgment). Because the State and the IRS were not joined in the first tax suit, their hen interests were not disposed of and Bustamante took the 155 acres subject to those liens. See First State Bank-Keene v. Metroplex Petroleum Inc., 155 F.3d 732, 737 (5th Cir.1998) (explaining that tax suit was not whohy void, but because FDIC was not party to tax suit, its hen interest was not disposed of and appellants took property subject to its hen).

However, the Jordans do not have standing to complain of any alleged injury to the State or the IRS due to Cypress-Fairbanks’ failure to join them as parties in the first tax suit. See Sweed v. City of El Paso, No. 08-00-00195, 2001 WL 1469071, at *2 (Tex.App.-El Paso Nov. 20, 2001, pet. denied) (not designated for publication) (holding failure to join all interested parties in dehnquent tax suit did not deprive trial court of power to render valid judgment against those actually named, and appellant had no standing to assert any rights on behalf of third party). A party may not complain of errors that do not injuriously affect it or that merely affect the rights of others. In re P.R., 994 S.W.2d 411, 416 (Tex.App.-Fort Worth 1999, pet. dism’d w.o.j.), disapproved on other grounds by In re J.F.C., 96 S.W.3d 256, 267 (Tex.2002); see also McDaniel v. Texas Natural Res. Conservation Comm’n, 982 S.W.2d 650, 654 (Tex.App.Austin 1998, pet. denied) (landowner did not have standing to assert interest of adjacent landowners who did not receive notice from Commission of applicant’s affiliation with another party); Copher v. First State Bank, 852 S.W.2d 738, 740 (Tex. App.-Fort Worth 1993, no writ) (judgment debtor had no standing to assert interest of party who allegedly was never given notice of hearing); American Operating Co. v. Railroad Comm’n of Tex., 744 S.W.2d 149, 155 (Tex.App.-Houston [14th Dist.] 1987, writ denied) (holding unit owner had no standing to challenge lack of notice to royalty interest lessor); Murmur Corp. v. Board of Adjustment, 718 S.W.2d 790, 793 (Tex.App.-Dallas 1986, writ refd n.r.e.) (holding subsequent purchaser of property had no standing to complain of lack of notice to former owner).

Statute of Limitations

The Jordans are further precluded under Section 33.54 of the Texas Property Tax Code from challenging Busta-mante’s title to the 155 acres purchased from Cypress-Fairbanks. See Tex. Tax Code Ann. § 33.54 (Vernon 2001). An action for title to property may not be maintained against the purchaser of the property at a tax sale unless the action is commenced “before the first anniversary of the date that the deed executed to the purchaser at the tax sale is filed of record.” Id. at § 33.54(a)(1). A person may not “commence” an action against the purchaser of the property unless he deposits into the registry of the court an amount equal to that of the delinquent taxes, penalties, and interest specified in the foreclosure judgment, plus all costs of the tax sale. Tex. Tax Code Ann. § 34.08(a)(1) (Vernon 2001). Moreover, a person may not commence an action challenging the validity of the tax sale after the time set forth in § 33.54(a)(1). Id. at § 34.08(b).

Cypress-Fairbanks purchased the 155 acres in the constable’s sale on April. 4, 1995. The constable’s deed to Cypress-Fairbanks was recorded in the Harris County real property records on May 9, 1995. Bustamante filed suit on the 29 acres on April 13, 1999. On June 16, 1999, the Jordans filed a counterclaim against Bustamante on both the 29 and 155 acres. Therefore, the Jordans failed to commence their action on the 155 acres by the one-year anniversary of the recording of the constable’s deed to Cypress-Fairbanks, i.e., May 9, 1996, instead, waiting more than three years after the date on which the constable’s deed to Cypress-Fairbanks was filed. Therefore, such action is barred under § 33.54 and the purchaser at the tax sale (Cypress-Fairbanks) or the purchaser’s successor in interest (Busta-mante) has full title to the 155 acres precluding all other claims. See Tex. Tax Code Ann. § 33.54(c) (“When actions are barred by this section, the purchaser at the tax sale or the purchaser’s successor in interest has full title to the property, precluding all other claims.”); see also Tex. Tax Code Ann. § 34.08(b) (“The purchaser may conclusively presume that the tax sale was valid and shall have full title to the property free and clear of the right, title, and interest of any person that arose before the tax sale, ... ”).

The Jordans contend § 33.54 is not operative outside the confines of the trespass to try title statute. Therefore, according to the Jordans, Bustamante’s limitations defense under § 33.54 “died” when his trespass to try title action was extinguished by abandonment. As previously addressed, the trial court granted Busta-mante’s motion for new trial, putting the case back in the same position as if no trial had occurred. Thereafter, the Jordans asserted a trespass to try title action against both the 29 and 155 acres in their third amended counterclaim. Bustamane filed an answer to the Jordans’ third amended counterclaim, asserting a general denial, a plea of “not guilty,” and several affirmative defenses, including § 33.54 limitations, and nonsuited his affirmative claims against the Jordans, leaving the Jordans as the plaintiffs and Bustamante as the defendant in this trespass to try title action. By asserting a general denial and pleading “not guilty,” Bustamante claimed better title to the property. Bellaire Kirkpatrick Joint Venture, 826 S.W.2d at 209. Thus, Bustamante asserted § 33.54 limitations as an affirmative defense to the Jordans’ trespass to try title action.

The Jordans further claim that a party attempting to establish title by asserting § 33.54 limitations must introduce, in addition to the tax deed, the same documentation that proves a valid tax deed, including the tax judgment and order of sale. See Volunteer Council of Denton State Sch., Inc. v. Berry, 795 S.W.2d 230, 238 (Tex.App.-Dallas 1990, no writ). The Jordans’ reliance on the Berry case is misplaced. The court in Berry based its decision on a reading of a previous version of § 33.54 which provided:

No cause of action or defense may be asserted or maintained on a claim respecting any land sold for delinquent taxes at a tax sale pursuant to a judicial foreclosure of a tax lien, unless the cause of action or defense is asserted in an action commenced within three years after the filing of record of the deed executed to the purchaser at the tax sale.

Id. at 238 (quoting Tex.Rev.Civ. Stat. Ann. art. 7345(b)-3(a)) (emphasis in original). The Berry court explained that the italicized language of former § 33.54 required a tax deed proponent to show the sheriffs authority to sell before proving a valid deed. Id. at 240. The Berry court recognized the italicized language was dropped when the legislature recodified article 7345b-3(a) in § 33.54 of the Tax Code, but, nonetheless, held that in order to invoke the protections of § 33.54, a party must introduce the same documentation that proves a valid tax deed. Id.

The San Antonio Court of Appeals disagreed and rejected that same argument. See Cedillo v. Gaitan, 981 S.W.2d 388 (Tex.App.-San Antonio 1998, no writ). After reviewing the language and history of § 33.54, the Cedillo court found “no reason to interpret section 33.54 other than as it was written and enacted by the Texas Legislature.” Id. at 393. The San Antonio Court of Appeals, therefore, held the plaintiffs’ suit in that case was barred because it was not filed within three years after the date the tax deed was recorded. Id.

In light of the plain language of § 33.54 and the San Antonio Court of Appeals’ decision in Cedillo, we reject the Jordans’ contention that Bustamante was required to introduce the tax judgment and order of sale in order to rely on § 33.54 limitations. The trial court did not abuse its discretion in awarding Bustamante the 155 acres in its final judgment.

