author: SAM GRIFFITH, Justice.

text:
    Donald Emmett WARD, Sherrel Scarborough and Dennis Scarborough, Appellants, v. Thomas LADNER, Appellee.
    No. 12-08-00371-CV.
    Court of Appeals of Texas, Tyler.
    June 30, 2010.
    Rehearing Overruled July 30, 2010.

      Jeffrey B. Bates, Wesley E. Hoyt, Joe Glenn Kahla, for Appellant.
    John H. Seale, for Appellant.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J„ and HOYLE, J.
   OPINION ON REHEARING

SAM GRIFFITH, Justice.

Thomas Ladner filed a motion for rehearing, to which Donald Emmett Ward, Sherrel Scarborough, and Dennis Scarborough responded. Ladner’s motion for rehearing is granted. We withdraw our opinion and judgment of January 6, 2010 and substitute the following opinion and corresponding judgment in its place.

Donald Emmett Ward, Sherrel Scarborough, and Dennis Scarborough (collectively “Appellants”) appeal the trial court’s judgment entered in favor of Thomas Ladner. Appellants raise four issues on appeal. We affirm.

Background

Dillis Ward and his wife, Gertie, owned property on the shore of Toledo Bend Reservoir in Sabine County, Texas (the “property”). The property, on which stood a small store with living quarters, was surrounded by land owned by the Sabine River Authority of Texas. In 1987, Dillis Ward died. Thereafter, Dillis Ward’s son, Donald Ward (“Ward”), had a conversation with Ladner concerning the property. According to Ward, the two entered into an oral agreement whereby Ladner would rent the property. However, according to Ladner, the two orally agreed that he would purchase the property.

Ladner lived on the property during the late 1980s and, since that time, has received rental income from the campsites located predominantly on the adjacent property owned by the Sabine River Authority. Ward visited the property occasionally over the years and contacted Lad-ner prior to these visits. Ward’s daughter, Sherrel Scarborough, likewise visited the property occasionally during the relevant period and also contacted Ladner prior to her arrival.

In 1996, Gertie died. In 2007, by deed of gift, Ward transferred the property to Sherrel Scarborough and her husband, Dennis Scarborough. In January 2007, the Scarboroughs moved to the property. In August 2007, the Scarboroughs gave notice to Ladner that they would not continue to rent the property to him.

Ladner filed the instant suit seeking a declaratory judgment that he and Ward entered into a binding contract for the purchase of the property. Ladner further sought specific performance of an oral real estate contract. Ladner also made allegations of, among other things, trespass to try title and promissory estoppel. Thereafter, Ladner sought a temporary restraining order. In his sworn petition and affidavit filed in support of his petition for temporary restraining order, Ladner averred that Ward agreed to sell the property for $160,000 “paid at $500 per month with no interest (320 months or 26.6 years to pay off).” Ladner further alleged that he “agreed to this arrangement and began paying the monthly payments to Donald Ward by check mailed to Donald Ward’s address in Temple, Texas.”

Following the presentation of evidence, the matter was submitted to the jury. Ultimately, the jury found that the parties had entered into an oral agreement for the sale of the property. The jury further found that Ladner (1) made monthly payments on the $160,000 beginning in 1987 and continuing until October 2007, (2) took possession of the property in 1987 and retained such possession to the present time, and (3) made permanent and valuable improvements upon the property beginning in 1987. The trial court entered judgment in Ladner’s favor and ordered specific performance of the oral contract. By its judgment, the trial court further ordered the transfer of title to the property to Ladner and that Ladner pay the remainder of the unpaid balance of $160,000 at a rate of $625 per month. This appeal followed.

Variance

In their first issue, Appellants argue that the trial court abused its discretion by submitting Question 1 because the evidence at trial regarding the terms of the oral contract for sale of real estate differed materially and substantially from the terms of the contract alleged in Ladner’s live pleadings.

Generally, we review an issue of whether a question was improperly submitted to the jury for abuse of discretion. See Recognition Commc’ns, Inc. v. Am. Auto. Ass’n, Inc., 154 S.W.3d 878, 885 (Tex.App.-Dallas 2005, pet. denied); see also Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). A trial court abuses its discretion where it submits a jury question that is neither supported by the pleadings nor tried by consent. See Recognition Commc’ns, Inc., 154 S.W.3d at 885. A trial court abuses its discretion if its action is arbitrary, unreasonable, and without reference to any guiding rules or principles or where it clearly fails to analyze or apply the law correctly. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985).

The Texas Rules of Civil Procedure are designed to prevent a variance between pleading and proof from having the effect of precluding any recovery. See, e.g., Tex.R. Civ. P. 66, 67, 90. Nonetheless, a plaintiff in an action on a contract must recover, if at all, on the cause of action as it has been alleged. See Hollingsworth v. Nw. Nat’l Ins. Co., 522 S.W.2d 242, 246 (Tex.Civ.App.-Texarkana 1975, no writ). If the proof shows a contract essentially different from the contract alleged, the action will fail. See Sanchez v. Hernandez, 456 S.W.2d 497, 498 (Tex.Civ.App.-San Antonio 1970, writ ref'd n.r.e.).

Yet, not every variance between the contract pleaded and the proof offered is a fatal one. Id. For instance, a variance arising from an attempt to plead the evidence relied on to establish the existence of an oral contract is not fatal unless it tends to mislead or surprise the opposing pai'ty. See Bland v. Cruce, 238 S.W. 720, 722 (Tex.Civ.App.-Dallas 1922, no writ).

The Texas Rules of Appellate Procedure control the required contents and organization for an appellant’s brief. See Tex.RApp. P. 38.1. One of those requirements is that an appellant’s brief must contain a clear and concise argument, including appropriate citations to authority and the record. See Tex.R.App. P. 38.1(i). This requirement is not satisfied by merely uttering brief conclusory statements unsupported by legal citations. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.-El Paso 2007, no pet.). Failure to provide substantive analysis of the legal issue presented results in waiver of the complaint. Id.

In the case at hand, Appellants expressly recognize in their brief that, to be fatal, a variance must be substantial, misleading, constitute surprise, and be a prejudicial departure from the pleadings. But Appellants make only a single conclusory reference to this key issue apart from their recognition of its existence. Specifically, Appellants state, “To plead the terms of one contract in a sworn pleading, amend the terms claimed in trial testimony, then not be certain of the terms, then request a Jury issue that is silent as to the terms of the contract is substantially misleading and constituted surprise.... ” Appellants do not set forth any further facts underlying their being surprised or misled by this variance. As such, we hold that Appellants have waived the issue. See Tex. R.App. P. 38.1(i). Appellants’ first issue is overruled.

Specific Performance

Appellants’ second and third issues concern the trial court’s order of specific performance. In their second issue, Appellants argue that the trial court erred in ordering specific performance when there was a jury finding that an oral contract existed, but not jury findings determining the material terms of the contract. In their third issue, Appellants argue that the trial court erred in overruling their objection to Question 1 of the court’s charge due to its failure to make inquiry of the jury concerning essential contract terms or whether Ladner complied with those terms. Question 1 inquired of the jury as follows: “Did Thomas Ladner and Donald Ward enter into an oral agreement in 1987 in which Donald Ward agreed to sell the subject property to Thomas Lad-ner?” The jury answered Question 1 in the affirmative.

