text:
    David Charles HOLFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00195-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 12, 2005.
    Discretionary Review Refused Oct. 26, 2005.

      Karen Zellars, Spring, TX, for Appellant.
    Eric Kugler, Assistant District Attorney of Harris County, Houston, TX, for Appel-lee.
    Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
   OPINION

JANE BLAND, Justice.

A jury convicted appellant David Charles Holford of capital murder and assessed punishment at life imprisonment. On appeal, Holford contends that the trial court erred in (1) charging the jury with ambiguous application paragraphs; (2) using a disjunctive jury instruction with a general verdict; and (3) admitting autopsy photographs into evidence. We hold that the trial court did not err in charging the jury and did not abuse its discretion in admitting the photographs into evidence. We therefore affirm.

Facts

David Holford and his co-defendant, Harold Vaughn, were charged with the robbery and murder of eighteen-year-old Trevor Cook. Cook dated Gina Powell, who often visited his apartment. She sometimes would be accompanied by her friend Sheila Bricht.

Cook sold drugs out of his apartment. He kept the bathroom closet, containing his main supply of drugs, locked. Cook allowed clients to view his secondary stash of drugs, which he kept in the kitchen. It was well-known that Cook often kept $1,000 or more worth of cocaine and large sums of cash in the apartment. Cook’s upstairs neighbor, Ryan Wick, advised him to be more careful about showing people his money and drugs.

Holford regularly visited Cook’s apartment to buy cocaine and play video games. Vaughn sometimes accompanied Holford when visiting Cook’s apartment. Vaughn was known for his aggressiveness, and he always carried a knife with him. He also sometimes carried a one-and-one-half foot long, rusty red wrench with a spike on it. Holford knew of Vaughn’s temper. Although Holford had received a monetary settlement from a motorcycle accident in the summer of 2000, the money was under his parents’ control, and he complained about limits on his spending.

In August 2001, Holford confided in one of his friends, Dan Dickerson, that he was thinking about “jacking” Cook or taking Cook’s drugs and money. In early January 2002, Vaughn complained of his financial problems to Holford. Holford stated that he knew someone whom they could jack, but they would have to Mil him.

On January 13, 2002, at approximately 3:00 p.m., Vaughn and Holford were present when Cook transacted a drug deal with one of his friends, Ronald Hornburg. Both Vaughn and Holford remained inside Cook’s apartment while the transaction took place. Sometime between 3:30 and 4:00 p.m., Cook’s neighbor heard the sound of Cook’s gate opening and closing and saw Vaughn emerge from inside the apartment. A short time later, the neighbor heard more noises and saw both Holford and Vaughn outside Cook’s apartment. Ten to fifteen minutes later, Wick heard some loud knocking on Cook’s door, which continued for approximately twenty minutes.

Having unsuccessfully attempted to reach Cook since around noon that day, Powell and Bricht arrived at Cook’s apartment at approximately 4:00 p.m. to return Cook’s truck to his possession, which Powell earlier had borrowed. Cook did not answer his door or his cell phone. Powell noticed that Cook’s bedroom window was unlatched, which she found unusual. The screen over the window was loose and fell to the floor with a mere touch. The women climbed through the window into the apartment. Upon entering Cook’s apartment, the women noticed that his belongings were in disarray and that his dog was acting in a disturbed manner. The women discovered Cook lying on the living room floor in a pool of blood, and they called the police. They then ran upstairs to inform Wick of Cook’s death and to obtain the correct address for the apartment.

While Bricht waited outside for the police, Vaughn walked up with two fresh scratches on his face, wearing one of Cook’s shirts. Vaughn entered the apartment and viewed Cook’s body, but appeared unaffected by what he saw. After saying, “I’ve got to get out of here,” Vaughn left.

Officers James Ramsey and Janet Ned-erland of the Houston Police Department Homicide Division and Crime Scene Investigation unit, respectively, arrived and inspected the apartment. The investigation revealed blood on a washcloth, which DNA testing later matched to Vaughn. The investigation also revealed a broken bathroom closet door. The contents of the closet had been removed.

When Holford’s friend, Dickerson, learned of Cook’s death, he conveyed the information to Holford. Dickerson was shocked that Holford was unsympathetic; he heard Holford say to Vaughn, in a hushed voice, “He heard about the move,” a phrase denoting some illegal activity. The next day, Dickerson called the police and told them that Vaughn and Holford were possible suspects.

Approximately a week after the murder, Christopher Vasquez, a friend of Holford’s, went to Vaughn’s apartment, where he saw Cook’s Gucci hat and approximately fifteen lines of cocaine on the coffee table. In mid-January 2002, Holford tried to sell Cook’s Gucci hat for $100 to Frederick Morris, one of his friends.

Officer Ramsey secured arrest warrants for Holford and Vaughn, and executed both of them at Vaughn’s apartment. A search of the apartment revealed a loaded .380-caliber semi-automatic handgun, a Louis Vuitton wallet containing $843 in cash and Vaughn’s identification, 22 butcher knives, two pocket knives, and Vaughn’s tennis shoes with dried blood on both soles.

After arresting Vaughn and Holford, Officer Ramsey and his partner took the men to the Stafford Police Station for questioning. There, Vaughn revealed that he “got the best of Cook,” knocked him out, and then went into the kitchen to take Cook’s drugs and money. Vaughn saw Holford cutting Cook’s throat and tying a phone cord around Cook’s throat, but stated that he asked Holford to stop. Vaughn conceded that he took $200 cash, drugs, clothing, and a .380 pistol from Cook. He also admitted that he drove Holford home and returned to Cook’s apartment to retrieve his cell phone.

Holford told the police that while he and Vaughn were inside Cook’s apartment, he was looking out of a window and heard Vaughn strike Cook with a large wrench. Holford claimed that he watched as Vaughn threw Cook around the apartment and stabbed him with a knife. Holford claims that he then followed Vaughn into the bedroom, telling Vaughn that they should get out of the apartment. Holford stated that he watched Vaughn ransack the bedroom and take clothes and drugs from it.

Holford confessed to a fellow inmate that he and Vaughn went to Cook’s apartment to rob him. He told the inmate that Vaughn hit Cook, grabbed him and used a knife to cut his neck. While Vaughn used his knife, Holford hit Cook, causing Cook to fall. Vaughn ran out the door while Holford continued to hit and kick Cook. Holford told the inmate that he and Vaughn agreed that they would have to kill Cook because Cook knew them and that they could not use a gun to do it because it would be too loud.

An examination of Cook’s body revealed that he had dozens of blunt-force-trauma injuries on his face and body and a recently knocked-out tooth, and that he had nearly been decapitated. Abrasions on Cook’s skin, including one above his left eyebrow, were consistent with his having being struck by a wrench. A hole in Cook’s right shoulder was consistent with the pointed end of the wrench’s having been driven into the skin.

Holford wore shoes to his trial with soles that matched a bloody mark in Cook’s kitchen. The footprint of these shoes also was consistent with stomp marks on Cook’s body, made while Cook was still alive.

Jury Instructions

Holford’s first four points of error concern the trial court’s instructions to the jury. In his first two issues, Holford contends that the trial judge gave ambiguous application instructions regarding the law of parties. In his third and forth issues, Holford contends that the disjunctive jury instruction denied him a unanimous verdict.

Standard of review

When reviewing a trial court’s jury instructions, we first determine whether the jury charge was erroneous. Nguyen v. State, 811 S.W.2d 165, 167 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd). Error occurs when a jury charge fails to directly apply the law to the facts. Harris v. State, 522 S.W.2d 199, 202 (Tex.Crim.App.1975). An erroneous jury charge does not result in an automatic reversal of a conviction. Tex.Code Crim. Proc. Ann. 36.19 (Vernon 1981); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). Not only must there be error, but a resulting harm that requires reversal must exist. Id. In the present case, Holford did not object to the court’s charge. Reversal thus requires an error that is so egregious and created such harm that Holford was denied a fair and impartial trial. See id.

Application Paragraphs with the Law of Parties

The application paragraph of a jury charge tells the jury under what circumstances it can find the defendant guilty. McFarland v. State, 928 S.W.2d 482, 515 (Tex.Crim.App.1996) (overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App.1998)). Here, Holford’s application paragraphs included the possibility of finding guilt under the law of parties. Under the law of parties, a person may be criminally responsible for the murder committed by another person if “acting with intent to promote or assist” the murder, “he solicits, encourages, directs, aids, or attempts to aid the other person” to commit the murder. See Tex. Pen.Code Ann. § 7.02(a)(2) (Vernon 2003).

