author: ANN CRAWFORD McCLURE, Justice.

text:
    Edmund FORESTER, Appellant, v. EL PASO ELECTRIC COMPANY, Appellee.
    No. 08-09-00057-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 13, 2010.

      Mike L. Painter, Orgain, Bell & Tucker, LLP, for Appellant.
    Angela Morrow Nickey, Robles, Bracken, Coffman & Hughes, El Paso, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Edmund Forester appeals from a summary judgment granted in favor of El Paso Electric Company on a premises liability claim. For the reasons that follow, we affirm.

FACTUAL SUMMARY

On February 5, 2007, Edmund Forester ate dinner at Applebee’s Neighborhood Bar and Grill. Afterward, he began to walk back to the La Quinta Inn where he was staying overnight. La Quinta is located adjacent to, and across the parking lot, from Applebee’s. A median separates the two business. An EPEC utility platform cover is located in the median and two yellow posts are located it is bordered by two yellow posts is located in the median. While walking through the parking lot, Forester decided to cut across the median to reach his hotel because he believed it to be a direct path. With one foot in the Applebee’s parking lot, Forester stepped over the curb and onto the platform cover. The cover gave way and Forester fell back into the Applebee’s parking lot. Forester dislocated his shoulder while attempting to grab one of the yellow posts. He also suffered a fractured vertebrae and a few abrasions on his stomach and legs.

Forester sued EPEC claiming that it owed him a duty as an invitee to inspect the premises, maintain them in a reasonably safe manner, and warn him of any hazardous conditions. EPEC filed a combined traditional and no evidence motion for summary judgment alleging it conclusively proved that Forester was a trespasser, or at best a licensee, and that Forester had no evidence that EPEC was grossly negligent or that it had actual knowledge of the dangerous condition. The trial court granted summary judgment for EPEC and entered a take nothing judgment. Forester raises three issues on appeal.

SUMMARY JUDGMENT

Forester’s first two issues address the traditional summary judgment grounds. In Issue One, he contends that as an easement holder, EPEC owed him the duty of ordinary care regardless of his status at the time of injury. In Issue Two, Forester argues that should the court determine that his status at the time of his injury is determinative of the duty owed, then the evidence shows he was an invitee. In Issue Three, which addresses the no evidence summary judgment ground, Forester asserts that should it be determined that he was a licensee, then a material fact question exists with regard to EPEC’s gross negligence, or its failure to warn of the condition or make the condition reasonably safe.

Standards of Review

The standard of review for traditional summary judgment under Tex.R.Civ.P. 166a(c) is well established. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 (Tex.1985). The moving party carries the burden of showing there, is no genuine issue of material fact and it is entitled to judgment as a matter of law. Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005). Evidence favorable to the non-movant will be taken as true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic Hospital, Inc. v. Reese, 148 S.W.3d 94, 99 (Tex.2004). All reasonable inferences, including any doubts, must be resolved in favor of the non-movant. Id. A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiffs causes of action or if it conclusively establishes all elements of an affirmative defense. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002); Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). Once the defendant establishes a right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979); Scown v. Neie, 225 S.W.3d 303, 307 (Tex.App.-El Paso 2006, pet. denied).

A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard of review. Viasana v. Ward County, 296 S.W.3d 652 (Tex.App.-El Paso 2009, no pet.); Martinez v. Leeds, 218 S.W.3d 845, 848 (Tex.App.-El Paso 2007, no pet.). The party moving for no-evidence summary judgment must assert that there is no evidence of one or more essential elements of a claim or defense on which the non-movant would have the burden of proof at trial. Viasana, 296 S.W.3d at 654; Martinez, 218 S.W.3d at 848; see Tex.R.Civ.P. 166a(i). The burden then shifts to the non-movant to produce evidence raising a fact issue on the challenged elements. Viasana, 296 S.W.3d at 654; Martinez, 218 S.W.3d at 848. To raise a genuine issue of material fact, the non-movant must set forth more than a scintilla of probative evidence as to an essential element of his claim or defense. Viasana, 296 S.W.3d at 654; Martinez, 218 S.W.3d at 848.

Easement Holder

In his first issue, Forester contends that as an easement holder, EPEC owed him a duty of ordinary care regardless of his status at the time of the injury. EPEC counters that this regular negligence theory has been waived because Forester pled a premises liability case and responded to EPEC’s summary judgment motion by utilizing premises liability principles.

In his live pleadings, Forester stated a negligence cause of action based on premises liability. Asserting that he was an invitee at the time of his injury, Forester alleged that EPEC “had the duty to inspect the premises and maintain them in a reasonably safe manner, and to warn of any hazardous conditions.” Forester referred to the defendants as the “owner, occupier, and/or possessor” of the premises. He did not assert that EPEC was an easement holder. We construe pleadings liberally in favor of the pleader when special exceptions have not been filed. Horizon/CMS Healthcare Corporation v. Auld, 34 S.W.3d 887, 896 (Tex.2000). Liberal construction does not mean that we imply claims that are not alleged. Toles v. Toles, 113 S.W.3d 899, 911 (Tex.App.-Dallas 2003, no pet.). In determining whether a cause of action has been pled, the court must be able from an examination of the plaintiffs pleadings alone to ascertain with reasonable certainty the elements of a cause of action and the relief sought with sufficient particularity upon which a judgment may be based. Coffey v. Johnson, 142 S.W.3d 414, 417 (Tex.App.-Eastland 2004, pet. denied), citing Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex.1979). After reviewing the record, we are unable to determine with reasonable certainty that Forester’s pleadings include this claim. Further, Forester did not raise the issue in his summary judgment response or present any summary judgment evidence related to his claim on appeal that EPEC is an easement holder. See McConnell v. Southside Independent School District, 858 S.W.2d 337, 343 (Tex.1993). Instead he utilized premises liability elements and principles and never asserted that EPEC, as an easement holder, owed him a different duty of care. As the non-movant, Forester must have expressly presented to the trial court, by written answer or response, any issues defeating EPEC’s entitlement to judgment as a matter of law. McConnell, 858 S.W.2d at 343; Tex.R.Civ.P. 166a(c). Accordingly, we overrule Forester’s first issue.

Forester’s Status

In Issue Two, Forester contends the trial court erred by concluding as a matter of law that he was a licensee rather than an invitee. EPEC responds that the summary judgment evidence conclusively negated the mutual benefit aspect necessary to establish invitee status. In a premises liability action, the duty owed by a premises owner is determined by the status of the complaining party at the time and place of injury. Greater Houston, Transportation Company v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). An invitee is a person who enters the premises of another at the express or implied invitation of the owner or occupier for their mutual benefit. Wong v. Tenet Hospitals, Ltd,., 181 S.W.3d 532, 537 (Tex.App.-El Paso 2005, no pet.); Brand,rick v. Wal-Mart Stores, Inc., 250 S.W.3d 471, 476 (Tex.App.-El Paso 2008, no pet.). The owner or occupier owes an invitee the duty to keep the property safe and must use reasonable care to protect the invitee from reasonably foreseeable injuries. Wong, 181 S.W.3d at 537. In the absence of a relationship that inures to the mutual benefit of the entrant and the owner, an entrant is considered a licensee. Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 105 (Tex.App.-El Paso 1997, pet. denied).

Taking as true the summary judgment evidence favorable to Forester and resolving all reasonable inferences and any doubts in his favor, the evidence conclusively established that Forester cut across the parking lot and stepped on the utility platform cover for his own convenience and benefit. He had not been a customer of EPEC, he was not given permission by EPEC to use the path, and he did not use the path as a result of any direction or coercion by EPEC. Because Forester did not present summary judgment evidence that EPEC derived any benefit from Forester cutting across the median, he failed to create an issue of fact which would preclude the granting of summary judgment. And because EPEC conclusively negated the mutual benefit element necessary to establish Forester’s status as an invitee, the trial court did not err by concluding that Forester held the status of a licensee at the time and place of his injury. See Wong, 181 S.W.3d at 537. We overrule Issue Two.

Gross Negligence

In his final issue, Forester maintains that the trial court erred by granting a no evidence summary judgment with respect to his gross negligence claim. The test for gross negligence contains both an objective and a subjective component. Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.2001); Universal Services Company v. Ung, 904 S.W.2d 638, 641 (Tex.1995). Gross negligence means an act or omission: (1) which when viewed objectively from the actor’s standpoint at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. Tex.Civ.Prac. & Rem.Code Ann. § 41.001(ll)(Vernon 2008); see Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 246 (Tex.1999); Transportation Insurance Company v. Moriel, 879 S.W.2d 10, 23 (Tex.1994). Evidence of simple negligence is not enough to prove either the objective or subjective elements of gross negligence. Universal Services, 904 S.W.2d at 641. The first element, “extreme risk,” means not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff. Mobil Oil Corporation v. Ellender, 968 S.W.2d 917, 921 (Tex.1998); Universal Services, 904 S.W.2d at 641. The second element, “actual awareness,” means that the defendant knew about the peril, but its acts or omissions demonstrated that it did not care. Ellender, 968 S.W.2d at 921. Circumstantial evidence is sufficient to prove either element. Id.