It is the trial court’s responsibility to submit a proper charge. See Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 158 (Tex.1994). One who seeks specific performance of a real estate contract must prove that he has diligently and timely performed or tendered performance of all obligations set forth in the contract. Texacally Joint Venture v. King, 719 S.W.2d 652, 653 (Tex.App.-Austin 1986, writ ref'd n.r.e.). Price is an essential term required for the sale of real property. See Rus-Ann Dev., Inc. v. ECGC, Inc., 222 S.W.3d 921, 927 (Tex.App.-Tyler 2007, no pet.). Thus, to be entitled to specific performance, Ladner had to prove that he paid the purchase price agreed to by the parties. See King, 719 S.W.2d at 653.

Whether an oral contract existed is a question of fact for the jury. See American Transfer & Storage Co. v. Reichley, 543 S.W.2d 162, 164 (Tex.Civ.App.-Amarillo 1976, writ ref'd). Because price is an essential element of a real estate contract, Ladner was required to secure a finding on the contract price to be entitled to specific performance.

At the charge conference, Appellants objected to the submission of Question 1 because it did not contain all of the essential terms alleged by Appellees in their pleadings, one of which was a contract price. Appellants further sought to submit a charge question that contained the contract price pleaded by Ladner.

The testimony in the case at hand establishes that both Ward’s and Ladner’s memories concerning some of the details of the transaction had faded during this interim period. Yet, the testimonies of the two principals did not waiver on certain core facts, which are summarized as follows: Ladner testified that Ward agreed to sell him the property for $160,000; Ward testified that no communications concerning an agreement to sell the property ever transpired between him and Ladner.

Ward’s testimony that there existed no agreement to sell the property amounts to a denunciation of the existence of the totality of the agreement, including a $160,000 contract price. However, there is no testimony of record concerning a contract price other than Ladner’s testimony that the agreed price was $160,000.00. Thus, even though Ward’s denial of the existence of the contract necessarily included a denial of any agreement concerning the price, the trial court’s submission of the question concerning whether the parties reached an agreement, if answered in the affirmative, necessarily disregards the totality of Ward’s testimony. As such, if the jury determined that the parties agreed that Ward would sell the subject property to Ladner, the evidence was conclusive regarding the sales price. Because the evidence was conclusive on this material term, no jury finding was required. See Bay Rock Operating Co. v. St. Paul Surplus Lines Ins. Co., 298 S.W.3d 216, 235 (Tex.App.-San Antonio 2009, pet. filed). Therefore, we hold that the trial court did not err in refusing to submit a question to the jury that made no inquiry concerning the sales price. We further hold that the trial court did not err in ordering specific performance absent a jury finding concerning sales price because the evidence concerning sales price was conclusively established. See Rus-Ann Dev., 222 S.W.3d at 927 (stating that specific performance will be decreed where essential terms of contract are expressed with reasonable certainty). Appellants’ second and third issues are overruled.

Evidentiary Sufficiency

In their fourth issue, Appellants argue that the evidence was both legally and factually insufficient to sustain specific performance under the equitable exception to the statute of frauds.

Legal Sufficiency

A party who challenges the legal sufficiency of the evidence to support an issue upon which he did not have the burden of proof at trial must demonstrate on appeal that there is no evidence to support the adverse finding. Bright v. Addison, 171 S.W.3d 588, 595 (Tex.App.-Dallas 2005, pet. denied). When reviewing a “no evidence” issue, we determine “whether the evidence at trial would enable reasonable and fair minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In making this determination, we must credit favorable evidence if a reasonable finder of fact could, and disregard contrary evidence unless a reasonable finder of fact could not. Id. The finder of fact is the sole judge of the credibility of the witnesses and the weight to be assigned to their testimony. See Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 557 (Tex.App.-Tyler 2007, pet. denied) (citing City of Keller, 168 S.W.3d at 819). The finder of fact is free to believe one witness and disbelieve another, and reviewing courts may not impose their own opinions to the contrary. Id. Accordingly, we must assume that the finder of fact decided all credibility questions in favor of the findings if a reasonable person could do so. Id. If a reasonable finder of fact could have done so, we must assume that the finder of fact chose what testimony to disregard in a way that favored the findings. See Canal, 238 S.W.3d at 557 (citing City of Keller, 168 S.W.3d at 820). A finder of fact “may disregard even uncontradicted and unimpeached testimony from disinterested witnesses” where reasonable. Canal, 238 S.W.3d at 557 (quoting City of Keller, 168 S.W.3d at 819-20).

Moreover, it is within the finder of fact’s province to resolve conflicts in the evidence. Canal, 238 S.W.3d at 557 (citing City of Keller, 168 S.W.3d at 820). Consequently, we must assume that, where reasonable, the finder of fact resolved all conflicts in the evidence in a manner consistent with the findings. Id. Where a reasonable finder of fact could resolve conflicting evidence either way, we must presume the finder of fact did so in favor of the findings. Canal, 238 S.W.3d at 557 (citing City of Keller, 168 S.W.3d at 821). Where conflicting inferences can be drawn from the evidence, it is within the province of the finder of fact to choose which inference to draw, so long as more than one inference can reasonably be drawn. Id. Therefore, we must assume the finder of fact made all inferences in favor of the findings if a reasonable person could do so. Id.

Additionally, any ultimate fact may be proved by circumstantial evidence. See Wal-Mart Stores, Inc. v. Bertrand, 37 S.W.3d 1, 12 (Tex.App.-Tyler 2000, pet. denied). However, the legal equivalent of no evidence exists when circumstantial evidence gives life to inferences equally consistent with two different propositions. Id. Furthermore, when circumstances are equally consistent with either of two facts and nothing shows that one is more probable than the other, neither fact can be inferred and the no evidence challenge must be sustained. Id.

Equitable Exception to the Statute of Frauds

The statute of frauds is an affirmative defense requiring that certain specified classes of contracts be in writing to be enforceable. See Tex.R. Civ. P. 94; Gerstacker v. Blum Consulting Engr’s, Inc., 884 S.W.2d 845, 850 (Tex.App.-Dallas 1994, writ denied). Whether a contract falls within the statute of frauds is a question of law. Gerstacker, 884 S.W.2d at 850. The instant case concerns allegations of a contract for the sale of real estate. Therefore, the parties’ contract, if any, is governed by the statute of frauds. See Tex. Bus. & Com.Code Ann. § 26.01(a), (b)(4) (Vernon 2009) (contract for sale of real estate not enforceable unless in writing and signed by person charged with agreement).

However, there exists an equitable exception to the statute of frauds. See Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (Tex.1921). In Hooks, the Texas Supreme Court held that to relieve a parol sale of land from the operation of the statute of frauds, three things are necessary: (1) payment of the consideration, whether it be in money or services; (2) possession by the vendee; and (3) the making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor. Id. The court described these three elements as “indispensable.” Id.

In the case at hand, the burden was upon Ladner to secure jury findings to support this equitable exception. See Choi v. McKenzie, 975 S.W.2d 740, 743 (Tex.App.-Corpus Christi 1998, pet. denied). He sought to do so by the submission of Questions 2, 3, and 4.

Payment of Consideration

Question 2 queries, “Did Thomas Ladner make monthly payments on the $160,000.00 beginning in 1987 and continuing until October 2007?” As set forth previously, since the jury determined that the parties agreed that Ward would sell the subject property to Ladner, the evidence was conclusive regarding the $160,000 sales price. Based on our review of the record, we note that there is evidence that either Ladner or someone acting on his behalf made multiple payments to Ward during the time period in question. Ladner testified that he paid $410 per month from 1987 through 2001 and, thereafter, paid $625 per month. Ladner further testified that he was “up to date” on his payments. Moreover, Ladner confirmed that such payments were made over one hundred fifty-six months. We hold that there is legally sufficient evidence to support the jury’s answer to Question 2.

