author: Opinion by Justice FITZGERALD.

text:
    Dean Michael DAVIS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 05-06-01613-CR to 05-06-01620-CR.
    Court of Appeals of Texas, Dallas.
    Feb. 29, 2008.
    Discretionary Review Refused Sept. 10, 2008.

      Gary A. Udashen, Sorrels, Udashen & Anton, Dallas, for appellant.
    Dean Michael Davis, Beaumont, pro se.
    Craig Watkins, Dallas County Dist. Atty., Patricia Poppoff Noble, Asst. Dist. Atty., Dallas, for state.
    Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
   OPINION

Opinion by Justice FITZGERALD.

Dean Michael Davis appeals eight convictions for various drug-possession offenses. Initially, appellant was charged with six offenses, to which he pleaded guilty, and the trial court deferred adjudication of guilt, placed appellant on community supervision for eight years, and assessed a $1000 fine in each case. Subsequently, appellant was indicted for possession of marijuana and methamphetamine. The State moved to revoke appellant’s community supervision and adjudicate appellant guilty in the first six cases. The trial court found appellant guilty in the two new cases, adjudicated appellant guilty in the six earlier cases, sentenced appellant to two years in one case, ten years in two of the cases, and fifteen years in five of the cases, and the court found appellant used or exhibited a deadly weapon in the two new cases. The trial court also assessed a $1500 fine in each of the two new cases. Appellant brings seven issues asserting the evidence is legally and factually insufficient to support (a) the revocation of his community supervision in the six earlier cases, (b) his convictions in the two new cases, and (c) the entry of the deadly weapon findings in the two new cases. Appellant also contends the State failed to give him notice of its intent to seek a deadly weapon finding in one of the new cases, and he contends the sentences constitute cruel and unusual punishment because he has AIDS. We affirm six of the judgments. In the remaining two cases, we modify the judgments to reflect the sentence pronounced in appellant’s presence, and we affirm the judgments as modified.

DEFERRED ADJUDICATION

In his first issue, appellant contends the evidence is legally insufficient to support the trial court’s decision to revoke his community supervision and adjudicate him guilty. “No appeal may be taken from” the decision to adjudicate guilt. Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b) (amended 2007); Davis v. State, 195 S.W.3d 708, 712 (Tex.Crim.App.2006); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App.1992). Section 5(b) expressly permits appeal of proceedings occurring after the adjudication of guilt. Tex.Code Crim. Prog. Ann. art. 42.12, § 5(b). The revocation of community supervision as part of the decision to adjudicate guilt is not appealable. See id,.; Daniels v. State, 615 S.W.2d 771, 771 (Tex.Crim.App. [Panel Op.] 1981) (appeal of probation revocation when guilt adjudicated following deferred adjudication barred by statute prohibiting appeal from determination to adjudicate guilt). Accordingly, we dismiss appellant’s first issue for want of jurisdiction.

SUFFICIENCY OF THE EVIDENCE

In the second, third, and fourth issues, appellant challenges the legal and factual sufficiency to support his convictions in the two new cases of possession of marijuana and methamphetamine. In determining the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App.2005). In a factual sufficiency review, we view all the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App.2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury’s when considering credibility and weight determinations, but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006) (factual sufficiency jurisprudence still requires appellate court to afford “due deference” to jury’s determinations).

On April 19, 2006, five police officers went to a house to investigate a complaint of drugs being sold there. As Officer Daniel Foster stood on the porch about to knock on the front door, he looked through a window in the door and saw in the living room a coffee table that had a crack pipe and what appeared to be methamphetamine sitting on it. The officers knocked on the door, and a young woman opened the door. Through the open door, Officer Mark Villareal saw appellant leave the back bedroom and come to the door. The officers asked the owner of the house, Rebecca Jackson, for permission to search the house, and she signed a written form giving her consent to search the house for drugs. The officers found methamphetamine under the sink in the bathroom next to the back bedroom. In the back bedroom, they found marijuana in plain view on the floor and a scale and packaging materials. It appeared to the officers that someone was packaging the marijuana when they arrived. The officers found two firearms in the closet of the back bedroom. The officers found appellant’s clothing and briefcase in the house. When the officers mentioned they might look for fingerprints on the bags containing the marijuana, appellant told the officers his fingerprints might be on some of the bags as he had moved them. Jackson told the officers appellant was staying at the house as a guest. The officers testified appellant told them he did not live there but he received mail there. The officers also testified Jackson told them “she’d overheard [appellant] talking on the phone about he was out of money because he had spent it all on marijuana or something to the effect.”

Appellant testified he was released from jail on March 6, 2006 following his arrest for the other drug offenses. Appellant had all his possessions in his car. At the end of March, appellant’s “ex” used a spare key to take appellant’s car, which still contained all of appellant’s possessions. On April 18, appellant’s “ex” left the car and appellant’s possessions at Jackson’s house. Jackson contacted appellant and told him she had his car and possessions. On April 19, appellant went to Jackson’s house to pick up his possessions, some of which were in the house. When appellant walked through the living room, there were no drugs on the coffee table. Appellant was gathering his possessions that were in the front bedroom when he realized he needed a box and there was a box outside. As appellant went out the front door, the officers grabbed his arm, led him to the sofa in the living room, and required him to stay on the sofa while the officers searched the house. He testified he did not hear the officers knock and that the officers made up the testimony about him coming from the back bedroom of the house. Appellant testified, “I never went in the back bedroom”; however, he also testified, “I had clothes in the back bedroom.”

When appellant was asked about his statement that his fingerprints might be on the bags containing the marijuana, he testified the officers misinterpreted his statement. According to appellant’s testimony, what he meant was that he had moved a box of plastic bags in the kitchen. He testified he did not tell the officers he had touched any bags containing marijuana. Later, appellant testified he never told the officers his fingerprints might be “on stuff’ and that the police had made that up.

To establish appellant had knowing possession of the marijuana and methamphetamine, the State had to prove appellant exercised actual care, custody, control, or management over the drugs and that he knew the substances were contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App.2005). “Whether this evidence is direct or circumstantial, ‘it must establish, to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous. This is the whole of the so-called “affirmative links” rule.’ ” Id. (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995)). However, the court of criminal appeals has decided to change its terminology and refer to the concept of “affirmative links” as merely “links.” Evans v. State, 202 S.W.3d 158, 161 n. 9 (Tex.Crim.App.2006). In determining whether sufficient evidence links the appellant to the contraband, the appellate court considers a variety of factors, including: (1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Id. at 162 n. 12.

In this case, appellant is linked to the contraband by testimony that appellant was staying at the house and received mail there, the officers saw appellant come out of the back bedroom where marijuana was found in plain view, the bulk of the methamphetamine was in the bathroom next to the back bedroom, appellant’s presence in the living room where methamphetamine was in plain view, appellant’s statements to the officers that he had touched some of the bags of marijuana, and appellant’s testimony that he had clothing in the back bedroom. Appellant’s knowledge that the substances were contraband was established by appellant’s testimony that he was familiar with marijuana and methamphetamine. After considering all the evidence under the relevant standards of review, we conclude the evidence is legally and factually sufficient to support appellant’s convictions for possession of marijuana and methamphetamine. We overrule appellant’s second, third, and fourth issues.

CRUEL AND UNUSUAL PUNISHMENT

In the fifth issue, appellant contends the sentences in these cases are cruel and unusual in violation of the Eighth Amendment. Appellant asserts he has AIDS and that the penitentiary does not provide treatment for that medical condition, thereby making his term of imprisonment effectively a death sentence. Appellant did not complain about the sentences either at the time they were imposed or in his motions for new trial. -See Tex.R.App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App.1996); Castaneda, 135 S.W.3d at 723. Because appellant did not object to the sentences at the time they were imposed, he has not preserved any error for appellate review. Castaneda, 135 S.W.3d at 723.

Moreover, the trial court sentenced appellant to fifteen years in the first degree felony cases, ten years in the second degree felony cases, and two years in the case of the state jail felony punished as a third degree felony, all of which are within the statutory punishment ranges for the offenses. See Tex. Pen.Code Ann. §§ 12.32, .33, .34 (Vernon 2003), § 12.35(c)(1) (Vernon Supp.2007); Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). As long as the punishment is within the range prescribed by the legislature in a valid statute, the punishment is not excessive, cruel, or unusual. Castaneda, 135 S.W.3d at 724. We conclude the sentences are not excessive, cruel, or unusual, and the trial court did not abuse its discretion in assessing them. We overrule appellant’s fifth issue.

DEADLY WEAPON FINDINGS

In the seventh issue, appellant contends the trial court erred in entering a deadly weapon finding in the new possession of marijuana case because the State did not give notice of intent to seek a deadly weapon finding.

Under article I, section 19 of the Texas Constitution, an accused is “entitled to notice in some form that the use of a deadly weapon will be a fact issue at the time of prosecution.” Patterson v. State, 138 S.W.3d 643, 647 (Tex.App.-Dallas 2004, no pet.) (quoting Ex parte Beck, 769 S.W.2d 525, 526 (Tex.Crim.App.1989)). Where the appellant receives no written notice of the State’s intent and where the indictment itself does not implicate a deadly weapon, we do not ask whether the appellant’s right to notice was forfeited by mere inaction but whether the appellant’s affirmative actions constitute a knowing and voluntary waiver of the appellant’s right to written notice. See Ex parte Minott, 972 S.W.2d 760, 761-62 (Tex.Crim.App.1998).

