author: MACKEY K. HANCOCK, Justice.

text:
    Cecil HICKS, Appellant, v. Tim CASTILLE, Appellee.
    No. 07-09-00095-CV.
    Court of Appeals of Texas, Amarillo, Panel A.
    May 21, 2010.
    Reconsideration En Banc Overruled June 30,2010.

      Landon Lambert, Law Offices of Landon Lambert, Clarendon, for appellant.
    Harold L. Comer, Pampa, for appellee.
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
   OPINION

MACKEY K. HANCOCK, Justice.

Appellee’s Motion for En Banc Reconsideration is denied. We withdraw our opinion and judgment of April 12, 2010, and substitute the following.

Cecil Hicks appeals from the trial court’s summary judgment in favor of Tim Castille. At issue is the precise nature of Castille’s right of first refusal as to certain property. The trial court held that Cas-tille has a contractual right to purchase an entire four-acre tract intact, rather than just a fraction of the tract, if he has the opportunity to exercise his right of first refusal. The trial court also concluded that Castille has a contractual right to the benefits of the tower lease in effect on the four-acre tract and that Hicks’s contemplated sale of approximately .28 acre and cancellation of the tower lease for $50,000.00 would constitute a material breach of the parties’ agreement. Hicks complains that the trial court erred by so concluding and contends that he was entitled to summary judgment that he complied with the terms of their agreement by giving Castille notice of the terms of the contemplated sale of the .28 acre.

We reverse, render in part, and remand in part.

Factual and Procedural History

Castille purchased from Hicks ninety-six acres of a 100-acre tract of land in Wheeler County. The remaining four acres included a parcel of approximately .28 acre subject to a lease agreement between American Tower, L.P. and Hicks. Castille and Hicks agreed that Castille would hold a right of first refusal as to the four acres (the Agreement). The Agreement provides as follows:

For and in consideration of the sum of TEN AND NO/100 ($10.00) DOLLARS, the purchase of certain real estate located in Wheeler County, Texas, owned by CECIL HICKS, hereinafter referred to as “Hicks,” by TIM CASTILLE, hereinafter referred to as “Castille,” that the said Hicks gives Castille the right of first refusal to purchase a four (4) acre tract of land and the American Tower Lease currently in effect on said land, said four acres more fully described by metes and bounds on Exhibit “A” attached hereto and incorporated herein for all purposes.
Such right of first refusal shall be exercised within sixty (60) days of receipt of written notice via certified mail, return receipt requested, from Hicks to Cas-tille, that Hicks no longer desires to use such real estate or desires to sell same. In the event Castille does not exercise the right to purchase within sixty (60) days, this right of first refusal shall terminate and be of no further force and effect.
DATED this 30 day of May, 2006.

Both Hicks and Castille signed the Agreement. The issue in this case centers on whether the Agreement would permit the sale of the .28 acre subject to the lease or whether the four-acre tract must remain intact.

The parties agree that, on April 21, 2008, Hicks sent Castille a notice of intent to sell a .28-acre tract included in the four-acre tract on which Castille held a right of first refusal. According to Hicks, Castille then had sixty days to exercise his then-matured option to purchase the .28 tract on the same terms to which American Tower and Hicks had agreed: $50,000.00. Castille did not exercise his option to purchase the .28 acre. Instead, on June 18, 2008, he filed suit for declaratory relief. On competing motions for summary judgment, the trial court granted Castille’s motion, denied Hicks’s motion, and awarded Castille $5,200.00 in attorney’s fees.

Standard of Review

By twelve issues, Hieks contends that the trial court erroneously granted Cas-tille’s motion for summary judgment and erroneously denied his motion for summary judgment. Both parties’ motions sought summary judgments that would declare the parties’ rights under the agreement, and each party requested attorney’s fees.

We look to the procedure used to resolve the issue below to determine the standard of review on appeal. City of Galveston v. Tex. Gen. Land Office, 196 S.W.3d 218, 221 (Tex.App.-Houston [1st Dist.] 2006, pet. denied). When a trial court resolves a declaratory judgment action on competing motions for summary judgment, “we review the propriety of the declaratory judgment under the same standards that we apply in reviewing a summary judgment.” Id.

We review a trial court’s decision to grant or to deny a motion for summary judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex.2007). Although the denial of summary judgment is ordinarily not appealable, we may review such a denial when both parties moved for summary judgment and the trial court granted one and denied the other. Id. When reviewing competing motions for summary judgment, we review the summary judgment evidence presented by each party, determine all questions presented, and render the judgment that the trial court should have rendered. Id.; FWT, Inc. v. Haskin Wallace Mason Prop. Mgmt., L.L.P., 301 S.W.3d 787, 792 (Tex.App.-Fort Worth 2009, pet. filed).

Analysis

A. Rules of Construction

The trial court’s judgment adopted Castille’s construction of the Agreement. Castille reads the Agreement as allowing Hicks to sell the four-acre tract subject to the right of first refusal only as one entire parcel. In other words, he reads the Agreement as one which would prohibit Hicks from selling a portion, rather than the entirety, of the four-acre tract. Hicks, on the other hand, reads the Agreement without such restriction and maintains that the Agreement permits such a sale of a portion of the four-acre tract so long as he notifies Castille in accordance with the terms of the Agreement.

In construing a written contract, our primary concerns are to ascertain and to give effect to the parties’ intentions as expressed in the document. Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 311-12 (Tex.2005). In doing so, we consider the entire writing and attempt to harmonize and give effect to all of the provisions of the contract by analyzing the provisions with reference to the whole agreement. Id. at 312. We do not give any single provision controlling effect. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). We construe a contract “from a utilitarian standpoint bearing in mind the particular business activity sought to be served” and “will avoid[,] when possible and proper[,] a construction which is unreasonable, inequitable, and oppressive.” Frost Nat’l Bank, 165 S.W.3d at 312 (quoting Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987)). If, after we apply the relevant rules of construction, we can give a contract a definite or certain legal meaning, the contract is unambiguous, and we construe it as a matter of law. Id. A contract is not ambiguous simply because the parties disagree over its interpretation. Markert v. Williams, 874 S.W.2d 353, 355 (Tex.App.-Houston [1st Dist.] 1994, writ denied). If a contract may be construed in two ways, one of which validates the contract and the other of which invalidates it, we must adopt the construction that validates the contract. Harris v. Rowe, 593 S.W.2d 303, 306 (Tex.1980); Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 56 (Tex.App.-Dallas 2006, pet. denied).

B. Rights of First Refusal

1. What a holder of a right of first refusal can do

A right of first refusal, also called a preferential right or a preemptive right, is a right granted to a party giving him or her the first opportunity to purchase property if an owner decides to sell it. Mandell v. Mandell, 214 S.W.3d 682, 688 (Tex.App.-Houston [14th Dist.] 2007, no pet.); Abraham Inv. Co. v. Payne Ranch, Inc., 968 S.W.2d 518, 524 (Tex.App.-Amarillo 1998, pet. denied). Sister courts have described a preferential right as a dormant option. Mandell, 214 S.W.3d at 688; A.G.E., Inc. v. Buford, 105 S.W.3d 667, 673 (Tex.App.-Austin 2003, pet. denied). A right of first refusal is generally well understood in the business world to mean that the rightholder must be given an opportunity to purchase the property from the property owner on the terms offered by any third party. Abraham Inv. Co., 968 S.W.2d at 524.

Once the property owner provides the terms of that third-party offer to the rightholder, the rightholder then has the power to accept or reject the offer. City of Brownsville v. Golden Spread Elec. Coop., Inc., 192 S.W.3d 876, 880 (Tex.App.-Dallas 2006, pet. denied); Abraham Inv. Co., 968 S.W.2d at 524. Indeed, when a property owner expresses the intention to sell the property, the rightholder is obligated to elect to either purchase the property or permit the property owner to sell it. Mandell, 214 S.W.3d at 688; A. G.E., 105 S.W.3d at 673. So, generally, when the property owner gives notice of his intent to sell, the preferential right matures or “ripens” into an enforceable option. Golden Spread Elec. Coop., 192 S.W.3d at 880; Abraham Inv. Co., 968 S.W.2d at 524. The terms of the option are formed by both the provisions granting the preferential right and the terms and conditions of the third-party offer presented to the rightholder. Abraham Inv. Co., 968 S.W.2d at 524-25.

The rightholder’s exercise of the option to purchase must be positive, unconditional, and unequivocal. Tex. State Optical, Inc. v. Wiggins, 882 S.W.2d 8,10-11 (Tex.App.-Houston [1st Dist.] 1994, no writ). If the rightholder proposes a new demand, condition, or modification of the terms, he is treated as having rejected the offer. See Golden Spread Elec. Coop., 192 S.W.3d at 880; Tex. State Optical, 882 S.W.2d at 11. When the rightholder notifies the property owner of his or her acceptance of the offer, a contract between the rightholder and the property owner is created. Golden Spread Elec. Coop., 192 S.W.3d at 880.

2. What the holder of a right of first refusal cannot do

Though a right of first refusal may mature into an option, it remains distinct from an option in that the holder of the option purchases the right to compel a sale of property on the stated terms before the expiration of the option. See Comeaux v. Suderman, 93 S.W.3d 215, 219-20 (Tex.App.-Houston [14th Dist.] 2002, no pet.); see also Sinclair Ref. Co. v. Allbritton, 147 Tex. 468, 475, 218 S.W.2d 185, 188-89 (Tex.1949). The holder of a right of first refusal has no right to compel a sale or to prevent a sale; he or she has only the right to be offered the property at a fixed price or at a price offered by a bona fide purchaser if and when the owner decides to sell. Abraham Inv. Co., 968 S.W.2d at 525; Riley v. Campean Homes, Inc., 808 S.W.2d 184, 187 (Tex.App.-Houston [14th Dist.] 1991, writ dism’d). The holder of a right of first refusal cannot compel an unwilling owner to convey the property. Riley, 808 S.W.2d at 187.