Appellants argue that payments of money by Ladner to Ward is equally consistent with the competing arguments proposed by the parties. In other words, according to Appellants, there is no evidence tending to support that it is more probable that these payments were made as payment toward the purchase of the property than it is that the payments were made as rent. Thus, neither purpose for the payment of these monies can be inferred and Ward’s no evidence challenge must be sustained with regard to Question 2. See Bertrand, 37 S.W.3d at 12. However, the jury found in its answer to Question 1 that Thomas Ladner and Donald Ward entered into an oral agreement in which Donald Ward agreed “to sell the subject property” to Thomas Ladner (emphasis added). Determining facts is the exclusive province of the finder of fact in the trial court. See Barnes v. Western Alliance Ins. Co., 844 S.W.2d 264, 270 (Tex.App.-Fort Worth 1993, writ dism’d by agr.). An unchallenged jury finding is binding on an appellate court. See Reliance Ins. Co. v. Denton Cent. Appraisal Dist., 999 S.W.2d 626, 629 (Tex.App.-Fort Worth 1999, no pet.).

Here, we have overruled Appellants’ challenges to Question 1. As such, we are bound by the jury’s finding that Ward agreed to sell the subject property to Lad-ner. Consequently, because the jury found that there was an agreement to sell the property, we will not analyze Ladner’s payments to Ward in a manner inconsistent with the jury’s finding in Question 1. Possession

Question 3 asks, “Did Thomas Ladner take possession of the property in question in 1987 and retain such possession to the present time?” From our review of the record, we note that there is evidence that Ladner was in possession of the property during the relevant time period. However, similar to the evidence underlying payment of consideration, Appellants again argue that Ladner’s possession of the property is no more indicative of his status as a vendee than it is of his status as a person who is renting property. As with our analysis of the issue of payment of consideration, we decline to analyze Lad-ner’s possession of the subject property in a manner inconsistent with the jury’s finding in Question 1. Therefore, we hold that there is legally sufficient evidence to support the jury’s answer to Question 3.

Malting of Improvements with Consent

Question 4 asks, “Did Thomas Ladner make permanent and valuable improvements upon the property in question beginning in 1987?” Based on our review of the record, we conclude that there is legally sufficient evidence to support that Ladner made permanent and valuable improvements on the property. Specifically, the evidence supports that Ladner made improvements such as replacing the roof on the building located on the property and converting the interior of the structure, which was previously a store, to a residence. We note that no inquiry was made of the jury concerning Ward’s consent to these improvements. However, Ladner’s testimony supports that such improvements were made with Ward’s consent.

We hold that the evidence is legally sufficient to sustain specific performance under the equitable exception to the statute of frauds.

Factual Sufficiency

We test the factual sufficiency of the evidence by examining the entire record to determine whether a finding is clearly wrong and unjust. See Kinder Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 437 (Tex.App.-Texarkana 2006, no pet.). When considering a factual sufficiency challenge to a jury’s verdict, we must consider and weigh all the evidence, not just that evidence which supports the verdict. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). We can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We are not a fact finder. See Justiss, 202 S.W.3d at 437. Accordingly, we may not pass on the witnesses’ credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003); Ellis, 971 S.W.2d at 407. If we find the evidence is factually insufficient, we must clearly state why the jury’s finding is insufficient or is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

In the instant case, Appellants have not argued, outside of their statement of their fourth issue, that any particular finding is factually insufficient. Rather, they generally contend that the evidence is factually insufficient to sustain specific performance under the equitable exception to the statute of frauds. We have examined the entirety of the record; we have considered and weighed all of the evidence. Having done so, we have not determined that any evidence tending to contradict the evidence supporting the jury’s findings is of such character so as to cause us to conclude that the jury’s findings are clearly wrong and unjust. Therefore, we hold that the evidence is factually sufficient to sustain specific performance under the equitable exception to the statute of frauds.

Summation

As set forth above, we have concluded that there is legally and factually sufficient to sustain specific performance under the equitable exception to the statute of frauds. Accordingly, we hold that the exception set forth in Hooks v. Bridgewater is applicable and, as a result, the parties’ contract was relieved from the operation of the statute of frauds. Appellants’ fourth issue is overruled.

Disposition

Having overruled Appellants’ first, second, third, and fourth issues, we affirm, the trial court’s judgment.

      . Appellants were awarded a lien against the property to secure Ladner’s indebtedness un-lil the indebtedness was fully paid.

      . In their brief, Appellants note that in Rus-Ann Development, we “held that terms of the seller financing 'such as how, when, where, how much[,] and to whom payments were made' were necessary elements in the application of specific performance.” See Rus-Ann Dev., 222 S.W.3d at 927. However, according to our opinion in Rus-Ann Development, the language quoted by Appellants concerns the contentions made by the appellant in that case. See id. at 928. We did not specifically hold that these terms of seller financing were essential. See id. Rather, we noted that these terms were provisions of the lease agreement, which the trial court could consider in determining the terms of a contract to be enforced by specific performance. See id. In the instant case, Appellants do not expound upon the aforementioned quote from Rus-Ann Development concerning seller financing terms, but rather focus their argument on the amount of consideration generally. We will likewise concentrate our discussion of Appellants’ second and third issues accordingly. See Tex.R.App. P. 38.1(i).

      . The issue of evidence underlying Ladner's payment of consideration, as well as that of his possession of and making improvements to the property, is discussed in our analysis of Appellants’ fourth issue.

      . The court noted that absent such improvements, it would consider the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced. Id.

      . Ladner's trial testimony was given in May 2008. The parties stipulated at trial that the total amount of the payments made by Thomas Ladner to the defendants as of May 2008 was $120,185.00.

      . Question 4 is an incomplete submission to which no objection was made. See Tex.R. Civ. P. 279. Because the record contains some evidence that Ward consented to Ladner's making improvements to the property, which is consistent with the trial court's judgment, we deem the missing element of consent found. Id.; see Chon Tri v. J.T.T., 162 S.W.3d 552, 557 (Tex.2005); State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex.1995).


source: Caselaw Access Project

author: Chief Justice MORRISS.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. John Hardy TAYLOR, Appellee.
    No. 06-10-00013-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted July 6, 2010.
    Decided July 23, 2010.
    Rehearing Overruled Sept. 14, 2010.

      Richard Glaser, Fannin County Dist. Atty., James L. Moss, Asst. County Atty., Bonham, for appellant.
    Steven R. Miears, Bonham, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

Judy Pless suffered serious bodily injury in an unprovoked, August 13, 2008, attack by a dog allegedly owned by John Hardy Taylor. In its indictment, the State alleged that Taylor was criminally negligent in failing to secure his dog, in violation of Section 822.005(a)(1) of the Texas Health and Safety Code. The trial court quashed the indictment against Taylor on the basis that the statute on which the indictment is based is unconstitutional in failing to set forth any required culpable mental state. Clearly, Section 822.005(a)(1) sets out a culpable mental state of “criminal negligence.” Tex. Health & Safety Code Ann. § 822.005(a)(1) (Vernon 2010). Thus, Section 822.005(a)(1) cannot be unconstitutional merely for failing to require a culpable mental state.

