author: GUADALUPE RIVERA, Justice.

text:
    CANTU SERVICES, INC., Appellant, v. UNITED FREEDOM ASSOCIATES, INC., Appellee.
    No. 08-09-00003-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 3, 2010.

      David F. Gossom, Wichita Falls, TX, John L. Anderson, Rincon Law Group, P.C., El Paso, TX, for Appellant.
    J. Morgan Broaddus, III, Gordon Mott & Davis P.C., El Paso, TX, for Appellee.

      Before McCLURE, J., RIVERA, J., and ANTCLIFF, Judge.
   OPINION

GUADALUPE RIVERA, Justice.

In its sole issue, Appellant, Cantu Services, Inc., (Cantu), appeals the trial court’s grant of Appellee’s (UFA’s) plea to the jurisdiction and dismissal of its lawsuit. Finding the appeal interlocutory, we dismiss the appeal.

BACKGROUND

The Randolph-Sheppard Act (the Act) permits blind persons to operate vending facilities on federal property, with priority given to blind persons licensed by a State agency. The Randolph-Sheppard Act, 20 U.S.C.A. §§ 107(a)-(b) (2010). Pursuant to the Act, the Texas Department of Assistive and Rehabilitative Services (DARS), a state agency, is responsible for licensing blind persons to operate vending facilities on state, federal and other property through the Business Enterprises of Texas program. See 20 U.S.C.A. §§ 107(a)-(b) (2010); 34 C.F.R. §§ 895.1-895.38 (2010); Tex. Hum. Res.Code Ann. § 94.016 (Vernon Supp. 2010); 40 T.A.C. § 106.1201 (2010).

Under these federal and state provisions, Cantu, a food-services consultant, prepared on behalf of DARS, and DARS submitted, a bid for food services at Fort Bliss, Texas. The United States government awarded the Fort Bliss food-services contract to DARS for the period of November 1, 2003, to October 31, 2004, with “nine option years.” DARS selected Mr. Harvey Johnson, a visually-impaired individual, to serve as its licensed manager at Fort Bliss. According to Cantu, Johnson was to operate the dining facilities at Fort Bliss, and Cantu, under a contract with DARS, was to serve as Johnson’s consultant and provide actual services, personnel, expertise, and financial support.

From November 1, 2007, to October 31, 2008, Cantu contracted directly with Johnson by means of an operating agreement to provide consulting and other services. Under each of Cantu’s contracts with DARS and, subsequently, with Johnson, the United States government paid DARS for the food services provided and DARS, in turn, forwarded all collected funds to Cantu. Cantu paid expenses, kept its profit, and distributed profits to Johnson.

Thereafter, pursuant to a provision in his operating agreement with Cantu and upon receiving approval to do so from DARS, Johnson exercised his option to operate the Fort Bliss food-services contract independently of Cantu beginning November 1, 2008. Cantu ceased providing services to Johnson on October 31, 2008. According to Cantu, its unpaid invoices for its services to Johnson through October 31, 2008, totaled $2,516,760.78. Johnson also allegedly owed Cantu additional sums for “unbilled” contract modifications that it had performed prior to November 1, 2008, and possibly other monies.

Although not well-developed, the record and briefs indicate that Johnson’s corporation, United Freedom Associates, Inc. (UFA), Appellee, commenced providing food services at Fort Bliss on November 1, 2008. Approximately three weeks later, UFA issued to Cantu a cashier’s check in the amount of $88,661.17. The check was accompanied by a purchase voucher indicating that DARS had paid a sum of $227,338.33 directly to UFA rather than to Cantu, even though UFA had not been a party to any of the earlier contracts between DARS, Johnson, and Cantu. According to Cantu, UFA “unilaterally divided the [DARS] check and paid Cantu 39% of the total” even though all debts and expenses related to the food-services operation prior to November 1, 2008, were incurred on Cantu’s account. In other words, Cantu asserted that it was paying “100% of all expenses, while only receiving 89% of the proceeds.” Cantu believed that it, rather than UFA, should directly receive all payments from DARS, pay expenses, and distribute profits for the services occurring prior to November 1, 2008, in accordance with its agreement with Johnson. Despite the new, unsatisfactory payment method and the alleged underpayment of its receivables, Cantu continued to pay contract and employee liabilities. Cantu’s requests that payments be made directly to it were allegedly refused by both DARS and UFA.

The Laivsuit and Request for Injunctive Relief

On December 9 and 11, 2008, respectively, Cantu filed its original and first amended petitions and applications for temporary restraining order and other injunctive relief. In the petition and application, Cantu named UFA and DARS as defendants and sought (1) to restrain and enjoin DARS from issuing payments to any entity other than Cantu with respect to its pre-Novem-ber 1, 2008, services, and (2) to restrain and enjoin UFA from receiving such payments and from expending, transferring, or secreting such payments. Cantu also asserted two causes of action against UFA for conversion of its property and tortious interference with its contractual relationship with Johnson, requesting damages, interest, court costs, and other relief upon a trial on the merits.

UFA filed a motion to transfer venue, asserting that mandatory venue for suit against DARS, a state agency, was in Travis County. UFA also filed a plea to the jurisdiction pursuant to Section 22.002(c) of the Texas Government Code, asserting that the Texas Supreme Court alone possessed sole jurisdiction over Cantu’s attempt to have the trial court restrain and enjoin DARS. Tex. Gov’t Code Ann. § 22.002(c) (Vernon 2004). DARS did not file a plea to the jurisdiction.

The Hearing

At the plea-to-the-jurisdiction hearing on December 12, 2008, in addition to the arguments it set forth in its motion and plea, UFA asserted that Cantu had failed to meet jurisdictional requirements when it filed suit against DARS rather than its executive officer, and had failed to plead or prove that DARS had committed any unlawful or unconstitutional act which would overcome DARS’ sovereign immunity or otherwise justify Cantu’s requested relief.

Johnson stated that Cantu had not named him individually as a defendant in the case in an attempt to escape mandatory mediation and arbitration provisions contained in the operating agreement between himself and Cantu, and argued that the trial court was not authorized to hear these matters because of the mediation and arbitration provisions.

Cantu argued that UFA was not entitled to immunity and was improperly asserting an affirmative defense which it did not have, namely, that it was not a state entity and that the provisions uniquely applicable to a state agency did not extend to UFA as a co-defendant. Cantu also argued that because it was seeking to restrain an unlawful act, rather than compel a lawful action, Section 22.002(c) of the Texas Government Code was inapplicable and the trial court, consequently, had jurisdiction to enjoin unlawful activity by the State of Texas, its departments, or agents. Cantu also asserted that “intrinsic in [its] pleading [was] a constitutional takings claim” and stated that a plea to the jurisdiction should not be granted when a pleading could be amended to present a valid cause of action. Cantu requested an opportunity to brief its response to the plea to the jurisdiction, and informed the trial court that it was only seeking to preserve the status quo by means of a 14-day restraining order.

DARS, who appeared on its own behalf at the hearing, replied that although it had not yet been served with Cantu’s lawsuit and motion, it would also file a plea to the jurisdiction because DARS retained sovereign immunity. In challenging the jurisdiction of the court, DARS asserted that Cantu had the burden of showing that the trial court had jurisdiction and was required to demonstrate that DARS had waived sovereign immunity. DARS noted that because Cantu had not plead a cause of action against DARS, that there could be no waiver of sovereign immunity or subject matter jurisdiction by which the trial court could entertain Cantu’s lawsuit against DARS. As to Cantu’s request for a temporary restraining order and injunc-tive relief, DARS argued that even if there had been a waiver of sovereign immunity, an injunction is an equitable remedy, not a cause of action. To be entitled to injunc-tive relief, DARS contended, Cantu must be able to prove a probable right of recovery through a claim or cause of action and, absent an alleged claim or cause of action, the trial court had no authority to issue the injunction.

Regarding Cantu’s assertion that its pleadings intrinsically contained a constitutional-takings claim, DARS reminded the trial court that constitutional takings involve tangible property such as real estate, not intangible property such as money. Therefore, DARS asserted, “to the extent that [Cantu is] trying to invent a cause of action which is not stated in them lawsuit, the one that they have provided to the Court is similarly subject to a plea to the jurisdiction. There is no jurisdiction in that.” To be entitled to an injunction, DARS noted that Cantu must be able to prove that there was a likelihood of success but would not be able to do so unless the trial court had jurisdiction.

After considering these and other arguments, the trial court granted UFA’s plea to the jurisdiction, dismissed the case without prejudice, and informed the parties that it would entertain an amended application for a restraining order if it became necessary. Cantu now appeals the trial court’s granting of UFA’s plea to the jurisdiction and dismissal of the case without prejudice.

DISCUSSION

On appeal, Cantu asserts that the trial court erred both when it granted UFA’s plea to the jurisdiction as it was based upon a claim of governmental immunity, and also when it dismissed its claims for injunctive relief and money damages.

Appellate Jurisdiction

We must first determine, as a threshold matter, whether or not this Court has jurisdiction to review the trial court’s grant of UFA’s plea to the jurisdiction. El Paso County v. Alvarado, 290 S.W.3d 895, 898 (Tex.App.-El Paso 2009, no pet.). . As an appellate court, we have limited jurisdiction “over final judgments and such interlocutory orders as the legislature deems appealable.” Tex. Civ. Prac. & Rem. Code Ann. §§ 51.012 & 51.014 (Vernon 2008); EPISD v. Alspini, 315 S.W.3d 144, 148 (Tex.App.-El Paso 2010, no pet.).

