author: JANE BLAND, Justice.

text:
    NXCESS MOTOR CARS, INC., Appellant, v. JPMORGAN CHASE BANK, N.A., Appellee.
    No. 01-09-00018-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 20, 2010.

      Andrew M. Taylor, David Nathaniel Harvey, Gabriel W. Bonacci, Mark Allen Counts, Counts & Bonacci,- L.L.P., Houston, TX, for appellant.
    George M. McDonald, Richardson, TX, Jennifer Soldano, Austin, TX, Robert G. Devlin, Devlin, Naylor & Walker, Houston, TX, for appellee.
    Panel consists of Justices JENNINGS, HANKS, and BLAND.
   OPINION ON REHEARING

JANE BLAND, Justice.

This is a suit to resolve the title to a Mercedes S550 and a lien against that title. The trial court granted summary judgment to the lienholder, JPMorgan Chase Bank, N.A. (Chase), on its conversion claims against Xavier Valeri and U.S. Bank, N.A., and severed this judgment from the cause. Valeri and U.S. Bank both had brought third-party claims against NXCESS Motor Cars, Inc. (NXCESS), for breach of warranty and breach of contract. Concerned that the trial court’s summary judgment rulings are dispositive of the claims against it, NXCESS appeals the trial court’s order granting Chase’s motion for summary judgment. NXCESS contends that the trial court erred by (1) failing to find that NXCESS and Valeri were buyers in the ordinary course, (2) failing to find that the Texas Certificate of Title Act conflicted with the Texas Business and Commerce Code, (3) failing to find that the Code preempts the Act, and (4) finding Valeri liable for conversion. Chase moves to dismiss the appeal for lack of standing. We grant rehearing, withdraw our opinion and judgment dated February 18, 2010, and issue this opinion in its stead to address two arguments NXCESS advances in its motion. Our disposition of the case is unchanged. We conclude that NXCESS has standing to appeal the judgment, but that the trial court’s rulings were proper. We affirm.

Background

In June 2007, James Cavazos purchased a new Mercedes S550 from Mercedes-Benz of Sugar Land and gave Chase a purchase money security interest in the vehicle. The Texas Department of Transportation (TxDOT) recorded Chase’s lien on the original certificate of title. After making only three payments, Cavazos forged a release of the lien against the title and applied for a certified copy of the original certificate of title. In reliance on the certified copy and the forged release letter, the Avatar-Foundation Trust (Avatar Trust) purchased the vehicle from Ca-vazos and signed the “assignment of title” section on the reverse of the certified copy of the title. Avatar Trust then applied for an original certificate of title to the vehicle, submitting the certified copy and forged release letter with its application.

TxDOT then issued a second “original certificate” of title, which listed Avatar Trust as the owner and indicated that no third parties held any liens on the vehicle. Avatar Trust presented this original certificate of title ■ to NXCESS in February 2008. According to NXCESS, it “performed the usual and customary due diligence to determine good, clean, clear title,” and it did not discover Chase’s lien on the vehicle prior to purchase.

Shortly after NXCESS purchased the vehicle from Avatar Trust, Valeri purchased the vehicle from NXCESS and granted a purchase money security interest to U.S. Bank. At this time, NXCESS and U.S. Bank entered into an “indirect dealer agreement,” in which U.S. Bank purchased Valeri’s retail installment contract with NXCESS and NXCESS warranted that title to the vehicle was free of all liens, encumbrances, claims, and defenses. After Valeri’s purchase, TxDOT issued an original certificate of title which listed Valeri as the owner and U.S. Bank as the sole lienholder.

Chase sued Cavazos for fraud and conversion and sued TxDOT, Valeri, and U.S. Bank solely for conversion. Chase sought the balance of its loan to Cavazos, possession of the Mercedes, and declarations that Chase’s lien is superior to all other liens and any titles issued after the initial sale to Cavazos are void. Chase then moved for traditional summary judgment against Cavazos, Valeri, and U.S. Bank, arguing that the summary judgment evidence entitled Chase to judgment as a matter of law on its conversion claim. Valeri, U.S. Bank, and NXCESS responded to Chase’s motion, contending that no conversion occurred because both NXCESS and Valeri were buyers in the ordinary course of business and took title to the Mercedes free of Chase’s lien.

Though NXCESS responded to the motion for summary judgment, Chase asserted no direct claim against it. Valeri, however, had sued NXCESS for breach of warranty and for violations of the Deceptive Trade Practices Act, and U.S. Bank had sued it for breach of contract and breach of warranty. US Bank, in its original cross claim against NXCESS, pleaded:

In addition, should JPMorgan Chase prevail on its claim to invalidate U.S. Bank’s lien, additional warranty violations would be triggered regarding NXcess’s obligation to assign the Contract and Vehicle title free of encumbrances and to obtain a first priority security interest in the Vehicle in favor of U.S. Bank. In the event of a finding in favor of Plaintiff JPMorgan Chase on its lien claim, NXcess is liable to U.S. Bank for the amounts identified above.

The trial court granted summary judgment to Chase against Cavazos, Valeri, and U.S. Bank. The trial court authorized Chase to foreclose its hen, ordered Cava-zos to pay the remaining $96,941 on his loan from Chase, ordered Valeri to turn over possession of the Mercedes to Chase, declared that Chase’s lien is superior to all other claims and liens, and ordered TxDOT to void the title issued to Valeri and all certificates of title issued after July 3, 2007. The trial court then severed the summary judgment order from the remaining claims in the case. The trial court’s order did not adjudicate the claims against NXCESS.

Valeri complied with the judgment by turning over possession of the Mercedes to Chase, which Chase then sold to satisfy its hen. NXCESS appeals the summary judgment order.

Discussion

Appellate Jurisdiction

We first examine whether we have jurisdiction over the appeal. See Smith v. Houston Lighting & Power Co., 7 S.W.3d 287, 288 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993)). Chase moves to dismiss the appeal, contending that NXCESS lacks standing to prosecute it. Chase never asserted any claims against NXCESS in the trial court, which became a party to the suit only after Valeri and U.S. Bank asserted third-party claims against it.

Generally, only parties of record may appeal a final judgment. Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Ass’n, 1 S.W.3d 108, 110 (Tex.1999) (per curiam). To be entitled to appellate review, the party of record’s own interests must also be prejudiced by the trial court’s decision. Buchele v. Woods, 528 S.W.2d 95, 98 (Tex.Civ.App.-Tyler 1975, no writ); Menetti v. Chavers, 974 S.W.2d 168, 171 (Tex.App.-San Antonio 1998, no pet.). NXCESS appeared in the case by filing its answer to Valeri’s third-party petition in June 2008, four months before the trial court granted Chase’s motions for summary judgment. Although NXCESS was not a party to the summary judgment proceedings on Chase’s claims, NXCESS was a party of record.