The State appeals from the order quashing the indictment. Because we determine the statute to be constitutional, we reverse the order quashing the indictment.

Because the sufficiency of an indictment is a question of law, a trial court’s decision to quash an indictment is reviewed de novo. State v. Moff, 154 S.W.3d 599, 600 (Tex.Crim.App.2004). In reviewing the constitutionality of a statute, we presume the statute is valid and the Legislature has not acted unreasonably or arbitrarily. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002). In the absence of contrary evidence, we presume that the Legislature acted in a constitutionally sound fashion. The burden rests on the individual who challenges a statute to establish its unconstitutionality. Id. Thus, this appeal presents an unusual situation where, even though Taylor was successful in having the indictment quashed, the law nevertheless imposes a presumption that the statute is valid.

The statute must be upheld if a reasonable construction can be ascertained that will render the statute constitutional and carry out the legislative intent. Shaffer v. State, 184 S.W.3d 353, 363 (Tex.App.-Fort Worth 2006, pet. ref'd).

At the heart of Taylor’s complaint is the argument that Section 822.005(a)(1) of the Texas Health and Safety Code is unconstitutionally vague.

A statute is void for vagueness if it fails to define the criminal offense “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not permit arbitrary and discriminatory enforcement.” If, as in this case, a statute does not substantially implicate constitutionally protected conduct or speech, it is valid unless it is “impermissibly vague in all applications” or as applied to the defendant.

Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App.2007).

Section 822.005(a)(1) of the Code provides that a person commits an offense if the person is the owner of a dog and the person:

(1) with criminal negligence, as defined by Section 6.03, Penal Code, fails to secure the dog and the dog makes an unprovoked attack on another person that occurs at a location other than the owner’s real property or in or on the owner’s motor vehicle or boat and that causes serious bodily injury, as defined by Section 1.07, Penal Code, or death to the other person....

Tex. Health & Safety Code Ann. § 822.005(a)(1).

Taylor contends this section of the statute is unconstitutionally vague because it fails to inform a dog owner of the existence of a duty to secure his dog, even though it provides that the failure to do so is a criminal act. Moreover, in the absence of a corresponding requirement that a dog owner have knowledge of his dog’s dangerous propensities, the criminalization of the owner’s failure to secure his dog, claims Taylor, is a violation of his constitutional right to notice and due process of law.

Generally, the clarity or vagueness of a criminal statute depends on whether the statute provides sufficient notice of a particular charge to a particular defendant. State v. Zascavage, 216 S.W.3d 495, 497 (Tex.App.-Fort Worth 2007, pet. ref'd). To pass a vagueness challenge, a criminal statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited. Long v. State, 931 S.W.2d 285, 287 (Tex.Crim.App.1996). Further, in analyzing a statute for vagueness, where no First Amendment rights are involved, we must determine only if the statute is impermissi-bly vague as applied to the challenging party’s specific conduct. Bynum v. State, 767 S.W.2d 769 (Tex.Crim.App.1989).

Taylor relies on Billingslea v. State, 780 S.W.2d 271 (Tex.Crim.App.1989), in support of his position that the statute here is unconstitutionally vague as applied. Billingslea held that there must be a statutory duty to act apart from a general statement that “an omission is an offense.” Id at 274. Stated another way, for an omission to be an offense, there must be a corresponding duty to act. Id The duty to act may be contained within the same statute that proscribes the offense or it could be found in a different statute altogether. State v. Guevara, 137 S.W.3d 55, 56-57 (Tex.Crim.App.2004). Penal provisions are unconstitutionally vague when they criminalize a failure to act without informing those subject to prosecution that they must perform a duty to avoid punishment. Zascavage, 216 S.W.3d at 498.

In Billingslea, the defendant lived in a house with his ninety-four-year-old mother. He was prosecuted for injury to an elderly person by omission for failing to secure needed medical care. Billingslea, 780 S.W.2d at 273. The “injury to a child or elderly individual” statute did not itself assign a duty of care to any particular person. Id. at 276. Because no statutory duty of care for elderly persons existed, and the court rejected the notion of deriving duties from the common law, the State failed to establish the offense of injury to an elderly person by omission because it could not show the defendant had a duty to act. Id. Unlike the statute in Billingslea, which imposed a duty, if at all, on “every living person in the universe,” the statute at issue here does not impose such an all encompassing duty. See Guevara, 137 S.W.3d at 57.

Rather than imposing a duty on “every living person in the universe,” Section 822.005(a)(1) imposes only on the owner of a dog a duty to secure that dog. Tex. Health & Safety Code Ann. § 822.005(a)(1). Criminal liability is not unlimited in scope; rather, liability is limited to “a person who owns or has custody or control of the dog.” Tex. Health & Safety Code Ann. § 822.041(5) (Vernon 2010). Because the indictment stated the source of Taylor’s duty—the fact that he is the owner of the dog — the indictment gave sufficient notice of the source of the duty to act. See Smith v. State, 603 S.W.2d 846, 847 (Tex.Crim.App. [Panel Op.] 1980) (indictment charging criminal omission must set forth facts which give rise to statutory duty to act).

In addition, Taylor complains that the statute is unconstitutional because it criminalizes a dog owner’s failure to secure his or her dog when the dog has given no previous indication of vicious tendencies. We disagree. Liability under Section 822.005(a)(1) is imposed only when the dog owner is criminally negligent in failing to secure his or her dog:

A person acts with criminal negligence ... with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Tex. Penal Code Ann. § 6.03(d) (Vernon 2003).

For a dog owner to be criminally responsible for injuries inflicted by his or her dog, the owner must have been criminally negligent in failing to secure the dog. To support Taylor’s conviction of the criminally negligent failure to secure his dog, the evidence must have shown that Taylor was aware of a substantial and unjustifiable risk that the failure to secure his dog could result in the dog making an unprovoked attack on another person, causing serious bodily injury to that person.

While the statute does not explicitly spell out the duty of a dog owner to secure his or her dog when away from the owner’s home, car, or boat, a reasoned reading of the statute imposes such a duty in certain circumstances. Moreover, the imposition of such a duty is undergirded by the common law. In this regard, we are mindful of the change in the law since the Billingslea case was decided in 1989 (the court declined to adopt a duty of care from the common law). Billingslea, 780 S.W.2d at 276.

Section 6.01(c) of the Texas Penal Code establishes that a person who omits to perform an act does not commit an offense unless a law as defined by Section 1.07 provides that the omission is an offense or otherwise provides that he or she has a duty to perform the act. Tex. Penal Code Ann. § 6.01(c). Section 1.07(a)(30) of the Penal Code defines “Law” as “the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute.” Tex. Penal Code Ann. § 1.07(a)(30) (Vernon Supp. 2009). This 1993 statutory amendment incorporating the law as defined in the Texas Penal Code plainly includes the common law — written opinions of a court of record.

Under the common law, a dog owner has the general duty to exercise reasonable care to avoid foreseeable injury to others. See Kehler v. Eudaly, 933 S.W.2d 321, 330 (Tex.App.-Fort Worth 1996, writ denied). Whether the risk of injury from a dog bite is foreseeable depends in part on the owner’s actual or constructive knowledge of the vicious propensities of the dog. Dunnings v. Castro, 881 S.W.2d 559, 564 (Tex.App.-Houston [1st Dist.] 1994, writ denied); Gill v. Rosas, 821 S.W.2d 689, 691 (Tex.App.-El Paso 1991, no writ). The common law also recognizes that the owner of a domestic animal should realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and should exercise reasonable care to prevent foreseeable harm. Dunnings, 881 S.W.2d at 562.