Appellant received no express written notice in the cause number of the possession of marijuana case that the State intended to seek a deadly weapon finding. At the conclusion of the State’s case, the prosecutor told the trial court the State had filed notices of intent to seek deadly weapon findings in both the possession of methamphetamine and possession of marijuana cases. At sentencing, the trial court stated it would enter deadly weapon findings in both cases. Appellant’s counsel did not respond to either statement. On appeal, appellant asserts the State’s failure to give express written notice in the cause number of the possession of marijuana case violated his constitutional right to notice and requires that this Court delete the finding from the judgment.

Appellant, however, did have express written notice that the State intended to seek a deadly weapon finding in the new possession of methamphetamine case. Both of the new possession eases arose out of the same criminal episode, appellant’s possession of contraband in the back part of the house, and involved the same issue, whether appellant possessed the contraband found at the back of the house. The court of criminal appeals faced a similar situation in Ex parte Brooks, 847 S.W.2d 247 (Tex.Crim.App.1993). There, the defendant was charged in separate indictments with burglary of a habitation and aggravated sexual assault, and both offenses arose out of the same criminal episode. The State filed notice of intent to seek a deadly weapon finding in the aggravated sexual assault case but did not file such a notice in the burglary case. Id. at 248. As part of a plea bargain, the aggravated sexual assault charge was dismissed and appellant pleaded guilty to the burglary charge. The trial court entered a deadly weapon finding on the conviction of burglary of a habitation. The defendant then sought a 'writ of habeas corpus to set aside the deadly weapon finding, asserting he did not receive notice of the State’s intent to seek a deadly weapon finding in the burglary case. Id. The court of criminal appeals resolved the issue against the defendant, reasoning that “when the State agreed not to prosecute under the aggravated sexual assault indictment, that did not vitiate notice that the State intended to show use of a deadly weapon during the criminal episode and seek the finding.” Id. at 249. The court also stated, “Such notice need not be contained in the indictment under which the defendant is ultimately tried. Rather, the defendant is simply ‘entitled to notice in some form that the use of a deadly weapon will be a fact issue at the time of prosecution.’ ” Id. at 248 (citation omitted) (quoting Ex parte Beck, 769 S.W.2d at 526). Likewise, in this situation, we conclude the written notice in the new possession of methamphetamine case was sufficient to put appellant on notice that the State sought deadly weapon findings as to the entire criminal episode, including the new possession of marijuana case. We overrule appellant’s seventh issue.

In the sixth issue, appellant asserts the deadly weapon findings in the new possession of marijuana and possession of methamphetamine cases are not supported by sufficient evidence. In determining the sufficiency of the evidence to support a finding that the defendant used or exhibited a deadly weapon during the commission of a felony offense, we must determine “whether a rational trier of fact could find beyond a reasonable doubt that the mere possession of firearms facilitated the associated felony.” Gale v. State, 998 S.W.2d 221, 224 (Tex.Crim.App.1999); Smith v. State, 176 S.W.3d 907, 918 (Tex.App.-Dallas 2005, pet. ref'd). A deadly weapon may be “used” even if it is merely possessed, if that possession facilitates the associated felony offense. Smith, 176 S.W.3d at 919. In this case, the guns were found in the back bedroom’s closet, and the police saw appellant leave the back bedroom when they arrived. Appellant testified he had clothes in the back bedroom. The marijuana was in plain view on the floor of the back bedroom. The back bedroom was next to the back bathroom, which is where the bulk of the methamphetamine was found. The guns were within reach of appellant when he was in the back bedroom and would have facilitated his possession of the marijuana in the back bedroom and his possession of the methamphetamine in the bathroom immediately adjacent.

Appellant cites three cases where the courts found the deadly weapon findings were not supported by sufficient evidence. Each of the cases is distinguishable. In Wynn v. State, 847 S.W.2d 357 (Tex.App.Houston [1st Dist.]), aff'd, 864 S.W.2d 539 (Tex.Crim.App.1993), the court concluded that no evidence supported a deadly weapon finding because the appellant was not associated with the room in which the guns were found. Id. at 360-61. In this case, appellant was seen leaving the room where the guns were found, and he testified he had clothes in that room. In Jackson v. State, 857 S.W.2d 678 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd), the police searched a house and found cocaine and guns. Id. at 682. The appellant was not in the house when the police first visited and obtained the information leading to the search warrant, nor was she in the house when the police returned to search it. Id. In this case, however, when the police arrived at the residence, appellant was in the room with the closet containing the guns. In Rodriquez v. State, 880 S.W.2d 443 (Tex.App.-Dallas 1994, pet. ref'd), the appellant was charged with delivery of cocaine. Id. at 444. In that case, an undercover officer went to an apartment and told appellant he wanted two pills of cocaine for twenty dollars. The appellant had only one pill, which he delivered to the officer taking the officer’s twenty dollars, and the appellant told the officer to return in twenty minutes when the appellant would have received a new shipment. Id. When the officer returned twenty minutes later, the appellant appeared not to recognize the officer and pulled a gun on the officer to make him leave the apartment. Id. at 445. In this case, however, the officers made only one visit to the house. The presence of the guns in the closet of the room from which appellant emerged when the police arrived and next to the room where the methamphetamine was hidden facilitated appellant’s possession of the methamphetamine.

We conclude the evidence is sufficient to support the trial court’s deadly weapon finding in the new marijuana and methamphetamine cases. We overrule appellant’s sixth issue.

ERRORS IN THE JUDGMENTS

The sentences in two of the written judgments vary from the trial court’s oral pronouncement of sentence. In cause numbers 05-06-01613-CR and 05-06-01614-CR, the trial court’s pronouncement of sentence included a fine of $1500 in each case; the written judgments omit the fine. In cause number 05-06-01614-CR, the trial court’s orally pronounced sentence of confinement was two years; the written judgment imposes confinement for ten years. When the oral pronouncement of sentence in open court and the written judgment conflict, the oral pronouncement controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex.Crim.App.2003). The solution is to modify the written judgment to conform to the sentence orally pronounced. Smith, 176 S.W.3d at 920.

We have the authority to modify an incorrect judgment when we have the necessary data and information to do so. Tex. R.App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App.1993); McCoy v. State, 81 S.W.3d 917, 920 (Tex.App.-Dallas 2002, pet. ref'd). Accordingly, we modify the judgment in cause number 05-06-01613-CR to reflect the $1500 fine orally pronounced, and we affirm the trial court s judgment as modified. We modify the judgment in cause number 05-06-01614-CR to provide that appellant’s punishment and place of confinement is “2 Years Institutional Division, TDCJ” and to reflect the $1500 fine orally pronounced, and we affirm the trial court’s judgment as modified. We affirm the trial court’s judgments in the remaining causes.

      . Before June 15, 2007, no appeal could be taken from the trial court's determination to adjudicate guilt. See Act of May 7, 1975, 64th Leg., R.S., ch. 231, § 1, 1975 Tex. Gen. Laws 572, 572-73, amended by Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397 (intervening amendments not included). Complaints could be raised regarding issues unrelated to the adjudication of guilt. See Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex.Crim.App.2006). Effective June 15, 2007, article 42.12, section 5(b) was amended to provide for appellate review of the decision to adjudicate guilt in the same manner as the revocation of regular community supervision under article 42.12, section 21. See Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397.
      Appellant was adjudicated guilty before the effective date of the amendment; therefore, the amendment to article 42.12, section 5(b) does not apply to his appeal. See Act of May 28, 2007, 80th Leg., R.S., ch. 1308, §§ 5, 53, 2007 Tex. Gen. Laws 4395, 4397, 4413.

      . Neither the State nor appellant cited to this controlling authority from the court of criminal appeals.

      . The record shows the trial court initially thought appellant was to be sentenced for a state jail felony in the possession of marijuana case, and the court sentenced appellant to "two years in state jail, $1,500 fine.” When the prosecutor pointed out that the possession of marijuana case was punished as a third degree felony because of the deadly weapon finding, the court stated, "Think you’re correct. I’ll leave it at two years, having already assessed that. Leave it at two years." The court then ordered appellant be transferred to the receiving agent for the Institutional Division of the Texas Department of Criminal Justice and "kept in prison until those sentences served, otherwise discharged."


source: Caselaw Access Project

author: KAREN ANGELINI, Justice.

license: Public Domain

text:
    Christa C. LENK, Administratrix of the Estate of Mickey Carl Marcus, Appellant, v. JEFFERSON STATE BANK, Appellee.
    No. 04-07-00828-CV.
    Court of Appeals of Texas, San Antonio.
    March 11, 2009.
    Don Krause, Bayne, Snell & Krause, P.C., S. Mark Murray, Law Office of S. Mark Murray, Inc., San Antonio, TX, for Appellant.