NXCESS also demonstrates that the judgment on appeal prejudices its interests. In its order granting Chase’s motions for summary judgment, the trial court ruled that (1) Valeri must turn over possession of the vehicle to Chase; (2) Chase’s lien was superior to any claims by Valeri and U.S. Bank; (3) Chase’s title was superior to all titles issued subsequent to the initial title to Cavazos; and (4) TxDOT must void and destroy all titles issued after the initial title. As NXCESS contends, this ruling voided the contracts NXCESS had with Valeri and U.S. Bank and subjected NXCESS to liability for breach of warranty and breach of contract. Shortly after the trial court severed Chase’s claims, U.S. Bank moved for summary judgment on its breach of warranty claim against NXCESS. US Bank stated:

The Court specifically ruled as a matter of law, in granting [Chase’s] MSJ, that the title transferred to U.S. Bank by Nxcess was “void;” that [Chase’s] lien was “superior to any claim of ... U.S. Bank ... ”; and that TXDOT should “void and destroy” the title issued to U.S. Bank on the vehicle. US Bank is, therefore; entitled to summary judgment that Nxcess breached multiple representations/warranties to U.S. Bank under the Agreement with respect to the Valeri contract....

The trial court agreed with U.S. Bank and rendered judgment against NXCESS. We hold that the trial court’s summary judgment order prejudiced the interests of NXCESS, a party of record, and thus NXCESS has standing to appeal. We deny Chase’s motion to dismiss for lack of jurisdiction.

Standard of Review

We review de novo the trial court’s grant of a motion for summary judgment. Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003). For the trial court to properly grant a traditional motion for summary judgment, the movant must establish that there is no genuine issue as to any material fact and the movant is thus entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). When a plaintiff moves for summary judgment on its own claim, the plaintiff must conclusively prove all essential elements of its cause of action as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). A genuine issue of material fact exists if the non-movant produces more than a scintilla of probative evidence regarding the challenged element. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004); see also Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex.2003) (“More than a scintilla of evidence exists if it would allow reasonable and fair minded people to differ in their conclusions.”). We examine the evidence in the light most favorable to the non-movant and we indulge all reasonable inferences and resolve all doubts in the non-movant’s favor. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex.2007) (per curiam). Buyers in the Ordinary Course of Business

In its first issue, NXCESS contends the trial court erred by failing to find that it and Valeri qualified as buyers in the ordinary course of business. The Texas Business and Commerce Code, which contains Texas’ version of the Uniform Commercial Code, provides that title to goods, including motor vehicles, passes to the buyer at the time and place the seller completes performance regarding the physical delivery of the goods, and title passes despite the reservation of a security interest and despite the delivery of a title document at a later time. See Tex. Bus. & Com.Code Ann. § 2.401(b) (Vernon 2009); see also Vibbert v. PAR, Inc., 224 S.W.3d 317, 322 (Tex.App.-El Paso 2006, no pet.) (“Motor vehicles are included in the UCC’s definition of ‘goods.’ ”). A “buyer in the ordinary course of business” may take the goods free of a security interest created by the buyer’s seller, even if that security interest is perfected and the buyer is aware of the interest at the time of purchase. Tex. Bus. & Com.Code Ann. § 9.320(a) (Vernon 2002). To qualify as a buyer in the ordinary course of business, the buyer must “buy[ ] goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person ... in the business of selling goods of that kind.” Id. § 1.201(9) (Vernon 2009). NXCESS relies on these provisions to assert that it is entitled to the Mercedes, regardless of any defect in the title.

The Texas Supreme Court has previously held, however, that a forged certificate of title passes no title to the vehicle. See Drake Ins. Co. v. King, 606 S.W.2d 812, 817 (Tex.1980). The Austin Court of Appeals has extended this holding to include situations in which the certificate of title itself is not forged, but a release of lien, on which the certificate of title is based, is forged. See Lee v. The Bank, N.A., 23 S.W.3d 129, 131 (Tex.App.-Austin 2000, no pet.). In Lee, the original purchaser of the vehicle obtained a certified copy of the certificate of title and forged a letter from The Bank stating that its lien had been released. Id. at 130. The certified copy, which reflected The Bank’s lien, was assigned to two dealers prior to Lee. Lee, in reliance on the forged release, applied for an original certificate of title and stated on his application that no liens existed and the evidence of ownership was a “certified copy [of a] Texas title.” Id. TxDOT issued an original certificate of title to Lee that did not indicate any lienholders. Id. at 130-31. The Austin Court of Appeals held that Lee did not defeat The Bank’s security interest because “the buyer acquires no title when any link in his chain of title is forged.” Id. at 131. Hence, even though the certificate of title itself was not a forgery, “a forged document on which a certificate of title is based voids that title.” Id.; see also Dublin Nat’l Bank v. Chastain, 167 S.W.2d 795, 797 (Tex.Civ.App.-Eastland 1942, writ ref'd) (“Proof of the forgery of a link of title is tantamount to proof that the claimant of such title has none, or, in other words that he is not the owner of the property.”).

In this case, Cavazos applied for and received a certified copy of the certificate of title, which noted Chase’s lien. Ca-vazos then assigned this certified copy and gave his forged release of lien to Avatar Trust. In reliance on these documents, Avatar Trust applied for an original certificate of title, stating that “no liens existed” and the ownership evidence is a “certified copy [of a] Texas title.” Although none of the certificates of title involved in this chain of transactions are forgeries, the release of lien was. Following Lee, we hold that Avatar Trust’s certificate of title is void because it obtained it using a forged release of lien. Avatar Trust never acquired a title to the Mercedes. See Lee, 23 S.W.3d at 131. Avatar Trust thus had no title which it could pass on to NXCESS, and NXCESS had no title which it could pass on to Valeri. See Tex. Bus. & Com. Code Ann. § 2.403(a) (Vernon 2009) (“A purchaser of goods acquires all title which his transferor had or had power to transfer....”).

NXCESS contends that Lee is inapplicable to this case because Lee relied on a certified copy of a certificate of title, and thus could not be a buyer in the ordinary course, whereas NXCESS and Valeri both relied on an original certificate of title. We disagree. Lee’s analogue in this case is neither NXCESS nor Valeri, but is instead Avatar Trust, which relied on a certified copy of the certificate of title and a forged release of lien in purchasing the Mercedes from Cavazos. Just as the forged release of lien voided Lee’s certificate of title, Ca-vazos’ forged release of lien voided the certificate of title of Avatar Trust. None of the subsequent purchasers took valid title to the car. See Lee, 23 S.W.3d at 131.

NXCESS further contends that Cava-zos’ fraudulent conduct does not disturb it and Valeri’s status as buyers in the ordinary course, arguing that Avatar Trust had voidable title, instead of void title, and persons with voidable title can transfer good title to a good-faith purchaser for value. See Tex. Bus. & Com.Code Ann. § 2.403(a); see also Kotis v. Nowlin Jewelry, Inc., 844 S.W.2d 920, 923 (Tex.App.Houston [14th Dist.] 1992, no writ). Section 2.403(a) specifies that a purchaser obtains voidable title if the goods are delivered through a transaction of purchase even if the delivery “was procured through fraud punishable as larcenous under criminal law.” Tex. Bus. & Com.Code Ann. § 2.403(a). In Kotis, Sitton purchased a watch from Nowlin Jewelry with a forged check and then sold the watch to Kotis, who asserted that he was a good-faith purchaser. Kotis, 844 S.W.2d at 921-22. In determining whether Sitton had voidable title, and the ability to transfer good title to Kotis, the Fourteenth Court of Appeals distinguished between a thief, who wrongfully takes goods against the will of the owner and has void title, and a swindler, who fraudulently induces the owner to deliver goods voluntarily and has voidable title. See id. at 922-23. Because Sit-ton did not obtain the watch against Now-lin Jewelry’s will, but instead used a forged check to fraudulently induce Nowlin Jewelry into delivering the watch, Sitton received voidable title and could pass good title to Kotis, if Kotis qualified as a good-faith purchaser. Id. The Fourteenth Court noted, however, that section 2.403(a)(4) only applies to “cases involving acts fraudulent to the seller such as where the seller delivers the goods in return for a forged check.” Id. at 923.