Holford contends that the trial court instructed the jury with ambiguous application paragraphs concerning the law of parties. Holford contends that wording within these paragraphs permitted the jury to convict him as a party to capital murder if he intended to aid only in the robbery, as opposed to the required intent to aid in the murder of Cook. The two application paragraphs at issue are as follows:

If you find from the evidence beyond a reasonable doubt that on or about the 13th day of January, 2002, in Harris County, Texas, Harold Louis Vaughn, did then and there unlawfully, while in the course of committing or attempting to commit the robbery of Trevor Cook, intentionally cause the death of Trevor Cook by cutting Trevor Cook with a deadly weapon, namely, a knife, and that the defendant, David Charles Holford, with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid Harold Louis Vaughn to commit the offense, if he did; or
If you find from the evidence beyond a reasonable doubt that on or about the 13th day of January, 2002, in Harris County, Texas, Harold Louis Vaughn, did then and there unlawfully while in the course of committing or attempting to commit the robbery of Trevor Cook, intentionally cause the death of Trevor Cook by striking Trevor Cook with a deadly weapon unknown to the Grand Jury, and that the defendant, David Charles Holford, with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid Harold Louis Vaughn to commit the offense, if he did;
... then you will find the defendant guilty of capital murder, as charged in the indictment.

Holford mis-quotes these paragraphs in his brief. He erroneously substitutes the phrase “the offense of robbery” in place of “the robbery.”

Both parties cite to Barnes v. State, 56 S.W.3d 221 (Tex.App.-Fort Worth 2001, pet. ref'd) as persuasive authority. The application paragraph in Barnes instructed the jury that the defendant was guilty of the offense of capital murder if it found “from the evidence beyond a reasonable doubt that on or about the 11th day of October, 1997, in Tarrant County, Texas, Carlis Russell, did intentionally cause the death of an individual, [C.H.], by shooting her with a deadly weapon, to-wit: a firearm, and the said Carlis Russell was then and there in the course of committing or attempting to commit the offense of robbery of [C.H.], and [appellant], acting with the intent to promote or assist the commission of the offense of capital murder, if any, solicited, encouraged, directed, aided or attempted to aid Carlis Russell in the commission of the offense.” Id. at 235 (emphasis in original).

The Barnes court found that the trial court properly instructed the jury, by requiring it to find that defendant assisted in the murder and not just in the robbery. The court noted that the prepositional phrase “in the commission of the offense” referred to the previous phrase “the offense of capital murder.” Id.

Here, as in Barms, the charge describes the capital murder as necessarily occurring “while in the course of committing or attempting to commit the robbery.” Unlike Barms, the charge does not refer to the robbery as “the offense.” Rather, the charge requires the jury to find that Hol-ford promoted or assisted Vaughn in intentionally causing the death of Cook, while in the course of committing or attempting to commit robbery. Read logically, the prepositional phrase “with the intent to promote or assist the commission of the offense” refers to Cook’s murder, that occurred “while in the course of committing or attempting to commit the robbery.” Likewise, the clause “solicited, encouraged, directed, aided or attempted to aid Harold Louis Vaughn to commit the offense” refers to Cook’s murder.

Furthermore, any error in the application paragraphs could not have caused Holford “egregious harm,” a requirement because Holford did not object to the instruction. To determine whether a defendant has sustained egregious harm from an un-objected to instruction, we consider (1) the entire charge; (2) the state of the evidence, including contested issues; (3) arguments of counsel; and (4) any other relevant information. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996).

In the present case, the jury charge read in its entirety clearly instructed the jury that, before it could find Holford guilty under the theory of the law of parties, it had to find that he participated and intended both the robbery and the murder. For instance, the paragraph immediately preceding the application paragraphs cautioned the jury that these elements were necessary:

Before you would be warranted in finding the defendant guilty of capital murder, ... you must find from the evidence beyond a reasonable doubt that the defendant, David Charles Holford, with the intent to promote or assist in the commission of the offense ofrobbe't'y, if any, solicited, encouraged, directed, aided, or attempted to aid Harold Louis Vaughn in cutting or striking Trevor Cook, if he did, with the intention of thereby killing Trevor Cook....

(Emphasis added).

Second, counsel for both the State and Holford argued to the jury that in order to convict Holford, it must find that Holford intended Cook’s murder. Finally, the State presented ample evidence to convict Holford and Holford has not challenged the sufficiency of that evidence. We hold that, even if the trial court erred in the wording of the application paragraphs, the error is not egregious.

Disjunctive Jury Charge

In his third and forth issues, Hol-ford contends that a disjunctive jury charge with a general verdict form deprived him of a unanimous finding, because it is possible that some of the jurors did not unanimously agree on the underlying theories of the State’s case.

In reviewing a disjunctive jury charge, we first determine whether the separate application paragraphs contain different criminal acts or whether they merely instruct as to different means of committing a single offense. If the disjunctive paragraphs contain different criminal acts, then the jury must be instructed that it cannot return a guilty verdict unless it agrees unanimously that the defendant committed one of the acts. Ngo v. State, No. PD-0504-04, 2005 WL 600853, *3 (Tex.Crim.App., March 16, 2005) (designated for publication) (holding that because defendant was charged with three different criminal acts of credit card abuse, jury had to unanimously agree that defendant did at least one of three different things: steal the credit card, knowingly receive the stolen credit card, or fraudulently present stolen credit card with intent to obtain benefit). If the disjunctive paragraphs merely inform of different means of committing a single offense, then the jury does not have to unanimously agree on which alternative means the defendant used to commit the offense. Kitchens v. State, 823 S.W.2d 256 (Tex.Crim.App.1991). In determining whether the paragraphs are separate criminal acts or separate means of committing one act, “[a] handy, though not definitive, rule of thumb is to look to the statutory verb defining the criminal act.” Ngo, 2005 WL 600353 at *4 n. 24.

The facts here are similar to those in Kitchens v. State, 823 S.W.2d 256 (Tex.Crim.App.1991). In Kitchens, the jury charge presented two alternative theories of capital murder — one in the course of aggravated assault and the other in the course of robbery. The Court of Criminal Appeals held that if alternative theories of the same offense are submitted to the jury in the disjunctive, then the jury may return a general verdict as long as the evidence is sufficient to support a finding under any of the theories submitted. Id. at 258. No general requirement exists that the jury reach agreement on the preliminary factual issues that underlie the verdict. Id. at 259.

Likewise, in Schad v. Arizona, 501 U.S. 624, 642-44, 111 S.Ct. 2491, 2502-03, 115 L.Ed.2d 555 (1991), the United States Supreme Court concluded that it is not unconstitutional to instruct a federal jury that it could find a defendant guilty of felony murder or premeditated murder within a single guilty verdict form. No general requirement exists as part of the due process clause that a jury agree on the preliminary facts underlying a verdict. Id.

Here, Holford is charged with committing capital murder. The application paragraphs permitted the jury to find Holford guilty upon finding that: (1) he committed the capital murder; or (2) Vaughn committed the murder, and Holford was criminally responsible for it under either the law of parties or as a conspirator. See Tex. Pen. Code Ann. §§ 7.02(a)(2), 7.02(b). Only one statutory verb defines the criminal act— causing the death of Cook during a robbery. Each of the disjunctive paragraphs thus describes a different means of committing the same act. The paragraphs instructing on conspiracy and law of parties include a transferred intent as a potential means of committing the offense, but the transferred intent ultimately relates to the same actus reus. Here, as in Schad and Kitchens, the actus reus of Holford’s offense was murder. We hold that the trial court’s instructions require the jurors to agree that Holford committed that single act (either directly or via transferred intent), and thus the trial court did not err in failing to instruct the jury that it must agree unanimously on the manner of Cook’s murder.

Holford attempts to distinguish Kitchens by contending that it did not involve erroneous application paragraphs. We have held that the trial court did not err in its submission of the application paragraphs, thus this distinction is without merit. Moreover, Holford’s complaint about the application paragraphs does not attack the use of the alternative theories of the means of the murder. Instead, he complains that “offense” was ambiguous as to its antecedent.

The trial court instructed the jury to find Holford guilty if he committed one act and one offense — the capital murder of Cook. The State’s case presented alternative theories of the method Holford used to commit the offense, and the State offered evidence to convict Holford based on each alternative. On appeal, Holford has not challenged the sufficiency of that evidence in any respect. We hold that the trial court did not err in submitting a disjunctive jury charge with a general verdict for the single offense of capital murder.