Regarding the extreme risk element, Forester does not point to any evidence showing that the condition of the platform cover posed the likelihood of serious injury to him as opposed to a remote possibility or even a high probability of minor harm. Instead, Forester relies on the testimony of an expert witness that the platform was unstable due to improper design and installation and EPEC failed to inspect or maintain it. The witness did not testify that there was a likelihood of serious injury to Forester nor did he testify to facts from which it could be inferred that such a likelihood existed. Consequently, Forester failed to cany his burden under Rule 166a(i).

Turning to the second element of gross negligence, we must determine whether Forester produced more then a scintilla of evidence establishing that EPEC knew about the peril, but its acts or omissions demonstrated it did not care. Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 822, 326 (Tex.1993). Forester presented evidence to show that EPEC installed the platform in 1995 and that it was responsible for its maintenance and inspection. After the installation of the platform, there were no inspections, repairs, or modifications of the box or lid until EPEC was notified that the cover was loose. None of this evidence establishes that EPEC knew of the danger. Forester also relied on evidence that another individual, Arturo Almanzar, was injured on the same platform two days earlier. But Almanzar filed an accident report at Applebee’s, not with EPEC. EPEC did not receive notification about the condition of the platform until after Forester’s injury. We conclude that Forester failed to present more than a scintilla of probative evidence to raise a genuine issue of material fact as to whether EPEC was actually aware of the risk caused by the condition of the utility platform cover. Issue Three is overruled. We affirm the summary judgment granted.

      . Forester also sued several Applebee's entities but those defendants are not part of this appeal as the trial court severed Forester's claims against EPEC.


source: Caselaw Access Project

author: GUADALUPE RIVERA, Justice.

license: Public Domain

text:
    Abraham CAVAZOS, Appellant, v. The STATE of Texas, Appellee.
    No. 08-08-00303-CR.
    Court of Appeals of Texas, El Paso.
    Nov. 3, 2010.

      Cori A. Harbour, The Harbour Law Firm, P.C., El Paso, TX, for Appellant.
    Jaime E. Esparza, District Attorney, El Paso, TX, for Appellee.
    Before McCLURE, J., RIVERA, J., and ANTCLIFF, Judge.
   OPINION

GUADALUPE RIVERA, Justice.

A jury convicted Appellant, Abraham Cavazos, of murder and assessed his sentence at twenty-eight years’ imprisonment and a $5,000 fíne. In two issues on appeal, Appellant complains of the trial court’s failure to sustain his objection to the prosecutor’s closing argument and to include his requested instruction for manslaughter in the jury charge. We affirm.

BACKGROUND

On December 11, 2004, Bernice Gonzalez hosted a birthday party for Camille Martinez at her parent’s home in El Paso. Samuel Beltran, who was in Bernice’s English class, arrived around 8:30 p.m. accompanied by some friends, including Rogelio “Roy” Terrazas. Around 11 p.m., Appellant arrived at the party, wearing a pink and white striped shirt. Camille previously met Appellant at a nightclub.

As the party continued into the wee hours of the morning, Rogelio and his friends made comments towards Appellant, teasing him about the color of his shirt and calling him a “faggot.” At one point, Rogelio told Appellant that he would show him something pink and exposed his penis. Rogelio then threw his plastic beer cup at Camille and Appellant. When Camille and Appellant got up from the couch, Rogelio began to move away. As more words were exchanged between Rogelio and Appellant, Appellant stepped in front of Camille and shot Rogelio twice in the chest. Rogelio stumbled and fell to the floor. Appellant left with his friends. Rogelio died at the scene.

Appellant later phoned Leonor Salais and told her that he got drunk at a party. He further told her that he shot someone after that person provoked him. However, Appellant told Leonor that he did not mean to shoot anyone. Appellant then fled to Mexico but was extradited back three years later to stand trial.

Appellant was indicted for murder in two paragraphs. The first alleged that Appellant intentionally and knowingly caused the death of Rogelio by shooting him with a firearm, and the second alleged that Appellant, with intent to cause serious bodily injury to Rogelio, committed an act clearly dangerous to human life by shooting Rogelio with a firearm, which caused his death. At the conclusion of the State’s case, the trial court granted Appellant’s motion for directed verdict as to the first paragraph. Thus, the only issue before the jury was whether Appellant committed murder as alleged in the second paragraph.

DISCUSSION

Appellant raises two issues for our review. The first alleges error in the prosecutor’s closing argument and the second faults the trial court for failing to include a manslaughter instruction in the court’s charge. We find no merit in either issue.

Closing Argument

The facts giving rise to Appellant’s first issue flow from the following colloquy occurring during the prosecutor’s closing argument:

[Prosecutor]: You, as the triers of the fact, you weigh the evidence. It’s completely up to you. It is in your hands. This life was taken and it wasn’t necessary. I heard nothing in this courtroom to justify the actions of Mr. Cavazos and don’t believe—
[Appellant]: Your Honor, I’m going to object. That’s a comment on his failure to testify. And I object to that. We don’t have any burden.
[Court]: Ladies and gentleman of the jury, as I mentioned before the defense has no burden whatsoever and they don’t have to put on evidence whatsoever. And you’re so instructed on the jury charge.
[Appellant]: Your Honor, it’s necessary that I move for a mistrial at this point.
[Court]: I’ll overrule the request.

According to Appellant, the trial court erred by overruling his objection to the prosecutor’s statement, “I heard nothing in this courtroom to justify the actions of Mr. Cavazos,” which he contends was a comment on his failure to testify at trial. However, nothing in the record reflects that the trial court overruled his objection to the prosecutor’s statement. Rather, the trial court simply gave an instruction to the jury. This does not equate to an adverse ruling on the objection. See Mayberry v. State, 532 S.W.2d 80, 84 (Tex.Crim.App.1975) (trial court’s response to objection that the “[j]ury will recall the evidence” was not an adverse ruling). The only adverse ruling was the trial court’s denial of Appellant’s motion for mistrial. Accordingly, the proper issue is not whether the trial court erred by overruling Appellant’s objection to the prosecutor’s comment but rather, whether the refusal to grant the mistrial was an abuse of discretion. See Hawkins v. State, 135 S.W.3d 72, 77-78 (Tex.Crim.App.2004) (holding that when the trial court sustains an objection and instructs the jury to disregard but denies a motion for mistrial, the issue is whether the trial court abused its discretion by denying the mistrial).

Applicable Law

A mistrial is an extreme remedy for conduct that is so prejudicial that expenditure of further time and expense would be wasteful and futile. Hawkins, 135 S.W.3d at 77. Only in dire circumstances, where the prejudice is incurable, will a mistrial be required. Id. Therefore, in reviewing a trial court’s denial of a motion for mistrial, we balance three factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the trial judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Id.; Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh’g); Newby v. State, 252 S.W.3d 431, 438 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd).

Severity of the Misconduct

The federal and state constitutions guarantee an accused the right not to testify at his trial. See U.S. CONST, amend. V; Tex. Const, art. I, § 10. Therefore, a prosecutor may not comment on the accused’s failure to testify during argument. Cruz v. State, 225 S.W.3d 546, 548 (Tex.Crim.App.2007). In determining whether a prosecutor’s remark amounts to such an impermissible comment, “the offending language must be viewed from the jury’s standpoint and the implication that the comment referred to the [accused’s] failure to testify must be clear.” Busta-mante v. State, 48 S.W.3d 761, 765 (Tex. Crim.App.2001). As noted by the Court of Criminal Appeals:

It is not sufficient that the language might be construed as an implied or indirect allusion. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character.

Cruz, 225 S.W.3d at 548 (quoting Bustamante, 48 S.W.3d at 765).

Here, we do not find the prosecutor’s comment directed at Appellant’s failure to testify; rather, we believe the prosecutor was simply referring to the testimonies given by the four witnesses to the murder and the events leading up to the crime. Indeed, Camille testified to the teasing, the confrontation, the killing, and then Appellant’s flight. Samuel testified that Rogelio blew a kiss to Camille that led to an exchange of words between Appellant and Rogelio, and after Rogelio threw the cup of beer, Samuel stated that Appellant got mad, declared, “Don’t you know I’m a fucking carnal,” and pulled out a gun and shot Rogelio twice. Bernice stated that she heard gunshots while in the bathroom, and upon learning that Rogelio was shot, she called 911 and then performed CPR on him. Roger testified that he ran out of the bathroom upon hearing two gunshots, saw Appellant with the gun in his hand, and asked what happened, to which Appellant replied, “I got this fool.”

From this recitation of the events, it is reasonable to infer that the prosecutor was merely referring to the testimony presented by these four witnesses, that is, that them testimony did not in any manner suggest that Appellant had any justification for shooting an unarmed victim, who merely verbally teased him. See Tex. Penal Code Ann. § 9.31(b)(1) (Vernon Supp. 2010) (the use of force is not justified in response to verbal provocation alone). Indeed, the next statement made by the prosecutor was “[k]eep your focus on the testimony that you heard from those witnesses at the party....” Therefore, as seen from the jury’s standpoint, we do not believe the jury would have thought the prosecutor’s language was manifestly intended to be, or of such character that they would naturally and necessarily consider it to be, a comment on Appellant’s failure to testify. See Meridyth v. State, 163 S.W.3d 305, 311 (Tex.App.-El Paso 2005, no pet.) (finding prosecutor’s argument that “[t]here has been no controverting evidence that the cocaine ... was found in defendant’s hat brim. None whatsoever. Nobody got up there and said, ‘No, it is mine.’ ‘No, it is not cocaine.’ Nothing,” was not a comment on defendant’s failure to testify since others besides defendant could have testified as to whether the substance found was cocaine, as to whether the cocaine was found in his hat brim, or as to whether the cocaine was theirs); Alba v. State, No. 05-96-00409-CR, 1998 WL 19955, at *6-7 (Tex.App.-Dallas Jan. 22, 1998, no pet.) (op., not designated for publication) (construing comment that “[i]f they wanted witnesses, somebody, you know, that would say that he didn’t commit the crime — in other words, a witness who was there, they could have issued a subpoena just like we did for our witness,” as concerning appellant’s failure to present any testimony other than his own that the State’s witnesses were lying when there was another witness to the murder that was not called to testify). Because the prosecutor’s remark was not a comment on Appellant’s failure to testify, we cannot conclude that the remark constituted misconduct, much less that it was severe. This factor weighs against Appellant.

