author: WOMACK, J.,

text:
    Barbara HOLZ, Appellant, v. The STATE of Texas.
    No. PD-1786-09.
    Court of Criminal Appeals of Texas.
    Sept. 22, 2010.

      James P. Finstrom, Jefferson, for Appellant.
    Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   WOMACK, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

We granted discretionary review in this case to determine whether a non-expert property owner’s testimony about the cost of repairing or restoring his damaged property can ever be sufficient without further evidence to prove the pecuniary-loss element of a criminal mischief offense. We hold that such evidence can be sufficient. We therefore reverse the judgment of the Sixth Court of Appeals and remand the case to that Court to consider the sufficiency of the owner’s testimony in this case.

I. Background

A person commits the offense of criminal mischief when she intentionally or knowingly damages or destroys tangible property without the effective consent of the owner. The amount of pecuniary loss suffered by the owner determines the degree of the offense. If the property is damaged (as opposed to destroyed) the amount of pecuniary loss is determined by “the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred.”

In the present case, the indictment alleged that the appellant “did ... intentionally and knowingly damage or destroy tangible property, to-wit: a mobile home, by allowing dogs to remain in said mobile home, without the effective consent of John Lawrence, the owner of said property, causing pecuniary loss of $1500 or more but less than $20,000 to said owner.” At trial, the State elected to proceed on the theory that appellant had damaged, rather than destroyed, the mobile home.

Shawn Cox, an investigator for the Marion County Sheriffs Office, and Christopher West, an investigator for the Society for the Prevention of Cruelty to Animals, provided evidence of the damage to the mobile home. Cox testified that “when you go into the house there’s feces on the carpet, you can smell the feces and the urine. It wasn’t pleasant, but it wasn’t a health hazard either. West testified that there was one dog in the mobile home along with five to ten piles of feces and an odor of urine and feces. In the house across the street where the appellant lived with her 86 other dogs, West’s ammonia meter “maxed out” at 99 parts per million. West gave the opinion that his ammonia meter probably would have registered only one part per million if he had taken a measurement in the mobile home.

West was unable, however, to provide an opinion on the cost of repairs or restoration:

[Defense Counsel]: And from looking at the mobile home ... what would you have had to do to clean it up in your opinion if you were going to clean it up after you took that dog out?
[West]: ... I couldn’t tell you other than obviously picking up the obvious feces inside the home, cleaning it. If the urine had soaked through the carpet into the floor, then all the floor would either have to be sealed or ripped up I would assume.
[Defense Counsel]: How much feces was on the floor as you recall?
[West]: I remember five to ten piles approximately.
[Defense Counsel]: Do you recall how big the carpeted area was roughly?
[West]: I’m going to estimate a hundred square feet, ten foot by ten foot, possibly a little larger. I don’t remember.
[Defense Counsel]: Other than the smell of urine and the feces in the carpeted area did you see any damage to that structure?
[West]: No sir, I don’t remember any damage.

John Lawrence, the owner of the mobile home, testified about the damage to the mobile home and the cost of repair. Inside the mobile home there was “a strong ammonia smell and also feces in the living room.” At the request of the State prosecutor, Lawrence obtained an estimate to replace all of the carpet in the mobile home:

[State]: And did I ask you to see about how much it would cost or what kind of estimate you would get to replace that carpet and not even getting into extracting perhaps flooring, particle board flooring, or the boards around or the walls for damage, did you look into that?
[Lawrence]: Yes, I had called Holloway Carpet in Marshall and just told them it was a 12-by-65 mobile home to keep them from driving up there because most of them are about the same size as far as rooms. I told them it was two bedroom and living room that need to be replaced.
[State]: And what kind of estimate did you get?
[Lawrence]: $2,100.
[State]: And is all that carpet essentially ruined?
[Lawrence]: Yes.

Lawrence conceded, however, that he did not attempt to ascertain the cost or feasibility of cleaning the carpet rather than replacing it:

[Defense Counsel]: Did you ever try to clean the carpet or look at it with reference to cleaning it to see what it would take to clean it?
[Lawrence]: Since this happened [or before]?
[Defense Counsel]: Since this happened.
[Lawrence]: ... No.

Furthermore, Lawrence testified that certain portions of the carpet in the hallway of the mobile home had been previously damaged by a water leak.

The appellant’s testimony suggested that the cost of replacing the soiled carpet in the mobile home would be less than $180. The appellant testified that the installed cost of carpet for a mobile home would be between $10 and $15 per square yard. The only area in the mobile home that was soiled was the living room, and that area would require only twelve square yards of carpet.

The jury charge instructed the jury that if it found the appellant guilty of criminal mischief, but found that the pecuniary loss was less than $1,500 and greater than $500, it should find the appellant guilty only of the lesser-included offense of Class A misdemeanor criminal mischief. The jury found the appellant guilty of that lesser-included offense.

II. Appeal

Among other points of error on appeal, the appellant challenged the sufficiency of the evidence to prove pecuniary loss of at least $500. The Court of Appeals found that Lawrence was the State’s sole source of evidence regarding the amount of pecuniary loss, and Lawrence’s only evidence of the amount of pecuniary loss was the $2,100 estimate he received from Holloway Carpet. The Court cited English v. State for the proposition that “Texas law is clear that unless a complainant is an expert, ‘an estimate of damage or an opinion on the amount of damage without further evidence is insufficient to prove the cost of repair.’ ” The Court also cited Elomary v. State and Sebree v. State for the following proposition: “ ‘Off-the-wall,’ opinion testimony, or a mere estimate of cost of repair, ‘without further evidence,’ is not sufficient to prove the cost of repairs for a criminal mischief conviction.” Because no further evidence on cost of repair was presented beyond Lawrence’s testimony, the Court held this evidence to be insufficient to establish pecuniary loss exceeding $500, and rendered a judgment of acquittal.

III. Petition for Discretionary Review

We granted discretionary review of the following grounds presented in the State’s petition:

(1) Is an owner’s opinion of the cost of repair sufficient to prove the amount of pecuniary loss in a prosecution for criminal mischief by damage to property?
(2) Is the legitimacy of a property owner’s opinion of the cost of repair to his property, in order to prove pecuniary loss, an issue of admissibility of evidence or one of sufficiency of evidence, and regardless, should the defendant’s failure to object to the evidence be considered a procedural default?

The State argues that an owner’s opinion of the cost to repair his property should be sufficient to prove pecuniary loss in a criminal mischief case in the same manner as an owner’s opinion of the value of his stolen property can be sufficient to prove value in a theft case. The State acknowledges that cases from several courts of appeals and other jurisdictions have held that the testimony of a non-expert owner is not sufficient to prove the cost of repair. Nevertheless, the State contends that these decisions are rooted in a concern that this testimony will consist largely of hearsay, and such hearsay concerns should be considered issues of admissibility of evidence rather than sufficiency of evidence.

The appellant counters that Texas law under Sebree, Elomary, and their progeny requires expert testimony to prove the cost of repair in a criminal mischief case. She further argues that Lawrence’s testimony was not legally sufficient because the State failed to tie the $2,100 estimate obtained by Lawrence to the repairs actually necessary in the mobile home.

IV. Understanding Sebree and Elomary

The disagreement between the parties as to the sufficiency of non-expert owner testimony may stem from confusing language in our opinion in Elomary. In Elomary, the appellant intentionally drove his vehicle into that of the complainant. A claims adjuster from the complainant’s insurance company testified that he appraised the complainant’s vehicle and concluded “that the fair market value of the repairs that would have to be done ... would be $518.40.” The complainant had her vehicle repaired, but testified that “she did not know the exact amount of money that the total repair cost was, ... [and] that the actual cost of repair work done to her [vehicle] could have been less than $200.” The jury convicted the Elomary, but the Sixth Court of Appeals held the evidence to be insufficient to prove pecuniary loss between $200 and $750 because “[n]o witness testified about the cost of the repair or restoration, and no receipt or other documentation showing the cost of repairing the car was submitted in evidence.”

In reversing the Court of Appeals, we made four important statements. First, we held that the cost of repairs should be “conditioned on what the fair market value of such might be.” Second, we agreed with Sebree’s holding that “the criminal mischief statute does not require that damaged property that can be repaired be actually repaired in order to establish the cost of the repair work.” Third, upon one condition, we agreed with Sebree’s holding distinguishing between evidence of “damage” and evidence of “repair cost”:

[I]f ... an individual ... is not competent to give an expert opinion as to repair costs, but is merely giving his “off-the-wall” lay opinion, ... “an estimate of damage or an opinion on the amount of damage without further evidence is insufficient to prove the cost of repairs as required by sec. 28.06(b) of the Texas Penal Code.”

Finally, we cited Article VII of the Texas Rules of Criminal Evidence to support the following cautionary statement:

The distinction between an individual merely stating his opinion or conclusion what the amount of the damages might be, or stating from hearsay what someone else said what the damages might be, from an individual who is shown to be qualified to give his or her expert opinion of what the fair market value of the cost of repairs to the damaged property might be should always be kept in mind.

Our first and second statements warrant no further discussion under the facts of this case. We can clarify the meaning of the third statement by reviewing Sebree itself. The appellant in Sebree seriously damaged the complainant’s vehicle. The complainant took the vehicle to an automobile dealer where she received “an estimate of the damages.” Based on this estimate, she testified that there was “six hundred and seventy dollars worth of damage.” She had the car repaired, but did not say how much she paid for the repairs. The First Court of Appeals found the evidence of pecuniary loss to be insufficient, and explained the difference between evidence of damage and evidence of cost of repairs:

The evidence adduced by the state [sic ] to support the conviction for criminal mischief speaks in terms of “damage” and “estimate of damage” rather than the statutory requirement of “cost of repairs.” Although it is possible that evidence could show that damages and costs of repair are synonymous in certain circumstances, we are of the opinion that in the instant case the State has failed to prove that the two terms are synonymous. The evidence adduced by the state [sic ] failed to connect the estimate of damages in any manner with the cost of repair. We do not agree with the appellant’s contention that it was necessary for the state [sic ] to establish what amount of money was paid or to identify who did the repairs and what repairs were done. To require this proof would enlarge upon the proof required by the statute and would place a burden upon the complaining witness or owner of the damaged property to have the property repaired before a conviction could be obtained. We hold that the statute does not require that property be repaired to establish the cost of repair as set forth in sec. 28.06(b). We further hold that an estimate of damage or an opinion on the amount of damage without further evidence is insufficient to prove the cost of repair as required by sec. 28.06(b) of the Texas Penal Code.