      Ellen B. Mitchell, David B. West, Cox Smith Matthews Incorporated, James Michael Oliveros, San Antonio, TX, for Appel-lee.
    Sitting: KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice.
   MEMORANDUM OPINION

Opinion by:

KAREN ANGELINI, Justice.

This is an appeal from an order granting Jefferson State Bank’s motion for summary judgment and denying the motion for summary judgment filed by the admin-istratrix of the Estate of Mickey Carl Marcus, Christa C. Lenk (“Lenk”). We reverse the trial court’s order and remand for further proceedings consistent with this opinion.

BACKGROUND

On March 7, 2000, Mickey Carl Marcus died leaving $22,863.68 in an account at Jefferson State Bank. In April 2000, Mel-vyn Morris Spillman, a former Bexar County clerk, presented false Letters of Administration on the Estate of Mickey Carl Marcus to Jefferson State Bank. He was then given complete control and signatory authority over the bank account. Spillman directed Jefferson State Bank to send all future bank statements to his address, rather than to the deceased’s address.

In May 2000, Spillman deposited a number of checks totaling $164,444.29 into the bank account. By January 31, 2001, Spill-man had withdrawn all but $903.96 from the account.

In September 2003, after the fraudulent schemes of Spillman came to light, Lenk was appointed to serve as the administra-trix of Mickey Carl Marcus’s estate. On June 3, 2005, Lenk made written demand upon Jefferson State Bank for the sums that had been deposited into Marcus’s account and that had been withdrawn or paid therefrom based on the fraudulent actions of Spillman, which Lenk claimed totaled $185,785.55. Jefferson State Bank refused to pay the amount requested. Lenk then sued Jefferson State Bank for breach of its deposit contract. Both Lenk and Jefferson State Bank filed motions for summary judgment; the trial court denied Lenk’s motion and granted Jefferson State Bank’s motion. In two issues on appeal, Lenk argues that the trial court erred in granting Jefferson State Bank’s motion for summary judgment and in denying her motion for summary judgment.

Standard of Review

To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); see Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). When both sides move for summary judgment on the same issue and the trial court grants one but denies the other, the denial is reviewable as a part of the appeal from the granted motion. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Basse Truck Line, Inc. v. First State Bank, 949 S.W.2d 17, 22 (Tex.App.-San Antonio 1997, writ denied). Further, when the order grants ing summary judgment does not specify the grounds upon which the trial court relied, we must affirm the judgment if any of the theories raised in the motion for summary judgment are meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993). And, we review the trial court’s ruling on a motion for summary judgment under the usual standard of review. See Randall’s Food Mkts., 891 S.W.2d at 644.

Discussion

A deposit contract between a bank and an account holder is considered a contract in writing for all purposes. Tex. Fin.Code Ann. § 34.301(a) (Vernon Supp. 2008). The elements of a breach of contract claim are (1) a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach by the defendant, and (4) damages sustained by the plaintiff as a result of the breach. MG Bldg. Materials, Ltd. v. Moses Lopez Custom Homes, Inc., 179 S.W.3d 51, 61 (Tex.App.-San Antonio 2005, pet. denied). In suits to recover deposits, the bank has the burden of proving payment under authority from the depositor and is obligated to pay out funds on deposit according to the directions of the depositor. See Mesquite State Bank v. Prof'l Inv. Corp., 488 S.W.2d 73, 75 (Tex.1972).

Bank deposits are typically classified as either “general deposits” or “special deposits.” See Hodge v. N. Trust Bank of Tex., N.A., 54 S.W.3d 518, 522 (Tex.App.-Eastland 2001, pet. denied). A general deposit of money with a bank typically creates a creditor-debtor relationship between the depositor and the bank with title to the money passing to the bank, subject to the depositor’s demand for payment. See id. A special deposit, on the other hand, creates a bailor-bailee relationship, and the bank keeps or coveys identical property or funds entrusted to it. See id. “[W]hen a bank makes a ‘wrongful payment’ from a general deposit, there is no violation of the deposit agreement because the bank has title to the funds.” Id. at 525-26. This is because the general depositor is a creditor of the bank, and it is only upon the bank refusing a demand for payment of the general deposit that the bank breaches its relationship with the depositor. See id. at 526. Thus, an action for breach of a depository agreement does not begin to run against the depositor until demand is made and refused or an adverse claim is asserted. See id. at 524.

In her brief, Lenk argues that the trial court should have granted her motion for summary judgment because she proved that Jefferson Bank breached the depository agreement as a matter of law. Thus, Lenk argues that when she, the duly appointed administrator for the estate, made a demand for payment, Jefferson Bank was required to tender the amount of the deposit to Lenk. See Lenk v. Guaranty Bank, No. 04-07-00503-CV, 2008 WL 2602121, at *4 (Tex.App.-San Antonio 2008, pet. filed). Jefferson Bank refused to tender the amount to Lenk, but argues that no breach occurred because it tendered the amount to Spillman in reliance on Section 186 of the Texas Probate Code. Further, Jefferson Bank argues that Lenk’s action is barred by Section 4.406 of the Texas Business and Commerce Code.

A. Section 186 of the Texas Prohate Code

In its motion for summary judgment and on appeal, Jefferson State Bank asserts that Section 186 of the Texas Probate Code provides it with a defense to Lenk’s claim for breach of depository agreement. Section 186 provides that letters of administration “shall be sufficient evidence of the appointment and qualification of the personal representative of an estate and of the date of qualification.” Tex. Prob.Code Ann. § 186 (Vernon 2003). Thus, Jefferson State Bank argues that it could properly rely on Spillman’s false letters of administration pursuant to Section 186.

In Lenk v. Guaranty Bank, No. 04-07-00503-CV, 2008 WL 2602121 (Tex.App.-San Antonio 2008, pet. filed), a similar case involving Spillman’s fraudulent actions, we fully considered this issue of whether Section 186 of the Probate Code allows a bank to rely on fraudulent letters of administration. We concluded it did not. See id. at *4. We explained that although the bank attempted to meet its burden of proving that it had not breached the depository agreement by relying upon the forged letters of administration, because Spillman was not a duly appointed legal representative, the bank’s payment to Spillman did not relieve the bank of its indebtedness to the estate in the full amount of the deposit. Id. Following Lenk v. Guaranty Bank, we hold that Jefferson Bank cannot rely on Spillman’s fraudulent letters of administration to relieve it of its indebtedness to the Estate of Mickey Carl Marcus in the full amount of the deposit. See id.

B. Section Li06 of the Texas Business and Commerce Code

Jefferson State Bank also argues that Lenk is barred from recovering by Subsection 4.406(f) of the Texas Business and Commerce Code. Subsection 4.406(f) provides the following:

Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are made available to the customer (Subsection^)) discover and report the customer’s unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration....

Tex. Bus. & Com.Code Ann. § 4.406(f) (Vernon 2002) (emphasis added). Thus, a customer has a duty to report any unauthorized signatures within one year of the bank sending the customer statements or making the items available to the customer pursuant to Subsection 4.406(a). Subsection 4.406(a) provides,

A bank that sends or makes available to a customer a statement of account showing payment of items for the account shall either return or make available to the customer the items paid or provide information in the statement of account sufficient to allow the customer reasonably to identify the items paid....

Id. § 4.406(a) (emphasis added).

Here, Jefferson Bank argues that it complied with Subsection 4.406(a) when it mailed statements to Spillman. However, because Spillman was not the duly appointed legal representative, see Lenk, 2008 WL 2602121, at *4, he was not the “customer.” Thus, Jefferson Bank’s act of sending statements to Spillman’s address did not trigger the customer’s duty to report unauthorized signatures pursuant to Subsection 4.406(f). And, there is no evidence in the record that Jefferson Bank ever sent the statements to Lenk. Nevertheless, Jefferson Bank argues that it made the statements available to Lenk because a person presenting appropriate credentials could either obtain account statements at its branch office or access those statements online. Thus, Jefferson Bank argues that when Lenk was appointed administratrix, she should have come to the bank and demanded the statements or asked to see them online. We decline to read into Section 4.406 that the appointment of an administrator fulfills the bank’s duties to send or make available statements under Subsection 4.406(a). See First Citizens Bank v. All-Lift of Ga., Inc., 251 Ga.App. 484, 555 S.E.2d 1, 3 (2001) (holding that under UCC 4.406, “a bank does not make statements available within the meaning of this Code section by merely holding statements and doing nothing more” and explaining that “[ajdopting the bank’s position would make the timing provisions of this Code section exceedingly difficult to apply and enforce.”). Here, the only evidence presented was that Jefferson Bank mailed the statements at issue to Spillman at his address. There is no evidence that Jefferson Bank ever complied with its duties under Subsection 4.406(a). Thus, Subsection© does not apply.

Jefferson Bank also argues that Lenk’s claim is barred because Marcus and Jefferson Bank contractually agreed to modify Subsection 4.406(f)’s one-year notice period to sixty days. However, because Subsection 4.406(f) does not apply, any contractual modification of the notice period would also not apply.