Curative Measures

The second factor concerns the measures adopted to cure the misconduct. Although a prompt instruction to disregard will cure almost any' improper argument, see Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App.1995), we note that the trial court did not instruct the jury to disregard the comment here. However, if a defendant requests a mistrial without asking for an instruction to disregard when the error could have been cured by such an instruction, reversal is not warranted. Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App.2004). Having previously concluded that the prosecutor did not engage in severe misconduct, we believe that an instruction to disregard would have been sufficient to cleanse the jurors’ minds of the complained-of comment. See id. at 67-68 (holding that venireperson’s statement in aggravated sexual assault of a child case that in twenty-five years’ of social work she had never had a child lie about being sexually assaulted did not warrant a mistrial because an instruction, had it been requested, would have cured any prejudice from the remarks); Long v. State, 823 S.W.2d 259, 267 n. 9 (Tex.Crim.App.1991) (prosecutor’s argument that used an Adolf Hitler analogy, implying defendant was evil, could have been cured by an instruction to disregard).

Moreover, we note that the trial court instructed the jury that “the defense has no burden whatsoever and they don’t have to put on evidence whatsoever,” and referred the jury to the court’s charge. The jury charge properly instructed the jury that Appellant’s failure to testify cannot be considered for any purpose in assessing guilt or innocence. Thus, the jury was aware that it could not consider Appellant’s failure to testify in determining guilt. See Hawkins, 135 S.W.3d at 84 (noting that appellate court should review the jury charge in considering curative measures); Prince v. State, 192 S.W.3d 49, 57 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd) (prosecutor’s argument that jury could consider extraneous offenses in assessing guilt for the charged offense was cured by trial court’s instruction to refer to the charge, which stated the limited nature for which extraneous offenses could be considered). Based on these considerations, we find that the second factor weighs against Appellant as well.

Certainty of the Conviction

The final factor considers the certainty of Appellant’s conviction absent the comment. Here, Samuel testified that he saw Appellant' shoot and kill Roy, and Roger testified that he heard gunshots and saw Appellant holding a gun in his hand. Moreover, Appellant admitted to Roger and Leonor that he shot Roy. Accordingly, we believe- Appellant’s conviction was certain regardless of the comment and find that the third factor weighs against Appellant. See Wilson v. State, 179 S.W.3d 240, 250 (Tex.App.-Texarkana 2005, no pet.) (finding conviction was certain without the misconduct when there was no dispute that appellant shot and killed the victim).

Balancing the Factors

In sum, after weighing the appropriate factors, we hold that the trial court did not abuse its discretion by denying Appellant’s motion for mistrial stemming from the prosecutor’s comment during closing argument. The prosecutor’s comment was not misconduct, the jury was instructed that it could not consider Appellant’s failure to testify as evidence against him, and Appellant’s conviction was certain absent the comment. Finding no incurable prejudice from the complained-of comment, Appellant was not entitled to a mistrial. As such, his first issue is overruled.

Manslaughter Instruction

Appellant’s second issue contends that the trial court erred by failing to include a manslaughter instruction in the jury charge despite evidence suggesting that he did not intend to shoot anybody. The State responds that manslaughter is not a lesser-included offense of murder and that there is no evidence that Appellant is guilty only of manslaughter.

Standard of Review

In determining whether the trial court should have given a jury charge on a lesser-included offense, we employ a two-pronged test. Hall v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App.2007). First, we determine if the proof necessary to establish the charged offense includes the lesser offense. Id. at 535-36. If it does, we then review the evidence to determine that if the accused is guilty, he is guilty only of the lesser offense. Id. at 536.

Is Manslaughter a Lesser-included, Offense of Murder?

Under article 37.09, the uncharged offense is a lesser-included offense of the charged one if it “is established by proof of the same or less than all the facts required to establish the commission of the offense charged,” or “differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission.” Tex.Code Crim. Proo. Ann. art. 37.09(1), (3) (Vernon 2006). Here, Appellant was charged with murder under section 19.02(b)(2) of the Penal Code, that is, that he, with intent to cause serious bodily injury, committed an act clearly dangerous to human life that caused another’s death. See Tex. Penal Code Ann. § 19.02(b)(2) (Vernon 2003). Manslaughter, on the other hand, occurs when a person recklessly causes the death of another. See Tex. Penal Code Ann. § 19.04 (Vernon 2003).

In McCoy v. State, No. 08-00-00166-CR, 2001 WL 1137606, at *3 (Tex.App.-El Paso Sept. 27, 2001, no pet.) (op., not designated for publication), we held that manslaughter was a lesser-included offense of murder under section 19.02(b)(2), noting that “manslaughter requires a less culpable mental state and it does not require proof that the actor committed an act clearly dangerous to human life.” However, since our holding, the Court of Criminal Appeals has clarified that we must use a cognate-pleadings approach in identifying lesser-included offenses and cannot consider the evidence adduced at trial:

An offense is a lesser-included offense of another offense, under Article 37.09(1) of the Code of Criminal Procedure, if the indictment for the greater-inclusive offense either: (1) alleges all of the elements of the lesser-included offense, or (2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced. Both statutory elements and any descriptive averments alleged in the indictment for the greater-inclusive offense should be compared to the statutory elements of the lesser offense. If a descriptive averment in the indictment for the greater offense is identical to an element of the lesser offense, or if an element of the lesser offense may be deduced from a descriptive averment in the indictment for the greater-inclusive offense, this should be factored into the lesser-included-offense analysis in asking whether all of the elements of the lesser offense are contained within the allegations of the greater offense.

Ex parte Watson, 306 S.W.3d 259, 273 (Tex.Crim.App.2009) (op. on reh’g). Using the cognate-pleadings approach, we take this opportunity to reexamine our holding in McCoy and conclude that manslaughter is not a lesser-included offense of the murder charged here.

The indictment alleged Appellant, with intent to cause serious bodily injury to Rogelio, committed an act clearly dangerous to human life by shooting Rogelio with a firearm, which caused his death. Thus, the elements of the charged murder are that (1) Appellant (2) intended to cause serious bodily injury to Rogelio and (3) committed'an act clearly dangerous to human life that caused Rogelio’s death (4) by shooting him with a firearm. It is important to note that the State was not required to prove that Appellant intended to cause Rogelio’s death in this- scenario; rather, the State was only required to prove that Appellant intended to cause serious bodily injury to Rogelio, which in turn caused Rogelio’s death. See Lugo-Lugo v. State, 650 S.W.2d 72, 81-82 (Tex.Crim.App.1983) (op. on reh’g). Indeed, neither the statute nor the indictment requires a culpable mens rea for committing an act clearly dangerous to human life. See Tex. Penal Code Ann. § 19.02(b)(2). Therefore, much like felony murder, the murder charged in this case does not require a culpable mental state for causing another’s death: See Lomax v. State, 233 S.W.3d 302, 307 (Tex.Crim.App.2007) (holding that a culpable mental state is not required for the act of felony murder as statute simply recites that a person commits murder if he commits or attempts to commit a felony and in the course thereof, he commits an act clearly dangerous to human life that causes the death of an individual).

In contrast, the statutory elements of manslaughter require proof that Appellant recklessly caused Rogelio’s death. . See Tex. Penal Code Ann. § 19.04. Therefore, manslaughter actually requires proof of a culpable mental state for causing the death of an individual whereas the murder charged here, as discussed above, requires no proof of a culpable mental state for causing the death of an individual. As such, the elements of the requested lesser-included offense are not established by proof of the same or less than all of the facts required to establish the commission of the charged offense, nor does the proposed lesser-included offense differ from the offense charged only in the respect that a less culpable mental state suffices to establish its commission. See -Tex.Code Crim. PROC. Ann. art. 37.09(1), (3). Thus, we conclude manslaughter is not a lesser-included offense of the charged murder in this case, and the trial court did not err by denying Appellant’s request to instruct the jury on manslaughter. See, e.g., Zavala v. State, No. 05-08-00621-CR, 2009 WL 2343261, at *1 (Tex.App.-Dallas July 31, 2009, pet. ref d) (mem. op., not designated for publication) (concluding that manslaughter is not a lesser-included offense of felony murder as manslaughter requires a culpable mental state for causing death and felony murder does not).

Is Appellant Only Guilty of Manslaughter?