Bustamante’s Cross-Appeal

Bustamante appeals the granting of summary judgment in favor of the Jordans awarding them the 29 acres. The Jordans moved for summary judgment on the following grounds: (1) they could prove their title back to the sovereign, (2) Bustamante had abandoned his trespass to try title action, (3) the tax sales were void because the State and the IRS were not joined in the tax suit even though they were lien-holders, (4) the tax sale was void because the assignment of the tax judgment to Bustamante’s wife was not signed by the president of the board of trustees of the school district; (5) they have standing to challenge the failure to join the lienholders in the tax suit; and (6) their claim is not subject to the statute of limitations.

In response to the Jordans’ motion for summary judgment, Bustamante argued (1) the Jordans’ action was barred by res judicata, (2) the Jordans lacked standing to complain about the failure to join the State and the IRS, (3) the Jordans could not collaterally attack an agreed judgment from a forcible entry and detainer action giving Bustamante possession to the entire 184 acres, (4) the Jordans’ action was barred by § 33.54 limitations, (5) the Jor-dans’ action was barred by § 34.08 for failing to deposit an amount equal to the tax judgment and costs into the registry of the court, (6) the Jordans ratified the constable’s sale by seeking the excess proceeds, and (7) the Jordans failed to tender the debt for all taxes paid by Bustamante. The trial court granted the Jordans’ motion for summary judgment on the 29 acres and ordered the tax foreclosure sale set aside, and any hen in existence at the time of the foreclosure sale remain a burden on the property to extent such lien had not been satisfied.

Abandonment of Cause of Action for Trespass to Try Title

The Jordans assert Bustamante’s abandonment of his trespass to try title claim is dispositive of his appeal of the judgment awarding the 29 acres to them. As addressed above, we conclude Bustamante still claimed title when he pleaded “not guilty.” In their second amended counterclaim, which was the Jordans’ live pleading during the first trial, the Jordans asserted title to the 29 acres. In his response to their claim to the 29 acres, Bustamante asserted a general denial, a plea of “not guilty,” and affirmative defenses. Therefore, Bustamante asserted possession and better title to the 29 acres, forcing the Jordans to prove their title was superior. We conclude Bustamante did not abandon his claim to the 29 acres.

Validity of Tax Judgment and Sale

The Jordans contend again that the tax sale is void because the IRS and the State as lienholders were not joined in the tax suit. The State issued a partial release of its $600,000 lien on the 29 acres after having been awarded the excess proceeds. The IRS also filed a “Disclaimer of Interest” in the 29 acres. In any event, as noted above, the tax judgment was not void as to the Jordans who were parties to the suit and the Jordans do not have standing to complain about any failure to join the State and the IRS in the tax suit.

The Jordans further argue the tax sale was void because the president of the school district’s board of trustees did not execute the “quitclaim deed” to Busta-mante’s wife, Elaine Paleólogo. See Tex. Educ.Code Ann. § 11.154(b) (Vernon 1996) (“The president of the board of trustees shall execute a deed to the purchaser of the property reciting the resolution of the board of trustees authorizing the sale.”). Cypress-Fairbanks assigned the judgment to Bustamante’s wife, it did not convey the property by means of a quitclaim deed. Section 11.154 specifically refers to a “deed” executed by the president of the board of trustees, not an assignment of a judgment. In any event, we find no authority that any failure of the president of the board to sign the assignment of judgment voids the subsequent tax sale. Cf. R.B. Spencer & Co. v. Brown, 198 S.W. 1179, 1181 (Tex.Civ.App.-El Paso 1917, writ refd) (holding it was not intention that failure to recite board resolution authorizing sale should nullify deed).

Statute of Limitations

As with the 155 acres, Bustamante asserts the Jordans’ action to set aside the constable’s deed to the 29 acres is barred by § 33.54 limitations. As discussed above, § 33.54(a)(1) provides “an action relating to the title to property may not be maintained against the purchaser of the property at a tax sale unless the action is commenced: (1) before the first anniversary of the date that the deed executed to the purchaser at the tax sale is filed of record; ...” Tex. Tax Code Ann. § 33.54 (emphasis added).

The constable’s deed to Bustamante on the 29 acres was recorded in the Harris County real property records on January 14, 1999. The Jordans, therefore, would have to commence their action on the 29 acres by January 13, 2000. The Jordans filed their action to set aside the tax sale on June 16,1999.

However, “[a] person may not commence an action that challenges the validity of a tax sale under this chapter unless the person: (1) deposits into the registry of the court an amount equal to the amount of the delinquent taxes, penalties, and interest specified in the judgment of foreclosure obtained against the property plus all costs of the tax sale.” Tex. Tax Code Ann. § 34.08(a)(1). The Jordans did not deposit any funds into the registry of the court as required by section 34.08(a)(1) of the Texas Property Tax Code until April 26, 2000. Having failed to make the required deposit until after January 13, 2000, the Jordans “may not commence an action challenging the validity of the tax sale after the time set forth in Section 33.54(a)(1) ... against a subsequent purchaser for value who acquired the property in reliance on the tax sale.” Id. at § 34.08(a). Therefore, Bustamante “may conclusively presume that the tax sale was valid and shall have full title to the property free and clear of the right, title, and interest of any person that arose before the tax sale, subject ... to applicable rights of redemption.” Id. The Jordans have not shown that they attempted to redeem the property.

The Jordans argue that by abandoning his trespass to try title action, Bustamante abandoned his claim to title based on § 33.54 and § 34.08 limitations. As already discussed, Bustamante asserted his § 33.54 limitations defense in response to the Jordans’ trespass to try title action. We hold the Jordans were barred by § 33.54 from challenging the validity of the tax sale to Bustamante.

However, while Bustamante raised the statute of limitations in response to the Jordans’ motion for summary judgment, he did not move for summary judgment on this affirmative defense. Therefore, we cannot render judgment, but must remand this portion of the case to the trial court.

Award of Costs

Finally, Bustamante contends the trial court erred in ordering that each party pay their own costs. Rule 131 of the Texas Rules of Civil Procedure provides “[t]he successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.” Tex.R. Civ. P. 131. In view of our ruling on Bustamante’s cross-appeal, we reverse to that portion of the trial court’s judgment ordering the parties to pay their own costs and remand to the trial court.

Conclusion

We affirm that portion of the trial court’s judgment awarding Bustamante the 155 acres. We reverse that portion of the judgment awarding the Jordans the 29 acres and remand to the trial court. We further reverse that portion of the judgment ordering the parties to pay their own costs. Accordingly, the judgment of the trial court is affirmed, in part, and reversed and remanded, in part.

      . On January 3, 1989, a State tax lien in the amount of $599,278.70 was recorded in the Harris County real property records. The State, however, was not made a party to the either tax suit. On May 5, 1995, a notice of federal tax lien in the amount of $4,210,113.49 against the Leonard C. Jordan Estate was recorded in the Harris County real property records. On August 26, 1996, another notice of federal tax lien in the amount of $4,210,113.48 against the Leonard C. Jordan Estate was recorded in the Harris County real property records. The IRS was not made a party to either tax suit.

      . Bustamante nonsuited the State prior to trial on April 7, 2000. Bustamante never served any of the taxing authorities with his suit.