Conclusion

The trial court erred in granting summary judgment in favor of Jefferson Bank and should have granted summary judgment in favor of Lenk. Therefore, we reverse the judgment of the trial court and remand the cause to the trial court for entry of judgment consistent with this opinion.

      . We recognize that although fully briefed and considered by the court, in our opinion in Lenk v. Guaranty Bank, when we stated that Guaranty Bank "attempted to meet this burden by presenting evidence that it relied upon forged documents presented by Spillman in paying Spillman the funds in Thompson's account,” we did not expressly state that Guaranty Bank was relying on Section 186.

      . The account statements at issue are those for the months of April, May, June, July, and August 2000. Marcus died in March 2000, and the statement for that date contains the notation “Mickey Carl Marcus, Do Not Mail— Deceased, Deliver to Customer Ser.” On April 18, 2000, Spillman presented the fraudulent letters of administration, and was able to change the name and address on the account.

      . Because Subsection 4.406(f) was never triggered, we need not reach the issue of Lenk's actual knowledge.


author: DAVID WELLINGTON CHEW, Chief Justice.

text:
    PAGOSA OIL AND GAS, L.L.C. and Sombrero Oil and Gas Company, L.L.C., Appellants, v. MARRS AND SMITH PARTNERSHIP, and Rickey Smith, Appellees.
    No. 08-07-00090-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 10, 2010.

      See also 2002 WL 1445334; 223 S.W.3d 1.

      Steven L. Hughes, Mounce, Green, Myers, Safi, Paxson & Galatzan, El Paso, for Appellants.
    Paul M. Terrill, Hazen & Terrill, Austin, Gary M. Bellair, Craig, Terrill & Hale, L.L.P., Lubbock, for Appellee Marrs and Smith Partnership.
    Chad Smith, Lubbock, for Appellee Rickey Smith.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Pagosa Oil and Gas and Sombrero Oil and Gas Company appeal a summary judgment in favor of Marrs and Smith Partnership and Rickey Smith. We find that Pa-gosa Oil and Gas lacks standing to sue and we dismiss its claim for lack of subject-matter jurisdiction. The remaining summary judgment is reversed and the cause remanded.

This case marks the third chapter of litigation involving the mineral development of the Frying Pan Ranch, which lies in parts of Loving, Winkler, and Andrews County, Texas, and Lea County, New Mexico. See Marrs and Smith P’ship v. D.K. Boyd Oil & Gas Company, Inc., 223 S.W.3d 1, 8 (Tex.App.-El Paso 2005, pet. denied); Marrs and Smith P’ship v. D.K. Boyd Oil and Gas Company, Inc., No. 08-00-00386-CV, 2002 WL 1445334 (Tex.App.-El Paso 2002, no pet.) (not designated for publication).

On August 1, 1999, D.K. Boyd Oil and Gas Co. leased mineral rights to property in Loving County from Marrs and Smith Partnership. The term of the Boyd-Smith lease was one year, but provided Boyd with the option to extend the term for a second and third year, despite a lack of production, by paying additional bonus consideration to the partnership. Boyd tendered its first bonus payment in the amount of $38,144.58 on August 3, 1999.

On March 9, 2000, counsel for the Partnership wrote Boyd a letter indicating that the Partnership intended to rescind the lease. On March 16, 2000, Mr. Smith and the Partnership filed suit against Boyd seeking recision of the lease (“the prior lawsuit”). Boyd counter-claimed for tor-tious interference with a contract alleging, in part that the Partnership’s actions had interfered with the development of other mineral interests on the ranch. Boyd did not assert a counter-claim for breach of the lease.

Despite the ongoing lawsuit, Boyd tendered the second bonus payment for extension of the lease on July 24, 2000. The Partnership returned the check on August 14, 2000, and again indicated its intent to rescind the lease. Again on July 21, 2001, Boyd tendered the bonus payment for the final extension period. That check was also returned by the Partnership. Final judgment in the prior lawsuit was issued on September 3, 2004.

In 2002, Pagosa Oil and Gas (“Pagosa”) and Sombrero Oil and Gas Company (“Sombrero”) agreed to participate in an oil and gas investment project, organized by Boyd, called the “Leiman Prospect.” In addition, on July 1, 2006, Boyd and Sombrero signed an agreement whereby Boyd assigned its potential breach of contract cause of action against the Partnership to Sombrero. Pagosa was not a party to the assignment.

Sombrero and Pagosa filed their original breach of contract petition against Mr. Smith and the Partnership for breach of the Boyd-Smith lease on July 26, 2006. The petition alleged that the Partnership’s recision constituted breach of the lease. The amended petition also included an allegation that the Leiman Prospect participants were injured by the partnership’s actions because the recision caused delays in the drilling of an oil well, and the loss of numerous mineral leases for non-production.

Mr. Smith and the Partnership filed a joint motion for summary judgment on October 5, 2006, asserting traditional and no-evidence grounds. On October 31, 2006, Pagosa and Sombrero filed their summary judgment response and a cross-motion for partial summary judgment as to Mr. Smith and the Partnership’s liability for breach of the lease. The Partnership filed a response to the cross-motion and a supplement to its original motion on March 2, 2007. This motion included a “jurisdictional plea” in which the Partnership challenged Pagosa and Sombrero’s standing to assert a claim for breach as they were not parties to the Boyd-Smith lease.

Mr. Smith filed an independent response to Sombrero and Pagosa’s cross-motion, and a reply to Sombrero and Pagosa’s response to the original summary judgment motion on March 14, 2007. Mr. Smith’s motion incorporated the Partnership’s jurisdiction and standing arguments. The trial court entered an order denying Sombrero and Pagosa’s motion for partial summary judgment, and granting summary judgment in favor of Mr. Smith and the Partnership. The order did not specify the grounds relied upon, and did not address Pagosa or Sombrero’s standing. Pagosa and Sombrero appeal.

Appellants raise two issues for our review. In Issue One, they challenge the summary judgment in favor of Mr. Smith and the Partnership. In Issue Two, they contend the trial court erred by denying their motion for partial summary judgment as to breach of contract liability.

As a preliminary matter, we must address Appellees’ assertion that Pa-gosa and Sombrero lack standing to maintain this lawsuit. In Texas, “standing” denotes the presence of a real controversy between the parties, that will actually be determined by the judicial declaration sought. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex.2005). Standing is a necessary component of subject-matter jurisdiction, without which a court lacks authority to hear a case. See Tex. Ass’n of Bits. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex.1993). Whether a court properly determined it had subject matter jurisdiction over a case is a question of law subject to de novo review. See Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). In making a determination regarding a party’s standing, we take the pleadings as true and construe them in the pleader’s favor, as well as consider evidence relevant to the jurisdictional inquiry. Id. at 226-28.

To establish its standing to assert a breach of contract cause of action, a party must prove its privity to the agreement, or that it is a third-party beneficiary. OAIC Commercial Assets, L.L.C. v. Stonegate Village, L.P., 234 S.W.3d 726, 738 (Tex.App.-Dallas 2007, pet. denied). For standing purposes, privity is established when the plaintiff proves the defendant was a party to an enforceable contract with either the plaintiff, or a third party who assigned its cause of action to the plaintiff. Stonegate Village, L.P., 234 S.W.3d at 738.

The Partnership argues that because Pagosa and Sombrero were not parties to the Smith-Boyd lease, the entities do not have standing to assert the breach of contract cause of action. There is no dispute that Appellants were not parties to the original lease agreement. However, both argue that they have standing to assert the cause of action because they were participants, through Boyd, in an oil and gas exploration project called the “Leiman Prospect.” According to Appellants’ First Amended Original Petition and their response to the Partnership’s motion for summary judgment, the original dispute between Boyd and the Partnership caused a delay in drilling the Leiman Prospect’s first well. Because of the delay, the prospect lost numerous leases, which lead to monetary damages to all the participants.

Neither appellant argues that a contract existed between Leiman participants and the Partnership or Mr. Smith. There are no allegations that Pagosa and Sombrero were intended to be third-party beneficiaries of the Boyd-Smith lease. Even if we assume that Appellants were harmed by the Partnership and Smith’s actions surrounding the Boyd-Smith lease, as is stated in Appellants’ pleadings, a judicial determination that the Boyd-Smith lease was breached would have no remedial effect on that harm. Therefore, to the extent Pago-sa and Sombrero depend on their status as Leiman participants for standing to sue for breach of contract they fail. Because its participation in the Leiman Prospect was Pagosa’s sole basis for standing, the trial court was without jurisdiction and Pago-sa’s claim must be dismissed.

Sombrero also asserts a second alternative basis for its standing. In the summer of 2006, Sombrero and Boyd signed the following “Assignment and Transfer of Causes of Action.”