Even if we were to conclude that manslaughter is a lesser-included offense of the murder charged here, we find no evidence in the record that if Appellant is guilty, he is only guilty of manslaughter. Appellant asserts that he did not intend to shoot Rogelio. However, the Court of Criminal Appeals has noted that “firing a gun in the direction of an individual is an act clearly dangerous to human life.” Forest v. State, 989 S.W.2d 365, 368 (Tex.Crim.App.1999). Therefore, regardless of whether he intended to kill Rogelio, the evidence shows he intended to cause serious bodily injury to Rogelio by pointing a gun at him and pulling the trigger, which was an act clearly dangerous to human life. As Appellant, at the very least, was guilty of murder under section 19.02(b)(2), there is no evidence that if he was guilty, he was guilty only of manslaughter. See, e.g., id. (concluding that there was no evidence that appellant was guilty of anything other than at least murder under section 19.02(b)(2) when he meant to shoot the victim “in the butt” and did so, but claimed he did not intend to kill him; therefore, appellant was not entitled to lesser-included instruction on aggravated assault); Jackson v. State, 115 S.W.3d 326, 330-31 (Tex.App.-Dallas 2003), aff'd, 160 S.W.3d 568 (Tex.Crim.App.2005) (concluding that appellant’s intentional act of hitting victim over the head with a hammer showed that appellant intentionally caused serious bodily injury and committed an act clearly dangerous to human life that caused the victim’s death such that appellant, if guilty, was not only guilty of manslaughter); Juarez v. State, 961 S.W.2d 378, 384 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (concluding that firing a gun at an occupied car although not pointing the gun straight towards the occupants was evidence that appellant intended to cause seriously bodily injury and committed an act clearly dangerous to human life that caused the victim’s death such that he was not only guilty of involuntary manslaughter). Accordingly, Appellant was not entitled to an instruction on manslaughter and the trial court did not err by refusing to charge the jury on that offense. Appellant’s second issue is overruled.

CONCLUSION

Having overruled Appellant’s issues, we affirm the trial court’s judgment.

ANTCLIFF, Judge, sitting by assignment.

      . Appellant argues that there is evidence in the record to suggest that he did not intend to kill Rogelio. However, as explained before, murder under section 19.02(b)(2) does not require an intent to cause death; rather, it requires an intent to cause serious bodily injury. See Tex. Penal Code Ann § 19.02(b)(2); Lugo-Lugo, 650 S.W.2d at 81.


author: TERRIE LIVINGSTON, Chief Justice.

text:
    HOPPENSTEIN PROPERTIES, INC., Appellant, v. Bill SCHOBER and Another Man’s Treasure, L.L.C., Appellees.
    No. 02-09-00312-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 18, 2010.

      Martin J. Siegel, Law Office of Martin J. Siegel, P.C., Houston, for Appellant.
    Bruce H. Rogers & Jennifer Willing-ham, Brown, Dean, Wiseman, Proctor, Hart & Howell, L.L.P., Fort Worth, for Appellees.
    PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
   OPINION

TERRIE LIVINGSTON, Chief Justice.

This is an appeal from a jury trial on what damages, if any, a landlord of commercial lease property was entitled to when the tenant prematurely vacated the leased premises. In three issues, appellant Hoppenstein Properties, Inc. challenges the jury’s finding that it failed to mitigate its damages upon the breach by appellees Bill Schober and Another Man’s Treasure, L.L.C. (issues one and two) and the trial court’s failure to include in the jury charge that the breaching tenant bears the burden to prove the landlord’s failure to mitigate (issue three). We reverse and remand.

Factual and Procedural Background

Appellees as tenant signed a Shopping Center Lease with appellant as landlord. The lease term began May 1, 2006 and was to continue for six years and three months.

Appellees agreed to use the leased premises for “Furniture/Antique Sales.”

When appellees first moved into the leased premises, the condition was “not particularly bad.” Appellees did general cleanup, painted, and carpeted one of the rooms. There were some squirrels inside, which condition continued to occur periodically while appellees occupied the premises. Appellees spent about $40,000 making the space ready.

However, the business did not do well after moving to the leased premises. Schober wrote appellant on December 31, 2006, asking for some of the rent to be deferred, which appellant agreed to. But eventually, on April 1, 2007, appellees vacated the leased premises and informed appellant by letter. According to Schober, as of that date, the leased premises were “cleaned up” and in the same condition as when appellees moved in.

On July 17, 2007, appellant sued appel-lees for damages for prematurely vacating the premises. Appellees stipulated that they had defaulted on the lease but contended that appellant had failed to mitigate its damages. After a trial, a jury awarded appellant $5,500 in damages although appellant had asked for $107,584.54. Appellant appeals from the jury’s verdict.

Legal and Factual Sufficiency of Jury’s Damages Award

In its first two issues, appellant challenges the legal and factual sufficiency of the jury’s $5,500 damages award. According to appellant, there is no evidence to support the jury’s implied finding that appellant wholly failed to mitigate its damages caused by appellees’ breach of the lease, or, in the alternative, the evidence supporting that finding is too weak or against the great weight and preponderance of the evidence.

Standard of Review

We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfin-der could and disregard evidence contrary to the finding unless a reasonable factfin-der could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex.2005).

When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) (op. on reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). When, as here, the party without the burden of proof on a fact issue complains of an adverse fact finding, that party rriust show that there is “insufficient evidence” supporting the finding, that is, that the evidence supporting the finding is too weak or that the finding is against the great weight and preponderance of the evidence contrary to the finding. See Garza, 395 S.W.2d at 823; W. Wendall Hall, Standards of Review in Texas, 38 St. Mary’s L.J. 47, 263, 265 (2006).

Applicable Law

A landlord has a duty to make reasonable efforts to mitigate damages when the tenant breaches the lease and abandons the property. Tex. Prop.Code Ann. § 91.006(a) (Vernon 2007); Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 299 (Tex.1997); Landry’s Seafood House-Addison, Inc. v. Snadon, 233 S.W.3d 430, 436 (Tex.App.-Dallas 2007, pet. denied). The landlord’s failure to use reasonable efforts to mitigate damages bars the landlord’s recovery against the breaching tenant only to the extent that damages reasonably could have been avoided. Austin Hill Country Realty, 948 S.W.2d at 299. However, the landlord is not required to simply fill the premises with any willing tenant; the replacement tenant must be suitable under the circumstances. Id.

A tenant’s assertion that a landlord failed to mitigate damages is an affirmative defense. Austin Hill Country Realty, 948 S.W.2d at 300; McGraw v. Brown Realty Co., 195 S.W.3d 271, 277 (Tex.App.-Dallas 2006, no pet.). Thus, the tenant properly bears the burden of proof to demonstrate that the landlord has failed to mitigate damages and the amount by which the landlord could have reduced its damages. Austin Hill Country Realty, 948 S.W.2d at 300. A defendant is not entitled to any reduction in the amount of damages if it does not prove the amount of damages that could have been avoided. Cole Chem. & Distrib., Inc. v. Gowing, 228 S.W.3d 684, 688 (Tex.App.-Houston [14th Dist.] 2005, no pet.); Broken Spoke Club, Inc. v. Butler, No. 02-02-00116-CV, 2004 WL 1858119, at *2-3 (Tex.App.-Fort Worth Aug. 19, 2004, no pet.) (mem. op.). The policy underlying mitigation is to avoid waste rather than penalize the mitigating party for not doing enough. See Austin Hill Country Realty, 948 S.W.2d at 298-99; MOB 90 of Tex., L.P. v. Nejemie Alter, M.D., P.A., No. 13-08-00173-CV, 2009 WL 1026603, at *3 (Tex.App.-Corpus Christi Apr. 16, 2009, no pet.) (mem. op.).

Applicable Facts

Norman Hoppenstein, who is appellant’s vice president and a shareholder, testified that appellees’ initial minimum guaranteed rent was $840 per month, plus triple net charges, for the first month and for months five through twenty-four. According to Hoppenstein, the rent was “very reasonable” for such a large space. Adding the triple net charges, the total rent payment was $2,500 per month. For months twenty-five through forty-eight, the total monthly rent increased to $3,000 per month ($1,340 minimum guaranteed rent plus triple net expenses). The lease also provided for a ten percent late fee if appellees did not timely pay rent by the first day of each month.

Hoppenstein testified that appellant received the last full rent payment from appellees on December 8, 2006 and that it received two $1,000 payments thereafter. Although appellees did not pay the full rent for January and February, appellant did not start charging them a ten percent late fee each month until March 2007. Appellant calculated as part of its damages fourteen late fees of $84 and twelve late fees of $134, based on a percentage of the increased rent beginning in month twenty-four.

After appellant received notice from ap-pellees that they had vacated the space, appellant “contracted to have a for-lease sign up. And ... start[ed] answering inquiries about the space from people who might be interested in leasing the space.” Hoppenstein also said that appellant “continued to show the space ... [and] spoke[ ] to a number of people.” He testified that appellant eventually leased part of the space to a hookah bar but had to spend $56,041.88 to renovate that part of the space for the new tenant. Hoppenstein could not recall whether he got any additional bids for the improvements that were done for the hookah bar.

