text:
    TC DALLAS # 1, LP, Appellant, v. REPUBLIC UNDERWRITERS INSURANCE COMPANY, Appellee.
    No. 05-08-00656-CV.
    Court of Appeals of Texas, Dallas.
    July 21, 2010.
    Rehearing Overruled Aug. 23, 2010.

      Jeffrey S. Levinger, Hankinson Levinger LLP, Dallas, TX, for Appellant.
    James H. Moody, III, Marcie L. Schout, Arthur F. Selander, Quilling, Selander, Cummiskey & Lownds, P.C., Dallas, TX, for Appellee.
    Before Chief Justice WRIGHT and Justices MOSELEY and FRANCIS.
   OPINION

Opinion By

Justice MOSELEY.

This case involves the interpretation of a purchase and sale agreement (“PSA”) whereby TC Dallas # 1, LP bought an office building from Republic Underwriters Insurance Company. TC Dallas sought a judgment declaring its rights under the PSA, specifically whether Republic was liable for a portion of certain expenses. The parties filed cross-motions for partial summary judgment. The trial court granted Republic’s motion and denied TC Dallas’s, effectively holding that Republic was not responsible for the expenses at issue. The trial court incorporated its summary judgment rulings into its final judgment and awarded attorney’s fees to Republic. TC Dallas challenges the trial court’s summary judgment rulings. (It also contends that, because the trial court erred by granting summary judgment in Republic’s favor, Republic was not entitled to attorney’s fees.) For the reasons set forth below, we resolve these issues against TC Dallas and affirm the trial court’s judgment.

I. FACTUAL BACKGROUND

The facts are undisputed. On August 31, 2004, TC Dallas and Republic entered into the PSA for the office building, in which the Dallas National Bank had been a tenant since 1996. TC Dallas intended to redevelop the property, but it could not do so until all the tenants, including the Bank, vacated the building. The purchase price was $20 million, but Republic agreed to share TC Dallas’s expenses for terminating the leases of the remaining tenants and the costs of managing and operating the property until the last tenant vacated.

The above portion of their agreement was set forth in Section 8.7 of the PSA. Paragraph (a) of that provision included the following definitions:

(3) “Lease Termination Costs ” shall mean all buy-out fees, termination fees and other consideration paid or given to tenants to terminate the Leases, including base rental credits and other inducements.
(4) “Operating Expenses ” shall mean all expenses and disbursements that Purchaser [TC Dallas] incurs in connection with the ownership, operation, management and maintenance of the Property, determined in accordance with sound accounting principles consistently applied.
(5) “0 & T Expenses ” shall mean all Lease Termination Costs incurred by Purchaser [TC Dallas] from and after the Closing Date until the end of the Adjustment Period, (i) increased by Operating Expenses incurred during the Adjustment Period, [and] (ii) decreased by all base rent collected by Purchaser [TC Dallas] from tenants under their Leases ... during the Adjustment Period,....

Section 8.7(b) provided that, after closing, TC Dallas had the sole and exclusive right to negotiate the termination of the tenants’ leases. Section 8.7(c) provided for the sharing of the 0 & T Expenses: TC Dallas was responsible for the first $1,400,000 of O & T Expenses, and the O & T Expenses thereafter would be paid sixty percent by TC Dallas and forty percent by Republic.

However, TC Dallas did not develop the property. Instead, about ten months later, it entered into a second PSA to sell the property to SCA 2727 Turtle Creek Limited Partnership (Turtle Creek Partnership) for $16 million. The second PSA stated that the $16 million purchase price reflected a $6 million reduction from the “intended” purchase price. The agreement called this price reduction the “Bank Credit,” which was defined as the amount by which the intended purchase price was reduced to compensate Turtle Creek Partnership for the risk involved in agreeing to accept title to the property subject to Dallas National Bank’s lease, as well as “anticipated termination costs of terminating [the Bank’s lease] and the incremental cost of operating [the property] as an occupied office building.”

The second PSA stated that TC Dallas had ongoing contractual rights and obligations to Republic and stated that TC Dallas “hereby retains (and does not assign to Purchaser [Turtle Creek Partnership] ) all of the rights and obligations under the [first PSA], including without limitation the rights and obligations under Section 8.7 thereof, subject to Purchaser’s [Turtle Creek Partnership’s] obligation to fund such costs as described below” and TC Dallas “shall have the sole right of reimbursement from [Republic] under Section 8.7 of the [first PSA].... ” The second PSA then provided that Turtle Creek Partnership would have the exclusive right to negotiate any modification or termination of the Bank’s lease. Any buy-out fees, termination fees, and other consideration paid or granted to Dallas National Bank in consideration of the termination or modification of its lease were defined as “Bank Lease Modification Costs.” Turtle Creek Partnership would send TC Dallas a notice of the Bank Lease Modification Costs and wire transfer to TC Dallas the amount of the Bank Lease Modification Costs. TC Dallas would pay those costs to the Bank’s designated payee.

In December 2006, Turtle Creek Partnership and the Bank negotiated an amendment to the Bank’s lease. The principal term of the lease was extended by one year, from April 2009 through April 2010, and the Bank released the right to renew the lease beyond that date. (Under a previous lease amendment, the Bank had the right to renew the lease through April 2014.)

As part of the consideration for the Bank’s agreement to the amendment of the lease, Turtle Creek Partnership agreed to pay the Bank $2 million. Following the procedure in the second PSA for paying the Bank the consideration for modifying the lease, Turtle Creek Partnership wired the $2 million to TC Dallas, and TC Dallas then wired the $2 million to the Bank.

TC Dallas sued Republic seeking a declaration that Republic was liable for O & T Expenses, including all Lease Termination Costs relating to the Bank’s tenancy, and asserting that Republic breached the first PSA by failing to reimburse TC Dallas for its share of these expenses. In their motions for partial summary judgment and responses, the parties presented the question whether Republic was obligated under section 8.7(c) of the first PSA to reimburse TC Dallas for forty percent of some portion of the $6 million Bank Credit. TC Dallas argued that based on the plain meaning of the terms defined in section 8.7(a), $2 million of the Bank Credit was Lease Termination Costs and thus constituted O & T Expenses and that some undetermined portion of the remaining $4 million of the Bank Credit was Operating Expenses and thus constituted O & T Expenses as well. Republic asserted in its motion for summary judgment that none of the Bank Credit constituted O & T Expenses and that Republic had no obligation to reimburse TC Dallas. The trial court granted Republic’s motion and denied TC Dallas’s motion, ruling expressly that the $2 million bank lease modification payment was not a Lease Termination Cost as defined in the first PSA and that the $6 million bank credit contained in the second PSA did not constitute an O & T Expense as defined in the first PSA.

II. REIMBURSEMENT OF EXPENSES

In its first issue, TC Dallas challenges the granting of Republic’s motion and the denial of its motion, contending the trial court erred by concluding that the $6 million bank credit did not constitute a reimbursable O & T Expense under the first PSA.

A. Standard of Review

We review a summary judgment using the well-established standard. The mov-ant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the nonmov-ant will be taken as true. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824-25 (Tex.2005). We review a summary judgment de novo _ to determine whether a party’s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied).

When, as here, both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex.1993); Howard v. INA County Mut. Ins. Co., 933 S.W.2d 212, 216 (Tex.App.-Dallas 1996, writ denied). Neither party can prevail because of the other’s failure to discharge its burden. Guynes, 861 S.W.2d at 862; Howard, 933 S.W.2d at 216. When both parties move for summary judgment, we consider all the evidence accompanying both motions in determining whether to grant either party’s motion. Howard, 933 S.W.2d at 216; Benchmark Bank v. State Farm Lloyds, 893 S.W.2d 649, 650 (Tex.App.-Dallas 1994, no writ). When the trial court grants one motion and denies the other, the reviewing court should determine all questions presented. See Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997). The reviewing court should render the judgment that the trial court should have rendered. Id.

