author: Justice GARZA. Justice LINDA REYNA YÁÑEZ.

text:
    Albert FOLEY, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 13-09-00473-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Dec. 21, 2010.

      Philip J. Hundí, Wadler, Perches, Hundí & Kerlick, Wharton, for Appellant.
    Josh McCown, Dist. Atty., Wharton, Robinson C. Ramsey, Langley & Banack, San Antonio, for Appellee.
    Before Justices YÁÑEZ, GARZA, and BENAVIDES.
   MEMORANDUM OPINION

Memorandum Opinion by

Justice GARZA.

A jury convicted appellant Albert Foley Jr. of his third driving while intoxicated offense. See TEX. PENAL CODE ANN. § 49.04 (Vernon 2003), § 49.09 (Vernon Supp.2010). The jury also determined that the vehicle Foley was driving at the time of the offense was used as a deadly weapon. See id. § 1.07(a)(17) (Vernon Supp.2010). After finding two enhancement allegations to be true, the trial court sentenced Foley to twenty-five years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice. By four issues, Foley asserts that: (1) there was no probable cause to support the search warrant for blood evidence; (2) he was given ineffective assistance of counsel; (3) the evidence was insufficient to support the driving while intoxicated conviction; and (4) the evidence was insufficient to support the deadly weapon finding.

We modify the trial court’s judgment and affirm it as modified.

I. BACKGROUND

On May 21, 2008, seventy-year-old Foley crashed his pickup truck into an aluminum barrier on the Highway 59 service road in Wharton County, Texas. Don Mallett, an employee from a nearby agricultural business named Wilbur-Ellis, testified that he was working in his office approximately sixty feet from the road when he heard the crash. Mallett stated that, from his office window, he saw that Foley’s truck had careened off the road into some tall grass after crashing and that the truck’s tires were “throwing dirt and rocks” as Foley attempted to get back onto the road. Mal-lett called local law enforcement to investigate.

Another Wilbur-Ellis employee, Guy Hill, testified that he was working outside when he saw Foley’s pickup truck driving approximately sixty miles per hour towards the aluminum barrier. Hill was 225 feet away from the crash site. Hill testified that he believed Foley was intoxicated at the time of the accident because after Foley exited his pickup truck, he could not stand up without hanging onto the door or the side of his truck.

Officer Clint Savino, a patrol officer from the El Campo Police Department, responded to the accident scene. Officer Savino testified that he found Foley attempting to change a tire on his pickup which had blown out during the crash. He testified that Foley’s eyes were red and glassy, his speech was unintelligible and slurred, his breath smelled strongly of alcohol, and that he was grasping onto the door of the pickup truck to stand up straight while speaking to the officer. Officer Savino also testified that he saw an open sixteen-ounce can of Busch beer in the pickup truck. Later, while conducting an inventory of the vehicle, he found a quarter-full bottle of Boone’s Wild Cherry wine, and an unopened sixteen-ounce can of Busch beer. Officer Savino stated that Foley admitted that he had been driving and thought that he was “on the north side of Houston,” when he was, in fact, approximately seventy miles south of the city. Foley refused to take a breathalyzer test or provide a blood sample.

While at the accident scene, Officer Sa-vino performed four field sobriety tests on Foley — the horizontal gaze nystagmus test, the walk-and-turn test, alphabet recitation without singing, and the one-leg stand test. Foley failed to complete the first two tests. During trial, Officer Savi-no admitted that field sobriety tests are not reliable for persons over the age of sixty-five, as advanced age and health issues can factor into whether one passes a field sobriety test. Officer Savino “gave consideration that [Foley was] seventy years old and that he might have arthritis or [a condition] that would hinder his being able to perform the tests.” Officer Savino also admitted that he did not ask Foley whether he had sustained any head injuries during the crash.

Officer Savino arrested Foley for driving while intoxicated and transported him to the El Campo Police Department. While there, Officer Savino drafted an affidavit to request a blood search warrant. The affidavit included Officer Savino’s observations of Foley’s appearance and demeanor during his arrest, and also his observations from the field sobriety tests. Judge Tim Drapela signed the warrant upon review. The blood test revealed that Foley’s blood alcohol level was .26, over three times the legal limit.

A jury convicted Foley of his third driving while intoxicated offense and also of using or exhibiting a deadly weapon, specifically, a vehicle. The court sentenced Foley to twenty-five years’ incarceration. This appeal followed.

II. PROBABLE CAUSE FOR SEARCH WARRANT

A. Standard of Review and Applicable Law

In general, obtaining a blood sample is a search and seizure within the meaning of the Fourth Amendment of the United States Constitution. U.S. CONST. amend. IV; see Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Consequently, Article 1, Section 9 of the Texas Constitution requires that a search warrant be used to take blood evidence. TEX. CONST. art. 1, § 9; State v. Dugas, 296 S.W.3d 112, 115 (Tex.App.-Houston [14th Dist.] 2009, pet. ref'd). Under Texas law, a search warrant may be issued to obtain “property or items ... constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense.” TEX.CODE CRIM. PROC. ANN. art. 18.02(10) (Vernon 2005). Blood is an item of evidence within the meaning of article 18.02(10). Id.; see Dugas, 296 S.W.3d at 115; Muniz v. State, 264 S.W.3d 392, 396 (Tex.App.-Houston [1st Dist.] 2008, no pet.).

A magistrate may not issue a search warrant unless he or she receives a sworn affidavit which sets forth sufficient facts to establish probable cause. TEX. CODE CRIM. PROC. ANN. art. 18.01(c) (Vernon Supp.2010). The sworn affidavit must show: (1) that a specific offense has been committed; (2) the specifically described property or items, to be searched for or seized which would constitute evidence of the offense or evidence that a particular person committed that offense; and (3) that the property or items constituting such evidence are located at or on the particular person, place, or thing to be searched. Id. Whether the facts mentioned in the affidavit are adequate to establish probable cause depend on the totality of the circumstances. Ramos v. State, 934 S.W.2d 358, 362-63 (Tex.Crim.App.1996). “Probable cause exists when, under the totality of the circumstances, there is a ‘fair probability’ that contraband or evidence of a crime will be found....” Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.Crim.App.2007). The standard for review in challenging whether probable cause existed for an affidavit is whether the magistrate had a substantial basis for concluding that it existed. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

B. Analysis

By his first issue, Foley argues that the search warrant was improper because it was not supported by probable cause. Specifically, he contends that the field sobriety tests mentioned in Officer Savino’s warrant were not a credible source of information regarding Foley’s alleged intoxication due to Foley’s age. In support of this argument, Foley cites testimony from Officer Savino wherein he admits that field sobriety tests are not reliable indicators of intoxication for persons over the age of sixty-five.

Assuming, without deciding, that the field tests were inapplicable to Foley, we conclude that the remaining facts in Officer Savino’s affidavit were still sufficient to establish probable cause. Officer Savino’s affidavit reported that Foley smelled strongly of alcohol, had red and glassy eyes, slurred speech, poor balance, and that he refused to provide a breath or blood sample. The affidavit further showed that Foley was geographically disoriented because he thought that he was on the “north side of Houston,” when indeed he was seventy miles south in Wharton County. The affidavit also provided that Foley admitted to driving. Finally, Officer Savino stated in the affidavit that, “I have seen intoxicated persons on many occasions in the past. Based on all .of the above and my experience and training, I determined that the suspect was intoxicated....”

Significantly, we note that during trial, Judge Drapela stated that even without the information from the field tests, he still would have found probable cause because of Foley’s “eye glaze” and “the remarks about the odor on [Foley’s] breath, remarks about his balance, the fact that he had been involved in a collision, and the fact that he thought he was about [seventy] miles from where he actually was.” In light of the foregoing, we hold that the facts stated in Officer Savino’s affidavit established probable cause to obtain a blood sample, even if we disregard the field test information in the affidavit. Under the totality of the circumstances, there was sufficient reason to believe that obtaining a blood sample would elicit evidence to prove that Foley committed the offense of driving while intoxicated. See Rodriguez, 232 S.W.3d at 60. We overrule this issue.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review and Applicable Law

The United States Supreme Court set forth a two-part test in Strickland v. Washington to determine whether a criminal defendant was provided ineffective assistance of counsel. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The Strickland test first requires the appellant to demonstrate that counsel’s performance was so deficient that it fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999); see Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Assuming the appellant has demonstrated deficient assistance, he or she must then show that there is a reasonable probability that the final result would have been different but for counsel’s errors. Thompson, 9 S.W.3d at 812-13.

The appellant must prove ineffective assistance of counsel by a preponderance of the evidence. Id. The appellant must overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance and that counsel’s actions could be considered a sound trial strategy. Jaynes v. State, 216 S.W.3d 839, 851 (Tex.App.-Corpus Christi 2006, no pet.). A reviewing court should not second-guess legitimate tactical decisions made by trial counsel. State v. Morales, 253 S.W.3d 686, 696 (Tex.Crim.App.2008). In determining whether an attorney’s performance was deficient, we apply a strong presumption that the attorney’s conduct was within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. We review the effectiveness of counsel in light of the totality of the representation and the circumstances of each case. Id. The court of criminal appeals has made clear that, in most cases, a silent record that does not explain counsel’s actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App.2003).

B. Analysis

Foley complains that his trial attorney: (1) only visited him once in the jail prior to trial; (2) did not conduct a fact investigation; (3) did not prepare a defense; (4) failed to interview or present witnesses during the sentencing hearing; (5) made no effort to learn Foley’s social history; and (6) refused to provide a copy of the police report to Foley.

In his defense, Foley’s trial counsel filed an “Affidavit of Defense Counsel” after trial. The affidavit, in relevant part, stated:

My name is Richard L. Manske, TBC # 12956500 and I am over the age of eighteen years and competent to make this affidavit. I represented Mr. Foley for pre-trial and trial of the above-captioned cause. I met with my client at least once at the jail and several times in court when he made various appearances. With the assistance of my associate David Kiatta, I prepared and presented what I believe was the best possible defense given the facts of the case. We litigated a contentious motion to suppress and were prepared to cross-examine each and every witness presented at both the guilt and punishment phases. As for additional punishment witnesses, I felt that the judge was inclined- to be merciful in this case. I did not believe it wise to give the State the opportunity to cross-examine any defense punishment witnesses and possibly harm my client thereby. The wisdom of that decision is evident in that the judge assessed the minimum lawful sentence given my client’s criminal history.

