author: ANDERSON, Justice.

text:
    RP&R, INC., Appellant, v. Robert TERRITO, Jr. and Leanne Territo, Appellees.
    No. 14-00-00506-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 26, 2000.

      Jeffrey Robert Matthews, Toby C. Eas-ley, Houston, for appellants.
    Charles M. Jordan, Houston, Thomas W. McQuage, Galveston, for appellees.
    Panel consists of Justices ANDERSON, FOWLER and EDELMAN.
   OPINION

ANDERSON, Justice.

Appellant RP & R, Inc., (RP & R) filed this accelerated appeal from a temporary mandatory injunction requiring the corporation to continue issuing weekly paychecks to Robert Territo (Territo), one of the appellees. In two points of error, RP & R contends the trial court abused its discretion by (1) requiring RP & R to continue issuing paychecks to Territo, because Territo made no showing that irreparable injury would result absent an order for injunctive relief, and (2) excluding certain evidence offered by RP & R. We modify the injunction and affirm the order as modified.

I.

Factual and Procedural Background

RP & R is a Texas corporation. The president and secretary is David Scott Rankin and Territo is the vice-president. In addition, both Rankin and Territo own fifty percent of the common stock of the company. This case arises out of RP & R’s decision to terminate Territo for engaging in the misappropriation of corporate funds, conversion of corporate property and the breach of a fiduciary duty. RP & R filed suit against the Territos alleging they had engaged in the misappropriation of corporate funds and the conversion of corporate property.

On April 6, 2000, Territo filed a counterclaim asserting that RP & R wrongfully terminated his employment and excluded him from the corporation. As part of the counterclaim, Territo requested a temporary restraining order, temporary injunction, and permanent injunction. Specifically, the petition for the temporary restraining order asked the trial court to: (1) restrain the sale or transfer of ownership of company assets; (2) preserve corporate records; and (3) allow Territo access to the company books and records pending a final trial on the merits. Territo’s petition, however, never requested that the trial court compel RP & R to issue weekly paychecks to him.

A hearing on the temporary restraining order was held on April 7, 2000. At the hearing, under the trial court’s directive, the parties agreed to recess and determine if they could come to an equitable agreement. The parties abandoned the request for a temporary restraining order and agreed to have the trial court issue a temporary injunction to avoid a later hearing. The parties agreed to be bound by all the relief sought by Territo under the petition for temporary restraining order. RP & R did not agree, however, to Territo’s request that the trial court order the company to continue to issue weekly paychecks to Territo. Territo did not appear at the April 7, 2000 hearing.

Subsequently, and before considering any testimony or evidence from RP & R, the trial court ruled in favor of Territo. RP & R immediately objected to the ruling and under a bill of exception, introduced documentary and testimonial evidence supporting the company’s reasons for terminating Territo. It is the company’s position that weekly paychecks are issued only to employees of the company. Thus, it is argued, Territo’s termination disqualifies him from receiving a weekly paycheck. The company filed this appeal challenging only that portion of the temporary injunction order mandating that RP & R continue issuing weekly paychecks to Territo.

II.

Waiver

Appellees attempt to dispose of this appeal by arguing that RP & R agreed, to the temporary injunction, thus waiving all right to complain on appeal of an action taken by the trial court which they invited, agreed to, or induced. See Ayala v. Minniti, 714 S.W.2d 452, 456-57 (Tex.App.— Houston [1st Dist.] 1986, no writ). We disagree. No agreement between attorneys or parties touching any pending suit will be enforced unless it is in writing, signed by the parties and filed with the court, or the contents of the agreement are announced in open court and entered in the record. See Tex.R.Civ.P. 11.

In the instant case, the parties, at the request of the trial court, attempted to reach an agreement regarding the temporary injunction. The record reflects that after a short recess, the parties agreed to permit the trial court to issue a temporary injunction providing for all of the relief sought by Territo in his petition. During the recess, however, Territo requested that he continue to receive a weekly paycheck, even though such relief was not pleaded. RP & R never agreed to that request. Nevertheless, the trial court announced it would order that Territo continue receiving a weekly paycheck. RP & R objected immediately following the court’s oral decision to grant the temporary injunction, which included the mandatory order to issue the weekly paychecks. Because RP & R objected to entry of an injunction requiring payroll payments to Territo, RP & R may complain on appeal about the mandatory provision of the temporary injunction. See Tex.R.App.P. 33.1.

III.

Temporary Injunctions

There are two general types of temporary injunctions: prohibitive and mandatory. A prohibitive injunction forbids conduct, whereas a mandatory injunction requires it. See LeFaucheur v. Williams, 807 S.W.2d 20, 22 (Tex.App.— Austin 1991, no writ); Cartwright v. Warren, 177 S.W. 197, 199 (Tex.Civ.App. — Dallas 1915, no writ). The temporary injunction in this case is mandatory because it requires RP & R to pay weekly paychecks to appellee. See Universal Health Services, Inc. v. Thompson, 24 S.W.3d 570, 576 (Tex.App. — Austin 2000, no pet.).

The trial court has broad discretion to determine whether to issue a temporary mandatory injunction, and we may reverse the decision only if the court clearly abused its discretion. See LeFaucheur, 807 S.W.2d at 22; accord Derebery v. Two-Way Water Supply Corp., 590 S.W.2d 647, 649 (Tex.Civ.App.—Dallas 1979, writ ref'd n.r.e.). If the original petition alleges a cause of action and the party seeking the injunction presents evidence tending to sustain that cause of action, there is no abuse of discretion by the trial court in issuing the temporary injunction. Biodynamics, Inc. v. Guest, 817 S.W.2d 128, 130 (Tex.App.—Houston [14th Dist.] 1991, writ dismissed). A trial court, however, abuses its discretion if it acts without reference to any guiding rules or principals. See LeFaucheur, 807 S.W.2d at 22; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). On appeal, we only review whether the trial court clearly abused its discretion in making the determination to issue the temporary mandatory injunction. See Boatman v. Lites, 888 S.W.2d 90, 92 (Tex.App.—Tyler 1994, writ denied). We cannot reverse a trial court’s order if the trial court was presented with conflicting evidence and the record includes evidence that reasonably supports the trial court’s decision. See Universal Health Services, 24 S.W.3d at 576.

The purpose of a temporary injunction is to preserve the status quo pending a trial on the merits. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993). Thus, an applicant for a temporary injunction must show he has no adequate remedy at law, and therefore is entitled to preservation of the status quo. See LeFaucheur, 807 S.W.2d at 22; Bagley v. Higginbotham, 353 S.W.2d 868, 869 (Tex. Civ.App. — Beaumont 1962, writ ref'd n.r.e.). However, the issuance of a temporary mandatory injunction is proper only if a mandatory order is necessary to prevent irreparable injury or extreme hardship. See LeFaucheur, 807 S.W.2d at 22. A trial court has the power to grant a mandatory injunction at a hearing for a temporary injunction only where the circumstances justify it. See Rhodia, Inc. v. Harris County, 470 S.W.2d 415, 419 (Tex.Civ. App. — Houston [1st Dist.] 1971, no writ). The law is well settled that a trial court abuses its discretion in granting a temporary injunction unless it is clearly established by the facts that one seeking such relief is threatened with an actual irreparable injury if the injunction is not granted. See Mother and Unborn Baby Care v. Doe, 689 S.W.2d 336, 338 (Tex.App. — Fort Worth 1985, writ dism’d). While granting a mandatory injunction is within the sound discretion of the trial court, the grant should be denied absent a clear and compelling presentation of extreme necessity or hardship. See Rhodia, 470 S.W.2d at 419.

IV.

No Showing Supporting Mandatory Injunction

The trial court entered a temporary mandatory injunction in this case requiring, among other things, that RP & R make weekly payments to Territo. A temporary mandatory injunction changes the status quo and should be granted only in a case of extreme hardship. See Haynie v.Gen. Leasing Co., Inc., 538 S.W.2d 244, 245 (Tex.Civ.App. — Dallas 1976, no writ). Pleadings alone will not support the entry of a temporary injunction. See Markel v. World Flight, Inc. 938 S.W.2d 74, 79 (Tex.App. — San Antonio 1996, no writ) (holding that pleadings alone will not support entry of a temporary injunction where record contains absolutely no testimony or any type of evidence to prove imminent or irreparable harm). This is particularly true here where Territo’s petition requesting injunctive relief fails to plead for mandatory relief involving resumption of his paychecks, or provide detailed facts supporting irreparable injury or extreme hardship in the absence of such payments.

As noted above, Territo did not appear at the temporary injunction hearing. Thus, the record before this court contains no testimony supporting the trial court’s mandate that RP & R pay Territo $1,640.00 per week because there was no evidence before the trial court showing Territo would sustain irreparable injury or suffer extreme hardship in the absence of a weekly paycheck. Indeed, he could not make this showing because any injury to Territo from the loss of the weekly paycheck can be accurately measured by determining the number of weeks during which payment was withheld, thus failing to qualify as an irreparable injury. Accordingly, we hold the trial court abused its discretion in granting a temporary mandatory injunction providing for such unsupported relief. See Haynie, 538 S.W.2d at 245 (holding trial court erred in granting temporary mandatory injunction where record revealed petitioner failed to plead or prove irreparable injury or lack of an adequate remedy at law).

V.

No Showing Supporting A Temporary Injunction

We recognize that trial courts may issue temporary injunctions to preserve the status quo. Indeed, the Territos contend the trial court did no more than that by requiring RP & R to continue issuing paychecks to Territo.

As we have stated, the purpose of a temporary injunction is to preserve the status quo of the subject matter of the suit pending final trial of the case on the merits. See Biodynamics, 817 S.W.2d at 130. Even if the provisions in the Order mandating weekly paychecks are viewed as part of a general, as opposed to a mandatory injunction, the record is still inadequate to support that relief because there is no evidence in the record that Territo’s receipt of his paycheck constituted the status quo. The status quo is the last actual, peaceable, noncontested status which preceded the pending controversy. See Texas Pet Foods, Inc. v. State, 529 S.W.2d 820, 829 (Tex.Civ.App. — Waco 1975, writ ref'd n.r.e.). Moreover, where the injunctive relief granted exceeds the relief requested by the applicant in the petition, the trial court exceeds its jurisdiction. See Fairfield v. Stonehenge Ass’n Co., 678 S.W.2d 608, 611 (Tex.App. — Houston [14th Dist.] 1984, no writ). Because there was no evidence before the trial court of what constituted the status quo that Territo sought to preserve, and inasmuch as Territo failed to specifically request in his pleading that the trial court order RP & R to resume paying him weekly, the trial court was without authority to order the issuance of paychecks to Territo. See Fairfield, 678 S.W.2d at 611 (holding trial court exceeded its jurisdiction by entering injunction precluding home building company from selling homes where applicant’s petition for injunctive relief did not specifically request trial court to enjoin the sale of homes).