B. Applicable Law

Under the Texas Uniform Declaratory Judgments Act, a party to a written contract may seek a judicial determination of its contractual rights. Tex. Civ. Prac. & Rem.Code § 37.004(a) (Vernon 2008); Hartman v. Sirgo Operating, Inc., 863 S.W.2d 764, 767 (Tex.App.-El Paso 1993, writ denied). When a contract is unambiguous and the dispositive facts are not in dispute, a court may grant summary judgment and render a declaratory judgment regarding the parties’ rights under the contract. See, e.g., Barrand, Inc. v. Whataburger, Inc., 214 S.W.3d 122, 131-32 (Tex.App.-Corpus Christi 2006, pet. denied) (granting summary judgment and rendering declaratory judgment regarding breach of unambiguous contract).

The interpretation of an unambiguous contract is a question of law for the court. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650-51 (Tex.1999). The court’s primary concern in interpreting a written contract is to determine the mutual intent of the parties as manifested in the contract. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). The parties’ intent must be taken from the agreement, and the agreement must be enforced as written. Wells Fargo Bank, Minn., N.A. v. N. Cent. Plaza I, L.L.P., 194 S.W.3d 723, 726 (Tex.App.-Dallas 2006, pet. denied). We favor an interpretation that affords some consequences to each part of the agreement so that none of the provisions will be rendered meaningless. Coker, 650 S.W.2d at 394. Unless the agreement shows that the parties used a term in a technical or different sense, we give the terms their plain, ordinary, and generally accepted meaning. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996).

C. Discussion

TC Dallas pleaded that the $6 million Bank Credit was an O & T Expense as defined under the first PSA to the extent the amount concerned the $2 million payment to the Bank for agreeing not to renew its lease after 2010, and for the operation and management expenses of the property after the signing of the second PSA.

Under the first PSA, Republic agreed to pay forty percent of the “O & T Expenses,” defined as “all Lease Termination Costs incurred by Purchaser [TC Dallas] ... increased by Operating Expenses incurred .... ” (Emphasis added.) For payments to be “Lease Termination Costs,” they had to be “buy-out fees, termination fees and other consideration paid or given to tenants to terminate the leases.” For the payments to be “Operating Expenses” they had to be “expenses and disbursements that Purchaser [TC Dallas] incurs in connection with the ownership, operation, management and maintenance of the Property.” (Emphasis added.) Republic moved for summary judgment asserting the $6 million Bank Credit did not fall into either category.

The second PSA defined “Bank Credit” as follows:

The amount ($6,000,000.00) by which the intended Purchase Price was reduced to compensate the Purchaser for the risk involved in agreeing to accept title to the Property subject to the Bank Lease, as well as anticipated termination costs of terminating the Bank Lease and the incremental cost of operating the Real Property as an occupied office building.

TC Dallas argues that some portion of the $6 million Bank Credit should be considered Operating Expenses under the first PSA because the discount constituted an “expense” or “disbursement” incurred by TC Dallas “in connection with the ownership, operation, management and maintenance of the property.” We disagree.

First, according to the second PSA, the Bank Credit was a discount in the sales price of the property made by TC Dallas to Turtle Creek Partnership, not an expense or disbursement. This conclusion is not affected by the fact that its existence arose out of the respective desires of the contracting parties to allocate costs (or risks of costs) that might be incurred in the future. Second, the $6 million Bank Credit (i.e., the discount) was not incurred by TC Dallas “in connection with the ownership, operation, management and maintenance of the property.” Rather, it was incurred by TC Dallas in connection with TC Dallas’s sale of the property to Turtle Creek Partnership. And these conclusions are unaffected by the fact that the definition of “Bank Credit” makes clear that its purpose was to compensate Turtle Creek Partnership for the expenses it (not TC Dallas) may incur in owning, managing, and operating the property while it was occupied. Accordingly, the $6 million Bank Credit, as such, does not constitute Lease Termination Costs or Operating Expenses as defined in the first PSA, and thus does not constitute “O & T” Expenses under that agreement.

TC Dallas also argues that the $2 million of the Bank Credit paid by Turtle Creek Partnership to the Bank — albeit via TC Dallas — should be considered Lease Termination Costs because the definition of “Bank Credit” in the second PSA stated it was for “anticipated costs of terminating the Bank Lease.” However, the definition of “Bank Credit” makes clear the credit was compensation to the Purchaser, Turtle Creek Partnership, for the expenses that Turtle Creek Partnership, not TC Dallas, would incur in terminating the Bank’s lease.

TC Dallas also argues that the $2 million of the Bank Credit paid by Turtle Creek Partnership to the Bank- — albeit via TC Dallas — should be considered Lease Termination Costs as defined in the first PSA because it paid the Bank $2 million for the Bank’s agreement not to renew its lease after 2010, and it incurred this expense because the source of the $2 million paid to the Bank was the Bank Credit. The procedure for paying the Bank was set forth in section 12.22.3 of the second PSA:

12.22.3 Payment of Bank Lease Modification Costs. As provided in Section 4.12 from and after the Effective Date, Purchaser [Turtle Creek Partnership] shall have the exclusive right to negotiate any modification or termination of the Bank Lease in its sole discretion, provided however, Seller [TC Dallas] shall pay all Applicable Bank Lease Modification Costs in accordance with and subject to the further terms of this Section 12.22.3. Before the date on which any Bank Lease Modification Costs are to the [sic] paid, Purchaser shall deliver a Bank Lease Modification Cost Notice to Seller and wire transfer to Seller the amount of the Bank Lease Modification Costs Amount (“Purchaser’s Deposit”) to be paid. On or before 5:00 p.m. (Dallas, Texas time) on the first Business Day after the day on which the Purchaser delivers the respective Bank Lease Modification Costs Notice and the Purchaser’s Deposit, Seller shall: (1) pay the respective Bank Lease Modification Costs to the Designated Payees via wire transfer and (ii) deliver to Purchaser evidence reasonably satisfactory to Purchaser of the payment of said amount to the Designated Payees.

Under this provision, TC Dallas “paid” the Bank by sending the Bank the money TC Dallas received from Turtle Creek Partnership. Likewise, section 12.22.1 of the second PSA stated that Turtle Creek Partnership had the “obligation to fund such costs,” that is, the Bank Lease Modification Costs Amount. Thus, under the second PSA, the source of the $2 million paid to the Bank was Turtle Creek Partnership, not the Bank Credit.

Moreover, TC Dallas’s duty to transfer Turtle Creek Partnership’s money to the Bank does not mean TC Dallas “incurred” a Lease Termination Cost. According to the dictionary, the definition of the word “incur” includes “become liable or subject to ... (incurred large debts to educate his children).” Webster’s ThiRD New Int’l Dictionary 1146 (1981). Thus, assuming without deciding that the $2 million “Bank Lease Modification Costs” paid to the Bank was in connection with terminating the lease, unless TC Dallas was hable to the Bank for that payment it did not “incur” Lease Termination Costs under the first PSA.

The lease modification agreement between the Bank and Turtle Creek Partnership stated, “As additional consideration for Tenant’s [the Bank’s] agreement to the terms of this Agreement and as a condition precedent to the obligations of Tenant under this Agreement, Landlord [Turtle Creek Partnership] shall pay Tenant the sum of $2,000,000.... ” Thus, it was Turtle Creek Partnership — and not TC Dallas— that was liable to the Bank for, and therefore “incurred,” the Bank Lease Modification Costs Amount.

That TC Dallas was not liable to the Bank for (and thus did not “incur”) the Bank Lease Modification Costs Amount, was established by section 12.18 of the second PSA, which eliminated the existence of any third-party beneficiaries to the second PSA. See S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 306 (Tex.2007) (“The intent to confer a direct benefit upon a third party ‘must be clearly and fully spelled out or enforcement by the third party must be denied.’ ”) (quoting MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex.1999)). Because the Bank could not enforce the second PSA as third-party beneficiary, TC Dallas could not be liable to the Bank for payment of the $2 million. TC Dallas’s only responsibility was to transfer Turtle Creek Partnership’s $2 million to the Bank, which did not constitute an incurring of Lease Termination Costs under the first PSA.

The parties’ agreements establish as a matter of law that no portion of the $6 million Bank Credit was an 0 & T Expense under the first PSA for which Republic would be forty percent liable. Accordingly, we conclude the trial court did not err in granting Republic’s motion for summary judgment and denying TC Dallas’s. We resolve TC Dallas’s first issue against it.

