author: SHERRY RADACK, Chief Justice.

text:
    Scott Edward BERRETT, Appellant, v. The STATE of Texas, Appellee.
    No. 01-02-01210-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 13, 2004.
    Rehearing Overruled Aug. 27, 2004.
    Discretionary Review Refused Jan. 19, 2005.

      Lee D. Cox, Richmond, for appellant.
    Scott Edward Berrett, East Bernard, pro se.
    David C. Newell, John H. Harrity, III, Assistant District Attorneys — Fort Bend County, John Healey, District Attorney— Fort Bend County, Richmond, for appel-lee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION

SHERRY RADACK, Chief Justice.

A jury convicted appellant, Scott Edward Berrett, of interference with public duties, and the trial court, in accordance with a plea agreement as to punishment, sentenced appellant to 180 days’ confinement, probated for one year. We affirm.

BACKGROUND

On August 15, 2001, Officer Matthew Meek of the Rosenberg Police Department stopped appellant because appellant was not wearing his seatbelt. Meek and appellant pulled into the parking lot of Kwik Kar Lube. Meek got out of his patrol car, and appellant, without being requested to do so, got out of his vehicle and approached Meek. Appellant told Meek that he had been stopped earlier that day for an expired inspection sticker.

Meek asked to see appellant’s driver’s license and proof of insurance. Appellant gave Meek his proof of insurance and a driver’s license with the name “Elvis Presley” on it. Eventually, appellant gave Meek his correct driver’s license.

Meek told appellant that he was going to give him a citation for failure to wear a seatbelt. Appellant became hostile and said that the citation was a “chicken-shit charge.” Meek realized that appellant’s hostile -response “increased the situation, [made him] step up a notch where [he] was more aware, realizing [appellant] was becoming hostile, and it could become more potential [sic] hazardous situation.”

Appellant began to pace back and forth. Meek told appellant to stop pacing. Appellant replied that Meek’s order to stop pacing violated his constitutional rights. Meek then called for back-up.

Appellant walked back toward his car; Meek told him not to return to the car, but appellant continued anyway. Meek and an onlooker both testified that they were afraid that appellant was going to the car to get a gun. Instead, appellant, a reporter, retrieved a video camera from his car. Appellant began exclaiming to onlookers at the Kwik Lube that Meek was abusing him and treating him unjustly. Meek then called and requested that his supervisor come to the location.

Meek tried to approach appellant’s car to look at the vehicle registration and inspection stickers. Appellant moved toward Meek in an aggressive manner. Meek, fearing for his safety, pushed appellant in the chest. Appellant became more irate and hostile, but did not stumble back at all. He yelled that Meek had assaulted him. Meek testified that he was scared and did not attempt to arrest appellant because he believed that he would need to use force to handcuff appellant. Instead, Meek returned to his car to finish writing the citation. .

Officer Meek again approached appellant with the citation and asked appellant for his telephone number, his address of employment, and his social security number. Appellant refused to provide the information, claiming that he did not have to give it and that it was none of Meek’s business. Meek twice asked appellant to sign the citation. He tried to explain that all he wanted appellant to do was sign the citation. Appellant refused. Meek testified that, had appellant signed the citation, he would have been released. Because appellant refused to sign the citation, Meek decided to arrest appellant.

Meek told appellant to put his hands on the car. Appellant refused and continued videotaping the incident. Meek grabbed appellant’s left arm, while appellant continued to hold the camera in his right hand. Meek placed appellant’s torso on the car while he attempted to gain control of appellant’s right arm. Appellant continued to move his right arm in an attempt to continue filming. Meek made at least 15 requests for appellant to place his right arm behind his back. Appellant refused and continued attempting to film. In an attempt to subdue appellant, Meek sprayed him with OC spray. Appellant continued to hold the camera.

Finally, Officers Pausewang and Stephen arrived to assist Meek in subduing appellant. Pausewang removed the camera from appellant’s right hand and took control of appellant’s right arm. The three officers took appellant to the ground and gained control of him. Both Meek and Pausewang testified that this was appropriate police protocol. During the process, appellant scraped his knees. EMS arrived at the scene and decontaminated appellant’s eyes from the use of the OC spray. Appellant was transported to jail and was arrested for, among other things, the seatbelt violation.

COMMENT ON APPELLANT’S FAILURE TO TESTIFY

In point of error one, appellant contends that the prosecutor unconstitutionally commented on appellant’s failure to testify in his own defense. During appellant’s closing statement, the following exchange took place:

[Appellant]: I — I couldn’t believe what was going on. At that point he was a mugger. I’m not going to sign anything from a mugger, somebody who has assaulted me, not once, not twice, but three times; and the third time — you’ve seen the pictures. You’ve seen what I’ve gone through. That’s in evidence.
[Prosecutor]: Your Honor, my objection is that the defendant waived his right to testify. This is not a proper time for him to testify.
[The court]: Overrule—
[Appellant]: I’m just reviewing the evidence for the jury. I’m sorry?
[The court]: Overrule the objection. You may proceed.
[Appellant]: Thank you.

Appellant did not object at trial to the prosecutor’s statement. As such, nothing is preserved for our review. See Johnson v. State, 629 S.W.2d 953, 954 (Tex.Crim.App.1982) (holding that failure to object to prosecutor’s comment on defendant’s failure to testify preserved nothing for appellate review).

We overrule point of error one.

LEGAL AND FACTUAL SUFFICIENCY

Appellant was charged with violating section 38.15 of the Texas Penal Code, which provides:

(a) A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with:
(1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law;
(d) It is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted of speech only.

Tex. Pen.Code Ann. § 38.15(a)(1),(d) (Vernon 2002).

Appellant contends that the evidence is legally and factually insufficient to show that he violated the above-referenced statute. In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App.1998); Wilson v. State, 863 S.W.2d 59, 65 (Tex.Crim.App.1993). Under the factual sufficiency standard, we ask “whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App.2000)

Appellant contends that his refusal to place his right hand behind his back was not a voluntary act, but was, instead, an omission to act for which he could not be held criminally liable absent a showing that he had a duty to comply. He also seems to argue that his actions were “mere speech,” which is a defense to the charge. We. disagree.

Appellant voluntarily kept filming and moving his arm out of Meek’s reach in an effort to prevent Meet from placing him in handcuffs. On more than 15 occasions, Meek told appellant to put his right arm behind his back, but each time, appellant moved his arm out of Meek’s reach and continued to film the encounter in a manner that precluded his arrest. We conclude that such conduct, in these circumstances, constituted voluntary action, not a mere omission to act. As a result, the State did not have to prove that appellant had a duty to submit to the arrest. Furthermore, appellant’s actions in repeatedly pulling away from the officer and filming the encounter in such a way as to interfere with the arrest were more than “mere speech.”

In Key v. State, 88 S.W.3d 672, 676-77 (Tex.App.-Tyler 2002, pet. ref'd), the defendant, similarly, was charged with interference with public duties. Id. In that case, the investigating officers told Key six times to remain on the sidewalk while they talked to others at the scene. Id. On each occasion, Key stepped off the sidewalk and approached the two people the police were questioning. Id. The court of appeals held that this behavior was more than mere speech and was legally and factually sufficient to support a conviction for interfering with the public duties of the officers. Id.

We hold that appellant’s actions in interfering with Meek’s attempts to arrest him were legally and factually sufficient to show that appellant interfered with Meek’s public duties.

Appellant also argues that Meek was not under a duty to arrest him, and that Meek could have, instead, allowed him to leave the scene even though appellant refused to sign the citation. Appellant’s argument is without merit.

A person interferes with public duties “if the person ... interferes with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.” Tex. Pen. Code Ann. § 38.15(a)(1). Even if Meek was not obligated to take appellant into custody, he was acting within his discretionary authority to do so when he arrested appellant for not wearing a seatbelt. It is a violation of the Transportation Code to drive while not wearing a seatbelt. Tex TRAnsp. Code Ann. § 545.413 (Vernon 1999). The Transportation Code further provides that “any peace officer may arrest without warrant a person found committing a violation of this subtitle.” Tex. TRAnsp. Code Ann. § 543.001 (Vernon 1999); see also Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001) (holding that Fourth Amendment not violated when officer makes custodial arrest for driving without a seatbelt). It is uncontested that appellant was not wearing his seatbelt when Meek pulled him over. The evidence is legally and factually sufficient to show that Officer Meek exercised authority the law grants to him when he placed appellant under arrest for failing to wear his seatbelt.

