author: PER CURIAM.

text:
    Sondra L. GROHMAN, formerly known as Sondra Grohman-Kahlig, Petitioner/Cross-Respondent, v. Clarence J. KAHLIG, II; North Park Lincoln-Mercury, Inc., North Park Lincoln-Mercury, Ltd.; North Park Holding, L.L.P.; North Park LM, L.L.C.; Kahlig Enterprises, Inc.; Kahlig Motor, Ltd.; Kahlig Motor Holding, L.L.P.; and Kahlig Motor Management, L.L.C., Respondents/Cross-Petitioners.
    No. 09-0093.
    Supreme Court of Texas.
    July 2, 2010.
    Rehearing Denied Oct. 1, 2010.

      Kathleen Cassidy Goodman, Law Office of Kathleen C. Goodman, PLLC, Richard J. Karam, Law Office of Richard J. Kar-am, San Antonio, TX, William A. ‘Andy5 Taylor, Andy Taylor & Associates, P.C., Houston, TX, Gilbert Vara Jr., The Law Office of Gilbert Vara, Jr., San Antonio, TX, for Petitioners.
    Lamont Jefferson, Haynes and Boone, LLP, San Antonio, TX, Katharine D. David, Haynes and Boone, LLP, Houston, TX, Thomas R. Phillips, Martha Garrison Newton, Baker Botts L.L.P., Austin, TX, Samuel V. Houston III, William H. Ford, Ford & Massey, P.C., Ruth G. Malinas,
    Ball & Weed, P.C., San Antonio, TX, for Respondents.
   PER CURIAM.

In this case, Sondra Grohman sued her ex-husband, Clarence Kahlig II, for various torts and breach of a Security Agreement (Agreement) entered pursuant to their divorce settlement when he changed the security, stock in his two corporations, into limited partnership units. Kahlig filed a counterclaim seeking a declaration that changing the form of the business entities did not constitute an event of default under the Agreement. At trial, the court submitted the breach of contract claim to the jury, but found no evidence to support the tort claims. The jury found that Kahlig did not breach the Agreement. The trial court entered a take-nothing judgment on the verdict. The court of appeals affirmed the trial court judgment as to the tort claims, but held that Kahlig breached the Agreement as a matter of law and reversed the take-nothing judgment. We hold Kahlig did not breach the Agreement as a matter of law, and Groh-man presented no evidence to support her tort claims. Thus, we reverse the court of appeals’ judgment in part and affirm in part.

Grohman and Kahlig divorced in 2001. As part of their divorce settlement, Kahlig agreed to pay Grohman approximately $22 million. Kahlig paid Grohman approximately $12.6 million in cash and gave Grohman a promissory note for $9.5 million, to be paid off in annual installment payments of approximately $1 million. As collateral, Kahlig pledged a majority of his stock in two corporations, North Park Lincoln-Mercury, Inc., and Kahlig Enterprises, Inc., totaling seventy percent of the shares outstanding in each corporation.

Kahlig and Grohman entered into a Security Agreement in 2001 to protect Groh-man’s interest in the collateral. The Agreement described the collateral and Kahlig’s rights and duties:

[Kahlig] grants [Grohman] a continuing security interest in and to the following: (a) [70% of the outstanding shares of common capital stock in North Park Lincoln-Mercury, Inc.]; and (b) [70% of the outstanding shares of common capital stock in Kahlig Enterprises, Inc.]; and such shares and all replacements, additions, and substitutions therefor now owned or hereafter acquired by Borrower, plus all cash and non-cash proceeds and all proceeds of proceeds arising from those shares (all of which is individually and collectively hereinafter referred to as “Collateral”).
Borrower hereby warrants and agrees that:
5. Borrower will not sell, transfer, lease, or otherwise dispose of the Collateral or any interest therein except in compliance with the release provisions herein....
6. Borrower shall at all times keep the Collateral free from any adverse lien, security interest or encumbrance and in good order and repair and will not allow the Collateral to become wasted or destroyed ....
8. Borrower shall have all rights and all responsibilities in respect to the Collateral and may use it in any lawful manner not inconsistent with this Security Agreement.

In 1999, prior to the divorce, Kahlig inquired into the franchise tax benefits of converting his two corporations to limited partnerships. In 2008, he requested a private letter ruling from the IRS seeking confirmation that the conversion would not adversely affect the dealership’s inventory accounting method. The IRS confirmed the conversion would not adversely affect the businesses in a favorable private letter ruling six months later. Kahlig converted the corporations to partnerships shortly thereafter.

Kahlig formed two identical plans of reorganization for the two corporations. Kahlig organized a holding company corresponding to each corporation. He contributed his existing stock in each corporation to each holding company. Then, Kahlig converted each corporation to a limited partnership, and each holding company exchanged the shares of corporate stock for equal units of limited partnership interest with the newly formed limited partnership. The corporate shares were canceled once they were replaced with partnership units. The conversions had no effect on Groh-man’s security interest other than replacing corporate stock with units of limited partnership, and Kahlig’s equity in the entities actually increased in value due to the more beneficial franchise tax treatment. Kahlig converted the entities back to corporations in 2007 when the limited partnership form was no longer advantageous for reducing the entities’ franchise taxes.

Grohman discovered the 2008 conversions during a second child custody suit against Kahlig. She sued Kahlig for breach of contract in August 2005 alleging that the conversions breached the Agreement because Kahlig agreed not to “sell, transfer, lease or otherwise dispose of the Collateral or any interest therein” without Grohman’s consent and further agreed not to “allow the Collateral to become wasted or destroyed.” Grohman contended that Kahlig’s alleged breach accelerated the debt at the time of the breach, despite Kahlig’s timely payment as agreed. She claimed damages, beyond the amount due under the promissory note, in the form of additional interest on the accelerated principal. Later, Grohman amended her complaint to add fraud, negligence, and gross negligence claims. Kahlig asserted a counterclaim seeking a declaratory judgment that the Agreement did not preclude Kahlig from continuing to unilaterally determine the business form under which his businesses operated, and thus the conversion of the business form was not an event of default under the Agreement.

At trial, the court held that the breach of contract claim was a question of fact and thus submitted it to the jury. The court refused to submit Grohman’s tort claims, holding that no evidence supported them. The jury found that Kahlig did not breach the Agreement by converting the corporations to limited partnerships. The trial court entered a take-nothing judgment as to Grohman’s claims. It also granted Kah-lig’s request for declaratory relief and awarded attorney’s fees in the amount of $135,757.00 to Kahlig and $82,367.08 to the business entities. See Tex. Civ. Prac. & Rem.Code § 37.009 (allowing recovery of attorney’s fees in a suit for declaratory judgment).

Grohman appealed, contending the trial court erred by: (1) submitting a question of law to the jury that should have been answered by the trial court; (2) failing to grant a judgment notwithstanding the ver-diet because she established Kahlig breached of the Agreement as a matter of law; (3) refusing to submit her tort claims to the jury; and (4) awarding attorney’s fees. The court of appeals affirmed the trial court’s take-nothing judgment on Grohman’s tort claims, but reversed the take-nothing judgment on the breach of contract claim and the awards of declaratory relief and attorney’s fees. 319 S.W.3d 28. It first held the contract stated unambiguously that the secured Collateral could only be in the form of shares of corporate stock, and it was undisputed that Kahlig converted the corporations to partnerships. Id. at 33. Thus, the court held that whether Kahlig breached the contract was a question of law that should not have been submitted to the jury. Id. at 33. The submission was not harmless error because the conversion of business entities “disposed of’ the Collateral, and Kahlig had indeed breached as a matter of law. Id. at 34. Because Kahlig breached the Agreement and the court of appeals reversed the award of declaratory relief, it did not reach Grohman’s arguments regarding attorney’s fees. It reversed the attorney’s fees award and remanded the case to the trial court for a determination of damages. Id. at 34.

Both parties appealed. Kahlig argues, as a matter of law, he did not breach the Agreement because it did not prohibit converting his corporations to limited partnerships. Thus, the court of appeals erred in reversing the trial court’s judgment because the jury submission was harmless error. Alternatively, he argues the Agreement was ambiguous as to his right to convert the business forms, and thus the trial court was correct to submit the question to the jury. Grohman argues that the court of appeals erred in remanding to the trial court, rather than rendering judgment in her favor, on the breach of contract claim. She also argues the court of appeals erred in affirming the trial court’s refusal to submit her tort claims to the jury. We analyze each claim separately.

A trial court commits error if it submits a question of law to the jury. Knutson v. Ripson, 168 Tex. 312, 354 S.W.2d 575, 576 (1962). However, the error is harmless if the jury answers the question of law correctly or if it can be deemed immaterial and disregarded by the trial court. Tex.R.App. P. 44.1(a)(1); Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.1994). Contract language should be interpreted by a court as a matter of law if it can be given a certain or definite meaning. Univ. Health Sens., Inc. v. Renaissance Women’s Group, P.A., 121 S.W.3d 742, 746 (Tex.2003). If the contract is ambiguous, the party’s intent is a question of fact for the jury. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). Whether a party has breached a contract is a question of law for the court, not a question of fact for the jury, when the facts of the parties’ conduct are undisputed or conclusively established. Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971). The court’s primary concern when construing a written contract is to ascertain the true intentions of the parties as expressed in the instrument. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex.2005). We must examine and consider the entire writing “in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.” Id.

