author: MARIALYN BARNARD, Justice.

text:
    Michael McCALLUM, Appellant v. The STATE of Texas, Appellee.
    No. 04-08-00844-CR.
    Court of Appeals of Texas, San Antonio.
    Jan. 27, 2010.

      James C. Oltersdorf, Attorney at Law, San Antonio, TX, for Appellant.

      Kevin P. Yeary, Assistant Criminal District Attorney, San Antonio, TX, for Appel-lee.
    Sitting: KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

MARIALYN BARNARD, Justice.

A jury found appellant Michael McCal-lum guilty of criminally negligent homicide, and assessed punishment at confinement for eighteen years. McCallum does not challenge the sufficiency of the evidence; instead, he raises three procedural complaints: the trial court erred in (1) denying his request for an accomplice-witness instruction in the jury charge, (2) admitting evidence indicating McCallum was a member of the Aryan Brotherhood, and (8) assessing punishment beyond the prescribed statutory maximum. He contends alternatively that if we hold his second issue is waived because of an inadequate objection, his counsel was ineffective for failing to object properly. The State raises a cross point, asking that we reform the judgment to properly reflect the jury’s finding that McCallum committed the offense with a deadly weapon. We affirm the trial court’s judgment as reformed with regard to the deadly weapon finding.

Background

On the evening of August 5, 2004, McCallum and his stepson, Alex, walked to a convenience store to buy beer. When they got there, Thomas Pribyl, who appeared to be intoxicated, approached them and offered to give McCallum Xanax if McCallum would purchase beer for him. After McCallum bought Pribyl some beer, the three men walked to Pribyl’s father’s house to get the Xanax. Once at Pribyl’s father’s house, the men stayed in the driveway drinking beer and talking. Pri-byl and McCallum each mentioned they had been to prison. McCallum pulled off his shirt and showed Pribyl several tattoos. In response, Pribyl showed McCal-lum his small swastika tattoo. Soon after, Pribyl went into the house to get the Xa-nax. While Pribyl was inside, McCallum told Alex he did not believe Pribyl had actually served time, and he thought Pri-byl had done the tattoo himself. Once Pribyl returned with the bottle of Xanax, McCallum offered to trade methadone for more Xanax, and Pribyl agreed.

The three men then set out on foot for McCallum’s home. About the time they approached McCallum’s street, McCallum confronted Pribyl, stating “I don’t think you are who you say you are.” Pribyl appeared confused and asked McCallum what he was talking about. According to Alex’s testimony, McCallum then turned around and punched Pribyl in the head. Alex testified the attack was unprovoked. Alex said Pribyl then “went completely stiff and just fell back, fell straight back” “like a board” as if he were “out cold before he even hit the ground.... ” After Pribyl hit the ground, he did not move. At first, McCallum and Alex continued walking, leaving Pribyl in the street. However, McCallum soon suggested they go back and check on Pribyl. When they returned, they found Pribyl sitting on the curb, slumped over; he appeared dazed. McCallum asked Pribyl, “Hey man, what happened? Are you all right? What happened there?” Pribyl did not respond coherently, but McCallum helped him up, and the trio again began walking together towards McCallum’s house “as if nothing happened.”

Alex testified that Pribyl had a box cutter in his hand, but was not threatening any one with it. Nevertheless, in an aggressive tone McCallum asked Pribyl, “Are you going to cut me with that?” McCallum then took the box cutter away from Pribyl and put it in his pocket. The men continued walking, but Alex stated Pribyl was “just kind of stumbling along.” Fifteen yards down the road, McCallum again struck Pribyl in the head. Alex testified that Pribyl again fell “[c]ompletely straight, like a board.” After Pribyl hit the ground he was completely still. Alex said that this time he kept walking, and admitted that at no time did he try to help Pribyl nor did he call 911. He claimed he did not want to show weakness in front of McCallum.

Alex said McCallum was quiet as they walked the rest of the way to the house. When they got to the house, McCallum told his wife Natalie, “I hit a guy who was false-claiming.” McCallum told her he “laid him out.” At this point, Alex went to bed, but McCallum went back outside. He returned after twenty minutes. Natalie testified that when he returned he was upset, believing Pribyl might be dead. Natalie said he left again, and this time he was gone for almost two hours. However, when he returned he was no longer worried that Pribyl might have died.

The evidence showed that at some point Pribyl got up. He walked to a house and started banging on the door. The resident called police. Police, as well as Pribyl’s father and brother, eventually arrived. Pribyl’s family took him home and put him on the couch. However, the next day his father could not wake him up. Pribyl’s father called 911, and Pribyl was taken to the hospital.

At the hospital, Pribyl was taken to surgery. After the surgery, doctors told Pribyl’s family that he had suffered “severe brain damage and brain trauma,” and they did not believe' he would recover. After several days, Pribyl was taken off of life support; he died almost immediately. The hospital records showed Pribyl died of a “cerebral potine hemorrhage.”

At trial, medical examiner Kimberly Molina testified that the type of injury suffered by Pribyl occurs when “the brain kind of smooshes over” into the area that talks to the rest of the body. She stated the cause of death was head trauma, and Pribyl’s injuries were consistent with being hit in the head and then falling to the ground. Molina said that in her opinion the cause of death was “[bjlunt force trauma to the head,” and the manner of death was homicide.

Natalie testified that several days after McCallum hit Pribyl, McCallum gave her a bracelet. McCallum told Natalie he wanted her to take the bracelet to a pawn shop. Natalie stated she thought the bracelet might have belonged to one of McCallum’s many girlfriends. She did as McCallum asked and pawned the bracelet. Thereafter, Natalie said she began getting telephone calls from a detective. Police had recovered the bracelet from the pawn shop — it belonged to Pribyl.

Alex testified that the day after the attack on Pribyl, McCallum gave him a wallet. Alex stated he believed it was Pribyl’s wallet. Alex put it on his dresser; Natalie admitted seeing it there. After Alex was questioned by police about Pribyl, McCal-lum told Alex the wallet belonged to Pri-byl, and told Alex to get rid of it. Alex threw it into the yard of a vacant home after wiping it down. It was never recovered.

For approximately two years, neither Natalie nor Alex assisted police in their investigation. Eventually, Natalie was given immunity in exchange for her agreement to testify truthfully. She appeared before the grand jury and at trial. As for Alex, McCallum had given him a story to tell police — that after they left Pribyl’s house, Pribyl went off in the direction of the convenience store and that was the last time they saw him. According to Alex, McCallum threatened him, so Alex admitted that he stuck to the story McCallum told him to tell until he was called to testify before the grand jury. Alex then, and at trial, testified about McCallum’s attack on Pribyl. Alex denied hitting Pri-byl, and denied planning any assault on Pribyl.

Discussion

Jury Charge

McCallum first contends the trial court erred when it refused his request for article 38.14 accomplice-witness instructions regarding Alex and Natalie. See Tex.Code Crim. Proc. Ann. art. 38.14 (Vernon 2005) (stating conviction cannot be had upon testimony of accomplice unless corroborated by other evidence tending to connect defendant with offense). McCallum argues there was evidence that Alex and Natalie were accomplices. He asserts both Alex and Natalie “could be considered parties” to the crime “because they both gave false police reports on several occasions.” Additionally, “Alex destroyed evidence by getting rid of the victim’s wallet,” and “Natalie was aware of the wallet on Alex’s dresser ... and pawned a bracelet within days of being told about the assault.” Based on their testimony, McCallum concludes a jury could have determined Natalie and Alex “were simply protecting each other from prosecution,” and that “[r]ational jurors could have found the State’s case less persuasive had they been properly instructed that they could not accept Alex’s testimony without corroboration from other evidence tending to connect McCallum to the offense.”

We review the trial court’s decision to deny a request for an accomplice-witness instruction under an abuse of discretion standard. See Paredes v. State, 129 S.W.3d 530, 538 (Tex.Crim.App.2004). A trial court abuses its discretion when its ruling is outside the zone of reasonable disagreement. Young v. State, 283 S.W.3d 854, 874 (Tex.Crim.App.2009) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g)). If the appellate court determines the trial court erred regarding the jury charge, it must then evaluate the harm caused by the error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) If there was no objection in the trial court and the alleged error is raised for the first time on appeal, the appellant must show egregious harm to obtain relief. Id. If error is preserved in the trial court, the appellant need only show some harm. Id. Harm is determined by reviewing the entire charge, the state of the evidence, arguments of counsel, and any other relevant information shown by the record. Id.

“An accomplice is someone who participates with [a] defendant before, during, or after the commission of the crime and acts with the required culpable mental state.” Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App.2007); see Cocke v. State, 201 S.W.3d 744, 748 (Tex.Crim.App.2006). Participation requires an affirmative act that promotes the commission of the offense with which the defendant is charged. Id. Simply having knowledge of the offense and not disclosing that information, or even trying to conceal the information, does not render a witness an accomplice. Id. Additionally, mere presence at a crime scene does not make an individual an accomplice. Id. There must be evidence sufficient to connect the alleged accomplice to the criminal offense as a “blameworthy participant.” Cocke, 201 S.W.3d at 748.

A trial court is not required to give an accomplice-witness instruction when the evidence is clear that the witness is neither an accomplice as a matter of law nor as a matter of fact. Id. A witness is an accomplice as a matter of law if, for instance, “the witness has been, or could have been, indicted for the same offense ....” Id. A witness is an accomplice witness as a matter of fact if “the parties present conflicting or unclear evidence as to whether a witness is an accomplice,” in which case the jury must first determine whether the witness is an accomplice as a matter of fact. Id.

Here, there is no evidence to show that either Alex or Natalie “participated” with McCallum in the attack on Pribyl. See Druery, 225 S.W.3d at 498; Cocke, 201 S.W.3d at 748. The record shows Alex was present during the attack, concealed his knowledge of the crime from police, and disposed of evidence by throwing out Pribyl’s wallet. These things, however, do not make him an accomplice to the offense of criminally negligent homicide — there is no evidence he did anything to promote the attack that led to Pribyl’s death. See id. As to Natalie, the record shows Natalie pawned, at McCallum’s behest, the victim’s bracelet, and failed to cooperate with law enforcement until she was given immunity. These acts do not amount to participation in the crime — that is, her acts did not promote the commission of the offense of criminally negligent homicide. See id. Additionally, her knowledge about the wallet on Alex’s dresser at most amounts to knowledge about the crime, which alone is also insufficient to make her an accomplice. See id. Finally, any evidence suggesting both Alex and Natalie gave false police reports does not amount to evidence sufficient to connect Alex or Natalie to the criminal offense as “blameworthy participants.” See Cocke, 201 S.W.3d at 748. Any false reports given were completely disconnected from actual participation with McCallum before, during, or after the commission of the crime. See Druery, 225 S.W.3d at 498; Cocke, 201 S.W.3d at 748. Therefore, the record does not support that Natalie or Alex could have been indicted for the same offense.