Accordingly, we overrule point of error two.

JURY INSTRUCTION

In point of error three, appellant contends that the trial court erred by refusing to instruct the jury on whether he could have been released, rather than arrested, for a Class C misdemeanor. During the State’s questioning of Meek, the following exchange took place:

[Prosecutor]: So if [appellant] would have just agreed to sign the ticket, he would have been on his merry way; is that correct?
[Meek]: Yes, ma’am.
[Prosecutor]: Is there any way to secure court attendance, any other way other than taking that person into custody—
[Meek]: No, ma’am.
[Prosecutor]: — when they won’t sign the ticket?
[Meek]: No, ma’am.

Later, outside the presence of the jury, the trial court remarked, “I am not comfortable even where the officer is saying to the jury that the only way they can get him in the court is either if you sign the ticket or arrest him, because that’s just not — I just know it’s not true.” The trial court then, sua sponte, instructed the jury as follows:

Texas law provides that to secure release a person arrested must make a written promise to appear in court by signing the written notice to appear by the arresting officer. The officer shall then promptly release the person from custody.
■ Texas law further provides that a peace officer who is charging a person with committing an offense that is a Class “C” misdemeanor may, instead of taking the defendant before a magistrate, issue a citation to the person that contains written notice at the time and place the defendant must appear before a magistrate, the name and address of the person charged, and the offense charged. Texas law further provides that a defendant may be released without signing a written promise to appear. When a defendant is so released by the arresting officer and fails to appear before a magistrate at the time and place stated in the citation, the magistrate may cause to issue a summons commanding the defendant to appear in court at a time and place stated in the summons; or the magistrate may cause to issue a capias that commands any peace officer of this state to arrest the defendant to bring him before the Court immediately or on a day or at a term stated in the capias.

(Emphasis added).

At the charge conference, appellant requested that the above-referenced instruction, which the trial court gave verbally, be included in the charge. The trial court refused. Appellant contends that, by fading to also include the instruction in the charge, the trial court reversibly erred. We disagree.

When an appellant’s requested charge is not a correct statement of the law, the trial court does not err in refusing to submit the charge. See DeJesus v. State, 889 S.W.2d 373, 379 (Tex.App.-Houston [14th Dist.] 1994, no pet.); Showery v. State, 678 S.W.2d 103, 109 (Tex.App.-El Paso 1984, pet. ref'd). In this case, the requested instruction is not a correct statement of the law.

The Texas Code of Criminal Procedure provides:

A peace officer who is charging a person, including a child, with committing an offense that is a Class C misdemean- or, other than an offense under Section 49.02, Penal Code, may, instead of taking the person before a magistrate, issue a citation to the person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged.

Tex.Code CRiM. PROC. Ann. art. 14.06(b) (Vernon Supp.2004).

Similarly, the Texas Transportation Code provides:

An officer who arrests a person for a violation of this subtitle punishable as a misdemeanor and who does not take the person before a magistrate shall issue in duplicate a written notice to appear in court showing the time and place the person is to appear, the offense charged, the name and address of the person charged, and, if applicable, the license number of the person’s vehicle.

Tex. TRAnsp. Code Ann. § 543.003 (Vernon 1999).

Under both of these statutes, a peace officer, in lieu of a custodial arrest (which requires promptly taking the arres-tee before a magistrate), may issue a citation or notice to appear before a magistrate to a defendant who commits a Class C misdemeanor. The Code of Criminal Procedure is silent as to whether a citation requires an alleged offender’s promise to appear. The Transportation Code, however, has an additional section, which further provides:

To secure release [after receiving a written notice to appear or citation], the person arrested must make a written promise to appear in court by signing in duplicate the written notice prepared by the arresting officer. The arresting officer shall retain the original of the notice and deliver the copy of the notice to the person arrested. The officer shall then promptly release the person from custody.

Tex. TRAnsp. Code Ann. § 543.005 (Vernon 1999).

The trial court apparently believed that the above-referenced provisions were in conflict because the Code of Criminal Procedure does not contain a requirement that a defendant sign a written promise to appear before being released after receiving a citation, while the Transportation Code does. We perceive no such conflict.

The Code Construction Act mandates that we should attempt to harmonize any apparent conflict between two provisions so that both provisions are given effect. See Tex. Gov’t Code Ann. § 311.026(a) (Vernon 1998); see also Cheney v. State, 755 S.W.2d 123, 126 (Tex.Crim.App.1988) (“effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy”).

We believe that the statutes can be harmonized so as to give effect to all. Under both 14.06(b) of the Code of Criminal Procedure and 543.003 of the Transportation Code, a peace officer may issue a notice to appear before a magistrate to a defendant charged with a Class C misdemeanor, rather than taking the arrestee promptly before a magistrate. Article 543.005 of the Transportation Code does not conflict with these provisions; rather it provides an additional requirement in the context of arrests made pursuant to a violation of the Transportation Code. Specifically, before an officer may issue a citation and release a defendant charged with violating the Transportation Code, the defendant must also sign a promise to appear before a magistrate. Only then does the officer have a duty to release the defendant from custody. If the defendant does not promise to appear, the officer is under no duty to release him. Instead, the officer could choose to take the defendant immediately before a magistrate. See Tex. TRAnsp. Code Ann. § 543.002 (Vernon 1999). To secure a release for a violation of the Transportation Code, the defendant must sign a promise to appear. See Tex. TRAnsp. Code Ann. § 543.005. Once he does so, “the officer shall then promptly release the person from custody.” Id.

Appellant, in this case, was charged with a Class C misdemeanor — failing to wear a seatbelt — pursuant to section 545.413 of the Transportation Code. Therefore, the proposed charge, which stated that appellant was not required to sign a promise to appear in order to obtain his release after receiving such a citation, was an incorrect statement of the law. As such, the trial court did not err by refusing to place the requested instruction in the charge.

We overrule point of error three.

We affirm the judgment.

      . See Tex. Pen.Code Ann. § 6.01 (Vernon 2002) (stating that a person who omits to perform an act does not commit an offense unless the law provides that the omission is an offense or otherwise provides that he has a duty to perform the act).

      . Appellant also appears to argue that he should have been charged with resisting arrest, rather than interference with public duties. However, he never filed a motion to quash, thus, this argument is waived. See Short v. State, 995 S.W.2d 948, 953 (Tex.App.Fort Worth 1999, pet. ref’d) ("By failing to timely object to the substance of the indictment under the doctrine of in pari materia, appellant waived her complaint on appeal.”).

      . Failure to wear a seatbelt is a Class C misdemeanor. See Tex Transe. Code Ann. § 545.413(d); Tex. Pen.Code Ann. § 12.23 (Vernon 2003).


source: Caselaw Access Project

author: LAURA CARTER HIGLEY, Justice.

license: Public Domain

text:
    Tracy SUTTLES and TS—Clare, Inc., Appellants, v. THE THOMAS BEARDEN COMPANY, Appellee.
    No. 01-02-01077-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 22, 2004.
    Rehearing and En Banc Rehearing Overruled Jan. 10, 2005.

      Scott Douglas Cunningham, Cunningham Law Firm, Houston, TX, for Appellant.
    Joe Steven Stewart, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices JENNINGS and HIGLEY.
   OPINION ON MOTION FOR REHEARING

LAURA CARTER HIGLEY, Justice.

Appellee, The Thomas Bearden Company (“TBC”) has filed a motion for rehearing and first supplemental motion for rehearing. We grant rehearing, withdraw our opinion of February 26, 2004, issue this new opinion in its stead, and vacate our February 26, 2004 judgment.

This is an appeal from a summary judgment in favor of TBC and against appellants, Tracy Suttles and TS — Clare, Inc. (“TS — Clare”). At issue in this case is appellants’ liability on a promissory note. Appellants raise eight issues on appeal: (1) whether the trial court erred in granting TBC’s motion for partial summary judgment as to Suttles, (2) whether the trial court properly construed a facially unambiguous promissory note, (3) whether the trial court, if the promissory note was ambiguous, failed to recognize material fact issues arising from the competing interpretations, (4) whether Suttles can be held individually liable on the promissory note, (5) whether material fact issues existed with respect to the capacity in which Suttles signed the promissory note, (6) whether Business and Commerce Code, subsection 3.402(b)(1) governed the promissory note, (7) whether the promissory note is void and unenforceable under Revised Civil Statute article 6573a sections 20 and 26, and (8) whether material fact issues existed as to the consideration supporting the promissory note.