The Agreement states that the “Collateral” may not be transferred, disposed of, or destroyed. The Agreement’s definition of Collateral guides our interpretation of these provisions. See Dynegy Midstream Sens., Ltd. P’ship, v. Apache Corp., 294 S.W.3d 164, 168 (Tex.2009) (“We give contract terms their plain and ordinary meaning unless the instrument indicates the parties intended a different meaning.”). The Agreement defines “Collateral” as shares of stock in North Park Lincoln-Mercury, Inc. and Kahlig Enterprises, Inc., “and all replacements, additions and substitutions therefor now owned or hereafter acquired by [Kahlig], plus all cash and non-cash proceeds and all proceeds of proceeds arising from those shares.” (emphasis added). Thus, as defined, Collateral encompasses the shares of corporate stock and any representation of interest in the companies that could replace or substitute for the shares, so long as Kahlig continued to own them.

The court of appeals held that Kahlig breached the Agreement because he destroyed the corporate stock when he converted it to units of limited partnership and thus “disposed of’ the Collateral. Grohman argues Kahlig destroyed the stock in violation of the Agreement because the corporate shares were eventually canceled. The court of appeals agreed, noting as a result of the conversion the shares were canceled and retired and ceased to exist. Because the shares of stock ceased to exist, the court of appeals held they were destroyed.

But the Agreement defines the Collateral more expansively than merely shares of stock. Kahlig breached the Agreement only if the conversion of his corporations to limited partnerships allowed his stock and “such shares and all replacements, additions, and substitutions” to be destroyed. The shares of stock were inevitably canceled, but first they were replaced with units of limited partnership that represented the same interest in the businesses. Kahlig remained the sole owner of his business interest throughout the business conversions, and at no point in the conversions was his interest in the business entities destroyed. The Collateral may have changed form, but it was not destroyed. In fact, Grohman does not dispute that the Collateral’s value actually increased.

Grohman contends that Kahlig transferred the Collateral in the conversion because the plan of reorganization involved movement of interest in the companies between Kahlig and holding companies. “Transfer” is defined as:

Any mode of disposing of or parting with an asset or an interest in an asset, including a gift, the payment of money, release, lease, or creation of a lien or other encumbrance. The term embraces every method — direct or indirect, absolute or conditional, voluntary or involuntary — of disposing of or parting with property or an interest in property.

Black’s Law Dictionary 1636 (9th ed. 2009). Despite the fact that the business interest technically moved between Kahlig and his holding companies, Kahlig retained ownership of his entire interest in the companies throughout the conversion. Thus, the Collateral was not transferred, and Grohman’s security interest was not impaired.

The Agreement lacks any specific mention of the consequences of a business entity conversion. It gives Kahlig “all rights and all responsibilities in respect to the Collateral ... not inconsistent with this Security Agreement.” The most reasonable interpretation of the Agreement, read as a whole to harmonize all of its provisions, is that it did not prohibit Kah-lig from converting the business entities, and at no point in the conversion did Kah-lig breach the Agreement. Therefore, we hold Kahlig did not breach the Agreement as a matter of law. The trial court committed harmless error by submitting the question to the jury because the jury answered it as the trial court should have. Tex.R.App. P. 44.1(a)(1); Spencer, 876 S.W.2d at 157.

Grohman next contends the trial court erred in refusing her request to submit questions regarding her fraud and negligence claims to the jury. Rule 278 of the Texas Rules of Civil Procedure requires the submission of questions to the jury raised by the written pleadings and the evidence. Tex.R. Civ. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992). A court may refuse do so if no evidence exists to warrant its submission. Elbaor, 845 S.W.2d at 243.

To prove her fraud cause of action, Grohman must establish that Kahlig made a material misrepresentation. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex.1998). Grohman alleges that Kahlig misrepresented to her in their Agreement that he would refrain from converting his businesses from corporations to limited liability companies. But as we already decided, the Agreement did not prohibit a conversion of the business entities, much less represent that Kahlig would not change the legal form for operating them. There is no evidence that Kahlig made a material misrepresentation.

Grohman’s negligence claims allege Kahlig breached “a duty not to injure her secured interest in the Collateral,” and claims damages for that conversion — acceleration of the debt — as provided in the Agreement. Even if Kahlig breached a duty in tort separate from that in contract, when “the only loss or damage is to the subject matter of the contract, the plaintiffs action is ordinarily on the contract.” Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex.1991); see also Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex.1986) (“The nature of the injury most often determines which duty or duties are breached. When the injury is only the economic loss to the subject of a contract itself, the action sounds in contract alone.”). Grohman’s action for breach of the Agreement was in contract alone. Thus, the trial court was correct to refuse submission of the tort claims to the jury.

Finally, because the court of appeals erred in finding that Kahlig breached the Agreement, the grounds for reversal of the declaratory relief and attorney’s fees award are also in error. Normally we would render judgment on this issue, but here neither party has briefed the issue before this Court. Therefore, we remand the issue of whether Kahlig is entitled to attorney’s fees to the court of appeals.

The trial court’s erroneous submission of a question of law to the jury was harmless because it was answered as the trial court should have answered it. The proper judgment was rendered and thus there was no grounds for reversal. Accordingly, and without hearing oral argument, Tex. R.App. P. 59.1, we reverse the court of appeals’ judgment as to that issue and render the judgment originally entered by the trial court — Grohman takes nothing on her breach of contract claim. We remand the declaratory relief and attorney’s fees issue to the court of appeals. We affirm the court of appeals’ judgment that Groh-man take nothing on her claims for fraud, gross negligence, and negligence.

Chief Justice JEFFERSON and Justice LEHRMANN did not participate in the decision.

      . Kahlig paid the annual payments due on the note each year, including during the pen-dency of the underlying lawsuit and this appeal. He eventually paid off the remainder of the note in 2008, satisfying his obligations thereunder and releasing Grohman's security interest.

      . The trial court denied Kahlig's motion for directed verdict on all of Grohman’s claims at the close of Grohman's evidence, but, at the jury charge conference, refused to submit to the jury Grohman's claims except breach of contract and negligence per se. The negligence per se claim was based upon an alleged violation of section 32.33 of the Texas Penal Code, which prohibits a person who has signed a security agreement from harming or devaluing property with the intent to hinder enforcement of a security interest on the property. The jury found that Kahlig did not commit the acts upon which Grohman based her negligence per se claims, and the trial court similarly held that Grohman take nothing on the claim. The parties do not challenge this portion of the trial court’s judgment.

      . Whether the term "disposed of” includes the destruction of property and does not require a transfer or alienation of property to a third party has not been directly decided by this Court, but this determination is unnecessary because a separat; provision prohibits Kahlig from “allow[ing] the Collateral to become wasted or destroyed.”

      . Because we hold that the court of appeals erred in reversing the trial court's judgment we do not reach the issue of whether remand was proper.


source: Caselaw Access Project

license: Public Domain

text:
    INSTITUTIONAL DIVISION OF the TEXAS DEPARTMENT OF CRIMINAL JUSTICE and Miguel Martinez, Petitioners v. Arthur POWELL, Respondent.
    No. 08-0345.
    Supreme Court of Texas.
    July 2, 2010.
    Rehearing Denied Oct. 1, 2010.

      Greg W. Abbott, Attorney General of Texas, Kent C. Sullivan, David S. Morales, Office of the Attorney General of Texas, James C. Ho, Solicitor General of Texas, Kristofer S. Monson, Assistant Solicitor General, Demetri Anastasiadis, Office of the Attorney General of Texas, Clarence Andrew Weber, First Assistant Attorney General, Austin, TX, for Petitioners.
    Arthur Powell, Bridgeport, TX, pro se.
    David Jefrie Mizgala, Munsch Hardt Kopf & Harr, P.C., Dallas, TX, Lawrence Matthew Doss, Mullin Hoard & Brown, L.L.P., Lubbock, TX, for Respondent.
   PER CURIAM.

Arthur Powell sued the Institutional Division of the Texas Department of Criminal Justice (the Department) and one of its officers, complaining that they deprived him of certain constitutional rights. The trial court dismissed Powell’s claims, and a divided court of appeals reversed. 251 S.W.3d 783, 792. Because Powell has failed to state a claim, we reverse the court of appeals’ judgment and render judgment dismissing the case.

This case arises out of a disciplinary proceeding brought against Powell, an inmate at the Department’s McConnell Unit in Beeville, Texas. Officer Miguel L. Martinez, a guard at the prison, instructed Powell to walk along the right side of a yellow line in an orderly manner. Powell alleges that he did so, but thirty minutes later, he was approached in his cell and handcuffed by another officer for failing to follow the instruction. Powell was charged with “creating a disturbance” — -an institutional disciplinary infraction — allegedly in retaliation for complaints his family had made about his mistreatment at the facility-

The Department held a disciplinary proceeding and determined that the disturbance charge was supported by evidence. Following the hearing, Powell filed step one and step two grievances pursuant to Department rules for appealing these decisions. He argued that the hearing officer’s refusal to allow him to call certain witnesses (including Officer Hagar, the officer who Powell alleged handcuffed him) denied him due process. The Department determined that the hearing officer’s denial was proper, as Hagar had not been present at the time of the incident. The Department also concluded that the hearing officer’s findings were supported by a preponderance of the evidence.

Powell then sued the Department, Officer Martinez, and Officer Gilbert Herrera. As to the Department, Powell argued that the administrative decision was not based on sufficient evidence and that his due process rights were violated by the hearing officer’s refusal to allow him to call Hagar as a witness. As to Martinez, Powell argued that the infraction was brought against him in retaliation for his family’s complaints about his alleged mistreatment at the facility. He did not allege any facts against Herrera (who was later dismissed from the suit).

The Department, Martinez, and Herrera denied the allegations and sought attorney’s fees and costs. The two officers specially excepted to Powell’s pleadings, and the Department filed a plea to the jurisdiction. After a hearing, the trial court rejected Powell’s claims, granted the officers’ special exceptions and the Department’s plea to the jurisdiction, and dismissed the suit. Powell made three arguments on appeal: (1) because his claim against the Department was for declaratory relief, it did not implicate sovereign immunity; (2) the Department waived sovereign immunity by seeking affirmative relief in the form of attorney’s fees and costs; and (3) the trial court erred in sustaining Martinez’s special exceptions. 251 S.W.3d at 787. A divided court of appeals agreed and reversed the trial court’s judgment. Id. at 792.

