author: SHERRY RADACK, Chief Justice.

text:
    DIGITAL IMAGING ASSOCIATES, INC., Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00146-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 15, 2005.

      Scott E. Hayes, Vial, Hamilton, Koch & Knox, L.L.P., Dallas, TX, for Appellant.
    Eric Kugler, Assistant Dist. Atty. of Harris County, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices JENNINGS and HANKS.
   OPINION

SHERRY RADACK, Chief Justice.

On this day, the Court considered appellant’s motion for rehearing. The motion is denied. However, we withdraw our opinion and judgment of June 9, 2005, and issue this opinion and judgment in its stead.

Appellant, Digital Imaging Associates, Inc., (“Digital”), brings a restricted appeal under rule 30 of the Texas Rules of Appellate Procedure, complaining that the trial court improperly granted the State’s motion for nonsuit and dismissed all parties “without prejudice.” Specifically, Digital contends that it had a pending claim for “affirmative relief,” which should not have been dismissed. We affirm.

BACKGROUND

Two Texas DPS troopers, on two separate occasions, entered a shop located at 7929 Westheimer, in Houston, and purchased identification cards. Believing that the cards were deceptively similar to valid Texas identification cards, the troopers seized the computers, cameras, laminators, and printers that were used to make the identification cards.

On May 23, 2003, the State filed a Notice of Seizure and Intended Forfeiture against “two Computers and Miscellaneous Equipment Listed on Attachment 'A’,” which included all of the equipment that had previously been removed from the shop. Two individuals, Christopher Amezcua and Patrick De Santos, were designated by the State as respondents and filed general denials.

On July 7, 2003, Digital filed a petition in intervention, which alleged the following:

1. [Digital] is a Texas corporation. It owns the property and equipment seized by the Texas Department of Public Safety on May 15, 2003, as described in Plaintiffs Notice of Seizure and Intended Forfeiture, and as such, is a proper party in this lawsuit.
2. [Digital] asserts that the seizure of such property and equipment was wrongful, and that the requested forfeiture should be denied.

On August 12, 2003, the State filed its motion for nonsuit, which the trial court granted on August 13, 2003. The trial court’s order stated that “the TWO COMPUTERS and MISCELLANEOUS EQUIPMENT LISTED ON ATTACHMENT ‘A’ that are the subject of this suit and all parties are hereby dismissed without prejudice.”

It is undisputed that Digital did not receive notice of the August 13, 2003 non-suit until January 2004. Between the August nonsuit and Digital’s discovery of the same in January, the parties continued to conduct discovery as if the case were ongoing.

The docket sheet shows that, in January 2004, the trial court and the parties conducted a telephone conference, during which they discussed whether the trial court continued to have jurisdiction over the case. On January 27, 2004, Digital filed a letter brief with the trial court, in which it argued that the trial court continued to have jurisdiction because of Digital’s outstanding claim for declaratory relief. The docket sheet shows that another telephone conference between the parties and the judge took place on February 11, 2004, during which the trial judge informed the parties that he no longer had jurisdiction over the case because the August 12, 2003 nonsuit was a final judgment.

This restricted appeal by Digital followed.

ANALYSIS

In its first issue, Digital contends the record shows error on its face. Specifically, Digital contends that the record shows that the trial court erred by dismissing its claim for declaratory relief when it granted the State’s motion for nonsuit.

Standard and Scope of Review

To obtain relief by way of restricted appeal, Digital must demonstrate that (1) it filed notice of appeal within six months of the signed default judgment; (2) it was a party to the litigation; (3) it did not participate in the hearing resulting in the final judgment; (4) it did not timely file postjudgment pleadings; and (5) there was error on the face of the record. See Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997) (per curiam); Tex.R.App. P. 26.1(c), 30. In this case, the only dispute is whether there is error on the face of the record.

In a restricted appeal, we are limited to considering only the face of the record, but our scope of review is otherwise the same as that in an ordinary appeal; that is, we review the entire case. See Norman Communications, 955 S.W.2d at 270. The face of the record, for purposes of restricted appeal review, consists of all the papers on file in the appeal. See Id.

Propriety of Dismissing Digital’s Claim for Declaratory Relief

Under Rule 162 of the Texas Rules of Civil Procedure, a plaintiff has an absolute right to take a nonsuit upon timely motion, as long as the defendant has not made a claim for affirmative relief. Greenberg v. Brookshire, 640 S.W.2d 870, 871 (Tex.1982). To qualify as a claim for affirmative relief, a party must allege a cause of action, independent of the plaintiffs claim, on which the party could recover compensation or relief even if the plaintiff abandons, or is unable to establish, his cause of action. Gen. Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex.1990); In re C.A.S., 128 S.W.3d 681, 685-86 (Tex.App.-Dallas 2003, no pet.). Restating a defense in the form of a request for a declaratory judgment does not defeat a plaintiffs claim to a nonsuit. Newman Oil v. Alkek, 614 S.W.2d 653, 655 (Tex.App.-Corpus Christi 1981, writ ref’d n.r.e). A claim that simply mirrors the controlling issues of the plaintiffs suit is not a claim for affirmative relief. In re Shockley, 123 S.W.3d 642, 647 (Tex.App.-El Paso 2003, no pet.)

In Newman Oil, the plaintiff brought suit alleging that the defendant violated the Texas Deceptive Trade Practices Act and was in breach of contract. 614 S.W.2d at 653. The defendant counterclaimed, seeking a declaratory judgment that (1) plaintiffs were not entitled to relief under the Texas Deceptive Trade Practices Act, and (2) that defendant had not engaged in a tort, fraud, deceptive trade practice, or breach of contract. Id. at 654-55. The court of appeals held that the defendant’s claim for declaratory relief was not a claim for affirmative relief because it was “merely a denial of the plaintiffs cause of action.” Id. at 655.

In this case, Digital’s intervention petition claims that “the seizure of such property and equipment was wrongful, and that the requested forfeiture is improper and should be denied.” Furthermore, Digital’s first amended petition in intervention, in which it seeks “a declaration from the Court that its manufacture and sale of identification cards is legal and does not violate the laws of the State of Texas,” merely mirrors the controlling issues in the State’s case. Therefore, Digital’s claim for a declaratory judgment is not a claim for affirmative relief. See Shockley, 123 S.W.3d at 647. Digital’s pleadings do not contain any facts upon which affirmative relief could be granted — they merely deny the lawfulness of the State’s cause of action.

Because Digital’s pleadings do not state a claim for affirmative relief, the trial court did not err by granting the State’s nonsuit.

We overrule Digital’s first issue on appeal.

Was the Nonsuit a Final Judgment ?

In issue two, Digital alternatively argues that, even if we conclude that the trial court could have dismissed Digital’s claim, the nonsuit order of August 13, 2003 did not actually do so. Specifically, Digital argues that the August 13, 2003 order was not a final judgment.

An order or judgment is final “if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex.2001). The trial court’s nonsuit order in this case states that “the TWO COMPUTERS and MISCELLANEOUS EQUIPMENT LISTED ON ATTACHMENT ‘A’ that are the subject of this suit and all parties are hereby dismissed without prejudice.” (Emphasis added).

Digital argues that the nonsuit order is not a final judgment because it does not name Digital, nor does it specifically dispose of Digital’s petition in intervention. However, the order expressly states that it disposes of all parties and Digital was a party to the suit by way of its intervention. Furthermore, we have already held that Digital’s petition in intervention did not state an “affirmative claim for relief.” As such, the nonsuit order, which disposed of the State’s claims — the only claims for affirmative relief — actually disposed of all pending claims for relief in the suit.

Because the nonsuit order “actually disposes of all claims and parties then before the court” it is final. See Lehmann. 39 S.W.3d at 192.

We overrule Digital’s second issue on appeal.

We affirm the judgment of the trial court.

      . In his Original Answer, De Santos claimed that he was the president of Digital Imaging Associates, Inc., and that Digital was the owner and possessor of the property subjected to seizure.


source: Caselaw Access Project

author: SAM NUCHIA, Justice.

license: Public Domain

text:
    Anthony P. STEWART, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-01041-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 29, 2005.
    Janet Seymour Morrow, Spring, TX, for Appellant.
    William J. Delmore, III, Chief Prosecutor, Appellate Division, and Charles A. Ro-senthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, . JENNINGS, and HIGLEY.
   OPINION

SAM NUCHIA, Justice.

Appellant, Anthony P. Stewart, was charged by indictment with the murder of William Alexander. A jury found appellant guilty as charged and found that he used or exhibited a deadly weapon during the commission of the offense. The trial court assessed punishment at confinement in prison for 35 years. On appeal, appellant complains that the trial court erred in denying appellant’s Batson challenge. We affirm.

BACKGROUND

During voir dire, the prosecutor, after addressing the entire venire regarding the reluctance of some individuals, based on their religious or moral convictions, to sit in judgment of another, questioned jurors 31 and 32 as follows:

[PROSECUTOR]: Anyone else on the second row and of course specifically because of Pastor Davis you believe even though you are a pastor I understand; correct?
VENIREPERSON: Yes.
[PROSECUTOR]: But you believe you can participate and sit in judgment of another?
VENIREPERSON: Sure.
[PROSECUTOR]: Ms. Kim, you are a secretary to the Catholic Charities?
VENIRE PERSON: Yes.
[PROSECUTOR]: Can you also participate and sit in judgment of another?
VENIRE PERSON: Yes, I can.