Admissibility of Autopsy Photographs

In his last issue, Holford contends that the trial court abused its discretion in admitting three colored autopsy photographs: State’s Exhibit 305 (a photograph of the decedent’s brain after the skull had been cut open) and State’s Exhibits 318 and 319 (photographs of the decedent’s lung). Holford contends that the photographs were not helpful to the jury in resolving any contested issues of fact. Moreover, he contends that any probative value of the photographs substantially is outweighed by their prejudicial impact on the jury.

Standard of Review

The trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g).

Standard to Admit Photographs

As a general rule, a photograph is admissible if it is relevant to a material issue and is an accurate representation of its subject as of a given time. DeLuna v. State, 711 S.W.2d 44, 46 (Tex.Crim.App.1986). Generally, relevant evidence may be excluded if its probative value substantially is outweighed by the danger of unfair prejudice. Tex.R. Evid. 403. We apply Rule 403 to these photographs and determine whether they assist the jury with its decision of guilt and are relevant, legitimate and logical to the testimony that they accompany. If helpful, photographs are admissible unless “the emotional and prejudicial aspects substantially outweigh the helpful aspects.” Era zo v. State, 144 S.W.3d 487, 491-92 (Tex.Crim.App.2004).

State’s Exhibit 305, 318 and 319

Holford contends that State’s Exhibits 305, 318, and 319 could not have been helpful to the jury because he did not dispute the severity of the injuries or the cause of Cook’s death. Holford did not need to dispute these facts to make the photographs probative. First, the autopsy photographs are material to the trial because they show Cook’s injuries. See id. 144 S.W.3d at 494 (finding photographs could be helpful to juries, in part, because they show wounds suffered by victim for whose death defendants were on trial). Second, with Holford’s consent, the State presented the direct examination of most of its witnesses simultaneously before both Holford’s and Vaughn’s juries. The medical examiner testified, and introduced his autopsy photographs, before both juries. Therefore, in determining the relevancy of these photographs, we look to the issues raised in both Holford’s and Vaughn’s trials.

The medical examiner used the photographs of the decedent’s lung (State’s Exhibits 318 and 319) to illustrate that the stab wounds in Cook’s back were deep enough to puncture his lung. He also used these photographs to illustrate the discoloration caused by the blood inhaled into the lung, a sign that Cook was alive when his throat was cut.

The medical examiner used the photograph of Cook’s brain inside the skull (State’s Exhibit 305) to illustrate multiple areas of bleeding, bruising and hemorrhaging on the undersurface of the decedent’s scalp, matching the injuries on Cook’s head. He also used this photograph to illustrate that the brain was surrounded by collections of blood, supporting his opinion that the trauma to Cook’s head could have been the cause of his death. Evidence that trauma to Cook’s head was severe enough to kill him was relevant because Vaughn told the police that although he “knocked” Cook out, Holford cut Cook’s throat.

We conclude that the autopsy photographs were probative of the nature of the injuries to Cook and that they were helpful to the jury in determining Hol-ford’s and Vaughn’s participation in Cook’s death. We next determine whether the prejudicial effect of the three photographs substantially outweighs their relevance. Tex.R. Evid. 403. We consider the probative value of the evidence, the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way, the time that the proponent needs to develop the evidence, and the proponent’s need for the evidence. Erazo, 144 S.W.3d at 489. In the context of photographs, we also consider the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up shots or of the whole body, whether the body is naked or clothed, the availability of other means of proof, and other circumstances unique to the individual case. Id. at 489 (citing Narvaiz v. State, 840 S.W.2d 415 (Tex.Crim.App.1992)).

Autopsy photographs generally are admissible unless they depict mutilation of the victim caused by the autopsy itself. Rojas v. State, 986 S.W.2d 241, 249 (Tex.Crim.App.1998). When photographs depict internal organs that have been removed to portray the extent of the injury to the organs themselves, the photographs are not considered to be depictions of mutilation of the victim by autopsy. Salazar v. State, 38 S.W.3d 141, 151-52 (Tex.Crim.App.2001).

Here, the three photographs were admitted during the medical examiner’s testimony. Such testimony constituted less than two out of the fifty-four pages of the medical examiner’s direct testimony, and out of the six volumes of testimony in the record — not an unreasonable amount of time.

The photographs are not particularly gruesome or emotionally charged, when compared with photographs, admitted into evidence without objection, of the crime scene, showing a nearly decapitated and badly beaten body in a pool of blood. The autopsy photographs are not large: they are approximately three and one-half by five inches in size. None of the photographs at issue show Cook’s entire body. The photographs show only minimal damage caused from the autopsy. See Prible v. State, No. AP-74487, 2005 WL 156555, at *10 (Tex.Crim.App. Jan. 26, 2005) (designated for publication) (disembodied organs are not highly emotional, they are clinical).

The photographs are three in number. Although Cook’s death was one of the more traumatic ones that the medical examiner had seen, the State introduced only twenty-five photographs. The medical examiner testified that out of the numerous photographs taken, he chose those which best show the injuries to Cook. He further stated that they were necessary to show to the jury the nature of the decedent’s injuries. We conclude that the probative nature of State’s Exhibits 305, 318, and 319 is not substantially outweighed by any prejudicial effect. The trial court thus did not abuse its discretion in admitting the autopsy photographs into evidence.

Conclusion

We conclude (1) the application paragraphs of the charging instructions are not ambiguous and, even if they are, the instructions did not result in egregious harm to the defendant; (2) the disjunctive charging instructions did not deny Holford a unanimous verdict; and (3) the trial court did not error in admitting autopsy photographs into evidence. We therefore affirm the judgment of the trial court.

      . This Court affirmed the judgment of conviction of Holford's co-defendant, Harold Vaughn, in a memorandum opinion issued on March 23, 2005 (Vaughn v. State, No. 01-04-00193-CR, 2005 WL 497301 (Tex.App.-Houston [1st Dist.] 2005, no pet. h.) (mem.op.) (not for publication)).

      . Holford generally contends that the Fourteenth Amendment to the United States Constitution guarantees him a unanimous verdict. Holford fails to present any argument to support this contention other than to state that "the United States Supreme Court has not directly addressed the issue of the due process clause as it relates to [his] unanimity issue.” We note that the Court of Criminal Appeals has held that "the Texas requirements for a unanimous jury verdict 'are not identical to the requirements under federal law.’ ” Ngo v. State, No. PD-0504-04, 2005 WL 600353, *3 n. 24 (Tex.Crim.App., March 16, 2005) (designated for publication) (quoting Francis v. State, 36 S.W.3d 121, 125 n. 1 (Tex.Crim.App.2000) (Womack, J. concurring)). Therefore, in order to address Holford’s Fourteenth Amendment argument, our discussion includes an analysis under federal law.

      . We acknowledge that, in Ngo, the Court of Criminal Appeals observed that the United States Supreme Court distinguished Schad in Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). In Richardson, the Supreme Court held that the federal continuing criminal enterprise statute requires jurors to agree unanimously upon which acts — or drug sales — the defendant committed. In so holding, the Court confirmed that a jury in a robbery case does not have to agree on the underlying facts, such as whether the defendant used a knife or a gun to create a threat, as long as it agrees that the defendant threatened to use force. Id. at 817, 119 S.Ct. 1707 (discussed in Ngo, 2005 WL 600353 at *5 n. 31). In this case, however, as in Kitchens and Schad, the disjunctive paragraphs concern only one actus reus.

      . At trial, Holford "generally” objected to the admissibility of twenty-six autopsy photographs, but focused only on three of them. On appeal, Holford discusses these three photographs only. Holford thus has waived his appeal as to the remaining photographs, because he failed to present any argument or authority to this court. Tex.R.App. P. 38.1(h).

      . The trials of Holford and his co-defendant were partly consolidated. By agreement of the parties, separate juries were impaneled. The direct examination of most of the State's witnesses was heard by both juries even though each defendant conducted cross-examination before only his own jury.


source: Caselaw Access Project

author: JANE BLAND, Justice.

license: Public Domain

text:
    MASONIC BUILDING ASSOCIATION OF HOUSTON, INC., Appellant, v. Hal D. McWHORTER and Christina McWhorter, Appellees.
    No. 01-03-01060-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 12, 2005.