As for his claims against the Department, Powell has abandoned his sufficiency of the evidence complaint here, and asserts instead that he seeks only a declaration of his constitutional rights. But Powell has also dropped his constitutional complaint that his inability to present testimony from certain witnesses violated his right to due process. Although he argued in the court of appeals that his witness exclusion claim was not subject to immunity, he no longer makes such a claim. Instead, he now asserts that his constitutional claim against the Department is based on retaliation for his family members’ complaints about Powell’s alleged mistreatment.

In the trial court, however, the only constitutional claim he made against the Department related to his inability to present witnesses on his behalf, and the only relief sought was that the decision be vacated and remanded. The trial court gave Powell the opportunity to replead, but he chose not to do so. Nor would repleading remedy the problem. Although plaintiffs should be given an opportunity to replead “[i]f the pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect,” Westbrook v. Penley, 231 S.W.3d 389, 395 (Tex.2007), even if Powell repleaded his constitutional claim as a retaliation claim under 42 U.S.C. § 1983, that claim would fail for the reasons explained below. Because Powell has abandoned his sufficiency of the evidence and witness exclusion arguments on appeal, because his petition stated no other constitutional claims against the Department, and because Powell cannot recast his claim as a retaliation claim, the trial court correctly granted the Department’s plea to the jurisdiction.

As to Officer Martinez, Powell alleged that Martinez retaliated against Powell based on his family members’ complaints about Powell’s treatment by prison officials. Powell sought a declaration and damages from Martinez under 42 U.S.C. § 1983. Even assuming that Powell may assert a § 1983 claim based on deprivation of his family members’ constitutional rights — a point the Department contests— we hold that Powell has failed to state a valid claim against Martinez.

Prisoners have a First Amendment right to be free from retaliation for complaining about a prison official’s misconduct, and a violation of this right is actionable under 42 U.S.C. § 1983. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.1995). “ ‘To prevail on a claim of retaliation, a prisoner must establish (1) a specific constitutional right, (2) the defendant’s intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation.’ ” Morris v. Powell, 449 F.3d 682, 684 (5th Cir.2006) (quoting McDonald v. Steward, 132 F.3d 225, 231 (5th Cir.1998)), cert. denied, 549 U.S. 1038, 127 S.Ct. 596, 166 L.Ed.2d 443 (2006).

Under the third prong of this test, acts of retaliation that are de minim-is do not satisfy the “retaliatory adverse act” requirement. Id. at 684-85. “To establish a constitutional violation, an inmate must show that he suffered a qualifying adverse retaliatory act,” and “[i]f the retaliation alleged ... does not pass this bar, he has suffered no constitutional injury.” Id. at 684.

In making this determination, the Fifth Circuit has adopted the standard first set forth in Crawford-El v. Britton, 93 F.3d 813, 826 (D.C.Cir.1996): an inmate’s retaliation claim must allege adverse acts “that ‘would chill or silence a person of ordinary firmness from future First Amendment activities.’” See Morris, 449 F.3d at 685-86 (quoting Britton, 93 F.3d at 826); see also Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir.1999) (adopting the same standard). Thus, an inmate’s job transfer from the commissary to the kitchen was de minimis, while his transfer to a more dangerous prison was not. Morris, 449 F.3d at 687; see also Bibbs v. Early, 541 F.3d 267, 271-72 (5th Cir.2008) (subjecting inmate to below-freezing temperatures for more than four hours during each of four consecutive nights was more than de minimis); Leggett v. Comer, 280 Fed.Appx. 333, 336 (5th Cir.2008) (purported confiscation of more than $11,000 of inmate’s personal property was not de minimis).

We agree that this is the appropriate standard for judging whether an inmate’s retaliation claim is de minimis. Here, Powell has not shown that Martinez’s actions “would chill or silence a person of ordinary firmness from future First Amendment activities.” Morris, 449 F.3d at 685 (quotations omitted). While Powell was charged with a disciplinary infraction, the record contains no allegation or evidence of any punishment threatened or imposed for the alleged infraction, and evidence of such sanctions would necessarily present a different question than the one we face here. Instead, Powell asserts only that disciplinary proceedings were instituted. Cf. Starr v. Dube, 334 Fed.Appx. 341, 342-43 (1st Cir.2009) (per curiam) (holding that the mere institution of disciplinary proceedings, which were later dismissed, would not deter an inmate of ordinary firmness from continuing to exercise his constitutional rights); Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir.2009) (concluding that “[a] single [allegedly unjustified] retaliatory disciplinary charge that is later dismissed is insufficient to serve as the basis of a § 1983 action”). But see Zarska v. Higgins, 171 Fed.Appx. 255, 259-60 (10th Cir.2006) (filing retaliatory disciplinary proceedings “ ‘would chill a person of ordinary firmness’ ” from future exercise of his or her rights (quoting Poole v. County of Otero, 271 F.3d 955, 960 (10th Cir.2001))); Brown v. Crowley, 312 F.3d 782, 789 (6th Cir.2002) (a reasonable jury could find that filing a retaliatory charge exposing an inmate to a “risk of significant sanctions” could deter persons of “ordinary firmness” from exercising their rights), cert. denied, 540 U.S. 823, 124 S.Ct. 154, 157 L.Ed.2d 44 (2003). Without more, we are unable to conclude that Powell has alleged an adverse act that was more than de minimis. Accordingly, his § 1983 claim fails.

Without hearing oral argument, we reverse the court of appeals’ judgment and render judgment dismissing Powell’s claims. Tex.R.App. P. 59.1, 60.2(c).

Justice LEHRMANN did not participate in the decision.

      . The court of appeals held that Powell had not challenged the trial court's granting of Martinez’s special exceptions relating to Powell’s allegation that he was not allowed to present Hagar as a witness and “affirmfed] the trial court's dismissal of Powell’s claim against Martinez relating to the failure to allow testimony at the hearing." 251 S.W.3d 783, 789 n. 2.

      . In light of our disposition, we do not reach the Department’s claim that the court of appeals erred in holding that the Department’s defensive request for attorney’s fees waived immunity under our holding in Reata Construction Corp. v. City of Dallas, 197 S.W.3d 371, 384 (Tex.2006). We note, however, that we recently held that such a request does not waive immunity. See Tex. Dep’t of Criminal Justice v. McBride, 317 S.W.3d 731, 733 (Tex.2010).


text:
    FRESH COAT, INC., Petitioner, v. K-2, INC., Respondent.
    No. 08-0592.
    Supreme Court of Texas.
    Argued Dec. 17, 2009.
    Decided Aug. 20, 2010.

      Kevin D. Jewell, Chamberlain, Hrdlicka, fhite, Williams & Martin, Robert H. lateman, Adam Brett Chambers, Bate-lan/Pugh, P.L.L.C., Houston, for Petition-
    iThomas C. Wright, Richard Russell Hol-libeck, Michael A. Choyke, Wright lown & Close, LLP, Houston, William V. wrsaneo III, SMU School of Law, Dallas, lilph Edward Gustafson, Wade B. Reese, Tucker, Taunton, Snyder & Slade, Houston, William Allen Adair, Conroe, Bradley Wayne Snead, Wright Brown & Close, LLP, Houston, for Respondent.
   Justice WILLETT delivered the opinion of the Court.

This indemnity case concerns products-liability litigation in the residential construction industry. Specifically, we examine a synthetic stucco manufacturer’s duty to indemnify a contractor under Chapter 82 of the Texas Civil Practice and Remedies Code. Two threshold questions are paramount: (1) Is synthetic stucco a “product”? and (2) Is the contractor that installs it on a house a “seller”? We answer yes to both, meaning Chapter 82 applies. We also conclude that the manufacturer’s statutory obligation to indemnify the contractor covers a settlement payment made by the contractor to the home-builder where the contractor may have been independently obligated by contract to indemnify the homebuilder. We therefore affirm in part and reverse in part the court of appeals’ judgment, and render judgment for Fresh Coat, Inc. in accord with the trial court’s original judgment.

I. Background

K-2, Inc. manufactures synthetic , stucco components that are collectively referred to as EIFS, an acronym for exterior insulation and finishing system. Fresh Coat, Inc. contracted with a homebuilder, Life Forms, Inc., to install EIFS on the exteri- or walls of several homes that Life Forms was building. Fresh Coat purchased K-2’s EIFS and installed it with the help of K-2’s instructions and training.

Over 90 homeowners sued K-2, Life Forms, and Fresh Coat, alleging the EIFS allowed water penetration that in turn caused structural damage, termite problems, and mold. The plaintiffs alleged the EIFS was defectively designed, manufactured, and marketed, and also asserted claims for negligence, deceptive trade practices, negligent misrepresentation, and breach of warranty. Life Forms filed cross-claims against Fresh Coat and K-2, seeking indemnity for losses from the homeowners’ claims. Fresh Coat sought indemnity from K-2.

K-2, Life Forms, and Fresh Coat settled with the homeowners. Fresh Coat paid the homeowners just over $1 million. Fresh Coat also settled with Life Forms, paying $1.2 million to cover part of Life Forms’ payment to the homeowners. The case proceeded to trial on various claims the defendants brought against each other. This appeal concerns claims Fresh Coat asserted against K-2. Fresh Coat sought indemnity from K-2 for its settlements with the homeowners and Life Forms, as well as $726,642 in attorney fees. The claims were tried to a jury, and Fresh Coat received a judgment for all the damages requested.