Unless the property owner and the rightholder have agreed to terms on price, the rightholder cannot fix the price because the price is determinable only when a willing seller receives an acceptable offer from a bona fide purchaser. See Forderhause v. Cherokee Water Co., 623 S.W.2d 435, 439 (Tex.Civ.App.-Texarkana 1981), rev’d on other grounds, 641 S.W.2d 522 (Tex.1982). The rightholder does not have the privilege to negotiate with the seller regarding the terms of the third-party offer. See Abraham Inv. Co., 968 S.W.2d at 525. The owner of property subject to a right of first refusal remains the master of the conditions under which he or she will relinquish interest in the property so long as those conditions are commercially reasonable, imposed in good faith, and not specifically designed to defeat the right of first refusal. See McMillan v. Dooley, 144 S.W.3d 159, 176 (Tex.App.-Eastland 2004, pet. denied) (quoting W. Tex. Transmission, L.P. v. Enron Corp., 907 F.2d 1554, 1563 (5th Cir.1990)).

C. Construing the Agreement

Having reviewed the rules we must employ to construe agreements in general and the general principles concerning rights of first refusal, we now examine the Agreement between Hicks and Castille.

We begin by observing that alienability is a legal incident of property, and restraints against it are generally contrary to public policy. See Trustees of Casa View Assembly of God Church v. Williams, 414 S.W.2d 697, 702 (Tex.Civ.App.-Austin 1967, no writ). The right of alienation is an inherent and inseparable quality of an estate in fee simple. Potter v. Couch, 141 U.S. 296, 815, 11 S.Ct. 1005, 85 L.Ed. 721 (1890); Williams v. Williams, 73 S.W.3d 376, 379 (Tex.App.Houston [1st Dist.] 2002, no pet.). A restraint on alienation is “an attempt by an otherwise effective conveyance or contract to cause a later conveyance ... to impose contractual liability on the one who makes the later conveyance when such liability results from a breach of an agreement not to convey; or ... to terminate or subject to termination all or part of the property interest conveyed.” Navasota Res., L.P. v. First Source Tex., Inc., 249 S.W.3d 526, 537-538 (Tex.App.-Waco 2008, pet. denied) (adopting, as have other Texas courts, the Restatement’s definition of restraint on alienation and quoting Restatement of Property § 404(l)(b), (c)). “A restriction ... not forbidding alienation to particular persons or for particular purposes only, but against any and all alienation whatever during a limited time, of an estate in fee, is likewise void, as repugnant to the estate devised to the first taker, by depriving him during that time of the inherent power of alienation.” Williams, 73 S.W.3d at 379-80 (quoting Potter, 141 U.S. at 315, 11 S.Ct. 1005); see also O’Connor v. Thetford, 174 S.W. 680, 681, 682 (Tex.Civ.App.-San Antonio 1915, writ refd) (observing that “[h]e would certainly be a poor owner who was required to hold property all his life without the power to sell it”).

Were we to adopt Castille’s construction of the Agreement, we would be enforcing what appears to be an unreasonable restraint on alienation: an outright prohibition of indeterminate duration from selling any portion of the land in question less than four acres. See Reagan Nat’l Adver. of Austin v. Capital Outdoors, 96 S.W.3d 490, 494-95 (Tex.App.-Austin 2002, pet. granted, judgment vacated w.r.m.) (concluding that “appellant’s construction of the lease clause is too broad and would create an unreasonable restraint on alienation were we to adopt it”).

Castille has not directed this Court to a case which would support the position that a landowner may not partition or sell portions of the property described in an agreement conferring a right of first refusal. And we have found but one that briefly addresses this issue; it, however, does so in a slightly different context and supports the position contrary to Castille’s. See Barrows v. Ezer, 668 S.W.2d 854, 855 (Tex.App.-Houston [14th Dist.] 1984, writ refd n.r.e.). At issue in jBarrows was the enforceability of a provision in a will that required the devisees to keep the bequeathed ranch intact for twenty-five years and also maintain the name of the ranch and make certain that the livestock on the ranch bore the testator’s recorded brand for twenty-five years. Id. The appellate court affirmed the trial court’s conclusion that this attempted restraint on alienation was void. Id. at 856. Of course, the will provision in Barrows attempted to do more than simply keep the ranch intact, but the case remains instructive in its treatment of the restraint on alienation as it relates to an attempt to prohibit a transfer of a portion of the land at issue.

Similarly, here, the Agreement, as Cas-tille would have us read it, would serve to wholly prohibit Hicks — regardless of his compliance with the notice requirements— from selling .28 acre, one acre, two acres, or any portion of the land less than four acres. This construction, then, would amount to a nearly absolute prohibition against conveying any of the land less than four acres, and we have no concrete indication of the duration from which we could determine whether it is reasonable. Such a restraint on alienation of property has long been disfavored.

Although the Agreement does refer to “the four-acre tract,” it does not specifically provide that the right of first refusal is limited to only the four-acre tract intact. The parties could have negotiated more specific terms but did not do so. We will not read terms into the Agreement, especially not when those terms would lead to an unreasonable construction.

Adhering to the relevant rules of construction, we have examined the Agreement from a utilitarian perspective, bearing in mind the purposes and restrictions associated with a right of first refusal, and have construed the Agreement in such a way as to not invalidate it. See Frost Nat’l Bank, 165 S.W.3d at 312; Hackberry Creek Country Club, 205 S.W.3d at 56. Having done so, we conclude that the Agreement permits the sale of a portion of the four acres so long as Hicks gives proper notice in accordance with the Agreement. To hold otherwise would cause the right of first refusal to represent an unreasonable restraint on alienation by prohibiting Hicks from selling any portion of the tract less than four acres. The converse application would also be unreasonable, permitting the right of refusal to do something it must not do; to hold that Castille has a right to buy all four remaining acres intact would run afoul of the well-established rule that a holder of a right of first refusal cannot compel the owner to sell the property at issue. That is, to read the Agreement to mean that Hicks can only sell the entire four-acre tract of land could have the practical effect of forcing him to sell land that he does not wish to sell. We will not construe the Agreement to create a right of first refusal that is inconsistent with the principles concerning such rights.

Conclusion

In order to conclude, as did the trial court, that the contemplated sale from Hicks to American Tower constituted a breach of the Agreement, one must read the Agreement as permitting sale of only the four-acre tract in its entirety. This all- or-nothing construction is problematic; either it disallows Hicks to sell a portion of his property infringing on his ownership of the property or it compels him to sell the land in its entirety which may be and, in this instance, is more than he desired to sell.

The trial court erred by concluding that Castille has a contractual right to purchase the entire four-acre tract intact, that Castille also had a contractual right to the tower lease benefits, and that the contemplated sale between Hicks and American Tower would represent a material breach of the Agreement. Application of the rules of construction lead us to conclude that the Agreement permitted the sale of a portion of the four acres so long as Hicks gave proper notice and the third-party offer was commercially reasonable, imposed in good faith, and not specifically designed to defeat the right of first refusal. Since the parties agree that Hicks gave proper notice and that Castille did nothing to exercise his then-matured option to purchase the ,28 acre and since there is no evidence before this Court to indicate that the terms of the sale between Hicks and American Tower were commercially unreasonable, not imposed in good faith, or specifically designed to defeat Castille’s right of first refusal, we render the judgment that the trial court should have rendered: The evidence establishes that Hicks gave the requisite notice of his intent to sell .28 acre of the four acres and provided the terms on which he contemplated selling to American Tower; that, upon such notice, Castille’s right of first refusal as to the .28 acre matured into an option to purchase the .28 acre on those terms; that Castille failed to exercise such option; and that, due to such failure, Cas-tille’s right to purchase the .28 acre expired.

Because we so hold, we reverse the trial court’s summary judgment in favor of Cas-tille and render judgment in favor of Hicks that Castille’s right of first refusal was invoked and, having remained unexercised, lapsed as to the .28 acre. We also reverse the trial court’s award of attorney’s fees to Castille and remand the cause to the trial court to reconsider the equitable and just award of reasonable and necessary attorney’s fees. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 2008); Nw. Austin Mun. Util. Dist. No. 1 v. City of Austin, 274 S.W.3d 820, 840 (Tex.App.-Austin 2008, pet. denied).

      . Alternatively, Castille argues that the terms of the contemplated sale of the .28 acre from Hicks to American Tower for $50,000.00 was not commercially reasonable. We have no evidence before us that the terms of the contemplated sale were unreasonable. Assuming we may consider Castille’s affidavit for the proposition that the terms of the sale were commercially unreasonable, we conclude that his general statements regarding the fair market value per acre of farm land (specifically excluding conveyance of mineral rights) in Wheeler County do not directly address the price per acre on which improvements have been made. That is to say, to the extent Castille’s affidavit can be considered, it is not relevant to the fair market value of land in Wheeler County on which a tower structure has been erected.

      . We add that a party may not introduce parol evidence to vary the terms of an unambiguous contract. Markert, 874 S.W.2d at 355. For this reason, we do not consider the contents of Castille’s affidavit concerning the negotiations surrounding the Agreement. Even were we to consider the affidavit, Cas-tille's intentions do not change the unambiguous terms of the written right of first refusal.

      . Castille points to no evidence that the contemplated sale was specifically designed to defeat his rights to the tower lease. Though the sale may have ultimately done so, to the extent the Agreement conferred any rights to the lease to Castille, we have no evidence that the contemplated sale was designed with that specific purpose in mind. Since he was not a party to the lease between Hicks and American Tower, Castille could not have agreed to the termination of the lease. Had Castille exercised the option to purchase when it matured, he may have then been in a position to negotiate with American Tower regarding the status of the lease.

      . See Procter v. Foxmeyer Drug Co., 884 S.W.2d 853, 858-59 (Tex.App.-Dallas 1994, no writ) (providing a thorough discussion of the applicability of the Restatement (Second) to restraints on alienation in the commercial transaction context as opposed to the dona-tive transfer context); see also Sonny Arnold, Inc. v. Sentry Sav. Ass'n, 633 S.W.2d 811, 814 (Tex.1982); Mattem v. Herzog, 367 S.W.2d 312, 319 (Tex.1963); Deviney v. NationsBank, 993 S.W.2d 443, 449 (Tex.App.-Waco 1999, pet. denied); Randolph v. Terrell, 768 S.W.2d 736, 738-39 (Tex.App.-Tyler 1987, writ denied).

