text:
    Robert C. “Bob” NICHOLS a/k/a R.C. “Bob” Nichols, Appellant, v. Claudia LIGHTLE and Edwin Lee Murray, Appellee.
    No. 07-02-0416-CV.
    Court of Appeals of Texas, Amarillo.
    May 17, 2004.
    Rehearing Overruled Aug. 11, 2004.

      W.R. Malone, Madisonville, for appellant.
    Peter R. Ryba, Shepherd, for appellee.
    Before JOHNSON, C.J. and REAVIS and CAMPBELL, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

Appellant Robert C. “Bob” Nichols (Nichols) presents three issues challenging a summary judgment for appellee Claudia Lightle (Claudia), quieting title to some 420 acres in San Jacinto County and denying his counterclaim in trespass to try title. We affirm.

Factual and Procedural Background

Talmadge Ott owned property located in San Jacinto County, adjacent to a tract in the John Bricker Survey owned by Nichols. In 1976, Ott conveyed his property to Nichols’ wife Francis Nichols as trustee. The property was described in the deed from Ott as “all the land in the M.P. Clark Survey and the John Bricker Survey, San Jacinto County, Texas, which I own or claim,” including two described ten-acre tracts, one of which contained Ott’s house, “together with all remaining properties under my fences and which I have used over a long period of years.” .

In 1983, Nichols executed two deeds of trust in favor of First National Bank of Trinity (the Bank), mortgaging several tracts. The deeds of trust are not in the record. Although they apparently encompassed at least two tracts in the M.P. Clark Survey, among other tracts, the record is not clear to what extent the land subject to the deeds of trust included land conveyed by Ott’s deed to Frances Nichols. In any event, on October 4, 1988, the Bank foreclosed the hens under both deeds of trust.

Edwin Murray and his wife Dianne Murray acquired the 420 acres from the Bank by deed dated October 13, 1993, and executed a deed of trust of the same date in favor of the Bank. Neither of these documents have been included in the record before us. In October 1997, the Mur-rays were divorced, each retaining an undivided one-half interest in the property. In an unrelated but significant development, appellee Claudia Lightle and Thomas “Sandy” Lightle were divorced on May 28,1998.

In June 1999, Dianne Murray executed a deed to Nichols for her undivided interest in the 420 acres. On a date not shown in the record, Edwin Murray filed suit against Nichols in the 411th District Court of San Jacinto County, seeking an injunction preventing Nichols from interfering with his use of the 420 acres. This action was assigned cause number 9691. On July 6, 1999, Nichols brought suit in 258th District Court óf San Jacinto County against Claudia, who he alleged had purchased the Murrays’ note secured by the 420 acres from the Bank, and attorney Fritz Faulkner, alleged to be acting as substitute trustee under the deed of trust. Nichols there also alleged he owned an undivided one-half interest in the property, and “through some misleading field notes used by a surveyor for [another bank], the mortgaged property was located over onto the southwestern 100 acres in the M.P. Clark Survey, which was not supposed to be included within his survey. 10 acres of the overlap is owned by Frances Nichols, Trustee[.]” Nichols sought to enjoin foreclosure of the deed of trust lien granted by the Murrays, among other relief. This action was given cause number 9809. On July 30, 1999, the 411th District Court rendered judgment in cause number 9691 temporarily enjoining Nichols from interfering with Edwin Murray’s use of the 420 acres during the pendency of the suit, finding that Murray had established 100 of the 420 acres as his homestead, and awarding damages against Nichols. The written judgment was signed August 2nd. Nichols brought an appeal from that judgment.

On August 3, 1999, the lien under the Murrays’ deed of trust to the Bank was foreclosed. Claudia was the high bidder at the foreclosure sale, and Faulkner as substitute trustee conveyed the 420 acres to Claudia for $120,000. The property description contained in this deed described the 420 acres in five tracts, three of them in the M.P. Clark Survey, and made reference to the October 13, 1993 deed to the Murrays, in which the tracts were said to be more particularly described.

Shortly after this foreclosure, Sandy Lightle executed a deed to Nichols, dated August 11,1999, purportedly conveying his “undivided one-half community interest” in the 420 acres. An affidavit executed in connection with the deed shows that Sandy had not overlooked his divorce from Claudia, but said a common-law marriage had arisen after the divorce and before she purchased the property. It said Claudia “bought ... the property for the amount of the note for our account as community property.” The assertions were repeated in a second affidavit Sandy executed in September 1999.

Nichols recorded the deed from Sandy on September 29, 1999. Some time -in the fall of 1999, First Bank & Trust of Cleveland, Texas (“FBT”) sought to execute on Nichols’ interest in the 420 acres to satisfy a judgment it apparently held against him. Claudia filed her original petition in this action against Nichols and FBT on December 2, 1999, asserting that Nichols had no interest in the property and citing, inter alia, the judgment entered in cause number 9691. She sought an injunction against execution on the property by FBT pending resolution of the appeal in cause number 9691.

The trial court held a hearing in this case on December 22, 1999, at which FBT’s attorney conceded that no execution on the property was pending. Nevertheless, the court heard testimony from Claudia, Sandy and Nichols. Claudia testified that she never remarried Sandy after their divorce, that he abused cocaine and suffered psychological problems, that he was occasionally homeless, and that she sometimes provided him with food and work and let him sleep at her home irregularly. She denied entering into a common law relationship.

Sandy testified that the statements in his August and September 1999 affidavits were false, that he was under the influence of cocaine at the time and did not read the August deed or affidavit before signing them. Nichols testified that he paid Sandy $11,500 of an agreed $50,000 for his interest in the 420 acres, and that Sandy did not appear to be under the influence of drugs when he signed the deed and affidavit. At the conclusion of the hearing the court temporarily enjoined execution on any of the property pending a final hearing.

Before a final injunction hearing, Claudia nonsuited her claim against FBT. Some months later, and after dismissal of the appeal of cause number 9691, Nichols filed a counterclaim of trespass to try title against Claudia alleging he was the owner in fee simple of certain tracts, under deeds and by adverse possession. He asserted that he was unlawfully dispossessed of the tracts, giving the date of his ouster as January 1, 1999. The pleading also named Edwin Murray as a third party defendant, alleging that Murray had joined Claudia in the unlawful dispossession. Alternatively, the petition alleged Nichols was a tenant in common with Claudia and Murray in the entire 420 acres.

Claudia then filed a second amended petition and answer to Nichols’ counterclaims. This pleading converted Claudia’s suit for an injunction into one to quiet title. Claudia sought to cancel the deed from Dianne Murray to Nichols, and the deed from Sandy to Nichols, and to quiet title in the 420 acres in her. The petition challenged Nichols’ claim of adverse possession, primarily on the basis that it was interrupted by the 1988 foreclosure. In further explication of her claims, Claudia stated she was not asserting any claim to tracts owned by Nichols that adjoined the 420 acres.

At the same time, Claudia filed a traditional motion for summary judgment. She asserted that the deed from Sandy to Nichols should be canceled because he had no interest to convey. As support she relied on the 1998 divorce decree, the deed to her individually, her own testimony at the prior hearing, and that of Sandy, that they never remarried. She asserted the deed from Dianne Murray to Nichols should be canceled because her interest in the 420 acres was terminated by the August 1999 foreclosure and trustee’s sale to Claudia. The motion also cited the order in cause number 9691 enjoining Nichols from interfering with Edwin Murray’s use of the 420 acres. The motion addressed Nichols’ counterclaims, attaching copies of the 1988 substitute trustee’s deeds by which the liens under the 1983 deeds of trust to the Bank were foreclosed.

Nichols filed an amended counterclaim, reasserting his claims of adverse possession and alleging in the alternative that he was a tenant in common with Claudia, and seeking partition. He also responded to Claudia’s motion for summary judgment, arguing it should be denied “as regards the 100 acre tract” described in an exhibit to his counterclaim because of Claudia’s disclaimer in her second amended petition. He also provided several affidavits in support. The first was from a surveyor named C.A. McKinley that described a rectangular 100-acre tract in the northwest portion of the M.P. Clark Survey. Nichols made his own affidavit reciting the deed from Talmadge Ott to Frances and claiming it included “the entire southwest 100 acres of the northwest 300 acres” of the Clark Survey. The affidavit stated that Nichols had moved a house onto the property purchased from Ott and moved Ott’s house to another location. It also recited the names of persons who lived in that house at various times, including Claudia and Sandy.