      . See City of San Antonio v. Dickman, 34 Tex. 647, 650 (1870) (stating granting of new trial reinstates cause on docket as though no trial had been had); Stanley v. CitiPinancial Mtge. Co., Inc., 121 S.W.3d 811, 816 (Tex.App.Beaumont 2003, pet. denied) (explaining that after granting of new trial by trial court, it is as if case had never been tried); Markowitz v. Markowitz, 118 S.W.3d 82, 88 (Tex.App.Houston [14th Dist.] 2003, pet. denied), cert. denied, - U.S. -, 125 S.Ct. 69, 160 L.Ed.2d 29 (2004) (op. on reh’g) (Seymore, J., concurring) (stating that upon granting of motion for new trial, original judgment is set aside and parties may proceed without prejudice from previous proceedings); City of Dallas v. Ormsby, 904 S.W.2d 707, 712 (Tex.App.Amarillo 1995, writ denied) (stating effect of granting motion for new trial “was to wipe clean the factfinding slate”); State Dep't of Highways & Pub. Transp. v. Ross, 718 S.W.2d 5, 11 (Tex.App.-Tyler 1986, orig. proceeding) (stating that after granting new trial, logically any pretrial order would be obliterated); Electrical Contracting & Maint. Co. v. Perry Distribs., Inc., 432 S.W.2d 543, 547 (Tex.Civ. App.-Dallas 1968, writref'd n.r.e.) (explaining that where judgment in first trial was set aside and new trial granted by trial court, jury findings at first trial could not form basis of judgment resulting from second trial); De Ramirez v. Sovereign Camp, W.O.W., 123 S.W.2d 737, 738 (Tex.Civ.App.-El Paso 1938, no writ) (quoting Smith v. Thornton, 119 Tex. 344, 29 S.W.2d 314, 315 (1930)) (explaining that after granting of new trial, " 'case stands upon the docket as if it had not been tried’ ”).

      . Although Bustamante originally brought suit against the Jordans on the 29 acres, he did not include the 155 acres. The Jordans expanded the dispute to include the 155 acres when they filed their counterclaim. Busta-mante added an affirmative claim for the 155 acres in his first amended petition. However, the Jordans' second amended counterclaim, which was their live pleading at the time of the first trial, makes no mention of the 155 acres, although their claim to the 155 acres appears again in their third amended counterclaim. The Jordans point out that when Bus-tamante dropped the sentence in question from his first amended petition during the first trial and, in the absence of any claim by them for 155 acres at the time of the first trial, Bustamante had no claim for title to the 155 acres. Bustamante had by his answer to the Jordans’ second amended counterclaim, which only affirmatively sought title to the 29 acres, effectively asserted title to the 29 acres only, not the 155 acres. However, Busta-mante's answer to the Jordans’ third amended counterclaim was sufficient to assert title to the 155 acres in light of the trial court’s granting a new trial.

      . Emphasis added.

      . We also note that the Jordans did not deposit funds into the registry of the court equal to the amount of the delinquent taxes, penalties, and interest specified in the judgment of foreclosure, plus costs of the sale as required to even "commence” an action challenging the validity of the tax sale. Tex. Tax Code Ann. § 34.08(a)(1).

      . Act of June 15, 1977, 65th Leg., R.S., ch. 663, § 1, 1977 Tex. Gen. Laws 1680, amended by Act of June 13, 1979, 66th R.S., ch. 841, 1979 Tex. Gen. Laws 2296.

      . The former version of § 33.54 provided that a cause of action relating to the title of property could not be maintained against the purchaser of the property at a tax sale unless the action was commenced within three years after the deed executed to the purchaser was filed of record. Act of June 13, 1979, 66th R.S., ch. 841, 1979 Tex. Gen. Laws 2296, (amended 1997) (current version at Tex. Tax. Code Ann. § 33.54). The current version of § 33.54 provides the action must be commenced prior to the one-year anniversary that the deed executed to the purchaser at the tax sale is filed of record. Tex. Tax.Code Ann. § 33.54.

      . See First State Bank-Keene, 155 F.3d at 737; Loper, 104 S.W.2d at 599-600; Adams, 162 S.W. at 976.

      . See Sweed, 2001 WL 1469071, at *2; see also In re P.R., 994 S.W.2d at 416; McDaniel, 982 S.W.2d at 654; Copher, 852 S.W.2d at 740; American Operating Co., 744 S.W.2d at 155; Murmur Corp., 718 S.W.2d at 793.

      . The Jordans also argue that the statute of limitations provision set forth in § 33.54, which is, and was asserted as, an affirmative defense, is one of the four methods by which to affirmatively prove a trespass to try title action. To prevail in a trespass to try title action, a plaintiff must usually (1) prove a regular chain of conveyances from the sovereign, (2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove title by prior possession coupled with proof that possession was not abandoned. Martin v. Amerman, 133 S.W.3d 262, 265 (Tex.2004). However, "proving title by limitations” means to, proving title by adverse possession. Diversified, Inc. v. Hall, 23 S.W.3d 403, 406 (Tex.App.-Houston [1st Dist.] 2000, pet. denied); Bellaire Kirkpatrick Joint Venture, 826 S.W.2d. at 209; Wells v. Kansas Univ. Endowment Ass'n, 825 S.W.2d 483, 486 (Tex.App.-Houston [1st Dist.] 1992, writ denied).


source: Caselaw Access Project

author: EVA M. GUZMAN, Justice.

license: Public Domain

text:
    James Andrew REED, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-00942-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 27, 2005.

      James F. Keegan, Houston, for appellant.
    Eric Charles Carcerano, Anahuac, for appellee.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION

EVA M. GUZMAN, Justice.

Appellant James Andrew Reed challenges the legal and factual sufficiency of the evidence supporting his conviction for possession of codeine with intent to deliver and the trial court’s ruling on his objections to the State’s chain of custody evidence. We affirm.

I. Factual and PROCEDURAL Background

Officer Matt Ashby stopped appellant and his uncle, Felix Reed, for speeding on Interstate 10 outside of Houston. During the stop, Ashby, an officer with the Chambers County Narcotics Task Force, became suspicious that illegal activity may have occurred and requested permission to search the vehicle. Ashby received permission from Felix, the vehicle’s owner, and discovered a Gatorade bottle in the trunk, which he believed contained liquid codeine.

After appellant and Felix were placed in custody and read their Miranda rights, Felix denied the codeine belonged to him. Appellant then told Ashby that he knew the codeine was in the trunk and he had placed it there. Appellant was charged with possession of codeine with intent to deliver. A jury convicted appellant and the court assessed punishment at 16 years’ confinement and a $1,000 fine. This appeal ensued.

II. Issues on Appeal

In appellant’s issues one through five, appellant contends the evidence is: (1) factually insufficient to prove he intentionally or knowingly possessed the codeine; (2) and (3) legally and factually insufficient to prove he intentionally or knowingly possessed the codeine with the intent to deliver; (4) and (5) legally and factually insufficient to prove the codeine is Penalty Group 4 codeine. In issues six through eight, appellant argues the trial court erred in overruling his chain-of-custody objections.

III. Discussion

A. Sufficiency of the Evidence

1. Standard of Review

In a legal sufficiency review, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). When conducting our review, we do not reweigh the evidence or substitute our judgment for that of the fact finder. Id.; Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App.1998). We will affirm the decision if any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. See McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997).

