author: PATRICK A. PIRTLE, Justice. JAMES T. CAMPBELL, Justice,

text:
    Viengkhone SIKALASINH, Appellant, v. The STATE of Texas, Appellee.
    Nos. 07-09-0301-CR, 07-09-0302-CR, 07-09-0303-CR, 07-09-0304-CR, 07-09-0305-CR, 07-09-0306-CR.
    Court of Appeals of Texas, Amarillo, Panel D.
    Aug. 20, 2010.

      John Bennett, Attorney at Law, Amarillo, TX, for Appellant.
    Katherine L. Levy, Assistant District Attorney, Amarillo, TX, for State.
    Before QUINN, C.J. and CAMPBELL and PIRTLE, JJ.
   OPINION

PATRICK A. PIRTLE, Justice.

Appellant, Viengkhone Sikalasinh, was convicted by a jury of three counts of aggravated assault with a deadly weapon, one count of aggravated assault with a deadly weapon — family member, and two counts of aggravated robbery, each enhanced by a prior felony conviction. He was sentenced by a jury to six concurrent sentences of twenty, twenty, ten, sixty, fifteen, and fifteen years confinement, respectively. Appellant asserts three issues on appeal: (1) whether the trial court erred by requiring him to pay court-appointed attorney fees as a cost; (2) whether there was legally sufficient evidence that he was able to pay court-appointed attorney fees as a cost; and (3) whether he should be required to pay transportation, meal and lodging expenses of a non-resident witness who was neither an expert witness nor a peace officer. We modify the trial court’s judgment in Cause No. 58,210-A to clarify that payment of $16,510.26 in court-appointed attorney fees and $537.05 in witness fees is not a part of the court costs ordered in the case and affirm the judgment as modified. The judgments in Cause Nos. 58,211-A, 58,-212-A, 58,213-A, 58,216-A, and 58,217-A are affirmed.

Background

On October 1, 2008, Appellant was indicted for aggravated assault with a deadly weapon enhanced in three criminal actions; aggravated assault with a deadly weapon — family member in a single criminal action; and aggravated robbery in two criminal actions.

During the course of the pretrial proceedings, Appellant filed three affidavits requesting court-appointed counsel. His financial information showed he was too poor to employ counsel, and the trial court granted his requests based upon financial need.

The State’s six criminal actions against Appellant were consolidated on August 10, 2009, and tried before a jury over the next four days. During its case-in-chief, the State called the manager of the apartment complex where Appellant’s crime spree had occurred. At the time of trial, this particular witness had moved to McLen-nan County, Texas. Thus, the State subpoenaed her to trial as an out-of-county or non-resident witness.

Appellant was convicted of all charges and sentenced in accordance with the jury’s verdict. Subsequently, the trial court approved a Witness Fee Claim for the non-resident witness’s trial attendance totaling $537.05 for lodging, meal, and travel expenses incurred. The trial court also approved an Attorney Fee Voucher submitted by Appellant’s court-appointed attorney for services rendered from July 10, 2009 until the end of trial totaling $16,510.26.

On September 1, 2009, the trial court signed Judgments of Conviction by Jury in each of the six cases consolidated for trial. In each case, the summary portion of the judgment reflects “Court Costs: see attached,” while the narrative portion of the judgment orders Appellant to pay court costs “as indicated above.” In the Clerk’s Record from Cause No. 07-09-0301-CR (trial court Cause No. 58,210-A), the first page following the judgment is a certified bill of costs, also dated September 1, 2009, that reflects “Attorney Fees (Court Appointed) $16,510.26” and “Witness Fee $537.05.” In the remaining five criminal actions, Cause Nos. 07-09-0302-CR, 07-09-0303-CR, 07-09-0304-CR, 07-09-0305-CR and 07-09-0306-CR (trial court Cause Nos. 58,211-A, 58,212-A, 58,213-A, 58,216-A, and 58,217-A, respectively), the first page following the judgment in the Clerk’s Record is a certified bill of costs reflecting no attorney’s fees and no witness fees.

Issues 1 & 2 — Court-Appointed Attorney Fees

Under article 26.05 of the Texas Code of Criminal Procedure, the trial court has authority to order reimbursement of appointed attorney fees if the court determines that a defendant has financial resources that enable him to offset, in part or in whole, the cost of legal services provided. See Tex.Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp.2009). The record before us, however, does not contain a determination or finding by the trial court that Appellant had any financial resources or was “able to pay” any appointed attorney fees. In fact, subsequent to the judgment, the trial court appointed an attorney to handle Appellant’s appeal due to his indigency.

Prior to filing his appeal, Appellant did not have the benefit of the recent opinion by the Court of Criminal Appeals holding that, without record evidence to demonstrate a defendant’s financial resources to offset the costs of legal services, a trial court errs if it orders reimbursement of court-appointed attorney fees. Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App.2010). In light of this recent ruling, the State candidly concedes that the court-appointed attorney fees here, $16,510.26, should not have been included in the Judgment as costs to be paid by Appellant because there is no record evidence indicating Appellant is “able to pay.” We agree. Accordingly, Appellant’s issues one and two are sustained as to Cause No. 07-09-0301-CR (trial court Cause No. 58,210-A), but are overruled as to the remaining five actions.

Issue 3 — Witness Fees

Appellant also asserts he is not liable for the non-resident witness fees because there is no authority for him to be ordered to pay, as costs of court, witness fees paid pursuant to article 35.27 of the Texas Code of Criminal Procedure. The State contends that article 102.002 of the Texas Code of Criminal Procedure authorizes the trial court to assess witness fees paid pursuant to article 35.27 as costs of court. We disagree with the State.

Every person subpoenaed for the purpose of giving testimony in a criminal proceeding who resides outside the county in which the prosecution is pending is entitled to be reimbursed by the state for reasonable and necessary transportation, meal, and lodging expenses incurred by that witness by reason of his or her attendance as a witness. See art. 35.27, § 1(a). Where a county has paid those expenses, the county is entitled to reimbursement by the state as an assignee of the witness. See art. 35.27 § 7. Here, pursuant to article 35.27, § 7, Potter County was paid the sum of $537.05 as compensation for the expenses incurred in connection with the attendance of the nonresident witness in Appellant’s case. At issue here is whether the trial court properly assessed the amount of that reimbursement against Appellant as costs of court.

Article 35.27 provides a mechanism for the reimbursement of witness expenses; it does not provide for the assessment of those expenses as costs of court. Therefore, the State relies upon article 102.002 as authority for assessment of “witness fees” as costs of court. Because article 102.002 does not expressly provide for the assessment of article 35.27 payments as costs of court, resolution of this issue involves the statutory construction of article 102.002.

Standard of Review

Issues governed by statutory construction are questions of law for the reviewing court to decide. City of Lubbock v. Adams, 149 S.W.3d 820, 826-27 (Tex.App.-Amarillo 2004, pet. denied). Because proper statutory construction is a question of law, a trial court has no discretion in rendering an interpretation; Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992), and no particular deference need be given to the trial court’s findings by the reviewing court. Bandera Indep. Sch. Dist. v. Hamilton, 2 S.W.3d 367, 370 (Tex.App.-San Antonio 1999, pet. denied). Thus, when we construe a statute, we conduct a de novo review; Texas Dep’t. of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002), with our primary objective being to ascertain and give effect to the Legislature’s intent. Texas Dept. of Protective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 176 (Tex.2004). We construe a statute as written and, if possible, ascertain the legislative intent from the language used in the statute. Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994). Thus, we begin with the plain and common meaning of the statute’s words. Texas Dept. of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004).

Article 102.002 — Texas Code of Criminal Procedure

Chapter 102 of the Texas Code of Criminal Procedure, entitled “Costs Paid by Defendants,” provides a general framework for the assessment of costs by a trial court in a criminal proceeding. Under Subchapter A, entitled “General Costs,” we find article 102.002 dealing with “witness fees.”

Article 102.002 states as follows:

(a) Repealed by Acts 1999, 76th Leg., ch. 580, Sec. 11(a), eff. Sept. 1, 1999.
(b) The justices of the peace and municipal courts shall maintain a record of and the clerks of district and county courts and county courts at law shall keep a book and record in the book:
(1) the number and style of each criminal action before the court;
(2) the name of each witness subpoenaed, attached, or recognized to testify in the action; and
(3) whether the witness was a witness for the state or for the defendant.
(c) Except as otherwise provided by this subsection, a defendant is liable on conviction for the fees provided by this article for witnesses in the defendant’s case. If a defendant convicted of a misdemeanor does not pay the defendant’s fines and costs, the county or municipality, as appropriate, is liable for the fees provided by this article for witnesses in the defendant’s case.
(d) If a person is subpoenaed as a witness in a criminal case and fails to appear, the person is liable for the costs of an attachment, unless he shows good cause to the court why he did not appear.