Based on the record, it is clear that neither Alex nor Natalie were accomplices as a matter of fact or as a matter of law. Accordingly, the | trial court was not required to give an accomplice-witness instruction. See Cocke, 201 S.W.3d at 748. We therefore hold the trial court did not err in refusing to give the requested instruction, and we overrule McCallum’s first issue.

Admission of Evidence

McCallum next contends the trial court erred in admitting evidence that he was a member of the Aryan Brotherhood. McCallum asserts the evidence should not have been admitted because it was irrelevant, and its probative value was substantially outweighed by the danger that it would unfairly prejudice the jury. See Tex.R. Evid. 401, 403. In the alternative he argues that if his counsel failed to preserve this issue for review, he was ineffective.

Assuming McCallum preserved this issue for appellate review, we hold the trial court did not err in admitting the evidence. We review a trial court’s determination to admit evidence under rules 401 and 403 under an abuse of discretion standard. See Russeau v. State, 291 S.W.3d 426, 438 (Tex.Crim.App.2009). Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Tex.R.' Evid. 401. Rule 403 allows for the exclusion of otherwise relevant evidence when its probative value “is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid. 403. “Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial.” Shuffield v. State, 189 S.W.3d 782, 787 (Tex.Crim.App.2006).

When McCallum complained about the admission of evidence concerning his membership in the Aryan Brotherhood, the State advised the trial court that McCal-lum’s membership went to the heart of the case because McCallum’s membership in the Aryan Brotherhood was the motive for the attack on Pribyl. As Alex and Natalie testified, McCallum believed Pribyl was “false-claiming” regarding his prison involvement with other white supremacists. It was only after Pribyl claimed to have been in prison and showed McCallum the swastika tattoo that McCallum hit him.

Gang membership is admissible to show motive. See, e.g., Vasquez v. State, 67 S.W.3d 229, 239-10 (Tex.Crim.App.2002) (holding defendant’s affiliation to Mexican Mafia admissible to show motive for killing victim); Williams v. State, 974 S.W.2d 324, 331 (Tex.App.-San Antonio 1998, pet. ref'd) (defendant’s gang affiliation admissible to show defendant’s motive to rob victim). Accordingly, the evidence of McCallum’s membership in the Aryan Brotherhood was relevant. McCallum’s relevancy contention is therefore without merit.

As to his assertion that evidence of his membership in the Aryan Brotherhood was admitted in violation of rule 403, we disagree. “To violate Rule 403, it is not enough that the evidence is ‘prejudicial’-it must be unfairly prejudicial.” Vasquez, 67 S.W.3d at 240 (emphasis in the original). It is only “when the evidence has ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one’ ” that unfair prejudice exists. Id. (quoting Rogers v. State, 991 S.W.2d 263, 266 (Tex.Crim.App.1999)). The potential improper basis would be to attempt to show McCal-lum was a bad person and acted in conformity with that character simply because of his gang affiliation. However, that was not the State’s purpose in eliciting the evidence. The State’s purpose was to explain to the jury why McCallum would engage in an unprovoked attack on Pribyl. Without evidence of his membership in the Aryan Brotherhood, the jury would have been less able to understand McCallum’s anger at Pribyl’s alleged “false claiming” with regard to his prison time and gang affiliation. This evidence’s probative value far outweighed its potential prejudice. Accordingly, we hold the trial court did not err in admitting the evidence.

With regard to his ineffective assistance of counsel claim, we hold it is without merit. To obtain relief for a claim of ineffective assistance of counsel, an appellant must meet the two-part test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rylander v. State, 101 S.W.3d 107, 109-10 (Tex.Crim.App.2003). The appellant must first demonstrate trial counsel’s performance was deficient because it fell below an objective standard of reasonableness. Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). He must then show that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

McCallum claims his counsel’s performance was deficient because he failed to object properly to the admission of evidence regarding McCallum’s membership in the Aryan Brotherhood. Counsel is not ineffective for failing to object to admissible evidence. See Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App.2004) (holding that to establish ineffective assistance of counsel for failure to object during trial, appellant must show trial court would have committed error in overruling objection). We have determined this evidence was admissible. Because the evidence was admissible, McCallum could not show the trial court would have committed error in overruling a Rule 403 objection. Accordingly, McCallum has failed to establish the first prong of the Strickland test. See Strickland, 466 U.S. at 687,104 S.Ct. 2052; Rylander, 101 S.W.3d at 109-110. We therefore overrule McCallum’s second issue in its entirety.

Sentencing

In his third point of error, McCal-lum claims the trial court erred when it found McCallum used a deadly weapon. At sentencing, an issue arose over whether the trial court would be permitted to consider enhancing McCallum’s punishment based on his use of a deadly weapon. McCallum objected, claiming he had not received adequate notice that a deadly weapon finding would be sought. He further argued, as he does here, that pursuant to Apprendi v. New Jersey, the jury should have made that finding, and it violated his rights for the court to make the finding in the punishment phase. 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that other than fact of prior conviction, any fact that increases penalty for crime beyond prescribed statutory minimum must be submitted to jury and proved beyond reasonable doubt). The trial court overruled McCallum’s objections, and denied his request for a continuance. At the end of the punishment phase, the trial court took into account McCal-lum’s use of a deadly weapon, and sentenced McCallum accordingly.

McCallum was indicted for the offense of murder. The indictment alleged:

Count 1

Paragraph A

[O]n or about the 5th Day of August, 2004, MICHAEL MCCALLUM, did intentionally and knowingly cause the death of an individual, namely: Thomas Pribyl, by STRIKING THOMAS PRI-BYL WITH THE HAND OF THE DEFENDANT AND BY CAUSING THOMAS PRIBYL TO FALL AND STRIKE HIS HEAD ON THE GROUND;

Paragraph B

And on or about the 5th day of August, 2004, MICHAEL MCCALLUM, with intent to cause serious bodily injury to an individual, namely: Thomas Pribyl, did commit an act clearly dangerous to human life that cause the death of Thomas Pribyl, by STRIKING THOMAS PRI-BYL WITH THE HAND OF THE DEFENDANT AND BY CAUSING THOMAS PRIBYL TO FALL AND STRIKE HIS HEAD ON THE GROUNDL]

See Tex. Penal Code Ann. § 19.02(b)(1), (2) (Vernon 2003). The indictment also contained an enhancement allegation, asserting that prior to the commission of the alleged murder, McCallum was convicted of the felony offense of attempted robbery.

Despite the State’s assertion of murder, the jury was also instructed on the lesser included offenses of manslaughter and criminally negligent homicide. See id. § 19.04 (stating person commits offense of manslaughter if he recklessly causes death of individual); § 19.05 (stating person commits offense of criminally negligent homicide if he causes death of individual by criminal negligence). The jury found McCallum guilty of criminally negligent homicide. See id. § 19.05.

In Crumpton v. State, 301 S.W.3d 663, 664 (Tex.Crim.App.2009), the Texas Court of Criminal Appeals was asked to review “the propriety of a deadly weapon finding in a judgment of guilt of the offense of criminally negligent homicide.” In concluding that the deadly weapon finding was proper, the court held “a verdict of homicide necessarily is a finding that a deadly weapon was used [in the commission of the crime].” Id. The court noted that the statutory definition of “deadly weapon” includes “anything that in the manner of its use ... is capable of causing death.... ” Id. (citing Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2009)). The court went on to explain:

The statutory definition of “deadly weapon” includes “anything that in the manner of its use ... is capable of causing death-” [Tex.] Penal Code § 1.07(a)(17)(B). Having found that the defendant was guilty of [criminally negligent] homicide, the jury necessarily found that the defendant used something that in the manner of its use was capable of causing — and did cause— death. Therefore the verdict was an adequate basis for the trial court’s entry of the deadly-weapon finding in the judgment.

Id Prior to Crumpton, there were only three instances in which the trial court could properly find the jury made an affirmative deadly weapon finding: (1) the indictment included a deadly weapon finding, and the jury found the defendant guilty as charged in the indictment; (2) the jury answered affirmatively to a special issue on the -use of a deadly weapon; or (3) the deadly weapon was a deadly weapon per se or a firearm. Polk v. State, 693 S.W.2d 391, 394 (Tex.Crim.App.1985). Crumpton has now added to this list by allowing the trial court to find the jury made an affirmative deadly weapon finding by finding the defendant guilty of homicide. See Crumpton, 301 S.W.3d at 664.

Here, as in Crumpton, the jury found McCallum guilty of criminally negligent homicide. Under Crumpton, therefore, the jury necessarily made an affirmative finding that McCallum used a deadly weapon — namely, “the hand of the defendant ... [which] caus[ed] Pribyl to fall and strike his head on the ground.” The law is well-settled that both a hand and the ground can be deadly weapons — that is, objects capable of causing death. See Lane v. State, 151 S.W.3d 188, 192 (Tex.Crim.App.2004) (holding hand can be deadly weapon); Johnston v. State, 150 S.W.3d 630, 639 (Tex.App.-Austin 2004, no pet.) (holding floor can be used as deadly weapon). Therefore, the jury's verdict finding McCallum guilty of criminally negligent homicide included a finding that McCallum used or exhibited a deadly weapon. Contrary to McCallum’s assertion, the trial court did not make the deadly weapon finding in violation of Apprendi Accordingly we overrule McCallum’s third issue.

State’s Cross Point

By way of cross point, the State asserts the trial court erred in failing to include an affirmative finding of deadly weapon in its judgment. We agree.