In contrast to Kotis, in this case, the seller of the vehicle, Cavazos, committed the fraud by forging the release of lien and giving it to Avatar Trust. Avatar Trust did not fraudulently induce Cavazos to sell the vehicle. As a result, Avatar Trust did not obtain voidable title to the car and could not transfer good title to NXCESS under section 2.403(a). When Avatar Trust used Cavazos’ forged release of lien to obtain an original certificate of title, the forgery voided Avatar Trust’s certificate of title. See Lee, 23 S.W.3d at 131; cf. Dyson Descendant Corp. v. Sonat Exploration Co., 861 S.W.2d 942, 947 (Tex.App.-Houston [1st Dist.] 1993, no writ) (“A forged deed is void ab initio.... No person can be an innocent purchaser of land where one of the links in the chain of title is a forgery.”); Kirkpatrick Joint Venture v. Loots, 826 S.W.2d 205, 210 (Tex.App.-Fort Worth 1992, writ denied) (“The protection usually afforded to a bona fide purchaser for value without notice does not apply when such purchaser’s claim is dependent upon a forged instrument.... A void instrument passes no title, and the mere fact that the grantee-mortgagee is an innocent purchaser makes no difference.”). Because Avatar Trust possessed void, and not voidable, title, it could not transfer valid title to NXCESS.

NXCESS relies on the Corpus Christi Court of Appeals’ decision in South Texas Bank v. Renteria for the proposition that it and Valeri have the “best title,” and thus are buyers in the ordinary course, because they took physical possession of the Mercedes and their claim derives from an original certificate of title. 523 S.W.2d 780, 786 (Tex.Civ.App.-Corpus Christi 1975, no writ). In Renteria, the original owner of the vehicle obtained a certified copy of the certificate of title, and assigned that title to his employer in exchange for a loan, but retained possession of the vehicle. Id. at 782-83. The employer received a new original certificate of title from TxDOT. Id. at 783. The owner then traded the vehicle to the original dealership, and assigned his original certificate of title to the dealer, who then sold the vehicle to Rente-ria. Id. In the ensuing title dispute between the employer’s lender and Renteria, the Corpus Christi court held that because Renteria had physical possession of the vehicle and an original certificate of title, instead of a certified copy, he had superior title to the vehicle. Id. at 786.

Renteria is distinguishable. We first note that Chase and NXCESS both claim superiority of title based upon an original, and not a certified, certificate of title. Avatar Trust assigned its original certificate, with no lien noted, to NXCESS, and Chase retained the first original certificate from Mercedes-Benz of Sugar Land to Cavazos, with Chase noted as the first lienholder. Second, in Renteria, none of the certificates of title or accompanying release of lien documents involved forgeries. Here, even though NXCESS took physical possession of the Mercedes as well as an original certificate of title assigned from Avatar Trust, the forged release of lien, upon which this certificate was based, voided Avatar Trust’s certificate of title. Under these facts, NXCESS and Valeri cannot have the “best title” to the vehicle. The forged release of lien, which forms the basis for Avatar Trust’s certificate of title, voids that title and all subsequent certificates of title. Thus, the trial court properly rejected NXCESS’s defense that it and Valeri are buyers in the ordinary course of business.

Conflict Between the Certificate of Title Act and the Code

In its second and third issues, NXCESS contends that the trial court erred by failing to find that the Certificate of Title Act conflicts with the Business and Commerce Code and by failing to preempt application of the Act in favor of the Code. Chapter 501 of the Transportation Code encompasses the Texas Certificate of Title Act, and section 501.005 states that “[cjhapters 1-9, Business & Commerce Code, control over a conflicting provision of this chapter.” Tex. Transp. Code Ann. § 501.005 (Vernon 2007). If the same factual situation “can harvest different results under different statutes, the statutes are in conflict.” Vibbert, 224 S.W.3d at 324. Courts have previously held that, for example, section 2.401(b) of the Code and sections 501.071(a) and 501.073 of the Act conflict regarding when and how title to vehicles transfers, and therefore under section 501.005 of the Act, section 2.401 of the Code trumps. See id.; First Nat’l Bank v. Buss, 143 S.W.3d 915, 923-24 (Tex.App.-Corpus Christi 2004, pet. denied).

In this case, NXCESS contends that section 501.134(c) of the Act, relied upon by Chase, conflicts with section 2.403 of the Code, and therefore section 2.403 prevails. Section 501.134(c) provides that, when TxDOT issues a certified copy of the title, “[a] subsequent purchaser or lien-holder of the vehicle only acquires the rights, title, or interest in the vehicle held by the holder of the certified copy.” Tex. Transp. Code Ann. § 501.134(c) (Vernon 2007). Section 2.403 states that “[a] purchaser of goods acquires all title which his transferor had or had power to transfer.... A person with voidable title has power to transfer a good title to a good faith purchaser for value.” Tex. Bus. & Com.Code Ann. § 2.403(a) (emphasis added). Both of these statutes essentially state that a subsequent purchaser cannot acquire greater rights and title than their transferor has, although section 2.403 creates an exception when a person with voidable title transfers the goods to a good-faith purchaser for value: the purchaser receives good title. See id.

The exception, however, is not applicable here. Upon purchasing the Mercedes from Cavazos, Avatar Trust obtained the same rights and title as Cavazos: ownership subject to Chase’s perfected lien. The forged letter of release voided the original certificate of title TxDOT subsequently issued to Avatar Trust. See Lee, 23 S.W.3d at 131. Avatar Trust held void title, not voidable title, and thus had no good title to transfer. Regardless of whether the Certificate of Title Act or the Business and Commerce Code govern, Avatar Trust and all subsequent purchasers received void title to the vehicle due to the forgery in the chain of title. We hold that the trial court did not err in ruling that the Act and the Code do not conflict so as to require that the Act be preempted in favor of the Code.

Valeri’s Liability for Conversion

NXCESS further contends that Valeri was a buyer in the ordinary course who purchased the vehicle in good faith and without knowledge of Chase’s lien, and thus the trial court erred in ruling that Valeri converted the vehicle. To be entitled to summary judgment on its claim for conversion, Chase must establish, as a matter of law, that (1) Chase owned or had possession of the property or entitlement to possession; (2) Valeri unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, Chase’s rights as an owner; (3) Chase demanded return of the property; and (4) Valeri refused to return the property. Ashdon, Inc. d/b/a Impression Bridal v. Gary Brown & Assocs., Inc., 260 S.W.3d 101, 116 (Tex.App.-Houston [1st Dist.] 2008, no pet.). As summary judgment evidence, Chase attached the account information for Cavazos, indicating that he defaulted on the lien on January 15, 2008. Upon default, Chase was entitled to foreclose its lien and take possession of the vehicle. See Tex. Bus. & Com.Code Ann. § 9.601(a)(1) (Vernon Supp.2009).