We reverse and remand as to Tracy Suttles but affirm as to TS — Clare, Inc.

Facts & Procedural History

On June 28, 1999, Suttles signed a one-page promissory note payable to TBC in the principal amount of $250,000. The note stated, in relevant part, as follows:

FOR GOOD AND VALUABLE CONSIDERATION, the undersigned Borrowers, jointly and severally, do hereby promise to pay to Thomas Bearden (Lender), the amount of $250,000, together with interest accrued at the rate of 7% percent [sic] per annual [sic]. Said amount is to be payable in 36 installments of Interest Only, the first of which is due on or before 25th of August, and following payments to be made on the 25th of each Month.

Suttles signed the note twice. His first signature appeared below the typed written body of the note as follows:

Gessner Partners Ltd_
TS Clare, Inc., General Partner
Tracy Suttles, President
Is/ Tracy Suttles
Borrower

In an empty space at the bottom of the page, the parties wrote a handwritten amendment to the note. Suttles again signed below the handwritten amendment, as did Bruce Ripper, the president of TBC. The amendment and parties’ signatures appeared on the note as follows:

Interest will accrue from Oct 17, 1997. A $50,000 principal payment will be due June 28, 2000.
/s/ Bruce Ripper
Is/ Tracy Suttles

On September 14, 2000, TBC gave appellants notice that the note was in default and demanded payment in the total sum of $290,523.18. On November 9, 2001, TBC sued on the note, naming Suttles, NBC Properties, Inc., TS — Clare, and Gessner as defendants. On March 8, 2002, TBC requested a partial summary judgment on its claims against both TS — Clare and Sut-tles. The trial court granted TBC’s motion for partial summary judgment against both TS — Clare and Suttles on July 9, 2002, after which TBC dismissed its remaining claims, making the partial summary judgment final.

Standard of Review

A traditional summary judgment under Rule 166a(e) is proper only when the mov-ant establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). In reviewing a summary judgment, we indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor. Johnson, 891 S.W.2d at 644; Lawson v. B Four Corp., 888 S.W.2d 31, 33 (Tex.App.-Houston [1st Dist.] 1994, writ denied). We take all evidence favorable to the non-movant as true. Johnson, 891 S.W.2d at 644; Lawson, 888 S.W.2d at 33. When, as here, a summary judgment does not state the specific grounds on which it was granted, a party appealing from the judgment must show that each of the independent arguments alleged in the motion is insufficient to support the judgment. Smith v. Houston Lighting & Power Co., 7 S.W.3d 287, 290 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

Liability on the Promissory Note

In their first six issues on appeal, appellants contend that the trial court erred in finding Business and Commerce Code, subsection 3.402(b)(1) did not shield Sutties from liability on the note. Specifically, appellants assert that the face of the note unambiguously showed that Suttles signed solely in his representative capacity as the president of TS — Clare; therefore, subsection 3.402(b)(1) relieved him of liability. In response, TBC contends that subsection 3.402(b)(1) is not applicable to the note because (1) TS — Clare was not “identified” in the instrument and (2) the note was ambiguous with regard to whether appellant signed solely in a representative capacity.

To prevail on a motion for summary judgment to enforce a promissory note, a plaintiff must establish that (1) a note exists, (2) the plaintiff is the legal owner and holder of the note, (3) the defendant is the maker of the note, and (4) a certain balance remains due and owing on the note. Blankenship v. Robins, 899 S.W.2d 236, 238 (Tex.App.-Houston [14th Dist.] 1994, no writ). To prove that the defendant is the maker of the note, the plaintiff must present summary judgment evidence indicating that the defendant’s signature appears on the note or that a representative of the defendant signed the note on the defendant’s behalf.

Even if it is shown that a defendant signed as the maker of a note, the defendant may nevertheless escape liability if the signature was made in a representative capacity. Tex. Bus. & Com.Code Ann. § 3.402 (Vernon 2003). Indeed, if Business and Commerce Code, subsection 3.402(b)(1) applies to a note, the signatory is not liable as a matter of law. Id. § 3.402(b)(1). Subsection 3.402(b)(1) provides as follows:

(b) If a representative signs the name of the representative to an instrument and the signature is an authorized signature of the represented person, the following rules apply:
(1) If the form of the signature shows unambiguously that the signature is made on behalf of the represented person who is identified in the instrument, the representative is not liable on the instrument.

Id. (emphasis added).

To determine the applicability of subsection 8.402(b)(1), we primarily consider the words used in the statute itself. See Cities of Austin, Dallas, Fort Worth, and Hereford v. Southwestern Bell Tel. Co., 92 S.W.3d 434, 442 (Tex.2002). However, we may also consider the object to be attained by the statute, the circumstances surrounding the statute’s enactment, legislative history, former statutory and common law, and the consequences of a particular construction. Id.

The words used in an enactment shall be interpreted in their ordinary sense, unless they are given a specific statutory definition. Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex.2000). We will also presume that the legislature used every word of a statute for a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981). We avoid construing a statutory provision in isolation from the rest of the statute, considering the act as a whole and not just single phrases, clauses, or sentences. Morrison v. Chan, 699 5.W.2d 205, 208 (Tex.1985).

In the instant case, as president of the corporation, Suttles was a representative of TS — Clare. Relatedly, the parties do not dispute Suttles’s authority to bind TS — Clare to the note. The note, itself, shows that TS — Clare was identified in the signature block of the instrument. Also, the signature block identified Suttles as president of TS — Clare. We conclude that, when Suttles signed the note’s signature block, he did so as an authorized representative of TS — Clare. We further conclude that TS — Clare was identified in the instrument and that the form of the signature block showed unambiguously that Suttles’s signature was made on behalf of TS — Clare.

We disagree with TBC’s contention that the “represented person” (i.e., TS— Clare) was not identified in the note. Although TS — Clare was never mentioned in the body of the note, it was identified in the signature block in which Suttles signed. Subsection 3.402(b)(1) merely requires that the principal be identified “in the instrument.” Tex. Bus. & Com.Code Ann. § 3.402(b)(1). There is no requirement that the principal be identified in the body of the note. See id. We conclude that the identification of TS — Clare within the note’s signature block was sufficient “identification” under section 3.402(b)(1).

We also disagree with TBC’s contention that the form of Suttles’s signature failed to show unambiguously that the signature was made solely on behalf of TS — Clare. We find the three ambiguities identified by TBC to be unpersuasive.

First, TBC directs this Court’s attention to the body of the note, which refers to multiple borrowers and provides for joint and several liability among such borrowers. This, TBC contends, is inconsistent with the notion that only Gessner — and thus TS — Clare as its general partner— was meant to be liable on the note, thereby creating ambiguity as to the capacity in which appellant signed. However, under subsection 3.402(b)(1), we do not look to the note as a whole to discern whether representative capacity was ambiguous; we look only to the “form of the signature” to insure that the signature, itself, unambiguously shows representative capacity. See id. This analysis is more limited than that provided for under former section 3.403 — which directed courts to look to the “instrument” to determine representative capacity — but is required to give effect to the changed language of the statute. Compare Act of September 1, 1967, 60th Leg., R.S., ch. 785, § 3.403, 1967 Tex. Gen. Laws 2343, 2423 (amended 1995) with Tex. Bus. & Com.Code Ann. § 3.402(b)(1).

Second, TBC contends that the signature block does not unambiguously show that Suttles signed in a representative capacity because “although [Suttles] is identified as ‘President,’ his signature does not indicate that he is signing for TS-Clare, Inc. This could easily have been done by including the word ‘by’ in front of his signature.” The comments to section 3.402 indicate that the revisions made to former section 3.403 were for the purpose of providing further protection to agents who sign negotiable instruments in their representative capacity. Tex. Bus. & Com. Code Ann. § 3.402 cmt. 2. Thus, in drafting the new provision, the legislature moved away from case law under the former provision that interpreted section 3.403 to require an obsequious adherence to a specific signature form. Id. As the drafters state in the comments to the new provision

The approach followed by former Section 3-403 was to specify the form of signature that imposed or avoided liability. This approach was unsatisfactory. There are many ways in which there can be ambiguity about a signature. It is better to state a general rule. Subsection (b)(1) states that if the form of the signature unambiguously shows that it is made on behalf of an identified represented person (for example, “P, by A, Treasurer”) the agent is not liable. This is a workable standard for a court to apply.