      . We note the distinction between the instant case and the situations examined in such cases as FWT, Inc., 301 S.W.3d at 792-93, McMillan, 144 S.W.3d at 178-79, and Riley, 808 S.W.2d at 189. In these cases, the terms of the contemplated sale went beyond the scope of the right of first refusal. As a general rule, the holder of a preferential right cannot be compelled to purchase assets beyond those included within the scope of the agreement subject to the preferential right in order to exercise that right. See Navasota Res., 249 S.W.3d at 535. Unlike the rightholders in these cases, Castille is not faced with an offer that goes beyond the scope of the agreement. To the contrary, American Tower offered to purchase from Hicks only .28 acre of the four acres on which Castille holds a right of first refusal.

      . O’Connor and a number of other cases suggest that even restrictions that amount to an outright prohibition of transfer may be valid if those restrictions are of reasonable duration. 174 S.W. at 681. Here, there is no express duration of the Agreement.

      . Taken to its logical conclusion, Castille’s construction of the agreement that Hicks must sell the four-acre parcel in its entirety and with the tower lease in effect would vest in Castille the power to force Hicks and American Tower to remain in the lease agreement. We will not read a contract in such a way as to lead to an absurd result.


source: Caselaw Access Project

author: Opinion by Justice LANG-MIERS.

license: Public Domain

text:
    Mendy WELBORN, Appellant, v. AMERICAN MEDICAL RESPONSE OF TEXAS, INC.; Ferrill Enterprises, Inc.; Ferrill Lawson; Robert Arse-nault; Carolyn Hart; Bobby Hart; and Jana Hart, Individually and as Next Friend of Rickey Hart II and Katie Hart, Minors, Appellees.
    No. 05-08-01432-CV.
    Court of Appeals of Texas, Dallas.
    May 24, 2010.

      Larry R. Wright, Larry R. Wright, P.C., Winnsboro, for Appellant.
    David M. Weaver, Burford & Ryburn, LLP, Reuben R. Rios, Gregory R. Ave, Walters, Balido & Crain, L.L.P., John M. Cox, John M. Cox & Associates, P.C., Dallas, Carolyn Hart, Alvarado, Coby Dean Smith, Brackett & Ellis, P.C., Fort Worth, for Appellees.
    Before Justices O’NEILL, LANG-MIERS, and MYERS.
   OPINION

Opinion by Justice LANG-MIERS.

In this appeal, Mendy Welborn challenges the trial court’s dismissal of her lawsuit against appellees for want of prosecution and lack of due diligence. In six issues, she argues that the trial court abused its discretion by dismissing her lawsuit and erred by failing to hold a hearing on her motion to reinstate the lawsuit. Because the trial court did not conduct a hearing on Welborn’s verified motion to reinstate, we reverse the trial court’s judgment and remand this case to the trial court for further proceedings.

In April 2000, Ricky Hart and Robert Arsenault were driving motorcycles when they were involved in an accident. Hart was killed. Welborn was a passenger on Arsenault’s bike and was injured. As Wel-born was being transported to the hospital in an ambulance operated by American Medical Response of Texas, Inc., the ambulance was involved in an accident.

Hart’s family sued Arsenault, Ferrill Enterprises, Inc., and Ferrill Lawson in Johnson County alleging that Arsenault had been drinking at Ferrill’s Lounge and was intoxicated at the time of the accident. Over a year later, Welborn intervened in that action, asserting claims against the Hart family, the Ferrill defendants, Arse-nault, and American Medical. American Medical moved to sever and transfer venue of Welborn’s claims to Dallas County. Its motion was granted and the Johnson County court ordered Welborn’s claims against all defendants transferred to Dallas County.

When the case arrived in Dallas County, it was docketed as “Carolyn Hart, et al. v. Ferrill Enterprises, Inc., et al.” — the same style as the lawsuit in Johnson County. In the meantime, the Hart family settled its Johnson County lawsuit against the Ferrill defendants and Arsenault and moved to dismiss that lawsuit. They also moved to dismiss their claims against these defendants in the Dallas County lawsuit. Apparently not realizing that Welborn’s claims were separate, the Dallas County court dismissed all claims of all parties in April 2003 and closed and archived the file. Meanwhile, American Medical and Wel-born continued to prepare for trial in the Dallas County lawsuit without realizing that Welborn’s claims had been dismissed. The parties learned of the dismissal a few months later.

The trial court was eventually alerted to the error in docketing and held a status conference five years later. After the hearing, the court announced that it planned to dismiss Welborn’s case for want of prosecution based on the court’s inherent powers. Instead, however, the court notified the parties that it would hold a show-cause hearing to determine whether there was a reason to dismiss Welborn’s case for want of prosecution. On the date of the hearing, Welborn’s attorney filed a motion for continuance stating that Wel-born, who lived in Pennsylvania, was unable to attend and offer evidence because of a conflicting medical appointment in Pennsylvania. The trial court denied the motion for continuance and dismissed the case for want of prosecution and lack of due diligence.

Welborn timely filed a verified motion to reinstate the case and requested a hearing on the motion. She served a copy on the other parties in the case and sent a separate letter to the court asking for a hearing on the motion. See Tex.R. Civ. P. 165a(3). It is undisputed that the trial court did not set or hold a hearing and the motion was overruled by operation of law. See id.

In her sixth issue, Welborn argues that the trial court erred by failing to hold a hearing on her motion to reinstate as required by civil procedure rule 165a. We agree.

Civil procedure rule 165a(3) states, in relevant part:

A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney.... The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable....

Id.

The Texas Supreme Court has held that the hearing required by rule 165a(3) is mandatory and that failure to hold such a hearing requires reversal. Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per curiam). See AIS Sens., L.L.C. v. Bayless, No. 05-07-01446-CV, 2009 WL 3838856, at *3 (Tex.App.-Dallas Nov.18, 2009, no pet.) (mem.op.); Resurgence Fin., L.L.C. v. Foster, No. 05-07-01758-CV, 2009 WL 1875568, at *2 (Tex.App.-Dallas July 1, 2009, no pet.) (mem.op.); Jeffrey v. Nutt, No. 05-98-01914-CV, 2000 WL 1371255, at *1 (Tex.App.-Dallas Sept.25, 2000, no pet.) (mem.op.) (not designated for publication); Reed v. City of Dallas, 774 S.W.2d 384, 385 (Tex.App.-Dallas 1989, writ denied).

Because Welborn timely filed a verified motion to reinstate stating the grounds therefor, the trial court was required to hold a hearing on the motion. See Tex.R. Civ. P. 165a(3). The court’s failure to do so was error and requires reversal. See, e.g., Thordson, 815 S.W.2d at 550. We sustain Welborn’s sixth issue.

The trial court’s judgment is reversed and this cause is remanded to the trial court to conduct a hearing on Welborn’s motion to reinstate. Based on our disposition of this issue, we do not need to consider Welborn’s remaining issues.

      . Appellees Ferrill Enterprises, Inc. and Fer-rill Lawson are spelled inconsistently throughout the record and briefs as "Ferrill'' and "Ferrell.” Based on our review of the record, it appears the correct spelling is "Fer-rill” and that is the spelling we use.


author: Justice FILLMORE.

text:
    In the Interest of A.M.W., C.E.W., III, and B.M.W., Children.
    No. 05-08-01674-CV.
    Court of Appeals of Texas, Dallas.
    May 25, 2010.

      Gerald Allen Tadlock, Tadlock Law Office, P.C., Plano, for Appellant.
    John R. Oldner, Law Office of John R. Oldner, Plano, for Appellee.

      Before Justices MOSELEY, BRIDGES, and FILLMORE.
   OPINION

Opinion By

Justice FILLMORE.

C.W., Jr. (Father) appeals the trial court’s order in a suit affecting the parent-child relationship. Father asserts the trial court erred by (1) modifying the amount of child support Father was obligated to pay because N.G. (Mother) failed to prove a material and substantial change in the circumstances of the parties or the children, (2) awarding attorney’s fees to Mother because she was not the prevailing party and failed to prove the fees were reasonable and necessary, and (3) awarding attorney’s fees in the nature of child support. Mother has not filed a brief responding to Father’s complaints. We modify the trial court’s order to delete all characterizations of the attorney’s fees as “in the nature of child support,” render judgment that the attorney’s fees are recoverable as a judgment debt, but not as child support, and, as modified, affirm the trial court’s order.

Background

Father and Mother were divorced on April 16, 1992. Mother was named the sole managing conservator of the parties’ three children, A.M.W., C.E.W., III, and B.M.W., and Father was ordered to pay $480 per month in child support on the first of every month. On April 24, 1997, the trial court granted Mother’s motion to modify and increased Father’s child support payment to $635 per month. The trial court found in the modification order that Father’s monthly net resources were $2116.

A.M.W. was born on December 15,1986. In 2002, A.M.W., who was fifteen at the time, became pregnant and began living with Father. Mother testified she signed a “Waiver of Citation” to allow Father to enroll A.M.W. in school. On September 25, 2002, Father appeared in court without Mother and obtained an order naming Father the joint managing conservator with the right to determine A.M.W.’s primary residency and reducing Father’s child support obligation to $300 per month. Father testified the child support for C.E.W., III and B.M.W. was reduced so that he could take care of A.M.W. and the baby and that Mother agreed to the reduction in child support. Mother testified she did not know Father was requesting a reduction in child support and denied she agreed to the reduction.

