source: Caselaw Access Project

author: JOHNSON, Justice.

license: Public Domain

text:
    Summer Musick MOLINA, Appellant, v. Randall D. MOORE, Appellee.
    No. 07-98-0364-CV.
    Court of Appeals of Texas, Amarillo.
    Sept. 29, 2000.

      Law Offices of Davis W. Smith, P.C., Davis W. Smith, Lubbock, for appellant.
    Brower and Slavin, P.C., Ken Slavin, El Paso, for appellee.
    Before QUINN and REAVIS and JOHNSON, JJ.
   JOHNSON, Justice.

Appellant Summer Musick Molina appeals from the trial court’s judgment awarding her less damages than the amount of damages found by the jury. We reverse and render judgment for the amount of damages found by the jury.

I. BACKGROUND

Appellant sued appellee Randall D. Moore for personal injuries which she suffered in a traffic accident on November 30, 1994, when she was sixteen years of age. Following the accident, appellant complained of soreness and pain, missed a period of work and received chiropractic care. Of the $3,900 in medical expenses which she claimed as a result of the accident, most were incurred between December 2, 1994, and March 27, 1995, while she was a minor and had not had her disabilities of minority removed. On September 16, 1995, appellant married. Suit was filed after her marriage, and in her own name.

The case was tried to a jury. The trial court submitted the question of appellant’s damages in the past for physical pain and mental anguish, physical impairment, and reasonable expenses of medical care by a broad form question calling for only one answer. The jury wrote the figure of $4,150 in the answer blank, but also made notations on the jury charge form indicating that the damages figure was comprised of $250 for physical pain and mental anguish, $0 for physical impairment, and $3,900 for medical care.

Appellee moved for Judgment Notwithstanding the Verdict, contending that the jury notations showed the damages finding included $3,900 for past medical expenses. Appellee’s motion urged that such amount of $3,900 should be deducted from the damages finding because appellant was a minor when the expenses were incurred, the cause of action for recovery of such expenses did not belong to her, and the evidence at trial did not establish that she was responsible for payment of the expenses. The trial court granted appellee’s motion and on August 10, 1998, signed a final judgment awarding appellant $250 together with all costs of court. After entry of judgment, appellee’s insurance company issued checks payable jointly to appellant and her attorney in the amounts of $250 and $404. The checks were dated August 31, 1998, and October 2,1998, respectively. Appellee has attached copies of the checks to his appellate brief and to a Motion to Dismiss the Appeal for Mootness. Appel-lee represents by affidavit that the checks were in payment of the judgment amount and court costs awarded by the judgment and that the checks were cashed. Appellant does not dispute such assertions.

Appellant urges by two issues that the trial court erred in granting appellee’s motion for judgment notwithstanding the jury verdict, and prays that we reverse and render judgment for the entire amount of damages found by the jury. Appellee has moved for dismissal of the appeal because appellant accepted the benefits of the judgment entered by the trial court. Subject to its motion to dismiss the appeal for mootness, appellee urges that we sustain the trial court’s action in reducing the jury’s damages answer by the $8,900, which the jury’s notations reflect was for past medical expenses. In the alternative, appellee asserts by cross-point that the evidence was legally and factually insufficient to support the jury’s finding of $4,150 in damages.

II. PAYMENT OF THE JUDGMENT

We initially address appellee’s Motion to Dismiss for Mootness which asserts that appellant’s voluntary acceptance of benefits of the judgment entered by the trial court bars her from prosecuting an appeal from the judgment. In support of his position, appellee cites City of Mesquite v. Rawlins, 399 S.W.2d 162 (Tex.Civ. App.—Tyler 1966, writ ref. n.r.e.). Appel-lee also recognizes the exception to the “acceptance of benefits” rule, however, which allows a party to voluntarily accept benefits of a judgment and appeal if reversal of the judgment cannot possibly affect the appealing party’s right to the benefits accepted. See Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950). Because appellant does not seek a remand for a new trial, but only seeks reversal and rendition of judgment in her favor, appellee seems to recognize that she might come within the exception to the rule. Thus, apparently seeking to counter appellant’s failure to seek a remand and new trial, appellee urges that because, as part of his cross-issue he seeks a remand and new trial, appellant could possibly receive a judgment for a lesser amount on retrial, and appellant does not fall within the exception discussed in Carle. We disagree with appellee’s assertions.

A. Law

A litigant cannot voluntarily accept the benefits of a judgment and afterward prosecute an appeal from that judgment. Carle, 149 Tex. at 472, 234 S.W.2d at 1004; Rawlins, 399 S.W.2d at 165-66. The “acceptance of benefits” doctrine does not apply, however, if the benefit accepted by the party against whom the doctrine is asserted could not possibly be adversely affected by the matters urged on appeal by the party accepting the benefit. Kahn v. Seely, 980 S.W.2d 794, 798 (Tex.App.—San Antonio 1998, pet. denied). And, if an appealing party chooses to seek only reversal and rendition of judgment, then the appellate court will not reverse and remand the case. See Stevens v. National Educ. Centers, Inc., 11 S.W.3d 185, 186 (Tex.2000).

B. Analysis

Appellant accepted payment of both damages and court costs awarded to her by the trial court’s judgment of August 10, 1998. If she were seeking reversal of the judgment and remand for a new trial to obtain greater damages than she was awarded under the judgment, she would then be in the same posture as was the City of Mesquite in Rawlins, which appel-lee has cited to us. But she does not seek remand, and thus is not in the same posture as the City of Mesquite.

In Rawlins, the City accepted payment of the amount of taxes awarded to it by judgment, then sought on appeal to reverse that same judgment and obtain a new trial to seek a greater award of taxes against Rawlins. The City of Mesquite did not seek a rendition of judgment as appellant does in the matter now before us. The City of Mesquite obtained judgment for the amount awarded by the jury. The court of appeals noted in Rawlins that if it sustained the City’s request for a new trial, the City might not receive as great an amount on retrial as it was awarded under the judgment from which it was appealing. Rawlins, 399 S.W.2d at 166. Accordingly, the City’s appeal was dismissed under the acceptance of benefits doctrine.

Should we determine, in considering appellant’s issue on this appeal, that the record contains error warranting reversal and that remand for a new trial would be the appropriate remedy, we are not authorized to remand for a new trial because appellant has requested this court only to reverse and render judgment in her favor. See Stevens, 11 S.W.3d at 186. Appellee’s cross-point and prayer seeking remand for a new trial and raising the possibility that appellant might receive a lesser amount following retrial is not sufficient to estop or otherwise bar appellant’s right to appeal . Kahn, 980 S.W.2d at 798. We deny appellee’s motion to dismiss the appeal for mootness.

III. JUDGMENT NOTWITHSTANDING THE VERDICT

We next address appellant’s issues. She asserts that the trial court erred in granting appellee’s motion to disregard jury findings and render judgment notwithstanding the jury verdict. She requests that we render judgment for the full amount of damages found by the jury.

The jury charge submitted three elements of damages to the jury (physical pain and mental anguish in the past, physical impairment in the past, and reasonable expenses of medical care in the past) by a broad form question. The charge form gave the jury one blank to fill in the amount of money which would “fairly and reasonably compensate [appellant] for her injuries that resulted from the occurrence in question.” Neither appellant nor appel-lee objected to the manner in which the trial court submitted the damages question.

The jury followed the court’s instructions. It placed the amount of $4,150 in the jury charge blank which stated “Answer: Summer Musick Molina $_” The jury additionally made notations which the trial court interpreted as the amounts the jury determined in its deliberations to award for each of the individual elements of damages which it was to consider in arriving at its one damages amount. See footnote 2, supra. The trial court granted appellee’s motion and rendered judgment for $250.

A. Law

The judgment of the court is required to conform to the pleadings, the nature of the case proved, and the verdict of the jury, if any. See Tex.R.Civ.P. 301; First Nat’l Bank in Dallas v. Zimmerman, 442 S.W.2d 674, 678 (Tex.1969). The jury’s verdict in response to a broad form damages question is the answer which is entered in the blank provided for the jury’s" answer. See Thomas v. Oldham, 895 S.W.2d 352, 359 (Tex.1995); Zimmerman, 442 S.W.2d at 677-78. Notations made by the jury on the jury charge form otherwise than in the answer blanks and which reflect the jury’s mental process in reaching their verdict “... are irrelevant, at least in the absence of some overt act of misconduct.” Zimmerman, 442 S.W.2d at 678.

B. Analysis

Appellee’s motion for judgment notwithstanding the verdict asserted that the jury segregated its award of damages into $250 for pain and suffering and $3,900 for medical care. Such assertion is also presented in his appellate brief as support for the trial court’s action. The jury, however, did not segregate its damages verdict into separate answers by making marginal notations on the jury form. Oldham, 895 S.W.2d at 359. The jury verdict was $4,150. The remaining notations by the jury reflected the jury’s mental processes in reaching its verdict. Zimmerman, 442 S.W.2d at 678. The marginal notes cannot be considered as separate damage awards in conducting an evidentiary review of the damages award. Oldham, 895 S.W.2d at 359.

The trial court erred in granting appel-lee’s motion. We sustain appellant’s first and second issues.

IV. LEGAL AND FACTUAL SUFFICIENCY OF DAMAGES EVIDENCE

By a cross-issue, appellee challenges the legal and factual sufficiency of the evidence to support the damages verdict of $4,150. As subissues he urges legal and factual insufficiency of the evidence as to each of the elements of damages which the jury was instructed to consider in arriving at its verdict. Appellee also urges as a subissue that if the evidence is insufficient to support any element which the jury was instructed to consider in determining damages, that the damages verdict must be reversed and the case remanded for a new trial pursuant to Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex.2000).

A. Law

A broad form damages issue may include several elements of damages, yet allow the jury to give only one answer. See Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 588-89 (Tex.App.—Corpus Christi 1993, writ denied); Kulms v. Jenkins, 557 S.W.2d 149, 154 (Tex.Civ.App.—Amarillo 1977, writ ref'd n.r.e.). When damages are submitted to the jury in a broad form question, an appellate court cannot ascertain with certainty what amount of the damages award is attributable to each element, Wal-Mart Stores, Inc. v. Sholl, 990 S.W.2d 412, 419-20 (Tex.App.—Corpus Christi 1999, pet. denied), even if the jury discloses its mental processes by making marginal notes. Oldham, 895 S.W.2d at 359.