The court of appeals affirmed the trial court’s judgment except with regard to the settlement payment Fresh Coat made to Life Forms. The court rejected K-2’s arguments that its EIFS was not a “product” and that Fresh Coat was not a “seller,” and upheld the indemnity award as to the payment to the homeowners. However, with respect to Fresh Coat’s settlement with Life Forms, the court agreed with K-2 that it owed Fresh Coat no statutory indemnity duty because Fresh Coat would have been liable to Life Forms under the contract between the two regardless of whether either of them caused a defect in the EIFS.

K-2 and Fresh Coat each filed petitions in this Court. K-2 argues that the court of appeals erred in awarding Fresh Coat indemnification for the homeowners’ settlement because under Chapter 82 EIFS is not a product, and Fresh Coat is not a seller. Fresh Coat argues that the court of appeals erred in denying Fresh Coat indemnity from K-2 for Fresh Coat’s settlement with Life Forms.

II. Discussion

Chapter 82 governs a manufacturer’s indemnity obligations arising from a “products liability action.” Section 82.002(a) states:

A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.

A. Is EIFS a “Product” Under Chapter 82?

Section 82.002(a) applies to losses arising from a products-liability action, which Section 82.001(2) defines as

any action against a manufacturer or seller for recovery of damages arising out of personal injury, death, or property damage allegedly caused by a defec-l tive product whether the action is based! in strict tort liability, strict products lia-l bility, negligence, misrepresentation! breach of express or implied warranty! or any other theory or combination of theories.

K-2 argues that EIFS was not a “defective product” for purposes of Chapter 82. K-2 claims the “product” was the finished EIFS wall of the home, if not the home, while Fresh Coat argues that Life Forms purchased EIFS components plus the services required for its installation, and that the synthetic stucco system is the product. K-2 does not dispute that EIFS is a product as it was sold by K-2; rather K-2 claims that, after the EIFS components were purchased by Fresh Coat, they were not resold as products.

Under K-2’s definition of product, products that become part of homes cannot be the subject of indemnity claims by home-builders and their contractors if those homebuilders and contractors are sued by homeowners. Instead, K-2 claims that products placed into the stream of commerce are not products once they become integrated into a house, which is real property, even if they were products for all purposes beforehand. We agree with the court of appeals that Chapter 82 contains no such limitation.

Chapter 82 itself does not define “product,” but it defines “seller” as

a person who is engaged in the business of distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a product or any component part thereof.

From that definition, a product is something distributed or otherwise placed, for any commercial purpose, into the stream of commerce for use or consumption.

We hold that the EIFS provided by Fresh Coat was a “product” as that word is used in the text of Chapter 82. K-2 does not dispute that it is a manufacturer under Chapter 82 and that it placed its EIFS — which it admits is a product — into the stream of commerce. As the court of appeals noted, “The record establishes that the EIFS is a synthetic stucco system made of component parts manufactured by [K-2].” Likewise, the EIFS was used by Life Forms in the construction of homes, in addition to whatever use it was put to by homeowners. At least as to Fresh Coat’s transaction with Life Forms, the EIFS was “used.”

Other definitions of “product” also comport with how products are described in Chapter 82. Black’s Law Dictionary defines “product” as “[s]omething that is distributed commercially for use or consumption and that is usu[ally] (1) tangible personal property, (2) the result of fabrication or processing, and (8) an item that has passed through a chain of commercial distribution before ultimate use or consumption.” The Third Restatement of Torts uses a similar definition for “product”:

A product is tangible personal property distributed commercially for use or consumption. Other items, such as real property and electricity, are products when the context of their distribution and use is sufficiently analogous to the distribution and use of tangible personal property....

Each party argues that comment e to Section 19 of the Restatement supports that party’s own definition of product. However, comment e merely addresses whether a person is a product seller, not whether something is a product. Even so, it is unclear from comment e whether things such as EIFS — products that may-become attachments to real property for other legal purposes — would be considered products.

Chapter 82’s definition of manufacturer is also instructive. Section 82.001(4) defines “manufacturer” as

a person who is a designer, formulator, constructor, rebuilder, fabricator, producer, compounder, processor, or assembler of any product or any component part thereof and who places the product or any component part thereof in the stream of commerce.

Under this definition, a manufacturer is anyone who builds, formulates, or assembles the product or any component part thereof. Thus, even if K-2 were correct that an EIFS wall is the relevant “product,” a manufacturer may be liable for defects in “any component part thereof.” This language suggests the word “product” should not be read narrowly to exclude EIFS.

None of the sources discussed above, including Chapter 82, except from the definition of product those things that may become an integral part of a home. Moreover, the Legislature could have easily excluded such products from the definition of product, or from “products liability actions” as that term is defined in Chapter 82. The Legislature could have added a few words to carve out components of homes or components of homes that become fixtures by some definition. Yet there is nothing in the text that can be read to exclude EIFS from being the type of defective product that can give rise to a products-liability action.

The courts of appeals appear not to have dealt with the specific question of whether a home component can be a product for purposes of Chapter 82, but they have applied Texas products-liability law to sub-components of homes. K-2 cites no statutory text that indicates a narrow definition of “product” elsewhere, so we decline to read the term “product” more narrowly than it appears from the language of Chapter 82. We accordingly hold that the EIFS is a product under Chapter 82.

B. Is Fresh Coat a “Seller” Under Chapter 82?

K-2 contends that even if EIFS is a product, Fresh Coat is not a seller. K-2 says Fresh Coat did not place EIFS into the stream of commerce since EIFS was applied to walls that were part of newly constructed homes. K-2 further characterizes Fresh Coat as a service provider, not a product seller, because Fresh Coat provided EIFS installation services. Fresh Coat acknowledges it provided EIFS installation services, but claims it was a product seller and a service provider, and that companies that do both may be considered product sellers under Chapter 82.

In Chapter 82, “seller” is defined as a person who is engaged in the business of distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a product or any component part thereof.

Section 82.002(d) elaborates with regard to a manufacturer’s duty to indemnify:

For purposes of this section, a wholesale distributor or retail seller who completely or partially assembles a product in accordance with the manufacturer’s instructions shall be considered a seller.

We agree with the court of appeals that “Chapter 82’s definition of ‘seller’ does not exclude a seller who is also a service provider, nor does it require the seller to only sell the product.” That approach is consistent with the Third Restatement of Torts, which recognizes that a product seller may also provide services.

We further agree with the court of appeals that Fresh Coat provided legally sufficient evidence that it is a product seller for purposes of Chapter 82. It is undisputed that Fresh Coat installed EIFS according to K-2’s instructions. Moreover, K-2 trained and certified Fresh Coat personnel in the installation of its EIFS system. Under its contract with Life Forms, Fresh Coat was to provide “labor, services and/or materials, equipment, transportation, or facilities necessary” in order to provide “synthetic stucco application and finish.” As the court of appeals noted, witnesses testified that Fresh Coat was in the business of providing EIFS products combined with the service of EIFS installation. The products K-2 sold to Fresh Coat included base coat, mesh, and finish coat.

Chapter 82, like the Restatement, anticipates that a product seller may also provide services. Thus, we conclude that when a company contracts to provide a product that is alleged to be defective— like the EIFS system in this case — the company’s installation services do not preclude it from also being a seller. Accordingly, as to indemnity for Fresh Coat’s settlement with the homeowners, we affirm the court of appeals’ judgment.

C. Effect of Fresh Coat’s Contract with Life Forms

Section 82.002(a) imposes a duty on manufacturers to indemnify sellers for a “loss arising out of a products liability action.” It provides an exception “for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.”

K-2 does not argue that the statutory exception should apply because Fresh Coat improperly installed the EIFS, an argument that would apply equally to Fresh Coat’s settlements with Life Forms and the homeowners. Instead, K-2 argues it should not have to indemnify Fresh Coat for the settlement payment Fresh Coat made to Life Forms because Fresh Coat’s contract with Life Forms contained an indemnity provision. The court of appeals agreed with K-2, concluding Fresh Coat’s settlement payment to Life Forms was not subject to indemnity under Chapter 82 because it “was based solely on Fresh Coat’s independent liability under the contract” between Fresh Coat and Life Forms. A Fresh Coat attorney testified that Fresh Coat indemnified Life Forms because its contract with Life Forms required indemnification regardless of any fault on the part of Life Forms. The contract indeed states in a “Contractor’s Indemnity” provision that Fresh Coat agrees to indemnify and hold Life Forms harmless for any claims in favor of homeowners and others “on account of’ property and other losses “in any way occurring, incident to, arising out of or on [sic] connection with ... the work performed by the contractor.... ”

Under Section 82.002(a), Fresh Coat’s settlement with Life Forms “arfóse] out of a products liability action.” Fresh Coat’s settlement indisputably arose out of homeowner claims against Life Forms that were settled. Those underlying homeowner claims, as well as Life Forms’ indemnity cross-claim against Fresh Coat, were brought in a “products liability action,” which, under Section 82.001(2), is broadly defined to include actions for damage allegedly caused by a defective product “whether the action is based in strict tort liability ... negligence ... or any other theory or combination of theories.” As explained above, the claims in this case involved a “product.” Further, since Fresh Coat was a “seller” under Section 82.002(a), that provision requires indemnity from K-2 for Fresh Coat’s settlement with Life Forms unless the exception found in Section 82.002(a) applies.

The court of appeals reasoned that Fresh Coat could not recover its settlement payment to Life Forms from K-2 since Fresh Coat was independently liable for the loss in the contract. However, the statute does not except the manufacturer from its indemnity obligation whenever the seller is contractually liable to another. The exception applies only for “any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.”