(Emphasis added).

Pursuant to article 102.002, in order for a defendant to be liable for witness fees, three events must occur: (1) the defendant must be convicted, (2) the witness must have testified in the “defendant’s case,” and (3) the fees must be “provided by this article,” i.e., article 102.002. See art. 102.002(c). Here, clearly Appellant was convicted; therefore, the two questions remaining are (1) whether or not the witness testified in the “defendant’s case,” and (2) whether the fees paid were provided by article 102.002.

As to the first question, Appellant contends that because the non-resident witness testified in the State’s case-in-chief only, she did not testify in the “defendant’s case.” The State disagrees, contending that the article applies because the nonresident witness was a witness in the prosecution of the defendant’s case. Based upon our analysis of the second question pertaining to whether the fees were provided by article 102.002, we need not decide this question.

As to the second question, Appellant contends the plain language of article 102.002 does not provide for the assessment of non-resident witness fees paid pursuant to article 35.27. The State counters by contending that it does.

Prior to its repeal in 1999, section (a) of article 102.002 provided:

A person subpoenaed, attached, or recognized as a witness, other than a witness entitled to receive compensation under Article 35.27 of this Code, is entitled to receive $1.50 per day in attendance in court and six cents per mile traveling to or returning from the trial. In order to receive compensation under this article, the witness, or another credible person representing the witness, must sign an affidavit stating the number of days the witness attended the court and the number of miles the witness traveled to and from the place of trial. The affidavit must be filed with the papers of the case.

(Emphasis added.)

Therefore, prior to the repeal of subpar-agraph (a), the plain language of article 102.002 did not authorize a trial court to assess non-resident witness fees paid pursuant to article 35.27 as costs of court. Therefore, the question becomes, by repealing subparagraph (a), did the Legislature intend to remove that exclusion?

Any analysis of the Legislature’s intent in repealing subparagraph (a) is complicated by the fact that in repealing that sub-paragraph, the Sixty-Sixth Legislature also repealed subparagraphs (b) and (c), and then without making reference to the repeal, amended subparagraphs (b) and (c) to include procedures governing the prosecution and administration of misdemeanor offenses in municipal courts. See Act of May 22, 1999, 76th Leg., R.S., ch. 580, § 11(a), 1999 Tex. Gen. Laws. 8119, 3123, approved June 18, 1999, effective September 1, 1999 (repealing subparagraphs (a), (b) and (c)). See Act of May 30, 1999, 76th Leg., R.S., ch. 1545, § 63, 1999 Tex. Gen. Laws 5314, 5329-30, approved June 19, 1999, effective September 1, 1999 (amending subparagraphs (b) and (c)). If the intent of the Legislature had been the removal of the article 35.27 exclusion, it seems the more simple solution would have been to repeal only that portion of subpar-agraph (a). Accordingly, an analysis of the bill’s history does not support the State’s contention that witness fees paid pursuant to article 35.27 are assessable as costs of court under article 102.002.

Finally, although counter intuitive to the ultimate position taken, the State argues that no substantive change in the law was intended by the Legislature when it repealed subparagraph (a). We see no reason to disagree with that analysis. If the Legislature did not intend to substantively change the provisions of subparagraph (c), the repeal of subparagraph (a) did not expand the assemblage of recoverable costs of court to include non-resident witness expenses paid pursuant to article 35.27. Accordingly, we hold that article 102.002 does not provide for the assessment of witness fees paid pursuant to article 35.27 as costs of court. Appellant’s third issue is sustained.

Conclusion

Having determined that the trial court erred by requiring Appellant to reimburse the State for the costs of his court-appointed attorney and the non-resident witness article 35.27 reimbursement expenses, we modify the judgment in Cause No. 58,210-A to clarify that the order to pay court costs does not include a requirement that he pay $16,510.26 in attorney fees or $537.05 in witness fees, and the judgment, as modified, is affirmed. The trial court’s judgments in Cause Nos. 58,211-A, 58,-212-A, 58,213-A, 58,216-A, and 58,217-A are affirmed.

QUINN, C.J. and CAMPBELL, J„ concurring.

JAMES T. CAMPBELL, Justice,

concurring.

The Court reaches the correct result in this case, and I concur in the Court’s judgment. I concur also in the Court’s discussion of appellant’s issues one and two, regarding attorney’s fees. With regard to appellant’s issue three regarding witness fees, the Court correctly points out that, even before its 1999 repeal, subsection (a) of article 102.002(a) of the Code of Criminal Procedure expressly excluded witness expenses paid under article 35.27 from its provisions. See Act of May 17, 1985, 69th Leg., R.S., ch. 269, § 1, 1985 Tex. Gen. Laws 1300, 1302, repealed by Act of May 22, 1999, 76th Leg. R.S., ch. 580, § 11, 1999 Tex. Gen. Laws 3121, 3123. The Court thus correctly concludes that repeal of subsection (a) of article 102.002 cannot have the effect of authorizing the assessment against appellant of the cost of witness fees paid under article 35.27.

It seems to me, however, that there is a more fundamental problem with the State’s position that article 102.002 provides a statutory basis for imposition of non-resident witness expenses on appellant. In pertinent part, subsection (c) of article 102.002, on which the State relies, states “a defendant is liable on conviction for the fees provided by this article for witnesses.... ” Tex.Code Crim. Proc. Ann. art. 102.002(c) (Vernon 2006). The Court’s opinion quotes the repealed subsection (a) of article 102.002. That now-repealed subsection provided per diem and mileage reimbursement for witnesses. See Act of May 17, 1985, 69th Leg., R.S., ch. 269, § 1, 1985 Tex. Gen. Laws 1300, 1302, repealed by Act of May 22,1999, 76th Leg. R.S., ch. 580, § 11, 1999 Tex. Gen. Laws 3121, 3123. Since the repeal of its subsection (a), however, article 102.002 does not provide fees for witnesses. Under the current provisions of article 102.002, as I read them, there are no “fees provided by this article” for which a convicted defendant may be liable. For that reason, I concur in the Court’s judgment.

QUINN, C.J., joins in this concurring opinion.

      . We note that while the judgment in each case states Appellant's first name as "Vieng-khone,” the indictments in Cause Nos. 58,-210-A, 58,211-A, 58,212-A and 58,213-A state Appellant’s first name as "Vienkhone.” Where names are substantially the same in character and pronunciation, though slightly varied in spelling, under the doctrine of idem sonans, the variance is immaterial. Jenke v. State, 487 S.W.2d 347 (Tex.Crim.App.1972).

      . See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp.2009) and. § 29.03 (Vernon 2009).

      . Cause Nos. 58,210-A; 58,211-A; 58,212-A.

      . Cause No. 58,213-A.

      . Cause No. 58,216-A; 58,217-A.

      . At various stages of the pretrial proceedings, two of Appellant's appointed-counsel moved to withdraw from representation. Both motions were granted and new counsel was appointed.

      . The Witness Fee Claim form, which is signed by the non-resident witness and approved by the trial judge, requests the Comptroller of Public Accounts to reimburse Potter County, pursuant to Tex. Code of Crim. Proc. Ann. article 35.27 (Vernon 2006), for expenses incurred by the witness, but paid by Potter County, on account of her attendance as a witness in Appellant’s case.

      . Unless a material change in his financial resources occurs, once a criminal defendant has been found to be indigent, he is presumed indigent for the remainder of the proceedings. Tex.Code Crim. Proc. Ann. art. 26.04(p) (Vernon Supp.2009).

      . Article 35.27 states, in pertinent part, as follows:
      Every person subpoenaed by either party or otherwise required or requested in writing by the prosecuting attorney or the court to appear for the purpose of giving testimony in a criminal proceeding who resides outside the state or the county in which the prosecution is pending shall be reimbursed by the state for the reasonable and necessary transportation, meal, and lodging expenses he incurs by reason of his attendance as a witness at such proceeding.

        See Tex.Code Crim. Proc. Ann. art. 35.27, § 1(a) (Vernon 2006).