When conducting a factual sufficiency review, we review the evidence in a neutral light. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004). If the evidence supporting the verdict, taken alone, is too weak to sustain a finding of guilt beyond a reasonable doubt, or contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt, the verdict must be set aside. Id. at 484 — 85. However, when reviewing the evidence, we must be deferential to the jury’s findings and resist intruding on the fact finder’s role as the sole judge of the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim.App.2000). Whether the evidence is direct or circumstantial, these standards of review remain the same. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986).

2. Possession

In his first issue, appellant contends the evidence is factually insufficient to prove he intentionally or knowingly possessed the codeine. Appellant argues that, absent the admissions he made to Ashby, the evidence would have been insufficient to prove beyond a reasonable doubt he intentionally or knowingly possessed the codeine. Further, appellant asserts that the admissions he made at the time of his arrest were unsworn and should be afforded less weight than his sworn testimony at trial.

To establish possession of a controlled substance, the State must prove appellant knew that what he possessed was contraband and that he exercised care, control, and management over the contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995); Abdel-Sater v. State, 852 S.W.2d 671, 675 (Tex.App.Houston [14th Dist.] 1993, pet. refd). When an accused is not in exclusive control of the place where the contraband is found, additional evidence or circumstances must affirmatively link the accused to the contraband. Brown, 911 S.W.2d at 747; Wootton v. State, 132 S.W.3d 80, 86—87 (Tex.App.-Houston [14th Dist.] 2004, pet. refd). The affirmative links can be established by additional facts and circumstances which raise a reasonable inference of the accused’s knowledge and control of the contraband, establishing the affirmative links. Puente v. State, 888 S.W.2d 521, 526 (Tex.App.-San Antonio 1994, no pet.). The number of factors present is not as important as the significance of those factors in establishing the elements of the crime. See Gilbert v. State, 874 S.W.2d 290, 298 (TexApp.-Houston [1 Dist.] 1994, pet. refd) (stating the number of factors present is less important than the strength of the factors in establishing the elements of the crime). Further, the links need not be so strong as to rule out every other possibility except the defendant’s guilt. Brown, 911 S.W.2d at 748; Wootton, 132 S.W.3d at 87.

Here, appellant’s statements to Ashby provide the strongest affirmative link. After Ashby discovered the codeine and read appellant his Miranda rights, Ashby asked appellant whether he knew the codeine was in the vehicle and appellant replied, “yes.” When Ashby asked him if he had placed the codeine in the vehicle, appellant again replied, “yes.” Thus, appellant unequivocally admitted to Ashby that he knew the codeine was in the vehicle and that he had placed it there. In addition, appellant was driving the vehicle in which the contraband was found and there was testimony that both he and Felix appeared nervous when Ashby approached the trunk during the search, “put[ting] their heads down to the ground as if they were caught.” This evidence is sufficient to affirmatively link appellant to the codeine and support the jury’s possession finding. See Gilbert, 874 S.W.2d at 298.

At trial, appellant testified that he had lied to Ashby when making the admissions in order to help his uncle. Appellant argues the conviction was against the great weight and preponderance of the evidence, in part, because he changed his testimony at trial testifying truthfully under oath. Appellant suggests his argument is supported by evidence that Felix was on parole for a prior narcotics conviction, appellant’s testimony that he lied in order to help Felix, and other evidence indicating Felix possessed the codeine. However, as the ultimate arbiter of conflicting evidence, the jury was free to believe appellant told Ashby the truth at the time of his arrest and was not being truthful at trial. See Herrero v. State, 124 S.W.3d 827, 834 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (stating the jury alone judges the facts, the credibility of witnesses, and the weight to be given evidence). It was also within the jury’s province to ignore any or all evidence relating to Felix. Id.

Viewing the evidence in a neutral light, the evidence supporting the conviction, when considered by itself, is not so weak that it does not support the verdict of guilt beyond a reasonable doubt, nor is the contrary evidence so strong that the State could not prove beyond a reasonable doubt that appellant possessed the codeine. Zu-niga, 144 S.W.3d at 484 — 85. Accordingly, appellant’s first issue is overruled.

3. Intent to Deliver

In his second and third issues, appellant challenges the legal and factual sufficiency of the evidence supporting the jury’s finding that he possessed the codeine with intent to deliver.

a. Legal Sufficiency

In delivery or intent to deliver cases, direct evidence of intent is not required; intent may be proved by circumstantial evidence. Moss v. State, 850 S.W.2d 788, 797 (Tex.App.-Houston [14th Dist.] 1993, pet. ref d). Intent is a question of fact to be determined by the trier of fact and may be inferred from the acts, words, or conduct of the accused. Puente, 888 S.W.2d at 527. Additional factors that may be considered in determining intent include:

(1) the nature of the location of the defendant’s arrest;
(2) the quantity of narcotics the defendant possessed;
(3) the manner of packaging of the narcotics;
(4) the presence or absence of drug paraphernalia (for use or sale);
(5) whether the defendant possessed a large amount of cash in addition to the narcotics; and
(6) the defendant’s status as a narcotics user.

Williams v. State, 902 S.W.2d 505, 507 (Tex.App.-Houston [1st Dist.] 1994, pet. ref d). Expert testimony may also be used to prove intent to deliver. Bryant v. State, 997 S.W.2d 673, 675 (Tex.App.-Texarkana 1999, no pet.).

Here, the jury’s finding that appellant possessed the codeine with intent to deliver is supported by evidence of appellant’s possession of a large amount of liquid codeine — 4.94 kilograms — packaged in a large Gatorade bottle. Also, expert testimony from Officer Kenneth Weaver, a 19-year narcotics officer, established that liquid codeine is typically packaged in pint-sized bottles when diluted for distribution. Weaver further testified that the amount of codeine seized from appellant was typically not for personal use, but was for delivery to others. Viewing this evidence in the light most favorable to the verdict, we conclude a rational juror could have found beyond a reasonable doubt appellant possessed the codeine with intent to deliver. See Williams, 902 S.W.2d at 507 — 08; Bryant, 997 S.W.2d at 675. Accordingly, we overrule appellant’s second issue.

b. Factual Sufficiency

Regarding his factual sufficiency challenge, appellant states: “On cross-examination, Officer Weaver testified that he had never talked with appellant, did not know appellant, never talked with appellant about his plans, and that his testimony was based upon his own experience, and not upon any experience with appellant.” Further, appellant argues that Weaver’s testimony is insufficient to prove intent because appellant’s “uncle may have intended to personally consume the codeine over a long period of time.” These suppositions do not, however, provide sufficient contrary proof to outweigh the jury’s finding of guilt beyond a reasonable doubt. We conclude Officer Weaver’s expert testimony sufficiently establishes intent to deliver. See Mack v. State, 859 S.W.2d 526, 529 (Tex.App.-Houston [1 Dist.] 1993, no pet.).

Appellant also suggests other evidence is potentially exculpatory. Specifically, appellant states that “he was not the owner of the Lincoln where the codeine was found; he was not recorded as he participated in a narcotics transaction; and that he had no weapon.” However, these factors are not exclusive; they are merely some of the factors used to determine a defendant’s intent to deliver. See Williams, 902 S.W.2d at 507. Viewing the evidence in a neutral light, we conclude the evidence is factually sufficient to prove appellant’s intent to deliver the codeine. Zuniga, 144 S.W.3d at 484 — 85. Therefore, we overrule appellant’s third issue.