VI.

Conclusion

For the reasons set forth above, we sustain RP & R’s first point of error. Based on our holding on that point of error, we need not reach appellant’s second point of error regarding the trial court’s exclusion of certain evidence.

Accordingly, we modify the temporary mandatory injunction by deleting both provisions requiring RP & R to tender weekly paychecks to Territo, and as so modified we affirm the remainder of the trial court’s April 18, 2000, Order.

      . The trial court signed the Temporary Injunction Order on April 18, 2000. The Order requires in one paragraph that Territo and two other employees are to continue receiving equal weekly salaries, and, in another paragraph, specifically orders RP & R to pay Territo a weekly salary of $1,600. During oral argument, counsel for RP & R stated appellant is objecting to both paragraphs in the Order requiring payment to Territo.

      . An irreparable injury is an injury for which the injured party cannot be adequately compensated, or one for which the damages cannot be measured by any certain pecuniary standard. See Texas Indus. Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529, 533 (Tex.App. — Houston [1st Dist.] 1992, no writ).

      . Generally, the preservation of the status quo can be accomplished by an injunction in form, but it sometimes happens that the status quo is a condition not of rest, but of action, and the condition of rest is exactly what will inflict the irreparable injury on complainant. In such a case, courts of equity issue mandatory writs before the case is heard on the merits. This character of cases has been repeatedly held to constitute an exception to the general rule that temporary injunction may not be resorted to to [sic] obtain all relief sought in the main action; such temporary injunction may be mandatory in character. Rhodia v. Harris, 470 S.W.2d at 419-420; see also McMurrey Refining Co. v. State, 149 S.W.2d 276, 279 (Tex.Civ.App. — Austin 1941, writ ref'd)(holding that petition was sufficient to support temporary mandatory injunction after notice and hearing; but was not sufficient to warrant such injunction where there was no allegation of fact supporting irreparable injury or extreme hardship).

      . See supra, note 2.


source: Caselaw Access Project

author: HUDSON, Justice.

license: Public Domain

text:
    GRAMERCY INSURANCE CO., Appellant, v. ARCADIA FINANCIAL LTD., Appellee.
    No. 14-99-00373-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 26, 2000.
    Rehearing Overruled Dec. 7, 2000.

      George Dennis Sullivan, William 0. Hol-ston, Dallas, for appellants.
    Donald L. Turbyfill, Houston, for appel-lees.
    Panel consists of Chief Justice MURPHY and Justices HUDSON and WITTIG.
   OPINION

HUDSON, Justice.

Gramerey Insurance Co. appeals from a judgment granted in favor of Arcadia Financial Ltd. in Arcadia’s suit seeking recovery under a statutory motor-vehicle dealer bond. Arcadia also appeals from the trial court’s failure to grant its request for attorney fees. We have determined that a portion of Arcadia’s claim was based on the failure to deliver good title, that a portion was not based on such a failure, and that Arcadia’s complaint about attorney’s fees is moot. We, therefore, reverse and render in part and reverse and remand in part for further proceedings in accordance with this opinion.

Background

The relevant facts are not disputed. Arcadia was a financing company that helped finance car purchases for customers of First Financial-Fleet Lease Corp., a used-car dealer. Customers would enter into retail installment contracts with First Financial, called customer obligations. First Financial, in turn, would assign the contracts to Arcadia. In exchange for the assignment, Arcadia would compensate First Financial according to the terms of a Master Dealer Agreement between the First Financial and Arcadia.

Pursuant to the Master Dealer Agreement, however, under certain circumstances, Arcadia could require First Financial to repurchase installment contracts. Arcadia could require First Financial to repurchase a contract (1) where the car buyer defaulted; (2) where the car buyer could assert a valid claim or defense against Arcadia that the buyer could also assert against First Financial; (3) where First Financial did anything to affect the enforceability of the contract; or (4) where any warranty made by First Financial proved to be untrue. Among First Financial’s warranties was a warranty that the contract evidenced a valid first lien or security interest on the car and that the lien or interest had been perfected in Arcadia’s name.

At issue are two contracts First Financial assigned to Arcadia — the Dovai/Wash-ington contract and the Bratton contract. As for the Dovai contract, First Financial sold a car to Odell Dovai, also known as Odell Washington, and then assigned the contract to Arcadia. Subsequently, Dovai sued First Financial for fraud and violations of the Deceptive Trade Practices Act, alleging that First Financial had sold the car with an altered odometer. Dovai was successful in his suit against First Financial and subsequently refused to make payments on the contract held by Arcadia. When Arcadia asked First Financial to repurchase the contract, it refused.

As to the Bratton contract, the Brattons purchased a car from First Financial for approximately $19,300, using a combination of cash, trade-in, and an installment contract. Although First Financial assigned the contract to Arcadia, it failed to deliver the certificate of title to the Brat-tons. After the Brattons complained to Arcadia of this failure, Arcadia received a letter from BMW Preventive Maintenance demanding payment of $16,147 owed to BMW by First Financial for its acquisition of the Bratton vehicle. Arcadia paid BMW $16,000, obtained clear title, and registered the title in the Brattons’ name. The Brattons ultimately paid off the contract held by Arcadia. Arcadia nevertheless asked First Financial to repurchase the Bratton contract. First Financial refused.

After First Financial refused to repurchase either the Dovai or the Bratton contracts, Arcadia sued First Financial for its failure to repurchase the contracts and received a default judgment in the amount of $27,076.46 in principal, together with $1,250 in attorney fees and post-judgment interest at the rate of 10% from the date of the signing of the judgment until paid.

As a motor vehicle dealer, First Financial was required by statute to obtain a $25,000 surety bond from an approved surety to guarantee (1) its payment of all valid bank drafts drawn by it to buy motor vehicles and (2) the delivery of good title for all motor vehicles sold by it. See Tex. Trans.Code Ann. § 503.033 (Vernon 1999). Thus, once it had obtained its default judgment, Arcadia advised First Financial’s surety, Gramercy Insurance Co., of the judgment and demanded payment under the provisions of section 503.033 of the Transportation Code. When Gramercy refused, Arcadia filed suit against Gramercy, relying on the default judgment Arcadia had received against First Financial in connection with the Dovai and Bratton contracts. After a bench trial, the court entered judgnent in favor of Arcadia, awarding to it $33,236.37, as well as post-judgment interest. The court denied Arcadia’s request for attorney fees.

Bond

In its first issue, Gramercy questions whether it is liable to Arcadia pursuant to section 503.033 of the Transportation Code. Under this provision of the code, recovery may be made against the surety for the amount (1) of the bank draft drawn by the dealer to purchase the vehicle or (2) paid to the dealer for a vehicle for which the dealer was unable to deliver good title. See id. Here, Gramercy contends Arcadia’s judgment does not arise pursuant to the statute, but from a violation of the Master Dealer Agreement, namely, First Financial’s failure to repurchase the installment contracts.

In a related issue, Gramercy claims the judgment should be reversed because its liability was not based on a statutory condition, but rather upon (1) damages resulting from First Financial’s failure to transfer good title to two motor vehicles in which Arcadia had only a security interest; (2) implied terms or conditions of the Master Dealer Agreement to require the dealer to transfer title to the motor vehicles to Arcadia; (3) a breach of the Master Dealer Agreement, namely, the failure to record a lien; and (4) damages relating to an act not specified or covered by the statute or the bond.

Statutory construction is a question of law which we review de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). When interpreting a statute, we try to give effect to legislative intent. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999). We look first to the plain and common meanings of the statute’s words. See id. If the meaning of the statutory language is unambiguous, we adopt, with few exceptions, the interpretation supported by the plain meaning of the provision’s words and terms. See id.

A licensed car dealer must have a $25,000 security bond conditioned on the payment by the dealer of all valid bank drafts, including checks, drawn by the dealer to buy motor vehicles and the transfer by the dealer of good title to each motor vehicle the dealer offers for sale. See Tex.TRansp.Code Ann. § 503.033(a), (b)(2) (Vernon 1999). A “person” may recover against a surety bond if the person obtains against a dealer a “judgment assessing damages and reasonable attorney fees based on an act or omission on which the bond is conditioned.” See Tex.TRANS. Code Ann. § 503.033(d) (Vernon 1999) (emphasis added). When a bond is statutorily mandated, the statute is necessarily part of the bond and, thus, controlling. See Geters v. Eagle Ins. Co., 834 S.W.2d 49, 50 (Tex.1992). The liability imposed on a surety is limited to the amount of the valid bank drafts, including checks, drawn by the dealer to buy motor vehicles or paid to the dealer for a motor vehicle for which the dealer did not deliver good title and attorney fees that are incurred in the recovery of the judgment and that are reasonable in relation to the work performed. See Tex.TRans.Code Ann. § 503.033(e) (Vernon 1999). The $25,000 bond issued by Gramercy tracked the statutory language.

Bratton Contract

Gramercy contends it is not hable on the “Bratton contract” because the statute was intended to protect only consumers. Thus, only a consumer, or individual to whom good title was to be delivered, has standing to bring a claim under the statute. In a related argument, Gramercy claims its liability is limited by statute to the amount paid to the dealer for a motor vehicle for which the dealer failed to deliver good title. Gramercy asserts there is no evidence Arcadia paid anything to First Financial for the motor vehicle in question; rather, Arcadia purchased an installment contract, not a motor vehicle. Thus, Gramery argues that Arcadia is, at most, a hen-holder and cannot recover under the statute.

The statute provides that any “person” may recover against a surety bond if that person obtains a judgment against a dealer assessing damages and reasonable attorney fees “based on an act or omission on which the bond is conditioned.” See id. Whether such persons must also have directly purchased vehicles from dealers appears to be a question of first impression.