      .For convenience, we will cite provisions of the Texas Code of Criminal Procedure throughout the remainder of this opinion simply as "article_”

      . The overall framework for the assessment of costs by a trial court in a criminal proceeding is both convoluted and confusing. Part of this confusion is created by the fact that customarily bills of costs prepared by court clerks do not reflect the authority by which those costs are assessed. Adding to the confusion is the plethora of overlapping legislatively enacted provisions dealing with costs to be paid by criminal defendants. See, e.g., Tex. Alco. Bev.Code Ann. § 106.12 (Vernon 2007); Tex. Bus. & Com.Code Ann. § 3.506 (Vernon Supp.2009); Tex. Bus. Orgs. Code Ann. § 10.365 (Vernon Pamph. Supp.2009); Tex. Code Crim. Proc. Ann. arts. 17.42, 17.43, 17.441, 37.073, 42.037, 42.12, 42.22, 45.0216, 45.026, 45.041, 45.051, 45.055, 45.0511(c-l), 45.0511(0(1-2), 45.052, 45.203, 62.353, 102.001-102.072, 103.0031 (Vernon 2006 & Supp.2009); Tex. Educ. Code Ann. § 37.011 (Vernon Supp.2009); Tex. Fam.Code Ann. §§ 8.262, 8.267, 8.302, 8.303, 45.106, 53.03, 54.032, 54.0411, 54.0461, 54.0462, 54.061, 81.003, 108.006, 110.002, 110.004, 110.005, 158.319, 158.403, 158.503, 160.762, 232.013 (Vernon 2006, 2008 & Supp.2009); Tex. Gov’t Code Ann. §§ 25.0593, 25.0594, 25.1572, 25.2223, 30.00014, 30.00147, 41.258, 51.601, 51.702-51, 703, 54.313, 54.403, 54.745, 54.663, 54.913, 54.983, 54.954, 54.1116, 76.015, 82.0361, 102.001-103.033, 411.081 (Vernon 2005 & Supp.2009); Tex. Health & Safety Code Ann. §§ 161.255, 469.004, 821.023 (Vernon 2010); Tex. Hum. Res.Code Ann. § 152.0522 (Vernon 2001); Tex. Local Gov’t Code Ann. §§ 118.131, 132.002, 132.003, 133.101-133.154, 191.007 (Vernon 2008 & Supp.2009); Tex. Parks and Wildlife Code Ann. §§ 12.110, 12.308 (Vernon Supp. 2009); Tex. Transp. Code Ann. §§ 284.2031, 521.026, 521.048, 542.403, 542.407, 545.412, 548.605, 601.263, 706.006 (Vernon 1999, 2007 & Supp.2009) (not intended as an exhaustive list). We encourage court clerks to draft their bills of costs in a manner that would allow a reviewing court to determine the legal authority upon which a particular fee is based. Furthermore, as pointed out by the concurring opinion of Justice Campbell, as it currently exists, article 102.002 does not provide for the assessment of any fees. Accordingly, we encourage the Legislature to consider clarification of this article in particular and the entire court costs scheme in general.

      . See Act of May 17, 1985, 69th Leg., R.S., ch. 269 § 1, 1985 Tex. Gen. Laws 1300, 1302.


source: Caselaw Access Project

author: JOHN S. ANDERSON, Justice.

license: Public Domain

text:
    Gregory Carl GREEN, Appellant, v. The STATE of Texas, Appellee.
    No. 14-09-00338-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 24, 2010.

      Mary Lou Shipley, Waxahachie, for appellant.
    Joe F. Grubbs, Cynthia W. Hellstern, Waxahachie, for state.
    Panel consists of Justices ANDERSON, FROST, and SEYMORE.
   OPINION

JOHN S. ANDERSON, Justice.

A jury found appellant, Gregory Carl Green, guilty of the first degree felony offense of failure to comply with sex offender registration requirements — specifically failing to report an intended change in address seven days prior to the anticipated move. See Tex. Crim. Proc. Code Ann. arts. 62.102(b)(3), 62.102(c), 62.055(a) (Vernon 2006). The jury assessed punishment at eight years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. In two issues, appellant contends: (1) the evidence is factually insufficient to support his conviction and (2) the trial court erred by admitting evidence of a past conviction for indecency with a child. We agree the evidence is factually insufficient to support appellant’s conviction and, accordingly, reverse and remand.

Factual and PROCEDURAL Background

Sergeant Rodney Guthrie of the Wax-ahachie Police Department, who supervises and manages the sex offender registration unit in Waxahachie, testified he is familiar with appellant because appellant is a registered sex offender in Sergeant Guthrie’s unit. As a sex offender with two or more prior convictions, appellant was required to report to Sergeant Guthrie every 90 days. See Tex. Crim. Proc. Code Ann. art. 62.058(a) (Vernon 2006). The first time appellant registered with Sergeant Guthrie was September 8, 2005. At that time, appellant listed his address as 801 Dunn Street — his parents’ residence. The next time appellant provided a change in address was November 16, 2006. Appellant listed his address as 602 Highland Avenue. On May 2, 2007, Sergeant Guthrie received a telephone call from appellant informing him appellant would be changing his address. On May 3, 2007, appellant came into Sergeant Guthrie’s office and gave notice that he was changing his address to 1570 Holder Road. Sergeant Guthrie reminded appellant that pursuant to the Texas Code of Criminal Procedure he must stay at the Highland Avenue address for seven days before moving to the Holder Road address. At first, appellant replied he could stay at the Highland Avenue address only one to two days and then he admitted that he had already moved from the Highland Avenue address and was staying with his parents on Dunn Street. Sergeant Guthrie told appellant he was in violation of the registration requirements. As far as Guthrie can remember, appellant did not provide Guthrie with any reason for his move to 602 Highland.

After this meeting, Sergeant Guthrie contacted Billy Graham, the property manager for the landlord at 602 Highland Avenue. Graham told Guthrie that appellant and his wife had moved out of 602 Highland Avenue on or around April 15, 2007. Furthermore, Graham informed Sergeant Guthrie that a new tenant moved into the Highland Avenue residence on April 20, 2007. Sergeant Guthrie also testified he was aware appellant worked intermittently in Arizona for long periods of time and had recommended that appellant register in Arizona. Appellant complied. The Arizona records, entered into evidence, indicate appellant registered in Arizona for employment purposes on April 18, 2007. The Arizona records did not indicate appellant was permanently moving to or living in Arizona.

Billy Graham, the property manager for 602 Highland Avenue, explained to the jury that he never actually saw appellant or his wife move out of the house. Graham testified that he went to the house on or about April 15, 2007, to collect the rent and found the house abandoned, aside from some trash and items of furniture left outside. Graham assumed appellant and his wife had moved and Graham rented the house to a new tenant on April 20, 2007. Graham testified appellant had done yard-work on the Highland Avenue property sometime in March or April of 2007. Graham explained that all of the rent checks he received for 602 Highland during the time appellant and his wife lived at that address came either from appellant or appellant’s parents.

The defense called Catherine Hunt, appellant’s wife, as its only witness. Hunt testified she and appellant moved into 602 Highland Avenue the week before Thanksgiving 2006. Hunt explained appellant spent long periods of time working in Arizona. At some point, while they were living at 602 Highland Avenue, Hunt became pregnant. Hunt testified she was thinking about moving from the property, but appellant did not want to move because he liked their home at 602 Highland Avenue. Hunt said that while appellant was out of town working, he would send her money to pay the bills. Hunt told the jury appellant went to work in Arizona on April 11, 2007. Hunt explained that on April 16, 2007, five days after appellant left, she delivered their baby. After delivering the baby, Hunt decided to move from the 602 Highland Avenue residence into her parents’ home on Holder Road. Hunt testified she did not tell appellant about the move. Hunt explained appellant returned from Arizona on April 28, 2007; however, on cross-examination, Hunt testified appellant came back into town April 20, 2007, left again on April 24, 2007, and returned on April 30, 2007. Hunt was unaware of when appellant found out she had moved their belongings from the Highland Avenue address. Hunt testified she never told appellant that she had moved from the Highland Avenue address into her parents’ house; however, on cross-examination Hunt testified she informed appellant of the move on April 30, 2007. Hunt explained she knew appellant met with Sergeant Guthrie on May 8, 2007, because that was the day she discovered “he was going to get charged.”

A jury found appellant guilty of failing to report his intended move not later than the seventh day before the anticipated move date. The jury found the enhancement paragraph in the indictment true and sentenced appellant to eight years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed.

Discussion

I. Is the evidence factually sufficient to support appellant’s conviction?

In appellant’s first issue, he challenges the factual sufficiency of the evidence. Specifically, appellant contends the evidence is factually insufficient to show he intentionally, knowingly, or recklessly failed to report his intended change in address seven days prior to his anticipated move date.

