text:
    The STATE of Texas, Appellant, v. John Hardy TAYLOR, Appellee.
    No. 06-10-00015-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted July 6, 2010.
    Decided Aug. 4, 2010.
    Rehearing Overruled Sept. 14, 2010.

      Richard Glaser, Fannin County District Attorney, James L. Moss, Assistant County Attorney, Bonham, TX, for appellant.
    Steven R. Miears, Bonham, TX, for ap-pellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice CARTER.

I. BACKGROUND

In its indictment, the State alleged that, on or about August 13, 2008, John Hardy Taylor was the owner of a dog he knew to be dangerous. It is further alleged that on the date in question, Taylor’s dangerous dog, while not restrained in a secure enclosure, made an unprovoked attack on Harden Lynn McCurry, causing serious bodily injury — a violation of Section 822.005(a)(2) of the Texas Health and Safety Code. The trial court dismissed the indictment against Taylor with prejudice on the ground that Section 822.005(a)(2) is unconstitutional, facially and as applied, because it failed to set forth any required culpable mental state. Tex. Health & Safety Code Ann. § 822.005(a)(2) (Vernon 2010). The State appeals from the order quashing the indictment in trial court cause number 23053. We find the statute to be constitutional and reverse the judgment finding the statute unconstitutional. We do affirm that part of the judgment quashing the indictment because it fails to allege a culpable mental state, but modify it as dismissed without prejudice.

II. STANDARD OF REVIEW

Because the sufficiency of an indictment is a question of law, a trial court’s decision to quash an indictment is reviewed de novo. State v. Moff, 154 S.W.3d 599, 600 (Tex.Crim.App.2004). In reviewing the constitutionality of a statute, the court must presume the statute is valid and the Legislature has not acted unreasonably or arbitrarily. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002). In the absence of contrary evidence, we must presume that the Legislature acted in a constitutionally sound fashion. The burden rests upon the individual who challenges a statute to establish its unconstitutionality. Id. Thus, this appeal presents an unusual situation where, even though Taylor was successful in having the indictment quashed, the law nevertheless imposes a presumption that the statute is valid. In this regard, the Texas Court of Criminal Appeals has determined that:

A statute is void for vagueness if it fails ' to define the criminal conduct with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not permit arbitrary and discriminatory enforcement. If, as in this case, a statute does not substantially implicate constitutionally protected conduct or speech, it is valid unless it is impermissibly vague in all applications or as applied to the defendant.

Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App.2007). The statute must be upheld if a reasonable construction can be ascertained that will render the statute constitutional and carry out the legislative intent. Shaffer v. State, 184 S.W.3d 353, 363 (Tex.App.-Fort Worth 2006, pet. ref'd).

III. ANALYSIS

This is an appeal by the State from the trial court’s order quashing the indictment against Taylor with prejudice. At the trial court level, Taylor maintained that Section 822.005(a)(2) of the Texas Health and Safety Code was unconstitutional because it does not include a culpable mental state. On appeal, Taylor does not advance this argument; rather, he contends that this section of the statute is unconstitutionally vague because it fails to impose a duty to act. Because the trial court’s order quashing the indictment with prejudice is based upon the determination that Section 822.005(a)(2) is unconstitutional because it does not set forth a culpable mental state, and is therefore unconstitutionally vague, we address both attacks upon the constitutionality of the statute. The State maintains that Section 822.005(a)(2) is not unconstitutional because it imposes a mental state of knowingly on each element of the offense.

A. Challenge to the Constitutionality of the Statute

1. The Statute Requires a Culpable Mental State

Section 822.005(a)(2) provides that a person commits an offense if the person is the owner of a dog and the person:

(2) knows the dog is a dangerous dog by learning in a manner described by Section 822.042(g) that the person is the owner of a dangerous dog, and the dangerous dog makes an unprovoked attack on another person that occurs at a location other than a secure enclosure in which the dog is restrained in accordance with Subchapter D and that causes serious bodily injury, as defined by Section 822.001....

Tex. Health & Safety Code Ann. § 822.005(a)(2). Subsection (a)(2) of Section 822.005 requires that the owner of a dangerous dog know that his or her dog is dangerous. While the State contends the relevant mental state for this section of the statute is that of “knowingly,” based on the owner’s knowledge that his or her dog is dangerous, mere knowledge is not actionable as a criminal offense. The owner of a dangerous dog must also engage in conduct to which a culpable mental state attaches. The conduct mandated by this section of the statute is to restrain the dangerous dog in a secure enclosure “in accordance with Subchapter D.” Tex. Health & Safety Code Ann. § 822.005(a)(2). Subchapter D, entitled “Dangerous Dogs,” sets forth, among other things, a number of requirements with which the owner of a dangerous dog must comply. One such requirement is that the owner of a dangerous dog must “restrain the dangerous dog at all times on a leash in the immediate control of a person or in a secure enclosure.... ” Tex. Health & Safety Code Ann. § 822.042(a)(2) (Vernon 2010). When the owner of a dangerous dog fails to restrain the dangerous dog and the dog makes an unprovoked attack on another person that causes serious bodily injury or death, the owner has committed an offense under the statute. The relevant inquiry, therefore, is whether a culpable mental state attaches to this section of the statute.

While Section 822.005(a)(2) does not specifically require a culpable mental state, neither does it specifically dispense with any culpable mental state. Mere silence as to the culpable mental state is not sufficient to indicate that the Legislature has plainly dispensed with a mental element. Aguirre v. State, 22 S.W.3d 463, 471 (Tex.Crim.App.1999). The issue of whether Section 822.005(a)(2) of the Texas Health and Safety Code requires a culpable mental state is resolved by the application of Section 6.02 of the Texas Penal Code, which provides, in pertinent part:

(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility.

Tex. Penal Code Ann. § 6.02(b), (c) (Vernon Supp.2009) (emphasis added).

The imposition of a culpable mental state upon a statute typically involves crimes with more severe punishment and involve mala in se crimes. See Haggins v. State, 785 S.W.2d 827 (Tex.Crim.App.1990) (injury to a child); McQueen v. State, 781 S.W.2d 600 (Tex.Crim.App.1989) (unauthorized use of a motor vehicle); McClain v. State, 687 S.W.2d 350 (Tex.Crim.App.1985) (theft). On the other hand, public welfare offenses involve neglect where the law requires care, or inaction where it imposes a duty. Morissette v. United States, 342 U.S. 246, 256, 72 5.Ct. 240, 96 L.Ed. 288 (1952); Tovar v. State, 978 S.W.2d 584, 587 (Tex.Crim.App.1998). Public welfare offenses typically involve relatively minor punishment, and tend to hold persons strictly liable for their conduct. Tovar, 978 S.W.2d at 587.

To determine whether a statute plainly dispenses with a culpable mental state as an element of a charged offense, certain guidelines should be followed. Aguirre, 22 S.W.3d at 470-77 (culpable mental state required in ordinance which regulates adult businesses, and that is silent about whether a culpable mental state is required). We will examine those that appear to apply here.

We first look to the language of the statute. If any section of the statute prescribes a mental state while another section omits a mental state, such omission indicates or implies that the Legislature intended to dispense with a mental element in that section. Id. at 473. As previously mentioned, Section 822.005(a)(1) incorporates the mental state of criminal negligence. The inclusion of a mental state in subpart (a)(1) of the statute would therefore seem to indicate an intent on the part of the Legislature to dispense with a mental element in Section 822.005(a)(2). Tex. Health & Safety Code Ann. § 822.005(a)(2).

We must also examine the nature of the offense to determine whether the statute dispenses with a culpable mental state. In this regard, we are to determine whether the offense is more properly classified as malum in se, meaning “inherently evil” or malum prohibitum, meaning “prohibited evil.” Aguirre, 22 S.W.3d at 473; Tovar, 978 S.W.2d at 591. Strict liability offenses are generally malum prohibitum and are traditionally associated with the protection of the public health, safety, or welfare. Aguirre, 22 S.W.3d at 473. Examples of such strict liability offenses include prohibitions against water pollution, driving while intoxicated, the sale of horsemeat for human consumption, and speeding.

The offense described in Section 822.005(a)(2) is most aptly described as a malum in se offense — -immoral in its nature and injurious in its consequences. This statute is designed to protect against more than a probability of danger or a promotion of the social order. When a person owns a dog he or she knows to be dangerous — having been specifically put on notice of that fact in the manner prescribed by statute — and fails to restrain his or her dangerous dog, resulting in serious bodily injury or death of another due to an unprovoked attack by the dog, such act is wrong in and of itself. This factor weighs in favor of interpreting an offense under Section 822.005(a)(2) as requiring a culpable mental state. See id. at 475-77.