In jury cases the trial court is to submit the cause to the jury on broad form questions whenever feasible. Tex. R.Civ.P. 277. Even so, parties have the right to be able to determine, and to have an appellate court determine, whether properly submitted theories constitute the basis of the jury’s verdict. Casteel, 22 S.W.3d at 388-89. In the face of a timely and specific objection, it is harmful error to submit a broad form jury question commingling valid and invalid theories when it cannot be determined whether the improperly submitted theories formed the sole basis for the jury’s finding. Id.

When a broad form damages question which does not require separate answers for each element of damages is submitted without objection, the only way to effectively challenge the damages amount on appeal is to address each and every element and show that not a single element is supported by sufficient evidence. See Sholl, 990 S.W.2d at 419; Zrubeck, 850 S.W.2d at 589.

B. Analysis

The Texas Supreme Court addressed the commingling of valid and invalid liability theories in a single broad form question in Casteel. Appellee asserts that the same reasoning expressed in Cas-teel should and does apply to the damages question submitted by the trial court in this matter. Even if we assume that Cas-teel applies to broad form damage questions as well as broad form liability questions, however, we do not find appellee’s position to be well founded. Appellee did not timely and specifically object to the form of the damages issue. See Tex .R.CrvP. 272, 274; Casteel, 22 S.W.3d at 389. Error was not preserved for our review. Tex.R.App.P. 33.1.

Appellee correctly notes our standard of review for his insufficient evidence challenges to the jury’s damages finding. In attacking the legal sufficiency of the evidence to support the damages finding, he must show that there is no evidence to support the finding. Harris County Appraisal Dist. v. Southeast Texas Housing Finance Corp., 991 S.W.2d 18, 20 (Tex.App.—Amarillo 1998, no pet.). The appellate court reviews the evidence and inferences from the evidence in the light most favorable to the finding. Id. All evidence and inferences to the contrary are disregarded. Id. If a party attacks the factual sufficiency of an adverse finding on which the party did not have the burden of proof, the party must show that the record contains insufficient evidence to support the finding. Id. at 21. As to factual insufficiency challenges, the appellate court must consider and weigh all the evidence, both in favor of and against the challenged finding, and should set aside the finding only if the evidence is so contrary to the overwhelming weight of the evidence so as to be clearly wrong and unjust. Id.

In viewing the evidence in the light most favorable to the jury’s finding of a monetary amount to compensate appellant for her damages, we need not go beyond the elements of physical pain and physical impairment which the jury was instructed to consider. Appellant and her mother, Shelley Musick (Ms. Musick), testified that appellant was injured in the accident. Ms. Musick testified that appellant woke up crying with a headache and very stiff neck on the morning after the accident, whereupon an appointment was made with a chiropractor at the urging of a family friend. The chiropractor showed x-rays of appellant to Ms. Musick and said that appellant had some damage that could possibly stay or get better. Records from the chiropractor’s office, admitted without limitation, reflect that appellant complained of her neck and back hurting. Appellant received chiropractic care regularly from December, 1994, through March, 1995. The records show a diagnosis of lumbar sprain, cervical sprain/strain, and “myalgia and myositis, unspc.” Appellant and her mother concurred that the chiropractic care helped her symptoms. She was taken off work for one and one-half weeks because of the effects of the accident.

We are not free to set aside a jury verdict merely because we feel a different result is more reasonable. Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986). Where the law does not provide a precise legal measure of damages, the amount to be awarded is generally within the discretion of the jury. Prati v. New Prime, Inc., 949 S.W.2d 552, 555 (Tex.App.—Amarillo 1997, pet. denied). We will not substitute our judgment for that of the jury. Id.

Disregarding the jury’s notations, as we must in our evidentiary review, Oldham, 895 S.W.2d at 359, we conclude that the evidence is both legally and factually sufficient to support the jury’s finding based on appellant’s claimed physical pain and physical impairment. Having so determined, we need not analyze the legal or factual sufficiency of the evidence to support any remaining element of damages which the jury was instructed to consider. See Sholl, 990 S.W.2d at 419; Zrubeck, 850 S.W.2d at 589. We overrule appellee’s sole cross-issue.

CONCLUSION

Having sustained appellant’s two issues and overruled appellee’s cross issue, we reverse the judgment of the trial court to the extent it granted appellee’s motion for judgment notwithstanding the jury’s verdict. We render judgment for appellant in the amount of $4,150. Except as specified herein, the judgment of the trial court is affirmed. Appellee will receive credit for payments previously made to appellant pursuant to the August 10, 1998, judgment. Tex.R.App.P. 43.2(c), 43.6.

      . There is a question whether $90 of the expenses were incurred after appellant was married. The question is not material to our decision.

      . The broad form question asked the jury, "What sum of money, if paid now in cash, do you find would fairly and reasonably compensate SUMMER MUSICK MOLINA for her injuries that resulted from the occurrence in question?” The jury- was instructed to consider only the following elements of damages, and to answer in dollars and cents for damages, if any, that were sustained in the past:
      Element a. Physical pain and mental anguish
      Element b. Physical impairment
      Element c. Reasonable expenses of necessary medical care
      The jury was instructed to "Write your answers to the questions in the spaces provided." In the one space given the jury to place its answer to the damages question, the jury wrote "$4150.00.”
      The following notations were handwritten above the total damages answer, but not in the space provided for the jury's answer:
      A=$250.00 B=$0 C=$3,900.00

      . See Tex.R.App.P. 10.1, 10.2.

      . The question of whether voluntary payment of the judgment by appellee’s insurance carrier would preclude appellee from seeking a new trial is not before us.


author: TERRY McCALL, Justice.

text:
    Tracey Lynn WHITMIRE, Appellant, v. STATE of Texas, Appellee.
    Nos. 11-99-00204-CR to 11-99-00209-CR.
    Court of Appeals of Texas, Eastland.
    Sept. 29, 2000.

      Barbara L. Wylie, Weatherford, for appellant.
    Tim Ford, Dist. Atty., Palo Pinto, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J„ and McCALL, J.
   Opinion

TERRY McCALL, Justice.

Appellant pleaded guilty in open court to six charges of delivering drugs. The trial court accepted her guilty plea to four of the offenses and entered a judgment of guilty on those pleas. The trial court withdrew sua sponte her guilty plea to two of the offenses but then found her guilty. One of the offenses to which she pleaded guilty was a first degree felony; the trial court assessed appellant’s punishment at confinement for 75 years and a $5,000 fine. Another offense to which she pleaded guilty was a state jail felony; the trial court assessed her punishment at confinement for 2 years and a $2,000 fine. The remaining four offenses were second degree felonies; the trial court assessed her punishment for each at confinement for 20 years and a $3,000 fine. We hold that appellant was not harmed by the absence of a written jury waiver or a written consent to stipulate evidence. We also hold that appellant’s pleas were voluntarily, intelligently, and knowingly made. Therefore, we affirm.

Background Facts

Appellant does not challenge the sufficiency of the evidence. The record shows that, on January 13, 1998, appellant met with a confidential informant, Michael Donald Whitley, who was working for the Cross Timbers Narcotics Task Force. Whitley met with appellant as part of a “controlled buy” to gather evidence for the Task Force. Whitley purchased 2.74 grams of what was later determined to be amphetamine and 3.76 grams of what was later determined to be methamphetamine. Whitley also recorded the transaction on two audiotapes.

On May 13, 1998, Whitley again met with appellant. This time, Whitley introduced appellant to an undercover Task Force agent, George Courtney. Courtney posed as “James,” a “strong-arm” or debt collector, from Fort Worth who wanted to purchase drugs. During another controlled buy from appellant on May 13, Courtney purchased 3.32 grams of what was later determined to be methamphetamine. This transaction was also recorded on audiotape by Whitley and Courtney.

On May 21, 1998, Courtney, as “James,” executed another controlled buy. He purchased from appellant 3.28 grams of what was later determined to be methamphetamine and .33 gram of what was later determined to be cocaine. Courtney recorded this transaction. He then arranged for appellant to get him an ounce of cocaine. He returned on May 22, 1998, and purchased 24.34 grams of what was later confirmed to be cocaine. Courtney recorded this transaction as well.

Absence of Written Jury Waiver

Appellant pleaded guilty after the jury panel had been summoned but before voir dire began. Appellant argues in her first issue that the trial court erred in dismissing the jury panel and in hearing evidence to support her guilty pleas without first having appellant sign a written waiver of her right to a jury and filing the waiver in the record. She argues that the absence from the record of a signed jury waiver, as required by TEX. CODE CRIM. PRO. ANN. arts. 1 .13 and 1.15 (Vernon Supp. 2000), violates her constitutional right to a jury. See U.S. CONST, amends. VI and XIV; TEX. CONST, art. I, § 15; see also TEX. CODE CRIM. PRO. ANN. art. 1.12 (Vernon 1977). She further argues, even if such error is subject to a harm analysis under TEX.R.APP.P. 44.2(a), that either: (1) whether the error caused harm cannot be shown beyond a reasonable doubt or (2) no meaningful harm analysis can be performed. We agree that error occurred but hold it to be statutory error rather than constitutional error. We also hold that a harm analysis may be performed, and we find that the error did not affect appellant’s substantial rights.

Under both the federal and state constitutions, appellant enjoys the right to have her case decided by a jury of her peers. Article I, section 15, of the Texas Constitution, provides that “[t]he right of trial by jury shall remain inviolate.” Neither constitution, however, requires that appellant must execute a written statement to waive her right to a jury. Written waiver is required only by the Code of Criminal Procedure. Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex.Cr.App.1993). Articles 1.13 and 1.15 impose a mandatory requirement on the trial court to file a signed, written jury waiver in the papers of the case. By failing to observe that mandatory requirement, the trial court erred.