A. Standard of Review

In a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730-31 (Tex.Crim.App.2005). The evidence may be factually insufficient in two ways. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App.2008). The first is that the evidence supporting the verdict, though legally sufficient, is nonetheless too weak to support it. Id. If we find the evidence “too weak,” we must identify an objective basis in the record as to why the evidence is too weak to support the verdict. See Watson v. State, 204 S.W.3d 404, 414-17 (Tex.Crim.App.2006). The second is that, when considering conflicting evidence, the jury’s verdict is against the great weight and preponderance of the evidence. Lancon, 253 S.W.3d at 705. In conducting a factual-sufficiency analysis, this court must be cognizant of the fact that a jury has already passed on the facts and must give due deference to the determinations of the jury. Id. at 704-05. This court must afford the appropriate deference to the jury’s verdict to avoid substituting this court’s judgment for that of the jury. Id. Nonetheless, this court should sustain the factual sufficiency issue and set aside the jury’s verdict if the evidence supporting the verdict is so weak as to render the verdict clearly wrong or manifestly unjust. Id.

B. Analysis — April 2007 Address Change

A person commits the offense of failure to comply with registration requirements if the person “is required to register and fails to comply with any requirement” of Chapter 62. Tex. Crim. Proc. Code Ann. art. 62.102 (Vernon 2006). Under article 62.055(a), “[i]f a person required to register under this chapter intends to change address, ... the person shall, not later than the seventh day before the intended change, report in person to the local law enforcement authority designated as the person’s primary registration authority by the department and to the ... officer supervising the person and provide the authority and the officer with the person’s anticipated move date and new address.” Tex. Crim. Proc. Code Ann. art. 62.055(a) (Vernon 2006). Under the indictment, appellant was charged with failing to comply with this registration requirement (“Requirement”). Under article 62.055(a), appellant was also required to provide proof of his new address to the applicable local law enforcement authority for his new address within seven days after changing the address or on the first date that the applicable authority allows appellant to report. See id. However, appellant was not charged with violating this registration requirement. Appellant was only charged with violating the Requirement.

There is no dispute that appellant was required to register; however, appellant asserts that the evidence is factually insufficient to support a finding that he failed to comply with the Requirement.

After reviewing the record in this case, we conclude this is not a case in which overwhelming controverting evidence presented by the defense renders the verdict factually insufficient. Instead, this is a case in which the evidence is too weak to support the verdict. As such, we must identify an objective basis in the record explaining why the evidence is too weak to support the verdict. See Watson, 204 S.W.3d at 414-17.

Because appellant did not stipulate to any of his prior convictions for indecency with a child, the State called Officer Robert Allwardt as its first witness. Officer Allwardt gave expert fingerprint identification testimony to show that appellant is the same person convicted three times for indecency with a child in the judgments that the State introduced into evidence. The State had to prove at least two such convictions as part of its burden of proof under the indictment in this case. The State then called Sergeant Guthrie to the stand. In addition to the testimony described above, Sergeant Guthrie testified as follows:

• He is a police officer with the Waxaha-chie Police Department, who supervises and manages the sex offender registration unit.
• When sex offenders living in Waxaha-chie first come in to register, they fill out some documentation, and the sex offender registration unit reviews the registration requirements with the offenders so they understand them.
• After his initial registration appellant had a duty to come in person to the unit every 90 days to verify his registration.
• In addition to such periodic verifications, registered sex offenders are also required to come in person to Guthrie’s office to give notice of any change in their residence address, employment status, telephone numbers, or emergency contacts.
• As to changes in the residence addresses of registered sex offenders, “[p]rior to any address change that [they] have, [they] must notify the registering agency seven days prior to any change that [they are] going to make.”
• Registered sex offenders cannot move whenever they want to do so; rather they “have seven days notification that [they] must give the agency.”
• When appellant first registered in Waxahachie in September 2005, Guthrie reviewed several forms with appellant, including a form that specifies the registration requirements that the sex offender must follow (“Form”). Guthrie reviewed all of these requirements with appellant, as shown by appellant initialing each requirement on the form and signing the form, which was admitted into evidence.
• The Form’s main reason is to spell out each requirement that the registered sex offender must follow. The Form “specifically says that [appellant] must give seven days prior notice of his move or intended move before making that move.”
• Appellant “had to provide the seven days [notice] prior to any move.”
• Appellant did not provide seven days prior notice of his move from 602 Highland Avenue to 1570 Holder Road.

In sum, Sergeant Guthrie’s testimony covered four topics: (1) appellant’s knowledge of the reporting requirements; (2) appellant’s prior conformity with all reporting requirements; (3) appellant’s visit on May 3 regarding the change in address and Sergeant Guthrie’s discovery that appellant had not given notice before this address change; and (4) Guthrie’s discussion with Billy Graham. Sergeant Guthrie’s testimony shed no light on whether appellant had an intention to move from the Highland Avenue address. The State’s final witness was Billy Graham, the property manager at 602 Highland Avenue. Graham testified: (1) he observed appellant landscaping and planting flowers around the house in March or April 2007; (2) Graham had not received a rent payment for the Highland Avenue address in the month of April, which was not unusual; (3) Graham discovered appellant’s and appellant’s wife’s belongings had been moved from the house — but he did not witness either party moving the belongings; and (4) appellant did not tell Graham he was moving out; and (5) Graham rented the house to another tenant without informing appellant or appellant’s wife. Both Guthrie and Graham testified they were aware appellant spent long periods of time working in Arizona.

The defense called one witness, Catherine Hunt, appellant’s wife. Hunt testified she moved from the Highland Avenue address without telling appellant until he returned from Arizona. There is no evidence that contradicts Hunt’s testimony. The State correctly argues that the jury, as the sole judge of credibility, did not have to believe Hunt’s testimony. Her testimony as the only defense witness does not render the State’s evidence factually insufficient. For the purposes of our analysis, we ignore Hunt’s testimony that appellant had no intent to change his address that would trigger the Requirement. Nonetheless, reviewing all of the evidence at trial we find no evidence that appellant ever had an intent to change his address that he failed to report not later than the seventh day before the date of the intended change of address. There are various ways that a person’s belongings can be moved out of a residence in the absence of that person intending to move. Sergeant Guthrie and Graham’s testimony that appellant had moved out of the 602 Highland Avenue residence on or about April 15, 2007 is not evidence that appellant had an intent to move out during this time that he failed to report at least seven days before the date of the intended move.

The testimony at trial shows that Guthrie and the prosecuting attorney both believed that registered sex offenders have to give at least seven days advance notice before any address change. Guthrie testified that appellant was told he had to give seven days prior notice of all address changes. However, the Requirement 1 is triggered only “[i]f a person required to register under this chapter intends to change address.” Tex. Crim. Proc. Code Ann. Art. 62.055(a). In addition, the deadline for reporting this intended address change is not seven days before the date on which the move actually occurs; rather, the deadline is seven days “before the intended change.” Id. There are various situations in which a registered sex offender’s address may change without the offender having any intent to change address prior to the actual change of address. The offender may be barred from his current residence without warning or someone else may move the offender’s property out of the residence and to another address without the offender’s knowledge. Even presuming that there was legally sufficient evidence that appellant intentionally, knowingly, or recklessly failed to report an intended address change, the evidence supporting such a finding is so weak as to render the verdict clearly wrong or manifestly unjust. We reach this conclusion based on the objective basis in the record that there was no evidence that appellant ever had an intent to change his address that he failed to report not later than the seventh day before the date of the intended change of address.

C. Analysis — November 2006 Address Change

The State also contends the jury could have found appellant committed the offense as charged because there was some testimony indicating appellant may have violated the reporting requirements when he initially moved to the Highland Avenue address. Sergeant Guthrie testified appellant reported his change of address on November 16, 2006. However, Graham stated appellant moved into 602 Highland Avenue on November 12, 2006. According to the State’s argument, such testimony allows the jury to convict appellant of the alleged violation because the jury charge included “on or about” language However, Guthrie indicated in his testimony that appellant complied with the reporting requirements when he moved to the Highland Avenue address in November 2006. In addition, for the same reasons stated above as to the April 2007 change of address, the evidence was factually insufficient to prove that appellant failed to report an intended address change in November 2006.

The majority of the testimony, evidence and arguments made during trial concern the failure to report an intended move in April 2007. The witnesses only briefly discussed the November move and the State merely mentioned it in passing during its closing argument. Sergeant Guthrie only discussed November briefly and testified appellant had complied with the registration requirements. The first time the jury heard mention of any dates regarding the November move was in the context of appellant following the registration requirements. Graham testified appellant moved into the Highland Avenue address on November 12, 2006, but bases that knowledge on a receipt for the rent paid by appellant’s parents. He did not testify to seeing appellant living at the house on November 12, 2006. Hunt stated she moved into the house the week before Thanksgiving. The weakness of the evidence concerning the November move renders a conviction based upon such evidence factually insufficient. Even presuming that there was legally sufficient evidence that appellant intentionally, knowingly, or recklessly failed to report an intended address change in November 2006, the evidence supporting such a finding is so weak as to render the verdict clearly wrong or manifestly unjust. We reach this conclusion based on the objective basis in the record that there was no evidence appellant ever had an intent to change his address in November 2006 that he failed to report not later than the seventh day before the date of the intended change of address.