As discussed in issue three, by finding McCallum guilty of criminally negligent homicide, the jury affirmatively found he used a deadly weapon in the commission of the offense. See Crumpton, 301 S.W.3d at 664. However, the trial court neglected to reflect the deadly weapon finding in the judgment. Once the jury finds the defendant used or exhibited a deadly weapon during the commission of the offense, the trial court must enter in the judgment a finding that a deadly weapon was used or exhibited. Ex parte Poe, 751 S.W.2d 873, 875-76 (Tex.Crim.App.1988) (en banc) (citing predecessor to article 42.12, section 3g(a)(2), which requires that affirmative findings under that section be made part of judgment); see also State ex rel. Esparza v. Paxson, 855 S.W.2d 170, 172 (Tex.App.-El Paso 1993, no pet.) (conditionally granting petition for mandamus and requiring trial court to enter judgment nunc pro tunc and include deadly weapon finding found by jury); Tex.Code Crim. Proc. Ann. art. 42.01(21) (Vernon Supp. 2009) (requiring that affirmative findings under article 42.12, section 3g(a)(2) of Code be made part of judgment). Section 3g(a)(2) of article 42.12 refers to deadly weapon findings and states with regard to such findings that “the trial court shall enter the finding in the judgment of the court.” Id. art. 42.12, sec. 3(g)(a)(2). Accordingly, the trial court erred in failing to include the deadly weapon finding in its judgment.

Relying on Hooks v. State, 860 S.W.2d 110 (Tex.Crim.App.1993), it has been asserted by appellants in other cases that reformation is improper because the trial court has discretion after the fact finder makes an affirmative deadly weapon finding about whether to enter a deadly weapon finding in the judgment. See, e.g., Brooks v. State, 900 S.W.2d 468, 474-475 (Tex.App.-Texarkana 1995, no pet.); Martinez v. State, 874 S.W.2d 267, 268-269 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). These assertions were rejected, and we agree with the reasoning of those courts.

In Hooks, the defendant was charged with aggravated assault by threat with a deadly weapon. 860 S.W.2d at 111. The trial court found the defendant guilty, but ordered her released on probation. Id. The State challenged the trial court’s decision to place the defendant on probation, relying on article 42.12, section 3g(a)(2). Id. The court of appeals reversed the trial court’s grant of probation. Id. On petition for discretionary review, the court of criminal appeals reversed and held that because the court had not entered the deadly weapon finding in the judgment, under the specific facts the probationary sentence was not void. However, Hooks involved a bench trial, and therefore the judge was the trier of fact. Moreover, Hooks relied on Ex parte Lucke, 742 S.W.2d 818 (Tex.App.-Houston [1st Dist.] 1987, no pet), in reaching its conclusion that article 42.12, section 3g(a)(2) did not bar probation for the appellant because the trial court had not entered an affirmative finding in the judgment. Lucke also involved a case of a plea before the court, and held that “the trial court, as trier of fact, simply declined to enter the additional affirmative finding in the judgment.” Lucke at 820; see also Johnson v. State, 233 S.W.3d 420, (Tex.App.-Fort Worth 2007, pet. ref'd) (holding that where trial court is trier of fact and has made an affirmative deadly weapon finding, it retains discretion to enter finding in judgment). Finally, the Hooks court cited Poe with approval, and Poe specifically held in the context of a jury trial that once the jury makes an affirmative deadly weapon finding, the trial court has no discretion and must enter the finding in the judgment. Poe, 751 S.W.2d at 875-76.

Here, the judge was not the trier of fact and the jury affirmatively found McCallum used a deadly weapon. Both Poe and article 42.12, section 3g(a)(2) of the code of criminal procedure make it clear that when the trier of fact makes an affirmative finding, “the trial court shall enter the finding in the judgment of the court.” Hooks does not indicate that reformation of a judgment is no longer a proper remedy when the court has failed to enter an affirmative finding made by a jury in accordance with Polk, and now Crumpton. Further, Hooks did not overrule or expressly restrict Polk, Poe, or their progeny. If Hooks has made the entry of an affirmative finding discretionary, it has done so only in cases where the trial judge acts as the trier of fact. Accordingly, we, like the other appellate courts faced with this issue, do not find Hooks a bar to reformation in this case. See Brooks, 900 S.W.2d at 474-475; Martinez, 874 S.W.2d at 268-269.

A judgment may be reformed to reflect an affirmative finding that was made by a jury but not entered by the trial court. Rische v. State, 746 S.W.2d 287, 292 (Tex.App.-Houston [1st Dist.] 1988). An appellate court has the power to correct and reform a trial court judgment “to make the record speak the truth when it has the necessary data and information to do so.” Jackson v. State, 288 S.W.3d 60, 64 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd) (citing Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd)); Williams v. State, 911 S.W.2d 788, 791 (Tex.App.-San Antonio 1995, no pet.) (same). The record shows the jury made a deadly weapon finding, but the judgment signed by the trial court does not reflect that finding as required. See Poe, 751 S.W.2d at 875-76. Accordingly, we sustain the State’s cross point, and reform the trial court’s judgment to reflect a deadly weapon finding.

Conclusion

We overrule McCallum’s appellate issues, sustain the State’s cross point, and affirm the trial court’s judgment as reformed.

      . The issue regarding McCallum’s affiliation with the Aryan Brotherhood was raised in a pre-trial motion in limine. However, the trial court instructed McCallum’s counsel that if it became an issue at trial, he should object and approach the bench. See Geuder v. State, 115 S.W.3d 11, 14-15 (Tex.Crim.App.2003) (holding grant or denial of motion in limine is preliminary ruling and normally preserves nothing for appellate review). McCallum did raise one objection, stating "That's absolutely not fair. It's cumulative.” These objections do not comport with his complaint on appeal. See Edwards v. State, 97 S.W.3d 279, 287 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd.) ("An objection stating one legal basis may not be used to support a different legal theory on appeal.”). Moreover, we find nothing in the record to suggest McCallum made a running objection to the evidence, and he certainly did not object when Natalie testified McCallum was a member of the Aryan Brotherhood. It could therefore be argued that McCallum waived this issue. See Tex.R.App. P. 33.1.

      . On appeal, McCallum does not contend he did not receive adequate notice that the State would seek a deadly weapon finding. Accordingly, we do not address notice.

      . In Crumpton, the jury verdict also stated the jury found the defendant guilty as charged in the indictment, which expressly alleged the defendant committed the offense with a deadly weapon. The court of criminal appeals noted this too was a sufficient basis for the trial court's entry of the deadly weapon finding in the judgment. Crumpton, 301 S.W.3d at 664; see also Polk v. State, 693 S.W.2d 391, 394 (Tex.Crim.App.1985) (holding trier of fact makes express determination that deadly weapon was used or exhibited during commission of offense when in verdict it finds applicant guilty as charged in indictment and indictment alleges deadly weapon).


source: Caselaw Access Project

author: REBECCA SIMMONS, Justice.

license: Public Domain

text:
    Murray HAMMER, Appellant v. The STATE of Texas, Appellee.
    No. 04-07-00072-CR.
    Court of Appeals of Texas, San Antonio.
    Jan. 27, 2010.
    Trent C. Rowell, Attorney at Law, Stockdale, TX, for Appellant.
    Rene M. Pena, Criminal District Attorney, Mark Ledet, Assistant District Attorney, Floresville, TX, for Appellee.
    Sitting: KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice.
   OPINION

Opinion by:

REBECCA SIMMONS, Justice.

This appeal is on remand from the Texas Court of Criminal Appeals. Hammer was convicted by a jury of two counts of indecency with a child. After thoroughly considering the issue on remand, we conclude the trial court committed harmful error in excluding some, of the evidence Hammer offered to demonstrate the complainant’s motive to falsely accuse him of molestation. Accordingly, we reverse the trial court’s judgment and remand the case for a new trial.

Factual BackgROund

The facts giving rise to this appeal are well-detailed in the prior opinions. See Hammer, 256 S.W.3d 391, 392 (Tex.App.San Antonio 2008), rev’d, 296 S.W.3d 555, 558-561 (Tex.Crim.App.2009). To briefly summarize, fifteen year old P.H. went to live with her father, Appellant Murray Hammer, during the summer of 2005. P.H. woke up one night to find that her pants and underwear were gone. Hammer was standing over her. P.H. got up, put her pants back on, and then went to sleep in another bed. P.H. said that she woke up a second time to find Hammer in the bed, “kind of spooning me and he had his hands on my crotch.” She got up and moved back to the couch. The next morning, P.H. “told him that I know what happened and he told me that he didn’t remember and that he was drunk and he told me he was really sorry.” She did not tell anyone about the molestation because she knew that Hammer had been drinking. P.H. said that, about two weeks later, she was sleeping in her grandmother’s bed with her clothes on. She woke up to find Hammer behind her with his hands down the front of her pants, rubbing her vagina. When he saw that P.H. was awake, he jumped up and left the room.

During trial, Hammer’s counsel attempted to introduce evidence that P.H. had previously falsely accused other persons of unwanted sexual contact. Relying on Texas Rule of Evidence 608(b), the trial court determined the prejudicial effect of the evidence outweighed its probative value and excluded the evidence. Hammer’s counsel made a bill of exception with regard to the following evidence excluded by the trial court:

(1) journals in the possession of child protective services allegedly containing numerous rape allegations;
(2) testimony by Shonna Makuta that P.H. accused a third party of rape to cover up her sexual encounters with a boyfriend;
(8) testimony by Shonna Makuta that P.H. accused other persons of molesting her;
(4) testimony by Patricia Mossmeyer that P.H. asserted “every one of her mother’s boyfriends molested her;”
(5) testimony by Patricia Mossmeyer that P.H. and Mossmeyer’s granddaughter were held by five men, with knives to their throats and that they were raped; and
(6) allegations that P.H. lied about skipping school.

PROCEDURAL BACKGROUND

Hammer argued the trial court erred in refusing to allow him to cross-examine the complainant regarding false allegations she made against other individuals. On appeal, this court affirmed the trial court’s ruling. Hammer, 256 S.W.3d at 396, rev’d, 296 S.W.3d 555. Hammer filed a petition for discretionary review asserting the trial court erred in excluding evidence that P.H. had previously made a false accusation of “rape.” The Court of Criminal Appeals agreed and stated:

In sum, we hold that the trial judge abused her discretion in preventing appellant from cross-examining P.H. about the hospital incident, her allegations that “all of her mother’s boyfriends had sexually molested her,” the incident about being held at knife point by five men, and her statements to Shonna concerning the purported sexual assault by Ignacio Talamendez to demonstrate her bias against appellant and her possible motive to testify falsely against him.

Hammer, 296 S.W.3d at 570. The Court reversed our judgment and remanded the case to this court for a harm analysis.