At some point, Mother filed a Suit Affecting the Parent Child Relationship and Suit for Fraud. Mother’s claims for fraud were premised on purported misrepresentations made by Father relating to Mother’s forgiveness of $9300 in back child support and to the reduction of Father’s child support obligation in 2002. Mother served Father with discovery, including request for admissions. Father failed to respond to the request for admissions, and the trial court deemed them admitted. As relevant here, Father was deemed to have admitted (1) he was not paying the $300 per month in child support payments, (2) he has attempted to hide assets and income in order to avoid paying child support, (3) he told Mother the waiver of citation was for the purposes of registering A.M.W. in school, but used the waiver to obtain a reduction in child support without Mother’s knowledge, and (4) on September 25, 2002, he presented no evidence to the trial court as to his income when he requested the child support payments be reduced.

Father testified he started a surveying business in 1999, but did not start “making money” until 2002. He currently grosses between $150,000 and $200,000 per year. Ann W., who was in the process of obtaining a divorce from Father at the time of trial, testified “they” were making between $200,000 and $300,000 per year. She also testified Father maintained an income well above $2100 per month.

The jury found for mother on her fraud claim. However, the trial court set aside the jury’s findings on fraud and ordered that Mother take nothing on those claims. On Mother’s motion to modify, the trial court found that, when the motion to modify was tried in March 2008, A.M.W. and C.E.W., III were emancipated. The trial court further found B.M.W. was not emancipated, would not graduate from high school in 2008 because of health problems, and “could continue her education through the 2008/2009 school year toward completion of her high school requirements (GED) under the supervision of the Garland ISD.” The trial court found the monthly net resources available to Father during the period following the filing of Mother’s motion to modify was $2106. The trial court ordered Father to pay Mother $635 per month in child support retroactive to the date the motion to modify was filed and continuing until the date C.E.W., III was emancipated. After that date, Father was ordered to pay Mother $529 per month in child support until Father was no longer obligated to support B.M.W. under the terms of the order.

Modification of Child Support

In his first issue, Father argues the trial court erred by granting Mother’s motion to modify because Mother failed to prove a material and substantial change in Father’s or Mother’s financial condition since the September 25, 2002 order. The trial court has broad discretion in setting or modifying child support payments, and we will reverse the order only if it appears from the record as a whole that the trial court abused its discretion. In re A.B.A.T.W., 266 S.W.3d 580, 584 (Tex.App.-Dallas 2008, no pet.); In re C.C.J., 244 S.W.3d 911, 917 (Tex.App.-Dallas 2008, no pet.). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); In re A.B.P., 291 S.W.3d 91, 95 (Tex.App.-Dallas 2009, no pet.).

Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error, but are relevant in assessing whether the court abused its discretion. In re A.B.A.T.W., 266 S.W.3d at 584; In re C.C.J., 244 S.W.3d at 917. We review the evidence in the light most favorable to the order and indulge every presumption in favor of the trial court’s ruling. In re A.B.A.T.W., 266 S.W.3d at 584. If some probative and substantive evidence supports the order, there is no abuse of discretion. Id.

The trial court may modify a previous child support order if “the circumstances of the child or a person affected by the order have materially and substantially changed” since the date of the order’s rendition. Tex. Fam.Code ANN. § 156.401(a)(1)(A) (Vernon 2008). In determining whether there has been a material and substantial change in circumstances, the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification is sought In re C.C.J., 244 S.W.3d at 917. As the movant, Mother had the burden to show the requisite material and substantial change in circumstances since the entry of the previous order. Id. at 918; Cameron v. Cameron, 158 S.W.3d 680, 682 (Tex.App.-Dallas 2005, pet. denied).

A trial court’s determination as to whether there has been a material and substantial change of circumstances is not guided by rigid rules and is fact specific. In re Z.B.P., 109 S.W.3d 772, 779 (Tex.App.-Fort Worth 2003, no pet.). Further, contrary to Father’s argument, the material and substantial change is not necessarily a change in the financial condition of one of the parties. A change in custody of a child is, in and of itself, a material and substantial change. Labowitz v. Labowitz, 542 S.W.2d 922, 925 (Tex.Civ.App.-Dallas 1976, no writ) (father’s appointment as managing conservator of children constituted material and substantial change requiring reallocation of financial obligations); In re Z.B.P., 109 S.W.3d at 781-82 (modification order giving father right to establish children’s primary residence was material and substantial change requiring reallocation of financial resources). The trial court may also consider the child support guidelines in chapter 154 of the family code in determining whether there has been a material and substantial change of circumstances. Tex. Fam.Code Ann. § 156.402(a) (Vernon 2008); In re A.B.A.T.W., 266 S.W.3d at 584. If the amount of ordered child support does not substantially conform with the child support guidelines, the trial court may modify the order to conform with the guidelines if the modification is in the best interest of the children. Tex. Fam.Code Ann. § 156.402(b); In re A.B.A.T.W., 266 5.W.3d at 584.

A.M.W. began living with Father in 2002. In the September 25, 2002 order, Father was named the conservator with the right to establish A.M.W.’s primary residence. Father testified the amount of child support he was required to pay was reduced because he took custody of A.M.W. Mother filed the motion to modify at issue in this case on December 1, 2004, the month in which A.M.W. turned eighteen. Father was potentially no longer obligated to support A.M.W. once she was emancipated. Accordingly, the trial court could have found A.M.W.’s emancipation was a material and substantial change of circumstances since the September 25, 2002 order. Further, the child support Father was ordered to pay under the September 25, 2002 order was below the guidelines established by the family code for the remaining two children. See Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 162 (amended 2007) (current version at Tex. Fam.Code Ann. § 154.125(b) (Vernon Supp. 2009)).

The trial court ordered Father to pay increased child support for C.E.W., III and B.M.W. Given the facts of this case, we cannot say the trial court’s determination that an increase in child support was in the best interest of these children was an abuse of the trial court’s broad discretion. We overrule Father’s first issue.

Attorney’s Fees

In issues two and three, Father complains of the trial court’s award of attorney’s fees to Mother. It is within the trial court’s sound discretion to award reasonable attorney’s fees in a suit affecting the parent child relationship. Tex. Fam. Code Ann. § 106.002 (Vernon 2008); In re R.C.S., 167 S.W.3d 145, 152 (Tex.App.-Dallas 2005, pet. denied).

In his second issue, Father asserts Mother failed to prove a material and substantial change in circumstances and, therefore, should not have prevailed on her motion to modify. Father contends that, because Mother should not be the prevailing party, the trial court erred by awarding Mother attorney’s fees. In making this argument, Father is simply attempting to reargue his position on the'merits of Mother’s motion to modify. Mother prevailed on her motion to modify, and we have concluded that Father’s challenge to that ruling is without merit. It was within the trial court’s discretion to award Mother, as the prevailing party, her attorney’s fees. See In re M.A.N.M., 231 S.W.3d 562, 566 (Tex.App.-Dallas 2007, no pet.) (prevailing party is typically one who either successfully prosecutes action or successfully defends against action, prevailing on main issue). We overrule Father’s second issue; R.C.S., 167 S.W.3d at 152.

In his third issue, Father asserts the trial court erred by awarding Mother $20,000 in attorney’s fees because Mother failed to prove the fees were reasonable and necessary. Specifically, Father argues Mother incurred attorney’s fees for a jury trial on fraud claims on which Mother did not prevail and on child support claims that the jury was statutorily barred from deciding. Therefore, Father contends, the trial court erred by not denying or reducing the attorney’s fee award because all the fees were not necessary for the prosecution of the child support modification on which Mother prevailed. Father also asserts the trial court erred by awarding attorney’s fees because Mother did not segregate the fees on her failed claims for fraud from her successful claim for a modification of the child support order.

Mother’s attorney testified he had been practicing law for twelve years and was familiar with the fees that are reasonable and appropriate in “this type of case.” He had worked at least 150 hours on the case, but assessed his “time and efforts at one hundred hours even, but that’s a bear [sic] minimum.” He charged $200 per hour and his reasonable and necessary attorney’s fees “for [Mother’s] work” is $20,000. He stated:

A tremendous amount of work that is not obvious has gone into this case, including — including the attachment of properties in Houston and elsewhere, trying to secure payment of child support, insurance, et cetera.
So the attorney’s fees [are] reasonable and necessary at $20,000.

Father did not cross-examine Mother’s attorney and did not put on any controverting evidence.

Father contends the trial court erred by failing to apportion some or all of Mother’s attorney’s fees to the fraud cause of action and by failing to require Mother to prove the portion of her fees that were reasonable and necessary to the prosecution of the motion to modify. A party seeking to recover attorney’s fees is “required to segregate fees between claims for which they are recoverable and claims for which they are not.” Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 811 (Tex.2006) (citing Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73 (Tex.1997)). However, the opposing party must properly preserve for appellate review a contention that the fee claimant failed to segregate the fees sought. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex.1997); McCalla v. Ski River Dev. Inc., 239 S.W.3d 374, 383 (Tex.App.-Waco 2007, no pet.). Generally, the issue is preserved by objection during testimony offered in support of attorney’s fees or an objection to the jury question on attorney’s fees. McCalla 239 S.W.3d at 383; Cullins v. Foster, 171 S.W.3d 521, 535-36 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).

Father did not object to Mother’s failure to segregate the fees between her fraud claim and her motion to modify or to Mother’s counsel’s global testimony about the time he spent for Mother’s “work.” Accordingly, he waived any error in the trial court’s award of all the fees requested by Mother. We overrule Father’s third issue.

Attorney’s Fees as Child Support

In his fourth issue, Father argues the trial court erred by awarding attorney’s fees in the nature of additional child support. The award of attorney’s fees in the nature of child support is a legal conclusion. In re K.J.D., 299 S.W.3d 517, 518 (Tex.App.-Dallas 2009, no pet.). Therefore, we review the trial court’s order de novo. Id,.; Naguib v. Naguib, 183 S.W.3d 546, 547 (Tex.App.-Dallas 2006, no pet.).

