author: PER CURIAM.

text:
    In re MERRILL LYNCH & CO., INC. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Relators.
    No. 09-0161.
    Supreme Court of Texas.
    June 25, 2010.
    Rehearing Denied Aug. 27, 2010.

      Charles A. Gall, Joel Randall Sharp, Eric Ross Hail, Hunton & Williams LLP, Robert B. Gilbreath, Hawkins, Parnell Thackston & Young, LLP, Dallas TX, for Relators.
    Lewis T. LeClair, Robert E. Goodfriend, Anthony Matthew Garza, Rosemary Snider, Scott R. Jacobs, McKool Smith, P.C., Deborah G. Hankinson, William Richard Thompson II, Ryan D. Clinton, Hankinson Levinger LLP, Dallas TX, for Real party in interest.
   PER CURIAM.

In this mandamus proceeding, we must decide whether the trial court abused its discretion when it refused to stay litigation that could moot the potential arbitration of related claims in the same lawsuit. In In re Merrill Lynch Trust Co., we declared that there are “many circumstances in which litigation must be abated to ensure that an issue two parties have agreed to arbitrate is not decided instead in collateral litigation.” 235 S.W.3d 185, 196 (Tex. 2007). We applied this principle in Merrill Lynch Trust to stay the plaintiffs’ claims against two defendants until the plaintiffs’ related claims against a third defendant were arbitrated. Id. Here, we apply the same principle to hold that the trial court abused its discretion by refusing to stay the litigation related to one corporation, MetroPCS Communications, Inc. (Communications), until the identical claims of its corporate affiliate, MetroPCS Wireless, Inc. (Wireless), are decided by arbitration or until Wireless is a member of a certified class action. Accordingly, we conditionally grant relator Merrill Lynch’s petition for writ of mandamus.

In this lawsuit, two corporate subsidiaries of MetroPCS, Wireless and Communications, assert identical statutory and common-law claims. The claims arise out of certain security investments sold by Merrill Lynch in 2006 (to Wireless) and 2007 (to Communications). Wireless later transferred all of its securities at issue to Communications. Then, just two months later, both Wireless and Communications sued Merrill Lynch alleging that the securities were characterized at the time of sale as a low-risk investment but were, in fact, high-risk.

Wireless and Communications, jointly referred to in their petition as “Me-troPCS,” assert identical claims with virtually identical facts. Their pleadings do not meaningfully distinguish between the two affiliates, which also share counsel. The only relevant differences between the affiliates pertain to the arbitration provisions contained in a separate contract between Wireless and Merrill Lynch unrelated to the investments; Communications did not sign an agreement with an arbitration clause. The Wireless agreement provides, in relevant part:

All controversies that may arise between [Wireless] and Merrill Lynch, including, but not limited to, those involving any transaction or the construction, performance or breach of this or any other agreement between [Wireless] and Merrill Lynch, whether entered into prior to, on or subsequent to the date hereof, shall be determined by arbitration.

The Wireless contract also contains a class-action carve-out clause that was adopted under, and mimics, National Association of Securities Dealers (NASD) Rule 10301(d)(3). The clause allows plaintiffs to pursue or participate in class actions by preventing defendants from pulling plaintiffs away from a putative or certified class action simply by compelling arbitration:

No person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against any person who has initiated in court a putative class action; or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action until: (i) the class certification is denied; (ii) the class is decertified; or (iii) the Customer is excluded from the class by the court. Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this agreement except to the extent stated herein.

Wireless claims to be a member of two class actions in the Southern District of New York, Burton v. Merrill Lynch & Co., CA-08-CV-03037 (S.D.N.Y. filed Mar. 25, 2008) and Stanton v. Merrill Lynch & Co., CA-08-CV-03054 (S.D.N.Y. filed Mar. 26, 2008), both of which were consolidated into In re Menill Lynch Auction Rate Securities Litigation, CA-08-CV-3037-LAP (S.D.N.Y. consolidated Oct. 31, 2008). The federal court recently dismissed the consolidated action with prejudice under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The dismissal has been appealed.

In the trial court below, Merrill Lynch moved to compel arbitration under the Federal Arbitration Act (FAA) and requested a stay of all litigation. The trial court initially decided to compel arbitration for Wireless’s claims and to stay the litigation of Communications’ claims, but on rehearing (when the class actions were brought to the court’s attention) it stayed Wireless’s claims until a class certification decision was rendered in the class action or Wireless determined to opt out. But the trial court did not stay the related Communications litigation. Communications then served Merrill Lynch with extensive discovery requests. Merrill Lynch sought mandamus relief, which the court of appeals denied. See 315 S.W.3d 893.

The rules applicable to mandamus review of a trial court’s order granting or denying a motion to compel arbitration and stay related litigation are well known. A party seeking relief pursuant to the FAA from the trial court’s denial of arbitration or a stay of litigation must file a petition for writ of mandamus. See In re Memll Lynch Trust Co., 235 S.W.3d at 188; In re D. Wilson Constr. Co., 196 S.W.3d 774, 779-80 (Tex.2006); Jack B. Anglin Co. v. Tipp.s, 842 S.W.2d 266, 272-73 (Tex.1992). Mandamus will issue to correct a clear abuse of discretion for which the remedy by appeal is inadequate. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex.2008); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004). Under the FAA, mandamus relief is appropriate if the trial court abuses its discretion by failing to stay the litigation or compel arbitration. In re Merrill Lynch Trust Co., 235 S.W.3d at 188.

Merrill Lynch argues that our decision in Merrill Lynch Trust is controlling and requires a stay of Communications’ litigation. We agree. In Merrill Lynch Trust, the plaintiffs sued a Merrill Lynch employee and two Merrill Lynch affiliates and sought to litigate their claims, but we determined that the substance of the plaintiffs’ claims against the employee were against the company, Merrill Lynch, and required the plaintiffs to abide by their agreement to arbitrate. Id. at 188, 190. We also rejected the attempt of the affiliates- — -who had not signed an arbitration agreement with the plaintiffs — to compel the claims against them to arbitration, but we concluded that the nonsignatories’ litigation should be stayed until the plaintiffs’ arbitration with Merrill Lynch was complete. Id. at 191-96. We reasoned that “when an issue is pending in both arbitration and litigation ... arbitration ‘should be given priority to the extent it is likely to resolve issues material to this lawsuit.’ ” Id. at 195 (quoting AgGrow Oils, LLC v. Nat’l Union Fire Ins. Co., 242 F.3d 777, 783 (8th Cir.2001)). Thus, we concluded that the litigation involving the nonsignato-ries to the arbitration agreement should be stayed lest it undermine issues to be resolved in the arbitration between the signatories. Id. at 196.

The key facts in Merrill Lynch Trust and in this case are nearly identical. There, the litigation involved claims relating to signatories and non-signatories to the arbitration agreement. The same is true here. There, some claims were subject to an arbitration agreement and some were not. So too here. There, the parallel litigation threatened to undermine or moot the arbitration, thereby negating the parties’ agreement and bargained-for arbitration rights. Again, the same is true here. The only meaningful factual distinction between this case and Merrill Lynch Trust is the class-action clause, which changes the arbitration from currently pending to potentially pending at some point in the future. We must decide if this distinction compels a different outcome. On these facts, we hold that it does not.

As noted, the class-action carve-out clause mimics NASD Rule 10301(d)(3). That rule maintains access to courts for class actions while preserving the right to arbitrate individual claims, having been implemented to prevent defendants from pulling plaintiffs away from a putative class action by enforcing arbitration provisions. Now, as stated by the Securities and Exchange Commission, plaintiffs are afforded the opportunity to evaluate their class-action options:

[I]n all cases, class actions are better handled by the courts and ... investors should have access to the courts to resolve class actions efficiently. In the past, individuals who attempted to certify class actions in litigation were subject to the enforcement of their separate arbitration contracts by their broker-dealers. Without access of class actions in [appropriate] cases, both investors and broker-dealers have been put to the expense of wasteful, duplicative litigation. The new rale ends this practice.

Order Approving Proposed Rule Change Relating to Exclusion of Class Actions from Arbitration Proceedings, Securities and Exchange Commission Release No. 34-31371, 57 Fed. Reg. 52,659, 52,661 (Nov. 4, 1992) (emphasis added). Rule 10301(d)(3) was not intended to provide a signatory with sanctuary from arbitration while a non-signatory affiliate simultaneously conducts discovery and chips away at the same issues in litigation. Accordingly, Communications cannot litigate its claims before Wireless is a member of a certified class action for resolution of its claims. In this situation, a stay is appropriate because the alternative- — -allowing Communications to continue litigating— would create duplicative litigation, contrary to the rule’s intent. More importantly, this litigation, if allowed to proceed to its end, could moot the contemplated arbitration between Wireless and Merrill Lynch, destroying the latter’s bargained-for rights.

Further, the Communications litigation will not, as MetroPCS argues, be stayed for an indefinite period of time. Rather, as the clause states, the arbitration-or-class-action decision can continue unresolved for a time, but only until (1) the class certification is denied, (2) the class is decertified, or (3) Wireless is excluded from the class by the court. The Wireless contract unambiguously defers enforcement of the arbitration agreement “until” one of those three events occurs. The agreement presumes that any disputes remain ultimately arbitrable should one of three designated events occur or if Wireless opts out of the class. Recent events in the consolidated action illustrate another option — dismissal of the class action on the merits before the class is certified. If the district court’s judgment is upheld on appeal, the consolidated action is definitively terminated and the class-action clause plainly does not prevent arbitration of individual claims. But if the judgment is reversed, the case will return to the district court and proceed to the class-certification stage. In that event, occurrence of one of the three designated events in the contract (or Wireless’s own choice) will govern when the arbitration occurs.

We disagree with the suggestion that Wireless will never go to arbitration. It is entirely possible that Wireless will go to arbitration. We understand that waiting on a decision from Wireless or the federal courts could defer the completion of Communications’ litigation, but while “[tjrial judges cannot deny a party its day in court, ... they have always had wide discretion to say when that day will be.” In re Merrill Lynch Tmst Co., 235 S.W.3d at 195.

As we observed, this case presents one of those “many circumstances in which litigation must be abated to ensure that an issue two parties have agreed to arbitrate is not decided instead in collateral litigation.” Id. at 196. Under NASD Rule 10301 and the agreement, Wireless has the right to pursue the class action. But in the meantime, Communications cannot commence individual litigation to decide identical issues merely because Wireless is contemplating the class-action option. At the end of the day, Wireless’s claims are still arbitrable, if not immediately, then at the occurrence of a known contingency— including Wireless’s own choice. Allowing Communications’ claims to proceed could moot the arbitration between Wireless and Merrill Lynch and undermine Merrill Lynch’s bargained-for arbitration rights. Therefore, we conclude the trial court abused its discretion by refusing to stay Communications’ identical claims.