The Utah Supreme Court, however, has construed a similar auto-dealer bonding statute. See Lawrence v. Ward, 5 Utah 2d 257, 300 P.2d 619, 621 (1956). The Utah statute gave a right of action against a motor-vehicle dealer and its surety to “any person” who suffered “any loss or damage by reason of fraud, fraudulent representation or violation of any of the provisions” of the bonding act. Id. The bonding company argued, as Gramercy does here, that the act protected only consumers, not financing companies doing business with the dealer. The bonding company reasoned that consumers, who are arguably less sophisticated than a dealer in vehicle-related matters, might need greater protection. An experienced financing company, however, would need no such protection. See id. The court rejected the argument, determining that the statute was intended to protect “all persons” doing business with a motor-vehicle dealer. See id. at 622.

Likewise, we find that section 503.033 is not facially limited to consumers in its application. Moreover, while the statute limits the surety’s liability to the “amount ... paid to the dealer for a motor vehicle for which the dealer did not deliver good title,” the statute does not require that the person who obtained the judgment against the dealer be the same person who paid the dealer for delivery of good title, i.e., the consumer. See Tex. Trans.Code Ann. § 503.033(e) (Vernon 1999). The Legislature enacted the surety liability cap after the decision in Geters, where a surety was found hable for more than rescission damages arising from the , principal’s actions. See Geters, 834 S.W.2d at 49-50. Thus, the liability limitation was added to prevent the surety from being held liable for consequential damages. Nothing in the statute’s language limits the statute’s application to the direct consumer or purchaser of the vehicle.

Here, the record shows the Brattons paid approximately $19,300 for their car, using a combination of cash, trade-in, and debt. When the Brattons failed to get the certificate of title from First Financial, Arcadia intervened, paid $16,000 to BMW to clear the title, and transferred the title to the Brattons. Thereafter, Arcadia sought $16,000 from the surety for its claim on a judgment “based on” First Financial’s failure to deliver good title. While Arcadia paid the $16,000 to clear title on behalf of the Brattons, we find it is nevertheless protected by the statute.

It is common knowledge that car buyers do not ordinarily purchase vehicles with cash, but with a combination of cash, trade-in, and debt. The Legislature has authorized buyers to recover rescission damages for a dealer’s failure to deliver good title. We surmise the Legislature also intended that other parties be permitted to recover against the bond when they seek to clear title on behalf of the buyer. Had the Legislature wished to limit bond claimants to consumers or motor-vehicle purchasers, it could have expressly done so. Accordingly, we do not construe the statute to limit its protection only to consumers.

Gramercy further contends that Arcadia’s claims against First Financial are for breach of the Master Dealer Agreement and that such breach-of-contract claims will not support a claim against the surety bond. It asserts that a claim against a bond must be conditioned only upon failure to pay checks or drafts or failure to deliver good title. See Tex. TRAns.Code Ann. § 503.038(b) (Vernon 1999).

Although Arcadia sued First Financial for breach of the dealer agreement (technically for failing to repurchase the installment contract), the record demonstrates the substance of Arcadia’s complaint against First Financial was its failure to deliver good title to the Brattons. The statute permits a claim against a surety that is “based on” failure to deliver good title. See Tex.Trans.Code Ann. § 503.033(d) (Vernon 1999). A claim against a dealership for breach of contract, where failure to deliver good title constitutes the breach, will support a claim against the surety for the dealer’s failure to deliver good title. See Geters, 834 S.W.2d at 49. Thus, we find Arcadia’s default judgment from its breach-of-contract suit against the dealer and the trial proof showing that the dealer failed to deliver good title will support a claim against the surety.

Finally, Gramercy argues that the proof and pleadings supporting the default judgment against the dealer do not show that the default judgment was “based on” failure to deliver good title. A judgment obtained against a principal creates only a prima facie case for liability against the surety who was not made a party or given an opportunity to defend the suit in which the judgment was obtained. See Browne v. French, 3 Tex.Civ.App. 445, 452, 22 S.W. 581, 583-84 (1893). The surety, when sought to be made liable by the judgment creditor, may interpose any valid defense that could have defeated the plaintiffs case at the time the initial judgment was obtained. See id. at 584. See also Howze v. Surety Corp. of Am., 564 S.W.2d 834, 838 (Tex.Civ.App. — Austin 1978), rev’d on other grounds, 584 S.W.2d 263 (Tex.1979).

Here, as to the Bratton contract, the default judgment against the dealer is supported by the affidavit of T.R. Dickerson, Arcadia’s custodian of records, in which he avers that the dealer owed Arcadia the “sum of $16,000 as and for the loss to Arcadia due to a compromise or settlement necessary to obtain clear title to the Bratton Vehicle.” (emphasis added.) We find the default judgment constitutes pri-ma facie proof of Gramercy’s liability under the bond. At trial on its bond liability, Gramercy was entitled to assert any available defense. The proof developed at trial shows that Arcadia’s default judgment against First Financial and Arcadia’s claim against the bond were “based on” First Financial’s failure to deliver good title to the Brattons. Thus the proof from the default judgment and the surety’s trial supports Arcadia’s bond claims as to the Bratton contract.

Accordingly, we find under the facts presented here that Arcadia was entitled to make a claim of $16,000, plus attorney fees, against Gramercy on the basis of its default judgment against First Financial where the judgment was based on a breach-of-contract suit for failure to deliver good title to the Brattons.

Dovai Contract

Dovai sued First Financial for violation of the Deceptive Trade Practices Act, alleging it sold a motor vehicle with an altered odometer. Arcadia contends, however, that the core of its Dovai complaint is First Financial’s failure to deliver good title. It claims the Transportation Code requires a dealer to provide the buyer a written disclosure of the vehicle’s odometer reading at the time of sale. See Tex.Teans.Code Ann. § 501.072 (Vernon 1999). The code provides that a sale made in violation this provision is void and title does not pass until the requirements of the chapter are met. See Tex.TRAnsp.Code Ann. § 501.073 (Vernon 1999). Thus, Arcadia urges us to hold that because (1) an accurate milage disclosure is required and (2) First Financial misrepresented the mi-lage on the Dovai vehicle, good title did not pass and Dovai’s complaint is one of failure to deliver good title.

The legislative intent of the Certificate of Title Act was to lessen and prevent theft of motor vehicles, traffic in stolen vehicles, and sale of encumbered vehicles without disclosure of existing liens, not to prevent sales and transfers of interest in motor vehicles. See Cash v. Lebowitz, 734 S.W.2d 396, 398 (Tex.App.— Dallas 1987, writ ref'd n.r.e.). Non-compliance with the act does not override the clear showing of a valid and complete transfer of ownership of an automobile. See Najarian v. David Taylor Cadillac, 705 S.W.2d 809, 812 (Tex.App. — Houston [1st Dist.] 1986, no writ). Even in the face of non-compliance, the sale of a vehicle without the transfer of a title certificate is valid “as between the parties, when the purposes of the Certificate of Title Act are not defeated, although the Act declares that the non-transfer of such certificates renders the sale void.” Phil Phillips Ford, Inc. v. St. Paul Fire & Marine Ins. Co., 465 S.W.2d 933, 937 (Tex.1971).

Here, the purpose of the act is not fulfilled by finding that First Financial failed to deliver good title to Dovai. The substance of Dovai’s complaint against the dealer was not failure to deliver good title, but fraud and violation of the Deceptive Trade Practices Act for selling a vehicle with an altered odometer. Moreover, the record fails to show that Arcadia’s judgment against First Financial was “based on” a statutory condition, that is, failure to honor a draft or check or failure to deliver good title. Thus, the Dovai portion of the default judgment against the dealer will not support a claim against Gramercy. Accordingly, the trial court erred by granting judgment to Arcadia in connection with the contract.

We therefore reverse that portion of the judgment relating to the Dovai contract and render that Arcadia take nothing in that regard. While we find that Gramercy may be liable under the Bratton contract, when liability is contested, we may not reverse and remand solely on the issue of unliquidated damages. See Tex.R.App.P. 44.1(b); Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 669 (Tex.1996). We must, therefore, reverse the trial court’s judgment in connection with the Bratton contract and remand for further proceedings in accordance with this opinion. We sustain Gramercy’s first and second issues in part.

Damages in Excess of Bond Amount

The trial court granted Arcadia judgment in the amount of $33,236 .37 and post-judgment interest at the rate of 10% from the date of judgment until paid. In its third issue, Gramercy contends the judgment should be reversed or modified because section 503.003(f) of the Transportation Code limits its liability to $25,000, the face value of the bond.

We have found error in the judgment relating to the Dovai contract. On remand, a subsequent damage award, if any, relating to the Bratton contract, plus attorney fees, may fall below the face value of the bond. Accordingly, we overrule Gram-ercy’s third issue as moot.

Attorney Fees

The trial court denied Arcadia’s request for attorney fees in connection with its suit against Gramercy on the motor-vehicle dealer bond. In a single cross-point, Arcadia contends the trial court erred. As to the Dovai contract, Gramercy was not liable on the bond. The trial court, therefore, did not err in denying attorney fees with respect to the Dovai contract. As to the Bratton contract, we are remanding both the issues of liability and damages to the trial court. Accordingly, the question of attorney fees as to that portion of the judgment is moot. We overrule Arcadia’s crosspoint.

Conclusion

We sustain Gramercy’s first and second appellate issues in part, overrule the third issue as moot, and overrule Arcadia’s crosspoint regarding attorney fees. With regard to the Dovai contract, we reverse the judgment of the court below and render judgment in favor of Gramercy. With regard to the Bratton contract, the trial court did not err in finding Gramercy liable, but because we may not remand on the issue of damages alone, we reverse and remand that portion of the judgment for further proceedings in accordance with this opinion.

      . The bond provided as follows:
      THE CONDITION OF THIS OBLIGATION is such that if, during the effective period of this obligation, the Principal [1st Financial] shall pay all valid bank drafts, including checks, drawn by the Principal for the purchase of motor vehicles and transfer good title to each motor vehicle that the Principal purports to sell, then this obligation shall be void; otherwise to remain in full force and effect.