Harm Analysis

Because the court erred in preventing appellant from cross-examining P.H., we must determine whether the error was harmless. See Hammer, 296 S.W.3d at 570; Tex.R.App. P. 44.2(b). Here the erroneous admission constituted a non-constitutional error. See Hammer, 296 S.W.3d at 570 (instructing a review “to address this issue under Rule 44.2(b)”). Thus, under Rule 44.2(b), we disregard the error if no substantial right has been affected. Id. “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

As stated above, Hammer was entitled to cross-examine P.H. about the false reports she previously made about various sexual encounters in order to show P.H.’s “bias against [Hammer] and to show her purported motive in falsely accusing him.” See Hammer, 296 S.W.3d at 567. The trial court impeded the jury’s duty to weigh P.H.’s credibility by preventing Hammer from both cross-examining P.H. and from admitting evidence which would have shown “P.H.’s animus toward [Hammer] and her desire to get out of his house.” Id. at 569. The disallowed evidence “demonstrates that P.H. was not above changing her story of a consensual sexual encounter with her boyfriend into a nonconsensual one with someone else to prevent her father from learning the truth and presumably punishing her for running away and having sex with [her boyfriend].” Id. at 566.

These errors by the trial court had an injurious effect on the jury’s verdict because this is a case involving “he said, she said” that “must be resolved solely on the basis of the testimony of [P.H.] and [Hammer].” Id. at 568. Because Hammer was not permitted to cross-examine P.H. regarding her previous false accusations, he was unable to present any evidence of P.H.’s purported motive to fabricate allegations of sexual molestation. We find that the inability to fully present his defense affected a substantial right and was, therefore, harmful error. See Tex.R.App. P. 44.2(b).

Conclusion

Thus, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

      . However, the Court of Criminal Appeals affirmed our previous holding that the contents of P.H.’s journal as well as the evidence that P.H. was found "lying on the ground with her boyfriend” were properly prohibited from being introduced. See Hammer, 296 S.W.3d at 569.


author: SANDEE BRYAN MARION, Justice.

text:
    CITY OF SAN ANTONIO, Appellant v. Emeterio and Rosa Maria DE MIGUEL, Appellee.
    No. 04-09-00289-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 3, 2010.
    Rehearing Overruled March 4, 2010.

      Michael D. Bernard, City Attorney, David M. Williams, Assistant City Attorney, San Antonio, TX, for Appellant.
    Allen F. Cazier, Attorney at Law, San Antonio, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice, SANDEE BRYAN MARION, Justice, STEVEN C. HILBIG, Justice.
   OPINION

Opinion by:

SANDEE BRYAN MARION, Justice.

This is an accelerated appeal from the trial court’s denial of the City of San Antonio’s (“the City”) plea to the jurisdiction. We reverse and render a judgment dismissing appellees’ nuisance claim against the City.

BACKGROUND

In September 1965, the City’s Public Works Department approved Street and Drainage Plans (“Plans”) for the construction of the North Star Hills Subdivision Unii>-5. Pursuant to the Plans, a concrete-lined open drainage channel — constructed by an outside developer — directs water flow from two northern areas of the subdivision onto Tara Drive, where the water flow combines with drainage from Tara Drive and discharges it onto Lorene Lane. The Plans instructed the developer to grade the street and properties at the end of Tara Drive in order to direct the drainage of water to Lorene Lane. Specifically, the Plans instructed the developer to fill in Lot 8 to a minimum of one foot above the top of the curb in order to contain the drainage within the right-of-way. This did not happen.

Appellees Emeterio and Rosa Maria De Miguel (“the plaintiffs”) own and reside at 502 Tara Drive — the tract formerly known as Lot 8. On September 7, 1989, the plaintiffs sued the City for property damage to their residence. The lawsuit alleged the City “constructed a drainage facility” near the plaintiffs’ residence that diverted surface water onto their property during rainfall. After a bench trial, the trial court rendered judgment against the City and awarded the plaintiffs $25,000 in damages, which the City paid to plaintiffs.

On July 13, 2005, the plaintiffs filed the underlying lawsuit against the City for inverse condemnation and nuisance, alleging heavy rains divert flood waters onto their property by way of a City-owned storm water drainage channel. In response, on May 30, 2006, the City filed its original plea to the jurisdiction and traditional and no evidence motions for summary judgment. On September 29, 2006, the City filed its supplemental plea to the jurisdiction and traditional and no evidence motions for summary judgment. In its supplemental motions for summary judgment the City argued, among other things, that the plaintiffs’ claims were barred by res judicata and the statute of limitations. On May 30, 2007, the trial court held a hearing on the motions and subsequently ruled “that [the City’s] Motion as to Plaintiffs’ suit for Inverse Condemnation under Article 1 § 17 of the Texas Constitution is meritorious and should in all things be granted.... ” The trial court did not rule on the City’s plea to the jurisdiction.

On May 7, 2009, the City filed another plea to the jurisdiction on the nuisance claim alleging (1) the trial court’s granting of its motion for summary judgment as to the plaintiffs’ inverse condemnation claim is a conclusion “that the City lacked the requisite intent to be held liable under Article I, § 17 of the Texas Constitution” and (2) the plaintiffs did not allege the City took any intentional act to damage their property. The plaintiffs did not file a response, but at the hearing on the City’s plea, the plaintiffs relied on their response to the City’s 2006 plea to the jurisdiction and on their own previously filed motion for partial summary judgment. In those pleadings, the plaintiffs alleged the City “knows that the maintenance of its drainage facility, taken together with recurrent heavy rain, is causing identifiable harm to the property....” The trial court held a hearing on the plea and subsequently denied it. This accelerated appeal by the City ensued.

SOVEREIGN IMMUNITY

Sovereign immunity deprives a trial court of subject-matter jurisdiction for lawsuits in which the governmental entity has been sued unless it consents to suit and, thus, sovereign immunity is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224-26 (Tex.2004). In its sole issue on appeal, the City argues the trial court does not have subject-matter jurisdiction over the plaintiffs’ nuisance claim because (1) governmental immunity has not clearly been waived by statute and (2) the nuisance does not rise to the level of a constitutional taking.

NUISANCE RISING TO LEVEL OF CONSTITUTIONAL TAKING

Nuisance liability arises only when governmental immunity is clearly and unambiguously waived. City of Dallas v. Jennings, 142 S.W.3d 310, 316 (Tex.2004). In some cases, a city may be held liable for a non-negligent nuisance — that is, one that rises to the level of a constitutional taking. Id.; see Cozby v. City of Waco, 110 S.W.3d 32, 40 (Tex.App.-Waco 2002, no pet.). In others, the Texas Tort Claims Act may waive immunity from nuisance claims. Miranda, 133 S.W.3d at 225; see Tex. Civ. PRAC. & Rem.Code Ann. § 101.021 (Vernon 2005). Here, the plaintiffs do not assert there exists any statutory waiver of immunity and we have found none; therefore, we conclude there is no statutory waiver. Consequently, the City can only be liable for a non-negligent nuisance rising to the level of a constitutional taking. See Jennings, 142 S.W.3d at 312.

Article I, section 17 of the Texas Constitution — the “takings” clause — provides “[n]o person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” Tex. Const, art. I, § 17 (amended 2009). At the heart of the takings clause lies the premise that the government should not “forc[e] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Steele v. City of Houston, 603 S.W.2d 786, 789 (Tex.1980) (quoting Armstrong v. United States, 364 U.S. 40, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (I960)). To properly assert a non-negligent nuisance claim against a governmental entity, a party must plead and show the following elements: (1) the governmental entity intentionally performed an act in the exercise of its lawful authority; (2) that resulted in the taking, damaging, or destruction of the party’s property; (3) for public use. Gen. Sens. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001). Here, the City’s plea to the jurisdiction challenged only the first element; therefore, we limit our analysis to whether a fact issue exists on the question of whether the City intentionally performed an act that rises to the level of a taking.

The City’s first argument is that the trial court, by dismissing the plaintiffs’ inverse condemnation claim, concluded “the City lacked the requisite intent to be held liable under Article I, § 17 of the Texas Constitution.” We disagree. The City based its motion for summary judgment on a variety of grounds, including res judicata arising out of the 1989 lawsuit and that the ten-year statute of limitations for inverse condemnation damages claims had run. The trial court did not state the grounds on which it rendered summary judgment in favor of the City; therefore, the trial court’s judgment could have been based on res judicata or limitations, and not on any determination regarding the City’s intent.

Next, the City argues the plaintiffs did not plead or show the City knew a specific act was causing identifiable harm or knew that specific property damage was substantially certain to result from an authorized government action. See Jennings, 142 S.W.3d at 314 (holding that, when asserting constitutional taking claim, pleader must show governmental entity knows specific act is causing identifiable harm or knows specific property damage is substantially certain to result from authorized government). We begin our analysis of this argument by looking to the plaintiffs’ allegations contained in their petition, which are as follows:

This [flood control or storm sewer] facility is designed and built so as to collect and divert surface waters from several streets in the neighborhood. The surface water collection area is at a higher elevation than Plaintiffs’ home. Unfortunately the facility is designed and constructed in such a way that it collects surface water during heavy rains and diverts that surface water directly onto the property of the Plaintiffs....
Since on or about January 1991 the City has had actual knowledge that the damage to Plaintiffs’ home is occurring. On January 10, 1991 City Ordinance No. 72914 was passed to compensate the Plaintiffs for the damages sustained by the Plaintiffs up to September 1990.... However, the City has done nothing to correct the drainage, and the intermittent flooding has continued.
Nuisance. The design and maintenance of the City’s flood control or storm sewer facility is such that it creates a nuisance which nuisance has damaged and destroyed the Plaintiffs’ property.

We construe the plaintiffs’ pleadings and arguments liberally to assert the underlying government action that resulted in the taking was the City’s failure to correct the drainage problem. The plaintiffs point to a January 1991 City memo as evidence the City knew damage was substantially certain to follow from the continued operation of the drainage facility during heavy rains. The memo states in part:

An on-site inspection by Drainage personnel confirmed that two existing 36" pipes discharge 119 cubic feet of water per second into a concrete channel which empties directly into Tara Drive. During heavy rains Tara Drive cannot contain the water discharged; it jumps the curb and flows directly into the De Miguel property. Even a new street constructed to current design standards (which Tara Drive is not) could handle only 65 cubic feet per second, or about 58 percent of the water delivered at this point. The only permanent solution to this drainage problem would be construction of proposed but presently unfunded drainage project 74X, Lorene Drive, at a projected cost of $995,000.