Accordingly, without hearing oral argument, see Tex.R.App. P. 52.8(c), we conditionally grant mandamus relief and direct the trial court to grant Merrill Lynch’s motion to stay Communications’ claims. We are confident that the court will comply, and the writ will issue only if it does not.

Justice LEHRMANN did not participate in the decision.

      . Relators are Merrill Lynch & Co., Inc., and Merrill Lynch, Pierce, Fenner & Smith Inc., collectively referred to herein as Merrill Lynch. Wireless and Communications are jointly referred to as MetroPCS.

      . We note that the NASD became the Financial Industry Regulation Authority (FINRA) in July 2007. See In re NEXT Fin. Group, Inc., 271 S.W.3d 263, 265 n. 1 (Tex.2008) (per curiam).

      . While not applicable here, we note that § 51.016 of the Civil Practice and Remedies Code was amended effective September 1, 2009 to allow an interlocutory appeal of an order denying a motion to compel arbitration under the FAA. See Tex. Civ. Prac. & Rem.Code § 51.016.

      . The parties dispute the effect of the federal court's dismissing the consolidated action. Merrill Lynch argues that the dismissal removes any barrier to arbitration presented by the class-action clause because the consolidated action is terminated; MetroPCS contends that the consolidated action survives while on appeal and the class-action clause is still in effect. For purposes of this proceeding, we assume that MetroPCS is correct. There is little authority on this point, but as this question does not affect the outcome here, we do not linger over it. We further assume, though the parties dispute the point, that Wireless is within the proposed class definition in the consolidated action.


source: Caselaw Access Project

author: Justice MAZZANT.

license: Public Domain

text:
    In re MERRILL LYNCH & CO., INC. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Relators.
    No. 05-09-00098-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 17, 2009.
    Charles A. Gall, Joel Randall Sharp, Eric R. Hail, Hunton & Williams, LLP, Dallas, TX, for Relator.
    Lewis T. LeClair, Robert E. Goodfriend, Anthony Garza, McKool Smith, Dallas, TX, for real parties in interest.
    Before Justices WRIGHT, RICHTER, and MAZZANT.
   MEMORANDUM OPINION

Opinion by

Justice MAZZANT.

Relator contends the trial judge erred in refusing to stay the claims of one of the plaintiffs in the underlying case. The facts and issues are well known to the parties, so we need not recount them herein. Based on the record before us, we conclude relator has not shown that the trial court abused its discretion. See In re Prudential, 148 S.W.3d 124, 135-36 (Tex.2003); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). Accordingly, we DENY relator’s petition for writ of mandamus.


author: Justice MORRIS.

text:
    Leslie and Julie BOLLING, Appellants, v. FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, City of Farmers Branch, and Dallas County, Appellees.
    No. 05-08-01566-CV.
    Court of Appeals of Texas, Dallas.
    June 25, 2010.
    Rehearing Overruled July 27, 2010.

      Leslie Bolling, Addison, TX, for Appellants.
    City Manager’s Office, Farmers Branch, TX, Bridget Moreno, Charles Adren Caldwell, Edward Lopez, Jr., Linebarger, Gog-gan, Blair and Sampson, L.L.P., Daniel K. Bearden, Dallas, TX, for Appellees.
    Before Justices MORRIS, FITZGERALD, and FRANCIS.
   OPINION

Opinion By

Justice MORRIS.

After the trial court rendered judgment against appellants Leslie Bolling and Julie Bolling for delinquent property taxes, they appealed. Representing themselves without an attorney, they filed an appellants’ brief. We notified them the brief was deficient and instructed them to file an amended brief that complied with the Texas Rules of Appellate Procedure. They filed an amended brief. Because their amended brief is also deficient and fails to comply with long-established briefing rales, we will dismiss their appeal.

In Texas, an individual who is a party to civil litigation has the right to represent himself at trial and on appeal. Tex.R. Civ. P. 7; Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex.1983) (orig.proeeed-ing). The right of self-representation (or being what is commonly called a pro se litigant), carries with it the responsibility to adhere to our rules of evidence and procedure, including our appellate rales of procedure if the party chooses to represent himself at the appeal level. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.1978); Strange v. Continental Cas. Co., 126 S.W.3d 676, 678 (Tex.App.-Dallas 2004, pet. denied). Courts regularly caution pro se litigants that they will not be treated differently than a party who is represented by a licensed attorney. See Mansfield, 573 S.W.2d at 184-85; In re N.E.B., 251 S.W.3d 211, 212 (TexApp.-Dallas 2008, no pet.).

In this case, our notice to appellants stated that their “failure to file an amended brief that complies with the Texas Rules of Appellate Procedure within ten days will result in dismissal of the appeal without further notice.” Our appellate rules have specific requirements for briefing. Tex.R.App. P. 38. These rules require appellants to state concisely the complaint they may have, provide understandable, succinct, and clear argument for why their complaint has merit in fact and in law, and cite and apply law that is applicable to the complaint being made along with record references that are appropriate. Tex.R.App. P. 38.1(f), (h), and (i). Only when we are provided with proper briefing may we discharge our responsibility to review the appeal and make a decision that disposes of the appeal one way or the other. We are not responsible for identifying possible trial court error. See Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928, 931 (Tex.App.-Houston [14th Dist.] 2008, no pet.). We are not responsible for searching the record for facts that may be favorable to a party’s position. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283-84 (Tex.1994); Strange, 126 S.W.3d at 678. And we are not responsible for doing the legal research that might support a party’s contentions. See Canton-Carter, 271 S.W.3d at 931-32. Were we to do so, even for a pro se litigant untrained in law, we would be abandoning our role as judges and become an advocate for that party. See Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.-El Paso 2007, no pet.).

When deciding whether an appellant’s brief is deficient, we do not adhere to any rigid rule about the form of a brief. Pro se litigants may not be versed in the form of briefing favored by seasoned appellate practitioners. We do, however, examine briefs for compliance with prescribed briefing rules, including specifically, in this case, rale 38.1. Tex. R.App. P. 38.1. And we examine every brief closely. If we can conclude a brief complies with the Texas Rules of Appellate Procedure, we submit the appeal for review and decision on the merits. If we cannot, we may dismiss the appeal as we are authorized to do. Tex.R.App. P. 42.3. In this ease, we conclude appellants, although given the opportunity, have failed to comply with our briefing rules.

To comply with rule 38.1(f), an appellant must articulate the issue we will be asked to decide. From our perspective, we must be able to discern what question of law we will be answering. If an appellant is unable to or does not articulate the question to be answered, then his brief fails at that point. If the issue is identified, then rule 38.1(i) calls for the brief to guide us through the appellant’s argument with clear and understandable statements of the contentions being made. If we must speculate or guess about what contentions are being made, then the brief fails. Importantly, statements of fact must be supported by direct references to the record that are precise in locating the fact asserted. If record references are not made or are inaccurate, misstated, or misleading, the brief fails. And, just as importantly, existing legal authority applicable to the facts and the questions we are called on to answer must be accurately cited. References to legal authority that have nothing to do with the issue to be decided are contrary to the requirement of rule 38.1(i). References to sweeping statements of general law are rarely appropriate. If we are not provided with existing legal authority that can be applied to the facts of the case, the brief fails.

The following is the entirety of appellants’ attempt to comply with rule 38.1(f) and (i), which they have labeled “Argument:”

Point 1: Plaintiffs attorney was notified prior service [CR Vol. 1 pages 99-102] of Defendants intent to depose by written questions. Plaintiff failed to respond to a properly served Subpoena Duces Te-cum — Deposition By Written Questions.
Many attempts made by the service to collect this reasonable testimony went silent. [Tr. Vol. 2 pages 9-19, Exhibits A, B, C, D] [CR Vol. 1 pages 176-178; 214, 256-259]. Defendants have a right to this information much of allegedly their own and therefore, sought to compel Plaintiffs answers.
Plaintiff sought to quash and protect itself. The Court denying the Defendants access and sustaining the Plaintiffs failure in this instance triggered a Due Process violation [CR Vol. 2 pages 374-375]. Furthermore, Interrogatories delivered by mail to Plaintiffs attorney were not answered [CR Vol. 1 pages 261-266] [CR Vol. 2 376-384, 376], although Plaintiffs attorney, Mr. Bearden said he never received them.
Point 2: Texas Prop. Tax Code § 33.47. [CR Vol. 2 pages 385-388] Presuming the statute valid, the only way to conclude that it is a valid statute is where the condition precedent is that there exists an agreement between the parties — a commercial nexus. The Plaintiff produced no document satisfying the Statute of Frauds, Tex. Prop. Code § 112 — that provides any commercial nexus, any agreement between the Plaintiff and the Defendant.
Therefore, if the statute upon which the Plaintiff relies is valid, then the Plaintiffs claim fails for lack of a commercial nexus and for failure to satisfy the Statute of Frauds.
Otherwise, if an agreement between the parties, a nexus, is not a condition precedent, that is necessarily read into this statute, then the statute itself fails on its face, for violation of the “takings clause,” Texas Constitution, Article I, Sec. 17 and of Due Process.
Point 3: Subject Matter Jurisdiction. The Fundamental reality. Everything about “this state” depends upon volun tary agreement. The very threshold en-trée into “this state” is voluntary agreement. Ashwander; Fed.R.Civ.P. 9(a). Transactions in “this state” are based upon voluntary use of 31 U.S.C. § 5103 items. Asserting a residence in “this state” is purely voluntary. Self-identification as a “taxpayer” is a purely voluntary commercial transaction.
Thus, compelled agreement is the exact antithesis of the very soul of “this state.” A coerced will is not evidence. The Law of Wills. §§ 5.7, 15.11. A coerced trust is not evidence. BogeRt §§ 42 at 434, 44 at 452 and n. 16. A coerced commercial transaction is not evidence. U.C.C. § 1-103. A coerced confession is not evidence. Escobedo; Miranda. The coercive environment vitiates the very “evidence” it purports to create. [.Burger King Corp. u] Rudzew-icz, 471 U.S. [462] at 486, 105 S.Ct. 2174 [85 L.Ed.2d 528 (1985)]; Ohralik; Bates. From the beginning the Appellant in many ways, have told Appellee “no” — they refuse to yield.