We next examine the severity of the punishment for a violation of this section of the statute. Other things being equal, the greater the possible punishment, the more likely some fault is required. Thompson v. State, 44 S.W.3d 171, 180 (Tex.App.-Houston [14th Dist.] 2001, no pet.). The lighter the punishment, the more likely the Legislature meant to impose liability without fault. Aguirre, 22 S.W.3d at 472. A violation of Section 822.005(a)(2) is punishable as a third degree felony unless the attack causes death, in which event, the offense is a felony of the second degree. The punishment for a second degree felony is imprisonment in the Texas Department of Criminal Justice for any term of not more than twenty years or less than two years. Tex. Penal Code Ann. § 12.33 (Vernon Supp.2009). The punishment for a third degree felony is imprisonment in the Texas Department of Criminal Justice for any term of not more than ten years or less than two years. Tex. Penal Code Ann. § 12.34 (Vernon Supp.2009). We find possible confinement of up to twenty years for a violation of this statute a strong indicia that a culpable mental state is required. See Aguirre, 22 S.W.3d at 475-76.

The seriousness of harm to the public which may be expected to follow from the forbidden conduct is yet another factor to consider in determining whether the Legislature meant to impose liability without fault or whether it meant to require fault, but failed to spell it out clearly. Id. at 476. Generally, the more serious the consequences to the public, the more likely the Legislature meant to impose liability without regard to fault, and vice versa. Id. at 471 n. 27; Thompson, 44 S.W.3d at 180. Here, the consequences flowing from a violation of the statute are serious bodily injury or death to a particular individual. These are not the type of “serious consequences to the public” typically addressed in strict liability statutes. Accordingly, and because the statute spells out the result of the violation, this factor is another indicia that a culpable mental state is required for a violation of Section 822.005(a)(2) of the Texas Health and Safety Code.

In more recent cases, an important factor in the determination of whether the statute dispenses with the requirement of a culpable mental state is the subject of the statute. Aguirre, 22 S.W.3d at 473. In this regard, strict liability is generally associated with the protection of the public health, safety, and welfare. Id.; Thompson, 44 S.W.3d at 179. As noted earlier in this opinion, the courts of this State have upheld statutes imposing strict liability for a number of public health and safety offenses, such as driving while intoxicated, speeding, water pollution, and the sale of horsemeat for human consumption. There is no contention here that the statute in question is in the class of a public safety statute. Rather, this statute is designed to protect individuals from being killed or seriously injured by dogs known to be dangerous by their owners, yet left unrestrained. This factor weighs in favor of interpreting an offense under Section 822.005(a)(2) as requiring a culpable mental state.

In certain situations, it is difficult to prove the mental state of an accused. The greater the difficulty in proving mental state, the more likely legislators intended to make the offense one of strict liability, in order to achieve more effective law enforcement. Aguirre, 22 S.W.3d at 476. Here, the statute requires knowledge on the part of the owner that his or her dog is dangerous by learning that the dog is dangerous in a manner described in Section 822.042(g). Tex. Health & Safety Code Ann. § 822.005(a)(2). Section 822.042(g) provides that:

For purposes of this section, a person learns that the person is the owner of a dangerous dog when:
(1) the owner knows of an attack described in 822.041(A) or (B);
(2) the owner receives notice that a justice court, county court, or municipal court has found that the dog is a dangerous dog under Section 822.0423; or
(3) the owner is informed by the animal control authority that the dog is a dangerous dog under Section 822.0421.

Tex. Health & Safety Code Ann. § 822.042(g).

Each of the listed methods of acquiring knowledge of the dog’s dangerous propensities is subject to objective verification in most instances. Under these circumstances, a prosecutor would likely encounter little difficulty in proving that the owner of a dangerous dog who makes an unprovoked attack on another person, at a location other than a secure enclosure in which the dog is restrained, failed to restrain the dangerous dog in a reckless, knowing, or intentional manner. See Tex. Penal Code Ann. § 6.02 (Vernon Supp. 2009). Accordingly, this factor weighs in favor of interpreting an offense under Section 822.005(a)(2) as requiring a culpable mental state.

The fewer the expected prosecutions for commission of an offense, the more likely the Legislature meant to require prosecuting officials to delve into the issue of fault. Aguirre, 22 S.W.3d at 475-76, 476 n. 51. Because we have no means of determining the number of prosecutions expected for this offense, this is a neutral factor in our analysis.

After having analyzed the relevant attributes of the statute in light of principles articulated by the Texas Court of Criminal Appeals in Aguirre, we conclude that Section 822.005(a)(2) of the Texas Health and Safety Code is not a strict liability statute. The Legislature did not intend to dispense with the requirement of a culpable mental state in the enforcement of this provision. “[Ijntent, knowledge, or recklessness” will suffice to establish criminal responsibility under the statute. See Tex, Penal Code Ann. § 6.02. We, therefore, conclude that Section 822.005(a)(2) is neither facially unconstitutional, nor is it unconstitutional as applied to Taylor, because it is subject to a culpable mental state of at least “recklessly.” See Tex. Penal Code Ann. § 6.02(c).

2. The Statute Complies with Sections 6.01(a) and (c) of the Texas Penal Code

Taylor contends that Section 822.005(a)(2) of the Texas Health and Safety Code is unconstitutional because it violates Section 6.01(a) of the Texas Penal Code by not requiring a voluntary act or omission and further violates Section 6.01(c) because it does not set forth a duty to perform an act. We disagree.

First, Section 822.005(a)(2) of the Texas Health and Safety Code imposes a duty to secure a dangerous dog upon the owner of the dangerous dog. Criminal liability is not unlimited in scope; rather, liability is limited only to individuals who own dangerous dogs they know to be dangerous. The term “owner” is defined in Section 822.041(5) of the Code as “a person who owns or has custody or control of the dog.” Tex. Health & Safety Code Ann. § 822.041(5) (Vernon 2010). The statute identifies the source of Taylor’s duty — the fact that he is the owner of a dog he knows to be dangerous. See Smith v. State, 603 S.W.2d 846, 847 (Tex.Crim.App.1980) (indictment charging criminal omission must set forth facts which give rise to a statutory duty to act). In this instance, the indictment did not allege that Taylor knowingly or recklessly failed to restrain the dangerous dog and therefore appears to be subject to a motion to quash. An indictment or information must, by direct and positive averments, allege all of the constituent elements of the offense sought to be charged. Holley v. State, 167 S.W.3d 546, 548 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (citing Chance v. State, 563 S.W.2d 812, 814 (Tex.Crim.App.1978)). The Texas Penal Code defines “element of offense” as: “(A) the forbidden conduct; (B) the required culpability; (C) any required result; and (D) the negation of any exception to the offense.” Tex. Penal Code Ann. § 1.07(a)(22) (Vernon Supp. 2009).

But the fact that this indictment does not allege with particularity the charged conduct does not make the statute unconstitutional.

Second, Section 822.005(a)(2) provides that when the owner knows the dog is dangerous and the dangerous dog makes an unprovoked attack, “that occurs at a location other than a secure enclosure ... in accordance with Subchapter D ...” that owner commits an offense. Tex. Health & Safety Code Ann. § 822.005(a)(2). Section 822.042, found in Subchapter D of the code, sets forth the requirements with which the owner of a dangerous dog must comply. Among other things, the owner of a dangerous dog is required to “restrain the dog at all times on a leash or ... in a secure enclosure.” Tex. Health & Safety Code Ann. § 822.042(a)(2). A “secure enclosure” is a “fenced area” that is locked and marked as containing a dangerous dog. A “secure enclosure” must also be capable of preventing entry by the general public, including children, and of preventing the dog’s escape or release. Tex. Health & Safety Code Ann. § 822.041(4) (Vernon 2010).

Thus, both the plain language of Sections 822.005(a)(2) and 822.042 impose upon the owner of a dangerous dog the duty to restrain or secure his or her animal. These provisions of the Code define criminal conduct with sufficient definiteness that ordinary people can understand what conduct is prohibited. See Lawrence, 240 S.W.3d at 915. Compliance with these provisions is subject to objective verification, thus eliminating the concern of arbitrary or discriminatory enforcement. The duty is clearly stated, and the manner of compliance is set forth in detail. The failure to perform this duty is criminalized when the dangerous dog causes serious bodily injury or death. Tex. Health & Safety Code Ann. § 822.005(a)(2). This section of the statute complies with the requirements of Sections 6.01(a) and (c) of the Texas Penal Code and is therefore not unconstitutional. See Tex. Penal Code Ann. § 6.01(a), (c).