Accordingly, we sustain appellant’s first issue. Because a finding of factual insufficiency requires us to remand the cause to the trial court, we do not reach appellant’s second issue. See Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App.2005); Tex. R. App. P. 47.1.

Conclusion

Having sustained appellant’s first issue, we reverse the judgment and remand the cause to the trial court for further proceedings.


author: Justice LANG-MIERS.

text:
    KAYE/BASSMAN INTERNATIONAL CORP., Appellant, v. HELP DESK NOW, INC., Appellee.
    No. 05-08-01708-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 24, 2010.
    Rehearing Overruled Oct. 4, 2010.

      Michael K. Hurst, Vanessa Jean Rush, Gruber Hurst Johansen & Hail LLP, Jason A. Copling, Munsch Hardt Kopf & Harr, P.C., Dallas, TX, for Appellant.
    Alan Brandt Daughtry, Houston, TX, for Appellee.
    Before Justices O’NEILL, LANG-MIERS, and FILLMORE.
   OPINION

Opinion By

Justice LANG-MIERS.

This appeal arises from a dispute about whether appellee Help Desk NOW, Inc. is required to pay certain commissions to appellant Kaye/Bassman International Corp. After both sides moved for summary judgment, the trial court denied Kaye/Bassman’s motion and granted summary judgment in favor of Help Desk NOW. On appeal, Kaye/Bassman argues that the trial court erred when it granted summary judgment in favor of Help Desk NOW and denied summary judgment in favor of Kaye/Bassman. We reverse the trial court’s summary judgment in part, affirm in part, and remand this cause to the trial court for further proceedings consistent with this opinion.

Background

The Parties

Help Desk NOW is in the call-center business and contracts with companies to provide call centers for customer service and technical support relating to a company’s products or services. Kaye/Bassman is a recruiting and staffing firm that places sales people and executives with clients in various industries, including the call-center industry. According to Kaye/Bassman, it also brings business to its clients who run call centers by introducing those clients to Kaye/Bassman’s industry contacts who are aware of companies that need a call center.

Matt Sherman and Synchronoss Technologies, Inc.

Although the parties apparently disagree about the purpose of the introduction, they agree that Kaye/Bassman introduced Help Desk NOW to a man named Matt Sherman. Sherman subsequently introduced Help Desk NOW to Synchro-noss Technologies, Inc., which ultimately became a call-center client of Help Desk NOW. In exchange for the client referral, Help Desk NOW agreed to pay a commission to Sherman.

The Parties’ Agreements

Although the parties also apparently disagree about how, exactly, the agreement came about, they agree that in July 2004, around the time that Sherman introduced Help Desk NOW to Synchronoss, Kaye/Bassman and Help Desk NOW entered into a Call Center Business Agreement (the Original Agreement) governing Help Desk NOW’s payment of commissions to Kaye/Bassman. The Original Agreement states, in relevant part, as follows:

1. Prospective Clients — [Kaye/Bass-man] agrees to refer certain business prospects/clients to Help Desk Now.[] [Kaye/Bassman] will earn fees based on the percentage of revenue generated from the production of business prospects/clients introduced by [Kaye/Bassman].
2. Fee paid to [Kaye/Bassman]— Help Desk Now agrees to pay [Kaye/Bassman] 2.5% of the billed revenue that Help Desk Now earns from any and all revenues generated through [Kaye/Bassman] and their efforts on Help Desk Now’s behalf. [Kaye/Bassman] will receive payments of these fees as long as Help Desk Now continues to collect on billed revenues from the work introduced by business prospects/clients through [Kaye/Bassman],
It is understood and agreed to by both parties that for any specific opportunity the commission structure may be mutually adjusted in order to successfully win the business opportunity.
5. Termination — Either party may terminate this agreement by providing 30 days written notice. [Kaye/Bassman] will continue to rer ceive fee payment as long as Help Desk Now continues to generate revenue from the referral client or referred business.

In October 2004, Synchronoss signed a call-center agreement with Help Desk NOW and became Help Desk NOW’s biggest client. Pursuant to the terms of the Original Agreement, Help Desk NOW paid Kaye/Bassman 2.5% of the billed revenue from the Synchronoss account.

Over the next sixteen months, Sherman referred three other clients to Help Desk NOW. Help Desk NOW and Kaye/Bass-man entered into two addenda to the Original Agreement to address the commissions to be paid to Kaye/Bassman from revenues generated from the first two of those three clients. They disagreed about whether Kaye/Bassman was entitled to any commission from the third client, Cap-Gemini Energy. To resolve that dispute, the parties entered into a third addendum to the Original Agreement, in which Help Desk NOW agreed to pay Kaye/Bassman 1% of the billed revenue from the Cap-Gemini Energy account. Six months later, in November 2005, the parties signed a fourth and final addendum (the Fourth Addendum) to the Original Agreement. The Fourth Addendum states, in relevant part, as follows:

This Addendum is to both the [OJriginal Agreement between the parties, dated July 27, 2004, and the [Third] Addendum dated May 13, 2005. As part of the agreement between the parties wherein Help Desk NOW would pay Kaye/Bass-man for the CapGemini Energy contract, the following stipulations were also agreed upon by both parties and are hereby included in all agreements heretofore consummated by the parties:
1. That any contract that Help Desk NOW enters into with an existing or new Help Desk NOW client will not entitle Kaye/Bassman or Mr. Eddie Hill any [sic] fee or other compensation unless agreed upon in writing in advance of Help Desk NOW entering into such contracts.
3. It is expressly understood by both parties that Mr. Matthew Sherman no longer has any business relationship with Kaye/Bassman and/or Mr. Eddie Hill that would encumber Help Desk NOW or prevent Help Desk Now from doing business with Mr. Sherman. If Mr. Sherman brings another deal to Help Desk NOW that results in a contract, neither Kaye/Bassman nor Eddie Hill would be entitled to any fee or other compensation from Help Desk NOW.
4. Help Desk NOW appreciates the involvement it has had with Kaye/Bassman to date and will meet its financial obligations to Kaye/Bassman as per the [Original] Agreement between the parties and the subsequent Addendums, including this one.
5.Help Desk NOW is now aware of how Kaye/Bassman expects to be compensated for future deals that Help Desk NOW may participate in as a result of the efforts of someone that Kaye/Bassman has introduced to Help Desk NOW. Other than any future deals that Matt Sherman may bring to Help Desk NOW, as covered in item 3, above, Help Desk NOW agrees that Kaye/Bassman is entitled to be compensated for the deals that someone that they introduced to us as a client that they represent, and all future deals within a time frame of two (2) years from the date of the last deal that the introduced Kaye/Bassman client helped Help Desk NOW close. The amount and duration of such compensation for all deals will be negotiated between Help Desk NOW and Kaye/Bassman. Unless the Kaye/Bassman client is identified as a Kaye/Bassman client by Kaye/Bassman or by the Kaye/Bass-man client prior to Help Desk NOW closing an agreement for services, Help Desk NOW will not be liable for any payments to Kaye/Bassman or any of Kaye/Bassman’s employees.

Six months later, in May 2006, Help Desk NOW and Synchronoss entered into an agreement regarding call center services and pricing that superseded all previous agreements between them (the 2006 Synchronoss Agreement). For the first few months after the 2006 Synchronoss Agreement was signed, Help Desk NOW continued to pay commissions to Kaye/Bassman for Synchronoss billed revenue. After that, and for the next few months, Help Desk NOW did not pay those commissions to Kaye/Bassman but repeatedly assured Kaye/Bassman that it would continue to pay those commissions.

In early 2007 Help Desk NOW was sold. The buyers interpreted the Fourth Addendum to mean that it did not owe commissions to Kaye/Bassman for revenues generated from the Synchronoss relationship as of the date of the 2006 Synchronoss Agreement.