Final Disposition and Interlocutory Orders

For appellate purposes, a judgment is final if it disposes of all pending claims and parties, except as necessary to cany out the lower court’s decree. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Where an order follows a traditional trial on the merits, it is presumed to be final. Lehmann, 39 S.W.3d at 199; see Ne. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). When the trial court has not conducted a traditional trial on the merits, the order or judgment is not final for appellate purposes “unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties.” Lehmann, 39 S.W.3d at 205; Salas v. State Farm Mut. Auto. Ins. Co., 226 S.W.3d 692, 695 (Tex.App.-El Paso 2007, no pet.); Dick Poe Motors, Inc. v. DaimlerChrysler Corp., 169 S.W.3d 507, 510 (Tex.App.-El Paso 2005, no pet.). As the Texas Supreme Court has explained:

An order that disposes of claims by only one of multiple plaintiffs or against one of multiple defendants does not adjudicate claims by or against other parties. An order does not dispose of all claims and all parties merely because it is entitled “final”, or because the word “final” appears elsewhere in the order, or even because it awards costs. Nor does an order completely dispose of a case merely because it states that it is appealable, since even interlocutory orders may sometimes be appealable. Rather, there must be some other clear indication that the trial court intended the order to completely dispose of the entire case. Language that the plaintiff take nothing by his claims in the case, or that the case is dismissed, shows finality if there are no other claims by other parties; but language that “plaintiff take nothing by his claims against X” when there is more than one defendant or other parties in the case does not indicate finality. Lehmann, 39 S.W.3d at 205; Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex.2002).

Consequently, as an appellate court, we look to the record in determining whether the trial court’s order is final. Lehmann, 39 S.W.3d at 205-206; Salas, 226 S.W.3d at 695; Dick Poe Motors, Inc., 169 S.W.3d at 510. A trial court’s order is not final where the record demonstrates the existence of claims or parties not mentioned in the order. Lehmann, 39 S.W.3d at 206.

Interlocutory Appeals

Where an order does not dispose of all issues and all parties, it is interlocutory and is not appealable without express statutory authorization, severance, dismissal, or non-suit. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992); see also Hervey v. Flores, 975 S.W.2d 21, 24 (Tex.App.-El Paso 1998, pet. denied). A person may appeal from an interlocutory order of a district court that grants or denies a plea to the jurisdiction by a governmental unit as that term is defined by Section 101.001(3) of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon 2008), § 101.001(3) (Vernon 2005). When a party attempts to appeal a non-appealable interlocutory order, we have no jurisdiction except to dismiss the appeal. Nikolouzos v. St. Luke’s Episcopal Hospital, 162 S.W.3d 678, 681 (Tex.App.-Houston [14th Dist.] 2005, no pet.).

Application

The trial court’s Order Granting Plea to the Jurisdiction provides:

On this day the Court considered United Freedom Associates, Inc.’s Plea to the Jurisdiction. It is the opinion of this Court that the Plea should be granted. IT IS, THEREFORE, ORDERED that the Plea to the Jurisdiction is GRANTED, and this case is hereby dismissed in its entirety without prejudice.

Initially, we question whether UFA can raise statutory immunity defenses as it is not a governmental entity. Typically, a defendant cannot urge another party’s defense. See City of Alton v. Sharyland Water Supply Corp., 145 S.W.3d 673, 682 (Tex.App.-Corpus Christi 2004, no pet.) (explaining, for example, that third-party defendant must assert his own defenses only as the defense of an original defendant is not available to the third-party defendant against a plaintiff; here, appellate court held third-party independent contractors were not entitled to assert defendant’s governmental-immunity defense and, because third-parties failed to assert their own independent defenses, appellate court overruled issue on appeal, affirming trial court’s plea to the jurisdiction.). Nevertheless, assuming that the trial court accepted the sovereign-immunity arguments before it, we note that although the sovereign-immunity statute applies to the injunctive relief sought, it would not constitute a defense as to the causes of action presented by Cantu against UFA. As a result, the trial court only granted sovereign-immunity relief as to some, but not all, of Cantu’s claims. Those claims that are not subject to the sovereign-immunity waiver, i.e., conversion of property and tortious interference of contract, remain pending as to UFA. We must, therefore, conclude that the trial court’s order failed to dispose of all of Appellant’s causes of action against UFA. In re Burlington Coat Factory Warehouse of McAllen, 167 S.W.3d 827, 830 (Tex.2005).

Moreover, based on the procedural history of the case, we interpret the court’s order as merely granting UFA’s plea to the jurisdiction. As such, it disposed of Cantu’s case against UFA, not against DARS. Indeed, the record reflects that UFA and DARS were, at all times, represented by separate counsel. While it seemingly waived service when it appeared at the hearing, DARS did not join in UFA’s plea to the jurisdiction but rather informed the court at the hearing that it was there to represent its own interests and that it would be filing its own plea to the jurisdiction. DARS never filed a plea to the jurisdiction. The trial court could not grant relief to DARS without a request. After the trial court granted UFA’s plea to the jurisdiction, it did not sever, dismiss, or non-suit any of Cantu’s claims against DARS. Thus, we must conclude that the trial court’s order granting UFA’s plea to the jurisdiction did not dispose of all parties.

Because the trial court’s order failed to dispose of all parties and all causes of action, it is interlocutory. We next consider whether the interlocutory order is appealable and conclude that it is not. Anglin, 842 S.W.2d at 272; see also Hervey, 975 S.W.2d at 24. As UFA is not a governmental unit, we do not find that any of the statutorily-permitted exceptions in Section 51.014 would permit Cantu’s appeal of the trial court’s interlocutory order in this case. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 2008), § 101.001(3) (Vernon 2005). Accordingly, finding that the appeal is interlocutory, we dismiss the same for want of jurisdiction. Tex. Civ. Prac. & Rem.Code Ann. §§ 51.012 & 51.014 (Vernon 2008); Lehmann, 39 S.W.3d at 195; El Paso County, 290 S.W.3d at 898; Nikolouzos, 162 S.W.3d at 681.

CONCLUSION

The appeal is dismissed.

ANTCLIFF, Judge, sitting by assignment.

      . Section 15.014 states, "An action for mandamus against the head of a department of the state government shall be brought in Travis County.” Tex. Civ. Prac. & Rem.Code Ann. § 15.014 (Vernon 2002).

      . DARS participated in the hearing telephoni-cally.

      . While this case was addressed under former Rule 38(a) of the Texas Rules of Civil Procedure, it provides a useful analogy for our purposes.


source: Caselaw Access Project

author: KEM THOMPSON FROST, Justice.

license: Public Domain

text:
    Treyveon Marcelle PIPKIN, Appellant, v. The STATE of Texas, Appellee.
    No. 14-09-00018-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 4, 2010.
    Rehearing En Banc Overruled Jan. 13, 2011.

      Treyveon Marcelle Pipkin, Brazoria, pro se.
    Michael A. McEnrue, Houston, for appellant.
    Donald W. Rogers, Jr., Houston, for state.
    Panel consists of Justices FROST, BOYCE, and SULLIVAN.
   SUBSTITUTE OPINION

KEM THOMPSON FROST, Justice.

Appellant Treyveon Marcelle Pipkin, a juvenile certified to stand trial as an adult, appeals his conviction for aggravated robbery with a deadly weapon. Appellant claims that the juvenile court erred in failing to consider a complete diagnostic study when certifying appellant to stand trial as an adult. Appellant also claims the juvenile court reversibly erred in allowing appellant’s counsel to waive psychiatric and psychological examinations ordered by the juvenile court because the purported waiver reflected in the record did not comply with the requirements of section 51.09 of the Texas Family Code. We affirm.

I. Factual and Procedural Baokground

The State filed a petition in juvenile court, alleging that appellant, who was fifteen years old at the time, had engaged in delinquent conduct. According to the petition, appellant committed aggravated robbery with a deadly weapon. The State later sought to amend its petition and moved the juvenile court to waive its jurisdiction and certify appellant to stand trial as an adult in criminal district court pursuant to section 54.02 of the Texas Family Code.

The juvenile court granted the State’s motion for a certification hearing. By written order dated April 16, 2008, the juvenile court ordered that a “complete diagnostic study, social evaluation, and full investigation” be conducted on appellant, his circumstances, and the circumstances surrounding the offense. The juvenile court ordered the chief juvenile probation officer to present the study at the certification hearing. The State filed a motion requesting the juvenile court to order a complete psychiatric and psychological examination of appellant. The record contains an order dated April 23, 2008, in which the juvenile court granted the State’s motion requesting a psychiatric and psychological evaluation.

At the certification hearing, the juvenile court took judicial notice of the contents of appellant’s case file. The State sought to tender five State’s exhibits into evidence. Appellant’s counsel responded, “Your Hon- or, I think I have had an opportunity to examine these documents, and I have no objection.” The juvenile court admitted the exhibits. One of the exhibits was a three-page report, entitled “Juvenile Probation Certification Report,” that was compiled by a juvenile probation officer. Attached to the report were copies of appellant’s birth certificate, social security card, and results of a physical examination. As relevant to our review, a section of the report, entitled “Testing/Physieal Examination,” contains the following two sentences pertaining to psychological and psychiatric evaluations: '

Certification Psychological Evaluation was waived on April 28, 2008[,] by the juvenile’s attorney, Daniel Kundiger. Certification Psychiatric Evaluation was waived on April 23, 2008[,] by the juvenile’s attorney, Daniel Kundiger.