Nichols also submitted the affidavit of his son Robert Charles Nichols, which recited his familiarity with the land, and sought to describe the land claimed by Talmadge Ott. Kenneth W. Hill made an affidavit that stated he was familiar with the land, attempted to describe the 100 acre tract conveyed to Frances Nichols with relation to the surrounding tracts, and stated that he had lived in the house on that tract briefly in 1985.' An affidavit from Billy Mills averred that he did work, paid for by' Nichols, on “Bob Nichols’ wife’s house off the end of Walker Road north of Midway,” and that Edwin Murray was present and, after initially objecting to Mills’ presence, later had acquiesced in Nichols’ claim of ownership of the house.

Nichols’ response also included Sandy Lightle’s August 11, 1999 affidavit and another'affidavit dated June 23, 2000. In the latter affidavit Sandy stated he was not under the influence of cocaine in August 1999 when he executed the deed to Nichols and that he testified falsely in court, having been threatened by Claudia. The affidavit also reasserted his claim that a common law marriage was established after their 1998 divorce and before Claudia purchased the 420 acres, concluding: “We have had a normal marriage since the divorce.” The affidavits of Hollys Heasley and Molly Wells, who had notarized Sandy’s signatures on his August 1999 and June 2000 affidavits, also were included.

The trial court granted Claudia’s motion for summary judgment and denied Nichols’ counterclaims by a written order signed June 27, 2002. That order described the land at issue as the 420 acres described in the August 3, 1999 deed to Claudia. The court cancelled and declared invalid the deeds from Sandy Lightle and Dianne Murray to Nichols, and granted Claudia judgment against Nichols, quieting title to the 420 acres in her. After filing a motion for new trial, Nichols timely perfected this appeal.

Issues on Appeal

Nichols now presents three issues for our review. They are that the trial court erred in granting summary judgment: (1) on the basis that the deed from Sandy conveyed no title; (2) because it disregarded evidence concerning his counterclaim for 100 acres; and (3) finding his claims were barred by res judicata. He has not challenged the judgment’s cancellation of his deed from Dianne Murray.

The standards applicable to review of summary judgments are well established, and a detailed recitation of them is unnecessary. See Tex.R. Civ. P. 166a. It is sufficient to note a movant has the burden of showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. We take evidence favorable to the non-movant as true, and indulge every reasonable inference in favor of the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Sandy Lightle Deed

Nichols makes two arguments in support of his first issue. He first argues that the excerpts irom the reporter’s record of the December 22, 1999 hearing, which were attached to Claudia’s summary judgment motion and which reflected the testimony of Claudia and Sandy that they did not remarry after them divorce, were not proper summary judgment evidence because they were not accompanied by authentication by the court reporter or other verification. Claudia correctly notes Nichols’ argument raises a defect of form and Nichols’ failure to present a timely objection in the trial court waived any error. Tex.R. Civ. P. 166a(f); Jones v. Jones, 888 S.W.2d 849, 852 (Tex.App.-Houston [1st Dist.] 1994, writ denied).

Nichols also quotes Munoz v. Gulf Oil Co., 693 S.W.2d 372 (Tex.1984), for the proposition that “if there is no file mark on a statement of facts or any other indication it was considered by the trial court at the time the motion for summary judgment was sustained, it may not be considered on appeal.” We do not find that holding applicable here. In Munoz, the non-movant sought reversal based on testimony he had not presented to the trial court in response to the motion for summary judgment. Here, the relevant portions of the reporter’s record were presented to the trial court. They were attached as an exhibit to Claudia’s motion for summary judgment and the trial court’s order recites that he considered the summary judgment evidence. Richman Trusts v. Kutner, 504 S.W.2d 539 (Tex.Civ.App.-Dallas 1973, writ ref'd n.r.e.), cited in Munoz, supports the finding that the testimony was properly before the court here. In Richman the court refused to consider a reporter’s record that was never filed in the trial court and was not “incorporated by reference in either the motion for summary judgment or the reply thereto.” Id. at 541. Claudia did not merely incorporate the testimony by reference, she attached a copy of it to her motion.

Nichols next argues his affidavit and those of Sandy Lightle, Kenneth Hill, Molly Wells and Hollys Heasley establish the existence of a genuine question of fact on the formation of a common law marriage between Sandy and Claudia after their 1998 divorce and before she acquired the 420 acres in August 1999. Claudia responds that the affidavits are insufficient. The issue is material because of the presumption that property acquired by either spouse during marriage is community property. Tex. Fam.Code ann. § 3.03 (Vernon 1998).

The elements of a common law, or informal, marriage are: (1) a man and woman agreed to be married; (2) after the agreement they lived together in Texas as husband and wife; and (3) they represented to others in the state that they were married. Tex. Fam.Code ann. § 2.401 (Vernon 1998). In conformity with the standards applicable to summary judgment review, we will ignore Sandy’s testimony in open court that he did not remarry Claudia. Because we conclude that the summary judgment evidence does not raise a genuine question of fact concerning the third element, we focus only on the evidence relevant to that issue. We "first consider whether Sandy’s affidavits raise a genuine question of fact whether Sandy and Claudia represented to others in Texas that they were husband and wife after their divorce.

In his August 1999 and September 1999 affidavits Sandy stated: “A few days after our divorce, we went back to living together as common law husband and wife. We lived together, consummated the marriage, had the intent of being husband and wife, and held,out to others that we were husband and wife.” In addition to the statement already noted, Sandy’s June 23, 2000 affidavit asserted, “I am the husband of Claudia M. Lightle by common law marriage.” Like the earlier affidavits, it stated. that following their divorce he and Claudia “went back to living together,” and had regular sexual relations, “just as we did before the divorce.” Speaking of events following their divorce, it also stated, “After getting out of jail, I came back home, and we lived together as husband and wife, just as we had always done. She advised at least one witness whom I remember that “we are husband and wife.’ ”

Claudia also argues the affidavits are conclusory. Challenges to summary judgment affidavits as conclusory allege a defect in substance rather than .form and may be asserted for the first time on appeal. Dailey v. Albertson’s, Inc., 83 S.W.3d 222, 225 (Tex.App.-El Paso 2002, no pet.). To avoid being conclusory, an affidavit must contain specific factual bases, admissible in evidence and upon which conclusions are drawn. Id. An affidavit consisting only of conclusions is not sufficient to raise an issue of fact. Id.; See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378, 381-82 (Tex.1978). The statements relative to the third element in Sandy’s August 1999 and September 1999 affidavits simply paraphrase the statutory language, stating “we held out to others that we were husband and wife.” The affidavits contain no spe-ciflc factual bases for the statements; the statements are conclusory and not sufficient to raise a genuine issue of fact on the element of representations of marriage to others.

The statement in Sandy’s June 2000 affidavit is barely more specific. There, Sandy stated that Claudia advised at least one person they were married. The affidavit does not give the name of the person, or when, where or under what circumstances the statement was made. Perhaps we reasonably can infer that the statement was made in Texas, since the record makes no reference to any event occurring outside our state. And perhaps we can infer that the statement was made after the divorce and before Claudia’s purchase of the 420 acres. But even if we draw from the statement all the inferences that are reasonable, it is not sufficient to raise a genuine issue of fact as to whether Sandy and Claudia’s relationship met the third statutory element. At most, the statement reflects only isolated references, which is not evidence of “holding out” to others that a marriage exists. Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361, 364 (1960); Winfield v. Renfro, 821 S.W.2d 640, 651 (Tex.App.-Houston [1st Dist.] 1991, writ denied). Neither of Sandy’s affidavits contains evidence sufficient to raise a genuine issue of fact on the third element of a common law marriage. See Tex.R. Civ. P. 166a©-

We next examine whether any of the other affidavits offered by Nichols filled the gap left by Sandy’s affidavit. Nichols’ affidavit contained only one statement relevant to this issue, that referring to the house on the disputed property and stating: “Claudia Lightle and Sandy Ligh-tle live there at the present time, or at least they frequently occupy it at night.” This statement provides support for the second element of common law marriage, that of living together, but is not probative of the third element. The same is true for the other affidavits. Kenneth Hill’s affidavit stated he saw Claudia and Sandy going to and from the house on the Clark Survey and they introduced themselves to him by first name only. Molly Wells and Hollys Heasley made no statement in their affidavits concerning representations of marriage between Sandy and Claudia. None of these affidavits provide evidence that Sandy and Claudia represented to others that they were married. The summary judgment record does not show the existence of a genuine question of fact on whether Claudia and Sandy were married at the time of her purchase of the 420 acres. We overrule Nichols’ first issue.