In her remarks to the venire, the prosecutor, at one point, gave a hypothetical example using jurors 3 and 4. At another point, she asked juror 4 if he understood one of her questions. She also asked juror 4 if he thought his nephew was treated fairly when he was charged with a crime, and the juror responded, “Yes.”

After the jury was selected, counsel for appellant made the following Batson challenge:

For the record, to establish that Juror No. 37, a black male, and Juror No. 31 is a black male, Juror No. 32 is a black female, Juror No. 4 is a black male. All of these jurors were struck by the Prosecution. And Mr. Stewart is a black. For the record we’d like to get some neutral explanation to say why these jurors were struck.

The State then gave the following explanation:

Both Jurors No. 3 and 4 seemed angry and quick to answer, and I don’t know if it’s because I used them in my example or not. So I have an uncomfortable feeling with them. And then when Mr. Moncriffe asked the question of had anyone ever gotten a traffic ticket and then who fought it because they were not guilty I actually struck all the people who said they fought because they were not guilty. And that’s including No. 3, 4, 6, who was white....
Jurors No. 31 and 32, Juror No. 31 is a pastor for 18 years, and Juror No. 32 a secretary for the Catholic Charities. And I did ask them if they could be fair, if they could sit and judge and they did say yes, but I don’t feel comfortable putting people whose business tends to forgive people on a criminal jury. That’s why I struck those two.

Appellant’s counsel made no attempt to rebut the State’s explanation. Rather, he simply objected “to the explanation given by the State.” The trial court found that the State’s reasons were racially neutral and denied appellant’s Batson challenge. On appeal, appellant complains that the trial court erred in finding that the prosecutor’s reasons for striking jurors 4, 31, and 32 were racially neutral. Appellant does not complain about the trial court’s ruling as to juror 37.

STANDARD OF REVIEW

When reviewing a trial court’s finding with regard to a Batson challenge, an appellate court reverses the ruling only if it appears clearly erroneous. Rhoades v. State, 934 S.W.2d 113, 123-124 (Tex.Crim.App.1996). In applying this standard, we will not reverse the trial court’s ruling unless we have a definite and firm conviction that a mistake has been made. Id. We give great deference to the trial court’s determination and view the evidence in the light most favorable to the trial court’s ruling. Jasper v. State, 61 S.W.3d 413, 422 (Tex.Crim.App.2001). If we determine that the State’s explanations have not been rebutted by the appellant, we will deem the trial court’s ruling that there was no purposeful discrimination on the basis of race as not clearly erroneous. Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.1991).

DISCUSSION

In his first point of error, appellant complains that the trial court erred in ruling that the prosecutor’s explanations of his strikes of jurors 31 and 32 were racially neutral because the prosecutor failed to sufficiently question their participation in the “forgiveness business.” In his second point of error, appellant complains that the trial court erred in ruling that the prosecutor’s explanations of its strike of juror 4 was racially neutral because the prosecutor incited a negative reaction from him and failed to sufficiently question him. Because both points of error complain of the trial court’s Batson ruling, we discuss the points together.

Using a peremptory challenge based on a juror’s race violates equal protection under the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986). In the face of perceived purposeful discrimination, the defendant may request a Batson hearing. The hearing involves a three-step process. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995). First, the defendant must make a prima facie case of racial discrimination. Id., 514 U.S. at 767, 115 S.Ct. at 1770. Then, the burden of production shifts to the state to present a racially neutral explanation for its challenged strike. Id., 514 U.S. at 768, 115 S.Ct. at 1771. Finally, the trial court must decide whether the defendant has established purposeful discrimination. Id.; see also Miller-El v. Dretke, — U.S. -, 125 S.Ct. 2317, 2324, 162 L.Ed.2d 196 (2005). Throughout the challenge, however, the burden of persuasion remains with the defendant, who has the opportunity to rebut the explanations prior to the trial court’s decision. Jasper, 61 S.W.3d at 421; see also Purkett, 514 U.S. at 768, 115 S.Ct. at 1771.

In Keeton v. State, the Court of Criminal appeals enumerated five nonexclusive factors that may be used in analyzing a Batson challenge. Keeton v. State, 749 S.W.2d 861, 866 (Tex.Crim.App.1988). Appellant contends, with respect to jurors 31 and 32, that one of those factors — an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically — applies to this case. See id. The State responds that Keeton is no longer good law because it has been supplanted by Purkett.

The court in Keeton, considering a case of first impression, relied on case law out of Florida and Alabama to determine the role of the trial judge in ruling on a Batson challenge. Id. at 865-67 (citing Slappy v. State, 503 So.2d 350 (Fla.Dist.Ct.App.1987) and Ex parte Branch, 526 So.2d 609 (Ala.1987)). The Florida and Alabama courts listed five factors that could be used in a Batson analysis, and the Keeton court approved that concept. Id. at 868.

The Supreme Court, in Purkett, made it clear that the trial court’s analysis of the State’s justification of its use of peremptory strikes occurs at the third step of the Batson process and that the burden of persuasion regarding racial motivation never shifts from the defendant. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771. The Court also clarified that the reasons offered by the State do not have to be persuasive, or even plausible, to meet the State’s burden of production, as long as they are racially neutral. Id. We do not read Purkett as rendering Keeton bad law. There is nothing in Purkett to suggest that the five factors stated in Keeton, Slappy, and Branch may no longer be used in the trial court’s analysis at the third step of the Batson challenge.

In this case, appellant made a Batson challenge to some of the State’s peremptory strikes. The State offered a racially neutral explanation for those strikes. Appellant did not attempt to rebut the State’s explanation or to carry his burden of persuasion by asserting, as he does on appeal, that the State did not show that the usual traits of the “forgiveness business” applied to jurors 31 and 32 or that the State antagonized juror 4. The trial court then found the State’s explanation to be racially neutral and denied the Batson challenge.

In light of appellant’s failure to offer any rebuttal of the State’s reasons for striking jurors 4, 31, and 32, we cannot say that the trial court’s ruling was clearly erroneous. Williams, 804 S.W.2d at 101; see also Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1989) (noting appellant’s rebuttal of prosecutor’s proffered explanation for his peremptory strikes).

Accordingly, we overrule appellant’s first and second points of error and affirm the judgment.

      . Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986).


text:
    COUNTY OF GALVESTON, Appellant, v. Charlotte TOLLE f/k/a Charlotte Dillon, Appellee.
    No. 01-04-00829-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 29, 2005.
    Rehearing Overruled Dec. 15, 2005.

      Barry Conrad Willey, Galveston County Legal Department, Donald Glywasky, Galveston County Attorney’s Office, Galveston, TX, for Appellant.
    Kenneth C. Kaye, League City, TX, Walter J. Kronzer, III, Houston, TX, for Appellee.
    Panel Consists of Justices NUCHIA, JENNINGS, and ALCALA.
   OPINION

SAM NUCHIA, Justice.

Appellant, the County of Galveston (“the County”), appeals the order of the trial court denying in part appellant’s plea to the jurisdiction. In four issues, the County contends that the trial court erred in granting the plea as to monetary damages only and should have dismissed all of appellee’s claims.

We affirm in part and reverse in part and render judgment dismissing appellee’s suit against the County.

Background

Appellee, Charlotte Tolle, is a former employee of the County, where she worked for about 30 years. When Tolle retired in 1999, the County paid medical insurance premiums and provided a life insurance policy for employees and retirees. Beginning in 2003, the County required its employees and retirees under age 65, including Tolle, to pay a $50 monthly premium for their medical insurance. In 2004, this premium was raised to $75 per month.

After the County raised the premium payments to $75 per month, Tolle sued the County, seeking monetary damages for breach of contract and fraud. In an amended petition, she added a claim for constitutional tort under article I, section 19 of the Texas Constitution, complaining that the County’s action deprived her of property “without due course of law.” She also sought a judgment declaring the validity of her contract with the County and injunctive relief that would require the County to pay her health insurance and life insurance premiums. The County filed a plea to the jurisdiction, asserting that the County was immune from the fraud and contract claims, that Tolle had not made a prima facie case for the constitutional claim, and that the trial court had no jurisdiction over the claims for declaratory and injunctive relief.

The trial court granted the County’s plea as to Tolle’s claim of monetary damages for breach of contract, fraud, and state constitutional tort. However, the trial court denied the County’s plea as to Tolle’s claims for declaratory judgment and injunctive relief.

Standard of Review

A plea to the jurisdiction is reviewed de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). The appellate court must determine whether a party has met its burden of pleading facts showing that the trial court has subject-matter jurisdiction over the pending controversy. Tex. Parks & Wildlife Dep’t v. Garrett Place, Inc., 972 S.W.2d 140, 142-43 (Tex.App.-Dallas 1998, no pet.). We take allegations in the pleadings as true and construe them in favor of the pleader. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993).

Tolle’s Contract and Tort Claims

In its first two issues, the County complains that the trial court granted the plea to the jurisdiction only with respect to monetary damages on Tolle’s claims for breach of contract and fraud. The County asserts that it has immunity from the entire claims for those causes of action, not just the damages portion. In its third issue, the County contends that the trial court is without jurisdiction to hear Tolle’s claim relating to constitutional tort because she has not stated a claim under article I, section 19 of the Texas Constitution.

