author: ALMA L. LÓPEZ, Chief Justice.

text:
    Sondra L. GROHMAN-KAHLIG, Appellant, v. Clarence J. KAHLIG, II, Appellee.
    No. 04-07-00468-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 29, 2008.
    Rehearing Overruled Dec. 19, 2008.

      Richard J. Karam, Law Office of Richard J. Karam, San Antonio, TX, Andy Taylor, Andy Taylor & Associates, P.C., Houston, TX, Kathleen Cassidy Goodman, Law Office of Kathleen Cassidy Goodman, P.L.L.C., Boerne, TX, for Appellant.
    Lamont A. Jefferson, Katharine D. David, Haynes and Boone L.L.P., Houston, TX, Ruth G. Malinas, William H. Ford, Ball & Weed, P.C., Samuel V. Houston, III, William H. Ford and Associates, P.C., San Antonio, TX, for Appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
   MEMORANDUM OPINION

Opinion: by

ALMA L. LÓPEZ, Chief Justice.

Sondra L. Grohman formerly known as Sondra L. Grohman-Kahlig sued her ex-husband, Clarence J. Kahlig, II, for breach of contract after he converted two corporations, whose stock was pledged to secure a note, to limited partnerships. Grohman later amended her petition to add various entities owned by Kahlig as additional defendants and to add additional tort claims. A jury found that Kahlig did not breach any agreement as a result of the conversions. On appeal, Grohman contends the trial court erred by: (1) including an erroneous instruction in the jury charge; (2) failing to grant a judgment notwithstanding the verdict because she conclusively established her breach of contract claim; (3) refusing to submit her tort claims to the jury; and (4) awarding attorney’s fees. We affirm the trial court’s judgment as to Grohman’s tort claims. We reverse the trial court’s judgment as to Grohman’s breach of contract claim and Kahlig’s claim for declaratory relief. We remand the cause to the trial court for further proceedings.

Background

Grohman and Kahlig were divorced in 2001. As part of their divorce settlement, Kahlig agreed to pay Grohman approximately $22 million. Kahlig paid Grohman approximately $12 million in cash and gave Grohman a promissory note for $9.5 million. The note was secured by seventy percent of Kahlig’s stock in two corporate entities. Certificates evidencing the stock pledged by Kahlig were placed in escrow with a bank. Kahlig paid each of the annual payments of approximately $1 million due on the note in 2002, 2003, and 2004.

During the course of a second child custody suit filed by Grohman, Grohman discovered the corporate entities, whose stock was pledged to secure the note, had been converted to limited partnerships in 2003. The entities were converted so they would not be required to pay Texas franchise taxes.

Based on this discovery, Grohman sued Kahlig in August of 2005. Initially, Groh-man only asserted a claim against Kahlig for breach of contract. Grohman alleged that the conversions resulted in a breach of the Security Agreement because Kahlig agreed not to “sell, transfer, lease or otherwise dispose of the Collateral or any interest therein” without Grohman’s consent and further agreed not to “allow the Collateral to become wasted or destroyed.” Kahlig answered and asserted a counterclaim for declaratory relief, seeking a declaration that the Security Agreement permits Kahlig to unilaterally determine the business form under which the entities, North Park Lincoln Mercury and Kahlig Enterprises, operate and the conversion of the business form does not constitute an event of default under the Security Agreement.

In 2006, the Texas law that enabled limited partnerships to avoid the payment of franchise taxes was amended. Because the limited partnership form was no longer advantageous for this purpose, the entities were reconverted to corporations in 2006.

In January of 2007, Grohman amended her pleadings to add North Park Lincoln Mercury and Kahlig Enterprises in their various business forms as defendants. Grohman also added various tort claims and a claim for declaratory relief. Groh-man further asserted claims against the bank that served as the escrow agent; however, Grohman later dropped the bank as a defendant in a second amended petition after the bank filed a no evidence motion for summary judgment and a motion for sanctions.

A jury found that Kahlig did not fail to comply with the terms of the note, security agreement, or escrow agreement by converting the corporations to limited partnerships. The trial court then entered a take nothing judgment as to Grohman’s claims against both Kahlig and the entities. The trial court granted Kahlig’s request for declaratory relief and declared that Kahlig could unilaterally determine the business form under which the entities would operate without notice to Grohman. The trial court also awarded Kahlig $187,757.00 and the entities $82,367.08 in attorney’s fees.

Jury Charge Instruction

In her first issue on appeal, Grohman contends the trial court erred by improperly including statutory language in the instruction to the first jury question which required the jury to decide a question of law instead of answering a question of fact. The instruction about which Grohman complains accompanied the question submitted to the jury with regard to Groh-man’s breach of contract claim and reads:

QUESTION NUMBER ONE:
Did Clarence J. Kahlig, II, fail to comply with the terms of the parties’ Promissory Note, Security Agreement or Escrow Agreement by converting the corporations to partnerships?
Answer “YES” or “NO.”
ANSWER: _
When a conversion of a converting entity takes effect:
(1) the converting entity shall continue to exist, without interruption, but in the organizational form of the converted entity rather than in its prior organizational form;
(2) all rights, title and interests to all real estate and other property owned by the converting entity shall continue to be owned by the converted entity in its new organizational form without reversion or impairment, without further act or deed, and without any transfer or assignment having occurred, but subject to any existing hen or other encumbrances thereon;
(3) all liabilities and obligations of the converting entity shall continue to be liabilities and obligations of the converted entity in its new organizational form without impairment or diminution by reason of the conversion;
(4) all rights of creditors or other parties with respect to or against the prior interest holders or other owners of the converting entity in their capacities as such in existence as of the effective time of the conversion will continue in existence as to those liabilities and obligations and may be pursued by such creditors and obligees as if the conversion had not occurred;
(5) the shares and other evidences of ownership in the converting entity that are to be converted into shares, evidences of ownership, or other securities in the converted entity as provided in the plan of conversion shall be so converted, and if the converting entity is a domestic corporation, the former holders of shares in the domestic corporation shall be entitled only to the rights provided in the plan of conversion. [This paragraph will be subsequently referred to herein as the “Article 5.20 Instruction.”]
A security interest is an interest in personal property or fixtures which secures payment or performance of an obligation. A security interest continues in collateral notwithstanding the sale, lease, license, exchange, or other disposition of the collateral. A security interest attaches by law to any identifiable proceeds of collateral.
The term “proceeds” means whatever is acquired upon the sale, lease, exchange, or other disposition of collateral, including rights arising out of collateral.

Grohman divides her issue into ten separate sub-arguments. In one sub-argument, Grohman contends that the trial court injected the language of article 5.20 of the Texas Business Corporation Act into the jury charge and instructed the jury that conversion was legally justified. In various other sub-arguments, Grohman contends that article 5.20 does not apply to the parties’ agreement, determining the effect of article 5.20 was outside the province of the jury, the jury was confused by the instruction, and submitting the article 5.20 instruction was an improper inferential rebuttal question. One final sub-argument asserts that the trial court compounded its error by prohibiting Grohman’s expert from opining on the effect of article 5.20; however, Grohman did not separately raise or brief an issue regarding the erroneous exclusion of evidence.

Kahlig and the entities respond that the instruction properly defined the technical term “conversion.” Kahlig and the entities further respond that the inclusion of either the question or the instruction, if erroneous, was harmless.

We review allegations of error in the jury charge under an abuse of discretion standard. Indian Beach Property Owners’ Ass’n v. Linden, 222 S.W.3d 682, 704 (Tex.App.-Houston [1st Dist.] 2007, no pet.); America’s Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 624 (Tex.App.-San Antonio 1996, writ denied). A trial court commits error if it submits a question of law to the jury. Indian Beach Property Owners’ Ass’n, 222 S.W.3d at 704. Absent a showing of extraneous prejudice, however, submission of a question of law to the jury is generally harmless since no harm results if it is answered as the trial court should have answered it, or it can be deemed immaterial and disregarded by the trial court if answered incorrectly. Indian Beach Property Omier’s Ass’n, 222 S.W.3d at 705; Hudson Buick, Pontiac, GMC Truck Co. v. Gooch, 7 S.W.3d 191, 195 (Tex.App.-Tyler 1999, pet. denied).

During the charge conference, Kahlig and the entities objected to the inclusion of jury question number one because it was a question of law. Kahlig and the entities argue this same point in their brief, and we agree.