At the time of trial, the hookah bar was paying rent at a higher rate than the rate appellees were obligated to pay in their lease. Appellant credited the rental paid by the hookah bar to appellees’ outstanding rent. The total credit appellant applied to appellees’ lease was $14,783, after applying (1) credits for reconciliation of the triple net charges and for the $2,500 security deposit and (2) a debit for the cost of the renovations to the premises for the hookah bar. Appellant asked for total damages of $107,584.54.

Schober testified that around the time he started to vacate the premises, he heard that another business owner in the center, Ken Cook, might be interested in leasing the leased premises. According to Schober, when he talked to Cook, Cook said, “[Tjhat’s going to be just what I need,” and later came to see the leased premises.

Cook testified that he owns an “ad specialty business,” printing T-shirts and making embroidery, signs, banners, and advertising-type items. At the time of trial, he had been in business for fifteen years.

According to Cook, when he moved his business into the shopping center, next to a bingo hall, appellant’s leasing agent called and said that people at the bingo hall were complaining about the odor released when he printed a certain type of sign that he prints frequently. He tried to reduce the odor, but the complaints continued until appellant’s leasing agent called and told Cook he could no longer print those types of signs on the premises. The leasing agent was the only person he had ever dealt with on behalf of appellant.

Cook moved the sign printing operation to his home garage, but that was a failure. Around that same time, he realized that appellees had moved out and tried to contact them to see if he could move into them space because it was in a different building and isolated from other tenants. Cook testified that when he talked to Hoppen-stein about leasing appellees’ property, Hoppenstein said “that if I moved in there, he wouldn’t be able to go after Mr. Scho-ber and that he didn’t think that space would do me any good any more- — do me any better than the space I was in.” Even after Cook explained to Hoppenstein the situation regarding the signs and how ap-pellees’ space was better situated for his business, Hoppenstein said that he did not think it would help and recommended another landlord down the street. Cook testified that he would not have needed any improvements to appellees’ leased premises and did not request any. He eventually had to abandon his lease with appellant; appellant sued him for the breach and obtained a judgment for $21,000.

Hoppenstein testified that he did not rent appellees’ leased premises to Cook for “a number of reasons.” He remembered that Cook had approached him about swapping his leased premises for appel-lees’ and that Cook had said he wanted a small retail location for walk-in business. Hoppenstein told Cook that he would be better off with a location closer to the street, rather than one so far back from the street; the shopping center is in a U-shape, and appellees’ leased premises was in the center of the U bend, farther away from the street than the other leased premises, although facing the street.

Hoppenstein also explained that by moving Cook to appellees’ vacated premises, he would not be mitigating any damages because he would be moving a tenant from one leased premises to another in the same center; thus, he would lose money on one or the other. He would also not be able to mitigate the fumes problem that was already occurring. Finally, Hoppenstein knew that Cook was having financial problems, which was of concern because he would be moving his business into an even bigger space. Hoppenstein showed the jury rent checks from Cook that had been returned with the notation that the bank account on which the check was drawn had been closed.

Hoppenstein testified that appellant advertised vacancies by putting up for lease signs in the vacant premises and putting one on the street near the shopping center; he also testified that some companies list vacant space for other brokers and that those companies call landlords periodically. But Hoppenstein did not say whether he responded to any of those phone calls or if he even got any. He also testified that the center was quite large and very difficult to lease because it was built in the 1960s and not suited for retail.

Analysis

The jury awarded appellant only $5,500, which is the amount of the past due rental that had accrued before appellees vacated the premises. The jury did not award any amounts — rental, late fees, cost of improvements to the premises (all authorized by the lease agreement in the event of a tenant default) — for any time after appellees vacated the premises.

Appellees had the burden of proving the amount of damages appellant could have avoided. Austin Hill Country Realty, 948 S.W.2d at 299; McGrow, 195 S.W.3d at 277. But appellees failed to prove that appellant could have immediately rented appellees’ premises and therefore avoided all damages. See Cole Chem., 228 S.W.3d at 688. Neither Cook nor Schober testified as to when Cook could have moved into and begun paying rent on appellees’ leased premises. Schober said he heard Cook was interested in renting the premises “around the time” appellees vacated. Cook testified that when he called to check on the availability of the premises, a woman told him appellees had already moved out; Cook tried to call appellant’s leasing agent, who did not return his calls. Cook then called appellant, and someone told him the leasing agent had been fired; he left a message for Hoppenstein, who took about a week to return the call. Although Cook testified that he was able to immediately move into appellees’ premises, the evidence shows that there would have been at least some gap between appellees’ va-eating the premises and Cook’s moving in regardless of appellant’s efforts or lack thereof.

Likewise, neither Schober nor Cook offered evidence as to how long it would have taken appellant to find a replacement tenant for Cook’s premises, which would have remained vacant if Cook had moved into and started paying rent on appellees’ premises. The minimum rental on Cook’s premises was $2,187 per month, which appellant would not have been able to collect if Cook had moved into appellees’ premises and started paying appellees’ minimum rental. Moreover, appellant produced evidence that two of Cook’s March rent checks had been returned because the account on which they were written was closed. See MOB 90 of Tex., L.P., 2009 WL 1026603, at *3 (noting that court had found no Texas law requiring landlord to work with breaching tenant to mitigate damages).

Appellees did bring forward evidence that Hoppenstein was not interested in mitigating appellant’s damages; however, they failed to prove that appellant was not entitled to any post-abandonment damages whatsoever. See Cole Chem., 228 S.W.3d at 688. In addition, although appellees presented evidence that the $56,041.88 appellant spent on renovating the abandoned premises was unreasonable — in that the amount of renovations exceeded the total minimum rental payable for the two-year initial term of the hookah bar’s lease— appellees failed to prove that no renovation would have been necessary.

In effect, appellees presented evidence that appellant unreasonably failed to mitigate at least some of the damages it pled and proved at trial but failed to prove that it could have avoided all damages from the time appellees vacated the premises. Accordingly, we conclude and hold that the evidence is factually insufficient to support the jury’s finding that appellant sustained only $5,500 in damages from appellees’ breach. See CacLle Co. v. Regency Homes, Inc., 21 S.W.3d 670, 681-82 (Tex.App.-Austin 2000, pet. denied) (op. on reh’g). We overrule appellant’s first issue but sustain appellant’s second issue.

Instruction on Mitigation Did Not Improperly Shift Burden of Proof

In its third issue, appellant contends that the trial court reversibly erred by failing to charge the jury that appellees had the burden to prove whether appellant failed to mitigate its damages as result of the breach, thus shifting the burden of proof on the mitigation issue.

At the charge conference, the trial court agreed to include the following question in the charge, “What sum of money, if any, if paid now in cash would fairly and reasonably compensate [appellant] for its damages, if any, that resulted from the breach of the lease?” The court also proposed the following, “Do not include in your answer any amount that you find [appellant] could have avoided by the exercise of reasonable care.” Appellant’s counsel objected to that part of the charge because “[t]he standard should be whether [appellant] reasonably mitigated [its] damages, not whether [it] exercised reasonable care.” The trial court declined to change the question and appellant stated one more objection: “On this question about the exercise of-reasonable care, it should have a burden of proof, that the defendants [appellees] have the burden of proof in proving that he [appellant] didn’t exercise reasonable care. At least a general instruction.” After argument, the trial court overruled that objection as well. The trial court submitted the following to the jury: .

QUESTION NO. I
What sum of money, if any, if paid now i[n] cash, would fairly and reasonably compensate [appellant] for its damages, if any, that resulted from breach of the lease?
Do not include in your answer any amount that you find [appellant] could have avoided by the exercise of reasonable care.
Do not add any amount for interest on damages, if any.
Answer in dollars and cents for damages, if any:

Appellees contend that appellant failed to preserve its complaint about this issue. Appellant submitted its own question on damages and objected to appellees’ proposed instruction on their affirmative defense of mitigation. Appellees contend that to preserve its objection, appellant needed to additionally request a replacement instruction in writing. But appellant’s objection was all that was needed to preserve the issue as to the instruction because the trial court submitted it. See Religious of Sacred Heart of Tex. v. City of Houston, 836 S.W.2d 606, 614 (Tex.1992) (“Objection, however, is the proper method of preserving complaint as to ... an issue actually submitted, but claimed to be defective.”) (quoting Lyles v. T.E.I.A., 405 S.W.2d 725 (Tex.Civ.App.-Waco 1966, writ ref'd n.r.e.)). Thus, we hold that appellant preserved this issue for our review.

Rule 277 provides that “[t]he placing of the burden of proof may be accomplished by instructions rather than by inclusion in the question.” Tex.R. Civ. P. 277. “Thus, the Rules of Civil Procedure contemplate that the jury can be instructed about applying the burden of proof in two ways: [by] an admonitory instruction or by placement of the burden through the question.” In re Commitment of Beasley, No. 09-08-00371-CV, 2009 WL 3763771, at *7 (Tex.App.-Beaumont Aug. 6, 2009, pet. denied). Here, the instructions before the questions include the following:

Answer “Yes” or “No” to all questions unless otherwise instructed. A “Yes” answer must be based upon a preponderance of the evidence unless otherwise instructed. If you do not find that a preponderance of the evidence supports a “Yes” answer, then answer “No.” Whenever a question requires an answer other th[a]n “Yes” or “No,” your answer must be based on a preponderance of the evidence unless otherwise instructed.