III. ATTORNEY’S FEES

Republic was awarded attorney’s fees under a “prevailing party” provision of the first PSA. TC Dallas’s second issue is premised on its arguments that Republic should not have prevailed. Because we have rejected TC Dallas’s arguments, we need not address its second issue. See Tex.R.App. P. 47.1.

IV. CONCLUSION

Based on our resolution of TC Dallas’s issues, we affirm the trial court’s final judgment.

      . When signed in June 2005, the "Purchaser” under the second PSA was TCR South Central 2005, Inc. However, the second PSA permitted the Purchaser to assign its rights in the agreement. About one month after signing the second PSA, and before the closing date, TCR South Central assigned its rights to Turtle Creek Partnership. All of the actions at issue in this case of the Purchaser under the second PSA were performed by Turtle Creek Partnership.

      . One of Republic's arguments in its motion for summary judgment and on appeal is that the $2 million payment could not be a Lease Termination Cost because it was consideration for the Bank’s agreeing to modify — not terminate — its lease. However, we need not resolve that issue.

      . That provision stated:
      12.18 No Third Party Beneficiary. The provisions of this Agreement and of the documents to be executed and delivered at closing are and will be for the benefit of Seller and Purchaser only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Agreement or of the documents to be executed and delivered at Closing....


source: Caselaw Access Project

author: LESLIE B. YATES, Justice.

license: Public Domain

text:
    Francis P. DOHERTY, Appellant v. The OLD PLACE, INC., Appellee.
    No. 14-08-00494-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 22, 2010.

      Michael C. Whalen, Houston, for appellant.
    A.G. Crouch, Alvin, for appellee.
    Panel consists of Justices YATES, FROST, and BROWN.
   OPINION ON REHEARING

LESLIE B. YATES, Justice.

We deny appellant’s motion for rehearing, vacate and withdraw our prior opinion and judgment dated April 6, 2010, and issue this opinion on rehearing and judgment in their place.

Appellant, Francis P. Doherty, appeals the summary judgment granted in favor of appellee, The Old Place, Inc., on his causes of action for trespass to try title and for removal of cloud on title. We affirm.

I. Background

On March 21, 1978, appellant and his wife were deeded 9.93 acres in Brazoria County, Texas. On April 3, 1978, appellant and his wife executed a deed conveying the 9.93 acres to appellant’s five daughters, Mary Elizabeth Wisnoski, Annette Marie Vavrecka, Kathleen Ann Do-herty, Maureen Ann Doherty, and Estelle Anne Doherty. The daughters subsequently formed appellee corporation and, on January 8, 1997, the daughters deeded the 9.93 acres to appellee.

In 1999, appellant filed suit against his daughters and appellee seeking, among other things, to set aside the deed to the daughters as well as the subsequent deed conveying the property to appellee. Following a jury trial in November 2005, the trial court granted a directed verdict in favor of the daughters and appellee on appellant’s claims of no consideration, fraud, and breach of fiduciary duty. Based on the jury’s finding that appellant had delivered the deed to his daughters, the court rendered a take-nothing judgment against appellant and divested him of all right, title, and interest in the 9.93 acres. The court signed the final judgment on December 30, 2005. Appellant filed an appeal which was subsequently dismissed for want of prosecution due to appellant’s failure to timely file a brief.

On May 15, 2007, appellant filed the instant action to remove cloud on title based on his claim that the deed to his daughters was forged or, in the alternative, as an action in trespass to try title through prior possession or adverse possession. Appellee filed no-evidence and traditional motions for summary judgment. On April 14, 2008, the trial court granted both motions. In its order, the court also granted appellee’s requests for writ of possession against appellant barring him from entering the property and for a permanent injunction enjoining appellant from filing another lawsuit involving appellee or the property at issue.

II. Standard of Review

To be entitled to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiffs causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Brown v. Hearthwood II Owners Ass’n, Inc., 201 S.W.3d 153, 159 (Tex.App.-Houston [14th Dist] 2006, pet. denied). In reviewing a traditional summary judgment, we examine the entire record in the light most favorable to the non-movant, indulging every reasonable inference and resolving any doubts against the motion. Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex.2007). When a trial court’s order granting summary judgment does not specify the grounds upon which it was granted, we will affirm the judgment if any of the theories advanced are meritorious. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

A no-evidence summary judgment will be granted when (1) there is a complete absence of evidence 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 conclusively establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003). When the motion for summary judgment presents both no-evidence and traditional grounds, appellate courts generally review the no-evidence grounds first. See Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex.App.-Dallas 2007, pet. denied) (reviewing propriety of summary judgment under no-evidence standards of rule 166a(i) where motion presented both no-evidence and traditional grounds) (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004)).

III. Analysis

A. Appellant’s Trespass to Try Title Claim

In his first issue, appellant contends that the trial court erred in granting appellee’s no-evidence motion for summary judgment because the motion failed to identify the elements of appellant’s claims as to which there was no evidence. Appellant further argues that, even if appellee’s motion is sufficient, appellant provided more than a scintilla of evidence to support his claims.

Under rule 166a(i), a no-evidence summary judgment motion must state the specific elements as to which there is no evidence; that is, it must not be general or eonclusory. See Tex.R. CIV. P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). The purpose of the specificity requirement is to provide the non-movant with fair notice of the matters on which it must produce some evidence. See Martin v. McDonnold, 247 S.W.3d 224, 233 (Tex.App.-El Paso 2006, no pet.).

In its no-evidence motion, appellee asserted there is no evidence of any of the following: (1) a regular chain of conveyances from the sovereign; (2) a superior title out of a common source; (3) title by adverse possession; or (4) prior possession which has not been abandoned. We conclude that appellee’s no-evidence motion was sufficiently specific in that it clearly identified the methods by which a plaintiff can prove title to land and appellee contended that appellant provided no evidence of any of these methods. We therefore reject this portion of appellant’s first issue.

Appellant next argues that the trial court erred in granting appellee’s no-evidence motion because appellant provided more than a scintilla of evidence to raise a fact issue on the challenged elements. In both his summary judgment response and appellate brief, appellant points to his March 20, 2008 affidavit and accompanying exhibits, and his second amended petition and accompanying exhibits, and concludes that these documents “collectively provide substantially more than a scintilla of evidence in support of [his] claims.” The exhibits, taken together, consist of (1) the March 1978 deed conveying the property to appellant and his wife; (2) the April 1978 deed conveying the property from appellant and his wife to appellant’s five daughters; (3) the January 1997 deed conveying the property from the daughters to appellee; and (4) an affidavit executed by appellant on February 12, 2008.

Appellant’s summary judgment evidence is insufficient to raise a genuine issue of material fact. First, appellant’s broad reference to his March 20, 2008 affidavit and exhibits as proof that there is more than a scintilla of evidence, without further explanation or argument, does not provide this Court with a clear indication about the evidence upon which he is relying. Appellant’s statement fails to indicate as to which elements the documents raise a fact issue. Broad conclusory statements are not valid summary judgment evidence. See Velasquez v. Waste Connections, Inc., 169 S.W.Sd 432, 438 (Tex.App.-El Paso 2005, no pet.) (concluding that appellant’s broad references to attached exhibits and deposition excerpts as proof of existence of genuine issues of material fact without further explanation or argument failed to rise to level of more than scintilla of evidence necessary to defeat no-evidence summary judgment).

Second, the March 20, 2008 affidavit attached to appellant’s summary judgment response upon which he relies consists of conclusory statements without factual support. In his affidavit, appellant states as follows:

I state further that I claim fee simple title to the 9.93 acres of land ... through possession of said 9.93 acres of land, because I have possessed and used said 9.93 acres of land since that land was deeded to me and my wife on March 21, 1978 ... and I have used, enjoyed, and possessed said 9.93 acres of land for my own use and benefit and have claimed said land as my own since March 21, 1978, without abandonment of such use and possession at any time. My prior possession of the 9.93 acres of land ... commenced more than 29 years before the filing of the captioned lawsuit. In the alternative, I claim fee simple title to the 9.93 acres of land ... by adverse possession, because I have occupied the Subject Property in peaceable and adverse possession and have used, enjoyed, and appropriated said 9.93 acres of land for my own use and benefit and have claimed said 9.93 acres of land as my own for more than twenty-five (25 years) before the filing of the captioned lawsuit.... My use and possession of the Subject Property ... commenced on or before March 21, 1978, and has continued without abandonment until the present time.
In the further alternative, I claim fee simple title to said 9.93 acres of land because I have possessed said 9.93 acres of land in peaceable and adverse possession and have used and appropriated said 9.93 acres of land for my own exclusive use and benefit and continuously have claimed that land as my own for more than ten (10) years next preceding the filing of the captioned lawsuit.