The only element of conversion that the defendants disputed in the trial court was whether Valeri unlawfully exercised control over the vehicle to the exclusion of Chase’s rights. The defendants contended that based on Renteria, Valeri had the best title to the vehicle, and that he was a buyer in the ordinary course of business who purchased the vehicle in good faith and without knowledge of Chase’s lien. Wrongful intent is not an element of conversion — even innocent buyers of property may be hable. Schwartz v. Pinnacle Commc’ns, 944 S.W.2d 427, 432-33 (Tex.App.-Houston [14th Dist.] 1997, no pet.); see also Smith v. Maximum Racing, Inc., 136 S.W.3d 337, 343 (Tex.App.-Austin 2004, no pet.) (“It is well established under Texas law that acting with good faith or innocence does not constitute a defense to conversion.”); White-Sellie’s Jewelry Co. v. Goodyear Tire & Rubber Co., 477 S.W.2d 658, 662 (Tex.CivApp.-Houston [14th Dist.] 1972, no writ) (“The requisite intent [in a conversion action] is only one to assert a right in the property, and a wrongful intent is not required.”). By purchasing the vehicle, financing it through U.S. Bank, and possessing it, Val-eri asserted a right in the property. Because the chain of title to the vehicle included a forgery, neither Avatar Trust, nor NXCESS, nor Valeri had valid title to the vehicle. The summary judgment record establishes that Valeri assumed and exercised control over the vehicle to the exclusion of Chase’s rights in the vehicle. Thus, the trial court did not err in ruling that Valeri converted the vehicle.

Conclusion

We hold that Avatar Trust’s original certificate of title was based upon a forged release of lien; accordingly, Avatar Trust did not transfer good title to NXCESS or Valeri, and neither party qualifies as a buyer in the ordinary course of business. We further hold that the trial court did not err in ruling that Chase established its conversion claim as a matter of law. We therefore affirm the judgment of the trial court.

      . After the trial court severed Chase's claims it granted U.S. Bank’s motion for summary judgment and rendered judgment against NXCESS for breach of warranty.

      . NXCESS cites two cases from Alabama and Georgia to support its contention that Avatar Trust obtained voidable title. See Hodges Wholesale Cars v. Auto Dealer's Exchange, 628 So.2d 608, 610-11 (Ala.1993); Charles Evans BMW, Inc. v. Williams, 196 Ga.App. 230, 395 S.E.2d 650, 651 (1990). In Hodges, the initial purchaser's check was returned for insufficient funds after he sold the vehicle to a dealer while representing that he was the initial seller. Hodges, 628 So.2d at 609. Similarly, in Williams, the initial purchaser paid with a forged cashier's check and sold the car to a dealer while representing that he was the initial seller. Williams, 395 S.E.2d at 651. In both of these cases, the courts held that the initial purchasers, like Sitton in Kotis, fraudulently induced the seller to sell the vehicle and thus obtained voidable title. Hodges, 628 So.2d at 610-611; Williams, 395 S.E.2d at 651-52.

      . NXCESS contends that even if the transfer to Avatar Trust did not comply with the Certificate of Title Act, the transfer is not automatically void because "noncompliance with the Act does not override the clear showing of a valid and complete transfer of ownership of an automobile.” Hudson Buick, Pontiac, GMC Truck Co. v. Gooch, 7 S.W.3d 191, 197 (Tex.App.-Tyler 1999, pet. denied). In Gooch, the Tyler Court held that a non-compliant transfer, in which the buyer purchased a vehicle without a transfer of the certificate of title, is valid if the transfer does not defeat the purposes of the Act. Id. at 197-98. One purpose of the Act is to "lessen and prevent theft of motor vehicles.” Id. at 197. An additional purpose is to "lessen and prevent ... [the] sale of encumbered vehicles without disclosure of existing liens." Id.; Tex. Transp. Code Ann. § 501.003(3) (Vernon 2007). When Ca-vazos sold the car to Avatar Trust, he provided a certified copy of the certificate of title which noted Chase's lien, but he also provided the forged letter purporting to release the lien. Because of the forged release, this transaction did not validly transfer title to Avatar Trust and defeated the Act’s goal of disclosing existing liens.


source: Caselaw Access Project

author: GEORGE C. HANKS, JR., Justice. TERRY JENNINGS, Justice,

license: Public Domain

text:
    Kevin Patrick DOYLE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-09-00275-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 3, 2010.

      Josh Schaffer, The Schaffer Firm, Houston, TX, for Appellant.
    Eric Kugler, Assistant District Attorney of Harris County, Patricia R. Lykos, Harris County District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices JENNINGS, HANKS, and BLAND.
   OPINION

GEORGE C. HANKS, JR., Justice.

A jury convicted appellant, Kevin Patrick Doyle, of the Class B misdemeanor offense of driving while intoxicated (DWI) and the trial court assessed punishment at 120 days’ imprisonment and an $800 fíne. See Tex. Penal Code Ann. §§ 49.01, 49.04 (Vernon 2008). The trial court suspended the sentence and placed appellant on community supervision for 18 months. On direct appeal, this Court affirmed the conviction, and the Court of Criminal Appeals denied appellant’s petition for discretionary review. Doyle v. State, 265 S.W.3d 28 (Tex.App.-Houston [1st Dist.] 2008, pet. ref'd). On February 5, 2009, appellant filed an application for a writ of habeas corpus, arguing that this Court improperly affirmed his conviction on a legal theory that was not presented by the State in the trial court. The trial court held a hearing on the writ and denied habeas relief.

Appellant now appeals the trial court’s denial of habeas relief. In two points of error, appellant argues that the trial court erred in holding that this Court did not violate his federal constitutional right to due process of law by affirming the trial court’s ruling on his motion to suppress evidence. We affirm.

Background

Just after midnight on June 8, 2006, Officer Margarito Perales watched appellant’s vehicle weave into the oncoming lane of traffic in which the officer was traveling and then return to the correct side of the street. Traffic was busy, and Perales testified he had to stop his marked squad car to avoid a head-on collision with appellant. Perales testified that he made a U-turn and initiated a traffic stop because he had reason to believe appellant had committed a traffic violation for failing to drive in a single lane of traffic. Specifically, Perales indicated his belief that appellant had violated the Transportation Code. Perales testified that the street on which appellant was traveling did not have markings dividing the street into lanes.

Appellant told the officer that he was driving home from a wine tasting at a friend’s house where he drank two glasses of wine. Officer Perales testified that appellant had red, glassy eyes, slurred speech, and an odor of alcohol on his breath. He also testified that, based on his training and experience, these were signs that a person was under the influence of alcohol. Perales administered field sobriety tests, which appellant failed. Pe-rales subsequently arrested appellant for suspicion of DWI. Appellant was taken to the police station, where he repeated and failed several field-sobriety tests. Appellant submitted to a breath test and registered 0.19 breath alcohol content. The breath test was administered approximately an hour after appellant was stopped by Perales, which indicated that appellant was intoxicated at the time he was driving.