B. The Trial Court Did Not Err in Quashing the Indictment

Taylor timely filed a motion to quash the indictment complaining that the State failed to allege a culpable mental state. The trial court, in granting the motion to quash, found the statute to be unconstitutional for the failure to set forth any required culpable mental state. The failure to allege a culpable mental state when one is required does not render the charging instrument void. Ex parte Weise, 55 S.W.3d 617, 621 (Tex.Crim.App.2001). Because Section 822.005(a)(2) is constitutional, the trial court erred in treating the charging instrument as void and in dismissing the indictment with prejudice. If a culpable mental state is required and the indictment fails to allege one, then the charging instrument is subject to a motion to quash. Id. The charging instrument in this case failed to allege a culpable mental state with respect to Taylor’s duty to restrain his allegedly dangerous dog in accordance with the statute. The trial court therefore correctly quashed the indictment, but erred in doing so with prejudice. Accordingly, we modify the order quashing the indictment to provide that said dismissal is without prejudice.

IV. CONCLUSION

We find the judgment declaring the statute unconstitutional was in error and modify the judgment quashing the indictment to provide such dismissal is without prejudice. As modified, the judgment of the trial court is affirmed.

      . Because this is an appeal of a pretrial order, no testimony or evidence appears in the record.

      . McCurry was attacked by two dogs on August 13, 2008, both of which are allegedly owned by Taylor. Consequently, Taylor was indicted for both attacks. The second indictment, issued in trial court cause number 23054, is the subject of a separate appeal, the opinion in which is issued of even date herewith. We have also issued, of even date herewith, two additional opinions stemming from two separate indictments issued under Section 822.005(a)(1) of the Texas Health and Safety Code, involving attacks by Taylor's dogs on Judy Pless, also on August 13, 2008. Tex. Health & Safety Code Ann. § 822.005(a)(1) (Vernon 2010). Those opinions are issued in cause numbers 06-10-00013-CR and 06-10-00014-CR.

      . The record before us does not clearly indicate whether the statute is alleged to be unconstitutional on its face or as applied to Taylor. Because the order quashing the indictment was based upon the statute’s unconstitutionality, both facially and as applied, we will treat this appeal as implicating both bases of unconstitutionality.

      . A person learns he or she has a dangerous dog in only three ways: (1) the owner knows of an attack by the dog; (2) the owner receives notice that a justice court, county court, or municipal court has found that the dog is a dangerous dog; or (3) the owner is informed by an animal control authority that the dog is a dangerous dog. Tex. Health & Safety Code Ann. § 822.042(g) (Vernon 2010).

        .See Section 6.02 of the Texas Penal Code, which provides that “a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.” Tex. Penal Code Ann § 6.02(a) (Vernon Supp.2009).

      . Malum in se is defined as “[a] crime or act that is inherently immoral, such as murder, arson, or rape.” Black’s Law Dictionary 1045 (9th ed. 2009).

      . Malum prohibitum is defined as "[a]n act that is a crime merely because it is prohibited by statute, although the act itself is not necessarily immoral. Misdemeanors such as jaywalking and running a stoplight are mala prohibita, as are many regulatory violations.” Id.

      .Subpart (a)(1) of the statute provides:
      (1) with criminal negligence, as defined by Section 6.03, Penal Code, fails to secure the dog and the dog makes an unprovoked attack on another person that occurs at a location other than the owner's real property or in or on the owner’s motor vehicle or boat and that causes serious bodily injury, as defined by Section 1.07, Penal Code, or death to the other person....
      Tex Health & Safety Code Ann. § 822.005(a)(1).

      . See also definitions of these terms as staled in Black’s Law Dictionary, fn. 6, fn. 7.

      . Am. Plant Food Corp. v. State, 587 S.W.2d 679 (Tex.Crim.App.1979).

      . Owen v. State, 525 S.W.2d 164 (Tex.Crim.App.1975).

      . Neill v. State, 154 Tex.Crim. 549, 229 S.W.2d 361, 363 (1950).

      . Goodwin v. State, 63 Tex.Crim. 140, 138 S.W. 399, 400(1911).

      . Strict liability statutes protect the public from, among other things, the consequences of drunken driving, the sale of adulterated food, polluted air and water, and speeding. See fn. 10-13.

      . See fn. 10-13.

      . Section 6.01(a) of the Texas Penal Code provides that "a person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.” Tex. Penal Code Ann. § 6.01(a) (Vernon 2003).

      . Section 6.01(c) of the Texas Penal Code provides that a person who fails to perform an act "does not commit an offense unless a law ... provides that the omission is an offense or ... provides that he has a duty to perform the act.” Tex. Penal Code Ann. § 6.01(c) (Vernon 2003).


source: Caselaw Access Project

author: Justice MARTIN RICHTER.

license: Public Domain

text:
    Doyce Joe YOUNG, Individually and as Independent Executor of The Estate of Janette S. Young, Deceased and as Trustee of The Doyce Joe Young and Janette S. Young Revocable Living Trust, et. al., Appellants, v. Gene and Lynn GUMFORY, Appellees.
    No. 05-08-00636-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 4, 2010.
    Rehearing Overruled Oct. 12, 2010.

      Edward M. Edson, Clint A. Come, Beirne Maynard & Parsons, LLP, Dallas, TX, for Appellants.
    Steven D. Goldston, Kenneth B. Chaiken, Chaiken and Chaiken, P.C., Dallas, TX, for Appellees.
    Before Justices MARTIN RICHTER, LANG-MIERS, and MYERS.
   OPINION

Opinion By

Justice MARTIN RICHTER.

This case arises out of a $10,000 discrepancy in the amount required to prepay a promissory note secured by a deed of trust. After protracted and contentious litigation that included the consolidation of suits in two counties, the appointment of an auditor, claims against the attorneys, sanctions, two motions for summary judgment, interpleader, and a bench trial, the trial court concluded appellants Doyce Joe Young, Individually and as Independent Executor of the Estate of Janette S. Young, Deceased and as Trustee of the Doyce Joe Young and Janette S. Young Revocable Living Trust (“Young”) breached the contract with Gene and Lynn Gum-fory (“Gumfory”) by, inter alia, rejecting tenders of prepayment on the promissory note. Judgment was entered in favor of Gumfory awarding damages against Young and attorney’s fees, jointly and severally against Young and his attorney Edward Edson, Individually and Edward M. Ed-son, P.C. (“Edson”).

In five issues on appeal, Young contends the trial court erred in interpreting the promissory note’s prepayment provisions, the evidence is insufficient to support the court’s legal and factual findings, there is insufficient evidence to support a finding against Edson as a claimant to funds deposited with the court, and the trial court improperly allowed execution on a superseded judgment. Concluding Young’s arguments are without merit, we affirm the trial court’s judgment.

Factual and Procedural Background

The Purchase of the Property

In 2001, Gumfory purchased two tracts of land in Cooke County from Young (the “Property”). Young personally financed the purchase through a promissory note in the amount of $96,000, bearing interest at 8.5% per annum for twenty years (the “Note”). The Note was secured by a deed of trust on the Property. A lawyer for the title company prepared the Note using a real estate form that he customized in accordance with the terms dictated by the parties.

Salient Terms of the Note

The Note required monthly payments of $833.12, due on the 15th day of each month beginning July 15, 2001 and continuing “until the entire amount of principal and accrued, unpaid interest has been paid in full.” The Note further provided that “[p]ayments will be applied first to accrued interest and the remainder to reduction of the principal amount.” Payments were to be made to “Doyce Joe Young and Janette Young as Trustees for the Doyce Joe Young and Janette Young Trust” at the “Place of Payment” — the address listed for the Young residence. The Note does not call for payment in any particular form, nor does it call for payment in immediately available funds. Instead, it simply provides that “[Gumfory] promises to pay to the order of [Young] principal plus interest.”

The terms of the Note also allow prepayment without penalty. Specifically, the Note states, “[b]orrower may prepay this note in any amount at any time before the Maturity Date without penalty or premium.” The Note specifies that in the event of prepayment, “[prepayments will be applied to installments on the last maturing principal, and interest on that prepaid principal will immediately cease to accrue.”

In the event of default, the Note provides that Young will give Gumfory written notice of the default and Gumfory will have ten days after notice to cure. Gumfory also promises to pay reasonable attorney’s fees and court costs if the Note is placed in the hands of an attorney to collect or enforce the Note. According to the terms of the Note, such expenses will become part of the debt evidenced by the Note and will be secured by any security for payment. The Note is to be construed under the laws of the State of Texas.

Payments Under the Note

Between 2001 and 2005, Gumfory made regular installment payments, several of which exceeded the required monthly payment. These payments were made by personal check payable to Young.

The Dispute

In 2005, Gumfory wanted to pay off the balance of the Note early. Gumfory estimated the payoff figure as of April 15, 2005 was $39,129.79 and requested that Young confirm his calculations. Young responded with a payoff sum of $49,501.29. In reaching this figure, Young relied on an amortization schedule he prepared at the inception of the Note. Gumfory responded in correspondence dated April 20, 2005, and stated once again, that he wanted to pay off the Note. Because a payment had been made in the interim, the payoff figure had changed and Gumfory estimated the new payoff amount as $38,567.94. This figure included interest from April 16 to May 15. Gumfory demanded that he be released from the Note for the amount of the payoff, and Young refused.