The State presented testimony from a single witness, a police officer, who testified without objection about his investigation of the charged offense. According to the officer’s testimony, appellant entered a retail store, displayed a handgun, demanded money from an employee, and fled with $2,517.57. Officers located appellant after the incident with assistance from witnesses. Officers recovered a bag containing $2,517.57 and the handgun from a location where appellant had discarded the items. The officer testified that appellant gave a written statement to the magistrate in which appellant admitted committing the offense and admitted purchasing the handgun one month before the offense. Officers learned that appellant had been documented in police records as being affiliated with a criminal street gang. Appellant’s mother and grandfather testified, requesting that the juvenile court refuse to certify appellant as an adult.

By written order, the juvenile court waived.its jurisdiction and certified appellant to stand trial as an adult. The juvenile court’s order is set forth in relevant part:

On the 7th of May 2008, a hearing was held in the above styled and numbered cause number under section 54.02 of the Family Code, on the issue of waiver of jurisdiction. Prior thereto the Court had ordered and obtained a diagnostic study, social evaluation, a full investigation of the child, HIS circumstances, and the circumstances of the alleged AGGRAVATED ROBBERY/DEADLY WEAPON....

The juvenile court found, “[ajfter full investigation,” that appellant is charged with the felony offense of aggravated robbery with a deadly weapon. The juvenile court found that appellant was fourteen years or older at the time of the offense and found probable cause to believe that appellant committed the alleged offense. The juvenile court transferred appellant’s case to the criminal district court, noting the serious nature of the offense and the welfare of the community. In making its determination, the juvenile court considered the following factors: the alleged offense was committed against a person, appellant’s sophistication and maturity, the record and appellant’s previous history, the adequate protection of the public, and the likelihood of rehabilitation by resources available to the juvenile court.

Appellant was charged by indictment with the felony offense of aggravated robbery. In the district court, appellant waived his constitutional rights and judicially confessed to committing the charged offense without an agreed recommendation as to punishment. The district court found appellant guilty of the charged offense. After a pre-sentence investigation, the district court assessed punishment at twenty years’ confinement.

II. Analysis

In appellant’s first issue, he claims the juvenile court failed to consider a complete diagnostic study as required by section 54.02(d) of the Texas Family Code because the diagnostic study presented to the juvenile court did not contain the psychological and psychiatric evaluations previously ordered by the juvenile court. Appellant also asserts that because the diagnostic report did not include the psychological and psychiatric evaluations ordered by the juvenile court, a full investigation of his circumstances was not made.-

A juvenile court may waive its exclusive original jurisdiction and transfer a juvenile to a criminal district court for criminal proceedings if (1) the child is alleged to have committed a felony, (2) the child meets one of two age requirements, and (3) after a full investigation and hearing, the juvenile court determines that probable cause exists to believe the juvenile committed the alleged offense and that the community’s welfare requires criminal proceedings because of the serious nature of the offense or the child’s background. See Tex. Fam.Code Ann. § 54.02(a) (West 2009). Section 54.02(d) of the Texas Family Code requires that prior to a transfer hearing, a “juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full. investigation of the child,, his circumstances, and the circumstances of the alleged offense.” Id. § 54.02(d). A juvenile may test the fullness of an investigation. See Turner v. State, 796 S.W.2d 492, 497 (Tex.App.-Dallas 1990, no writ). However, whether a diagnostic study is complete is a determination for the juvenile court. In re J.S.C., 875 S.W.2d 325, 329 (Tex.App.-Corpus Christi 1994, writ dism’d by agr.). A juvenile court’s ruling on the completeness of a diagnostic report will not be overturned absent a showing of abuse of discretion. Id.

Appellant did not raise this objection at the certification hearing, and, therefore, appellant has not preserved error on this issue. See Tex.R.App. P. 33.1(a); see also McBride v. State, 655 S.W.2d 280, 284 (Tex.App.-Houston [14th Dist.] 1983, no writ) (overruling appellant’s complaint of alleged deprivation of due process at a transfer hearing because it was raised for the first time on appeal); In re I.B., 619 S.W.2d 584, 586 (Tex.Civ.App.-Amarillo 1981, no writ) (providing that juvenile court at transfer hearing did not err in overruling juvenile’s objections pertaining to the fullness of an investigation). An appeal of transfer from a juvenile court to a criminal court is a criminal matter governed by the Texas Code of Criminal Procedure and the Texas Rules of Appellate Procedure. Tex.Code Crim. Proo. ANn. art. 44.47(c) (West 2006). To preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint and to afford the trial court an opportunity to rule on the objection. Tex.R.App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 886-87 (Tex.Crim.App.2002). Requiring a party to make a complaint to the trial court by specific, timely objection, request, or motion as a prerequisite to presenting a complaint for appellate review ensures the trial court will have an opportunity to prevent or correct errors. Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex.Crim.App.2006). In this case, had an objection been raised regarding the completeness of the diagnostic study, possible corrective action could have included ordering a subsequent psychological evaluation. See In re R.L.H., 646 S.W.2d 499, 502 (Tex.App.Houston [1st Dist.] 1982, no writ) (concluding trial court had authority to reopen hearing and order a second psychological evaluation when the trial court lacked confidence in the psychologist who conducted an evaluation). But appellant did not voice any objection to the completeness of the diagnostic study as tendered and admitted in the transfer hearing. See In re I.B., 619 S.W.2d at 586 (“The juvenile can, of course, test the fullness of the investigation made. If tested, the matter of the completeness of the investigation is one for initial determination by the trial court which ordered it.”). Appellant has not cited and we have not found any place in the appellate record showing that appellant raised this issue in the juvenile court or in the district court. With few exceptions not applicable to the case under review, even constitutional complaints may be waived by the failure to raise a timely objection in the lower court. See Saldano, 70 S.W.3d at 886-89. Based on the record before this court, appellant has not preserved error on this issue. See Tex.R.App. P. 33.1(a). Accordingly, we overrule appellant’s first issue.

In his second issue, appellant points to the two sentences in the probation officer’s report indicating that appellant’s attorney waived psychological and psychiatric evaluation prior to the certification hearing. According to appellant, his trial counsel’s waiver to the evaluations was not effective under section 51.09, and, accordingly, without the psychological and psychiatric evaluations, the diagnostic study was not complete under section 54.02(d).

Section 51.09, entitled “Waiver of Rights,” provides:

Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:
(1) the waiver is made by the child and the attorney for the child;
(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
(3) the waiver is voluntary; and
(4) the waiver is made in writing or in court proceedings that are recorded.

Tex. FaM.Code Ann. § 51.09 (West 2009). Absent an effective waiver, a juvenile may be subjected to treatment as an adult only if the mandatory requirements in section 54.02 have been met. R.E.M. v. State, 532 S.W.2d 645, 648 (Tex.Civ.App.-San Antonio 1975, writ refd n.r.e.). But, neither section 54.02 nor any other statute expressly provide that a psychological or psychiatric evaluation is a “right granted to a child” as contemplated by section 51.09 for effective waiver. See Tex. Fam.Code Ann. § 51.09.

A “complete diagnostic study,” as required under section 54.02(d) has not been defined. See In re B.T., 323 S.W.3d 158, 161-62 (Tex.2010). “Typically, the certification report includes a psychiatric report, a psychological report, and a report by a probation department caseworker.” In re J.S.C., 875 S.W.2d 325, 326-27 (Tex.App.-Corpus Christi 1994, writ dism’d). However, section 54.02(d) does not necessarily require a psychological or psychiatric evaluation to render a diagnostic study complete. See L.M. v. State, 618 S.W.2d 808, 811 (Tex.App.-Houston [1st Dist.] 1981, writ refd n.r.e.) (involving a diagnostic report in which psychological tests of a juvenile were not attached to diagnostic report and no psychiatric examination was conducted); I-L- v. State, 577 S.W.2d 375, 376 (Tex.Civ.App.-Austin 1979, writ refd n.r.e.) (upholding judgment ordering transfer of juvenile to stand trial as adult even though no psychological examination was made). Instead, a court considers the qualitative content of a diagnostic study rather than a “mere quantitative ‘checklist’” of included items. B.T., 323 S.W.3d at 161-62 (quoting L.M., 618 S.W.2d at 811-12).

Because a psychological or psychiatric evaluation is not a “right granted to a child by this title or by the constitution or laws of this state or the United States,” any waiver of such evaluations does not fall within the purview of section 51.09. See Tex. Fam.Code Ann. § 51.09. On this basis, waiver by appellant’s attorney at the transfer hearing was not governed by section 51.09 and need not have complied with the requirements of section 51.09. See id. Therefore, we overrule appellant’s second issue.

The judgment of the trial court is affirmed.

      . Appellant’s motion for rehearing is denied. This court's memorandum opinion of August 3, 2010, is withdrawn and this substitute opinion is issued in its place.

      . Tex. Fam.Code Ann. § 54.02 (West 2009) (governing waiver of exclusive original jurisdiction by juvenile court and discretionary transfer to a criminal court).