By sustaining the County’s plea to the jurisdiction as it related to the three causes of action seeking monetary relief, the trial court granted the County complete relief on Tolle’s claims for breach of contract, fraud, and constitutional tort. There is, therefore, no basis for the County’s complaints regarding those causes of action. Accordingly, we overrule the County’s first three issues.

Declaratory Judgment

In its fourth issue, the County contends that the trial court had no jurisdiction over the plaintiffs action for declaratory judgment. The Declaratory Judgment Act provides, in pertinent part:

A person interested under a ... written contract ... or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Tex. Civ. Prac. & Rem.Code Ann. § 37.004(a) (Vernon 1997).

To render a declaratory judgment, a court must first have subject matter jurisdiction, and the asserted dispute must already be within the court’s jurisdiction. City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 754 (Tex.App.-Austin 1998, no pet.). “A litigant’s request for declaratory relief cannot confer jurisdiction on the court, nor can it change the basic character of a suit.” State v. Morales, 869 S.W.2d 941, 947 (Tex.1994); Tex. Ass’n of Bus., 852 S.W.2d at 444; see also Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001-011 (Vernon 1997). Rather, the Declaratory Judgment Act “is a procedural device for deciding cases already within the Court’s subject matter jurisdiction.” Dallas County Dist. Attorney v. Doe, 969 S.W.2d 537, 540 (Tex.App.-Dallas 1998, no pet.).

Declaratory judgment actions by private parties seeking to determine their rights under a statute are not suits against the State because they do not attempt to impose liability upon the State. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). Such declaratory-judgment actions do not implicate the doctrine of sovereign-immunity. Id. Because the doctrine is not implicated, legislative consent to sue is not required.

On the other hand, the government is immune from suits that seek to establish a contract’s validity, to enforce performance under a contract, or to impose contractual liabilities in suits against the State. Id. at 855-56. The government does not waive its immunity from suit by contracting with private citizens, Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 408 (Tex.1997), and declaratory judgment actions to determine the validity of a contract or to enforce the contract cannot be maintained without legislative permission because they seek to impose liability on the State. IT-Davy, 74 S.W.3d at 856.

In this case, Tolle sought a declaration “that the defendant has a contract or agreement with Ms. Tolle concerning her retirement benefits and must abide by its agreement or contract.” She also sought a declaration that the County cease requiring her to pay any insurance premiums, not cancel her health insurance policy, and reinstate her supplemental life insurance policy at the County’s sole cost. Tolle’s petition did not request a declaration of her rights under any statute. The trial court had no jurisdiction to consider Tolle’s request for a judgment declaring her rights under an agreement or contract with the County because such a declaration would impose liability on the governmental entity. See id. Therefore, the trial court should have dismissed Tolle’s entire lawsuit.

Accordingly, we sustain the County’s fourth issue.

Injunctive Relief

The County has not appealed the trial court’s denial of the County’s plea to the jurisdiction as it relates to Tolle’s request for injunctive relief. Nevertheless, we consider this issue because the trial court’s retention of the request for injunc-tive relief for Tolle’s breach of contract and fraud claims was fundamental error. See Pirtle v. Gregory, 629 S.W.2d 919, 919-20 (Tex.1982) (“Fundamental error survives today in those rare instances in which the record shows the court lacked jurisdiction....”). “Subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel at any stage of a proceeding.” Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 910 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Furthermore, “lack of subject-matter jurisdiction is fundamental error that may be recognized by the appellate court, sua sponte.” Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 n. 6 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

In her amended petition, Tolle sought an injunction that would require the County to pay the premium for Tolle’s health insurance and life insurance. Thus, Tolle’s request for an injunction, like her action for declaratory judgment, was another way to obtain monetary relief from the County. Therefore, the trial court did not have jurisdiction over Tolle’s claim for injunc-tive relief in connection with the maintenance of her insurance policies.

Conclusion

We affirm that portion of the trial court’s judgment dismissing Tolle’s claims for breach of contract, fraud, and state constitutional tort. We reverse the trial court’s judgment denying the County’s plea to the jurisdiction as it relates to Tolle’s claims for declaratory and injunc-tive relief and render judgment that the County’s plea to the jurisdiction be sustained in its entirety and that Tolle’s suit against the County be dismissed.

      . Tex. Const. art. I, § 19.

      . As pleaded, Tolle’s request for injunctive relief is ancillary to her request for a declaration that she has a valid agreement or contract with the County for health and life insurance, that the County must provide such insurance to her without charge, and that the County may not cancel such insurance. Such ancillary relief is proper only when there is some indication that the defendant will not abide by the court’s decision. See Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994). However, in light of our ruling on Tolle's declaratory judgment action and request for an injunction, the ancillary nature of the injunction is not relevant.


author: ELSA ALCALA, Justice.

text:
    Diane and Lawrence FURST, Appellants, v. Millie and William SMITH, Appellees.
    No. 01-03-00137-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 29, 2005.

      Mark Alan Sanders, Law Office of Mark A. Sanders, Houston, TX, for Appellants.
    Miles Klaff, Brown Sims, P.C., Houston, TX, for Appellees.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION

ELSA ALCALA, Justice.

Appellants, Lawrence and Diane Furst, bring this restricted appeal pursuant to rule 30 of the Rules of Appellate Procedure to challenge a no-answer default judgment rendered against them and in favor of appellees, Millie and William Smith, pursuant to the Deceptive Trade and Consumer Protection Act (DTPA). See Tex.R.App. P. 30. The trial court’s final judgment awarded compensatory and punitive damages and attorney’s fees and followed an interlocutory default judgment rendered on liability. The Fursts contend that the trial court erred by rendering the default judgment because the face of the record demonstrates a lack of compliance with rules 106 and 107 of the Rules of Civil Procedure, which govern, respectively, methods and return of service of process. See Tex.R.App. P. 106, 107. We reverse and remand.

Background

The Smiths’ pleadings allege that they entered into an agreement with the Fursts to rent a house on Dumfries Road in Houston, Texas. Hedley Karpas Properties, Inc., served as listing agent for the transaction. The parties’ lease contemplated that the Fursts would renovate the house extensively, but the Smiths alleged that the renovations were incomplete and that the house was uninhabitable, had no electricity, had running water in one sink only, and was infested with fleas when the Smiths arrived in Houston to occupy the house.

Relying on the DTP A, the Smiths sued the Fursts and the Karpas agency and sought damages for advanced rent payments, for emotional injuries, and for expenses they incurred in seeking medical assistance for themselves and their pet, for fumigating their garments and household goods, for temporary housing, and for packing, moving, and storing their goods while they lived in temporary housing. The Smiths also sought punitive damages based on claims that the Fursts acted maliciously.

The Smiths filed suit against the Fursts and the agency on September 6, 2000. They filed their second amended petition on April 12, 2001, when they also filed a verified motion for substituted service against both defendants. The Smiths’ motion alleged that, although the Fursts were no longer residents of Texas and had moved to California, they were residents, of Texas and engaged in business in Texas when the lawsuit arose and therefore had sufficient contacts with Texas based on their leasing the Dumfries house to the Smiths. The Smiths’ motion described two unsuccessful efforts to serve the Fursts, first through the Karpas agency and then at an address in Los Angeles County provided to them by the Karpas agency. The motion then stated that Diane Furst’s father, Warren S. Bloch, was “familiar with the case” and had “previously reimbursed some of the monies [owed] by [the Fursts].” In support of that claim, the Smiths’ motion asserted that a letter Bloch had written “demonstrat[ed] his involvement in the case.” The single-page transmission on which the Smiths relied had been sent by telecopier from Bloch’s accounting office in Pittsburgh, Pennsylvania to the Fursts’ codefendant, the Karpas real estate agency, and contained the following message: “On behalf of Lawrence & Diane Furst, we will wire to you $4,500 as soon as possible. This should take no more than four or five days. Thank-you for all of your cooperation, /s/ W.S. Bloch.” The Smiths’ motion concluded by requesting authorization to

serve defendants Diane Furst and Lawrence Furst by leaving a true copy of the citation and the attached petition with Warren S. Bloch, Certified Public Accountant. Warren S. Bloch is defendant Diane Furst’s father and defendant Lawrence Furst’s father-in-law.

The trial court signed an order granting the Smith’s motion for substituted service on April 20, 2001. This order reflects that the trial court considered the motion and the supporting affidavit and authorized substituted service, as requested by the Smiths, “by delivery to Warren S. Bloch, Certified Public Accountant at 5802 Douglas Street, Pittsburgh, Pennsylvania 15217-2102.” The order also stated that service on Bloch “will be reasonably effective” to give the Fursts notice of the Smiths’ lawsuit. Based on the return of service on Bloch, the trial court rendered an interlocutory default judgment on liability and later rendered a final judgment awarding the Smiths damages and attorney’s fees after conducting a bench trial.