4. Penalty Group 4 Codeine

In his fourth and fifth issues, appellant argues the evidence is legally and factually insufficient to prove the codeine was Penalty Group 4 codeine. Appellant contends that the trial testimony of Minh Nguyen, the Texas Department of Public Safety (DPS) chemist who analyzed the codeine, identified it as belonging to a different Penalty Group than did Nguyen’s written lab report. Therefore, appellant claims the State did not prove he possessed Penalty Group 4 codeine.

a. Legal Sufficiency

The indictment in this case charged appellant with possession with intent to deliver a controlled substance “in an amount of 400 grams or more, that contained not more than 200 milligrams of codeine per 100 milliliters or per 100 grams.” Accordingly, as an element of the crime, the State was required to prove beyond a reasonable doubt that the seized codeine was codeine described in Penalty Group 4. See Ortiz v. State, 999 S.W.2d 600, 603 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Minh Nguyen provided the only testimony regarding the chemical composition of the codeine. On direct-examination, Nguyen testified the codeine was pure and unmixed, weighing 4.94 kilograms. He also testified that the codeine fell within the Penalty Group 4 description.

On cross-examination, defense counsel attempted to impeach Nguyen with the lab report he had prepared after analyzing the codeine. Nguyen’s report stated the codeine was “not more than 1.8 grams of codeine or any salts per 100 milliliters of not more than 90 milligrams per dosage unit,” which matches the description of Penalty Group 3 codeine. On redirect, Nguyen testified that the Penalty Groups may overlap, that one substance could be “a subset of another.” Nguyen stated on recross that he had not tested the codeine to determine whether it was not more than 200 milligrams of codeine per 100 milliliters or per 100 grams, which would establish the concentration for purposes of classifying the codeine only in Penalty Group 4, and on further redirect-examination he testified that it is mathematically possible for the codeine seized to fall within both Penalty Groups 3 and 4. See Tex. Health & Safety Code Ann. §§ 481.104(a)(4), 481.105(1) (Vernon 2003).

Appellant argues that the discrepancy between Nguyen’s written report and his trial testimony renders the evidence that the codeine was within Penalty Group 4 legally insufficient. Appellant cites Dudley v. State for the proposition that a conviction for Penalty Group 4 codeine cannot include codeine from another penalty group. 58 S.W.3d 296, 300 (Tex.App.Beaumont 2001, no pet.). In dicta, the Dudley court rejected “any sort of favorable comparison between Penalty Group 4 ‘codeine,’ as specifically defined, and Penalty Group 3 ‘codeine’ ” because the statutory descriptions contained “words of art” that do not appear to have identical meanings. Id. at 300 n. 6. Although Dudley is instructive in this case, it is not for the reasons asserted by appellant.

As in this case, the appellant in Dudley was convicted of possession of Penalty Group 4 codeine and contested the legal sufficiency of the evidence regarding the quality of the codeine, claiming the State failed to prove he possessed codeine as specifically defined in Penalty Group 4. Id. at 297-98. The Dudley court agreed that this was the State’s burden, but concluded the State proved the quality of the codeine with testimony from the chemist who had analyzed it. Id. at 299-300. In Dudley, even though the chemist did not specifically measure nor quantify the concentration of the codeine at issue, she did testify that the codeine was within the parameters of Penalty Group 4. Id. at 299. That testimony, supported by the chemist’s lab report reflecting the same findings, was determined to be legally sufficient to support the conviction. Id. at 300-01. Thus, the Dudley court indicated a conviction may be based on chemical testing that does not specifically limit the contraband to only one penalty group. Id. at 302. (Gaultney, J. concurring).

Here, Nguyen repeatedly testified that the seized codeine was within Penalty Group 4. Although appellant attempted to impeach Nguyen with information from Nguyen’s lab report that stated the codeine was not more than 1.8 grams of codeine or any salts per 100 milliliters, Nguyen explained to the jury that the notation quoted by appellant’s attorney did not take the codeine out of Penalty Group 4. Although appellant’s attorney suggested the lab report and Nguyen’s testimony contradicted each other, Nguyen explained they did not.

Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could conclude from Nguyen’s testimony that the codeine appellant possessed was Penalty Group 4 codeine. Accordingly, appellant’s fourth issue is overruled.

b. Factual Sufficiency

Examining the evidence for factual sufficiency, we are not convinced that Nguyen’s testimony was so weak or so greatly outweighed by contrary evidence that the beyond-a-reasonable-doubt standard could not be met. Even if the evidence may have been contradictory, “reconciliation of conflicts in the evidence is within the exclusive province of the jury.” Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim.App.1998); see also Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App.1994) (stating the jury exclusively judges the credibility of witnesses and the weight to be given their testimony). We will not reverse a conviction merely because the jury resolved a conflict in evidence against appellant. Herrero, 124 S.W.3d at 834. Appellant’s fifth issue is overruled.

IV. Chain of Custody

In issues six, seven, and eight, appellant claims the trial court erred in overruling his chain of custody objections when the codeine was offered into evidence. Relying on Moore v. State, appellant argues that the “breach” in the chain of custody here was “neither minor nor theoretical.” 821 S.W.2d 429, 431 (Tex.App.-Waco 1991, no pet.). Appellant emphasizes that when Officer Terry Hughes delivered the box containing the bottle of codeine to the DPS lab, she did not remember to whom she gave the box, she did not personally give it to Minh Nguyen, and she did not see what became of the box after she gave it to the lab employee. Appellant suggests that because “no one knows what happened” to the box from the time Hughes turned it over to the lab until Nguyen performed his analysis, “[t]he box could have been anywhere.”

The sufficiency of an evidentia-ry predicate is within the trial court’s discretion, and we will affirm the judgment unless we find the trial court abused that discretion. Smith v. State, 683 S.W.2d 393, 405 (Tex.Crim.App.1984); Foster v. State, 101 S.W.3d 490, 498 (Tex.App.Houston [1st Dist.] 2002, no pet.). If evidence is properly identified, questions concerning care and custody typically go to the weight, not the admissibility, of the evidence. Foster, 101 S.W.3d at 498.

Here, Officer Ashby identified the State’s Exhibit 2 as the bottle he recovered from the vehicle appellant was driving. Ashby testified that he sealed the top of the bottle with evidence tape and, other than the tape being cut for analysis of the contents, there were no alterations to the bottle. Further, Ashby stated he placed the bottle inside a box that had the case number, appellant’s name, the contents of the box, and Ashby’s initials on it. Ashby identified the box at trial. Appellant did not object to Ashby’s testimony.

Officer Hughes testified she retrieved the sealed box from the evidence lockbox and transported it to the lab for analysis. She stated the trip was uneventful, and when she arrived at the lab, the box was in the same condition as when she retrieved it. On cross-examination, Hughes testified she could not remember the lab employee to whom she had delivered the box.

Nguyen testified he did not know which lab employee received the box from Hughes, and appellant objected to this testimony on the basis that the chain of custody had not been established. The objection was overruled. Nguyen further testified that he personally retrieved the sealed box — the same one identified by Ashby as the box in which he placed the bottle of codeine — from the evidence vault, the evidence tape was intact, and it had not been tampered with. Defense counsel again made a chain-of-custody objection, and the objection was again overruled. Counsel continued his chain-of-custody objections to each question asked of Nguyen regarding his analysis of the codeine, and the trial court overruled each of those objections.