On the day of trial, appellant filed a motion to suppress, alleging that Officer Perales lacked reasonable suspicion to stop him and seeking to suppress evidence obtained from an allegedly illegal traffic stop. The trial court carried the motion with the trial and withheld ruling until after Pe-rales’s testimony. During Perales’s testimony, defense counsel asked the officer to indicate the manner in which appellant was driving on a map depicting the roadway. Perales showed with markers on the diagram how appellant’s vehicle weaved into the oncoming lane of traffic. Appellant’s trial counsel repeatedly questioned whether the street had markings dividing it into lanes. Perales testified that the street did not have markings dividing the lanes but indicated that it was a traffic violation regardless of whether the street was divided clearly with markings.

Outside the presence of the jury, appellant’s trial counsel made a short argument on the motion. Appellant’s trial counsel stated, “Pit’s clear to me that he’s making the stop because he feels like that Section 545.060, driving on the roadway for — for traffic with that portion of the statute has been violated.” Appellant’s trial counsel proceeded to argue why Officer Perales’s testimony did not meet the requirements of Section 545.060 of the Transportation Code; specifically, counsel argued that there was no evidence that appellant’s driving was unsafe. The prosecutor responded by arguing there were two independent grounds for the traffic stop: (1) the officer’s reasonable belief that a traffic offense was being committed based on appellant’s “weaving or failing to maintain a single lane of traffic” and (2) the officer’s reasonable belief that the driver of the vehicle was intoxicated, based on his experience and training. The prosecutor never pointed to a specific provision of the Transportation Code. After the brief argument on the motion, the court denied the motion. In denying the motion, the court provided the following explanation on the record:

[Wjhen the weave took place, the officer [was] a few car lengths away and he [was] compelled to stop his car for ... his own safety reason.... Officer Pe-rales had reasonable suspicion ... that 545.060 had been committed. Therefore, he had a valid reason to detain him on a reasonable suspicion on the traffic violation.

On direct appeal, a panel of our Court found that the trial court’s denial of the motion was not an abuse of discretion. Doyle, 265 S.W.3d at 32. Our Court deferred to the trial court’s findings that Officer Perales witnessed appellant weave into the oncoming lane of traffic and was forced to stop his vehicle to avoid a collision with appellant. Applying the applicable standard of review to conclusions of law, we disagreed with the trial court’s statement that the officer witnessed a specific violation under Section 545.060, but nevertheless found that the officer had reasonable suspicion that a traffic offense occurred. Specifically, we held that the facts gave rise to a traffic violation under Section 545.051 of the Transportation Code and thus, Perales had reasonable suspicion to believe a traffic violation had occurred. Id. at 32.

At trial, appellant’s counsel also requested that the jury be provided an instruction pursuant to Article 38.23. Specifically, trial counsel requested that the jury be given an instruction on how to handle illegally obtained evidence. Trial counsel argued that a factual dispute existed as to “the violation of either to maintain a single lane of traffic or weaving[.]” Appellant’s trial counsel provided the court with case law, but the court denied the request for instruction. The court explained that appellant never testified that he did not weave, which distinguished the case from the authority presented by trial counsel.

On direct appeal, appellant also argued that the trial court erred in failing to provide the instruction. Our Court noted that appellant did not contest that he weaved into the lane of oncoming traffic; rather, he explained he did so to avoid a parked car. Our Court held that it was not error and the trial court properly refused the instruction because the facts concerning how the evidence was obtained were not in dispute. Id. at 38-34.

Appellant filed a petition for discretionary review with the Court of Criminal Appeals, which was denied. In his petition for discretionary review, appellant argued the same points he raised later in his post-conviction habeas corpus. The trial court held a hearing on the application for habe-as review and issued findings of fact and conclusions of law. The trial court denied habeas relief, concluding in a written order:

[Defendant’s attorney failed to present any testimony or argument that the defendant violated any section of the Transportation Code by his weaving into oncoming traffic despite his having the opportunity to do so.... Clearly, the defense knew why the defendant was stopped and may not ‘lay behind the kg’ in reliance on the state’s argument. It was readily apparent that Officer Pe-rales had a reasonable suspicion to detain the defendant. The appellate courts have long recognized that the state’s failure to list or verbalize every possible basis for holding search legal does not waive the unstated basis for urging validity on appeal.

Analysis

In two points of error, appellant complains that the trial court erred in denying habeas relief because this Court improperly affirmed the conviction on a legal theory that was not presented by the State in the trial court. Specifically, he contends that our affirmance violated his rights to due process and to a jury charge under our State statutory exclusionary rule.

A. Standard of Review

We review the trial court’s denial of habeas relief under an abuse of discretion standard, and will consider the facts in the light most favorable to the court’s ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App.2006). We afford almost complete deference to the trial court’s determination of historical facts supported by the record, especially when those factual findings rely upon an evaluation of credibility and demeanor. Ex parte Tarlton, 105 S.W.3d 295, 297 (Tex.App.-Houston [14th Dist.] 2003, no pet.). We apply the same deference to review the trial court’s application of law to fact questions, if the resolution of those determinations rests upon an evaluation of credibility and demeanor. Id. However, if the outcome of those ultimate questions turns upon an application of legal standards, we review the trial court’s determination de novo. Id.

B. Availability of Writ

“[B]oth federal and Texas courts have confined the scope of post-conviction writs of habeas corpus to jurisdictional or fundamental defects and constitutional claims.” Ex parte Graves, 70 S.W.3d 103, 109 (Tex.Crim.App.2002). Appellant filed his writ pursuant to Article 11.072 of the Texas Code of Criminal Procedure arguing a violation of due process under the United States Constitution. Accordingly, we consider the availability of writ relief under both the Texas statutory scheme and federal constitutional law.

1. Article 11.072 of the Texas Code of Criminal Procedure

“Habeas corpus is an extraordinary remedy and is available only when there is no other adequate remedy at law.” Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex.Crim.App.2007). Article 11.072 establishes the procedures for an applicant to seek habeas corpus relief “from an order or a judgment of conviction ordering community supervision.” Tex.Code.CRIM. Proc. Ann. art. 11.072, § 1 (Vernon 2005). The statute expressly provides that writ relief is not available “if the applicant could obtain the requested relief by means of an appeal under Article 44.02 and Rule 25.2, Texas Rules of Appellate Procedure.” Id. § 3(a). Further, “a claim which was previously raised and rejected on direct appeal is not cognizable on habe-as corpus.” Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App.1997). However, habeas relief may be available for review of an issue which was not apparent from the record on direct appeal. See Ex parte Rich, 194 S.W.3d 508, 512-13, n. 9 (Tex.Crim.App.2006).

Because appellant received a probated sentence from the trial court, appellant’s application for habeas relief is governed by Article 11.072. Appellant had the ability to raise these issues on appeal and pursued that opportunity by actually raising the issues on direct appeal.

Appellant’s argument is entirely based on the theories and evidence presented at trial to establish reasonable suspicion to initiate the traffic stop. The section titled “Relevant Facts” in appellant’s writ application provides facts taken directly from and cited to the record from the DWI trial. Appellant attached with his habeas application his affidavit and the affidavits of two of his trial attorneys recalling the testimony and arguments given at the DWI trial that had occurred two-and-a-half years earlier. The accounts do not provide any additional information that is not reflected in the trial record. We also note that appellant’s and trial counsels’ narratives recalling the testimony given at the DWI trial do not provide the best evidence of the trial testimony when the record transcript of the trial is available. See Tex.R. Evid. 1002 (“To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required except as otherwise provided in these rules or by law.”). The affidavits provide no evidence, and thus, the fact that appellant attached affidavits to his application does not transform his habeas claim into an “issue which was not apparent from the record on direct appeal.” See Rich, 194 S.W.3d at 512-13, n. 9.