(emphasis in original).

Reading their “Argument” liberally, appellants attempt to present three issues. In “Point 1,” appellants possibly are complaining that their “due process” rights were violated by a discretionary act of the trial court in denying a discovery request. The record references made by appellants in “Point 1” do not identify any signed order denying them requested discovery. Moreover, appellants never describe what due process right they may be talking about and certainly never identify or apply any law to any fact that might support such a complaint or give a hint about what they refer to. In “Point 2,” we are presented with statements about the “commercial nexus” that appellants claim must exist before the property tax code has efficacy. The sole record reference in “Point 2” is to a copy of Leslie Bolling’s motion to dismiss, and it provides us no guidance. Arguably, appellants may be contending that a section of the property tax code cannot be applied to them because of the absence of a “commercial nexus,” which appears to be synonymous with a written agreement that they generally believe is required by the statute of frauds referred to in “Point 2.” Appellants may also be trying to claim a section of the property tax code is facially unconstitutional. But, again, they cite no legal authority to be applied to any fact that might illuminate what grievance appellants are referring to specifically or might support their belief that a written agreement must exist between them and the taxing authorities before taxes can be imposed. In “Point 3,” we face “The Fundamental Reality.” We can only speculate about what appellants mean by using that phrase. And we are not enlightened by reference to “The Law of Wills” or by cited law that is inapplicable to the facts of the case. There is no record reference in “Point 3.” Appellants seem to want to challenge the trial court’s subject matter jurisdiction. They fail to do so by any briefing that would even remotely suggest the trial court did not have jurisdiction to render its judgment. Without adequate briefing, their claim is nothing more than a personal opinion. As such, it is not entitled to judicial review.

Because they have failed to comply with the briefing requirements of our appellate rules after having been given the opportunity to do so, we dismiss appellants’ appeal.


author: Justice FITZGERALD.

text:
    DMC VALLEY RANCH, L.L.C., DMC Frisco, L.L.C., Marc A. Wilson, and Daniel P. McDonald, Appellants, v. HPSC, INC., Appellee.
    No. 05-08-01519-CV.
    Court of Appeals of Texas, Dallas.
    June 25, 2010.

      William L. Wolf, Craig P. Henderson, William L. Wolf, P.C., Dallas, TX, for Appellants.
    Chad Berry, Jones & Davis, L.L.P., Addison, TX, for Appellee.
    Before Justices MORRIS, FITZGERALD, and FRANCIS.
   OPINION

Opinion By

Justice FITZGERALD.

Appellee HPSC, Inc. sued appellants on certain loan transactions and obtained summary judgment. We reverse and remand.

I. BACKGROUND

A. Allegations

HPSC alleged the following facts in its live pleading. In November 2005, HPSC as lender and appellant DMC Valley Ranch, L.L.C. as borrower entered a finance agreement and security agreement. DMC Valley Ranch used the money to acquire equipment for a medical practice. It granted HPSC a security interest in all of its property and fixtures. Gregory Johnson and appellants Marc A. Wilson and Daniel P. McDonald executed a personal guaranty of DMC Valley Ranch’s obligations.

HPSC entered a similar transaction with appellant DMC Frisco in June 2006. HPSC as lender and DMC Frisco as borrower entered a finance agreement and security agreement, and DMC Frisco used the money to acquire equipment for a medical practice. It granted HPSC a security interest in all of its property and fixtures. Johnson, Wilson, and McDonald executed a personal guaranty of DMC Frisco’s obligations.

DMC Valley Ranch and DMC Frisco defaulted on their agreements.

B. Procedural history

HPSC sued appellants on the various agreements in December 2007, and they answered with a general denial. HPSC moved for summary judgment in March 2008. Appellants filed a response and amended their answer to add two counterclaims for declaratory judgment and one for attorneys’ fees under the declaratory-judgment statute. The court heard HPSC’s summary-judgment motion on April 28, 2008. The court did not rule on the summary-judgment in writing at that time.

On May 21, 2008, HPSC filed a motion for entry of final summary judgment, to which it attached additional affidavits. On June 13, 2008, it filed a supplemental motion for entry of final summary judgment, to which it attached another affidavit. On July 1, 2008, appellants filed their first supplemental answer and counterclaim in which they added four new counterclaims: breach of the duty of good faith and fair dealing, improper disposition of collateral, declaratory judgment as to the value of the collateral, and attorneys’ fees under Chapter 38 of the civil practice and remedies code. On that same date they also filed a response to HPSC’s motion for entry of final summary judgment. On July 21, 2008, HPSC filed a second supplemental motion for entry of final summary judgment, to which it attached additional summary-judgment evidence. Appellants filed a response to HPSC’s second supplemental motion on July 30, 2008.

The parties agree that the court held a hearing on HPSC’s motion for entry of final summary judgment on August 13, 2008. On that same day, the trial judge signed a final summary judgment in which it awarded HPSC damages, interest, and attorneys’ fees against appellants and ordered appellants to take nothing on their counterclaims. Appellants filed a motion for new trial, but the record contains no written order disposing of that motion. Appellants then perfected this appeal.

II. Analysis

Appellants raise four issues on appeal. In their first issue, they argue that the judgment is erroneous because HPSC did not move for summary judgment on appellants’ new counterclaims filed on July 1, 2008. In their second issue, they argue that the evidence raises a genuine fact issue as to the amount of damages. In their third issue, they argue that the judgment is erroneous in its award of attorneys’ fees because HPSC failed to segregate its fees and because the evidence did not support the trial court’s allocation of liability for the fees between DMC Valley Ranch and DMC Frisco. In their fourth issue, they argue that they were given inadequate notice of the second hearing in this matter.

A. Adequacy of notice

In their fourth issue, appellants argue that they received inadequate notice of the second hearing in this matter because HPSC served its second supplemental motion for entry of final judgment by fax on July 21, 2008, which was twenty-three days before the hearing date of August 13, 2008. Appellants argue that the rules entitled them to twenty-four days’ notice. See Tex.R. Civ. P. 166a(c) (requiring summary-judgment movant to give twenty-one days’ notice); Tex.R. Civ. P. 21a (requiring three additional days’ notice of hearing when opposing party is served by fax). We reject appellants’ argument.

Appellants’ argument that twenty-three days’ notice was insufficient depends on an assumption that HPSC’s second supplemental motion for entry of final summary judgment was itself a summary-judgment motion. That assumption is incorrect. HPSC filed only one summary-judgment motion, and it was heard on April 28, 2008. Afterwards, HPSC filed a motion for entry of final summary judgment and two supplements to that motion. In those three filings, HPSC presented no new summary-judgment grounds. Rather, in each filing HPSC asked the trial court to consider additional attached summary-judgment evidence in support of its pending motion for summary judgment. These requests were permissible, because “[a] court can allow evidence to be filed after the hearing on the motion and before summary judgment is rendered.” Beavers v. Goose Creek Consol. I.S.D., 884 S.W.2d 932, 935 (Tex.App.-Waco 1994, writ denied). Because HPSC’s three post-hearing filings sought only to supplement the summary-judgment evidence, and not to add additional summary-judgment grounds, they were not subject to the twenty-one-day notice provision of rule 166a(c). Cf. Sams v. N.L. Indus., Inc., 735 S.W.2d 486, 487-88 (TexApp.-Houston [1st Dist.] 1987, no writ) (holding movant’s post-hearing “reply” that added new summary-judgment grounds required new twenty-one-day notice period). No rule requires twenty-one days’ notice of a hearing of a motion for leave to file additional summary-judgment evidence, so the three-day rule applies. See Tex.R. Civ. P. 21 (setting forth general rule that a motion not presented during a hearing or trial must be served three days before the time specified for hearing). Appellants received more than three days’ notice of the August 13 hearing as to HPSC’s motion for entry of final summary judgment and both of its supplements.

Appellants have not shown that they received insufficient notice of the August 13 hearing. We reject the argument made under their fourth issue on appeal.

B. Counterclaims

On July 1, 2008, appellants filed a supplemental pleading in which they asserted four new counterclaims, in addition to the counterclaims they had pleaded before the April 28 summary-judgment hearing. In their first appellate issue, appellants argue that the trial court erred by rendering summary judgment on their new counterclaims because HPSC did not attack those counterclaims in its motion for summary judgment. HPSC responds that those counterclaims were not properly before the trial court because they were filed after the April 28, 2008 summary-judgment hearing.

A party may amend its pleadings without leave of court up to seven days before a summary-judgment hearing. Goswami v. Metro. Sav. & LoanAss’n, 751 S.W.2d 487, 490 (Tex.1988). If a summary-judgment nonmovant files an amended pleading after the deadline but before the hearing, leave of court is presumed if the summary judgment recites that the trial court examined the pleadings, there is no indication that the amended pleading was not considered, and the opposing party does not show surprise. Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 276 (Tex.1996). If a summary-judgment nonmovant files an amended pleading after the summary-judgment hearing but before the judgment is signed, there is no presumption that leave was granted; the record must affirmatively show that the trial court granted leave. See Tex.R. Civ. P. 166a(c) (pleadings will be considered if filed after summary-judgment hearing and before judgment “with permission of the court”); 9029 Gateway S. Joint Venture v. Eller Media Co., 159 S.W.3d 183, 187 (Tex. App.-El Paso 2004, no pet.) (“In this circumstance, we assume leave has been denied unless the record affirmatively reflects that the court granted leave.”); see also Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834, 841 (Tex.App.-Dallas 2008, no pet.). Failure to obtain leave waives the newly pleaded issues. Rivera, 262 S.W.3d at 841.

In this case, the record does not contain a separate order granting leave for appellants to file their First Supplemental Answer and Counterclaim, but the summary-judgment order recites:

After considering all of the pleadings, the motions, the responses, the replies, the evidence on file and the arguments of counsel, the Court hereby GRANTS Plaintiffs Motion for Summary Judgment against Defendants and Plaintiffs Motion for Entry of Final Summary Judgment Against Defendants.
It is further, ORDERED, ADJUDGED AND DECREED that Defendants DMC Frisco, L.L.C., DMC Valley Ranch, L.L.C., Marc A. Wilson, Daniel P. McDonald, and Gregory Johnson take nothing on their counterclaims....