The court of appeals excluded from its analysis all the language of the exception preceding “for which the seller is independently liable.” The jury, however, was correctly instructed to exclude from its calculation of Fresh Coat’s loss “any amount that constitutes loss caused by Fresh Coat’s own negligence, intentional misconduct, or other act or omission, if any (such as negligently modifying or altering the product), for which Fresh Coat is independently liable.” The jury did not find the exception applicable.

The court of appeals focused solely on Fresh Coat’s independent liability, and did not find the reason for that liability relevant. Fresh Coat argues that Section 82.002(a) creates an exception for the manufacturer’s duty to indemnify that only applies when the seller tortiously causes a loss. We agree with Fresh Coat that K-2 has not proven that Fresh Coat caused the loss via the type of act or omission contemplated in the statute.

Section 82.002(a) excepts the manufacturer from indemnity only when it proves that a loss was “caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.” K-2 argues it should not be hable for contractual obligations that it was not a party to, namely, any losses Fresh Coat suffered solely as a result of its contract with Life Forms rather than as a result of Fresh Coat’s products-liability obligations. But Section 82.002(a) does not exempt manufacturers from their indemnity obligations for “any loss ... for which the seller is independently hable.” Such a reading disregards the 20 words between “any loss” and “for which.... ”

Moreover, Section 82.002(e) expressly provides that the manufacturer’s “duty to indemnify under this section ... is in addition to any duty to indemnify established by law, contract, or otherwise.” Thus, Section 82.002(e) suggests that the indemnification duty under Chapter 82 is not affected by the mere creation of other contracts or obligations to indemnify.

Our “ultimate purpose” when construing statutes “is to discover the Legislature’s intent.” Presuming that lawmakers intended what they enacted, we begin with the statute’s text, relying whenever possible on the plain meaning of the words chosen. In addition, “we examine the entire act to glean its meaning,” try to give meaning to each word, and avoid treating statutory language as surplusage where possible. Finally — and essential here — we “presume that ‘the entire statute is intended to be effective.’ ”

The 20 words in Section 82.002(a) that K-2 ignores make clear that what is important is not merely whether a seller is independently liable, but why. Otherwise, all of those intervening words in Section 82.002(a) would be needless. Although we have not previously held that what matters is not merely whether but why a seller is independently liable, this Court has suggested as much: “To escape this duty to indemnify, the indemnitor must prove the indemnitee’s independent culpability.”

Section 82.002(a) exempts from indemnity a seller’s own “negligence, intentional misconduct,” or act “such as negligently modifying or altering the product” for which the seller would be independently liable. Section 82.002(a) does not always exempt losses arising from a contractual indemnity obligation. We express no opinion as to whether a loss need always be tortious to fit within the ambit of Section 82.002(a) — the statute includes “other aet[s] or omission|7?]” that may not necessarily be tortious. On today’s facts, though, K-2 has not conclusively established a loss for which it is exempt from indemnity.

Both the text of Section 82.002(a) and the other provisions of Chapter 82, such as 82.002(e), lead us to conclude that K-2 failed to prove that Fresh Coat’s settlement payment to Life Forms was caused by the type of act or omission for which K-2 owes no indemnity under the statutory exception.

III. Conclusion

Chapter 82’s text does not limit “product” to exclude items that may later become part of a house wall. Also, a “seller” under Chapter 82 may include those who sell both products and services, so that a person who contracts to both provide and install a single product may be considered a seller of that product. Finally, we hold that a manufacturer is not exempt from any loss for which a seller is independently liable. The statutory exception to indemnity is limited to losses caused by the seller’s tortious or otherwise culpable act or omission for which the seller is independently liable. We therefore affirm in part and reverse in part the court of appeals’ judgment, and render judgment for Fresh Coat in accord with the trial court’s original judgment.

      . 253 S.W.3d 386, 399 (Tex.App.—Beaumont 2008).

      . K-2 does not argue, however, that the evidence compels the conclusion that Fresh Coat's installation of EIFS caused the loss rather than the product itself. K-2 insteacl focuses upon Fresh Coat’s contractual liabilil ty. As discussed below, a jury found that K-M was responsible for the loss, not Fresh Coatí K-2 does not challenge that jury finding. I

      . Tex Civ. Prac. & Rem.Code § 82.001(3).

      . 253 S.W.3d at 392.

      . Black's Law Dictionary 1245 (8th ed.2004).

      . Restatement (Third) of Torts- Products Liability § 19 (1998).

      . Comment e clarifies that "courts have been reluctant to impose products liability on sellers of improved real property," but that "courts have treated sellers of improved real property as product sellers in a number of contexts.” For instance,
      [w]hen a building contractor who sells a building that contains a variety of appliances or other manufactured equipment, the builder, together with the equipment manufacturer and other distributors, are held as product sellers with respect to such equipment notwithstanding the fact that the built-in equipment may have become, for other legal purposes, attachments to and thus part of the underlying real property.

        Id. Comment e also notes that builders may be held liable as product sellers even with regard to homes when they sell prefabricated homes or other cookie-cutter-type homes as part of a large development.

      . See, e.g., Temple EasTex, Inc. v. Old Orchard Creek Partners, Ltd., 848 S.W.2d 724, 731-32 (Tex.App.-Dallas 1992, writ denied) (treating fiberboard as a product for purposes of products-liability claims); Bennett v. Span Indus., Inc., 628 S.W.2d 470, 472 (Tex.App.—Texarkana 1981, writ ref’d n.r.e.) (noting that had there been a defect in a component installed in a building, that defect might have supported a legitimate claim of products liability); Cupples Coiled Pipe, Inc. v. Esco Supply Co., 591 S.W.2d 615, 615-16, 618 (Tex.Civ.App.-El Paso 1979, writ ref'd n.r.e.); Hovenden v. Tenbush, 529 S.W.2d 302, 305-06 (Tex.Civ.App.-San Antonio 1975, no writ) (treating used bricks in a building as defective products after walls made with the bricks deteriorated).

      . Tex. Civ. Prac. & Rem.Code § 82.001(3).

      . 253 S.W.3d at 393.

      . See Restatement (Third) of Torts- Products Liability §§ 19, 20 (1998).

      . 253 S.W.3d at 393.

      . As noted above, the jury was instructed to exclude from its calculation of Fresh Coat's loss "any amount that constitutes loss caused by Fresh Coat's own negligence, intentional misconduct, or other act or omission, if any (such as negligently modifying or altering the product), for which Fresh Coat is independently liable.” The jury did not find the exception applicable, and K-2 does not argue that the jury's finding of loss is unsupported by legally sufficient evidence.

      . 253 S.W.3d at 396.

      . Tex. Civ. Prac. & Rem.Code § 82.002(a).

      . Id. (emphasis added).

      . Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 89 (Tex.2001); see also Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999).

      . Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651-52 (Tex.2006).

      . Meritor, 44 S.W.3d at 89; Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.1999).

      . City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003).

      . Meritor, 44 S.W.3d at 90; see also Jones v. Fowler, 969 S.W.2d 429, 432 (Tex.1998).

      . Perkins v. State, 367 S.W.2d 140, 146 (Tex.1963).

      . Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 402 (Tex.2000).

      . Meritor, 44 S.W.3d at 90 (quoting Tex Gov't Code § 311.021(2)).

      . Gen. Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 255 (Tex.2006) (emphasis added); see also Meritor, 44 S.W.3d at 90 (“In using the phrase 'caused by,’ rather than 'allegedly caused by,' the Legislature indicated that a mere allegation that the seller was negligent would not suffice to invoke the exception.”).


author: SANDEE BRYAN MARION, Justice.

text:
    Anthony LYNCH, Appellant, v. The STATE of Texas, Appellee.
    No. 04-09-00338-CR.
    Court of Appeals of Texas, San Antonio.
    April 7, 2010.
    Discretionary Review Refused June 30, 2010.

      Lori 0. Rodriguez, Assistant Public Defender, San Antonio, TX, for Appellant.
    Crystal D. Chandler, Assistant Criminal District Attorney, San Antonio, TX, for Appellee.
    Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, STEVEN C. HILBIG, Justice.
   OPINION

Opinion by:

SANDEE BRYAN MARION, Justice.

Following the denial of his motion to suppress and his motion for dismissal based on a denial of a speedy trial, appellant, Anthony Lynch, pled not guilty to the offense of driving while intoxicated. A jury found appellant guilty, and the trial court assessed punishment at six months’ confinement, probated. We affirm.

PLEA NEGOTIATIONS

In his first issue, appellant contends the trial court improperly participated in plea negotiations with the State and appellant, refused to enforce the agreement resulting from the negotiations, and refused to allow details of the agreement into evidence during the speedy trial hearing.

A trial judge should avoid participation in plea negotiations until an agreement has been reached, in order to “avoid the appearance of any judicial coercion or prejudgment of the defendant since such influence might affect the voluntariness of the defendant’s plea.” Perkins v. Court of Appeals, 738 S.W.2d 276, 282 (Tex.Crim.App.1987); see also Ex parte Shuflin, 528 S.W.2d 610, 617. (Tex.Crim.App.1975). Here, as explained below, the record does not support appellant’s contentions.

On April 17, 2008, a hearing was held on appellant’s motion to dismiss his case for failure to provide him a speedy trial. In the course of questioning appellant on how the delay in getting to trial had affected him, defense counsel asked whether the delay had cause appellant any “emotional problems.” The State interrupted, asked “for an objection,” and asked to be heard in chambers with defense counsel. After a discussion was held in chambers between the judge, defense counsel, and the State and everyone came back into the courtroom, the trial court stated on the record as follows:

The Court has recessed this hearing and will continue to do so. There have been some substantial off-the-record discussions in chambers without the defendant present, although he is in court, but with defense counsel and the State’s lawyers and the Court.
We’re going to recess this matter for sixty days.