This Lawsuit

In May 2007, Help Desk NOW filed this lawsuit seeking a declaratory judgment “as to its rights and obligations with respect to Kaye/Bassman.” In its petition, Help Desk NOW states that because of the Fourth Addendum, Kaye/Bassman is not entitled to any commissions based on the 2006 Synchronoss Agreement. In response, Kaye/Bassman filed (1) an answer asserting a general denial and numerous affirmative defenses, including lack of consideration and (2) a breach-of-contract counterclaim seeking damages for unpaid Synchronoss commissions and attorneys’ fees. In its amended answer and counterclaim, Kaye/Bassman alleges that, under the terms of the Original Agreement and the Fourth Addendum, Help Desk NOW is obligated to continue paying Kaye/Bass-man 2.5% of all billed revenues generated from the Synchronoss account.

The Motions for Summary Judgment

Help Desk NOW filed a traditional motion for summary judgment under rule of civil procedure 166a(e) in which it argued that it is not obligated to pay commissions to Kaye/Bassman for revenue generated as a result of the 2006 Synchronoss Agreement because of the terms of the Fourth Addendum. Help Desk NOW also filed a no-evidence motion for summary judgment under rule of civil procedure 166a(i) in which it asserted that there was no evidence to support Kaye/Bassman’s counterclaim or certain elements of its affirmative defenses.

Kaye/Bassman filed a cross-motion for summary judgment under rule of civil procedure 166a(c) in which it asserted the same three grounds for summary judgment to support its affirmative claim for breach of contract and to oppose Help Desk NOWs competing claim for declaratory judgment: (1) Help Desk NOW breached the Original Agreement by failing to pay commissions on the Synchro-noss account, (2) there was no consideration for the Fourth Addendum, and (3) the Fourth Addendum is ambiguous and extrinsic evidence conclusively demonstrates that the parties did not intend for it to apply to any commissions on the Synchronoss account.

Help Desk NOW filed and cited summary-judgment evidence to support its motion for summary judgment and filed a written response to Kaye/Bassman’s motion. Kaye/Bassman filed a combined response to Help Desk NOW’s motions under rules 166a(c) and 166a(i) and also filed and cited summary-judgment evidence to support its response to each motion.

The trial court signed a final judgment granting Help Desk NOWs two motions for summary judgment in their entirety and denying Kaye/Bassman’s motion for summary judgment in its entirety. In its final judgment the trial court also (1) declared that, under the terms of the Fourth Addendum, Help Desk NOW is not required to pay Kaye/Bassman any commissions or other compensation relating to Synchronoss on or after the date the 2006 Synchronoss Agreement was executed, and (2) denied Kaye/Bassman’s request for attorneys’ fees.

Issues on Appeal

On appeal Kaye/Bassman challenges the trial court’s summary-judgment order granting Help Desk NOW’s two motions for summary judgment and denying Kaye/Bassman’s motion for summary judgment.

SUMMARY Judgment and Standard of Review

A party moving for traditional summary judgment under rule of civil procedure 166a(c) is charged with the burden to establish 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); Ysasaga v. Nationwide Mut. Ins. Co., 279 S.W.3d 858, 864-65 (Tex.App.Dallas 2009, pet. denied). If the movant discharges its burden, the burden shifts to the nonmovant to present to the trial court any issues that would preclude summary judgment. Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 50 (Tex.App.Dallas 2006, 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; neither party can prevail because of the other’s failure to discharge its burden. Id.

We review a traditional summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Dallas Cnty. Tax Collector v. Andolina, 303 S.W.3d 926, 929 (Tex.App.-Dallas 2010, no pet.). When both parties move for traditional summary judgment and the trial court grants one motion and denies the other, the non-prevailing party may appeal both of those rulings. See Certain Underwriters at Lloyd’s v. LM Ericsson Telefon, AB, 272 S.W.3d 691, 694 (Tex.App.-Dallas 2008, pet. denied). We review the summary-judgment evidence presented by both parties and determine all questions presented. Id. To determine if a genuine issue of material fact precludes summary judgment, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007) (per curiam). With respect to each side’s motion, we consider all the evidence in the light most favorable to the nonmov-ant, indulging all reasonable inferences in favor of the nonmovant, and resolve any doubts against the movant. Id. at 756. We may affirm the trial court’s summary judgment, reverse and render judgment for the other party if appropriate, or reverse and remand if neither party has met its summary-judgment burden. Certain Underwriters at Lloyd’s, 272 S.W.3d at 694.

When a party moves for no-evidence summary judgment and argues that there is no evidence of an essential element of the nonmovant’s claim or defense, the burden shifts to the nonmovant to present more than a scintilla of evidence that raises a genuine fact issue on the challenged elements. Tex.R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). We review a no-evidence motion for summary judgment under the same legal sufficiency standard used to review a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). Our inquiry focuses on whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the challenged elements. See id. at 751.

Analysis of Cross-Motions Under Rule 166a(c)

Did Help Desk NOW Meet Its Summary-Judgment Burden?

In its traditional motion for summary judgment, Help Desk NOW argued that it was entitled to judgment declaring that it is not obligated to pay Kaye/Bassman commissions for billed revenue relating to the 2006 Synchronoss Agreement and that Kaye/Bassman should be denied any relief on its breach-of-contract counterclaim.

In order for Help Desk NOW to be entitled to summary judgment, it was Help Desk NOW’s burden to demonstrate that its construction of the Fourth Addendum is the only reasonable interpretation. See Hackberry Creek Country Club, 205 S.W.3d at 56, 62. In its summary-judgment motion, Help Desk NOW argued that, under the terms of paragraph 1 of the Fourth Addendum, Help Desk NOW is not obligated to pay any commissions to Kaye/Bassman for revenue generated from the 2006 Synchronoss Agreement because the parties did not agree in writing that Kaye/Bassman would be entitled to those commissions “in advance of [Help Desk NOW’s] entering into” that contract.

When construing a written contract, our primary concern is to ascertain the true intentions of the parties as expressed in the instrument. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). We consider the entire writing and attempt to harmonize and give effect to all the provisions of the contract by analyzing the provisions with reference to the whole agreement. Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex.2005) (per curiam); J.M. Davidson, 128 S.W.3d at 229. When the provisions of a contract appear to conflict, we will attempt to harmonize the provisions and assume the parties intended every provision to have some effect. See United Protective Servs., Inc. v. West Village Ltd. P’ship, 180 S.W.3d 430, 432 (Tex.App.-Dallas 2005, no pet.). In doing so, however, we need not embrace strained rules of interpretation in order to avoid ambiguity at all costs. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987). If we are unable to harmonize the provisions and give effect to all its clauses, the contract is susceptible to more than one reasonable interpretation and is thus ambiguous. Hackberry Creek Country Club, 205 S.W.3d at 56. It is improper to grant a motion for summary judgment when a contract is ambiguous because the interpretation of the contract is a fact issue. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983); Harris v. Rowe, 593 S.W.2d 303, 306 (Tex.1979).

Help Desk NOW’s construction of the Fourth Addendum is based strictly on paragraph 1. But a court cannot consider a single provision in isolation and instead must consider the entire agreement and attempt to harmonize and give effect to all the provisions. See Frost Nat’l Bank, 165 S.W.3d at 312. Among the other provisions of the Fourth Addendum, paragraph 4 purports to reaffirm Help Desk NOW’s obligations under the Original Agreement. Although the Original Agreement does not reference Synchro-noss by name, it is undisputed that the Original Agreement applied to Synchro-noss. And under the terms of the Original Agreement, as quoted above, Help Desk NOW is obligated to pay commissions to Kaye/Bassman for as long as Help Desk NOW continues to collect on billed revenue from Synchronoss. As a result, Help Desk NOW’s construction does not avoid an ambiguity. We conclude that Help Desk NOW did not meet its burden to demonstrate that its construction of the Fourth Addendum is the only reasonable interpretation. See Hackberry Creek Country Club, 205 S.W.3d at 56, 62. As a result, we conclude that the trial court erred when it granted summary judgment in favor of Help Desk NOW on its traditional motion for summary judgment. See id. at 68-64 (because movant’s proposed construction of agreement did not avoid an ambiguity trial court erred in granting summary judgment).

Did Kaye/Bassman Meet Its Summary-Judgment Burden?

In its motion for summary judgment, Kaye/Bassman generally argued that it was entitled to continue receiving commissions on the Synchronoss account, and it raised three alternative summary-judgment grounds to support that general argument. First, Kaye/Bassman argued that there was no consideration for the Fourth Addendum because the only possible consideration was past consideration. Second, it argued that the Fourth Addendum is ambiguous and should be construed in its favor. And third, it argued that the Fourth Addendum is unambiguous and applies only to the CapGemini account. In its motion, Kaye/Bassman sought a judgment declaring that the Fourth Addendum is unenforceable and that the Original Agreement and the first, second, and third addenda are enforceable. Kaye/Bassman also sought a judgment awarding $429,658.06 in damages, along with interest and attorneys’ fees.