The crux of the dispute between the parties was the meaning of the prepayment clause in the Note. Both parties agreed the phrase “last maturing principal” required the application of prepayments to the back-end of the Note. The point of contention was the calculation of interest in accordance with the requirement that “interest on that prepaid principal will immediately cease to accrue.” Young insisted that while interest on the last maturing principal payment ceased to accrue, the initial amortization schedule he prepared still governed the determination of the present amounts due and owing under the Note.

The Denton County Lawsuit

The disagreement concerning the amount required to pay off the Note resulted in Gumfory filing a usury suit against Young in Denton County. Young retained Edson as his counsel. Edson answered the lawsuit on Young’s behalf, moved to transfer venue, and asserted claims against Gumfory and Ms attorneys. Specifically, Young asserted that Gumfo-ry’s attorneys were acting as Gumfory’s alter ego and breached their ethical and professional duties due to an alleged insufficiency in the pleadings. Young further claimed to be entitled to recover for intentional misrepresentation, “commercial extortion” and malicious prosecution.

The Partial Sale of the Property

In March 2002, Gumfory sold two parcels of the Property subject to the deed of trust lien in favor of Young to Jim Wagner and Sam Nichols (“Wagner/Nichols”). Young approved the sale in advance.

The First Attempted Payment

During the pendency of the Denton County lawsuit, Gumfory attempted to tender funds to Young. The first attempt, on August 29, 2005, was in the form of a personal check payable to Doyce Joe Young and Janette Young in the amount of $36,280.45. The back of the check was endorsed “payment in full and final payment of the Note.” Young rejected the check, and refused to release the deed of trust lien on the Property.

Impediments to Sale

On September 7, 2005, Gumfory’s lawyer wrote to Edson concerning Young’s refusal to release the deed of trust lien on the Property. Counsel reminded Edson that two parcels subject to the lien had been conveyed to Wagner/Nichols with Young’s approval. Counsel advised that a contract to sell one of these parcels was set to close, and demanded release of the lien so that the sale could be consummated. Counsel further advised that if the contracted sale did not close, Gumfory would be forced to rescind his sale of that parcel to the purchaser. The lien was not released.

Notice of Default

Gumfory did not make the monthly payment scheduled for September 15, 2005. As a result, Edson notified Gumfory that he was in default under the terms of the Note and had ten days to cure the default before the Property was posted for foreclosure.

The Second Attempted Payment

On September 30, 2005, Gumfory delivered a cashier’s check to Young at his residence. The check, in the sum of $36,535.63, was accompanied by correspondence stating “[t]his payment is made expressly as payment of unpaid principal and accrued interest due on the [Note] and, to the extent relevant, is a prepayment of principal as allowed by the [Note].” Although the check had no endorsements, conditions, or restrictions, Young rejected the check.

The Third Attempted Payment

After Young rejected the second attempted payment, on the same day, Gumfory delivered the cashier’s check to Edson. With a few exceptions, the accompanying correspondence mirrored the language in the letter of the same date addressed to Young. The correspondence to Edson did note, however, that the attempted delivery to Young earlier in the day had been made pursuant to instructions from Edson in previous correspondence insisting upon delivery to Young’s residence. Edson rejected the check.

Edson’s Demand for Payment

On October 3, 2005, Edson sent a letter to Gumfory’s counsel concerning Young’s rejection of the September 30 payment. The letter stated, in pertinent part:

My client has incurred and/or paid considerable attorneys fees and other expenses ... So your tender, even if “unconditional” ... is in the wrong amount AGAIN!!!
Demand is hereby made for fees and expenses to date of not less than $25,000 ... We would apply this check against those sums now due, but as you know, it has a defective payee ... any further checks tendered to us will be applied, first to the payments of attorneys fees, court costs, and other expenses, before application to the principal and/or interest accrued. As I’ve said, you haven’t done this before, have you ... When added to the $25,000 in fees and expenses demanded above, already incurred, the total amount required to de-fease [sic] the lien in the Deed of Trust today is now $74,049.64.

(Emphasis in original). The letter also included a demand for a cashier’s check in the amount stated above.

The Dallas County Lawsuit

On October 7, 2005, Gumfory initiated the underlying lawsuit by filing a petition in interpleader and application for injunc-tive relief in Dallas County. Edson and Young were named as rival claimants to the tendered payments on the Note, and Gumfory tendered an initial interpleader payment of $1,000 into the registry of the court. Gumfory also sought to enjoin Young’s threatened foreclosure on the Property.

Notice of Acceleration

Despite the interpleader deposit and the pending application for a temporary restraining order, on October 8, 2005, Young, acting through Edson, gave notice of acceleration, with non-judicial foreclosure on the Property to occur on November 1, 2005. The trial court enjoined the foreclosure, granting both a temporary restraining order and subsequently, a temporary injunction.

Consolidation of the Lawsuits

The Denton County lawsuit was consolidated with the Dallas County action, and thus, the claims asserted in the Denton County suit became a part of this case. After depositing the initial $1,000 in inter-pleader, Gumfory deposited an additional $35,535.63 into the registry of the court.

Appointment of the Auditor

On January 26, 2006, the trial court appointed the Honorable Joseph M. Cox (the “Auditor”) to serve as auditor in the case. The order of appointment stated the Auditor was to perform “all related duties the Court deems appropriate.” The parties submitted briefs and expert reports to the Auditor at various points in the litigation. On August 18, 2006, the Auditor filed his report with the court. The report stated the Auditor was of the opinion that Gumfory’s calculations as to the amount to pay off the Note were correct and the sum of $38,057.11 was amount required to pay off the remaining balance of the Note as of March 15, 2005. The Auditor also stated “[a]ll other issues as to the dispute between the parties should be referred back to [the court].” Although the Auditor invited the parties to submit findings of fact and conclusions of law, neither party did so. There is also no record of either party filing objections to the Auditor’s report.

The Summary Judgments

On October 10, 2006, Gumfory moved for a traditional partial summary judgment on his usury claim. On December 22, 2006, the trial court granted the motion in part and denied it in part. The summary judgment order recited several facts the court ordered established as a matter of law. In particular, the court determined as a matter of law that the Auditor’s conclusion was correct, and stated that the court accepted and adopted the auditor’s finding that the sum of $38,057.11 was the amount required to pay off the Note as of March 15, 2005. The summary judgment order also identified several material facts to be determined at trial, including the determination of whether the Note was a commercial loan as defined by the finance code.

Following the entry of the order on partial summary judgment, Gumfory amended his petition to include a breach of contract action against Young for failure to release the lien on the deed of trust. Gumfory asserted he had suffered damages because the sale of the Wagner/Nichols tract to a third party failed to close and as a result, Gumfory had to rescind the sale to Wagner/Nichols. The petition also included previously asserted claims for a usury, an accounting, and declaratory relief.

On March 3, 2007, Gumfory filed a second motion for summary judgment seeking to dispose of all remaining claims. On November 27, 2007, the trial court signed a summary judgment order granting the motion in part and denying the motion in part. The order granted Gum-fory’s motion to strike Young’s supplemental response to the summary judgment as untimely filed and sustained Gumfory’s objections to the summary judgment evidence. The court denied summary judgment on release of the lien, and granted summary judgment on all of the claims Young asserted against Gumfo-ry’s lawyers, including alter ego, violation of ethical and professional duties, intentional misrepresentation, commercial extortion, and malicious prosecution. The court reserved for trial the remaining issues of what amount was owed on the Note as of August 29, 2005, whether there was a breach by Young’s failure to accept the tender, and whether Gumfory was entitled to damages, including attorney’s fees, as a result of the breach.

Subsequently, but prior to the trial of the remaining issues, the trial judge also announced to the parties that she had ruled the loan was a commercial loan, and therefore the maximum rate of interest chargeable on the loan for purposes of the usury analysis was 18% per annum.

Trial and Judgment

The case was tried to the court on November 30, 2007. At the conclusion of trial, the court made written findings of fact and conclusions of law. Final judgment was entered on December 28, 2007. In the final judgment, the court reaffirmed it prior rulings on summary judgment and its ruling that the loan was a commercial loan. The court also included “findings” in the final judgment. In particular, the court used the Auditor’s figure of $38,057.11 and deducted five additional payments to determine the amount due on the Note at the time of the attempted payments was $35,327.03. Although the court repeated some of the findings set forth in its findings of fact and conclusions of law, some of the “findings” in the final judgment were different. The court ordered that Gumfory recover $11,363.16 from Young in actual damages, and $135,432 in attorney’s fees from Young and Edson, jointly and severally. The judgment also declared Gumfory was entitled to the release of the deed of trust lien. Following the entry of judgment, Young moved for a new trial. Gumfory moved for an order directing the District Clerk to disburse the funds in the court registry to Gumfory as a credit to be applied to the judgment. Young opposed the release of the registry funds and began the process of filing a supersedeas bond. The trial court denied the motion for new trial and granted the motion to release the funds. This appeal followed.