Manske’s affidavit addresses Foley’s first, second, third, and fourth sub-issues. For example, Manske states that he met with Foley more than once, both in jail and at various court appearances. During these visits, Manske learned information about Foley and the case which helped him prepare and present “the best possible defense given the facts of the case.” Manske also had a trial strategy with respect to not presenting witnesses during the sentencing hearing, as he felt the “judge was inclined to be merciful” to Foley and that he did not want to “give the State the opportunity to cross-examine any defense punishment witnesses” which could possibly harm Foley.

Manske provided reasonable explanations of his decisions that appear to be within the wide range of reasonable professional assistance. Jaynes, 216 S.W.3d at 851. As a reviewing court, we do not second-guess his decisions as trial counsel. Morales, 253 S.W.3d at 696. However, even if we assumed that Manske’s actions fell below the objective standard of reasonableness, Foley has not established that a different result would have occurred had Manske acted differently. See Thompson, 9 S.W.3d at 812. Thus, we cannot conclude that Manske’s actions resulted in any prejudice to Foley. Id. at 813.

With respect to Foley’s fifth and sixth sub-issues, the record is silent as to whether Manske made an effort to learn Foley’s social history or whether he gave Foley a copy of the police record. Accordingly, Foley’s complaints regarding these issues are not firmly found in the record. Id. “A silent record which provides no explanation for counsels actions will not overcome the strong presumption of reasonable assistance.” See Rylander, 101 S.W.3d at 110-11; Hernandez v. State, 198 S.W.3d 257, 269 (Tex.App.-San Antonio 2006, pet. ref'd). Thus, we find that Foley has failed to rebut the presumption that Manske made these decisions based on sound professional judgment. See Rylander, 101 S.W.3d at 111. We overrule this issue.

IV. INSUFFICIENCY OF EVIDENCE

A. Standard of Review

Foley’s third and fourth issues challenged the factual sufficiency of the evidence used to convict him of driving while intoxicated and to establish that the vehicle he drove was used as a deadly weapon. Given the Texas Court of Criminal Appeals’s recent Brooks v. State opinion, however, we now construe Foley’s factual sufficiency challenges as challenges to the legal sufficiency of the evidence. Brooks v. State, 323 S.W.3d 893, 902-03 (Tex.Crim.App.2010) (plurality op.). Brooks held that there is “no meaningful distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis [v. State, 876 S.W.2d 428 (Tex.App.-Dallas 1994)] factual-sufficiency standard, and these two standards have become indistinguishable.” Id. at 902; see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Thus, the Jackson v. Virginia standard is “the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. All other cases to the contrary ... are overruled.” Brooks, 323 S.W.3d at 912. Accordingly, we will only apply the Jackson evidentiary sufficiency standard.

Jackson holds that when conducting a legal sufficiency review, a court must ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” — not whether “it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781. A legal sufficiency analysis requires the court to view all of the evidence in “a light most favorable to the verdict and to determine whether a rational trier of fact could have found all of the essential elements of the crime beyond a reasonable doubt.” Id.; see Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009). The trier of fact is the sole judge of the facts, the credibility of the witnesses, and the weight given to testimony. TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979); Beckham v. State, 29 S.W.3d 148, 151 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). “Appellate courts are ill-equipped to weigh the evidence; unlike the fact-finder — who can observe facial expressions and hear voice inflections firsthand — an appellate court is limited to the cold record.” Laster, 275 S.W.3d at 517 (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988)). We resolve any inconsistencies in the evidence in favor of the final judgment and consider whether the factfinder reached a rational decision. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App.2009); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997); Adi v. State, 94 S.W.3d 124, 131 (Tex.App.-Corpus Christi 2002, pet. ref'd). “Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the States burden of proof or unnecessarily restrict the States theories of liability, and adequately describes the particular offense for which the defendant was tried.” Villarreal, 286 S.W.3d at 327; Malik, 953 S.W.2d at 240. Under a hypothetically correct jury charge, Foley committed the offense of driving while intoxicated if he: (1) was intoxicated (2) while operating a motor vehicle (3) in a public place. Tex. Penal Code Ann. § 49.04(a). Foley used his vehicle as a deadly weapon if (1) its use or intended use (2) was capable of causing (3) death or serious bodily injury. Id. § 1.07(a)(17)(B).

B. Analysis

1. Driving While Intoxicated

Foley contends that the evidence was insufficient to sustain a conviction for driving while intoxicated. We disagree. The evidence showed that: (1) Foley’s eyes were red and glassy; (2) his speech was slurred; (3) his breath smelled strongly of alcohol; (4) he had to hold on to the door of his pickup truck to stand upright; (4) he admitted that he had been driving; (5) he was geographically disoriented, thinking he was at least seventy miles north of his actual location; (6) there was an open can of beer in his pickup truck; (7) there was an unopened can of beer and a partially full bottle of wine in his pickup; and that (8) Foley’s blood had .26 grams of alcohol per 100 milliliters of blood. In his defense, Foley argues that Officer Savino never asked Foley if he suffered a head injury, which could explain his disorientation at the time of his arrest. Further, Foley contends that Officer Savino used field sobriety tests that are not reliable indicators of inebriation in persons older than sixty-five years old, such as Foley. However, viewing all of the evidence in a light favorable to the verdict, we find that the evidence was sufficient for a rational jury to determine that Foley was guilty of driving while intoxicated beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781; Brooks, 323 S.W.3d at 902-03. We overrule this issue.

2. Use of Vehicle as a Deadly Weapon

Foley also argues that the evidence was insufficient to justify a deadly weapon finding. The Texas Penal Code defines a “deadly weapon” as “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” TEX. PENAL CODE ANN. 1.07(a)(17)(B). “To determine whether the evidence supports a deadly weapon finding in cases involving motor vehicles, we conduct a two-part analysis.” Hilburn v. State, 312 S.W.3d 169, 177 (Tex.App.-Fort Worth 2010, no pet.) (citing Sierra v. State, 280 S.W.3d 250, 255 (Tex.Crim.App.2009)). We first “evaluate the manner in which the defendant used the motor vehicle during the felony.” Sierra, 280 S.W.3d at 255. We then “consider whether, during the felony, the motor vehicle was capable of causing death or serious bodily injury.” Id.

To evaluate the manner in which the defendant used the motor vehicle, we must determine whether the defendant’s driving was reckless or dangerous. Id We consider several factors to determine recklessness or dangerousness, such as: (1) intoxication; (2) speeding; (3) disregarding traffic signs and signals; (4) driving erratically; and (5) failure to control the vehicle. Id at 255-56. The record here shows that Foley was intoxicated. The evidence established that Foley smelled of alcohol, had red and glassy eyes, slurred speech, poor balance, and was geographically disoriented, among other factors. The evidence also shows that Foley failed to control his vehicle, given that he crashed into an aluminum barrier. See Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App.2010) (finding that “the inference” that an intoxicated driver caused an accident “is even stronger when the accident is a one-car collision with an inanimate object.”). Thus, the evidence is sufficient to support that Foley’s driving was reckless or dangerous. Id.

We now turn to the second part of the Sierra test — whether the motor vehicle could cause death or serious bodily injury. Sierra, 280 S.W.3d at 255. To sustain this finding, several Texas courts have held that there must be evidence that others were actually endangered in the accident. See Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App.2003); Drichas v. State, 219 S.W.3d 471, 476 (Tex.App.-Texarkana 2007, no pet.); Williams v. State, 946 S.W.2d 432, 435 (Tex.App.-Fort Worth 1997, pet. dism’d). A hypothetical potential for danger is not sufficient. Cates, 102 S.W.3d at 738. We must “examine the record for evidence that there were other motorists at the same time and place as the reckless driving occurred.” Drichas, 219 S.W.3d at 476; see Williams, 946 S.W.2d at 436 (holding that a deadly weapon finding must be supported by evidence that “there was someone present who was placed in danger of serious bodily injury or death”).

The record here shows that when Foley wrecked, the closest person to his vehicle was Mallett, who was sixty feet away from the crash, working inside an office building. The next closest person, Hill, was 225 feet away. Although there was testimony that several businesses are located along the Highway 59 service road where Foley wrecked, there was no evidence that other motorists were on or near the road at the time of the accident. In sum, there is no evidence in the record before us that there were other persons or vehicles at the same “time and place” as Foley. Drichas, 219 S.W.3d at 476; Williams, 946 S.W.2d at 436. No one other than Foley himself “was placed in danger of serious bodily injury or death.” Williams, 946 S.W.2d at 436.

Accordingly, we find that there was not sufficient evidence to support the “deadly weapon” finding in this case. TEX. PENAL CODE ANN. 1.07(a)(17)(B). Although Foley’s driving may have been reckless or dangerous, it could not cause death or serious bodily injury to others because no other persons or vehicles were in thé immediate vicinity of Foley’s crash. The evidence is not sufficient for a rational jury to determine that Foley’s vehicle was operated as a deadly weapon. See Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781; Brooks, 323 S.W.3d at 902-03. We sustain this issue.

Y. CONCLUSION

We modify the trial court’s judgment to delete the deadly weapon finding, and we affirm the judgment as modified. See Tex. R.App. P. 43.2(b).

Concurring Memorandum Opinion by

Justice LINDA REYNA YÁÑEZ.

Concurring Memorandum Opinion by Justice YÁÑEZ.

Although I agree with the majority’s disposition of appellants complaint of ineffective assistance of counsel, I write separately to express my view regarding one of his complaints. Accordingly, I respectfully concur with the majority’s disposition.

By a sub-issue, appellant complains that his trial counsel rendered ineffective assistance by, among other omissions, only visiting him once in the jail before trial. Appellants trial counsel, Richard L. Manske,' submitted an affidavit in which he states, in relevant part, that he “met with [his] client at least once in the jail and several times in court when [appellant] made various appearances.”