If contract language can be given a certain or definite meaning, then it is not ambiguous; it should be interpreted by a court as a matter of law. Universal Health Servs., Inc. v. Renaissance Women’s Group, P.A., 121 S.W.3d 742, 746 (Tex.2008). Where the parties agree on the facts regarding performance of an unambiguous contract, whether a party has breached the contract is a question of law for the court. Indian Beach Property Owners’ Ass’n, 222 S.W.3d at 705; Schachtner v. Crosby State Bank, No. 14-03-00424-CV, 2004 WL 78202, at ⅜1 (Tex.App.-Houston [14th Dist.] Jan. 20, 2004, no pet.) (mem. op.); Meek v. Bishop Peterson & Sharp, P.C., 919 S.W.2d 805, 808 (Tex.App.-Houston [14th Dist.] 1996, writ denied).

In Indian Beach Property Oumers’ Ass’n, the appellant argued that the trial court erred in submitting a question to the jury that required the jury to make a legal conclusion about applicable deed restrictions. 222 S.W.3d at 704. The question submitted to the jury was whether the appellees violated the applicable deed restrictions by constructing a fence. Id. Because the deed restrictions were unambiguous and the construction of the fence was undisputed, the appellate court agreed that the jury question presented a question of law. Id. at 705.

Similarly, in Meek, the appellant argued that the appellee waived any damages awarded for its breach of contract claim because the breach of contract claim was omitted from the jury charge. 919 S.W.2d at 808. The appellate court noted, however, that the existence of the contract wherein the appellee agreed to pay the appellant fees for legal representation was undisputed as was the appellee’s failure to pay the fees. Id. Therefore, the existence of a breach was a question of law, and no jury question was required. Id.; see also Bank One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 432 (Tex.App.-Houston [14th Dist.] 1998, pet. denied) (noting dispute regarding terms of an agreement and whether undisputed actions constituted a breach were questions of law).

In this case, the parties’ agreements are unambiguous. As Grohman states in her brief, “The clear and unambiguous agreement of the Parties is contained in three documents: the Promissory Note, the Security Agreement and the Escrow Agreement.” Moreover, the parties agree on the facts regarding performance, i.e., it is undisputed that Kahlig converted the corporations to partnerships. Therefore, whether Kahlig breached the agreements by converting the corporations was a question of law for the trial court.

The next question is whether the submission of the question was harmless because the jury answered it as the trial court should have answered it. Indian Beach Property Owner’s Ass’n, 222 S.W.3d at 705; Hudson Buiclc, Pontiac, GMC Truck Co., 7 S.W.3d at 195. The introductory paragraphs to the Security Agreement define “Collateral” as the shares of stock and “all replacements, additions and substitutions therefor now owned or hereafter acquired by Borrower.” Kahlig relies on this definition as evidence that the conversion was not a disposition, asserting that the security interest continued in the “replacement” partnership units. Although this definition ensures that Groh-man’s security interest will attach to whatever might be received as a result of a disposition, this portion of the agreement does not address whether such dispositions are permissible. Instead, in paragraph 5, the agreement provides, “Borrower will not sell, transfer, lease or otherwise dispose of the Collateral or any interest therein except in compliance with the release provisions herein.” The release provisions only provide for a release of a portion of the shares when the balance of the note is reduced to $4,750,000.00 and for complete release upon full payment. Although the term “Collateral” was defined to provide continued security for Grohman in the event of a disposition, paragraph 5 prohibits Kahlig from disposing of the Collateral. The parties’ intent that the Collateral would consist of the stock is further evidenced by the execution of an escrow agreement and by paragraph 2 of the Security Agreement which states, “The Collateral is herewith delivered to and will be kept in the offices of Frost National Bank of San Antonio, Texas.”

In his post-submission brief, Kahlig argues that the conversion was not a transfer or disposition to a “third party” in the traditional sense. The Texas Supreme Court, however, has held that the destruction of property by a secured creditor, which did not involve a transfer to a third party, was a disposition of property. Tanenbaum v. Economics Laboratory, Inc., 628 S.W.2d 769, 771 (Tex.1982). Accordingly, a disposition does not necessarily involve a transfer to a third party. See id.

Kahlig also makes reference to the following provision in paragraph 8 of the Security Agreement: “Until an event of default shall occur and be continuing, Borrower shall have all rights and all responsibilities in respect to the Collateral and may use it in any lawful manner not inconsistent with this Security Agreement, and Borrower shall have full power and authority in all matters concerning the Companies and their assets and businesses.” If, however, the conversion is a disposition, the conversion would be a use of the Collateral “inconsistent with [paragraph 5 of] this Security Agreement.”

The Plan of Reorganization setting forth the terms of the conversion provides that the shares of stock are converted into units of limited partnership interest and the shares, as a result of the conversion, shall be canceled and retired and shall cease to exist. Given the undisputed facts regarding the conversion and the unambiguous terms of the Security Agreement, the cancellation of the shares was a disposition of the Collateral. Since Kahlig was the sole shareholder and authorized the conversion, Kahlig disposed of the Collateral and thereby technically failed to comply with the terms of the Security Agreement. Accordingly, the jury’s response to question number one must be deemed immaterial and must be disregarded. See Indian Beach Property Owners’ Ass’n, 222 S.W.3d at 705. Moreover, because such a conversion is a disposition under the Security Agreement, the trial court erred in declaring that the Security Agreement allows Kahlig to unilaterally determine the business form of the entities and that Groh-man’s permission is not required to change the business form in this manner.

The jury’s response to the damages question was conditioned on an affirmative finding to question number one. Because the jury answered question number one in the negative, it did not reach the issue of damages. Although rule 44.1(b) of the Texas Rules of Appellate Procedure precludes us from ordering a separate trial on damages if liability is contested, liability in this case is now uncontested because it has been established as a matter of law. See American Bankers Ins. Co. v. Caruth, 786 S.W.2d 427, 427 (Tex.App.-Dallas 1990, no writ); see also Browning Oil Co. v. Lueclce, 38 S.W.3d 625, 647 n. 31 (Tex.App.-Austin 2000, pet. denied) (finding good cause to suspend rule and remand for damages determination). Constrained by the terms of the Security Agreement, we must reverse the trial court’s judgment as to Grohman’s breach of contract claim. All legal and equitable issues relating to damages or other relief that may or may not be appropriate based on Kahlig’s disposition await further consideration on remand where the circumstances of the case, including the substitution of collateral and the increased value of the entities, will need to be taken into account.

Tort Claims

In her third issue, Grohman contends the trial court erred in refusing her request to submit questions regarding her fraud, negligence and gross negligence claims.

Rule 278 of the Texas Rules of Civil Procedure requires the submission of questions that are raised by written pleadings and the evidence. Tex.R. Civ. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 248 (Tex.1992). We review a trial court’s decision to exclude a jury question under an abuse of discretion standard. Komet v. Graves, 40 S.W.3d 596, 603 (Tex.App.-San Antonio 2001, no pet.). When evaluating whether a party is entitled to a jury question, we examine the record for evidence supporting the submission of the question, and ignore evidence to the contrary. Elbaor, 845 S.W.2d at 243. Refusal by a judge to submit a question is correct if no evidence exists to warrant the submission of the question. Id.

A. Fraud

To prove a fraud cause of action, it must be established that: 1) a material misrepresentation was made; 2) that was known to be false when made or was asserted without knowledge of its truth; 3) that was intended to be acted upon; 4) that was relied upon; and 5) caused injury to the party who relied on the misrepresentation. Formosa Plastics Corp. U.S.A. v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 47-48 (Tex.1998). As a general rule, the failure to disclose information does not constitute fraud unless there is a duty to disclose the information. In re Seigel, 198 S.W.3d 21, 29 (Tex.App.-El Paso 2006, orig. proceeding [mand. denied] ). Whether such a duty exists is a question of law. Id.

Grohman contends that Kahlig engaged in fraud by failing to disclose the plans to her to pursue a conversion of the entities that was first proposed in 1999. Grohman does not cite any law to support her contention that Kahlig had a duty to disclose under the circumstances, and we have found none. Although the conversion was being contemplated in 1999, the uncontro-verted evidence established that Kahlig refused to pursue a conversion absent a private letter ruling from the IRS that the conversion would not adversely affect the accounting method relating to the dealership’s inventory. The uncontroverted evidence further established that the IRS refused to provide such a private letter ruling in January of 2000, before the parties’ divorce was finalized. No evidence was presented that the IRS changed its position until February of 2002, after the parties’ divorce. Therefore, the trial court did not abuse its discretion in refusing to submit a question on fraud because Kahlig did not have a duty to disclose the plans to Grohman.

Grohman further contends that Kahlig committed fraud by misrepresenting that he would protect the collateral. Because the promise to protect the collateral was subsumed in the Security Agreement, any alleged misrepresentation by Kahlig would give rise to a fraud claim only if Grohman could establish that Kahlig entered into the Security Agreement with no intention of protecting the collateral. Formosa Plastics Corp. U.S.A., 960 S.W.2d at 46-47. The only evidence Groh-man references in her brief is the evidence that Kahlig contemplated the conversion of the entities in 1999 but did not disclose that information. This argument fails for the reason previously given. Grohman does not cite to any evidence raising a fact issue with regard to whether Kahlig intended not to protect the collateral at the time he signed the Security Agreement. Kahlig testified that he always intended to protect the collateral. Many witnesses testified that the collateral was protected because the security interest in the stock became a security interest in the partnership units.