Counterclaim on Hundred Acres

In his second issue Nichols challenges the summary judgment for Claudia denying his counterclaim to a 100-acre tract of the M.P. Clark Survey described in an exhibit to his pleadings. Nichols’ arguments in support primarily recite his summary judgment evidence. As we read his arguments, his position is that (1) Claudia is bound by the admission in her pleadings disclaiming any interest in Nichols’ adjacent land, (2) she failed to establish that the 420 acres encompasses the 100-acre tract claimed by Nichols, and (3) he established his title to the 100-acre tract by tracing his title to Talmadge Ott.

Nichols’ first argument makes too much of the language contained in Claudia’s second amended petition, by which she disclaimed the 100 acres “that lies outside the boundaries of the 420 acres.” We do not agree that it constitutes an admission contrary to her claim to quiet title to the described 420 acres.

Nor can we agree’ with Nichols’ arguments that summary judgment was improper because Claudia failed to present evidence showing whether the 420 acres included any part of the 100 acres he described and claimed. Such proof was irrelevant to her ability to establish conclusively her pause of action to cancel the deed from Sandy Lightle and quiet title to the 420 acres as against Nichols’ claims. The summary judgment evidence established that Claudia acquired title to the land described in the October 13, 1993 deed to the Murrays, by an August 3, 1999 deed from the substitute trustee to her. Her summary judgment evidence also established that the deed from Sandy Ligh-tle on August 11, 1999, conveyed no title.

With respect to Nichols’ third argument, as noted, among the grounds set forth in Claudia’s motion for summary judgment was the 1988 foreclosure of Nichols’ interest in the 420 acres. Nichols’ discussion of the summary judgment evidence tracing his interest in the 100-acre tract omits any mention of his 1983 mortgage and the 1988 foreclosure of that mortgage. Nor has he presented any challenge to the subsequent 1993 sale to the Murrays, or the foreclosure and sale to Claudia in August 1999. Moreover, neither at trial nor before this court has Nichols contested the proposition that the 420 acres conveyed to Claudia was the same property subject to the 1988 foreclosure of his interest. He does not contend that the summary judgment evidence raises an issue of fact concerning that proposition. To any degree the 100-acre tract made the basis of Nichols’ counterclaim in this litigation overlaps with the 420 acres, that part of the 100-acre tract must be regarded as properly subject to the trial court’s judgment. The trial court did not err in granting judgment on this summary judgment record quieting title to the 420 acres in Claudia as against the claims asserted by Nichols. His second issue is overruled.

Conclusion

Our disposition of appellant Nichols’ first two issues makes review of his third issue unnecessary. The trial court’s judgment is affirmed.

      . The actual acreage at issue comprises 419.283 acres. For convenience, we use the phrase "the 420 acres" to refer to the property described in the August 3, 1999 substitute trustee's deed to appellee Claudia Mercer Lightle.

      . There is no suggestion in the record for whose benefit, or on what terms, Frances Nichols was acting as trustee. She is not a party to this litigation, individually or as trustee. The record does not address her absence.

      .The judgment entered by the trial court in the cause now on appeal clearly is grounded, though, on the conclusion that the 420 acres at issue here is the same property on which the Bank later foreclosed. As is discussed later in this opinion, Nichols has not contested that conclusion.

      . Claudia's brief states that cause numbers 9691 and 9809 were consolidated but does not state when or refer to an order consolidating the cases. The August 2, 1999 judgment in cause number 9691 did make reference to Nichols as defendant and cross-plaintiff, and to Claudia as cross-defendant. It awarded damages against Nichols both to Murray and Claudia.

      . We express no opinion on the question of the interest that would have been conveyed by the deed if it had been community property of Sandy and Claudia Lightle.

      . The Ninth Court of Appeals dismissed the appeal of cause number 9691 pursuant to an agreed motion to dismiss on June 22, 2000.

      . The first tract was described by metes and bounds in the M.P. Clark Survey, the second was 100 acres consisting of portions of the 420 acres at issue, as described in the October 13, 1993 deed to the Murrays.

      . See Tex.R. Civ. P. 783.

      . See generally 5 F. Lange & A. Leopold, Texas Practice 2d: Land Titles and Title Examination §§ 1091-96 (1992); Katz v. Rodriguez, 563 S.W.2d 627, 629 (Tex.Civ.App.-Corpus Christi 1977, writ ref’d n.r.e.) (discussing distinction between statutory trespass to try title action and suit to quiet title).

      . The disclaimer language, which appeared in almost identical form in Claudia’s second amended petition and in her motion for summary judgment, read as follows:
      Defendant [Nichols] admittedly owns various tracts of land which join the subject property (420 acres) on one side or the other. Plaintiff makes no claims to any of defendant’s 160 acre homestead in the John Bricker Survey, nor the 80.8345 acres (known as the dump) that defendant described in his pleadings, nor the 100 acres of defendant's that lies outside the boundaries of the 420 acres which is the subject of this suit.

      . Trimble v. Gulf Paint & Battery, Inc. 728 S.W.2d 887 (Tex.App.-Houston [1st Dist.] 1987, no writ), cited by Nichols, is not to the contrary. That case holds the absence of a jurat on a purported affidavit is not just a formal defect but is substantive and not waived by failure to bring it to the trial court’s attention. Citing the Government Code definition of "affidavit,” Tex. Gov’t Code Ann. § 312.011, and other authority, the court noted that a purported affidavit missing the jurat is not an affidavit but simply an unsworn statement and not competent summary judgment proof. 728 S.W.2d at 889.

      . All three of the required elements of a common law marriage must exist at the same time. Bolash v. Heid, 733 S.W.2d 698, 699 (Tex.App.-San Antonio 1987, no writ); Gary v. Gary, 490 S.W.2d 929, 935 (Tex.Civ.App.Tyler 1973, writ ref'd n.r.e.).

      . Nichols also points to differences in the disclaimer language in Claudia's second amended petition and a late-filed third amended petition. We need not address that issue because our analysis and conclusion would be the same under either petition.

      . We note that Nichols' pleadings in this litigation did not assert the claim of a surveying error and ten-acre overlap he made in cause number 9809.

      .This is a determination that cannot be made based on the record before us, and one that we view as irrelevant to the trial court's judgment quieting title to the 420 acres in Claudia. To the extent that acreage described in Nichols’ counterclaim lies outside the boundaries of the 420 acres, we view it as unaffected by the trial court's judgment.


source: Caselaw Access Project

author: DON H. REAVIS, Justice. BRIAN QUINN, Justice,

license: Public Domain

text:
    David RAMOS, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0008-CR.
    Court of Appeals of Texas, Amarillo.
    May 24, 2004.
    David Ramos, Abilene, pro se.
    Joe Morgan Dawson, Amarillo, for appellant.
    John L. Owen, Assistant District Attorney, Amarillo, for State.
    Before QUINN and REAVIS, JJ. and BOYD, S.J.

      . John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code Ann. § 75.002(a)(1) (Vernon Supp. 2004).

   MEMORANDUM OPINION ON STATE’S MOTION TO DISMISS

DON H. REAVIS, Justice.

By opinion dated March 23, 2004, this Court granted the State’s motion to abate this appeal and remand the cause to the trial court with directions to re-certify appellant David Ramos’s right of appeal based on a pre-sentence waiver of the right to appeal without a punishment recommendation. Pursuant to this Court’s order, the trial court made findings of fact and conclusions of law. As relevant here, the trial court certified that appellant’s case is a “plea bargain case, and the defendant has NO right of appeal.” By its conclusions of law, the trial court held appellant is procedurally barred from appealing its decision to adjudicate guilt.

Appellant had been granted deferred adjudication community supervision in exchange for his guilty plea to possession of a controlled substance. Upon the State’s motion to proceed with an adjudication of guilt, appellant pled true to the allegations. After hearing evidence, the trial court sentenced appellant to 20 years confinement. Appellant did not present punishment evidence nor object to the sentence.