Section 822.005(a) requires a dog owner to secure its dog under certain circumstances. This duty also exists in the common law, as a consequence of the general duty of a dog owner to exercise reasonable care to avoid foreseeable injury to others. However, it is only when a dog owner acts with criminal negligence in failing to secure his or her dog, and the dog causes serious bodily injury to another (while not on the owner’s property) can the owner be called to account under Section 822.005(a) of the Texas Health & Safety Code. Tex. Health & Safety Code Ann. § 822.005(a) (Vernon 2010).

We presume the Legislature acted in a constitutionally sound fashion in drafting this section of the statute, and find no evidence to the contrary. Section 822.005(a) defines criminal conduct with sufficient definiteness that ordinary people can understand what conduct is prohibited. We find this section of the statute to be constitutional.

We reverse the order quashing the indictment and remand this cause to the trial court for further proceedings consistent with this opinion.

      . Because this is an appeal of a pretrial order, no testimony or evidence appears in the record.

      . The trial court's order was the same in each of Taylor's four cases then before that court, two of which — this appeal and our appeal numbered 06-10-00014-CR — were under Section 822.005(a)(1) and the other two of which — our appeals numbered 06-10-00015-CR and 06-10-00016-CR-were under Section 822.005(a)(2). Tex Health & Safety Code Ann. § 822.005(a)(1), (2) (Vernon 2010).

      . Pless was attacked by two dogs August 13, 2008, both of which are allegedly owned by Taylor. Consequently, Taylor was indicted for both attacks. The second indictment, issued in trial court cause number 22888 and under Section 822.005(a)(1), is the subject of a separate appeal, our case numbered 06-10-00014-CR, the opinion in which is issued of even date herewith. We have also issued, of even date herewith, two additional opinions stemming from two separate indictments issued against Taylor under Section 822.005(a)(2) of the Texas Health and Safety Code, involving attacks by Taylor's dogs on Haiden Lynn McCurry, also August 13, 2008. Those opinions are issued in our cases numbered 06-10-00015-CR and 06-10-00016-CR.

      . There are no cases which address the precise issues brought before us in this appeal.

      . Billingslea has been superseded by statute. See Tex. Penal Code Ann. § 6.01(c) (Vernon 2003).

      . See Guevara, 137 S.W.3d at 57.

      . The Legislature’s 1993 amendment to Section 6.01(c) of the Texas Penal Code expanded Billingslea to allow common-law duties to form the basis for criminal prosecution. Zascavage, 216 S.W.3d at 497; see Act of Feb. 18, 1993, 73rd Leg., R.S., ch. 3, § 1, 1993 Tex. Gen. Laws 10.


author: DAVID PURYEAR, Justice.

text:
    Melody STRAUSS, Appellant, v. Robert BELT, Appellee.
    No. 03-08-00653-CV.
    Court of Appeals of Texas, Austin.
    July 23, 2010.

      James Scott Bellevue, Austin, TX, for appellant.

      Robert Belt, Austin, pro se.
    Before Chief Justice JONES, Justices PURYEAR and HENSON.
   OPINION

DAVID PURYEAR, Justice.

Melody Strauss sold property that she owned to Joseph Gitlin in 1985. In 2001, various taxing entities filed suit against Strauss and Gitlin for back taxes that were owed on the property. Specifically, the entities sought back taxes for years 1984 to 2001. In May 2002, the district court entered a judgment holding Strauss liable for the taxes owed for 1984 and 1985 and holding Gitlin liable for the remaining taxes. The judgment also specified that the property was to be sold at a tax-foreclosure sale. See Tex. Tax Code Ann. § 34.01 (West 2008) (setting out requirements for tax sales). The sale was scheduled for October 2007.

A little less than two weeks before the sale, Robert Belt paid Gitlin $1,000 for a quitclaim deed to the property. Although Belt obtained the deed, he did not pay any of the delinquent taxes. The property was sold at auction, and the sale resulted in $20,300.76 in excess proceeds. After the sale, a hearing was held to determine who was entitled to the excess proceeds. During the hearing, Strauss and Belt both contended that they were entitled to the excess proceeds. At the conclusion of the hearing, the district court awarded the excess proceeds to Belt. Strauss appeals the district court’s judgment. We will affirm the judgment of the district court.

STATUTORY FRAMEWORK

The issues raised in this case all relate to various portions of section 34.04 of the tax code. See Tex. Tax Code Ann. § 34.04 (West Supp. 2009). That provision addresses who may recover excess proceeds from a tax-foreclosure sale. Id. § 34.04(a) (stating that person may “file a petition in the court that ordered the seizure or sale setting forth a claim to the excess proceeds”). In addition, the provision provides a hierarchical list of claimants to whom excess proceeds may be paid. Id. § 34.04(c) (allowing recovery “to each party that establishes its claim to the proceeds”).

Some time after this appeal was filed, section 34.04 was amended by the legislature. See Act of May 14, 2009, 81st Leg., R.S., ch. 254, § 2, 2009 Tex. Gen. Laws 698, 699-700 (amending section 34.04). Many of the changes were minor, but subsection 34.04(c) was substantively modified. Id. For that reason, we will cite to the version of subsection 34.04(c) in effect at the time of the proceeds hearing, Act of May 28, 2003, 78th Leg., R.S., ch. 319, § 10, 2003 Tex. Gen. Laws 1350, 1355 (“former § 34.04(c)”), but will refer to the current versions of the other provisions as needed. At the time of the proceeds hearing, former subsection 34.04(c) specified that the court may award excess proceeds to “each former owner of the property, as the interest of each may appear.” Id.

Section 34.04 also authorizes a former owner to assign his rights to excess proceeds after a tax-foreclosure sale has occurred. Tex. Tax Code Ann. § 34.04(f)-(h). Under that provision, an individual can purchase a former owner’s right to the excess proceeds. Due to the possibility that these assignments could potentially be used to take advantage of property owners, the assignment provisions set out certain criteria that must be met before an assignment will be deemed valid, including requiring the assignee to wait until after the proceeds have been deposited into the court registry before executing an assignment and requiring the assignee to inform the former owner in writing how much excess proceeds were recovered from the tax sale. Id. § 34.04(f). If the statutory requirements are not complied with, the assignee has to pay the assignor the full amount of the excess proceeds “plus attorney’s fees and expenses.” Id. § 34.04(g).

DISCUSSION

On appeal, Strauss raises several related and overlapping issues. Although Strauss lists four issues in her opening brief and lists some other issues in her reply brief, she makes two main contentions. First, she argues that the district court’s judgment is improper because the manner in which Belt obtained the property constituted a “de facto assignment of proceeds” and because Belt did not comply with the tax code requirements for the assignment of proceeds. Second, she asserts that the district court’s judgment is inconsistent with the legislature’s intent to protect homeowners from unscrupulous business practices. We will organize this opinion around those main contentions.

Because the issues presented in this case pertain to the district court’s construction of the governing statutes, we review the issues de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). In construing a statute, appellate courts try to determine and give effect to the legislature’s intent. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). When performing this task, we look to the plain meaning of the words used, City of San Antonio, 111 S.W.3d at 25, and “read the statute as a whole to give effect to every part,” Gonzalez, 82 S.W.3d at 327.