Standards and Scope of Review

A. Substituted Service on Affidavit and Return — De Novo Review

When a defendant has not answered, a trial court acquires jurisdiction over that defendant solely on proof of proper service. Tex.R. Civ. P. 107 (prohibiting rendition of default judgment unless proof of proper service or process and return, whether in compliance with governing rules or as ordered by court, have been on file for 10 days); see Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990) (rejecting defendant’s admitted receipt of suit papers as sufficient to confer jurisdiction in context of former writ-of-error practice); see also Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271, 273 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (“Jurisdiction over a defendant must be established in the record by an affirmative showing of service of citation....”); Nichols v. Nichols, 857 S.W.2d 657, 659 (Tex.App.-Houston [1st Dist.] 1993, no writ) (rejecting actual notice of lawsuit as sufficient to confer jurisdiction over improperly served defendant in context of bill of review of default judgment modifying divorce decree) (citing Wilson, 800 S.W.2d at 834); Heth v. Heth, 661 S.W.2d 303, 304-05 (Tex.App.-Fort Worth 1983, writ dism’d) (holding same, in context of non resident defendant). Lack of proof of proper service constitutes error on the face of the record that defeats the trial court’s jurisdiction. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex.1994) (decided under former writ-of-error practice); Hercules Concrete Pumping Serv., Inc. v. Bencon Management & Gen. Contracting Corp., 62 S.W.3d 308, 311 (Tex.App.-Houston [1st Dist.] 2001, pet. denied).

Personal jurisdiction comprises both of the following elements: the defendant must first be amenable to the jurisdiction of the court, and, if so, the plaintiff must invoke that jurisdiction by valid service of process on the defendant. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex.1985); Coronado v. Norman, 111 S.W.3d 838, 841 (Tex.App.-Eastland 2003, pet.denied) (citing Kawasaki, 699 S.W.2d at 200, in context of restricted appeal). The Fursts dispute the service element service here.

Whether a Texas court has personal jurisdiction is a question of law. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002) (stating, in special appearance context, that courts of appeals review trial court’s factual findings for legal and factual sufficiency and review trial court’s legal conclusions de novo); See Wilson, 800 S.W.2d at 836 (“Jurisdiction is dependent upon citation issued and served in a manner provided by law.”) (Emphasis added.); see Coronado, 111 S.W.3d at 841.

Rule 106(b), on which the Smiths and the trial court relied in this case, governs substituted service, and rule 107 states the standards by which the trial court evaluates return of service. See Tex.R. Civ. P. 106(b), 107. In addition, rule 108 incorporates the standards of both rules and imposes additional requirements for service and return for defendants who, like the Fursts, are not residents of Texas. Tex.R. Civ. P. 108. Strict compliance with the rules must affirmatively appear of record if we are to sustain a default judgment based on substituted service. Primate Construction, 884 S.W.2d at 152; Hercules Concrete, 62 S.W.3d at 311; Olympia Marble & Granite v. Mayes, 17 S.W.3d 437, 444 (Tex.App.-Houston [1st Dist.] 2000, no pet.). It is the responsibility of the party requesting service, in this case, the Smiths, to ensure that (1) proper service is accomplished and (2) that the record reflects proper service. Primate Construction, 884 S.W.2d at 152.

Subsection (b) of rule 106 provides alternatives for substituted service when the personal service and mail options stated in subsection (a) have “not been successful.” See Tex.R. Civ. P. 106. Substituted service is obtainable on motion, filed with the trial court, supported by an affidavit stating (1) the location of the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found and (2) specific facts showing that service has been attempted under either subsection of rule 106(a) at the location named in the affidavit, but did not succeed. See id.

When, as reflected by the recitals in the trial court’s order and the face of the record here, a trial court authorizes substituted service on proof by affidavit, and thus without an evidentiary hearing, the ruling results from the trial court’s applying the standards of rule 106(b) to the facts stated in the affidavit offered in support of substituted service. See Tex.R. Civ. P. 106(b). Similarly, the trial court’s acceptance of the return of service results from the court’s applying the standards stated in rule 107 to the facts stated in the officer’s return. See id; Tex.R. Civ.P. 107.

When a trial court’s ruling results from applying the law to the facts, we traditionally review the ruling as a matter of law, i.e., de novo. See BMC Software Belgium, 83 S.W.3d at 794; see also In re R.J.H., 79 S.W.3d 1, 6 (Tex.2002) (contrasting trial court’s credibility-based findings, to which a reviewing court must defer, from its application of law to facts, which a reviewing court reviews de novo “because the trial court is in no better position to decide legal issues than the appellate court”); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (distinguishing same, in context of mandamus review). Moreover, personal jurisdiction over a defendant “depends on citation issued and served as provided by law,” and we may not indulge any “presumptions in favor of valid issuance, service, and return of citation in the face of a [restricted appeal] attack on a default judgment.” Primate Construction, 884 S.W.2d at 152; Wilson, 800 S.W.2d at 836; Hercules Concrete, 62 S.W.3d at 310; Olympia Marble & Granite, 17 S.W.3d at 444.

We hold that de novo review is appropriate because (1) “failure to affirmatively show strict compliance with the Rules of Civil Procedure renders ... attempted service invalid and of no effect,” Wilson, 800 S.W.2d at 836; (2) the burden is on the plaintiff, here the Smiths, to ensure that the record reflects proper service, Primate Construction, 884 S.W.2d at 152; and (3) a return of sendee that demonstrates lack of compliance will preclude rendition of a default judgment, as there is no presumption of proper service. Id. at 152-53. We apply that standard, therefore, to review the trial court’s authorizing substituted service based on the Smiths’ sworn motion and affidavit under rule 106(b) and the trial court’s rendering the default judgment on liability based on the return of service under rules 107 and 108. See Coronado, 111 S.W.3d at 841-42.

B. Restricted Appeal

To prevail in their restricted appeal, the Fursts must demonstrate that they (1) filed their notice of appeal within six months after the final judgment was signed, (2) were parties to the litigation, (3) did not participate in the hearing resulting in the final judgment, (4) did not timely file postjudgment pleadings, and that (5) there is error on the face of the record. See Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997) (decided under former, writ-of-error practice); Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 721 (Tex.App.-Houston [1st Dist.] 2003, no pet.); see also Tex.R.App. P. 26.1(c), 30 (stating elements and notice requirements for restricted appeal). The last element is the only disputed issue in this case. Our scope of review in a restricted appeal is the same as that in an ordinary appeal, in that we review the entire case, but we consider only “the face of the record,” which consists of all the papers filed in the trial court when it rendered the default judgment. See Norman Communications, 955 S.W.2d at 270; Roventini, 111 S.W.3d at 722.

Ruling on Substituted Service

A. Rule 106(b)(2) — Substituted Service “Reasonably Effective” for Notice?

In their third issue, the Fursts contend that there is error on the face of the record because the affidavit offered by the Smiths to support substituted service on Diane Furst’s father, Warren S. Bloch, at his accounting office in Pittsburgh, Pennsylvania did not sufficiently demonstrate that service on Bloch would be “reasonably effective” to give the Fursts notice of the Smiths’ lawsuit. We agree.

The Smiths’ motion averred only that Diane Furst’s father, Warren S. Bloch, was “familiar with the case” and had reimbursed some of the monies that the Fursts owed, as shown by a single-page telecopier transmission sent from Bloch’s accounting office in Pittsburgh, Pennsylvania to the office of the Fursts’ codefendant, the Karpas real estate agency, in which Bloch stated that he would forward $4,500 to the agency on behalf of the Fursts. The Smiths claimed that the letter demonstrated Bloch’s “involvement in the case.” But, even if this is true, Bloch’s mere “involvement in the case” by sending funds to the Karpas real estate agency does not demonstrate that serving him at his office in Pittsburgh, Pennsylvania would be “reasonably effective” to accomplish notice to the Fursts, in California, of the lawsuit and the allegations by the Smiths against them.

Substituted service pursuant to rule 106(b) contemplates delivery to a “proper representative” of the defendant when it is impractical to summon the defendant by personal service. 3 McDonald & Carlson, Texas Civil Practice § 11.58 (2d ed.2000). Rule 106(b)(2) thus requires not only a showing that personal service under either of the alternatives of subsection 106(a) has been “unsuccessful,” but also a showing that the person upon whom substituted service is requested is a proper representative so that the substituted service requested will be “reasonably effective” to notify the named defendant. See id.

Despite his stated family relationship with the Fursts, and despite his having indicated that he would be sending funds to the codefendant real estate agency on their behalf, nothing on the face of the record before us demonstrates that Bloch was the Fursts’ “proper representative” to the extent that notice to him was reasonably effective notice to them. The situation in the case before us differs, therefore, from Magan v. Hughes Television Network, Inc., 727 S.W.2d 104, 105 (Tex.App.-San Antonio 1987, no writ), in which the movant seeking substituted service supplied the affidavit of a deputy sheriff, in which he stated that other communications delivered to the defendant at the substituted service location had reached him at that location. Cf. Marble & Granite, 17 S.W.3d at 445 (distinguishing Magan and holding that nothing in affidavit offered to support substituted service pursuant to subsection (b)(1) of rule 106 indicated that defendant would be at substituted service location at time indicated in motion). Similarly, the Smiths’ affidavit states no facts on which the trial court might have relied to conclude that Bloch was the Fursts’ agent with regard to the Smiths and that service on him would, therefore, be reasonably effective to accomplish notice to the Fursts. See, e.g., Gilbert v. State, 623 S.W.2d 349, 353 (Tex.Crim.App.1981) (recognizing that defendant may authorize another to accept service, but relying on prohibition against any presumptions in favor of valid service to hold that absence of showing that defendant had authorized service on alleged agent rendered substituted service on alleged agent fatally defective and defeated jurisdiction of trial court to consider civil bond-forfeiture case).