      . Although the State refers to a second order dated April 23, 2008, which the State claims purportedly conflicts with the order directing a psychological or psychiatric evaluation, this second purported order is not included in the appellate record and cannot be considered by this court.

      . Unless otherwise specified, all references to a “section” will be to the Texas Family Code.

      . Likewise, a trial court does not abuse its discretion in failing to consider psychological or psychiatric evaluations in connection with a diagnostic study if a juvenile’s attorney opposes the evaluations. See R.E.M. v. State, 541 S.W.2d 841, 845 (Tex.Civ.App.-San Antonio 1976) (indicating a juvenile still may be certified to stand trial as an adult despite attorney's efforts to actively thwart compliance with section 54.02(d) or juvenile’s refusal to cooperate).


author: Justice MOSELEY.

text:
    ORTHOPEDIC RESOURCES, INC. and JTW Medical Products, Inc., Appellants, v. Kara SWINDELL and Jeremy Swindell, Appellees.
    No. 05-09-01543-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 8, 2010.
    Rehearing Overruled Dec. 21, 2010.

      Chris R. Norris, Joseph A. Barbknecht, Laci Dreher, The Barbknecht Firm, Plano, Jason Matthew Graham, Paul William Bennett, Fletcher, Farley, Shipman & Salinas, LLP, Douglas D. Fletcher, Fletcher & Springer, L.L.P., Richard A. Harwell, Fletcher Farley, Dallas, for Appellants.
    Christopher A. Kalis, Law Office of Christopher Kalis, Plano, James H. Moody, III, Quiling, Selander, Cummiskey & Lownds, P.C., Brian P. Lauten, The Lauten Firm, P.C., Dallas, for Appellees,
    Before Justices MOSELEY, O’NEILL, and FRANCIS.
   OPINION

Opinion By

Justice MOSELEY.

This is an interlocutory appeal from the denial of a motion to dismiss an alleged health care liability claim for failure to timely file an expert report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b) (West Supp.2010). The outcome of the appeal depends on whether appellant JTW Medical Products, Inc., a medical device distributor, was acting within the course and scope of its contract with a health care provider when it gave instructions to the Swindells on the use of durable medical equipment. We affirm the trial court’s order.

Background

Kara Swindell was a patient of Dr. John Crates and the Plano Orthopedic Sports Medicine clinic. On March 19, 2008, Dr. Crates operated on Kara’s right foot to remove a bunion. Following the surgery, Crates prescribed a durable medical device, known as the VascuTherm, for cold compression therapy. The device consists of a reusable pump and a single-patient therapy wrap that allows the pump to eir-culate cold fluid around the extremity. The device is a FDA Class II device and requires a physician’s prescription for use. Crates prescribed the device with instructions that it be used for thirty minutes at a time then off for two hours.

JTW had a contract with the clinic to supply durable medical equipment prescribed by the clinic’s doctors to their patients. The contract provided that JTW was an independent contractor. JTW’s president, John Wall, provided the device to Kara and, while she was in surgery, showed the device to her husband, Jeremy. In his deposition, Wall said he told Jeremy “that the VascuTherm unit could be used 24/7, as tolerable, as long as there was no numbness, tingling, or pain.” The Swin-dells alleged that Wall signed Crates’s name on a pre-printed prescription form for the device on an insurance document and that Jeremy signed the form at Wall’s request. They alleged that because there was no written instruction manual included with the device, they relied on Wall’s oral instructions to use the device 24/7. They alleged that as a result of Kara’s use of the device pursuant to Wall’s instructions, she suffered frostbite and the partial or total amputation of four of her toes.

The Swindells sued JTW and the manufacturer and supplier of the device alleging causes of action for products liability and negligence. They never sued Crates or the clinic. Several months after the lawsuit was filed, and after substantial discovery had been completed, JTW filed a motion to dismiss the lawsuit with prejudice under section 74.351(b) of the civil practice and remedies code. JTW contended that it was a health care provider, the Swin-dells’ claims were health care liability claims, and they failed to file the required expert report within 120 days of filing suit. See Tex. Civ. Prac. & RemlCode Ann. § 74.351. The Swindells responded to the motion, attaching deposition excerpts and other evidence supporting their contention that JTW was not a health care provider and they were not bringing health care liability claims. After further briefing and evidence submitted by JTW, the trial court conducted a hearing and denied the motion.

Standard of Review and Applicable Law

We review the trial court’s decision on a motion to dismiss a health care liability claim for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001) (discussing former article 4590i). However, when the issue involves a question of law, such as the interpretation of a statute, we apply a de novo standard of review. Fudge v. Wall, 308 S.W.3d 458, 460 (Tex.App.-Dallas 2010, no pet.). The trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (per curiam). When reviewing the trial court’s resolution of factual issues or matters committed to the trial court’s discretion, we may not substitute our judgment for the trial court’s judgment. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). The trial court does not abuse its discretion when it decides factual issues or matters committed to its discretion on conflicting evidence. See Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); Kirkpatrick v. Mem’l Hosp. of Garland, 862 S.W.2d 762, 776 (Tex.App.-Dallas 1993, writ denied).

Not later than the 120th day after filing suit, a claimant asserting a health care liability claim must serve on each party or the party’s attorney one or more expert reports for each physician or health care provider against whom a claim is asserted. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). If the claimant does not serve the report, the trial court is required, upon motion by the affected physician or health care provider, to dismiss the claim with prejudice and award reasonable attorney’s fees and cost. Id. at § 74.351(b).

The expert report requirement applies to all claims that fall within the statutory definition of a “health care liability claim.” See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex.2005). A “health care liability claim” is defined as:

[A] cause of action against a health care ;provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.

Tex. Civ. PraC. & Rem.Code Ann. § 74.001(a)(13) (2005) (emphasis added). The term “health care provider” means any person or entity duly licensed by the State of Texas to provide health care, and includes “an employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship.” Id. § 74.001(a)(12)(B)(ii).

Analysis

According to the record, it is undisputed that the clinic was a health care provider and JTW’s contract with the clinic provides that JTW was an independent contractor. The remaining question is whether JTW was acting in the course and scope of its contractual relationship when, through Wall, it instructed the Swindells as to use of the VascuTherm. If it was not, then the Swindells’ claims against JTW are not health care liability claims. This question does not present an issue of statutory interpretation, but of evidence. Therefore, we review the trial court’s decision for an abuse of discretion.

The contract between JTW and the clinic identifies the responsibilities of each party. The clinic and its doctors were to provide JTW

with all information needed to execute equipment delivery, set-up and billing for such equipment and services in a timely manner, [sic] Including any required prescription for DME, identification of any particular patient need or requirement, and background information necessary for [JTW] to assist the patient in supplying DME.

On the other hand, JTW was required to provide “professional and prompt delivery, set-up, patienVpatient family member instructions for DME (durable medical equipment) use and function of all' DME for [clinic] clients.”

JTW argues Wall’s statement that the VascuTherm device could be used 24/7, as tolerated, was within the scope of the contract requirement that it provide instructions on the device’s use and function. The Swindells disagree. They alleged JTW exceeded the scope of the contract by overriding the doctor’s prescription for use of the device, i.e., thirty minutes on cold and two hours off. Jeremy’s deposition indicates that when he asked Wall if Kara should take it off at night, Wall said no, “the best thing is, and the advice that I give my patients is wear it 24/7. The longer you wear it, will prevent pain, swelling and blood clot.” The Swindells also alleged that because Wall signed Crates’s name to the prescription form, they were led to believe JTW was empowered to give directions for the use of the device contrary to the doctor’s post-operative order. Crates, the physician, essentially agreed with the Swindells. He stated by deposition that JTW was not a health care provider like a pharmacist or registered nurse. According to Crates, all JTW was to do was “to deliver the machine. You can obviously show how it turns on and off, but not specific instructions on how long should I use this.”

Conclusion

On this record, the facts are disputed about whether Wall’s statement about using the device 24/7 was in the course and scope of JTW’s contract with the clinic. The trial court resolved this dispute against JTW. Because the trial court could have reasonably concluded that JTW was not a health care provider because it was not acting in the course and scope of its contract, we conclude the trial court did not abuse its discretion by denying the motion to dismiss. See Walker, 827 S.W.2d at 839-40; Davis, 571 S.W.2d at 862.

We affirm the trial court’s order.

      . Orthopedic Resources, Inc. also appealed, but later filed a motion to dismiss, which was granted.


author: LESLIE B. YATES, Justice.

text:
    Salvador Torres RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 14-09-00625-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 9, 2010.

      Mary Peter Cudd, Angleton, for appellant.
    Jeri Yenne, Trey David Picard, Angle-ton, for appellee.
    Panel consists of Chief Justice HEDGES and Justices YATES and SULLIVAN.
   OPINION

LESLIE B. YATES, Justice.

A jury convicted appellant Salvador Torres Rodriguez of murder and assessed punishment at 50 years’ imprisonment. Appellant challenges his conviction in four issues, arguing that the trial court erred by failing to conduct a sua sponte informal inquiry into his competency, denying his motion for new trial based on incompetency, denying his request for a competency examination prior to the hearing on his motion for new trial, and denying his motion for new trial based on ineffective assistance of counsel. We affirm.