Article 42.12, section 5(b) of the Texas Code of Criminal Procedure expressly denies a defendant the right to appeal from a trial court’s determination to adjudicate guilt. Connolly v. State, 983 S.W.2d 738, 741 (Tex.Cr.App.1999); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Cr.App.1992). Although an appeal of all proceedings after an adjudication of guilt is not foreclosed by article 42.12, section 5(b) (ie., assessment of punishment, pronouncement of sentence), a review of the revocation hearing establishes that any possible complaints regarding post-adjudication proceedings were not preserved for review. See Tex. R.App. P. 33.1(a)(1)(A); see also Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Cr.App.1999) and Issa v. State, 826 S.W.2d 159, 161 (Tex.Cr.App.1992). Thus, we grant the State’s motion and dismiss this appeal.

Accordingly, the appeal is dismissed for want of jurisdiction.

QUINN, J., dissenting.

BRIAN QUINN, Justice,

dissenting.

I respectfully dissent from the majority opinion.

In perusing the record to determine whether any basis for appeal exists, the majority is essentially conducting an An-ders review sua sponte. I know of no authority permitting that. Nor does either the majority or the State provide any. Indeed, the court has not even informed the appellant of its intent to invoke Anders in a situation wherein he has not been granted counsel, counsel has not opined that the appeal is frivolous, and appellant has not been accorded the opportunity to review the record and proffer argument illustrating potentially viable issues for appellate review. Providing an indigent appellant with such opportunity is inherent in the Anders process. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Johnson v. State, 885 S.W.2d 641, 646 (Tex.App.-Waco 1994, order) (order discussing procedures for An-ders appeal). Moreover, questions of due process and its denial immediately arise upon the adoption of a procedure that permits dismissal of the appeal on the merits without according the appellant a chance to review the record and comment upon potential trial court error before the appeal is resolved.

Nor do I feel that I can safely assume that the State will protect or preserve the interest of the appellant when it opines that the appeal is frivolous and, thereby, triggers implementation of this hybrid An-ders procedure. In an Anders situation, authority does obligate the reviewing court to conduct an independent analysis of the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991) (discussing the traditional Anders procedure). However, by the time we do that, counsel for the appellant, who has the task of zealously representing the interests of his client, has already conducted his own investigation and opined about the existence of potential error. Here, the majority is simply excising the element of a zealous advocate from the equation established by the United States Supreme Court in Anders, again without citing any authority for doing so. And, while the office of the prosecutor has counsel learned in criminal law and procedure, one can reasonably suspect that few if any would be predisposed to parsing through the record with any eye favorable to the individual whom they just convicted and in search of error that would ultimately negate that conviction. So, it is unlikely that the recommendations of a prosecutor would provide an adequate substitute for those of independent counsel appointed to represent the appellant.

In close, I recognize the need to address and dispose of frivolous appeals in an efficient manner. To this end, a procedure much like that used to assess the merits of a civil suit initiated by an indigent prisoner may have some benefit. See Tex. Civ. PRAC. & Rem.Code Ann. § 14.001 (Vernon 2002). But, that procedure is a creature of statute enacted by the legislature, as is the right to appeal itself. Tex.Code CRim. PROC. Ann. art. 44.02 (Vernon 1979); Ex parte Spring, 586 S.W.2d 482, 485-86 (Tex.Crim.App.1978) (stating that the right to appeal in a criminal case is statutory). Moreover, statute directs that rules or operating procedures applicable to the review of criminal cases cannot “abridge, enlarge, or modify the substantive rights of a litigant.” Tex. Gov.Code Ann. § 22.108(a) (Vernon 2004). Thus, it lies within the jurisdiction of the legislature, not this court, to enact a procedure like that alluded to above. We cannot legislate for that body. And, until it acts, I stay my own hand from curtailing the legislatively created right of appellant to appeal through the means now promulgated by the majority.

I respectfully dissent and invite the Court of Criminal Appeals to address the matter.


author: PHIL JOHNSON, Chief Justice.

text:
    In the Interest of D.B. and E.A.B., Children.
    No. 07-03-0262-CV.
    Court of Appeals of Texas, Amarillo.
    June 4, 2004.
    Rodney R. Betts, Amarillo, for appellant.
    Sonya Letson, Habón Y. Mohamed, Asst. Potter County Atty., Amarillo, for appellee.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

PHIL JOHNSON, Chief Justice.

Appellant Tammy Savage challenges the trial court’s order terminating her parent-child relationship with E.A.B. and D.B. She asserts that the Family Code required dismissal of the suits before the termination hearing. We affirm.

BACKGROUND

On September 30,1998, the Department of Protective and Regulatory Services (DPRS) filed a suit affecting the parent-child relationship in the 320th District Court of Potter County seeking conserva-torship of Savage’s son E.A.B. The cause number assigned was 59,321 D. On March 23, 1999, the trial court appointed DPRS permanent managing conservator of E.A.B. Savage does not contend that such order was not a “final order.” See Tex. Fam.Code Ann. § 263.401(d)(3) (Vernon 2002).

On April 12, 1999, DPRS filed a petition in the 320th District Court of Potter County seeking conservatorship of Savage’s daughter D.B. That cause was assigned number 60,262-D. In cause number 60,-262-D the trial court appointed DPRS temporary managing conservator of D.B. on April 27, 1999. On January 20, 2000, the trial court issued a Permanency Hearing Order in cause number 60,262-D which, among other things, extended the dismissal date of the suit until October 13, 2000. See section 263.401(a), (b).

On January 28, 2000, DPRS filed an Original Petition for Termination in cause number 59,321-D and an Amended Petition for Termination in cause number 60,-262-D. On July 24, 2000, Todd White and Kathleen White filed petitions in intervention in both the suits. By their interventions, the Whites sought termination of the parent-child relationship between Savage and the children, and appointment as managing conservators of the children.

At a January 22, 2001 hearing, the trial court consolidated the cases under cause number 59,321-D, appointed DPRS managing conservator of the children and appointed Savage as possessory conservator of the children. The written order was signed on April 27, 2001.

On October 25, 2001, the Whites filed a separate suit in the 320th District Court of Potter County seeking to terminate the parent-child relationship between Savage and both of the children. The suit was assigned cause number 64,685-D. On August 8, 2002, the trial court consolidated causes 64,685-D and 64,646-D, a suit filed seeking grandparent access to the children, into cause number 59,321-D. In January and March, 2003, Kathleen White (“White”) amended her petition seeking termination of the parent-child relationship between Savage and her children, which was by then pending as part of cause number 59,321-D. Todd White nonsuited his action. Although she filed an answer to the original pleading in cause 64,685-D, Savage did not challenge the propriety of the suit, nor did she file a response to White’s amended petitions in the consolidated cause number 59,321-D.

On March 24, 2003, cause number 59,-321-D was called for trial and Savage announced ready. After hearing the evidence at a bench trial, the trial court terminated the parent-child relationship between Savage and the children and appointed White and DPRS as permanent managing conservators of E.A.B. and D.B. The trial court’s order reflecting this judgment was signed on April 24, 2003. It is from this Order of Termination that Savage appeals.

Savage contends that: (1) section 263.401(a) deprived the trial court of subject matter jurisdiction to terminate Savage’s parental rights in the suits filed by DPRS because the suits should have been dismissed prior to the termination hearing; (2) the waiver provision contained in section 263.402(b) does not apply because it became effective after the mandatory dismissal date under section 263.401(a); and (3) if section 263.402(b)’s waiver provision is applicable, then trial counsel’s failure to timely file a motion to dismiss constituted ineffective assistance of counsel. She does not, however, challenge the trial court’s jurisdiction to terminate her parental rights pursuant to either White’s intervention petition in cause 59,321-D, or White’s original suit in 64,685-D, which was consolidated into cause number 59,321-D.

LAW AND ANALYSIS

When a separate and independent ground that supports a judgment is not challenged on appeal, the appellate court must affirm the lower court’s judgment. See San Antonio Press v. Custom Bilt Mach., 852 S.W.2d 64, 65 (Tex.App.-San Antonio 1993, no writ); Herndon v. First Nat’l Bank of Tulia, 802 S.W.2d 396, 400 (Tex.App.-Amarillo 1991, writ denied). And, both White’s intervention, see In re C.V.G., 112 S.W.3d 180, 184 (Tex.App.-Houston [1st Dist.] 2003, no pet.), and her separate, original suit, see Leach v. Brown, 156 Tex. 66, 292 S.W.2d 329, 331 (1956), the propriety of which was not challenged, vested the trial court with jurisdiction to terminate Savage’s parental rights.