Discussion

Interpretation of the Promissory Note

In his first issue, Young contends the trial court erred in its interpretation of the Note’s prepayment clause. Because the ruling about which Young complains is set forth in a partial summary judgment order entered on December 22, 2006, we construe this issue as a challenge to the trial court’s first grant of partial summary judgment.

We review a grant of summary judgment under a de novo standard. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). When reviewing a traditional summary judgment, we determine whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact on one or more of the essential elements of the plaintiffs causes of action or each element of the affirmative defense. Tex.R. Civ. P. 166a(c); American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004).

The Auditor concluded that Gumfory’s calculations concerning the amount required to pay the remaining balance on the Note were correct, and the sum of $38,057.11 was the amount required to pay off the Note as of March 15, 2005. Significantly, however, the issue before the court on summary judgment was whether the amount demanded by Young to pay off the Note constituted a charge of usurious interest. In support of his summary judgment usury argument, Gumfory submitted the Auditor’s report to demonstrate that Young charged more on the Note than was due and owing. The trial court did not rule on the usury issue, but determined as a matter of law that the Auditor’s conclusion was correct. Although the trial court arguably may have granted more relief than requested, Young does not complain about the summary judgment, nor does he advance an argument that the trial court’s ruling exceeded the scope of the summary judgment.

While we recognize the parties’ usury arguments may necessarily have been premised on their respective underlying interpretations of the Note’s prepayment clause, the express summary judgment ruling concerned only the Auditor’s conclusion. Young’s argument, which is couched only in terms of the trial court’s purportedly erroneous construction of the Note, essentially requires an inference that the Auditor’s conclusion was predicated on interpretation of the Note, followed by an inference that in adopting the Auditor’s conclusion the trial court construed the Note. But even if we were inclined to indulge these seemingly logical assumptions, the scope of our review is limited to the summary judgment record upon which the trial court’s ruling was based. See C.M. Asfahl v. Tensor, Inc., 135 S.W.3d 768, 787 (Tex.App.-Houston [1st Dist.] 2004, no pet.). We consider only the issues raised and the proof actually presented by the parties in their written motions and responses. See Mayfield v. Lockheed Eng. & Sciences, Co., 970 S.W.2d 185, 187 n. 2 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). It is to these issues that we now turn.

In his partial motion for summary judgment, Gumfory argued Young overcharged him on two occasions when he quoted the amount due to pay off the Note. According to Gumfory, these quotes constituted charges of usurious interest. Although the motion references the prepayment clause, there is no argument or authority concerning its construction. The Auditor’s report was adduced as summary judgment evidence for the sole purpose of establishing the amount due on the Note when Gumfo-ry attempted to pay it. There was no argument or evidence specifically directed toward or addressing the underlying basis of the Auditor’s conclusion.

In addition to the Auditor’s report, Gumfory’s summary judgment evidence included the affidavit of Lynn Gumfory. Ms. Gumfory authenticated the Note and the parties correspondence, and described the attempts to pay off the Note. Gumfo-ry also submitted excerpts from Young’s deposition in which Young discussed payments and credits under the Note. Finally, Gumfory’s summary judgment evidence included an expert affidavit addressing the spreading of interest over the life of the loan for purposes of establishing that Young charged usurious interest.

Although Young did not file separate objections to the summary judgment evidence, the response itself contains several statements that might be construed as objections. Notably, in a paragraph assailing the integrity of the Auditor, Young states the Auditor’s report is “wrong” and “procedurally defective” because the Note “does not allow for this loose interpretation of the transaction of the parties.” But there is no argument, authority, or evidence to support these bare assertions. Apparently recognizing a dimension of the dilemma with which we are now faced, Young further stated that the Auditor’s report “contains no ‘findings of fact’ or ‘conclusions of law’ regarding the proper interpretation of the promissory note.” If these statements were intended as objections, there is nothing in the record to indicate that Young pursued the objections to a ruling. But we need not consider whether the objections were based on form or substance or whether the granting of the summary judgment implicitly overruled the objections because Young has not challenged the summary judgment evidence on appeal. Conversely, if the statements were intended as argument raising a material fact issue about the auditor’s report, they were not supported by competent summary judgment evidence. See Tex.R. Civ. P. 166a (c).

Young’s summary judgment evidence consisted of excerpts from Gumfory’s deposition concerning the subdivision of the Property, the payment of taxes, and whether Gumfory claimed a homestead exemption on the Property. Young also submitted property tax records as evidence. Young argued this evidence established that the commercial and investment rate of interest should apply to the Note for purposes of determining whether usurious interest was charged. To address the calculation of interest for purposes of the usury analysis, Young submitted an expert affidavit in which the expert computed the effective interest rate on the Note using the pay off figure Young quoted to Gumfo-ry. None of this evidence pertained to or challenged the Auditor’s conclusion or the underlying construction of the prepayment clause in the Note.

Young maintains the submissions to the Auditor were the source of the error. According to Young, “the [Auditor] erred in stating the payoff amount and the court erred by adopting the [Auditor’s] recommendation and using that figure in her payoff calculations.” In support of his argument, Young directs our attention to four expert reports he contends were submitted to the Auditor. But none of these reports were part of the summary judgment record. Indeed, two of the reports are not part of the record at all. Although the other two reports generally appear in the appellate record, they were submitted to the court outside the context of the summary judgment proceeding and after the Auditor’s report was filed. Therefore, the reports were not summary judgment evidence and do not demonstrate the basis of the Auditor’s conclusion for purposes of our summary judgment analysis.

In a seemingly circular argument, Young insists the court construed the contract by adopting the Auditor’s conclusion. Yet Young also states “the court ignored that the [Auditor’s] primary focus was on whether usury occurred and not to interpret the contract.” The fallacy of both approaches- is that there is no summary judgment evidence to establish either the Auditor’s focus, or whether and to what extent the Auditor may have interpreted the Note. . Likewise, there is no summary judgment evidence from which we might draw reasonable inferences in this regard.

In short, there is nothing in the summary judgment record to establish the basis for the Auditor’s conclusion or that the Auditor’s conclusion was challenged in the context of the summary judgment proceeding. The summary judgment record is also devoid of direct or circumstantial evidence or reasonable inferences that the Auditor’s conclusion was incorrect. As a result, we cannot infer that the trial court construed the Note by adopting the Auditor’s conclusion. Viewing only the evidence in the summary judgment record and resolving all doubts in Young’s favor, we conclude that because Young did not raise a material fact issue concerning any aspect of the Auditor’s report, the trial court did not err in adopting the Auditor’s conclusion as a matter of law. Young’s first issue is overruled.

Tender

Without identifying specific findings, in his second issue Young generally argues the trial court erred in finding that a proper tender occurred. In support of this argument, Young asserts because he has established the court’s interpretation of the Note was in error, there is no evidence to support the court’s finding of breach for rejection of the tenders. Young also urges that he was justified in rejecting the tenders because the tenders were defective. Gumfory responds that the trial court correctly interpreted the Note and the tenders were not defective.

The standards of review for claims of legal and factual sufficiency of the evidence govern appeals of non-jury trials on the merits. IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex.1997). When a party appeals from a non-jury trial, it must complain of specific findings and conclusions of the trial court. City of Dallas v. Pacifico Partners, Ltd., 289 S.W.3d 371, 373 (Tex.App.-Dallas 2009, no pet.). A general complaint against the trial court’s judgment does not present a justiciable question. Id. In an appeal from a bench trial, a trial court’s findings of fact “have the same force and dignity as a jury’s verdict upon questions.” Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991); see also Aland v. Martin, 271 S.W.3d 424, 428-29 (Tex.App.-Dallas 2008, no pet.).

A trial court’s findings of fact may be reviewed for factual sufficiency under the same standard that is applied in reviewing evidence to support a jury’s answer. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); FDIC v. F & A Equip. Leasing, 854 S.W.2d 681, 684 (Tex.App.-Dallas 1993, no wilt). When findings of fact are filed and unchallenged, they are binding on an appellate court unless the contrary is established as a matter of law, or if there is no evidence to support the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986). In determining if a trial court’s findings of fact were factually sufficient, we review all evidence in the record, including evidence contrary to the finding. See Tierra Sol Joint Venture v. City of El Paso, 155 S.W.3d 503, 507 (Tex.App.-El Paso 2004, pet. denied). We may set aside the finding only if it is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Id. We may not substitute our judgment for that of the fact finder, even if we would have reached a different conclusion when reviewing the evidence. Id.