Although the failure to perform a contract is some circumstantial evidence that is to be considered in deciding whether a promisor did not intend to perform when the promise was made, Weinberger v. Longer, 222 S.W.3d 557, 562 (Tex.App.Houston [14th Dist.] 2007, pet. denied), in this case, the evidence established that Kahlig never intended to convert the corporations unless he received a private letter ruling from the IRS which the IRS declined to issue until after the divorce was final. Therefore, based on the evidence presented, the trial court did not abuse its discretion in denying Grohman’s request for a jury question on fraud.

B. Negligence and Gross Negligence

The sum total of Grohman’s analysis on the failure to submit questions of negligence and gross negligence is the following sentence, “The court erred by not submitting fraud and therefore the lesser claims of negligence and gross negligence.” Accordingly, this complaint has not been adequately briefed and is overruled. See Tex.R.App. P. 38.1(h); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.App.-Houston [14th Dist.] 2005, no pet.).

Even if we were to consider the argument Grohman makes in her single sentence, the argument logically fails. Because we have held that the trial court did not err “by not submitting fraud,” applying Grohman’s logic, the trial court therefore did not err in not submitting “the lesser claims of negligence and gross negligence.”

Attorney’s Fees

In her final issue, Grohman contends the trial court erred in awarding attorney’s fees to Kahlig because his request for declaratory relief impermissibly mirrored her claim for relief. Grohman also contends that the trial court erred in awarding attorney’s fees to the entities because they did not submit any issues to the jury and therefore did not prevail on any claims. As we previously held, because a conversion of the nature undertaken in this case is a disposition under the Security Agreement, the trial court erred in declaring that the Security Agreement allows Kahlig to unilaterally determine the business form of the entities and that Groh-man’s permission is not required to change the business form in this manner. Because the portion of the trial court’s judgment granting the declaratory relief must be reversed, we also must reverse the award of attorney’s fees.

Conclusion

The portion of the trial court’s judgment ordering that Grohman take nothing on her claims for fraud, gross negligence, and negligence is affirmed. The portions of the trial court’s judgment ordering that Grohman take nothing on her breach of contract claim, granting declaratory relief, and awarding attorney’s fees are reversed, and the cause is remanded to the trial court for further proceedings.

      . Kahlig also paid the annual payments that became due during the pendency of the underlying lawsuit and this appeal.


source: Caselaw Access Project

author: SANDEE BRYAN MARION, Justice.

license: Public Domain

text:
    Mary S. ROBERTS, Appellant, v. The STATE of Texas, Appellee.
    No. 04-09-00017-CR.
    Court of Appeals of Texas, San Antonio.
    March 17, 2010.
    Rehearing Overruled May 14, 2010.

      Leslie Werner de Soliz, Soliz Law Group, Victoria, TX, for Appellant.
    Enrico B. Valdez, Assistant Criminal District Attorney, San Antonio, TX, for Appellee.
    Sitting: SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

A jury found appellant, Mary Roberts, guilty on five counts of theft by coercion or deception, and assessed punishment at ten years’ confinement, to run concurrently on all counts. The sentence was suspended, and appellant was placed on ten years’ community supervision. On appeal, appellant contends (1) the evidence is legally and factually insufficient to support the verdict, (2) the evidence establishes her affirmative defense of mistake of law, (3) the trial court failed to properly instruct the jury on any defensive issues, (4) the indictment failed to allege conduct or facts that constitute an offense, and (5) the Texas theft statute is unconstitutionally vague and overly broad both on its face and as applied. We affirm.

BACKGROUND

Between April and September 2000, appellant discovered emails that indicated her husband, Ted Roberts, was having a relationship with someone. In 2000, appellant, individually and with Ted, underwent counseling. In July 2001, appellant discovered Ted perusing an adult internet website. Sometime later in 2001, appellant created her own profile on two adult websites, which indicated she was a professional woman, without enough sex in her life, she was discreet, and enjoyed, among other things, “great sex.” She said she set up the profiles hoping to catch Ted. Although she did not believe Ted responded to her profile, other men did. Over an eight week period, between August and October 2001, appellant met with and had sexual relations with Paul Fitzgerald, Reagan Sakai, Geoffrey Ferguson, and Steve Riebel, all of whom are the complainants in the underlying criminal proceeding.

Appellant testified that, in 2001, her marriage to Ted was “basically dead,” but she did not want a divorce, although Ted wanted a divorce as early as May 2001. She admitted that, on October 24, 2001, which was the night before she went to Austin for a seminar, she had sexual intercourse with Ted. The evening of the next day, Ted came to Austin, met her at her hotel, and confronted her about her emails to other men.

At some point, Ted drafted four petitions pursuant to Texas Rule of Civil Procedure 202 (“the Rule 202 Petitions”), seeking “testimony and evidence relevant to potential claims against” each separate complainant and appellant. Although there are some minor differences between the petitions, they are substantially similar in that the petitions all allege an intention to investigate adultery as a possible ground for divorce; whether violations of the Texas Penal Code constituted negligence per se; and whether use of the equipment, facilities, and/or funds of the complainants’ companies created a cause of action under the doctrine of respondent superior, law of agency, or law of negligent supervision. Each petition listed as “persons with adverse interest entitled to notice,” the complainant, his wife, and in the case of two of the complainants, principals of the complainants’ companies. The petitions also stated specific details of the sexual relations between appellant and the men.

Appellant said it was Ted’s idea to proceed with the petitions, she did not help Ted research the petitions, and it never occurred to her that the petitions to investigate could be perceived as criminal. She also said she was against the petitions because she felt “it didn’t address the fundamental problem, which was the problem in the marriage.” However, she also believed the petition to investigate one of the men was part of the “healing process” for her own family. Appellant, who is an attorney, said she was familiar with Rule 202, but she was embarrassed and humiliated by the contents of the petitions. Appellant stated it was typical of Ted to pursue a legal remedy when he perceived a wrong. She admitted she typed revisions to portions of the petitions because Ted did not know word processing and she was embarrassed to have someone else in Ted’s office read the petitions.

Geoffrey Ferguson, who is married and an attorney licensed in Texas, testified for the State as follows. He had known appellant for several years and they got reacquainted at a legal seminar. They met once in August 2001, while appellant stayed at the Driskill Hotel in Austin, and again on October 25, 2001. Although appellant stayed at the Hyatt Regency on the night of October 25, 2001, they met during the day of October 25 at another hotel where Ferguson had booked a room for them. They only kissed during their August 2001 meeting, and had sexual relations during their October 2001 encounter. From August 2001 until their second meeting in October 2001, they corresponded by email. On October 26, 2001, as appellant was driving home from Austin, she received a telephone call from Ferguson. She told him Ted had seen their email correspondence, Ted knew about the affair, and Ted was upset and wanted to meet with him. Later, Ted also called Ferguson to say he wanted to meet, but no date or time for the meeting was set. About a week later, appellant called Ferguson to set up a meeting between him and Ted for November 28, 2001.

On November 28, 2001, appellant met with Ferguson before Ferguson’s meeting with Ted. Ferguson did not know why appellant wanted to meet with him, and he speculated Ted wanted her to gauge his reaction. At the meeting, appellant assured Ferguson that Ted would not get into specifics and he just wanted to talk. Ferguson testified appellant said she told Ted that she and Ferguson only kissed and she did not tell Ted they had sexual relations. At some point during their meeting, appellant received a telephone call, which left her “sobbing” and “distraught.” About thirty minutes later, Ferguson and Ted had their meeting. Ferguson said Ted wanted him to know he had printed the emails and he was “terribly disappointed.” Ted gave him an envelope that contained a Rule 202 Petition, copies of emails, and “copies of some law.” Ted told Ferguson he was really disappointed, the emails had transpired during his and appellant’s vacations, and he felt betrayed by appellant because he had paid for these vacations at a time when he and appellant “were going to try to heal their relationship, and he felt very badly about that.” Ted also told Ferguson his business had suffered because of the affair, and his children “were acting out.” When Ferguson apologized, Ted responded that he “needfed] to be made whole.” Ferguson testified he “acknowledged that,” and the two continued talking for another twenty to thirty minutes. The meeting ended with Ted telling Ferguson he would get back in touch with him “about wanting to be made whole.”