Because Savage does not challenge the trial court’s jurisdiction over claims to terminate her parental rights via White’s intervention and suit, and because White’s claims vested the trial court with jurisdiction to terminate Savage’s parental rights, we need not and do not address Savage’s first and second issues which challenge the trial court’s failure to dismiss DPRS’s claims for termination. See Tex.R.App. P. 47.1; Herndon, 802 S.W.2d at 400.

Savage’s third issue claims ineffective assistance of counsel based on applicability of the section 263.402(b) waiver provision and her counsel’s failure to seek dismissal of the DPRS’s suit pursuant to section 263.401(a). To prevail on her claim of ineffective assistance of counsel, however, Savage has the burden to affirmatively prove both deficient performance by counsel and prejudice from the allegedly deficient performance. See Mitchell v. State, 989 S.W.2d 747, 748 (Tex.Crim.App.1999), citing Strickland v. Washington, 466 U.S. 668, 690-694, 104 S.Ct. 2052, 2066-68, 80 L.Ed.2d 674 (1984). To prove prejudice, she must prove a reasonable probability that but for counsel’s alleged error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986).

Even had counsel moved for and obtained dismissal of the DPRS’s claims for termination of Savage’s parental rights pursuant to section 263.401(a), Savage does not assert or demonstrate that the dismissal would have altered the trial court judgment terminating her parental rights based on White’s claims. Accordingly, she has failed to demonstrate prejudice from counsel’s alleged ineffective assistance. Issue three is overruled.

CONCLUSION

We affirm the Order of Termination.

      . Further reference to a section of the Texas Family Code will be by reference to “section

      . Because we do not address the merits of Savage's challenges to the trial court's jurisdiction, we express no opinion on whether the trial court’s ruling would have been correct had the court sustained such a jurisdictional challenge, had one been presented.


text:
    In re James Lee SWEED, Relator.
    No. 07-04-0307-CV.
    Court of Appeals of Texas, Amarillo.
    June 18, 2004.
    James Lee Sweed, Gatesville, pro se.
    Mackey K. Hancock, Lubbock, for respondent.
    Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
   OPINION

PHIL JOHNSON, Chief Justice.

Relator James W. Sweed seeks a writ of mandamus ordering respondent, the Honorable Mackey Hancock, Judge of the 99th District Court of Lubbock County, to rule on two motions allegedly pending in cause number 2003-522-601. We deny the petition.

Relator has filed a Petition for Writ of Mandamus in which he alleges that respondent has failed to act on two motions pending in the referenced cause. We are requested to order respondent to rule on the motions.

In support of the petition for writ of mandamus, relator has not attached any documents evidencing the motions or relator’s alleged request that respondent rule on the motions.

When petition for writ of mandamus is made, it is the relator’s burden to show entitlement to the relief being requested. See generally Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig.proceeding). Relator must file with the petition a certified sworn copy of every document that is material to relator’s claim for relief and that was filed in any underlying proceeding, and a properly authenticated transcript of any relevant testimony from any underlying proceeding including any exhibits offered in evidence or a statement that no testimony was adduced in connection with the matter complained of. Tex.R.App. P. 52.7(a).

Certified, sworn copies of motions and correspondence referenced in the petition are not attached or furnished. Relator has not presented a record which shows entitlement to the relief sought, or upon which we are authorized to act.

The petition for writ of mandamus is denied.


author: DON H. REAVIS, Justice.

text:
    In re C.D. MORSE and Wife, Linda Morse, Relators.
    No. 07-04-0283-CV.
    Court of Appeals of Texas, Amarillo.
    June 22, 2004.

      John H. Lovell, Lovell, Lovell, Newsom & Isern, L.L.P., Amarillo, for Relators.
    J. Blair Cherry Jr., Lubbock, Respondent pro se.
    Richard Hubbert, John C. Sims, Sims Hubbert & Wilson, Aubrey J. Fouts, Fouts Fouts & Joplin, Timothy Pridmore, McWhorter Cobb & Johnson, Lubbock, Monte Scarbrough, Wolfforth, Robert B. Wagstaff, Batjer & Wagstaff, Abilene, for real parties in interest.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

DON H. REAVIS, Justice.

By this original proceeding, relators C.D. Morse and wife, Linda Morse, seek a writ of mandamus requesting that we order the Honorable Blair Cherry, District Judge of the 72nd Judicial District Court of Lubbock County, to vacate his order of May 3, 2004, in the underlying proceeding bearing cause number 2003-524,072, to the extent that it denied their motion to compel disclosures regarding potential parties and identities of shareholders, but not otherwise. Presenting two issues, relators contend the trial court abused its discretion in denying their motion to compel the disclosures (1) of the name and address of potential parties and witnesses when the Texas Rules of Civil Procedure mandatorily require all parties to disclose the identity and addresses of potential parties and witnesses and (2) when the obvious effect of the court’s order is to prevent them from discovering the identity of potential fraudulent transferees prior to the expiration of the statute of limitations. We conditionally grant the relief requested.

Relator C.D. Morse, a defendant and third-party plaintiff in a separate cause numbered 2002-519,190, pending in the 72nd District Court of Lubbock County, filed the underlying action with his wife seeking declaratory relief and asserting that various bank and holding company transactions and reorganizations were in fraud of his rights as a contingent creditor as may be adjudicated and determined in cause number 2002-519-190. As material here, relators contend that certain transfers, bank mergers, acquisitions, or arrangements constituted fraudulent transactions to them as creditors, contrary to the Uniform Fraudulent Transfer Act, Tex. Bus. & Com.Code Ann. §§ 24.001-24.012 (Vernon 2002), and article 6.04 of the Texas Business Corporation Act. In addition, relators contend the shareholders of the bank or holding companies were unjustly enriched and seek imposition of a constructive or resulting trust. Upon commencement of the underlying proceeding relators also caused their request for disclosure under Rule 194 to be served on real parties requesting, among other information, the disclosure of the name, address, and telephone number of any potential parties. By their motion to compel, relators seek the disclosure of the name, address, and telephone number of shareholders or former shareholders of Independent Bankshares, Inc., Independent Financial Corp., and State National Banc-shares, Inc. as potential parties under Rule 194.2(b) of the Texas Rules of Civil Procedure.

When real parties failed to respond fully to the request for disclosure, relators filed their motion to compel disclosure of the identity of all former shareholders of Independent Bankshares, Inc., Independent Financial Corp., and State National Banc-shares, Inc. as potential parties to their claims under article 6.04 of the Texas Business Corporation Act and the Uniform Fraudulent Transfer Act. Upon hearing the motion, without expressing any reasons, the trial court denied the request for disclosures.

Standard of Review

A writ of mandamus will only issue to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy by appeal, and the relator has the burden to present the appellate court with a record sufficient to establish the right to mandamus. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex.1992) (orig. proceeding). With respect to factual matters committed to the trial court’s discretion, the appellate court may not substitute its judgment for that of the trial court. Id. However, a review of a trial court’s determination of controlling legal principles is entitled to much less deference. Id. at 840. In our analysis, we “must focus on the record that was before the court and whether the decision was not only arbitrary but also amounted to a clear and prejudicial error of law.” Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex.1998).

By their two issues, relators contend the trial court abused its discretion in denying their motion to compel the disclosure (1) of the name and address of potential parties and witnesses when the Texas Rules of Civil Procedure require all parties to disclose the identities and addresses of potential parties and witnesses and (2) when the obvious effect of the court’s order is to prevent relators from discovering the identity of potential fraudulent transferees prior to the expiration of the statute of limitations. We agree.

Although relators acknowledge that the trial court has wide discretion in discovery matters, they point out that the discretion is not unlimited. Citing Burlington Northern, Inc. v. Hyde, 799 S.W.2d 477, 479 (Tex.App.-El Paso 1990, no writ), they argue that under Rule 194.2(b) real parties’ failure to respond fully was an abuse of the discovery process and that the trial court abused its discretion in denying the motion to compel. In response, contending that neither article 6.04 of the Texas Business Corporation Act nor the Uniform Fraudulent Transfer Act apply to the bank merger or institutional or corporate transfer or reorganizations, real parties argue that disclosure of the names and addresses of the shareholders was not required because “there is no viable cause of action against these shareholders in this transaction.” These opposing contentions require that we focus our analysis on Rule 194 entitled “Requests for Disclosure.”

By its order of November 9, 1998, among other changes to the discovery rules, the Supreme Court added disclosure as a new form of discovery. See Tex.R. Civ. P. 194. Unlike Rule 192.3(a) which authorizes discovery in broad terms, Rule 194.2 expressly provides that a party may request disclosure of at least 16 specific categories of information. As material here, Rule 194.2(b) provides that a party may request disclosure of the name, address, and telephone number of any potential parties. According to the explanatory comment accompanying the 1999 amendments, upon request, Rule 194 provides ready access to basic information without objection.