After reviewing the face of the record de novo and in accordance with the prohibition against indulging any presumptions in favor of proper service, we conclude that the Smiths’ affidavit did not allege sufficient facts to warrant the trial court’s authorizing substituted service on Bloch pursuant to rule 106(b)(2). We further conclude that the defects in the affidavit constitute error on the face of the record that renders the substituted service authorized by the trial court ineffective to accomplish the trial court’s personal jurisdiction over the Fursts.

We sustain the Fursts’ third issue.

B. No Copy of Petition Attached to Citation — Rule 106(b)

In their fourth issue, the Fursts contend that there is error on the face of the record because the record does not reflect that the substituted service effected delivery of the Smiths’ second amended original petition. We agree.

All methods encompassed in rule 106 contemplate that a copy of the plaintiffs live petition accompany the citation. Subsections (a)(l)-(2) and (b)(1) state this requirement explicitly. Tex.R. Civ. P. 106(a)(l)-(2), (b)(1). Subsection (b)(2) of rule 106, at issue here, permits methods that the court deems “reasonably effective” to accomplish notice of the lawsuit. See Tex.R. Civ. P. 106(b)(2). Although rule 106(b)(2) does not specifically require that a copy of the petition accompany the citation, in authorizing “other” methods of service that a trial court may deem reasonably effective to accomplish notice, rule 106(b) necessarily requires that the plaintiff receive a copy of the live petition. See Primate Construction, 884 S.W.2d at 152 (holding service defective because return recited that copy of second amended citation served, but sworn return of service recited that original petition, which had not yet named defendant, actually served).

Because we indulge no presumptions in favor of compliance with service requirements in a restricted appeal, lack of service of the live pleadings against a defendant cannot, therefore, be sufficiently “reasonably effective” to accomplish the degree of notice required to establish personal jurisdiction over a defendant, as contemplated by rule 106(b)(2). See Midwest Piping & Supply Co. v. Page, 128 S.W.2d 459, 462 (Tex.Civ.App.-Beaumont 1939, writ ref’d); see also Woodall v. Lansford, 254 S.W.2d 540, 540-543 (Tex.Civ.App.-Fort Worth 1953, no writ) (applying rule rejecting presumptions in support of proper service to hold that return reciting delivery of “a true copy of this citation, together with the accompanying true and correct copy of the Citation to plaintiffs petition” did not demonstrate delivery of copy of petition and was fatally defective) (emphasis in original).

The civil process requests for Diane and Lawrence Furst specified that the Smiths’ second amended original petition was the instrument to be served. As excerpted above, the Smiths requested authorization for substituted service on Bloch “by leaving a true copy of the citation and the attached petition with Warren S. Bloch, Certified Public Accountant.” (Emphasis added.) The record contains two verified returns of service, one for Diane Furst and a second for Lawrence Furst. Each return contained the sworn statement, by a deputy sheriff of Allegheny County, Philadelphia, with a handwritten notation that the deputy had served “citation” on Warren Bloch at 2:45 p.m. on May 3, 2001. Neither return, however, states that the deputy’s service of “citation” included service of the Smiths’ second amended original petition, despite the requirements of rule 106(b), and although the Smiths’ motion for substituted service specified that their second amended original petition was to accompany the citation.

The recitals in the return of service are “prima facie evidence of the facts” stated in the return and “carry so much weight” that the party charged with obtaining service cannot rebut the recitals, which are given no less weight when they impeach, rather than support proper service. See Primate Construction, 884 S.W.2d at 152-53. The return, therefore, is not “a trivial, formulaic document.” Id. at 152.

Because the return of service here does not state that the requisite copy of the Smiths’ second amended original petition had been served, the face of the record does not affirmatively reflect compliance with rule 106(b)(2) and is error on the face of the record that also renders the attempted service defective and defeats the trial court’s exercise of personal jurisdiction over the Fursts. Id. at 153; Hercules Concrete Pumping Service, 62 S.W.3d at 311.

We sustain the Fursts’ fourth issue.

Conclusion

We have concluded that the face of the record of this restricted appeal reflects error in authorizing substituted service in at least two respects and therefore need not address the Fursts’ remaining issues. Having thus concluded that the trial court lacked personal jurisdiction over the Fursts due to lack of proper service of process, we reverse the final, default judgment and remand the cause.

      . A restricted appeal challenging a default judgment is a direct attack on the judgment. Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 721 (Tex.App.-Houston [1st Dist.] 2003, no pet.).

      . The real estate agency is not a party to this appeal. The Smiths settled with the agency, which nonsuited its cross-claim against them.

      . “Owned” in original.

      . Restricted appeals under rule 30 of the Rules of Appellate Procedure superceded writ-of-error practice under former rule 45. See Tex.R.App. P. 45, Tex. B.J. 570 (Tex.1986, superceded 1997); Hercules Concrete Pumping Serv., Inc. v. Bencon Management & Gen. Contracting Corp., 62 S.W.3d 308, 310 n. 4 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (citing same).

      . We distinguish rule 106(b) rulings made other than based on proof by affidavit, as, for example, after an evidentiary hearing, which would require us to defer to the trial court’s discretionary, credibility-based determinations. See In re R.J.H., 79 S.W.3d 1, 6 (Tex.2002) (stating that credibility-based findings require deference); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (same, in context of mandamus review). Similarly, on receipt of an affidavit that satisfies rule 106(b) the trial court “may " and, therefore, need not, authorize substituted service which, as shown from the affidavit or other evidence, is reasonably calculated to provide notice. See State Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298, 299 (Tex.1993) (emphasis added); Coronado v. Norman, 111 S.W.3d 838, 841 (Tex.App.-Eastland, pet.denied) (recognizing trial court’s discretion to authorize substituted service "but only after a proper affidavit is filed that states specifically the facts showing that service has been attempted”).


author: TERRIE LIVINGSTON, Justice.

text:
    In the Interest of D.S., Jr., a Child.
    No. 2-04-372-CV.
    Court of Appeals of Texas, Fort Worth.
    Oct. 6, 2005.

      Wes Dauphinot, Arlington, for appellant.
    Tim Curry, Criminal Dist. Atty., Charles M. Mallín, Anne Swenson, David M. Curl, Cindy Williams, Asst. Criminal Dist. Attys, Fort Worth, for state.
    Panel A: LIVINGSTON, HOLMAN, and GARDNER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Introduction

Appellant Amanda W. appeals the trial court’s order terminating her parental rights to her child, D.S., Jr. In one point she argues that there is factually insufficient evidence to support the trial court’s finding that termination was in D.S.’s best interest. We affirm.

Background Facts

Appellant is D.S.’s mother. D.S. was two years old at the time of trial. On June 4, 2003, Child Protective Services (CPS) received a referral of neglectful supervision of D.S. by appellant; the referral also showed that appellant was using crack cocaine. On June 5, 2003, CPS removed D.S. from appellant’s custody and placed him in foster care after appellant admitted using drugs, but not in D.S.’s presence. CPS removed D.S. because appellant had three other children in foster care, she was continuing to use drugs, her recent drug tests were positive, and she had been arrested for DWI while D.S. was in the car with her.

CPS had previously removed appellant’s three other children, J.W., S.A., and M.W., before D.S. was born, after an officer had seen M.W. being held out of a window and suspected that appellant was using drugs. Appellant entered First Choice Program, a program through Community Addiction Treatment Services (CATS), where she stayed for thirteen months. D.S. was born during appellant’s stay at First Choice, but he was not immediately removed from appellant’s care because he was born drug-free and appellant was cooperating and not using drugs. After being discharged, appellant entered an after-care program where she began to test positive for cocaine. Initially, CPS was promoting family reunification with J.W., S.A., and M.W.; however, after appellant began to test positive, it pursued termination. Appellant’s parental rights to J.W., S.A., and M.W. were terminated on September 3, 2003 for placing the children in surroundings — and engaging in conduct — which endangered the children.

In June 2003, appellant re-entered First Choice, but was discharged in August or September 2003 after failing to complete the program. She failed to attend regular meetings, attending only ten out of the forty-eight required meetings.

In September or October 2003, appellant entered Victory Outreach, which appellant initially described to CPS as a rehabilitation program. However, CPS discovered that Victory Outreach did not offer drug programs and was more like a shelter. Appellant complained that she could not complete the Victory Outreach program because of the time deadlines on her case with CPS, because she was having transportation problems, and because Victory Outreach would not let her complete the program the way she wanted. In June 2004, Kathleen Tucker, a CPS caseworker, was informed that appellant was no longer at Victory Outreach and did not officially complete the program.

In May 2004, after leaving Victory Outreach, appellant told CPS that she was trying to get back into CATS a second time. Appellant attended five out of the twenty-four group meetings and two out of the three individual meetings she was required to attend. In July 2004, CPS contacted CATS and learned that appellant had not been regularly attending the meetings and had been discharged.

Appellant often failed to comply with CPS’s requests. CPS’s service plan required appellant to stay sober for six months, obtain adequate housing, obtain employment, and complete a psychological exam. On several occasions, she refused urine analysis when requested by CPS. Additionally, she failed to provide CPS with pay stubs to show that she was working. Further, the evidence shows that the only part of the service plan that appellant successfully completed was the psychological exam.