Once back at his office, Ferguson opened the envelope, which also contained a letter from Ted to Ferguson that stated as follows:

Enclosed are two items. The first is a summary of emails which demonstrates how my vacation was actually spent by my wife.
The second is a petition pursuant to Rule 202 ... which may assist you in determining the seriousness of your situation. It has not yet been filed, but in the words of my wife on October 16th, “Oh, my God, I can hardly wait.”
Be kind to yourself, Ted Roberts.

On December 10, 2001, Ferguson and Ted met again. Ted said he needed $30,000 to make himself whole, and Ferguson could either pay the amount to Ted “as trustee” of a children’s foundation or Ferguson could pay the interest on Ted’s mortgage for about six months. Ferguson gave Ted a check for $30,000 payable to “Ted H. Roberts, P.C., Trustee.” Ted and Ferguson signed two confidentiality agreements. Ferguson had prepared one of the agreements for his signature and Ted’s, while Ted had prepared the other agreement for his, Ferguson’s, and appellant’s signature. Ferguson testified he was not told that Ted was giving the same petitions to three other men, and he did not know appellant had sexual relations with other men during this same time period. He did not recall appellant telling him he was “not the only one,” instead, he recalled only that appellant told him Ted had discovered other emails from someone else. During direct examination, Ferguson testified as follows:

Q. Would [appellant telling you about other men] have made a difference, knowing that information?
A. Yes.
Q. Tell us why.
A. Well, I wouldn’t have paid the money.
Because I would have felt that there was a pattern of behavior that didn’t lend itself to Ted having a unique loss which would be — for which I was responsible.
Yes, I felt responsible, I felt guilty. I have kids of my own, so I felt very guilty about the acting out that he portrayed, as well as the counseling that they were having to go through he said.
[Knowing about the other men would have made a difference in deciding whether to pay Ted $30,000] because I would have felt that there was some kind of fraud involved at that point, since it was portrayed to me that I was the sole cause of the problems with his business and his wife and his children.

Ferguson said the documents contained in his packet, if made public, would have hurt his marriage and his business and would have exposed him to contempt. He also testified he was fraudulently induced to pay Ted because Ted gave him the impression that he alone was the cause of Ted and appellant’s marriage problems. Ferguson did not know Ted and appellant had been in counseling for years before the events of 2001. He said that, during his November 28, 2001 meeting with appellant, appellant did not tell him she had delivered a letter and Rule 202 Petition to Stephen Riebel on November 12, 2001. Ferguson said if he had known, he would not have paid Ted the $30,000.

About two weeks after Ferguson gave Ted the check for $30,000, appellant called Ferguson to tell him she and Ted were handling a personal injury lawsuit that “required a certain amount of financing or support for it to get to judgment.” She asked Ferguson if he “want[ed] to make an investment” of an additional 30,000 “to support this litigation,” which in turn would allow Ferguson to recover the $30,000 he paid to Ted. Ferguson said the offer made no sense to him and he did not pursue the offer.

Steven Riebel lived in San Antonio, was the chief financial officer for a pharmaceuticals firm in 2001, and his testimony for the State is as follows. When appellant responded to his on-line profile in either late August or early September 2001, they first met for coffee in San Antonio. Within a day or two, they met several times at a hotel in San Antonio or appellant’s home and vehicle to have sexual relations. Their last sexual encounter was on October 24, 2001. On October 26, 2001, appellant called Riebel to tell him her husband had discovered their emails; Riebel told her he would consult an attorney. Riebel immediately told his wife about the affair. Appellant called him several more times, each time becoming “more graphic” in telling him that Ted was researching Riebel. In another telephone call, appellant told him Ted had prepared some papers and she asked if she could bring them to Riebel’s office, rather than to the office of Riebel’s attorney.

Enclosed in the packet was a hand-written letter dated November 12, 2001 from appellant to Riebel in which appellant stated as follows:

Ted has promised to do nothing with the enclosed petition without first meeting and talking with you and your attorney. I don’t know how much of the material you would want to share with [Riebel’s attorney] or anyone else.
I urge you to contact either Ted ... or me ... soon so that this aspect of the entire ordeal will not be prolonged.

After reading the Rule 202 Petition contained in the packet delivered by appellant, Riebel felt Ted was “going after” him, Riebel was concerned about his public reputation, and he did not want his wife to be hurt. In a letter from Ted to Riebel’s attorney, dated November 28, 2001, Ted listed various “out-of-pocket expenses,” including the following: (1) $10,000 for a forensic computer investigation, (2) $5,690 for a “Ruined vacation to Sonoma,” (3) a $5,000 retainer to Barbara Hutzler, an attorney, for managing Ted’s practice, and (4) a $5,000 retainer to Sherry Gonzalez, an attorney, for assisting with Ted’s practice. Ted provided receipts for some of the expenses, including an invoice for the computer investigation by Security Management International for $10,007.42. On December 6, 2001, Ted met with Riebel and his attorney, and told them he was considering starting a nonprofit organization to benefit children. At the meeting, Ted made it clear that if Riebel did not pay money to the nonprofit, he would file the petition the next day. Later in December 2001, Riebel purchased a cashier’s check in the amount of $80,000 payable to “Ted and Mary Roberts,” which was deposited into Ted’s firm’s operating account. On March 29, 2002, Riebel also paid $70,000 to the Roberts Foundation for Children. However, before paying the $70,000, Riebel and his attorney asked for proof that the foundation existed. Accordingly, attached to a hand-written note dated March 28, 2002, appellant provided Rie-bel with an affidavit on the foundation’s tax exempt status and an amended confidentiality and settlement agreement. Appellant ended the note as follows: “Please accept my personal thanks for your assistance in this matter.” Appellant, Ted, and Riebel all signed the confidentiality agreement. Riebel said neither Ted nor appellant told him other men had received similar Rule 202 Petitions. Riebel believed he was the only person that caused Ted’s damages.

Reagan Sakai, a corporate chief financial officer, testified for the State as follows. He first contacted appellant through her on-line profile and, after exchanging emails, they met sometime in late August 2001 at the Driskill Hotel in Austin, where they had sexual relations in appellant’s room. Sakai said he knew appellant was married and had a child. After exchanging emails, appellant arranged for them to meet again in October 2001. However, while waiting for appellant at the hotel bar, a man approached Sakai, asked him a question about the stock performance of Sakai’s company, and then identified himself as Ted Roberts. Ted gave Sakai an envelope, suggested he read the contents, and then he left. Sakai read the contents and believed it to be “some sort of legal lawsuit against” himself and appellant. Sakai felt a sense of “dread” because the suit named, as persons with an adverse interest, his wife and all the principals of his company.

After reading the Rule 202 Petition, Sakai went to the hotel’s front desk and asked to speak to either Ted or appellant. When Ted answered, Sakai asked if they could discuss the matter. Ted and Sakai met again in the hotel lobby. Sakai testified the discussion was “a reaffirmation that he got me, he got me good, ... the challenge was, Go ahead and research any of this and you will see that I have a legitimate claim.” Sakai asked if there was any way to “settle” the matter, and Ted responded that he would “get back” to him. In a letter from Ted to Sakai, dated November 19, 2001, Ted stated, among other things, that Sakai (1) knew Ted and appellant were trying to “work things out in marriage counseling,” (2) knew and exploited appellant’s troubled marital history, and (3) knew appellant had been unfaithful. The letter ended by stating Ted had suffered as a result of Sakai’s actions and he intended to file the petition on December 21, 2001 unless Sakai paid him $15,000 “in damages” before that date. Sakai said the letter made him feel like “a pretty bad guy.”

Sakai contacted an attorney who told him there was no merit to any of the claims listed in the petition, and “it wasn’t geared towards winning a lawsuit, it was just a hodge-podge of legal ramblings....” Sakai testified it did not matter to him whether the claims were legal ramblings, “[i]t all boiled down to, [Ted] was going to the courthouse and file this paperwork and also serve ... my co-workers and wife and [appellant] as well.” Although Sakai believed the petition was a “shake down,” eventually an agreement was reached for Sakai to pay, by cashier’s check, $10,000 payable to the Genesis Foundation for Children. The check was deposited into an account entitled Roberts Foundation for Children. Appellant, Ted, and Sakai all signed a confidentiality agreement. Sakai said he was not told others had received similar petitions.

Finally, Paul Fitzgerald, a certified public accountant, testified for the State. He first contacted appellant through her online profile and, after exchanging emails and telephone calls, they met sometime in late August in San Antonio for coffee. After a few other meetings, that did not involve anything beyond conversation and kissing, the two agreed to meet in late August 2001 at the Driskill Hotel in Austin, where they had sexual relations in appellant’s room. About two weeks later, they met again in San Antonio, where they had sexual relations. Sometime in late October 2001, when Fitzgerald called appellant, she told him her husband had discovered their emails. Later, Fitzgerald was contacted by someone using the name “Dr. West” who said he wanted to discuss his income taxes with Fitzgerald. On either November 19 or 20, 2001, Ted showed up for the appointment, gave a packet of documents to Fitzgerald, and said he was “very distraught over the situation.”