Although the majority falls short of endorsing such a practice, it declines to find that a trial counsel’s failure to meet with a client more than once — not counting during court appearances — constitutes performance so deficient that it falls below an objective standard of reasonableness. I disagree. Conferring with a client immediately prior to, or during, a court appearance cannot provide the privacy and confidential circumstances necessary to develop an effective strategy. I would therefore not presume that counsel’s failure to meet with appellant more than once — other than at court appearances — fell within the wide range of reasonable professional assistance.

However, I agree with the majority that even assuming, as I do, that counsel’s conduct fell below the objective standard of reasonableness, appellant failed to establish that a different result would have occurred had his counsel acted differently. Accordingly, I would overrule his issue.

      . In fact, we are not clear about Foley's meaning of the phrase social history.

        . A deadly weapon finding is not part of a sentence. Ex parte Huskins, 176 S.W.3d 818, 820-21 (Tex.Crim.App.2005); State v. Ross, 953 S.W.2d 748, 751 (Tex.Crim.App.1997). While a deadly weapon finding does affect a defendants eligibility for probation and parole, it does not alter the range of punishment to which the defendant is subject, or affect the number of years assessed. Huskins, 176 S.W.3d at 821; see TEX.CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (Vernon Supp. 2010) (providing that community supervision is not available to a defendant when it is shown that a deadly weapon as defined in Section 1.07, Penal Code was used or exhibited during the commission of a felony of-fense....).

      . See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999).

      . See id. at 813.

      . See id. at 812.


source: Caselaw Access Project

author: Justice VALDEZ.

license: Public Domain

text:
    Mary Feild JARVIS, Appellant, v. Frank Ewing FEILD and John Shaw Feild, Appellees.
    No. 13-10-00129-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Dec. 21, 2010.

      Mary Feild Jarvis, Richland, WA, pro se.
    Frank E. Perez, Lilia Gonzales, Brownsville, for Appellees.
    Before Chief Justice VALDEZ and Justices RODRIGUEZ and BENAVIDES.
   OPINION

Opinion by Chief

Justice VALDEZ.

This dispute pertains to the accounting and distribution of the estate of Caroline P. Feild, deceased. Appellant, Mary Feild Jarvis, appeals from an “Order Approving Account for Final Settlement” signed by the trial court on February 28, 2010. By four issues, Jarvis, advancing pro se, argues that: (1) the trial court did not have jurisdiction over this case; (2) the trial court erroneously approved an incomplete inventory of the estate’s assets; (3) the trial court erroneously approved of inaccurate market value assessments of real property contained in the estate; and (4) the trial court’s final division of the estate’s real property conflicts with Caroline’s intent, as expressed in her “Last Will and Testament.” We affirm.

I. BACKGROUND

In 2003, Jarvis filed a petition in Cameron County, Texas, to be designated Caroline’s guardian. The trial court appointed Jarvis as Caroline’s guardian from 2007 until Caroline’s death in the state of Washington on May 2, 2008. A final accounting to close the guardianship case was filed by Jarvis in the Cameron County Court of Law No. 1.

On May 23, 2008, co-appellee, Frank Feild, filed an application to probate Caroline’s will and letters of independent executor in the Cameron County court. The application noted that Jarvis resides at 1892 Birch Avenue in Richland, Washington, and that she should be served through her resident agent, Ramona Kantaek Al-cantara, her attorney from the guardianship case, in Brownsville, Texas. Service of citation was issued to Jarvis on May 27, 2008, through Alcantara. The citation indicates that Alcantara accepted service on Jarvis’s behalf. Subsequently, on June 5, 2008, an attorney from Alcantara’s law firm filed an answer and objection to Frank’s application for probate on Jarvis’s behalf. In her sole objection, Jarvis argued that all real property in the estate should be appraised or assigned a fair market value “by an individual qualified to make such an analysis” prior to the distribution.

On June 24, 2008, the trial court conducted a hearing on Frank’s application and letters of independent executor and signed an order appointing Frank as executor of the estate, as designated by Caroline in her will. The trial court also concluded that “it has jurisdiction and venue over this estate.” On October 5, 2009, Frank filed an inventory and appraisal of all real property contained in the estate. In this filing, Frank outlined all of the contents of the estate and determined that, after $75,322.77 in disbursements was deducted from the value of the estate, the value of the property and cash in the estate was $363,185.18. The trial court approved the inventory and appraisals on October 19, 2009.

The following day, Jarvis sent the trial court a letter alleging that several items contained in the estate were not listed in the inventory and were missing. Shortly thereafter, Frank filed an “Account for Final Settlement,” which included additional receipts and disbursements and which requested the sale and equal distribution of proceeds amongst the beneficiaries of real property located in Brownsville at 1144 Camwood Place in the Woodlands Park II Subdivision, Lot 23. Jarvis was to be awarded real property located at 1185 Parkwood Place in the Woodlands Park II Subdivision, Lot 18, in Brownsville. Frank was to be awarded a one-half share in property located at 1174 Camwood Street in Brownsville and 440 E. Brushy Valley Drive in Knoxville, Tennessee, and $11,499.28 in cash. Meanwhile, John was to be awarded the remaining one-half share for 1174 Camwood Street and 440 E. Brushy Valley Drive, another piece of real property located in Presidio County, Texas, valued at $4,200, and $9,494.28 in cash. Based on the appraisals obtained for each of the properties, Frank asserted that each of the beneficiaries would receive equal shares of the estate, each valued at $89,175.

The trial court scheduled the matter for a hearing on January 26, 2010. On January 12, 2010, Jarvis sent a letter protesting the “Account for Final Settlement” and alleging that the division of the estate’s assets was inequitable. She argued that the real property awarded to her had purportedly already been sold to someone else, the Tennessee property was valued at $2.2 million, and she would not accept “encumbered properties as [her] portion of the Estate.” She continued, “I will accept my fair portion of the Estate’s worth in United States dollars. For fairness, all properties held by the Estate (real estate and other) should be immediately sold at fair market prices and the monies realized divided among the three heirs.” In light of this letter and because all interested parties were out of town and not able to attend the previously scheduled January 26, 2010 hearing, Frank filed a motion for continuance, and the trial court re-set the hearing on the “Account for Final Settlement” for February 23, 2010. The trial court sent notice that the hearing was reset for February 28, 2010 to all interested parties.

At the final hearing on this matter, the trial court was advised of an objection Jarvis made regarding the valuation of the property located in Tennessee. Frank responded by providing documentation from the Knox County, Tennessee appraisal district valuing the property at $108,500, of which the trial court took judicial notice. The trial court signed an order approving of Frank’s “Account for Final Settlement.” It is from this order that Jarvis now appeals.

II. JURISDICTION AND VENUE

By her first issue, Jarvis asserts that the trial court did not have jurisdiction over this matter pursuant to section six of the Texas Probate Code, the venue statute. See Tex. Prob.Code Ann. § 6 (Vernon 2003). She also asserts that she was not notified of the trial court’s intention to exercise jurisdiction over this matter and that, because Caroline resided in Benton County, Washington, at the time of her death, the will should have been probated in the state of Washington. Frank and John counter by arguing that Jarvis waived this issue by failing to specify such arguments in her notice of appeal. In the alternative, Frank and John argue that the trial court had jurisdiction over this matter because Caroline had property and her will was executed in Cameron County. Frank and John contend that prior to her death, Caroline was declared incapacitated and therefore did not have the competency to declare the state of Washington her domicile. They further contend that the trial court had continuing jurisdiction over this matter because it had earlier determined that Caroline was incapacitated. With respect to Jarvis’s notice argument, Frank and John assert that Jarvis was served through her attorney, Ramona Kantack Alcantara, and that her attorney filed an answer and objection on her behalf in this matter.

A. Subject-Matter Jurisdiction

The crux of Jarvis’s first issue centers on venue. However, to the extent Jarvis argues that the Cameron County trial court lacked subject-matter jurisdiction over this case, she has not adequately explained this contention while tying the facts to relevant authority pertaining to jurisdictional concepts. See Tex.R.App. P. 38.1(i). Jarvis repeatedly argues that the probating of Caroline’s will should have taken place in the state of Washington, an argument which we construe as pertaining to venue. Nevertheless, the Texas Supreme Court has held that we are “obliged to ascertain that subject[-]matter jurisdiction exists regardless of whether the parties have questioned it.” Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex.2004) (emphasis in original) (citing Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 853-54 (Tex.2000)). Thus, we have a duty to determine whether the Cameron County court had subject-matter jurisdiction over this matter. Based on our review of the record, we believe that the Cameron County Court of Law No. 1 had subject-matter jurisdiction over the probating of Caroline’s will because a portion of Caroline’s estate is situated in Cameron County. See Tex. Prob.Code.Ann. § 4 (Vernon 2003) (“The county court shall have the general jurisdiction of a probate court. It shall probate wills, grant letters testamentary ... and transact all business appertaining to estates subject to administration, including the settlement, partition, and distribution of such estates.”); id. § 5(f) (Vernon 2003) (“All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate.”); id. § 5A(a) (Vernon 2003) (“In proceedings in the constitutional county courts and statutory county courts at law, the phrases ‘appertaining to estates’ and ‘incident to an estate’ in this Code include the probate of wills, the issuance of letters testamentary and of administration ... and generally all matters relating to the settlement, partition, and distribution of estates of deceased persons.”); see also English v. Cobb, 593 S.W.2d 674, 676 (Tex.1979) (stating that an action incident to an estate is one in which the outcome will have direct bearing on collecting, assimilating, or distributing the decedent’s estate).

B. Venue

In making her venue argument, Jarvis cites authority addressing jurisdictional arguments to contend that section six of the probate code mandated that the estate be probated in the state of Washington. See id. Venue and jurisdiction are two distinct concepts, and it appears that Jarvis, in her appellate brief, conflates the two concepts. Reliant Energy, Inc. v. Gonzalez, 102 S.W.3d 868, 871 (Tex.App.-Houston [1st Dist.] 2003), aff'd, 159 S.W.3d 615 (Tex.2005) (“Jurisdiction concerns the power of a court, under the Constitution and laws, to determine the merits of an action as between the parties and to render a judgment.... Venue concerns the propriety of prosecuting a suit involving a given subject matter and specific parties in a particular county.”) (Emphasis in original). Based on our review of Jarvis’s appellate briefs, it is clear that the thrust of her first argument is that the Cameron County court was an inappropriate venue for this matter. Accordingly, we will analyze her first issue with respect to venue.