Thus, here, the trial court defined the proper burden of proof for the question in the instructions in the charge; rule 277 requires no more. See Tex.R. Civ. P. 277; Austin Hill Country Realty, 948 S.W.2d at 299. Accordingly, we conclude and hold that the trial court did not reversibly err by refusing to include appellant’s requested addition to the question.

We overrule appellant’s third issue.

Conclusion

Having overruled appellant’s first and third issues, but also having sustained appellant’s second issue, we reverse the trial court’s judgment and remand for a new trial. See Cadle Co., 21 S.W.3d at 681-82.

      . Appellant’s business had done well in a pri- or location in another city, but he had to move because that landlord took over his space.

      . A triple net lease is one in which the tenant’s rent includes a percentage of the landlord's real property taxes, insurance, and common area maintenance charges for the property in addition to the basic rent.

      . Hoppenstein also testified that the day before trial, a banquet hall signed a lease for the remainder of the premises but that the lease would not be effective until the prospective tenant obtained all necessary municipal approvals.

      . Hoppenstein testified that a man named Mike Pope had moved into and was paying rental on Cook's premises, but appellees did not produce evidence as to when Pope moved into those premises. When asked on cross-examination whether it was November 1, 2007, Hoppenstein replied that he did not know; appellees did not produce a lease or other proof of when Pope moved into those premises.

      . Cook also testified that his business had been doing poorly since it had been burglarized and because of the poor economy.

      .Cook testified that he would have been willing to rent the premises as-is, but as we have explained, appellant was not required to work with him as a tenant because his rental checks for his own space were being returned for a closed account. See MOB 90 of Tex., L.P., 2009 WL 1026603, at *3.

      . Appellees did not plead or prove the affirmative defense of waiver.

      . Even though we will remand because of our disposition of appellant's second issue, we nevertheless address appellant’s third issue because it could be raised again at a second trial.


author: RICK STRANGE, Justice.

text:
    In re Shawna FLOREY a/k/a Shawna Stringer.
    No. 11-10-00278-CV.
    Court of Appeals of Texas, Eastland.
    Nov. 30, 2010.

      M. Michele Greene, Odessa, for relator.
    Stewart McKeehan, Stewart McKeehan P.C., Odessa, for real party in interest.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

Shawna Florey a/k/a Shawna Stringer filed a petition for writ of mandamus complaining of the trial court’s order modifying the conservatorship of her son, J.N.F. Because that order was a final order and, therefore, was appealable, we lack jurisdiction and deny the petition.

Stringer and Joe Neal Florey were divorced in 2004. They had one child, J.N.F. The trial court appointed them joint managing conservators and gave Stringer the right to designate J.N.F.’s primary residence. In 2009, Florey asked the trial court to decrease his child support payment. Stringer responded with a motion to revoke suspension of commitment and for issuance of capias, alleging that Florey had failed to make several child support and arrearage judgment payments.

The trial court held a hearing on both motions. During her testimony, Stringer revealed that she was living with a man to whom she was not married. This was in direct violation of a prior order. The trial court orally ordered her to either marry her partner or to make him leave the house within two weeks. The trial court told Stringer that, if she failed to do so, Florey would probably be given primary custody of J.N.F. Stringer advised the court that they had every intention of getting married. Stringer and her partner did get married, but she failed to timely provide the trial court with a copy of her marriage certificate. Florey filed a motion for enforcement that, in part, asked the trial court to hold Stringer in contempt. Florey did not ask the trial court to modify the custody order by giving him the right to designate J.N.F.’s residence.

The trial court held a hearing on Flo-rey’s motion on March 1, 2010. Florey testified that he no longer wanted Stringer incarcerated, but he did want the trial court to modify the custody order by giving him the right to designate J.N.F.’s residence. At the' conclusion of the hearing, the trial court noted that it could not hold Stringer in contempt for failing to timely provide a copy of her marriage certifícate because that order had not been reduced to writing. The trial court did, however, modify J.N.F.’s conservatorship by giving Florey primary custody. Two days after the hearing, Florey fíled a motion for leave to file a trial amendment. Florey’s amended motion for enforcement included his requested custody modification. The trial court granted that motion on March 12. The trial court’s custody ruling was reduced to writing and was signed by the court on May 27. Stringer filed her petition for writ of mandamus with this court on October 5.

To obtain mandamus relief, Stringer must show that the trial court committed a clear abuse of discretion or violated a duty imposed by law and that she does not have an adequate appellate remedy. Walker v. Packer, 827 S.W.2d 838, 839-40 (Tex.1992) (orig.proceeding). When the ruling complained of is a final judgment, the aggrieved party will ordinarily have an adequate appellate remedy. See Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989) (orig.proceeding) (extraordinary writs issue only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies).

Stringer argues that we have jurisdiction because contempt orders that do not involve confinement may be reviewed only through mandamus. See In re Long, 984 S.W.2d 623, 625 (Tex.1999) (orig.proceeding). The trial court, however, did not find her in contempt. In fact, the court specifically denied Florey’s motion for contempt. Moreover, Stringer’s complaints do not challenge any contempt ruling but are a collateral attack on the trial court’s decision to name Florey the primary conservator. Stringer argues in her first issue that, because there were no pleadings on file requesting a change in J.N.F.’s conser-vatorship, the trial court exceeded its authority when it did so. Stringer argues in her second issue that the trial court abused its discretion by granting Florey’s request for leave to file a trial amendment. Both contentions could have been raised in a direct appeal.

Stringer also contends that mandamus is appropriate because the trial court’s order is void. In Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973) (orig.proceeding), the court held that void or invalid judgments rendered without jurisdiction could be challenged by mandamus even though an available appellate remedy was not pursued. In Geary v. Peavy, 878 S.W.2d 602, 603 (Tex.1994) (orig.proceeding), the court noted that it had not addressed whether the Dikeman rule survived Walker but, because of the unique and compelling circumstances of that case, determined that it was unnecessary to do so. The court was faced with two competing child custody proceedings. One was filed in Minnesota and the second in Texas. The court concluded that, because the Minnesota proceeding was initiated first, the Texas court lacked jurisdiction. Id. at 604. More recently, in In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000) (orig.proceeding), the court held that mandamus was appropriate when a trial court set aside a venue transfer order after its plenary power had expired because that action was void.

It appears, therefore, that we have jurisdiction to review a void order by mandamus. But there is a distinction between a void order and a voidable order. A void order is one entered by a trial court that lacks jurisdiction over the parties or the subject matter, or is an order entered outside the trial court’s capacity as a court. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990). Voidable orders result from errors other than lack of jurisdiction, such as an action contrary to a statute or statutory equivalent. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.2003).

Stringer contends that the trial court’s order is void because the court was without authority to enter it. Stringer reasons that Florey was required to file a petition requesting a modification of J.N.F.’s con-servatorship; that she was entitled to notice of the petition by service of citation; and that, if the request for modification was joined with a motion for enforcement, the hearing could not be held until the Monday next following twenty days after service of process. Because these procedural steps were not followed, Stringer concludes that the trial court acted beyond its authority. She relies upon In re Parks, 264 S.W.3d 59 (Tex.App.-Houston [1st Dist.] 2007, orig. proceeding), for the proposition that we have the authority to review the trial court’s order by mandamus.

Parks, however, was a contempt proceeding. The parties were joint managing conservators of their daughter. The relator’s husband filed a motion for contempt alleging that she had denied him his rightful access to their daughter. The relator was found in contempt of court and was sentenced to 180 days incarceration. The trial court also gave the relator’s ex-husband possession of their child until further court order. Id. at 61. The Houston Court noted that it had jurisdiction because the relator was challenging a contempt finding and, therefore, that it also had jurisdiction to review the trial court’s order “to the extent that it modifies or reforms previous orders of the trial court without proper pleadings and evidence.” Id. at 62. The Houston Court found that the trial court had the authority to alter the child’s custody while the relator was incarcerated but that it did not have the authority to make a broader custody modification absent proper pleadings. Id. at 63.

We agree with the holding in Parks, but that decision does not lead to the conclusion that we have jurisdiction to consider Stringer’s issues by mandamus. The Houston Court’s jurisdiction to review the procedural challenges to the trial court’s custody order flowed from its initial jurisdiction to review the trial court’s contempt order. Because Stringer was not held in contempt, we lack that initial grant of jurisdiction. This case is more akin to Reiss, 118 S.W.3d 439. In Reiss, the parties were divorced several years previous. The divorce decree incorrectly awarded the wife one-half of her husband’s retirement benefits, including those accruing after the divorce. In a subsequent enforcement action, the husband contended that the decree was void because the trial court lacked jurisdiction to divest him of his separate property. The Supreme Court disagreed, noting that the trial court had jurisdiction to characterize community property. The fact that it did so incorrectly merely made the decree voidable. Id. The trial court had jurisdiction over the parties and the jurisdiction to modify its prior custody order. If the trial court failed to follow the Family Code when it did so, that makes the order voidable not void.