Id. We conclude that, under revised section 3.402, a preposition was not required to show Suttles’s representative capacity; it was enough that the signature identify TS — Clare, Suttles, and the capacity in which Suttles signed on behalf of TS— Clare.

Finally, TBC contends that “the handwritten interlineations on the note are consistent with an interpretation of individual liability in that there is no indication of representative capacity whatsoever.” However, the signatures below the handwritten amendment to the note are neither consistent nor inconsistent with any theory of representative capacity.

Normally, a signature and any accompanying words are considered an indorsement unless the accompanying words, terms of the instrument, place of the signature, or other circumstances unambiguously indicate that the signature was made for a purpose other than indorsement. Tex Bus. & Com.Code Ann. § 3.204(a) (Vernon 2003).

In the instant case, both the placement of the signatures as well as the words accompanying them suggest that the signatures were merely an attempt by the parties to indicate on the face of the note that the handwritten portion thereof was an authorized amendment to the original terms of the note. They do not suggest that either Suttles or Bruce Ripper meant to become liable on the note as indorsers by means of such signatures. Given the limited purpose for which the parties signed, we conclude that Suttles’s failure to indicate his representative capacity when signing below the handwritten amendment neither made him individually liable on the note nor created ambiguity with regard to his signature on behalf of TS — Clare.

We conclude that TBC has failed to show either that TS — Clare was not identified in the note or that the form of Sut-tles’s signature was ambiguous as to his representative capacity.

We hold that, as a matter of law, appellant’s signature on the note did not make him individually liable on the note, pursuant to Business and Commerce Code, subsection 3.402(b)(1); therefore, the trial court erred in granting summary judgment as to Tracy Suttles.

We sustain appellants’ first six issues on appeal.

Enforceability of Promissory Note

In their seventh and eighth issues on appeal, appellants contend that the trial court erred in granting summary judgment because they presented sufficient summary judgment evidence to raise a material fact issue concerning their affirmative defense of failure of consideration.

Once a plaintiff establishes its right to summary judgment as a matter of law, the burden then shifts to the defendant as nonmovant to present evidence that raises a genuine issue of material fact, thereby precluding summary judgment. Parker v. Dodge, 98 S.W.3d 297, 299 (Tex.App.-Houston [1st Dist.] 2003, no pet.). A plaintiff who conclusively establishes the absence of a disputed fact issue will not be prevented from obtaining summary judgment merely because the defendant has pleaded an affirmative defense. Wilson v. Gen. Motors Acceptance Corp., 897 S.W.2d 818, 823 (Tex.App.-Houston [1st Dist.] 1994, no writ). An affirmative defense will prevent summary judgment only if the defendant comes forward with summary judgment evidence sufficient to raise an issue of material fact on each element of the defense. Parker, 98 S.W.3d at 300.

The defense of failure of consideration defeats summary judgment if the nonmovant alleges facts and presents evidence that the consideration in the agreement was not received. Stewart v. U.S. Leasing Corp., 702 S.W.2d 288, 290 (Tex.App.-Houston [1st Dist.] 1985, no writ). Generally, failure of consideration occurs when, because of some supervening cause after an agreement is reached, the promised performance fails. Id. A complete failure of consideration constitutes a defense to an action on a written agreement. Parker, 98 S.W.3d at 301.

Under common law, as long as something of real and legally cognizable value is given in exchange for a promise to pay under a promissory note, the note is supported by adequate consideration. See, e.g., Windham v. Alexander, Weston & Poehner, P.C., 887 S.W.2d 182, 184 (Tex.App.-Texarkana 1994, writ denied). Similarly, under the Uniform Commercial Code, a promissory note is issued for “value” if it is issued as payment of, or as security for, an antecedent claim against any person, whether or not the claim is due. Tex. Bus. & Com.Code Ann. § 3.303(a)(3) (Vernon 2003). If the note is issued for value, consideration exists. Id.

In the instant case, appellants contend that summary judgment was improper because the parties proffered contradictory summary judgment evidence as to the consideration for the note in question. Specifically, appellants contend that the evidence raised a material fact issue as to whether the obligation that was evidenced by the note was a loan or payment of a real estate commission. If the obligation was for payment of a real estate commission, appellants assert that the note was void for lack of adequate consideration because they were not obligated to pay TBC a real estate commission under the Real Estate License Act.

To determine whether a fact issue was raised as to the consideration supporting the note, we must look to the summary judgment evidence introduced by the parties.

In support of its motion for summary judgment, TBC introduced the sales contract from the real estate transaction underlying this dispute, which provided that NBJ Houston, Inc. (“NBJ”) would pay TBC a brokerage commission of $446,250. TBC also filed the affidavit of Bruce Ripper, its president. Ripper’s affidavit gave the following version of the events leading up to the execution of the note at issue:

2. This case arises from a real estate transaction in which Suttles purchased three apartment buildings located on Gessner Boulevard in Houston, Texas (the “Gessner Property”).
3. In 1997, NBJ owned the Gessner Property. It wanted to sell and various real estate brokers attempted to locate a buyer. One of these brokers was TBC. [TBC] had represented Suttles on previous transactions. He introduced Sut-tles to [NBJ] as a potential purchaser for the Gessner Property....
4.After this introduction, [NBJ] and Suttles negotiated and on June 25, 1997 entered into written contracts for the purchase and sale of each of the Gessner properties. On September 3, 1997, these contracts were merged into one agreement entitled Amended and Restated Agreement of Sale and Purchase.
6. The contract provided that Suttles would purchase the Gessner Property for the consideration of $13,825,000.00 cash at closing. It also provided that NBJ, as seller, would pay to TBC an aggregate commission equal to $446,250.00....
7. Suttles obtained financing for the purchase through a third party lending institution named Berkshire Mortgage which agreed to lend $12,000,000.00 or approximately 86% of the purchase price to Suttles.
8. Suttles was unable to obtain enough cash to cover the remaining portion of the purchase price and the deal was about to fold. To save the deal, he approached [NBJ] and TBC for money. Both agreed to help Suttles get the money and close the deal.
9. [NBJ] agreed to contribute capital to Suttles through two means. First, NBJ-Houston, Inc. made three loans to Suttles in the aggregate sum of $1,274,072.82. The sum of $1,000,000.00 was credited to Suttles from the amounts due NBJ from the closing. The additional sum of $274,072.82 was represented by two loan agreements and such funds were transferred by NBJ to Suttles outside of the closing of the Gessner Property. Second NBJ-Houston, Inc. agreed to purchase an initial 15% interest in a limited partnership called Gess-ner Partners, Ltd. (“Gessner”) for $200,000.00. Gessner was created to take title to the Gessner Property. Tracy Suttles held an ownership interest of 84% of Gessner and the corporation TS-Clare, Inc. was named general partner with an interest of 1%. NBJ-Houston, Inc. also agreed to purchase an interest in another limited partnership called Houston Oakridge Apartments, L.P. for the sum of $50,000.00. This limited partnership held title to other property not connected -with the Gessner Property. These funds were credited to Suttles from the amounts received by NBJ as seller at closing.
10. For its part, TBC agreed to loan to Suttles the sum of $378,000.00 from its total commission of $446,250.00. These funds were credited to Sut-tles from the brokerage received by TBC at closing.

The note at issue evidences that the money owed by appellants to TBC was in connection with the $378,000 loaned to appellants for the purpose of purchasing the “Gessner Property.”

In response to TBC’s motion for summary judgment, appellants filed the affidavit of Tracy Suttles. Suttles’s affidavit provided, in pertinent part, as follows:

3. The Note arises out of The Thomas Bearden Company’s (“Bearden”) attempt to document a commission for the sale of real estate it claimed in connection with a certain transaction involving the sale of real estate.
6. During the formation of Gessner and prior to October 16, 1997, [TBC] said that [it] felt like he deserved a commission for procuring [NBJ], a business prospect, in connection with the sale of NBJ’s real estate to Gessner. Ripper wanted a 3% commission for helping to put the deal together. Gessner does not have a written commission agreement with TBC or Ripper. TBC received some of its claimed commission at the time of closing. However, TBC did not receive approximately $250,000 of the commission it claimed in connection with the Gess-ner sale at the time of closing on October 16,1997.
7. Ripper later attempted to document the $250,000 he believed TBC was owed as a commission by having Gessner execute the Note. Ripper came to my office nearly two years after the Gessner deal closed, complaining that he had not received payment on the alleged commission agreement. The Note is the product of that conversation.