      . The term "person” includes corporations. See Tex.Gov’t Code Ann. § 311.005(2) (Vernon 1998).


author:
BILL CANNON, Justice
      ROSS A. SEARS, Justice

text:
    Brian Steven PREJEAN, Appellant, v. The STATE of Texas, Appellee.
    No. 14-97-00223-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 26, 2000.
    Dissenting Opinion of Justice Ross A. Sears, Nov. 16, 2000.

      Don D. Becker, Houston, for appellants.
    S. Elaine Roch, Houston, for appellees.
    Panel consists of Justices SEARS, CANNON and HUTSON-DUNN.

       Senior Justices Ross A. Sears, Bill Cannon, and D. Camille Hutson-Dunn sitting by assignment.

   MAJORITY OPINION

BILL CANNON, Justice

(Assigned).

Appellant, Brian Steven Prejean, was found guilty of aggravated assault and sentenced to ten years’ confinement in the Texas Department of Criminal Justice, Institutional Division. He presents one point of error on appeal, complaining of ineffective assistance of counsel during the guilt-innocence phase. We affirm.

Appellant’s complaint concerns his counsel’s failure to object to statements made by the trial court during guilt-innocence jury deliberations, and discussion of the underlying facts of the offense is not necessary. Suffice it to say, appellant was accused of pointing a gun at the complainant and threatening to shoot him over an incident regarding rottweiler dogs.

Immediately before and shortly after the jury retired to deliberate during the guilt-innocence phase of trial, the jury foreman and the trial judge exchanged written and in-court oral communications, the effect of which informed the jury that it was being sequestered overnight as appellant opposed separation of the jury. The jury reconvened at 9:00 a.m. the next morning and returned a verdict of guilty less than thirty minutes later. On appeal, appellant raises ineffective assistance of counsel based on his attorney’s failure to object to the court informing the jury that it was being sequestered at appellant’s request. This, argues appellant, was prejudicial and denied him a fair trial. Appellant correctly states that under Tex.Code CRIm.ProcAnn. Art. 35.23, “Any person who makes known to the jury which party made the motion not to allow separation of the jury shall be punished for contempt of court.” Although the trial court’s comments may have been improper under this provision, we must determine whether trial counsel’s failure to object constituted ineffective assistance of counsel requiring reversal of the conviction.

To determine if an appellant has received ineffective assistance of counsel in the guilt/innocence phase of his trial, we apply the two-pronged test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). Under this test, an appellant must show (1) that his trial counsel’s performance was so deficient that counsel made such serious errors that he was not functioning effectively as counsel; and (2) that the deficient performance prejudiced the defense to such a degree that appellant was deprived of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. We entertain a strong presumption that the trial attorney rendered adequate assistance and exercised reasonable professional judgment. Id. at 689, 104 S.Ct. at 2065. An appellant will succeed in a claim of ineffective assistance of counsel when he or she can demonstrate a “reasonable probability that but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Id. Rather than point out isolated attorney errors, a reviewing court must consider the totality of the representation to determine if counsel was ineffective. King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App.1983). As recently emphasized by the Texas Court of Criminal Appeals, it is essential that harm or prejudice caused by trial counsel’s conduct or omission be firmly grounded in the record; harm or prejudice cannot be presumed under circumstances such as those raised here. Mitchell v. State, 989 S.W.2d 747, 748 (Tex.Crim.App.1999).

Under the limited circumstances of this case, and given the overwhelming evidence of appellant’s guilt, we do not believe that this omission, isolated in a record of generally competent representation, amounts to ineffective assistance of counsel. The error meets neither prong of the Strickland test: it neither demonstrates errors so egregious that they amounted to ineffective representation nor supports a reasonable probability that, but for this error, a different outcome might have been achieved. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Nothing in the record substantiates appellant’s argument that the jury was prejudiced against him because of the sequestration. No evidence of harm was produced through a motion for new trial by witnesses or affidavits of any juror regarding harm or prejudice due to the court’s comments. We are not required to rely on appellant’s unsupported, subjective allegations of harm, nor is harm shown by the trial court’s complained-of conduct itself. See Mitchell v. State, 989 S.W.2d at 748-49. There was sufficient relevant, competent evidence to support the jury’s finding. See Ybarra v. State, 890 S.W.2d 98, 113-14 (Tex.App. — San Antonio 1994, pet. ref'd).

Moreover, the record is silent as to whether the failure to object was trial strategy on the part of appellant’s trial counsel; counsel may have reasonably wanted to keep that particular jury for the punishment phase, or may not have wanted to risk a new trial. In absence of any evidence to the contrary we must indulge a strong presumption that trial counsel’s conduct falls within the presumption that the challenged conduct can be considered sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Appellant’s point of error is overruled.

Appellant has failed to meet his burden of proving ineffectiveness of trial counsel, and the judgment is affirmed.

Justice SEARS’S dissenting opinion to follow.

ROSS A. SEARS, Justice

(Assigned), dissenting.

The single issue raised by Appellant on appeal is: “Defendant did not receive effective assistance of counsel.” Since there was no motion for a new trial and no subsequent hearing on the motion to determine trial strategy, the majority overruled the point of error and affirmed the trial court.

That single issue is based on the failure of the defense attorney to object when the trial court told the jury they had to be sequestered because the defendant demanded it. The majority opinion deals only with the form, rather than the substance, of this appeal. However, if we look at the egregious action of the trial court that gave rise to the claim of “ineffective assistance of counsel,” we come to the inescapable conclusion that the trial judge deprived this Appellant of a fair trial. The trial judge intentionally ignored Article 35.23 of the Texas Code of Criminal Procedure and told the jury they could not go home to their families because the defendant demanded they be sequestered. The action of the trial judge was calculated to prejudice the jurors against the defendant.

“Any person who makes known to the jury which party made the motion not to allow separation of the jury shall be punished for contempt of court.” TexCode CRiM. Proc. Ann. Art. 35.23; see, e.g., Hood v. State, 828 S.W.2d 87, 93 (Tex.App.— Austin, 1992, no pet.) (holding article 35.23’s severance provisions to be mandatory). In this case, the trial judge told the jury, not once but twice, that the defendant was to blame for separating them from their families for the night.

At 3:34 p.m., February 18,1997, the jury retired to deliberate. The defendant made a motion that the jury not be separated. Later, the court called the jury into the courtroom and the following exchange occurred between the court and the jury:

THE COURT: All right. Ladies and gentleman, it’s 6 o’clock in the evening. Ordinarily what I would do is send you home and have you come back and deliberate tomorrow morning at 9 o’ clock, but the defense wants you to — well, first let me ask you: Is there any reasonable expectation of you reaching a verdict in the near future? Who is your foreman?
FOREMAN: lam.
THE COURT: Any reasonable expectation of a verdict in the near future?
FOREMAN: I don’t believe.
THE COURT: All right. The defense will not let you — allow you to separate in this case. The only alternative to you is I must sequester you for the night. You will be taken to a hotel. You are under the same admonishments. You are not to discuss the case....

Indicating a desire to communicate with the court, the jury went back into the jury deliberation room and sent the following note to the judge: “We have some personal situations that would make overnight stays a major predicament. No supervision of children.” The judge wrote the following answer on the jury note and returned it to the jury: “I am sorry — but I cannot legally allow you to separate without permission of the state, the defendant and the defendant’s lawyer. The latter two have refused to allow separation. I am thus prevented by law to allow you to go home and return.”

This appeal presents a clear abuse of constitutional rights and fundamental fairness by the trial judge, who was supposed to be in charge of protecting those very sacred rights. However, this glaring error has not been addressed by the majority opinion simply because it was brought to the courts’ attention in an issue entitled “Appellant did not receive effective assistance of counsel at trial.” I believe the majority has placed form over substance and has failed to deal with the real error that occurred in the trial court.

Unassigned error may be addressed and utilized to reverse a conviction when the interests of justice require it. See State v. Shepard, 920 S.W.2d 420, 422 (Tex.App.Houston [1st Dist.] 1996, pet. ref'd). The Court of Criminal Appeals permits the use of unassigned error to address errors that are apparent on the face of the record. See Carter v. State, 656 S.W.2d 468, 469 (Tex.Crim.App.1983) (en banc). A constitutional grant of appellate jurisdiction treats a right of appeal in criminal cases “as a remedy to revise the whole case upon the law and facts, as exhibited in the record.” Id. at 468.

The state has alleged that Appellant has a duty to show harm, and he faded to do so. Therefore, the state argues, he has failed to satisfy the requirements of Strickland. However, even where testimony from Appellant’s trial attorney would be helpful in determining whether the failure to object was the product of “trial strategy,” such evidence in this case is not necessarily a prerequisite to an analysis of whether the error complained of met an “objective standard of reasonableness.” See Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

I fully recognize that the Court of Criminal Appeals has recently reversed this court’s finding ineffective assistance of counsel where the attorney did not testify as to “trial strategy.” See Thompson v. State, 981 S.W.2d 319, 324 (Tex.App.— Houston [14 th Dist.] 1998) rev’d 9 S.W.3d 808 (Tex.Crim.App.1999). However, Thompson did not involve a violation of a constitutional right, and it did not destroy the reasonable expectation of “fairness and impartiality” by the trial judge. Some constitutional violations, “by their very nature cast so much doubt on the fairness of the trial process that, as a matter of law, they can never be considered harmless.” Satterwhite v. Texas, 486 U.S. 249, 253, 108 S.Ct. 1792, 1794, 100 L.Ed.2d 284, 293 (1988) (emphasis added).

I sincerely believe it is the duty of the courts of appeals to vigorously defend the rights of all persons to a fair trial by an unbiased jury and an impartial judge. When we fail to protect those sacred rights, we make this appellant’s constitutional guarantee of a fair trial, by an unbiased jury, a hollow promise. I further believe affirming this conviction undermines the right to fundamental fairness in our fact-finding process. See Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).

If this appeal was based on abuse of discretion, or violation by the trial judge of Article 35.23, Texas Code of Criminal Procedure, there is no doubt that any appellate court in this state would reverse the conviction. Should the results be different because the attorney on appeal “mis-la-beled” the point of error?

I would reverse the conviction and remand for a new trial. No doubt Appellant will get a fair trial this time because the judge who blatantly ignored Article 35.23, Texas Code of Criminal Procedure, is no longer on the bench.


author: BILL VANCE, Justice. TOM GRAY, Justice,

text:
    Michael T. CASTALDO, Appellant, v. The STATE of Texas, Appellee.
    No. 10-99-147-CR.
    Court of Appeals of Texas, Waco.
    Nov. 1, 2000.