Texas courts relying on Sebree and Elomary have occasionally missed the key distinction between evidence of damage and evidence of cost of repair. These courts have misread the holdings, or simply substituted the term “cost of repair” for “damage,” to create a distinction between the sufficiency of lay versus expert testimony per se. Understood properly, the third statement in Elomary simply affirms the unremarkable proposition that an unsupported lay opinion as to damage, without more, will be insufficient to prove cost of repair. Elomary does not hold that the State must present expert testimony to prove cost of repair.

This conclusion is supported by the five cases we cited in Elomary at the conclusion of our opinion: Deas v. State, Hernandez v. State, Sullivan v. State, Scott v. State, and Porras v. Craig. None of these cases require expert testimony to prove cost of repair. Deas held evidence to be insufficient where the State failed to prove that a garage door had been destroyed, rather than damaged, and therefore that replacement value could be used to determine pecuniary loss instead of repair cost. Hernandez held expert testimony of cost of repair to be sufficient, but did not require expert testimony, and held that an expert need not personally observe the property in order to give an opinion on cost of repair. Sullivan affirmed that fair market value should be used to establish the value of property stolen in theft cases, and held that an owner’s testimony was sufficient to prove fair market value. Scott distinguished Sullivan on its facts in holding that an owner’s testimony of trade-in value was not sufficient to prove fair market value. Porras held, in the context of a civil suit for permanent damage to land, that a landowner could testify as to the fair market value of his land even if he could not qualify to testify about the value of like property belonging to someone else.

A holding in Elomary that expert testimony was required to prove cost of repair would plainly be in tension with Sullivan and Porras, among other cases. In Sullivan we held:

When the proof of value is given by a non-owner, the non-owner must be qualified as to his knowledge of the value of the property and must give testimony explicitly as to the fair market value or replacement value of the property. However, when the owner of the property is testifying as to the value of the property, he or she may testify as to his or her opinion or estimate of the value of the property in general and commonly understood terms. Testimony of this nature is an offer of the witness’ best knowledge of the value of his property. Such testimony will constitute sufficient evidence for the trier of fact to make a determination as to value based on the witness’s credibility.

The fact that our opinion in Elomary does not attempt to distinguish the line of authority represented by Sullivan and Por-ras further discredits the theory that Elo-mary crafted a new rule requiring expert testimony to prove cost of repairs.

In our fourth statement in Elomary, we cited Article VII of the Texas Rules of Criminal Evidence (now the Texas Rules of Evidence) to support the following cautionary statement:

The distinction between an individual merely stating his opinion or conclusion what the amount of the damages might be, or stating from hearsay what someone else said what the damages might be, from an individual who is shown to be qualified to give his or her expert opinion of what the fair market value of the cost of repairs to the damaged property might be should always be kept in mind.

We then appeared to contrast the questionable admissibility of lay opinion in Se-bree with the admissible expert opinion in Elomary to support our decision to uphold the sufficiency of the evidence. But, as we said in Moff v. State in the context of a theft case, “[b]oth litigants and reviewing courts should be careful to distinguish claims of improperly admitted evidence ... from legal insufficiency of all admitted evidence — even improperly admitted evidence.” Our fourth statement in Elo-mary illustrates our confession in Moff that we ourselves “hafye] not always been sufficiently careful in that regard.” Rather than influencing sufficiency analy-ses, the cautionary statement in Elomary should be read simply as a warning to practitioners that separate admissibility issues related to hearsay and lay and expert opinions may arise in the context of the pecuniary-loss element of a criminal mischief case.

V. Preservation of Error

The State’s second ground for review asks whether the legitimacy of an owner’s opinion on repair cost is an issue of admissibility or sufficiency, and whether a defendant’s failure to object to evidence of repair cost should be considered a procedural default regardless of whether it is an issue of admissibility or sufficiency. Moff supplies the answer. An owner’s opinion on repair cost could raise issues of admissibility or sufficiency, just like other types of testimony. In this case the issue is the sufficiency of the evidence, because that is the issue raised by the appellant. Moff is clear that, unlike an admissibility claim, a sufficiency claim need not be preserved by objection at trial:

If a defendant challenges the legal sufficiency of the evidence to support his conviction on direct appeal, the appellate court always has a duty to address that issue, regardless of whether it was raised in the trial court.... On the other hand, when a defendant claims on appeal that the trial court erred in admitting or excluding evidence, he must have made a proper and specific objection at the time the evidence was offered or excluded to preserve his right of review of that evidentiary claim.

VI. Disposition

In this case, the Court of Appeals held the evidence was insufficient because that Court interpreted Elomary and its progeny to require that the State present expert testimony to prove the cost of repair. We have clarified that Elomary does not require the presentation of expert testimony. We therefore remand this case to the Court of Appeals so that it can proceed to consider the sufficiency of the admitted evidence.

MEYERS, J., did not participate.

      . Penal Code § 28.03(a)(1).

      . Id., at § 28.06(b).

      . The case was tried together with another criminal mischief case in which the State proved that the appellant destroyed a house owned by the federal government by living in the house without the consent of the government and allowing approximately 86 dogs to live, urinate, and defecate in the house over a period of months. The Sixth Court of Appeals affirmed the appellant's conviction in that case. Holz v. State, 2009 WL 3097240 (Tex.App.-Texarkana September 30, 2009).

      . Cox's photographs of the mobile home, presented to the jury as State’s Exhibit 1, do not appear to show the areas of soiled carpet.

      . West carried the meter to warn him if there were hazardous levels of ammonia coming from the urine of the dogs. He testified that "anything above 12 parts per million starts becoming hazardous to human health. ... At 35 parts per million you cannot work in an atmosphere for more than fifteen minutes. Once it reaches 50 parts per million you should not spend more than five minutes in the atmosphere.”

      . The appellant testified that she was familiar with the cost of carpet through her career in commercial and residential real estate.

      . Criminal mischief causing pecuniary loss between $1,500 and $20,000, as alleged in the indictment, is a state jail felony. Penal Code § 28.03(a)(4)(A).

      . Holz, 2009 WL 3097253, at *1.

      . Id., at *2.

      . 171 S.W.3d 625 (Tex.App.-Houston [14th Dist.] 2005).

      . Holz, 2009 WL 3097253, at *2.

      . 796 S.W.2d 191 (Tex.Cr.App.1990).

      . 695 S.W.2d 303 (Tex.App.-Houston [1st Dist.] 1985).

      . Holz, 2009 WL 3097253, at *2 (emphasis in original).

      . Id., at *3.

      . 796 S.W.2d, at 192.

      . Ibid.

      . Ibid.

      . Elomary v. State, 778 S.W.2d 909, 910 (Tex.App.-Texarkana 1989).

      . Elomary, 796 S.W.2d, at 193.

      . Ibid.

        . Ibid, (quoting Sebree, 695 S.W.2d, at 305).

      . Id., at 193-94.

      . 695 S.W.2d, at 304.

      . Id., at 305.

      . Id., at 304-05.

      . Id., at 305.

      . Id., at 305.

      . See, e.g., Nixon v. State, 937 S.W.2d 610, 612 (Tex.App.-Houston [1st Dist.] 1996) ("Elo-mary and Sebree conclude that expert testimony is required in a criminal mischief case to establish the fair market value of the cost of repairs to damaged property if there is no other evidence than a lay witness.”); Reasor v. State, 281 S.W.3d 129, 133 (Tex.App.-San Antonio 2008) (citing Elomary for the proposition that "without further evidence, 'off-the-wall' lay opinion testimony or a mere estimate of cost of repair is insufficient to prove the cost of repairs for a criminal mischief conviction”); Barnes v. State, 248 S.W.3d 217, 220 (Tex.App.-Houston [1st Dist.] 2007) (citing Elomary for the proposition that " 'off the wall,' opinion testimony, or a mere estimate of cost of repair, 'without further evidence,’ is not sufficient to prove the cost of repairs for a criminal-mischief conviction,” but correctly noting that "the court fell short of requiring the State to present expert testimony to establish the repair cost element required by Section 28.06(b) of the Penal Code.”) (emphasis in original); Holz, 2009 WL 3097253, at *2.

      . In Elomary, we conditioned the Sebree holding on the understanding that the holding "relates to an individual who is not competent to give an expert opinion as to repair costs, but is merely giving his 'off-the-wall' lay opinion.” 796 S.W.2d, at 193. Implicit in this condition is an assumption that an expert’s opinion on damage is likely to be closely linked to his experience with costs of repair, while the lay owner's unsupported opinion on damage is more likely to be influenced by factors other than cost of repair, perhaps such as loss of use, diminution of resale value in the damaged state, or loss of sentimental or aesthetic value.

      . 752 S.W.2d 573 (Tex.Cr.App.1988).

      . 468 S.W.2d 387 (Tex.Cr.App.1971).

      . 701 S.W.2d 905 (Tex.Cr.App.1986).

      . 741 S.W.2d 435 (Tex.Cr.App.1987).

      . 675 S.W.2d 503 (Tex.1984).

      . 752 S.W.2d, at 575.

      . 468 S.W.2d, at 391.

      . 701 S.W.2d, at 909.

      . 741 S.W.2d, at 439.

      . 675 S.W.2d, at 504.