We next must determine whether the trial court committed reversible error. In Meek v. State, 851 S.W.2d 868 (Tex.Cr.App.1993), the Court of Criminal Appeals held that the error of failing to comply with Article 1.13 was not subject to a harm analysis. Since Meek, however, the court decided Cain v. State, 947 S.W.2d 262 (Tex.Cr.App.1997), in which it held:

Except for certain federal constitutional errors labeled by the United States Supreme Court as “structural,” no error, whether it relates to jurisdiction, volun-tariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis. (Emphasis added)

Cain v. State, supra at 264; see Carranza v. State, 980 S.W.2d 653 (Tex.Cr.App.1998). More recently, the Rules of Appellate Procedure were amended to require a separate analysis for constitutional and non-constitutional errors in criminal cases. The appellate court must reverse a case in which there is constitutional error unless the court finds beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Rule 44.2(a). TEX.R.APP.P. 44.2(b) directs the appellate court to disregard “[a]ny other error, defect, irregularity, or variance that does not affect substantial rights.”

In Sadberry, the Court of Criminal Appeals held that the written waiver required by Article 1.13 is a “procedural [rule] designed to safeguard constitutional rights.” This holding is consistent with the court’s recent holding that the admonishments prescribed in TEX. CODE CRIM. PRO. ANN. art. 26.13(a) (Vernon Supp.2000) are not constitutionally required but are designed to assist the trial court in determining whether a plea is knowingly and voluntarily entered. Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex.Cr.App.1999). Similarly, the requirement of a written jury waiver is intended only to assist the trial court and the appellate courts in determining that an appellant has intentionally relinquished his or her known right to a jury trial. See Ex parte Sadberry, supra; see also Article I, section 15 (“The Legislature shall pass such laws as may be needed to regulate the [right to trial by jury], and to maintain its purity and efficiency”); Aguirre-Mata v. State, supra.

In Salinas v. State, 963 S.W.2d 889 (Tex.App.—Corpus Christi 1998), the court affirmed a conviction from a guilty plea even though it found error in the trial court’s failure to file a signed, written jury waiver in the record. The Court of Criminal Appeals vacated the judgment and remanded the case for a harm analysis under Cain. Salinas v. State, 980 S.W.2d 219 (Tex.Cr.App.1998). On remand, the Corpus Christi court held that the failure to follow the mandate of Article 1.13 was statutory error and conducted a harm analysis under Rule 44.2(b). Because the defendant changed his plea to guilty only after a jury trial commenced, the court held that he knew of his right to a jury trial and knowingly relinquished that right. Thus, the error was harmless. Salinas v. State, 987 S.W.2d 922 (Tex.App.—Corpus Christi 1999, no pet’n).

At least three other courts of appeals have analyzed harm under Rule 44.2(b) in cases involving a failure to observe Article 1.13. See Loveless v. State, 21 S.W.3d 582 (Tex.App.—Dallas 2000, pet’n filed); Tra- han v. State, 991 S.W.2d 936 (Tex.App.—Houston [1st Dist.] 1999, no pet’n); Johnson v. State, 984 S.W.2d 736 (Tex.App.—Waco 1998, pet’n granted). The three courts, in conducting their analysis, adopted the rule applied in federal courts to assess harm under the federal counterpart to Article 1.13:

A defendant may not effectively waive his right to jury trial without meeting [the requirement of Article 1.13, unless] the record clearly reflects that the defendant “personally gave express consent in open court, intelligently and knowingly.” (Citations omitted; Emphasis added)

Loveless v. State, supra at 585; Trahan v. State, supra at 941; Johnson v. State, supra at 738. We will follow the route taken in Loveless, Trahan, and Johnson and analyze harm under Rule 44 .2(b).

The record in this case shows that appellant clearly understood her right to a jury and chose to relinquish that right. The following exchange occurred when appellant changed her plea to guilty:

(THE COURT): And it’s my understanding that the defendant now wants to waive a jury trial as to guilt/innocence and punishment in each case; is that right?
[DEFENSE COUNSEL]: That’s correct, Your Honor.
(THE COURT): All right. Is that what you want to do, Ms. Whitmire?
[APPELLANT]: Yes, sir.
(THE COURT): All right. You understand, of course, that you have a right to he tried by a jury and, in fact, ive have a jury panel of some 62, three people who have nmo been sworn and qualified and are waiting Voir Dire examination, do you understand that?
[APPELLANT]: Yes, sir.
(THE COURT): And you understand that you have a right to be tried by a jury?
[APPELLANT]: Yes, sir.
(THE COURT): Do you want to waive trial by jury or be tried by a jury?
[APPELLANT]: I want to waive trial by jury. (Emphasis added)

The record shows that the trial court asked appellant at least three more times whether she understood that she had a right to a jury trial. Each time she answered that she understood. The record also shows that the trial court asked appellant at least once more if she wished to waive her right to a jury. She answered that she did.

The absence from the records in these cases of the signed, written jury waiver required by Articles 1.13 and 1.15 was harmless error under Rule 44.2(b). Appellant’s substantial rights were not affected. The record shows that she knew of her right to a jury and expressly, knowingly, and voluntarily relinquished that right in open court on the record. We overrule appellant’s first issue.

Absence of Written Consent to Stipulate

Appellant argues in her second issue that the trial court erred in admitting an oral stipulation as to what J.R. Burch, the Department of Public Safety chemist who analyzed the drugs sold by appellant to Whitley and Courtney, would testify. Pursuant to that stipulation, the trial court admitted into evidence the lab reports prepared by Burch. The reports stated the exact weight and the identification of the drugs sold by appellant. Appellant argues that the trial court’s failure to comply with the mandatory language of Article 1.15 and to require appellant to sign a waiver of her rights and a consent to stipulate is error and that such error implicated her constitutional rights to confront and to cross-examine Burch. See Amendments VI and XIV; TEX. CONST, art. I, § 10. Thus, she contends that we must analyze the harmfulness of the error under Rule 44.2(a).

Article 1.15 requires that evidence may be stipulated only:

[I]f the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony, or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.

Although the record reflects that the State, appellant, and her trial counsel agreed to the oral stipulation of Burch’s testimony, the record contains neither a signed, written waiver of appearance, confrontation, or cross-examination nor a signed, written consent to the oral stipulation. Following his dictation of the stipulation into the record, the district attorney asked appellant’s trial counsel, “Is it so stipulated, counsel?” Appellant’s trial counsel answered affirmatively. The trial court then asked, “Do you agree to the stipulation, Ms. Whitmire?” Appellant also answered affirmatively.

The State cites Williams v. State, 483 S.W.2d 460 (Tex.Cr.App.1972), for the proposition that appellant waived error from the admission of the stipulation when she failed to object. Williams may be distinguished from the present case because the defendant in Williams signed a waiver of rights and a consent to stipulate form. That consent form, however, omitted oral stipulations. The court held that the defendant’s failure to object to the admission of an oral stipulation waived error. Williams v. State, supra at 461. The court noted, however, that it did not address whether there had been full compliance with the requirements of Article 1.15; the case dealt only with the admissibility of the stipulation. Williams v. State, supra.

The language of Article 1.15 requiring a signed, written waiver and consent to stipulate in order to admit stipulations into evidence is mandatory. We agree with appellant that the complete failure to observe the mandatory requirements of Article 1.15 is error. Under former Court of Criminal Appeals’ decisions, the failure to comply with any of the requirements of Article 1.15 led to automatic reversal. See McClain v. State, 730 S.W.2d 739 (Tex.Cr.App.1987); Messer v. State, 729 S.W.2d 694 (Tex.Cr.App.1986). Appellant concedes that the error is now subject to a harm analysis, but contends that Rule 44.2(a) applies. See Cain v. State, supra. The requirement is analogous to the requirement of a signed, written jury waiver. For the reasons stated in our discussion of appellant’s first issue, we hold that the requirement in Article 1.15 of a signed, written waiver and consent is a procedural rule that protects a constitutional right. Also, for the. reasons stated in our discussion of appellant’s first issue, we will analyze the harmfulness of the error under Rule 44.2(b). Appellant’s constitutional rights, though implicated by the statute, are not directly involved.

Appellant contends that the error in failing to observe the requirements of Article 1.15 and to obtain a signed, written waiver of rights and consent to stipulate is reversible because it renders the lab reports inadmissible. Thus, she argues, the judgments of guilt, both on her pleas of guilty and not guilty, are not supported by evidence, as also required by Article 1.15. Even without the lab reports, however, the evidence is sufficient to support the trial court’s findings of guilt on all six charges.

The State put on testimony from Whitley and Courtney. Whitley testified that he bought two “eightballs,” with an approximate weight of 3.5 grams each, of methamphetamine from appellant on January 13, 1998. Courtney later testified that he bought an “eightball” of methamphetamine from appellant on May 13,1998, and that an “eightball” weighs approximately 3.8 grams. He also testified that appellant weighed the drugs after he asked if “her dope weighed true.” One of the bags he purchased weighed “exactly 3.8 grains on [appellant’s] scale.”

Courtney testified that, on May 21,1998, he purchased methamphetamine and cocaine from appellant. He testified that appellant weighed a bag of methamphetamine and that the scale showed a weight of “well over four grams. [Appellant] said that’s not the true weight because the baggie weighed a gram itself.” Courtney testified that, on the same date, appellant gave him a bag of cocaine. He testified that appellant weighed that bag also and that the scales showed a weight of “under a gram counting the package.” Finally, Courtney testified that he also “made an order” for an ounce of cocaine on May 21. Courtney returned to appellant’s house on May 22, 1998, and purchased the cocaine. He testified that appellant “weighed the baggie that [he] was going to purchase which weighed out to 25 to 26 grams that she stated was cocaine.” She then gave the cocaine to Courtney.

Appellant also testified. During her testimony, she admitted to delivering methamphetamine to Whitley on January 13, 1998. She also admitted to delivering methamphetamine and cocaine to Courtney on May 13, 21, and 22, 1998. Appellant never disputed that the substances that she delivered to Whitley and Courtney were methamphetamine and cocaine. Thus, even without the lab reports admitted pursuant to the oral stipulation, the evidence was sufficient to support appellant’s convictions. The error of the trial court in failing to observe the requirements of Article 1.15 did not affect appellant’s substantial rights. See Williams v. State, supra at 461 (“A judicial confession standing alone is sufficient to support appellant’s guilty plea under provisions of Article 1.15... despite any defects in stipulated evidence”).