Under Rule 194.3, the responding party must serve a written response within 30 days, and according to comment 1, if a party does not move for protection or assert any applicable privileges, failure to “respond fully to a request for disclosure would be an abuse of the discovery process.” Unlike other comments, the comments to the disclosure rule are intended to inform its construction and application. See order of November 9, 1998. See generally Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (noting that the comment to Tex.R. Civ. P. 166a(i) was specifically intended to inform the construction and application of the rule).

Notwithstanding Rule 194.3 and the accompanying comment, real parties did not present any objection nor move for protection to prohibit disclosure and do not contend that the information was privileged or was, as suggested by the comment, “one of those rare cases when information should be protected.” Real parties’ reliance on In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998) (orig. proceeding), as support for their argument that disclosure of the identities of the shareholders was not required because relators’ pleadings did not state a viable claim is misplaced. In Colonial, the Court wrote in the context of a ruling which would impair or restrict a party’s ability to present a viable claim or defense. 968 S.W.2d at 941. Moreover, the opinion in Colonial was issued before the adoption of Rule 194 which adopted disclosure as a new form of discovery.

Neither party cites any decisions discussing Rule 194.2(b); however, our research identifies two cases discussing disclosure per Rule 194. In Helfand v. Coane, 12 S.W.3d 152 (Tex.App.-Houston [1st Dist.] 2000, pet. denied), a similar question was presented by ordinary appeal. There, the court noted:

We reject Coane’s argument that Hel-fand was not entitled to discovery for the mere purpose of determining who another defendant is or may be. Under our discovery rules, past and present, a party is entitled to obtain discovery regarding potential parties to a lawsuit. Tex.R. Civ. P. 192.3®, 192.5(c)(3), and 194.2(b).

[Citations omitted]. Id. at 157 n. 3. Then, in Villegas v. Texas Dept. of Transp., 120 S.W.3d 26, 35 (Tex.App.-San Antonio 2003, pet. denied), the failure to provide disclosure as requested under Rule 194.2(f)(4)(A) constituted grounds supporting a sanction order striking the affidavit of an expert in a summary judgment proceeding.

Based on the comment to Rule 194 and Helfand and Villegas, we conclude that real parties’ failure to fully respond to the request for disclosure or move for protection constituted an abuse of the discovery process. Considering that relators were entitled to the disclosure of the names and addresses of the shareholders or former shareholders as potential parties and based on the above standard of review, we conclude the trial court abused its discretion in denying the motion to compel the requested disclosures.

Accordingly, we conditionally grant the writ of mandamus and the trial court is ordered to direct real parties to comply with the request for disclosure of the names, addresses, and telephone numbers of the officers, directors, and shareholders of Independent Bankshares, Inc. for the year 2000, but not otherwise. This discovery order shall in no way bar nor prohibit the commencement of other discovery process by either party. We are confident the trial court will grant the motion in accordance with this opinion. We instruct the Clerk to issue the writ only if the trial court fails to grant the motion within thirty days.

      . Relators’ motion for expedited consideration is rendered moot by issuance of this opinion.

      . We do not address any questions concerning the applicability of article 6.04 of the Texas Business Corporation Act or the Uniform Fraudulent Transfer Act, Tex. Bus. & Com.Code Ann. §§ 24.001-24.012, to relators' claims in the underlying proceeding.

      .The history of the bank and holding company transactions as presented by relators’ petition and real parties’ response demonstrated considerable uncertainty as to the precise corporate and shareholder action taken. However, in the amended statement of facts of real party Stephenson filed the day before submission of oral argument, he acknowledged that prior factual representations were incorrect and stated "in fact, following the merger, First State continued to exist as a separately chartered national banking association and as such, continued its banking relationships with its depositors and borrowers in the ordinary course of its business.” During oral argument, counsel acknowledged that this information was not presented to the trial court. Leave to file the amended fact statement is granted.

      . Relators also sought production of documentation regarding arrangements for the payment of non-deposit creditors, disclosures 'made to shareholders, disclosure of consideration received by shareholders, and the identity of directors. We do not address these matters because relators seek the writ to compel disclosure of the names and addresses of the officers, directors, and shareholders.

      . See text of order and explanatory comments at 977 S.W.2d xxxv.

      . Although relators’ motion to compel sought the same information with respect to other entities, its petition for writ of mandamus is limited to Independent Bankshares, Inc.


author: PER CURIAM.

text:
    Mark Wayne LOMAX, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00156-CR.
    Court of Appeals of Texas, Waco.
    June 23, 2004.

      Mark Wayne Lomax, Rosharon, pro se.
    Charles A. Rosenthal Jr., Harris County District Atty., Houston, for Appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ORDER

PER CURIAM.

Mark Wayne Lomax represents himself in this appeal. He has filed a series of motions with this Court in which he contends that certain items have been omitted from the appellate record and that the record suffers from other deficiencies. Lomax requests that a hearing be conducted so that the record can be corrected. The State has not responded to Lomax’s motions. Because it appears that the record may be inaccurate, which can only be determined and ordered corrected by further proceedings in the trial court, we will abate this appeal to the trial court for such proceedings.

Lomax’s “Appellants Motion to Object to Trial Record” identifies six alleged inaccuracies in the record: (1) the reporter’s record does not reflect a statement allegedly made by the trial judge during the course of the trial; (2) certain -witness statements which were referred to at trial but not offered in evidence are not included in the reporter’s record; (3) certain documentary exhibits which were offered in evidence are not included in the reporter’s record; (4) the jury strike lists are not included in the clerk’s record; (5) copies of certain photographs included in the reporter’s record are too poor in quality for use on appeal; and (6) copies of two volumes of the reporter’s record have not been provided to Lomax.

Rule 34.6(e)(3) sets out the procedure to be followed when a party challenges the accuracy of the reporter’s record after it has been filed in the appellate court. See TexR.App. P. 34.6(e)(3). The rule provides:

(e) Inaccuracies in the Reporter’s Record.
(3) Correction After Filing in Appellate Court. If the dispute arises after the reporter’s record has been filed in the appellate court, that court may submit the dispute to the trial court for resolution. The trial court must then ensure that the reporter’s record is made to conform to what occurred in the trial court.

Id.

With respect to defects or inaccuracies in the clerk’s record, Rule 34.5(d) requires an appellate court clerk to “inform the trial court clerk of the defect or inaccuracy and instruct the clerk to make the correction.” Id. 34.5(d).

According to the Supreme Court, “appellate courts must construe [the rules governing correction of the appellate record] liberally so their decisions ‘turn on substance rather than procedural technicality.’ ” Gallagher v. Fire Ins. Exchange, 950 S.W.2d 370, 371 (Tex.1997) (per curiam) (quoting Crown Life Ins. Co. v. Est. of Gonzalez, 820 S.W.2d 121, 121 (Tex.1991) (per curiam)); accord Baker v. Trand, Inc., 931 S.W.2d 405, 407 (Tex.App.-Waco 1996, order, no writ) (per curiam). As the Fourteenth Court has said, “The purpose of [these rules] is to create an accurate record on appeal.” Blondett v. State, 921 S.W.2d 469, 477 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd).

Bearing these standards in mind, we now review the objections to the record asserted by Lomax.

STATEMENT OF TRIAL JUDGE

Lomax contends that, during the testimony of lab technician Winston Johnson, the trial judge sua sponte informed the jury that a second blood specimen was not taken from Lomax on the occasion in question because “he fled the hospital.” Two witnesses testified that Lomax left the hospital before being discharged. A nurse testified that he “left the hospital without knowledge of the staff.” The director of the hospital lab testified that a second blood specimen was not taken from Lomax because “[h]e fled the hospital.” The reporter’s record does not reflect that the trial judge ever personally made this statement.

Lomax alleged in his motion for new trial that the judge made this statement. He testified at the hearing on his motion for new trial that the judge did so. The State has never challenged this assertion. Accordingly, we will order the trial court to determine whether this statement was made and, if so, to have the record corrected.