      . Id., at 909.

      . 796 S.W.2d, at 193-94. Article VII governs the admissibility of opinions and expert testimony.

      . Id., at 194.

      . 131 S.W.3d 485, 490 (Tex.Cr.App.2004).

      . Id.

      . Tex.R. Evid. art. VIII.

      . Tex.R. Evid. art. VII.

      . 131 S.W.3d, at 488-89.

      . Id., at 489 (describing how a witness’s hearsay testimony could trigger both admissibility and sufficiency claims).

      . Id., at 488-89.

      . Holz, 2009 WL 3097253, at *2.

      . The appellant argues that the evidence is insufficient because the $2,100 carpet-replacement estimate was not tied to the damage caused by the appellant. See, e.g., Crawley v. State, 513 S.W.2d 62, 65 (Tex.Cr.App.1974) (finding evidence sufficient to prove extent of injury to complainant's vehicle where a shop foreman testified to the cost of repairs and the State proved that the repairs were required as a result of the defendant's actions); Wise v. State, 494 S.W.2d 921, 925 (Tex.Civ.App.-Fort Worth 1973) (finding that the cost of repainting an entire vehicle was not sufficient to prove the cost of repairs where a minor damaged the vehicle by writing only on its hood); Athey v. State, 697 S.W.2d 818, 821 (Tex.App.-Dallas 1985) (holding that the State has a burden “to show that the repairs in question were reasonable and were a necessary result of defendant's acts, rather than a result of previous damage").


source: Caselaw Access Project

author: PRICE, J., KEASLER, J., HERVEY, J.,

license: Public Domain

text:
    Julio Cesar PUENTE, Appellant, v. The STATE of Texas.
    No. PD-0364-10.
    Court of Criminal Appeals of Texas.
    Sept. 22, 2010.

      Ken Goode, Houston, TX, Appellant.
    Erin Craig, Asst. D.A., Houston, TX, Jeffrey L. Van Horn, State’s Attorney, Austin, TX, for State.
   OPINION

PRICE, J.,

delivered the opinion of the Court

in which WOMACK, JOHNSON, HOLCOMB and COCHRAN, JJ., joined.

In this aggravated sexual-assault case, the State moved to amend the indictment, and the trial court granted the motion. The Fourteenth Court of Appeals asserted that the indictment was amended accordingly by striking out certain words “on a copy of the indictment.” On petition for discretionary review, the State now claims, inter alia, that the record does not bear out the court of appeals’s assertion that “a copy of the indictment” was altered. In fact, only the written judicial confession in the documents supporting the appellant’s guilty plea was actually altered. We must decide, therefore, whether the physical alteration of a written judicial confession may be regarded as an amendment to the indictment in contemplation of Articles 28.10 and 28.11 of the Texas Code of Criminal Procedure.

PROCEDURAL POSTURE

The appellant was charged by indictment with the felony offense of aggravated sexual assault of a child for “THE PENETRATION OF THE ANUS of [J.C.], a child younger than six years of age ... WITH FINGER.” This allegation charged the appellant with a first-degree felony offense, but with an enhanced minimum punishment of twenty-five years confinement in the penitentiary by virtue of the allegation that the child who was sexually assaulted was younger than six years of age. The appellant and the State entered into plea negotiations. From what we are able to gather from the record, the appellant agreed to plead guilty to the first-degree felony offense of aggravated sexual assault of a child — unenhanced, however, by the allegation that the child was younger than six years of age — in exchange for a sentence of twenty-one years. Such an agreed punishment would not have been available for a conviction of aggravated sexual assault of a child younger than six years of age, because it is a lesser term of years than the minimum term of imprisonment of twenty-five years that is applicable for a victim of that age. Accordingly, the State proposed to amend the indictment, apparently in an attempt to have it reflect the first-degree felony offense of sexual assault of a child younger than fourteen years of age, without including the mandatory-minimum enhancing circumstance that the child was also younger than six years of age. At the plea hearing, the trial court acknowledged that the parties had agreed to such an amendment of the indictment, and the trial court approved the amendment.

However, neither the indictment itself nor a copy of it was actually amended in accordance with the agreement of the parties. Instead, the prosecutor manually struck certain language from the written judicial confession contained in the “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession” that was entered into evidence in support of the guilty plea. As amended (and showing the strike-out), the judicial confession acknowledges that the appellant “did [on the alleged date] unlawfully, intentionally and knowingly cause THE PENETRATION OF THE ANUS of [J.C.], a child younger than six years of age ... WITH FINGER.” Underneath the judicial confession as thus altered appears the handwritten notation: “State moves to amend the indictment as reflected above.” But nowhere in the record do we find either that the indictment itself was actually altered in any way or that a copy of the indictment with the agreed changes noted on it was introduced memorializing such an amendment. Based upon the unamended indictment and the appellant’s judicial confession, the trial court nevertheless accepted the appellant’s plea, found him guilty of aggravated assault of a child, and set his punishment at the agreed twenty-one-year term of imprisonment.

On direct appeal, the appellant argued that his twenty-one year prison sentence was illegal because unauthorized. He argued that the amendment to the judicial confession constituted a valid amendment to the indictment and that, as thus amended, namely, by striking the language “a child younger than six years of age,” the indictment alleged only the second-degree felony offense of sexual assault of a child under Section 22.011(a)(2)(A) of the Penal Code, which carries a maximum sentence of twenty years.

The court of appeals agreed. In its unpublished opinion, however, the court of appeals misread the record, as follows:

On October 21, 2008, the State submitted the amendment to the indictment by physically striking through the words “a child younger than six years of age” on a copy of the indictment. Appellant did not object to the amendment. The trial court subsequently approved the amendment. Therefore, the indictment was properly amended.

Finding that this amendment to the indictment had the effect of reducing the charge against the appellant to the second-degree offense of sexual assault, the court of appeals concluded that the appellant’s sentence was indeed unauthorized, and therefore, illegal. Accordingly, the court of appeals set the conviction aside, ordered the parties “returned to their respective positions before the ‘guilty’ plea was entered,” and remanded the cause for further proceedings. We granted the State’s petition for discretionary review, inter alia, to address its contention that the amendment to the judicial confession did not amount to an amendment to the indictment. We agree with the State that an amendment to the written judicial confession that was introduced in support of the guilty plea does not amount to an amendment to the indictment. We therefore reverse.

ANALYSIS

A person commits sexual assault if, inter alia, the person “intentionally or knowingly ... causes the penetration of the anus ... of a child by any means,” a child being “a person younger than 17 years of age[.]” This is a second-degree felony, punishable by a term of two to twenty years in the penitentiary. A person commits the offense of aggravated sexual assault if, inter alia,, the person “intentionally or knowingly ... causes the penetration of the anus ... of a child by any means” and “the victim is younger than 14 years of age.” This offense is a felony of the first degree, carrying a punishment range of five to ninety-nine years or life in the penitentiary. But the five-year minimum term of imprisonment for this first-degree felony “is increased to 25 years if ... the victim of the offense is younger than six years of age at the time the offense is committed[.]” The indictment in this cause originally alleged that the appellant caused the penetration of the anus of a child less than six years old, thereby charging him with a first-degree felony with a minimum term of punishment of twenty-five years.

But a victim who is younger than six years of age is also, by definition, younger than fourteen years of age. Sexual assault of a fourteen-year-old is, in essence, a lesser-included offense of sexual assault of a six-year-old. Therefore, the original indictment was already, without the necessity of an amendment, sufficient to authorize conviction for the unenhanced first-degree felony of sexual assault of a child younger than fourteen years of age. If the indictment was never amended in this case, then there is nothing illegal about the appellant’s twenty-one-year sentence. The key inquiry in this case therefore devolves into whether the court of appeals erred to conclude that the indictment was in fact ever amended, such that the appellant was charged with the second-degree offense of sexual assault rather than the first-degree offense of aggravated sexual assault of a child under the age of six. If the indictment was in fact amended, the judgment entered at the trial court level may well have been illegal. However, if the indictment was not amended, the sentence entered by the trial judge pursuant to the plea agreement was permissible, and we should reverse the court of appeals’s judgment.

Articles 28.10 and 28.11 of the Code of Criminal Procedure allow for the possibility of amending an indictment and supply the procedure to be followed for successful amendment. In Riney v. State, this Court conducted an analysis of Articles 28.10 and 28.11. To the extent that Ward v. State had required physical in-terlineation of the original indictment found in the clerk’s file as the exclusive method of amendment, Riney overruled Ward. The Court then explained an alternative method for amending an indictment;

It is acceptable for the State to proffer, for the trial court’s approval, its amended version of a photocopy of the original indictment. If approved, the amended photocopy of the original indictment need only be incorporated into the record under the direction of the court, pursuant to Article 28.11, with the knowledge and affirmative assent of the defense. This version of the indictment would then become the “official” indictment in the case, and it would continue to state, presumably in “plain and intelligible” language, the nature and cause of the accusation.

The Court in Riney then noted that Ward would “continue[ ] to stand for the proposition that ‘[njeither the motion [to amend] itself nor the trial judge’s granting thereof is an amendment; rather the two comprise the authorization for the eventual amendment of the charging instrument pursuant to Article 28.10.’ ”

Our holding in Riney did not necessarily rule out the possibility that there could be other valid methods to amend an indictment. We need not decide that question today. Regardless of whether there may be legitimate ways to amend an indictment other than to make changes directly to the original indictment or to place an amended duplicate into the record, we do not believe that manual changes to a written judicial confession should suffice under any circumstances. A judicial confession in a guilty plea, even when it is reduced to writing, is decidedly not a charging instrument, nor may it serve as a reasonable facsimile for one. Its purpose is altogether different than that of a criminal pleading. A written judicial confession provides evidentiary support for a plea of guilty to the charges alleged in the indictment or to some lesser included offense of that which is alleged in the indictment. Any change or interlineation to the written judicial confession serves to change the evidence offered in support of the plea, not the content of the charging instrument. It would complicate matters intolerably to hold that a change or alteration to a written judicial confession may also (or alternatively) serve as an amendment to the pleading itself.