We conclude that the summary judgment evidence presented by appellants (■ie., Tracy Suttles’s affidavit) did not raise a material issue of fact concerning each issue of appellants’ affirmative defense. Appellants presented nothing to contradict the clause in the sales contract providing that NBJ — not appellants- — was responsible for payment of the brokerage commission to TBC. Moreover, Suttles’s vague statements in his affidavit failed to show that the obligation evidenced by the note was in return for TBC’s brokerage services. Instead, the summary judgment evidence indicates that TBC merely loaned appellants money that TBC was owed by NBJ as a brokerage commission. Although the $378,000 TBC loaned appellants was earned by TBC as a brokerage commission, the source from which the money was derived has no effect on the value appellants received from the loan.

We hold that appellants’ summary judgment evidence failed to raise a material issue of fact concerning their affirmative defense of failure of consideration.

We overrule appellants’ seventh and eighth issues on appeal.

Conclusion

Having held that, as a matter of law, Tracy Suttles could not be held individually liable on the basis of his signature on the note, and having further held that appellant failed to present sufficient summary judgment evidence to raise a material question of fact as to each element of their affirmative defense of failure of consideration, we reverse and remand the summary judgment as to Tracy Suttles but affirm the summary judgment as to TS— Clare.

      . Although the note identified "Thomas Bear-den” as the payee, the actual payee was "The Thomas Bearden Company.”

      . Bolded emphases in original.

      .Gessner Partners, Ltd. ("Gessner”) was a limited partnership in which TS — Clare served as the general partner. Suttles was president of TS — Clare.

      . A person is not liable on an instrument unless the person (1) signed the instrument; or (2) is represented by an agent or representative who signed the instrument and the signature is binding on the represented person under Business and Commerce Code, section 3.402. Tex. Bus. & Com.Code Ann. § 3.401(a) (Vernon 2003).

      . In 1995, the Texas Legislature revised this provision of the Business and Commerce Code. Under the old code, representative liability was covered under section 3.403 as follows:
      (b) An authorized representative who signs his own name to an instrument
      (1) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity.
      (2) except as otherwise established between the immediate parties, is personally obligated if the instrument names other person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.
      (c) Except as otherwise established, the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity.
      Act of September 1, 1967, 60th Leg., R.S., ch. 785, § 3.403, 1967 Tex. Gen. Laws 2343, 2423 (amended 1995) (current version at Tex. Bus. & Com.Code Ann. § 3.402 (Vernon 2003)) (emphasis added).
      The legislature's decision to omit the language in subsection 3.4039(c) when drafting revised section 3.402 indicates its intent to provide for a conclusive presumption that a representative is not personally liable when the representative signs his name together with his representative capacity and the represented person’s name. Compare Tex Bus. & Com.Code Ann. § 3.402(b)(1) with Act of September 1, 1967, 60th Leg., R.S., ch. 785, § 3.403, 1967 Tex. Gen. Laws 2343, 2423 (amended 1995).

      . Uniform Commercial Code Comment 2 states that "if the form of the signature unambiguously shows that it is made on behalf of an identified represented person (for example, 'P, by A, Treasurer'), the agent is not liable.” Tex. Bus. & Com.Code Ann. § 3.402 cmt. 2. We construe the example given by the commentators to allow for the identification of a represented party in a signature block.

      . TBC asserts that the revised language of the statute indicates the legislature’s intent that "one no longer looks solely at the form of the signature as previously required by former § 3.403.” However, this assertion mistakes the intended effect of the revision. Comment 2 to section 3.402 makes clear that, although revised section 3.402 does away with the requirement that a signature take a specific form, it nonetheless limits the scope of our analysis to the form of the signature when determining representative capacity. See Tex Bus. & Com.Code Ann. § 3.402 cmt. 2.

      . NBJ originally owned the properties made the basis of the real estate transaction underlying this dispute. NBJ sold the properties to Gessner.


author: JANE BLAND, Justice.

text:
    In re Richard H. ALSENZ, Relator.
    Nos. 01-04-00670-CV, 01-04-00672-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 21, 2004.

      Julia Leigh Kurtz, Thomas C. Wright, Wright Brown & Close, LLP, Thomas R. Conner, Conner & Lindamood, P.C., Houston, TX, for Relator.
    Lisa Millard, Houston, TX, for Respondent.
    Sallee S. Smyth, Short & Jenkins, L.L.P., Richard Lee Daniels, Houston, TX, for Real Party Interest.

      Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

JANE BLAND, Justice.

Relator Richard H. Alsenz petitions for a writ of mandamus, asking this court to set aside the trial court’s May 26, 2004 turnover order in the underlying cause, In the Matter of the Marriage of Richard Herman Alsenz and Marjorie Sue Alsenz, No.2000-28446 (310th Dist. Ct., Harris County, Tex.). We conclude that the trial court improperly ordered the turnover of funds from a supersedeas bond that our court had ordered released. We therefore conditionally grant the petition for a writ of mandamus.

Background

In January 2001, the trial court signed a final divorce decree between the relator, Richard H. Alsenz (Richard), and the real party in interest, Marjorie Sue Alsenz (Sue). The divorce decree awarded Sue trial and appellate attorney’s fees. In February 2003, this court reversed the trial court’s judgment and remanded the cause for “consideration of the fraud claim and a re-division of the marital estate,” in accordance with our opinion. Alsenz v. Alsenz, 101 S.W.3d 648, 657 (Tex.App.Houston [1st Dist.] 2003, pet. denied). Our judgment ordered that the “cash deposit of $97,351 made in lieu of a superse-deas bond by appellant, Richard H. Alsenz, be released from the registry of the trial court.”

In March 2004, Sue filed a “Motion to Release Supersedeas Bond,” asking the trial court to condition the release of Richard’s supersedeas bond, upon the turnover of $45,784.17 of the funds to Sue’s attorneys to satisfy her attorney’s fees. Richard opposed the motion. On May 13, 2004, the trial judge held a hearing. On May 18, 2004, the trial judge wrote the following as a docket entry:

The Ct orders the cash deposit of $97,351.00 made in lieu of a supersedeas bond ordered released from the registry of the trial court — the Ct hereby orders Mr. Alsenz to turnover from the proceeds of $97,351.00 to Richard Lee Daniels & Teresa Taylor in the amt of $25,000.00 plus post jdgmt int in the amt of $3,325.92 to satisfy the award of atty fees jdgmt / the Ct hereby orders Mr. Alsenz to turnover from the proceeds of $97,351.00 to Sallee Smythe [sic] in the amt of $17,458.25 for atty fees to satisfy the award of atty fees on appeal. Mr. Alsenz is ordered to turnover said sums upon receipt of the deposit of $97,351.00 made in lieu of a supersedeas bond.

On May 21, 2004, Sue filed an application for turnover relief, pursuant to the Texas Civil Practices and Remedies Code section 31.002, and a first supplemental application for turnover relief on May 24. Sue’s appellate counsel explained that she used the “turnover” language “in light of’ the trial court’s docket entry and “in an abundance of caution.” On May 26, 2004, an associate judge conducted another hearing on the application for turnover relief. The associate judge properly recognized that this court had reversed and remanded the cause for a new property division:

Didn’t the mandate set aside the property division and order a new property division in the underlying suit? ...

The amendment that I read said that the property division is set aside, period dot, and the other issues were to be considered. Wouldn’t they have to set aside the entire property division for the Court to address those three things— ... — depending on the outcome of them?
... One of the issues that came back in the mandate — wasn’t it the tort claims? So if all of a sudden the tort claims are granted and now mom’s separate property estate is 4.3 million dollars, doesn’t the Court have to consider that in dividing the other assets as well? I mean, you can’t just say, “Okay, this is the property division, and then this is the money judgment.” You can’t — You have to do it just and right as to the whole thing, don’t we?

On May 26, 2004, another trial judge signed an “Order on Motion to Release Supersedeas Bond.” The order requires the Harris County District Clerk to release the balance of all funds in the court’s registry to Richard, and further orders Richard to “turnover” $28,825.92 to Richard Daniels (Sue’s trial attorney) and $17,458.25 to Sallee Smyth (Sue’s appellate attorney).