      Richard L. Petronella, Petronella Law Firm, P.C., Houston, TX, for Appellant.
    Allan D. Goldstein, Morris, Lendais, Hollrah & Snowden, Houston, TX, for Ap-pellee.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

JANE BLAND, Justice.

The Masonic Building Association of Houston, Inc. (the MBA), appellant, sued Hal D. McWhorter and Christina McWhorter, appellees, seeking to enjoin the McWhorters from encroaching upon the MBA’s property via a wood fence. The McWhorters answered and counterclaimed, seeking to quiet title as to the boundary of the property, and alleging adverse possession for more than ten years. The jury found that the McWhort-ers, together with their predecessors in interest, had possessed the property adversely along the fence line for more than ten years, and the trial court rendered judgment based on the jury’s verdict. We conclude that sufficient evidence supports the jury’s adverse possession finding as to the middle section of the existing fence, but that as a matter of law, the McWhort-ers did not prove adverse possession as to the rear section of the fence and as to a hedge boundary because no hostile, adverse use existed for the' requisite ten years. We therefore affirm in part, reverse and render in part, and remand the issue of attorney’s fees to the trial court.

The Facts

The property in dispute, located at 32 Pinedale, Houston, Harris County, Texas, is 116 feet long (north to south) and 4.73 feet wide (east to west), for a total of 576 square feet. The disputed property is comprised of three sections: the front, middle, and rear. In the front section, a planted hedge extends from Pinedale Street to the front of the house (“the hedge section”). In the middle section, an older wooden fence runs along the length of the house, from north to south, extending until a line perpendicular with the front of the garage (“the middle section”). In the rear section, a newer wooden fence runs along the length of a two-story brick garage to the rear boundary of the property (“the garage section”).

One end of a mechanical iron gate separates the hedge and middle sections. The gate runs east to west across the disputed property. This gate weighs about 700 pounds and is covered in wood. The center of the iron gate is attached to an electronic “arm” or “bar” that connects to an electronic box. When activated by an automatic opener, the electronic arm opens and closes the gate. The electronic box and arm, without which the gate could not open, are affixed to the disputed property.

In the late 1970’s, David Rubenstein acquired 32 Pinedale from his mother. He testified that a wire or cyclone mesh fence existed between his property and the MBA, which he believed indicated the boundary line. The wire fence had metal posts and “wire that you can see through.” Rubenstein could not remember the exact length of the wire fence, but thought it ran “down by the garage,” and not the “whole length of the property.” In 1985, he removed the wire fence and built a wooden fence along the existing fence line in the middle section. He also built the mechanical iron gate in the driveway, and affixed it to the disputed property. Rubenstein maintained the fence line and the property enclosed within it. Rubenstein testified that he did not intend to take the MBA’s land, but he did enclose the land and use it.

In 1989, Andrew and Catherine Echols purchased 32 Pinedale from Rubenstein. Andrew Echols testified that, at the time he purchased the property, the wooden fence ran from the front of the house to the front of the garage — enclosing the middle section. He assumed the fence line was the boundary between his property and the MBA. Echols recalled “some sort of plants” in the front of the property, but he could not remember if the plants were in the same place as the hedges that exist today. Echols testified that the fence ended at the front of the garage, and that no fence or enclosure extended along the fence line from the garage to the rear of the property. Echols maintained the property within the entire boundary line.

In February 1993, the McWhorters purchased 32 Pinedale from the Echols for about $195,000. The McWhorters likewise had no intention to take the MBA’s land. At the time of purchase, the older wooden fence, built in 1985, remained, enclosing the middle section. Sometime in 1993, McWhorter extended the fence line by adding 22 feet of a newer wooden fence, enclosing the garage section. He described this fence as having a “lean-to coming out” of it.

In the front section of the disputed property, McWhorter planted a shrubbery hedge that extends from the wooden fence in the middle section toward Pinedale Street. He testified that he planted the hedge along an existing shrub line: “Shortly after we moved in our house in '93, it was clear — you could see an existing shrub line that had been there previous. It was dead.” He explained that “you could trail the delineating line from the fence line towards the street.” McWhorter asked the MBA president, Phillip Von Stephens, about planting a new shrubbery line “that would be a continuation of the boundary line between our two properties.” Von Stephens agreed and shared in the expenses. In 1998, McWhorter planted additional shrubs that extended still further along the front of the property up to Barkdull Street. Von Stephens again agreed that McWhorter could plant the new shrubs. The newer shrubs extend in a curve to incorporate a large tree. The McWhorters do not claim the property along the 1998 shrubs, but do claim the hedge section planted in 1993.

Paul McGaughy, the McWhorters’ neighbor, lived behind 32 Pinedale for approximately thirty-three years. McGau-ghy testified that a wire fence ran along the rear and middle sections, but he could not remember if it ran along the front section. McGaughy testified that Ruben-stein removed the wire fence and built a wooden fence where the wire fence had been, but only in the middle section. Ru-benstein never erected a wooden fence in the garage section to replace the wire fence. McGaughy further testified that the wire and wooden fences were in plain view, and he believed that the fence was and is the boundary fine between the two properties.

The MBA never used nor occupied the land within the wooden fence. In 1997, the MBA negotiated with a nearby church to sell its parking lot property. A survey of the property indicated that the McWhorters’ fence encroached onto the MBA property. The MBA demanded that the McWhorters remove the fence, and the McWhorters refused.

The Procedural History

In September 2001, the MBA sued the McWhorters, seeking a permanent injunction requiring that the McWhorters remove the fence and other encroachments from the property, and seeking rents and attorney’s fees. The McWhorters filed an answer and counterclaim, seeking ownership of the property and alleging adverse possession of it for more than ten years. The MBA specially excepted to the McWhorters’ counterclaim, asserting that the McWhorters did not properly plead a trespass to try title claim. On May 1, 2002, the trial court granted the MBA’s special exceptions, and ordered that the McWhorters replead. On September 2002, the parties agreed to a continuance, in hope of reaching an out-of-court resolution. The parties did not settle, and the McWhorters filed second and third amended answers, neither containing any legal description of the property.

At trial, the jury found that the McWhorters, and their predecessors in privity of estate; adversely possessed the entire property in dispute, including the hedge, the middle, and the garage sections. The trial court rendered judgment on the jury’s verdict.

Failure to Plead a Description of the Property

At the outset, the MBA contends that the McWhorters faded to plead a legal description of the disputed property by metes and bounds. On June 16, 2003, during a pretrial conference, the McWhorters offered defendants’ exhibits 3 and 4, that contained survey drawings and a metes and bounds legal description of the property. The MBA objected on the grounds that, in a trespass to try title suit, a plaintiff must include in the petition a “description of the premises by metes and bounds, or with sufficient certainty to identify the same, so that from such description possession thereof may be delivered.” Tex.R. Crv. P. 783(b). The McWhorters’ live pleading at that time, their third amended answer, did not include such a description.

The trial court overruled the objection and granted the MBA a running objection. The McWhorters sought, and the trial court granted, leave to amend their pleadings. The trial court also granted a continuance to the MBA until June 23, 2003, to permit those involved in the trial to attend a funeral. On June 17, 2003, the McWhorters filed a fourth amended answer that included legal descriptions of the property. The court called the case to trial on June 23, 2003.

Under Texas Rule of Civil Procedure 63, parties must amend their pleadings seven days before trial, unless the trial court grants leave to amend. See Tex.R. Crv P. 63. The McWhorters assert that, due to the trial continuance, they timely filed their Fourth Amended Petition seven days before trial, in accordance with Rule 63. The Texas Supreme Court, however, has applied Rule of Civil Procedure 4 to the computation of the time constraints in Rule of Civil Procedure 63. Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex.1995). Rule 4 provides that the first day of a time period is not to be counted, but the last day of the period is to be included unless it is a Saturday, Sunday, or legal holiday. Tex.R. Civ. P. 4.

Here, the McWhorters amended their pleading on Tuesday, June 17, 2003, and trial began on Monday, June 23, 2003. Under Rule 4, we do not count the day the McWhorters amended their pleading. See Id.; see also Sosa, 909 S.W.2d at 895. The trial began on the sixth day from the date of the filing, one day too soon. See Tex.R. Civ. P. 63.