Under the express terms of the Texas statute, the issues presented by appellant are not cognizable for habeas review. See Tex.Code.CRIm. Proc. Ann. art. 11.072, § 8(a).

2. Writ Relief for Constitutional Violations

Additionally, appellant recasts his two issues as violations of constitutional magnitude, arguing that both alleged errors resulted in a denial of due process. Federal and Texas state courts limit the review of post-conviction writs to jurisdictional or fundamental defects and constitutional claims. Graves, 70 S.W.3d at 109. “Violations of statutes, rules, or other non-constitutional doctrines are not recognized” on collateral review. Id. (citing Ex parte Sadberry, 864 S.W.2d 541, 542 (Tex.Crim.App.1993) (habeas writ cannot be invoked for mere statutory irregularities in criminal proceedings)). “[A] trial court’s failure to adhere to statutory procedures serving to protect a constitutional provision violates the statute, not the constitutional provision itself.” Id. (citing Sadberry, 864 S.W.2d at 542 n. 5 (“[w]hile we do not sanction noncompliance with procedural rules designed to safeguard constitutional rights, the writ was not intended to provide for relief for such noneompliance where the record is otherwise clear on the rights to which the procedural formalities pertain.”)).

Appellant’s second issue, the alleged failure to provide an instruction under Article 38.23, relates to the trial court’s failure to adhere to statutory procedure. See Graves, 70 S.W.3d at 109. Thus, even if the trial court committed error in not instructing the jury, appellant could not obtain relief on habeas review because he invokes a statute, not a constitutional right. See id.

With regard to his first issue, appellant argues that his federal constitutional rights to procedural due process were violated by likening our de novo review of the trial court’s conclusions of law to a failure “to give a defendant ample opportunity to meet an accusation.” As a preliminary matter, we note that appellant’s argument that the State argued a legal theory for the first time on appeal is misguided. First, appellant’s argument is flawed because the State did not offer a different theory of admissibility for the first time on appeal; at all times the State has argued that reasonable suspicion existed to justify the traffic stop. Appellant cites to Steagald v. United States to support his argument that it violates due process when the State asserts a legal theory of admissibility for the first time on appeal. See 451 U.S. 204, 208-11, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). In that case, the Court observed, “The Government ... may lose its right to raise factual issues of this sort before this Court when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation.” Id. The other cases cited by appellant also relate to the Government asserting an inconsistent theory for the first time on appeal and asking the appellate court to remand for further factual determinations. See, e.g., Combs v. United States, 408 U.S. 224, 226-28, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972); Wilson v. State, 692 S.W.2d 661, 663-64 (Tex.Crim.App.1984).

The present case is distinguishable from the cited case law because at all times the State has asserted that Officer Perales had reasonable suspicion to initiate the traffic stop and has never taken a position that is inconsistent to that theory. Contrary to appellant’s representation of the facts, the State did not limit its reasonable suspicion argument to violation of one particular statute. Officer Perales testified that appellant weaved from his side of the road into oncoming traffic, and he had to stop his squad car to avoid a head-on collision with appellant. Perales testified that he believed appellant had committed a traffic violation but never named a specific section. The prosecutor’s argument against the suppression motion summarized the facts testified to by the officer which gave rise to reasonable suspicion that appellant had committed a traffic offense. The prosecutor also never named a specific section but, rather, said that appellant’s driving gave rise to reasonable suspicion on several grounds.

The appellate court must affirm a trial court’s ruling regarding a motion to suppress if it is reasonably supported by the record and is correct under any theory of law, even if the trial court relied on the incorrect ground. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). Applying this standard on direct appeal in the instant case, this Court held that the record supported the denial of the suppression motion on a finding of reasonable suspicion that appellant had committed a traffic offense by weaving into the left side of the road in the face of an oncoming marked squad car. Doyle, 265 S.W.3d at 32.

Because appellant is merely relitigating his motion for suppression under the exclusionary rule, appellant is not entitled to habeas relief as a matter of law. See Tex.Code.Crim. PROC. Ann. art. 11.072; Graves, 70 S.W.3d at 109. Accordingly, the trial court properly denied habeas relief.

We overrule appellant’s first and second issues.

Conclusion

We affirm the judgment of the trial court denying habeas relief.

Justice JENNINGS, concurring.

TERRY JENNINGS, Justice,

concurring.

The majority erroneously concludes that this Court did not err in previously holding that the trial court did not abuse its discretion in denying the motion to suppress evidence of appellant, Kevin Patrick Doyle, in the underlying case in which appellant was convicted of the offense of driving while intoxicated. See Doyle v. State, 265 S.W.3d 28, 32 (Tex.App.-Houston [1st Dist.] 2008 pet. ref'd). However, because no authority supports appellant’s contention that he was denied due process by this Court’s error, I concur in the judgment.

At the hearing on appellant’s motion to suppress evidence, the State specifically argued that the police officer who arrested appellant had reasonable suspicion to initially detain him because the officer saw him violate section 545.060 of the Texas Transportation Code, which requires one to drive one’s car “as nearly as practical entirely within a single lane” when the roadway is “divided into two or more clearly marked lanes for traffic.” Id., Tex. Transp. Code Ann. § 545.060 (Vernon 1999). The officer specifically testified that he “stopped appellant because he weaved into the opposing lane of traffic.” Doyle, 265 S.W.3d at 32. And, the trial court specifically concluded that the officer had “reasonable suspicion that appellant committed a traffic violation, namely a violation of Transportation Code section 545.060.” Id.

The problem, as pointed out by this Court, with the trial court’s conclusion is that appellant could not possibly have violated section 545.060 because the officer had also testified that the street in question “did not have clearly marked lanes.” Id.; see Keehn v. State, 279 S.W.3d 330, 334 (Tex.Crim.App.2009) (when reviewing trial court’s decision on motion to suppress, appellate court “afford[s] almost total deference” to trial court’s findings of facts when “based on an evaluation of credibility and demeanor,” if the evidence supports those findings).

When “on appeal the State argued that section 545.051 of the Transportation Code justified the stop,” our task became to determine if the evidence, viewed in the light most favorable to the trial court’s ruling and irrespective of the officer’s subjective intent, supported an implied finding of an objective basis for reasonable suspicion for the officer to have stopped appellant. Doyle, 265 S.W.3d at 32; see Tex. Transp. Code Ann. § 545.051(a) (Vernon 1999); State v. Kelly, 204 S.W.3d 808, 819 (Tex.Crim.App.2006) (“appellate court implies the necessary fact findings that would support the trial court’s ruling if the evidence (viewed in the light most favorable to the trial court’s ruling) supports these implied fact findings”). Reasonable suspicion is supported by the record only when the record contains testimony including “specific, articulable facts” that would have led the officer to reasonably conclude that a person had engaged or was about to engage in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex.Crim.App.2007).