Upon reviewing the documents, including the Rule 202 Petition, Fitzgerald thought he had committed a crime, and if he was convicted of a felony, he would lose his license to practice as a CPA. He was also concerned that an examination of his computer files would reveal confidential client information that would ruin his business reputation. Ted told Fitzgerald there might be a way to avoid filing the petition and to “learn and grow and go forward from this.” When Fitzgerald asked how that could be accomplished, Ted responded that Fitzgerald needed “to suffer” for what he had done and one way for him to suffer would be to help Ted “recover some of his expenses related to this matter.” Ted initially quoted an amount of $25,000 and they agreed to $15,000. Ted instructed Fitzgerald to write three $5,000 checks, payable to Sherry Gonzalez, Security Management International, and Barbara Hut-zler. In late November 2001, Fitzgerald gave the checks to Ted and he signed a confidentiality agreement, which included Ted’s and appellant’s signatures. Fitzgerald said Ted had a “large grin” on his face as he left, as if Ted was happy with himself. Fitzgerald said he was not aware that similar petitions had been given to other men. When he discovered later there were other men, he suspected a conspiracy between Ted and appellant.

Finally, Christie Trevino, the receptionist and a legal secretary at Ted’s law firm, testified for the State. She testified she was the one who initially typed the petitions for Ted. She described Ted as mean, she said he often asked her to lie to appellant about where he was if appellant called the office, and he referred to appellant as a “bitch.” Trevino said appellant and Ted had very little interaction between themselves when appellant was in the office and she did not believe they had a good marital relationship. However, Trevino said their relationship changed and “[o]nce all this came about, just all of a sudden they were much more, I guess, lovey-dovey, they just became a lot closer.”

The State also presented evidence that a portion of the money paid by the men was used to pay closing costs on a new house purchased by Ted and appellant. Closing on the new house was scheduled for December 19, 2001; however, Ted and appellant were sued and an injunction froze their assets. As a result, appellant said they decided to take money in the form of a “loan” from the children’s foundation, and use the money to cover their personal and law firm expenses. Some of the personal expenses included checks for $1,242 to a wine shop and $1,540 for a bed and breakfast in California. Although the civil lawsuit ended in November 2002 and Ted and appellant recovered $140,000 in the lawsuit, none of the “loans” were ever repaid and the foundation was dissolved in 2004. Ted and appellant eventually purchased a $625,000 home and a new vehicle in late 2001.

Appellant admitted that, although divorce from Ted was “still contemplated,” she and Ted were in negotiations to buy the $625,000 house and she wrote a $10,000 earnest money check on November 25, 2001. She also testified she was not present at any of the meetings between Ted and the men, and she had nothing to do with the amount of money the men paid. She explained she delivered the petition and letter to Riebel because Ted did not want to have contact with an adverse party who might be represented by counsel; although she admitted Ted did not, in fact, know Riebel was represented by an attorney. She also said it was Riebel’s attorney who wanted the $30,000 check to be payable to Ted and herself.

I. SUFFICIENCY OF THE EVIDENCE

In several sub-issues under her first and second issues, appellant argues the evidence is legally and factually insufficient to support the jury’s verdict.

A. Criminal Culpability

According to appellant, causation and intent are elements of every crime and, here, the State failed to establish her culpability because it did not establish causation or her intent to commit theft.

1. Causation

Appellant first contends her actions were not the type of acts that satisfy “but-for” causation as required by Texas Penal Code section 6.04(a), which provides as follows:

A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.

Tex. Penal Code Ann. § 6.04(a) (Vernon 2003).

Under this section, two combinations may exist to satisfy the requisite causal connection between a defendant’s conduct and the harm that followed: (1) the defendant’s conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause; or (2) the defendant’s conduct and the other cause together may be sufficient to have caused the harm. Robbins v. State, 717 S.W.2d 348, 351 (Tex.Crim.App.1986). Appellant argues that her acts — typing revisions, delivering documents to one of the men, arranging a meeting with one of the men, and signing some of the settlement documents — are not sufficient to constitute “but for” causation. Therefore, appellant concludes that because her conduct was not sufficient by itself to have caused the harm (and there is no alleged concurrent cause), the evidence is legally insufficient to support the verdict.

We disagree with appellant’s reliance on section 6.04(a) because Penal Code section 6.04 “relating to causation ... has nothing to do with” a defendant’s responsibility for the actions of another under Penal Code section 7.02. Phillips v. State, 770 S.W.2d 824, 826 (Tex.App.-El Paso 1988, no pet.). Evidence may support a conviction either on the theory of a defendant’s guilt based on his or her own actions or based on a defendant’s guilt because of his or her responsibility for the actions of another. See Tex. Penal Code Ann. § 7.01(a) (Vernon 2003) (“A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.”). Under section 7.02, (“[a] person is criminally responsible for an offense committed by the conduct of another if ... acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense -”); Id. § 7.02(a)(2); see also Otto v. State, 95 S.W.3d 282, 284-85 (Tex.Crim.App.2003) (affirming conviction as a party under section 7.02(a)(2), even though defendant not present at scene of crime). Therefore, appellant’s first argument is without merit because the State could establish her guilt as a party upon proof, beyond a reasonable doubt, that she acted “with intent to promote or assist the commission of the offense” of theft by deception or coercion and she solicited, encouraged, directed, aided, or attempted to aid Ted to commit the offense.

2. Intent

Appellant next asserts the evidence is legally insufficient to support a finding that she, acting with intent to promote or assist in the theft of the four complaining ■witnesses, solicited, encouraged, directed, aided, or attempted to aid Ted to commit theft.

Appellant points to testimony from her friends, neighbors, and acquaintances that she was a truthful and law-abiding person. According to appellant, based upon this character evidence alone no rational trier of fact could have believed beyond a reasonable doubt that she possessed the criminal intent to commit theft. Appellant also points to the testimony of one of the complainants that he did not believe appellant intended to steal, the testimony of another of the State’s witnesses that appellant and her husband were “not on the same page”; and her own testimony that she would not do anything illegal. This argument ignores the standard of review appropriate to a legal sufficiency challenge, which requires this court to review the evidence in the light most favorable to the jury’s verdict and to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App.2005).

Moreover, the trier of fact may draw reasonable inferences and is the exclusive judge of the witnesses’ credibility and the weight to give their testimony. Jones v. State, 944 S.W.2d 642, 647-49 (Tex.Crim.App.1996). The jury heard undisputed evidence that appellant had sexual relations with the four complainants between August and late-October 2001; appellant typed revisions to some of the Rule 202 Petitions; each complainant received a Rule 202 Petition in November 2001; appellant set-up meetings between Ted and some of the complainants; appellant and Ted purchased a new $625,000 home in late 2001; and between late November 2001 and late March 2002, the complainants paid $115,000 to Ted, Ted and appellant, or to a children’s “charity.” From this evidence, the jury could reasonably infer appellant, acting with intent to promote or assist in the theft of the four complaining witnesses, solicited, encouraged, directed, aided, or attempted to aid Ted to commit theft.

B. Law of Parties

Appellant argues she was found guilty on three counts under a legally inadequate or legally impossible theory because Ted was found not guilty on these same three counts. Appellant relies on case law holding that, to convict a person as a party, the State must first prove the guilt of another person as the primary actor beyond' a reasonable doubt. Richardson v. State, 879 S.W.2d 874, 882 (Tex.Crim.App.1993); Pesina v. State, 949 S.W.2d 374, 382 (Tex.App.-San Antonio 1997, no pet.). However, contrary to appellant’s argument, the Penal Code provides as follows: “In a prosecution in which an actor’s criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense ... that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.” Tex. Penal Code § 7.03(2) (emphasis added). Therefore, Ted’s acquittal on three counts, alone, does not prevent appellant’s conviction on these same counts. See Ex parte Thompson, 179 S.W.3d 549, 553 (Tex.Crim.App.2005) (noting that “the acquittal of the principal does not prevent conviction of his accomplice”). “What matters under Section 7.02(a) [regarding criminal responsibility for another’s conduct] is the criminal mens rea of each accomplice; each may be convicted only of those crimes for which he had the requisite mental state.” Id. at 554. Thus, what is essential to appellant’s conviction of theft as a party under section 7.02(a)(2) is evidence that supports a finding, beyond a reasonable doubt, that she acted with intent to assist Ted in committing theft by deception or coercion. See id. at 555.