We review the trial court’s legal conclusions de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). In our review of the legal sufficiency of the evidence supporting the judgment, we must determine whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). We review the evidence in the light most favorable to the verdict, crediting favorable evidence if a reasonable fact finder could and disregarding contrary evidence unless a reasonable fact finder could not. Id. A legal-sufficiency issue will be sustained if the record reveals one of the following: (1) the complete absence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence established conclusively the opposite of the vital fact. Id. If we determine that the trial court made an erroneous conclusion of law, we will not reverse if the trial court rendered the proper judgment. BMC Software Belgium, N.V., 83 S.W.3d at 794. We uphold conclusions of law if the judgment can be sustained on any legal theory supported by the evidence. Id.

We begin by addressing Young’s contention that the trial court’s findings are not supported by sufficient evidence because the trial court’s interpretation of the Note was incorrect. Again, this contention pertains to the trial court’s ruling on the first partial summary judgment. We have already concluded the trial court did not err in granting partial summary judgment and therefore reject Young’s sufficiency challenge to the findings he claims are insupportable because of this ruling.

Next, we turn to Young’s argument that the defective nature of the tenders obviated Young’s obligation to accept them. Young challenges both of Gumfo-ry’s attempts to pay off the Note on September 30 and the tender of funds into the registry of the court, claiming these tenders were defective because among other things, they were not unconditional.

A tender is an unconditional offer by a debtor to pay a sum not less than the full amount due on a debt or obligation. Weisfeld v. Texas Land Finance Co., 162 S.W.3d 379, 383 (Tex.App.-Dallas 2005, no pet.). Young’s argument concerning the alleged conditional nature of Gumfory’s tenders focuses on Gumfory’s efforts to pay the note in full. But we need not consider whether Gumfory’s efforts to pay off the Note constituted conditional, or otherwise improper tenders because even if the breach findings relating to the tenders were in error, the trial court’s other finding of breach supports the judgment. See BMC Software Belgium, N.V., 88 S.W.3d at 794.

Specifically, in addition to the findings about which Young complains, the trial court also found “[d]efendants breached the terms of the Note by refusing to accept prepayments of principal on the Note during August and September 2005.” This finding is supported by the evidence. The Note expressly provided for prepayment and prepayment could be in any amount. In his September 30 correspondence, Gumfory stated that the $36,535.63 was for the payment of unpaid principal and accrued interest and a prepayment of principal as allowed by the Note. Even if Young disputed whether the amount fully satisfied the total amount of the Note, the express terms of the Note still required that he accept the $36,535.63 as a prepayment. Therefore, the trial court correctly concluded that Young breached the terms of the Note by refusing to accept prepayments of principal, and the trial court’s judgment is supported by this finding. Young’s second issue is overruled.

Breach, Damages and Attorney’s Fees

In his third issue, Young argues the evidence is insufficient to support several of the court’s findings. First, Young challenges findings 10-12 regarding Young’s breach of the terms of the Note. Young insists that each of the breach findings was premised on the court’s “erroneous conclusions about the Auditor’s report and conclusion and its calculation of the amount due under the Note.” We previously concluded the trial court did not err in adopting the Auditor’s conclusion as a matter of law, and therefore find Young’s sufficiency challenge based upon the trial court’s summary judgment ruling unpersuasive. In addition, while the findings related to Gumfory’s tenders of the full amount of the Note stemmed from the Auditor’s conclusion, the finding of breach by failure to accept prepayments of principal is unrelated to the Auditor’s conclusion concerning the amount required to pay off the Note.

Young also challenges the findings related to the charging of interest (number 9 and 11). Finding number 9 states “[d]e-fendants breached the terms of the Note by charging excessive, albeit not usurious interest.” Finding number 11 states “[d]e-fendants breached the terms of the Note by continuing to charge interest on those parts of the principal of the Note that had previously been prepaid by plaintiffs.” As Young correctly notes, however, the trial court found there was no usury because the Note was a commercial note. In addition, we have previously concluded Young breached the Note by refusing to accept prepayment. Therefore, even if the trial court erred in finding breach based upon the charging of excessive interest, such error does not support reversal of the judgment. See BMC Software Belgium, N/V., 83 S.W.3d at 794.

Young also argues the evidence is insufficient to support finding number 15 awarding Gumfory consequential damages because it relies on the “prior erroneous breach findings.” We have determined the trial court correctly concluded that Young breached the Note. Therefore, the award of damages based upon the breach was not in error.

Next, Young challenges the trial court’s finding that Gumfory is entitled to recover lost profit on the sale to Wagner/ Nichols. The record reflects that Gumfory sold the tract to Wagner/Nichols for a profit and financed the sale. A sale of the Wagner/Nichols tract was pending when Young refused to release the deed of trust lien on the Property. Because Young refused to release the hen, the sale from Wagner/Nichols to a third party could not be consummated. As a result, Gumfory was forced to rescind the sale to Wagner/Nichols and refund the interest Wagner/Nichols had paid. Gumfory was also required to pay the taxes on the tract that he would have avoided had the third-party sale closed. The record further reflects that Gumfory’s damages totaled $11,363.16, the amount found by the trial court. Based on our review of the record, we conclude the evidence is sufficient to support the trial court’s finding.

Finally, Young asserts Gumfory is not entitled to an award of attorney’s fees under chapter 37 or 38 because the trial court erroneously concluded there was a breach of contract and the court’s declaration of rights under the Note was in error. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009, 38.001 (Vernon 2008). We have concluded the trial court’s finding of breach was not in error. Consequently, Young’s challenge to the award of fees on this basis also fails. Because the attorney’s fees award is proper under Tex. Civ. Prac. & Rem.Code Ann. § 38.001, we need not address whether the award is also proper under chapter 37. See BMC Software Belgium, N/V., 83 S.W.3d at 794. Young’s third issue is overruled.

Edson’s Status As An Adverse Claimant.

The trial court found that Edson made a conflicting claim to the sums Gum-fory tendered to Young, and concluded that because Gumfory was subject to rival claims from Edson and Young, interpleader was appropriate. In his fourth issue, Young contends the evidence is insufficient to support this finding and there is no viable basis for the trial court’s conclusion. We disagree.

Under rule 43, a party who receives multiple claims to funds in its possession may join all claimants in one lawsuit and tender the disputed funds into the registry of the court. Tex.R. Civ. P. 43; Cable Communications Network, Inc. v. Aetna Cas. & Sur. Co., 838 S.W.2d 947, 950 (Tex.App.-Houston [14th Dist.] 1992, no pet.). A party is entitled to interpleader relief if three elements are met: (1) it is either subject to, or has reasonable grounds to anticipate, rival claims to the same funds; (2) it has not unreasonably delayed filing its action for interpleader; and (3) it has unconditionally tendered the funds into the registry of the court. Sav. & Profit Sharing Fund v. Stubbs, 734 S.W.2d 76, 79 (Tex.App.-Austin 1987, no writ). We note at the outset that Young challenges only whether Edson was an adverse claimant to the funds; there is no assignment of error to the unconditional nature of the tender in connection with Edson’s liability nor is there a challenge to the award of attorney’s fees under the law of interpleader. Our review is restricted accordingly. See Tex.R.App. P. 38.1.

We begin by reviewing all evidence in the record that either supports or is contrary to the trial court’s finding that Edson was a competing claimant to the interpleader funds. Edson’s October 3 correspondence is instructive in this regard. After he demanded an additional $25,000 for his fees and expenses, Edson stated that any further checks tendered as payment on the Note would first be applied to the payment of these expenses. Edson then added the amount of his fees and expenses to the amount Young claimed was due on the Note, and stated that the combined total was required to release the deed of trust lien. Young argues Edson did not state the attorney’s fees should be paid directly to Edson, but reasonable inferences from the evidence suggest otherwise. When Edson stated “we would apply the check against [attorney’s fees and expenses], but as you know, it has a defective payee ...” it could reasonably be interpreted as a claim for payment to be made to Edson. In fact, the unobjected to trial testimony of Gumfory’s counsel reflects that this is exactly how the statement was interpreted. Specifically, counsel testified that Gumfory interpreted Edson’s demand as a claim of the first right to the first $25,000 tendered into the registry of the court. The court might reasonably have concluded that Edson conceded the point about the interpretation of his letter. When Edson testified at trial, he admitted the October 3 correspondence into evidence and testified that it was the only basis he could think of that would permit Gumfory to name him as a party. In considering the effect of Edson’s correspondence, we note that a stakeholder “need only show that it is or may be exposed to double or multiple liability as a result of conflicting claims justifying a reasonable doubt as to which claimant is entitled to the funds.” Bank One, Texas N.A. v. Taylor, 970 F.2d 16, 23 (5th Cir.1992) (citing Sav. & Profit Sharing Fund, 734 S.W.2d at 79) (applying Texas law). Any reasonable doubt as to a party’s right to interpleader should be resolved in his favor. See Citizens Nat’l Bank v. Socony Mobil Oil Co., 372 S.W.2d 718, 722-23 (Tex.Civ.App.-Amarillo 1963, writ ref'd n.r.e.).