Appellant’s statements that he claims “fee simple title” to the property based on his prior possession of the land without abandonment or, alternatively, his occupation of the land in peaceable and adverse possession are merely conclusory and unsupported by factual evidence. See Mem’l Park Med. Ctr., Inc. v. River Bend Dev. Group, L.P., 264 S.W.3d 810, 819 (Tex. App.-Eastland 2008, no pet.) (concluding defendant failed to provide summary judgment evidence raising fact issue on affirmative defense of limitations where affidavit did not set forth statements of fact to support legal conclusion that defendant had exercised actual and visible appropriation of land for ten or more consecutive years). Conclusory statements without factual support are not credible, and are not susceptible to being readily controverted. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996); Tex.R. Civ. P. 166a(c). These statements in appellant’s affidavit do not constitute competent summary judgment evidence.

Accordingly, the trial court did not err in granting appellee’s no-evidence motion for summary judgment on his trespass to try title claim because appellant failed to present any evidence that created a genuine issue of material fact. See Tex.R. Crv. P. 166a(i). Issue one is overruled.

B. Appellant’s Removal of Cloud on Title Claim

In his second issue, appellant contends that the trial court erred in granting ap-pellee’s motion for traditional summary judgment. Specifically, he argues that because appellee failed to conclusively prove all of the elements of its affirmative defenses, the trial court should have denied appellee’s motion. Because we find that the trial court properly granted appellee’s no-evidence motion as to his trespass-to-try-title claim, we consider his argument that the trial court improperly granted appellee’s traditional motion as it relates to his removal of cloud on title claim only.

In his second amended petition, appellant added a cause of action for removal of cloud on title based on his assertion that the 1978 deed to his daughters was forged. He alleged that because “the notary public falsely certified that the deed was acknowledged on April 3, 1978,” the deed was therefore void ab initio and did not convey title to his daughters. Consequently, he argued, the daughters did not convey title to appellee under the 1997 deed. In its supplemental motion for summary judgment, appellee argued that appellant’s claim for removal of cloud on title was barred by res judicata and collateral estop-pel.

The doctrine of res judicata bars the relitigation of claims that have been finally adjudicated or that could have been litigated in the prior action. See Igal v. Bnghtstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex.2008). To be entitled to summary judgment on the affirmative defense of res judicata, the movant must establish (1) a prior final judgment on the merits by a court of competent jurisdiction, (2) the same parties or those in privity with them, and (3) a second action based on the same claims as were raised or could have been raised in the first action. See id. The Texas Supreme Court uses a transactional approach to res judicata; that is, the factual matters comprise the subject matter of the litigation and determine “the gist of the complaint.” Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 651 (Tex.2000). Subsequent litigation cannot be based on claims that arise from those facts. See id.

Appellant does not dispute that in his prior suit, Cause No. 10584, the trial court issued a final judgment on the merits and was a court of competent jurisdiction. Thus, the first element of res judicata has been met.

As to the second element — identity of parties or those in privity with them— appellant argues that the parties in Cause No. 10584 are not the same as the parties in this case. To the contrary, the record clearly shows that the defendant here, The Old Place, Inc., was also a named defendant in the prior action. Therefore, the second element of res judicata has been met.

As to the third element, appellant contends that this suit is not based on the same claims he raised in the previous action. In support of his contention, he argues that the only issue determined by the jury in the prior suit was whether he delivered the deed to his daughters. Thus, he concludes, the claims in this suit do not have a close factual relationship with the claims raised in the prior suit. Appellant’s argument is without merit. Assuming without deciding that appellant’s removal of cloud on title claim was not raised in Cause No. 10584, the claim could have been raised in the previous action. See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630 (Tex.1992) (“The scope of res judicata is not limited to matters actually litigated; the judgment in the first suit precludes a second action by the parties and their privies not only on matters actually litigated, but also on causes of action or defenses which arise out of the same subject matter and which might have been litigated in the first suit.”) (emphasis in original) (quoting Texas Water Comm’n v. Crow Iron Works, 582 S.W.2d 768, 771-72 (Tex.1979)).

In the prior action, appellant sought to have the 1978 deed to his daughters as well as the 1997 deed from the daughters to appellee set aside. The 1978 deed was executed before Cause No. 10584 was filed; thus, any claim based on the validity of the deed (e.g., a forgery claim) could have been asserted in the previous action. For these reasons, res judicata bars appellant’s action for removal of cloud on title. We affirm the trial court’s grant of appellee’s traditional motion for summary judgment as to plaintiffs removal of cloud on title claim. Issue two is overruled.

IV. Conclusion

We affirm the judgment of the trial court.

      . The deed was recorded on September 25, 1986.

      . This case was styled Francis P. Doherty v. Mmy Elizabeth Wisnoski, Individually and as Trustee, Annette Marie Vavrecka, Kathleen Ann Dalmolin, Maureen Ann Doherty, Estelle Ann Kreft and The Old Place, Inc., No. 10584, in the 239th District Court of Brazoria County, Texas.

      .Thereafter, appellant filed a second suit naming four of his five daughters and appel-lee among the defendants. On March 14, 2007, the trial court signed an order sustaining the special exceptions filed by the daughters and appellee and dismissed them from the suit.

      . Although appellant is correct that the only issue decided by the jury was delivery of the deed, the trial court also issued a directed verdict on his claims of no consideration, fraud, and breach of fiduciary duty.


author: Justice LANG.

text:
    Nathan Nathaniel RENDER, Appellant, v. The STATE of Texas, Appellee.
    No. 05-09-00528-CR.
    Court of Appeals of Texas, Dallas.
    July 23, 2010.
    Discretionary Review Refused Sept. 15, 2010.

      Katherine A. Drew, Dallas County Public Defender’s Office, Dallas, TX, for Appellant.
    Craig Watkins, Dallas County District Attorney, Martin L. ■ Peterson, Dallas County Assistant District Attorney, Dallas, TX, for State.
    Before Justices BRIDGES, LANG, and LANG-MIERS.
   OPINION

Opinion By

Justice LANG.

This case is now before us on the State’s motion to publish and Appellant’s petition for discretionary review to the Court of Criminal Appeals. Pursuant to rules 47.2(b) and 50 of the Texas Rules of Appellate Procedure, we withdraw our opinion on March 19, 2010. This is now the opinion of the Court.

Following a plea of not guilty, appellant Nathan Nathaniel Render was convicted by a jury of continuous sexual abuse against a child younger than fourteen years of age during a period of at least thirty days. Tex. Penal Code Ann. § 21.02 (Vernon Supp.2009). Punishment was assessed by the jury at forty-six years’ confinement. On appeal, appellant raises six issues: (1) the trial court erred by omitting a “not guilty” verdict form; (2) the trial court abused its discretion by responding to a jury note with testimony regarding the first incident of abuse without supplying the chronological context; (3), (4), and (5) the statute under which appellant was charged and convicted violates the unanimity requirement, due process, and due course of law; and (6) the evidence is factually insufficient to sustain appellant’s conviction. We decide appellant’s issues against him. The trial court’s judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

The indictment in this case charged in relevant part that appellant committed two or more acts of sexual abuse against D.R., a child younger than fourteen years old. Complainant, ten years old at the time of trial, testified she lived in an apartment with her mother, brother, sister, and appellant, her stepfather. Complainant testified that while she was in the third grade, the “incidents” occurred with her stepfather. The first incident occurred around August of 2007. At eight o’clock one evening, complainant went to her bedroom to go to sleep. She shared her bedroom with her sister. Later that night, appellant awakened complainant and carried her to a chair in the living room. Appellant took off complainant’s shorts and pulled out his “private part.” Complainant saw appellant put his “middle part” into her “middle part.” Complainant was crying, and appellant told her to stop crying. When complainant cried louder, appellant stopped and sent complainant back to her room. The next day, complainant did not inform anyone about what happened because she was scared appellant would repeat the actions.