C. Deception and Coercion

Finally, appellant asserts that because she had no duty to disclose to each of the complainants that she had engaged in sexual relations with others and that Ted had drafted and presented Rule 202 Petitions to others, she did not engage in any deception. Appellant points to the Penal Code definition of “deception” to contend the Code creates only the following single duty to disclose, the violation of which gives rise to theft by deception: “selling or otherwise transferring or encumbering property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, whether the lien, security interest, claim, or impediment is or is not valid, or is or is not a matter of official record_” Tex. Penal Code § 31.01(1)(D) (emphasis added). This argument is without merit because it ignores the other definitions of “deception” contained in Penal Code section 31.01.

An actor commits the offense of “theft” if she “unlawfully appropriates property with intent to deprive the owner of property.” Id. § 31.03(a). “Appropriation of property is unlawful if ... it is without the owner’s effective consent.” Id. § 31.03(b). “Consent is not effective if ... induced by deception or coercion....” Id. § 31.01(3). Here, the jury charge definition of “deception” tracked the Penal Code definition as follows: “creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true; ... or failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true.” Id. § 31.01(1)(A),(B). Therefore, in a criminal prosecution for theft by deception, the State is not required to establish that the defendant had a duty to disclose. Instead, the State is required to establish that the defendant created or confirmed by words or conduct a false impression, or failed to correct a false impression, of law or fact that was likely to affect the property owner’s judgment in the transaction.

D. Sufficiency of the Evidence

Based on our discussion above, we conclude the State was not required to establish a “but for” casual connection between appellant’s conduct and the resulting harm. Instead, the State was required to establish, beyond a reasonable doubt, that appellant acted with intent to assist Ted in causing the theft by deception or coercion. With that in mind, we next review the sufficiency of the evidence in support of the verdict.

A legal sufficiency challenge requires this court to review the evidence in the light most favorable to the jury’s verdict and to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App.2005). In a factual sufficiency review, we view all the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Id. at 730-31.

“In determining whether the accused participated as a party, the court may look to events occurring before, during and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.” Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994). Circumstantial evidence maybe used to prove party status. Id. A defendant’s intent may be inferred from her actions, words, conduct, and from circumstances under which the prohibited act occurs. See Moore v. State, 969 S.W.2d 4, 11 (Tex.Crim.App.1998); Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App.1995).

Appellant asserts there is no evidence any of her statements to the complainants were deceptive. She relies on evidence that (1) she told one of the men he was “not the only one”; (2) she spoke several times to another of the men and there is no evidence she misled him in any matter they discussed; and (3) both checks written to the foundation were deposited into accounts belonging to the foundation pursuant to the settlement agreements and she was never charged with any crime regarding the foundation.

Between October 27 and November 11, 2001, appellant called Riebel several times, received a telephone call from Ferguson, and arranged the meeting at the Driskill with Sakai — all during the time in which Ted began drafting and appellant assisted in typing revisions to the Rule 202 Petitions. Appellant never told any of the men about the petitions given to the other men. The men were told the money would, in part, make Ted “whole.” However, the evidence reveals the men all paid for some of the same “expenses.” For example, the computer investigation cost $10,000, but Ferguson paid $10,000, Riebel paid $10,000, and Fitzgerald paid $5,000 to “compensate” for the cost of the investigation. Similarly, several of the men paid to “compensate” for the “ruined” California vacation. Appellant admitted she and Ted were in negotiations to buy a new house and they wrote an earnest money check on November 25, 2001 — before appellant’s November 28, 2001 meeting with Ferguson, before Riebel had the December 2001 cashier’s check for $30,000 made payable to appellant and Ted, and before Sakai purchased a check payable to the children’s foundation for $10,000. The jury-heard evidence that appellant and Ted experienced financial difficulties. Despite her assertions that she relied on Ted, the jury understood appellant was well-educated, and had a law degree, master’s degree, and a real estate license, and she wrote almost every check out of the couple’s personal account and the law firm’s operating account. The jury also heard that, despite statements in the Rule 202 Petitions about divorce, Ted and appellant’s relationship became more “lovey-dovey.” From this evidence, the jury could infer that, after Ted discovered her affairs, appellant acted with intent to assist Ted in committing theft by deception. Therefore, we conclude the evidence is legally and factually sufficient to support the jury’s verdict.

II. AFFIRMATIVE DEFENSE: MISTAKE OF LAW

In her third issue, appellant argues her conviction should be reversed because “the enormity of evidence proved [she] did not believe her conduct to be illegal.”

“It is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon: (1) an official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question; or (2) a written interpretation of the law contained in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question.” Tex. Penal Code § 8.03(b). In this case, the jury was instructed that it was an affirmative defense to prosecution if appellant “reasonably believed the conduct charged did not constitute a crime and that [appellant] acted in reasonable reliance upon: a written interpretation of the law contained in an opinion of a court of record.” The jury also was instructed that “[pjublished cases issued by any Texas Court of Appeals, the Texas Pattern Jury Charges, and the Texas Rules of Civil Procedure are each proper authority upon which reliance may be based.” At trial, appellant bore both the burden of production of evidence and the burden of persuasion for her affirmative defense. Roberts v. State, 278 S.W.3d 778, 794 (Tex.App.-San Antonio 2008, pet. ref'd).

Appellant testified she was familiar with Rule 202 and believed it was a legitimate vehicle to investigate claims prior to filing suit. In support of this argument, appellant offered the testimony of an expert who testified a lawyer does not have to decide whether he or she actually has a claim before serving a Rule 202 petition, and such a petition is a valid legal mechanism to investigate a claim. Although there was no dispute at trial that Rule 202 petitions are legitimate mechanisms to investigate a claim, the jury was free to accept the State’s argument that Ted and appellant’s use of the petitions under the circumstances presented here amounted to a “shake down” for “hush money”; thereby rejecting appellant’s argument that she believed her and Ted’s use of the petitions was legal.

III. CHARGE ERROR

In several sub-issues, appellant complains about the jury charge.

A. Counts II, IV, and V

Appellant contends the trial court erred by including these three counts in the jury charge. This argument is not well-developed, but it appears to be related to her argument above that she was found guilty on three counts under a legally inadequate or legally impossible theory because Ted was found not guilty on these same three counts. For the reasons stated above under our discussion of Law of Parties, we conclude the court did not err in including these counts in the charge.

B. Duty to Disclose

Appellant next asserts the trial court erred by not first making a determination of whether, as a matter of law, she had a duty to disclose before instructing the jury on the definition of deception. Appellant also contends the trial court erred in denying her requested instruction that she had no duty to disclose. For the reasons stated above in our discussion of Deception and Coercion, we conclude the trial court was not obligated to make such a determination and the trial court did not err in denying her requested instruction.

C. Law of Parties

Appellant asserts the trial court erred in denying her the following requested instruction concerning the law of parties:

In order to convict Mary Roberts under the law of parties, the State must prove to you beyond a reasonable doubt that, at the time of the alleged offense, Mary and Ted Roberts were acting together, each contributing some part toward the execution of their common purpose, and that Mary Roberts acted with the intent to promote or assist in the commission she knew to be a criminal offense. That is, in order to establish Mary Roberts’ liability as a party to the alleged crime, the State has the burden to prove, beyond a reasonable doubt that, in addition to the alleged illegal conduct of Ted Roberts, Mary Roberts acted with specific intent to promote or assist the commission of the crime.
Additionally, the State must prove that any agreement between Ted and Mary Roberts to commit a crime, if any, must have been made before or contemporaneously with the alleged criminal event.
Evidence that shows only deception after the time period alleged in the indictment is legally insufficient to establish criminal intent.
Therefore, proof that Mary Roberts assisted Ted Roberts after an alleged crime was committed, standing alone is insufficient to support Mary Roberts’ conviction as a party, and you shall acquit the defendant.

On appeal, appellant contends the jury lacked any guidance on how to evaluate her intent and the jury was unaware that she had to intend for Ted to commit theft. As a result, appellant concludes the trial court’s failure to include her requested charge undercut her defense that she did not want Ted to approach the men with the Rule 202 Petitions, and she did not intend to commit a crime or allow Ted to commit a crime.

A trial court has a duty to prepare a jury charge that accurately sets out the law applicable to the specific offense charged. Delgado v. State, 235 S.W.3d 244, 249 (Tex.Crim.App.2007); see Tex.Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). “Specifically requested charges may be refused where the instructions given by the court are adequate and fully protect the rights of the accused.” Tovar v. State, 165 S.W.3d 785, 792 (Tex.App.San Antonio 2005, no pet.). Here, the jury charge included the following instruction:

Our law provides a person is criminally responsible as a party to an offense if the offense is committed by her own conduct, or by the conduct of another for which she is criminally responsible, or both. Each party to an offense may be charged with the commission of the offense.
Mere presence alone will not make a person a party to an offense. A person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense she solicits, encourages, directs, aids or attempts to aid the other person to commit the offense.