CONCLUSION

We hold that the State’s request to amend the indictment and the trial court’s granting that request did not serve to amend the indictment where alterations were made solely to the written judicial confession. Therefore, the appellant’s sentence was authorized, and the court of appeals erred in vacating the trial court’s judgment. We reverse the judgment of the court of appeals and reinstate the judgment of the trial court.

KEASLER, J., filed a concurring opinion in which KELLER, P.J., and HERVEY, J., joined.

HERVEY, J. filed a concurring opinion in which KELLER, P.J., and KEASLER, J., joined.

MEYERS, J., did not participate.

KEASLER, J.,

concurring in which KELLER, P.J., and HERVEY, J., joined.

I would hold that Julio Cesar Puente is estopped from challenging his sentence as illegal. As the record clearly shows, Puente and the State reached an agreement whereby Puente pled guilty in exchange for the State’s consideration to abandon the allegation that the victim was under six years old, which raised the minimum punishment to twenty-five years’ imprisonment. Puente was punished in accordance with the agreement and his punishment for the lesser-included offense was authorized. It is absurd to permit Puente to attack the propriety of his sentence on the basis that the indictment was not properly amended under the terms of the plea agreement. There is no reason to hesitate to hold Puente to the terms of the valid plea bargain agreement. We should not be addressing the merits of his claim under these circumstances, and the court of appeals should have declined to do so as well.

HERVEY, J.,

concurring in which KELLER, P.J., and KEASLER, J., joined.

I join Judge Keasler’s concurring opinion and agree that the court of appeals should not have even addressed the merits of appellant’s claim. I would find it unnecessary to decide whether the indictment in this case was amended also because, even if it were amended, appellant engaged in a course of conduct that had the effect of waiving any requirement of an allegation in the indictment of “a child younger than fourteen years of age.” See Joseph v. State, 309 S.W.3d 20, 24-26 (Tex.Crim.App.2010) (in absence of express and explicit waiver of Miranda rights, totality of circumstances may show voluntary waiver of these rights); Trejo v. State, 280 S.W.3d 258, 263 (Tex.Crim.App.2009) (Keller, P.J., concurring in the judgment) (“unless waived, an indictment is necessary to vest the trial court with personal jurisdiction in a felony case”).

With these comments, I concur in the Court’s judgment.

      . Puente v. State, No. 14-08-01011-CR, 2010 WL 26534 (Tex.App.-Houston [14th Dist.] January 7, 2010) (mem.op.) (Slip op. at 6) (not designated for publication).

      . Tex Code Crim. Proc. arts. 28.10 & 28.11.

      . See Tex Penal Code § 22.021(a)(l)(B)(i), (a)(2)(B), & (e) ("A person commits an offense ... if the person ... intentionally or knowingly ... causes the penetration of the anus ... of a child by any means ... and ... if ... the victim is younger than 14 years of age[.] * * * An offense under this section is a felony of the first degree.”).

      . See Tex. Penal Code § 22.021(f)(1) ("The minimum term of imprisonment for an offense under this section is increased to 25 years if ... the victim of the offense is younger than six years of age at the time the offense is commiltedf.]”).

      . See Tex Code Crim. Proc. art. 28.11 ("All amendments of an indictment or information shall be made with the leave of the court and under its direction.”).

      . The appellant is mistaken that the indictment as thus amended would have alleged the second-degree felony offense of sexual assault of a child. Had the indictment actually been amended as reflected in the alteration to the judicial confession, it would have alleged that the appellant "did ... unlawfully, intentionally and knowingly cause THE PENETRATION OF THE ANUS of J.C., ... WITH FINGER.” This language fails to allege a complete offense, because it alleges neither that the actor lacked the victim's consent nor that the victim was younger than seventeen. See Tex. Penal Code § 22.011(a) & (c)(1). Therefore, had the indictment been amended as reflected in the judicial confession, and the appellant had objected to it under Tex.Code Crim. Proc. art. 1.14(b), it would have supported neither a conviction for aggravated sexual assault of a child nor a conviction for sexual assault of a child.
      One adjudged guilty of a second-degree felony offense of sexual assault of a child faces a prison sentence for "any term of not more than 20 years or less than 2 years.” Tex. Penal Code § 12.33(a). The appellant argues that, in order to effectuate the true intent of the parties, the amendment should have struck only the words "younger than six years of age.” By also striking the words “a child,” he maintains, the amendment had the effect of alleging only the second-degree felony of sexual assault. We note, however, that, even had the words "a child” not been struck, the amendment would still have alleged only a second-degree sexual assault. Penetration of the anus of a "child” only amounts to a sexual assault unless it can be shown that the “child” is also younger than fourteen years of age. See Texas Penal Code § 22.011(a)(2)(A) & (c)(1) ("A person commits an offense if the person ... intentionally or knowingly ... causes the penetration of the anus ... of a child by any means[.] * * * In this section ... "Child” means a person younger than 17 years of age[.]”). The best way for the parties to have changed the allegation to allow the appellant to plead guilty in exchange for a twenty-one-year sentence would have been simply to strike the word "six” and replace it with the word "fourteen.” See Texas Penal Code § 22.021(a)(2)(B) (intentional or knowing penetration of a child’s anus is an aggravated offense if "the victim is younger than 14 years of age[J”). This would have raised the sexual assault of a child to a first-degree aggravated sexual assault, but would not have subjected the appellant to the mandatory twenty-five-year minimum term of imprisonment.

      . Puente v. State, supra (Slip op. at 6) (emphasis added).

      . Id. (Slip op. at 6-7). The court of appeals explained:
      A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App.2003) (en banc); Ex parte Seidel, 39 S.W.3d 221, 225 n. 4 (Tex.Crim.App.2001) (en banc). A defendant may obtain relief from an unauthorized sentence on direct appeal or by a writ of habeas corpus. Mizell, 119 S.W.3d at 806. Appellant was sentenced to confinement for 21 years. Because the amended indictment only alleged the offense of sexual assault, the maximum penalty appellant could have been sentenced to is confinement for 20 years. See Tex. Penal Code Ann. §§ 12.33(a), 22.011(f). Therefore, appellant's sentence is illegal. See Mizell, 119 S.W.3d at 806; Ex parte Seidel, 39 S.W.3d at 225 n. 4. When punishment pursuant to a negotiated plea agreement exceeds the statutory maximum, the proper relief is to return the parties to their respective positions before the guilty plea was entered. Ex parte Rich, 194 S.W.3d 508, 515 (Tex.Crim.App.2006); Ex parte Beck, 922 S.W.2d 181, 182 (Tex.Crim.App.1996) (per curiam).

        Id. (Slip op. at 7).

      . Id. (Slip op. at 8).

      . Tex Penal Code §§ 22.011(a)(2)(A) & (c)(1).

      . Tex Penal Code §§ 12.33(a) & 22.011(f).

      . Tex Penal Code §§ 22.021(a)(1)(B)(i), (2)(B).

      . Tex. Penal Code §§ 12.31 & 22.021(e).

      . Tex. Penal Code §§ 22.021(e), (f)(1).

      . See Allison v. State, 618 S.W.2d 763, 764-65 (Tex.Crim.App.1981) (indictment alleging burglary of a habitation will authorize conviction for lesser-included offense of burglary of a building without necessity of an amendment to the indictment); Hardie v. State, 79 S.W.3d 625, 631-32 (Tex.App.-Waco 2002, pet. ref'd) (indictment need not be amended or altered at all to support conviction for lesser-included offense).

      . Because we will hold that the indictment was in fact not amended, we need not address whether the court of appeals should nevertheless have affirmed the trial court's judgment on some other basis such as estoppel. The State has argued alternatively that the appellant, having agreed with the State to amend the indictment in a way that would support a twenty-one-year sentence, should now be es-topped from arguing that his sentence is illegal because no such amendment was successfully accomplished. Our disposition makes it unnecessary to resolve this alternative argument.

      . TexCode Crim. Proc arts. 28.10, 28.11.

      . Riney v. State, 28 S.W.3d 561 (Tex.Crim.App.2000).

      . Ward v. State, 829 S.W.2d 787 (Tex.Crim.App.1992), overruled in part by Riney v. State, 28 S.W.3d 561 (Tex.Crim.App.2000).

      . Riney, 28 S.W.3d at 566.

      . Id. at 565-66.

      . Id. at 566.

      . See, e.g., Menefee v. State, 287 S.W.3d 9, 13 (Tex.Crim.App.2009) (a "sworn written statement” acknowledging guilt of the charged offense is one form of permissible evidence that may be entered in support of guilty plea in a felony case to satisfy the statutory requirement, under Tex Code Crim Proc. art. 1.15, that the State introduce evidence substantiating guilt).

      . See Rhodes v. State, 240 S.W.3d 882, 891 (Tex.Crim.App.2007) (observing that estoppel by contract bars a party who accepts benefits under a contract from questioning the contract's existence, validity, or effect).


author: ANN CRAWFORD McCLURE, Justice.

text:
    ENCHILADA’S NORTHWEST, INC., Appellant, v. L & S RENTAL PROPERTIES, Appellee.
    No. 08-08-00142-CV.
    Court of Appeals of Texas, El Paso.
    March 24, 2010.

      Jack L. Coke Jr., Law Offices of Jack L. Coke, Jr., Richardson, TX, for Appellant.
    Brett Lee Myers, David, Goodman & Madole, Dallas, TX, for Appellee.
    Before McCLURE, J., RIVERA, J., and CHEW, Judge.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Enchilada’s Northwest, Inc. appeals from a judgment awarding damages and attorney’s fees to L & S Rental Properties following a jury trial. At issue is whether Enchilada’s established its affirmative defenses of waiver and estoppel in this suit for breach of a lease agreement. Because it did not, we affirm the judgment of the court below.