The Texas Legislature distinguishes between the award of attorney’s fees and costs in child support enforcement actions and in modification suits because of the potentially serious consequences that stem from an award of attorney’s fees as child support. Tex. Fam. Code A™. §§ 106.002(b), 157.167(a) (Vernon 2008); In re K.J.D., 299 S.W.3d at 518; Naguib, 183 S.W.3d at 547. The trial court has the discretion to render judgment for reasonable attorney’s fees in a suit affecting the parent-child relationship. In re K.J.D., 299 S.W.3d at 518; Naguib, 183 S.W.3d at 547. Therefore, the fees may be collected by any means available for the enforcement of a judgment for debt. In re K.J.D., 299 S.W.3d at 518; Naguib, 183 S.W.3d at 547. However, attorney’s fees awarded in a suit involving child support enforcement are not -viewed as debt and may be enforced by contempt; thus, they may be awarded as additional child support. In re K.J.D., 299 S.W.3d at 518; see also Naguib, 183 S.W.3d at 547.

In this case, the attorney’s fees were awarded on a motion to modify, not on a motion to enforce delinquent child support obligations. Therefore, “there is no basis in the facts or the law to characterize the award of attorney’s fees as ‘in the nature of child support.’” In re M.A.N.M., 231 S.W.3d at 566 (quoting Naguib, 183 S.W.3d at 548). Accordingly, we sustain Father’s fourth issue, modify the September 18, 2008 “Final Order in Suit Affecting the Parent-Child Relationship and Suit for Fraud” to delete the characterization of the $20,000 in attorney’s fees awarded to Mother as “in the nature of child support,” and render judgment that the attorney’s fees award be characterized as a judgment debt only.

As modified, we affirm the trial court’s judgment.

      . We recite only those facts necessary to address Father’s issues on appeal.

      . Father represents in his brief that Mother filed this pleading on December 1, 2004. However, the pleading is not in the clerk’s record.

      .This back child support was not at issue in the current modification proceeding.

      . The jury was statutorily precluded from considering Mother’s request for modification of Father’s child support obligation. See Tex. Fam.Code Ann. § 105.002(c)(2)(A) (Vernon Supp. 2009) (trial court may not submit to jury issues of support under chapter 154 of the family code).

      . We recognize section 156.401 of the family code was amended in both 2005 and 2007. See Act of May 27, 2007, 80th Leg., R.S., ch. 972, § 15, 2007 Tex. Gen. Laws 3390, 3394; Act of May 29, 2005, 79th Leg., R.S., ch. 916, § 19, 2005 Tex. Gen. Laws 3148, 3154. Because the relevant statutory language was not changed in either amendment, we cite to the current version of the statute for convenience.

      . Father's net monthly resources at the time of the modification in 1997 were $2116. Father admitted he did not present any evidence of his financial condition to the trial court at the September 25, 2002 hearing. In the order at issue in this appeal, the trial court found Father’s net monthly resources were $2106. Accordingly, Father’s net monthly resources have remained essentially unchanged since 1997.


author: Justice O’NEILL.

text:
    In re JHG, a child.
    No. 05-08-00875-CV.
    Court of Appeals of Texas, Dallas.
    May 25, 2010.
    J. Matthew Goeller, Plano, for Appellant.
    Malcolm Miranda, John R. Roach Sr., Collin County Dist. Attorneys, McKinney, for Appellee.
    Before Justices BRIDGES, O’NEILL, and FITZGERALD.
   OPINION ON REMAND

Opinion by

Justice O’NEILL.

On remand from the Supreme Court of Texas, we consider whether the evidence is legally and factually sufficient to support a jury’s determination that termination of parental rights is in JHG’s best interest. We affirm.

Background

On March 14, 2007, Mother went to an emergency room complaining of abdominal pain and vaginal bleeding. Doctors determined she was in labor. Mother, who was twenty years old, claimed she was unaware she was pregnant. Due to complications involving the position of the baby, Dr. Cesar Reyes performed a c-section and delivered baby boy JHG.

While recovering in the hospital, staff became concerned because of Mother’s lack of bonding and interaction with JHG. They were also concerned because Mother first stated she did not want JHG, then she said she wanted to give him up for adoption, and later said she wanted to keep him. Based on her actions and these statements, Dr. Reyes ordered a social services consult.

Child Protective Services (CPS) became involved in the case and ultimately took custody of JHG when he left the hospital and placed him in foster care. CPS created a service plan to assist Mother in regaining custody of JHG because its original goal was family reunification. Mother complied with the provisions of the service plan during the first few months, but her behavior changed around July of 2007. CPS’s goal then changed to termination of parental rights.

In June of 2008, a jury answered “yes” to Mother’s failure to comply with the provisions of a court order that established the actions necessary to obtain return of JHG and answered “yes” that termination of parental rights was in the child’s best interest. On appeal, Mother only challenges the sufficiency of the evidence to support the jury’s finding of termination based on best interest of the child. We will detail further relevant evidence below in our review.

Standard of Review

In reviewing the legal sufficiency of the evidence to support a termination finding, we look at all of the evidence in the light most favorable to the termination finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction about the truth of the matter on which the Department bears the burden of proof. In re J.L., 163 S.W.3d 79, 84-85 (Tex.2005); In re E.S.C., 287 S.W.3d 471, 474 (Tex.App.-Dallas 2009, pet. denied). We assume the factfinder resolved any disputed facts in favor of its finding, if a reasonable factfinder could so do, and disregard all evidence that a reasonable fact-finder could have disbelieved or found incredible. In re E.S.C., 287 S.W.3d at 474. We do not, however, disregard undisputed evidence that does not support the finding. Id.

In reviewing the factual sufficiency of the evidence, we must give “due consideration” to any evidence the factfinder could reasonably have found to be clear and convincing. Id. We must consider the disputed evidence and determine whether a reasonable factfinder could have resolved that evidence in favor of the finding. Id. If the disputed evidence is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

Applicable Law

Before parental rights can be involuntarily terminated, the factfinder must find by clear and convincing evidence that: (1) the parent has committed one of the enumerated statutory grounds, and (2) termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001 (Vernon 2008); InreE.S.C., 287 S.W.3d at 474; see Wilson v. State, 116 S.W.3d 923, 928 (Tex. App.-Dallas 2003, no pet.). Here, the fact-finder terminated Mother’s parental rights under section 161.001(l)(O) of the family code. Tex. Fam.Code Ann. § 161.001(l)(O) (Vernon Supp.2009) (“... failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child ... ”). However, Mother does not challenge this finding, but rather only challenges the jury’s finding that termination was in JHG’s best interest.

An extended number of factors have been considered by the courts in ascertaining the best interest of the child. Included among these are the following: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976). This list is by no means exhaustive, but does indicate a number of considerations that either have been or would appear to be pertinent. Id.

JHG’s Desire

JHG was too young to articulate his desires. However, Karen Nelson, a consultant for the Center for Psychological Development, conducted an attachment assessment of Mother and JHG. She testified JHG never treated Mother as if she was the person who was supposed to keep him safe. If he was startled by something or upset, he looked to the CASA volunteer for comfort. JHG showed no signs of attachment to Mother as a care giver and in fact showed “attachment distress,” meaning he sucked more intensely on his pacifier in Mother’s presence and engaged in looking away behaviors. Nelson said Mother tried to engage JHG, but was unsuccessful. Nelson also noted that when Mother picked up JHG, he kept his arms outreached rather then cuddling into her. She described their interaction as “more of a ritualized kind of interaction that had no emotion in it at all.”

Amy Harris, JHG’s foster mother, described him as very “cuddly” and said he usually made eye contact. However, he did not want anything to do with strangers. She also said when JHG saw the case worker at his day care, he got upset and did not want to leave with her.

Deborah Pendergrass, a CPS worker, also testified JHG did not interact with Mother during her visits, but acted “somber” and would “look away.” She noted he would cry when picked up for visits. Thus, JHG’s behaviors indicate return to Mother would not be in his best interest.

Emotional and Physical Needs of JHG Now and in the Future

The evidence shows Mother is incapable of taking care of JHG’s emotional and physical needs now and in the future. From the very beginning, hospital staff was concerned about Mother’s interest in her son. After his birth, she first said she did not want to keep JHG, then she said she wanted to keep him but family and friends would help her. In addition to these inconsistent statements, she waited three days to name the child.

The few times she visited JHG in the nursery, she was expressionless and made no eye contact. Diana Flores, a labor and delivery scrub technician, and Angela Kat-terman, the nurse on duty when Mother visited the nursery, both testified they had never seen a mother act in that manner. There was no interaction between them, and she looked everywhere around the room except at JHG. Katterman admitted Mother was not hurting JHG in any way, but she certainly was not providing for his emotional needs. Lynn Demaria, a staff nurse for twenty years, also noted Mother’s visits were brief, she made no eye contact, and did not appear to be bonding with JHG.

Mother testified she did not remember telling anyone that she did not want JHG. She said she was medicated during her conversations and although she understood the nurses “more or less,” she asked her cousin to translate for her. She also testified she wanted to hold JHG longer in the hospital, but it hurt her arms because they were swollen from IVs. She further said she repeatedly asked to see JHG but no one would take her.

When JHG was discharged from the hospital, he went into CPS custody and CPS quickly placed with a foster family. CPS then created a service plan for Mother to regain custody, and she appeared to be making some improvements. She attended counseling and parenting classes. She visited JHG twice a week for an hour and brought appropriate gifts to him. However, during some of the visits she still appeared emotionally detached. Ray Frausto, a special investigator with CPS, observed two visits between Mother and JHG a few months apart and he reported seeing no change in bonding. Mother had the same flat affect on her face and did not interact much with JHG.

The psychologist who evaluated Mother had difficulty getting her to answer questions. In fact, by the end of his session, he stated he had more questions regarding Mother’s abilities than answers and recommended parenting classes and individual therapy before CPS should consider returning him to her custody. He also noted Mother never used JHG’s name during their session.

Mother lived in three different places during the investigation, which showed instability. She failed to notify CPS of these moves. She also had a pattern of getting involved with men for short periods of time. At the time of trial, she had been in a relationship with the same man for six months, which showed some stability. However, Felipe was married and estranged from his current wife and had children of his own. In fact, evidence showed what little improvement Mother had made in bonding with JHG declined in July, which was near the time she got involved with Felipe. This seemed to indicate her relationship with him was more important than her relationship with JHG.