Although the McWhorters did not file their amended pleading within the period prescribed by Rule 63, the McWhorters requested, and the trial court granted, leave to amend the pleadings. See Id. Under our rules, a trial court shall grant leave to amend the pleadings, unless the filing operates to surprise the opposing party. Id. Construing Rule 63, the Texas Supreme Court has held that “[a] court may not refuse a trial amendment unless (1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face.” State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.1994) (citing Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex.1990)). Moreover, the burden of showing surprise or prejudice rests on the party resisting the amendment. Id. (citing Greenhalgh, 787 S.W.2d at 939). We review the trial court’s ruling under an abuse of discretion standard. Id.

The MBA contends that it was surprised by the amended petition because it did not know whether the McWhorters sought the hedge, middle, or rear sections of the property by adverse possession. In its first amended answer, however, filed over sixty days before trial, the MBA asserted a defense that the “rear” and “hedge” portions of the fence had not been in place in excess of ten years. The pleading thus indicates that the MBA knew that the McWhorters claimed a right to title of the entire fence line boundary, including the hedge and rear sections. Moreover, the parties together hired and designated an expert surveyor, Ernest Roth, who prepared a survey and metes and bounds description of the disputed property. Based on this common expert, the pleadings, and the apparent location of the fence, hedge, and garage, the trial court did not err in refusing to heed the MBA’s claim of surprise.

In Vargas v. Vaca, the San Antonio Court of Appeals held that a trial court did not abuse its discretion in allowing a trial amendment that contained a sufficient description of the disputed land by metes and bounds, because the parties were aware of the disputed strip of land and of its location. 376 S.W.2d 65, 66 (Tex.Civ.App.-San Antonio 1964, no writ); see also Sterling v. Tarvin, 456 S.W.2d 529, 536 (Tex.Civ.App.-Fort Worth 1970, writ ref'd n.r.e.) (allowing plaintiffs to amend petition before announcing ready for trial because land description was “obvious” and amendment did not surprise parties). For similar reasons, we hold that the trial court did not abuse its discretion in allowing the trial amendment.

Sufficiency of the Evidence

The MBA next contends that the evidence of adverse possession is legally and factually insufficient to support the jury’s verdict. A party seeking to establish title to land by adverse possession has the burden to prove every fact essential to that claim by a preponderance of the evidence. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990). In reviewing a legal-sufficiency point, we consider all of the evidence in the light most favorable to the party in whose favor the verdict was rendered, and we indulge every reasonable inference from the evidence in that party’s favor. Formosa Plastics v. Presidio Eng’rs, 960 S.W.2d 41, 48 (Tex.1998). Anything more than a scintilla of evidence is legally sufficient to support the finding. Id. In reviewing a factual-sufficiency point, we consider all the evidence supporting and contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We set aside the verdict only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Adverse Possession

Adverse possession is “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” Tex. Civ. PRAC. & Rem.Code Ann. § 16.021(1) (Vernon 2002); Rhodes, 802 S.W.2d at 645. A person must bring suit no later than ten years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property. Tex. Civ. Prac. & Rem.Code Ann. § 16.026 (Vernon 2002).

The test for hostility is whether the acts performed by the claimant on the land and the use made of the land were of such a nature and character as to reasonably notify the true owner of the land that a hostile claim was being asserted to the property. Winchester v. Porretto, 432 S.W.2d 170, 174-75 (Tex.Civ.App.-Houston [1st Dist.] 1968, writ ref'd n.r.e.). Adverse possession does not have to continue in the same person if privity of estate exists between each holder and his successor. Parker v. McGinnes, 842 S.W.2d 357, 360 (Tex.App.-Houston [1st Dist.] 1992, writ denied). The McWhorters therefore must be in privity of estate with their previous owners in order for the ten-year limitations period to tack from one owner to another. See Tex. Civ. Prac. & Rem.Code Ann. § 16.023 (Vernon 2002).

The Intent to Appropriate

The MBA contends that the evidence is legally and factually insufficient to support the verdict because the McWhort-ers and their predecessors in interest testified that they did not “intend to take” the MBA’s property. The MBA relies on Ellis v. Jansing, in which the Texas Supreme Court held:

Mere occupancy of land without any intention to appropriate it will not support the statute of limitations. No matter how exclusive and hostile to the true owner the possession may be in appearance, it cannot be adverse unless accompanied by the intent on the part of the occupant to make it so. The naked possession unaccompanied with any claim of right will never constitute a bar.

620 S.W.2d 569, 571-72 (Tex.1981) (citations omitted).

To understand the holding in Ellis, one must understand its facts. Ellis involved a tract of land divided into lot 3 to the west and lot 4 to the east. Id. at 569. A.B. Shoemake was the common source of title to both tracts. Id. In 1937, Shoemake dedicated a fifteen-foot easement to the City of Waco for a storm sewer. Id. The easement ran along the western boundary of lot 4 and joined the eastern boundary of lot 3. Id. After dedicating the easement, Shoemake built a concrete retaining wall on lot 4, located three-and-one-half feet east of the easement’s east boundary. Id. A four-foot chain link fence topped the retaining wall, which extended two to three feet above the easement. Id. at 569-70.

The Jansings, the owners of lot 3, sought adverse possession from Ellis and McDonald, the owners of lot 4, of both the easement and the three-and-one-half foot strip of land that ran between the easement and the concrete wall. Id. at 571. The Texas Supreme Court held that the Jansings could not adversely possess the easement because it was dedicated to public use by statute. Id. at 570. With respect to the additional strip of land, Copeland, the Jansings’ predecessor in title, had removed a flower bed next to the concrete wall, planted grass, and maintained the disputed strip. Id. Copeland testified that he took possession of the land assuming that the concrete wall was the boundary line between lots 3 and 4. Id. He further testified that, although he had assumed that he owned the disputed strip, he did not intend to claim any property that belonged to the abutting property owners of lot 4. Id.

The Texas Supreme Court held that Copeland did not have the intent to appropriate the land from the true owner. Id. Even though Copeland had maintained the land and treated it as his own, “the Copeland’s yard was never fenced, and entrance onto the easement and adjoining strip between the easement and retaining wall was not obstructed.” Id. Moreover, Copeland testified that he never claimed or intended to claim any property owned by the abutting property owners. Id. The court held that these facts were legally insufficient to sustain a claim of adverse possession. Id.

The Jansing’s reliance on Shoemake’s concrete wall in Ellis is distinguishable from the McWhorter’s reliance on the Ru-benstein’s fence in this case. In Ellis, Shoemake, the common source of title to both lots 3 and 4, built the concrete wall, the only barrier or obstruction ever erected on the land. See id. A landowner may fence part of his property, but in so doing, he does not disclaim or negate his ownership of his property outside the fenced area. See Cox v. Olivard, 482 S.W.2d 682, 685-87 (Tex.Civ.App.-Dallas 1972, writ refused n.r.e.) (holding that landowner, who placed his fence east of true boundary line due to nature of terrain, did not relinquish rights to his land west of fence, when adjoining property owner occasionally grazed cattle in disputed area). Shoe-make’s concrete wall, which he built on his own property, therefore was not a hostile use. Once Shoemake divided title to the property, no owner of lot 3 — including the Jansings — ever obstructed, fenced, or otherwise used the land in a manner inconsistent with or hostile to the owner of lot 4. See Ellis, 620 S.W.2d at 571. Thus, the Jansings’ reliance on Shoemake’s concrete wall, which was not a hostile use of the property at its inception, was legally insufficient to constitute adverse possession. See id.

Here, Rubenstein was not a common source of title of land on both sides of the fence. Rubenstein did not own the MBA land at the time he erected the fence and enclosed the property to the exclusion of the MBA’s use. He built the fence for privacy and to exclude “late night” activity that occurred on the MBA parking lot. He never contacted anyone at the MBA about his replacement of the cyclone fence with the wood fence. His erection of a fence therefore was a hostile use of his neighbor’s property. See King v. Inwood N. Assocs., 563 S.W.2d 309, 312 (Tex.App.-Houston [1st Dist.] 1978, no writ) (noting fact that adverse possessors’ mistaken belief that they owned land in controversy did not defeat claim).