Moreover, even if we were to hold that appellant’s constitutional rights to confront and cross-examine witnesses against her were violated with respect to Burch, we would still find no harm under Rule 44.2(a). Appellant confronted and cross-examined the rest of the State’s witnesses. As noted above, their testimony, combined with appellant’s judicial confessions on the stand, was sufficient to support appellant’s convictions. We can also determine beyond a reasonable doubt that the error did not contribute to her convictions or punishment. See Rule 44.2(a).

We overrule appellant’s second issue.

Voluntariness of Appellant’s Pleas

Appellant argues in her third issue that the trial court erred in accepting her guilty pleas because they were not made intelligently, knowingly, or voluntarily. Appellant concedes that the trial court admonished her in accordance with Article 26.13. She also concedes that she must show that her pleas were not voluntary. Ex parte Gibauitch, 688 S.W.2d 868 (Tex.Cr.App.1985). Appellant argues that the record shows that she “did not understand the nature of the acts charged and their relationship to the law.” She bases her argument on her testimony that she was a “user” not a “dealer” or a “seller.” These statements, she argues, demonstrate her lack of understanding about the elements of delivery of a controlled substance and her culpability under the Health and Safety Code. The context of appellant’s testimony, plus other testimony she gave, leads us to hold that appellant intelligently pleaded guilty to the six charges.

A person commits an offense when he knowingly or intentionally delivers a controlled substance listed in either Penalty Group 1 or 2. TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a) & 481.113(a) (Vernon Supp.2000). To “deliver” means “to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(8) (Vernon Supp. 2000). The court heard the evidence in this case not only to ensure that appellant’s guilty pleas were supported by sufficient evidence but also to determine the appropriate amount of punishment. Appellant admitted to the transfer of drugs from herself to Whitley and Courtney.

Earlier, during cross-examination, appellant testified:

Q: Okay. You said, “I’m not a seller.”
A: I’m not a seller.
A: I’d go get drugs so I could get my — mine out of it. That — I don’t consider that selling, okay. I’d get enough for whoever they was getting so I could have mine out of it.

On re-direct examination, appellant denied making a profit:

Q: Now, from going over and getting, did you receive any money for doing that or did you receive dope?
A: At that time, no, I got some dope out of it.
Q: Okay. But you didn’t receive any money?
A: No.
Q: None of the money that you took you received?
A: Right.
Q: Or you kept for your own personal use?
A: Right.
Q: That money all went to—
A: Exactly.
Q: —[Another drug dealer’s] contact?
A: Right.
Q: And you were doing this for [the other dealer, who was in jail at the time]?
A: Well, and my habit, you know.
Q: And your habit. And that’s how you supplied your habit?
A: Yes.
Q: Was by helping—
A: Get somebody some drugs.

Clearly, appellant’s testimony that she was not a “seller,” only a “user,” was intended to win leniency from the trial court by drawing a distinction between selling drugs for profit and selling drugs to support her habit. Appellant admitted to the “delivery” of the drugs by sale to Courtney on all three dates in May. Appellant intelligently, knowingly, and voluntarily pleaded guilty to the May 13,1998; May 21, 1998; and May 22, 1998, offenses. We overrule her third issue.

This Court’s Ruling

The judgments of the trial court are affirmed.

      . Appellant disputed the occurrence of two of the offenses alleged in the indictments to have occurred on January 13, 1998. She later admitted, after the trial court withdrew her guilty pleas, that the offenses did occur around that time.

      . First degree felonies are punishable by confinement for life or a term of 5 to 99 years and a fine of up to $10,000. TEX. PENAL CODE ANN. § 12.32 (Vernon 1994).

      . State jail felonies are punishable by confinement for a term of 180 days to 2 years and a fine of up to $10,000. TEX. PENAL CODE ANN. § 12.35(a) & (b) (Vernon 1994).

      . Second degree felonies are punishable by confinement for a term of 2 to 20 years and a fine of up to $10,000. TEX. PENAL CODE ANN. § 12.33 (Vernon 1994).

      .Cause No. 11-99-00204-CR — delivery of methamphetamine, confinement for 20 years and a $3,000 fine.
      Cause No. 11-99-00205-CR — delivery of cocaine, confinement for 2 years and a $2,000 fine.
      Cause No. 11-99-00206-CR — delivery of methamphetamine, confinement for 20 years and a $3,000 fíne.
      Cause No. 11-99-00207-CR — delivery of cocaine, confinement for 75 years and a $5,000 fine.
      Cause No. 11-99-00208-CR — delivery of amphetamine, confinement for 20 years and a $3,000 fine.
      Cause No. 11-99-00209-CR — delivery of methamphetamine, confinement for 20 years and a $3,000 fine.

      . Delivery of an amount of more than 1 gram and less than 4 grams of either of these drugs is a second degree felony. TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(c) & 481.113(c) (Vernon Supp.2000).

      . This is also a second degree felony. Section 481.112(c).

      . This delivery of methamphetamine is a second degree felony. Section 481.112(c). The delivery of less than 1 gram of cocaine is a state jail felony. TEX. HEALTH & SAFETY CODE ANN. § 481.112(b) (Vernon Supp. 2000).

      . The delivery of more than 4 grams and less than 200 grams of cocaine is a first degree felony. TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (Vernon Supp.2000).

      .Article 1.13(a) provides that a defendant in a noncapital felony case has the right to waive trial by jury, "conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State.” The signed, written jury waiver must be filed "in the papers of the cause before the defendant enters his plea.” Article 1.15 provides that a defendant may waive his right to a jury trial only "in accordance with [Article] 1.13.”

      . The presence of a signed, written jury waiver would also obviate the need for this discussion on appeal.

        . Our harm analysis is actually compatible with McClain v. State, supra. Because the stipulations were the only evidence to support the conviction, the court noted that the evidence was rendered insufficient by the failure to observe the mandatory requirements of Article 1.15; that failure made the stipulations inadmissible. The court, in effect, found harm from the lack of evidence to support the conviction. McClain v. State, supra at 742-43.

      . As noted above, the trial court sua sponte withdrew her guilty pleas to the January 13 offenses and then, sitting as the finder of fact, found her guilty. Except for her first two issues, appellant does not challenge the validity of those two convictions. Her third issue does not apply to them.


author: Chief Justice CORNELIUS.

text:
    Jerence SMITH, Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION, Appellee.
    No. 06-00-00072-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 10, 2000.
    Decided Oct. 11, 2000.
    Rehearing Overruled Dec. 19, 2000.

      Jerence Smith, Lovelady, pro se.
    John Cornyn, Atty. Gen., Austin, for ap-pellee.
    Before CORNELIUS, C.J., GRANT and ROSS, JJ.
   OPINION

Opinion by

Chief Justice CORNELIUS.

Jerence Smith appeals from the dismissal of his suit against the Texas Department of Criminal Justice — Institutional Division (TDCJ). Smith, an inmate, alleged that TDCJ lost his personal property and replaced it with items that were “either worn out, broken, or out of date and stale,” in violation of TDCJ policy. Smith attached to his petition an affidavit of indigence, an affidavit documenting his compliance with TDCJ grievance procedures, and an affidavit asserting that he had filed no previous lawsuits in Texas or federal courts. The trial court dismissed Smith’s suit before service of process, stating as its reasons that (1) the realistic chance of success is slight, (2) Smith failed to attach to his petition a written decision showing he used the grievance procedure as required by law, and (3) the action is frivolous and dismissal is appropriate under Tex.Civ.Prac. & RemCode Ann. § 14.003 (Vernon Supp.2000).

We review a dismissal under Chapter 14 of the Civil Practice and Remedies Code using an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.—Waco 1996, no writ). The trial court abuses its discretion if it acts without reference to any guiding rules or principles.

Section 14.003 allows a trial court to dismiss a suit filed by an indigent inmate, either before or after service of process, if the court finds that the claim is frivolous or malicious. Tex.Ctv.PRAc. & Rem.Code Ann. § 14.003(a)(2). In determining whether the claim is frivolous or malicious, the court may consider whether (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Tex.Civ.Prac. & Rem. Code Ann. § 14.003(b).

The Texas Supreme Court has expressed doubt about whether a trial court can properly dismiss a suit only because the claim’s realistic chance of ultimate success is slight or because it is clear that the party cannot prove facts in support of the claim. Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex.1990). Practically speaking, therefore, the trial court is limited to determining whether the claim has an arguable basis in law or fact. Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex.App.—Austin 1997, writ denied). When the trial court dismisses a claim without conducting a fact hearing, we are limited to reviewing whether the claim had an arguable basis in law. Sawyer v. Texas Dep’t of Criminal Justice, 983 S.W.2d 310, 311 (Tex.App.—Houston [1st Dist .] 1998, pet. denied); Leon Springs Gas Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 579 (Tex.App.—San Antonio 1997, no pet.); Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d at 115; In re Wilson, 932 S.W.2d 263, 265 (Tex.App.—El Paso 1996, no writ).

Smith contends that his suit has an arguable basis in law because the Texas Tort Claims Act waives sovereign immunity for the negligent implementation of policy. He maintains that his suit complained about TDCJ replacing his lost property with property of inferior quality, in violation of TDCJ’s stated policy. We find, however, that the trial court’s second reason for dismissing Smith’s suit — that Smith failed to attach a written decision indicating that he availed himself of TDCJ’s grievance procedure — is disposi-tive of his appeal.