Without argument or authority as to the significance, Young generally refers to the joint answer Young and Edson filed in response to the petition in interpleader to demonstrate Edson’s “opposition” to being named as a defendant in the lawsuit. Although the answer contains a special exception to naming Edson and his law firm as defendants, the record does not reflect whether the special exception was ever ruled upon by the court. In addition, under the heading “Verified Special Denials” there is a statement that “defendant is not liable in the capacity in which he is sued, specifically as individuals and attorneys.” We assume Edson is the “defendant” to which the special denial refers, but note that Edson’s verification is not attached to the answer. Regardless of how Edson elected to demonstrate his opposition to being named as a party, however, Young fails to explain how such opposition establishes that Edson made no claim to the interpleader funds.

The record also reflects that Edson and Young jointly filed an application for distribution of funds from the registry of the court. Contrary to Gumfory’s assertion, the application does contain a statement that might be construed as Edson’s disclaimer to the finds. The application states that the check should be made out to Young because Edson has no claim apart from what was due and owing to his client. But Gumfory’s counsel testified without objection at trial that Edson refused to withdraw his demand for attorney’s fees in connection with his efforts to have the funds released from the registry of the court. The trial court’s docket sheet reflects that the application to distribute the finds was denied following a hearing, but there is no record of the hearing before us. Therefore, we presume the evidence adduced at the hearing supported the trial court’s finding. See Mason v. Our Lady Star of the Sea Catholic Ch., 154 S.W.3d 816, 819 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (stating with only partial reporter’s record appellate court presumes omitted portions of record are relevant and support the judgment).

Having reviewed the evidence, we cannot conclude the trial court’s finding was so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Similarly, within the narrow context of Young’s challenge, we cannot conclude the trial court’s legal conclusion is incorrect. Young’s fourth issue is overruled.

Execution on Superseded Judgment

In his fifth issue, Young argues the trial court erred in releasing the funds from the registry of the court to Gumfory as a credit against the judgment. Young maintains that a supersedeas bond, filed after Gumfory moved to release the funds, was on file with the court and the court “should have been aware of it.” Gumfory responds that the bond was not perfected at the time the court considered release of the funds and the record does not demonstrate Young ever notified the court that he had complied with the requirements for posting an effective supersedeas bond.

We have concluded the trial court did not err in awarding judgment to Gumfory. Therefore, we need not consider whether the trial court erred in releasing the funds. In light of our disposition of the case on appeal, any such error would have been harmless. See Tex.RApp. P. 44(a)l.

Having resolved all of Young’s issues against him, we affirm the trial court’s judgment.

      . In appellants' brief, Young asserts arguments on his own behalf and on behalf of Edson. Both parties joined in the notice of appeal, and appellants' counsel confirmed at oral argument that they represent both Edson and Young. Unless otherwise specified, references to Young's arguments include both Ed-son and Young.

      . An associate judge subsequently sanctioned Edson under section 10 of the civil practice and remedies code for filing claims for an improper purpose, including harassment, undue delay, and increased expense in the litigation. The associate judge also determined the claims were not viable and had no evidentiary support, and Edson failed to use due diligence in connection with his decision to sign the pleading asserting these claims. Edson filed a notice of appeal of the associate judge’s ruling, but there is no district court order affirming or reversing the associate judge’s decision.

      . Both parties fail to distinguish between the evidence submitted in the first and second summary judgment proceedings. The December 22 partial summary judgment, however, is the only summary judgment pertinent to this issue. The court’s “reaffirmation” of its December 22 ruling in the second partial summary judgment order is of no consequence to our analysis. Therefore, our review is limited to the evidence before the court at the time of the first motion for partial summary judgment.

      . Affording Young's argument a liberal construction, we still cannot construe this general statement, unsupported by argument or authority, as an argument that the trial court exceeded the scope of the summary judgment. See TexJR.App. P. 38.1.

      . Young is apparently referring to "findings” the court recited in the final judgment rather than the separately filed findings of fact and conclusions of law. Findings of fact are not to be recited in a judgment. See Tex.R. Civ. P. 299a; Frommer v. Frommer, 981 S.W.2d 811, 814 (Tex.App.-Houston [1st Dist.] 1998, pet. dism’d). Here, neither party complains about the findings in the judgment. For purposes of Young’s third issue, there is no conflict between the findings in the judgment and the findings made pursuant to Tex.R. Civ. P. 297 and 298. Therefore, we consider the findings identified by Young in evaluating his argument.

      . Gumfory correctly notes that the trial court also found that attorney's fees should be awarded pursuant to the law of interpleader. But this finding was set forth in the findings of fact and conclusions of law. The finding in the judgment awarded fees only under chapter 37 and 38. Because Young does not challenge the attorney's fees award in interpleader, we need not address these discrepancies in the findings. See Tex.R. Civ. P. 299a.

      . In addition, to the extent Young intended the passing reference to joint and several liability as a challenge to anything other than Edson's status as an adverse claimant to the interpleader funds, we conclude the argument has been waived. See RAP 38.1; Johnson v. Oliver, 250 S.W.3d 182, 187 (Tex.App.-Dallas 2008, no pet.).


author: GUADALUPE RIVERA, Justice.

text:
    Patricia Anne RUBSAMEN and EBR & Par Limited Partnership, Appellants, v. Winifred WACKMAN, Janice Kellogg, Jessica Clark, and Joseph Grady Clark, Appellees.
    No. 08-09-00004-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 4, 2010.

      Patricia Rubsamen, Arlington, VT, for Appellants.
    Richard H. Parker, Richard Parker & Associates, Houston, TX, for Appellees.
    Before McCLURE, J., RIVERA, J., and BARAJAS, C.J. (Ret.).
   OPINION

GUADALUPE RIVERA, Justice.

Appellants, Patricia Rubsamen and EBR & PAR Limited Partnership, raise two issues on appeal. In the first issue, Appellants allege that the trial court was without in personam jurisdiction to issue a turnover order, a supplement to that order, or a “final turnover and charging order” because they were not properly served with process and did not enter an appearance. In the second issue, Appellants allege that the trial court abused its discretion because it attached and levied exempt property and property not owned by them, and there was allegedly no evidence that there was nonexempt property that could not be attached or levied by ordinary legal proceedings. We affirm.

BACKGROUND

Appellees secured a judgment against Appellants in the United States District Court for the Western District of Texas. In an effort to identify the assets available to satisfy the judgment, Appellees filed an application for turnover relief and for charging order. The trial court held a hearing to consider the application, issued a turnover order and, several days later, issued a supplemental order defining the responsibilities and duties of the receiver. Appellants appeal.

DISCUSSION

In their first issue on appeal, Appellants complain that the trial court lacked in personam jurisdiction. In their second issue, Appellants complain that the trial court abused its discretion because: (1) it attached and levied exempt property and property not owned by Appellants, and (2) “there is no evidence that there was nonexempt property that could not be attached or levied by ordinary legal proceedings.” We do not address the merits of these complaints as we find them inadequately briefed.

Inadequate Briefíng

The Rules of Appellate Procedure require that Appellants’ brief contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R.App. P. 38.1(i). When the appellate issues are unsupported by argument or lack citation to the record or legal authority, nothing is presented for review. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004); Valadez v. Avitia, 238 S.W.3d 843, 844-45 (Tex.App.-El Paso 2007, no pet.); Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex.App.-El Paso 2007, pet. struck); Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex.App.-Amarillo 2003, pet. denied); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.App.Houston [14th Dist.] 2002, no pet.). It is Appellants’ burden to discuss their assertions of error, and we have no duty — or even right — to perform an independent review of the record and applicable law to determine whether there was error. Valadez, 238 S.W.3d at 845. Nor are we required to sift through the record in search of facts supporting a party’s position. Tex.R.App. P. 38.1(f), (h); Lawton v. State, 913 S.W.2d 542, 554 (Tex.Crim.App.1995) (when a party does not refer the appellate court to the precise pages in the record where the error allegedly occurred, the appellate court may properly overrule the issue as inadequately briefed); Alvarado v. State, 912 S.W.2d 199, 210 (Tex.Crim.App.1995) (it is not an appellate court’s task to review the record in an attempt, to verify appellant’s claims); Nawas v. R & S Vending, 920 S.W.2d 734, 737 (Tex.App.-Houston [1st Dist.] 1996, no writ) (an appellate brief must include a fair, condensed statement of facts pertinent to the points of error raised with references to pages in record where facts may be found, and appellate court is not required to search record without guidance to determine whether assertions regarding facts of case are valid).