In addition, appellant and D.S.’s father, Darrell S., claimed that they were separated, but CPS later found out that they were living together. On September 28, 2004, Susan Marbitt, a CPS caseworker, arrived at Darrell S.’s brother and sister-in-law’s house where appellant and Darrell S. were staying, and his sister-in-law would not allow her to look through the house to see if it was adequate for D.S. Appellant also failed to return some phone calls to CPS.

However, appellant made the scheduled visitations with D.S. more often than not. Out of the seventy-three available visits, appellant made forty-two of them, but was late to eight visits.

The trial court terminated appellant’s and Darrell S.’s parental rights on November 11, 2004. The trial court found, among other things, that it was in D.S.’s best interest to terminate the parent-child relationship. Darrell S. is not a party to this appeal.

Statement of Points

The State contends that this case should be dismissed because appellant failed to file a statement of points. See Tex. Fam.Code Ann. § 263.405(b) (Vernon 2002). Family code section 263.405(b) states that “[n]ot later than the 15th day after the date a final order is signed by the trial judge, a party intending to appeal the order must file with the trial court a statement of the point or points on which the party intends to appeal. The statement may be combined with a motion for a new trial.” Id. Historically, this court has held that the failure to file a statement of points is not a defect that prevents this court from addressing issues on appeal.

The State argues that the newly added family code section 263.405(i) shows that the legislature has abrogated this court’s previous opinions holding otherwise. Section (i) states that

[t]he appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial. For purposes of this subsection, a claim that a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal.

But section 263.405© applies only to an appeal that is filed on or after September 1. 2005. The enacting legislation specifically states that “[a]n appeal of a final order ... filed before the effective date [of September 1, 2005] is governed by the law in effect on the date the appeal was filed, and the former law is continued in effect for that purpose.” Here, the appeal was filed on November 23, 2004, before the effective date of section 263.405(i); therefore, this appeal is governed by our prior decisions construing the former version of section 263.405, which do not preclude us from considering appellant’s point. See, e.g., In re S.J.G., 124 S.W.3d at 243.

Factual Sufficiency Standard of Review

In her sole point, appellant argues that the evidence is factually insufficient to support the trial court’s finding that termination of the parent-child relationship between appellant and D.S. is in D.S.’s best interest.

A parent’s rights to “the companionship, care, custody, and management” of his or her children are constitutional interests “far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982). “While parental rights are of constitutional magnitude, they are not absolute. Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26 (Tex.2002). In a termination case, the State seeks not just to limit parental rights but to end them permanently—to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child’s right to inherit. Tex. Fam.Code Ann. § 161.206(b) (Vernon Supp.2004-05); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). We strictly scrutinize termination proceedings and strictly construe involuntary termination statutes in favor of the parent. Holick, 685 S.W.2d at 20-21; In re D.T., 34 S.W.3d 625, 630 (Tex.App.-Fort Worth 2000, pet. denied) (op. on reh’g).

In proceedings to terminate the parent-child relationship brought under section 161.001 of the family code, the petitioner must establish one or more of the acts or omissions enumerated under subdivision (1) of the statute and must also prove that termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001 (Vernon 2002); Richardson v. Green, 677 S.W.2d 497, 499 (Tex.1984); Swate v. Swate, 72 S.W.3d 763, 766 (Tex.App.-Waco 2002, petdenied). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987).

Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by clear and convincing evidence. Tex. Fam.Code Ann. §§ 161.001, 161.206(a); In re G.M., 596 S.W.2d 846, 847 (Tex.1980). This intermediate standard falls between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. G.M., 596 S.W.2d at 847; D.T., 34 S.W.3d at 630. It is defined as the “measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam.Code Ann. § 101.007 (Vernon 2002).

The higher burden of proof in termination cases alters the appellate standard of factual sufficiency review. In re C.H., 89 S.W.3d at 25; In re C.A.J., 122 S.W.3d 888, 892 (Tex.App.Fort Worth 2003, no pet.). “[A] finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.” In re C.H., 89 S.W.3d at 25. In considering whether the evidence of termination rises to the level of being clear and convincing, we must determine “whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction” that the grounds for termination were proven. Id. Our inquiry here is whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the termination of the parent’s parental rights would be in the best interest of the child. Id. at 28; see also In re C.A.J., 122 S.W.3d at 892.

Best Interest

Nonexclusive factors that the trier of fact in a termination case may use in determining the best interest of the child include

(1) the desires of the child,
(2) the emotional and physical needs of the child now and in the future,
(3) the emotional and physical danger to the child now and in the future,
(4) the parental abilities of the individuals seeking custody,
(5) the programs available to assist these individuals to promote the best interest of the child,
(6) the plans for the child by these individuals or by the agency seeking custody,
(7) the stability of the home or proposed placement,
(8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and
(9) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976); In re M.N.G., 147 S.W.3d 521, 539 (Tex.App.Fort Worth 2004, pet. denied). These factors are not exhaustive. Some listed factors may be inapplicable to some cases; other factors not on the list may also be considered when appropriate. In re C.H., 89 S.W.3d at 27; In re M.N.G., 147 S.W.3d at 539. Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child. In re C.H., 89 S.W.3d at 27; In re M.N.G., 147 S.W.3d at 539. On the other hand, the presence of scant evidence relevant to each Holley factor will not support such a finding. In re C.H., 89 S.W.3d at 27; In re M.N.G., 147 S.W.3d at 539.

In addition to the above, a parent’s inability to provide adequate care for the child, lack of parenting skills, poor judgment, and repeated instances of immoral conduct may also be considered when looking at the child’s best interest. In re C.A.J., 122 S.W.3d at 893. We now address those factors for which relevant evidence was admitted.

The Emotional and Physical Danger to the Child Now and in the Future

As part of appellant’s service plan, CPS wanted appellant to stop using drugs. Appellant failed several drug tests, and as recently as November 2004, refused to take a drug test when asked by CPS. Appellant’s drug addiction clearly poses an emotional and physical danger to D.S. now and in the future. See id. In addition, appellant was arrested for DWI while D.S. was in the car. Appellant admitted that she drank alcohol, then drove and picked up D.S. Laurie Smith, a CATS clinical supervisor, testified that appellant did not appear to have a stable life and was not able to get a job or obtain, adequate housing without help from others. Appellant’s unstable life threatens D.S.’s physical well-being and may put him at risk of injury. See id. at 894.

The Plans for the Child by the Agency Seeking Custody—The Stability of the Home or Proposed Placement

Tammy Williams, D.S.’s maternal aunt, has expressed an interest in adopting D.S. and his siblings J.W., S.A., and M.W. Williams lives in Arkansas. CPS initiated two home studies on Williams and learned that Williams would need a lot of financial assistance for daycare and expenses if she adopted the children. At the time of the home studies, Williams was already working two jobs. Williams moved into a three bedroom house from an apartment in hopes that the children would be placed with her. At the time of trial, the adoptive placement was still in the process of being approved by Arkansas officials.

D.S.’s foster parents have expressed an interest in adopting him if the placement with Williams does not work out. D.S. has done well in foster care and was interacting well during family visitation and with his sister M.W.

The Acts or Omissions of the Parent Which May Indicate that the Existing Parent-Child Relationship is Not a Proper One

Evidence of a parent’s long-term drug use and unstable lifestyle can support a factfinder’s conclusion that termination is in the child’s best interest. Ross v. Tex. Dep’t of Protective & Regulatory Servs., No. 03-04-00569-CV, 2005 WL 366886, at *7 (Tex.App.Austin Feb.17, 2005, no pet.) (mem.op.). A parent’s inability to provide a stable home and remain gainfully employed, failure to successfully complete drug treatment, and failure to comply "with her family service plan support a finding that termination is in the best interest of the child. Id.

Appellant is an admitted long-term drug user. She has admitted to CPS on several occasions that she is addicted to cocaine. Appellant has also failed numerous drug tests, including ones of which she had prior notice. Appellant has failed to meet the service plan requirements that she stay sober for six months, obtain adequate housing, and obtain employment. Appellant is currently living with Darrell S. and his family, but she does not pay rent or contribute to buying groceries. Although there is evidence that appellant is working at Taco Bell, she has not given CPS her pay stubs to verify her employment. In addition, appellant was arrested for DWI when D.S. was in the car.

Appellant argues that it is in D.S.’s best interest to be placed with her because D.S. has bonded with her; however, there is evidence that D.S. has also bonded well with his foster parents, his health has improved since being placed in foster care, and he is socializing well with his sister, M.W. Appellant claims that if she consistently attended and completed a drug program, she could become a better parent to D.S., and she points out that she did not fail a drug test after September 2003. But appellant has started drug treatment at least four times and never successfully completed any program. Moreover, appellant refused to take any drug tests after September 2003; thus there is no way of knowing whether she has been sober since October 2003 as she claimed. Lastly, appellant points out that she never tested positive when she was at Victory Outreach. But once again, appellant fails to mention that Victory Outreach did not perform drug tests, and CPS did not consider it a drug rehabilitation program. Based upon our review of the entire record, we conclude that a factfinder could have reasonably formed a firm conviction or belief that termination of appellant’s rights was in D.S.’s best interest. We hold that the evidence is factually sufficient to support the trial court’s finding that termination is in D.S.’s best interest. We overrule appellant’s sole point.