      Sarah C. Keathley, Keathley & Keath-ley, Corsicana, for appellant.
    Patrick C. Batchelor, Navarro County Dist. Atty., Lyndon Laird, Navarro County Asst. Dist. Atty., Corsicana, for appellee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   OPINION

BILL VANCE, Justice.

During the course of Michael Castaldo’s trial on possession of marihuana charges, the trial court allowed the State to present testimony (1) detailing the actions of the dangerously intoxicated driver of the vehicle in which Castaldo was a passenger and (2) showing that Castaldo may have been intoxicated by the use of marihuana and alcohol. Because the evidence of the actions of the driver has character-proving tendencies, we conclude that the trial court erred by overruling Castaldo’s objection under Rule of Evidence 404(b) and, finding that he was harmed by the error, will reverse the judgment. Although the evidence of Castaldo’s intoxication was admitted for a limited purpose under Rule of Evidence 404(b), the trial court refused Castaldo’s request that the jury be instructed in the charge that it could consider the evidence only for that limited purpose. We conclude that a limiting instruction was required and will reverse Castaldo’s conviction for the lack of that instruction as well.

The Offense

The charge against Castaldo arose out of an early morning traffic stop by Navarro County Sheriffs Deputy Scott Dyson. Dyson was allowed to testify in detail about the events leading up to Castaldo’s arrest. He testified that he had been alerted to watch for a possibly intoxicated driver headed south on Interstate Highway 45. Before the automobile reached his location, though, the dispatcher advised Dyson that the vehicle had turned around and was headed north in the southbound lane of 1-45. Dyson activated his emergency lights and siren and drove northward on the service road to try to find the vehicle. After he located the vehicle, a Jeep Cherokee, he paced it on the service road for approximately two and one-half miles before the driver of the Jeep stopped. During the two and one-half mile “chase,” Dyson used the public address equipment on his patrol car, apparently to order the vehicle to pull over, and illuminated the Jeep with a spot light. He could see the driver of the vehicle looking over at him during the time that he was paralleling the Jeep. In response to a question concerning other traffic on the highway, Dyson testified that “[tjhere were several vehicles coming at [the Jeep]. Eighteen-wheelers were having to dodge it. I, at one point, thought we had already had a wreck.”

After the Jeep stopped, Dyson got the driver out and turned off the engine. He pointed his pistol at the passenger, whom Dyson identified as Castaldo, and ordered him to put his hands on his head. When Dyson was removing the driver from the Jeep, he could smell the odor of burnt marihuana and alcoholic beverages. Dyson held Castaldo at gun point until his back up, Corsicana Police Officer Todd Morris, arrived. Moms got Castaldo out the Jeep, handcuffed him, and had him stand at the back of the vehicle while Dyson searched the vehicle. During the search, Dyson found a green tupperware container, which contained 0.94 grams of marihuana, in the center console and a small wooden box, which contained 0.01 grams of marihuana, on the passenger-side floorboard. Dyson testified that Castal-do’s eyes were “glassy, bloodshot,” and that he was “[u]nfocused, didn’t realize where he was” when he was first confronted. Dyson also testified that although Castaldo’s breath did not smell like marihuana, it did smell like alcoholic beverages. Furthermore, in Dyson’s opinion, Castaldo was intoxicated by a combination of alcohol and marihuana. The driver was arrested for driving while intoxicated and possession of marihuana, and Castaldo was arrested for possession of marihuana.

Officer Morris testified that when he arrived at the scene, Dyson already had the driver out of the Jeep, so he dealt with Castaldo, the passenger. He ordered Cas-taldo out of the vehicle and, when Castaldo got out, Morris noticed that he “had red, bloodshot eyes, unsteady balance, [and] a strong odor of an alcoholic beverage on his breath.”

The Proceedings at Trial

On the morning of the trial, Castaldo urged the court that:

basically, any offense other than possession of marijuana falls under this extraneous offense exception. We do not feel that it would be relevant.... Further, trying to boot strap any evidence that falls under the probable cause to stop [the driver] under the DWI stop or any evidence about [the driver’s] conduct in this would be other bad acts. Would be inadmissable under rule 404(b).
[W]e are not trying the probable cause of the stop to the jury. We are not trying [the driver’s] DWI to the jury. All that is at issue today for trial is whether or not my client was in possession of marijuana. To intermix facts, to cloud the issues by the State about the DWI — alleged DWI, the DWI stop, the reasons for arrest of another individual, have nothing to do with the possession of marijuana.
Now, 404(b) is in place to protect criminal defendants who are on trial so they can be tried for the case the State has brought against them. Today we are trying the possession of marijuana case. Any evidence about any other crimes, wrongs, or bad acts, specifically, public intoxication at the time — at that time would be inflammatory evidence and would be very, very prejudicial and would likely be harmful to my client in the outcome of this case.

The court granted Castaldo’s motion to exclude any evidence relating to his own public intoxication, but refused to exclude the evidence regarding the driver’s DWI stop, ruling that “I think that probably is background evidence and basically to complete the picture of the facts in the case, I don’t think that you can do that without getting into that in some regards as to why the stop — the initial stop, what was the reason for the initial stop.”

During the trial, Castaldo objected on the basis of Rule 404(b) of the Texas Rules of Evidence when the State introduced evidence about the alert given to Dyson to be watching for a suspected drunken driver and to Dyson’s testimony that the vehicle had reversed course and was driving north in the southbound lane of 1-45. Both objections were overruled. When the court overruled his objection to the evidence regarding the wrong-way driving, Castaldo asked that the court give the jury an instruction limiting the purpose for which the jury could consider the evidence. The court refused to give the instruction when the evidence was admitted, saying that it would “consider that at the time we take up the charge.”

Later during the trial, the court reversed its ruling excluding evidence regarding Castaldo’s intoxication and allowed the State to recall Dyson so he could testify that Castaldo was intoxicated. When Dyson took the stand, the court instructed the jury:

Ladies and gentlemen, before the officer testifies, let me give you what’s called a limiting instruction as to the possible testimony that this witness may give. There may be evidence that he gives that the reason I’m allowing to do this is to aid you in passing upon the weight of — of the evidence that has been presented in the case. It’s not being admitted as evidence as far as any kind of conviction or any kind of extraneous bad act, but it is — I’m allowing any kind of testimony like this just to allow you to aid you in the context and background of these circumstances in this case.
And at whatever time you do deliberate, you will have — again it is just to aid you to pass upon the weight to be given the testimony and the evidence.

Dyson then testified that Castaldo was intoxicated by a combination of alcohol and marihuana.

During the charge conference, the court read a proposed limiting instruction that it had prepared. The State objected to any instruction limiting the jury’s use of any of the evidence on the basis that all of the evidence was “res gestae” of the offense and that intoxication was “relevant” to the possession of marihuana. Ultimately, the court agreed with the State and refused to give the jury a limiting instruction regarding any of the evidence. The jury convicted Castaldo of the offense of possession of marihuana and assessed punishment of 180 days in the county jail, probated, and a $2,000 fine. Tex. Health & Safety Code Ann. § 481.121 (Vernon Supp.2000); Tex. Pen.Code Ann. § 12.22 (Vernon 1994).

Castaldo’s Appeal

Before us, Castaldo raises five points of error. We will discuss only the two complaints that relate to the admissibility of the evidence regarding the actions of the driver of the Jeep and the need for a limiting instruction in the jury charge.

The DeGarmo doctrine

Before we consider Castaldo’s points of error, we must dispose of the State’s initial response to all of Castaldo’s complaints. According to the State, Cas-taldo waived any error which occurred in the guilt-innocence phase of the trial by confessing his guilt in his testimony during the punishment phase of his trial. Leday v. State, 983 S.W.2d 713, 724 (Tex.Crim.App.1998); DeGarmo v. State, 691 S.W.2d 657, 660-61 (Tex.Crim.App.1985). The State relies on an exchange that occurred during cross-examination:

Q [By the State]: Mr. Castaldo, are you sorry for what the jury found that you did?
A [By Castaldo]: I’m sorry. I respect the decision of the jury. I accept responsibility for my actions, and I accept responsibility for putting myself in the situation I put myself in.

Although the State urges us to find that this is a confession of guilt, we do not read his testimony that way. To trigger the application of the DeGarmo doctrine, as modified by Leday, the statement of guilt must be a “clear and intentional eonfession[J” Taulung v. State, 979 S.W.2d 854, 857 (Tex.App.—Waco 1998, no pet.). We do not believe that Castaldo’s statement qualifies as a “clear and intentional” confession of guilt of the charged offense and, so, reject the State’s urging to apply De-Garmo here.

Admission of evidence

Under his second point, Castaldo complains about the court’s decision to admit character evidence. We will deal first with his complaint about evidence relating to the “misbehavior of the driver of the vehicle in which [he] was a passenger.” Cas-taldo argues that this evidence was admitted in violation of Rule 404(b) of the Texas Rules of Evidence. We agree.

Does Rule 404(b) apply to acts of another?

Rule 404(b) establishes that “[e]vi-dence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show actions in conformity therewith.” Tex.R. Evid. 404(b). This rule is designed to ensure that a defendant is tried for the offense of which he stands accused, rather than for the type of person that he is. Mayes v. State, 816 S.W.2d 79, 86 (Tex.Crim.App.1991). It is an independent mandatory rule expressly created to prevent introduction of evidence merely to show the defendant’s bad character because “[ejvidence of a defendant’s bad character traits possesses such a devastating impact on a jury’s rational disposition towards other evidenee[.]” Id.

The State’s primary response to Castaldo’s complaint is that applying Rule 404(b) to “acts committed by someone other than the person on trial ... is a logical impossibility.” The State does not cite to any portion of the text of the rule nor to any case to support this proposition and, contrary to the State’s argument, we perceive no basis for holding that the rule cannot be applied to acts committed by someone other than the defendant. First, the focus of the rule is on whether the offered evidence tends to show the defendant’s character for the sole purpose of supporting an inference that the defendant committed the charged offense in keeping with that character. See Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App.1991) (op. on rehearing); see also Bishop v. State, 869 S.W.2d 342, 345 (Tex.Crim.App.1993) (observing that “[t]he intent of this rule is to prevent the introduction of evidence to prove the character of a person in order to show that he acted in conformity with that character”). The issue under the rule is not who committed the crime, wrong or other act, but whether that act has a logical connection to showing the defendant’s character in the context of the charged offense. See id. If it does, the rule should apply.