D.K. Boyd Oil and Gas Co., Inc. (“Boyd” or “Assignor”) for the consideration set forth below does hereby ASSIGN, GRANT, SELL and CONVEY unto SOMBRERO OIL & GAS COMPANY, L.L.C. (“Assignee”) the following:
All right title and interest in and to all causes of action that the Assignor has in any way related to the August 1, 1999 lease of minerals from Smith and Marrs Partnership to D.K. Boyd Oil and Gas Co., Inc .... (the “Lease”) including, but not limited to, all causes of action for the breach of the Lease by Marrs and Smith Partnership and Rickey Smith.
TO HAVE AND TO HOLD the above described rights and causes of action, together with, all and singular, the rights and privileges thereto in any [way] belonging, unto the said Assignee, its successors and assigns forever.
As consideration for this assignment, Assignee shall remit to Assignor, within 30 days of recovery, 1/3 of the Assign- or’s pro rata interest in any actual damage award, based on the Assignee’s pro rata interest in the Lease, minus actual out of pocket expenses incurred prosecuting the assigned causes of action.
Assignor agrees to cooperate and assist as necessary in prosecuting the assigned causes of action, including providing requested documentation and to execute such further documents as necessary to complete the assignment set forth above.
Assignor covenants that the rights, title and interest assigned herein have not been previously assigned or encumbered.
AGREED to be effective the 1st day of July, 2006.

Generally, this assignment would provide Sombrero with a basis for standing in the breach of contract suit. See Stonegate Village, L.P., 234 S.W.3d at 738. However, the Partnership and Smith seek to avoid this assignment on two grounds. First, they argue that the Boyd-Smith lease prohibited assignments by its terms. Second, they argue that even if this assignment was not prohibited by the lease terms, it must be declared void as a matter of public policy because Sombrero, the as-signee, is controlled by attorneys. We will address each argument in turn.

An “assignment” is simply a transfer of some right or interest. See University of Texas Med. Branch at Galveston v. Allan, 777 S.W.2d 450, 452 (Tex.App.-Houston [14th Dist.] 1989, no writ). As such, an assignment is a contract between the assignor of a right and an as-signee, who receives the authority to assert that right. See id. at 453. As with any other contract term, parties to a contract can agree their rights in a particular agreement are not assignable. These “anti-assignment” clauses are enforceable in Texas unless rendered ineffective by a statute. Johnson v. Structured Asset Services, L.L.C., 148 S.W.3d 711, 721 (Tex.App.-Dallas 2004, no pet.), citing Reef v. Mills Novelty Co., 126 Tex. 380, 89 S.W.2d 210, 211 (Tex.Com.App.1936).

The “anti-assignment” clause in the Boyd-Smith lease provided:

Lessor expressly reserves the right of approval of any and all assigning in whole or in part, the covenants hereof shall extend to their heirs, executors, administrators, successors, or assigns, and it is hereby agreed that in the event that this Lease shall be assigned as to a part or as to parts of the above described lands that Lessor shall receive a copy of such assignment, farmout, etc. within thirty (30) days of the effective date of same.

Appellees argue that this provision rendered any attempt by Boyd to assign any rights arising from the contract unenforceable without the Partnership’s consent. Therefore, Appellees conclude, Sombrero acquired no actionable interest from Boyd and has no standing to sue. As Sombrero points out however, Texas law recognizes a distinction between a contracting party’s ability to assign rights under a contract containing an anti-assignment provision, and that same party’s ability to assign a cause of action arising from breach of that contract. See State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696, 705-07 (Tex.1996) (absent specific circumstances, causes of action in Texas are freely assignable); Dearborn Stove Co. v. Caples, 149 Tex. 563, 236 S.W.2d 486, 490 (1951) (“That the lease itself was not validly assigned or assignable does not prevent a valid assignment of the overcharge claim.”); Lindsay ex rel. Lindsay v. S. San Antonio Indep. Sch. Dist., 983 S.W.2d 778, 779-80 (Tex.App.San Antonio 1998, no pet.) (recognizing assignability of decedent’s cause of action for alleged breach of employment contract despite estate’s inability to assign contract itself); see also Tex.Bus. & Com.Code Ann. § 2.210(b) (Vernon 2009)(right to damages for breach of contract can be assigned despite agreement otherwise); TexProp. Code Ann. § 12.014(a)(Vernon Supp.2009)(interest in cause of action is assignable, regardless of assignability of cause of action in law or equity, if the transfer is in writing).

Appellees’ argument on this point is limited to the enforce ability and terms of the anti-assignment clause. They conclude that because an anti-assignment clause is generally enforceable, Boyd’s attempt to assign its cause of action was ineffective. This argument assumes that the clause is evidence of the parties’ intent to prevent both a contractual assignment, as well as a cause of action assignment. We do not agree it evidences such an intent.

When a written instrument is worded so that it can be given a definite meaning or interpretation, it will be interpreted as a matter of law. SAS Institute, Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex.2005). This anti-assignment clause states that the lessor, the Partnership, would have the right to notice and pre-approval of any assignments of the lease. The clause does not indicate an intent to limit the parties’ rights to assign a cause of action arising from an alleged breach of the lease. Therefore, Boyd maintained its common law right to assign its cause of action for breach, and Sombrero has stepped into Boyd’s position via the assignment.

However, Appellees argue this particular assignment should still be declared void because Sombrero, the assign-ee, is “an attorney-controlled entity.” In essence, Appellees argues that because one or more of Boyd’s former attorneys own interests in Sombrero, the assignment constitutes an unconscionable fee agreement and cannot be enforced. An “unconscionable” contract is an unenforceable contract. See In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex.2008). As we have discussed above, only parties in privity to the contract or third party beneficiaries are entitled to enforce a contract. See Stonegate Village, L.P., 234 S.W.3d at 738. For the same reasons, we have concluded Pagosa has no standing to sue for breach of the Boyd-Smith lease, Appellees have no basis to argue the assignment agreement between Boyd and Sombrero is unenforceable. Appellees are therefore left to argue that this assignment is void because it falls into one of the categories that the Texas Supreme Court has declared void on public policy grounds.

As discussed above, generally causes of action in Texas are freely assignable. See Gandy, 925 S.W.2d at 705-707. However, the Texas Supreme Court has recognized several situations where policy concerns outweigh a party’s general right to assign a cause of action because the effect of the assignment is to distort the parties’ positions so that they have incentives not generally associated with their positions in the underlying dispute. See Coronado Paint Co., Inc. v. Global Drywall Sys., Inc., 47 S.W.3d 28, 31 (Tex.App.-Corpus Christi 2001, pet. denied); see also Gandy, 925 S.W.2d at 714 (an assignment of a cause of action that works to collude against an insurance carrier); Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 318 (Tex.App.San Antonio 1994, writ ref'd) (an assignment of a legal malpractice claim); Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex.1992) (an assignment that creates a Mary Carter agreement); International Proteins Corp. v. Ralston-Purina Co., 744 S.W.2d 932, 934 (Tex.1988) (an assignment of the plaintiffs cause of action to a joint tortfeasor of the defendant); Trevino v. Turcotte, 564 S.W.2d 682 (Tex.1978) (an assignment of interests in an estate that distorts the true positions of the beneficiaries).

Appellees fail to explain how this situation falls within one of these categories. They also fail to explain how the assignment between Boyd and Sombrero has so distorted the parties’ positions in the litigation that the circumstances warrant the creation of a new category of void assignments. Accordingly, the assignment is not void as a matter of law, and Sombrero has standing to assert Boyd’s breach of contract cause of action.

We now turn to the merits of the parties’ summary judgment motions. When both sides move for summary judgment, and the trial court grants one motion and denies the other, the reviewing court considers both sides’ summary judgment evidence and determines all issues presented. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). The reviewing court must consider all the grounds presented in both motions, and render the judgment the trial court should have rendered. Id.

The cross-motions in this case presented both traditional and no-evidence grounds for summary judgment. See Tex.R.Civ.P. 166a(c) and 166a(i). An appellate court reviews summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). When reviewing a no-evidence motion for summary judgment, we must disregard all contrary evidence and inferences, and review the evidence in the light most favorable to the non-movant. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003). Once the moving party specifically states the elements to which there is no evidence, the burden shifts to the non-movant to produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged. Gray v. Woodville Health Care Ctr., 225 S.W.3d 613, 616 (Tex.App.-El Paso 2006, pet. denied). If the non-movant produces more than a scintilla of evidence regarding the challenged elements, a genuine issue of material fact is raised. Id. Less than a scintilla of evidence exists if the evidence is so weak as to create no more than a mere surmise or suspicion. Chapman, 118 S.W.3d at 751. When the evidence rises to the level that enables reasonable minds to differ in their conclusions, then more than a scintilla exists. Id. If the non-movant does not produce more than a scintilla of evidence, the court “must” grant the motion. See Tex.R.Civ.P. 166a(i); Larned v. Gateway East, Inc., 186 S.W.3d 597, 601 (Tex.App.-El Paso 2006, no pet.).

Sombrero sued Appellees for breach of contract based on its position as assignee of Boyd’s cause of action for breach of the lease. The elements of a claim for breach of contract are: (1) the existence of a valid contract; (2) performance or tendered performance by the claimant; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from that breach. Abraxas Petroleum Corp. v. Hamburg, 20 S.W.3d 741, 758 (Tex.App.-El Paso 2000, no pet.). Appellees moved for no-evidence summary judgment on the grounds that there was no evidence of a contract between Sombrero and Appellees, that there was no evidence that Sombrero performed, or tendered performance, and that there was no evidence of damages suffered by Sombrero as a result of Appel-lees alleged breach of the lease.