A person’s property may be “taken, damaged or destroyed ... if an injury results from either the construction of public works or their subsequent maintenance and operation.” See City of Tyler v. Likes, 962 S.W.2d 489, 504-05 (Tex. 1997) (internal quotations omitted). However, a city has no duty to provide drainage or facilities adequate for all floods that may occur or reasonably be anticipated as long as the city does nothing to increase the flow of surface water across the land in question. The City of Borger v. Garcia, 290 S.W.3d 325, 330 (Tex.App.-Amarillo 2009, pet. filed); Norman & Schaen, Inc. v. City of Dallas, 536 S.W.2d 428, 429-30 (Tex.Civ.App.-Dallas 1976, writ ref'd n.r.e.). “The existence of such liability would tend to deter the city from providing even partial relief from flooding.” Norman & Schaen, Inc., 536 S.W.2d at 430. In determining the extent of the protection to be provided, a city “must weigh the needs of the entire community and allocate available resources so as best to serve the interests of all its citizens.” Id. Here, the plaintiffs point to no new action taken by the City after the conclusion of the 1989 lawsuit that resulted in an increased flow of surface water across their property.

The plaintiffs’ 1989 suit was based on negligence, and the City did not dispute its liability. After the 1989 lawsuit, the plaintiffs point to no new action on the City’s part that caused their damages; instead, they point to the City’s failure to fund a new project. However, we conclude the City’s decision to not fund the construction of “drainage project 74X” does not convert any negligence on the City’s part into an intentional taking by the City. Mere negligence that eventually contributes to the destruction of property is not a taking. Likes, 962 S.W.2d at 505. Therefore, the City’s continued maintenance of the facility is, at most, no more now than it was in 1989: negligence.

Also, a similar argument was rejected by the Texas Supreme Court in City of San Antonio v. Pollock, wherein the Pollocks argued the city’s knowledge that subsidence, ponding, and gas generation and migration are inherent in the operation of a landfill was sufficient to show the city knew its operation of the landfill was substantially certain to damage their property. City of San Antonio v. Pollock, 284 S.W.3d 809, 821 (Tex.2009). The Court held that the “negligent failure to prevent landfill gas migration in this case is no evidence that [the city] intended to damage the Pollocks’ property.” Id.

CONCLUSION

After examining the relevant evidence and construing the plaintiffs’ allegations in their favor, we conclude the plaintiffs did not present a claim on which governmental immunity is waived. Therefore, we re-, verse the trial court’s order and render judgment dismissing the plaintiffs’ nuisance claim against the City for lack of jurisdiction.

      . The 1991 City memo stated: “There was no basis for dispute that the directed flows of runoff drainage waters caused damage to the foundation and other structural parts of the De Miguel residence. Faced with certainty on the issue of liability, a jury was waived and the damage issue submitted [to the] court for determination.”


author: KAREN ANGELINI, Justice.

text:
    Israel GARCIA, et al., Appellants v. Richard GARZA, as Independent Executor of the Estate of Homer Dean, Jr., Deceased; Dean Partners, Ltd.; and B.J. Shepherd, Appellees.
    No. 04-09-00163-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 3, 2010.

      Gary D. Sarles, Sarles & Ouimet LLP, Dallas, TX, Alberto Byington Jr., Law Office of Alberto Byington, Jr., Falfurrias, TX, J. Michael Guerra, Law Office of J. Michael Guerra, Alice, TX, Mark C. Brod-eur, The Brodeur Law Firm, Dallas, TX, Roland L. Leon, Barker, Leon, & Fancher LLP, Corpus Christi, TX, for Appellant.
    Kyle C. Watson, Burton D. Brillhart, John E. Clark, Goode Casseb Jones Riklin Choate & Watson, P.C., San Antonio, TX, Armando G. Barrera, District Attorney, Jim Wells & Brooks Counties, Alice, TX, Chad M. Ruback, The Ruback Law Firm, Dallas, TX, R.E. Lopez, Jr., Lopez Peterson, P.L.L.C., Laredo, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI and MARIALYN BARNARD, Justices.
   OPINION

Opinion by:

KAREN ANGELINI, Justice.

In March 2008, Israel Garcia and other members of the Garcia family filed suit against Homer E. Dean Jr.; Dean Partners, Ltd.; and B.J. Shepherd, (hereinafter “Dean and Shepherd”) concerning mineral interests conveyed to Dean and Shepherd by members of the Garcia family as attorneys’ fees in 1975. Dean and Shepherd moved for summary judgment on grounds of limitations, lack of privity, lack of standing, and laches. The trial court granted the summary judgment motion and signed a take-nothing judgment against the Garcias. The Garcias appeal from this judgment. We affirm.

Factual and PROCEDURAL Background

1. The 1975 Partition Suit

In April 1975, attorneys Dean and Shepherd began representation of twelve members of the Garcia family in a suit to partition land in Brooks County, Texas, known as Rancho Nuevo and Rancho Salado. Even though they had no written fee agreement with the Garcias, Dean and Shepherd filed the partition suit and reached a settlement agreement with the opposing parties in the case. The settlement agreement partitioned the surface estate but did not partition the mineral estate. On December 8, 1975, Dean and Shepherd presented the settlement agreement to the trial court. On December 19, 1975, the trial court signed a final judgment in the partition suit.

On December 16, 1975, after the settlement agreement was presented to the trial court but before the final judgment was signed, the Garcias went to Dean’s office, where they were asked to sign various documents. One of these documents was a written fee agreement. All but two of the Garcias, Oscar and Viola Garcia, signed the fee agreement, which stated, in relevant part,

It is hereby agreed by and between Homer E. Dean, Jr., and B.J. Shepherd, as attorneys, and ... [the] clients of said attorneys, that the following will be the total amount of attorneys’ fees to be paid to said attorneys for their services in cause No. 2423 [sic] in the District Court of Brooks County, Texas, styled Jose A. Gonzales et al. v. Tomasa G. Figueroa et al:
Total attorneys’ fees $5,000.00 to be paid in cash and clients furthermore agree to execute to said attorneys a mineral deed deeding to said attorneys one-half (1/2) of the mineral interest acquired by each of said plaintiffs in a partition of the property in the above entitled and numbered cause....

(emphasis added).

All of the Garcias, including Oscar and Viola Garcia, then signed a mineral deed conveying to Dean and Shepherd one-half of the mineral interests in the land in question. This mineral deed, dated December 16, 1975, was recorded in the Brooks County deed records on December 23,1975.

2. The Present Suit

More than thirty-two years later, in March 2008, members of the Garcia family filed suit against Dean and Shepherd, seeking to recover the mineral interests conveyed to Dean and Shepherd in 1975. The plaintiffs in the present suit included five members of the Garcia family who were represented by Dean and Shepherd in the 1975 partition suit — Tomasita Ramos, Maria Garcia, Gloria Garcia, Oscar Garcia, and Viola Garcia. The plaintiffs in the present suit also included the heirs of other Garcia family members who were represented by Dean and Shepherd in the 1975 partition suit, but die d by the time the present suit was filed.

Initially, the Garcias’ petition alleged six causes of action: (1) a quiet title action; (2) a slander of title action; (3) a trespass to try title action; (4) an accounting action; (5) a constructive trust action; and (6) a declaratory judgment action. Later, the petition was amended to add causes of action for breach of fiduciary duty and fraud. The breach of fiduciary duty and fraud claims, however, were brought only by the plaintiffs who had had an attorney-client relationship with Dean and Shepherd and had signed the mineral deed in 1975.

The Garcias’ claims were based on factual allegations that Dean and Shepherd:

-forced their clients to execute a mineral deed in Dean’s and Shepherd’s favor without making full disclosure of their conflicts of interest;
-impaired the interests of their clients in the underlying litigation because the mineral interests should have been partitioned along with the surface estate;
-preferred their own improper financial interest by keeping the mineral estate undivided in the partition suit, and thus, did not fulfill their duties to their clients and protect their mineral interests;
-misrepresented to their clients in December 1975 that the mineral deed was necessary to complete the partition of the property;
-failed to inform the trial court of the grant of mineral interests to them;
-altered the partition deed after it was executed by their clients and then misrepresented to their clients the reasons for doing so;
-failed to disclose the value of the mineral estate they wrongfully obtained from their clients.

The Garcias’ petition alleged the discovery rule applied to defer the accrual of all of their causes of action. Additionally, the petition alleged that the Garcias exercised reasonable diligence but did not discover the breaches of fiduciary duty and other wrongs against them until November 2007.

Dean and Shepherd answered the suit, denying the allegations in the petition. Shortly after the suit was filed, Dean died and the personal representative of his estate — Richard Garza — was substituted in Dean’s place.

3. The Summary Judgment Proceedings

On October 8, 2008, Dean and Shepherd filed a motion for summary judgment arguing, among other things, that all of the Garcias’ claims were barred by the four-year statute of limitations. Dean and Shepherd further argued the discovery rule did not operate to defer the statute of limitations because the deed was recorded in the deed records and “[bjecause the ... [mjineral [djeed is a public record and constitutes public notice to the Plaintiffs, the Plaintiffs’ claims, categorically, were not ‘inherently undiscoverable.’ ”

On October 31, 2008, the Garcias amended their petition to include claims for breach of fiduciary duty and fraud. On the same day, the Garcias filed a response to the summary judgment motion. In the response, the Garcias argued their trespass to try title and quiet title claims were not subject to any statute of limitations because the mineral deed was void ab ini-tio. The Garcias also argued the statute of limitations did not bar their breach of fiduciary duty claim because the discovery rule deferred the accrual of their causes of action. In support of this argument, the Garcias argued that the family members who signed the fee agreement and deed in 1975 did so only because the nature of these documents was misrepresented to them.

On November 20, 2008, Dean and Shepherd filed a supplemental motion for summary judgment, arguing laches barred the Garcias’ claims for breach of fiduciary duty and fraud.

On November 25, 2008, Dean and Shepherd filed a reply to the Garcias’ response, arguing: (1) summary judgment should be granted on the Garcias’ title actions, accounting action, constructive trust action, and declaratory judgment action because limitations had expired; and (2) the Garci-as did not create a genuine issue of material fact with respect to their breach of fiduciary duty and fraud claims because the Garcias had notice of Dean’s and Shepherd’s claims to the mineral interests in 1975 when the mineral deed was signed, as well as in 1980 when a mineral lease listing Dean and Shepherd as co-owners was signed.