FACTUAL SUMMARY

L & S and Enchilada’s entered into a lease agreement for restaurant space on Northwest Highway in Dallas, Texas. The original lease ran from June 21, 1993 to July 1, 1998. Enchilada’s exercised a renewal option for an additional five year term, at the end of which the parties amended the agreement to extend the lease again from July 1, 2003 until June 30, 2008. Under the amended agreement, Enchilada’s could terminate the lease early but it was required to provided notice:

LANDLORD further grants Tenant the right to terminate Lease Agreement by notifying LANDLORD One Hundred Eighty (180) days prior to such termination. Notice to terminate shall be in writing and sent by certified mail to L & S PROPERTIES AT 5510 Williamstown Rd., Dallas, tx. 75230. All verbal or oral notices are not deemed as notification of such termination. Should Tenant exercise right to terminate, Tenant shall pay all rents due and payable of terminate period (180 days).

On October 12, 2005, Jack Stoller of L & S sent Enchilada’s a letter regarding delinquent rent. Enchilada’s owner, Tony Wal-drop, called Stoller and asked to meet with him. Stoller agreed and he went to Wal-drop’s office on October 20, 2005. Wal-drop had requested the meeting to discuss an issue with the water meter at the property and a co-tenant’s failure to pay her share of water usage. The conversation became heated and Waldrop threatened several times that if L & S did not resolve the water situation, Enchilada’s might have to move. While Stoller was walking out of the meeting, Waldrop again threatened to move if the problem was not resolved and Stoller responded, “Move.” Stoller testified Waldrop had threatened to move many times in the past but had not done so.

On March 20, 2006, Enchilada’s gave written notice that it intended to terminate the lease and vacate the space on May 1, 2006. It claimed the parties had orally agreed that the lease would terminate on April 18, 2006 but it need until May 1 to vacate. L & S sent a reply letter on March 23, 2006 accepting the notice of termination. L & S denied the existence of an oral agreement and notified Enchilada’s that the 180-day notice period required rent to be paid from March 20, 2006 to September 16, 2006. On April 19, 2006, counsel for L & S sent a similar letter, advising that despite the fact Enchilada’s was vacating the premises, it was nevertheless obligated to pay rent throughout the 180-day notice period as required by the lease. At some point thereafter, Stol-ler went to the property and found the premises locked and empty. A sign in the window stated Enchilada’s was moving to a new location. When Enchilada’s did not pay rent for May 2006, counsel for L & S sent a third letter, explaining that L & S had found a tenant to occupy the space but the new tenant would not begin to pay rent until October 1, 2006 due to the “finish out.” At trial, Stoller testified that L & S leased the space to the adjacent tenants but they had requested construction modifications. The lease term began on June 1, 2006, but L & S did not charge them rent until October 1, 2006. Sometime in May 2006, Stoller requested and obtained the key from Enchilada’s so he could enter the property and begin preparations for the new tenants. Enchilada’s did not pay rent for May, June, July, August, and September 2006. L & S filed suit for breach of contract seeking unpaid rent in the amount of $14,175, plus interest and attorney’s fees. Enchilada’s filed an answer asserting a general denial and pleading the affirmative defenses of waiver and estop-pel.

At the jury trial, Enchilada’s based its waiver defense primarily on the October 2005 conversation between Stoller and Waldrop. The jury found that L & S and Enchilada’s entered into an agreement regarding the amount of notice required to terminate the lease and that Enchilada’s failed to comply with the agreement. The jury specifically found that Enchilada’s failure to comply was not excused by waiver on the part of L & S. The jury awarded damages in the amount of $14,175, and the trial court entered judgment in favor of L & S for damages, prejudgment interest, and attorney’s fees.

AFFIRMATIVE DEFENSE OF WAIVER

Enchilada’s raises two issues related to waiver. In Issue One, Enchilada’s contends that as a matter of law, L & S waived any right to require 180-days’ notice of intent to terminate the lease when Stoller told Waldrop to “get out.” In Issue Two, Enchilada’s claims that L & S waived its right to collect rent during the notice period because Stoller asked that Enchilada’s voluntarily surrender physical possession of the lease premises prior to its expiration.

Standard of Review

Where the party having the burden of proof suffers an unfavorable finding (failure to find), the proper complaint is that the fact was established as “a matter of law.” When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which it had the burden of proof, an appellant must demonstrate that the evidence conclusively established all vital facts in support of the issue. Dow Chemical Company v. Francis, 46 S.W.3d 237, 241 (Tex.2001), citing Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex.1989); Duran v. Garcia, 224 S.W.3d 309, 312 (Tex.App.-El Paso 2005, no pet.). A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. Sterner, 767 S.W.2d at 690; Duran, 224 S.W.3d at 312. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner, 767 S.W.2d at 690; Duran, 224 S.W.3d at 312. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690; Duran, 224 S.W.3d at 312. Only if the contrary position is conclusively established will the legal sufficiency challenge be sustained. Duran, 224 S.W.3d at 312-13.

Applicable Law

Waiver is defined as the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex.2003); Industrial Communications, Inc. v. Ward County Appraisal District, 296 S.W.3d 707, 721 (Tex.App.-El Paso 2009, pet. filed). Waiver may be written or oral, and it may be shown by circumstances or course of dealing. Carpet Services, Inc. v. George A. Fuller Company of Texas, Inc., 802 S.W.2d 343, 346 (Tex.App.-Dallas 1990), aff'd, 823 S.W.2d 603 (Tex.1992). Waiver can be established by a party’s express renunciation of a known right, or by silence or inaction for so long a period as to show an intent to yield the known right. Aguiar v. Segal, 167 S.W.3d 443, 451 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). Waiver is largely a matter of intent, and for implied waiver to be found through a party’s actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Jernigan, 111 S.W.3d at 156; Motor Vehicle Board v. El Paso Independent Automobile Dealers Association, Inc., 1 S.W.3d 108, 111 (Tex.1999). There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right. Jernigan, 111 S.W.3d at 156.

The October 2005 Meeting

Both Stoller and Waldrop testified about the October 20, 2005 meeting which formed the basis for Enchilada’s waiver defense. Stoller went to Waldrop’s office to discuss problems with a water meter. As soon as Stoller walked in, Waldrop began talking to him in an intimidating manner, complaining that they had to resolve the water problem or the business might have to move. The conversation became heated but Stoller tried to control his temper. Stoller attempted to leave the meeting three different times but Waldrop stopped him each time. Finally, Stoller walked to the door, telling Waldrop “I’ve had enough.” Waldrop reiterated, “[I]f you’re not going to help us resolve this water deal, we may have to move.” Exasperated by this point, Stoller simply said, “Move.” He denied telling Waldrop to “get out” or receiving any notice that Enchilada’s might leave the premises prior to the termination date. In fact, Waldrop had made similar threats in the past but had not moved. Stoller expressly denied discussing with Waldrop a termination of the lease.

Waldrop had a different recollection of the meeting. He recalled that Stoller came to collect the rent but they also met to discuss problems with the property and Stoller’s “stonewalling.” He characterized the discussion about the water meter as the “straw that broke the camel’s back.” Stoller refused to help with the water meter problem but Waldrop believed he should get involved because it was his property. They discussed other problems including potholes in the parking lot and the mansard, but Stoller did not agree to resolve these issues either. The conversation grew heated and Waldrop told Stoller that if the problems were not resolved, he was going to move. Stoller responded “Move. Get out.” On cross-examination, Waldrop admitted this was the entirety of the discussion and that he did not tell Waldrop the business would be moving out on April 18, 2006. Waldrop also admitted that he testified on deposition that he did not give written notice because he did not remember the lease required it.

Waldrop’s wife was present and overheard the conversation between Stoller and her husband. She recalled that Stol-ler said he was unwilling to pay for the repairs that Waldrop wanted done and Waldrop asked, “If we can’t have the facility fixed and in good working order, how can we continue?” Stoller replied, “Well, then I guess you’ll just have to get out.” Stoller purportedly repeated these remarks as he was leaving.

The trial court submitted the waiver issue to the jury:

Was Enchilada’s Northwest, Inc.’s failure to comply [with the notice requirement] excused?
Failure to comply by Enchilada’s Northwest, Inc. is excused if compliance was waived by L & S Rental Properties. Waiver is an intentional surrender of a known right or intentional conduct inconsistent with claiming the right.

The jury returned a negative answer.

Right to Advance Written Notice

The first issue before us is whether there is more than a scintilla of evidence supporting the jury’s determination that L & S did not intentionally surrender its right to 180-days’ written notice of Enchilada’s termination of the lease nor engage in intentional conduct inconsistent with claiming that right. Assuming for purposes of our legal sufficiency review that the jury believed Stoller’s version of the confrontation, there is evidence that Stoller told Waldrop to move when Wal-drop threatened to leave if the problems with the premises were not corrected. Stoller denied telling Waldrop to get out. Waldrop’s threat contemplated moving out at a future date if the problems were not resolved and Stoller, admittedly angry, simply responded, “Move.” Based on this evidence, we conclude Stoller neither expressly nor impliedly agreed to waive the lease requirement that Enchilada’s give written notice 180 days before it terminated the lease. Stoller’s remark is not inconsistent with claiming the right to notice. Because the jury’s negative answer is supported by more than a scintilla of evidence, it is unnecessary to address whether Enchilada’s conclusively proved its waiver defense. Issue One is overruled.