The record does not contain a written motion arguing that the Cameron County court was an improper venue in this matter. Jarvis acquiesced to the probating of the will in Cameron County until the trial court signed the final order, which, as she alleges, resulted in her being disinherited. She did not object to Cameron County court as being an improper venue until she filed her appeal with this Court.

Texas Rule of Civil Procedure 86(1) provides that an objection to improper venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading, or motion, except a special appearance motion provided for in rule 120a. See Tex.R. Civ. P. 86(1); see also Graybar Elec. Co. v. Gonzalez (In re Graybar Elec. Co.), Nos. 13-08-00073-CV, 13-08-00294-CV, 13-08-00333-CV, 13-08-00341-CV, 2008 WL 3970865, at *14, 2008 Tex.App. LEXIS 6868, at *45 (Tex.App.-Corpus Christi Aug. 26, 2008, no pet.) (mem.op.). Even though it appears that appellant may have advanced pro se for some of the proceedings below, her pro se status does not reheve her from complying with applicable laws and rules of procedure. See Green v. Kaposta, 152 S.W.3d 839, 841 (Tex.App.-Dallas 2005, no pet.); see also Siddiqui v. Siddiqui, No. 14-07-00235-CV, 2009 WL 508260, at *1-2, 2009 Tex.App. LEXIS 1443, at *4 (Tex.App.-Houston [14th Dist.] Mar. 3, 2009, pet. denied) (mem.op.) (“While we have compassion for the plight of the pro se litigant attempting to follow the rules of legal procedure and substantive law, and therefore construe pro se pleadings and briefs liberally, we must still hold appellant to the same standard as a licensed attorney, requiring that he follow those same rules and laws.... To do otherwise would give a pro se litigant an unfair advantage over a litigant represented by counsel.”). Therefore, because Jarvis did not make a written objection to the Cameron County court as an improper venue for the probating of Caroline’s will until she filed her appeal, we conclude that her venue argument is waived. See Tex.R. Civ. P. 86(1); see also Graybar Elec. Co., 2008 WL 3970865, at *14, 2008 Tex.App. LEXIS 6868, at *45.

C; Notice and Personal Jurisdiction

Jarvis also argues that the Cameron County court lacked personal jurisdiction over her because she did not receive notice of the various filings and hearing in this matter. Jarvis’s claims— that she did not receive notice of the various hearings and pleadings filed in this case and that she was not properly served — constitute a challenge to the court’s personal jurisdiction over her. See Furst v. Smith, 176 S.W.3d 864, 868 (Tex.App.-Houston [1st Dist.] 2005, no pet.); see also Houston Precast, Inc. v. McAllen Constr. Inc., No. 13-07-135-CV, 2008 WL 4352636, at *1, 2008 Tex.App. LEXIS 7129, at *8 (Tex.App.-Corpus Christi Sept. 25, 2008, no pet.) (mem.op.). Whether the Cameron County court had personal jurisdiction over Jarvis is a question of law. See Coronado v. Norman, 111 S.W.3d 838, 841 (Tex.App.-Eastland 2003, pet. denied); see also Houston Precast, Inc., 2008 WL 4352636, at *1, 2008 Tex.App. LEXIS 7129, at *3. Personal jurisdiction is composed of two elements: (1) the defendant must be amenable to the jurisdiction of the court; and (2) if the defendant is amenable to the jurisdiction of the court, the plaintiff must validly invoke that jurisdiction by valid service of process on the defendant. Coronado, 111 S.W.3d at 841 (citing Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex.1985)). When a defendant has not answered, a trial court acquires jurisdiction over that defendant solely on proof of proper service. See Furst, 176 S.W.3d at 868; see also Houston Precast, Inc., 2008 WL 4352636, at *1, 2008 Tex.App. LEXIS 7129, at *3.

There are no presumptions in favor of valid issuance, service, and return of citation, and a failure to affirmatively demonstrate strict compliance with the rules of civil procedure renders an attempted service of process invalid and of no effect. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985) (per curiam); see also Furst, 176 S.W.3d at 869; All Commercial Floors, Inc. v. Barton & Rasor, 97 S.W.3d 723, 726 (Tex.App.-Fort Worth 2003, no pet.). An appellant may raise a defect in service for the first time on appeal. All Commercial Floors, Inc., 97 S.W.3d at 725 (citing Wilson, 800 S.W.2d at 836-37).

In support of her contentions, Jarvis asserts that the Kantack Alcantara Law Office, P.C. only had a contract to represent her during the earlier guardianship proceedings, not the proceedings pertaining to the probating of Caroline’s will. Nevertheless, the record does not include a copy of the contract between the law firm and appellant regarding representation. Appellant relies solely on her bald assertions that the law firm did not represent her in this matter, even though the record: (1) contains filings (an answer and objection to Frank’s probate application) made by the law firm on Jarvis’s behalf; (2) indicates that the law firm accepted service on Jarvis’s behalf; and (3) contains the trial court’s note that Jarvis received notice of the various filings and hearings in this matter. See Furst, 176 S.W.3d at 868; see also Houston Precast, Inc., 2008 WL 4352636, at *1, 2008 Tex.App. LEXIS 7129, at *3. Jarvis argues that section 128A of the probate code entitled her to personal service of all filings and notices in this case. See Tex. Prob.Code Ann. § 128A(a) (Vernon 2003). Section 128A, however, does not support Jarvis’s argument because it pertains to notice to “the state, a governmental agency of the state, or a charitable organization” regarding a will admitted to probate. See id. Her status in this case does not fall within the purview of section 128A. See id.

Jarvis also argues that sections 33(f)(1) and 407(1) of the probate code required personal service. See id. §§ 33(f)(1), 407(1) (Vernon 2003). Section 33(f)(1) provides that “[w]here it is provided that personal service shall be had with respect to a citation or notice, any such citation or notice must be served upon the attorney of record for the person to be cited.” Id. § 33(f)(1). Section 407(1) pertains to the presentation of account for final settlement and requires that “notice shall be given by the personal representative to each heir or beneficiary of the decedent by certified mail, return receipt requested, unless another type of notice is directed by the court by written order.” Id. § 407(1).

Here, notice was sent by certified mail to Jarvis’s attorney at the Kantack Alcan-tara Law Office, P.C. As a result of the notice, the law firm filed an original answer and objection on Jarvis’s behalf, to which Jarvis did not object. See Baker v. Monsanto Co., 111 S.W.3d 158, 160 (Tex.2003) (stating that the filing of an answer constitutes a general appearance, which submits a defendant to the jurisdiction of the court for all purposes); see also Boyes v. Morris, Polich & Purdy, LLP, 169 S.W.3d 448, 455 (Tex.App.-El Paso 2005, no pet.) (same). The record reflects that all notices were sent by certified mail to the law firm, who appears to be registered as appellant’s agent for service of process. Later, Jarvis filed several letters with the trial court at or near the time various hearings were conducted or orders signed, which indicates that she received notice of the various filings and hearings. Furthermore, Jarvis admits on appeal that she received notice of the final February 23, 2010 hearing, but she did not think that she was required to attend. She also complains that the estate declined to pay her expenses to travel to Cameron County for the various hearings, which suggests that she made a conscious choice to not attend the hearings because she did not believe that her expenses would be paid for by the estate. Finally, the trial court noted Jarvis’s objections to the appraised value of the Tennessee property that she had repeatedly raised in earlier-filed letters, which demonstrates that her concerns were considered by the Cameron County court.

Based on our review, the record demonstrates that: (1) Jarvis received notice of the various hearings and pleadings, as evidenced by her letters sent in response to such filings and setting; (2) the Kantack Alcantara Law Office, P.C. represented Jarvis in the probate proceedings and was her registered agent for service of process; and (3) Jarvis was not harmed in this matter because the trial court considered her complaints regarding the appraised value of the Tennessee property. We therefore conclude that Jarvis has not satisfied her burden of demonstrating that the Cameron County court lacked personal jurisdiction over her because of lack of notice or defective service. See Middleton, 699 S.W.2d at 200; Furst, 176 S.W.3d at 868; Coronado, 111 S.W.3d at 841; see also Houston Precast, Inc., 2008 WL 4352636, at *1, 2008 Tex.App. LEXIS 7129, at *3. Accordingly, we overrule appellant’s first issue.

III. INVENTORY, APPRAISEMENT, AND FINAL SETTLEMENT OF THE ESTATE

In her second and third issues, Jarvis contends that the trial court “knowingly approved an incomplete inventory of real property [e]state assets, including real property, by the [e]xecutor” and “allowed inaccurate market value assessments of real property [e]state assets by the [e]xec-utor.” Jarvis alleges that Frank improperly included three properties in the inventory of the estate that were previously sold to third parties and intentionally “deflated estimates of real property values” so as to reduce her inheritance. She further alleges that the trial court “failed to hold the [e]xecutor financially or criminally responsible for selling [e]state real property, without prior Court approval,” including the property located at 1185 Parkwood Place in Brownsville that was awarded to her. Jarvis argues that the trial court was complicit in allowing for the valuation of the estate based on the inventory to be “grossly underestimated.” Frank and John contend that Jarvis failed to preserve these issues because her notice of appeal specifically stated that she appealed the “Order Approving Account for Final Settlement,” rather than the “Order Approving Inventory Appraisement!,] and List of Claims.”

In her pro se notice of appeal, Jarvis states the following: “Mary (Maria) Feild Jarvis, Real Party Interest, desires to appeal and seek relief from the “Order Approving Account for Final Settlement” (Cause No. 2008-CPC-163-A) issued by presiding Judge MacDonald on February 23, 2010.” As noted earlier, Texas Rule of Appellate Procedure 25.1(d)(2) requires appellant to “state the date of the judgment or order appealed from.” Tex.R.App. P. 25.1(d)(2); see Dugan v. Compass Bank, 129 S.W.3d 579, 581 (Tex.App.-Dallas 2003, no pet.). The record reflects that the inventory order and the final settlement order are two separate orders signed on different dates — October 19, 2009 and February 23, 2010, respectively. At no point in her notice of appeal does Jarvis specify that she was appealing from the “Order Approving Inventory Appraisement[,] and List of Claims.”