The charge defined when a person “acts intentionally, or with intent,” and each count included the party allegation: “[appellant], either acting alone or together with Ted Roberts as a party .... ”

We hold there is no error because the jury charge correctly tracked Penal Code sections 6.03(a) (“Definitions of Culpable Mental States,” including when a person acts intentionally or with intent), 7.01 (“Parties to Offense”), and 7.02 (“Criminal Responsibility for Conduct of Another”). See Tovar, 165 S.W.3d at 792 (holding that because charge given to jury properly placed burden on the State to prove defendant’s mens rea as required by relevant statutes and charge tracked language of relevant statutes, instructions adequately and fully protected defendant’s rights).

D. Third Parties

Appellant asserts the trial court erred in denying her the following requested instruction relating to suits against third persons:

You have also heard evidence concerning potential causes of action that can be filed in Texas state courts. It is the law in Texas that a spouse may, in some circumstances involving adultery, bring a cause of action for intentional infliction of emotional distress against the offending spouse and against a third party based on interference with the marriage relationship.

Appellant argues that, although alienation of affection and criminal conversation have both been abolished by the Texas Legislature as causes of action, the absence of these common law causes of action did not deprive Ted of other avenues of relief. Therefore, appellant concludes that denying her the requested instruction left the jury with the impression Ted had no reasonable basis to believe the Rule 202 Petitions would have any benefit other than to serve as a “shake down” of the men with whom appellant had been involved. This, according to appellant, directly affected her mistake of law defense, as well as her defense that what Ted did with the petitions was legal.

The State did not dispute that Rule 202 petitions are legitimate pleadings to pursue legitimate claims. Appellant received an instruction on her affirmative defense of mistake of law, which provided, in part, as follows: “You are instructed that it is an affirmative defense to a prosecution for a crime that the defendant reasonably believed the conduct charged did not constitute a crime and that the defendant acted in reasonable reliance upon: a written interpretation of the law contained in an opinion of a court of record.” This instruction allowed appellant to argue that the petitions here were used to “bring a cause of action for intentional infliction of emotional distress against the offending spouse and against a third party based on interference with the marriage relationship” — an argument she did not make. Because the instruction given on the affirmative defense tracked Penal Code section 8.03(b) (“Mistake of Law”) and, therefore, adequately protected appellant’s rights, the trial court did not err in refusing the requested instruction.

IV. MOTION TO QUASH INDICTMENT

Appellant asserts the trial court erred in denying her motion to quash the indictment on the grounds that it failed to allege conduct or facts that constituted an offense. Appellant concedes the indictment tracked the language of the theft statute, but she contends the indictment alleged nothing more than the names of the complainants and a range of dates on which she purportedly committed theft by deception or coercion. She alleges that by not indicating the acts the State believed constituted theft by deception or coercion — delivering a petition, signing confidentiality agreements, setting up a meeting, sharing in profits, and not fully disclosing the existence of other men — she was unable to adequately prepare her defense.

A criminal defendant has a constitutional right to notice. Lawrence v. State, 240 S.W.3d 912, 916 (Tex.Crim.App.2007). To satisfy this notice requirement, an indictment must be specific enough to inform the defendant of the nature of the accusation against her so that she may prepare a defense. Id. “An indictment is generally sufficient as long as it tracks the language of a penal statute that itself satisfies the constitutional requirement of notice.” Id. An indictment is sufficient if it sets forth the offense in “plain and intelligible words.” Tex.Code Crim. Proo. Ann. art. 21.02.7 (Vernon 2009). And, “[e]very-thing should be stated in an indictment which is necessary to be proved.” Id. art. 21.03.

A similar complaint was addressed and rejected by a panel of this court in the appeal arising from the conviction of Ted Roberts for theft. See Roberts, 278 S.W.3d at 791-92. In his appeal from his conviction, Ted argued the indictment failed to allege conduct or facts constituting an offense because the indictment failed to provide adequate notice of what facts constituted criminal conduct, and instead merely tracked the language of the statute and provided the names of the complainants. Here, as in that case, the indictment charged appellant with theft by deception and theft by coercion, tracking the language of Penal Code section 31.03(a) and detailing the statutory definitions of “coercion” and “deception” appellant was charged with violating. We conclude the indictment in this case provided appellant with notice that was specific enough to allow her to investigate the allegations against her and establish a defense. “By providing [appellant] with the names of the complainants [and the range of dates] and charging [appellant] with the specific definitions of ‘coercion’ and ‘deception’ [she] allegedly violated, [appellant] was sufficiently informed of the specific actions that allegedly violated the statute.” See id. at 792. Moreover, the additional facts appellant argues should have been included in the indictment relate to eviden-tiary facts the State is not required to allege in the indictment. Id. Also, requiring an indictment to list each specific act would require the State to “lay out its case in the indictment,” which it is not required to do. Id. (quoting State v. Moff, 154 S.W.3d 599, 603 (2004)).

Y. CONSTITUTIONALITY OF THEFT STATUTE

In her final issue on appeal, appellant asserts the theft statute is vague and overly broad both on its face and as applied. In Roberts, a panel of this court held the theft statute was neither unconstitutionally over broad or vague on its face, and we follow the holding in that case. Roberts, 278 S.W.3d at 790-91. As to appellant’s argument regarding whether the statute is unconstitutional as applied to her, it was appellant’s burden to prove the statute is unconstitutional as applied to her specific conduct. See Flores v. State, 33 S.W.3d 907, 920 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Appellant’s only argument is that she “was indicted for theft, when Christie Trevino, who engaged in the same conduct as [appellant] was not indicted, and indeed, was called as [a] witness for the State.” Arguing that another individual also could have been charged with the same offense does not establish how the statute is unconstitutional as to appellant’s conduct. We conclude appellant has not demonstrated the statute is unconstitutional as applied to her.

CONCLUSION

We overrule appellant’s issues on appeal and affirm the trial court’s judgment.

      . The State introduced evidence showing appellant stayed at the Driskill Hotel in Austin August 21 through August 24, 2001.

        . The State introduced evidence showing appellant stayed at the Hyatt Regency in Austin for one night, on October 25, 2001.

      . Although, according to Ferguson, appellant told Ted she and Ferguson only kissed, the Rule 202 Petition given to Ferguson listed as two areas of investigation: whether adultery existed as a fault ground for divorce and whether Ferguson violated the Texas Penal Code section regarding "deviate sexual intercourse.”

      . Ted and appellant were in California October 16 through October 23, 2001, during which time Ted attended a legal seminar.

      . Appellant was convicted on five counts of theft by coercion or deception. A person commits the offense of theft "if he unlawfully appropriates property with intent to deprive the owner of property.” Tex. Penal Code Ann. § 31.03(a) (Vernon 2003). "Appropriation of property is unlawful if ... it is without the owner's effective consent....” Id. § 31.03(b)(1). "‘Effective consent’ includes consent by a person legally authorized to act for the owner. Consent is not effective if ... induced by deception or coercion....” Id. § 31.01(3)(A). "'Deception' means: (A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true; [or] (B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true....” Id. § 31.01(1)(A), (B). " 'Coercion' means a threat, however communicated ... to expose a person to hatred, contempt, or ridicule [or] to harm the credit or business repute of any person ...” § 1.07(9)(D), (E).

      . Appellant also asserts the State failed to prove coercion because the evidence proved she made no threat to expose a person to hatred, contempt, and ridicule, and by threatening to harm the credit and business repute of any person. Appellant was charged with the offense of theft, which includes appropriation without effective consent, by either deception or coercion. Accordingly, given a determination that legally and factually sufficient evidence exists to support a finding of theft by deception, we do not address appellant’s sufficiency challenges to the alternative theory of deception by coercion.


author: PHYLIS J. SPEEDLIN, Justice.

text:
    Carole O. KOTZ, Appellant, v. IMPERIAL CAPITAL BANK, et al., Appellees.
    No. 04-09-00433-CV.
    Court of Appeals of Texas, San Antonio.
    March 24, 2010.

      Gary M. Poenisch, Attorney At Law, San Antonio, TX, for Appellant.
    Stephen C. Stapleton, Scott R. Meyer, Cowles & Thompson, P.C., Dallas, TX, Daniel A. Foster, Attorney At Law, Arlington, TX, Frank Oliver, Oliver & Oliver, P.C., Austin, TX, Troy “Trey” S. Martin, III, Martin, Cukjati & Richman, L.L.P., San Antonio, TX, for Appellees.
    Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
   OPINION

Opinion by:

PHYLIS J. SPEEDLIN, Justice.