The Houston Court’s decision in Parks and our own today are both consistent with Texas’s public policy of promoting the speedy resolution of child custody and support issues. See In re T.M., 33 S.W.3d 341, 346 (Tex.App.-Amarillo 2000, no pet.) (because children need permanence and stability in them lives, justice demands a speedy resolution of child custody and support issues). Because the Houston Court had jurisdiction to review the contempt finding, it was more efficient for them to also review the broader procedural challenges to the trial court’s order in the habeas proceeding than if they had deferred those issues to a subsequent direct appeal. In this case, a direct appeal would have been more efficient. The trial court’s order was entered on May 27. A notice of appeal was due thirty days later, or June 28. Tex.R.App. P. 26.1. Stringer’s petition for writ of mandamus was not filed until October 5, over three months later. Mandamus is not a vehicle for extending appellate deadlines, and its use for that purpose in a child custody suit is counter to Texas public policy.

The trial court’s order was a final order because it disposed of all pending claims. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex.2001). We lack jurisdiction to consider a collateral attack on that judgment. Stringer’s petition is, therefore, denied.


author: LESLIE B. YATES, Justice.

text:
    8100 NORTH FREEWAY LTD., Appellant, v. CITY OF HOUSTON, Appellee.
    No. 14-09-00220-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 2, 2010.

      Richard B. Kuniansky, Houston, for appellant.
    Lisa A. Brown, Nirja S. Aiyer, Patrick Zummo, Houston, Bradley J. Reich, Aurora, for appellee.
    Panel consists of Chief Justice HEDGES and Justices YATES and SULLIVAN.
   OPINION

LESLIE B. YATES, Justice.

Appellant 8100 North Freeway Ltd. appeals the trial court’s order granting the temporary injunction request of appellee the City of Houston. Because we find that the trial court did not abuse its discretion in issuing the temporary injunction, we affirm.

BACKGROUND

The City regulates sexually oriented businesses (SOBs) and requires them to meet certain criteria to obtain permits, which are necessary for legal operation. 8100 operates a business, originally called Adult Video Megaplexxx, consisting of an adult bookstore and adult arcade that features small booths with doors where adults may privately view sexually explicit videos. A portion of the City’s SOB ordinance specifically regulates adult arcades and requires, among other things, minimal lighting levels inside the booths and a direct line of sight between the manager and the booth patron. These requirements were enacted to discourage sexual activity in arcade booths. See Rosenblatt v. City of Hous., 31 S.W.3d 399, 404 (Tex.App.-Corpus Christi 2000, pet. denied). Mega-plexxx attempted to comply with the ordinance by installing video cameras in the booths. See id. at 402. The City denied Megaplexxx a permit because it did not comply with the direct line of sight provision, and the City’s action was upheld in the trial court and on appeal. See id. at 401.

Megaplexxx then changed its business model in an attempt to avoid being subject to the ordinance. It changed its name to Tryst, A Lover’s Boutique, and began offering several new types of inventory, including condoms, oils, lingerie, costumes, and adult novelties. 8100 expanded the video arcade from nine to twenty-eight viewing rooms and added more viewing channels, for a total of sixty-three channels showing various types of adult videos and sixty-four channels offering mainstream movies. By making these changes, 8100 attempted to cast itself as a “fifty/fifty” business rather than an adult arcade requiring a permit.

A Houston Police Department officer inspected the premises. He observed a sign on the front door prohibiting minors. Inside, signage directed patrons to the arcade area, touting “hardcore” channels. The arcade area spanned three hallways, and all arcade booths had closable doors. A television hanging from the ceiling above the entrance to the arcade area continuously displayed videos depicting explicit sexual activity. Inside a booth, the officer observed a money-operated arcade device that displayed videos depicting explicit sexual activity, along with a chair, paper towels, and a trashcan.

The City brought suit against 8100 for operating an adult arcade without a permit and sought injunctive relief. The trial court granted the City’s request for a temporary injunction on March 5, 2009, and ordered that the arcade area be locked and that 8100 cease from operating its arcade devices. 8100 filed its appeal the same day, but to date, no permanent injunction hearing has been held.

ANALYSIS

A. Legal Standards

The purpose of a temporary injunction is to preserve the status quo pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); EMS USA, Inc. v. Shary, 309 S.W.3d 653, 657 (Tex.App.-Houston [14th Dist.] 2010, no pet.). Generally, to obtain a temporary injunction, the applicant must prove a valid cause of action against the defendant, a probable right to relief, and imminent, irreparable injury in the interim. See Butnaru, 84 S.W.3d at 204; EMS, 309 S.W.3d at 657. However, when the applicant has shown a violation of a statute that authorizes injunctive relief, it need not prove imminent, irreparable injury. See Butnaru,, 84 S.W.3d at 210; West v. State, 212 S.W.3d 513, 518-19 (Tex.App.Austin 2006, no pet.); Ralph Williams Gulfgate Chrysler Plymouth, Inc. v. State, 466 S.W.2d 639, 642 (Tex.Civ.App.-Houston [14th Dist.] 1971,- writ refd n.r.e.). Further, the applicant need not prove that it will prevail, and the merits of the suit are not issues for appellate review. See EMS, 309 S.W.3d at 658. Rather, we review the trial court’s decision on a temporary injunction request for an abuse of discretion. Butnaru, 84 S.W.3d at 204; EMS, 309 S.W.3d at 658. We must not substitute our judgment for the trial court’s judgment and may not reverse unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonableness. See Butnaru, 84 S.W.3d at 204.

B. The Primary Business Standard Does Not Apply

In its first issue, 8100 argues that the trial court erred in granting a temporary injunction because the SOB ordinance regarding adult arcades applies only to entities whose primary business is to provide sexual stimulation or gratification and, because its inventory of movies is over fifty percent non-adult, its primary arcade business is not sexual.

Local Government Code chapter 243, entitled “Municipal and County Authority to Regulate Sexually Oriented Business,” defines a sexually oriented business as follows:

[A] sex parlor, nude studio, modeling studio, love parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store, adult motel, or other commercial enterprise the primary business of which is the offering of a service or the selling, renting, or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer.

Tex. Loc. Gov’t Code Ann. § 243.002 (West 2005). The City has regulations regarding SOBs in two portions of chapter 28 of the City of Houston Code of Ordinances: article II, which governs adult arcades and adult mini-theaters, and article III, which governs SOBs generally. Houston, Tex., Rev. Ordinances ch. 28, arts. II, III (1997). Article II defines an adult arcade as “any premises that is subject to regulation under Chapter 243 of the Local Government Code, as amended, to which members of the public ... are permitted to use one or more arcade devices.” Id. art. II, § 28-81. An “arcade device” is “any coin- or slug-operated or electronically or mechanically controlled machine or device that dispenses or effectuates the dispensing of entertainment, that is intended for the viewing of five or fewer persons in exchange for any payment of consideration,” and “entertainment” includes “[a]ny still picture(s) or movie picture(s).” Id.

8100 contends that because article II’s definition of adult arcade refers back to chapter 243 and chapter 243’s definition of SOB includes the notion of primary business, it is subject to article II’s regulation only if its primary business is to provide sexual stimulation or gratification. We disagree. Chapter 243’s definition contains a list of establishments that are categorically considered SOBs and then contains a catch-all for other businesses not listed but whose primary business is providing sexual stimulation or gratification. See Meijas v. State, No. 04-01-00048-CR, 2002 WL 112534, at *1 (Tex.App.-San Antonio Jan. 30, 2002, pet. ref'd) (not designated for publication); see also N.W. Enters. Inc. v. City of Hous., 352 F.3d 162, 184 (5th Cir.2003); Laredo Road Co. v. Maverick Cnty., 389 F.Supp.2d 729, 734-35 (W.D.Tex.2005). An adult video arcade is in the list of categorical SOBs, and thus the primary business analysis is irrelevant. See Mei-jas, 2002 WL 112534, at *1. 8100 insists that the primary business language in chapter 243 modifies not just the catch-all “other commercial enterprise” but also the entire list of enumerated businesses. However, such an interpretation is grammatically incorrect. Under the last antecedent rule, a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows. See Barhnart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003); Laredo Road, 389 F.Supp.2d at 735; Rowan Cos. v. Wilmington Trust Co., 305 S.W.3d 698, 710-11 (Tex.App.-Houston [14th Dist.] 2009, pet. filed). Had the legislature intended the primary business phrase to modify the entire list rather than only the last item, it would likely have included a comma between “other commercial enterprise” and “the primary business of which.” See Elliot Coal Mining Co. v. Office of Workers’ Comp. Programs, 17 F.3d 616, 629-30 (3d Cir.1994); Bingham, Ltd. v. United, States, 724 F.2d 921, 925 n. 3 (11th Cir.1984); Meijas, 2002 WL 112534, at *1.

The trial court found in its temporary injunction order that 8100 is operating an adult arcade without a permit as required by article II. 8100 does not dispute that Tryst has arcade devices that are open to the public for a fee, that they display both pornographic and non-pornographic movies, and that Tryst does not have an article II permit. We conclude the trial court did not abuse it discretion in granting a temporary injunction on this basis. Tryst’s primary business is not relevant to this inquiry, and we overrule 8100’s first issue.