ITEMS NOT OFFERED IN EVIDENCE

Lomax contends that the reporter’s record does not include: (1) the written statements of Elaine Torres, a witness to the collision; (2) the statement of the victim’s mother, Ingrid Castillo; and (3) Ingrid Castillo’s medical records. However, these items were not offered in evidence. Because they were not, they cannot be considered on appeal. See Webber v. State, 21 S.W.3d 726, 731 (Tex.App.-Austin 2000, pet. ref'd). Accordingly, Lomax’s motion is denied with respect to these items.

DOCUMENTARY EXHIBITS OFFERED IN EVIDENCE

Lomax contends that several documentary exhibits which were offered in evidence have been omitted from the reporter’s record. Those exhibits are: (1) numerous accident reports concerning other accidents in the same vicinity as the collision from which Lomax’s prosecution stems, offered in evidence as Defendant’s Exhibit No. 67; (2) the EMS report from the collision in question, apparently admitted at trial as Defendant’s Exhibit No. 58 and re-admitted in the hearing on Lomax’s motion for new trial as Defendant’s Exhibit No. 3; (3) a stipulation tendered to the trial court at the beginning of trial and marked as State’s Exhibit No. 57; (4) the autopsy report, admitted at trial as State’s Exhibit No. 55; and (5) certain pictures of the victim, apparently offered in evidence as State’s Exhibits Nos. 2, 66, and 67.

The reporter’s record on file with this Court includes Defendant’s Exhibit No. 67, State’s Exhibit No. 57, and State’s Exhibit No. 55. The other exhibits referenced by Lomax are not included in the reporter’s record. Accordingly, we will order the trial court to have the record corrected to include these exhibits if they were offered in evidence at trial and/or during the hearing on Lomax’s motion for new trial.

JURY STRIKE LISTS

Lomax contends that the clerk’s record is deficient because it does not include copies of the jury strike lists. He does not cite a basis for their inclusion in the clerk’s record. We note that juror information is confidential, and its disclosure is statutorily prohibited absent a showing of good cause. See Tex.Code Crim. PROC. Ann. art. 35.29 (Vernon Supp. 2004). Accordingly, we will order the trial court to have the clerk’s record supplemented to include the jury strike lists if Lomax makes the requisite showing of good cause.

POOR QUALITY PHOTOGRAPHS

Lomax contends that a number of the photographs offered in evidence and included in the reporter’s record are of “very poor quality and ... useless to the appellant because they do not reflect what the jury seen [sic] and the appellant cannot show this court what error was committed at trial.... ” Lomax requests that the originals be included.

Lomax seems to be requesting that the originals “or exact color copies” be provided directly to him. If so, that request is denied. Rule 34.6(g)(2) authorizes this Court to review original exhibits on the request of the trial court, a party, or on its own initiative. Tex.R.App. P. 34.6(g)(2). The trial court may consider this issue during the abatement hearing and have the originals forwarded to this Court if the trial court determines that they should be. Id. Until the appellant’s brief is filed, this issue is premature for a ruling by this Court.

MISSING VOLUMES

Lomax contends that he was not provided copies of volumes 16 and 17 of the Reporter’s Record. The transmittal letter from the district clerk to Lomax recites that the reporter’s record contains 17 volumes. The reporter’s record on file with this Court has only 15 volumes. Accordingly, we will instruct the trial court to determine whether there are 2 additional volumes of the reporter’s record and, if so, to forward copies of those volumes to this Court and to Lomax.

EXHIBIT INDEX

This Court notes that the reporter’s record does not contain an exhibit index. See Uniform Format Manual for Texas Court Reporters § 16.20(c), 62 Tex. B.J. 595 (1999). The parties offered more than 150 exhibits at trial which cover hundreds of pages in four volumes of the reporter’s record. An exhibit index is essential to aid the parties and this Court in evaluating the merits of the appeal. Accordingly, we instruct the court reporter to prepare an exhibit index as provided by the Uniform Format Manual after the trial court has determined what other modifications must be made to the reporter’s record.

CONCLUSION

We abate this appeal to the trial court for a hearing to determine the accuracy of the reporter’s record with respect to: (1) the alleged sua sponte statement of the trial judge; (2) the documentary exhibits offered in evidence but not included in the reporter’s record; and (3) any omitted volumes (ie., volumes 16 and 17). See Tex.R.App. P. 34.6(e)(3); Winkfield v. State, 792 S.W.2d 727, 729 (Tex.App.-Corpus Christi 1990, pet. ref'd); see also Camp v. State, 16 S.W.3d 920, 921 (Tex.App.-Waco 2000, order, pet. ref'd) (abating for supplementation of clerk’s record); Moss v. State, 13 S.W.3d 877, 880 (Tex.App.-Fort Worth 2000, pet. ref'd) (discussing similar abatement). The trial court in its discretion may also consider the clarity of the photographs about which Lomax complains and any other deficiencies or inaccuracies which Lomax or the State may call to the court’s attention. The court is ordered to conduct this hearing within thirty days after the date of this order.

If the court finds that the record is inaccurate, then the court is ordered to sign a written order reflecting this finding and ordering the court reporter to (1) prepare a corrected record which “conform[s] to what occurred in the trial court” and (2) file it with the Clerk of this Court. See Tex.R.App. P. 34.6(e)(2). If the court finds that the record is accurate, then the court is ordered to sign a written order to that effect.

If the court finds that the clerk’s record should be supplemented by the inclusion of the jury strike lists or should be corrected or supplemented in some other respect, then the court is ordered to sign a written order reflecting this finding and ordering the district clerk to (1) prepare a supplemental clerk’s record and (2) file it with the Clerk of this Court. Id. 34.5(c)(1). If the court finds that no supplementation or correction of the clerk’s record is necessary, then the court is ordered to sign a written order to that effect.

Regardless of whether the court orders a supplementation or correction of the record, the district clerk is ordered to file a supplemental clerk’s record containing a copy of the court’s order(s) with the Clerk of this Court. Id. 34.5(c). If necessary to any issue on appeal, unless the parties waive the making of a reporter’s record in the abatement hearing, the court reporter is ordered to prepare and file a supplemental reporter’s record of the abatement hearing with the Clerk of this Court. Id. 13.1(a), 34.6(d). The supplemental record(s) and an exhibit index must be filed with the Clerk of this Court within forty-five days after the date of this order.

Lomax’s motion for extension of time to file the appellant’s brief is denied without prejudice. The timetable for filing the appellant’s brief will start anew when the supplemental record(s) required by this Order are filed.

      . More precisely, "Appellants Motion to Object to Trial Record # 907028 Because Said Trial Record is Incomplete,” which was filed on May 13, 2004. Lomax also has pending before this Court: (1) a "Request for Hearing due to Altered Trial Record” (filed on May 13, 2004); (2) a "Motion to Extend Time to File Appellants Brief due to the Fact the Trial Record is Incomplete” (filed on May 13, 2004); and (3) an "Appellants First Motion to Extend Time to Review Appellante [sic] Record (Due to the Appellante [sic] Record Being Incomplete” (filed on June 9, 2004)).

      . The State prosecuted Lomax for felony murder because of his involvement in a collision which resulted in the death of a 5-year-old. According to the evidence, he was intoxicated at the time of the collision.

      . If these exhibits were not included in the copy of the record provided to Lomax, they should be promptly provided to him.


author: DON H. REAVIS, Justice. PHIL JOHNSON, Chief Justice,

text:
    In re CALIBER ONE INDEMNITY COMPANY, Relator.
    No. 07-04-0271-CV.
    Court of Appeals of Texas, Amarillo.
    June 29, 2004.

      Tracy L. Jackson, Eggleston & Briscoe, Houston, for Relator.
    John T. Forbis, Childress, for Respondent.
    Jack McClendon, Montgomery Benton McClendon, McClendon Law Firm, James L. Wharton, G. Douglas Welch, Jones Fly-gare Brown & Wharton, P.C., Lubbock, for real parties in interest.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION ON PETITION FOR WRIT OF MANDAMUS

DON H. REAVIS, Justice.

By this original proceeding, relator Caliber One Indemnity Company seeks a writ of mandamus requesting that we order the Honorable John T. Forbis, presiding judge by assignment to the 237th District Court, to vacate his order of October 3, 2003, denying its motion to invoke appraisal and abate the underlying proceeding in cause number 2002-518,695. Presenting two issues, Caliber One contends (1) the trial court abused its discretion in denying its motion to invoke appraisal, and (2) it has no adequate remedy by appeal for the improper denial of contractual appraisal. We deny the petition for writ of mandamus.