Waiver of Right to Collect Monthly Rent

We next consider whether L & S waived its right to collect rent during the 180-day notice period. Enchilada’s vacated the premises in April 2006 and reopened at a different location around May 12, 2006. Stoller went to the leased premises in April 2006 and found it locked and empty. When L & S did not receive the May rent, Stoller asked for the key so he could prepare the property for new tenants. L & S leased the premises to adjacent tenants on June 1, 2006. Although it obtained the key in May, L & S continued to claim its right to collect rent during the notice period. On May 12, 2006, its attorney sent a demand letter for payment of rent due and warned that L & S would file suit if Enchilada’s did not tender payment. Based on the foregoing evidence, the jury could have reasonably found that L & S did not intentionally waive its right under the lease to collect rent during the notice period. Further, there was sufficient evidence for the jury to find that L & S’s conduct was not inconsistent with claiming that right. Because the jury’s negative answer is supported by more than a scintilla of evidence, it is unnecessary to address whether Enchilada’s conclusively proved its waiver defense. Issue Two is overruled.

ESTOPPEL

In Issues Three and Four, Enchilada’s offers two arguments related to estoppel. In Issue Three, Enchilada’s contends that L & S is estopped to require 180-days’ notice because Stoller told Waldrop to get out and Waldrop agreed to do so. In its final issue, Enchilada’s maintains that L & S is estopped from collecting rent because Stoller requested that Waldrop voluntarily surrender physical possession of the leased premises prior to expiration of the notice period.

L <& S counters that Enchilada’s did not preserve these issues for review. Estop-pel is an affirmative defense. Tex.R.Civ.P. 94. While Enchilada’s pled estoppel in its answer, the record does not reflect that it requested a jury instruction or that the trial court denied the instructions. Enchilada’s has attached its proposed instructions to its reply brief, but they are not included in the clerk’s record and do not bear a file mark or the signature of the trial court refusing to submit them. Moreover, the record does not reflect that Enchilada’s tendered the instructions to the court or that the court refused them. Rule 279 provides that: “Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived.” Tex. R.Civ.P. 279. By failing to obtain a jury finding on the affirmative defense of estop-pel, Issues Three and Four are waived unless Enchilada’s “conclusively established” this affirmative defense. See T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 222-23 (Tex.1992), citing Tex.R.Civ.P. 279.

To prove the affirmative defense of equitable estoppel, Enchilada’s must conclusively prove: (1) a false representation or concealment of material facts, (2) made with actual or constructive knowledge of those facts, (3) with the intention that it should be acted on, (4) to a party without knowledge, or the means of knowledge of those facts, (5) who detrimentally relied upon the misrepresentation. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 489 (Tex.1991). The party relying upon estoppel has the burden of proof, and the failure to prove any element is fatal. Bayfield v. Howard M. Smith Company, 426 S.W.2d 834, 838 (Tex.1968); Mangrum v. Conrad, 185 S.W.3d 602, 606 (Tex.App.-Dallas 2006, pet. denied).

Enchilada’s asserts that the parties orally agreed to terminate the lease, but Stoller concealed his true intent to require Enchilada’s to provide written notice as required by the lease. We understand Enchilada’s to argue that Stoller falsely agreed that Enchilada’s could terminate the lease. Stoller and Waldrop contradicted each other regarding exactly what was said at the October 2005 meeting. After Waldrop told Stoller that Enchilada’s might have to move if the problems with the property were not resolved, Stoller retorted, “Move.” Given the contradictions in the testimony, Enchilada’s has not conclusively proven that L & S made a false representation or concealed material facts. Because Enchilada’s did not conclusively prove the first element of its affirmative defense, it has waived its third issue.

Finally, Enchilada’s claims that L & S is estopped from collecting monthly rent because L & S asked Enchilada’s to surrender physical possession of the leased premises prior to expiration of the notice period. Enchilada’s has not identified any false representation made by L & S or Stoller in connection with this specific es-toppel claim. Having failed to conclusively prove its estoppel defense, Enchilada’s has waived Issue Four. We overrule Issues Three and Four and affirm the judgment of the trial court.

CHEW, Judge, sitting by assignment.


text:
    PENHOLLOW CUSTOM HOMES, LLC and Steven J. Penhollow, Appellants, v. Cornelius KIM and Jong Kim, Appellees.
    No. 08-08-00029-CV.
    Court of Appeals of Texas, El Paso.
    March 24, 2010.
    Rehearing Overruled July 7, 2010.

      J. Stephen Hunnicutt, Dallas, TX, for Appellants.
    J.B. Peacock Jr., Dallas, TX, for Appel-lees.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Penhollow Custom Homes, LLC and Steven J. Penhollow appeal from a judgment entered in favor of Cornelius and Jong Kim. For the reasons that follow, we affirm in part and reverse in part.

FACTUAL SUMMARY

Penhollow Custom Homes (PCH) is a custom home builder. Steven Penhollow is the owner and sole employee of PCH. He is not paid a salary by the corporation but takes an owner’s draw from the profits. On May 8, 2000, the Kims entered into a contract with PCH for the construction of a new home. At the closing on December 5, 2000, PCH provided the Kims with a limited warranty and assurance that there would be no construction defects, but if there were any defects, they would be fixed at PCH’s expense. The Kims moved into the home and soon began to notice problems with the construction, including a leaky roof, slow drains, incomplete interior trim, and a drainage problem in the yard. They contacted PCH regarding their complaints and a dispute arose as to which items PCH had a duty to repair. Some items were repaired but others were not.

The Kims filed suit against PCH and Penhollow seeking equitable rescission, or alternatively, damages for breach of contract, breach of warranty, and unjust enrichment. In a subsequent amendment, the Kims dismissed the equitable rescission claim. The amended petition included claims for breach of contract, violation of the Residential Construction Liability Act, breach of warranty, fraud, conspiracy, alter ego, and unjust enrichment. The jury determined that PCH and Penhollow breached the contract with the Kims, failed to make a timely settlement offer, and breached the warranty. It also found that Penhollow is the alter ego of PCH. The jury found against the Kims on the statutory fraud claim. The trial court entered judgment on the jury’s verdict and awarded damages in the amount of $46,100, attorney’s fees in the amount of $60,971.75, and prejudgment interest.

RULE 11 AGREEMENT

In their first issue on appeal, Appellants argue that their acceptance on the record of the Kim’s request to rescind the contract created a binding Rule 11 agreement which should have been enforced by the trial court. Rule 11 provides that: “Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” Tex.R.Civ.P. 11. To comply with Rule 11, the agreement must comply with general contract principles, including a valid offer and acceptance. Two Brothers Trucking v. Modine Manufacturing Company, No. 13-07-00427-CV, 2009 WL 2192682 at *2 (Tex.App.-Corpus Christi, July 23, 2009, no pet.); Alcantar v. Oklahoma National Bank, 47 S.W.3d 815, 819 (Tex.App.-Fort Worth 2001, no pet.). The made-in-open-court exception to Rule 11 requires a statement into the record of the terms of the agreement and the agreement of the parties or their counsel to be bound by it affirmatively stated on the record. Two Brothers Trucking, 2009 WL 2192682 at *2, citing Anderegg v. High Standard, Inc., 825 F.2d 77, 81 (5th Cir.1987).

Appellants assert that a Rule 11 agreement was entered into at a hearing on June 7, 2006 when their attorney stated on the record:

Judge, the plaintiffs have come forth with pleadings, I guess it is, have requested an equitable decision whereby we buy back the house minus the fair rent and property. We will do that. We will request judgment right now for that, the house price of $315,000. We will buy it back for that price, plus all the property taxes that they’ve paid to date. Not property taxes that would be due later, but property taxes they’ve paid to date minus the fair market rental value of that home for the time they’ve been in the house. They’ve been in the house about 69 months now. Both sides eat their attorney’s fees and costs. Fair market rental value can be determined by three appraisers. Take the average of three appraisers and use that as a loan value. Short circuits the whole trial.

The Kims’ attorney expressed surprise at this offer and stated, in essence, that it was unacceptable. He informed the court that attorneys’ fees were an issue and the Kims wanted to go to trial and make an election after seeing the jury’s verdict. The court concluded the hearing by noting they were perhaps “getting close to being able to work out a settlement with this offer, and as you know, juries can be unpredictable.”

Appellants cite no authority, and we are aware of none, for their assertion that an offer to confess judgment on one of the Kims’ causes of action creates a Rule 11 agreement. We further find that the parties did not enter into a valid Rule 11 agreement because the Kims’ attorney refused to accept the offer on the record. Even if it could be said there was an agreement, Appellants never requested that the trial court enforce it. Consequently, their complaint regarding the court’s failure to enforce the Rule 11 agreement is waived. Tex.R.App.P. 33.1; see Rammah v. Abdeljaber, 235 S.W.3d 269, 273 (Tex.App.-Dallas 2007, no pet.)(appellant waived his claim that trial court erred in refusing to enforce Rule 11 agreement where appellant failed to move the trial court to enforce the agreement with sufficient specificity and failed to obtain a ruling). We overrule Issue One.

ALTER EGO FINDING

In their second issue, Appellants challenge the legal sufficiency of the evidence to support the jury’s finding that Penhol-low is the alter ego of PCH. Appellants argue that there is no evidence to prove that Penhollow used any corporate funds to purchase personal items or to pay personal debts.

In a legal sufficiency review, we credit evidence favorable to the finding if a reasonable fact-finder could, disregard contrary evidence unless a reasonable fact-finder could not, and reverse the fact-finder’s determination only if the evidence presented would not enable a reasonable and fair-minded person to reach the judgment under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). We will sustain the legal-sufficiency challenge if the record reveals: (1) the complete absence of evidence supporting the finding; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to support the finding; (3) the evidence offered to prove the finding is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of the finding. Id. at 810-11. More than a scintilla of evidence exists when the evidence presented rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004).