BackgRound

On the night of the murder, appellant was beaten up by a group of men in the trailer park where he worked as a maintenance man and groundskeeper. Appellant then drove his truck into the crowd of men who attacked him, killing one. Despite the defense’s argument that appellant was acting in self defense, the jury found him guilty of murder. At sentencing, appellant’s daughter explained that appellant had epilepsy. After appellant was sentenced, his appellate counsel filed several motions in the trial court. First, appellate counsel asked the court to appoint an expert to evaluate appellant because appellate counsel believed appellant to be incompetent. Appellate counsel also filed a motion for new trial, alleging that appellant had been incompetent to stand trial and that he received ineffective assistance of counsel. According to appellant’s brief, the court held a hearing on the motion to appoint an expert, but this hearing was not transcribed and does not appear in the record. The court subsequently denied the request to appoint an expert, held a hearing on the motion for new trial, and denied the motion for new trial. The only witnesses to testify at the hearing were appellant’s trial counsel and appellant’s daughter. This appeal followed.

Analysis

A. Competency Inquiries

Appellant argues in his first issue that the trial court erred by not conducting a sua sponte informal inquiry into his competency because evidence before the court raised a bona fide doubt as to his competency. He argues in his third issue that the trial court erred by denying his motion for new trial, which alleged he was actually incompetent at the time of trial. The State suggests that our review should be limited to the trial court’s denial of appellant’s motion for new trial and that we need not address whether the court should have conducted an informal inquiry. We conclude, however, that each point of error “relates to trial court conduct at different stages in the proceedings and, consequently, presents a different issue for review.” Brown v. State, 960 S.W.2d 772, 774 (Tex.App.-Dallas 1997, pet. refd). We address each issue in turn.

1. Sua Sponte Informal Inquiry

A defendant is incompetent when he or she lacks (1) sufficient present ability to consult with counsel with a reasonable degree' of rational understanding or (2) a rational and factual understanding of the legal proceedings. Tex.Code Crim. Proc. Ann. art. 46B.003(a) (West 2006). A trial court has an obligation to sua sponte hold an informal inquiry into competency if “evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court.” Tex.Code Crim. Proc. Ann. art. 46B.004(b) (West 2006). After the informal inquiry, if the court determines some evidence exists that would support a finding of incompetence, then the court must appoint an expert to examine the defendant and hold a trial to determine whether the defendant is actually incompetent to stand trial on the merits. Tex.Code Crim. ProC. Ann. art. 46B.004-.005 (West 2006).

The “evidence” required to trigger the mandatory informal inquiry can be any fact brought to the court’s attention that raises a bona fide doubt regarding the defendant’s competency. Fuller v. State, 253 S.W.3d 220, 228 (Tex.Crim.App.2008); Criswell v. State, 278 S.W.3d 455, 458 (Tex.App.-Houston [14th Dist.] 2009, no pet.). Evidence sufficient to create a bona fide doubt includes- facts regarding the defendant’s “recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant.” Fuller, 253 S.W.3d at 228 (quotation omitted). Evidence sufficient to create a bona fide doubt may also include any other fact from a reasonable or credible source that tends to show incompetence. Alcott v. State, 51 S.W.3d 596, 599 (Tex.Crim.App.2001); see also Kostura v. State, 292 S.W.3d 744, 749 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (Sullivan, J., concurring). This evidence need not be sufficient to find a defendant actually incompetent. Fuller, 253 S.W.3d at 228. It must simply create “ ‘a real doubt in the judge’s mind as to the defendant’s competency.-’ ” Kostura, 292 S.W.3d at 747 (majority opinion) (quoting Alcott, 51 S.W.3d at 599 n. 10). We review a trial court’s implicit decision to not hold a sua sponte informal inquiry for an abuse of discretion. Id. at 746.

A defendant has the right to be competent throughout his or her entire trial, which includes sentencing. Casey v. State, 924 S.W.2d 946, 949 (Tex.Crim.App.1996). Thus, the Texas competency statutes “allow competency to be raised, by either party or the judge, at any time before sentence is pronounced.” Morris v. State, 301 S.W.3d 281, 290 (Tex.Crim.App.2009). “[Sentencing marks the final act of the trial stage [and] closes the door on the trial.” Casey, 924 S.W.2d at 949. Accordingly, when determining if the trial court should have had a bona fide doubt as to competency, we do not typically consider evidence brought to the trial court’s attention for the first time after sentencing. See Purchase v. State, 84 S.W.3d 696, 699 (Tex.App.-Houston [1st Dist.] 2002, pet. refd) (reasoning that the court should not apply the bona fide doubt standard when all the evidence of incompetency was presented at the hearing on a motion for new trial); Freeman v. State, No. 13-98-587-CR, 2001 WL 34401233, at *2 (Tex.App.-Corpus Christi Aug. 16, 2001) (not designated for publication) (concluding there was no error in the trial court’s failure to conduct a sua sponte informal inquiry because the only evidence of incompetency was brought to the court’s attention on the defendant’s motion for new trial and bill of exception), rev’d on other grounds, 125 S.W.3d 505 (Tex.Crim.App.2003). Rather, we consider only the evidence actually known by the trial court up until the point of sentencing. Brown v. State, 960 S.W.2d 772, 775-76 (Tex.App.-Dallas 1997, pet. refd) (refusing to consider new evidence of incompetency presented at the hearing on a motion for new trial for purposes of determining whether the trial court erred in not making an initial inquiry into the defendant’s competency); Taylor v. State, 948 S.W.2d 827, 832 (Tex.App.-San Antonio 1997, pet. refd) (same).

Appellant argues, however, that we should consider evidence brought to the trial court’s attention on his motion for new trial in our evaluation of whether the court erred by not conducting an informal inquiry. The Ninth Court of Appeals recently held that “the bona fide doubt standard applies to the competency issues raised in [a] motion for new trial,” and it considered new evidence presented on the motion to determine whether the trial court should have conducted an informal inquiry after sentencing. Lasiter v. State, 283 S.W.3d 909, 926 (Tex.App.-Beaumont 2009, pet. refd). But the Court of Criminal Appeals has not yet held that courts should apply the bona fide doubt standard to consider new evidence presented after sentencing. Nor does it appear that the amendment to the competency statute in 2003 authorized courts to follow this procedure, as suggested by the Ninth Court in Durgan v. State, 259 S.W.3d 219, 222-23 (Tex.App.-Beaumont 2008, no pet.). The statute formerly distinguished between issues of incompetency raised “in advance of the trial” and “during the trial.” See Tex. Code CRiM. Proo. Ann. art. 46.02, § 2 (repealed Jan. 1, 2004). Some courts relied on the “during the trial” language to conclude that the statute did not apply after sentencing. See Durgan, 259 S.W.3d at 222-23. The legislature removed the “during the trial” language in 2003 when it adopted a uniform procedure for raising the issue of incompetency. See 42 George E. Dix & Robert O. Dawson, Texas PractiCE: Criminal Practice and Procedure § 26.51a (Supp.2009-2010) (noting that the amendment “abandoned the traditional distinction between pretrial and trial procedures”). But both the pre- and post-amendment versions of the statute require the trial court to determine the issue of competency prior to sentencing when the issue is raised after the trial begins. Compare Tex.Code Crim. Proc. Ann. art. 46.02, § 4(c) (repealed Jan. 1, 2004) (providing for determination to be made “at any time prior to the sentencing of the defendant” when issue as to competency is raised “other than by written motion in advance of trial”), with Tex.Code Crim. Proo. Ann. art. 46B .005(d) (providing for determination to be made “at any time before sentencing” when issue as to competency is raised “after the trial begins”). Simply put, the Texas competency statute does not apply after sentencing. See Morris v. State, 301 S.W.3d 281, 290 (Tex.Crim.App.2009).

Nor does there appear to be a federal constitutional requirement that a court consider post-sentencing evidence when determining if the trial court should have had a bona fide doubt as to competency. In Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), the defendant moved to vacate his sentence in part because he alleged he should -have received a competency hearing. Id. at 168-69, 95 S.Ct. 896; Drope v. State, 498 S.W.2d 838, 839 (Mo.Ct.App.1973), rev’d, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). The Missouri Court of Appeals refused to consider psychiatric testimony from the hearing on the motion to vacate when deciding whether the trial court should have had a reasonable doubt as to competency: “We do not find in [Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966),] any indication that the evidence of reasonable doubt of competence can be elicited in the first instance during a postconviction' proceeding seeking to set aside the conviction.” 498 S.W.2d at 843. The United States Supreme Court agreed with this procedure, noting that it had “not relied on the testimony of the psychiatrists at the [hearing on the motion to vacate], which, we agree with the Missouri Court of Appeals, is not relevant to the question” of whether there was a reasonable doubt as to the defendant’s competency at the time of trial. 420 U.S. at 181 n. 17, 95 S.Ct. 896.