In July 2007, Mother was not talking to JHG as much and generally seemed disengaged. She also started asking again how to make bottles, despite having done it for the previous months.

In January 2008, Mother requested to change visits from two times a week for an hour to once a week for two hours. She also asked if the location of the visits could be changed because she was having transportation issues. However, when CPS accommodated her request, Mother began cancelling visits. From January to May, she cancelled nine visits despite being within a mile of the meeting location. We acknowledge Mother only missed twelve out of sixty-five visits; however, the last nine were in the months leading up to trial and when the location was moved to accommodate her. This indicates Mother was not making every effort to show return of JHG to her was in his best interest.

In February, CPS made an unannounced visit to Mother’s home. She had not baby-proofed the home, and there was nothing in the home for JHG except for a stroller with a carrier that was in the back of a closet. When CPS visited again in May, there was a crib and some other baby essentials.

During visits, Deborah Pendergrass testified she observed Mother engaging in “parallel play,” which means she and JHG were in the same room playing, but not really playing with each other. She recognized that Mother said she wanted JHG back; however, she testified her behavior said she really did not want him. Her “behaviors are speaking louder than her words.” She was worried that Mother was not incorporating the lessons she learned from her parenting classes. Mother did not seem to be able to anticipate his needs. For example, one time it was clear JHG wanted to play with a truck and was trying to get to it, but Mother kept pulling it away. Mother testified she knew he wanted it, but she thought it was too big for him and did not want him to get hurt. Pendergrass viewed her actions differently-

Nelson observed a time when Mother kept feeding JHG when he clearly was no longer interested in eating. She testified Mother did not know how to respond to his cues.

Mother also showed an unwillingness to support JHG financially. She stopped paying child support in December 2007, claiming her work hours had been cut. Her paychecks, however, showed she was still working over forty-hours a week. Further, she testified Felipe was willing to help her financially, but when he gave her money, she used it to buy clothes and a television rather than paying child support.

Mother did not have a good support system to help her. Her family lived in Mexico, and she no longer spoke with her cousin who lived nearby. She also did not have any close friends to help her.

Despite making progress in her attempts to provide for JHG’s emotional and physical needs during the first few months of working on her services, Mother’s behaviors changed after six months and never improved. Thus, the evidence shows she was incapable of adequately providing for JHG’s emotional and physical needs now and in the future.

Emotional and Physical Danger to JHG Now and in the Future

Although nothing in the record indicates return of JHG to Mother would result in any physical danger, there was testimony that a lack of parental bonding was indicative of future neglect. The evidence, as discussed above, indicates more of an emotional danger for JHG if returned to Mother. She had difficulty interacting with JHG and forming any kind of emotional bond.

A strong emotional bond between parent and child is necessary because it forms the basis of other relationships in the child’s life. Karen Nelson testified JHG suffered from “attachment distress.” She specifically said, “When you don’t move in the direction of security and the pathway continues to be one that has distress, that in some sense emotionally contaminates everything else that is going on for the child over the course of the next several years of life.” She recommended JHG’s visits with Mother stop entirely, which is a “very rare” step for her to take. She only made such recommendations when she felt it was a disadvantage to the child to continue them. Thus, this factor favors termination was in JHG’s best interest.

Parental Abilities of Individuals Seeking Custody

Charles and Amy Harris were JHG’s foster family and took custody of him when he was five days old. She is a teacher and he is a worship pastor at a local church. They have two daughters and have been foster parents willing to adopt for several years. In fact, they adopted a two-year-old son who they first took in under foster care. From the beginning, they were willing to adopt JHG. They both testified their children doted on JHG and he returned their affection. Their previous experiences with raising three children would help them raise JHG.

They recognized the importance of teaching JHG about his Hispanic heritage and sought age appropriate toys in both English and Spanish. Charles grew up in a South Texas town with a sixty percent Hispanic population, and he had an interest in learning more Spanish.

Zulma Santiago, JHG’s guardian ad li-tem through CASA, visited JHG approximately six times while in foster care. She testified he was in a safe and stable environment with the foster family. She further said she believed it was in JHG’s best interest to terminate. Thus, the Harris family provided evidence they could provide JHG with a stable and loving home.

Mother, on the other hand, was not consistent in her parenting abilities. She had to ask how to make bottles and did not interact appropriately, as discussed above. She did not have any family to help her and depended on receiving help from a man estranged from his wife, who had his own children to take care of. Based on this evidence, the jury could determine termination was in JHG’s best interest.

Programs Available to Promote the Best Interest of JHG

Mother participated in some services through CPS. She attended counseling sessions with Maria Parides; however, she did not finish them. She completed her psychological assessment and parenting classes. CPS had concerns though that Mother was not incorporating what she learned in her parenting classes into her care for JHG. She seemed to be going through the motions and as Deborah Pen-dergrass stated, the service plan is not a chore list but rather provides tools for the parent to use. After her psychological assessment, Bret Baldwin stated major improvements were needed before returning the child. Although she first appeared to make improvements, her attention and interest in JHG seemed to change about the time she became involved with Felipe.

Thus, although CPS provided programs to assist Mother in her care and interaction with JHG, she did not take full advantage of them nor show that she would use them to care for JHG.

Plans for JHG

Mother was repeatedly asked about her plans for JHG but gave little more detail than a vague desire to raise him and teach him her native language. She said she planned to leave JHG with the woman who takes care of Felipe’s children, but she did not know if she was a licensed day care provider or if she was even willing to take care of an additional child. Mother claimed she could support JHG despite not paying child support for the previous six months. She also said she could find a better paying job, but admitted she had not had any luck in finding one.

JHG’s foster family was a licensed foster to adopt home and interested in adopting him. JHG attended a day care near their home, and they had the ability to stay home with him if he was sick. They also testified they were interested in teaching JHG about his heritage and made an effort to buy bilingual toys. His foster father also stated the family was interested in learning Spanish. Thus, the jury could consider this evidence and conclude the Harris family had a more defined plan for JHG’s future than Mother.

Stability of Proposed Placement

Throughout the trial, the jury heard evidence that Mother would likely fail to provide a stable environment for JHG. She seemed to quickly form relationships with individuals she did not know well and just as quickly discard them. She knew JHG’s father for approximately a month before she got pregnant, but the relationship did not last. In fact, the father never even knew she was pregnant. Her only family in the country was a cousin, who she no longer spoke to. At one point during her services, she moved in with a woman that she had known for about two weeks and failed to tell CPS of the move. She moved out approximately two months later and was not speaking to the woman at the time of trial. After she started dating Felipe, she moved in with him after a month. Although the relationship appeared more stable and had lasted longer than her previous relationships, the jury could still conclude her relationship with Felipe would be just as fleeting as her previous relationships. Further, they could consider the fact that Felipe was still married and in a custody dispute over his own children. These facts weigh against Mother providing a stable home for JHG.

By contrast, the Harris family provided stability for JHG. They had been married for thirteen years and had two natural children and one adopted child. They had stable jobs and already had child care for JHG while they worked. When JHG had recurring ear infections, they made sure he received proper medical care and took care of him when he needed tubes put into his ears. They also took him to a motor therapist for some developmental difficulties. Thus, the evidence showed the Harris family could and was willing to provide a stable environment for JHG. Further, JHG was bonded and thriving under their care.

Acts or Omission of Parent Indicating Existing Parent-Child Relationship is Improper

We have detailed above that Mother often did not know how to interact appropriately with JHG. She had a flat affect and did not seem excited to see him when she arrived for her visits and showed no emotion when she left. Although she tried to play with him, it was described as “parallel play,” meaning they were not really playing together. After several months, she had to ask again how to prepare bottles. Witnesses testified she simply did not know how to anticipate his needs. These acts and omissions weigh in favor of termination.

Any Excuse for Acts or Omissions by Mother

Mother’s main excuse for her difficulties was her language barrier. However, she was provided numerous interpreters and Spanish speakers to help her understand the process while she worked on her service plan. Witnesses that interacted with Mother testified it never appeared she had difficulty understanding them. The record also shows Mother answered at least one question during trial before the translator translated it for her.

She also complained she had difficulties attending the scheduled visits because of transportation. However, CPS worked with Mother to reschedule visits to accommodate her schedule and assigned a volunteer to help transport her to appointments. CPS also changed the location of visits to within one mile of her home. However, Mother missed the majority of visits when they were closer to her.

She further complained that people misunderstood her because she was serious. She said someone may have made up that she said she did not want JHG “because of the way I am.” When asked if she thought people made up things about serious people, she said yes. The jury could however interpret Mother’s answers as evidence of her unwillingness to take responsibility for her behavior.

Case Law Relied on by Mother

Mother relies on two cases to argue termination is not in JHG’s best interest. In In re S.A.P., the Waco Court of Appeals, with a strong dissenting opinion from Chief Justice Gray, held evidence was legally and factually insufficient to support termination was in the child’s best interest despite the following: (1) Father had a diagnosed narcissistic disorder; (2) He had difficulty putting his children’s needs first; (3) He believed all his problems stemmed from TDPRS rather than his actions; and (4) He was working full time but had recently been fired from three jobs. They weighed this evidence against the following: (1) Father had no problems with drugs; (2) He participated in all his services required by CPS even though he was sometimes inconsistent; (3) He loved and interacted appropriately with his child on visits; (4) His conduct during visits was positive; and (5) He provided a stable home. In re S.A.P., 169 S.W.3d 685, 710-11 (Tex.App.-Waeo 2005, no pet.).

Despite some factual similarities between the present facts and In re S.A.P., we conclude the case is distinguishable. Here, several people who observed Mother’s interactions during her visits testified she did not interact, play, or anticipate JHG’s needs. She failed to complete her counseling sessions and cancelled many of her final visits. Her past actions of living with people she knew for only a short time and moving frequently showed she was unable to provide a stable home for JHG. Thus, we are not persuaded by Mother’s reliance on In re S.AP.