A corporation is a separate legal entity from its shareholders, officers, and directors. Sparks v. Booth, 232 S.W.3d 853, 868 (Tex.App.-Dallas 2007, no pet.). A bedrock principle of corporate law is that an individual can incorporate a business and thereby normally shield himself from personal liability for the corporation’s contractual obligations. Willis v. Donnelly, 199 S.W.3d 262, 271 (Tex.2006); Sparks, 232 S.W.3d at 868. Under Section 21.223(a)(2) of the Texas Business Organizations Code, a shareholder may not be held liable to the corporation or its obli-gees with respect to any contractual obligation of the corporation or any matter relating to or arising from the obligation on the basis that the shareholder is or was the alter ego of the corporation or on the basis of actual or constructive fraud, a sham to perpetrate a fraud, or other similar theory. Tex.Bus. Orgs.Code Ann. § 21.223(a)(2)(Vernon Pamph.2009); Willis, 199 S.W.3d at 272. The liability of a shareholder for a contractual corporate obligation “is exclusive and preempts any other liability imposed for that obligation under common law or otherwise.” Tex.Bus.Orgs.Code Ann. § 21.224; Willis, 199 S.W.3d at 272. Subsection (b) provides that the statutory limitation on a shareholder’s liability under subsection (a) does not protect the shareholder if the obligee demonstrates the shareholder caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the shareholder. Tex.Bus. Orgs.Code Ann. § 21.223(b); Willis, 199 S.W.3d at 272. This proposition generally is referred to as piercing the corporate veil. Sparks, 232 S.W.3d at 868, citing Castleberry v. Branscum, 721 S.W.2d 270, 278 (Tex.1986)(superseded in part by Tex.Bus.Orgs.Code Ann. § 21.223(a)(2)).

The alter ego doctrine is one theory used to pierce the corporate veil. Sparks, 232 S.W.3d at 868, citing Castleberry, 721 S.W.2d at 272. The theory may be applied if there is a unity between the corporation and the individual to the extent that the corporation’s separateness has ceased, and holding only the corporation liable would be unjust. Id. As proof of alter ego, a court may consider: (1) the payment of alleged corporate debts with personal checks or other commingling of funds; (2) representations that the individual will financially back the corporation; (3) the diversion of company profits to the individual for his personal use; (4) inadequate capitalization; and (5) other failure to keep corporate and personal assets separate. Mancorp Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990); Sparks, 232 S.W.3d at 868; Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 13 (Tex.App.-San Antonio 2004, pet. denied). Under Section 21.223(a)(3), the failure of a corporation to observe any corporate formality is no longer a factor in considering whether alter ego exists. Tex.Bus.Orgs.Code Ann. § 21.223(a)(3); Sparks, 232 S.W.3d at 868-69; Howell v. Hilton Hotels Corp., 84 S.W.3d 708, 714 (Tex.App.-Houston [1st Dist.] 2002, pet. denied)(op. on reh’g). An individual’s standing as an officer, director, or majority shareholder of an entity in and of itself is insufficient to support a finding of alter ego. Sparks, 232 S.W.3d at 869; Corone, 138 S.W.3d at 13; Goldstein v. Mortenson, 113 S.W.3d 769, 781 (Tex.App.Austin 2003, no pet.).

In Question No. 7, the jury was asked whether Penhollow was responsible for the conduct of PCH. Consistent with the above authority, the trial court instructed the jury that Penhollow was responsible for the conduct of PCH if:

Penhollow Custom Homes, LLC was organized and operated as a mere tool or business conduit of Steven Penhollow; there was such unity between Penhollow Custom Homes, LLC and Steven Pen-hollow that the separateness of Penhol-low Custom Homes, LLC had ceased and holding only Penhollow Custom Homes, LLC responsible would result in injustice; and Steven Penhollow caused Penhollow Custom Homes, LLC to be used for the purpose of perpetuating and did perpetuate an actual fraud on Plaintiffs primarily for the direct personal benefit of Steven Penhollow.
In deciding whether there was such unity between Penhollow Custom Homes, LLC and Steven Penhollow that the separateness of Penhollow Custom Homes, LLC had ceased, you are to consider the total dealings of Penhollow Custom Homes, LLC and Steven Pen-hollow, including:
1. the degree to which Penhollow Custom Homes, LLC’s property had been kept separate from that of Steven Penhollow;
2. the amount of financial interest, ownership, and control Steven Penhol-low maintained over Penhollow Custom Homes, LLC; and
3. whether Penhollow Custom Homes, LLC had been used for personal purposes of Steven Penhollow.

In their briefing, the Kims skip over significant portions of the charge. They argue that “[t]his instruction supports a finding of alter ego on the basis that (1) it would be an injustice to Appel-lees if Penhollow was not responsible for PCH, and, that (2) Penhollow caused PCH to be used for the purpose of perpetuating [sic] and did perpetuate [sic] an actual fraud on Appellees primarily for his direct personal benefit.” But a finding of alter ego also requires evidence that PCH was organized and operated as a mere tool or business conduit of Penhollow and that there was such unity between PCH and Penhollow that the separateness of PCH had ceased. The Kims cite to the following evidence as supporting the jury’s determination:

• Penhollow testified that he is the owner and sole employee of PCH.
• Penhollow also referred to himself as being a “self employed” home builder.
• Penhollow does not withhold for federal income tax or medicare tax purposes.
• Penhollow is not paid a salary by the corporation but instead takes an owner’s draw from the profits.
• Penhollow draws all of the money down.

From this evidence, the jury could have inferred that Steven Penhollow, as the sole shareholder and owner of PCH, had complete control over the corporation. But mere control and ownership of all the stock of a corporation is not a sufficient basis for ignoring the corporate fiction. Grain Dealers Mutual Insurance Company v. McKee, 943 S.W.2d 455, 458 (Tex.1997). The record belies the assertion in the Kims’ briefing that Penhollow regularly drew down all of the profits. There is no evidence that PCH was organized and operated as a mere tool or business conduit of Penhollow. Nor is there any evidence that PCH’s property had not been kept separate from Penhollow’s personal property or that PCH had been used for his personal purposes. In short, we are left with the Kims reliance upon Penhol-low’s practice of taking an owner’s draw [which would require the payment of quarterly estimates to the Internal Revenue Service] rather than a salary [which would be subject to withholding for federal income tax and medicare tax purposes]. Yet the Kims offer no authority that a shareholder who chooses an owner’s draw as opposed to a salary must suffer personal liability. Indeed, a sister court has rejected such an argument. Morris v. Powell, 150 S.W.3d 212, 220 (Tex.App.-San Antonio 2004, no pet.)(testimony that husband and wife corporate officers took draws rather than salary on the basis of “seeing our financial circumstances, what we need money for and what our accountant tells us we should do” did not demonstrate such unity between the couple and the corporate entity that the separateness of the corporation had ceased to exist).

Here, as in Morris, the alter ego finding cannot stand. Accordingly, we need not address Appellants’ arguments related to the sufficiency of the evidence to prove that Penhollow used PCH for the purpose of perpetrating fraud and that he perpetrated actual fraud on the Kims primarily for his direct personal benefit. We sustain Issue Two.

ATTORNEYS’ FEES

In Issue Three, Appellants challenge the attorneys’ fees award on the ground that the Kims failed to segregate the recoverable fees from the non-recoverable. A party seeking attorneys’ fees must show that the fees were incurred on a claim that allows recovery of such fees, and thus is ordinarily required to segregate fees incurred on claims allowing recovery of fees from those that do not. Stewart Title Guaranty Company v. Aiello, 941 S.W.2d 68, 73 (Tex.1997); Adams v. McFadden, 296 S.W.3d 743, 759 (Tex.App.-El Paso 2009, pet. granted, judgment vacated, and remanded by agreement). There is an exception to this rule. Adams, 296 S.W.3d at 759. When discrete legal services advance both recoverable claims and unrecoverable claims, attorneys are not required to segregate fees to recover the total amount covering all claims. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex.2006); Adams, 296 S.W.3d at 759; CA Partners v. Spears, 274 S.W.3d 51, 81 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). In Tony Gullo Motors, the Supreme Court eliminated the exception to the segregation requirement for fees incurred solely on a separate but intertwined claim. Tony Gullo Motors, 212 S.W.3d at 313-14. If any attorneys’ fees relate solely to a claim for which such fees are unrecoverable, the claimant must segregate recoverable from unrecoverable fees. Id. at 313. This standard does not require attorneys to keep separate time records when drafting the breach of contract and fraud paragraphs of a petition. See id. at 314. The amount of recoverable attorneys’ fees is sufficiently segregated if, for example, the attorney testifies that a given percentage of the drafting time would have been necessary even if the claim for which attorneys’ fees are recoverable had not been asserted. Id. at 314; see CA Partners, 274 S.W.3d at 82; 7979 Airport Garage, L.L.C. v. Dollar Rent A Car Systems, Inc., 245 S.W.3d 488, 509 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). The need to segregate attorneys’ fees is a question of law, while the extent to which claims can or cannot be segregated is a mixed question of law and fact. Tony Gullo Motors, 212 S.W.3d at 312-13; CA Partners, 274 S.W.3d at 82.

By agreement of the parties, the trial court determined the attorneys’ fees issue. The Kims’ attorney, Jack B. Peacock, Jr., testified that he agreed to represent the Kims on a fixed hourly basis at the initial rate of $275 per hour but he reduced the hourly rate to $250 when the case became more complicated and litigious. Peacock recognized that the case involved both claims for which attorneys’ fees were recoverable and claims for which they were not. In his billing statement admitted into evidence as Plaintiffs Exhibit 42, Peacock had reduced certain areas by a percentage which represented the amount of time he worked on a non-recoverable claim only. Peacock went through Plaintiffs Exhibit 42 and pointed out each area he had so reduced. Plaintiffs Exhibit 42 showed that, at the time the Kims received the jury verdict in their favor, they had incurred attorneys’ fees in the amount of $58,827.75. At the time of the hearing on attorney’s fees, the Kims had paid $52,272.75. Peacock stressed that the amount reflected in Plaintiffs Exhibit 42 did not represent the total amount of attorney’s fees incurred by the Kims because of the amounts deducted for non-recoverable fees. Peacock estimated that the post-trial matters would require an additional sixteen hours of time, or $4,000, so the total fees through the post-trial motions would be $62,827.75. Appellants cross-examined Peacock but did not present any controverting evidence. Counsel’s testimony established that the attorney’s fees are sufficiently segregated. See Tony Gullo Motors, 212 S.W.3d at 314; see CA Partners, 274 S.W.3d at 82; 7979 Airport Garage, 245 S.W.3d at 509.