(Emphasis added.) The question thus becomes whether this language shows that the trial court granted permission for the late filing. We conclude that it does. A . supplemental answer and counterclaim is a “pleading. See Tex.R. Civ. P. 45(a) (pleadings are “by petition and answer”); id. 97(b) (a pleading may state counterclaims against an opposing party).” Thus, by reciting that it considered “all of the pleadings” rather than all “timely filed” pleadings, the trial court indicated that it had considered appellants’ First Supplemental Answer and Counterclaim in the course of deciding the summary-judgment motion. Cf. Hussong v. Schivan’s Sales Enters., Inc., 896 S.W.2d 320, 323 (Tex.App.-Houston [1st Dist.] 1995, no writ) (trial court did not grant leave to file pleadings late where summary-judgment order stated that court considered “prior pleadings referenced in the motion for summary judgment”). Moreover, the trial court expressly adjudicated appellants’ counterclaims on the merits, decreeing that they should “take nothing on their counterclaims.” The court did not except appellants’ late-filed counterclaims from its judgment. We conclude that the language of the order as a whole shows that the trial court granted leave for appellants to file their new counterclaims and adjudicated them.

Although we have found no case precisely on point, our conclusion finds support in the case of Saldana v. City of Brownsville, No. 13-02-705-CV, 2004 WL 1933371 (TexApp.-Corpus Christi Aug. 31, 2004, no pet.) (mem. op.). The question presented in that case was whether the trial court had granted leave for the late filing of a summary-judgment response. The summary-judgment order in that case recited that the court had “reviewed” the response. 7d, 2004 WL 1933371, at *3. The court of appeals concluded that “the trial court allowed the late filing of appellant’s response because it acknowledged that the response had been reviewed in arriving at its opinion.” Id.; see also Timothy Patton, Summary Judgments in Texas: Practice, Procedure and Review § 2.02[2] (2009) (“The affirmative indication that the trial court considered the late response may consist of ... a written ruling incorporated into the summary judgment reciting that the response was considered[.]”). By the same reasoning, the trial court in this case indicated that it had allowed the late filing of appellants’ amended pleading by reciting that it had considered “all of the pleadings” in the case and by decreeing that appellants “take nothing on their counterclaims.” We conclude that appellants’ new counterclaims were properly before the trial court when it granted summary judgment.

HPSC, however, did not attack appellants’ new counterclaims in its summary-judgment motion. The trial court errs if it grants summary judgment on a claim not addressed in the summary-judgment motion. Chessher v. Siv. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983) (per curiam); Roehrs v. FSI Holdings, Inc., 246 S.W.3d 796, 810 (Tex.App.-Dallas 2008, pet. denied). We reverse the summary judgment to the extent the trial court ruled on appellants’ new counterclaims pleaded in their First Supplemental Answer and Counterclaim.

C. Value of the collateral

In their second issue, appellants argue that the evidence raises a genuine issue of material fact as to the amount of damages recoverable by HPSC. Specifically, appellants argue that the evidence raises a genuine issue of material fact as to the value of the collateral, which is an offset to their indebtedness. We must reverse unless the evidence conclusively established the amount of HPSC’s damages. See U.S. Fire Ins. Co. v. Scottsdale Ins. Co., 264 S.W.3d 160, 165 (Tex.App.-Dallas 2008, no pet.). We must take the evidence favorable to the nonmovants as true and draw every reasonable inference from the evidence in favor of the nonmovants. Id.

Appellants do not dispute that HPSC proved that DMC Valley Ranch and its guarantors owed HPSC $95,812.10 and that DMC Frisco and its guarantors owed HPSC $454,284.57. The trial court rendered judgment against DMC Valley Ranch and its guarantors in the amount of $65,812.10, thus giving them an offset of $30,000. The trial court rendered judgment against DMC Frisco and its guarantors in the amount of $392,693.57, thus giving them an offset of $61,591. The two offsets totaled $91,591. Appellants contend that HPSC’s evidence did not conclusively establish the correctness of this total figure, and alternatively that their own summary-judgment evidence raised a genuine issue of material fact regardless of the quality of HPSC’s evidence.

We conclude that appellants’ summary-judgment evidence raised a genuine issue of material fact as the amount of the offset that appellants were entitled to, even assuming HPSC carried its initial burden on that issue with evidence establishing an offset amount of $91,591. Appellants rely on the affidavit of expert witness Jim Townsend, who testified as follows:

Arthur Lloyd LLC [Townsend’s company] was asked to appraise four (4) laser systems — one Medlite C6 system and three Solera systems. Two of the systems we appraised- — the Medlite, serial number MC6-2106 and the Solera system, serial number TT3011 — are included on Mr. Mullen’ June 30, 2008 asset listing. The other two Solera systems we appraised may or may not be included on Mr. Mullen’s list, as we were not able to match up the assets by serial number. The descriptions on Mr. Mullen’s list, [sic] are similar to the descriptions we were provided.

Then he engaged in certain assumptions to reach a higher range than HPSC’s appraiser did:

If we assume that the four lasers we appraised are in fact four of the five lasers on Mr. Mullen’s list, and we add Mr. Mullen’s values for the assets we did not appraise, including the fifth laser on his list, then our value conclusion would total a range between $104,541 and $110,541, depending on whether we assume the low or high end of Mr. Mullen’s value ranges.

On appeal, HPSC raises several complaints about the Townsend affidavit: lack of personal knowledge, lack of experience with the particular kind of medical equipment at issue, failure to evaluate all of the medical equipment at issue, and assumptions not based on fact. Although HPSC made written objections in the trial court and asserts on appeal that the trial court sustained those objections, the record contains no written rulings on the objections. See Mitchell v. Baylor Univ. Med. Ctr., 109 S.W.Sd 838, 842 (Tex.App.-Dallas 2003, no pet.) (“Evidence that has been objected to remains part of the summary judgment proof unless an order sustaining the objection is reduced to writing, signed, and entered of record.”). Nor does the record reflect an implicit ruling on HPSC’s objections. See Duncan-Hubert v. Mitchell, 310 S.W.3d 92, 100 (Tex.App.-Dallas 2010, no pet. h.) (holding that mere granting of summary-judgment motion did not implicitly rule on movant’s objections to nonmov-ant’s evidence). Thus, HPSC may not now attack defects of form in the affidavit, but it may challenge defects in its substance. See Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex.App.-Dallas 2006, no pet.).

HPSC’s objection that Townsend lacked personal knowledge of the matters set forth in his affidavit is an objection to the form of the affidavit, so that objection is waived. See Cooper v. Circle Ten Council Boy Scouts of Am,., 254 S.W.3d 689, 697 (Tex.App.-Dallas 2008, no pet.). We construe HPSC’s objection that Townsend lacked experience with the particular kind of equipment at issue as an attack on his qualifications as an expert. This too is an objection to the form of the affidavit, so it is waived. See Duncan-Hubert, 310 S.W.3d at 105.

Next, HPSC objects that Townsend did not evaluate and appraise all of the equipment that Mullen did when he performed his appraisal for HPSC. This is arguably an objection that Townsend’s affidavit is speculative on its face, which would be a defect of substance that HPSC may raise for the first time on appeal. Id. at 103. We conclude that Townsend’s affidavit is not speculative on its face. “Expert testimony is considered ‘conclusory or speculative’ when it has no factual substantiation in the record.” Beaumont v. Bas-ham, 205 S.W.3d 608, 621 (Tex.App.-Waco 2006, pet. denied). In his affidavit, Townsend acknowledged that he did not examine all of the equipment listed in Mullen’s appraisal, but he did not speculate about the value of the equipment he did not examine. Rather, he accepted Mullen’s valuation opinions as to that equipment. Mullen’s affidavit establishes that he inventoried, analyzed, and appraised the medical equipment in question. Thus, Townsend’s opinions as to the equipment he did not personally examine are supported by facts substantiated in the record by HPSC’s own expert.

Finally, HPSC objects that Townsend made assumptions that were insufficiently supported by the facts, apparently because Townsend could not match two of the four lasers he appraised to Mullen’s appraisal with certainty. It is not clear whether this objection goes to the form or the substance of Townsend’s affidavit, but we reject it even assuming it attacks the affidavit’s substance. Townsend testified that the two lasers were similar to the descriptions provided by Mullen. Although this testimony is not definitive, it is sufficient to permit an inference that Townsend appraised lasers that were substantially similar to the ones that Mullen appraised. “The weakness of facts in support of an expert’s opinion generally goes to the weight of the testimony rather than its admissibility.” LMC Complete Auto., Inc. v. Burke, 229 S.W.3d 469, 478 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).

We conclude that Townsend’s affidavit raises a genuine issue of material fact as to the value of the collateral and the proper offset. The trial court erred by granting final summary judgment as to damages.

D. Attorneys’ fees

The trial court awarded attorneys’ fees to HPSC as follows:

It is further ORDERED, ADJUDGED AND DECREED that Plaintiff HPSC, Inc. have and recover of and from Defendants DMC Frisco, L.L.C., DMC Valley Ranch, L.L.C., Marc A. Wilson, Daniel P. McDonald and Gregory Johnson reasonable and necessary attorneys’ fees in the amount of [$23,373.50]. Such fees will be apportioned among the defendants as follows: The attorney’s fees above will be allocated 14% to DMC Valley Ranch, L.L.C. and 86% to DMC Frisco, L.L.C.

The record does not disclose the basis for the trial court’s 14%/86% allocation of the fees, but those percentages match the DMC entities’ relative shares of the total damages awarded. The trial court also conditionally awarded various amounts to HPSC as appellate attorneys’ fees. Appellants argue that fee award must be reversed because HPSC did not put on evidence allocating its attorneys’ fees among its claims against the various defendants, especially DMC Valley Ranch and DMC Frisco. HPSC responds that it was not required to segregate its fees because it sued all of the defendants for essentially the same causes of action involving the same facts and elements.

We agree with appellants. “A party seeking attorney fees has a duty to segregate nonrecoverable fees from recoverable fees, and to segregate the fees owed by different parties.” French v. Moore, 169 S.W.3d 1, 17 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (emphasis added); accord City of Austin v. Roberson, No. 13-06-218-CV, 2008 WL 802315, at *3 (Tex. App.-Corpus Christi March 27, 2008, no pet.) (mem. op.) (“Generally, attorney’s fees that are attributable to separate defendants and separate causes of action must be segregated.”); see also Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10-11 (Tex.1991) (if some defendants settle, remaining defendants may not be assessed fees attributable to settling defendants). HPSC sued DMC Valley Ranch and DMC Frisco on separate finance agreements. It sued the other appellants on separate guaranty agreements. Thus, HPSC had to prove different facts to recover against DMC Valley Ranch from those it had to prove against DMC Frisco. It cannot recover the fees spent to prosecute its claims against DMC Valley Ranch from DMC Frisco, and vice versa. To recover against the guarantors, HPSC had to prove the underlying liabilities plus the additional facts necessary to establish the guaranty agreements, but it cannot recover the cost of developing those additional guaranty-claim facts from the primary ob-ligors. Instead of segregating its fees among the various defendants or explaining why segregation should not be required, HPSC put on evidence only of its total attorneys’ fees expended in the case as a whole. This was improper. See gen erally Tony Güilo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex.2006). Moreover, no evidence supports the trial court’s allocation of fees between DMC Valley Ranch and DMC Frisco.