To support the admission of evidence, the State must prove only the beginning and end of the chain of custody. Caddell v. State, 123 S.W.3d 722, 727 (Tex. App.-Houston [14th Dist.] 2003, pet. ref d). The State is not required to provide a moment-by-moment account of the whereabouts of evidence from the instant it is seized until it is introduced at trial. See Sneed v. State, 875 S.W.2d 792, 794 (Tex. App.-Fort Worth 1994, no pet.) (stating that, barring any showing of tampering or alteration, tagging of evidence at the time of seizure and identifying the same item at trial based on the tag is sufficient for admission).

Here, Ashby testified that the box offered at trial was the same box in which he had placed the bottle seized from the trunk of the vehicle. Nguyen identified the box as the one he retrieved from the evidence vault at the DPS lab, and stated the bottle had not been tampered with. This evidence is sufficient to establish the beginning and end of the chain of custody. Caddell, 123 S.W.3d at 727. We hold the trial court did not abuse its discretion in overruling appellant’s chain-of-custody objections. Smith, 683 S.W.2d at 405. Accordingly, appellant’s sixth, seventh, and eighth issues are overruled.

V. Conclusion

In sum, we conclude the evidence was legally and factually sufficient to support appellant’s conviction, and the trial court did not abuse its discretion in overruling appellant’s objections to the State’s chain of custody evidence. Accordingly, the judgment of the trial court is affirmed.

      . Factors that may establish the affirmative links include whether: (1) the contraband was in plain view; (2) the contraband was accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the vehicle seat as the accused was sitting; (6) the contraband was found in an enclosed place; (7) the odor of drugs was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the vehicle gave conflicting statements about relevant matters; (12) the accused appeared to be under the influence of drugs; and (13) affirmative statements connected the accused to the contraband. Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.Houston [1st Dist.] 1994, pet. ref'd).

      . Appellant also points to the following evidence as indicating Felix possessed the codeine: Ashby testified that during the traffic stop Felix was visibly nervous; the vehicle in which the codeine was found belonged to Felix; and, in a search incident to the arrest, Ashby found $800 in cash on Felix's person. While the evidence may be probative of drug activity, it does not preclude the possibility that appellant possessed the codeine.

      . Penalty Group 4 codeine is defined in the Texas Health and Safety Code as:
      (1) a compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs that includes one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the compound, mixture, or preparation valuable medicinal ■ qualities other than those possessed by the narcotic drug alone:
      not more than 200 milligrams of codeine per 100 milliliters or per 100 grams; ...
      Tex. Health & Safety Code Ann. § 481.105(1) (Vernon 2003).

      . Although the lab report was used during cross-examination, it was not offered into evidence by either party, and consequently, it is not in the record on appeal.

      . Penalty Group 3 codeine is defined as:
      (4) a material, compound, mixture, or preparation containing limited quantities of the following narcotic drugs, or any of their salts:
      not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium; not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;
      Tex. Health & Safety Code Ann. § 481.104(a)(4) (Vernon 2003).

      . In Moore, the Waco Court of Appeals stated, " ‘minor theoretical breaches in the chain of custody’ will not affect admissibility in absence of 'affirmative evidence of tampering or commingling.’ " Moore v. State, 821 S.W.2d 429, 431 (Tex.App.-Waco 1991, no pet.) (quoting Stone v. State, 794 S.W.2d 868, 870 (Tex. App.-El Paso 1990, no pet.)).

      . Appellant made no claim of tampering or alteration at trial and makes none on appeal.


author: CHARLES W. SEYMORE, Justice.

text:
    BRENHAM HOUSING AUTHORITY, Appellant, v. Margaret DAVIES, Appellee.
    No. 14-04-00286-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 27, 2005.
    Rehearing Overruled March 24, 2005.

      William S. Helfand, David E. Jenkins, Kevin D. Jewell, Steven Jon Knight, Houston, for appellant.
    Jeffrey G. Tinkham, Houston, for appel-lee.
    Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
   OPINION

CHARLES W. SEYMORE, Justice.

In this interlocutory appeal, appellant, the Housing Authority of the City of Bren-ham, Texas, a/k/a/ Brenham Housing Authority (“BHA”) appeals from the denial of its plea to the jurisdiction. BHA contends that the trial court erred in denying its plea to the jurisdiction on the grounds that (1) the Texas Tort Claims Act does not waive immunity from Davies’s premises defect claim, (2) the Texas Tort Claims Act does not waive immunity from Davies’s breach of contract and breach of warranty of habitability claims, and (3) the Texas Tort Claims Act does not waive immunity from Davies’s strict products liability claim. We will not consider whether the trial court has jurisdiction over Davies’s breach of contract, breach of warranty of habitability, and strict products liability claims because they were not addressed in BHA’s plea to the jurisdiction. However, we reverse and render judgment granting BHA’s plea to the jurisdiction as to Davies’s premises defect claim.

I.Background

In March 1997, Margaret Davies became a tenant of Northside Terrace Apartments (“Northside Apartments”) located in Bren-ham, Texas, and she resided there until November 1999. She again became a tenant in January 2000 and lived there until February 2003. Northside Apartments is owned by Northside Terrace, Ltd. and managed by BHA.

Davies alleges that during her tenancy at Northside Apartments, she began experiencing various physical and mental ailments. She contends that she did not know the cause of these problems until January 2003, when the City of Brenham Gas Department inspected her hot water heater and discovered that it was emitting carbon monoxide fumes into her apartment. A report signed by the gas inspector indicates that the vent pipe was not properly connected to the top of the hot water heater, and this defect allowed carbon monoxide fumes to escape into the apartment. The hot water heater was removed and a new one installed. Davies alleges that shortly after the replacement of the hot water heater, she was diagnosed with Chronic Carbon Monoxide Poisoning.

Davies subsequently filed suit against BHA as well as Northside Terrace, Ltd., NHB Development Corp., State Industries, Inc., and Unknown Defendants 1-25 on theories of negligence, breach of warranty of habitability, breach of contract, and strict products liability. BHA filed a plea to the jurisdiction, asserting that immunity had not been waived under the Texas Tort Claims Act as to the premises defect claim. The trial court entered an order denying the plea to the jurisdiction, and BHA filed this interlocutory appeal. See Tex. Crv. PRAC. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004-05).

II.Standard of Review

A plea to the jurisdiction challenges the trial court’s authority to determine the subject matter of the cause of action. Texas Parks & Wildlife Dep’t v. Garrett Place, Inc., 972 S.W.2d 140, 142 (Tex.App.-Dallas 1998, no pet.). Because subject matter jurisdiction presents a question of law, we review the trial court’s decision de novo. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex.App.-Austin 2000, no pet.). In deciding a plea to the jurisdiction, we may not weigh the merits of the claim, but must consider only the plaintiffs pleadings and the evidence pertinent to the jurisdictional inquiry. Texas Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex.2000). When we consider a trial court’s order on a plea to the jurisdiction, we construe the pleadings in the plaintiffs favor and look to the pleader’s intent. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). In order to prevail, the party asserting the plea must show that, even if all the allegations in the plaintiffs pleadings are taken as true, there is an incurable jurisdictional defect apparent from the face of the pleadings, rendering it impossible for the plaintiffs petition to confer jurisdiction on the trial court. Rylander, 23 S.W.3d at 135.