Second, the plain text of the rule does not require that the extraneous acts be committed by the defendant. When called upon to determine if the rule applies to acts that do not constitute misconduct, the Court of Criminal Appeals examined the “plain language” of the rule to find its answer. Bishop, 869 S.W.2d at 345. Noting that the rule applied to “other crimes, wrongs, or acts,” the Court observed that there “is no requirement that the evidence must be that of another criminal offense or even misconduct in order to fall within the purview of Rule 404(b),” and concluded that the rule did apply to behavior that was not necessarily “misconduct.” Id. Similarly, there is no requirement in the plain language of the rule that the evidence must show an act of the defendant himself before it could be considered character evidence, subject to a Rule 404(b) analysis. Because the rule does not exclude such evidence from its purview, such evidence must be subject to the rule when it has tendencies to prove the defendant’s character.

Finally, courts have acknowledged that evidence that shows a defendant’s involvement with others and that shows those others’ activities can have character-proving effect. For instance, the Court of Criminal Appeals has explicitly recognized that, after a showing is made that a defendant is a member of a certain street gang, “evidence about [that] gang’s activities is relevant to the issue of [the defendant’s] character.” Anderson v. State, 901 S.W.2d 946, 950 (Tex.Crim.App.1995). As evidence which may be relevant to the defendant’s character, evidence of another’s actions may be subject to a valid Rule 404(b) complaint.

Rule 404(b) standards

If a defendant objects to character evidence on the ground that the evidence is not relevant, violates Rule 404(b), or constitutes an extraneous offense, the proponent must show that the evidence has relevance apart from showing character. Rankin v. State, 974 S.W.2d 707, 718 (Tex.Crim.App.1998) (op. on rehearing); Montgomery, 810 S.W.2d at 387. The proponent of the evidence must show the trial court that the evidence is being offered for a permissible purpose, other than its character-conformity nature. The proponent may succeed in carrying this burden if it shows:

[that the extraneous offense evidence] tends to establish some elemental fact, such as identity or intent; that it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; or that it rebuts a defensive theory by showing, e.g. absence of mistake or accident ... [or] that it is relevant upon a logical inference not anticipated by the rulemakers.

Santellan v. State, 939 S.W.2d 155, 168-69 (Tex.Crim.App.1997) (quoting Montgomery, 810 S.W.2d at 387-88). If the trial court concludes that the evidence has no relevance to a fact of consequence to the proceeding apart from supporting an inference of character conformity the evidence is inadmissable. Id. at 168; Montgomery, 810 S.W.2d at 387.

We review the trial court’s decision to admit evidence over a Rule 404(b) objection under the abuse of discretion standard. Rankin, 974 S.W.2d at 718; Montgomery, 810 S.W.2d at 391. Under that standard, we may not disturb the trial court’s decision if it falls within the “zone of reasonable disagreement.” Santellan, 939 S.W.2d at 169; Montgomery, 810 S.W.2d at 391. The trial court is required to find that the evidence tends in logic and common experience to serve some purpose other than character conformity. Montgomery, 810 S.W.2d at 391. However, if we “can say with confidence that by no reasonable perception of common experience can it be concluded that proffered evidence” serves some purpose other than character conformity, we should find that the trial court has abused its discretion in admitting the evidence. Id.

Rule 404(b) and the DWI evidence

Here, the State sought to admit evidence which showed that Castaldo was the passenger in a vehicle which was driven the wrong way on 1-45 while pursued by a police car with its siren and emergency lights activated for more than two miles, during which time there were near accidents with other vehicles. The State also offered evidence that the driver of the car in which Castaldo was a passenger was arrested for driving while intoxicated and for possession of marihuana.

We believe that the character-conformity tendency of this evidence is apparent. The evidence demonstrates that Castaldo is the type of person who would ride in a vehicle with a driver who is dangerously intoxicated. Such a person, in logic and common experience, would more likely be the type of person who would engage in drug use. Thus, this evidence has a tendency to show that Castaldo’s character is such that it would be reasonable to find him in possession of marihuana, and logically supports the inference that he probably did possess marihuana on the night he was arrested.

Because this evidence has character-conformity tendencies, the State was required to show the trial court another permissible purpose for which it sought to have the evidence admitted. In response to Castal-do’s objection that this evidence should be excluded on the basis of Rule 404(b), the State urged the trial court to allow it into evidence on the grounds that Rule 404(b) does not apply to such evidence. We have already determined that this was not a valid response to Castaldo’s objection. However, the trial court did not accept the State’s argument either, but denied Castal-do’s request that the evidence be excluded, saying it constituted only “background evidence.”

Was the DWI evidence admissible as background contextual evidence?

“Background evidence” falls into two categories: “background” contextual evidence and “same transaction” contextual evidence. Mayes, 816 S.W.2d at 86-87. Background contextual evidence is “proof of facts that do not bear directly on the purely legal issues, but merely fill in the background of the narrative and give it interest, color, and lifelikeness.” Id. at 87.

However, Rule 404(b) prevents the use of character evidence merely to fill in the story for the jury. “Background contextual evidence” is not a permissible “other purpose” under Rule 404(b). Id. at 88. Thus, the trial court erred if it admitted this character evidence over Castaldo’s Rule 404(b) objection on the basis that it was background contextual evidence, helpful to the jury for understanding the course of events which lead up to Castal-do’s arrest.

Was the DWI evidence admissible as same transaction contextual evidence?

The trial court may have been indicating that it was admitting the evidence as same transaction contextual evidence. This type of evidence is presented when:

several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others.

Id. at 86 n. 4; Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App.1993). The evidence is admitted over a Rule 404(b) objection because such evidence is necessary to the jury’s understanding of the charged offense. Rogers, 853 S.W.2d at 33. However, the requirement that the evidence is necessary is strict:

Only if the facts and circumstances of the instant offense would make little or no sense without also bringing in the same transaction contextual evidence, should the same transaction contextual evidence be admitted.

Id.

In narrating Castaldo’s arrest for possession of marihuana, it would not have been impracticable for the State to avoid describing the events that lead up to the point at which the Jeep stopped. The jury’s understanding would not have been impaired or clouded had the State described Castaldo’s arrest without including the evidence concerning the bad acts of the driver of the vehicle in which he was a passenger. Such omission would not have caused the evidence regarding the instant offense to appear incomplete. Thus, we conclude that the evidence of the driver’s bad acts was not “necessary” to the jury’s understanding of the charged offense, and that the trial court erred if it held that evidence admissible as same transaction contextual evidence. See id.

The evidence relating to the misconduct of the driver of the car in which Castaldo was a passenger is not admissible under either category of “background” evidence. The State has not offered another basis for admitting this evidence, and we can discern no other basis for its admission. Thus, we conclude that the trial court erred when it overruled Castaldo’s Rule 404(b) objection to this evidence. Having found error, we must decide whether Cas-taldo was harmed by it.

Harm from the erroneous admission of the DWI evidence

The trial court’s error in admitting this evidence is not constitutional; therefore, we must determine whether Castaldo’s “substantial rights” were affected by the erroneous ruling. Tex.R.App. P. 44.2(b); Horton v. State, 986 S.W.2d 297, 303 (Tex.App. — Waco 1999, no pet.). “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997); Horton, 986 S.W.2d at 303. In analyzing harm under Rule 44.2(b):

we review the entire record to determine whether the error had more than a slight influence on the verdict. If we find that it did, we must conclude that the error affected the defendant’s rights in such a way as to require a new trial. If we have grave doubts about its effect on the outcome, we should find that the error was such as to require a new trial. Otherwise, we should disregard the error.

Horton, 986 S.W.2d at 303; Fowler v. State, 958 S.W.2d 853, 866 (Tex.App.— Waco 1997), aff'd, 991 S.W.2d 258 (Tex.Crim.App.1999).

Although developed in the context of an analysis of harm flowing from the erroneous denial of a Rule 403 objection, we believe that the factors listed in Horton are helpful to our analysis under Rule 404. Horton, 986 S.W.2d at 303-04. Thus, we consider, among other items: the strength of the other evidence; the emphasis that the State placed on the erroneously admitted evidence; whether other extraneous conduct evidence was properly admitted; and whether the court provided appropriate limiting instructions. Id.

The evidence of Castaldo’s guilt cannot be considered “overwhelming” or even “substantial.” Although the State did not overtly emphasize the details of the erroneously admitted evidence, a significant portion of the trial was devoted to establishing the events that lead up to Castaldo’s arrest. Additionally, the prosecutor referred to the driver repeatedly during his closing argument and suggested that Castaldo and the driver were out “having a party ... cruising down 1-45” ninety miles from where they lived. Other extraneous-act evidence was properly admitted, but the trial court failed to give a limiting instruction at the time that the DWI evidence was admitted or in the written jury charge at the end of the trial.

As the Court of Criminal Appeals has observed, this type of evidence can have a “devastating impact on [the] jury’s rational disposition towards other evidence.” Mayes, 816 S.W.2d at 86. The Court has also “consistently acknowledged that the introduction of extraneous offenses to the jury is inherently ‘prejudicial,’” because “of the jury’s natural inclination to infer guilt to the charged offense from the extraneous offenses.” Abdnor v. State, 871 S.W.2d 726, 738 (Tex.Crim.App.1994). Thus, we are left with grave doubts about this evidence’s effect on the outcome of Castaldo’s trial. We conclude, then, that the erroneous admission of the evidence regarding the misconduct of the driver of the vehicle in which Castaldo was a passenger affected his substantial rights, and mandates that the judgment be reversed.

Rule 404(b) and evidence of Castal-do’s intoxication

Castaldo also complains in point two that the court allowed the State to introduce testimony that indicated that he may have been drinking alcohol and may have been intoxicated by alcohol. In response to Castaldo’s Rule 404(b) objection to this evidence, the State argued that it should be allowed to present the evidence because (1) Castaldo’s intoxication was “clearly a part of the res gestae” of the offense; (2) Castaldo’s possible “intoxication ... because of marijuana is directly relevant to the issue of possession of the marijuana”; and (3) it was admissible on the issue of Castaldo’s ability to recall the events the night he was arrested. The trial court ultimately overruled Castaldo’s Rule 404(b) objection and allowed the State to present the evidence of his intoxication in its case in chief and to question him about it when he testified in his defense.