Here, for over ten years, the MBA did not assert its legal right to the disputed property, and evidence exists that the predecessors in title intended to claim the property as their own. All the parties involved' — the MBA, the McWhorters, the predecessors in interest, and the neighbor-believed that the fence line was the boundary between the two properties. Although the McWhorters did not “intend to take” the MBA’s property because they thought that they rightfully owned the land, the Rubensteins, the Echols, and the McWhorters intended to use the property exclusively as their own — and did use it to the exclusion of the MBA with respect to the middle section. Moreover, even though they may not have consciously intended to deprive the MBA of its title to the land, both the Echols and the Ruben-steins intended to convey the disputed land to their successor in interest. As Mr. Rubenstein testified, “I thought that I was selling them [the Echols] the property, and I assumed that the fence was on the property.” Mr. Echols similarly agreed that he and his wife claimed ownership of the disputed property and intended to transfer to the McWhorters “the fence, and all of the land that was within the fence.” The jury could have concluded, based on the evidence of the hostile fence that excluded use of the land by the MBA, and the evidence of the predecessors’ intent to convey the area within it to a third party, that the predecessors in title did indeed intend to exercise rights to the property that were inconsistent with that of the true owner. We hold that legally and factually sufficient evidence supports the jury’s finding of an intent to appropriate. See Calfee, 544 S.W.2d at 642.

The Middle Section

The wooden fence that Rubenstein built in 1985 existed along the middle section of the boundary, enclosing the disputed land within it for over ten years. It is undisputed that Rubenstein installed the 700-pound, mechanical iron gate in 1985. The electronic box and arm to the mechanical gate, without which the gate could not open, are located in the middle section of the property. The use of the disputed strip within the fence was to the exclusion of the MBA’s use of the land for more than ten years. We thus hold that the evidence is legally and factually sufficient to support the jury’s verdict of adverse possession with regard to the middle section of the property.

The Garage Section

The MBA contends that the evidence is legally and factually insufficient to support the jury’s verdict with regard to the garage section. We agree. In 1993, McWhorter added 22 feet of wooden fencing in the rear section running along the garage. It was undisputed at trial that the fence along the garage had not existed for the requisite ten years.

The McWhorters contend that a wire fence had existed previously along the location of the disputed boundary line, but could offer no evidence at trial to support this contention. Rubenstein could not remember the length of the wire mesh fence that had existed before 1985. It was undisputed at trial, moreover, that Ruben-stein removed this wire fence and replaced it with a wooden fence along the existing fence line in 1985, but only as to the middle section. McGaughy, the neighbor, concurred that Rubenstein removed the wire fence, built a wooden fence in the middle section only, and did not erect a wooden fence in the garage section:

A. What you see as red brick behind the fence, which is a garage. Left that exposed, and ground-in dirt and grass or weeds up to the building.
Q. So no wooden fence was here, in your observation, when the wire mesh fence went down. The wire mesh fence went down, and no wooden fence was re-erected then; correct?
A. There was no wooden fence erected, that’s right.

Echols similarly testified that Rubenstein’s 1985 wooden fence ended at the front of the garage, and “there was no fence that extended from the garage” to the rear of the property.

Regardless of whether a wire fence ran along the garage section at some time before 1985, the testimony is consistent that Rubenstein tore it down in 1985 and did not erect a new fence along that section. The garage wooden fence section did not exist until McWhorter built it in 1993, and thus ten years did not elapse before the MBA brought suit in 2001. Although the evidence indicates that all of the predecessors in title cut the grass and maintained the disputed area along the garage section, this evidence is not legally sufficient for adverse possession. See Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985) (holding that mowing grass, planting flowers, and maintaining hedges are not sufficient hostile acts for adverse possession). Thus, no evidence supports the jury’s conclusion that the McWhorters adversely possessed the garage section of the property with any “actual and visible appropriation of real property.” See Tex. Civ. PRAC. & Rem.Code Ann. § 16.021(1).

The McWhorters respond that the middle fence “marked the boundary line, and the front and rear portions of the fence were simply continuations of that boundary line.” They rely on Yates v. Hogstrom for the proposition that “a line may be established as a true boundary line of a tract of land by recognition and acquiescence in the line as the true line by all interested parties for a sufficient length of time.” 444 S.W.2d 851, 853 (Tex.Civ.App.-Houston [14th Dist.] 1969, no writ). Yates is distinguishable because, in that case, the “boundary line” was an actual fence that had existed for ten years. Id. at 852. Here, neither a fence nor any other sort of obstruction separated the garage section from the remainder of the MBA’s property for the requisite ten years.

The McWhorters also rely on the ranching case of Fish v. Bannister, 759 S.W.2d 714 (Tex.App.-San Antonio 1988, no writ). Fish is likewise distinguishable because a fence separated the Fish and Bannister ranches for more than fifty years. Id. at 716. The McWhorters cite no other case law to support their contention that a hypothetical continuation of an existing fence line — as opposed to an actual fence— is legally sufficient to establish adverse possession. We hold that legally insufficient evidence supports the McWhorters’ claim for adverse possession of the garage section.

The Hedge Section

The MBA contends that the evidence is also legally and factually insufficient to support the verdict with regard to the hedge section at the front of the property. We agree. The MBA relies on Bywaters v. Gannon, in which the Texas Supreme Court held that “[s]ince mowing the grass and planting flowers does not constitute a hostile character of possession sufficient to give notice of an exclusive adverse possession, it stands to reason that maintaining a hedge does not either.” 686 S.W.2d at 595.

The McWhorters respond that, in Julien v. Baker, the Fourteenth Court of Appeals held that “planting a hedge” to create a barrier or fence — as opposed to “maintaining a pre-existing hedge” — is a sufficiently permanent, visible and unequivocal act to evidence a hostile character of possession, to give notice to the true owner of the claimant’s adverse possession. 758 S.W.2d 873, 876 (Tex.App.-Houston [14th Dist.] 1988, writ denied).

Julien is distinguishable because in that case the property owner planted the hedge more than ten years before the suit. Id Here, the McWhorters concede that they did not plant the existing hedge until sometime in 1993 — and whatever it replaced was gone or dead. Thus, even if a hedge could constitute evidence of a permanent, hostile use, in circumstances that are distinguishable from Gannon, we need not decide that here, because the hedge in this case did not exist for the requisite ten years.

As they do with the garage section, the McWhorters similarly contend that the hedge is a continuation of the middle fence line boundary, which existed for the requisite time frame. The McWhorters cite no case law to support that a continuation of a hypothetical fence line, as opposed to an actual fence or other obstruction, is sufficient to establish adverse possession. We therefore hold that, as a matter of law, the McWhorters did not establish a claim for adverse possession of the hedge section.

Jury Charge

The MBA contends that the trial court erred in charging the jury. The MBA objected to jury charge questions 1(a), 1(b), and 1(c) because those questions included property descriptions that the McWhorters did not timely plead. The trial court overruled the MBA’s objections. As set forth above, we hold that the trial court did not abuse its discretion in granting the McWhorters leave to amend their pleadings to include legal descriptions of the property. Accordingly, we hold that the trial court did not err ■ in including those property descriptions in the jury charge.

Attorney’s Fees

The McWhorters and the MBA stipulated that they would submit the issue of attorney’s fees to the trial court if the MBA prevailed. “In a suit for the possession of real property between a person claiming under record title to the property and one claiming by adverse possession, if the prevailing party recovers possession of the property from a person unlawfully in actual possession, the court may award costs and reasonable attorney’s fees to the prevailing party.” Tex. Civ. Prac. & Rem. Code Ann. § 16.034 (Vernon 2002). We hold that the MBA has prevailed with regard to the garage and hedge sections of the property;. therefore, we remand the issue of attorney’s fees to the trial court.

Conclusion

We hold legally and factually sufficient evidence supports the jury’s finding that the McWhorters acquired title by adverse possession to the middle section of the property. We therefore affirm the judgment of the trial court with respect to that boundary. We hold that the evidence is legally insufficient to support a claim of adverse possession as to the hedge and garage sections of the disputed property because no evidence supports the jury’s finding that the McWhorters and their predecessors in title appropriated the property in an actual and visible manner, hostile to that of the true owner, for more than ten years. We therefore reverse the judgment of the trial court with regard to the hedge and garage sections of the property and render judgment in favor of the MBA. We remand the cause to the trial court for entry of judgment consistent with our decision, and to determine the issue of attorney’s fees.

APPENDIX A

      . We attach as Appendix A an excerpt from trial exhibit 3, a copy of the parties’ joint survey of the property, for the reader's convenience. The property is also known as Lot 23 of Colby Court. The MBA acquired legal and record tide by deed in 1952 to the west 20 feet of Lot 23 of Colby Court. The McWhorters acquired legal and record title in 1993 to the east 30 feet of Lot 23 of Colby Court.