This Court agreed with the State and concluded that the officer “had reasonable suspicion that appellant had violated section 545.051.” Doyle, 265 S.W.3d at 32. However, section 545.051 requires a driver “on a roadway of sufficient width [to] drive on the right half of the roadway,” unless the driver is passing or avoiding an obstruction, but still yields the right of way to an oncoming car in the unobstructed portion of the roadway. Tex. Transp. Code Ann. § 545.051(a) (emphasis added). At the hearing on appellant’s motion, the officer offered no “specific, articulable facts” that the roadway in question was of “sufficient width” to provide reasonable suspicion that appellant was not driving on the “right half of the roadway” or, in trying to avoid a “parked car,” appellant failed to yield the unobstructed portion of the roadway to the officer’s oncoming car. Accordingly, this Court erred in holding that the trial court did not abuse its discretion in denying appellant’s motion.

Nevertheless, no existing authority supports appellant’s contention that “the trial court erred in holding that [this Court] did not violate appellant’s federal constitutional right to due process of law in affirming the trial court’s incorrect ruling on his motion to suppress evidence, based on a legal theory asserted by the State for the first time on appeal and not supported by the record.”

Appellant asserts that this Court’s erroneous holding denied him the opportunity in the trial court to contest whether specific articulable facts would have supported an implied finding of an objective basis for reasonable suspicion for the officer to have stopped him. Also, as noted by appellant, had the issue been properly presented below, because his testimony contradicted that of the police officer, he would have been entitled to have the jury instructed on and decide the issue. See TexCode CRiM. Pro. Ann. art. 38.23 (Vernon 2005). These points have merit and are well taken.

However, the authorities cited by appellant do not support his assertion that he is entitled to habeas corpus relief. Rather, the cases cited by him involve equitable estoppel and the erroneous affirmance by appellate courts of jury verdicts of guilty on legal or factual bases not pleaded at trial. See Dunn v. United States, 442 U.S. 100, 106, 99 S.Ct. 2190, 2194, 60 L.Ed.2d 743 (1979) (“To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process.”); Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948) (“It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.”); Schmidt v. State, 278 S.W.3d 353, 358 (Tex.Crim.App.2009) (citing to New Hampshire v. Maine, 532 U.S. 742, 749-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (“equitable rule of judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase”)); Wooley v. State, 273 S.W.3d 260, 268-72 (Tex.Crim.App.2008) (appellant’s due process rights violated when court of appeals affirmed conviction under theory not submitted to jury); Malik v. State, 953 S.W.2d 234, 238 n. 3 (Tex.Crim.App.1997) (“due process prevents an appellate court from affirming a conviction based upon legal and factual grounds that were not submitted to the jury, ... [but] ... due process is [not] necessarily violated by affirming a conviction in which the jury charge contains extra, unnecessary elements that are not supported by the evidence”) (internal citations omitted).

Moreover, habeas corpus is an extraordinary remedy that is available only when there is no other adequate remedy at law. Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex.Crim.App.2007). Consequently, ha-beas corpus may not be used to assert claims that could have been asserted on direct appeal. Id. Appellant could and did seek correction of this Court’s error in the Texas Court of Criminal Appeals, which, in its discretion, declined to review the matter. Thus, appellant had an adequate remedy at law. See id.

Accordingly, I concur in the judgment of this Court.

      . "We review de novo those 'mixed questions of law and fact’ that do not turn on an evaluation of credibility and demeanor.” Doyle, 265 S.W.3d at 31 (quoting Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002)).

      . Article 38.23 provides, "In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.” Tex.Code Crim. Proc Ann. art. 38.23(a) (Vernon 2005).

      . Rule 44.2 of the Texas Rules of Appellate Procedure provides the reversible error standard in criminal cases on direct appeal, and Rule 25.2 provides the right to appeal and standard for perfecting an appeal in a criminal case. Tex.R.App. P. 25.2, 44.2.


author: PER CURIAM.

text:
    Eliseo RIVERA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 07-09-0332-CR.
    Court of Appeals of Texas, Amarillo, Panel B.
    June 8, 2010.

      David Martinez, Law Offices of David Martinez, Lubbock, TX, for Appellant.
    Jim English, Criminal District Attorney, Hereford, TX, for Appellee.
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
   Opinion

PER CURIAM.

Appellant, Elíseo Rivera, Jr. appeals his conviction for Felony Evading Arrest or Detention. Through a single issue, appellant contends he received ineffective assistance of counsel at trial. We affirm.

Background

The police dispatch received a call of a possible abduction at a convenience store. Upon arrival at the store, the police attempted to stop appellant as he was driving away. Appellant drove off and a chase ensued. Eventually, the police were able to arrest appellant for evading detention. A jury trial was had and appellant was convicted of the charged offense. He filed a motion for new trial which was amended to include a claim for ineffective assistance of counsel. The trial court ordered that affidavits be filed from both sides addressing the following issues: 1) whether trial counsel was prepared for the trial occurring on September 28, 2009, 2) whether counsel properly investigated the facts, legal issues, and possible defenses involved in the case, 3) whether counsel was able to communicate effectively with defendant concerning the law and the legal process, 4) whether counsel was able to communicate effectively with the defendant prior to the defendant’s decision to testify in the punishment phase of the trial, 5) whether defendant’s decision to testify was made intelligently, knowingly, and freely, 6) whether counsel explained to defendant the State’s request to strike surplus language from the deadly weapon allegation, and 7) whether counsel’s decision of whom to subpoena was based on trial strategy. Furthermore, the trial court made the finding that “live testimony” was not necessary. Appellant, appellant’s wife and trial counsel filed affidavits in response to the trial court’s order. The motion was overruled by operation of law. Appellant, now, appeals the denial of his motion for new trial claiming his counsel was ineffective.

Standard of Review

As the record discloses, the trial court had an opportunity via a motion for new trial to consider appellant’s claim for ineffective assistance of counsel. Even though the evidence was not through live testimony, the trial court determined the issues to be decided in concluding whether counsel was ineffective and received evidence of same. So, because appellant is effectively asking us to review the trial court’s decision viz that motion, we recognize that the standard of review is one of abused discretion. Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App.2006) (stating that an appellate court reviews the trial court’s decision to deny a new trial under the standard of abused discretion). This in turn means that to the extent the decision rests on such matters as the resolution of conflicts within the evidence, the development of reasonable inferences of fact from the evidence presented, and the consideration of a witness’ credibility, we are not without limitations. Indeed, authority obligates us to defer to the manner in which the trial court resolved those conflicts or found a witness’ testimony credible. Id. Nor are we able to supplant our views for those of the trial court, so long as its decision finds support in the record.

Simply put, if the tenor of the evidence before the trial court would allow reasonable minds to disagree as to the ultimate facts, then the trial court’s decision fell within that zone of reasonable disagreement. If it did that, then it did not abuse its discretion in denying appellant a new trial. Appellant had to show not only that trial counsel erred but also that the errors caused him to suffer prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Analysis

Appellant contends that he received ineffective assistance of counsel because counsel failed to 1) “call [ ] character witnesses,” 2) “advise him that he had no legal defenses to the ‘use or exhibit a deadly weapon’ enhancement in the indictment” and 3) “for not showing Appellant a copy of the evading arrest video and the recorded threatening voice message.” We disagree.