C. Injunctive Relief Was Proper

8100 raises several issues regarding the propriety of injunctive relief in this case. In its fifth issue, 8100 asserts that the trial court abused its discretion in issuing the injunction because the ordinance does not authorize injunctive relief for a violation of article II. Article III of the SOB ordinance specifically states that “[t]he city attorney is hereby authorized to file suit to enjoin the violation of this article.” Houston, Tex., Rev. Ordinanoes ch. 28, art. Ill, § 28-134. Article II, however, is silent on the issue of authority to pursue an injunction. Based on this, 8100 argues that the City is not authorized to seek an injunction for violation of article II. This argument overlooks the significance of chapter 243 of the Local Government Code. Chapter 243 authorizes municipalities to regulate SOBs and then specifically states that a municipality “may sue in the district court for an injunction to prohibit the violation of a regulation adopted under this chapter.” Tex. Loo. Gov’t Code Ann. § 243.010(a) (West 2005); see also Smartt v. City of Laredo, 239 S.W.3d 869, 873 (Tex.App.-Amarillo 2007, pet. denied) (stating that chapter 243 authorizes cities to seek injunctions to stop violations of SOB ordinances); Schleuter v. City of Fort Worth, 947 S.W.2d 920, 932 (Tex.App.-Fort Worth 1997, writ denied) (same). The City’s silence regarding injunctions in article II does not evidence any intent to relinquish the authority specifically provided by the legislature in chapter 243. Indeed, article II states that its provisions “are supplemental and shall be cumulative with all other laws and ordinances applicable in any manner to an adult arcade.” Houston, Tex., Rev. Ordinanoes ch. 28, art. II, § 28-83. We conclude that the City was authorized to pursue injunctive relief for a violation of article II, and we accordingly overrule 8100’s fifth issue.

In its sixth issue, 8100 contends that the trial court abused its discretion in ordering injunctive relief because the relief goes beyond preserving the status quo. The goal of a temporary injunction is to preserve the status quo, and the status quo in this context is the last actual, peaceable, uncontested state of affairs that preceded the pending controversy. See Law v. William Marsh Rice Univ., 123 S.W.3d 786, 791 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). It follows that the status quo can never be a state that allows a party to continue violating the law. See San Miguel v. City of Windcrest, 40 S.W.3d 104, 109 (Tex.App.-San Antonio 2000, no pet.); Horn. Compressed Steel Corp. v. State, 456 S.W.2d 768, 773 (Tex.Civ.App.-Houston [1st Dist.] 1970, no writ). In this case, the trial court determined that 8100 was violating the law by operating an adult arcade without a permit, and we have already determined the trial court did not abuse its discretion in so determining. Thus, the temporary injunction preserved a status in which 8100 was not violating the ordinance, and we overrule 8100’s sixth issue.

In its eighth issue, 8100 claims that the trial court abused its discretion in issuing the temporary injunction because the injunction constitutes an unlawful prior restraint on protected First Amendment activities. The United States Supreme Court has rejected this argument, holding that the closure of an adult bookstore for failure to comply with a local ordinance was not an unlawful prior restraint because the order did not prohibit the defendants from disseminating particular materials and because the order was not based on an advance-determination that the distribution of certain materials is prohibited. See Arcara v. Cloud Books, Inc., 478 U.S. 697, 706 n. 2, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986). Similarly, 8100 is free to continue showing its videos as long as it complies with the City’s ordinance, and the injunction is not based on the content of the movies shown but rather the environment in which they are shown. Based on Arcara, we conclude the temporary injunction order does not constitute an unlawful prior restraint, and we overrule 8100’s eighth issue.

In its ninth issue, 8100 argues that the trial court erred in denying its request to impose a stay on the enforcement of the temporary injunction pending appeal. 8100 states in its brief that “[t]his issue may be moot,” and we agree. 8100 filed a motion to stay in this court and then withdrew that motion before our ruling based on the City’s agreement not to enforce the injunction pending appeal. Further, appellate review of the appeal is now complete. Thus; any issue of a stay pending appeal is moot. See Maloy v. City of Lewisville, 848 S.W.2d 380, 383 (Tex.App.-Fort Worth 1993, no writ). We overrule 8100’s ninth issue.

Finally, in its reply brief, 8100 asserts that the trial court’s injunction order is overbroad because it requires the entire arcade section to be locked, rendering it unusable for other purposes such as a lingerie area. By failing to raise this issue in its opening brief, 8100 has waived it. See Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).

D. No Advance Ruling on the Merits

In its second and third issues, 8100 makes various arguments as to why the SOB ordinance is unenforceable and unconstitutional, including that it is vague and overbroad and provides for unfettered police discretion. We conclude that we cannot address these issues because they are beyond the scope of our review.

A temporary injunction hearing and a trial on the merits have different functions:

[0]ur system of procedure is such that legal rights cannot be finally determined upon a hearing relating to the wisdom or expediency of issuing a status quo order. Deliberate action is essential for the accurate determination of legal rights and upon occasion this can be secured only by issuing a temporary decree protecting a status quo. Ordinarily, the hearing upon the temporary injunction is not a substitute for, nor does it serve the same purpose as the hearing on the merits.

Tom James of Dall., Inc. v. Cobb, 109 S.W.3d 877, 884 (Tex.App.-Dallas 2003, no pet.) (quotation marks omitted). Simply put, a temporary injunction is not a ruling on the merits. See EMS, 309 S.W.3d at 658; Tom James, 109 S.W.3d at 884. Accordingly, we may not review the merits of the underlying litigation on appeal. See Sharma v. Vinmar, Int’l, Ltd., 231 S.W.3d 405, 419 (Tex.App.-Houston [14th Dist.] 2007, no pet.); Law, 123 S.W.3d at 792. Our review is solely limited to whether the trial court abused its discretion in issuing the temporary injunction. Law, 123 S.W.3d at 792; San Miguel, 40 S.W.3d at 107.

The issue before the trial court was whether the City was entitled to a temporary injunction, not whether the ordinance was enforceable or constitutional. Indeed, the trial court found that 8100 was operating a business in violation of article II, but it did not issue any rulings regarding the constitutionality or enforceability of the ordinance. In its second and third issues, 8100 does not argue that the trial court abused its discretion in issuing the temporary injunction; rather, it argues that the ordinance upon which it is based is unenforceable and unconstitutional. These issues are dispositive of 8100’s defenses in the underlying litigation and therefore are not appropriate subjects for appellate review in this interlocutory appeal. We will not issue an advance ruling on the merits by addressing these issues before the trial court has done so. See Brar v. Sedey, 307 S.W.3d 916, 920 (Tex.App.-Dallas 2010, no pet.).

CONCLUSION

The trial court did not abuse its discretion in issuing a temporary injunction against 8100. We affirm the trial court’s order.

SULLIVAN, J., not participating.

      . 8100 points to other cases in which courts have discussed the primary business standard. See 4330 Richmond Ave. v. City of Hous., No. Civ.A. 91-0665, 1997 WL 1403893 (S.D.Tex. July 17, 1997), aff'd, 166 F.3d 338 (5th Cir.1998) (table); Griswold v. State, No. 07-00-0203-CR, 2001 WL 830348 (Tex.App.Amarillo July 24, 2001, pet. ref’d) (not designated for publication); Collins v. State, No. 14-00-00482-CR, 2001 WL 421258 (Tex.App.-Houston [14th Dist.] Apr. 26, 2001, pet. ref'd) (not designated for publication); Hernandez v. State, No. 14-99-00671-CR, 2000 WL 991806 (Tex. App.-Houston [14th Dist.] July 20, 2000, no pet.) (not designated for publication). These cases are distinguishable because they involve adult bookstores, and article III defines adult bookstore with specific reference to the primary business of the store. See Houston, Tex., Rev. Ordinances ch. 28, art. Ill, § 28-121.

      . Because we have concluded that the primary business standard does not apply in this context, we need not address 8100's fourth and seventh issues, both of which involve defining the primary business standard.

      . 8100 argues that perhaps the City intentionally omitted any reference to injunctive relief in article II based on concerns over suppression of speech protected by the First Amendment, but that argument fails because article III, which specifically covers adult bookstores and materials therein protected by the First Amendment, provides for injunctive relief.

      . See San Miguel, 40 S.W.3d at 109 (stating that temporary injunction did not resolve issues regarding vagueness and constitutionality of ordinance); T & R Assocs. v. City of Amarillo, 601 S.W.2d 178, 180 (Tex.Civ.App.-Amarillo 1980, no writ) (noting that grounds to escape enforcement of ordinance may not be entertained on appeal of temporary injunction because they relate to the merits); Hous. Compressed, 456 S.W.2d at 774 (stating that arguments that statute is vague and indefinite are not before the court on appeal of temporary injunction); see also EMS, 309 S.W.3d at 658 ("[Ajny appeal of an order granting or denying a temporary injunction based on a non-compete covenant does not present for appellate review the ultimate question of whether the covenant is enforceable....").


author: Justice BRIDGES.

text:
    CARROLLTON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT and Lynn Chaffin, in her capacity as Presiding Officer, Appellants, v. Richard FLEMING, Appellee.
    No. 05-09-01166-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 2, 2010.
    Robert E. Luna, Law Office of Earl Luna, P.C., Dallas, J. Darlene Ewing, Law Office of J. Darlene Ewing, Sunnyvale, for Appellants.
    Derrell Anthony Coleman, West and Associates, LLP, Dallas, Jennifer S. Riggs, Bill Aleshire, Riggs Aleshire & Ray, P.C., Austin, for Appellee.
    Before Justices MOSELEY, BRIDGES, and O’NEILL.
   OPINION

Opinion By

Justice BRIDGES.

Appellants have filed a motion for voluntary dismissal. We GRANT appellants’ motion and DISMISS this appeal.