We conclude that HPSC’s proof did not conclusively prove the facts necessary to support the trial court’s awards of attorneys’ fees, so those awards must be reversed.

III. Disposition

We reverse the trial court’s judgment to the extent the court ordered appellants to take nothing on the new counterclaims they pleaded in their first supplemental answer and counterclaim. We also reverse the trial court’s awards of damages and attorneys’ fees against appellants. We affirm the remainder of the judgment and remand for further proceedings consistent with this opinion.

      . HPSC also sued Gregory Johnson. The final judgment awarded HPSC relief against Johnson and appellants, but Johnson did not appeal. Accordingly, we do not further discuss the proceedings as they related to him.

      . Rhey Mullen was HPSC's appraiser of the collateral. His affidavit was attached to HPSC’s second supplemental motion for entry of final summary judgment, and he swore that the value of the collateral was in the range of $67,951 to $91,591.

      . The italicized language was handwritten.


author: Justice MOSELEY.

text:
    In re Craig WATKINS, Criminal District Attorney of Dallas County, Texas, Relator.
    No. 05-10-00597-CV.
    Court of Appeals of Texas, Dallas.
    June 28, 2010.
    Michael R. Casillas, Dallas District Attorney, Dallas, TX, for Relator.
    L. Charles Humphreys, Humphreys & Peterson Law Firm, PLLC, Garland, TX, Brian W. Portugal, Dallas County Public Defender’s Office, Dallas, TX, for Real Party In Interest.
    Before Justices MOSELEY, FRANCIS, and FILLMORE.
   OPINION NUNC PRO TUNC

Opinion by

Justice MOSELEY.

Relator filed this mandamus proceeding after the trial court entered an order granting real party in interest deferred adjudication on a charge of driving while intoxicated. We conclude the trial court violated a ministerial duty in doing so, and that relator has no adequate remedy at law. Accordingly, we conditionally grant the petition.

Mandamus is appropriate in a criminal case if the relator shows that he has no other adequate legal remedy and the act sought to be compelled is purely ministerial. State of Tex. ex rel. Hill v. Court of Appeals for the Fifth Dist., 67 S.W.3d 177, 180-81 (Tex.Crim.App.2001). A “ministerial act is one which is accomplished without the exercise of discretion or judgment.” State of Tex. ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex.Crim.App.2001). In this case, Texas law is clear that a person charged with driving while intoxicated is not eligible for deferred adjudication. See Tex.Code Crim. Proo. Ann. art. 42.12 § 5(d)(1)(A) (Vernon Supp.2009) (prohibiting deferred adjudication for anyone charged with an offense under sections 49.04 of the penal code); Tex. Penal Code Ann. § 49.04 (Vernon 2003) (setting out the elements of driving while intoxicated). The trial court thus had no discretion to grant deferred adjudication.

Further, relator has no adequate remedy at law, because the state cannot appeal a grant of deferred adjudication. See State v. Ross, 953 S.W.2d 748, 750 (Tex.Crim.App.1997) (holding that state could not appeal lack of deadly weapon finding because it was not part of sentence, explaining that sentence “only includes that part of the judgment ordering that the punishment be carried into execution in the manner prescribed by law”) (internal quotation omitted); see also Ex parte Williams, 65 S.W.3d 656, 657 (Tex.Crim. App.2001) (granting of community supervision could not be addressed by rule relating to illegal sentences, because “community supervision is not a sentence or even part of a sentence”) (internal quotation omitted); State v. Hamilton, No. 05-97-00233-CR, 1997 WL 537717, at *5 (Tex. App.-Dallas Sept. 3, 1997, no pet.) (not designated for publication) (allowing appeal of deferred adjudication prior to Ross and Williams, but noting that mandamus was also a possible remedy). Relators have therefore met the second requirement to obtain mandamus relief.

Accordingly, we conditionally grant the relator’s petition for writ of mandamus. A writ will issue only in the event the trial court fails to vacate its April 30, 2010, “Order of Deferred Adjudication.”


author: WILLIAM J. BOYCE, Justice.

text:
    Christopher Connley DAVIS, Appellant v. The STATE of Texas, Appellee.
    No. 14-09-00192-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 29, 2010.

      Joseph W. Varela, Houston, for appellant.
    Michelle R. Townsend, Houston, for the State.
    Panel consists of Justices FROST, BOYCE, and SULLIVAN.
   OPINION

WILLIAM J. BOYCE, Justice.

A jury found appellant Christopher Connley Davis guilty of aggravated robbery and assessed his punishment at ten years’ confinement. Appellant appeals from this first degree felony conviction, and we affirm.

Background

Around 11:30 p.m. on April 20, 2008, complainant Jonathan Diaz went to a nearby store to purchase diapers for his daughter. When he returned to his apartment complex, the complainant felt uneasy when he noticed a man sitting in the bushes. Complainant observed the man in his rear view mirror getting out of the bushes and then walking past the passenger side of complainant’s vehicle. As the complainant exited his car, the man stopped walking, turned around, reached under his shirt, pulled out a gun, and pointed it at the complainant. The complainant heard the gunman cock his gun and state, “You know what this is. Give me what you got.” The complainant gave the gunman his money clip, cell phone, and keys. The gunman asked the complainant for cash, but the complainant told the gunman that he did not have any cash.

Appellant, also holding a gun in his hand, ran up to the gunman and asked him if he had retrieved any cash from the complainant. When the gunman told appellant that the complainant did not have any cash, appellant stated, “I feel deceived -I am going to shoot him.” Appellant noticed that the complainant was staring at him from this close distance, so appellant covered his face with his t-shirt and told the complainant to stop looking at him. Appellant kept telling the other gunman that he would shoot the complainant and that he did not care.

The gunman tried to convince appellant not to shoot the complainant. The gunman looked at the diaper box the complainant had purchased and told appellant, “[N]o, no let’s not do it. There’s no cash on him. He don’t have anything. Let’s just go. He is [sic] probably got a kid.” The complainant looked at appellant — who was still pointing a gun at the complainant — and offered to let appellant search him. Appellant then searched the complainant. When appellant could not find any cash on the complainant, he kept the complainant’s cell phone but threw away the complainant’s keys. Appellant instructed the complainant to look down on the ground and threatened to shoot the complainant if he looked up. Appellant and the gunman ran away. The complainant called the police.

The complainant later identified appellant as one of the robbers on a photo spread; the complainant confirmed he was one hundred percent sure appellant robbed him. The complainant also identified appellant at trial, testifying he had “no doubt at all” that appellant robbed him. A jury found appellant guilty of aggravated robbery and assessed his punishment at ten years’ confinement. Appellant timely appealed, raising six issues.

Analysis

I. Voir Dire

In his first issue, appellant argues that the trial court “erred in refusing a proper question on jury voir dire.” The State contends that the trial court properly refused the question because it was an improper commitment question.

The trial court has broad discretion over the process of selecting a jury. Sells v. State, 121 S.W.3d 748, 755 (Tex.Crim.App.2003) (en banc). We will not disturb the trial court’s ruling on the propriety of a particular question during voir dire absent an abuse of discretion. Id.

A voir dire question is proper if it is crafted to uncover a prospective juror’s preexisting prejudice or bias on an issue applicable to the case. Sanchez v. State, 165 S.W.3d 707, 712 (Tex.Crim.App. 2005) (en banc). A commitment question is one that commits a prospective juror to resolve or to refrain from resolving an issue a certain way after learning of a particular fact. Lydia v. State, 109 S.W.3d 495, 498 (Tex.Crim.App.2003) (citing Stan-defer v. State, 59 S.W.3d 177, 179 (Tex.Crim.App.2001)). A voir dire question becomes an improper commitment question when it is intended to create a bias or prejudice in a venire member before the prospective juror has heard the evidence. Sanchez, 165 S.W.3d at 712.

To determine whether a question is an improper commitment question, we consider whether the question (1) is a commitment question; and (2) includes only those facts that lead to a valid challenge for cause. Standefer v. State, 59 S.W.3d 177, 179-82 (Tex.Crim.App.2001). Accordingly, a commitment question is improper when (1) the law does not require the commitment, such that a juror would not be disqualified for cause by being influenced by a particular fact or by having a particular attitude or opinion; or (2) it also includes facts in addition to those necessary to establish a challenge for cause. Sanchez, 165 S.W.3d at 712.

In this case, appellant’s trial counsel inquired, “Let’s talk about factors in a section of the sentence in a case of aggravated robbery with a deadly weapon, what factors do y’all think are important?” This question, although open-ended, is a commitment question because it “asks the prospective juror[s] to set hypothetical parameters” for their decision-making. See Standefer, 59 S.W.3d at 180 (question asking “What circumstances in your opinion warrant the imposition of the death penalty?” was a commitment question).

Trial counsel’s commitment question was improper because the law does not require a commitment. See Sells, 121 S.W.3d at 757-58; Standefer, 59 S.W.3d at 181-82. A “prospective juror is not challengeable for cause simply because he does not consider a particular type of evidence to be mitigating.” Standefer, 59 S.W.3d at 181. Whether a juror considers a particular type of evidence to be mitigating is therefore not a proper inquiry. Id. at 181-82; see also Sells, 121 S.W.3d at 757-58. Trial counsel’s question was an improper commitment question, and the trial court acted within its discretion by refusing to allow trial counsel to ask it. See Sells, 121 S.W.3d at 757-58; Standefer, 59 S.W.3d at 181.

We overrule appellant’s first issue.

II. Admission of Evidence During Punishment Phase

In his second through sixth issues, appellant contends the trial court erred by allowing the State to introduce evidence of (1) another aggravated robbery; (2) appellant’s participation in the spray-painting of graffiti depicting gang symbols; (3) appellant’s poor grades in high school; (4) appellant’s school disciplinary records; and (5) appellant’s jail disciplinary record. We address each issue in turn.