At the end of 2007, around the Christmas holiday, the second incident occurred. Appellant came into complainant’s room while she was sleeping and carried her to the same living room chair and he “did it again.” When complainant cried, appellant ordered her to stop crying. Complainant recalled a third incident occurred on a Friday after Christmas. Appellant repeated the same conduct.

The final incident recounted by complainant was in April of 2008. Appellant repeated the same conduct and made complainant touch his “middle part” with her hand and move her hand. When asked if complainant noticed anything strange about this time, complainant recalled her underwear “felt kind of wet.” When she went to bed, complainant took her underwear off, but changed back into them in the morning. The day after the final incident, April 27, 2008, complainant was watching television with her mother and brother when a Viagra commercial came on. The children giggled, and complainant’s mother told her children if they ever needed to talk about anything, they could come to her. Complainant started crying and told her mother that appellant had “hurt her.” Her mother called the police. Complainant was taken to the hospital for an examination. Her clothes and underwear were confiscated. Melissa Hass, a forensic scientist, analyzed a semen stain on complainant’s underwear she was wearing during the final incident. Hass concluded that the specimen found on the complainant’s underwear belonged to appellant.

Jennifer Goldberg, previously a forensic interviewer at Dallas Children’s Advocacy Center, testified complainant made an outcry of abuse during an interview with her. Complainant communicated to Goldberg in writing that “her dad put his penis in her middle.” Kim Davies, a nurse practitioner, examined complainant on the day the abuse was reported. During the exam, complainant informed Davies that “he stuck his private part in her front part, not all the way in.” Davies reported that complainant had a normal genital exam, in that there were no lacerations or bleeding, but that this does not confirm or rule out sexual abuse.

Detective Jonathan Hay interviewed appellant after appellant was arrested. During the first three hours of the interview, appellant continuously denied committing sexual assault against his stepdaughter. After Detective Hay mentioned that complainant stated the abuse happened on more than one occasion, appellant “made a comment or statement that it didn’t happen, you know, many, many times, like what myself and Detective White were saying or implying. Later on into the interrogations he acknowledged, “well, it occurred on one specific date and it would have been that Saturday night, April 26, 2008 ... And that it involved touching, in the form of his finger to her vagina.”

Appellant was initially charged with indecency with a child. After complainant was interviewed and the investigation was complete, the charges were changed to continuous sexual abuse against a child. The jury found appellant guilty. Following the jury’s assessment of forty-six years’ confinement and appellant’s sentencing, appellant filed this appeal.

II. OMISSION OF “NOT GUILTY” FORM

In his first issue, appellant contends the trial court erred by omitting a “not guilty” verdict form and appellant suffered egregious harm as a result of this omission. The verdict form attached to the charge included alternatives for the jury to find appellant guilty of continuous sexual abuse and aggravated sexual assault of a child. It did not include a form for finding appellant not guilty. The State responds that any harm that appellant may have suffered was merely theoretical and does not constitute egregious harm.

A. Applicable Law & Standard of Review

In Jennings, the court of criminal appeals held that all jury charge errors, including errors or omissions in the verdict form, are cognizable on appeal despite a lack of objection in trial court. Jennings v. State, 302 S.W.3d 306, 311 (Tex.Crim.App.2010). In Jennings, the appellant was charged with burglary of a habitation with intent to commit aggravated assault. The court provided the jury with three verdict forms: (1) guilty of burglary of a habitation with intent to commit aggravated assault, (2) not guilty of burglary of a habitation with intent to commit aggravated assault, and (3) guilty of a lesser-included offense, burglary of a habitation with intent to commit assault. Id. at 308. There was no verdict form providing for acquittal of the lesser-included offense, and there was no objection to the omission. Id. The jury found the appellant guilty of the lesser-included offense, burglary of a habitation with intent to commit assault. On appeal, the Amarillo Court of Appeals held that the appellant waived any objection to the omission of the verdict form because of the failure to object at trial. Id. at 310-11. The Texas Court of Criminal Appeals reversed. After finding that the verdict forms are part of the jury charge, the court remanded to the appellate court for analysis of the asserted errors in the verdict form under the Alman-za standard. Id. at 311; see Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g).

In Jennings, the court stated that when verdict forms are attached to a jury charge, “it must set out every ‘guilty’ or ‘not guilty’ option that is available to the jury.” Jennings, 302 S.W.3d at 310 (citing Williams v. State, 24 Tex.App. 637, 7 S.W. 333, 336 (1888)). While the Jennings court noted that Williams is “still Texas law,” we must nevertheless apply the standard set forth in Almanza to determine whether the harm is so egregious to warrant reversal.

Under Almanza, the degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Almanza, 686 S.W.2d at 171; see Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon Supp.2009); Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005). Error in the charge, if timely objected to in the trial court, requires reversal if the error was “calculated to injure the rights of defendant.” See Tex.Code Crim. Prog. Ann. art. 36.19. This means that if the charge contains error and the error has been properly preserved by objection, reversal is mandated as long as the error is not harmless. Almanza, 686 S.W.2d at 171. However, if no objection was made at trial to the jury charge, reversal is proper only if the error is so egregious and created such harm that it might be fairly said the defendant did not have a fair and impartial trial. Id.

In determining whether harm resulted from the trial court’s omission of the not guilty verdict form, we must determine (1) the actual harm in light of the entire jury charge, (2) the state of the evidence, including contested issues and weight of probative evidence, (3) the argument of counsel, and (4) any other relevant information revealed by the record. Ngo, 175 S.W.3d at 750 (citing Almanza, 686 S.W.2d at 171).

B. Application of Law to Facts

In this case, appellant did not object to the jury charge at the trial court. As such, we analyze the factors set forth in Almanza to determine whether any harm suffered by appellant constituted egregious harm. Jennings, 302 S.W.3d at 311.

1. Jury Charge

Appellant argues that when a trial court provides verdict forms to the jury, it must supply all proper verdict forms or it conveys an impression to the jury that appellant was guilty of some crime. The State responds that other jury instructions clearly informed the jury that they should find appellant not guilty if the State failed to meet its burden of proof.

The charge submitted to the jury consisted of seven pages, with the last two pages being verdict forms. The jury charge described the elements required to convict appellant of continuous sexual abuse of a child and aggravated sexual assault of a child. The jury was instructed if it had a reasonable doubt that defendant committed continuous sexual abuse, it must acquit appellant of the offense and proceed to consider the lesser included offense of aggravated sexual assault of a child. The jury was then instructed if it had a reasonable doubt as to the appellant’s guilt to the lesser-included offense, the jury must find appellant “not guilty.” On the next page, the charge repeated, “In the event you have a reasonable doubt as to the defendant’s guilt after considering all the evidence before you, and these instructions, you will acquit him and say by your verdict, ‘not guilty.’ ”

Further, the charge stated, “After you have arrived at your verdict, you may use one of the forms attached hereto.” (emphasis added). One verdict form allowed for conviction of continuous sexual abuse while the other allowed for conviction of aggravated sexual assault. Even though there was no verdict form for acquittal, viewing the charge as a whole, the jury charge sufficiently informed the jury of the option to find appellant not guilty if the State failed to meet its burden of proof. Therefore, the jury charge does not weigh in favor of egregious harm.

2.State of the Evidence

Appellant contends that harm is evident because the State’s evidence was fiercely contested, as addressed in his sixth issue on appeal, and “it cannot be said that a not guilty verdict was impossible.” As we discuss in the sixth issue on appeal, the evidence is factually sufficient to convict appellant of continuous sexual abuse. Complainant testified appellant had sexual intercourse with her on more than one occasion. Moreover, the record shows appellant’s sperm was on complainant’s underwear. If the jury believed this evidence to be true beyond a reasonable doubt, they were required to find appellant guilty of continuous sexual abuse. The state of the evidence does not weigh in favor of egregious harm.