De Facto Assignment

In her first challenge to the district court’s judgment, Strauss contends that because Belt’s “true goal” in obtaining the deed was “an assignment of the excess proceeds,” he should have had to comply with the assignment requirements listed in subsection 34.04(f). In other words, Strauss asserts that by obtaining a quitclaim deed shortly before the sale, Belt obtained a “de facto assignment of excess proceeds” instead of a transfer of property. Because Belt did not comply with the assignment requirements, Strauss insists that Belt had no legitimate claim to the excess proceeds. Strauss bases her claim regarding Belt’s true goal on her assertions that Belt knew the property was “subject to a tax foreclosure judgment,” was aware that there was “an impending tax foreclosure sale,” made “no effort to pay the taxes or delay the sale,” and made no attempt to redeem the property after the foreclosure sale. See Tex. Tax Code Ann. § 34.21(e)(1) (West Supp. 2009) (describing procedure in which former owner of property sold at tax sale may reclaim property). Alternatively, Strauss asserts that Belt waived any ownership rights to the excess proceeds by failing to demonstrate any “interest in protecting or maintaining the property.”

Our sister court faced similar issues in Woodside Assur., Inc. v. N.K. Res., Inc., 175 S.W.3d 421 (Tex.App.-Houston [1st Dist.] 2005, no pet.). In that case, N.K. Resources (“NKR”) purchased property from Lloyd Gibbs after a final judgment had been issued ordering that the property be sold at auction. Id. at 423. The sale occurred three days before the foreclosure auction. Id. After the sale, NKR applied for the excess proceeds, and the trial court released the proceeds to NKR. Id. On appeal, the appellant, Woodside Assurance Inc. (“Woodside”), argued that it had acquired an interest in the property and was entitled to the proceeds. Id. More importantly to the present ease, Woodside also insisted that NKR should not have been awarded the proceeds because it “manipulated the tax foreclosure process by purchasing the property three days before the auction” and because its “actions allowed it to bypass the requirements” pertaining to the assignment of excess proceeds. Id. at 426-27. When resolving these issues, the appellate court noted that nothing in the former tax code provision “prevents a third party from buying the subject property prior to the foreclosure sale.” Id. Moreover, although the court concluded that “NKR’s purchase of the property before foreclosure allowed it to avoid” the restrictions applicable to the assignments of proceeds “after foreclosure,” the court noted that it could find no “authority that precluded NKR from purchasing the property, or the owner from selling the property, prior to the imminent foreclosure.” Id. at 427.

We agree with the court in Woodside. Although Strauss characterizes Belt’s actions as a de facto assignment of excess proceeds after a foreclosure sale, it was not an assignment of proceeds. Rather, this case involved a transfer of ownership interests prior to a foreclosure sale. See N.K. Res., Inc. v. Sheldon Rd. Mun. Util. Dist., No. 01-04-00261-CV, 2005 WL 1118129, at *1-2, 2005 Tex.App. LEXIS 3604, at *4 (Tex.App.-Houston [1st Dist.] May 12, 2005, pet. denied) (mem. op.) (explaining that subsection 34.04(f) “is applicable only to an assignment of excess foreclosure proceeds given after the tax foreclosure sale by one who was the owner of the property-to-be-foreclosed at the time of the foreclosure sale. Section 34.04(f) is not applicable to conveyances of real property prior to that tax foreclosure sale”). The former tax code provision governing the resolution of this case allowed excess proceeds to be recovered by “each former owner of the property, as the interest of each may appear” once the party “establishes its claim to the proceeds.” Former § 34.04(c). By obtaining a quitclaim deed to the property from the previous owner (Gitlin), Belt became an owner of the property. See Geodyne Energy Income Prod. P’ship I-E v. Newton Corp., 161 S.W.3d 482, 486 (Tex.2005) (explaining that quitclaim deeds convey “the grantor’s rights in that property”). Further, because he owned the property before the auction, he became a “former owner” after the property was sold at auction.

Moreover, we cannot agree with Strauss’s assertion that Belt somehow waived his right to the proceeds by failing to maintain the property. Assuming, as suggested by Strauss, that Belt made no attempts to pay the taxes before the sale, to delay the sale, or to redeem the property, his inactions would not deprive him of his ownership status. Nothing in the governing statutes requires an owner to take any of the actions suggested by Strauss before becoming eligible to receive excess proceeds. To the contrary, foreclosure sales are authorized precisely because the owner has not paid the taxes owed on the property. See Tex. Tax Code Ann. § 34.01(a) (West 2008) (explaining that property may be “ordered sold pursuant to foreclosure of a tax lien”). In fact, the property was scheduled for auction because there were taxes owed on the property, and there seems to be no dispute that Gitlin would have been, entitled to the proceeds had he retained ownership of the property even though he did not pay the taxes owed. Belt’s actions were consistent with Gitlin’s, and Belt assumed Gitlin’s ownership status after obtaining the quitclaim deed. Accordingly, we cannot conclude that the inactions alleged by Strauss could have waived Belt’s statutory right to the excess proceeds.

For these reasons, we conclude that the statute at issue did not prohibit the transfer of ownership prior to a foreclosure sale. Further, we conclude that because the transfer was not an assignment of proceeds, Belt did not have to comply with the restrictions set out by the legislature regarding assignments of proceeds. We also conclude that Belt did not waive his right to the excess proceeds. Therefore, we overrule Strauss’s first issue on appeal.

Legislative Intent

In her second challenge to the district court’s judgment, Strauss contends that allowing Belt to collect the excess proceeds is inconsistent with the legislature’s intent. Again relying on the portion of the tax code provision pertaining to the assignment of excess proceeds (subsection 34.04(f)), Strauss contends that by imposing the requirements for a valid assignment of proceeds, the legislature has expressed its intent to protect owners from exploitative practices. See id. § 34.04(f). In fact, Strauss claims that prior to the legislature’s decision to impose the requirements, individuals were “exploiting the excess proceeds law to earn unconscionable profits” by taking advantage of particularly vulnerable property owners. Similarly, Strauss contends that Belt has created an unconscionable scheme to circumvent the protective requirements necessary for a proper assignment of proceeds by researching “upcoming tax sales,” by finding “properties valued significantly more than the taxes due,” and by obtaining “a quitclaim deed for nominal consideration” shortly before the sale without any intent to actually keep the property. While Strauss admits that Belt’s actions might follow “the letter of the law,” she insists that his actions and the district court’s judgment are inconsistent with “the intent of the law” and the legislature.

Undoubtedly, the current and former versions of subsection 34.04 demonstrate a legislative interest in protecting property owners from unscrupulous assignment practices occurring after a foreclosure sale, see id., but the statute in effect at the time of the proceeds hearing did not speak to the sale of property before a foreclosure sale and, accordingly, did not set out a similar protective scheme for property owners who sell their property prior to a foreclosure sale but after a judgment has been entered ordering that the property be sold, see former § 34.04(c). Although the sale of property prior to a foreclosure sale could result in the types of windfalls that Strauss suggests occurred under the prior statutory scheme when people sought to obtain assignments of excess proceeds after foreclosure auctions, we are not permitted to engraft legislative concerns regarding the assignment of proceeds to an entirely different activity that the legislature chose not to prohibit or restrict.