      . In Sosa, the Sosas filed their second amended original petition exactly one week before a scheduled summary judgment hearing. 909 S.W.2d at 895. In applying Rule 4, the court did not count the day on which the Sosas filed the amended petition. Id. The court held that the Sosas timely filed the petition, even though the seventh day was the day of the hearing. Id.

      . The trial court’s charge to the jury in this case properly tracked the language in Ellis, as follows:
      For their possession to be adverse, the claimants need not know that the claimed tract is part of the property to which an adjoining landowner has record title. But the mere occupancy of land without any intention to appropriate it is not adverse possession. No matter what the use and occupancy of the land may be, for possession to be adverse the claimants must intend to appropriate it.

        See Ellis v. Jansing, 620 S.W.2d 569, 571-72 (Tex.1981).

      . The unique facts in Ellis — in which a common owner erected the obstruction upon which a later possessor attempted to rely— accounts for its difference in outcome from that of Calfee v. Duke, 544 S.W.2d 640 (Tex.1976), decided by the court only five years earlier. In Calfee, Justice Reavley, writing for a unanimous court, held that actual, visible possession and use, to the exclusion of others, was sufficient to support a jury’s finding of adverse possession, despite evidence that the possessor was mistaken in his belief that he owned the property, and did not intend to "take” it from the record owners. See id. at 641-42. Ellis did not address the court's decision in Calfee in its analysis. To the extent that Ellis has been read to require an intent to steal the property in dispute, such is not a necessary inference, given its facts. See Comment, Judson T. Tucker, Adverse Possession in Mistaken Boundary Cases, 43 Baylor L.Rev. 389, 404-05 (1991) (emphasis added).

      . Moreover, the McWhorters' discussion with the MBA president, Von Stephens, evidences that the MBA acquiesced in planting the hedge. The MBA received the benefit of the hedge at the edge of its parking lot and paid for half the expenses. The hedge in this case, therefore, is' not a hostile act required for adverse possession — instead, the MBA approved and paid in part for the use of its land. See, e.g., Scott v. Cannon, 959 S.W.2d 712, 722 (Tex.App.-Austin 1998, pet. denied) (granting permission to use land is contrary to hostile occupancy).

      . The MBA also sued the McWhorters for rents; however, it abandons this claim on appeal.


author: TIM TAFT, Justice.

text:
    FORT BEND COUNTY & Kendleton Independent School District, Appellants, v. Elsie MARTIN-SIMON, Appellee.
    No. 01-04-00535-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 12, 2005.

      Damon Dawain Edwards, Michael J. Si-wierka, Linebarger Goggan Blair & Sampson, LLP, Houston, Ernest C. Garcia, and Kent M. Rider, Linebarger, Groggan, Blair, Pena & Sampson, LLP, Austin, for Appellant.
    Betsy L. Grubbs, Houston, for Appellee.
    Jeffrey Ode Webb, Richmond, for Ad Litem.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

TIM TAFT, Justice.

In this appeal, appellants, Fort Bend County and Kendleton Independent School District (“the taxing entities”), challenge the trial court’s entry of a declaratory judgment in favor of appellee, Elsie Martin-Simon. We determine whether (1) the trial court possessed subject-matter jurisdiction to enter the declaratory judgment; (2) the trial court possessed subject-matter jurisdiction to enter an award for attorney’s fees; (3) appellants had standing to attack the trial court’s award of attorney’s fees directly to the Teltschik Law Firm, Elsie Martin-Simon’s attorneys; and (4) the trial court erred in awarding Elsie Martin-Simon all writs and processes necessary for the collection and enforcement of the judgment. We affirm.

Factual and Procedural Background

On August 1, 1991, Lloyd C. Martin deeded his interest in a tract of land in Elizabeth Powell League to his four children in equal parts. On July 1, 1995, Lloyd C. Martin died.

On March 19, 1998, the taxing entities sued Lloyd C. Martin and any unknown heirs for delinquent taxes in cause number 103880. That suit alleged that taxes were due for property described as an undivided interest of 36.52 per cent in 31.5 acres in Elizabeth Powell League for the years 1977,1978, and 1984 through 1991. On the same date, in cause number 103882, the taxing entities sued Elsie Martin-Simon for delinquent taxes on an undivided 25 per cent of the same 31.5 acres in Elizabeth Powell League from 1990 through 1997. In October 1998, Elsie Martin-Simon paid the delinquent taxes for which she had been sued in cause number 103882. That suit was subsequently dismissed.

On October 12, 2001, Elsie Martin-Simon filed an answer and counterclaim in cause number 103880, the suit against her deceased father and any unknown heirs, alleging the affirmative defenses of payment, accord and satisfaction, and release. Three days later, the taxing entities filed an amended pleading in cause number 103880, adding Lloyd C. Martin’s children as defendants. In January 2002, the taxing entities filed, and the trial court granted, a motion for non-suit in cause number 103880.

On January 30, 2004, the trial court entered a declaratory judgment in cause number 103880 in favor of Elsie Martin-Simon, stating that the- ad valorem taxes as to her 25 per cent undivided interest in the property conveyed to her by her father had been fully paid through December 31, 2004. The trial court also awarded Elsie Martin-Simon $10,000 for trial fees, and an additional $30,000 and $50,000 for successful appeals to the Court of Appeals and Texas Supreme Court, respectively. It is from this judgment in cause number 103880 that the taxing entities appeal.

Jurisdiction

In their first issue, the taxing entities contend that the trial court lacked subject-matter jurisdiction to enter a declaratory judgment in cause number 103880 because the declaration merely clarified Elsie Martin-Simon’s rights with respect to the previous judgment in cause number 103882. The taxing entities also contend that the trial court lacked subject-matter jurisdiction to enter the declaration because Elsie Martin-Simon’s counterclaim sought no relief beyond a declaration that the plaintiffs’ claims were unfounded, which was merely a restatement of her answer and was not a separate claim for relief. Finally, the taxing entities assert that the trial court lacked subject-matter jurisdiction over the declaratory judgment cause of action because they enjoy governmental immunity from suit.

The purpose of a declaratory action is to establish existing rights, status, or other legal relations. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995); Republic Ins. Co. v. Davis, 856 S.W.2d 158, 164 (Tex.1993). The Declaratory Judgments Act (“the Act”) is “remedial” only. Bonham State Bank, 907 S.W.2d at 467. The Act does not confer additional substantive rights upon parties. Nor does it confer additional jurisdiction on courts. Rush v. Barrios, 56 S.W.3d 88, 105 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). Whether a court has subject-matter jurisdiction to consider an action for declaratory judgment depends upon whether the underlying controversy falls within the constitutional and statutory jurisdiction of that court. “The provisions of [the Act] authorizing the bringing of suit for a declaratory judgment, do not in any way change the law as to jurisdiction of Texas courts.” Connor v. Collins, 378 S.W.2d 133, 134 (Tex.Civ.App.-San Antonio 1964, writ dism’d).

A declaratory judgment is appropriate only if there is a justiciable controversy about the rights and status of the parties and the declaration will resolve the controversy. Bonham State Bank, 907 S.W.2d at 467. “To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute.” Bexar-Medina-Atascosa Counties Water Control & Improvement Dist. No. 1 v. Medina Lake Prot. Ass’n, 640 S.W.2d 778, 779-80 (Tex.App.-San Antonio 1982, writ ref'd n.r.e.); Chapman v. Marathon Mfg. Co., 590 S.W.2d 549, 552 (Tex. Civ. App.-Houston [1st Dist.] 1979, no writ).

The taxing entities first contend that the trial court lacked subject-matter jurisdiction to enter the declaratory judgment because the declaration merely interpreted or clarified Elsie Martin-Simoris rights with respect to the previous judgment rendered in cause number 103882; thus, appellants contend that no justiciable controversy existed between themselves and Elsie Martin-Simon because her request for a declaration concerned an interest in property not the subject of cause number 103880.

Despite the taxing entities’ contention that the trial court’s declaratory judgment merely clarified payment of taxes in cause number 103882, a suit concerning a different property interest, the record reflects otherwise. First, Elsie Martin-Simon did not seek a declaration merely as to the meaning of the judgment in cause number 103882. On January 30, 2004, the trial court held a hearing at which the taxing entities failed to appear. During that hearing, Elsie Martin-Simon testified that she owned an undivided one-fourth interest in property deeded to her by her father and that she had previously been sued by the taxing entities. She requested that the trial court enter a declaration stating that she had paid all of the taxes owed on the property through the end of 2004. The final judgment reflected this testimony and stated that Elsie Martin-Simon had an interest in the tract of land and that the taxes had been fully paid through the end of year 2004. This declaration went beyond the matters upon which the taxing entities had sued in cause number 103882.