3.Counsel’s Argument

During trial, counsel for appellant argued that the State did not meet its burden to prove continuous sexual abuse because there was reasonable doubt that the dates of the abuse were within the statutory time period. Counsel agreed that some inappropriate conduct occurred during April of 2008, the time of the last incident, but argued there was reasonable doubt as to whether another incident of sexual assault occurred prior to April of 2008 and after September 1, 2007, when the statute became effective. Counsel assailed complainant’s credibility arguing her testimony, that the two sexual assaults occurred around Christmas time, was unreliable because complainant was confusing the dates. During closing, counsel argued, “If you’re not sure that the act happened at Christmas, happened when [complainant] said it happened, or did it happen at all, you can’t find [appellant] guilty of continuous sexual abuse. You only have one act of aggravated sexual assault.” Thus, counsel argued that the jury could, at most, find appellant guilty of aggravated sexual assault, but that if it had a reasonable doubt, it should find appellant not guilty. Because counsel urged the jury to find appellant either guilty of the lesser-included offense or not guilty, and the jury returned with a guilty verdict for the higher offense, counsel’s argument weighs in favor of egregious harm.

4.Other Considerations — Jury Notes

Appellant notes that the multiple jury notes establish that the jury truly struggled in reaching its guilty verdict and the jury was “provided with no avenue by which to acquit Appellant.” The State disagrees and argues that the notes only reflect the jury may have had difficulty in determining of which offense appellant was guilty.

The record contains four jury notes. In the first note, the jury questioned the timing of one of the incidents of sexual assault. The first note stated, “When [complainant] identified the middle parts on the diagram ... was this identification and her statement that middle part touched middle part referring to the time after Dec. 25th, when the Christmas tree was still up ... [?[?] ” The second note requested a copy of complainant’s testimony because the jury disagreed about whether there was more than one incident of “sexual organ to sexual organ contact.” The third note stated that the jury was in dispute about the number of times there was “sexual organ to sexual organ” contact “with regard to the alleged incidents 1 & 2 (Dec. to Jan. time frame).” The fourth note states that the jury was in dispute about the complainant’s testimony regarding two incidents when appellant’s “middle part” touched complainant’s “middle part.”

In order to convict of continuous sexual abuse, the jury was required to find that appellant committed two or more sexual assaults during a period of at least thirty days. In each note, the jury presupposes an incident of sexual assault. From the questions framed by the jury, the logical conclusion is that the jury struggled with determining how many incidents of sexual assault occurred, not whether any sexual assaults took place. Thus, the notes appear to show that the jury struggled in deciding whether appellant was guilty of continuous sexual abuse or- aggravated sexual assault, not whether appellant was guilty or not guilty of all offenses. The jury did not appear to consider acquittal as an alternative, as evidenced by the jury rendering a guilty verdict for continuous sexual abuse, and not convicting appellant of the lesser-included offense, as in the Jennings case. The fact that the jury convicted appellant of the greater offense supports the conclusion that appellant was not egregiously harmed by the omission of a not guilty verdict form.

After analyzing the factors set forth in Almanza, we cannot conclude that appellant was egregiously harmed by any error in the verdict forms. See Almanza, 686 S.W.2d at 171. We decide against appellant as to his first issue.

III. RESPONSE TO JURY NOTE

In his second issue, appellant contends the trial court abused its discretion by responding to a jury note with testimony regarding the first incident of abuse without supplying the chronological context. The State responds that no further instruction about the first incident was required by the request from the jury.

A. Applicable Law & Standard of Review

Article 36.28 of the Texas Code of Criminal Procedure provides that, where the jury disagrees as to a witness’s statement, it may, upon applying to the court, have read to them from the court reporter’s notes that part of a witness’s testimony or the particular point in dispute. Tex.Code Crim. Proc. Ann. art. 36.28 (Vernon Supp.2009). When the jury asks that certain testimony be reread, the trial court must first determine if the request is proper under article 36.28. Howell v. State, 175 S.W.3d 786, 790 (Tex.Crim.App.2005) (citing Moore v. State, 874 S.W.2d 671, 673 (Tex.Crim.App.1994)). A request for testimony is proper under article 36.28 if it reflects that the jurors disagree about a specified part of testimony. Id. If the request is proper, the trial court must interpret the communication, decide which sections of the testimony will best answer the inquiry, and then limit the rereading accordingly. Brown v. State, 870 S.W.2d 53, 55 (Tex.Crim.App.1994). The trial court’s decision will not be disturbed unless a clear abuse of discretion and harm are shown. Id.; see also Howell, 175 S.W.3d at 790. A trial court abuses its discretion when its decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree. Howell, 175 S.W.3d at 790.

B. Application of Law to Facts

During jury deliberations, the jury sent out four notes. Only the fourth note received a substantive response from the trial court. The fourth jury note stated:

The jury disagrees/disputes as to the statements of the witnesses, [complainant]. ‘His middle part touched my mid-die part’ on the incident during the time when the tree was still up, but presents gone. ‘His middle part touched my middle part’ on the incident during the fall when she received her school packet.

The trial court responded to the jury note by providing pages 30 and 42 from volume 3 of the reporter’s record, which corresponded to the two incidents the jury was in disagreement about. Appellant objected to the trial court’s response to the jury dispute about the “incident during the fall.” Appellant argued that the submission of page 30, without chronological context, allowed the jury to improperly convict based on that incident of abuse. The trial court overruled the objection noting it had already provided the jurors with appropriate instructions.

We cannot conclude the trial court abused its discretion by refusing to supply a chronology with its response. The trial court had already instructed the jury concerning the purpose for which the evidence of that specific incident was to be considered and that it could not be considered for any other purpose. The jury instructions stated, “in order to find the defendant guilty of the offense of Continuous Sexual Abuse of a Young Child, you must agree unanimously that the defendant, during a period that is 30 days or more in duration beginning on or after September 1, 2007, committed two or more acts of sexual abuse.” The jury had also been advised that the defendant was “on trial solely on the charges contained in the indictment,” and that “any evidence ... showing that Defendant committed an extraneous crime, wrong, or act” could be considered “for the limited purpose of showing the Defendant’s intent, the state of mind of the defendant and [the complainant] ... and the previous and subsequent relationship between the said Defendant and [the complainant].” As the State points out, the note from the jury did not express any disagreement about when the incidents of abuse occurred, but only how the abuse had occurred or how many times. The jury was entitled to hear again only the “part of such witness testimony or the particular point in dispute, and no other.” See Tex.Code Crim. PROC. Ann. art. 36.28 (emphasis added). Appellant’s second issue is decided against him.

IV. CONSTITUTIONALITY OF STATUTE

In his third, fourth, and fifth issues, appellant contends section 21.02 of the Texas Penal Code is unconstitutional under both the United States and Texas Constitutions because it eliminates the requirement of unanimity. First, he argues section 21.02 is unconstitutional because it violates the unanimity clause set forth in article V, section 13 of the Texas Constitution, which requires a unanimous jury verdict in all felony cases (issue three). Second, he argues the statute violates the Due Process Clause set forth in the Fifth and Fourteenth Amendments to the United States Constitution (issue four) and the Due Course of Law Clause set forth in article I, section 19 of the Texas Constitution (issue five) because a jury need not be unanimous as required by the federal and state constitutions. The State responds section 21.02 is constitutional because it defines the offense in such a way that the jury need not be unanimous as to any particular act or omission because they are but the means by which the offense may be committed.

A. Standard of Review

The constitutionality of a criminal statute is a question of law which we review de novo. Owens v. State, 19 S.W.3d 480, 483 (Tex.App.-Amarillo 2000, no pet.); State v. Salinas, 982 S.W.2d 9, 10-11 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). When reviewing the constitutionality of a statute, we presume the statute is valid and the legislature has not acted unreasonably or arbitrarily in enacting the statute. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). The burden rests on the party challenging the statute to establish its unconstitutionality. Rodriguez, 93 S.W.3d at 69. We are obliged to uphold a statute if we determine a reasonable construction which will render it constitutional. See Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979).