Here, although Appellants provide three record citations — two in the Statement of the Case and one in the Argument—they do not direct us to the facts recited in Appellants’ brief but, rather, they direct us to the index of the reporter’s record. Lawton, 913 S.W.2d at 554; Alvarado, 912 S.W.2d at 210; Nawas, 920 S.W.2d at 737. Because Appellants have not provided any relevant or applicable cites to the record, and because we have no duty to search the record for the complained-of errors, we hold Appellants inadequately briefed their complaints. Tex.R.App. P. 38.1. Accordingly, we overrule Appellants’ complaints on appeal.

CONCLUSION

The trial court’s judgment is affirmed.

BARAJAS, C.J. (Ret.), sitting by assignment.


author: Chief Justice MORRISS.

text:
    William Barry TRAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-09-00238-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted July 19, 2010.
    Decided Aug. 5, 2010.

      Forrest K. Phifer, Law Office of Forrest K. Phifer, Rusk, for appellant.
    Kelley D. Peacock, Asst. Dist. Atty., Rusk, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

The small white pickup truck driven by William Barry Travis in Cherokee County was not seen violating any traffic law or exhibiting any signs that the driver was intoxicated or otherwise in distress, when Officer Matthew Poole saw, followed, and ultimately stopped it. Poole was acting on an earlier telephoned report that Travis had been intoxicated when he assaulted his brother and left the scene driving a small, white pickup truck. As a result of the stop, Poole discovered evidence suggesting that, in fact, Travis was intoxicated.

Travis argued to the trial court that the stop was improper and that, therefore, the evidence should be suppressed. After the trial court overruled Travis’ motion to suppress the evidence, Travis was convicted of DWI and sentenced to 180 days’ confinement and a $2,000.00 fine. On appeal, Travis continues his argument. Because we agree, we reverse the judgment and remand this case to the trial court for further proceedings consistent with this opinion.

Poole received a call from Travis’ brother “claiming that he had assaulted him ... [and] that [Travis] had left the scene and was intoxicated.” Travis’ brother did not want to press charges, and no warrant was obtained. Poole was patrolling one or two hours later when he heard that “an elderly subject, [was] possibly passed out behind the wheel of’ a “small white pickup.” Poole was dispatched to Farm-to-Market 344 and 346 “as a welfare concern.” Because Travis’ brother said Travis left in “his white, Chevrolet S-10 pickup,” Poole thought the welfare concern could be a “10-56,” that is, a possible intoxication case.

While he was in route to his dispatch destination, Poole was passed by a white Chevrolet S-10 pickup. He turned around “and pursued it, to see — you know, to investigate further whether it would be the vehicle I was looking for.” Poole did not see any sign of distress from the driver and did not believe him to be a danger to himself or others. Travis violated no speeding or other traffic law. Poole testified he had no articulable facts to lead him to stop the car based on a reasonable suspicion of DWI. Nevertheless, Poole continued to follow Travis and ran a records check on the vehicle registration. Poole concluded “that this was going to be the person related to the disturbance earlier in the day,” and believed “it was apparent that this was going to be probably the vehicle that I was in route to check on.” Thus, he signaled for Travis to pull over.

Travis sought to suppress Poole’s testimony that Travis smelled of alcohol, had glassy, bloodshot eyes, was harboring a Natural Light on his vehicle floorboard, and admitted to drinking four or more beers. The trial court found that Poole did not have reasonable suspicion to stop Travis for DWI, and this finding is not disputed by any party. The issue on appeal is whether the trial court erred in impliedly finding that the community caretaker exception applied to justify the traffic stop. We hold that the caretaker exception did not apply.

In reviewing a trial court’s ruling on a motion to suppress, we give almost total deference to the trial court’s determination of historical facts and review de novo any questions of law concerning the search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). We will sustain the admission of the evidence if admission is reasonably supported by the record and correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App.2003); Wülover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002).

The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. This prohibition extends to “brief investigatory stops such as the stop of [a] vehicle.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); see Corbin v. State, 85 S.W.3d 272, 276 (Tex.Crim.App.2002). Such a stop must be objectively reasonable in light of the particular circumstances of the case. Maryland v. Wilson, 519 U.S. 408, 411, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Corbin, 85 S.W.3d at 276. Reasonableness depends on “a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law enforcement.” Corbin, 85 S.W.3d at 276 (quoting Wilson, 519 U.S. at 411, 117 S.Ct. 882). A seizure based on reasonable suspicion will generally be reasonable; however, the trial court explicitly ruled that Poole did not have reasonable suspicion to stop Travis. Id.

In certain circumstances, a police officer may reasonably seize an individual through the exercise of the community caretaking function even without reasonable suspicion or probable cause that an offense has been committed. Id. (citing Wright v. State, 1 S.W.3d 148, 151-52 (Tex.Crim.App.1999)); see Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). As part of an officer’s duty to “serve and protect,” an officer “may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help.” Id. (citing Wright, 7 S.W.3d at 151); Bilyeu v. State, 136 S.W.3d 691, 698 (Tex.App.-Texarkana 2004, no pet.). This exception to the warrant requirement has “narrow applicability.” Laney, 117 S.W.3d at 859.

The community caretaking exception cannot be used if the officer is primarily motivated by a different purpose, such as law enforcement. Corbin, 85 S.W.3d at 276. The record reflects that Poole stopped Travis “to check the welfare of the driver” based on a possible “medical or intoxication” problem. The trial court, as the exclusive judge of credibility and the fact-finder, could have concluded Poole was primarily motivated by community caretaking concerns. Id. at 277. Given that determination, we examine whether Poole’s belief that Travis needed help is reasonable by looking at four factors:

(1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.

Id. (quoting Wright, 7 S.W.3d at 151-52).

Since “the purpose of the community caretaking exception is to allow an officer to “seize” and assist an individual whom he reasonably believes is in need of help, the first factor is entitled to the greatest weight.” Id. In this case, this factor undeniably weighs against admission since Poole testified Travis did not appear to be in distress. See id. at 277-78. Although there is record evidence that Travis was driving on a county road suggesting isolation, he may have been close to an intersection. It is the State’s burden to demonstrate the reasonableness of the stop. State v. Dixon, 151 S.W.3d 271, 273 (Tex.App.-Texarkana 2004), aff'd, 206 S.W.3d 587 (Tex.Crim.App.2006). We find this factor to be neutral. See Corbin, 85 S.W.3d at 278. Poole testified Travis was alone, indicating that he did not have access to assistance. However, because Travis was not distressed, there is not much weight to this factor. In regard to the fourth factor, Poole testified he had no reason to believe Travis was a danger to himself or others. Nevertheless, Poole stopped Travis “to check his current state, his welfare, to make sure he is okay.” While the trial court was free to consider Poole’s subjective concern, we find Poole’s belief that Travis required aid objectively unreasonable. Therefore, the narrow community caretaker exception did not justify Poole’s stop. Thus, Travis’ Fourth Amendment rights were violated.

Having found constitutional error, we must conduct a harm analysis to determine whether it calls for reversal of the judgment. Tex.R.App. P. 44.2. To determine whether prejudice occurred by the introduction of improperly admitted evidence at trial, we evaluate the entire record in a neutral manner, and must reverse unless we determine “beyond a reasonable doubt that error did not contribute to the conviction or punishment.” Id. Here, the only evidence that Poole was DWI came from Poole’s testimony of events occurring after the traffic stop. Without the evidence which should have been suppressed, nothing in the record would prove Travis drove while legally intoxicated. After carefully reviewing the record and performing the required harm analysis under Rule 44.2(a) of the Texas Rules of Appellate Procedure, we are unable to determine beyond a reasonable doubt that the trial court’s denial of Travis’ motion to suppress did not contribute to his conviction or punishment. Accordingly, we sustain Travis’ first point of error.

We reverse the trial court’s judgment and remand this case to the trial court for further proceedings consistent with this opinion.

      . Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex R.App. P. 41.3.

      . The record lists Travis’ birthdate as August 12, 1951, making him fifty-six years old at the time of the offense. While admittedly age categorizations can depend on one’s perspective, we doubt the reference to an "elderly subject” referred to Travis.

      .Travis contends that the evidence would be legally and factually insufficient for a jury to render a verdict of guilt if this evidence was suppressed. However, in reviewing legal and factual sufficiency, we consider all of the evidence, whether improperly admitted or not. Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App.2007); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001). From the record, it is clear that a rational jury, as a finder of fact, could have found beyond a reasonable doubt the essential elements of DWI and that the verdict was not manifestly unjust, shocking to the conscience, or demonstrative of bias. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App.2006).

      . As finder of fact, the trial court was free to disbelieve Poole’s testimony of statements made by Travis’ brother.

      . There is no ruling on the record regarding the community caretaker exception. However, because evidence subject to the motion to suppress was admitted in front of the jury, we conclude that the trial court impliedly ruled the community caretaker exception applied.

      . Poole explained that he did not have any articulable facts that would lead to a reasonable suspicion that Travis was DWI, that he did not pull Travis over in suspicion of DWI, and that no traffic laws were violated.