We review the admission of evidence of extraneous misconduct or bad acts under an abuse of discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim. App.1996) (en banc); Brooks v. State, 76 S.W.3d 426, 435 (TexApp.-Houston [14th Dist.] 2002, no pet.).

A. Aggravated Robbery

In his second issue, appellant contends that the trial court “erred in admitting an extraneous robbery during the punishment phase” because the complainant’s identification of appellant as the robber was too tentative. Appellant argues that the trial court erred in its initial determination that a jury reasonably could find beyond a reasonable doubt that appellant committed the extraneous offense against the complainant in that robbery.

The admissibility of evidence at punishment is largely guided by article 37.07 of the Texas Code of Criminal Procedure. Haley v. State, 173 S.W.3d 510, 513 (Tex. Crim.App.2005). Under section 3 of article 37.07, the State may offer into evidence any matter the trial court deems relevant to sentencing. Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a) (Vernon 2009). The State may introduce evidence of an extraneous offense provided that it is proven beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible. Id.

Evidence is relevant to sentencing within the meaning of the statute if the evidence is “helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.” Rodriguez v. Sta.te, 203 S.W.3d 837, 842 (Tex.Crim.App.2006). The trial court “is deemed the authority on the threshold issue of admissibility of relevant evidence during the punishment phase of a trial.” Mitchell, 931 S.W.2d at 953. Unless the extraneous offense evidence is such that the jury can rationally find the defendant criminally responsible for the extraneous offense, the trial court is not permitted to admit it at a punishment hearing. Smith v. State, 227 S.W.3d 753, 759-60 (Tex. Crim.App.2007). Whether an extraneous offense was established beyond a reasonable doubt, however, is a question of fact for the jury rather than a preliminary question of admissibility for the trial court. Mitchell, 931 S.W.2d at 953.

Outside the jury’s presence, the State announced its intention to call the extraneous-offense complainant Jose Vasquez as a witness regarding another aggravated robbery appellant allegedly committed. Appellant objected to Vasquez testifying because he “cannot identify ... [appellant] as the one who robbed him.” Appellant also stated, “[0]ur position is that until the State can meet the threshold to convince you that they can prove this extraneous beyond a reasonable doubt, then it shouldn’t come into the jury at all.” The State made the following oral proffer:

Judge, the State proffers that the defendant committed an aggravated robbery against Jose Vasquez and that Jose Vasquez will say when shown a photospread including the defendant’s picture picked out the defendant and notated that he was pretty sure that that was the person that robbed him with a gun.
* * *
After ... [Jose Vasquez] picked the defendant out of that photospread that officer additionally showed him about four or five other photospreads including multiple potential suspects and he indicated to that officer that no, it was the guy in the first photospread that I identified meaning the defendant in this case.

Appellant again objected and stated, “The juiy cannot find rationally beyond a reasonable doubt that ... [appellant] is involved in that [robbery] based on tentative identification.” The trial court overruled appellant’s objection and stated, “As to the State’s proffer of the evidence regarding Mr. Vasquez, the Vasquez robbery, the Court finds that the — and in making it a threshold examination of the admissibility of that evidence, the Court finds that the State has done so in its proffer.”

The State’s proffer shows that Vasquez would testify before the jury that (1) an aggravated robbery was committed against him; (2) he initially identified appellant, although not unequivocally, as the person who committed the aggravated robbery against him using a gun; and (3) after viewing four or five additional photo spreads of multiple potential suspects, he positively identified appellant as the person who robbed him.

Because a jury reasonably could credit Vasquez’s testimony that an aggravated robbery was committed against him, and because he positively identified appellant as the robber, the trial court did not abuse its discretion by concluding that the testimony described in the State’s proffer would enable a rational jury to find beyond a reasonable doubt that appellant is criminally responsible for committing the extraneous offense. See Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982) (en banc) (a complainant’s credible identification of the defendant constitutes legally sufficient evidence to support a jury verdict); Walker v. State, 180 S.W.3d 829, 832-33 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (a jury could rationally find that appellant committed aggravated robbery based on an eyewitness’s positive identification of appellant as the one who committed the robbery, even though complainant was unable to identify appellant as the robber); Davis v. State, 177 S.W.3d 355, 358-59 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (en banc) (a jury could rationally find that appellant committed aggravated robbery based only on the complainant’s positive identification of appellant as the one who committed the offense); Johnson v. State, 176 S.W.3d 74, 77 (Tex.App.-Houston [1st Dist.] 2004, pet. refd) (a jury could rationally find that appellant committed aggravated robbery based on the complainant’s positive identification of appellant and testimony that appellant committed the offense).

Additionally, “[e]ven a total failure ... to identify the defendant on one occasion goes only to the weight of that person’s testimony, not its admissibility.” Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986) (en banc). Based on the State’s proffer of evidence, the trial court did not err in concluding that a rational trier of fact could find beyond a reasonable doubt that appellant committed the extraneous robbery. We conclude that the trial court acted within its discretion in allowing the evidence of the extraneous aggravated robbery to be introduced before the jury.

We overrule appellant’s second issue.

B. Vandalism Involving Graffiti Depicting Gang Signs

In his third issue, appellant argues that the trial court abused its discretion by allowing the State to introduce evidence “that Appellant spray painted graffiti [depicting gang signs] on the walls of an apartment” without providing appellant notice as required by article 37.07.

Article 37.07 provides, in part, that upon a finding of guilt, evidence may be offered by either party “as to any matter” the trial court “deems relevant to sentencing.” Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a). This evidence includes “the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried,” and “any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible.” Id. Article 37.07 section 3(g) provides for admission of extraneous offense evidence if the State gives timely notice of its intent to use that evidence in the punishment phase of trial. Id. art. 37.07 § 3(g) (Vernon 2009).

Appellant contends that the State did not provide sufficient notice of its intent to introduce evidence that appellant spray-painted graffiti in a vacant apartment, and that the State’s open-file policy does not constitute sufficient notice to comply with article 37.07’s notice requirement. The State responds that it provided sufficient notice four months prior to trial in its “initial notice of intention to use extraneous offenses and prior conviction” and “specifically disclosed its intention to ‘introduce evidence of the Defendant’s membership, affiliation, and/or association] with the street gang, Tree Top Pirus, and opinion evidence relating to the purpose, characteristics, and activity of said street gang in Harris County, Texas.’ ” However, this notice does not indicate that the State intended to introduce evidence “that Appellant spray painted graffiti [depicting gang signs] on the walls of an apartment.”

Assuming for the sake of argument that due to lack of notice, the trial court erred in admitting evidence that appellant was involved in spray-painting gang signs, any such error was harmless. Error in admitting evidence with insufficient notice under article 37.07, section 3(g) is nonconstitu-tional error. Apolinar v. State, 106 S.W.3d 407, 414 (Tex.App.-Houston [1st Dist.] 2003), ajfd on other grounds, 155 S.W.3d 184 (Tex.Crim.App.2005); Roethel v. State, 80 S.W.3d 276, 281 (Tex.App.Austin 2002, no pet.); see McDonald v. State, 179 S.W.3d 571, 578 (Tex.Crim.App. 2005). A nonconstitutional harm analysis for statutory violations is performed under Texas Rule of Appellate Procedure 44.2(b). See Tex.R.App. P. 44.2(b); Gray v. State, 159 S.W.3d 95, 97-98 (Tex.Crim.App.2005).

To assess nonconstitutional errors, we examine whether the purpose of the statute or rule violated was thwarted by the error. Roethel, 80 S.W.3d at 281 (citing Ford v. State, 73 S.W.3d 923, 925-26 (Tex.Crim.App.2002)). The purpose of article 37.07, section 3(g) is to avoid unfair surprise and to enable a defendant to prepare to answer the extraneous offense evidence. Apolinar, 106 S.W.3d at 414-15; Roethel, 80 S.W.3d at 282; Nance v. State, 946 S.W.2d 490, 493 (Tex.App.-Fort Worth 1997, pet. refd). This analysis requires examining the record to determine whether the deficient notice resulted from prose-cutorial bad faith or prevented the defendant from preparing for trial. Roethel, 80 S.W.3d at 282. In determining the latter, appellate courts look at whether the defendant was surprised by the substance of the testimony and whether that affected his ability to prepare cross-examination or mitigating evidence. Id.

Nothing in the record indicates that the State acted in bad faith when it failed to comply with article 37.07’s notice requirement. There is no indication that the lack of sufficient notice was intended to mislead appellant or prevent him from preparing a defense.

Although appellant’s counsel claimed surprise and stated he would ask for a continuance if the State introduced evidence that appellant spray-painted gang signs on the walls of a vacant apartment, his claim of surprise was questionable in light of his admission that the State provided him with an offense report about the aggravated robbery of S.K. Rahmad — a pizza delivery man who had been robbed after being called to the spray-painted vacant apartment. Appellant’s counsel acknowledged that the offense report contained information that graffiti had been sprayed on the walls of the vacant apartment at which the alleged Rahmad robbery took place. Appellant’s counsel received written notice of the State’s intent to introduce the aggravated robbery of Rahmad as an extraneous offense four months before trial. Appellant’s counsel also acknowledged that the State had shown him the Rahmad robbery offense report containing information regarding the graffiti at issue.

During the punishment phase, the State called Officer Silva; he testified that he was called to an apartment complex and was then directed to a vacant apartment that was spray-painted with gang-related signs. Officer Silva testified that State’s exhibits 20 through 36 were photos that accurately depicted the spray-painted apartment. Officer Silva also testified that he saw spray paint cans in the apartment and that he called the fingerprint division to determine if fingerprints could be lifted from the cans. Appellant’s counsel chose not to cross-examine Officer Silva. Appellant’s counsel also chose not to cross-examine Officer Truhán, who testified that she was able to lift fingerprints off the cans found in the vacant apartment.

The State called a latent print laboratory administrator, Officer Saldivar, who analyzed the fingerprints on the recovered cans and determined that one of the fingerprints matched appellant’s fingerprint. Appellant’s counsel effectively cross-examined Officer Saldivar, eliciting that Officer Saldivar “can’t tell by looking at a fingerprint on an object when that particular fingerprint was put on” the object.

Appellant does not point to anything in the record that would support the notion that his ability to mount an adequate defense was hindered by the lack of notice; nor does appellant argue on appeal that his ability to prepare cross-examination or mitigating evidence was affected by the lack of notice. Appellant has failed to make any showing of how his defense strategy might have been different had the State notified him of its intent to introduce evidence of the spray-painted gang signs during punishment, or how his defense was “injuriously” affected by the State’s lack of notice. See Hernandez v. State, 176 S.W.3d 821, 825-26 (Tex.Crim.App.2005).