On December 1, 2008, the trial court held a hearing on the motion for summary judgment. At the hearing, the Garcias complained they had not received a copy of Dean’s and Shepherd’s reply brief and any accompanying proof and they had not received the required twenty-one days’ notice of these documents and the supplemental summary judgment motion. The trial court then gave the Garcias two weeks to file their response and deferred ruling on the summary judgment motions until after the Garcias had filed their response.

On December 15, 2008, the Garcias filed a response, in which they “object[ed] to Defendants’ Supplemental Motion for Summary Judgment and Reply Brief to the extent that they refer to and/or attach evidence not submitted to the Court at least twenty-one days prior to the December 1, 2008 hearing on Defendants’ Motion for Summary Judgment, as required by Rule 166a(c) of the Texas Rules of Civil Procedure.” Additionally, the Garcias complained that by arguing the discovery rule applied but did not defer the accrual of the causes of action, Dean and Shepherd impermissibly presented a new and independent ground for summary judgment in their reply. Finally, the Garcias argued summary judgment could not be granted on the ground of laches because (1) as to the legal claims of breach of fiduciary duty and fraud, laches did not apply, and (2) as to the equitable claims of constructive trust and accounting, controverting evidence created a fact issue as to whether the Garcias unreasonably delayed in asserting their rights, and therefore, laches was not established.

On December 18, 2008, the trial court signed an order granting summary judgment in favor of Dean and Shepherd as to all claims. The order expressly grants Dean and Shepherd “leave from the twenty [-] one day service requirement in Tex.R. Civ. P. 166a(c).” The order does not specify the ground or grounds upon which summary judgment was granted.

Issues Presented

In seven issues, the Garcias argue the summary judgment is insupportable on the grounds asserted and must, therefore, be reversed and remanded for trial. First, the Garcias argue the summary judgment was procedurally defective. Second, the Garcias argue Dean and Shepherd did not discharge their burden to negate the discovery rule’s application as a matter of law with respect to their breach of fiduciary duty and fraud claims. Third, the Garcias argue the summary judgment evidence was conflicting as to when the Garcias knew or should have known of their legal injury with respect to their breach of fiduciary duty and fraud claims. Fourth, the Garcias argue the defense of laches was inapplicable to their breach of fiduciary duty and fraud claims. Fifth, the Garcias argue the defense of limitations was inapplicable to their trespass to try title and suit to quiet title claims because the perpetual mineral deed was void ab initio. Sixth, the Garcias argue the summary judgment was insupportable on the ground of lack of privity because privity was not required for their claims. Finally, the Garcias argue the summary judgment was insupportable on the ground of lack of standing because the breach of fiduciary duty and fraud claims were brought only by former clients and they have standing to bring suit.

In response to the issues presented on appeal, Dean and Shepherd make three categories of arguments. First, Dean and Shepherd argue the summary judgment was properly granted on the ground of limitations as to the causes of action for (1) suit to quiet title, (2) slander of title, (3) trespass to try title, (4) accounting, (5) constructive trust, and (6) declaratory judgment. In support of this argument, Dean and Shepherd assert they established their limitations defense because the mineral deed was not void ab initio, but merely voidable. Second, Dean and Shepherd argue the summary judgment was properly granted on the ground of laches as to their breach of fiduciary duty and fraud claims. In support of this argument, Dean and Shepherd assert the breach of fiduciary duty and fraud claims, as presented in this case, are not purely legal claims. Finally, Dean and Shepherd argue the summary judgment was properly granted on the grounds of limitations and laches, and therefore, the standing and privity issues are unnecessary to the disposition of this appeal.

Summary Judgment Standards

To prevail on a motion for summary judgment, the movants must establish that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c); Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). A defendant who conclusively negates at least one of the essential elements of a cause of action is entitled to summary judgment as to that cause of action. Randall’s, 891 S.W.2d at 644; Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). Similarly, a defendant who conclusively establishes each element of an affirmative defense is entitled to summary judgment. Randall’s, 891 S.W.2d at 644.

Summary judgment motions must stand or fall on their own merits. McConnell v. Southside Indep. School Disk, 858 S.W.2d 337, 343 (Tex.1993); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). However, once the mov-ant establishes his right to summary judgment as a matter of law, the burden then shifts to the non-movant to present issues which preclude summary judgment. Romo v. Texas Dept. of Transp., 48 S.W.3d 265, 269 (Tex.App.-San Antonio 2001, no pet.) (citing Clear Creek, 589 S.W.2d at 678). The non-movant must expressly present to the trial court by written answer or response any issues defeating the movant’s entitlement to summary judgment. McConnell, 858 S.W.2d at 343; Clear Creek, 589 S.W.2d at 677 (“[Bjoth the reasons for the summary judgment and the objections to it must be in writing and before the trial judge at the hearing.”).

In reviewing a summary judgment, the appellate court must accept as true evidence in favor of the non-movant, indulging every reasonable inference and resolving all doubts in his or her favor. El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex.1987). When the order granting summary judgment does not specify the particular grounds the trial court sustained, the appellate court must uphold the summary judgment on any ground asserted by the movant that is supported by the evidence and pleadings. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

“Untimely” Reply and SummaRY Judgment PROOF

In their first issue, the Garcias argue the summary judgment “on Appellants’ breach of fiduciary duty and fraud claims simply cannot be sustained based on untimely, improperly-asserted arguments about the discovery rule in the Appellees’ Reply Brief.” In particular, the Garcias argue the summary judgment is procedurally defective because the trial judge allowed Dean and Shepherd to raise a new summary judgment ground in their reply brief and to file summary judgment evidence after the deadline under the procedural rules.

1. Applicable Law

Texas Rule of Civil Procedure 166a, which governs summary judgments, does not set a deadline for a movant to file a reply to a non-movant’s response. Tex.R. Crv. P. 166a; Cmty. Initiatives, Inc. v. Chase Bank of Texas, 153 S.W.3d 270, 280 (Tex.App.-El Paso 2004, no pet.). According to case law, the movant is entitled to file its reply until the date of the summary judgment hearing. Chase Bank, 153 S.W.3d at 280. The movant, however, is not entitled to use its reply to amend its motion for summary judgment or to raise new and independent summary judgment grounds. Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 4 (Tex.App.-San Antonio 2000, pet. denied); Sanders v. Capitol Area Council, Boy Scouts of Am., 930 S.W.2d 905, 911 (Tex.App.-Austin 1996, no writ).

Texas Rule of Civil Procedure 166a(c) permits the late filing of summary judgment proof with leave of court. See Tex.R. Civ. P. 166a(c) (“Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing.”); Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996); Valores Corporativos, SA. de C.V. v. McLane Co., Inc., 945 S.W.2d 160,162 (Tex.App.-San Antonio 1997, writ denied). The trial court has the discretion to control late filings in summary judgment proceedings. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex.2002). It is appropriate for the trial court to grant leave for the late filing of summary judgment proof when the summary judgment movant is attempting to counter arguments presented in the nonmovant’s response. See Lawler v. Dallas Statler-Hilton Joint Venture, 793 S.W.2d 27, 29-30 (Tex.App.-Dallas 1990, writ denied) (holding the trial court did not err in granting leave to file supplemental affidavits less than twenty-one days before the summary judgment hearing).

2. Analysis

First, the Garcias contend the summary judgment was procedurally defective because Dean and Shepherd raised a new and independent ground — the application of the discovery rule — in their reply brief. In their summary judgment motion, Dean and Shepherd argued (1) the discovery rule did not apply to defer the Garcias’ claims because their injury was not “inherently undiscoverable,” and (2) the Garcias had constructive notice of any injury because the mineral deed was recorded in the public deed records. In their response, the Garcias argued they could not have had constructive notice of their injury based on the public deed records. In their reply, Dean and Shepherd then countered that even if the discovery rule did apply, it did not defer the accrual of the Garcias’ claims because the Garcias knew or should have known of the facts underlying their claims in 1975 or, at the latest, in 1980. Given the progression of the arguments in this case, the discovery rule argument made in Dean’s and Shepherd’s reply brief — that the Garcias knew or should have known of the facts forming the basis of their injury in 1975 or 1980 — was not a new and independent ground for summary judgment. We conclude Dean and Shepherd did not impermissibly raise a new and independent summary judgment ground in their reply brief.

Second, the Garcias contend the summary judgment proof attached to Dean’s and Shepherd’s reply brief could not have been considered in support of the summary judgment because it was not served at least twenty-one days before the hearing, and the trial court’s order granted leave only as to the supplemental motion and not the proof attached to the reply brief. We disagree. The record shows the Garcias objected to the evidence attached to the supplemental summary judgment motion and the reply brief based on non-compliance with the twenty-one day service requirement. In its summary judgment order, the trial court granted Dean and Shepherd leave from the twenty-one day service requirement. The order states, “IT IS, THEREFORE, ORDERED that Defendants are granted leave from the twenty [-] one day service requirement in Tex.R. Civ. P. 166a(c) and are entitled to proceed forward and argue the summary judgment grounds in Defendants’ Supplemental Motion for Summary Judgment.” This order does not limit the granting of leave to the proof attached to the supplemental summary judgment motion.

Additionally, the record shows the Gar-cias’ attorney agreed to the summary judgment procedure employed by the trial court. At the summary judgment hearing, the following exchange took place between the Garcias’ attorney, Mr. Sarles; the trial court; and Dean’s and Shepherd’s attorney, Mr. Watson:

Mr. Sarles: First of all, Your Honor, ... I think I have an objection, but I’m not sure. Apparently, counsel’s referring to a reply brief that was filed with the Court that has not been served on me.... If it was served within the last week, it obviously wasn’t served 21 days before the hearing.
The Court: Reply brief, Counsel?
Mr. Watson: Yes, Judge. I mentioned my reply. That was filed last Tuesday. Now, there — I don’t believe there’s a rule on a reply to a response ... in fact, I’m certain there’s not.
Mr. Sarles: Well, I’m certain there is, Your Honor, and that is this: If they’ve attached evidence to that reply, exhibits to that, those documents had to be filed 21 days before today’s hearing. They can file a reply, they can argue the law, they can show up with the law and argue the law, obviously, but what—
The Court: Well, you—
Mr. Sarles: — they can’t do is put it in evidence.
The Court: Well, the reply brief is simply briefing of the law.
Mr. Watson: That’s correct.
The Court: Is it anything more than that, counsel?
Mr. Watson: Well, contained in the reply is also directions to why we believe they’re sham affidavits and we object to them. But ... we can urge an objection to something in the response through the reply.
The Court: Yeah. That wouldn’t be part of the summary judgment proof is what you’re seeking [sic]; is that correct?
Mr. Sarles: That’s correct, Your Honor. My point was I heard from counsel that there was an Exhibit E to the reply, and if there are exhibits attached to the reply, we object to it. We’re entitled to 21 days’ notice on it. On the Supplemental Motion the same thing, Your Honor. The laches issue has been raised here at the eleventh hour. The Court moved this hearing actually—
The Court: Well — well, let me tell you ... my inclination is, because what we’re doing here certainly is not evi-dentiary, it’s simply argument. I’ve got to consider ... the motions and the responses and ... the appropriate ... summary ... judgment proof attached to those. But as far as the Supplemental Motion for Summary Judgment, I don’t want to bring everybody back down here. How long will it take for you to provide a response to that and I’ll just take it on submission?
Mr. Sarles: I would think, Your Honor, if we have a couple of weeks to respond to it.
The Court: Fourteen days?
Mr. Sarles: That would he more than sufficient.
The Court: I won’t make any ruling on the ... Supplemental Motion for Summary Judgment, and I’ll allow you 14 days to file a response from today’s date, December 15, to get that filed.
Mr. Sarles: Fine.
The Court: On or before December 15th then.
Mr. Sarles: That’ll be fine, Your Honor.