III.Plea to the Jurisdiction

The State, its agencies, and its subdivisions generally enjoy immunity from suit unless immunity has been waived by the Texas Tort Claims Act. See Dallas County Mental Health & Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998). Unless immunity is waived, the trial court lacks jurisdiction and is -without authority to decide the case. See Texas Ass’n of Bus., 852 S.W.2d at 443 (holding that subject matter jurisdiction is essential to a court’s authority to decide a case).

In this case, BHA is an agency of the State that generally enjoys immunity from suit. See Tex. Loc. Gov’t Code Ann. 392.006 (Vernon 1999). Accordingly, it was Davies’s burden to plead facts which, taken as true, would invoke the trial court’s jurisdiction.

A. Trial Court’s Jurisdiction Over Davies’s Premises Defect Claim

1. Duty of Care

In its first issue, BHA contends that the Texas Tort Claims Act limits its duty of care to Davies to the duty that a private landowner owes to a licensee. BHA contends the trial court erred in denying its plea to the jurisdiction with respect to Davies’s premises defect claim because Davies failed to plead or prove facts under which BHA would be liable to a licensee. Conversely, Davies contends she should be accorded the status of an invitee under the Texas Tort Claims Act because she paid rent to BHA. BHA’s argument as to its duty of care is centered on a construction of Sections 101.021(2) and 101.022(a) of the Texas Tort Claims Act. Section 101.021(2) of the Texas Tori Claims Act waives immunity for personal injuries caused by a condition of real property “if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prag & ReM.Code ANN. § 101.021(2) (Vernon 1997). However, with respect to ordinary premises defects, Section 101.022(a) limits a governmental unit’s duty of care to the duty that a private person owes to a licensee, unless the claimant “pays for use of the premises.” Tex. Civ. Prac. & Rem.Code Ann. § 101.022(a) (Vernon 1997).

A licensee is required to plead and prove the following: (1) the owner had actual knowledge of the defective condition; (2) the licensee had no knowledge of the defective condition; (3) the owner failed to exercise ordinary care to protect the licensee from danger; and (4) such failure was a proximate cause of injury to the licensee. State Dep’t of Highway & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992). Thus, a licensee must show that the landowner had actual knowledge of the defective condition. Id. In the present case, Davies does not allege that BHA had actual knowledge of the purported defect in the water heater. Therefore, BHA argues that under the licensee standard, immunity is not waived because BHA would not be liable to Davies if it were a private person. See Tex. Civ. Prag & Rem.Code Ann. § 101.021(b) (providing that immunity is waived to the extent that a private person would be liable to the claimant according to Texas law).

BHA argues that Davies’s payment of rent does not constitute the type of payment “for use of the premises” contemplated by Section 101.022(a). BHA thus contends that Section 101.022(a) limits BHA’s duty of care to the duty that a private person owes to a licensee. To support its position, BHA argues that the phrase “pays for use of the premises” in Section 101.022(a) means payment for mere temporary use of a facility as opposed to payment for exclusive occupancy and control of an apartment. However, BHA cites no authority limiting Section 101.022(a) to payment for temporary use of a premises. BHA’s argument cannot overcome the plain language of the statute. We must give effect to a statute’s common meaning. Tex. Gov’t Code Ann. § 311.011 (Vernon 1998). We may not add or subtract from the statutory language. Texas Dep’t of Public Safety v. Butler, 960 S.W.2d 375, 377 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Rather, we must take a statute as we find it and must interpret it as the words in their plain sense fairly sanction and will clearly sustain. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997).

In Section 101.022(a), there is no qualification on the nature of use of a premises by a claimant, nor any limitation on the duration of such use. Had the legislature intended to qualify Section 101.022(a) to a payment for use of temporary duration, it could have done so. Under the plain language of the statute, by remitting money in consideration for occupancy of the apartment, Davies paid for use of the premises. Accordingly, Section 101.022(a) does not limit BHA to the licensee standard of care. However, payment for use does not automatically confer the invitee standard asserted by Davies.

An invitee must plead and prove the following: (1) a condition of the premises posed an unreasonable risk of harm to her; (2) the owner knew or reasonably should have known of the defective condition; (3) the owner failed to exercise ordinary care to protect the invitee from danger; and (4) such failure was a proximate cause of the injury to the invitee. Payne, 838 S.W.2d at 237. Under this standard, the invitee must only show that the landowner knew or reasonably should have known of the defective condition. Id. In her live petition, Davies alleges that BHA reasonably should have known of the purported defect in the hot water heater. Thus, Davies contends (taking her pleadings as true) that under an invitee standard, BHA would be liable to her if it were a private person; therefore, her pleadings are sufficient to support waiver of BHA’s immunity. Accordingly, she contends the trial court has jurisdiction.

As authority, Davies cites Thompson v. City of Corsicana Housing Authority, 57 S.W.3d 547 (Tex.App.-Waeo 2001, no pet.). In Thompson, the plaintiff paid the Corsi-cana Housing Authority $25 per month in rent. Id. at 553. The plaintiff and an acquaintance were injured when the roof of the apartment collapsed while they were sitting in the apartment. Id. at 550. The court concluded that because the plaintiff paid the housing authority monthly rent for occupancy of the apartment, she was entitled to the status of an invitee. Id. at 553. In reaching this conclusion, the Thompson court cited several cases holding that a claimant who pays for use of the premises is under a duty of care owed to an invitee. See id. (citing Texas Parks & Wildlife Dep’t. v. Davis, 988 S.W.2d 370, 374 (Tex.App.-Austin 1999, no pet.); University of Tex. Med. Branch v. Davidson, 882 S.W.2d 83, 85 (Tex.App.-Houston [14th Dist.] 1994, no writ); M.D. Anderson Hosp. & Tumor Inst. v. Fetter, 837 S.W.2d 245, 247 (TexApp.-Houston [1st Dist.] 1992, no writ)). However, we find that the cases relied upon by the court in Thompson are not controlling in the landlord-tenant context.

In each of the cases relied upon by the Thompson court, the claimant was deemed to be an invitee because he paid a fee for entry onto a premises controlled by the government. However, in the instant case, Davies’s right to enter and remain on the premises was not derived from permission granted or an invitation extended by the housing authority. Rather, Davies’s right of possession is derived from a lease, giving her the legal status of a tenant. See, generally, Kukis v. Newman, 123 S.W.3d 636, 639 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (distinguishing between owner/invitee and lessor/lessee relationships). The duty of care that a landowner owes to a tenant for dangerous conditions inside of the leased premises is different from the duty of care that a landowner owes to an invitee, notwithstanding the tenant’s payment for use of the leased premises. See Johnson Co. Sheriff’s Posse v. Endsley, 926 S.W.2d 284, 285 (Tex.1996) (holding that lessor generally has no duty to tenant for dangerous conditions on the leased premises); Montelongo v. Goodall, 788 S.W.2d 717, 718 (Tex.App.-Austin 1990, no writ) (same).

In addition to the distinction in the case law cited above, we also examine the purpose of the Texas Torts Claims Act. In Davidson, this court recognized that Section 101.022(a) generally “limits the State’s liability for premises defects under Section 101.021 by imposing upon the State the same duty of care a private landowner owes a licensee.” 882 S.W.2d at 84. Section 101.022(a) is not intended to impose a new duty upon the State. See, generally, City of Denton v. Page, 701 S.W.2d 831, 834 (Tex.1986) (finding that the Act does not create new duties; it simply waives immunity under circumstances in which a private person would be liable).