In response to Frank and John’s preservation arguments, Jarvis asserts that the inventory order and the “Order Approving Account for Final Settlement” are “linked documents” and that “the latter cannot exist without the former. Therefore, citation of the ‘Order Approving Account for Final Settlement’ in the ‘Notice of Appeal’ automatically places the ‘Inventory, Appraisement[,] and List of Claims’ [sic] under appeal.” However, Jarvis does not cite any authority supporting this contention. See Tex.R.App. P. 38.1(i). Nevertheless, Texas courts have noted that the “disposing of appeals for harmless procedural defects is disfavored. That policy is reflected in Texas Rule of Appellate Procedure 38.1(f)[,] which provides that the statement of an issue will be treated as covering every subsidiary question that is fairly included.” Perry v. Cohen, 272 S.W.3d 585, 587 (Tex.2008) (citing Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997)); see Tex.R.App. P. 38.1(f). Further, “[ajppellate briefs are to be construed reasonably, yet liberally, so that the right of appellate review is not lost by waiver. Simply stated, appellate courts should reach the merits of an appeal whenever reasonably possible.” Perry, 272 S.W.3d at 587 (citing El Paso Natural Gas v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 316 (Tex.1999); Verburgt, 959 S.W.2d at 616). Regarding appeals of probate orders, the Texas Supreme Court has stated that in probate proceedings, multiple judgments may be considered final for purposes of appeal on certain discrete issues. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex.2001) (citing Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995)); see also Brittingham- Sada de Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex.2006) (“Probate proceedings are an exception to the ‘one final judgment’ rule; in such cases, ‘multiple judgments final for purposes of appeal can be rendered on certain discrete issues.’ ”) (quoting Lehmann, 39 S.W.3d at 192). However, “[n]ot every interlocutory order in a probate ease is appealable ... and determining whether an otherwise interlocutory probate order is final enough to qualify for appeal, have proved difficult.” Mackie, 193 S.W.3d at 578. .Assuming, without deciding, that the “Order Approving Inventory, Appraisement[,] and List of Claims” is an appealable order, we will analyze Jarvis’s complaints pertaining to this order in the interest of justice and in accordance with supreme court directives that we should construe appellate issues liberally so that the right to appeal is not lost. See Perry, 272 S.W.3d at 587; El Paso Natural Gas, 8 S.W.3d at 316; Verburgt, 959 S.W.2d at 616; see also Tex. R.App. P. 38.1(f).

In both her second and third issues, Jarvis complains about the appraisals of the property contained in Caroline’s estate, which allegedly resulted in a decrease in the value of her inheritance, Frank’s purported sale of several properties of the estate, and Frank’s alleged intentional exclusion of items from the inventory of the estate. However, in her appellate briefs, Jarvis does not sufficiently argue or cite to evidence in the record showing that items contained in Caroline’s estate were intentionally excluded from the inventory by Frank. See Tex.R.App. P. 38.1(i). Moreover, she does not direct us to evidence contained in the record demonstrating that the properties in the estate were improperly sold or intentionally undervalued so as to reduce her inheritance. See id. Jarvis includes an internet listing in her appendix attached to her appellate brief; however, this listing has not been formally included in the record, nor does it conclusively demonstrate the true market value of the properties. See Gonzalez v. Villarreal, 251 S.W.3d 763, 777 n. 17 (Tex.App.-Corpus Christi 2008, pet. dism’d w.o.j.) (holding that the attachment of documents as exhibits or appendices to appellate briefs is not formal inclusion in the appellate record); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 298 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (same); Till v. Thomas, 10 S.W.3d 730, 733-34 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (same). The record contains appraisals for each of the properties listed in the inventory, and the market values stated in the appraisals were used to compute the value of Caroline’s estate and the portion of the estate each of the heirs would receive. In fact, the Tennessee property, which is the focus of the appraisal dispute, was appraised by the Knox County, Tennessee appraisal district and yielded an appraised value of $108,500. Jarvis has not submitted for inclusion in the record an appraisal disputing the $108,500 value calculated by the Knox County, Tennessee appraisal district. Based on this information, we cannot say that the trial court erred in approving of the appraisals provided.

Jarvis also contends that Frank improperly sold real property contained in the estate without the Cameron County court’s approval. In making this contention, however, she does not cite to any portion of the record substantiating her claim. See Tex.R.App. P. 38.1(i). In signing the “Order Approving Account for Final Settlement,” the Cameron County court approved the sale of real property located at 1144 Camwood Place in Brownsville, with the proceeds of the sale intended “to pay any expenses or claims against [the] estate. Any funds left over will be distributed between the three heirs.” Jarvis does not point us to evidence in the record demonstrating that the real property located at 1185 Park-wood Place, which was awarded to her, was sold prior to the probating of Caroline’s will. In fact, a property search of the Cameron County Appraisal District’s database — a copy of the property search is included in the record — shows that Jarvis has 100% ownership of real property located at 1185 Parkwood Place in Brownsville, which undermines Jarvis’s contention that the property had been sold and she only possessed a virtually valueless warranty deed.

In light of the foregoing, we cannot say that the Cameron County court erred in signing the “Order Approving Inventory, Appraisement[,] and List of Claims.” Accordingly, we overrule Jarvis’s second and third issues.

IV. THE FINAL DISTRIBUTION OF THE ESTATE AND CAROLINE’S INTENT, AS EXPRESSED IN HER “LAST WILL AND TESTAMENT”

In her fourth issue, Jarvis asserts that the “Order Approving Account for Final Settlement” does not comport with Caroline’s intent, as expressed in her “Last Will and Testament,” which stated that each of the three heirs to the estate would receive equal shares of the estate. Specifically, Jarvis alleges that she received nothing of value from the estate and that Frank and John received property, including the Tennessee property, which purportedly has a “probable sale market values [sic] of greater than $4 [m]illion.” Frank and John respond that the trial court did not err in approving the final distribution because it resulted in each of the heirs receiving an equal share of the estate, which reconciled with Caroline’s intent, as expressed in her will.

In construing a will, the court’s focus is on the testator’s intent. San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex.2000). Determining a testator’s intent from the four corners of a will requires a careful examination of the words used. Id. If the will is unambiguous, a court should not go beyond specific terms in search of the testator’s intent. Id The testator’s intention must be ascertained by viewing the will in its entirety. Johnson v. McLaughlin, 840 S.W.2d 668, 672 (Tex.App.-Austin 1992, no pet.); Disabled Am. Veterans v. Mullin, 773 S.W.2d 408, 410 (Tex.App.-San Antonio 1989, no pet.). “ ‘If this [intent] can be ascertained from the language of the instrument [will], then any particular paragraph of the will which, considered alone, would indicate a contrary intent, must yield to the intention manifested by the whole instrument.’ ” Welch v. Straach, 531 S.W.2d 319, 321 (Tex.1975) (quoting McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412, 413 (1887)); Johnson, 840 S.W.2d at 672; Mullin, 773 S.W.2d at 410. Absent ambiguity, the construction of a will is a matter of law, which we review de novo. Armstrong v. Hixon, 206 S.W.3d 175, 180 (Tex.App.-Corpus Christi 2006, pet. denied); Penland v. Agnich, 940 S.W.2d 324, 326 (Tex.App.-Dallas 1997, writ denied). An ambiguity exists only when the will uses a word that is open to more than one meaning. Lang, 35 S.W.3d at 639; In re Estate of Hunt, 908 S.W.2d 483, 484-85 (Tex.App.-San Antonio 1995, writ denied). Further, “courts must not redraft wills to vary or add provisions ‘under the guise of construction of the language of the will’ to reach a presumed intent.” Lang, 35 S.W.3d at 639 (quoting Shriner’s Hosp. for Crippled Children of Tex. v. Stahl, 610 S.W.2d 147, 151 (Tex.1980)). We should only focus on the “meaning of the words she actually used.” Lang, 35 S.W.3d at 639.

Jarvis’s fourth issue focuses on the following provision from Caroline’s will:

III. DISPOSITION OF ESTATE
A. I give, devise[,] and bequeath all of the rest, residue!,] and remainder of my estate to my children, FRANK E. FEILD, JOHN (JACK) FEILD, and MARY FEILD JARVIS, in equal shares; provided, however, that if a child of mine shall not then survive me, but should leave issue then surviving me, such then surviving issue shall take, per stirpes, the share that such deceased child would have taken by surviving me, or if none if then living, then said share shall be distributed, in equal shares, to my then living children or their issue per stirpes, or if none of my descendants is then living, then said share shall be distributed as provided in the paragraph below.

(Emphasis in original). The clear and unambiguous language of Caroline’s will provides that each of the children — Frank, John, and Jarvis — shall equally share the remainder of Caroline’s estate upon her death, provided that each of the children survived Caroline, which was the case here. See id. The will also named Frank as executor of the estate. In his role as executor, Frank submitted an inventory and appraisal of the estate, which the trial court approved. In the inventory and appraisal, Frank stated that each of Caroline’s children should receive an equal share of the estate valued at $89,175. Jarvis, in particular, was awarded real property located at 1185 Parkwood Place in Brownsville, which, according to the appraisals contained in the record, is valued at $89,175. Despite Frank’s efforts, Jarvis sent letters to the Cameron County court objecting to her award of the real property located at 1185 Parkwood Place. Jarvis alleged that the property had been sold, and therefore, she was awarded property of no value. Despite this allegation, Jarvis does not direct us to evidence in the record demonstrating that the property she was awarded had indeed been sold.

Jarvis also objects to the market value appraisals obtained by Frank and approved of by the trial court. Specifically, she complained about the appraisal of the Tennessee property obtained from the Knox County appraisal district. She believed that if the Tennessee property was appraised by a licensed real estate expert, the property would be valued at approximately $2.2 million. The “Order Approving Account for Final Settlement” specifically states that the Cameron County court took judicial notice of Jarvis’s letter objecting to the valuation of the Tennessee property.