Accordingly, we will consider only the facts known to the trial court prior to the imposition of appellant’s sentence. Appellant suggests the following facts known to the trial court should have created a bona fide doubt as to appellant’s competency: (1) appellant received a head injury from a beating he incurred the night of the crime, (2) appellant was being confined in the jail’s- “A row,” which was where people were housed for disciplinary, protective, or medical reasons, (3) appellant had epilepsy, and (4) appellant drank alcohol regularly before he was arrested. These facts do not show recent severe mental illness, moderate retardation, or truly bizarre acts. Nor do these facts suggest that appellant might have been unable to consult with his attorney or understand the proceedings. Appellant offered no explanation for why the court might think otherwise. Cf. Moore v. State, 999 S.W.2d 385, 395 (Tex.Crim.App.1999) (finding no error in the trial court’s failure to hold an informal inquiry when the court knew the defendant suffered from depression but there was no evidence that he could not understand the proceedings or assist his attorney); see also Williams v. State, Nos. 14-09-00042-CR, 14-09-00043-CR, 2010 WL 3921128, at *6 (Tex.App.-Houston [14th Dist.] Oct. 7, 2010, no pet. h.) (“[E]vidence of impairment does not support a competency inquiry where there is no evidence indicating the defendant is unable to consult with his attorney with a reasonable degree of rational understanding.”)

Further, the court spoke with appellant during a pretrial proceeding to determine whether appellant needed an interpreter, and appellant said that he would be able to help his attorney in preparing for trial and throughout trial. See McDaniel v. State, 98 S.W.3d 704, 712 (Tex.Crim.App.2003) (noting the appellant’s lucid trial testimony in support of the trial court’s implicit decision to not hold an informal inquiry); Kostura, 292 S.W.3d at 747 (same). We hold that there was insufficient evidence to raise a bona fide doubt as to appellant’s competency, and the trial court did not abuse its discretion by failing to sua sponte hold an informal inquiry. We overrule appellant’s first issue.

2. Motion for New Trial

When a defendant raises the issue of incompetency in a motion for new trial, a court looks to all the evidence— including new evidence presented on the motion — to determine whether the appellant was actually incompetent at the time of the trial. Purchase, 84 S.W.3d at 699; Edwards v. State, 993 S.W.2d 171, 175-76 (Tex.App.-El Paso 1999, pet. refd); Brown, 960 S.W.2d at 778. The court does not look to whether the evidence raises a bona fide doubt as to competency, and it applies the normal standard used in deciding a motion for new trial whereby the trial court is entitled to resolve conflicts in the evidence. Purchase, 84 S.W.3d at 699; Brown, 960 S.W.2d at 778. We review a trial court’s denial of a motion for new trial for an abuse of discretion. Criswell, 278 S.W.3d at 457

Appellant raised several additional facts at the hearing on the motion for new trial. Appellant focuses on two in particular: (1) appellant had memory problems and (2) appellant’s trial counsel initially had concerns about appellant’s competency. The memory problems, however, primarily concerned minor details such as dates and numbers. Further, counsel testified, “I believe that he understood the nature of the charges against him and was able to assist me in my defense, yes.” Counsel also said that he discussed a plea with appellant, and he believed appellant understood the plea. Appellant provided counsel with names of witnesses, and appellant’s daughter believed that appellant was generally aware of what was going on in the case and that he probably would understand what was going on during trial. Appellant’s daughter also said she did not know if he was mentally retarded, but he was able to maintain a job and support the family. She believed that the defense’s theory of the case — that appellant was acting in self defense — came from appellant.

Appellant’s minor memory problems, without supporting evidence that these problems caused him to be denied a fair trial, do not show incompetence. See Jackson v. State, 548 S.W.2d 685, 691-92 (Tex.Crim.App.1977). And an unsupported allegation of incompetence, such as trial counsel’s initial comment, is not even enough to raise a bona fide doubt as to competency. See McDaniel, 98 S.W.3d at 711. Accordingly, it could not be the basis for holding that the trial court abused its discretion by denying appellant’s motion for a new trial. Appellant did not establish at the hearing that he was incompetent to stand trial, and looking at all of the evidence available to the trial court, we see no abuse of discretion. We overrule appellant’s third issue.

B. Post-Sentencing Request for Competency Examination

Appellant argues in his second issue that the trial court erred in denying his post-sentencing request for a competency examination under the Texas competency statute. He asserts that “a defendant must be competent at all stages of trial including a hearing on the Motion for New Trial.” Under the Texas competency statute, a trial court must appoint an expert to examine a defendant if evidence exists to support a finding of incompetency. Tex. Code Crim. Proc. Ann. art. 46B .021(b) (West 2006).

Appellant cites no authority for the argument that a court may be required to appoint an expert to examine a defendant after sentencing, and he fails to present “a clear and concise argument for the contentions made.” Tex.R.App. P. 38.1(i). Further, the record in this case is insufficient to establish error because the hearing on appellant’s motion was not transcribed, and we are left to speculate whether appellant presented any evidence to support a finding of incompetency. See Ortiz v. State, 144 S.W.3d 225, 230 (Tex.App.Houston [14th Dist.] 2004, pet. refd) (en banc) (unanimous decision) (explaining that an appellant bears the “burden of developing a sufficient record in the trial court to demonstrate reversible error on appeal”). Accordingly, appellant’s second point of error is waived.

But even if we were to address the merits of appellant’s argument, we have found no support for the argument that a defendant may have an expert appointed after sentencing. See Bronson v. State, No. 12-09-00129-CR, 2010 WL 702259, at *4 (Tex.App.-Tyler Feb. 26, 2010, no pet.) (mem. op., not designated for publication) (suggesting that the competency statute might not authorize a trial court to appoint an expert after sentencing because the statute is “prospective in nature” and it “does not specifically provide for an examination to determine if a convicted person had been incompetent to stand trial”). And even if we assume that a trial court could appoint an expert after sentencing, the record shows only appellate counsel’s bare assertion of incompetency without supporting details, which is insufficient to raise a bona fide doubt. See McDaniel, 98 S.W.3d at 711; Moore v. State, 999 S.W.2d 385, 394 (Tex.Crim.App.1999). We overrule appellant’s second issue.

C. Ineffective Assistance

In appellant’s fourth issue, he argues that he received ineffective assistance of counsel. When, as here, an appellant raises the issue of ineffective assistance in a motion for new trial, we review the trial court’s denial of the motion for an abuse of discretion. Charles v. State, 146 S.W.3d 204, 207-08 (Tex.Crim.App.2004), superseded by statute on other grounds by Tex.R.App. P. 21.8(b), as recognized in State v. Herndon, 215 S.W.3d 901, 905 n. 5 (Tex.Crim.App.2007); My Thi Tieu v. State, 299 S.W.3d 216, 223 (Tex.App.-Houston [14th Dist.] 2009, pet. refd). We view the evidence in the light most favorable to the trial court’s ruling, and we will reverse only if no reasonable view of the record could support the trial court’s finding. Charles, 146 S.W.3d at 208.

A claim of ineffective assistance is governed by the familiar two-prong test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that counsel’s performance was deficient— counsel’s representation fell below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. 2052. A court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. If a defendant cannot show in the record that counsel’s conduct was not the product of a strategic decision, “a reviewing court should presume that trial counsel’s performance was constitutionally adequate ‘unless the challenged conduct was so outrageous that no competent attorney would have engaged in it.’ ” State v. Morales, 253 S.W.3d 686, 696-97 (Tex.Crim.App.2008) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005)). Second, a defendant must show that counsel’s deficiency caused prejudice — that the “errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. There must exist a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694. A defendant must satisfy both of these prongs by a preponderance of the evidence. Perez v. State, 310 S.W.3d 890, 893 (Tex.Crim.App.2010).

Appellant alleges many of trial counsel’s actions show deficient performance. But all of appellant’s allegations are cursory, some of them lack citations to the record, and many of them are contradicted by the record. Trial counsel testified at the hearing on the motion for new trial, so we have insight into counsel’s decisions on some of the alleged errors. The record is silent, however, as to others. We will address these allegations under the following categories: communication, investigation and preparation regarding mental health, interviewing and presenting witnesses, and objections.

1. Communication

Appellant alleges that counsel did not properly inform appellant about the proceedings, including a plea offer, and counsel failed to effectively communicate with appellant. These allegations are not supported by the record. Although appellant’s daughter said she was not aware of a plea offer in the case, counsel said that he discussed a plea with appellant and that appellant understood the plea. Further, counsel testified that he met with appellant about six times before trial and that appellant gave him names of witnesses with whom he spoke. Finally, appellant’s daughter said she believed that the entire theory of the case presented by counsel— self defense — came from appellant. The evidence regarding counsel’s communication with appellant supports the trial court’s decision to deny the motion.

2. Investigation and Preparation Regarding Mental Health

Appellant alleges that counsel allowed appellant to go to trial when counsel was aware of appellant’s mental illness, did not adequately investigate appellant’s medical and mental health background for purposes of mitigation, did not consult medical professionals, did not obtain appellant’s medical records, and did not secure expert testimony about appellant’s epilepsy. Most of these allegations are not supported by the record. Counsel was not aware of any mental illness that appellant had, and appellant has not shown anywhere in the record that appellant has a neurological disorder other than epilepsy. Appellant has not demonstrated that he was incompetent to stand trial, and counsel believed appellant was legally competent to stand trial. Further, counsel said that he had sufficient information about appellant’s medical history to present his defense and make a competency determination. At sentencing, appellant’s daughter explained appellant’s health issues, including his epilepsy, heart problems, and drinking. Appellant has failed to show how any further investigation was necessary or would have affected the outcome of the proceedings. See Vaughn v. State, No. 14-08-00522-CR, 2009 WL 3294998, at *4 (Tex.App.-Houston [14th Dist.] Oct. 15, 2009, pet. dism’d) (mem. op., not designated for publication) (holding that counsel was not ineffective for failing to investigate mental health background for purposes of mitigation because the defendant did not prove what further evaluation would have shown and how it would have affected the punishment); Conrad v. State, 77 S.W.3d 424, 426-27 (Tex.App.-Fort Worth 2002, pet. ref d) (holding that counsel’s failure to investigate insanity defense was not ineffective assistance because the defendant failed to offer evidence at the hearing on the motion for new trial that would have established insanity).