Specifically, in regards to his second complaint, appellant argues that “[gjiven the state of the law at the time of Appellant’s trial, it was incumbent upon trial counsel to advise his client, that under the facts of his case Appellant had no legal defenses.” Appellant relies on trial counsel’s portion of his affidavit wherein he states that appellant’s decision to plead not guilty was based on appellant’s belief that the State could not prove the allegation of use or exhibition of a deadly weapon. We do not find trial counsel’s statement to mean he failed to advise appellant that there were no defenses to the deadly weapon finding, only that appellant chose to plead not guilty because he believed that it could not be proved by the State. See Powers v. State, 727 S.W.2d 313, 315 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd) (where record is devoid of any evidence that appellant was misled by his counsel, no basis exists upon which an appellate court may act). Furthermore, counsel’s affidavit includes the following: “[appellant’s] decision to plead guilty was his decision. It was made after a careful and complete review of the options open to [him].”

Next, appellant’s attack regarding the deadly weapon finding concerns counsel’s failure to allow appellant to view the video tape of the chase from the police car and to listen to a taped message wherein appellant had threatened Maria Leal. Specifically, appellant contends that “he did not review the video tape of the evading arrest charge, so how could he have made an intelligent decision to plea [sic] not guilty to the deadly weapon allegation?” He makes the same argument regarding the recorded voice message. However, in trial counsel’s affidavit, counsel states that he reviewed the taped video of the police chase and the recorded telephone message to Leal. He further stated that after his investigation of the facts, he reviewed his findings with appellant and was advised by appellant to seek a probation offer. The State was contacted and refused a probation offer or to drop the deadly weapon portion of the indictment. Additionally, appellant has failed to cite us to any authority wherein trial counsel is required to make arrangements for the defendant to view and/or listen to electronically recorded evidence. Appellant has failed to show how counsel was deficient in not allowing him to review evidence that counsel had seen and advised him about.

Lastly, appellant contends that counsel was ineffective for failing to call character witnesses during the punishment phase of trial. Appellant contends that during punishment he was presented to the jury as being “ ‘a monster, a criminal, a drug dealer.’ ” He continues by saying that had trial counsel called character witnesses, “a jury may have found that he had some social redeeming value when he was not selling drugs or threatening people and Appellant’s punishment may have been lower.” Nor, according to appellant, is there “evidence that trial counsel even interviewed Appellant’s character witnesses.” With regard to the latter, we note that appellant had the burden to prove his counsel was ineffective. Easily v. State, 248 S.W.3d 272, 278 (Tex.App.-Houston [1st Dist.] 2007, no pet.). So, it was incumbent upon him to proffer evidence that counsel did not do what he should have done. Counsel was not required to prove that he did. Nor is it enough to simply say that counsel should have called witnesses favorable to him. Rather, he also had to illustrate to what they would have testified and how it would have benefitted him. Ex parte White, 160 S.W.3d 46, 52 (Tex.Crim.App.2004). Without him doing that, it cannot be said that he established the element of prejudice.

As for the former proposition, we have difficulty finding that whether to use such witnesses fell outside the zone of reasonable trial strategy. Trial counsel can legitimately consider the impact an argument would have on jurors in assessing whether to proffer it. Doing that which may be considered laughable, silly, unintelligent or insulting need not be done for counsel to be effective, and deciding whether to tender witnesses willing to say that appellant can be a good guy when he is not selling drugs and assaulting people seems to fall within that realm.

In sum, we overrule each issue, conclude that the trial court did not abuse its discretion by allowing the motion for new trial to be overruled by operation of law, and affirm the judgment.


author: BRIAN QUINN, Chief Justice.

text:
    In re: Johnny Hinojos LUNA, Relator.
    No. 07-10-0222-CV.
    Court of Appeals of Texas, Amarillo, Panel B.
    June 24, 2010.
    Johnny Hinojos Luna, Amarillo, pro se.
    Ana Estevez, Amarillo, pro se.
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
   BRIAN QUINN, Chief Justice.

Pending before the court is the application of Johnny Hinojos Luna, for a writ of mandamus. The petition is a request for us to order the Honorable Ana Estevez, 251st District Court, to act on his motion for “Nunc Pro Tunc,” wherein he claimed that he did not receive jail time credit while awaiting trial. We dismiss the petition as moot.

On June 14, 2010, we directed Judge Estevez to respond to relator’s petition for mandamus. On June 18, 2010, Judge Es-tevez filed her response which included an “Order Granting Jail Time Credit Nunc Pro Tune,” wherein she granted relator’s motion and allotted him the requested jail time credit.

Accordingly, we do not reach the merits of the issues raised, and the petition for writ of mandamus is dismissed as moot. See In re Duncan, 62 S.W.3d 333, 334 (Tex.App.-Houston [1st Dist.] 2001, orig. proceeding).

Attachment

NO. 33,548-C

THE STATE OF TEXAS

VS.

JOHNNY HINOJOS LUNA TDCJ# 00548300

IN THE 251ST DISTRICT COURT IN AND FOR POTTER COUNTRY, TEXAS

ORDER GRANTING JAIL TIME CREDIT NUNC PRO TUNC

In being called to the attention of the Court that the Defendant, JOHNNY HI-NOJOS LUNA, in the above styled and numbered cause is entitled to receive credit for the following dates calendar time pursuant to Art. 42.03, Texas Code of Criminal Procedure, to writ:

01-03-1994 to 12-05-1995 (date of sentence)

It is ORDERED, ADJUDGED AND DECREED by this Court that the sentence in the above numbered and styled cause be corrected to reflect that the Defendant is credited these days in custody.

The Clerk is hereby ORDERED to send a certified copy of the Order to the Texas Department of Criminal and a certified copy of the Order to the Records Department, Clements Unit, 9601 Spur 591, Amarillo, Texas 79107.

Signed this 17th day of June, 2010.

      . A copy of the trial court’s order is attached to this opinion.


text:
    In re Luis S. LAGAITE, Jr., Relator.
    No. 07-10-00217-CV.
    Court of Appeals of Texas, Amarillo, Panel B.
    June 24, 2010.
    Luis S. Lagaite, Tennessee Colony, for pro se.
    Ana Estevez, Amarillo, pro se.
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
   PER CURIAM.

Pending before the court is the application of Luis S. Lagaite, Jr., for a writ of mandamus. Though it is not clear what is sought, we interpret the petition as a request for us to order the Honorable Ana Estevez, 251st District Court, to try a lawsuit styled Lagaite v. Boland, No. 97-061-CV. We deny the petition for the following reasons.

First, the document fails to comport with the requirements of Texas Rule of Appellate Procedure 52.3(j). That is, La-gaite did not certify that he reviewed the petition and concluded that every factual allegation in it is supported by competent evidence.

Second, while the duty to act upon matters filed with it may be ministerial, the trial court has a reasonable time to do so. In re Bates, 65 S.W.3d 133, 134-35 (Tex.App.-Amarillo 2001, orig. proceeding). Whether such a period has been exceeded depends on various factors, as explained in In re Bates. Moreover, the burden lies with Lagaite to prove that an unreasonable amount of time has lapsed by addressing those factors. Id. He has not attempted to do so here.

Accordingly, we deny the petition.