In the first half of Issue One, Sombrero challenges Appellees’ no-evidence grounds regarding its breach of contract cause of action. All of Appellees’ no-evidence arguments are based on Appel-lees’ assertion that Sombrero was not a party to the original lease, and did not acquire anything by the assignment from Boyd. Appellees focus their no-evidence arguments on the premise that Sombrero was a stranger to the lease agreement, and therefore cannot provide evidentiary support for its claim. As we discussed in our analysis of Sombrero’s standing, Sombrero stepped into Boyd’s position regarding the claim for breach. See Allan, 777 S.W.2d at 453. The proper summary judgment inquiry revolves around Boyd’s relationship to the lease, and Boyd’s performance and damages. Sombrero’s summary judgment response included evidence focused precisely on those issues. Specifically, Sombrero produced evidence of the original Boyd-Smith lease, evidence of Boyd’s tender of bonus payments to Appellees in 1999, 2000, and 2001, and evidence of Ap-pellees’ attempted repudiation and recision. We conclude, having reviewed the evidence in a light most favorable to the non-movant, the proffered evidence satisfied Sombrero’s burden in response to the no-evidence motion. Therefore, summary judgment was not properly granted on Ap-pellees’ no-evidence grounds.

The scope of re-view for a traditional summary judgment is well established. See Tex.R.Civ.P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). We must determine whether the movant has carried its burden to establish that there is no genuine issue of material fact, so that judgment should be granted as a matter of law. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.Sd 842, 846 (Tex.2005). Summary judgment is proper if the defendant disproves at lease one element of the plaintiffs cause of action, D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002), or establishes all elements of an affirmative defense. Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001). Once the movant establishes a right to judgment as a matter of law, the burden shifts to the non-movant to produce evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). As in the case of a no-evidence motion, when reviewing a traditional summary judgment motion, we take as true all competent evidence favorable to the non-movant, indulge every reasonable inference, and resolve any doubts in the non-movant’s favor. See Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). Unlike a no-evidence motion, a traditional motion for summary judgment must stand on its own merits, there is no right to a traditional summary judgment by default. See City of Houston, 589 S.W.2d at 678.

In Issue Two, Sombrero contends the trial court erred by not granting its partial motion for summary judgment. In its cross-motion, Sombrero argued it was entitled to judgment as a matter of law as to Appellees’ liability for breach. To establish liability for breach of contract it was Sombrero’s burden to establish as a matter of law: (1) the existence of a valid contract; (2) performance or tendered performance by the claimant; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from that breach. Homburg, 20 S.W.3d at 758. Sombrero’s motion for partial summary judgment was limited to the issue of Ap-pellees’ liability for breach of contract. In the body of its motion, Sombrero presented arguments for establishing the first three elements of its claim, but failed to address the final element.

The final element in a breach of contract cause of action includes a causation requirement. See Prudential See., Inc. v. Haugland, 973 S.W.2d 394, 397 (Tex.App.-El Paso 1998, pet. denied). The plaintiff must show that it suffered a monetary injury, as the result of the defendant’s breach. See Haugland, 973 S.W.2d at 396-97. Accordingly, to be entitled to partial summary judgment as to Appellees’ liability it was Sombrero’s burden to establish that Boyd was injured, and that the injury was caused by the breach. Sombrero failed to address this issue in its motion for partial summary judgment, and therefore failed to carry its burden to establish liability. Had summary judgment been granted in this instance, before determining the amount of damages which should be awarded, the fact finder would ultimately be required to determine whether Boyd was injured at all, and whether that injury was the result of Appellees’ breach. While these issues may have been proven without difficulty, they are part of the claimant’s burden in establishing liability, and so cannot be presumed. Because Sombrero failed to demonstrate its right to judgment as a matter of law regarding Appellees’ liability for breach, this was not a proper ground for summary judgment. Issue Two is overruled.

In the second half of Issue One, Sombrero addresses Appellees’ affirmative defenses. Appellees jointly moved for summary judgment on the affirmative defenses of res judicata and limitations. Smith independently moved for summary judgment on the following additional defenses: release, collateral estoppel, one satisfaction rule, election of remedies, judicial estoppel, impossibility of performance, and failure of consideration.

A defendant is entitled to summary judgment on an affirmative defense when the party conclusively establishes each element of the defense asserted. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996). When the material facts are undisputed, the nonmovant may defeat a motion for summary judgment by establishing that the movant’s legal position is unsound. Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 90 (Tex.App.-Dallas 1996, writ denied).

We will begin with Appellees’ joint defenses; res judicata and limitations. Res judicata is an affirmative defense. Tex.R.Civ.P. 94. The party claiming the defense must prove: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) the identify of the parties or those in privy with them; and (3) a second action based on the same claims as were or could have been raised in the first action. In re K.S., 76 S.W.3d 36, 43 (Tex.App.-Amarillo 2002, no pet.). Res judicata precludes both re-litigation of claims that have been fully adjudicated, and subsequent litigation of claims which arise out of the subject matter as the prior litigation, and therefore could have been brought in the prior suit. See Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652-53 (Tex.1996); McFarland v. Bridges, 104 S.W.3d 906, 909 (Tex.App.-El Paso 2003, no pet.).

Sombrero is in privity with Boyd by assignment, and Boyd was party in the prior suit. There is no dispute that a final judgment was rendered in the prior action. Finally, in the face of the Partnership’s attempted recision and repudiation, Boyd could have asserted a counterclaim in the prior case for breach of contract. See Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 211 (Tex.1999) (anticipatory repudiation gives the nonrepudiating party the option of treating the repudiation as a breach, or ignoring the repudiation and awaiting the agreed time for performance).

However, as Sombrero argues, res judicata does not bar a former defendant from asserting a claim in a later action that could have been filed as a counter-claim in the first suit, unless the claim was compulsory in the earlier action. See Ingersoll-Rand, Co., 997 S.W.2d at 207. A counter-claim is compulsory only if: (1) it is within the jurisdiction of the court; (2) the claim is not the subject of another pending action at the time of the filing of the answer; (3) the claim is mature and owned by the defendant at the time of filing the answer; (4) it arose out of the same transaction or occurrence that is the subject matter of the opposing party’s claim; (5) it is against an opposing party in the same capacity; and (6) it does not require the presence of third parties over whom the court cannot acquire jurisdiction. Ingersoll-Rand, 997 S.W.2d at 207. When res judicata is asserted to barr a claim which could have been asserted by a former defendant in a prior suit, the movant’s summary judgment burden includes establishing each of these elements. See id. at 207.

Sombrero argues that this breach of contract claim was not a compulsory countei'-claim because it was not mature at the time of the prior litigation. A claim is mature when it has accrued. Id. at 208-10. In the case of a continuing contract, the limitations period begins to run at the earlier of the following events: (1) when the obligations are completed; (2) when the contract is terminated according to its terms; or (3) when the contract is anticipatorily repudiated by one party, and the repudiation is adopted by the other party. Hubble v. Lone Star Contracting Corp., 883 S.W.2d 379, 382 (Tex.App.-Fort Worth 1994, writ denied). In other words, when one party attempts to repudiate the contract despite its ongoing obligations, the injured party has the option to treat the contract as still in force and retain its right to sue on the contract; or to treat the breaching party’s repudiation as a complete breach and terminate the contract immediately. See F.D. Stella Prod. Co. v. Scott, 875 S.W.2d 462, 464 (Tex.App.-Austin 1994, no writ).

The summary judgment evidence establishes that the Partnership attempted to repudiate the lease in early 2000. In response, Boyd chose to continue to honor the lease by tendering its annual bonus payments over the next two years. Boyd retained its right to accept the repudiation and sue on the contract during that period. See Scott, 875 S.W.2d at 464. Because Boyd chose to continue to tender its performance during that period, the contract did not terminate until the expiration of the final lease extension period on August 1, 2002. Only then was the breach of contract cause of action mature. The prior lawsuit was filed prior to the breach of contract cause of action becoming mature. Accordingly, the cause of action was not a compulsory counter-claim, and Appellees are not entitled to summary judgment on the basis of res judicata. See Ingersoll-Rand, 997 S.W.2d at 207.

Appellees’ limitations defense fails for similar reasons. To establish a limitations defense, a defendant must conclusively prove: (1) when the cause of action accrued; and (2) negate the discovery rule, if it applies and has been plead. See KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex.1999). The limitations period for a breach of contract cause of action is four years. Tex.Civ.PRAc. & Rem.Code Ann. § 16.004 (Vernon 2002).

As we discussed above, this breach of contract cause of action accrued on August 1, 2002. Sombrero filed its original petition in this case on July 26, 2006, within the limitations period. Without addressing Boyd’s ability to continue to tender its performance despite the attempted repudiation, Appellees argue that Boyd’s breach of contract cause of action accrued no later than August 1, 2000. This date, according to Appellees, was the final deadline for Smith’s performance as it was the final opportunity for Smith to retract its repudiation prior to the first lease bonus payment. They argue that Boyd did not have the option to continue its own performance until the lease expired on August 1, 2002, because “time is of the essence” in an oil and gas lease. While we agree generally with this statement of law, we are unaware of Texas authority holding that a limitations period is affected by a contract’s classification as such. Appellees have failed to cite any authority indicating that Boyd’s option to immediately treat the repudiation as a breach, or to wait for the lease’s termination, was affected by the fact that time is of the essence in the oil and gas context. Because Appellees failed to establish their right to summary judgment on their limitations defense, the defense was not a proper ground for summary judgment.