Moreover, a justiciable controversy did exist between Elsie Martin-Simon and the taxing entities. In 1991, Lloyd C. Martin deeded all of his interest in the tract of land in question to his four children in equal parts. Elsie Martin-Simon had no interest in, or liability for, the property prior to August 1, 1991. However, the record reflects that Elsie Martin-Simon had tendered payment for taxes assessed on the property during 1990 and 1991. Therefore, an overlap in subject matter existed in causes 103880 and 103882 concerning taxes assessed on the tract of land in 1990 and 1991. Thus, a justiciable controversy existed in cause number 103880 regarding Elsie’s liability for delinquent taxes assessed during years 1990 and 1991 because she had already paid the taxes for those years in cause number 103882.

The taxing entities also contend that the trial court lacked subject-matter jurisdiction to enter the declaratory judgment because Elsie Martin-Simon’s request for declaratory judgment was redundant to the denial of the plaintiffs’ claims, as expressed in her answer. Again, the transcript of the hearing in the trial court and the final judgment reflect that Elsie Martin-Simon sought more than the “mere denial” that she asserted in her answer: the trial court declared that Elsie Martin-Simon had paid all of the taxes due and owing on the property, not only for the years on which the suit was based, but through the end of 2004; it also identified her interest in the property.

Finally, in their reply brief, the taxing entities assert that Elsie Martin-Simon’s declaratory judgment cause of action is barred by governmental immunity from suit. Under the doctrine of governmental immunity, a unit of government may not be sued without the express consent of the Legislature. Thayer v. Houston Mun. Employees Pension Sys., 95 S.W.3d 573, 576 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). We defer to the Legislature to waive immunity from suit because the Legislature is better suited than the courts “to weigh the conflicting public policies associated with waiving immunity and exposing the government to increased liability, the burden of which the general public must bear.” Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex.2002). Such immunity, generally, serves to protect the State and its governmental units from lawsuits for money damages. Gen. Serv. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594 (Tex.2001). This immunity also protects the State and its governmental units from lawsuits that seek to control their lawful actions by a final judgment made by a court of law. Tex. Mun. Power Agen. v. Pub. Util. Comm’n, 100 S.W.3d 510, 515 (Tex.App.-Austin 2003, pet. denied).

In the absence of a waiver of governmental immunity, a court has no subject-matter jurisdiction to entertain a suit against a governmental unit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). When a trial court learns that it lacks jurisdiction to hear a cause, the court must dismiss the cause and refrain from rendering a judgment on the merits. Freedman v. Univ. of Houston, 110 S.W.3d 504, 506 n. 5 (Tex.App.-Houston [1st Dist.] 2003, no pet.).

However, the Texas Supreme Court has noted that certain declaratory judgment actions do not implicate the doctrine of governmental immunity. See, e.g., Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) (declaratory judgment action to determine proper construction of compulsory school-attendance law); Tex. Highway Comm’n v. Tex. Ass’n of Steel Importers, Inc., 372 S.W.2d 525, 530 (Tex.1963) (holding legislative consent not required for declaratory judgment suit against Highway Commission to determine parties’ rights). Most pertinently, the Texas Supreme Court has held that legislative consent is not required for a declaratory judgment suit against the State Comptroller to determine parties’ rights under a tax statute. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945). The governmental immunity doctrine is not implicated in such actions because they do not attempt to subject the State to liability. IT-Davy, 74 S.W.3d at 855. Accordingly, Texas courts “distinguish suits to determine a party’s rights against the State from suits seeking damages,” and “[a] party can maintain a suit to determine its rights without legislative permission.” Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex.1997). Governmental immunity is not applicable in this case because Elsie Martin-Simon’s request for a declaratory judgment lies squarely within the category of suits to determine rights under a tax statute for which legislative permission is not required.

We overrule the taxing entities’ first issue.

Factual Sufficiency

In their second issue, the taxing entities contend that the evidence is factually insufficient to support the trial court’s declaration that Elsie Martin-Simon paid all of the taxes owed on her 25 per cent interest in the property through December 31, 2004.

We need not address this issue because appellants have withdrawn it in their reply brief.

Subject-Matter Jurisdiction to Award Attorney Fees

In their third issue, the taxing entities contend that the trial court lacked subject-matter jurisdiction to award attorney’s fees because it lacked subject-matter jurisdiction to enter the declaratory judgment. Appellants also contend that the trial court’s award of fees was not reasonable, necessary, equitable, or just.

The granting of attorney’s fees in a declaratory judgment action lies within the sound discretion of the trial court and will not be overturned on appeal absent a clear showing that the court abused its discretion. Indus. Structure & Fabrication, Inc. v. Arrowhead Indus. Water, Inc., 888 S.W.2d 840, 844 (Tex.App.-Houston [1st Dist.] 1994, no pet.). A party bringing a counterclaim may recover attorney’s fees under the Declaratory Judgments Act if its counterclaim is more than a mere denial of the plaintiff’s cause of action. Id.

Because we have held that the trial court possessed subject-matter jurisdiction to enter the declaratory judgment, we also hold that the trial court did not lack subject-matter jurisdiction over Elsie Martin-Simon’s request for attorney’s fees for the reason that the taxing entities argue. Id. Because we have held that Elsie Martin-Simon’s counterclaim constituted more than a “mere denial” of the taxing entities’ cause of action, the trial court did not lack subject-matter jurisdiction over Elsie Martin-Simon’s request for attorney’s fees for the reason that the taxing entities argue. See id.

The trial court heard uncontro-verted testimony from Mr. Bradt, Elsie Martin-Simon’s attorney, regarding reasonable and necessary attorney fees prior to making the award. Mr. Bradt testified that he had expended approximately 25 hours on this case and, that in light of his experience, ability, and reputation, that his rate was reasonable. The trial court’s judgment will not be reversed on appeal absent a clear showing of abuse of discretion. Oake v. Collin County, 692 S.W.2d 454, 455-56 (Tex.1985). Given this testimony, we cannot say that the trial court abused its discretion in awarding fees.

We overrule the taxing entities’ third issue.

In their fourth issue, the taxing entities contend that the trial court erred in awarding attorney’s fees directly to the Teltschik law firm because that law firm was not named as Elsie Martin-Simon’s attorney of record in the trial below and because Elsie Martin-Simon did not seek to have the fees awarded directly to the firm in her pleading.

A claim for attorney’s fees belongs to the litigant, not to his attorney. Graco, Inc. v. CRC, Inc. of Tex., 47 S.W.3d 742, 746 (Tex.App.-Dallas 2001, pet. denied). Although attorney’s fees should be awarded to a party, rather than her attorney, a defendant who has been ordered to pay attorney’s fees has no standing to complain if fees are awarded directly to the claimant’s attorney. Id.; Transp. Ins. Co. v. Franco, 821 S.W.2d 751, 755-56 (Tex.App.-Amarillo 1992, writ denied). Thus, the taxing entities do not have standing to complain about the trial court’s award of attorney’s fees directly to the Teltschik Law Firm.

We overrule the taxing entities’ fourth issue.

Enforcement of the Judgment

In their fifth issue, the taxing entities contend that the trial court erred in awarding all writs and processes necessary for collection and enforcement of the judgment against them.

Political subdivisions of the State performing governmental functions are exempt from execution or garnishment proceedings. Delta County Levee Improvement Dist. No. 2 v. Leonard, 516 S.W.2d 911, 912 (Tex.1974) (execution may not be issued on a judgment against a county). Instead, mandamus is the proper remedy by which a judgment can be enforced against a political subdivision of the state. Id. at 912 (citing National Sur. Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690 (Tex.1968)). Through mandamus, the political subdivision can be directed to levy and to collect sufficient taxes to satisfy judgments outstanding against the entity when there are not sufficient funds on hand. Id.

Awarding Elsie Martin-Simon the right to execute the judgment was error, but not reversible error, because this Court has the authority to modify the judgment. See Angelina County v. Bond, 16 S.W.2d 338, 340 (Tex.Civ.App.1929).

Conclusion

We modify the judgment to excise the language allowing such writs as necessary for collection and affirm the judgment as so modified.