She also relies on In re W.C. to support her argument that her actions are not nearly as egregious as appellant in that case, in which the court reversed a finding that termination was in the child’s best interest. In re W.C., 98 S.W.3d 753, 756 (Tex.App.-Fort Worth 2003, no pet.). While we agree that appellant’s past behavior in In re W.C. was more problematic, the court reasoned that reversal was necessary because appellant had done everything CPS had requested of her and had made great improvements in her life. Id. at 762. She had the support of her mother and aunt to help her with the children, and numerous witnesses testified that after observing her visits with the children, it was clear that she was bonded to them and they returned the affection. Id. In fact, they “flocked to her” when she arrived and then screamed and had to be drug away from her when it was time to leave. Id. Further, there was evidence that CPS had told appellant she was getting her children back and to make preparations. Id. at 766. There was no significant event between this statement and when CPS sought termination.

Here, the evidence showed Mother and JHG were not bonded. She had no family or support system to help her. And although she did comply with most of her service plan and made improvements at the beginning, she regressed after six months into her services and no longer made improvements. Further, although CPS’s original goal was reunification, the plan later changed to termination. Thus, unlike In re W.C., CPS never specifically told Mother she would get JHG back. As such, we are not persuaded by Mother’s reliance on this case.

We find In re J.M. to be more persuasive. In re J.M., 156 S.W.3d 696 (Tex.App.-Dallas 2005, no pet.). In that case, the court held evidence was sufficient to support the jury’s finding that termination was in the best interest of the child when the father did not have a good support system, had not made significant improvements during his services, and had difficulty with basic parenting tasks like changing a diaper or understanding the importance of the expiration date on baby food jars. Id. at 707. The foster family involved was willing to adopt the child and proved their parenting ability by raising their own children. Their home was also stable. Id. at 708.

These facts are similar to Mother’s situation. As repeatedly noted, Mother did not have any support system and she did not consistently improve during her services but rather regressed. She had to be reminded on occasion how to make bottles. And similar to In re J.M., the Harris family is a stable, foster family willing to adopt JHG. Despite Mother’s assertion in her brief that she “tenaciously fought for her son” for fifteen months, the record shows otherwise.

Conclusion

After reviewing the evidence under the Holley factors and applying the appropriate standards of review, we conclude the jury could find by clear and convincing evidence that termination of Mother’s parental rights was in the best interest of JHG. Thus, the evidence is legally and factually sufficient. We overrule Mother’s two issues and affirm the trial court’s judgment.

      . In our original opinion, we concluded the trial court erred by not dismissing the proceeding on the dismissal date. See In re J.H.G., 290 S.W.3d 400 (Tex.App.-Dallas 2009, pet. granted). The Supreme Court of Texas disagreed and reversed our decision with instructions on remand to consider appellant’s remaining issues because Mother failed to include in her statement of points for appeal that the trial court unlawfully extended the statutory deadline for dismissing the case. See In re J.H.G., 302 S.W.3d 304 (Tex.2010).

      . Mother originally denied any romantic relationship with Felipe, but she eventually admitted it.

      . The mother in In re W.C. continually allowed her children to remain in an environment where they experienced both physical and sexual abuse at the hands of their father. 98 S.W.3d at 756, 758-59. Even after the father was arrested for abuse and spent time in prison, the mother allowed him to return home upon his release. Id. at 758. Once CPS intervened, the mother eliminated her involvement with him. Id. at 764.


author: JAMES T. CAMPBELL, Justice.

text:
    Ryan Lance HUTTON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 07-09-00119-CR, 07-09-00120-CR.
    Court of Appeals of Texas, Amarillo, Panel E.
    May 25, 2010.

      Candace Norris, Amarillo, for appellant.
    Kristy Wright, Assistant Criminal District Attorney, for appellee.
    Before CAMPBELL and PIRTLE and BOYD, S.J.

      . John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

   OPINION

JAMES T. CAMPBELL, Justice.

Appellant Ryan Lance Hutton appeals from his convictions for the offenses of stalking and the resulting concurrent sentences of imprisonment for twenty years in the Institutional Division of the Texas Department of Criminal Justice. Via three issues, appellant contends a defect in the information affected his substantial rights and the evidence presented at trial was legally and factually insufficient to support his conviction. We will modify the judgments and as modified, affirm.

Background

In September 2008, appellant was charged by indictment with stalking two individuals on May 8 of that year. Appellant moved to quash the indictment, arguing the stalking statute makes it an offense to stalk a single victim on more than one occasion, not one victim on one occasion and another victim on another occasion as the indictment alleged. After a hearing, the court sustained that motion. Thereafter, the State filed separate felony complaints and informations alleging appellant stalked each victim on more than one occasion. By joint motion of the parties, all of the pleadings filed in the original cause were transferred to the two newly-filed causes.

In February 2009, a bench trial was held on the two newly-filed causes. At trial, each of the victims testified about the events that led to the stalking allegations against appellant. The first victim testified that about daybreak on the morning of May 8, 2008, she went running alone on a one-mile stretch of 45th Street in Amarillo. She testified that during a span of several minutes, a man driving a Honda followed her. She said he more than once turned off of 45th Street into adjacent neighborhoods, but returned to follow her. Frightened after the Honda made a u-turn in the street behind her, she concentrated on the vehicle’s license plate number and eventually ran to a convenience store. She gave the clerk a license plate number that later was traced to appellant and his four-door 1994 Honda. The victim identified appellant in a photo lineup as the person who followed her.

The second victim, a ten-year-old girl, also testified at trial. She testified that on the afternoon of May 8, she walked home from a nearby park and was followed by a man driving a car she thought was a blue Honda. After following her for something over a block, the man passed her, going out of her sight. Shortly after, the girl saw the car driving down her street. When she reached her house, the car was there and the driver asked her through the open car window if she would help him find his dog. After he asked the girl for help a second time, the man drove away when an adult opened the front door of the house. The adult called out to a neighbor who was backing out of his drive-way, asking that he follow the car. The girl testified she was nervous that the driver of the Honda was going to abduct her or hurt her when she realized the car was following her. The girl picked two photographs out of a police photo lineup, one of which was appellant’s. The neighbor, who followed the car, saw the driver when the car made a u-turn and obtained the car’s license plate number, also identified appellant in a photo lineup.

Appellant testified on his own behalf at trial, stating he did not stalk either individual and had never seen them before trial. He also provided an alibi, telling the court he believed he loaned his car to a friend that day and stayed at his girlfriend’s house. Appellant’s girlfriend testified appellant was with her on May 8. Appellant’s friend testified he did not see appellant that day and had never borrowed appellant’s car.

The trial court found appellant guilty of each offense and sentenced him to imprisonment for a term of twenty years for each cause, to be served concurrently. This appeal followed.

Defective Information

Our state’s stalking statute, Penal Code section 42.072, provides:

(a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct, including following the other person, that:
(1) the actor knows or reasonably believes the other person will regard as threatening:
(A) bodily injury or death for the other person;
(B) bodily injury or death for a member of the other person’s family or household; or
(C) that an offense will be committed against the other person’s property;
(2) causes the other person or a member of the other person’s family or household to be placed in fear of bodily injury or death or fear that an offense will be committed against the other person’s property; and
(3) would cause a reasonable person to fear:
(A) bodily injury or death for himself or herself;
(B) bodily injury or death for a member of the person’s family or household; or
(C) that an offense will be committed against the person’s property.

Tex. Penal Code Ann. § 42.072 (Vernon 2003). All three of appellant’s issues on appeal focus on the statute’s phrase “on more than one occasion.”

In appellant’s first issue, he points out the language “on more than one occasion” was absent from the informations, and argues its absence affected his substantial rights. The State argues this issue is not preserved for our review, and we agree.

Appellant did not object to the asserted defect in the informations prior to trial. A defendant forfeits the right to object to a defect of form or substance in an information if he does not object before the date trial commences. Tex.Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); State v. Murk, 815 S.W.2d 556, 558 (Tex.Crim.App.1991). Accord Clements v. State, 19 S.W.3d 442 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (finding similar contention waived for same reason). The information charging appellant with stalking the runner each contained a paragraph alleging appellant followed her on May 8, and a paragraph by which it was again “further present[ed]” that on May 8, he followed the runner. The information charging appellant with stalking the ten-year-old similarly contained two paragraphs, each alleging he followed the victim on May 8. Nonetheless, as noted, appellant contends on appeal the informations were deficient because they did not contain language alleging he followed the victims in violation of the statute on more than one occasion. Appellant filed a motion taking exception to the substance of the informations, but neither the motion nor appellant’s argument to the trial court concerning it complained of omission of the phrase “on more than one occasion.” See Sorto v. State, 173 S.W.3d 469, 476 (Tex.Crim.App.2005) (stating that when the grounds urged at trial do not comport with those urged on appeal, the latter have not been preserved for review); Lusk v. State, 82 S.W.3d 57, 60 (Tex.App.-Amarillo 2002, pet. ref'd) (noting same). Nothing is preserved for our review on the issue presented on appeal. We overrule appellant’s first issue. Legal and Factual Sufficiency

In appellant’s second and third issues, he contends the evidence presented at trial was legally and factually insufficient to show he stalked the victims on more than one occasion. Instead, he argues, the evidence shows he encountered each victim only on one occasion, on May 8. The State argues the record supports appellant’s convictions because each time appellant drove out of sight and then returned to follow the victims on that day constituted a separate occasion as required by the statute.

In reviewing issues of legal sufficiency, an appellate court views the evidence in the light most favorable to the verdict to determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found each element of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). If, given all of the evidence, a rational jury would necessarily entertain a reasonable doubt of the defendant’s guilt, due process requires that we reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95, citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), cert, denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993).

Reviewing its factual sufficiency, we consider the evidence in a neutral light, favoring neither the State nor the defendant. Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App.2008). A factual sufficiency review considers whether the evidence supporting guilt, though legally sufficient, is so weak the finding seems clearly wrong and manifestly unjust, or evidence contrary to the finding is such that it is against the great weight and preponderance of the evidence. Grotti, 273 S.W.3d at 283; Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App.2006).