Kaye/Bassman’s First Ground: the Fourth Addendum Lacked Consideration

Kaye/Bassman’s principal argument below and on appeal is that the Fourth Addendum is unenforceable because it lacked consideration. Lack of consideration is an affirmative defense. See Tex.R. Civ. P. 94. And because Kaye/Bassman moved for summary judgment on its own affirmative defense, the burden was on Kaye/Bassman to establish that it was entitled to judgment as a matter of law on that defense. See generally Garza v. CTX Mortg. Co., LLC, 285 S.W.3d 919, 922 (Tex.App.-Dallas 2009, no pet.).

Kaye/Bassman argued below that there was no consideration to support the Fourth Addendum because the only consideration was past consideration. To support its argument, Kaye/Bassman relied on the Fourth Addendum itself, which it contended does not reflect any present consideration. It also relied on an excerpt from the deposition of Help Desk NOW’s corporate representative, Michael O’Neil, in which he testified that he did not see an additional benefit to Kaye/Bassman reflected in the terms of the Fourth Addendum. In response to Kaye/Bassman’s argument, Help Desk NOW argued that the second sentence in the Fourth Addendum’s preamble recites the consideration for that agreement:

As part of the agreement between the parties wherein Help Desk NOW would pay Kaye/Bassman for the CapGemini Energy contract, the following stipulations were also agreed upon by both parties and are hereby included in all agreements heretofore consummated by the parties.

Help Desk NOW also cited excerpts from the deposition of Kaye/Bassman’s President and Chief Executive Officer, Jeffrey Kaye, in which he testified that the dispute over commissions for the CapGemini Energy contract precipitated the Fourth Addendum.

On appeal Kaye/Bassman argues that the Fourth Addendum “must be found void” for lack of consideration. To support its argument, Kaye/Bassman relies on summary-judgment evidence — in particular, deposition testimony — that it argues must be construed “in the light most favorable to Kaye/Bassman.” We cannot construe the evidence related to consideration in favor of Kaye/Bassman, however, because Kaye/Bassman moved for traditional summary judgment on its own affirmative defense, and we must construe summary-judgment evidence in favor of the nonmovant. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex.1991). Nevertheless, we do not need to decide the issue of whether Kaye/Bass-man proved that the Fourth Addendum lacked consideration, because even if we assume that Kaye/Bassman met its initial burden to prove a lack of consideration, and also assume that the burden shifted to Help Desk NOW to raise a fact issue, we conclude that Help Desk NOW met that burden. Construing the evidence in the light most favorable to Help Desk NOW, the Fourth Addendum’s preamble suggests that the Fourth Addendum did not require new consideration because it simply memorialized the additional terms of the parties’ earlier agreement. See, e.g., Mitchell v. Lawson, 444 S.W.2d 192, 195-96 (Tex.App.-San Antonio 1969, no writ) (concluding agreement did not require new consideration because it “was in completion and consummation” of earlier agreement, “and merely carried into effect the whole agreement”). This reading is further supported by Kaye’s deposition testimony that the dispute over commissions for the CapGemini Energy contract precipitated the Fourth Addendum. Alternatively, even if the Fourth Addendum is only ambiguous with respect to whether it is supported by consideration, because it could reasonably be construed in favor of consideration, we must indulge that construction because it favors Help Desk NOW, the nonmovant. See Roark, 813 S.W.2d at 496. Construing the summary-judgment evidence in favor of Help Desk NOW, as we must, we conclude that the trial court did not err in denying Kaye/Bassman’s motion for summary judgment on its affirmative defense of lack of consideration. See id.

Kaye/Bassman’s Second Ground: the Fourth Addendum is Ambiguous

As an alternative to its argument that the Fourth Addendum lacked consideration, Kaye/Bassman argued in its motion for summary judgment that the Fourth Addendum is ambiguous for the following three reasons:

• First, it is unclear from the language of [the Fourth Addendum] whether the “new or existing clients” language in Paragraph 1 is meant to apply to all new or existing clients of Help Desk Now, or only those to which Kaye/Bássman was related.
• Second, it is unclear from the language whether “existing” clients was meant to include Synchronoss, since Synchro-noss is not mentioned otherwise in the [Fourth Addendum] and the only existing client (that was related to Kaye/Bassman) that is mentioned in the [Fourth Addendum] in [sic] Cap-Gemini.
• Third, it is ambiguous from the language of [the Fourth Addendum] whether “any contract,” as stated in paragraph 1 of [the Fourth Addendum], means any contract at all or any contract with new and substantially different terms.[]

Kaye/Bassman further argued that undisputed parol evidence demonstrates that the Fourth Addendum should be construed in its favor as a matter of law. More specifically, Kaye/Bassman relied upon the following excerpts from O’Neil’s deposition to prove that the Fourth Addendum does not apply to commissions generated from the Synchronoss account:

Q. Did Fred Riek, the man who drafted [the Fourth Addendum], who you said never said, at least in your presence, that [the Fourth Addendum] related to Synchronoss, did he ever personally dispute any of the moneys that Kaye/Bassman said were due and owing?
A. Not to my knowledge, I... []
Q. He never said anything like, Wow, this $117,000 that we owe Kaye/Bassman, that seems like a lot of money; doesn’t the contract cut off the time that Kaye/Bassman’s supposed to be paid? Did he say anything like that in your presence? A. Not in my presence.
Q. Okay, so is it safe to say as of October of 2006, Help Desk NOW still thought that they had to continue paying Kaye/Bassman on the Synchronoss business.
A. Yes. At that time, yes.
Q. I’m looking at Exhibit No. 35 [dated March 23, 2007], where Mr. Carriker is saying that he’s going to send post dated checks to Kaye/Bassman for Synchronoss business, correct?
A. So — yes. So Lynn Carriker believed that to be true, I’m sure.
Q. Okay. And Lynn Carriker was the CFO of the company; is that correct?
A. Yes.
Q. And nobody told him otherwise, did they?
A. No.

Kaye/Bassman also cited the following excerpt from O’Neil’s deposition to prove that Help Desk NOW first questioned the commissions owed on the Synchronoss account after the potential buyers (who ultimately became the new owners) “read through the Addenda and pointed out to Help Desk Now’s management that the ambiguous language could be read in a way that the parties had not intended”:

Q. And the decision was made to stop paying Kaye/Bassman right after the acquisition of Help Desk NOW by the two Indian gentlemen; is that correct?
A. They were definitely involved in that decision, sure.
Q. But I’m talking about from a timing standpoint, the decision was made to stop paying Kaye/Bassman right after the two Indian gentlemen acquired Help Desk NOW?
A. Yes.

In its response, Help Desk NOW argued that the Fourth Addendum should be construed as a matter of law to preclude any further commissions on the Synchronoss account, again relying exclusively on paragraph 1.

Even if the Fourth Addendum is ambiguous, however, the parol evidence relied upon by Kaye/Bassman does not conclusively demonstrate that the Fourth Addendum should be construed in favor of Kaye/Bassman as a matter of law. Based on the summary-judgment arguments and evidence in this case, we conclude that Kaye/Bassman did not meet its burden to demonstrate that it was entitled to summary judgment on the ground that the Fourth Addendum should be construed as a matter of law in favor of Kaye/Bassman. See, e.g., Hackberry Creek Country Club, 205 S.W.3d at 57-64 (on cross-motions for summary judgment concerning interpretation of contract, neither party met its respective burden to demonstrate that it was entitled to judgment as a matter of law); see generally Coker, 650 S.W.2d at 394 (“When a contract contains an ambiguity, the granting of a motion for summary judgment is improper because the interpretation of the instrument becomes a fact issue.”).

Kaye/Bassman’s Third Ground: the Fourth Addendum is Unambiguous

Kaye/Bassman primarily relied in the trial court, as it does in this appeal, on its alternative arguments that the Fourth Addendum lacked consideration or is ambiguous and should be construed in its favor. It also argued below, in the alternative, that the Fourth Addendum is unambiguous and applies exclusively to the CapGemini Energy account. Kaye/Bass-man does not reassert that alternative argument on appeal. Instead, Kaye/Bass-man argues that the Fourth Addendum is unambiguous and could be construed in its favor because paragraphs 1 and 4 can be read in harmony as requiring Help Desk NOW to pay commissions to Kaye/Bass-man on revenues generated as a result of the 2006 Synchronoss Agreement. More specifically, Kaye/Bassman notes that paragraph 1 requires an agreement in writing in advance of any agreement with a new or existing client. And it argues that it did have an agreement in writing in advance of the 2006 Synchronoss Agreement — namely, the Original Agreement. In other words, Kaye/Bassman argues on appeal that the Original Agreement is the written agreement required by paragraph 1 of the Fourth Addendum — and that paragraph 4 further confirms that Help Desk NOW would continue to pay commissions to Kaye/Bassman on the Synchro-noss account for as long as Help Desk NOW continues to receive revenues on that account, as required by the Original Agreement. This argument cannot be considered on appeal, however, because it was not presented to the trial court as a ground for summary judgment in favor of Kaye/Bassman. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993).