Our determination that the statute in effect during the relevant time did not evince a legislative intent to protect owners seeking to sell their property before a tax sale is supported by the fact that after the appeal in this case was filed, the legislature chose to address the problems potentially implicated by the sale of property prior to a tax sale but after a foreclosure judgment has been entered. Under the new statute, the only individuals who may file a claim for excess proceeds are former owners who are listed as defendants in the foreclosure judgment, are related to a defendant listed in the judgment, or have acquired an interest to the property due to the death of a defendant listed in the judgment. Tex. Tax Code Ann. § 34.04(c) (West Supp. 2009). Moreover, with the exception of relatives and those who acquire an interest due to the death of a defendant, the statute expressly forbids individuals from filing a claim for excess proceeds if they obtain an interest in property after a foreclosure judgment. Id. § S4.04(c-1) (West Supp. 2009).

In her second issue, Strauss also contends that Belt is not entitled to the excess proceeds under former section 34.04(c) of the tax code because he is not “a proper claimant” or a “former owner” as intended by the legislature. See former § 34.04(c) (allowing prior owners to be awarded excess proceeds if they establish their claims to proceeds).

Strauss insists that Belt could not properly establish a claim to the proceeds because his actions and inactions “were intended to circumvent the ... requirements of assignment of excess proceeds.” Accordingly, Strauss contends that individuals who “intentionally circumvent the law” cannot properly establish a claim. Similarly, although Strauss seems to concede that Belt owned the property at the time of the sale because of the quitclaim deed, she insists that quitclaim deeds cannot be used to effectively assign away rights to excess proceeds.

Although Strauss again characterizes Belt’s actions as essentially an assignment of rights to excess proceeds, that is not what occurred in this case. Moreover, Belt may have avoided the assignment requirements by purchasing the property shortly before the sale, but nothing in the governing statutes prohibited him from engaging in that action. In other words, because Belt did not obtain an assignment of excess proceeds, he did not need to comply with the requirements listed in the provision governing the assignment of proceeds. For that reason, we cannot conclude that Belt’s decision to purchase the property before the sale prevented him from properly establishing a claim. On the contrary, Belt established his claim to the proceeds as a former owner precisely by showing that he had purchased and obtained ownership of the property prior to the foreclosure sale.

Alternatively, Strauss contends that even if Belt has a claim to the excess proceeds, he “falls outside the [legislative intent of a ‘former owner.’ ” In making this assertion, Strauss notes that when the legislature made prior modifications to the portion of section 34.04 describing who may collect proceeds, the legislative history accompanying the modification “[c]lari-fie[d] that ... the last priority of payment of excess sale proceeds is to the former owner of the property, rather than the person who acquired the property at the sale.” House Comm. on Local Gov’t Ways & Means, Bill Analysis, Tex. H.B. 3419, 78th Leg., R.S. (2003). From this history, Strauss surmises that the legislature “intended for there to be different classes of ‘owners,’ each with different interests in the property, and each with a different basis for their claims. This amendment clarifies that certain types of ‘owners’ are not entitled to excess proceeds.” Accordingly, Strauss contends that even if Belt was the former owner, “he is not the type of former owner the legislature intended to receive excess proceeds.”

Strauss reads too much into the legislative history. Although it addressed a distinction between individuals who owned property before a foreclosure sale and those who owned the property after the sale, it made no further distinction among former owners. Stated differently, it made no distinction between former owners who owned property before a judgment was entered ordering that the property be sold at a foreclosure sale and former owners who purchased property after a judgment was entered but before the foreclosure sale occurred. Similarly, at the time relevant to this case, the governing statute made no distinction between the types of former owners mentioned above. See former § 34.04(c).

In light of the preceding, we cannot conclude that the district court’s judgment was inconsistent with any expressed legislative intent. Moreover, we cannot endorse Strauss’s assertions that Belt was not a proper claimant or a former owner. For these reasons, we overrule Strauss’s second issue on appeal.

CONCLUSION

Having overruled Strauss’s issues on appeal, we affirm the judgment of the district court.

      . As a preliminary matter, we note that in her briefs Strauss does not argue that the proceeds should have been awarded to her. Although she repeatedly asserts that Belt is not entitled to the proceeds, she does not assert that she is entitled to them. Given that Strauss relinquished ownership of the property over twenty years ago and given that Gitlin owned the property immediately before Belt, it is not entirely clear that Strauss would have any claim to the excess proceeds even if the district court’s decision were reversed. For this reason, Belt argues on appeal that Strauss is attempting to make arguments on behalf of Gitlin, which Belt insists Strauss does not have standing to make. However, Strauss was named as a defendant in the suit forming the basis for this appeal and was held liable for unpaid taxes. In addition, the cause number for the excess-proceeds hearings is the same as the cause number for the tax-foreclosure proceedings initiated by various taxing entities against Strauss and Gitlin. For these reasons, the record does not demonstrate that Strauss does not have standing to challenge the district court’s determinations. See Woodside Assur., Inc. v. N.K. Res., Inc., 175 S.W.3d 421, 425-26 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (addressing appellant's arguments as to why former owner (appellee) should not retain excess proceeds even though appellant had no right to claim excess proceeds).

      . Belt also contends that Strauss has “presented this Court with nothing of which to review or dispose” because she has not identified or argued "points of error committed by the trial court.” Although Strauss does not set out in her briefs specific errors that were allegedly committed by the district court, the foundation of her appellate arguments is her assertion that the governing statutes do not authorize the recovery of excess proceeds in the circumstances present in this case. Because issues of statutory construction are reviewed de novo on appeal, see City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003), we cannot agree with Belt's contention that Strauss “has neither claimed nor presented any [appellate] points for review.” Moreover, when courts determine that an appellant has failed to adequately brief an issue because he failed to identify errors allegedly committed by the trial court, the courts often also conclude that the appellant has waived any alleged error by failing to refer to any supporting legal authority or to the appellate record. See, e.g., Lee-Way Prince Enters., LLC v. QAI Assur., Inc., No. 01-07-01004-CV, 2009 WL 3490982, at *4-5, 2009 Tex.App. LEXIS 8372, at *12 (Tex.App.-Houston [1st Dist.] Oct. 29, 2009, no pet.) (mem. op.); Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 930-32 (Tex.App.-Houston [14th Dist.] 2008, no pet.); Colson v. PNB Trust & Asset Mgmt., No. 07-04-0116-CV, 2004 WL 2413312, at *1, 2004 Tex.App. LEXIS 9571, at *3 n. 2 (Tex.App.-Amarillo Oct. 28, 2004, no pet.) (mem. op.). In this case, however, Strauss refers to various legal authorities and to the appellate record in support of her contention that Belt should not have been awarded the proceeds.