On June 21, 2004, Richard filed a petition for writ of mandamus and a motion for emergency temporary relief. On June 23, 2004, this court granted the motion for temporary relief and stayed the trial court’s May 26, 2004 order.

Standard for Mandamus Relief

In an original mandamus proceeding, we determine whether the relator has an adequate remedy by appeal, and if not, whether the trial court abused its discretion in signing the order. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). We should not issue a writ of mandamus if an adequate remedy by appeal exists, as mandamus relief is an extraordinary remedy, available in limited circumstances. Id. at 840.

Without a final judgment, a turnover order is void, and mandamus relief lies to vacate the void order. See Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973) (providing mandamus relief for a void nunc pro tunc judgment entered after original judgment had become final). See also Ex parte Johnson, 654 S.W.2d 415, 417 (Tex.1983) (noting that turnover order designed to secure “satisfaction of a final judgment”); In re Bro Bro Properties, Inc., 50 S.W.3d 528, 531 (Tex.App.-San Antonio 2000, no pet.) (conditionally granting petition for writ of mandamus because trial court’s turnover order was premature absent final judgment). Moreover, mandamus relief is appropriate if a trial court issues a turnover order jeopardizing the disposal of assets, thus endangering a relator’s rights. Plaza Court, Ltd. v. West, 879 S.W.2d 271, 275-76 (TexApp.-Houston [14th Dist.] 1994, orig. proceeding) (holding that seizure of corporations’ assets not authorized under turnover statute absent finding that shareholders owned controlling majority of corporate stock).

Mandamus relief is also appropriate if a trial court includes a non-judgment third-party in a turnover order. Republic Ins. Co. v. Millard, 825 S.W.2d 780, 783-84 (Tex.App.-Houston [14th Dist.] 1992, orig. proceeding) (holding that rein-surer, who is neither judgment creditor nor judgment debtor, is not a proper party to postjudgment turnover proceedings). Here, the order states that Richard “shall turnover” funds to Sue’s attorneys, who are third parties not included in the original judgment vacated by this court. If he complies with the trial court’s order, then Richard has no adequate remedy by appeal. See Plaza Court, 879 S.W.2d at 276. We therefore hold that mandamus is an appropriate vehicle for challenging the trial court’s order.

The Turnover Order

In her response to the petition, Sue does not contest that the trial court’s order is invalid as a turnover order. She instead contends that the trial court’s order is not a “turnover order” under section 81.002 of the Texas Civil Practice and Remedies Code, because it is entitled “Order on Motion to Release Supersedeas Bond,” and the trial court deleted references to “Judgment Debtor” and “Judgment Creditor” in the form of the order. See Tex. Civ. PRAC. & Rem.Code Ann. § 81.002 (Vernon Supp. 2004). Sue urges that we construe the order instead as a “temporary order” under section 6.502 of the Family Code. Section 6.502 states:

(a) While a suit for dissolution of a marriage is pending and on the motion of a party or on the court’s own motion after notice and hearing, the court may render an appropriate order, including the granting of a temporary injunction for the preservation of the property and protection of the parties as deemed necessary and equitable and including an order directed to one or both parties:
(4) ordering payment of reasonable attorney’s fees and expenses.

Tex. Fam.Code Ann. § 6.502(a)(4) (Vernon Supp.2004-2005) (emphasis added).

Section 6.502, however, specifically requires notice and a hearing. Tex. Fam. Code Ann. § 6.502(a). Sue cannot convert a turnover order into a temporary order without notice and a hearing under the Family Code. See Post v. Garza, 867 S.W.2d 88, 90 (Tex.App.-Corpus Christi 1993, no writ) (holding that statute requiring notice and a hearing before divorce court may award interim attorney fees necessarily implies that opposing spouse may participate in hearing by cross-examining witnesses and presenting own evidence). Here, neither Sue nor the trial court provided notice or a hearing regarding a temporary order under section 6.502.

Moreover, although the trial court deleted the terms “Judgment Debtor” and “Judgment Creditor,” we look to the entire substance of the order in construing it. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex.1999). The order expressly conditions the release of Richard’s supersedeas bond upon the requirement that Richard “turnover” these funds directly to Sue’s attorneys. The trial court also struck through handwritten language on the order stating that it is a “temporary order on the court’s own motion.” In reversing the final judgment in this case, our court ordered the release of the supersede-as bond without condition. The trial court thus lacked the authority (1) to condition the release of the supersedeas bond in the absence of a final judgment from which execution lies and (2) to order the relator to pay the funds to third parties who could assert no claim based on the judgment — a judgment that, in any event, our court had set aside.

Finally, Sue contends that Richard did not challenge the attorney’s fees award in the divorce decree, nor did this court address those fees in our opinion on the merits. Sue concedes, however, that this court’s opinion reversed the judgment, and remanded the cause for “consideration of the fraud claim and a re-division of the marital estate.” See Alsenz, 101 S.W.3d at 657. In such a case, upon remand, a trial court must re-divide the entire marital estate, including the attorney’s fees at issue here. See Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.1985) (remanding to trial court for new division of community estate when court of appeals found portion of division lacked evidentiary support); Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) (“If a court of appeals finds reversible error that materially affects the trial court’s ‘just and right’ division of property, then it must remand the entire community estate for a new division of the property”). See also Lifshutz v. Lifshutz, 61 S.W.3d 511, 519 (Tex.App.-San Antonio 2001, pet. denied) (holding that “the property division must be remanded, including the award of attorney’s fees”).

We hold that the trial court abused its discretion in ordering the turnover of the supersedeas funds, as no final judgment supports the order. We further hold that the trial court should not have conditioned the release of the supersedeas bond, as our court had ordered that it be released, nor should it have directed payment of the proceeds from the bond to persons who were not parties to the vacated judgment. We therefore conditionally grant the petition for a writ of mandamus and direct the trial court to vacate the May 26, 2004 “Order on Motion to Release Supersedeas Bond.” We will issue this writ only if the trial court does not comply.

The Proper Respondent

Judge Millard is the elected judge of the 310th District Court, and conducted the first hearing in this matter. Associate Judge Daniel Lemkuil conducted the second hearing. In Judge Millard’s absence, another elected Harris County state district judge, Judge Galik, signed the May 26, 2004 order. To insure that he requested mandamus relief against the proper judge, Richard named both Judge Millard and Judge Galik as respondents.

In Remington Arms Co., Inc. v. Caldwell, the Texas Supreme Court held that the proper respondent in a mandamus action is the judge whose actions form the basis of the relator’s complaint. 850 S.W.2d 167, 168 n. 1 (Tex.1993). In Remington Arms, the Texas Supreme Court explained that Judge Neil Caldwell, as the presiding judge of the 23rd Judicial District, had conducted some pretrial matters, but that Judge Ben Martinez “was assigned to preside over the trial.” Id. As the relator complained of Judge Martinez’s actions, the court held that Judge Martinez was the proper respondent in the mandamus action. Id.

The Dallas Court of Appeals addressed a similar issue in Hoggard, v. Snodgrass, 770 S.W.2d 577, 588 (Tex.App.-Dallas 1989, orig. proceeding). In Hoggard, the court of appeals issued a writ of mandamus directed to the elected judge of the district court, even though a visiting judge had signed the order at issue, noting that “[bjecause the visiting judge ‘sits for’ the permanent judge, the rulings of the visiting judge are, in effect, the rulings of the permanent judge.” Id. Without citation to authority, the court of appeals in Hoggard concluded that “[t]he visiting judges acted only at the request and pleasure of the permanent judge”; therefore, “the permanent judge ... is ultimately responsible for any order that issues from the ... District Court.” Id. The court in Hoggard did not address the Texas Supreme Court’s holding in Remington Arms.

This court cited Hoggard in In re Balawajder, but held that the proper mandamus was the one brought against the visiting judge, because his actions formed the basis of the relator’s complaint. Nos. 01-03-00002/00538/ 00541/00536/00539/00542/00537/00540-CV, 2003 WL 21470397, at *1 (Tex.App.-Houston [1st Dist.] June 19, 2003, orig. proceeding) (memo op.) (keeping proceeding against visiting judge and dismissing proceeding against elected judge as moot). The El Paso and San Antonio Courts of Appeals have followed the Hoggard decision. See, e.g., Dal-Briar Corp. v. Baskette, 833 S.W.2d 612, 614 n. 1 (Tex.App.-El Paso 1992, orig. proceeding); Humana Hosp. Corp. v. Casseb, 809 S.W.2d 543, 548 (Tex.App.-San Antonio 1991, orig. proceeding).