(emphasis added).

Given that the Garcias acquiesced to the procedure employed by the trial court, they are in no position to complain about it on appeal. “A party cannot encourage the court to take a particular action and then complain on appeal that the trial court erred by taking it.” Doucet v. Owens-Corning Fiberglas Corp., 966 S.W.2d 161, 165 (Tex.App.-Beaumont 1998, pet. denied); see also Everest Exploration, Inc. v. URI, Inc., 131 S.W.3d 138, 142 n. 1 (Tex.App.-San Antonio 2004, no pet.) (holding affidavits were part of summary judgment record and would not be disregarded on appeal when the affidavits were filed pursuant to procedures set forth in an agreed order). And, as shown above, the trial court not only allowed Dean and Shepherd to file their supplemental summary judgment motion, reply brief, and accompanying proof, it also gave the Garci-as an opportunity to respond to these documents.

We conclude the summary judgment is not procedurally defective and overrule the Garcias’ first issue.

Breach of Fiduciary Duty and Fraud Claims

1. Limitations

a. Applicable Law

In their motion for summary judgment, Dean and Shepherd argued the Garcias’ claims were barred by the four-year statute of limitations. See Tex. Civ. Prac. & Rem.Code Ann. § 16.051 (Vernon 2008). “[T]he primary purpose of ... all limitation statutes [ ] is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available.” Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990); see Sanchez v. Archdiocese of San Antonio, 873 S.W.2d 87, 90 (Tex.App.-San Antonio 1994, writ denied). “It is in society’s best interest to grant repose by requiring that disputes be settled or barred within a reasonable time.” Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex.2001).

The discovery rule is a very limited exception to statutes of limitation and applies only in those cases in which the nature of the injury is both inherently undiscoverable and objectively verifiable. Id. The discovery rule exception operates to defer the accrual of a cause of action until the plaintiff knows, or in the exercise of reasonable diligence, should know of the facts giving rise to the claim. Id. Generally, the discovery rule applies to breach of fiduciary duty claims. See S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.1996). However, even in the context of a fiduciary relationship, the plaintiff must still exercise reasonable diligence in discovering the nature of the injury. See id. (“While a person to whom a fiduciary duty is owed is relieved of the responsibility of diligent inquiry into the fiduciary’s conduct, so long as that relationship exists, when the fact of misconduct becomes apparent it can no longer be ignored, regardless of the nature of the relationship.”).

A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). When the plaintiff pleads the discovery rule as an exception to limitations, the defendant must negate that exception as well. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). The defendant must (1) conclusively prove when the cause of action accrued, and (2) prove as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered or, in the exercise of reasonable diligence, should have discovered the nature of its injury. KPMG Peat Marwick, 988 S.W.2d at 748. If the defendant establishes that the statute of limitations bars the action, the plaintiff must then produce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id.

b. Issues Presented

In their second issue, the Garcias argue the summary judgment was improper as to the breach of fiduciary duty and fraud claims because Dean and Shepherd did not discharge their burden to negate the discovery rule as a matter of law. In their third issue, the Garcias argue the trial court’s grant of summary judgment was improper because there was conflicting evidence on the issue of the Garcias’ “knowledge” of the fraud and breach of fiduciary duty. Thus, the Garcias contend Dean and Shepherd failed to prove as a matter of law that there was no genuine issue of material fact about when the Garcias discovered or, in the exercise of reasonable diligence, should have discovered the nature of their injury. In response, Dean and Shepherd argue if the summary judgment was proper on the ground of laches, this court need not address whether Dean and Shepherd met their burden to negate the discovery rule as to the breach of fiduciary duty and fraud claims. We agree, and therefore, turn to the issue of whether summary judgment was proper on the ground of laches.

2. Laches

a. Applicable Law

Generally, in order to establish a laches defense, the defendants must show (1) the plaintiffs unreasonably delayed in asserting their claim, and (2) the defendants have detrimentally changed their position because of the delay. Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412, 415 (Tex.App.-Corpus Christi 2001, pet. denied); Green v. Parrack, 974 S.W.2d 200, 203-04 (Tex.App.-San Antonio 1998, no writ). The contours of the defense of laches have been described as follows:

The application of laches, however, is usually limited to cases arising out of equity or actions at law that are essentially equitable in character. Furthermore, this Court has held “laches ... [is] peculiarly available against the assertion of equitable rights, and may not be invoked to resist the enforcement of a purely legal right.” The present case is a claim for breach of contract, a legal right. Appellant has a complete, adequate, legal remedy in a suit for damages for the alleged breach of the lease agreement. Appellant seeks a legal remedy, money damages for back rent and appellee’s alleged failure to maintain the property. This is a claim based in law, no specific performance or injunc-tive relief is requested.... We conclude that the defense of laches does not apply in this ease.

Wayne, 52 S.W.3d at 415 (citations omitted) (emphasis added).

Equitable remedies are available for breach of fiduciary duty. Inti Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 584 (Tex.1963) (holding the trial court properly imposed punitive damages as an equitable remedy for breach of fiduciary duty); In re Kerr, 293 S.W.3d 353, 358 (Tex.App.-Beaumont 2009, orig. proceeding [mand. denied]) (noting equitable remedies of constructive trust and profit disgorgement are available for breach of fiduciary duty). A constructive trust is an equitable remedy created by the courts to prevent unjust enrichment. Medford v. Medford, 68 S.W.3d 242, 248 (Tex.App.-Fort Worth 2002, no pet.). Actual fraud or breach of a confidential relationship must be present to justify the imposition of a constructive trust. Meadows v. Bierschwale, 516 S.W.2d 125, 128 (Tex.1974). A suit for an accounting is generally founded in equity. Southwest Livestock & Trucking Co. v. Dooley, 884 S.W.2d 805, 809 (Tex.App.-San Antonio 1994, writ denied).

b. Issues Presented

In their fourth issue, the Garcias argue the summary judgment was insupportable on the ground of laches as to their claims of breach of fiduciary duty and fraud. The Garcias do not argue Dean and Shepherd failed to establish the elements of laches. Instead, the Garcias argue laches does not apply to their breach of fiduciary duty and fraud claims because these claims are purely legal, not equitable, in character. To support this argument, the Garcias cite cases holding the defense of laches did not apply to claims involving the enforcement of purely statutory rights. See, e.g., Tex. Attorney General v. Daurbigny, 702 S.W.2d 298, 300-01 (Tex.App.-Houston [1st Dist.] 1985, no writ) (holding laches was unavailable as a defense to a suit enforcing the statutory duty of a parent to support his children); Ex parte Payne, 598 S.W.2d 312, 318 (Tex.Civ.App.-Texarkana 1980, orig. proceeding) (holding defense of lach-es did not apply when the petitioner sought to enforce a purely statutory right-child support contempt proceedings under the Texas Family Code) disapproved on other grounds by Huff v. Huff, 648 S.W.2d 286, 290 (Tex.1983).

Dean and Shepherd counter the summary judgment was supportable on the ground of laches because the Garcias’ breach of fiduciary duty and fraud claims were essentially equitable in character. Dean and Shepherd also argue the Garci-as’ suit is essentially a fee forfeiture case, which is equitable in character. See Burrow v. Arce, 997 S.W.2d 229, 245-46 (Tex.1999) (stating “[i]n a[fee] forfeiture case the value of the legal services rendered does not, as we have explained, dictate either the availability of the remedy or amount of the forfeiture. Both decisions are inherently equitable and must thus be made by the court”) (emphasis added).

c. Analysis

An examination of the petition in this case shows the Garcias’ claims and theories of recovery are largely intertwined. For example, the Garcias’ trespass to try title and quiet title allegations are predicated on their breach of fiduciary duty and fraud allegations. Additionally, the Garcias seek substantial equitable relief in their petition. The Garcias’ live pleading — their third amended petition— states: “Plaintiffs bring this action to redress the substantial wrong done to them by their attorneys and their family members, through fraud, breach of fiduciary obligations, and slander of title by quieting title to the subject property. Plaintiffs seek actual damages, punitive damages, an order quieting title, an accounting, and the imposition of a constructive trust.” And, the prayer of the petition states,

WHEREFORE, Plaintiffs request that Defendants be cited to appear and answer and that on final trial Plaintiffs have:

1. For each and every legal cause of action set forth above, actual damages in excess of the jurisdictional limits of this Court in recompense for the losses described above;
2. For each and every legal cause of action set forth above in which punitive damages are requested, punitive damages against Dean and Shepherd in an amount equal to the maximum amount allowable under Texas law;
3. An Order of this Court requiring a full accounting of all books, records, revenues, expenses, transfers, gifts, trusts and assignments of interest in the Ran-cho Nuevo and Salado Ranch properties as requested above;
h- A Judgment decreeing a constructive trust on the property described in this petition, with the defendant as constructive trustee for the benefit of the Plaintiffs;
5. A Judgment ordering Defendants, as constructive trustees, to convey the property described in this petition to Plaintiffs ....

(emphasis added).

At oral argument, the Garcias cited several paragraphs in their petition which they contend show that they seek to recover monetary damages — a legal remedy— for their breach of fiduciary duty and fraud claims. An examination of these paragraphs, however, shows that monetary damages are not requested as an independent, alternative remedy, but rather are requested in conjunction with the equitable remedies requested.