Counsel stated that he believed appellant was legally competent because appellant understood the proceedings and assisted him by providing names of witnesses. See Stafford v. State, 101 S.W.3d 611, 613 (Tex.App.-Houston [1st Dist.] 2003, pet. ref d) (holding that counsel was not ineffective for failing to have a mental health expert evaluate the defendant for competency purposes when there was no detailed evidence of mental illness, and trial counsel was in the best position to observe competency). Further, counsel said that he in fact consulted with medical professionals while preparing for appellant’s case. Although counsel might not have reviewed all the medical records that appellate counsel reviewed, counsel testified that he reviewed sufficient medical records, including records that contained explicit details about appellant’s medical history. Counsel said he did not need voluminous records regarding appellant’s epilepsy to defend the case under the theory of self defense, so he did not pursue additional records or secure expert testimony regarding appellant’s epilepsy. Counsel said that he made a strategic choice not to pursue a theory of the case based on an epileptic seizure but rather that appellant was acting in self defense. He believed these two theories would appear inconsistent to the jury, and he made a strategic decision to pursue only one theory at trial. Decisions based in strategy do not constitute deficient performance, Strickland, 466 U.S. at 689, 104 S.Ct. 2052, and the trial court did not err in finding that there was no deficiency regarding counsel’s investigation and preparation as to appellant’s mental or physical health. Cf Stafford, 101 S.W.3d at 613 (holding no ineffective assistance in failing to investigate insanity defense because it was incompatible with the already plausible and presented misidentifi-cation defense).

3. Interviewing and Presenting Witnesses

Appellant next alleges that counsel did not interview family members before trial, failed to call relevant witnesses who were available and would have provided beneficial testimony, should have called more witnesses to testify at punishment (in particular, family members and employers), and should have ensured that witnesses were subpoenaed.

Appellant has not identified any particular witnesses counsel should have called, what these witnesses would have said, or how the testimony would have benefited appellant’s case during the guilt-innocence or punishment phases. A court has no basis for finding deficient performance when presented with this type of unsupported allegation. See Perez v. State, 310 S.W.3d 890, 894 (Tex.Crim.App.2010) (“[T]he failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony.” (quotation omitted)). Further, counsel testified that he met with appellant’s daughter three or four times, and she supplied a list of witnesses. He also testified that he met with other family members and other witnesses who were interviewed by the State and some who were not interviewed by the State. Finally, we note that counsel indeed called several witnesses during both the guilt-innocence and punishment phases of the trial. Accordingly, the evidence supports the trial court’s decision.

4. Objections

Appellant alleges that counsel did not object at sentencing on cruel-and-unusual or abuse-of-discretion grounds and that “counsel should have been more effective at the trial and punishment stage by making more objections.” Counsel’s failure to object at sentencing was not addressed at the hearing on the motion for new trial. Thus, the record is silent as to counsel’s decision not to object on the two identified grounds. Further, appellant has failed to show (or even argue) that such objections, if overruled, would have constituted reversible error, and we have found no suggestion in the record that these objections would have preserved meritorious issues for appeal. In such a situation, there is no ineffective assistance. See Miniel v. State, 831 S.W.2d 310, 324-25 (Tex.Crim.App.1992) (holding no deficient performance because failure to object would not have preserved reversible error); see also Holland v. State, 761 S.W.2d 307, 319 (Tex.Crim.App.1988) (“[TJrial counsel was under no obligation to do what would amount to a futile act.”).

Finally, appellant has failed to identify any other particular objections counsel should have made. There is no basis for finding deficient performance on this unsupported allegation. See Livingston v. State, No. 14-06-01031-CR, 2008 WL 2262033, at *8 (Tex.App.-Houston [14th Dist.] May 29, 2008, pet. ref d) (mem. op., not designated for publication) (refusing to consider the appellant’s ineffective assistance argument when the appellant failed to identify a specific objection counsel should have made); Valdes-Fuerte v. State, 892 S.W.2d 103, 112 (Tex.App.-San Antonio 1994, no pet.) (same).

A reasonable view of the evidence supports the trial court’s decision to deny appellant’s motion for a new trial based on ineffective assistance, and thus, we find no abuse of discretion. Appellant’s fourth issue is overruled.

Conclusion

We conclude that the trial court did not err by failing to conduct a sua sponte informal inquiry into appellant’s competency, nor did the court err in denying appellant’s motion for new trial. Appellant has also failed to show that the trial court erred by not ordering a post-sentencing competency examination. Finally, the trial court did not-err in denying appellant’s motion for new trial based on ineffective assistance. We overrule appellant’s issues and affirm the trial court’s judgment.

      . A defendant may also allege in a motion for new trial that the trial court should have conducted a sua sponte informal inquiry. See Criswell, 278 S.W.3d at 457, 460. But in this ease, appellant argued in his motion that he was actually incompetent, not that the court erred by failing to hold an informal inquiry.


author: Justice MORRIS.

text:
    Roy THRELKELD, Appellant, v. Gregory URECH, Appellee.
    No. 05-09-00631-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 17, 2010.
    Rehearing Overruled Jan. 6, 2011.

      Thomas L. Cox, Jr., Gary W. Sibley, Dallas, for Appellant.
    Mark Harrington Ralston, Dallas, for Appellee.
    Before Justices MORRIS, MOSELEY, and MYERS.
   OPINION

Opinion By

Justice MORRIS.

In this appeal from a summary judgment, Roy Threlkeld contends the trial court erred in enforcing a promissory note and ordering him to pay the interest allegedly due. Threlkeld contends the original interest rate on the note was usurious and that the lender, Gregory Urech, knew the note was usurious at the time the note was executed. Threlkeld further argues that Urech’s attempt to correct the usurious rate of interest was both untimely and ineffective. After reviewing the record and applicable law, we conclude the trial court did not err in granting summary judgment in favor of Urech. We affirm the trial court’s judgment.

I.

On October 7, 2002, Roy Threlkeld and Gregory Urech signed a promissory note made payable to Urech in the amount of $200,000. The parties agreed that interest would accrue on the unpaid balance at the rate of 100% per annum. Threlkeld also agreed to make a lump sum payment of the balance and interest owed “365 days after receipt of the initial investment.”

Although Threlkeld made sporadic payments under the note, he never paid the full amount owed. After Threlkeld defaulted, Urech contacted an attorney to discuss his legal rights of recovery. On December 17, 2003, based on his attorney’s advice, Urech sent a “correction letter” under section 305.103 of the Texas Finance Code informing Threlkeld that the note, as executed, violated Texas usury law. Urech also informed Threlkeld that the letter was intended to correct the violation and “the stated interest rate of 100% per annum in the Note [was] reduced, from the inception of the loan until payment [was] finally made, to the maximum lawful rate of interest not to exceed 18% per annum.”

On October 5, 2007, Urech filed suit to recover the amounts he alleged were still due under the note. Threlkeld answered and sent Urech a letter under chapter 302 of the Texas Finance Code stating his position that the 18% interest rate specified in the purported correction letter was usurious. Threlkeld advised Urech he had 61 days to modify the note again. Urech refused to modify the note any further, and Threlkeld filed a counterclaim for usury.

Urech moved for summary judgment contending the undisputed evidence showed that Threlkeld was in default on the note and the unpaid principal and interest amounted to $114,703. In support of his motion, Urech submitted an affidavit along with copies of the note and the correction letter. Urech also asserted that the 18% interest rate charged pursuant to the correction letter was not usurious as a matter of law.

Threlkeld responded that Urech was not entitled to summary judgment because (1) the correction letter was not sent timely and (2) the maximum amount of allowable interest that could be applied to the note was 10%, not 18%. Threlkeld argued Urech knew at the time the note was signed that the stated interest rate was usurious and, therefore, the correction letter was not sent within 60 days after Urech discovered the usury violation as required by section 305.103 of the Texas Finance Code. In support of his argument, Threlkeld filed an affidavit stating “both plaintiff, Gregory Urech, and I knew at the time the loan was entered into that it was usurious.”

Urech then filed a reply brief in support of his motion. In his reply, Urech argued that Threlkeld’s assertion as to Urech’s knowledge of usury was pure speculation. Urech also filed a supplemental affidavit stating “at the time I entered into the Note and lent the sum of $200,000, I did not know that the interest provided under the Note (as originally drafted) was usurious. I am not an attorney and at the time I entered into the Note, I was only 23 years of age.” Urech also stated that Threlkeld “himself proposed the payment and interest terms contained in the Note.” Finally, Urech testified that “after Threl-keld defaulted under the Note ... I contacted an attorney to advise me of my legal rights to recover against Threlkeld. Only upon consultation with legal counsel did I become aware that the interest provided under the Note, as originally drafted, was usurious. Based on the advice of counsel, I reduced the interest to be charged as set forth in the Correction letter. I delivered the Correction Letter personally to Threlkeld fifty-three days after the date I first contacted legal counsel.”