B. Application of Law to Facts

Appellant was charged with violating section 21.02 of the Texas Penal Code. The trial court overruled appellant’s motion challenging section 21.02 as unconstitutional.

Section 21.02 provides in pertinent part:

(b) A person commits an offense if:
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.
(d) If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.

Tex. Penal Code Ann. § 21.02 (emphasis added). Accordingly, the jury was instructed it need only unanimously agree that appellant, during a period of thirty days or more beginning on or after September 1, 2007, committed two or more acts of sexual abuse. There are no reported cases ruling on the constitutionality of section 21.02.

Appellant argues section 21.02(d) violates unanimity “because, on its face, it dispenses with requiring unanimity upon each essential element of the crime.” Appellant cites Ngo, 175 S.W.3d at 745, for the proposition that the Texas Constitution requires jury unanimity regarding each statutory element, and he argues section 21.02(d) is unconstitutional because “the jury does not have to agree on the underlying essential elements, the specific acts, the specific actus reus, that violates the statute.” We disagree.

In Ngo, the defendant was charged with credit card abuse under section 32.31 of the Texas Penal Code with three separate offenses: (1) stealing a credit card; (2) receiving a credit card known to be stolen with the intent to use it; and (3) presenting a credit card to obtain a fraudulent benefit without the effective consent of the cardholder. Ngo, 175 S.W.3d at 740. Section 32.81 lists eleven different ways to commit credit card abuse. Tex. Penal Code Ann. § 32.31 (Vernon Supp.2009). The State sought one conviction for the commission of one credit card abuse offense by proving any one of the three criminal acts, which occurred at different times in different ways. Ngo, 175 S.W.3d at 744. The court of criminal appeals held that “the failure to instruct the jury that it must be unanimous on which specific criminal act the defendant committed violated the defendant’s state constitutional and statutory right to a unanimous jury verdict.” Id. at 752. However, that court also held the jury need not agree on all the “underlying brute facts [that] make up a particular element.” Id. at 747 (citing Richardson v. United States, 526 U.S. 813, 815, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999)).

This case is distinguishable from Ngo. In Ngo, the State sought one conviction for credit card abuse with evidence that at different times the defendant committed three different acts that the applicable statute defined as separate criminal offenses and not as means of committing a single criminal offense. See Ngo, 175 S.W.3d at 745. The applicable statute in Ngo defined the three acts involved as separate criminal offenses while the applicable statute here defines the two or more acts involved as means of committing a single criminal offense. See Jefferson v. State, 189 S.W.3d 305, 312-13 (Tex.Crim.App.2006) (injury could be caused in any of multiple ways and jury does not have to unanimously agree as to any particular act or omission); see also Landrian v. State, 268 S.W.3d 532, 535 (Tex.Crim.App.2008) (“The Legislature has considerable discretion in defining crimes and the manner in which those crimes can be committed”). In this case, the State sought one conviction for a “series” of acts of sexual abuse with evidence that, during the relevant time period, appellant committed two or more different acts that section 21.02 defines as means of committing a single criminal offense and not as two or more separate criminal offenses. Accordingly, unlike in Ngo, this statute does not violate any constitutional requirements raised by appellant.

Appellant also relies on Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) for the proposition that individual specific acts comprising the continuous series of an offense are each separate elements of the crime that must be agreed upon unanimously by the jury. We conclude that Richardson is distinguishable from this case. In Richardson, the appellant was convicted under a federal criminal statute forbidding any person from engaging in a “continuing criminal enterprise.” Richardson, 526 U.S. at 815, 119 S.Ct. 1707. A person is engaged in a “continuing criminal enterprise” if he “violates any provision of [the federal drug laws]” and “such violation is a part of a continuing series of violations .... ” Id. The Supreme Court held that for this particular federal crime, a jury must unanimously agree not only that the defendant committed some “continuing series of violations,” but also about which specific “violations” make up that “continuing series.” Id. at 813, 119 S.Ct. 1707. The Supreme Court stated, “if the statute makes each ‘violation’ a separate element, then the jury must agree unanimously about which three crimes the defendant committed.” However, “[i]f the statute creates a single element, a ‘series,’ in respect to which individual violations are but the means, then the jury need only agree that the defendant committed at least three of all the underlying crimes the Government has tried to prove. The jury need not agree about which three.” In this case, section 21.02 of the Texas Penal Code is a statute that creates a single element of a “series” of sexual abuse. It does not make each “violation” (act of sexual abuse) a separate element of the offense that needs to be agreed upon unanimously, like in Richardson.

Further, appellant contends section 21.02 violates due process and due course of law because it conflicts with the requirement of fundamental fairness. Citing Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), appellant argues “the statute allows for conviction with no jury agreement as to what acts were allegedly committed and/or when the act allegedly took place.” In Schad, the Supreme Court held that a state can permit a jury to return a general verdict of guilty without agreeing that the defendant had committed either premeditated murder or felony murder. Appellant cites Justice Scalia’s concurring opinion in Schad, which distinguished between two scenarios. The first involves “novel ‘umbrella’ crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process.... ” The second is “when a woman’s charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her.” Id. at 650, 111 S.Ct. 2491 (Scalia, J., concurring). It is appellant’s position that the offense of continuous sexual abuse was an aggregation of individual crimes of sexual abuse, which was equivalent to a “novel umbrella crime.” Because some jurors were allowed to convict based upon sexual abuse on some days and other jurors could convict based on sexual abuse on other days, appellant argued this scenario violated due process. We are unpersuaded by appellant’s argument.

In Schad the record reflected the trial court did not require the jury to unanimously agree as to the theory of murder for which petitioner was convicted. Id. at 632, 111 S.Ct. 2491. The Supreme Court upheld the trial court’s decision, stating, “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” Id. (citing McKoy v. North Carolina, 494 U.S. 433, 449, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (Blackmun, J., concurring)).

Appellant’s third, fourth, and fifth issues are decided against him.

Y. FACTUAL SUFFICIENCY OF THE EVIDENCE

In his sixth issue, appellant contends the evidence is factually insufficient to sustain appellant’s conviction because the evidence is too weak to support the finding that he committed at least two acts of sexual abuse during a period of at least thirty days. The State responds the evidence, giving due deference to the credibility determinations made by the jury, is not too weak to support the verdict.

A. Standard of Review

In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury’s verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App.2008); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App.2006). Evidence that is legally sufficient to support a verdict of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. See Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App.2007); Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App.2007); Watson, 204 S.W.3d at 417. When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial, whether properly or improperly admitted. See Berry, 233 S.W.3d at 854; see also King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App.2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App.1999). Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury’s credibility and weight determinations to a very limited degree. See Watson, 204 S.W.3d at 416-17; see also Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim.App.2000) (factual sufficiency review requires reviewing court to afford “due deference” to jury’s determinations); Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App.1996) (factual sufficiency review requires “deferential standards of review applied” to jury verdicts). However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App.2001); Lee v. State, 186 S.W.3d 649, 655 (Tex.App.Dallas 2006, pet. refd). An appellate court cannot declare a conflict in the evidence justifies a new trial simply because it disagrees with the jury’s resolution of that conflict. See Watson, 204 S.W.3d at 417. An appellate court must give deference to a jury’s decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in a better position to judge. Lancon, 253 S.W.3d at 706.

Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradicts the jury’s verdict. See Berry, 233 S.W.3d at 854; Watson, 204 S.W.3d at 417; see also Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim.App.2002); Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. A clearly wrong and unjust verdict occurs when the jury’s finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Berry, 233 S.W.3d at 854.

B. Applicable Law

A person commits the offense of continuous sexual abuse against a child if: “(1) during a period that is 80 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.” Tex. Penal Code Ann. § 21.02. Thus, to convict the appellant of this offense, the jury must have found that appellant committed at least two acts of sexual abuse over a period of at least thirty days.