An inmate may not file a claim in state court regarding operative facts for which the TDCJ grievance system provides the exclusive administrative remedy until the inmate receives a written decision issued by the highest authority provided for in the grievance system, or the 180th day after the date the grievance is filed if the inmate has not received a written decision. Tex.Gov’t Code Ann. § 501.008(d) (Vernon 1998). An inmate who files a claim that is also subject to the grievance system must file an affidavit stating the date a grievance was filed and the date a written decision was received, and a copy of the written decision. Tex.Civ.Prac. & Rem.Code Ann. § 14.005(a) (Vernon Supp. 2000). If the inmate fails to file a claim within thirty-one days of receiving a final decision from the grievance system, the trial court must dismiss the suit. Tex.Civ.Prac. & Rem.Code Ann. § 14.005(b) (Vernon Supp.2000). If a claim is filed before the grievance proceeding has run its course, the trial court must stay the suit for at least 180 days to permit completion of the proceeding. Tex.Civ.Prac. & Rem.Code Ann. § 14.005(c) (Vernon Supp. 2000).

The purpose of Section 14.005 is to allow the trial court to ensure that an inmate proceeding in forma pauperis has first used TDCJ’s grievance procedure, if it is applicable to his claim. Though Section 14.005 does not explicitly so provide, its obvious purpose is to allow the trial court to dismiss a suit when it becomes clear that the inmate has failed to provide the information the statute requires. Therefore, it is incumbent on the inmate to provide the required information before it comes to the trial court for review. This is especially true because Section 501.008 of the Government Code precludes an inmate from filing a claim until he has exhausted his remedies through the grievance system.

Smith’s affidavit reveals that he filed a Step 1 grievance on July 18, 1999, and received an answer on September 3, 1999. Thereafter, he filed a Step 2 grievance on October 15, 1999, and received an answer on November 80, 1999. The record reflects that the written decision from his Step 1 grievance was filed in the district clerk’s office on March 13, 2000, four days after the trial court dismissed his suit on March 9. However, the decision from his Step 2 grievance was not filed.

Smith contends that he mailed copies of the grievance system decision to the district clerk on March 6, 2000, three days before the trial court signed the order of dismissal. Even if this is true, the trial court did not abuse its discretion. First, Smith failed to file the written decision from Step 2 of the grievance proceeding. Therefore, the trial court acted within its authority in dismissing the suit for failure to comply with the requirements of Section 14.005(a). Second, the trial court knew that Smith had completed grievance proceedings, because Smith filed an affidavit with his petition demonstrating his compli-anee. But the trial court did not have the written decisions from the grievance system before it, because Smith did not file the decision until four days after the trial court signed the order of dismissal. The mailbox rule, Tex.R.CivP. 5, would not operate to enlarge the time, because Section 14.005(a) does not provide a deadline for filing the information. The trial court has discretion to dismiss the suit any time it becomes apparent that the inmate has failed to provide the required information. Therefore, the information must be filed before it comes before the trial court for review.

Smith contends that TDCJ does not have copying services for indigent inmates, so he was compelled to send the documents to his family to be copied. As the plaintiff in this action, however, Smith had control over when his petition was filed. His suit was subject to dismissal in the absence of documentation demonstrating his compliance with the grievance procedures. He could have provided that documentation when he filed his petition, instead of filing it a month later.

We affirm the trial court’s judgment.

      . The property consisted of one clock radio, one set of headphones, one FM Booster, one pair of beachcombers, one night-light, one pair of athletic shoes, two pairs of thermal underwear, two T-shirts, fourteen bags of coffee, eleven bars of soap, twenty-six canned goods, six bags of cookies, one multi-outlet, twenty-one stamped envelopes, four jars of hair food, two tubes of shaving cream, four containers of shampoo, and four tubes of toothpaste.

      . That is the case here. Smith received a final decision from the grievance system on November 30, 1999; he did not file his suit until February 4, 2000. However, where a trial court dismisses a suit under Chapter 14 of the Civil Practice and Remedies Code and states its reasons in its order, this Court is limited to reviewing only its stated reasons. Loper v. Smith Corona, Inc., No. 07-99-0272-CV, 2000 WL 798799, at *2 (Tex.App.—Amarillo June 21, 2000, no pet. h.). Therefore, we do not consider whether dismissal was appropriate under Section 14.005(b).

      . Tex.R.Civ.P. 5 provides:
      If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time.


author: BRIAN QUINN, Justice.

text:
    In the Interest of T.M., A Child.
    No. 07-00-0283-CV.
    Court of Appeals of Texas, Amarillo.
    Oct. 18, 2000.

      Cynthia Brown, Dept, of Protective and Regulatory Services, Lubbock, for appellant.
    Leon Mitchell, Gurley, Mitchell & Gass-away, L.L.P., Borger, for appellee Josie Gonzales.
    Jami K. Watson, Amarillo, Amicus Curiae on behalf of Intervenors/Foster Parents.
    Curtis Hinshaw, Borger, for appellee John Gonzales.
    Before BOYD, C.J., and QUINN and JOHNSON, JJ.
   BRIAN QUINN, Justice.

The Texas Department of Protective and Regulatory Services (DPRS) appeals from a final judgment. Among other things, the latter appointed Josie Gonzales as sole managing conservator and Kathy Williamson Sprague and John Gonzales as possessory conservators of T.M., a child. Through five points of error, DPRS contends that 1) it was denied its constitutional right to a jury trial, 2) the trial court erred in dismissing its first suit with prejudice and “by denying all relief requested,” 3) the trial court erred in dismissing its first suit as a “remedy for an alleged breach of a Rule 11 agreement,” 4) the trial court erred in “limiting the admissibility and scope of expert testimony and ... imposing ‘death penalty discovery sanctions’ to exclude testimony,” and 5) the evidence was legally and factually sufficient to support “termination of parental rights or the appointment of the Department as managing conservator.” We affirm.

Background

The DPRS initiated suit on July 21,1998 seeking the appointment as temporary and permanent managing conservator of T.M, a seven month old female child. Named as parents of T.M. were Kathy Sprague and John Gonzales. On the same day, the trial court appointed the DPRS as temporary managing conservator. So too did it 1) authorize the department to take possession of the child and 2) note that possession of same had already been taken by the DPRS.

The action remained pending for some 18 months when the litigants executed a Rule 11 agreement in apparent effort to avoid the effect of section 263.401 of the Texas Family Code. That statute reads as follows:

(a) Unless the court has rendered a final order or granted an extension under subsection (b), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court shall dismiss the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child.
(b) On or before the time described by Subsection (a) for the dismissal of the suit, the court may extend the court’s jurisdiction of the suit for a period stated in the extension order, but not longer than 180 days after the time described by Subsection (a), if the court has continuing jurisdiction of the suit and the appointment of the department as temporary managing conservator is in the best interest of the child....
(c) If the court grants an extension, the court shall render a final order or dismiss the suit on or before the date specified in the extension order and may not grant an additional extension.

Tex.Fam.Code ÁNN. § 263.401 (Vernon’s Supp.2000) (emphasis added). Prior to the first anniversary of the suit, that is, July 26, 1999, the trial court at bar entered an order granting a 180-day extension contemplated by section 263.401(b). Therein, the new dismissal date was designated December 15, 1999. Though not clearly reflected in the record, the cause was apparently assigned a preferential trial setting of December 6, 1999. That setting was then vacated and trial was “reset” for January 10, 2000. In' so rescheduling the trial, the court implicitly modified its prior order designating the dismissal date of December 15,1999.

The Rule 11 agreement referred to above was executed by all the litigants, including the DPRS, on December 14, 1999. Therein, they agreed to postpone the January 2000 trial and extend the section 263.401 dismissal date to June 5, 2000. The trial court acceded to the wishes of the litigants and issued another order directing that the dispute be “heard on or before June 5, 2000.” Moreover, by December 14th, the DPRS had amended its original petition seeking, among other things, termination of the parental rights of Kathy Sprague and John Gonzales. In turn, John Gonzales tendered a “counter petition” seeking to have himself declared father of the child and to have an appropriate conservator appointed. However, he was not alone in seeking relief from the court. His mother, Josie Gonzales, had intervened, praying to be designated conservator of her granddaughter.

Trial eventually began on May 30, 2000, with voir dire and opening statements. Once a jury was selected, the DPRS began presenting its evidence on June 1st and rested four days later on June 5th. On the next day, John Gonzales moved to dismiss the petition of the DPRS in accordance with section 263.401 of the Family Code and the terms of the Rule 11 agreement. The motion was granted and the petition was dismissed, however, that did not result in termination of the cause. Instead, the court entertained the allegations and pleadings of the remaining parties. Those pleadings included the petition of T.M., filed by the ad litem, to terminate the parental rights of her mother, Kathy, and her father, John, the “counter petition” of John and the intervention of Josie. Moreover, the remaining litigants waived the jury (which the court subsequently released) and proceeded to try the cause to the court. All completed their respective presentation of evidence on June 6th.

After being dismissed, the DPRS filed a second petition involving T.M. and her parents. Although assigned a different docket number (No. 4404), the pleading, according to the state agency, averred the “same grounds” as the live pleading which the court had previously dismissed. In response to the DPRS filing, the trial court executed an order which included the following: 1) a finding that “all issues of fact and matters of law involving ... [cause No. 4404] are now properly before this Court in Cause Number 4301” and “all matters set forth in the [second] petition have been heard and considered ... in Cause Number 4301”, 2) a consolidation of No. 4404 with 4301, and 3) a denial of “all relief requested” by the DPRS in 4404. Thereafter, judgment was entered granting Josie sole managing conservatorship of T.M. and, rather than terminating their parental rights, the court appointed Kathy Sprague and John Gonzales possessory conservators.

Points of Error One, Two and Three

We address the DPRS’s first three points together since they apparently concern the trial court’s decision to dismiss the agency on June 6th. And, upon doing so, we also overrule them.