We follow Remington Arms in this case. Here, the relator bases his complaint on an order Judge Galik signed. Judge Galik thus is the proper respondent for the purposes of an original proceeding. See Remington Arms, 850 S.W.2d at 168 n. 1. As Hoggard correctly observes, if the judge against whom mandamus lies is no longer hearing the matter, then it is the sitting elected judge’s responsibility to follow the orders of the appellate court, including an order to vacate the turnover order at issue in this original proceeding. See Hoggard, 770 S.W.2d at 588-89. Mandamus should not lie, however, against a trial judge that has not had an opportunity either to follow the appellate court’s order or to grant the relief requested by the petition. See State v. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (1962) (holding that writ of mandamus will not lie against successor judge absent refusal by successor judge to grant relief relator seeks). Here, given that state district judges within a county may exchange benches with each other, it is unclear whether Judge Galik continues to sit on this matter; thus, we conditionally grant the petition for writ with the understanding that should Judge Galik no longer hear this matter, Judge Millard will vacate the turnover order. We dismiss the petition for a writ of mandamus as to Judge Millard in cause number 04-00670-CV.

Conclusion

We hold that the trial court abused its discretion in ordering the turnover of the supersedeas funds because our court had ordered the release of the bond, and no final judgment supports the turnover of funds. We further hold that the trial court should not have conditioned the release of the supersedeas bond, nor directed payment of proceeds of the bond to persons who were not parties to the vacated judgment. We therefore conditionally grant the petition for a writ of mandamus and direct the respondent in cause number 04-00672-CV to vacate the May 26, 2004 “Order on Motion to Release Supersedeas Bond.” We dismiss the petition in cause number 04-00670-CV. We will issue this writ only if the trial court does not comply with the opinion of this cornet.

      . This court affirmed the trial court's ruling that income from Richard’s patents is community property. We reversed portions of the trial court's decree reimbursing the community estate for expenditures made on a car and for day-trading losses. In light of these rulings, we remanded the cause for a re-division of the marital estate. Alsenz v. Alsenz, 101 S.W.3d 648, 657 (Tex.App.-Houston [1st Dist.] 2003, pet. denied).

      . Sue’s motion requested the trial court to authorize "the release of the portion of the supersedeas bond that will satisfy the award of the court’s judgment for trial attorney's fees and appellate fees” plus "post judgment interest at 10% per annum.” Richard Lee Daniels and Teresa Taylor are Sue’s tried attorneys and Sallee S. Smyth is her appellate attorney. On September 11, 2003, Ms. Smyth moved to withdraw as counsel of record.

      . Texas courts will not apply the turnover statute to non-judgment debtors. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 227 (Tex.1991). In Beaumont Bank, the Texas Supreme Court recognized that the turnover statute could reach Mrs. Buller’s assets in her capacity as representative of her deceased husband's estate, because the bank’s judgment applied only to assets owned by her deceased husband’s estate. The court held that the turnover order in that case improperly imposed liability on Mrs. Buller individually. Id.

      . The Texas Government Code allows State district judges to “hear and determine a matter pending in any district or statutory county court in the county.” Tex Gov’t Code Ann. § 74.094(a) (Vernon Supp.2004-2005).

        . See also Rios v. Calhoon, 889 S.W.2d 257, 258 n. 1 (Tex.1994) (adding appropriate trial judge as additional respondent on court’s own motion).


author: TERRY JENNINGS, Justice.

text:
    Peter Paul HOBYL, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-01160-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 4, 2004.

      James F. Keegan, Houston, TX, for Appellant.
    Michael R. Little, District Attorney, Dan P. Bradley, First Assistant District Attorney, Chambers County, Texas, Anahuac, TX, for Appellee.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

TERRY JENNINGS, Justice.

A jury found appellant, Peter Paul Ho-byl, guilty of the offense of evading arrest and detention while using a vehicle, which is a state jail felony, and assessed his punishment at confinement for 270 days and a fine of $2,000. In four issues, appellant contends that the trial court erred in denying appellant’s motion for a directed verdict, that the evidence was legally and factually insufficient to support his conviction, and that the trial court erred in instructing the jury in the punishment charge that the trial court “could suspend the imposition of the sentence assessed by the jury and place appellant on community supervision.” We affirm.

Facts

Chambers County Sheriff’s Deputy K. Garcia testified that, on March 4, 2003, around 2:30 p.m., he was patrolling Interstate 10 in the area of the Highway 61 overpass in Chambers County. Garcia was wearing his uniform and was driving a marked Chambers County patrol car, equipped with fully-operational overhead lights and siren. Upon entering the interstate in the right-hand lane, Garcia observed appellant’s yellow motorcycle drive past him in the left-hand lane. Garcia moved to the left-hand lane, activated his patrol car’s emergency lights and siren, and paced appellant, who was traveling at a speed of 75 miles per hour (mph), for approximately one mile. Garcia testified that appellant then accelerated to a speed of 110 mph, and Garcia pursued him for approximately three miles. While Garcia pursued appellant, appellant looked from side to side in the side-mounted mirrors on the motorcycle. Where the interstate expanded into three lanes, Garcia pulled into the middle lane beside appellant, who was now in the far left-hand lane, and Garcia motioned for appellant to stop. Appellant, traveling at a speed of 90 mph, continued to look in Garcia’s direction in the motorcycle’s rearview mirrors. Appellant then drove around the patrol cars of Garcia and Chambers County Sheriffs Deputy J. Mitcham, who had entered the interstate at about the 817 mile marker. Soon thereafter, appellant stopped on the right-hand shoulder. Garcia arrested appellant, searched him, and found marihuana in his right front pocket. On cross-examination, Garcia testified that appellant accelerated to 110 mph before Garcia activated the emergency lights and siren, but then said that it “was actually at the same time.” Garcia also testified that it was a dry, clear day.

Deputy Mitcham testified that, while patrolling the Anahuac area in a marked patrol car, he had heard Deputy Garcia “initiate pursuit.” In response, Mitcham drove toward Interstate 10 and saw appellant on a yellow motorcycle. Mitcham activated his patrol car’s emergency lights and siren, entered the interstate near the 817 mile marker, and pulled in front of appellant. Appellant changed lanes, drove around Mitcham’s and Garcia’s patrol cars, and then stopped on the right-hand shoulder. Mitcham then parked his patrol car behind appellant. Mitcham further testified that appellant’s motorcycle did not sound like a Harley Davidson, but “sounded more like a Weed-Eater with a muffler on it,” and also sounded similar to “high-pitched humming with a little pop to it.”

Appellant testified that, on March 4, 2003, he was driving his motorcycle through Chambers County on Interstate 10 to Florida. At about 2:30 p.m. or 3:00 p.m., appellant had been traveling at a speed over 100 mph “for a minute” when he noticed Deputy Mitcháin’s patrol car, with its emergency lights activated, entering the interstate from a feeder road. This was the first time appellant became aware that any law enforcement officer was attempting to stop him. In response, appellant decreased his speed because he thought that he was going to be stopped for speeding. Mitcham, not Deputy Garcia, pulled alongside appellant and motioned for him to stop. Appellant then looked over his shoulder to check for traffic, and, for the first time, noticed Garcia’s patrol car behind him. Appellant stopped on the right-hand shoulder. The deputies placed appellant under arrest, searched him, and found the marihuana after appellant told them that he had a small amount in his top left shirt pocket.

Appellant further testified that he had not been attempting to evade arrest or detention by Garcia. Because it was cold and raining, he was wearing a motorcycle helmet, a rain jacket and pants, and a hood underneath his helmet. Appellant was also driving his motorcycle in a crouched-down position, with his chest on top of the gas tank and his head behind the wind screen to protect himself from the elements. Furthermore, although his motorcycle had two rearview mirrors, appellant could see only the sky in the mirrors while he was in a crouched-down position. Additionally, appellant’s motorcycle produced a sound louder than a Harley-Davidson, and the noise became louder with speed. The wind speed also made an extremely loud noise, as did his flapping rain suit. Appellant concluded that Deputies Garcia and Mitcham were “[completely lying” about the entire incident, except for the facts that appellant was speeding and that “Officer Mitcham did pull onto the highway from the feeder in front of [him] and [appellant] stopped.”