As presented in their petition, the Garci-as’ breach of fiduciary duty and fraud claims are not purely legal claims. We, therefore, hold the defense of laches was available as to the Garcias’ breach of fiduciary duty and fraud claims, and the summary judgment must be upheld on this ground. We overrule the Garcias’ second, third, and fourth issues.

Trespass to Try Title and Quiet Title Claims

In their fifth issue, the Garcias argue the summary judgment cannot be sustained as to their trespass to try title and quiet title claims because the mineral deed was void ab initio. In their responses to the motion for summary judgment, the Garcias argued the statute of limitations did not apply to them because the mineral deed was void ab initio. The cornerstone of this argument is a case in which the Texas Supreme Court concluded a trustee’s deed was “absolutely void” because there was no default by the debtor and the deed of trust authorized the sale only upon default by the debtor. Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 675 (1942). After concluding the deed was absolutely void because the trustee had no authority to convey the land, the supreme court held the trespass to try title suit was not barred by limitations. Id. As explained in Slaughter:

The rule has long been ... that where a deed is absolutely void, a suit at law in trespass to try title may be maintained to recover the land without setting the deed aside, and the statutes of limitation governing actions for the recovery of land apply. On the other hand, where a deed is merely voidable and the equity powers of the court must first be invoked to cancel the deed before a suit can be maintained at law to recover the land, then the four-year statute ... controls. Therefore, it is necessary for us to decide whether the trustee’s deed was void or merely voidable in order to determine whether or not the suit was barred by limitation.
The question of whether the trustee’s deed is void or voidable depends on its effect upon the title at the time it was executed and delivered. If it was a mere nullity, passing no title and conferring no rights whatsoever, it was absolutely void, but if it passed title to Mrs. Slaughter, the purchaser, subject only to the right of Qualls to have it set aside upon proof that the sale was improperly made, then it was merely voidable.

Id. at 674 (emphasis added). The supreme court further explained, “[t]hat which is void is without vitality or legal effect. That which is voidable operates to accomplish the thing sought to be accomplished, until the fatal vice in the transaction has been judicially ascertained and declared.” Id. at 676 (citation omitted).

Here, the Garcias argue the mineral deed was void ab initio because in obtaining the deed Dean and Shepherd violated two of the Texas disciplinary rules in effect at the time the deed was executed. The two disciplinary rules in question are former DR 5-103 and DR 5-104. In 1975, DR 5-103, entitled “Avoiding Acquisition of Interest in Litigation,” stated:

(A) A lawyer shall not acquire a proprietary interest in the cause of action or the subject matter of litigation he is conducting for a client, except that he may:
(1) Acquire a lien granted by law to secure his fee or expenses.
(2) Contract with a client for a reasonable contingent fee in a civil case.

State Bar of Texas, Rules And Code of Professional Responsibility, DR 5-103, 34 Tex. B.J. 757, 766 (1971, superseded 1990) (current version at Tex. Disciplinary R. Prof’l Conduct 1.08(h), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar Rule art. X, § 9)).

In 1975, DR 5-104, entitled “Limiting Business Relations with a Client,” stated in relevant part:

(A) A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.

State Bar of Texas, Rules and Code of Professional Responsibility, DR 5-104, 34 Tex. B.J. 757, 766-67 (1971, superseded 1990) (current version at Tex. Disciplinary R. Prof’l Conduct 1.08(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar Rule art. X, § 9)).

In response, Dean and Shepherd contend there was no violation of the disciplinary rules. Specifically, Dean and Shepherd contend they did not violate these rules because by the time the deed was signed by the Garcias, the partition suit had been settled and Dean and Shepherd were no longer “conducting litigation.” We find it unnecessary to address the merits of this contention.

The Garcias argue the mineral deed is “categorically ‘void’ rather than ‘voidable! ]’ because it was procured as the result of violations of two applicable disciplinary rules for Texas attorneys, DR 5-103 and DR 5-104.” The Garcias further argue “[a]ny contract that violates public policy is void and in 1975 the Texas Disciplinary Rules constituted the ‘public policy’ of the State of Texas.” We are unpersuaded by the Garcias’ premise that a violation of DR 5-103 or DR 5-104 would have automatically rendered the mineral deed in this case void ab initio. For the following reasons, we conclude the mineral deed in this case was not void ab initio as argued by the Garcias.

First, the preamble to the current Rules of Professional Conduct states “[t]hese rules do not undertake to define standards of civil liability of lawyers for professional conduct. Violation of a rule does not give rise to a private cause of action nor does it create any presumption that a legal duty to a client has been breached.” Tex. Disciplinary Rule Prof’l Conduct preamble ¶ 15, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar Rule art. X, § 9). As recognized by the Fourteenth Court of Appeals:

The Texas Disciplinary Rules of Professional Conduct do not define standards for civil liability and do not give rise to private claims. Nonetheless, a court may deem these rules to be an expression of public policy, so that a contract violating them is unenforceable as against public policy. Although courts may, and often have, used these rules as a measure of public policy, they are not required to do so.

Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 613 (Tex.App.Houston [14th Dist.] 2006, pet. denied) (citations omitted) (emphasis added); see also Wright v. Sydow, 173 S.W.3d 534, 549 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (holding that a settlement agreement would be enforced even if it were executed in violation of a Texas Disciplinary Rule of Professional Conduct and stating that a violation of one of these rules does not necessarily void a contract); Primrose Operating Co., Inc. v. Jones, 102 S.W.3d 188, 193 (Tex.App.-Amarillo 2003, pet. denied) (stating that disciplinary rules govern non-disciplinary proceedings only to the extent that they manifest public policy).

Second, the Garcias direct our attention to several cases in which Texas courts have concluded that agreements violating other disciplinary rules were unenforceable and void as against public policy. See, e.g., Johnson v. Brewer & Pritchard, P.C, 73 S.W.3d 193, 205 (Tex.2002) (“A fee sharing agreement between lawyers who are not in the same firm violates public policy and is unenforceable unless the client is advised of and consents to the sharing arrangement.”); Lemond v. Jamail, 763 S.W.2d 910, 914 (Tex.App.-Houston [1st Dist.] 1988, writ denied) (“In substance, the trial judge ... found ... that the referral agreement is void and unenforceable as being against public policy because ... the client ... was never informed of the fee-splitting agreement....”); Quintero v. Jim Walter Homes, Inc., 709 S.W.2d 225, 229-30 (Tex.App.-Corpus Christi 1986, writ refd n.r.e.) (holding a settlement agreement was void and unenforceable because the clients were not informed of the nature and amounts of all the claims involved in the aggregate settlement as required by DR 5-106); Fleming v. Campbell, 537 S.W.2d 118, 119 (Tex.Civ.App.-Houston [14th Dist.] 1976, writ ref'd n.r.e.) (holding an attorney’s referral fee contract was void because it was against the public policy expressed in DR 2-107); but see Baron v. Mullinax, Wells, Mauzy & Baab, Inc., 623 S.W.2d 457, 461 (Tex.App.-Texarkana 1981, writ refd n.r.e.) (recognizing “[t]he public policy behind this disciplinary rule [DR 2-107] is that persons represented by lawyers in this State should be able to choose who finally represents them and the type of legal fees to be charged,” but holding the contract in question was valid). However, the Garcias do not direct us to any cases holding agreements violating DR 5-103 and DR 5-104 were unenforceable and void as against public policy, and we have found none.

Finally, deeds are void ab initio under very limited circumstances. Forged deeds are void ab initio; however, deeds obtained by fraud, fraudulent misrepresentation, undue influence, or mutual mistake are not void, but voidable. 5 Alyosius A. Leopold, Texas Practice: Land Titles and Title Examination §§ 27.3-27.17 (3d ed. 2005 & Supp. 2009); see also Dwairy v. Lopez, 243 S.W.3d 710, 712 (Tex.App.-San Antonio 2007, no pet.) (“[A] forged deed passes no title.”). Here, there are no allegations of forgery. Additionally, there are no allegations the Garcias did not have the authority to sign the mineral deed and convey the mineral interests in question.

The Garcias also suggest in their brief that even if the mineral deed was not void ab initio because it violated the disciplinary rules, the mineral deed was void because the Garcias were fraudulently induced to sign it. This argument, however, was not presented to the trial court. “Issues not expressly presented to the trial court by written motion, answer or other response” to the motion for summary judgment “shall not be considered on appeal as grounds for reversal.” Tex.R. Civ. P. 166a(c). A party cannot raise new reasons why a summary judgment should have been denied for the first time on appeal. Clear Creek, 589 S.W.2d at 678-79. Because this argument was not presented to the trial court, we are precluded from reaching its merits.

Here, the summary judgment record, viewed in the light most favorable to the Garcias, shows the mineral deed was not void, but voidable. When a deed is merely voidable, then the four-year statute of limitations controls. Slaughter, 162 S.W.2d at 674. Because the mineral deed in this case was voidable, the four-year statute of limitations applied to the trespass to try title and quiet title actions and barred these claims. We, therefore, must uphold the summary judgment as to the trespass to try title and quiet title claims.

Remaining Claims

The Garcias present no specific issues challenging the summary judgment as to their slander of title, constructive trust, accounting, and declaratory judgment claims on the ground of limitations. Additionally, the Garcias present no general issues challenging the summary judgment. When, as here, an appellant fails to specifically challenge every ground raised in the motion for summary judgment, and fails to raise a general issue contending the trial court erred in granting summary judgment, the summary judgment must be upheld. Gamboa v. Shaw, 956 S.W.2d 662, 665-66 (Tex.App.-San Antonio 1997, no writ) (citing Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970)). We, therefore, must uphold the summary judgment on the Garcias’ remaining claims.

Conclusion

Having concluded the summary judgment must be upheld on the grounds of limitations and laches, we need not address the Garcias’ issues challenging the summary judgment on grounds of lack of privity and lack of standing. See Tex. R.App. P. 47.1. The judgment of the trial court is affirmed.

      . A partnership in which Homer E. Dean Jr. was a general partner.

      . The fraud allegations were against Dean only.

      . During oral argument, Dean’s and Shepherd's counsel remarked that if a disciplinary rule had been violated, then the mineral deed would "arguably” be void and limitations would not apply. This remark has no effect on our disposition of this issue. First, counsel stated the mineral deed would "arguably” be void, and therefore, the remark was qualified. Second, under our analysis we do not reach the issue of whether any disciplinary rule was violated.