Carole Kotz brings this interlocutory appeal from the trial court’s order granting a temporary injunction enjoining her from taking or attempting to take possession of certain commercial real estate, communicating with any tenants of the property, or receiving any rents from the tenants currently occupying the premises under leases held by Patrick Man and Grace Man. See Tex. Civ. Prac. & Rem.Code ANN. § 51.014(a)(4) (Vernon 2008). Kotz contends the temporary injunction order is void because it does not detail why irreparable injury will occur if the temporary injunction is not granted. We agree.

In relevant part, Rule 683 of the Texas Rules of Civil Procedure requires that an “order granting an injunction ... shall set forth the reasons for its issuance[.]” Tex.R. Civ. P. 683. The Texas Supreme Court “interpret[s] the Rule to require in this respect only that the order set forth the reasons why the court deems it proper to issue the writ to prevent injury to the applicant in the interim; that is, the reasons why the court believes, the applicant’s probable right will be endangered if the writ does not issue.” Transp. Co. of Tex. v. Robertson Transps., Inc., 152 Tex. 551, 261 S.W.2d 549, 558 (Tex.1953); State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex.1971) (“Under Rule 683 ... it is necessary to give the reasons why injury will be suffered if the interlocutory relief is not ordered.”). The trial court must set forth specific reasons, not merely conclusory statements, in the order granting temporary injunctive relief. Tex.R. Civ. P. 683 (“be specific in terms”); accord Charter Med. Corp. v. Miller, 547 S.W.2d 77, 78 (Tex.Civ.App.-Dallas 1977, no writ). The procedural requirements of Rule 683 are mandatory, and an order granting a temporary injunction that fails to strictly comply with the rule is subject to being declared void and dissolved. Qwest Communications Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex.2000) (per curiam); InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986) (per curiam).

In this case, the only part of the order that can be construed as setting forth the reasons for issuing the injunction reads as follows:

The Court finds that Intervenors Patrick Man and Grace Man will suffer irreparable injury in their possession and use of the Subject Property in the event that the requested injunctive relief is not granted, that they have no adequate remedy at law, and that the requested injunctive relief is necessary to preserve the status quo pending final trial.

We conclude this language does not comply with the requirements of Rule 683 because it does not provide specific reasons why injury will result in the absence of a temporary injunction. Merely stating that “irreparable injury will result” if in-junctive relief is not granted does not comply with the specificity requirements of Rule 683. See Indep. Capital Mgmt., L.L.C. v. Collins, 261 S.W.3d 792, 795-96 (Tex.App.-Dallas 2008, no pet.) (injunction order simply setting out elements necessary for relief, and failing to identify the injury from denial of the injunction, was conclusory and void); AutoNation, Inc. v. Hatfield, 186 S.W.3d 576, 581 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (mere recital of “irreparable harm” does not meet Rule 683’s specificity requirements); Univ. Interscholastic League v. Torres, 616 S.W.2d 355, 358 (Tex.Civ.App.-San Antonio 1981, no writ) (same).

Nor can we agree with the Mans that the additional verbiage, “[the Mans] ..will suffer irreparable injury in their possession and use of the Subject Property in the event that the requested injunctive relief is not granted ...” is sufficiently detailed to meet the requirements of Rule 683. (emphasis added). The trial court fails to set forth any underlying facts to support its finding that “irreparable injury in [the Mans’] possession and use of the Subject Property” will occur, making the court’s finding conclusory. Arkoma Basin Exploration Co. v. FMF Associates 1990- A, Ltd., 249 S.W.3d 380, 389 n. 32 (Tex.2008) (“eonclusory” is defined as “[e]x-pressing a factual inference without stating the underlying facts on which the inference is based”). At most, this language characterizes by what means harm will occur unless Kotz is enjoined from taking possession and use of the subject property — but does not state or explain the reasons why irreparable injury will result absent an injunction. See Robertson Transps., 261 S.W.2d at 553 (must set forth why the applicant’s probable right will be endangered if the writ does not issue). Compare Byrd Ranch, Inc. v. Interwest Sav. Ass’n, 717 S.W.2d 452, 454 (Tex.App.-Fort Worth 1986, no writ) (it is inadequate under Rule 683 to simply state that “defendants are enjoined from doing X because X will be done unless so enjoined;” order must state with particularity why injury will result absent injunction), and Stoner v. Thompson, 553 S.W.2d 150, 151 (Tex.Civ.App.-Houston [1st Dist.] 1977, writ ref d n.r.e.) (conclusion that situation is “harmful” is not reason why injury will be suffered if interlocutory relief not ordered), with Robertson Transps., 261 S.W.2d at 553 (order was sufficiently specific under Rule 683 where it stated respondent “would interfere with the markets established by the plaintiffs and would probably divert freight tonnage and revenue from the plaintiff’ and “that such interference with customers and markets and diversion of freight tonnage and revenues would result in irreparable and inestimable damage to the plaintiffs”), and IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 200 (Tex.App.-Fort Worth 2005, no pet.) (injunction set forth sufficient reasons for its issuance where order explicitly stated that Bell had shown that respondents had possession of Bell data entitled to trade secret protection and were actively using that data to compete with Bell in the replacement blade market, and respondents’ blade would be priced lower than Bell’s which would lead to “incalculable loss of business goodwill”), and Khaledi v. H.K. Global Trading, Ltd., 126 S.W.3d 273, 280 (Tex.App.-San Antonio 2003, no pet.) (injunction order was adequate to support issuance where court stated that former business partner’s failure to release and subordinate prevented companies and businessmen “from realizing the significant loan values in such unique properties” and significantly impaired their ability to assist in paying amounts owed under promissory note and to tender money into court’s registry, and that business plan and ability to obtain financing on properties were “adversely affected in a way that cannot be effectively measured in dollars”). The trial court’s order stating its reasons for granting a temporary injunction must be specific and legally sufficient on its face and not merely eonclusory. Tex.R. Civ. P. 683; Cook United, 464 S.W.2d at 106; Torres, 616 S.W.2d at 358. Here, the temporary injunction order simply fails to state, as required by Rule 683, the reasons why irreparable injury would be suffered if in-junctive relief was not granted. Because the temporary injunction order does not satisfy the requirements of Rule 683, we conclude the trial court abused its discretion in entering the order and the order is void. Qwest, 24 S.W.3d at 337; Torres, 616 S.W.2d at 358.

The Mans further argue that given the nature of this case, the temporary injunction order does comply with the requirements of Rule 683 because the case involves disputed title, possession, and use of real estate. In support of their argument, the Mans cite us to numerous authorities for the legal proposition that every piece of real estate is innately unique. See, e.g., Greater Houston Bank v. Conte, 641 S.W.2d 407, 410 (Tex.App.-Houston [14th Dist.] 1982, no writ) (“It is well established law that each and every piece of real estate is unique. Therefore, if appellants were allowed to foreclose appellees would be irreparably harmed, since real estate is so unique.”); El Paso Dev. Co. v. Berryman, 729 S.W.2d 883, 888 (Tex.App.-Corpus Christi 1987, no writ) (“Every piece of real estate is unique, and if foreclosure were allowed before a full determination of the usury claim, appellee would be irreparably harmed”). Thus, the Mans argue that when, as here, the temporary injunction order involves disputed title to real estate, the court can presume irreparable injury and lack of an adequate remedy at law because of the unique character of each piece of real estate. We agree on the basis of the cited authorities that every piece of real estate is unique, and that this uniqueness may, in an injunction case, constitute some evidence of an irreparable injury; however, that alone is not conclusive. See In re Stark, 126 S.W.3d 635, 641 (Tex.App.-Beaumont 2004, orig. proceeding) (“Real estate is unique and so are the reasons for purchasing and owning it. We think it is reasonable to conclude that under some circumstances monetary damages afford adequate relief for the loss of real estate and under some circumstances it does not.”). The Mans cite us to no authority, and we have found none, stating that the trial court is relieved of the mandatory requirements of Rule 683 in cases involving real estate. See Arrechea v. Plantowsky, 705 S.W.2d 186, 189 (Tex.App.-Houston [14th Dist.] 1985, no writ) (modified temporary injunction affecting leased real property that did not contain specific findings supporting its issuance cannot be read in conjunction with the original order to supply missing statutory requirements). If the court’s order granting a temporary injunction does not comply on its face with the specificity requirements of Rule 683, it constitutes an abuse of discretion and is thus void. Qwest, 24 S.W.3d at 337; Collins, 261 S.W.3d at 795; Torres, 616 S.W.2d at 358.

Because we conclude the order granting the temporary injunction fails to meet the specificity requirements of Rule 683, and is thus void, we need not address the other appellate issues raised by Kotz. Accordingly, the trial court’s order granting the temporary injunction is reversed, the injunction is dissolved, and the cause is remanded to the trial court for further proceedings.