Kaye/Bassman’s Mutual-Mistake Argument

On appeal Kaye/Bassman also argues that the Fourth Addendum must be reformed as a matter of law because it contains a mutual mistake. However, Kaye/Bassman did not move for summary judgment in the trial court on its affirmative defense of mutual mistake. Instead, in response to Help Desk NOW’s no-evidence motion for summary judgment on Kaye/Bassman’s affirmative defense of mutual mistake, Kaye/Bassman cited evidence to support that affirmative defense in order to defeat Help Desk NOW’s no-evidence motion for summary judgment.

On appeal, Kaye/Bassman does not argue that it raised a fact issue on its affirmative defense of mutual mistake. Instead, it essentially asks this Court to grant summary judgment in its favor on its affirmative defense of mutual mistake. But we can address only grounds for summary judgment that were raised in writing in the trial court. See Tex.R. Civ. P. 166a(c); see also McConnell, 858 S.W.2d at 341; Hackberry Creek, 205 S.W.3d at 50 (all theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court). As a result, we do not address Kaye/Bass-man’s argument on appeal that the Fourth Addendum should be reformed as a matter of law due to mutual mistake. See Tex.R. Civ. P. 166a(c).

Analysis of No-Evidence Motion Under Rule 166a(i)

In its amended answer, Kaye/Bassman pleaded the following “affirmative defenses” to Help Desk NOW’s declaratory-judgment claim: lack of consideration, ambiguity, estoppel, fraud, laches, release, waiver, “no meeting of minds,” mutual mistake, and breach of contract. In its no-evidence motion for summary judgment, Help Desk NOW argued that there was no evidence to support certain elements of each of those affirmative defenses. After Kaye/Bassman responded to the no-evidence motion and cited to evidence supporting the challenged elements of its affirmative defenses, the trial court granted the no-evidence summary judgment motion in its entirety.

With respect to two of Kaye/Bass-man’s affirmative defenses — lack of consideration and ambiguity — those defenses were the subject both of Kaye/Bassman’s motion for summary judgment under rule 166a(c), and Help Desk NOW’s no-evidence motion for summary judgment under rule 166a(i). In the trial court, Kaye/Bassman responded to Help Desk NOWs no-evidence motion for summary judgment on those affirmative defenses and cited evidence to demonstrate that the Fourth Addendum lacked consideration and was ambiguous. On appeal, Kaye/Bassman argues that its summary-judgment evidence proves that the Fourth Addendum lacked consideration or is ambiguous, and it supports those arguments with citations to its summary-judgment evidence. As a result, we conclude that the trial court erred when it granted no-evidence summary judgment in favor of Help Desk NOW on Kaye/Bassman’s affirmative defenses of lack of consideration and ambiguity. See generally Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.2003) (no-evidence summary judgment is improper if nonmovant presents more than scintilla of evidence supporting disputed issue).

With respect to Kaye/Bassman’s other affirmative defenses, however, we cannot reverse the trial court’s order granting no-evidence summary judgment against Kaye/Bassman on those defenses. Kaye/Bassman argues generally on appeal that the trial court erred in granting the no-evidence motion for summary judgment. But with respect to its other affirmative defenses, Kaye/Bassman does not argue that the trial court erred because Kaye/Bassman’s summary-judgment evidence raised a fact issue sufficient to meet its burden under rule 166a(i) and preclude summary judgment on those affirmative defenses. Instead, it argues that its affirmative defenses “defeat[ ] [Help Desk NOW’s] deceitful efforts to deny Kaye/Bassman of its contractual right to commissions on the Synchronoss business,” and prevent Help Desk NOW “from prevailing on its disingenuous attempt to avoid its contractual obligations.” Kaye/Bassman also states that (1) Help Desk NOW “committed fraud and fraudulent inducement and should be estopped from denying that it owes Synchronoss commissions to Kaye/Bassman”; (2) Help Desk NOW “has released its claim that [the Fourth Addendum] applies to the Synchronoss account”; (3) and Help Desk NOW “has waived its claim that [the Fourth Addendum] applies to the Synchro-noss account.” In other words, Kaye/Bassman argues on appeal that its affirmative defenses precluded the trial court from granting Help Desk NOW’s traditional motion for summary judgment; Kaye/Bassman does not argue that it defeated Help Desk NOWs no-evidence motion for summary judgment on Kaye/Bass-man’s other affirmative defenses by raising a fact issue. Kaye/Bassman also states that it submitted “ample evidence” to support its release and waiver defenses, but it does not identify which summary-judgment evidence it claims supports those two defenses, nor does it describe how or why its summary-judgment evidence supports those two defenses. As a result, we affirm the no-evidence summary judgment against Kaye/Bassman on its other affirmative defenses.

Conclusion

We conclude that neither party met its burden to demonstrate that it was entitled to traditional summary judgment on its claim or the other party’s claim. We reverse the trial court’s summary judgment in favor of Help Desk NOW and affirm the trial court’s denial of Kaye/Bassman’s motion for summary judgment. We also reverse the no-evidence summary judgment against Kaye/Bassman on its affirmative defenses of lack of consideration and ambiguity, and affirm the no-evidence summary judgment against Kaye/Bassman on its other affirmative defenses. We remand this cause to the trial court for further proceedings consistent with this opinion.

      . Kaye/Bassman essentially contends that it introduced Sherman to Help Desk NOW so that Sherman could help broker call-center business for Help Desk NOW. In contrast, Help Desk NOW contends that Kaye/Bassman introduced Sherman to Help Desk NOW as one of several candidates for potential employment by Help Desk NOW as a salesman. According to Help Desk NOW, the initial agreement was that Help Desk NOW would pay Kaye/Bassman a percentage of the first year of a candidate’s salary upon hiring. Help Desk NOW interviewed Sherman by telephone and decided not to hire him.

      . According to Kaye/Bassman, the parties entered into the Original Agreement before Kaye/Bassman disclosed, through Sherman, Synchronoss as a potential client. In contrast, according to Help Desk NOW, Sherman introduced Help Desk NOW to Synchronoss independently, not as Kaye/Bassman's agent, and the parties later entered into the Original Agreement after Kaye/Bassman threatened to derail the Synchronoss contract unless Help Desk NOW compensated Kaye/Bassman.

      . The last word in Help Desk NOW’s name is not spelled in all-caps in some of the pleadings and summary-judgment evidence. But Help Desk NOW spells the last word of its name in all-caps in its appellee’s brief. Accordingly, we spell "NOW” in all-caps in this opinion unless we are quoting from one of the places in the clerk's record where it is not spelled in all-caps.

      . The parties disagree about whether and to what extent the 2006 Synchronoss Agreement was different from Help Desk NOW’s previous contracts with Synchronoss.

      . Help Desk NOW's amended petition included a request for attorneys' fees under the declaratory judgments act. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 2008). But during a telephonic hearing that occurred after the hearing on the motions for summary judgment, and before the final judgment was signed by the trial court, Help Desk NOW agreed to "abandon” its claim for attorneys' fees under the declaratory judgments act so that the trial court's judgment "could be final.''

      . Help Desk NOW also argued in a footnote in its summary-judgment response, as it does in a footnote in its appellee's brief, that Kaye/Bassman’s statement in its counterclaim that the Fourth Addendum is a "valid con-tractf ]" constitutes a judicial admission and defeats Kaye/Bassman's claim that it lacked consideration. But the statement in its counterclaim that the Fourth Addendum is a "valid contract" was pleaded in the alternative to its affirmative defense that the Fourth Addendum lacked consideration. Because it was pleaded in the alternative, we conclude that the statement does not constitute a judicial admission. City of Dallas v. Hillis, 308 S.W.3d 526, 531-32 (Tex.App.-Dallas 2010, pet. filed) (to constitute judicial admission, statement in live pleading must be clear, deliberate, unequivocal, and not pleaded in the alternative).

      . On appeal, Kaye/Bassman also argues that the Fourth Addendum is ambiguous for an additional reason: because paragraph 1 conflicts with paragraph 4. This argument cannot be considered on appeal, however, because it was not presented to the trial court as a ground for summary judgment in favor of Kaye/Bassman. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993).

      . Ellipsis in original.