Mr. Smith also raised several additional affirmative defenses in his independent summary motion and response. Three of these defenses; release, collateral estoppel, and the one satisfaction rule are all dependant on the success of Appellees’ argument that the prior lawsuit necessarily included litigation of all issues surrounding the Partnership’s attempted repudiation, including any claims for breach of contract. Given our conclusion in the discussion of Appellees’ res judicata defense, that the breach of contract cause of action was not precluded by the prior suit, Mr. Smith is not entitled to summary judgment on these additional defenses.

Mr. Smith’s motion also included the affirmative defense known as “election of remedies.” This defense bars recovery when a party successfully exercises an informed choice between two or more remedies, rights, or states of facts which are so inconsistent as to constitute a manifest injustice. See Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex.1980). Although the Texas Supreme Court continues to recognize the defense, it is not favored, and should not be extended. See Fina Supply, Inc. v. Abilene Nat’l Bank, 726 S.W.2d 537, 541 (Tex.1987).

According to Mr. Smith’s motion:

It is undisputed that [Boyd] was successful in the Prior Litigation on the tortious interference claim. [Boyd] had the option, in the Prior Litigation, to sue for various causes of action, including breach of contract. [Boyd] elected to pursue a tortious interference claim rather than a breach of contract claim. Allowing [Sombrero] to bring a breach of contract claim that is inconsistent with the Prior Litigation would be manifestly unjust to [Appellees]. [Appellees] changed their position, by leasing their minerals to a third party after the Lease expired, based on the fact that all causes of action related to the alleged repudiation had been litigated in the Prior Litigation.

To establish a right to this defense, Mr. Smith had to establish, as a matter of law, that Boyd’s decision to pursue a tortious interference claim in the prior lawsuit was inconsistent with the breach of contract claim now asserted. See Bocanegra, 605 S.W.2d at 851. He has failed to carry his burden in this instance.

It is important to recognize these two types of claims accrue in significantly different contexts. A claim for tor-tious interference is asserted by a plaintiff whose contractual rights have been interfered with by a stranger to the contract; a third party. See Butnaru, v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex.2002); see also Marrs and Smith Partnership, 223 S.W.3d at 19 (noting that Boyd’s tortious interference claim alleged that the Partnership, a third party, interfered with Boyd’s contractual relationships with two other entities). A breach of contract cause of action on the other hand, addresses a plaintiffs injury for non-performance by the other party to the agreement. See Homburg, 20 S.W.3d at 758. Mr. Smith has failed to cite Texas precedent, and we are unaware of authority holding that such claims are per se inconsistent. Rather, in circumstances such as those presented here, where a non-repudiating party exercises its right to delay the assertion of a breach claim, it is not difficult to foresee that during that delay, events could transpire which could lead to a claim for tor-tious interference. To preclude a party from recovering for both injuries would constitute an improper extension of the election of remedies doctrine. Accordingly, summary judgment was not properly granted on this ground.

Mr. Smith also asserted the doctrine of judicial estoppel as a bar to Sombrero’s claim. Judicial estoppel precludes a party from adopting a position inconsistent with one that was successfully maintained in an earlier proceeding. Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 6 (Tex.2008). The elements of judicial estoppel in Texas are: (1) a sworn, prior inconsistent statement made in a judicial proceeding; (2) which was successfully maintained in the prior proceeding; (3) not made in advertently or by mistake, or pursuant to duress; and (4) which was deliberate, clear, and unequivocal. Andrews v. Diamond, Rash, Leslie & Smith, 959 S.W.2d 646, 650 n. 2 (Tex.App.-El Paso 1997, writ denied).

In support of this defense, Mr. Smith presents a twenty-seven page excerpt from Mr. D.K. Boyd’s testimony in the prior lawsuit. In the section provided, Mr. Boyd discusses the terms of the more than 200 leases he obtained in his endeavors to develop the mineral reserves of the Frying Pan Ranch. Mr. Boyd also explains how the Partnership’s refusal to consent to an assignment of the lease forced Boyd to renegotiate an independent farmout agreement, specific to the Boyd-Smith lease, while 233 other leases were subject to a second farmout and an assignment to a third entity.

Mr. Smith fails to explain how Mr. Boyd’s testimony is inconsistent with the position Sombrero now asserts. As the movant on this affirmative defense, it was Mr. Smith’s burden to establish his right to the defense as a matter of law. See Hood, 924 S.W.2d at 121. Because the motion fails to address how the proffered evidence constitutes a prior inconsistent statement, Mr. Smith has failed to satisfy his burden and summary judgment was not properly granted on the judicial estop-pel defense.

In a section of his summary judgment motion and response titled “failure of contract and failure of consideration,” Mr. Smith concludes that because the second and third lease bonus payments tendered by Boyd were returned, there was no consideration to support the lease extensions. A failure of consideration occurs when the plaintiff fails to perform a condition precedent to the defendant’s duty to perform. See Nat’l Bank of Commerce v. Williams, 125 Tex. 619, 84 S.W.2d 691, 692 (1935). The doctrine assumes the contract is already in existence. Consideration consists of either a benefit to the promisor or a detriment to the promisee. See Tamez v. Southwestern Motor Transp., Inc., 155 S.W.3d 564, 571 (Tex.App.-San Antonio 2004, no pet.).

Mr. Smith admits that Boyd tendered the lease bonus payments. Those tenders constituted a detriment to Boyd, and therefore satisfy the definition of consideration. See id. at 571. The Partnership’s decision to refuse the payments did not simultaneously create a claim for breach and a defense to that claim by depriving the contract of consideration. The evidence established the presence of consideration to support the second and third extensions. The fact that the Partnership chose not to accept that consideration, does not establish a failure of consideration defense.

In another section of his summary judgment response titled “impossibility of performance,” Mr. Smith states:

[Sombrero] [has] not produced any evidence to show that they were ready willing, and able to drill the Section 27 well in the spring of 2002. Smith has discovered that there were other mineral interests that were not leased as such time and such mineral interest constituted a far greater percentage of the mineral estate than that of [the Partnership],

Mr. Smith has failed to provide, or cite to, any evidence in the summary judgment record which would support his conclusion that Boyd was unable to perform its obligations under the lease. As the movant on this affirmative defense, it was Mr. Smith’s burden to establish his right to the defense as a matter of law. See Hood, 924 S.W.2d at 121. Because this conclusory statement fails to establish the elements of the defense as a matter of law, summary judgment was not properly granted on the impossibility defense. Having determined that none of Appellees’ affirmative defenses provide proper grounds for summary judgement, Issue One is overruled.

We have determined that Pagosa Oil & Gas Company lacks standing to assert a breach of contract claim in this instance and its claim must be dismissed. Having reviewed the cross-motions for summary judgment, we have concluded: (1) that Ap-pellees are not entitled to a no-evidence summary judgment on the breach of contract cause of action; (2) that Appellant Sombrero did not satisfy its traditional summary judgment burden regarding its claim for breach of contract; and (3) that Appellees were not successful in establishing any of their affirmative defenses as a matter of law. Therefore, we reverse and remand the case for trial on the merits.

      . Appellee Rickey Smith, is the general partner of Marrs and Smith Partnership. When it is necessary to refer to Rickey Smith individually in this opinion, we will refer to him as "Mr. Smith.” Mr. Smith and the Partnership will be referred to jointly as "Appellees.” We will refer to D.K. Boyd Oil and Gas Company and other entities owned or controlled by Mr. D.K. Boyd, collectively as "Boyd.” We will refer to the August 1, 1999 mineral lease as the "Boyd-Smith” lease. For a more detailed explanation of the parties and their relationships see Marrs and Smith P'ship v. D.K. Boyd Oil & Gas Company, Inc., 223 S.W.3d at 1-12 (Tex.App.-El Paso 2005, pet. denied).

      . According to Appellants’ summary judgment response, the property covered by the Boyd-Smith lease was not originally part of the prospect. The property only became available for drilling when the mineral rights came into the Leiman Prospect after it was released to another company.

      . We decline to address Appellees’ argument that Boyd failed to perform because the bonus payments were paid via check rather than "in the coin of the realm.” This argument was not presented to the trial court, and has not been preserved for our review. See Tex.R.App.P. 33.1(a).

      . In addition, the Texas Rules of Civil Procedure 166a(a) specifies that partial summary judgments are to be granted in circumstances where a fact issue remains regarding the "amount of damages.” When, as in this case, the summary judgment movant has not addressed whether there was damage as the result of a breach, the remaining issue is not limited to the amount of damage, and partial summary judgement would be improper. In this way, the rule distinguishes between whether an individual is damaged, for liability purposes, and the amount of monetary damages which should be awarded.