Nevertheless, the record does not contain any evidence conclusively demonstrating that the market value of the Tennessee property is more than $108,500. On appeal, Jarvis includes a May 80, 2010 listing from LoopNet.com, a website apparently specializing in valuing real property, demonstrating that the Tennessee property should be valued at $0 to $100,000 per acre. Using the larger number, Jarvis argues on appeal that the Tennessee property is valued at $9.7 million (97 acres multiplied by $100,000). This Loop-Net.com listing, however, is not included in the record and cannot be used to contradict the appraisal obtained from the Knox County appraisal district. See Gonzalez, 251 S.W.3d at 777 n. 17; Nguyen, 93 S.W.3d at 293; Till, 10 S.W.3d at 733-34. Furthermore, even if we were to. consider the LoopNet.com listing as formally included in the appellate record, this listing is not specific enough to indicate the precise value of the property. It states that the market value of agricultural property in the relevant part of Ténnessee ranges from $0 to $100,000 per acre between the years 2005 and 2009, meaning that the property at various points in time could have been worth between $0 and $9.7 million. Based on the record before us, we cannot say that the trial court erred in approving the valuation for the Tennessee property to be $108,500.

Because the record contains uncontra-dicted evidence that the market value of the Tennessee property is $108,500 and that Jarvis received unencumbered real property valued at $89,175, we cannot say that Jarvis has met her burden to demonstrate that the Cameron County court erred in approving the .distribution of Caroline’s estate. See Marlin v. Kelly, 678 S.W.2d 582, 586 (Tex.App.-Houston [14th Dist.] 1984), aff'd, 714 S.W.2d 303 (Tex.1986); see also In re Estate of Cook, Nos. 2-08-003-CV, 2-08-004-CV, 2009 WL 4114605, at *2-3, 2009 Tex.App. LEXIS 9094, at *6 (Tex.App.-Fort Worth Nov. 25, 2009, no pet.) (mem.op.) (“When ... a will is plain in its terms and unambiguous in its meaning as to the lawful intentions of the testator, it is a legal question for the court to interpret the will and carry out the testator’s wishes.”). Based' on our review of the record, it appears that each of the children received an equal $89,175 share of the estate and that such a distribution coincides with Caroline’s intent, as expressed in her “Last Will and Testament.” As a result, we overrule Jarvis’s fourth issue.

Y. CONCLUSION

We affirm the judgment of the .trial court.

      . In a later-filed affidavit, Frank stated that he is domiciled in Darien, Georgia, and that the other beneficiary under Caroline's will. Jarvis and Frank’s brother, co-appellee, John Shaw Feild, is domiciled in St. Petersburg, Florida.

      . According to Jarvis, the Tennessee property consists of ninety-seven acres of land.

      . John filed several letters with the trial court contesting Jarvis’s assessment of the situation. John alleged that Jarvis was estranged from the family and had depleted the value of much of the estate in the one year that she served as Caroline’s guardian. John also described the property that Jarvis was awarded as follows:
      The house located at 1185 Parkwood Place, Brownsville, Texas[,] was occupied and insured until Mary [Feild] Jarvis evicted Inez Salas and left the property to be vandalized. Over $8,000 in damages were done to the property. Frank E. Field [sic] secured the house, creating an asset rather than a liability. He sold it at an excellent price[,] which created an income for his sister. The note can be sold to a 3rd party if she so desires.
      With regard to the Tennessee properly, John stated that:
      The "Noncertified Appraisal” dated 2007 was not disclosed on the final account of Mary Field [sic] Jarvis and her figure of $2,200,000 makes a mockery of this court. In 2003, a neighbor offered $70,000. The topography of the property [is] almost straight up and down and it does not lend itself to development or even a 3-way division.... It was in our family in the 1800's[,] and it was Caroline’s intention that it remains as such.... If Mary Field [sic] Jarvis is not willing to accept the appraised value which, once again, she did not contest at the time of the final accounting, I recommend that she pay for her own independent and certified appraisal of the property at her own expense.

      . Apparently, Jarvis did not attend the February 23, 2010 hearing. Furthermore, the record does not contain a reporter’s record for the February 23, 2010 hearing, or any other hearing conducted in this matter. In her docketing statement filed with this Court, Jarvis represented that no reporter’s record was made for any of the hearings in this matter. This statement is dubious in light of the fact that counsel for appellees included an excerpt from the reporter's record from the February 23, 2010 hearing. Though we recognize that documents solely appearing in the appendix of an appellate brief are not part of the record and are generally not considered on appeal, see Till v. Thomas, 10 S.W.3d 730, 733-34 (Tex.App.-Houston [1st Dist.] 1999, no pet.), it is noteworthy that the transcript reflects that Jarvis was provided notice by appellees' counsel and by the trial court, and the trial court specifically noted that ”[s]he [Jarvis] knows that she was supposed to be here.” In addition, Jarvis admits in her reply brief that she received “an 'Order' titled 'Motion for Continuance’ from the Cameron County court, which said it [the final hearing] would be heard on February 23, 2010; however, it did not summon me to be present, state the nature of the hearing, nor provide any documents.”

      . Section six of the probate code, entitled "Venue for Probate of Wills and Administration of Estates of Decedents,” provided the following, in relevant part:
      Wills shall be admitted for probate, and letters testamentary or of administration shall be granted:
      (a) In the county where the deceased resided, if he had a domicile or fixed place of residence in this State.
      (b) If the deceased had no domicile or fixed place of residence in this State but died in this State, then either in the county where his principal property was at the time of his death, or in the county where he died.
      (c) If he had no domicile or fixed place of residence in this State, and died outside the limits of this State, then in any county in this State where his nearest of kin reside.
      (d) But if he had no kindred in this State, then in the county where his principal estate was situated at the time of his death....
      Tex. Prob.Code Ann. § 6 (Vernon 2003). Although much of the probate code was amended or repealed in 2009, section six remains in effect, though it is scheduled to be renumbered as section six in the Texas Estates Code on January 1, 2014. See Act of June 19, 2009, 81st Leg., R.S., ch. 680, § 2, 2009 Tex. Gen. Laws 1511, 1726 (current version at Tex. Prob. Code Ann. § 6).

      . We reject Frank and John’s waiver contention as it relates to appellant's notice of appeal. Texas Rule of Appellate Procedure 25.1(d) describes the required contents for a proper notice of appeal. Specifically, rule 25.1(d) provides that, among other things, the notice of appeal: (1) "identify the trial court and state the case’s trial court number and style”; (2) "state the date of the judgment or order appealed from”; (3) "state that the party desires to appeal”; (4) "state the court to which the appeal is taken and (5) "state the name of each parly filing the notice." Tex.R.App. P. 25.1(d). Rule 25.1(d) does not require Jarvis to clearly articulate her specific appellate arguments in her notice of appeal to prevent waiver. See id. Moreover, Frank and John have not cited any authority supporting their contention. Based on our review of the record, we conclude that Jarvis's notice of appeal complies with rule 25.1(d) and that she properly asserted her arguments in her appellate brief. See id.

      . It is also noteworthy that Jarvis did not file a special appearance in the Cameron County court challenging the Cameron County court’s personal and subject-matter jurisdiction. See Tex.R.App. P. 33.1; Anchia v. DaimlerChrysler AG, 230 S.W.3d 493, 500 n. 1 (Tex.App.Dallas 2007, pet. denied) (providing that special appearance issues not raised by an appellant to a trial court are generally waived on interlocutory appeal).

      . In Crowson v. Wakeham, the supreme court adopted the following test regarding the ap-pealability of probate orders:
      If there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory. For appellate purposes, it may be made final by a severance order, if it meets the severance criteria, as did the order in the present case_A severance order avoids ambiguities regarding whether the matter is ap-pealable. Litigants can and should seek a severance order either with the judgment disposing of one party or group or parties, or seek severance as quickly as practicable after the judgment.
      897 S.W.2d 779, 783 (Tex.1995).

      . The record reflects that the real property and the majority of Caroline’s personal property was appraised and listed in the inventory and appraisals document filed by Frank and approved by the Cameron County court. See Tex. Prob.Code Ann. § 248 (Vernon Supp.2010) (providing that the court shall appoint disinterested persons to appraise the property contained in the estate). Clearly, Jarvis is unhappy with what she considers low appraisals of the real property contained in the estate and seems to suggest that appraisals of the property should continue until she receives a valuation of the property to her liking. It appears that Jarvis also asserts that the Presidio County property should have been appraised; however, the record contains an appraisal of the property conducted by Bette Lu Rogers, a state licensed real estate appraiser.


author: SANDEE BRYAN MARION, Justice.

text:
    Mark CANTU, Appellant, v. GUERRA & MOORE, LTD., LLP., and Romero, Gonzalez & Benavides, LLP, Appellees.
    No. 04-08-00786-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 28, 2009.

      Juan Rocha, Jr., Robert Schell, Law Office of Mark A. Cantu, McAllen, TX, for Appellant.
    David J. Lumber, Guerra & Moore, Ltd., L.L.P., Ricardo G. Benavides, Romero, Gonzalez & Benavides, L.L.P., McAllen, TX, Alfonso H. Ornelas, Jr., Law Office of Alfonso H. Ornelas, Jr., P.C., Laredo, TX, for Appellee.
    Sitting: SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice and MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

SANDEE BRYAN MARION, Justice.

This is an appeal from a final judgment entered in favor of appellees, following a jury trial in a dispute between attorneys with competing claims to attorney’s fees. We reverse the directed verdict in favor of appellee, Romero, Gonzalez & Benavides, LLP; we reverse the award of costs against appellant, Mark Cantu; and we remand, in part, for further proceedings. We affirm the judgment in all other respects.