Interpreting Section 101.022(a) to mean that a housing authority that owns or operates an apartment complex owes the invitee duty of care to every tenant who pays rent would expose housing authorities to greater liability than private landowners under Texas law. Section 101.022(a) would no longer be a limitation on the State’s duty of care, rather it would impose a new duty upon the State. While private landowners owe a very limited duty to their tenants for dangerous conditions inside the leased premises, housing authorities would, under the theory urged by Davies, owe the invitee duty of care to every tenant who pays rent. This theory contravenes the Legislature’s clear directive in Section 101.021(2) that immunity is waived only to the extent that a private person would be liable to the claimant under Texas law. Accordingly, we do not construe Section 101.022(a) to mean that BHA owed Davies the invitee duty of care simply because she paid rent.

Thus, while the parties focus their analysis on whether Davies is a licensee or an invitee, we find that neither is the proper standard under the facts of this case. If BHA owed a duty to Davies, it arose out of her status as a tenant at Northside Apartments.

2. Duty of Care Applicable to Facts

BHA is not the owner or occupier of Northside Apartments, but is the agent of the owner, Northside Terraces, Ltd., who is the lessor. Generally, the lessor transfers possession and control of the leased premises to the tenant, and therefore, owes no duty to the tenant for dangerous conditions on the leased premises. Endsley, 926 S.W.2d at 285; Prestwood v. Taylor, 728 S.W.2d 455, 460 (Tex. App.-Austin 1987, writ ref d n.r.e.). However, Davies asserts that in this case, BHA maintained control over her apartment by virtue of a contractual duty to maintain and repair the leased premises. A lessor who retains control over a portion of the leased premises is charged with the duty of ordinary care in maintaining the portion retained so as not to harm the tenant. Parker v. Highland Park, Inc., 565 S.W.2d 512, 515 (Tex.1978); Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 303 (Tex. 1963). However, a lessor’s contractual right to enter the premises to make repairs and alterations is not a reservation of control over a part of the premises. Shell Oil Co. v. Khan, 138 S.W.3d 288, 295-97 (Tex.2004); De Leon v. Creely, 972 S.W.2d 808 812-13 (Tex.App.-Corpus Christi 1998, no pet.).

To support her position that BHA had control over her apartment, Davies relies upon a provision in the Management Agreement between BHA and Northside Terrace, Ltd. The relevant provision of the Management Agreement required BHA to “cause the project to be maintained and repaired in accordance with the Management Plan and Local codes, and in a condition at all times acceptable to [Northside Terrace, Ltd.].” We do not construe this provision as a reservation of control over Davies’s apartment unit so as to subject BHA to liability under a premises defect theory. This provision supports the contention that BHA has a contractual obligation to maintain the apartment complex on behalf of Northside Terrace, Ltd. However, this provision does not establish BHA’s control over the inside of Davies’s apartment beyond a right to enter and make repairs.

We note that Davies does not allege that the lease contract between Davies and BHA imposed a duty upon BHA to inspect the inside of Davies’s apartment. However, even assuming that the lease contract imposed such a duty upon BHA, we find that the lease contract cannot serve as a basis to impose liability upon BHA. Section 392.006 of the Local Government Code provides that a housing authority is subject to “all landlord obligations and tenant remedies, other than a suit for personal injuries, as set forth in any lease or rental agreement and in Chapters 24, '54, 91, and 92 of the Property Code.” Tex. Loo. Gov’t Code Ann. § 392.006 (emphasis added). While Section 392.006 is not a model of clarity, it appears to limit a housing authority’s waiver of immunity from personal injury suits for any obligation arising under a lease agreement. Because Davies’s suit is for personal injuries, we conclude that the legislature has not waived BHA’s immunity from suit for any obligations BHA may have had under the lease agreement. Accordingly, we hold Section 392.006 protects BHA from liability for Davies’s personal injury claim.

Accordingly, we sustain BHA’s first issue, and find that Davies’s pleadings fail to establish that BHA’s immunity is waived with respect to Davies’s premises defect claim.

C. Trial Court’s Jurisdiction Over Davies’s Other Claims

In its third and fourth issues, BHA argues for the first time on appeal that the trial court also lacked jurisdiction over Davies’s breach of contract, breach of warranty of habitability, and strict products liability claims. However, BHA’s argument in its plea to the jurisdiction was based solely on its contention that governmental immunity barred Davies’s premises defect claim.

We have jurisdiction to review the trial court’s interlocutory order because it “grants or denies a plea to the jurisdiction by a governmental unit as defined in Section 101.001 [of the Texas Tort Claims Act].” See Tex. Civ. PRác. & Rem.Code Ann. § 51.014(a)(8). Under Section 51.014(a)(8), our jurisdiction is limited to a review of the trial court’s interlocutory order on a plea to the jurisdiction. Id.

BHA, nonetheless, contends that we should consider the trial court’s jurisdiction over Davies’s other claims because jurisdiction cannot be waived and can be raised for the first time on appeal. See Denton County v. Huther, 48 S.W.Bd 665, 667 n. 2 (Tex.App.-Fort Worth 2001, no pet.). We acknowledge that jurisdiction cannot be waived and can be raised for the first time on appeal. However, Section 51.014(a)(8) gives us jurisdiction over this interlocutory appeal for the limited purpose of reviewing the trial court’s interlocutory order on a plea to the jurisdiction. Because our jurisdiction in this interlocutory appeal is limited to review of the trial court’s order, we must confine our review to the claims addressed in the plea to the jurisdiction. City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686-87 (TexApp.-Dallas 2003, pet. filed). Accordingly, we reach no decision on whether BHA’s governmental immunity is waived for Davies’s breach of contract, breach of warranty of habitability, and strict products liability claims.

IY. Conclusion

In sum, we will not consider whether the trial court has jurisdiction over Davies’s breach of contract, breach of warranty of habitability, and strict products liability claims because they were not addressed in BHA’s plea to the jurisdiction. However, we conclude that the trial court erred in denying BHA’s plea to the jurisdiction as to Davies’s premises defect claim. Therefore, we reverse the trial court’s order and render judgment granting the plea to the jurisdiction as to Davies’s premises defect claim.

      . Davies alleged a number of different acts of negligence. However, her injuries resulted from a defective condition of the hot water heater, which is an appurtenance to the apartment itself. Therefore, her allegations of negligence are properly characterized as a premises defect claim. See University of Texas Med. Branch v. Davidson, 882 S.W.2d 83, 85-86 (Tex.App.-Houston [14th Dist.] 1994, no writ).

      . While the terms "sovereign immunity” and “governmental immunity” are often used synonymously, there is a distinction. Sovereign immunity refers to the State’s immunity from suit and liability, and it protects the State and its divisions. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003). Governmental immunity protects political subdivisions of the State, including counties, cities, and schools. Id.

      . In Thompson v. City of Corsicana Housing Authority, the court was faced with a similar issue. In that case, the tenant sought to impose liability upon the housing authority based upon a lease provision requiring the housing authority to keep the premises in a condition safe for habitation. 57 S.W.3d at 588. Relying on Section 392.006, the court concluded that because the tenant sought only personal injury damages, the housing authority could not be held liable for violation of the lease provision. Id. at 558-59. In Thompson, the tenant framed her complaint as a breach of contract claim, as opposed to a premises defect claim. Id.

      . Because we resolve this issue in favor of BHA, we need not address BHA’s second issue.