No record of the in-chambers conference was made. The next speedy trial hearing occurred almost one year later, on May 18, 2009. Defense counsel asked that the record reflect an in-chambers conference had been held “and there was a relevant, I guess, an agreement of some kind. I wouldn’t call it a plea bargain agreement. It was an agreement that was entered into between the State and the defendant.” At this hearing, appellant testified he believed that as long as he provided documentation showing he was receiving regular treatment by a psychologist, his case would be dismissed. In the midst of discussing both defense counsel’s request to obtain the State’s file on which the agreement was allegedly noted and the State’s work-product objection to the request, the trial court stated that the State’s characterization of the agreement, defense counsel’s characterization of the agreement, “just as my own characterization of any notes I have, they’re not the same as an actual agreement.” The court also stated as follows:

So the Court of Appeals is going to have to figure out that, in fact, there were some discussions held in my office because of the conditions that were being exhibited in open court [on April 17, 2008] which brought about the need for further sensitivities. This was not treated like a regular case and everybody knows that.

No written plea bargain was admitted into evidence and the specific terms of any such agreement are not part of either the clerk’s record or the reporter’s record on appeal. Therefore, we must conclude the record does not support appellant’s contention that a plea bargain was actually reached during the April 17, 2008 discussion between the defense and the State. Accordingly, appellant’s first issue is without merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his second issue, appellant asserts defense counsel did not render effective assistance of counsel because he failed to ensure the record reflected what transpired in the judge’s chambers on April 17, 2008, he failed to follow through with the plea bargain, his failure to attend to appellant’s case undermined the speedy trial claim, and he failed to apprise appellant of developments in his case.

To prevail on this complaint, appellant had the burden to prove by a preponderance of the evidence that: (1) counsel’s performance was deficient, ie., his assistance fell below an objective standard of reasonableness; and (2) appellant was prejudiced, ie., a reasonable probability exists that but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Id. To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id.

A motion for new trial was not filed; however, our review of the record from both speedy trial hearings indicates defense counsel and the State reached some sort of agreement during the first hearing when counsel met in the judge’s chambers. Exactly what the agreement was is unclear because counsel did not reduce it to writing or place the substance of the agreement on the record. The record also indicates that, despite counsel’s own belief that appellant’s case would be dismissed upon compliance with an agreement, defense counsel did not pursue a written dismissal or any other disposition of appellant’s case. Finally, the record indicates appellant started seeing a mental health professional in an attempt to comply, at least in part, with his understanding of the terms of the agreement.

However, the acts or omissions that form the basis of appellant’s claim of ineffective assistance must be supported by the record. Id. at 814. A silent record that provides no explanation for counsel’s actions usually will not overcome the strong presumption of reasonable assistance. Id. at 813-14. Therefore, we must conclude appellant has not demonstrated on this record that-he received ineffective assistance of counsel.


author: MARIALYN BARNARD, Justice.

text:
    In the Interest of P.P.M.I., a Child.
    No. 04-10-00096-CV.
    Court of Appeals of Texas, San Antonio.
    April 21, 2010.
    Michael W. White, Attorney at Law, San Antonio, TX, for Appellant.
    Jaclyn Y. Roberson, Bexar County Assistant District Attorney, San Antonio, TX, for Appellee.
    Patricia Blaschke DeVeau, Law Office of Patricia B. DeVeau, San Antonio, TX, for Ad litem.
    Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

MARIALYN BARNARD, Justice.

Following a bench trial, the trial court entered an order terminating the parental rights of P.P.M.I.’s mother and father. The mother, Darleen Marie Ibarra, timely perfected an appeal. We affirm.

Because the termination was instituted by the Texas Department of Family and Protective Services, section 263.405 of the Texas Family Code governs this appeal. See Tex. Fam.Code Ann. §§ 263.002, 263.405(a) (Vernon 2008). Section 263.405(b)(2) requires that a party who intends to appeal a termination order must file “a statement of the point or points on which the party intends to appeal.” Id. § 263.405(b)(2). Section 263.405(f) provides the appellate court “may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial.” Id. § 263.405®. Until recently, the failure to file the required statement of appellate points precluded appellate review of any issue, and the appellate court had no choice but to affirm. See, e.g., In re R.J.S., 219 S.W.3d 623, 626-27 (Tex.App.Dallas 2007, pet. denied); In re S.E., 203 S.W.3d 14, 15 (Tex.App.-San Antonio 2006, no pet.). However, in J.O.A., the supreme court held an ineffective assistance of counsel complaint could be raised on appeal even if it was not included in a statement of appellate points under section 263.405(f). In re J.O.A., 283 S.W.3d 336, 339 (Tex.2009). The court also held that an assertion that the statute is unconstitutional as applied to the party, so as to allow the party to raise sufficiency points, also could be raised even if it was not included in the statement of appellate points. Id.

In this case, Ibarra did not file a statement of appellate points as required by section 263.405(b)(2). To determine whether she intended to raise any of the issues permitted by J.O.A. in the absence of a statement of appellate points, we ordered her to file a document in this court, advising us of the issues she intended to raise on appeal. In response to our order, Ibarra filed a document entitled “List of Issues That Appellant Raises In This Appeal.” In that document, Ibarra states she intends to contest the sufficiency of the evidence to support the trial court’s findings that she “failed to comply with the provisions of a court Order that specifically established the actions necessary for the mother to obtain the return of the child,” and that “appointment of [Ibarra] as permanent managing conservator of the child is not in the child’s best interest because the appointment would significantly impair the child’s physical or emotional development.” Ibarra does not assert that she intends to claim the statute requiring a statement of appellate points is unconstitutional as applied to her, nor does she contend she was deprived of effective assistance of counsel. Accordingly, in the absence of a statement of appellate points or the assertion of any of the issues allowed by J.O.A., we must affirm the trial court’s judgment of termination.

We affirm the trial court’s judgment.


author: TOM GRAY, Chief Justice.

text:
    Hernando RAMIREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 10-10-00157-CV.
    Court of Appeals of Texas, Waco.
    May 19, 2010.

      Hernando Ramirez, Beeville, pro se.
    John W. Segrest, McLennan County Dist. Atty., Waco, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

TOM GRAY, Chief Justice.

Hernando Ramirez attempts to appeal the trial court’s order of withdrawal of court costs and fees from Ramirez’s inmate account. Tex. Gov’t Code Ann. § 501.014(e) (Vernon Supp. 2009). The Clerk of this Court notified Ramirez that we questioned our jurisdiction because it appeared there was no appealable order. Ramirez responded that the trial court’s order for withdrawal is final and that he is being denied his property without due process of law. Because we disagree with Ramirez about the finality of the trial court’s order, we dismiss the appeal.

There is no final order to be appealed. Although called an “order,” the document Ramirez is seeking to have reviewed is nothing more than the notiee to the Texas Department of Criminal Justice that a judgment has been rendered against Ramirez and that, pursuant to the statute, the Department should withdraw money from his inmate account. Tex. Gov’t Code Ann. § 501.014(e) (Vernon Supp. 2009). As the statute states:

On notification by a court, the department shall withdraw from an inmate’s account any amount the inmate is ordered to pay by order of the court under this subsection ... The department shall make a payment under this subsection as ordered by the court to either the court or the party specified in the court order. The department is not liable. for withdrawing or failing to withdraw money or making payments or failing to make payments under this subsection....

Id. (emphasis added); see also In re Rosin, 256 S.W.3d 925, 925 (Tex.App.-Waco 2008, C.J. Gray dissenting to request for response).

When the required notice of withdrawal of money from an inmate account is sent to the Texas Department of Criminal Justice, regardless of its form, the inmate has an opportunity to be heard by the trial court about the amount to be withdrawn. See Harrell v. State, 286 S.W.3d 315, 321 (Tex.2009). This “opportunity5’ to be heard does not have to be before the notice is provided to the inmate to fulfill the minimum requirements of due process. As the Texas Supreme Court stated, “We hold an inmate is entitled to notice just as happened here (via copy of the order, or other notification, from the trial court) and an opportunity to be heard just as happened here (via motion made by the inmate [directed to the trial court])— but neither need occur before the funds are withdrawn. Moreover, appellate review should be by appeal, as in analogous civil post-judgment enforcement actions.” Id.

Ramirez has not filed anything in the trial court asking for an opportunity to be heard regarding the amount of money to be withdrawn from his inmate account. If he has not already had the opportunity to challenge the specific amount of the judgment to be withdrawn from his account, such as by direct appeal of the original judgment, Ramirez’s review of the trial court’s action will be after he has challenged the court’s notice/order by motion, thus giving the trial court the opportunity to correct it if it is erroneous or thereby preserve the error for appellate review. Only when properly challenged and denied relief is there a trial court order that is final from which the inmate, Ramirez, can appeal. Thus, at this juncture, he has no adverse ruling for this Court to review.

Accordingly, this appeal is dismissed.

      . Courts have frequently referred to these as inmate ‘'trust” accounts. The term “trust” has been removed from their statutory references. Act of 1989, 71st Leg., ch. 212, § 2.01, eff. Sept. 1, 1989, amended by Act of 1999, 76th Leg., ch. 62, §§ 8.10, 19.02(8), eff. Sept. 1, 1999 (current version at Tex. Gov't Code Ann. § 501.014 (Vernon Supp. 2009)). They are simply inmate accounts. While there may be a custodial relationship between the Department and the inmate as to the money in the account, an issue not decided by us today, there is certainly no trustee/beneficiary relationship wherein the Department is burdened with all the duties of a trustee with regard to the inmate’s money.


text:
    In re STATE of Texas.
    No. 11-10-00172-CR.
    Court of Appeals of Texas, Eastland.
    July 8, 2010.

      Teresa J. Clingman, Dist. Atty., Eric Kalenak, Assistant District Attorney, Midland, for relator.
    C.H. (Hal) Brockett, Jr., Brockett & McNeel, LLP, Midland, for respondent & real party in interest.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

PER CURIAM.