We believe that the court could have admitted this evidence in the State’s case in chief under a blend of the State’s first and second argument. In the context where a defendant is charged with possessing drugs found in a place over which he does not have exclusive control, the fact that a defendant is under the influence of, a drug has been recognized as a factor which the courts consider when determining if the State has proved sufficient “affirmative links” between the defendant and the drugs which he is charged with possessing. E.g., Harris v. State, 994 S.W.2d 927, 933 (Tex.App.—Waco 1999, pet. ref'd). Thus, showing intoxication by drug usage is a relevant “evidentiary fact” which inferentially leads to the elemental fact of “knowledge.” Id.; see Santellan, 939 S.W.2d at 168-69; Montgomery, 810 S.W.2d at 387-88. The State offered the evidence of Castaldo’s intoxication for a permissible purpose other than character conformity and, so, such evidence was properly admitted by the court.

According to the State’s witnesses’ testimony, Castaldo may have been under the influence of both marihuana and alcohol. The trial court could have reasonably concluded that the evidence of possible alcohol intoxication was same transaction contextual evidence, viewing the evidence relating to Castaldo’s possible use of alcohol as a necessary component to allowing the State to present evidence of his possible intoxication by drug usage. Rogers, 853 S.W.2d at 33. Thus, because the trial court’s ruling was within the zone of reasonable disagreement, we cannot conclude that it abused its discretion by allowing the State to present the evidence of Cas-taldo’s possible alcohol use. Santellan, 939 S.W.2d at 169; Montgomery, 810 S.W.2d at 391.

Summary

The evidence of the driver’s acts could have been admitted only for the purpose of showing that Castaldo’s character was such that it was reasonable to believe that he committed the crime with which he was charged. That evidence had no other possibly-relevant use at Castaldo’s trial. As we have shown, those acts could not have been admitted as “background contextual evidence” nor were they admissible as “same transaction contextual evidence.” Thus, because the driver’s bad acts were offered to show Castaldo’s propensity to act in conformity with the acts of that third party, Rule 404(b) applies to bar admission of the evidence. However, the same cannot be said concerning evidence of Castaldo’s own intoxication by alcohol, which could have been properly admitted as same transaction contextual evidence when there was some testimony that Cas-taldo was under the influence of both alcohol and marijuana, the drug which he was charged with possessing.

Limiting instruction

In his fourth point of error, Castaldo complains about the trial court’s decision not to give the jury a written limiting instruction in its jury charge under Rule 105(a) of the Texas Rules of Evidence. The State replies that Castaldo’s failure to submit a proposed instruction in proper form waives his complaint and, because Rule 404(b) does not apply, no instructions were required. We agree with Castaldo that the trial court’s failure to limit the jury’s consideration of the evidence was error.

Requirement for a limiting instruction

Rule 105(a) of the Texas Rules of Evidence provides:

Limiting Instruction. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but in the absence of such request the court’s action in admitting such evidence without limitation shall not be a ground for complaint on appeal.

Tex.R. Evid. 105(a). When requested, the trial court should instruct the jury that its consideration of character evidence admitted over a Rule 404(b) objection is limited to whatever purpose the proponent has persuaded the court the evidence serves. Abdnor, 871 S.W.2d at 738; Montgomery, 810 S.W.2d at 388; Walker v. State, 4 S.W.3d 98, 106 (Tex.App. — Waco 1999, pet. ref'd). The instruction should be given at the time that the evidence is admitted and included in the written charge given to the jury by the court. See id.; Rankin v. State, 974 S.W.2d 707, 712 (Tex.Crim.App.1996).

The requirement for a limiting instruction is not absolute. Since the adoption of the Rules of Evidence, the Court of Criminal Appeals has stated that evidence admitted as same transaction contextual evidence is not subject to the requirement of a limiting instruction. Camacho v. State, 864 S.W.2d 524, 535 (Tex.Crim.App.1993). This rule has been applied at least three times by the lower courts since it was stated in Camacho. See Garza v. State, 2 S.W.3d 331, 335 (Tex.App. — San Antonio 1999, pet. ref'd); Fleming v. State, 956 S.W.2d 620, 623 (Tex.App. — Eastland 1997, pet. ref'd); Sparks v. State, 935 S.W.2d 462, 466 (Tex.App. — Tyler 1996, no pet.).

A second exception has been applied to evidence which is admitted to prove a “main fact” in the prosecution. See, e.g., Marquez v. State, 725 S.W.2d 217, 226 (Tex.Crim.App.1987); Porter v. State, 709 S.W.2d 213, 215 (Tex.Crim.App.1986); Angelo v. State, 977 S.W.2d 169, 180 (Tex. App. — Austin 1998, no pet.); Tutt v. State, 940 S.W.2d 114, 121 (Tex.App. — Tyler 1996, pet. ref'd). However, this exception is based on pre-rules decisions by the Court of Criminal Appeals. Since then-enactment, the Rules of Evidence are “the most important guide to admissibility of extraneous misconduct in all penal contexts!.]” Vernon v. State, 841 S.W.2d 407, 410-11 (Tex.Crim.App.1992); also Lopez v. State, 18 S.W.3d 220, 223 (Tex.Crim.App.2000). We have been unable to find an example of the Court of Criminal Appeals applying this “main fact” exception to a trial that has occurred since the Rules of Criminal Evidence were adopted in 1986.

We believe that the phrase" “main fact” is equivalent to the concept of an “elemental fact” referred to in Montgomery. Montgomery, 810 S.W.2d at 387. No Court of Criminal Appeals decision has distinguished between the treatment of evidence admitted to show an “elemental fact” and that admitted to show an “evi-dentiary fact” under Rules 105(a) and 404(b). Even in opinions where the Court was directly addressing the issue of the necessity of a limiting instruction and the Court discusses the elemental/evidentiary fact concept it does not distinguish between the two for the purpose of requiring an instruction. See, e.g., Rankin, 974 S.W.2d at 710, 712; Montgomery, 810 S.W.2d at 387-88. Thus, we conclude that the rule discarding the requirement for a limiting instruction relating to character evidence admitted to prove a “main fact,” ie., an “elemental fact,” was overruled by the promulgation of Rule 105(a) and Rule 404(b) of the Rules of Evidence.

Error in failing to give instruction

As we indicated above, the trial court could have admitted the evidence relating to Castaldo’s intoxication under a blended theory, combining (1) admitting it as proof of an evidentiary fact which had a recognized inferential connection to the elemental fact of knowledge (possibly intoxicated by marihuana) and (2) same transaction contextual evidence (possibly intoxicated by alcohol). Of the two, the admissibility can only be based on its relevance to directly proving the offense, for absent that link all of the evidence regarding his alleged intoxication would probably be inadmissible. Therefore, we hold that the trial court was required to give the jury an instruction regarding this evidence limiting the jury’s consideration to its proper purpose. The court was not excused from that requirement by the rule in Camacho. Thus, its failure to do so was error. Abdnor, 871 S.W.2d at 738; Walker, 4 S.W.3d at 106.

Harm from error in failing to give instruction

Almanza v. State, not Texas Rule of Appellate Procedure 44.2, controls our analysis of the harm flowing from this charge error. Huizar v. State, 12 S.W.3d 479, 484-85 (Tex.Crim.App.2000); Alman-za v. State, 686 S.W.2d 157, 171 (Tex.Crim. App.1985). Thus, because Castaldo objected to the trial court’s failure to include the instruction in the jury charge, he must show only that he suffered “some harm” as a result of the error to be entitled to a reversal on this basis. Abdnor, 871 S.W.2d at 731-32; Almanza, 686 S.W.2d at 171. The actual degree of harm is determined in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.

In several places, the jury charge directed the jury to consider “all of the evidence in the case” to reach its decision; thus, the jury was allowed to consider the evidence of Castaldo’s extraneous bad acts as part of its decision in determining guilt-innocence. Of all the evidence, the extraneous offense evidence of the driver’s conduct and Castaldo’s potential intoxication was the strongest; otherwise, the evidence does not particularly predominate in the direction of Castaldo’s guilt of possession of marihuana. During argument, his counsel did not address the issue of his intoxication, but the State highlighted the fact that Castaldo was drinking alcohol and potentially intoxicated.

The introduction of the evidence of Castaldo’s intoxication was inherently prejudicial. Abdnor, 871 S.W.2d at 738. “[W]here no limiting instruction is given, ... we must conclude that any prejudice resulting from introduction of the extraneous offense is unabated.” Id. Rather than being limited in its consideration of extraneous acts evidence, the jury was implicitly authorized by the charge to consider that evidence as evidence of guilt and explicitly reminded of the evidence by the State in closing. After considering the record as a whole, we cannot say with confidence that the error did not cause some harm. Thus, we conclude that the judgment must be reversed for this second, independent reason as well.

Conclusion

We have found that Castaldo was harmed by the court’s erroneous ruling allowing the State to introduce evidence demonstrating that he was the passenger in a vehicle driven by a person who was dangerously intoxicated. We have also found that Castaldo suffered some harm from the court’s failure to include an instruction in the jury charge limiting the jury’s use of evidence relating to his own intoxication. Thus, the judgment of conviction is reversed, and this cause is remanded for a new trial.

Justice GRAY dissenting and concurring.

TOM GRAY, Justice,

dissenting and concurring.

The rules by which we are governed require “a written opinion that is as brief as practicable but ... addresses every issue ... necessary to final disposition of the appeal.” Tex.R ,App.P. 47.1 (emphasis added). Because the majority disposes of this cause on an issue which was not necessary for disposition of the appeal, and further because I disagree with the majority’s analysis of that issue, I respectfully dissent. I do, however, concur in the result reached on an issue raised that disposes of the entire appeal.

Castaldo’s second issue is:

The trial court erred in allowing the State to present as evidence in its casein-chief of alleged extraneous crimes, wrongs or acts on the part of the Appellant?