Underlying each is the meaning and effect of section 263.401 of the Family Code. Simply put, the DPRS suggests that the provision does not mean what it, says and that its provisions are merely suggestive as opposed to mandatory. To determine whether it is correct requires us to decide whether a court, with or without the assistance of the litigants, can avoid the deadlines mandated by the statute. And, upon doing so, we immediately note an historic concept predating the enactment of section 263.401 and describing a portion of this State’s philosophy towards children. That concept directs that children need permanence and stability in their lives. For instance, our brethren have long recognized that justice demands a speedy resolution of child custody and support issues. In re Bishop, 8 S.W.3d 412, 416 (Tex.App.—Waco 1999, no pet.), quoting, Proffer v. Yates, 734 S.W.2d 671 (Tex.1987). This sentiment was later incorporated into the report of the Governor’s Committee to Promote Adoption. Id. The latter recommended that upon the DPRS obtaining conservatorship over a child, parental rights must be terminated or the family reunified within twelve months. In re Bishop, 8 S.W.3d at 416-17. That the legislature sought to implement this recommendation when enacting section 263.401 is clear. Id. at 416, citing House Comm. On Juvenile Justice & Family Issues, Bill Analysis, Tex.S.B. 181, 75th Leg., R.S. (1997). Through the provision, it wanted to enact “a scheme ... to ensure that children would remain under the temporary care of DPRS for no longer than one year, with [an] extension not to exceed 180 days_” In re Neal, 4 S.W.3d 443, 447 (Tex.App.—Houston [1st Dist.] 1999, no pet.) (emphasis added).

Next, with the foregoing sentiment and intent in mind, the legislature enacted a statute declaring that the trial court “shall dismiss” the suit “[u]nless” it has entered a final order or granted an extension by the first Monday after the first anniversary of the date on which the DPRS was appointed temporary managing conservator. See Tex.Fam.Code § 263.401 (emphasis added). Although an extension may be granted, the number was expressly restricted to one, as exemplified by the phrase “may not grant an additional extension” found at section 263.401(c).

Thus, before us is legislative history disclosing an intent to restrict the time within which the DPRS had to act, by using the word “shall” in reference to dismissal and by passing a directive limiting extensions to one. Given this, we cannot but construe the term “shall” to be anything other than mandatory. See DeLeon v. Periman, 530 S.W.2d 174, 176 (Tex.Civ.App.—Amarillo 1975, no writ) (holding that the word “shall”, when appearing in a statute, is used in the mandatory sense particularly in providing for the essence of the thing to be done unless the context of the entire act evinces an intent that it be merely directory). So, we, like our brethren in Bishop and Neal, also hold that the court has no choice in the matter of whether or not to dismiss. See In re Bishop, supra; In re Neal, supra. Once the time lapses and no further extensions are available, dismissal is required irrespective of what the litigants may desire and the ma-donations in which they may engage. Accord, In re Bishop, 8 S.W.3d at 419 (holding that the court “has no discretion in the matter”); In re Neal, 4 S.W.3d at 447 (holding the same). With this said, we now address the first three issues of the DPRS.

Again, through each of the first three issues, the DPRS decries the trial court’s decision to dismiss the proceeding mid-trial. This purportedly constituted error because it 1) denied the entity of its supposed right to a jury trial, 2) “mismanaged the case”, and 3) imposed an undue sanction for an alleged breach of the Rule 11 agreement. To each argument, we refer the DPRS to the wording of section 263.401 as construed above. In short, the statute mandated the dismissal of the proceeding when the 180 day extension expired in January of 2000. The trial court had neither the discretion nor authority to do otherwise. In re Ruiz, 16 S.W.3d 921, 927 (Tex.App.—Waco 2000, no pet. h.); In re Bishop, 8 S.W.3d at 419; In re Neal, 4 S.W.3d at 447.

Nor could the .litigants negate this legislative mandate through a Rule 11 agreement. While people are generally free to contract, contracts which violate public policy as captured in statutory mandate are unenforceable. Williams v. Patton, 821 S.W.2d 141, 147-48 (Tex.1991). Furthermore, a Rule 11 agreement is nothing more than a contract that satisfies the terms of Rule 11 of the Texas Rules of Civil Procedure. As such, it too is regulated by laws pertaining to contracts in general and is therefore unenforceable if it violates public policy. And, given the clear public policy encompassed within the time restrictions of section 263.401(a) and the fact that the parties through the Rule 11 agreement at bar attempted to bypass those restrictions, we conclude the agreement was unenforceable.

Simply put, the DPRS received much more than that to which it was lawfully entitled. That undue gain appeared in the form of impermissible delay wrought by its own actions and the postponement of trial to a date outside that allotted by statute. To adopt the contentions of the DPRS and now say that the court erred in dismissing the suit months after it was required to do so would be nothing short of compounding the violation of legislative dictate. This we cannot do. The department was not entitled to more time, therefore, we must reject points one, two and three.

Finally, and to the extent that the DPRS opines that the trial court erred in denying it the emergency relief sought via the suit filed in June of 2000, we note the following. The DPRS believed it was entitled to such relief because it was founded upon “new and additional reasons for emergency orders discovered during trial.” (Emphasis added). Admittedly, authority holds that a dismissal under section 263.401 does not constitute an adjudication on the merits. In re Ruiz, 16 5.W.3d at 927. So too does it conclude that the DPRS may refile the case and assert the same grounds for termination as originally alleged. Id, However, the right to rely upon the same grounds for termination does not permit the entity to use the same facts as the basis for removing the child from her parents-or maintaining her in a foster home pending resolution of the suit. Id. New facts justifying the temporary relief must be propounded. Id. Moreover, in denying the DPRS temporary emergency relief sought via the second action at bar, the trial court found that “all issues of fact and matters of law involving both this cause and [the original cause were] ... properly before this Court in” the original cause. So too did it find that “all matters set forth in the Petition for Emergency Protection ha[d] been heard and considered by the Court in” the original proceeding. In other words, the court found that the purportedly new facts relied upon by the DPRS to obtain emergency relief were not, in fact, new, but part of the first action. Given this and the fact that the DPRS failed to attack either of the aforementioned findings, we cannot fault the trial court for denying the emergency relief sought by the department in its second effort to remove T.M.

Point of Error Four

In its fourth point, the DPRS engages in a somewhat confusing dialogue regarding “death penalty discovery sanctions” supposedly levied against it viz-a-viz the testimony of Dr. Basham. Yet, we find no order or decision of record levying such “sanctions.” Nor has the DPRS referred us to that portion of the record wherein these supposed “sanctions” could be denied. Thus, without such “sanctions” being levied, we cannot hold that the trial court erred in levying them.

The trial court did prohibit Basham from testifying about his evaluation of T.M.’s foster parents as potential adoptive parents. To the extent that DPRS attempts to complain about that through this particular point of error, we say the following. Several reasons were offered (by those opposing admission of the testimony) as to why the testimony should be excluded. They included not only the proposition that it was irrelevant since the proceeding was not one involving adoption, but also because the information concerning the testimony was not delivered to them in a timely manner. Which ground the court relied upon is unknown since it mentioned neither in its ruling. Thus, logic and the standard of review compelled the DPRS to, at the very least, illustrate on appeal why neither were legitimate. That is, the applicable standard of review is one of abused discretion. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). And, in determining whether the trial court abused its discretion the reviewing court is required to affirm the decision on any conceivable ground, even if it was not one mentioned below. Worford v. Stamper, 801 S.W.2d 108 (Tex.1990). Therefore, before we can hold that a trial court erred viz an evidentiary ruling, it is incumbent upon the party having the burden to prove error on appeal (ie., the appellant) to negate each potential basis supporting the ruling. Here, the DPRS addressed neither of the grounds proffered by the opponents. Furthermore, it is not our obligation to act as its advocate and raise argument that it neglected to raise. So, we must conclude that it failed to carry its burden on appeal.

Point of Error Five

In its fifth and final point, the DPRS attacks the legal and factual sufficiency of the evidence underlying the court’s decisions. The decisions in question are those 1) refusing to terminate the parental rights of T.M.’s parents (Kathy Sprague and John Gonzales) and 2) granting Josie Gonzales managing conservatorship over the child. We overrule this point as well for several reasons.

First, the department does not claim that the rulings lack evidentiary support. Instead, it suggests that the “[e]vi-dence was legally and factually sufficient to support termination, or in the alternative, the appointment of the Department as managing conservator.” (Emphasis added). In other words, the court allegedly erred in holding as it did because evidence supposedly existed which would have authorized it to hold for the DPRS. Such an argument, however, fails to comport with the applicable standard of review. Indeed, the latter requires one urging legal insufficiency to prove that no evidence supported the decision rendered. Tabor v. Hogan, 955 S.W.2d 894, 895-96 (Tex.App.—Amarillo 1997, no pet.). And, whether the record contained evidence contrary to the decision is irrelevant until that first obstacle is cleared. Id. Similarly, one claiming factual insufficiency must explain why the evidence which does support the ruling is deficient when compared to the other evidence of record. Id. The DPRS does neither. It simply discusses the evidence which would have allegedly supported a verdict in its favor. In doing nothing other than that, it failed to carry its burden on appeal.

Second, despite the erroneous tactic of the department, we nevertheless perused the record to determine whether the holding in question enjoyed legally and factually sufficient evidentiary support. Upon doing so, we found a record replete with contradictory evidence, yet, some of that evidence supports the trial court’s ruling. And, while that which does not is as plentiful, we cannot say that it renders the court’s action manifestly wrong or clearly unjust.

In sum, whether we would have made the same decision had we been the trier of fact matters not. It is the trier of fact, not this court, that has the authority to resolve conflicts in evidence and weigh the credibility of the witnesses. And, as long as its ultimate decision enjoys evidentiary support, we must trust and defer to it. Therefore, given the standard of review and the state of the appellate record, we conclude that the evidence is legally and factually sufficient to support the trial court’s decision to forego the termination of parental rights and to grant managing conservatorship to Josie Gonzales.

Having rejected each point or issue raised by the DPRS, we affirm the judgment entered below.

      . Rule 11 of the Texas Rules of Civil Procedure states that "no agreement between the attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”

      . Whether the trial court had the authority to do so goes uncontested. However, we do note that 180 days from July 26, 1999 (the first Monday following the first anniversary of the suit) fell on January 22, 2000. So, the new setting was within the period authorized by section 263.401(b) of the Texas Family Code.

      . Question was raised by the court and at least one litigant about that portion of the Rule 11 agreement purporting to extend the dismissal date. Indeed, the court likened the date to a “drop dead date”. Nevertheless, the DPRS informed the court that the date “could be extended even past the extension date” as long as “the parties execute a Rule 11 Agreement.”