Threlkeld responded with his own supplemental affidavit stating, in part, “Gregory Urech knew at the time the loan was made that it was usurious because it was a risky loan and, therefore, I agreed to a higher rate.” Urech moved to strike the affidavit as untimely and objected to the statement about his alleged knowledge of usury law. Urech contended the assertion as to his knowledge was unsubstantiated and conclusory. The motion to strike the affidavit in its entirety was denied, but the trial court sustained Urech’s objection to the individual statement about his knowledge. The trial court then granted Urech’s motion for summary judgment and awarded him $12,000 in unpaid principal and $102,898 in unpaid interest along with pre- and post-judgment interest and attorney’s fees. This appeal ensued.

II.

In three issues, Threlkeld generally contends the trial court erred in granting summary judgment and enforcing the note because Urech failed to show that the interest rate in the note was properly corrected as a matter of law. Threlkeld first argues that there is a genuine issue of material fact about when Urech knew the 100% interest rate originally agreed to in the note violated Texas usury law. It is undisputed that a 100% interest rate is usurious. See Tex. Fin.Code Ann. § 303.009 (West 2006). Under the Texas Finance Code, however, a lender may correct a usurious interest rate by sending written notice to the borrower within sixty days of discovering the violation and making “any necessary adjustment.” Id. § 305.103(a) A violation is discovered “at the time of the discovery of the violation in fact and not at the time when an ordinarily prudent person, through reasonable diligence, could or should have discovered or known of the violation.” Id. § 305.103(b). The purpose of the usury statute is to penalize those who intentionally charge interest in excess of the rate allowed by law. See Pentico v. Madr-Wayler, Inc., 964 S.W.2d 708, 714 (Tex.App.-Corpus Christi 1998, pet. denied).

Threlkeld contends that if Urech knew of the usury violation at the time the note was signed, then the correction letter sent over one year later was untimely and ineffective, rendering the interest provision in the note unenforceable. The summary judgment evidence regarding Urech’s knowledge consists solely of the affidavits made by the parties. Urech testified in his affidavit that he was unaware of the usury violation until he consulted with an attorney and that he sent the correction letter fifty-three days later. This testimony establishes that the correction letter was sent within the sixty-day window provided for in section 305.103.

Threlkeld contends Urech’s testimony is nothing more than uncorroborated statements by an interested witness. A complaint that an affidavit is by an interested witness is an objection to form that is waived if not raised in the trial court. See Ahumada v. Dow Chemical Co., 992 S.W.2d 555, 562 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). Threlkeld made no objection to the affidavit in the trial court and, accordingly, he may not raise this objection on appeal. See id.

Threlkeld also appears to argue that Urech’s testimony is conclusory because it is not susceptible to being readily controverted. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996). If Urech relied only on his statement that he did not know the note’s interest rate was usurious at the time note was signed, we might agree with Threlkeld. Urech’s affidavits, however, include specific facts about how he learned the interest rate in the note was usurious. Urech said he was unaware of the usury violation until he consulted with an attorney. Specifically, Urech stated that “[ojnly upon consultation with legal counsel did I become aware that the interest provided under the Note, as originally drafted, was usurious.” Because Urech’s testimony was based on asserted facts that could be controverted and his statements were direct, clear, positive, and free from contradictory testimony, we conclude his affidavit was sufficient to support the summary judgment. See Ahumada, 992 S.W.2d at 562.

Threlkeld argues in the alternative that, even if Urech’s affidavit was sufficient to support the judgment, his own affidavit testimony created a fact issue regarding when Urech first knew of the usury violation. In one affidavit, Threlkeld simply asserted that Urech “knew at the time the loan was entered into that it was usurious.” In his supplemental affidavit, Threl-keld testified that Urech knew the loan was usurious at the time it was made “because it was a risky loan.” Urech objected that the statement regarding his knowledge in the supplemental affidavit was conclusory and the objection was upheld. Threlkeld argues the trial court erred in sustaining the objection without giving him an opportunity to amend the affidavit under rule 166a(f) of the Texas Rules of Civil Procedure.

We first note that Threlkeld’s assertion that the trial court erred in not giving him an opportunity to amend is presented only in his reply brief. A complaint may not be raised for the first time in a reply brief. See Dallas County v. Gonzales, 183 S.W.3d 94, 104 (Tex.App.Dallas 2006, pet. denied). Accordingly, this issue is not properly before us. Regardless, we conclude Threlkeld’s argument is without merit. A trial court is required to provide an opportunity to amend a summary judgment affidavit only where the defect is one of form, not substance. See Tex.R. Civ. P. 166a(f). A conclusory statement in an affidavit is a defect of substance. See EOG Resources, Inc. v. Killam Oil Co., Ltd., 239 S.W.3d 293, 302 (Tex.App.-San Antonio 2007, pet. denied). The trial court did not err, therefore, in not giving Threlkeld an opportunity to amend. Id.

The remaining statements in Threlkeld’s affidavits are insufficient to create a fact issue about the timing of Urech’s discovery of the usury violation. Threlkeld’s affidavit merely states his subjective belief that Urech knew the note was usurious at the time it was signed. An affiant’s subjective belief about facts is legally insufficient as evidence. See Kerim v. Arias, 274 S.W.3d 666, 667 (Tex.2008). Furthermore, absent any supporting facts, Threlkeld’s statement regarding Urech’s knowledge is wholly conclusory. The only facts Threlkeld sets forth to support his statement are that Urech is a college graduate with a degree in international banking. These facts do nothing more than raise a mere suspicion about Urech’s knowledge of usury. This is particularly true in light of the actual knowledge requirement set forth in section 305.103(b). Tex. Fin.Code Ann. § 305.103(b). As such, Threlkeld’s affidavits are insufficient to create a genuine issue of material fact. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). We resolve Threlkeld’s first issue against him.

In his second and third issues, Threlkeld contends the trial court erred in applying an 18% interest rate to the amounts due under the note. Threlkeld contends the maximum amount of interest that can be applied to the note is 10% under section 302.001(b) of the Texas Finance Code. See Tex. Fin.Code Ann. § 302.001(b). Threlkeld cites no authority, and we have found none, to support his contention that the maximum interest rate to which a usurious note may be corrected is 10%. Threlkeld argues only that an 18% annual rate of interest is usurious and there is no language in the note that would support the 18% rate.

To support his argument that the 18% interest rate is usurious, Threlkeld relies on the portion of section 302.001(b) that states “[a] greater rate of interest than 10 percent a year is usurious unless otherwise provided by law.” Id,. Threl-keld’s reliance on this language is misplaced because Texas law provides for a greater rate of interest in section 303.009 of the finance code. See Tex. Fin.Code Ann. § 303.009; see also All Seasons Window and Door Mfg., Inc. v. Red Dot Corp., 181 S.W.3d 490, 498 (Tex.App.-Texarkana 2005, no pet.). Section 303.009 establishes an alternative interest rate ceiling with a “minimum ceiling” of 18% a year. This 18% minimum rate ceiling is applicable to written contracts through Section 303.002. See Tex. Fin.Code Ann. § 303.002 (parties to a written agreement may agree to an interest rate that does not exceed the weekly ceiling). Accordingly, Texas law authorizes an interest rate of at least 18% to be applied to a written contract such as the one at issue here, and the rate is not usurious.

Threlkeld next contends the 18% rate cannot be applied to the note because the note does not include language that would allow the application of that rate. In making this argument, Threlkeld both relies on and attempts to distinguish the holding of the Texarkana Court of Appeals in All Seasons Window and Door Mfg., Inc. v. Red Dot Corp., 181 S.W.3d at 497. In All Seasons, the court addressed the proper interest rate to be applied to a contract that did not specify the interest rate to be charged but instead provided for interest “at the maximum rate permitted by law.” Id. The court concluded the language “maximum rate permitted by law” was sufficient to support application of the 18% minimum ceiling rate under section 303.009. Id. Threlkeld attempts to expand this holding by arguing that, because the usurious rate he agreed to cannot be applied and he did not agree to pay “the maximum rate permitted by law,” there is nothing to legally support an 18% rate of interest on the note. We disagree. The holding in All Seasons is necessarily limited to its facts and nowhere does the court state that the “maximum rate permitted by law” language is necessary for a lender to apply an 18% rate of interest when correcting a usurious note.

To cure a usury violation, section 305.103 requires only that a lender notify the borrower of the violation and make any necessary adjustment to reduce the interest to a nonusurious rate. See Tex. Fin. Code Ann. § 305.103(a); see also Bair Chase Prop. Co., LLC v. S & K Dev. Co., Inc., 260 S.W.3d 133, 143 (Tex.App.-Austin 2008, pet. denied) (usury violation cured by limiting demand for interest to 18%). In this case, Urech notified Threlkeld of the violation and reduced the interest to the minimum ceiling rate that may be applied to contracts. See Tex. Fin.Code Ann. § 303.009. This rate was far below the rate to which Threlkeld agreed. We see nothing in section 305.103 that would require any specific contractual language before a lender could correct a usury violation by adjusting the interest rate to the maximum rate allowed by law. We overrule Threl-keld’s second and third issues.

We affirm the trial court’s judgment.

      . Section 303.009(a) states ”[i]f the rate computed for the weekly, monthly, quarterly, or annualized ceiling is less than 18 percent a year, the ceiling is 18 percent a year.” Tex. Fin.Code Ann. § 303.009(a).