(Emphasis added). However, in its disposition of this issue, the majority spends a great deal of time discussing the application of Rule 404(b) to evidence admitted regarding the driver of the Jeep in which Castaldo was a passenger. Castaldo grouped his complaints about all the extraneous evidence admitted over his objections in one issue and counters the anticipated argument of the State that the evidence was necessary background contextual evidence. The majority ultimately holds that Rule 404(b) applies to acts of third parties.

I cannot agree that Rule 404(b) applies to the acts of third parties. Our sister court in Fort Worth has squarely addressed this issue. In McKnight v. State, the defendant argued on appeal that evidence of a witness’s murder conviction and two pending charges were erroneously admitted in violation of Rules 401, 403, and 404. The Fort Worth court held that the 404 objection to the evidence was properly overruled because that Rule only applied to the admission of extraneous offenses of the accused. McKnight v. State, 874 S.W.2d 745, 747 (Tex.App. — Fort Worth 1994, no pet.).

It appears that the Fifth Circuit is in agreement with this conclusion as well. It first touched on this topic in 1978. U.S. v. Beechum, 582 F.2d 898 (5th Cir.1978). Beechum involved extrinsic offense evidence but not by a third party. In Beec-hum, the court set out the two-step test to determine whether extrinsic offense or bad act evidence would be admissible. First, the extrinsic evidence must be relevant to an issue other than the defendant’s character. Id. at 911. Second, the evidence must have probative value that is not substantially outweighed by undue prejudice and meet the other requirements of Rule 403 of the Federal Rules of Evidence. Id. The court went on to state that it was obvious that if the defendant did not commit the extrinsic act or offense, the evidence was irrelevant and inadmissible. Id. at 912-913. The government was required to offer proof demonstrating that the defendant committed the act. Id. at 913.

In 1979, while explaining the applicability of Rule 404(b), the Fifth Circuit stated that the rule was based on the fear that the jury will use evidence that the defendant has, at other times, committed bad acts to convict him of the charged offense. U.S. v. Aleman, 592 F.2d 881, 885 (5th Cir.1979). Again, this did not involve acts of a third party, and the court held that the act was not extrinsic because it was intertwined with the charged offense.

Then, in 1981, the court finally reviewed a case where the government had successfully entered into evidence the extrinsic act of a third party. U.S. v. Krezdorn, 639 F.2d 1327 (5th Cir.1981). In Krezdom, the defendant was a U.S. Immigration Inspector who was charged with falsely making and forging the signature of another inspector on the application for border crossing cards of five nonresident aliens. The government admitted over the defendant’s objection evidence that the aliens whose applications were forged acquired their border crossing cards by illegally paying a third party who lived in a border town. The court acknowledged that the extraneous offense was committed by a person other than the defendant but stated, “[ajrguably, this is not the kind of evidence to which Rule 404(b) applies.” Id. at 1332. The court noted that “where the only purpose served by extrinsic offense evidence is to demonstrate the propensity of the defendant to act in a certain way, the evidence must be excluded.” Id. at 1333. But, the court further noted that when the “extrinsic offense was not committed by the defendant, the evidence will not tend to show that the defendant has a criminal disposition and that he can be expected to act in conformity therewith.” Id. For the purpose of the 404(b) argument, the court relied on Beechum and concluded, “[i]t would seem, therefore, that when extrinsic offense evidence is sought to be introduced against a criminal defendant, in order to trigger the application of Rule 404(b) there must be an allegation that the extrinsic offense was committed by the defendant.” Id. The court, however, declined to decide whether 404(b) was applicable to their facts because the evidence was admissible whether or not 404(b) applied. Id.

There are other means of keeping out extrinsic acts or offenses of third parties. See Williams v. State, 27 S.W.3d 599 (Tex. App.—Waco 2000, no pet. h.). Rule 404(b) does not and should not be applied to the extrinsic acts or offenses of a third party. Thus, I dissent from the majority’s determination of the issue based on Rule 404(b). Further, I dissent because the eleven pages of discussion by the majority of Rule 404(b) is not only wrong but is completely unnecessary to the disposition of the appeal. Tex.R.App.P. 47.1.

I concur with the majority opinion regarding the need for the limiting jury instruction upon which the result is properly founded.

      . In this context, the term "res gestae” has been rejected by the Court of Criminal Appeals for the more precise terms "background contextual evidence” and "same transaction contextual evidence.” Rogers v. State, 853 S.W.2d 29, 32-33 (Tex.Crim.App.1993); Mayes v. State, 816 S.W.2d 79, 86-87 (Tex.Crim.App.1991).

      . Furthermore, the Court of Criminal Appeals recently modified the DeGarmo doctrine to recognize that a confession of guilt does not estop a defendant from raising a complaint concerning a law or a rule embodying "a value that was seen to be more important than the discovery of the truth in a trial.” Leday v. State, 983 S.W.2d 713, 725 (Tex.Crim.App.1998); DeGarmo v. State, 691 S.W.2d 657 (Tex.Crim.App.1985). Because Castaldo’s statement is not sufficient to trigger the application of the DeGarmo doctrine, we are not required to address whether Rule 404 embodies such a value. If it does, Castal-do's complaints based on the court’s rejection of his Rule 404(b) objection would not fall under that doctrine even if his statement was an unequivocal confession of guilt. Id.

      . We deal with the situation where the acts of a third party are offered in evidence against the defendant. If the evidence is being offered to establish something about a witness in the case, other rules in addition to Rule 404(b) would be applicable. See, e.g., Tex.R. Evid. 608, 609; Lopez v. State, 18 S.W.3d 220 (Tex.Crim.App.2000).

      . Absent such a "logical connection,” evidence of the acts of another would be totally irrelevant and thus inadmissible.

      . We acknowledge that this conclusion might appear to be in conflict with the Court of Criminal Appeals’s opinion in Moreno v. State. Moreno v. State, 858 S.W.2d 453 (Tex.Crim.App.1993). There, the Court said:
      Appellant’s assertion that [evidence of the defendant’s "inchoate thoughts”] was somehow evidence of other crimes, wrongs, or acts under Tex.R.Crim. Evid., Rule 404(b) is mistaken. "To constitute an extraneous offense, the evidence must show a crime or bad act, and that the defendant was connected to it.” Lockhart v. State, 847 S.W.2d 568, 573 (Tex.Cr.App.1992, rehearing denied February 24, 1993). This necessarily includes some sort of extraneous conduct on behalf of the defendant which forms part of the alleged extraneous offense. Harris v. State, 738 S.W.2d 207, 224 (Tex.Cr.App.1986); McKay v. State, 707 S.W.2d 23, 32 (Tex.Cr.App.1985). Here, the statements concerning appellant’s thoughts of kidnaping and killing Cisneros were just that, inchoate thoughts. There is no conduct involved which alone or in combination with these thoughts would constitute a bad act or wrong, much less a crime. Absent this, appellant’s statements concerning his desire to kidnap and kill Cisneros did not establish prior misconduct and thus were not expressly excludable under Rule 404(b), supra.

        Id. at 463. However, in both Moreno and the cases it cites, the Court was dealing with the issue of the admissibility of extraneous offenses alleged to have been committed by the defendant, not the issue of the admissibility of evidence of the acts of another which was only relevant to shed light on the character of the accused. Id. at 462 ("Appellant asserts ... that the trial court erred in admitting evidence of what he characterizes as an extraneous offense.”); Lockhart, 847 S.W.2d at 573 (“We now consider the admissibility of appellant's 'diary' that he contends tended to connect him to extraneous offenses.”); Harris, 738 S.W.2d at 223 ("[Appellant] contends that the trial court erred by permitting evidence of an inadmissible extraneous offense to be placed before the jury.”); McKay, 707 S.W.2d at 31 ("Appellant contends that this evidence of an extraneous offense should not have been admitted.’’). Castaldo does not contend that the evidence should have been excluded because it shows an offense he committed, but because it constitutes propensity evidence. The closest of these opinions is Harris. Harris, 738 S.W.2d at 224. There, however, the alleged acts of the third party — speeding—-did not shed light on the character of the defendant in the context of the charged offense— capital murder. See id. Thus, these cases do not control the issue.
      Furthermore, if Moreno does control so that our analysis of the applicability of Rule 404(b) to the actions of others is incorrect, the result does not change because the situation described by the facts here fit within its requirements. Moreno requires that the evidence show "some sort of extraneous conduct on behalf of the defendant which forms part of the alleged extraneous offense.” Moreno, 858 S.W.2d at 463 (emphasis added). The evidence showed that Castaldo was a passenger in a vehicle with a dangerously intoxicated driver. The driver's actions in directing the vehicle were "on behalf of” Castaldo in the sense that they were traveling together and only one person at a time can drive a car. Moreno does not incorporate a strict party-liability theory into the Rule 404(b) analysis, and we believe one is unnecessary to find that a third party’s actions were “on behalf of” the defendant in this context. Thus, if Moreno applies here, the evidence Castaldo attacks shows "some sort of extraneous conduct on [his] behalf” by the driver which is subject to Rule 404(b).

      . No more proof was necessary than for the officer to state that the vehicle was stopped for a traffic violation. See, e.g., Arthur v. State, 11 S.W.3d 386, 390 (Tex.App. — Houston [14th Dist.] 2000, pet. ref'd).

      . Thereby suggesting that the driver’s bad acts tended to prove Castaldo’s character and that he acted in conformity therewith.

      . The other evidence involved Castaldo’s own intoxication. We find that it was properly admitted in the next sub-section of this opinion.

      . See footnote 1.

      . There is support for this proposition in many pre-Rules of Evidence decisions by the Court of Criminal Appeals. See, e.g., Archer v. State, 607 S.W.2d 539, 542 (Tex.Crim.App. [Panel Op.] 1980), overruled on other grounds, Wilson v. State, 977 S.W.2d 379, 380 (Tex.Crim.App.1998); Luck v. State, 588 S.W.2d 371, 375-76 (Tex.Crim.App.1979).

      . The State’s claim that Castaldo waived this complaint by failing to present a proposed instruction is misplaced. Under Almanza, the failure to object to the charge does not waive the right to complain about errors appearing in that charge, but increases the severity of the harm that must be present for the defendant to obtain relief. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985). To properly object to the charge, the defendant must let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. See Taylor v. State, 939 S.W.2d 148, 154 (Tex.Crim.App.1996). Castaldo’s objection to the charge was sufficient.