BACKGROUND

This suit over attorney’s fees has its origin in a product liability/wrongful death action arising from the September 2004 death of Santa Magdalena Gonzalez and from injuries to her brother, Zacarías Gonzalez. Zacarías originally retained the law firm of Guerra & Moore, Ltd., LLP (“Guerra”) in January 2005. Less than one month later, he terminated that representation and retained the Law Offices of Mark Cantu, which filed the product liability/wrongful death lawsuit on July 18, 2005. At this time, Glenn Romero, Juan Gonzalez, and Rick Benavides were associates at the Cantu law firm. In November 2006, Romero, Gonzalez, and Benavides left to form their own law firm, Romero, Gonzalez & Benavides, LLP (“RG & B”). Also in November 2006, the Gonzalez family terminated their representation with the Cantu firm and retained RG & B.

The Gonzalez family reached a settlement with the defendants in their product liability/wrongful death lawsuit in late 2006; however, while that suit was still pending, Guerra filed a plea in intervention asserting its right to forty percent of any recovery obtained by the Gonzalez family. On January 16, 2007, the Gonzalez family, represented by RG & B, filed a motion to remove Cantu as an attorney of record in the product liability/wrongful death suit. Cantu and RG & B eventually reached an agreement over how to allocate attorney’s fees and expenses following settlement of the product liability/wrongful death suit. On April 25, 2007, the trial court signed an agreed order (1) ordering RG & B to drop any and all interventions pending against Cantu in other lawsuits; (2) removing Cantu as an attorney from the lawsuit; (3) ordering the following division of attorney’s fees: (a) 56.5% to Cantu, (b) 10% to the Law Offices of Andres Reyes and Mario Castillo, and (c) 33.5% to RG & B; and (4) ordering that all reasonable costs and expenses incurred by Cantu be paid in full.

On May 14, 2007, Guerra filed an amended plea in intervention, alleging claims against Cantu for libel and tortious interference with the contract it had to represent the Gonzalez family. On May 24, 2007, the attorney’s fees allocated under the April 25, 2007 agreed order were deposited into the court’s registry. On June 26, 2007, the trial court signed an order (1) granting disbursal of damages to the Gonzalez family pursuant to the settlement of the product liability/wrongful death lawsuit, (2) ordering disbursal of attorney’s fees held in the court’s registry to RG & B and to the Law Offices of Andres Reyes and Mario Castillo, and (3) ordering that the fees awarded to Cantu remain in the court’s registry pending resolution of the intervention filed by Guerra.

On February 14, 2008, Cantu filed a third-party plaintiffs original petition, alleging claims for breach of fiduciary duty and fraud against RG & B. On February 15, 2008, Cantu filed a motion to recuse Judge Raul Vasquez on the grounds that he served as a mediator in the settlement that led to the April 25, 2007 agreed order. The motion to recuse was denied by the administrative judge. On April 21, 2008, RG & B filed its counter-suit against Cantu, alleging he breached the settlement that led to the April 25, 2007 agreed order and asking for rescission of that agreement. Trial before a jury commenced in April 2008. Following trial, the court signed a final judgment, ordering that (1) Guerra recover $1.6 million plus interest against Cantu, (2) Cantu was not entitled to any of the funds held in the court’s registry, (3) RG & B was solely entitled to the funds held in the court’s registry, and (4) Cantu’s contract with the Gonzalez family was illegal and void. Cantu’s motion for new trial was denied, and he filed this appeal.

STATUTE OF LIMITATIONS

In his first issue, Cantu asserts Guerra’s claims for tortious interference with both an existing contract and a prospective contract were barred by the statute of limitations. According to Cantu, Guerra’s tortious interference claim accrued on February 23, 2005 when Guerra was first notified by Zacarías Gonzalez that he was terminating representation with Guerra. Guerra filed its first plea in intervention on January 5, 2007, but did not name Cantu as a defendant until Guerra filed its amended plea on May 14, 2007. Therefore, Cantu concludes, Guerra’s claims against him are time-barred. See Tex. Civ. PraC. & Rem.Code Ann. § 16.003 (two-year limitations for interference with a contract) (Vernon Supp. 2008).

At trial, Guerra argued it did not discover Cantu’s tortious interference until May 2007. The jury was asked by what date Guerra should have, in the exercise of reasonable diligence, discovered Cantu’s interference with the contract, and it responded, “May 1, 2007.” On appeal, Cantu argues the evidence is insufficient to support this finding and he relies on a judicial admission by Guerra in its first supplemental plea in intervention in which it stated: “Exercising reasonable diligence, [Guerra] only learned of facts which would place [it] on notice of accrual of the slander and tortious interference .... causes of action in December 2006.” [Emphasis added.]

Facts alleged or admitted in a party’s live pleadings are accepted as true by the court and jury and are binding on the pleader. Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex.1983). However, a party relying on his opponent’s pleadings as a judicial admission of fact, must protect his record by objecting to the introduction of evidence contrary to that admission of fact and by objecting to the submission of any issue bearing on the fact admitted. Id. Failure to object waives a party’s right to rely on the admission. See id. at 768. At trial, Carlos Guerra, one of Guerra’s name partners, was asked when he first learned that “something might be amiss” and he answered as follows:

A. Well, the first time that we found out that Mark Cantu had gone to the clients and, in fact, dictated that letter and — and had Zac sign it and send it to us was in May of, I believe, 2000 — well, I can’t recall the year. Was it last year?
Q. '07?
A. I believe so. Yes. It was May of last year. We found out that Mr. Cantu had gone over there and— and badmouthed me.
[Cantu’s attorney]: Excuse me, Your honor.... That’s outside the pleadings. His comment.
[Trial court]: Objection overruled.

On appeal, Cantu does not assert the trial court erred in overruling his objection. Because the witness’s admitted testimony contradicted the statement contained in Guerra’s first supplemental plea in intervention, the jury was not obligated to accept the statement in the pleading as true.

Cantu also challenges the sufficiency of the evidence by asserting Guerra was aware of Cantu’s involvement in the Gonzalez family’s lawsuit in February 2005, which is when Zacarías sent his termination letter to Guerra. Therefore, Cantu argues that because Guerra knew about his involvement more than two years before Guerra added Cantu to its May 2007 amended plea in intervention, the discovery rule does not apply as a matter of law. Although Cantu argues February 2005 is the dispositive date, the jury determined Guerra discovered Cantu’s interference on May 1, 2007. Accordingly, we must address whether the evidence is factually sufficient to support this finding. In a hand-written letter dated February 23, 2005, Zacarías Gonzalez informed Guerra he no longer wanted Guerra to represent him, stating, “I have never met you all and asked [sic] that you not bother me or call me or I will go to the State bar and report you.” Carlos Guerra testified he assumed the family was still “very much hurting from what had happened,” and they did not want to “do anything.” Except to return the files to the family, Carlos said he did not contact the family after receiving the letter because the letter asked that he not do so. In May 2007, after the Gonzalez family retained RG & B, Carlos Guerra told Glenn Romero he wanted to speak with the family to find out more information about why they had terminated Guerra’s representation. A meeting was arranged at Guerra’s offices, and Carlos Guerra testified it was at this time that he learned Cantu had “badmouthed him.” Zacarías testified that, at the meeting, he explained how Cantu “took over the case.” Michael Moore, another of Guerra’s name partners, testified he did not know “anything was amiss” when his firm received the termination letter, and he assumed the Gonzalez family was not interested in pursuing the litigation. Moore agreed with Carlos that they could not contact the family based on the request not to do so. Moore said he learned about Cantu’s “bad acts” for the first time at the May 2007 meeting, at which time it became apparent the family’s “decision to terminate [Guerra] was not the result of — of grief, but it was the result of an influence by [Cantu].” We conclude the evidence is factually sufficient to support the jury’s finding that Guerra discovered Cantu’s interference on May 1, 2007; therefore, Guerra’s tortious interference claims are not time-barred.

TORTIOUS INTERFERENCE WITH A PROSPECTIVE CONTRACT

The jury found that Cantu “intentionally interfered with a reasonable probability that Guerra & Moore, Ltd., LLP would have entered into a contractual relationship with Julian Gonzalez [father of Santa Magdalena and Zacarías] by committing an unlawful act that was a substantial factor in preventing the relationship from occurring.” In his second issue, Cantu asserts the evidence is factually insufficient to support this finding. More specifically, Cantu argues the evidence is insufficient to support any finding that Julian Gonzalez would have signed a contract with Guerra. One of the elements of a claim for tortious interference with a prospective contract is that there must be a “reasonable probability” that the plaintiff would have entered into the prospective relationship or contract. Johnson v. Bay lor Univ., 188 S.W.3d 296, 304 (Tex.App.-Waco 2006, pet. denied). Because that is the only element specifically challenged on appeal, we do not consider the sufficiency of the evidence on the other elements of the claim. To establish this element, Guerra had to prove that more than mere negotiations occurred. Richardson-Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 475 (Tex.App.-Houston [1st Dist.] 2006, pet. denied). “Though it is not necessary to prove that the contract would have certainly been made but for the interference, that result must have been reasonably probable, considering all of the facts and circumstances attendant to the transaction.” Id. at 475-76.

Zacarías testified he was the one who hired the lawyer for the family and his father did not intend to retain a different lawyer. Zacarías said he had no plans to dismiss Guerra until the day Cantu appeared, uninvited, at his home and told Zacarías he could do a better job than Guerra. Zacarías said that, but for Cantu’s involvement, he would have continued to retain Guerra. Julian Gonzalez testified that after the death of his daughter and the injuries to his son he was upset and depressed, and he did not “even think about” hiring or looking for another lawyer. When asked whether he wanted a lawyer different from whomever Zacarías hired, Julian responded, “Whatever lawyer Zac got” and he “just went along with Zac.” We conclude that Julian’s testimony that he left the decision about who to retain to Zacarías, coupled with Zacarías’ testimony that he retained Guerra and would have continued to do so, was sufficient evidence to support the jury’s implied finding that there was a “reasonable probability” that Julian would have entered into a contract with Guerra.

EXCLUSION OF EVIDENCE

At trial, Cantu attempted to introduce into evidence a letter from Guerra to Zacarías, which Guerra sent when it returned the case files to Zacarías after he terminated Guerra’s representation. The trial court sustained objections to the letter, and, on appeal, Cantu asserts this ruling amounted to an abuse of discretion because the letter was relevant to show Guerra repudiated the contract with the Gonzalez family.