Conclusion

Having overruled appellant’s sole point, we affirm the trial court’s order.

      . See In re S.J.G., 124 S.W.3d 237, 243 (Tex.App.Fort Worth 2003, pet. denied) (holding complete failure to file statement of points no bar to appeal); In re W.J.H., 111 S.W.3d 707, 712 (Tex.App.-Fort Worth 2003, pet. denied) (holding failure to raise issue in statement of points does not forfeit it on appeal); In re D.R.L.M., 84 S.W.3d 281, 291 (Tex.App.-Fort Worth 2002, pet. denied) (holding failure to timely file statement of points does not forfeit issues on appeal).

      . Act of May 12, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Sess. Law Serv. 332 (Vernon) (to be codified as an amendment of Tex. Fam.Code Ann. § 263.405).

      . Id.

      . Id.

      . Id. (emphasis added).


author: LEE ANN DAUPHINOT, Justice.

text:
    Michael David DUNN, Appellant, v. The STATE of Texas, State.
    No. 2-03-364-CR.
    Court of Appeals of Texas, Fort Worth.
    Oct. 6, 2005.

      Joseph F. Zellmer, Denton, TX, for Appellant.
    Bruce Isaacks, Criminal Dist. Atty., Catherine Luft, Debra Bender, Asst. Dist. Attys., Denton, TX, Matthew Paul, State Prosecuting Atty., Austin, TX, for Appel-lee.
    PANEL B: DAUPHINOT, HOLMAN, and GARDNER, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

A jury convicted Appellant Michael David Dunn of criminally negligent homicide and further found that the automobile that he was driving when he committed the offense was a deadly weapon. Appellant elected to be sentenced by the court, and therein lies the tale. Appellant brings five points on appeal, arguing that the trial court erred by failing to suppress the results of his blood test, that the evidence is both legally and factually insufficient to support the verdict, and that the trial court erred in resentencing him. Because we hold that the trial court erred in resen-tencing Appellant but also that the evidence is both legally and factually sufficient and that the blood test results were properly admitted, we modify the judgment to reflect a sentence of two years’ confinement in the Institutional Division of the Texas Department of Criminal Justice (IDTDCJ) and a $10,000 fine and affirm the judgment as modified.

Legal and Factual Sufficiency of the Evidence

Appellant was tried for intoxication manslaughter and manslaughter. In his third and fourth points, Appellant argues that the evidence is legally and factually insufficient to support the jury’s finding of guilt on the lesser included offense of criminally negligent homicide. Appellant requested the jury instruction on the lesser-included offense of criminally negligent homicide. When a defendant requests the inclusion of a jury instruction on a lesser-included offense, he is estopped from challenging on appeal both the legal and the factual sufficiency of the evidence to support his conviction of that lesser-included offense. We overrule Appellant’s third and fourth points on appeal.

Motion to SuppRess Results of Blood Test

In his first point, Appellant contends that the trial court erred by denying his motion to suppress the results of his blood test because his consent was coerced. The appropriate standard for reviewing a trial court’s ruling on a motion to suppress evidence is a bifurcated standard of review, giving almost total deference to the trial court’s determination of historical facts and reviewing de novo the court’s application of the law to those facts. If the trial court did not make explicit findings of historical facts, the appellate court reviews the evidence in the light most favorable to the trial court’s ruling, making the assumption that the trial court made explicit findings of fact, supported in the record, that buttressed its conclusion.

In determining whether consent is valid, the Texas Court of Criminal Appeals has held,

In Schneckloth v. Bustamante, [412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)] the United States Supreme Court considered the definition of “voluntary consent” in the context of a search and seizure. “When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.” The Court noted that “voluntariness” goes beyond the literal meaning of “a knowing choice.” Unless a person is unconscious or incapacitated, all statements made could be considered “voluntary in the sense of representing a choice of alternatives.” Under this view, even physically-forced consent would be voluntary because, in theory, the suspect had a choice — either consent to the search or be beaten. On the other hand, we do not ask whether the consent would have been given “but-for” the police actions or inquiries. Under this view, “virtually no statement would be voluntary because very few people give incriminating statements in the absence of official action of some kind.” Therefore, the premise of voluntariness does not mean that police are required to never question an accused in custody, but they must have limits to the measures taken during their interrogations.
“In determining whether a defendant’s will was overborne in a particular case,” the Schneckloth Court developed the standard by which consent is tested for voluntariness. Trial courts “must [assess] the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” By looking at the circumstances leading up to the search, the reaction of the accused to pressure, and any other factor deemed relevant, a trial court can determine whether the statement of consent was given voluntarily. Some relevant factors the Supreme Court has taken into consideration in past cases are: the youth of the accused, the education of the accused, the intelligence of the accused, the constitutional advice given to the accused, the length of the detention, the repetitiveness of the questioning, and the use of physical punishment.
The Texas Constitution protects the people against all unreasonable seizures and searches. A search made after voluntary consent is not unreasonable. In determining whether a defendant’s consent was voluntary, the State is required to prove the voluntariness of consent by clear and convincing evidence. This Court has held that the trial court must look at the totality of the circumstances surrounding the statement of consent in order to determine whether that consent was given voluntarily.

The trial court as fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony.

The evidence showed the following. Appellant was driving his pickup truck on a two-lane road in Denton County when the pickup crossed over the line into oncoming traffic and crashed head-on into a car driven by the complainant. Although the complainant was killed on impact, Appellant was able to walk and to speak while still at the scene. He was shaken up, but he did not appear to witnesses to need medical treatment. The officer on the scene did not smell alcohol on Appellant. The officer asked Appellant if he would provide a sample of his blood, and Appellant agreed to do so. He was not informed of his Miranda rights. Appellant was then taken to Denton Regional Medical Center where he provided a blood sample.

The testifying officer stated that Appellant was not placed under arrest, but he equivocated when asked whether Appellant was handcuffed. Appellant was placed in the back seat of a police car. The blood tests revealed no alcohol but did show the presence of amphetamine and methamphetamine in Appellant’s system. The testifying officer denied using threats or other tactics to overbear Appellant’s will. Appellant did not controvert the officer’s testimony.

Based on the appropriate standard of review, we hold that the trial court did not abuse its discretion by denying Appellant’s motion to suppress the blood test results on the basis of invalid consent because the record supports the trial court’s finding that Appellant voluntarily consented to providing the blood sample for testing. We overrule Appellant’s first point.

In his second point, Appellant contends that the trial court erred by denying his motion to suppress because the blood test results were not relevant. Under the Texas Rules of Evidence, “relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” As the State argues, relying on Stewart v. State, to be relevant, the evidence does not have to prove or disprove a particular fact by itself; it just has to provide a small nudge toward proving or disproving a fact of consequence. The first issue presented to the jury was whether Appellant was guilty of intoxication manslaughter due to the introduction of a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances into his system. Appellant argues that the existence of the controlled substance or drug was irrelevant because no one specifically tied the presence of the substance to lack of normal use. If this is true, it is a failure of proof; the failure of proof does not render the evidence irrelevant but insufficient. The presence of the substance was an element of the offense as charged and as submitted to the jury. Consequently, the test results were relevant. We overrule Appellant’s second point.

Sentencing

In his fifth point, Appellant argues that the trial court improperly withdrew a lawful two-year sentence and replaced it with an eight-year sentence. We agree. Criminally negligent homicide is punished as a state jail felony unless a deadly weapon is used. If a deadly weapon is used, the offense is punished as a third-degree felony. It is difficult to understand how one could commit a homicide without using an instrument capable of causing death or serious bodily injury. Consequently, one wonders how criminally negligent homicide could ever be punished as a state jail felony.

Regardless, Appellant was admonished that he was being tried for a state jail felony. Although the State provided Appellant notice of its intent to seek a deadly weapon finding, the deadly weapon allegation was not contained in the indictment. The court submitted the issue to the jury, and the jury returned an affirmative finding on the deadly weapon issue. The record is clear that the trial judge, the prosecutors, the defense lawyer, and Appellant all believed they were trying a state jail felony case. They did not realize that Appellant faced the punishment of a third-degree felony, and he was not admonished on third-degree felony punishment.

On August 6, after the jury returned its guilty verdict and the affirmative deadly weapon finding, the issue of punishment was tried before the trial court. On that date, the trial court sentenced Appellant as follows:

THE COURT: After deliberating, the jury returned a verdict finding you guilty of the offense of criminally negligent homicide.
It is the judgment of this Court that you are guilty in Cause No. F-2003-0556-A, State of Texas versus Michael David Dunn, and that you be punished in accordance with the court’s verdict.
Do you, Mr. Dunn, or your counsel have any legal reason why sentence should not be pronounced against you?
THE DEFENDANT: No.
THE COURT: The defendant, having nothing to say, it is the order of the court that you, Michael David Dunn, who has been adjudged to be guilty of the offense of criminally negligent homicide, a felony, in Cause No. F-2003-0556-A, and whose punishment is being assessed at a period of two years in prison in the Texas Department of Criminal Justice and a fine of $10,-000—
[PROSECUTOR]: Your Honor, I believe that would be the state jail division.
THE COURT: Excuse me. State jail division. Thank you.
—to the state jail division be delivered to the sheriff of Denton County, Texas, to serve out the confinement period in the state jail facility for a period of two years. You’re ordered — you’re remanded to the custody of the sheriff and — I did assess the fine as well.
You’re, again, remanded to the custody of the sheriff of Denton County until he can carry out the directions and instructions of the sentence. Your sentence will commence this day and you will receive credit for any time periods of detention as provided by law.
These proceedings are concluded. [Emphasis added]

On August 13, one week after the trial court imposed the two-year sentence, the trial judge ordered the parties back to court, set aside the two-year sentence, and imposed a sentence of eight years’ confinement in the IDTDCJ and a $10,000 fine.