      . The Partnership filed the prior lawsuit on February 9, 2000. See Boyd Oil & Gas Co., 223 S.W.3d at 11.

        . See Amber Oil & Gas Co. v. Bratton, 711 S.W.2d 741, 743 (Tex.App.-Austin 1986, no writ) (recognizing that time is of the essence in an oil and gas lease).

      . The only summary judgment evidence specifically referenced in this passage is a July 2, 2004, mineral lease between the Partnership and a lessee identified as Chalfant Properties, Inc.


author: JAMES T. WORTHEN, Chief Justice.

text:
    In re B.T., a Juvenile, Relator.
    No. 12-10-00141-CV.
    Court of Appeals of Texas, Tyler.
    May 21, 2010.

      James W. Huggler, Jr., for Relator.
    Michael J. West, Richard S. Crowther, Houston, for Real Party in Interest.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
   MEMORANDUM OPINION

JAMES T. WORTHEN, Chief Justice.

In this original proceeding, B.T., a juvenile, seeks a writ of mandamus directing the respondent to “(1) vacate the May 3, 2010 juvenile court order that [a] complete diagnostic study is not necessary; (2) vacate the May 10, 2010 juvenile court order denying B.T.’s motion for reconsideration; and (3) enjoin[ ] any attempt to conduct a transfer hearing without the complete diagnostic study.” We deny the petition.

Background

B.T. is a seventeen year old juvenile. In September 2007, B.T. was evaluated by Dr. Paul Andrews, a licensed psychologist, for fitness to proceed in a juvenile matter. Dr. Andrews reported that B.T. was fit to proceed, and B.T. was subsequently adjudicated delinquent. He was assessed an indeterminate term of confinement in the Texas Youth Commission for the offense.

B.T. is presently charged with murder. The State filed a petition for discretionary transfer (the “transfer motion”) asking that the trial court waive its exclusive jurisdiction and order that B.T. be transferred to the appropriate district court for criminal proceedings. The State also filed a motion for completion of the diagnostic study and investigation required by Texas Family Code section 54.02(d). Respondent granted the State’s motion and ordered that Emily Fallís, Ph.D. assist the Smith County Juvenile Services Department in making the following investigations and assessments:

1. A complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense
2. The background of the child
3. The sophistication and maturity of the child
4. The record and previous history of the child
5. The prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

Dr. Fallís performed a diagnostic study and submitted a ten and one-half page single spaced report in which she related the details of B.T.’s background, his mental status and her observations, his testing results, information pertaining to his fitness to proceed, and a five-Axis psychological diagnosis. Dr. Fallis concluded in her report that B.T. has a “mental disease or defect which substantially impairs his capacity to understand the allegations against him and the proceedings in juvenile court or to assist in his own defense.” Consequently, Dr. Fallís deferred proffering an opinion on B.T.’s capacity to be adjudicated as an adult until he was fit to proceed. She recommended that B.T. receive inpatient psychiatric treatment to help him attain a minimal level of fitness to proceed and then be reevaluated for purposes of the State’s transfer motion.

At the joint urging of B.T.’s counsel and the State, and after reviewing Dr. Fallis’s report, Respondent ordered that B.T. be sent for ninety days to a state hospital. B.T. was committed to the Vernon State Hospital where, after undergoing treatment and counseling, he was deemed to have reached a minimum level of fitness to proceed. He was returned to Smith County, and Respondent set a transfer hearing for May 13, 2010.

At a detention hearing for B.T. on May 3, 2010, the respective counsel for B.T. and the State inquired whether Respondent would reschedule the transfer hearing to allow Dr. Fallís or some other professional sufficient time to complete the diagnostic study. Respondent explained that “I think we are at the point where I’ve got so much in front of me that’s of a psychological evaluative nature that the Court is very comfortable proceeding on that and making the correct determinations under the statute.” He then informed counsel that he would consider the reports from Dr. Andrews, Dr. Fallís, and Vernon State Hospital sufficient under section 54.02(d). B.T.’s counsel objected that each of these three reports addressed B.T.’s fitness to proceed, and are not the complete diagnostic study required by statute.

B.T. filed a motion requesting the trial court to reconsider its May 3 ruling, which was denied. This original proceeding followed. Along with his petition for writ of mandamus, B.T. filed a motion for emergency relief requesting a stay of the transfer hearing until this court ruled on the merits of his petition. We granted the stay.

Prerequisites to Mandamus

Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). A trial court has no discretion in determining what the law is or applying the law to the facts. Walker, 827 S.W.2d at 840. Thus, a clear failure by the trial court to analyze or apply the law correctly is an abuse of discretion. Id. An appellate remedy is “adequate” when any benefits to mandamus review outweigh the detriments. In re Prudential, 148 S.W.3d at 136.

A party seeking mandamus relief must generally bring forward all that is necessary to establish the claim for relief. See Walker, 827 S.W.2d at 837; In re Pena, 104 S.W.3d 719, 719 (Tex.App.-Tyler 2003, orig. proceeding); see also Tex. R.App. P. 52. Therefore, it is B.T.’s burden to provide this court with a sufficient record to establish his right to mandamus relief. See Walker, 827 S.W.2d at 837; In re Pena, 104 S.W.3d 719.

Abuse of Discretion

B.T. admits that the trial court ordered the required “complete diagnostic study.” He contends, however, that the court’s failure to allow the “completion” of the study once he returned from Vernon State Hospital constitutes an abuse of discretion. B.T. further complains that the reports Respondent plans to consider in the transfer hearing — those prepared by Dr. Andrews, Dr. Fallís, and the Vernon State Hospital — address only B.T.’s fitness to proceed. He also asserts that the reports do not “investigate or assess his circumstances, or the circumstances of the offense or any of the requirements ordered by the Court pursuant to § 54.02.” The State admits that the trial court’s order is “perhaps not an overt abuse of discretion.” But the State also expresses its concern that the reevaluation and additional report B.T. requests may be mandatory under section 54.02(d).

Waiver of Jurisdiction and Transfer

A juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings under the circumstances prescribed by statute. See Tex. Fam.Code Ann. § 54.02(a) (Vernon Supp.2009). Before any such transfer may occur, the juvenile court must conduct a hearing without a jury to consider transfer of the child. Id. § 54.02(c) (Vernon Supp.2009). Prior to the transfer hearing, the juvenile court must order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the offense. Tex. Fam.Code Ann. § 54.02(d) (Vernon Supp. 2009). A child can be treated as an adult offender only if the juvenile court has ordered and obtained a diagnostic study of the child or if the child has effectively waived the diagnostic study. R.E.M. v. State, 532 S.W.2d 645, 648 (Tex.Civ.App.-San Antonio 1975, no writ).

This Court’s Review and the Record

The legislature has not defined “complete diagnostic study.” See Tex. Fam.Code Ann. § 54.02 (Vernon Supp. 2009). However, the statutory requirement of a complete diagnostic study bears upon the maturity and sophistication of the child and relates to the questions of culpability, responsibility for conduct, and ability to waive rights intelligently and assist in the preparation of a defense. L.M. v. State, 618 S.W.2d 808, 811 (Tex.App.Houston [1st Dist.] 1981, writ ref'd n.r.e.). The paramount concern of the juvenile court is the qualitative content of a diagnostic study, rather than a mere quantitative checklist of included items. Id. at 811-12. The completeness of a diagnostic report is to be determined by the juvenile court itself. In re J.C.J., 900 S.W.2d 753, 754 (Tex.App.-Tyler 1995). However, this discretion is not unlimited. See id. (ruling on diagnostic study not to be overturned on direct appeal except for abuse of discretion).

To determine whether B.T. is entitled to mandamus, we must first determine whether the trial court abused its discretion in denying B.T.’s motion for the “completion” of Dr. Fallis’s report. In doing so, we would address whether the trial court can comply with section 54.02(d) by, in effect, substituting the Vernon State Hospital’s report for a reevaluation and report by Dr. Fallis. If we decided that question against B.T., we would then address B.T.’s argument that the focus of the three reports (his fitness to proceed) renders them substantively inadequate for purposes of the transfer hearing. A review of all three reports would be integral to our review.

As previously stated, it is B.T.’s burden to provide this court with a sufficient record to establish his right to mandamus relief. See Walker, 827 S.W.2d at 837; In re Pena, 104 S.W.3d 719. However, the reports of Dr. Andrews and Vernon State Hospital are not included in the record before us. Without these reports, we cannot fully consider whether the trial court’s order constitutes an abuse of its discretion. Consequently, B.T. has not shown that he is entitled to mandamus relief. Therefore, we do not decide whether B.T. has an inadequate remedy by appeal. See Tex. R.App. P. 47.1.

Disposition

Because B.T. has not shown that he is entitled to mandamus relief, his petition for writ of mandamus is denied. Our May 13 stay is lifted.

      . The respondent is the Honorable Floyd T. Getz, Judge of the County Court at Law No. 3, Smith County, Texas.

      . It is interesting to note that no cases exist in which the juvenile court’s ruling on the completeness of a diagnostic study under section 54.02(d) has been tested by mandamus.