Real party in interest McDougal Properties, Ltd. filed the underlying proceeding against Caliber One, a foreign insurance carrier and Acordia West Texas Agency, Inc., a Texas corporation, alleging causes of action based on (1) violations of section 4, article 21.21 of the Texas Insurance Code or as itemized in section 17.46(b) of the Texas Deceptive Trade Practices-Consumer Protection Act and (2) fraud. McDougal also seeks exemplary damages from both Caliber One and Acordia. However, by its pleadings, McDougal does not allege a breach of contract claim. While the underlying proceeding was pending removal to the United States District Court, Northern District of Texas, Lubbock Division, following unsuccessful mediation upon McDougal’s motion, the underlying cause was remanded to the 237th District Court.

Upon remand, Caliber One filed its motion to invoke appraisal and abatement of the proceeding. Although McDougal did not allege a cause of action based on the insurance policy or contract, Caliber One sought to invoke the appraisal provision of the insurance policy as follows:

If we and you disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will:
A. Pay its chosen appraiser; and
B. Bear the other expenses of the appraisal and umpire equally.

By its written response to Caliber One’s motion, among other things, McDougal contended that appraisal under the policy was not implicated because its suit was not based on the insurance contract or policy and it was not suing for breach of the policy, but instead was based on chapter 21 of the Texas Insurance Code, the Deceptive Trade Practices Act, and fraud arising from the misrepresentations of Caliber One and Acordia in marketing the policy and in dealing with the claim.

Standard of Review

A writ of mandamus will only issue to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy by appeal, and the relator has the burden to present the appellate court with a record sufficient to establish the right to mandamus. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex.1992) (orig.proceeding). With respect to factual matters committed to the trial court’s discretion, the appellate court may not substitute its judgment for that of the trial court. Id. However, a review of a trial court’s determination of controlling legal principles is entitled to much less deference. Id. at 840. In our analysis, we “must focus on the record that was before the court and whether the decision was not only arbitrary but also amounted to a clear and prejudicial error of law.” Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex.1998).

Abatement

Although by its issues Caliber One does not expressly address abatement which relator sought in the trial court, because it seeks an order directing the trial court to grant its motion, we first address that issue. Regarding abatement, it has been held that the failure of a trial court to grant a motion to abate is not subject to mandamus. In Re Allstate County Mut. Ins. Co., 85 S.W.3d 193, 196 (Tex.2002). Accordingly, we hold the trial court did not abuse its discretion in denying the request for abatement.

Appraisal

By its first issue, Caliber One contends the trial court abused its discretion in denying its motion to invoke the appraisal provision of the insurance policy, and by its second issue contends it has no adequate remedy by appeal for the improper denial of contractual appraisal. We disagree.

By its finding of fact number four, the trial court found that McDougal does not allege or seek recovery for breach of contract but that all of its claims are extra-contractual. Because the complete record was before the trial court, we are bound by its factual determination. See Walker, 827 S.W.2d at 837-39.

In addition to findings of fact, three of the trial court’s 21 conclusions of law address the appraisal provisions in the policy.

No. 5. An appraisal is inappropriate to resolve extra-contractual claims in the absence of a contractual claim. Thus, an appraisal is inappropriate to resolve the plaintiffs claims.
No. 6. An appraisal may only be used to resolve disputes under the contract that relate to value determinations.
No. 17. An appraisal is inappropriate to resolve extra-contractual claims in the absence of a contractual claim. Thus, an appraisal is inappropriate to resolve the plaintiffs claims.

Citing Vanguard Underwriters Ins. Co. v. Smith, 999 S.W.2d 448 (Tex.App.-Amarillo 1999, no pet.), Caliber One argues the trial court abused its discretion in denying its motion to invoke the appraisal provision of the contract. However, Vanguard is not controlling because there, real parties sought to recover on multiple grounds, including damages under the policy in addition to their claims under the Deceptive Trade Practices Act and exemplary damages. . Here, however, McDougal does not seek to recover under the policy or contract. Also, the insured in Vanguard did not join the insurance agent alleging fraud or violations of the Deceptive Trade Practices Act.

Caliber One also cites In re Terra Nova Insurance Co., 992 S.W.2d 741 (Tex.App.-Texarkana 1999, no pet.). However, Terra Nova does not hold that a provision for appraisal is applicable in the absence of a suit or claim based on the policy or contract of insurance. The trial court concluded that the provision for appraisal was appropriate because the suit asserted contract claims under the policy and extra-contractual claims. Id. Although the court held that the carrier had the right to invoke the provision for appraisal on the policy claims, mandamus was denied because the trial court had discretion to decide when the appraisal should take place. Id. However, the court did recognize that the provision for appraisal was not applicable to the extra-contractual claims. Id.

Caliber One’s reliance on Allstate, 85 S.W.3d at 193, is also misplaced. In Allstate, the question presented was whether a provision in an automobile policy of insurance was unenforceable as an agreement to arbitrate. In conducting its analysis to determine that the enforcement of the appraisal provision was not contrary to public policy, the Court reasoned:

• as to plaintiffs’ breach of contract claim, the parties have agreed in the contract’s appraisal clause to the method by which to determine whether a breach has occurred;
• the appraisals go to the heart of the plaintiffs’ breach of contract claim; and
• a refusal to enforce the appraisal process will prevent the defendants from obtaining the independent valuations that could counter at least the plaintiffs’ breach of contract claims.

Id. at 196. Here, however, the public policy question regarding appraisal provisions in an insurance policy is not presented. Indeed, McDougal has not made any claims under the policy. Because the Court in Allstate based its holding that the provision for appraisal was not an agreement to arbitrate on contract principles only and did not address the non-contractual claims, Allstate is not controlling because McDougal does not seek to recover on the policy.

We have not overlooked Caliber One’s argument presented in its petition that McDougal’s claims under article 21.21 and under the Deceptive Trade Practices Act are inextricably intertwined with a determination that Caliber One failed to pay the value of the claim. The purposes of pleadings are:

• define the issues to be tried; Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex.1982);
• advise the court of the facts that are relied on to sustain or defend the suit; National Life Assurance Company of Texas v. Neves, 870 S.W.2d 144, 146 (Tex.Civ.App.-Eastland 1963, writ ref'd n.r.e.); and
• record for the benefit of all who may subsequently be concerned the matters actually in issue and determined by the judgment. Glenn v. Dallas County Bois D’Arc Island Levee Dist., 114 Tex. 325, 268 S.W. 452, 453 (1925).

As is common in original proceedings, the record presented here is not as complete as the record before the trial court. However, the record here does not show that Caliber One’s contention that McDou-gal’s claim is inextricably intertwined with a determination that Caliber One failed to pay the value of the claim was presented to the trial court by pleading or the motion. Moreover, Caliber One does not contend that it placed the policy or contract in issue by pleading, whether counterclaim, declaratory judgment, or otherwise. Focusing on the record that was before the trial court and whether the decision was not only arbitrary but also amounted to a “clear and prejudicial error of law,” we cannot conclude from the record that the trial court abused its discretion.

Accordingly, the petition for writ of mandamus is denied.

JOHNSON, C.J., concurring.

PHIL JOHNSON, Chief Justice,

concurring.

As the majority notes, the record in this case differs from that before us in Vanguard. Here, McDougal’s Original Petition is before us, Caliber One’s Answer is not, and no contractual claim is being made against Caliber One. Moreover, Caliber One does not claim that its contract with McDougal contains a provision which precludes this type of suit from proceeding until after the appraisal provision is complied with.

To the extent that the majority opinion can be read to say that Caliber One does not have a contractual right to appraisal, or that its contractual appraisal right is inapplicable so long as McDougal does not make a contractual claim, I would not go so far in this mandamus proceeding. I agree that, given the timing of the motion, the status of the lawsuit’s progress, and the circumstances presented to the trial court as demonstrated by this mandamus record, the trial court did not abuse its discretion in denying Caliber One’s motion seeking to invoke the appraisal provision. See Terra Nova, 992 S.W.2d at 742.

      . Acordia is not a party to this original proceeding.

      . This provision is substantially different to the provision for appraisal contained in the Texas Standard Homeowners Policy presented in Vanguard Underwriters Ins. Co. v. Smith, 999 S.W.2d 448, 450 (Tex.App.-Amarillo 1999, no pet.). The provision for appraisal contained in a personal automobile policy promulgated by the Texas Department of Insurance is not set out in In re Allstate County Mut. Ins. Co., 85 S.W.3d 193 (Tex.2002).