In criminal trials, the court “may not receive a verdict ... and enter another and different judgment from that called for by the [jury] verdict.” A trial judge is without authority to enter a judgment notwithstanding the verdict (jnov) in a criminal case. Consequently, the trial court was obligated to enter the jury’s deadly weapon finding unless the trial court granted a motion for new trial. Appellant filed no motion for new trial before the trial court pronounced sentence, and, in a criminal case, only the defendant is authorized to file such a motion. A new trial may not be granted at the State’s request, nor can the trial court grant a new trial sua sponte. Consequently, although the trial judge failed to pronounce the affirmative deadly weapon finding, we cannot say that the judge set aside the deadly weapon finding. Appellant’s punishment therefore had to fall within the range of punishment for a third-degree felony.

The range of punishment for a third-degree felony is imprisonment in the IDTDCJ, a prison, for not less than two nor more than ten years. In addition, a fine of up to $10,000 may be assessed. A state jail felony is punished by incarceration in a state jail felony facility, a jail, not a prison, that is operated by the state jail division. When the trial judge pronounced sentence of “two years in prison in the Texas Department of Criminal Justice and a fine of $10,000,” the judge pronounced a valid sentence.

The State treats the issue as though the trial court’s first attempt to sentence Appellant occurred when the trial judge “sentenced” Appellant to two years in the state jail division. The State, citing Banks v. State, claims that this is a void sentence because the trial court sentenced Appellant to confinement in an unauthorized place. We note for the sake of clarity that it has long been recognized in Texas jurisprudence that “where the place of confinement stated in the jury verdict is unauthorized it may be treated as surplusage, and judgment may be entered by the [c]ourt specifying the proper place of confinement.” But more significantly, we note that the State does not appear to recognize in its brief that the trial court’s first pronouncement of sentence — two years’ confinement in the IDTDCJ — might be valid.

In Tooke v. State, our sister court reversed a trial court’s attempt to resentence a defendant after the trial court initially failed to consider an enhancement charge. The court orally sentenced the defendant to imprisonment for “not less than 5 years nor more than 50 years.” After realizing it had mistakenly overlooked an enhancement paragraph, the court proceeded to resentence the defendant to a term of “not less than 15 years nor more than 50 years.” The defendant argued on appeal that the court erred in resentencing him after the sentence had been entered. Agreeing with the defendant, the Tooke court explained:

After sentence was first imposed on [the defendant], the trial court was without power to set aside that sentence and order a new sentence. Such attempted resentencing was null and void and of no legal effect. The original sentence was a valid and proper sentence. The court’s failure to consider the enhancement paragraph of the indictment prior to first sentencing [the defendant] should not enlarge the court’s power over the case.

The appellate court modified the sentence to reflect the original 5 to 50 years’ punishment.

Similarly, in Dickerson, the First Court of Appeals modified a judgment to reflect the original sentence after a trial court attempted to resentence a defendant with enhancements. The trial court initially held a punishment hearing that included evidence on two enhancement allegations and sentenced the defendant to two years’ confinement. Within a minute after the court pronounced the sentence, however, the State asked if the trial court had considered and included the enhancements. The court then immediately ordered the defendant to return to the bench, retracted the first sentence, and resentenced him to twenty-five years’ confinement. After the defendant complained of the decision to resentence him, the trial court reinstated the original two-year sentence.

The State appealed, claiming that the twenty-five-year sentence should have been upheld because the court “had the authority to correct an error in the assessment of punishment.” In affirming the trial court’s original sentence, the First Court of Appeals explained,

While...the trial court meant to find the enhancement paragraphs true, three things occurred before it did so: (1) the court imposed a lawful punishment; (2) the court pronounced a valid and proper sentence; and (3) [the defendant] accepted that sentence. Under these procedural facts, the trial court was not free to “retract the sentence ... given here” and “resentence” [the defendant], regardless of the fact that the punishment originally assessed was the product of mistake or oversight.

Accordingly, the appellate court modified the judgment by deleting the enhancement finding of “true” and changing the “25 years” to “2 years.” Both Tooke and Dickerson stand for the proposition that a court cannot retract a valid sentence and resentence a defendant to provide for greater punishment. Judge Cochran has clarified this rule in a concurring opinion in McClinton v. State. In reviewing the extent of a trial court’s authority to correct an illegal sentence, Judge Cochran explained that “a trial court ... does not have the inherent authority to modify, alter, or vacate a valid sentence orally imposed solely by means of a later written judgment or docket entry.”

In the case now before this court, the trial court imposed a lawful sentence, immediately replaced it with an unlawful sentence, and then, days later, attempted to replace the unlawful sentence with an otherwise lawful one that greatly increased the punishment. After the trial court imposed a lawful sentence, the trial court was without authority to change it because Appellant had not filed a motion for new trial seeking a different punishment. We therefore sustain Appellant’s fifth point.

Conclusion

Having sustained Appellant’s fifth point, we modify the trial court’s judgment to reflect that Appellant is sentenced to two years’ imprisonment in the IDTDCJ and a fine of $10,000 and affirm the trial court’s judgment as modified.

      . See State v. Lee, 818 S.W.2d 778, 781 (Tex.Crim.App.1991) (holding that appellant who requests jury instruction on lesser included offense is estopped from then complaining on appeal that the evidence failed to establish all the elements of that lesser offense), disapproved on other grounds, Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App.1998).

      . Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

        . Carmouche, 10 S.W.3d at 327-28; Guzman, 955 S.W.2d at 89.

        . Reasor v. State, 12 S.W.3d 813, 817-18 (Tex.Crim.App.2000) (citations omitted).

        . State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

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

      . See Carmouche, 10 S.W.3d at 327-28; Guzman, 955 S.W.2d at 89.

      . Tex.R. Evid. 401.

      . Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App.2004).

      . See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004).

      . See Tex. Penal Code Ann. §§ 12.35(c)(1), 19.05 (Vernon 2003).

      . See id. § 12.35(c)(1).

      . See Tex. Penal Code Ann. §§ 12.35(c)(1) (providing that individual adjudged guilty of a state jail felony shall be punished for a third-degree felony if it is shown on the trial of the offense that a deadly weapon was used), 19.05 (providing that criminally negligent homicide is a state jail felony).

      . We note that below, Appellant raised involuntariness regarding his jury waiver at the punishment phase, but he does not raise it on appeal.

      . State v. Savage, 933 S.W.2d 497, 499 (Tex.Crim.App.1996); see also Tex.Code Crim. Proc. Ann. art. 42.01, § 1(7) (Vernon Supp.2004-05).

      . Tex.Code Crim. Proc. Ann. art. 42.01, § 1(7); Savage, 933 S.W.2d at 499.

      . See Tex.R.App. P.21.1.

      . See id.; MacDonald v. State, 105 S.W.3d 749, 752-53 (Tex.App.-El Paso 2003, pet. ref’d).

      . Perkins v. Court of Appeals, 738 S.W.2d 276, 280-81 (Tex.Crim.App.1987) (orig.proceeding); Wright v. State, 158 S.W.3d 590, 595 (Tex.App.-San Antonio 2005, pet. ref’d); see also Tex.R.App. P. 21.1.

      . See Tex. Gov’t Code Ann. § 493.004 (Vernon 2004).

      . Tex. Penal Code Ann. § 12.34(a) (Vernon 2003).

      . Id. § 12.34(b).

      . See Tex. Gov’t Code Ann. § 507.001(a) (Vernon 2004).

      . 29 S.W.3d 642, 644-45 (Tex.App.-Houston [14th Dist.] 2000, pet. ref’d).

      . Riley v. State, 168 Tex.Crim. 417, 328 S.W.2d 306, 307 (1959); see also Jenke v. State, 487 S.W.2d 347, 348 (Tex.Crim.App.1972).

      . Tooke v. State, 642 S.W.2d 514, 518 (Tex.App.-Houston [14th Dist.] 1982, no pet.).

      . Id. at 516.

      . Id. (emphasis added).

      . Id. at 518.

      . Id.

      . Id.

      . State v. Dickerson, 864 S.W.2d 761, 764 (Tex.App.-Houston [1st Dist.] 1993, no pet.) (op. on reh’g).

      . Id. at 762-63.

      . Id.

      . Id.

      . Id.

      . Id. at 763.

      . Id. (emphasis in original).

      . Id. at 764.

      . 121 S.W.3d 768, 769-73 (Tex.Crim.App.2003) (Cochran, J., concurring).

      . Id. at 771-72 (emphasis added).

      . See Tex.R.App. P.21.1.