C. Application of Law to Facts

Appellant claims that his conviction rests upon factually insufficient evidence and represents a manifest injustice. Viewing the evidence in a neutral light, the record shows complainant, who was ten years old at the time of trial, testified appellant had sexual intercourse with her on more than one occasion. At least two of the assaults occurred after the effective date of the statute, September 1, 2007. There was at least one incident around Christmas time, and the final time was the day before she disclosed the assault in April 2008. Complainant provided explicit details about the sexual assaults and the location where the assaults occurred. The record indicates that complainant disclosed the assaults to three witnesses: her mother, a nurse, and a forensic interviewer at the Dallas Children’s Advocacy Center. Further, appellant’s sperm was found on the complainant’s underwear she was wearing during the final assault. Finally, the record contains Detective Hay’s testimony that appellant admitted in an interview he inappropriately touched complainant.

Appellant claims the following contrary evidence established the evidence is factually insufficient to support his conviction: (1) there was no evidence of bruising or other physical injury to the complainant, (2) no one else present in the household observed or heard anything suspicious during the times the assault occurred, and (3) there was no evidence that appellant’s semen was on the chair where the assaults took place. However, this evidence appellant relies upon to support his factual sufficiency challenge relates to the credibility of the witnesses. Because the jury is the sole judge of a witness’s credibility and weight to be given the testimony, the jury may believe or disbelieve the contrary testimony. We must afford due deference to the jury’s determination. See Johnson, 23 S.W.3d at 9. We conclude the evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust. Issue six is decided against appellant.

VI. CONCLUSION

We decide appellant’s six issues against him. The trial court’s judgment is affirmed.

      . Due to the recent Texas Court of Criminal Appeals decision issued in Jennings v. State, 302 S.W.3d 306 (Tex.Crim.App.2010), both parties provided supplemental briefs addressing the Jennings holding.

      . The testimony contained on page 30 from volume 3 of the reporter's record refers to the complainant's testimony about an incident of sexual abuse apparently occurring prior to September 1, 2007. The bill enacting section 21.02 of the penal code provided this new provision applied only to conduct occurring on or after September 1, 2007. See Tex. Penal Code Ann. § 21.02. The Stale agreed it would not ask for a conviction based upon this incident. However, the trial court allowed the State to argue pursuant to article 38.37 that this evidence was relevant to the relationship between appellant and complainant as well as state of mind. See Tex.Code Crim. Proc. Ann. art. 38.37 (Vernon Supp.2009).


author: Justice FITZGERALD.

text:
    Edward Mike JI, Appellant, v. The STATE of Texas, Appellee.
    Nos. 05-09-00659-CR, 05-09-00660-CR.
    Court of Appeals of Texas, Dallas.
    July 23, 2010.

      David Waddill, Waddill Skinner, L.L.P., McKinney, TX, for Appellant.
    John R. Roach, Sr., District Attorney, Andrea L. Westerfield, Assistant District Attorney, McKinney, TX, for State.
    Before Justices BRIDGES, FITZGERALD, and FILLMORE.
   OPINION

Opinion By

Justice FITZGERALD.

A jury found appellant Edward Mike Ji guilty of deadly conduct and attempted capital murder. Judge Quay Parker, who presided over Ji’s trial, sentenced him to ten years’ imprisonment and to life imprisonment, respectively, for the two offenses. In a single appellate issue, Ji complains he was denied his Sixth Amendment right to conduct his own defense. We affirm.

Before voir dire proceedings began, Ji requested to represent himself at trial. He told Judge Parker he did not feel he needed the assistance of a lawyer. In response to the judge’s questioning, Ji conceded he did not know much about the rules of evidence or procedure. The judge explained the seriousness of the charges against Ji and told him the punishment range he faced included life in prison and a $10,000 fine. The judge emphasized Ji’s appointed counsel’s excellent reputation and abilities and ultimately denied Ji’s request.

Ji had represented himself for a short time earlier in the proceedings. When his retained attorney withdrew, Ji sought permission to represent himself. Judge Robert Dry was assigned to Ji’s case at that time. Judge Dry granted Ji’s request and appointed stand-by counsel for him. However, during this same time period, Ji’s treating psychiatrist, Dr. Xiaoyan Wu, wrote two letters to Judge Dry expressing her concern that Ji — although initially stabilized — had begun to refuse his anti-psychotic medications. Dr. Wu explained she had diagnosed Ji with schizophrenia, paranoid type, and she could not predict when he would have future psychotic episodes. She further explained that, in her treatment of Ji, he had admitted to her that he did not always understand his court proceedings. She stated it was her opinion that Ji was unable to represent himself in court.

The State then moved for a psychiatric evaluation of Ji to determine whether he was competent to stand trial. Judge Dry granted the motion. He appointed Ji’s stand-by counsel, David Haynes, to represent him during any related proceedings and appointed Dr. J. Randall Price to perform the psychiatric evaluation. A jury trial was held to decide the question of Ji’s competency to stand trial. At that trial, Dr. Wu testified concerning her treatment of Ji. She offered her opinion that he was neither competent to stand trial nor competent to represent himself. Dr. Price also testified at the competency trial. Based on his evaluation, Dr. Price opined that Ji was competent to stand trial. However, when asked whether Ji was able to represent himself, Dr. Price responded: “I — I don’t think it’s a good idea.... I don’t think it would be a good idea at all. Um, no.” The jury concluded Ji was competent to stand trial.

Shortly thereafter, Judge Dry sent a letter to Ji and Haynes, which stated:

The Supreme Court has determined that there is one standard of competency to stand trial and a different standard of competency to represent one’s self in trial. The jury found Mr. Ji competent to stand trial.
Dr. Wu has determined that Mr. Ji is not competent to represent himself in court. No expert opinion disagrees with her opinion.
The Court rules that Mr. Ji is not competent to represent himself in court and will be represented by David Haynes through trial.

This letter, then, was the initial ruling against Ji’s conducting his own defense.

The United States Supreme Court recently held the Constitution permits judges “to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so.” Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 2387-88, 171 L.Ed.2d 345 (2008). Thus, states may require representation by counsel for defendants who are competent to stand trial but who suffer from severe mental illness such that they are not competent to conduct trial proceedings by themselves. Id. at 2388. A trial judge’s decision not to allow a defendant to represent himself in court is a mixed question of law and fact, which we review for an abuse of discretion. Chadwick v. State, 309 S.W.3d 558, 561 (Tex.Crim.App.2010). We afford almost total deference to the trial judge’s rulings that turn on an evaluation of credibility and demeanor. Id. We view the evidence in the light most favorable to the trial judge’s ruling. Id. And we will imply any findings of fact supported by the evidence and necessary to support the ruling when the judge made no explicit findings of fact. Id.

Ji argues Judge Parker did not specifically find him incompetent, mentally or otherwise, to represent himself at trial. Ji points to their exchange before voir dire • and contends it is not clear what the judge’s reason was for denying his request to represent himself. He further contends there was no evidence he would have been disruptive to the proceedings or would have behaved in an aggressive manner that would have been harmful to his own defense.

The reasoning supporting the judges’ rulings, however, is not limited to this brief oral exchange. After presiding at the competency hearing, Judge Dry conveyed his initial ruling in writing and gave his reasons for it: Ji’s treating psychiatrist had given her undisputed expert opinion that Ji was incapable of representing himself in court. Judge Parker had access to Ji’s entire case file, and he could reasonably rely on Judge Dry’s reasoning as well as the matters he cited on the eve of trial. Trial judges who preside over a defendant’s competency hearing or trial will often prove best able to make mental capacity decisions that are tailored to the individualized circumstances of that particular defendant. See Edwards, 128 S.Ct. at 2387. In this case, both of those judges agreed Ji could not represent himself in court. We are required to imply any findings of fact supported by the evidence and necessary to uphold the trial judges’ rulings in this case. See Chadwick, 309 S.W.3d at 562. Undisputed expert testimony in this case supports an implied finding of fact that Ji’s mental illness was severe enough to render him incompetent to represent himself at trial. See id.

We discern no abuse of discretion in either of the trial judges’ rulings. We overrule Ji’s issue and affirm both judgments.

      . Judge Dry made his ruling, based on Dr. Wu’s uncontradicted expert opinion, on December 12, 2008. Judge Parker made his ruling as trial began on March 30, 2009. Nothing in the record indicates Ji’s mental condition had changed during the time between rulings.