Relator, the State of Texas, seeks a writ of mandamus compelling respondent, Hon. Robin Malone Darr, Judge of the 385th District Court of Midland County, to vacate her “Order on Defendant’s Motion to Interview Child.” Respondent entered the order on January 20, 2010, in Cause No. CR36352, styled State of Texas v. Justin Miller. In Cause No. CR36352, Miller has been indicted for the offense of aggravated sexual assault of a minor who was younger than thirteen years old at the time of the alleged offense. Miller’s attorney filed a motion to interview the child. Following a hearing on the motion, respondent entered her order allowing an interview of the child as follows:

IT IS THE ORDER OF THE COURT that the counsel for defense may propound written interrogatories that shall be presented to the child by the same neutral individual who made the initial inquiries, if possible. The questions shall be propounded to the child at the Children’s Advocacy Center and recorded under the same or similar circumstances as was used in the previous interview of the child. Counsel for Defense may watch and listen to the interview by close circuit television and may propound additional questions through the neutral interviewer after the written interrogatories are addressed and answered. The entire questioning and answering of defense questions shall be limited to one hour. The one hour time limit will not include introductory questions and conversation initiated by the interviewer. The one hour time limit will begin when the interviewer begins asking the submitted interrogatories.

Respondent also provided in her order that the State could watch the interview by close circuit television and propound questions after defense counsel’s questions had been answered.

On June 30, 2010, the State filed its petition for writ of mandamus in this court. The State asserts in its petition that respondent abused her discretion in entering the January 20, 2010 order. Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles. Smith v. Flack, 728 S.W.2d 784, 792 (Tex.Crim.App.1987); see Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex.1993); Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793, 795 (1941). One such principle is that “[e]quity aids the diligent and not those who slumber on their rights.” Rivercenter, 858 S.W.2d at 367 (quoting Callahan, 155 S.W.2d at 795). Therefore, mandamus relief may be denied to a party for lack of diligence. In re Users Sys. Servs., Inc., 22 S.W.3d 331, 337 (Tex.1999) (orig. proceeding); Rivercenter, 858 S.W.2d at 367; In re Wise, 20 S.W.3d 894, 895 (Tex.App.-Waco 2000, orig. proceeding). When the record does not reveal a justification for the delay in filing a petition for writ of mandamus, a court may appropriately deny mandamus relief. Rivercenter, 858 S.W.2d at 367; see also In re Xeller, 6 S.W.3d 618, 624 (Tex.App.-Houston [14th Dist.] 1999, orig. proceeding) (delay alone provides ample ground to deny mandamus relief).

In this case, the State did not file its petition for writ of mandamus until more than five months after respondent entered her order. The record does not reveal a justification for the State’s unexplained lengthy delay in seeking mandamus relief. By waiting more than five months to request mandamus relief, the State has not diligently pursued its complaint to respondent’s order. See Rivercenter, 858 S.W.2d at 367; In re Xeller, 6 S.W.3d at 624. Therefore, we deny mandamus relief to the State.

The State’s petition for writ of mandamus is denied.

      . The order was filed on January 21, 2010.

      . The Texas Court of Criminal Appeals often looks to the Texas Supreme Court decisions for guidance in mandamus cases. See, e.g., State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 926 (Tex.Crim.App.1994, orig. proceeding) (citing Callahan); Smith, 728 S.W.2d at 792 (citing Callahan); see also Perkins v. Court of Appeals for the Third Supreme Judicial Dist. of Tex., at Austin, 738 S.W.2d 276, 285 (Tex.Crim.App.1987) (“[W]e look to the Supreme Court of Texas for guidance in this area of the law.”).


author: Justice BENAVIDES.

text:
    Benito LOPEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 13-09-00218-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    July 15, 2010.

      Virginia Koblizek Burt, Sinton, for Appellant.
    Anna Jimenez, Dist. Atty., Douglas K. Norman, Asst. Dist. Atty., Corpus Christi, for Appellee.
    Before Justices RODRIGUEZ, BENAVIDES, and VELA.
   OPINION

Opinion by

Justice BENAVIDES.

Appellant, Benito Lopez, appeals from the trial court’s revocation of his deferred adjudication community supervision. See Tex.Code Crim. Proc. Ann. art. 42.12 §§ 5(b), 23 (Vernon Supp. 2009). By two issues, Lopez argues that the State improperly amended the motion to revoke his community supervision two days before the revocation hearing, in violation of article 42.12 section 21(b) of the Texas Code of Criminal Procedure, see id. art. 42.12 § 21(b), and that he received ineffective assistance of counsel during the revocation hearing. We affirm.

I. Background

On February 17, 2005, Lopez was indicted on one count of murder and two counts of aggravated assault. See Tex. Penal Code Ann. § 19.02 (Vernon 2003), § 22.02 (Vernon Supp. 2009). Pursuant to a plea bargain, Lopez pleaded guilty, and on December 13, 2005, the trial court deferred adjudication and placed Lopez on five years of community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(a).

On August 1, 2006, the State filed a motion to revoke Lopez’s community supervision, alleging seven violations. Lopez pleaded “true” to six of the alleged violations, including (1) testing positive for marijuana; (2) failing to report to his supervision officer; (3) failing to pay court costs; (4) failing to pay a photo identification fee; (5) failing to pay a monthly supervision fee; and (6) failing to observe a curfew. Lopez denied the seventh allegation, which was that he failed to complete his community service. The trial court found that Lopez violated the terms of his community supervision but did not proceed to adjudicate guilt. Instead, the trial court continued Lopez on community supervision and imposed sanctions, including requirements that Lopez (1) attend the Coastal Bend Outpatient Program for anger management; (2) abide by a curfew for an additional six months; and (3) serve sixty days in the Nueces County Jail (known as the S.P.U.R.S. program).

On January 24, 2008, the State filed a second motion to revoke Lopez’s community supervision. The State alleged eight violations of Lopez’s supervision. Lopez pleaded “true” to five of the allegations: (1) failing to report to his supervision officer; (2) failing to pay court costs; (3) failing to complete the Coastal Bend Outpatient program; (4) failing to complete community service; and (5) failing to complete the S.P.U.R.S. program. Lopez denied that he had failed to attend anger management classes and failed to comply with two conditions of his supervision relating to MHMR counseling. No express ruling appears in the record on the State’s second motion to revoke; however, the trial court’s docket sheet indicates that on February 19, 2008, the trial court continued Lopez on community supervision and sanctioned him by extending the term of supervision for a year, with the further conditions that Lopez participate in the MHMR program previously ordered by the court.

The State then sought, for the third time, to revoke Lopez’s community supervision. The record shows that on March 2, 2009, the State filed what it called an “Amended Second Original Motion to Revoke.” The motion that this “amended” motion supposedly sought to amend was not included in the record. In the amended motion, the State alleged that Lopez violated his community supervision by (1) burglarizing a habitation; (2) burglarizing six different vehicles; (3) testing positive for marijuana on two separate occasions; (4) failing to pay court costs, photo identification fees, and monthly supervision fees; (5) failing to attend the Coastal Bend Outpatient Program; and (6) failing to complete community service.

The trial court held a hearing on this motion two days later on March 4, 2009. At the hearing, Lopez’s counsel announced ready. The trial court looked through its file, attempting to locate the motion to revoke, but could not locate it. Finally, the court located the amended motion and asked Lopez if he had received a copy of the “second amended motion that was filed on March the 2nd of 2009,” and Lopez answered, ‘Tes, sir.” The trial court then asked if Lopez had an opportunity to discuss the motion with his attorney, and Lopez said he had. Lopez then waived the reading of the motion. Lopez’s counsel did not object that the amended motion had been filed only two days before the hearing or that the original motion was missing from the record.

The State abandoned its allegation that Lopez burglarized a habitation, and Lopez then pleaded “true” to all of the allegations in the State’s motion. The State asked the trial court to take judicial notice of Lopez’s guilty plea and Lopez’s testimony during the trial of his co-defendant. The State then made the following argument:

I think, and I’m asking the Court that enough is enough on Mr. Lopez that his chance, the excuse of being young and stupid was when he was given probation when he testified. Thank you for testifying. Now, go be a good citizen; however, he pretty much ignored that opportunity, continued to violate the law, have additional victims, and what I’m asking the Court to do is to give closure to the family of Inocension Lerma, the mom and dad who are sitting here and his family and to close the chapter on the death of their son.
There’s always been a matter of time of holding Mr. Lopez accountable and today is judgment day for Benito Lopez and for his role in it and it’s time to pay the piper for what he did.
It is my request of the Court on behalf of the family that Mr. Lopez have his deferred adjudication revoked and that he be sentenced to the Institutional] Division of the Texas Department of Criminal Justice for a period of between 5 and 99 years or life that the Court believes is just for the opportunities Mr. Lopez has received, for participation in this crime and for his continually ignoring the laws of the State of Texas, continually disregarding the citizens, doing what he wants to do.
I think Mr. Lopez has shown that as long as he’s at large, our citizens are in danger. I ask the Court to assess a heavy and severe sentence that the Court believes is appropriate.

Defense counsel called Lopez’s sister, Melinda Nava, to testify on his behalf. Nava claimed that Lopez was bipolar and taking medication. She claimed that he does not have a car and that she tried to help him attend all the required meetings for his community supervision until she had a liver transplant a year earlier. She claimed that Lopez could not pay the costs and other fees ordered by the trial court because he was depressed and could not get a job because of his criminal record.