Zacarías terminated his representation with Guerra on February 23, 2005. On that same date, he and Julian each signed a representation agreement with Cantu. At trial, Cantu sought to admit a letter dated February 24, 2005 from Guerra to Zacarías, which stated as follows:

Dear Mr. Gonzalez, [sic] in response to your letter dated February 23rd, 2005, please be advised that we have closed our file. You may have a valid case or need to protect viable legal rights and remedies. Accordingly, we suggest that you contact another law firm or the Lawyer’s Referral Service in order to obtain another lawyer as soon as possible, if you desire to pursue this matter.
This letter confirms the fact that we have not advised you to take any specific actions concerning your legal matter. We have not advised you that you settle your legal matter and we have not acted as your attorneys in any way.....

[Emphasis added.]

At trial, Cantu argued the emphasized language was relevant to the issue of the damages sought by Guerra and to whether Guerra “repudiated” the existence of any contract with the Gonzalez family. On appeal, Cantu contends the trial court’s error in excluding the letter harmed him because the letter contradicts any allegation that he tortiously interfered with either an existing contract with Zacarías or a prospective contract with Julian. We disagree.

We review a trial court’s ruling on the admission or exclusion of evidence for an abuse of discretion. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.2001). Here, Zacarias signed a Contingent Fee Contract with Guerra, and then terminated the representation less than one month later. Guerra’s letter does nothing more that confirm that, in the short period of time of representation, the Guerra firm did not advise Zacarías “to take any specific actions concerning [his] legal matter,” did “not advise[] [Zacarias to] settle [the] legal matter,” and did “not act[ ] as [Zacarias’s] attorneys in any way.” We, therefore, conclude the letter is not relevant to show repudiation by Guerra of the Contingent Fee Contract. Accordingly, the trial court did not err in denying admission of the letter into evidence.

RESCISSION

After closing arguments, RG & B moved for a directed verdict on their “counterclaim for rescission” of the April 25, 2007 agreed order regarding the division of attorney’s fees. On appeal, Cantu argues the trial court erred in granting the directed verdict. We agree.

Rescission is an equitable remedy that extinguishes legally valid contracts that must be set aside because of fraud, mistake, or other reasons in order to avoid unjust enrichment. Martin v. Cadle Co., 133 S.W.3d 897, 903 (Tex.App.-Dallas 2004, pet. denied). Because rescission is a remedy and not an independent cause of action, RG & B had to first establish its right to a directed verdict on one or more of its claims against Cantu. A directed verdict is proper when: (1) the opponent’s pleadings are insufficient to support a judgment; (2) the evidence conclusively proves a fact that establishes a party’s right to judgment as a matter of law; or (3) the evidence offered on a cause of action is insufficient to raise an issue of fact. Rudolph v. ABC Pest Control, Inc., 763 S.W.2d 930, 932 (Tex.App.-San Antonio 1989, writ denied).

In its countersuit against Cantu, RG & B alleged claims for breach of contract and fraud. At trial, RG & B did not specifically request a directed verdict on these claims; instead, it argued it was entitled to rescission of the April 25, 2007 agreed order on the grounds that Cantu had breached the underlying settlement agreement. Because RG & B did not move for a directed verdict on its fraud claims, we narrow our review to whether RG & B was entitled to a directed verdict on its breach of contract claim.

Where an agreement can be given a definite legal meaning or interpretation, it is not ambiguous and the court will construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). An agreement is ambiguous only if it is reasonably susceptible to more than one interpretation. Id. Whether an agreement is ambiguous is a question of law for the court to decide by looking at the agreement as a whole in light of the circumstances present when the agreement was entered. Id. at 394. When an agreement contains an ambiguity, the granting of a directed verdict is improper because the interpretation of the instrument becomes a fact issue. See Coker, 650 S.W.2d at 394 (granting motion for summary judgment improper where ambiguity exists); see also Stinger v. Stewart & Stevenson Servs., Inc., 830 S.W.2d 715, 721 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (Draughn, J., dissenting) (granting directed verdict improper where ambiguity exists).

RG & B argued it was entitled to rescission of the settlement agreement because Cantu breached the settlement agreement by pursuing his claims for breach of fiduciary duty and fraud against RG & B. According to RG & B, the settlement agreement required all parties to release their respective claims. Cantu argues the agreement called only for RG & B to release its claims against him and the agreement did not require him to release any claims he might have against RG & B. With regard to any claims one party had, or may have, against another, the agreed order states as follows: “It is therefore ordered that law firm [RG & B] will drop any and all Interventions currently pending against Mark A. Cantu and/or his law firm with prejudice as soon as possible.” No similar language was addressed to any claims by Cantu against RG & B.

For the trial court to have granted RG & B a directed verdict on its breach of contract claim, the court was required to find either that the agreed order unambiguously required Cantu to drop any claims he had against RG & B, or that the agreed order contained an ambiguity on the parties’ intentions and the evidence established the parties intended, that all respective claims be dropped. Because the directed verdict was granted partially on issues of law, we must review the trial court’s decision on those issues for legal correctness. Cf. Callaway v. Overholt, 796 S.W.2d 828, 831-33 (Tex.App-Austin 1990, writ denied)(in directed verdict case, trial court’s interpretation of unambiguous contract provision upheld as a matter of law).

The agreed order contains no language directing Cantu to take, or not take, any action. Therefoi’e, we cannot conclude the agreed order unambiguously required Cantu to drop any claims he had against RG & B. If the trial court’s directed verdict was based on its determination that the agreed order contained an ambiguity, a directed verdict was improper because the interpretation of the parties’ settlement agreement became a fact issue for the jury to decide. Therefore, the directed verdict in favor of RG & B was improperly granted and must be reversed.

MOTION TO RECUSE

About three months before trial commenced, Cantu filed a motion to recuse Judge Vasquez, which was denied by Judge David Peeples. On appeal, Cantu asserts Judge Peeples erred in denying his motion. An appellant’s brief “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex.R.App. P. 38.1(f). Cantu’s record citations in his appellate brief are to the transcript of the trial on the merits and not to the transcript of the recusal hearing. Also, an appellant bears the burden to present an appellate court with a sufficient record showing reversible error. Tex. R.App. P. 35.3(b). The record on appeal does not contain a transcript of the recusal hearing. By failing to bring forth a sufficient record to show reversible error, Cantu has waived any right to complain of the alleged error on appeal. See Worthy v. Collagen Corp., 921 S.W.2d 711, 713 (Tex.App.-Dallas 1995) (holding same), aff'd, 967 S.W.2d 360 (Tex.1998). Even if he had not waived this issue, and even assuming Judge Peeples erred in denying Cantu’s motion to recuse Judge Vasquez, Cantu has not shown he was harmed. Judge Ender presided over the trial, granted the directed verdict in favor of RG & B, and awarded sanctions against Cantu. Judge Vasquez only presided over closing arguments and jury deliberations, he signed the final judgment after the jury returned its verdict against Cantu, and he signed the order denying Cantu’s motion for new trial. Because Judge Ender presided over the trial on the merits, Cantu cannot show harm on this record.

SANCTIONS

In his final issue, Cantu asserts the trial court erred in sanctioning him in the amount of $10,000 in favor of Guerra and $10,000 in favor of RG & B. On April 29, 2008, RG & B and Guerra moved for monetary sanctions based on Cantu’s repeated violations of the court’s rulings on a motion in limine. The trial court held the request for sanctions in abeyance pending the end of trial. On April 30, 2008, RG & B moved for death penalty sanctions, again based on Cantu’s conduct. Again, the court ruled to hold the request in abeyance. On May 1, 2008, RG & B and Guerra again asked that Cantu be sanctioned. This time the court granted the motions for sanctions, finding “a repeated course of conduct extremely egregious in its nature, apparently designed to occasion a mistrial” and actions “intentionally disrespectful and [which] appear to be in bad faith.... ” The court concluded that, despite repeatedly admonishing Cantu, “no amount of caution to the attorneys for [Cantu], or Mark Cantu himself, who has been acting as co-counsel, has had any effect.” The court awarded RG & B and Guerra each $10,000, but denied the request for death penalty sanctions.

Our review of the record reveals the trial court did not abuse its discretion in sanctioning Cantu. He repeatedly violated the limine order, as well as other rulings by the trial court, and he was repeatedly admonished by the court. Also, Cantu’s argument on appeal that certain matters that were the subject of the motion in limine should not have been excluded lacks merit. “Attorneys may not violate a court order even though they may believe the order is incorrect.” Vulcan Materials Co. v. Bowers, No. 04-04-00062-CV, 2004 WL 2997852, *3 (Tex.App.-San Antonio Dec. 29, 2004, pet. denied) (not designated for publication) (proper remedy is to appeal, “not to ignore a court’s legitimate exercise of its authority to rale on evidentiary matters”).

CONCLUSION

We reverse the directed verdict in favor of RG & B and remand RG & B’s claims against Cantu for further proceedings. The trial court’s judgment ordered that “[a]ll costs spent or incurred in this cause are adjudged against” Cantu. Because we reverse the directed verdict in favor of RG & B, such an award of costs may no longer be equitable and just. Therefore, we remand the award of costs against Cantu for reconsideration in light of our disposition on appeal. We affirm the trial court’s judgment in all other respects.

      . Moreover, even if the jury was bound by the admission that "[Guerra] only learned of facts which would place [it] on notice of accrual of the slander and tortious interference ... causes of action in December 2006,” Guerra added Cantu to the suit within two years of December 2006 when it filed its supplemental plea in intervention on May 14, 2007. See Trinity River Auth. v. URS Consultants, Inc.-Tx., 889 S.W.2d 259, 262 (Tex.1994) (stating general rale that a cause of action accrues as soon as defendant's wrongful act effects some injury; however, under discovery rule, cause of action is deemed not to accrue until the injury becomes discoverable).

      . On appeal, Cantu does not challenge the jury’s finding that he interfered with Guerra’s contract with Zacarías.

      . The parties do not cite to a settlement agreement and the record on appeal does not contain one. Therefore, our disposition of this issue rests on the language contained in the agreed order. "An agreed judgment has the same effect as any court judgment.” Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 422 (Tex.2000). "An agreed judgment should be construed in the same manner as a contract.” Id.