Because the record does not demonstrate that the lack of notice in this case was the result of prosecutorial bad faith, and because the record shows that the lack of notice did not impair appellant’s ability to prepare for the graffiti evidence or otherwise present a defense, we conclude that the lack of notice did not affect appellant’s substantial rights.

We overrule appellant’s third issue.

C. Poor Grades

In his fourth issue, appellant argues that the trial court abused its discretion by allowing the State to introduce evidence of the poor grades he received in school because bad grades do not establish that appellant has a bad character.

Article 37.07 provides, in part, that upon a finding of guilt, evidence may be offered by either party “as to any matter” the trial court “deems relevant to sentencing,” and the evidence is not limited to “the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried.” Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a).

Although it is questionable that appellant’s poor grades were relevant to determining an appropriate punishment for appellant, any asserted error in admitting evidence of appellant’s grades was not harmful. The erroneous admission of evidence is not constitutional error. Ivey v. State, 250 S.W.3d 121, 126 (Tex.App.-Austin 2007), affd, 277 S.W.3d 43 (Tex.Crim.App.2009). We use Texas Rule of Appellate Procedure 44.2(b) to determine whether any alleged error warrants reversal. Id. Rule 44.2(b) provides that any non-constitutional “error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Tex.RApp. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. Haley, 173 S.W.3d at 518. In assessing the likelihood that the jury’s verdict was adversely affected by the error, we consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration and the nature of the evidence supporting the verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000).

During the guilt-innocence phase of the trial, the jury heard the complainant testify that appellant was angry and wanted to shoot him when he found out that the complainant did not have any cash. The complainant testified that appellant stated, “I feel deceived.... I am going to shoot him.” The complainant testified that appellant kept telling the other gunman that he would shoot the complainant and that he did not care. The complainant also testified that the other gunman convinced appellant not to shoot the complainant.

During the punishment phase, the complainant’s apartment complex manager, Kimberly Vanover, testified that she observed appellant break into an occupied apartment two weeks earlier. Vanover testified that she tried to call the apartment complex security officer, but appellant “snatched” her phone and ran away with it.

During the punishment phase, appellant asked the jury to consider giving him probation. However, when his trial counsel asked appellant to “tell the jury why they should consider giving” him probation, appellant responded, “Cause I feel it really if I was to go to prison, it wouldn’t make my [sic] better. And I feel like when you get convicted of a crime, you suppose to learn from it.... But if I was to go to prison, I don’t even — I ain’t going to learn from it. I am going to [be] more mad than anything.”

Appellant also admitted having discipline problems in school; he “was messing up bad ... was getting into trouble, hanging out with the wrong people.” Appellant testified that his school discipline record included: after school detentions, in-school restrictions, and short-term suspensions for disruptive behavior; in-school restriction for breaching his school contract; after school detention for tardiness; in-school restriction for theft; short-term suspension for fighting; warning for harassment of a female student; and long-term suspension for possession of drugs.

Appellant testified that he was suspended for one semester because he was caught with marijuana in school. He testified that he “just use[d] marijuana” every other day but that his mother did not know because he would smoke outside. Appellant testified that he “got caught with a whole bunch of’ Xanax pills in school. He also testified that he was expelled from school in January 2008 and sent to an alternative school. Appellant’s step-father confirmed that appellant got “in trouble for drugs;” he also testified that appellant had a prior drug conviction.

Appellant showed no remorse for his actions. Instead, appellant claimed that the complainant lied when he testified that appellant had pointed a gun at him and had threatened to shoot him. When the State asked appellant, “So, even though they found you guilty, you don’t believe that you were guilty; and you are telling them that they were wrong?[,]” appellant replied, “I know I wasn’t guilty.” Also, in response to the State’s question whether appellant agreed that probation would not be appropriate punishment for an aggravated robbery, appellant replied, “If you did the crime, I mean, you shouldn’t be afraid to go do the time basically, so.”

Lastly, the punishment range for an aggravated robbery is five to 99 years’ confinement. Tex. Penal Code Ann. §§ 12.32(a); 29.03(b) (Vernon 2003). The jury assessed appellant’s punishment at ten years’ confinement — the low end of the punishment range.

Based on the record before the court, appellant cannot demonstrate that he received a longer sentence or was harmed by the admission of his poor grades. Therefore, any error in the trial court’s admission of this evidence was not reversible error.

We overrule appellant’s fourth issue.

D. School Disciplinary Record

In his fifth issue, appellant contends that the trial court erroneously allowed the State to introduce appellant’s school disciplinary record during the punishment phase of the trial because he was not given notice of the State’s “intent to introduce evidence that [a]ppellant had bad grades or school discipline problems” as required by Code of Criminal Procedure article 37.07.

Contrary to appellant’s contention, the record before the court establishes that the State filed the required article 37.07 notice approximately four months before trial. The notice disclosed the State’s intention to introduce evidence that appellant “was expelled from Westside High School in January 2008 for fighting, skipping classes, and disrupting classes,” and that appellant “failed English 1A, English 2A, Spanish 1A, World History A, and Introduction to Physics <& Chemistry A at Westside High School for the 2006-2007 school year.” Therefore, appellant’s fifth issue is without merit.

We overrule appellant’s fifth issue.

E. Jail Disciplinary Record

In his sixth issue, appellant argues that the trial court erred by allowing the State to introduce appellant’s jail disciplinary record during the punishment phase of the trial because he was not given notice as required by article 37.07 of the Code of Criminal Procedure.

The State responds that appellant’s argument is without merit because appellant’s trial counsel admitted to the trial court that he received notice of the State’s intention to introduce appellant’s jail disciplinary record. We disagree.

The State filed its notice of intention to introduce numerous “extraneous offenses, wrongs, acts, and prior convictions;” the notice did not list appellant’s jail disciplinary record as one of the items the State intended to introduce.

During the punishment phase of the trial, appellant’s trial counsel objected to the introduction of exhibits 37 and 38 based on a lack of notice under article 37.07; the exhibits contained appellant’s jail disciplinary record. Trial counsel stated: “We also have notice issues on [exhibits] 37 and 38, Your Honor. On the 37[.] 07 notice, they didn’t give us notice that they intended to introduce evidence of a jail disciplinary problem or of a — bad grades in Oklahoma.” The State responded that “those records in their entirety have been on record. The State has given defense counsel a notice of intent to use these business records and introduce them.” The trial court then asked appellant’s trial counsel: ‘Were you given notice of the State’s intent to offer these exhibits?” Trial counsel responded: “They did file that notice and serve me with a copy.”

Trial counsel’s response is not an admission that he received notice of the State’s intention to introduce appellant’s jail disciplinary record. Rather, trial counsel’s response indicates that he received the State’s notice of intention as filed by the State — a notice that did not include appellant’s jail disciplinary record as one of the “extraneous offenses, wrongs, acts” it intended to introduce during the punishment phase.

Accordingly, the State did not provide appellant with notice of its intent to introduce appellant’s jail disciplinary record as required by article 37.07, section 3(g), which provides for the admission of extraneous offense evidence if the State gives timely notice of its intent to use that evidence in the punishment phase of trial. Tex.Code Crim. Proc. Ann. art. 37.07 § 3(g). Because the State failed to provide the required notice, the trial court erred in admitting the evidence.

As we have stated above, error in admitting evidence with insufficient notice under article 37.07, section 3(g) is noncon-stitutional error. Apolinar, 106 S.W.3d at 414; Roethel, 80 S.W.3d at 281; see McDonald, 179 S.W.3d at 578. A nonconsti-tutional harm analysis for statutory violations is performed under Texas Rule of Appellate Procedure 44.2(b). See Tex. RApp. P. 44.2(b); Gray, 159 S.W.3d at 97-98.

To assess nonconstitutional errors, we examine whether the purpose of the statute or rule violated was thwarted by the error. Roethel, 80 S.W.3d at 281 (citing Ford, 73 S.W.3d at 925-26). The purpose of article 37.07, section 3(g) is to avoid unfair surprise and to enable a defendant to prepare to answer the extraneous-offense evidence. Apolinar, 106 S.W.3d at 414-15; Roethel, 80 S.W.3d at 282; Nance, 946 S.W.2d at 493. This analysis requires examining the record to determine whether the deficient notice resulted from prose-cutorial bad faith or prevented the defendant from preparing for trial. Roethel, 80 S.W.3d at 282. In determining the latter, we look at whether the defendant was surprised by the substance of the testimony and whether that affected his ability to prepare cross-examination or mitigating evidence. Id.

On cross-examination during the punishment phase of the trial, the State admitted appellant’s jail disciplinary record into evidence showing that appellant lost seven days of visitation and commissary privilege for assaulting another inmate. The State, however, did not spend much time questioning appellant regarding his jail disciplinary problems, and appellant admitted getting into a fight with another inmate.

Neither in the trial court nor on appeal did appellant claim that he was surprised when the State proffered evidence of appellant’s jail disciplinary record. Nothing in the record suggests that appellant’s ability to mount an adequate defense was hindered by the lack of notice. Appellant has failed to make any showing of how his defense strategy might have been different had the State notified him of its intent to introduce his jail disciplinary record during the punishment phase, or how his defense was “injuriously” affected by the State’s lack of notice. See Hernandez, 176 S.W.3d at 825-26.

We find no indication of bad faith in the State’s failure to provide notice of its intent to introduce appellant’s jail disciplinary record. Although the State’s notice did not comply with article 37.07, section 3(g)’s requirements, there is no indication from the record that the omission was intended to mislead appellant or prevent him from preparing an adequate defense.

Because the record does not reveal that the lack of notice in this case was the result of prosecutorial bad faith, and because the record shows that the lack of notice did not impair appellant’s ability to present a defense, we conclude that the lack of notice did not affect appellant’s substantial rights.

We overrule appellant’s sixth issue.

Conclusion

The judgment of the trial court is affirmed.

      . Appellant asserts the actual statement made to the venire panel was “in assessing the sentence” and not "in a section of the sentence” as reflected in the record. Even if appellant were correct and this court could accept his assertion as true, the difference in wording would not affect our analysis.