The State then called Gloria Lerma, the mother of the murder victim, to testify regarding punishment. At the end of the testimony, the following exchange occurred regarding sentencing:

[Defense Counsel]: I would ask the Court instead of sending him to prison, to — if the Court is going to adjudicate[,] to adjudicate him and send him to the county jail for a significant period of time, such as 180 days and put him on an intensive supervision program. Part of that program be that he gets special needs help to help him with his bipolar and his depression and also help through a restitution setting.
I know in Sinton they have a restitution center there. I’m not sure if we have that here, but to have him go to a restitution center so hopefully they can get him lined up with a job so he can start making his Court cost[s] and his payments and finish his community service hours and hope that he can try to do as much as he can possibly humanly do to pay the restitution in this case, to help for what he’s done in this case.
Obviously, he can’t bring back the victim. There’s nothing he can do that [sic]. He did testify in the case. I think — I think he did as much as he could do on that point. There is like what he said, there is no justification for breaking into people’s cars, the fact that you’re poor is not an excuse. I understand that, and the fact that you have mental problems is not an excuse either.
I do believe he’s a young man. I do believe that the — the Court was to sanction him, adjudicate him, leave him on prohibition [sic], put him in the county jail for a significant period of time and then if released put him on an ISP program, electronic monitoring, make sure that he gets help, special needs in some form of restitution center so that he can learn a trade even with the — the conviction on his record that he can go on with his life. That’s the extent of our argument.
[The State]: In closing, Your Honor, murder is a 3G offense. You cannot adjudicate murder and put someone on probation. It has to be — it has to be TDC, number one.The state’s position that since he’s continued to commit crimes, apparently, showing no remorse by causing the victims that the punishment should fit the crime[,] and the crime is murder.
[Defense Counsel]: Interestingly, correct on that. I do remember the change being on the murder if there is no probation. That being the case, I would ask the Court to take into consideration what we have heard from—
[The State]: I don’t think there is an opportunity to — I think the state is entitled to the closing argument.
[Defense Counsel]: That’s fine. I just ask that the Court consider what the sister has told us considering the length of time the Court is going to sentence.

The trial court adjudicated Lopez guilty of murder and two counts of aggravated assault and sentenced him to twenty years’ imprisonment in the Texas Department of Criminal Justice — Institutional Division. Lopez did not file a motion for new trial. This appeal ensued.

II. Ineffective Assistance of Counsel

By his first issue, Lopez argues that his counsel was ineffective because, after the State argued for a heavy sentence, his counsel asked the trial court to adjudicate him guilty and then probate the sentence, which is prohibited in murder cases. See id. art. 42.12 § 3(g). Lopez argues that his “attorney did not have a knowledgeable grasp of the law and facts surrounding the circumstances of the charges,” and there can be “no valid trial strategy for being wrong.” He argues that he had “one chance at the hearing to establish a feasible recommendation to the court as an alternative to the state’s pronouncement of a severe prison sentenced and his attorney made a critical error that did not serve [his] best interest.” We disagree.

We apply the two-pronged Strickland analysis to determine whether counsel’s representation was so deficient that it violated a defendant’s constitutional right to effective assistance of counsel. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005); Jaynes v. State, 216 S.W.3d 839, 851 (Tex.App.-Corpus Christi 2006, no pet.); see Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An appellant claiming a Strickland violation must establish that (1) “his attorney’s representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for his attorney’s errors, the result of the proceeding would have been different.” Jaynes, 216 S.W.3d at 851; see Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

We afford great deference to trial counsel’s ability — “an appellant must overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Jaynes, 216 S.W.3d at 851. The appellant must prove both elements of the Strickland test by a preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex.App.-Corpus Christi 2000, no pet.).

First, we disagree with Lopez’s characterization of the revocation hearing. Although his attorney requested the trial court proceed with adjudication and then probate the sentence, his arguments are also consistent with a request that the trial court not adjudicate Lopez but instead sanction him and continue the deferred adjudication community supervision, which was in the trial court’s power. See Tex. Code Crim. Proc. Ann. art. 42.12 § 22. Additionally, contrary to Lopez’s argument, his trial counsel did ask for a reduced sentence in light of Lopez’s sister’s testimony, which offered explanations for some of the community supervision violations.

Second, and more importantly, Lopez has not presented any evidence that, absent his attorney’s erroneous legal argument, the result would have been different. See Ex parte Battle, 817 S.W.2d 81, 84 (Tex.Crim.App.1991) (holding that the defendant proved prejudice from attorney’s faulty advise regarding availability of probation where defendant would not have pleaded guilty but for faulty advice); State v. Recer, 815 S.W.2d 730, 731-32 (Tex.Crim.App.1991). Lopez does not argue that he would not have pleaded “true” to the allegations in the State’s motion to revoke if he had known that he could not be adjudicated and have the sentence probated. Furthermore, Lopez does not provide this Court with an alternative to the sentence he received that the trial court would have, more probably than not, adopted.

The simple fact is that Lopez admitted numerous violations of his community supervision, and the trial court, on two prior occasions, had refused to adjudicate Lopez’s underlying crimes and had continued his community supervision. Lopez used up his last chance by violating the terms of his community supervision yet again. There is nothing to suggest that, had his counsel made some other argument, he would have received yet another chance or a reduced sentence. We overrule his first issue.

III. Amended Motion To Revoke Community SupeRvision

By his second issue, Lopez argues that the State amended its motion to revoke two days before the hearing without a showing of good cause, in violation of article 42.12, section 21(b) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proe. Ann. art. 42.12 § 21(b). That section provides, in relevant part:

In a felony case, the state may amend the motion to revoke community supervision any time up to seven days before the date of the revocation hearing, after which time the motion may not be amended except for good cause shown, and in no event may the state amend the motion after the commencement of taking evidence at the hearing. The judge may continue the hearing for good cause shown by either the defendant or the state.

Id.

The State concedes that the amendment was untimely but argues that Lopez waived this issue by failing to object in the trial court. Lopez argues that his right to avoid proceeding on an untimely amended motion to revoke is a “waivable only” right and that because he did not expressly waive the error, we can review it. In the alternative, Lopez argues that by failing to object, his counsel was ineffective. We agree with the State that Lopez cannot prevail on his issue, but for a different reason.

As the Texas Court of Criminal Appeals has explained, community supervision is a contractual privilege, not a systemic right, and Lopez does not argue otherwise. See Speth v. State, 6 S.W.3d 530, 534 (Tex.Crim.App.1999). In this case, Lopez complains of a statutory violation, which is subject to rule 44.2(b)’s harm analysis. Tex.R.App. P. 44.2(b); see Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex.Crim.App.1999); see, e.g., Curry v. State, 966 S.W.2d 203, 206 (Tex.App.-El Paso 1998), vacated in part on other grounds by 975 S.W.2d 629 (Tex.Crim.App.1998) (applying rule 44.2(b) to error in allowing untimely amendment of indictment). Under rule 44.2(b), we may not reverse a conviction based on error that does not affect the defendant’s substantial rights. Tex.R.App. P. 44.2(b). Lopez has not made such a showing here.

When Lopez appeared at the hearing, the trial court asked whether he had reviewed the amended motion with his attorney, and Lopez affirmatively represented that he had. Lopez then waived the reading of the motion and pleaded “true” to every allegation in the amended motion. There is nothing in the record showing that a continuance of five more days to allow compliance with the statute would have resulted in a different plea to any of the alleged violations of community supervision. See id.; see also Brown v. State, No. 04-04-00465-CR, 2005 WL 1276401, at *1 (Tex.App.-San Antonio June 1, 2005, no pet.) (mem. op., not designated for publication) (holding that defendant failed to show harm from violation of article 42.12 section 21(b) by pleading “true” to at least one of the allegations in the original motion).

For the same basic reason, Lopez could not prevail on a claim of ineffective assistance of counsel. Even assuming that his attorney was ineffective in failing to object to the untimely amendment, Lopez does not point to anything in the record demonstrating that, but for his attorney’s errors, the result of the proceeding would have been different. Jaynes, 216 S.W.3d at 851; see Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Accordingly, we overrule Lopez’s second issue.

IV. Conclusion

Having overruled both of Lopez’s issues, we affirm the trial court’s judgment.

      . There are three distinct types of rights that require the application of differing rules of procedural default: “(1) absolute requirements and prohibitions; (2) rights of litigants that must be implemented by the system unless expressly waived; and (3) rights of litigants that are to be implemented upon request.” Anderson v. State, 301 S.W.3d 276, 279 (Tex.Crim.App.2009). Absolute rights must be implemented regardless of whether they are requested and even if both parties object. Id. "Waivable” rights are those that are not forfeited by inaction alone, but must be expressly waived. Id. "All other complaints, whether constitutional, statutory, or otherwise, are subject to forfeiture, and fall into the third category.” Id. This framework of procedural default was set forth by the Texas Court of Criminal Appeals in a 1993 in Marin v. State, 851 S.W.2d 275 (Tex.Crim.App.1993), overruled on other grounds by Cain v. State, 947 S.W.2d262 (Tex.Crim.App.1997). Prior to Marin, this Court held that the failure to object to an untimely amendment to a motion to revoke waives the error. See Burns v. State, 835 S.W.2d 733, 735 (Tex.App.-Corpus Christi 1992, pet. ref'd). We have not determined where article 42.12, section 21(a) fits within Marin's framework, although we have followed Bums in an unpublished decision since Marin was decided. See Giordano v. State, No. 13-96-285-CR, 1998 WL 34201885, at *1 (Tex.App.-Corpus Christi Apr. 23, 1998, no pet.) (not designated for publication). Our sister courts of appeal have also followed Burns without analyzing Marin’s impact. See, e.g., Lewis v. State, 195 S.W.3d 205, 208 (Tex.App.-San Antonio 2006, no pet.). We need not decide the issue now because, even if the right Lopez asserts now was "waivable only,” he still was required to show harm from the error. See Tex.R.App. P. 44.2(b).