      . We note, as did the Neal court, that the deadlines imposed by section 263.401 may be avoided via an order directing, among other things, the DPRS to relinquish actual physical custody of the child to a parent. Tex.Fam.Code Ann. § 263.402(a) (Vernon’s Supp.2000). This avenue was not pursued at bar, and, therefore, is irrelevant to our situation.

      . The suit contemplated in section 263.401 could be likened to one involving a statutory cause of action in favor of the DPRS. In creating it, the legislature had the authority to determine its parameters. See Texas Workers’ Compensation Com’n. v. Garcia, 893 S.W.2d 504, 528 (Tex.1995). So too could it dictate the effect of exceeding or failing to abide by those parameters, such as mandating the loss and dismissal of the cause due to the passage of time.

      . Even the DPRS acknowledged in its brief that the Rule 11 agreement was “void, as it [was] contrary to public policy.”

      . An example of this commentary appears at page 38 of the brief, which we now quote: Cross-examined [sic] of Dr. Basham concerning his evaluation on [sic]. the father (with no mention of a recommendation for the termination of parental rights), the opinion in his written evaluation on Inter-venor that T.M. could be raised in far worst [sic] homes than Josie Gonzales, and his determination for the instant child custody case, opened the door to questioning by the AAL on cross-examination or by the Department on redirect to properly go into the subject of his recommendation for termination of parental rights and for adoption by the Balls, who would best parent this little girl.

      . While the court did not allow Basham to opine about the qualities of T.M.’s foster parents, it did permit him to testify on a plethora of other subjects. So, the DPRS was not denied opportunity to present their expert.


text:
    CHEROKEE WATER COMPANY, Appellant, v. William Odie FREEMAN, et al., Appellees.
    No. 06-99-00160-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 5, 2000.
    Decided Oct. 20, 2000.
    Rehearing Overruled Dec. 5, 2000.

      S. Calvin Capshaw, Nancy M. Fuller, H.P. Smead, Jr., Tracy Graves Wolf, Brown, McCarroll & Oaks Hartline, Long-view, Ron Adkison, Wellborn, Houston, Adkison, Mann, Henderson, for appellant.
    Jon K. Hudgens, Kenneth L. Ross, Ross-Hudgens <& Graves, Longview, for appellee.
    Before CORNELIUS, C.J., GRANT and HILL, JJ., (JOHN HILL, Sitting by Assignment).
   OPINION

WILLIAM J. CORNELIUS, Chief Justice.

Cherokee Water Company appeals from a declaratory judgment construing three deeds favorable to the claims of the children of J.A. Freeman, the children of W.R. Freeman, and the heirs of James C. Freeman (the Freemans). In four points of error Cherokee contends that the trial court erred (1) in finding the deeds ambiguous, thereby misinterpreting the deeds of W.R. and J.A. Freeman, and (2) in concluding that subsequent acts and statements made by representatives of Cherokee indicated the intent of the grantors.

The deed provisions to be construed are those in the respective deeds granting or reserving to the Freemans and their children and/or heirs the rights to fish, boat, and otherwise use Cherokee Lake and the Freemans’ adjacent lots for recreational purposes. The trial court found all three deeds ambiguous and, based on evidence of the parties’ intention, declared that the Freemans currently are entitled to exercise those rights. We conclude that the trial court erred in finding that the deeds from J.A. and Lonie Freeman and from W.R. and Dessie Freeman are ambiguous, and further erred in construing their provisions. We conclude that the trial court correctly construed the deed from J.C. and Mattie Freeman. Therefore, we reform the judgment in part, and as reformed, affirm the judgment.

In January of 1948, Cherokee, in an effort to acquire land for public use, instituted condemnation proceedings against J.A. and Lonie Freeman, W.R. and Dessie Freeman, and James C. and Mattie Freeman, respectively. A few months later, each group of the Freemans conveyed a portion of their land, by general warranty deed, to Cherokee in full settlement of the controversy. W.R. Freeman and his wife Dessie executed their deed on May 24, 1948. J.A. Freeman and his wife Lonie executed their deed on May 25, 1948. James C. Freeman and his wife Mattie executed their deed on March 25, 1949. The two 1948 deeds contain substantially similar granting language, the first of which in pertinent part states:

The Grantor and his children living or visiting with him are hereby given by the Grantee a right to fish on the land above described, which is to be included in a part of Cherokee Lake; such right including with it the right to anchor a boat on the shore line, with access to said boat. This right to fish shall be governed by the same rules and regulations as may be imposed upon those who are allowed to fish in said Lake as to the time of taking fish, the kind and size of fish to be taken from said Lake. This right is personal and cannot be sold or assigned.

(Emphasis added.) The second deed, executed by J.A. and Lonie Freeman, similarly states:

The Grantee hereby agrees that, when said Lake is completed, the Grantors together with their children living or visiting with them (except W. R., J.C. and Noah Freeman) are hereby given the right to go upon the waters covering the above land and fish therein, subject, however, to such rules and regulations as may be imposed from time to time upon those who are authorized to fish in said Lake; such rules governing the number[,] kind, and size of fish taken, as well as the time when such fish can be caught. The rights herein granted to fish are personal and are not, subject to sale or assignment. To enter the water covering the above land, the Grantors are hereby given a right of way over and a right to use, for the purpose of anchor-

ing a boat, Lot Number 8 in Block SQ of Lake Cherokee sub-division. The right of Grantors to use said lot is subject to the rules as may be established by Lake Cherokee, governing sanitary conditions on said Lot.

(Emphasis added.) The third deed, executed in March of 1949 by James C. and Mattie Freeman, states in pertinent part: [T]he Grantors are hereby given the right to select one of the above lots and to make such selection within ten (10) days after they have been notified that said lots have been located and staked on the ground. The Grantors and their Heirs shall have the right to use said lot for and during the natural life of either of them. Said lot shall not be used for commercial purposes but shall be used for a camp house, picnic ground, and to enter Lake Cherokee for the purposes of fishing as herein granted.

The Grantors and their Heirs are hereby granted the right to go upon Lake Cherokee for the purpose of fishing and recreation, but such rights shall be governed by the same rules and regulations as the Grantee may impose upon all persons that it gives permission to enter said Lake for recreational and fishing privileges.

(Emphasis added.)

Following the deaths of all the original grantors, a dispute arose between Cherokee and the children of the grantors concerning whether the various fishing and recreational rights mentioned in the deeds survived the grantors’ deaths. To resolve the dispute, Cherokee, in 1996, filed suit seeking a declaratory judgment to construe the provision in J.A. and Lonie Freeman’s deed. Cherokee subsequently filed two additional suits, one for each of the other two deeds, and stipulated that all the eases would be tried together in the District Court of Rusk County, Texas. In response, the Freemans filed various counterclaims against Cherokee, all of which were severed from the deed construction issues and disposed of by the summary judgment. The Freemans appealed the summary judgment to this Court, and we affirmed the trial court’s decision. The deed construction issues eventually were heard, and the trial court found: (1) that the two 1948 deeds were ambiguous as a matter of law, and, based on extrinsic evidence, the grantors’ intent was that the various rights survive their death and pass to their children to enjoy for their fives; (2) that the grantors of the 1949 deed intended for the rights to survive their death and pass to their heirs based on the use of the word heirs; and (3) that although Cherokee was the grantee in all deeds, Cherokee was the grantor of the fishing and recreational rights at issue.

In its first and second points of error, Cherokee contends that the trial court erred by misapplying the rules of deed construction in finding the two 1948 deeds ambiguous, and also erred by admitting extrinsic evidence to determine the grantors’ intent. A court’s primary goal when construing a deed is to ascertain the true intention of the parties as expressed within the “four corners” of the instrument. See Luckel v. White, 819 S.W.2d 459, 461 (Tex.1991); Garza v. Maddux, 988 S.W.2d 280, 287 (Tex.App.—Corpus Christi 1999, pet. denied). The four corners rule requires the court to ascertain the intent of the parties solely from all of the language in the deed. Concord Oil Co. v. Pennzoil Exploration & Prod. Co., 966 S.W.2d 451, 465 (Tex.1998). The intent that governs, however, is not the intent that the parties meant but failed to express, but the intent that is expressed. Prairie Producing Co. v. Schlachter, 786 S.W.2d 409, 412 (Tex.App.—Texarkana 1990, writ denied); Harlan v. Vetter, 732 S.W.2d 390, 392 (Tex.App.—Eastland 1987, writ ref'd n.r.e.). A commentator has described the process of deed interpretation as three tiered: (1) the court attempts to ascertain the grantor’s intent by examining the plain language of the deed; (2) the court then applies applicable rules of construction to the deed; (3) the court then considers extrinsic evidence to aid interpretation. Laura H. Burney, The Regrettable Rebirth of the Two Grant Doctrine in Texas Deed Construction, 34 S.Tex.L.Rev. 73, 77-78 (1993). The third tier, the admission of extrinsic evidence, is not reached unless the intent of the parties is unclear because the deed is ambiguous. Stauffer v. Henderson, 801 S.W.2d 858, 863 (Tex.1990); Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 525 (Tex.1982). The question of ambiguity in an instrument is a question of law. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex.1987) (relating to contract construction). A document or deed that can be given a definite or certain legal meaning from the words used is not ambiguous. See Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 74 (Tex.1997); see also Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). If the deed language is susceptible to a single meaning, the court will be confined to the writing. Watkins v. Petro-Search, Inc., 689 F.2d 537, 538 (5th Cir.1982). If the language may be interpreted in different ways, rules of construction may be used. An instrument is ambiguous only when the application of these rules leaves it unclear which of two reasonable meanings is the correct one. Prairie Producing Co. v. Schlachter, 786 S.W.2d at 413. We review a trial court’s decision on a question of law de novo. Barber v. Colorado Indep. Sch. Dist., 901 S.W.2d 447, 450 (Tex.1995); Ely v. Briley, 959 S.W.2d 723, 726 (Tex.App.—Austin 1998, no pet.).

After a careful review of the record, we conclude that the trial court erred both in finding the two 1948 deeds ambiguous and in admitting extrinsic evidence to show the grantors’ intent.