The first victim, the runner, testified that about 6:40 a.m., during her run, she noticed a vehicle, a Honda, pull into a bank parking lot on 45th Street. She testified that as she “got parallel with the vehicle the vehicle started moving with me as I was running.” The Honda then drove past the runner and turned south into the adjacent residential neighborhood. The runner lost sight of the vehicle for a short time. The Honda emerged from the neighborhood and drove very slowly by the runner. The Honda then turned north into the residential neighborhood to the north of 45th Street, causing the runner to lose sight of the Honda again. Each time the appellant would disappear from sight, the runner “believed that the stalking was over” and “then he would reappear.” Shortly thereafter, the Honda passed the runner from behind and the driver looked at her as he drove by. The Honda turned into the first neighborhood again and the runner lost sight of the Honda a third time. The Honda came out of the neighborhood ahead of the runner, and turned in her direction. After driving past her, the Honda made a u-turn on 45th Street. The runner testified that by that time, she was fearful for her life and began to concentrate on memorizing the Honda’s license plate number. The Honda turned back into the neighborhood but quickly came back out. The runner began sprinting toward a convenience store. The next time the runner saw the Honda, it was sitting in the parking lot of a church on the south side of 45th Street. She “just ran as fast as I could and he started coming out of that parking lot, like speeding up and, you know, just almost, you know trying to scare me. You know, just scaring me. And I ran as fast as I could past it and ... I ran into the [convenience store] parking lot.” As she ran into the store, the runner told the clerk someone was following her and to write down the license plate number she had memorized. The Honda drove past the front doors of the convenience store, very slowly. The runner testified she saw the driver of the Honda was sitting very low in the seat of the car with the windows halfway down. She was able to see the driver from his mouth up to the top of his head.

The ten-year-old victim testified that on May 8, she was at an Amarillo park playing ball with friends, some four blocks from her home. While walking home, she noticed a car she thought was a blue Honda. She saw that the driver was leaning “pretty far” back in the seat. The car followed the girl for a while and then passed her, going out of her sight. She continued walking for another one to two blocks and turned onto her street. When she reached her house, the car [approached the girl] and the driver asked, through the car window, if she would help him find his dog. After the driver asked the girl for help a second time, an adult opened the front door of the house and asked who she was talking to. The driver drove away. The girl testified she got nervous that the driver of the Honda was going to abduct her or hurt her when she realized the car was following her. Both the girl and a neighbor later identified appellant in a photographic lineup as the person they saw that day.

To constitute the offense of stalking, our statute requires proof the defendant engaged in conduct “on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person....” Tex. Penal Code Ann. § 42.072 (Vernon 2003). Guilt thus requires the finder of fact to find instances of prohibited conduct that are sufficiently related to be “pursuant to the same scheme or course of conduct,” but sufficiently discrete to constitute “more than one occasion.” The statute does not define either phrase.

Words in a statute are to be read in context and construed according to the rules of grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005); Tex. Penal Code Ann. § 1.05(b) (Vernon 2003); Ex parte Anderson, 902 S.W.2d 695, 699 (Tex.App.-Austin 1995, pet. ref d). Undefined words in a statute are ordinarily given their plain meaning unless the statute shows that they were used in some other sense. Daniels v. State, 754 S.W.2d 214, 219 (Tex.Crim.App.1988); State v. Wofford, 34 S.W.3d 671, 680 (Tex.App.-Austin 2000, no pet.). In construing the plain meaning of the language of a statute, courts may consult dictionary definitions. See Hansen v. State, 224 S.W.3d 325, 329 (Tex.App.-Houston [1st Dist.] 2006, pet. ref d) (making use of dictionary definition of term in stalking statute); see generally Bingham v. State, 913 S.W.2d 208, 209-10 (Tex.Crim.App.1995).

Arguing the evidence shows he followed each of the victims on May 8 on only one occasion, appellant points to cases in which Texas courts have applied our stalking statute. See Sawyer v. State, No. 12-07-00077-CR, 2008 Tex.App. LEXIS 1975, 2008 WL 726369 (Tex.App.-Tyler, 2007, pet.dism’d); Hansen, 224 S.W.3d 325. Here, the events involving the runner that the State contends show appellant followed her on more than one occasion took place within minutes of each other, and along a stretch of street less than a mile in length. The elapsed time between the events involving the ten-year-old is less clear from the record but they similarly occurred within a relatively short span of time and within two residential blocks. Appellant is correct that Sawyer and Hansen involve stalking incidents occurring on different days, sometimes months apart, and at different locations. Sawyer, at *1-2, 2008 Tex.App. LEXIS 1975 at *2-4; Hansen, 224 S.W.3d at 327. But neither opinion addresses the issue presented here, and we cannot agree they place boundaries on the usage of the word “occasion.”

Considering the plain meaning and common usage of the word “occasion,” we find guidance in the dictionary entry defining the word as “a time at which something happens: instance.” Merriam-Webster’s Collegiate Dictionary 857-58 (11th ed.). The entry contains the synonyms “happening” and “incident.” Id.

We see nothing in the plain meaning or common usage of the term “occasion” to require the elapse of a particular or minimum interval of time for events to occur on “more than one occasion.” A fact finder could determine that all of appellant’s conduct directed toward the runner on May 8 occurred on one occasion, and that his conduct on that day thus does not meet the terms of the stalking statute. But viewing the evidence in the light most favorable to the court’s con-elusion, we think a finder of fact rationally also could see the sequence of events as including more than one occasion of following. Specifically, we think the trial court rationally could have viewed the runner’s testimony appellant made a u-turn and followed her as she ran in fear down the middle of the street spoke of one instance and her testimony that she next saw appellant’s car in the church parking lot after which he drove behind her as she sprinted to the convenience store, as another instance. That appellant was out of the woman’s sight for only a short time as she ran, likely under a minute, is not determinative. The evidence is legally sufficient to support appellant’s conviction.

Nor can we agree that the evidence supporting a conclusion appellant followed the runner on more than one occasion, viewed in the neutral light appropriate to a factual sufficiency review, is so weak that the conclusion seems clearly wrong and manifestly unjust, or that contrary evidence is such as to make the conclusion against the great weight and preponderance of the evidence. Accordingly, we find the evidence factually sufficient to support appellant’s conviction.

Applying the same analysis, the court rationally could have found appellant’s conduct on the afternoon of the same day, involving the ten-year-old, also contravened the stalking statute. The girl’s testimony spoke of her encounter with appellant during her walk home. He followed her in a way that caused her fear, then left her sight. Then, after she had walked a further distance and reached her house, she there encountered appellant a second time. A rational fact finder, viewing the evidence in the light most favorable to that conclusion, could have determined the second encounter, although occurring within two blocks and within a few minutes of the first, constituted a second occasion of following prohibited by the statute. See Hansen, 224 S.W.3d at 829. And we find the evidence supporting that conclusion, viewed in a neutral light, is neither so weak nor so contravened by contrary evidence as to be clearly wrong and manifestly unjust, or against the great weight and preponderance of the evidence. The evidence is both legally and factually sufficient to support appellant’s conviction. We overrule appellant’s second and third issues.

Reformation of Judgments

In our review of the record, it came to our attention that each of the judgments includes a clerical error. Page one of each judgment indicates appellant plead “guilty” to the offense. The reporter’s record indicates appellant plead “not guilty” to each offense.

This court has the power to modify the judgment of the court below to make the record speak the truth when we have the necessary information to do so. Tex.R.App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App.1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). “The authority of an appellate court to reform an incorrect judgment is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court.” Asberry, 813 S.W.2d at 529-30.

Because the record unambiguously indicates appellant plead “not guilty” to each offense, we modify each judgment to correct the error. As modified, we affirm the judgments of the trial court.

      . See Tex. Penal Code Ann. § 42.072 (Vernon 2003). Appellant plead true to the enhancement paragraph set forth in each information, enhancing his maximum potential imprisonment from 10 years to 20 years. See Tex. Penal Code Ann. §§ 12.32, 12.33 (Vernon 2003).

      . The victim testified she was running "about an 8-minute mile” pace. During cross-examination, the victim agreed appellant followed her for approximately six minutes.

      .The victim also identified the photograph of another individual as the person who followed her that day. Appellant does not challenge the evidence identifying him as the stalker, so we do not address it further.

      . Article 1.14(b) provides that "[i]f the defendant does not object to a defect, error or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other post conviction proceeding.” Tex.Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005).

      . The license number she gave the clerk was the same number the ten-year-old victim’s neighbor gave police that afternoon.

      . The trial judge also heard from two other witnesses who testified to similar encounters in May 2008. One witness testified a young man in a bluish-gray, four-door Honda Accord repeatedly followed her while she was walking her dogs on May 11. The driver drove past her, pulled onto an adjacent street out of her sight, and returned to drive by her again and stare. This occurred about eight times and caused the witness to be concerned for her safety. The witness identified appellant in a photo lineup. The second witness, an eleven-year-old girl, testified to her repeated and fear-inducing encounters with a man driving a small blue car as she was riding her bike to a friends house on May 17. The driver once spoke to her through the car’s passenger-side window. After fleeing down an alley only to encounter the car again at the end of the block, she ran into her friend’s fenced back yard. Her friend's mother testified the girl was shaking and crying. The girl later picked appellants photograph out of a photo lineup.

      . See State v. Russell, 101 Conn.App. 298, 922 A.2d 191, 205 (2007) (applying stalking statute requiring proof defendant "repeatedly” followed victim and noting statute “contains no explicit limitations as to the temporal interval between acts”); State v. Cummings, 46 Conn.App. 661, 701 A.2d 663, 672 (1997) (rejecting challenge to jury instruction, applying term "repeatedly,” stating- that state's stalking statute "does not attempt to place the boundaries of time or space around a prescribed repetitive conduct” and informing jury that was their function as finders of fact).