      . The State also called Officer Richards, who testified that appellant was considered to be a member of the Tree Top Piru Blood Gang and was so listed in the police gang database. Appellant's counsel effectively cross-examined Officer Richards, establishing that any person could be documented as a gang member in the police database "if enough people denounced" that person as a gang member. Appellant’s counsel elicited testimony that even counsel could be placed in the police database "if enough people denounced” him "as a gang member." Appellant’s counsel also established that appellant did not have a tattoo indicating any gang affiliation, even though “gang members typically have tattoos that ... bare [sic] witness to their allegiance.”


author: Justice LANG-MIERS.

text:
    Gunter STROMBERGER, Appellant, v. TURLEY LAW FIRM f/k/a Law Offices of Windle Turley, P.C. and Thomas J. Stutz, Appellees.
    No. 05-09-00029-CV.
    Court of Appeals of Texas, Dallas.
    June 29, 2010.

      K. Douglas Perrin, Jerry Mark Perrin, The Perrin Law Firm, P.C., Dallas, TX, for Appellant.
    T. Nguyen, Dallas, TX, for Appellees.
    Before Justices RICHTER, LANG-MIERS, and MURPHY.
   OPINION

Opinion By

Justice LANG-MIERS.

Gunter Stromberger appeals the trial court’s postjudgment order imposing a monetary sanction against him for failing to appear and produce documents at a deposition. In two issues, he contends that the trial court abused its discretion in assessing the sanction. We affirm.

Standard of Review

We review a trial court’s imposition of sanctions for an abuse of discretion. Am,. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex.2006) (per curiam). A trial court abuses its discretion if it acts without reference to any guiding rules and principles such that the act was arbitrary or unreasonable. Id. We must conduct an independent review of the entire record in our review of the trial court’s action. Id.

Discussion

The Turley Law Firm and Thomas Stutz (collectively Turley) obtained a judgment against Stromberger. It served a deposition notice with subpoena duces tecum on Stromberger in its effort to collect the judgment. After over two years and numerous attempts to depose Stromberger, the deposition occurred, but Stromberger did not produce any documents pursuant to the subpoena duces tecum. Turley moved for sanctions against him pursuant to civil procedure rules 215.1 and 215.2. See Tex.R. Civ. P. 215.1, .2. Turley alleged that it incurred over $10,000 in attorney’s fees pursuing Stromberger’s deposition and sanctions. After a hearing, the trial court granted the motion and levied a $5000 sanction against Stromberger and his attorney. On appeal, we vacated the order imposing the monetary sanction against Stromberger and his attorney because we concluded that Turley did not submit evidence showing what fees or expenses it incurred as a result of Stromber-ger’s alleged conduct. Stromberger v. Turley Law Firm, 251 S.W.3d 225, 227 (Tex.App.-Dallas 2008, no pet.).

After our opinion issued, Turley reurged its motion for sanctions in the trial court. The trial court conducted a second hearing on the motion, and Turley offered evidence to support its application for attorney’s fees as sanctions. The trial court granted the motion and levied a $5300 sanction against Stromberger only. He appeals.

In his first issue, Stromberger argues that the trial court abused its discretion by levying sanctions against him because rules 215.1 and 215.2 do not authorize the court’s action. Stromberger argues that sanctions under rule 215.1 are not authorized because Turley did not seek a motion to compel first. He does not dispute that he failed to appear for his deposition.

Rule 215.1(b) permits the discovering party to apply for sanctions when a party fails “to appear before the officer who is to take his deposition, after being served with a proper notice....” Tex.R. Crv. P. 215.1(b)(2)(A). It allows the discovering party to seek “any sanction authorized by Rule 215.2(b) without the necessity of first having obtained a court order compelling such discovery.” Tex.R. Civ. P. 215.1(b) (emphasis added). Because rule 215.1(b) authorizes the imposition of sanctions without requiring the discovering party to first seek an order to compel, we conclude that Turley was not required to first file a motion to compel before it could seek sanctions under rule 215.1(b). As a result, the sanction in this case was authorized under rule 215.1(b), and we do not need to consider whether it also would have been authorized under rule 215.2. We resolve appellant’s first issue against him.

In his second issue, Stromberger argues that Turley’s attorney’s fees were not incurred as a result of his failure to obey an order under rule 215.2. As we have explained, however, the sanction in this case was authorized by rule 215.1(b), and rule 215.1(b) does not require an order under rule 215.2 before sanctions may be imposed. See Tex.R. Civ. P. 215.1(b). As a result, we do not need to consider whether Turley’s attorney’s fees were incurred because Stromberger failed to obey an order under rule 215.2.

Stromberger also states that the $5300 sanction is “unreasonable,” “serves no purpose,” and that “[a]warding sanctions for that time expended to file the Motion for Sanctions is contrary to the letter and spirit of Rule 215.” Apart from a general statement of the law, Stromberger does not provide any authority or argument to support these contentions.

A discovery sanction must be just, that is, it must bear a direct relationship between the improper conduct and the sanction imposed, and it “should be no more severe than necessary to satisfy its legitimate purposes.” TransAmerican Natural Gas Corp- v. Powell, 811 S.W.2d 913, 917 (Tex.1991). Discovery sanctions serve to secure compliance with the discovery rules, deter other litigants from abusing the discovery rules, and punish those who violate the rules. Tex. Integrated Conveyor Sys., Inc. v. Innovative Convey- or Concepts, Inc., 300 S.W.3d 348, 384 (Tex.App.-Dallas 2009, pet. denied). The type of sanction that may be imposed under rule 215.1(b) is “any sanction authorized by Rule 215.2(b).” Tex.R. Civ. P. 215.1(b). Monetary sanctions authorized by rule 215.2(b) are limited to reasonable expenses, including attorney’s fees, caused by the discovery abuse. Tex.R. Civ. P. 215.2(b)(2), (8); Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 865 (Tex.App.Dallas 2006, no pet.).

Relationship Between Improper Conduct and Sanction Imposed

The evidence in this case showed that Turley made numerous unsuccessful attempts to secure a date for Stromber-ger’s deposition. Each time Turley noticed Stromberger’s deposition, Stromber-ger either filed a motion to quash or called at the last minute to reschedule. After two years, the trial court denied one of Stromberger’s motions to quash and ordered the deposition to occur on a date certain. However, about a month before the court-ordered deposition, Stromberger asked to reschedule the deposition because his mother had passed away. Turley agreed to reschedule the deposition for a couple of weeks later than the court-ordered date. It also agreed to begin the deposition at 10 a.m. to accommodate Stromberger’s attorney’s schedule. About one hour before the deposition was to begin, Stromberger e-mailed his attorney stating he had missed his flight. The deposition had to be rescheduled again. When Stromberger appeared for his deposition two days later, he did not bring any of the documents that were requested in the subpoena duces tecum. Although he agreed to mail the documents to Turley, he had not done so a month after the deposition. At the hearing on the motion for sanctions, Stromberger’s attorney said Stromberger provided the documents “within a few months” after the deposition. When asked at the deposition why he did not appear two days earlier at 10 a.m., Stromberger testified that he had not missed his flight as he told his attorney, but that the flight was not scheduled to arrive until 2 p.m.

During the hearing on Turley’s motion for sanctions, the trial court described Stromberger’s actions as “a pretty clear pattern of Mr. Stromberger stalling.” The court was particularly disturbed by Strom-berger’s failure to bring documents responsive to the subpoena duces tecum, stating “the deposition [was] in many ways wasted because [Turley] can’t question him on the documents.... [P]art of the deposition is to ask you, okay, you brought this, what about this, you know, ask questions about it, and at that point, that is wasted.” The trial court noted also that because Stromberger lives in South America, Tur-ley invested a “long time and a lot of effort to get him here for the deposition in the first place.”

Based on our independent review of the record, we conclude that the sanction imposed by the trial court has a direct relationship to Stromberger’s improper conduct.

Sanction No More Severe than Necessary

Next we examine whether the $5300 sanction is excessive. A sanction is excessive if lesser sanctions would have served the purposes of compliance, deterrence, and punishment. Tex. Integrated, 300 S.W.3d at 384. The evidence showed that Stromberger continually delayed Tur-ley’s efforts to take his deposition and, when he did appear, he ignored the subpoena duces tecum. It also showed that on at least one of the occasions where the deposition had to be rescheduled, Strom-berger was not truthful about the reason he missed the 10 a.m. deposition — telling his attorney that he had missed his flight when in reality the flight was not scheduled to arrive until 2 p.m. Turley’s evidence showed that it incurred attorney’s fees involving 75 hours valued at $200 per hour, or $15,000, plus expenses trying to depose Stromberger over a two-year period and seeking sanctions against him. Turley’s attorney’s affidavit showed that she spent 20 hours trying to depose Stromberger, 46 hours compiling the materials for and preparing the motion for sanctions, and 9 hours to prepare for and attend the hearing on the motion. She explained at the hearing that the “26.5 hours” she spent preparing the motion was primarily spent reviewing documents from over a two-year period to ensure the facts stated in the motion were accurate.

At the end of the hearing, the trial court orally announced its decision, stating, “I am going to order sanctions in the amount of $5,300, which is the 26.5 hours spent preparing for this [motion for sanctions]. I do recognize this is a voluminous file, and I do think while it is higher than usual, more time than is usual [was] spent preparing and having a hearing on this type of a motion, under the circumstances of this case, it is not extraordinary or unwarranted. So 26.5 hours at $200 an hour is $5,300.”

Stromberger offers no evidence to contradict the trial court’s assessment of the circumstances, nor does he offer an example of a lesser sanction that would have served the sanction’s legitimate purposes. He argues that the sanction is excessive because he appeared for the deposition and ultimately produced the documents. But the record shows that the trial court’s sanction was based on Stromberger’s conduct over the two-year period and, in particular, his failure to produce the documents at the deposition so that he could be questioned about them.

Having conducted an independent review of the record, we cannot conclude that the trial court abused its discretion by imposing a $5300 sanction against Strom-berger. See In re J.V.G., No. 09-06-015-CV, 2007 WL 2011019, at ⅜10 (Tex.App.Beaumont July 12, 2007, no pet.) (mem. op.).

We resolve appellant’s second issue against him.

We affirm the trial court’s judgment.

      . Turley's attorney's affidavit states that she spent "46 hours compiling materials and preparing for this Motion and Supplement.” At the hearing, the court, Turley, and Stromber-ger's attorney discussed the "26.5 hours” spent preparing the motion for sanctions. Stromberger's attorney referred to the 26.5 hours reflected in the time records, but those time records are not part of the record on appeal.

      . The motion, including exhibits, contained 118 pages.