Appellants next argue that the attorneys’ fee award should be reduced because the Kims did not recover all of the damages sought in their petition, and therefore, they did not substantially prevail on their breach of contract action. Section 38.001 of the Civil Practice and Remedies Code provides that a party in a breach of contract action may recover reasonable attorneys’ fees. Tex.Civ.Prac & Rem.Code Ann. § 38.001(8)(Vernon 2008). To recover fees under Section 38.001, a party must (1) prevail on a cause of action for which fees are recoverable, and (2) recover damages. Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc., 134 S.W.3d 195, 201 (Tex.2004). The jury found in favor of the Kims on the breach of contract action and awarded damages. The Kims are not required to “substantially” prevail on their breach of contract cause of action in order to recover attorney’s fees.

Citing Panizo v. Young Men’s Christian Association of Greater Houston Area, 938 S.W.2d 163 (Tex.App.-Houston [1st Dist.] 1996, no writ), Appellants also argue that the amount of attorneys’ fees should be reduced because the Kims only prevailed on the breach of contract cause of action and did not prevail on the fraud claim. In Panizo, the court of appeals affirmed the trial court’s ruling that the plaintiff, who brought breach of contract and fraud claims against the defendant, had the duty to segregate her attorney’s fees because the claims were not inextricably intertwined. Panizo, 938 S.W.2d at 169-70. The court also rejected the plaintiff’s argument that she did not have to segregate because the fraud claim arose from the breach of contract claim. Id. at 170. The plaintiff relied on two cases which held that, when a party proves fraud arising from a breach of contract, the party may recover attorney’s fees for the fraud. Id. Panizo is inapplicable because it involved the separate-but-intertwined-claim test eliminated by Tony Gullo Motors. Under that case, the total amount of the attorney’s fees covering all claims is recoverable when discrete legal services advance both recoverable claims and unrecoverable claims. See Tony Gullo Motors, 212 S.W.3d at 313.

Finally, Appellants argue that the Kims failed to prove that a fee agreement existed or that the fees had actually been paid. This argument is contrary to the record. Peacock expressly testified that he had a fee agreement with the Kims and they had paid a substantial portion of the fees incurred to that point in the trial. Issue Three is overruled.

MITIGATION

In Issue Four, Appellants contend that the trial court erred by failing to instruct the jury on mitigation of damages. Appellants have not cited any authority in support of this argument in their brief or reply brief nor have they provided any substantive analysis of the issue. The Rules of Appellate Procedure require an appellant’s brief to contain a clear and concise argument for the contentions made with appropriate citations to authorities and the record. Tex.R.App.P. 38.1(i). Failure to cite applicable authority or advance any substantive analysis waives an issue on appeal. Torres v. GSC Enterprises, Inc., 242 S.W.3d 553, 559 (Tex.App.-El Paso 2007, no pet.); Velasquez v. Waste Connections, Inc., 169 S.W.3d 432, 436 (Tex.App.-El Paso 2005, no pet.). We overrule Issue Four.

INCIDENTAL AND CONSEQUENTIAL DAMAGES AWARD

In Issue Five, Appellants raise two challenges to the jury’s award of damages for the time expended by Mr. Kim in attempting to make repairs to the property. First, they allege there is no statutory basis for the award. Second, they argue that Mr. Kim’s “fees” were not shown to be reasonable and necessary.

With respect to the first argument, the Kims respond that Appellants failed to preserve it. We agree. Appellants did not object to the damages issue submitted by the trial court which included three types of damages: reasonable and necessary cost to repair the property, the reasonable value of the time spent by the Kims correcting or attempting to correct the problems with the property, and reasonable and necessary engineering and consulting fees. Consequently, Appellants’ complaint that the trial court submitted an improper measure of damages to the jury is waived. See Tex.R.Civ.P. 274 (providing that a party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection; any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections); Equistar Chemicals, L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex.2007)(argument that charge submitted improper measure of damages was waived by failure to present to trial court).

Citing Ebby Holliday Real Estate, Inc. v. Murnan, 916 S.W.2d 585 (Tex.App.Fort Worth 1996, writ denied), Appellants also argue that Mr. Kim’s “fees” were not shown to be reasonable and necessary. We have construed Appellants’ second argument to raise a challenge to the legal sufficiency of the evidence supporting this portion of the damages award. In Ebby Halliday, the appellant challenged the jury’s finding regarding the “reasonable and necessary” cost of past repairs incurred by the appellees. Id. at 588. The Fort Worth Court of Appeals noted that a claimant is not required to use the words “reasonable” and “necessary”, but is only required only to present sufficient evidence to justify to justify a jury’s finding that the costs were reasonable and the repairs necessary. Mr. Kim testified that as a result of the leaky roof, water came into the master bedroom and the guest bedroom. Water also leaked into the frame of a window. Mr. Kim spent three to four days attempting to find and repair the leaks. He owns an auto body repair shop and his hourly rate is $65 per hour. We conclude that the evidence is legally sufficient to support the jury’s damages award in the amount of $1,850 for the reasonable value of the time spent by the Kims repairing or attempting to repair the property. Issue Five is overruled.

ARBITRATION

In their final issue, Appellants complain that the trial court erred by failing to order the parties to arbitration. The Kims respond that Appellants waived the issue by not obtaining a ruling from the trial court on their motion to compel arbitration. Appellants first filed a motion to compel arbitration on December 6, 2005. They filed an amended motion on December 22, 2005. Appellants allege that they raised the arbitration issue with the trial court at a docket call on January 9, 2006 and the court refused to order arbitration, but they do not provide a record citation. As a prerequisite to presenting a complaint for appellate review, the record must show that the party raised the complaint with the trial court by a timely and specific request, objection, or motion. Tex. R.App.P. 33.1(a)(1). Further, the record must reflect that the trial court ruled on the request, objection, or motion, either expressly or implicitly, or the trial court refused to rule and the complaining party objected to the refusal. Tex.R.App.P. 33.1(a)(2). While Appellants filed a motion to compel arbitration, the record does not show that Appellants obtained a hearing on the motion or that the trial court denied it. Consequently, the issue is waived. See Williams Industries, Inc. v. Fry’s Electronics, Inc., No. 01-02-00735-CV, 2003 WL 21357441 at *1-2 (Tex.App.-Houston [1 Dist.] 2003, no pet.) (holding that appellant did not preserve issue regarding court’s failure to refer fraudulent transfer claim to ongoing arbitration proceeding, where record did not reflect ruling on motion to compel arbitration or court’s refusal to rule). Issue Six is overruled.

Having found the evidence legally insufficient to support the alter ego finding, we reverse that portion of the judgment imposing individual liability on Penhollow and render a take-nothing judgment in his favor. We affirm the judgment against Penhollow Custom Homes, LLC.

      . The RCLA is found in Chapter 27 of the Texas Property Code. TEX.PROP.CODE ANN. §§ 27.001-.007 (Vernon 2000 & Vernon Supp.2009). The RCLA modifies causes of action for damages resulting from construction defects in residences by limiting and controlling causes of action that otherwise exist. See Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 404 (Tex.App.-Dallas 2006, no pet.). The RCLA does not create a cause of action, but provides defenses, limitations on damages, and determines the standard of causation. Id. at 404. The limitations on damages do not apply if the contractor fails to make a reasonable offer of settlement or repair. See TEX.PROP.CODE ANN. § 27.004(f) (Vernon Supp. 2009).

      . The Kims withdrew the unjust enrichment cause of action at trial.

      . In their brief, Appellants purport to challenge both the legal and factual sufficiency of the evidence. They do not include the standards of review for either sufficiency challenge and their brief contains no argument specifically pertaining to the factual sufficiency issue. Further, their argument is directed at the complete absence of evidence to prove alter ego and Appellants request at the conclusion of the issue that the judgment be reversed as to Penhollow. The prayer requests only reversal of the trial court’s judgment and does not request that the cause be remanded for a new trial. Under the circumstances, Appellants have waived the factual sufficiency argument by failing to brief it. See TEX.R.APP.P. 38.1 (i); Public, Inc. v. County of Galveston, 264 S.W.3d 338, 341 (Tex.App.-Houston [14th Dist.] 2008, no pet.)(appellant waived factual sufficiency issue where it failed to argue evidence was factually insufficient in the "Argument" section of its brief, although brief provided the standard of review for a factual sufficiency review); see also Varkonyi v. State, 276 S.W.3d 27, 36 n. 5 (Tex.App.-El Paso 2008, pet. ref'd)(on appeal from conviction for obscenity, court of appeals would construe defendant’s brief as raising only a legal sufficiency argument; although defendant alleged that the evidence was legally and factually insufficient to prove that the material was obscene, the brief did not include an argument demonstrating how the evidence was factually insufficient, and in his prayer, defendant only requested reversal of the judgment of the trial court and a judgment of acquittal).

      . Schindler v. Austwell Farmers Coop., 829 S.W.2d 283, 288 (Tex.App.-Corpus Christi), aff'd as modified, 841 S.W.2d 853 (Tex.1992); Gill Savings Association v. Chair King, Inc., 783 S.W.2d 674, 680 (Tex.App.-Houston [14th Dist.] 1989), aff’d in part and modified in part, 797 S.W.2d 31 (Tex.1990).

      . The jury awarded $40,000 for cost to repair the property, $1,850 for the reasonable value of the time spent by the Kims attempting to repair the property, and $4,250 for engineering and consulting fees.