Legal Sufficiency of the Evidence

In his first issue, appellant contends that the trial court erred in denying his motion for a directed verdict. In his second issue, appellant argues that the evidence was legally insufficient to support his conviction because the State failed to prove beyond a reasonable doubt that appellant intentionally fled from a person whom he knew to be a peace officer attempting lawfully to arrest or detain him.

A challenge on appeal to the denial of a motion for directed verdict is a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.Grim.App.1996). We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). Although our analysis considers all evidence presented at trial, we may not reweigh the evidence and substitute our judgment for that of the fact finder. Id.

A person commits the offense of evading arrest or detention if he intentionally flees from a person whom he knows is a peace officer attempting lawfully to arrest or detain him. Tex. Pen.Code Ann. § 38.04(a) (Vernon 2003); Hazkell v. State, 616 S.W.2d 204, 205 (Tex.Crim.App.1981). An element of the offense of evading arrest or detention is that the accused must know that the person from whom he flees is a peace officer attempting to arrest or detain him. See Jackson v. State, 718 S.W.2d 724, 726 (Tex.Crim.App.1986).

Appellant asserts that he “can not have intentionally fled [DJeputy Garcia if he did not know Garcia was chasing him.” Appellant argues that, because he was traveling at such a high rate of speed, his motorcycle engine, the wind, and his flapping rain suit reduced his ability to hear, as did his motorcycle helmet and the hood appellant was wearing. Appellant further asserts that his rearview vision was impaired because he was wearing a full face helmet and was riding his motorcycle in a crouched-down position.

Here, however, ample evidence exists to demonstrate that appellant knew that the deputies were attempting to arrest or detain him. Deputy Garcia, a uniformed officer in a marked patrol car, testified that appellant increased his speed to 110 mph at about the same time that Garcia activated his patrol car’s emergency lights and siren. Garcia also testified that he pursued appellant for three miles at a speed of 110 mph. Moreover, Garcia testified that he observed appellant looking from side to side in the motorcycle rearview mirrors when Garcia was behind him. Finally, appellant admitted that he was traveling at a speed over 100 mph, knowingly committing a traffic offense, when he first noticed a patrol car pursuing him. Considering this evidence, a rational fact finder could have found, beyond a reasonable doubt, that appellant knew that Garcia was attempting lawfully to arrest or detain him.

Accordingly, we hold that the evidence was legally sufficient to support appellant’s conviction.

We overrule appellant’s first and second issues.

Factual Sufficiency of the Evidence

In his third issue, appellant argues that the evidence was factually insufficient to support his conviction because the State failed to prove, beyond a reasonable doubt, that appellant intentionally fled from a person whom he knew was a peace officer attempting to arrest or detain him.

In our review of the factual sufficiency of the evidence, we view all of the evidence neutrally, and ask whether the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004). In a factual sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.1996).

In support of his contention that the evidence was factually insufficient to support his conviction, appellant relies on his own testimony. Appellant testified that he had been “speeding for a minute” at over 100 mph when he noticed Deputy Mitcham enter the interstate from a feeder road. Appellant testified that, when Mitcham pulled alongside appellant and motioned for him to stop, appellant “figured [he] was getting pulled over,” and, when he looked over his shoulder to check for traffic, he noticed, for the first time, that Deputy Garcia’s patrol car was behind him. Furthermore, appellant testified that he was not aware that Garcia was following him because the noise produced from appellant’s motorcycle, the wind, his flapping rain suit, helmet, and hood impaired his hearing. Finally, appellant testified that his vision was impaired because he was wearing a full face helmet and hood and was in a crouched-down position on his motorcycle, which allowed him to see only the sky in his motorcycle’s rearview mirrors.

However, as noted above, Deputy Garcia testified- that appellant increased his speed to 110 mph at about the same time that Garcia activated his patrol car’s emergency lights and siren and that he pursued appellant for three miles at a speed of 110 mph in a marked patrol car. Garcia also testified that he, not Mitcham, pulled alongside appellant and motioned for him to stop. Moreover, Garcia testified that he observed appellant looking from side to side in the motorcycle rearview mirrors when Garcia was behind appellant.

The jury was free to believe or to disbelieve all or any part of Deputy Garcia’s and appellant’s testimony. McKinny v. State, 76 S.W.3d 463, 468-69 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Viewing all of this evidence neutrally, we conclude that the evidence was not so obviously weak as to undermine confidence in the jury’s determination and was not so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. Accordingly, we hold that the evidence was factually sufficient to support appellant’s conviction.

We overrule appellant’s third issue.

Instructions in the Punishment Charge

In his fourth issue, appellant contends that the trial court erred in instructing the jury in the punishment charge that the trial court could suspend the imposition of the sentence assessed by the jury and place appellant on community supervision. Appellant complains of the following instructions:

Our law further provides that ■ after punishment is assessed by the jury, the Court may suspend imposition of the sentence or may order the sentence served immediately. The Court may also suspend all or part of any fine imposed.
If the Court suspends .service of the sentence, the Court may impose any reasonable conditions of supervision designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate or reform the defendant.
In addition, the Court may impose as a condition of community supervision that the defendant submit at the beginning of the supervision period to a term of confinement in the state jail of not more than 180 days or less than 90 days.
If during the term of community supervision, the defendant violates a condition imposed by the Court, community supervision can be revoked and the defendant ordered to serve the term of confinement assessed by the jury.

Appellant does not assert that the trial court misstated the law in these four paragraphs. Rather, appellant argues that it was error for the trial court to include in its punishment charge that it had the authority to suspend any jail sentence imposed by the jury because (1) the instructions were “completely unnecessary” and “prejudicial to appellant”; (2) “[t]he jury, having been instructed as it was, [could] only have taken the possibility of a suspended sentence into consideration, and might reasonably have responded with a more severe sentence than it would have assessed had it not been so instructed”; and (3) the instructions “comported with neither due process nor due course of law.”

A trial court’s charge to a jury must distinctly set forth “the law applicable to the case.” Tex.Code CRiM. PROC. Ann. art. 36.14 (Vernon Supp.2004-2005). Here, the record indicates that, before trial, appellant elected to have the jury assess his punishment, and appellant correctly notes that jury-recommended community supervision is not available to a defendant convicted of a state jail felony. See id. art. 42.12 § 4(d)(2) (Vernon Supp.2004-2005). However, on conviction of a state jail felony punished under section 12.35(a) of the Penal Code, “the judge may suspend the imposition of the sentence and place the defendant on community supervision or may order the sentence to be executed.” Id. art. 42.12 § 15(a)(2) (Vernon Supp. 2004-2005).

We conclude that the complained-of instructions were neither “unnecessary” nor “prejudicial” to appellant. The instructions contained a proper articulation of the law and informed the jury, in neutral language, of the judge’s option to suspend imposition of the sentence and place appellant on community supervision or order that the sentence be executed. The instructions also explained that the judge could impose reasonable conditions of community supervision and the consequences of a violation of one of those conditions. The instructions informed the jury that if the judge suspended imposition of the sentence, placed appellant on community supervision, and subsequently revoked community supervision, the judge could then order appellant “to serve the term of confinement assessed by the jury.”

Although the jury may have imposed “a more severe sentence than it would have assessed had it not been so instructed,” the jury was entitled to make an informed decision as to appellant’s punishment, taking into account the judge’s option to suspend imposition of the sentence and place appellant on community supervision or to order that the sentence be executed immediately. Without appropriate instruction, a jury could be misled into believing that a defendant would be ordered automatically to serve the term of confinement assessed by the jury. This is not the law, and such a misconception could further mislead a jury into assessing a shorter term of confinement than it might otherwise assess. Moreover, a jury is entitled to know that if a judge does actually suspend a defendant’s sentence, place him on community supervision, and subsequently revoke community supervision, that the judge could, in fact, order the defendant to serve the term of confinement assessed by the jury. See id. art. 42.12 § 23(a) (Vernon Supp. 2004-2005).

We hold that the complained-of instructions distinctly, neutrally, and correctly set forth the law applicable to the case and did not violate appellant’s constitutional rights to due process and due course of law under the United States and Texas constitutions. Accordingly, we further hold that the trial court did not err in including the complained-of instructions in the punishment charge.

We overrule appellant’s fourth issue.

Conclusion

We affirm the judgment of the trial court.

      . Tex. Pen.Code Ann. § 38.04 (Vernon 2003).

      . Id. § 12.35(a) (Vernon 2003).

      . U.S. Const, amends. V, XIV.

      . Tex Const, art. I, § 19.