The trial court found the following granting language ambiguous: (1) W.R. Freeman and his wife Dessies’ deed stating in pertinent part, “The Grantor and his children living or visiting with him are hereby given ... a right to fish ... [and] the right to anchor a boat on the shoreline ...” (emphasis added); (2) J.A. Freeman and his wife Lonies’ deed stating in pertinent part, “[T]he Grantors together with their children living or visiting with them ... are hereby given the right to go upon the waters ... and fish therein ... [and] a right of way ... for the purpose of anchoring a boat ...” (emphasis added). The trial court determined that the living or visiting with language could be separated from the conjunctive or and constitute two separate phrases with two separate meanings. According to this construction, the children must be living or visiting with the grantors. In other words, because the qualifying words with them only appear after the word visiting and not after the word living, the children only must be living to claim the fishing and recreational rights. This interpretation is fundamentally flawed. First, it is clearly inconsistent with the requirement that, when construing a conveyance, we give effect to all parts and construe the document as a whole. See Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 789 (Tex.1995). Second, it misconstrues what the conjunction or means. The word or is used to connect words, phrases, or clauses representing alternatives. Random House DictionaRY of English Language 1360 (2d ed.1987). Simply put, the drafter of the living or visiting with language chose to include the word or as a way to connect the pronoun them with alternative adjectives living and visiting. Thus, instead of saying living with them or visiting with them, the drafter chose to make use of the commonly applied conjunction or to state the same proposition. Moreover, a different construction would make the words or visiting with them meaningless. If the provision meant that all living children could exercise the rights, there would be no need to state that children visiting with them could also exercise those rights. We are required to give effect to all words used in the instrument, and we are not permitted to assume that the drafter of the instrument intended for some of the words to have no effect. See Concord Oil Co. v. Pennzoil Exploration & Prod. Co., 966 S.W.2d at 465. Consequently, the language used in the two 1948 deeds is clear, and because it is capable of only one meaning, as a matter of law it is not ambiguous.

In light of the unambiguous nature of the language at issue, the trial court erred in admitting extrinsic evidence in an effort to ascertain the intent of the grantors. The testimony of Albert Freeman, the son of W.R. Freeman, that a Cherokee representative told him he could fish on Lake Cherokee forever, as well as the fishing cards given to him by Cherokee with the expiration date blacked out, suggests that perhaps the grantors’ intent was to allow their children to fish on Lake Cherokee forever. Furthermore, in light of the condemnation proceedings and possible lawsuit against the grantors, this continuity idea is consistent with the circumstances that led to the deed to Cherokee. That notwithstanding, however, such extrinsic evidence is inadmissible when a deed is unambiguous and the language has a clear and definite meaning. As discussed earlier, as a reviewing court we are not called on to determine what the grantors meant to say, but the meaning of what they did say.

In its third point, Cherokee contends that the trial court erred by concluding it was the grantor of the rights to fish and anchor a boat. We do not reach this point, however, in light of the trial court’s finding that Cherokee drafted all of the deeds. Whether Cherokee granted these rights, as found by the trial court, or whether the Freemans, the grantors of the land, reserved these rights for themselves is of no consequence because the trial court found that Cherokee drafted the deeds, and that finding is unchallenged. Cherokee argues that since the Freemans are the grantors in the deeds, the various fishing and recreational rights constitute reservations by the Freemans, so any ambiguity should be construed in Cherokee’s favor as the grantee. But it is not the identity of the grantor, but the drafter, that is important because the law requires that any doubt should be resolved against the scrivener. See Texas Pac. Coal & Oil Co. v. Masterson, 160 Tex. 548, 334 S.W.2d 436 (1960). The language will be construed strictly against the party who drafted the deed because the drafter is responsible for the language used. See Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 737 (Tex.1990) (citing Republic Nat’l Bank v. Northwest Nat’l Bank, 578 S.W.2d 109 (Tex.1978)). This firmly established canon of construction is ultimately dispositive of the final point of error.

In its fourth point, Cherokee contends that the trial court erred in construing the 1949 deed executed by James C. and Mattie Freeman to provide that the fishing and boating privileges survive the death of the grantors and are currently held by their heirs. As discussed earlier, the construction of a deed is a question of law. The court’s primary duty when construing a deed is to ascertain the intent of the parties from all of the language contained within the four corners of the document. Luckel v. White, 819 S.W.2d at 461. If the intent of the parties as expressed by the language on the face of the document is doubtful, the court may resort to parol evidence to resolve the doubt. Terrill v. Tuckness, 985 S.W.2d 97, 101 (Tex.App.—San Antonio 1998, no pet.). Parol evidence may also be admitted to show the existence of a latent ambiguity, or in order for the court to apply the language used in the instrument to the facts and circumstances then existing. Murphy v. Dilworth, 137 Tex. 32, 151 S.W.2d 1004 (1941); Templeton v. Dreiss, 961 S.W.2d 645, 673 (Tex.App.—San Antonio 1998, pet. denied); Benson v. Jones, 578 S.W.2d 480 (Tex.Civ.App.—Corpus Christi 1979, writ ref'd n.r.e.). Where the true intent of the grantor, as indicated from the document as a whole, shows that the words used were intended to be given a commonly accepted meaning rather than a technical or legal one, such clearly manifested intent will be given effect. See Holloway’s Unknown Heirs v. Whatley, 104 S.W.2d 646, 648 (Tex.Civ.App.—Beaumont 1937), aff'd, 133 Tex. 608, 131 S.W.2d 89 (1939); see also Hopkins v. Hopkins, 103 Tex. 15, 122 S.W. 15 (1909); Simonton v. White, 93 Tex. 50, 53 S.W. 339, 341 (1899). Where the words used have a technical or legal meaning and there is nothing in the deed, when construed as a whole, to show that any other meaning was intended, they will be given their legal meaning. See Holloway’s Unknown Heirs v. Whatley, 104 S.W.2d at 648; see also Singletary v. Hill, 43 Tex. 588, 589 (1875); Bergfeld v. Buer, 8 S.W.2d 776, 778 (Tex.Civ.App.—Dallas 1928, writ ref'd); Williamson v. Cowan, 265 S.W. 745, 746 (Tex.Civ.App.—Waco 1924, writ ref'd). Additionally, as discussed earlier, if there is any doubt as to the proper construction of a deed, a court should resolve that doubt against the drafter. See Texas Pac. Coal & Oil Co. v. Masterson, 160 Tex. 548, 334 S.W.2d 436.

We review a trial court’s decision on a question of law de novo. Barber v. Colorado Indep. Sch. Dist., 901 S.W.2d at 450; Ely v. Briley, 959 S.W.2d at 726. The distinguishing factor between the two 1948 deeds and the 1949 deed is the use of the word heirs. The two 1948 deeds referred to grantors and their children, while the 1949 deed in pertinent part states: “Grantors and their Heirs shall have the right to use said lot for and during the natural life of either of them” (emphasis added). Based on this language, the trial court concluded that the grantors intended for the rights to survive their deaths and pass to their heirs. Cherokee, arguing that the rights do not survive the death of the grantors, contends that the either of them language refers only to the two grantors, James C. and Mattie Freeman, because the antecedent to the pronoun them is grantors and not grantors and their heirs. Cherokee advances this argument because the word either is defined as “one or the other of two alternatives.” Because there were two grantors, James and Mattie, and multiple heirs, Cherokee contends that the word either must refer only to the two grantors and not to the class of heirs, so the interpretation must be that the rights terminate on the death of the last living grantor. This construction, however, overlooks the ancient maxim, Nemo est haeres viventis — the living have no heirs, which has been recognized in Texas since 1886. Eckford v. Knox, 67 Tex. 200, 2 S.W. 372, 372 (1886). Because technically the living have no heirs, under this construction, the fishing and recreational rights would terminate on the death of the grantors; hence, the language and their heirs would be rendered superfluous. This narrow interpretation suggests that the grantors, James and Mattie Freeman, intended to exclude their children and grandchildren from having the rights to fish and recreate described in the deed. In light of the foregoing discussion there appears to be a conflict between the word heirs and the phrase for the natural life of either of them.

We agree with the trial court that this provision in the third deed is ambiguous. In light of the apparent ambiguity between the phrases grantors and their heirs and for the natural life of either of them, we will resolve the doubt in favor of the Free-mans and against the drafter, Cherokee. Because a person’s heirs are not determined until his or her death, in an effort to give meaning to all the words contained in the deed, we conclude that the antecedent to the pronoun them is the last living grantor and the class of his or her heirs. Plainly stated, the grantors’ heirs would not be determined until one of the grantors died, so either of them must refer to the last living grantor and his or her heirs.

Moreover, because there is doubt as to the proper meaning of the deed in light of these two conflicting phrases, the court properly considered extrinsic evidence to ascertain the facts and circumstances that existed at the time the deed was executed. Additionally, the use of the word heirs in the 1949 deed, executed after execution of the two 1948 deeds, each of which used children, indicates that the drafter, Cherokee, intended for the 1949 deed to have a different meaning. As a whole, the evidence indicates that the last thing the grantors would have intended is to exclude their children and grandchildren from the very rights that they had enjoyed just prior to deeding their property.

For the above stated reasons, we conclude that the trial court correctly found that the intent of the grantors expressed within the 1949 instrument was for their children and possibly their grandchildren, as their heirs, to enjoy the fishing and recreational rights on Lake Cherokee, and that the fishing and recreational rights reserved in the 1949 deed survived the death of the last living grantor and now belong to the grantors’ heirs.

We reform the judgment to declare that the fishing and recreational rights reserved in the two 1948 deeds did not survive the deaths of the grantors, but that those reserved in the 1949 deed did survive the death of the last living grantor and now are held by that grantor’s heirs.

ROSS, J., not participating.

      . Cherokee’s first lawsuit was filed in Gregg County, but was subsequently transferred to Rusk County.

        . See Freeman v. Cherokee Water Co., 11 S.W.3d 480 (Tex.App. — Texarkana 2000, rev. den.)

      . Cherokee did not challenge this finding.