      . In her briefs, Strauss insists that the reasoning in Woodside is inapplicable to the facts in this case. That case, like this one, involved a transfer of ownership after a foreclosure auction was scheduled but before the auction occurred. In particular, NKR (a corporation) purchased the property at issue in Woodside prior to the foreclosure auction. Although that court concluded that NKR was entitled to the proceeds, Strauss asserts that the holding in Woodside should not be applied to this case because unlike the current case, in Woodside a co-owner of NKR also bid on and purchased the property during the auction. See Woodside Assur., Inc., 175 S.W.3d at 423. In light of the fact that neither Belt nor one of his business partners bid on or purchased the property during the auction, Strauss contends that Woodside is distinguishable and cannot support a determination that Belt is entitled to the proceeds. Strauss also urges that the reasoning in Woodside should not be adopted by this Court because the court in Woodside did not consider the legislature's intent to protect homeowners from exploitative practices.
      While it is true that there were some differences between the facts in this case and those in Woodside, none of them meaningfully distinguish this case from Woodside. We can find no reason to conclude that the failure by Belt or one of his business partners to bid on or purchase the property at issue during tire auction should render the reasoning and holding from Woodside inapplicable to this case. Nothing in the governing statutes required a former owner to bid on or purchase the property at auction before he became eligible to any excess proceeds obtained due to the forced sale of the property. Moreover, as will be discussed more thoroughly in the next issue, the statute at issue evinced a public policy interest in protecting property owners from malicious assignment practices occurring after a foreclosure sale; however, the statute did not speak to potentially problematic practices that might occur before a sale but after a judgment has been entered ordering property to be sold at auction. Accordingly, the absence of a discussion about a legislative intent to protect homeowners in the Woodside opinion does not render the case inapplicable to the resolution of this case.

      . The legislative history pertaining to the amendments indicates that when the legislature made the changes, it had been informed of the possibility that the prior law allowed for the possibility of unscrupulous business practices. For example, the bill analysis summary of the argument from the individuals supporting the changes provides as follows:

        While the majority of firms that assist individuals to claim their rightful excess proceeds of a tax sale provide a valuable service and operate within the law, there are a few bad actors whose fraudulent actions and misrepresentations require tighter regulation of the industry. These unscrupulous groups prey on the old and disabled, the illiterate, and those who may not speak English. There have been instances in Texas where assignment companies received tens of thousands of dollars from a court but had first purchased the right to do so from a prior owner for a few thousand dollars. The most common business model for assignment companies is to scan public records for a pending tax sale, pressure an owner into selling the property about to be sold for dimes on the dollar, and then collect the windfall excess proceeds of the tax sale.
      House Research Org., Bill Analysis, Tex. H.B. 406, 81st Leg., R.S. (2009). Further, the house committee report stated that “Unscrupulous investors are exploiting the former owner’s rights to the” excess proceeds. House Comm, on Ways & Means, Bill Analysis, Tex. H.B. 406, 81st Leg., R.S., 2009. Similarly, the senate committee report related the following:
      Prior to the county auction, people unrelated to the property may obtain information about the former property owner, including contact information and the amount of excess proceeds owed to the former property owner. In an effort to make an investment, the person may then approach the property owner and offer to purchase the property owner's rights. If the property owner agrees to transfer his or her interest, the transfer may be accomplished by an assignment, transfer, or other contractual agreement.... This practice is unregulated, including the amount of the fees that may be charged. Consequently, very high fees may be charged.
      Senate Comm, on Fin., Bill Analysis, Tex. H.B. 406, 81st Leg., R.S. (2009).

      . Specifically, the new statutory language statute provides, in relevant part, as follows:
      (c) At the hearing the court shall order that the proceeds be paid according to the following priorities to each party that establishes its claim to the proceeds.

      (5) to each former owner of the property, as the interest of each may appear, provided that the former owner:
      (A) was a defendant in the judgment;
      (B) is related within the third degree by consanguinity or affinity to a former owner that was a defendant in the judgment; or
      (C) acquired by will or intestate succession the interest in the property of a former owner that was a defendant in the judgment.
      (c — 1) Except as provided by Subsections (c)(5)(B) and (C), a former owner of the property that acquired an interest in the property after the date of the judgment may not establish a claim to the proceeds. For purposes of this subsection, a former owner of the property is considered to have acquired an interest in the property after the date of the judgment if the deed by which the former owner acquired the interest was recorded in the real property records of the county in which the property is located after the date of the judgment.
      Tex. Tax Code Ann. § 34.04 (West Supp. 2009).

      . In her reply brief, Strauss alleges for the first time that Belt was not entitled to the excess proceeds because he "offered no evidence of the date of the tax foreclosure sale.” See Few v. Few, 271 S.W.3d 341, 347 (Tex.App.-El Paso 2008, pet. denied) (stating that appellate courts may not address issues raised for first time in reply brief). Accordingly, Strauss contends that there was no evidence to support his "contention that [he] was the owner of the property on the date of sale of the property.” See N.K. Res., Inc. v. Sheldon Rd. Mun. Util. Dist., No. 01-04-00261-CV, 2005 WL 1118129, at *1-2, 2005 Tex.App. LEXIS 3604, at *4 (Tex.App.-Houston [1st Dist.] May 12, 2005, pet. denied) (mem. op.) (upholding trial court’s decision to deny request for excess proceeds when appellant offered no evidence during trial to support contention that it purchased property two days before foreclosure).
      Even assuming that this issue is properly before us, we would still be unable to sustain Strauss's assertion of error. While it is true that no documents were admitted showing when the quitclaim deed was executed or when the foreclosure sale occurred, Belt did testify during tire hearing that he purchased the property "[t]wo weeks before the tax sale.” Further, the timing of those events was not in dispute during the proceeds hearing: Strauss never asserted that Belt had not purchased the property prior to the foreclosure sale. In fact, in her petition and in her amended petition, Strauss admitted that Belt "obtained a quitclaim deed to the property ... 13-days before the tax foreclosure sale.” Similarly, in her opening appellate brief, Strauss also concedes that Belt obtained a quitclaim deed prior to the sale. See Tex. R.App. P. 38.1(g) (explaining that in civil cases, appellate courts "accept as true” facts stated in appellant's statement of facts unless "another parly contradicts them” (emphasis added)).


author: Justice CARTER.

text:
    Harold Donnie HALBROOK, Appellant, v. The STATE of Texas, Appellee.
    No. 06-09-00205-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted July 8, 2010.
    Decided July 28, 2010.

      Jason A. Duff, Greenville, for appellant.
    Noble Walker, Jr., Dist. Atty., Keli M. Aiken, Asst. Dist. Atty., Greenville, for appellee.
    Before Morriss, C.J., Carter and Moseley, JJ.
   OPINION

Opinion by

Justice CARTER.

Six-year-old M.L. was made to suffer sexual abuse at the hand of her stepfather, Harold Donnie Halbrook. Indictments returned against Halbrook alleged that on or about July 7 and 18, 2007, he “cause[d] his sexual organ to contact and/or penetrate the mouth of [M.L.].” Trial to a jury led to convictions upon two counts of aggravated sexual assault of a child and a punishment assessment of life imprisonment. Hal-brook appeals his convictions on the grounds that the evidence is legally and factually insufficient to support them and that the trial court erred in admitting police officer’s testimony and video. We will affirm the trial court’s judgments.

I. Sufficient Evidence Supports Hal-brook’s Convictions

A. Standard of Review

We review the legal and factual sufficiency of the evidence supporting Hal-brook’s convictions under well-established standards. In conducting a legal sufficiency review, we consider the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App.2003). We must give deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We are not required to determine whether we believe that the evidence at trial established guilt beyond a reasonable doubt; rather, when faced with conflicting evidence, we must presume that the jury resolved any such conflict in favor of the prosecution, and we must defer to that resolution. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App.1993).

In conducting a factual sufficiency review, we consider the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006). The verdict will be set aside only if (1) it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust, or (2) it is against the great weight and preponderance of the evidence. Id. at 414-15 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000)). Both legal and factual sufficiency are measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex.Crim.App.2008).

Under a hypothetically correct jury charge, Halbrook committed the offense of aggravated sexual assault of a child if he intentionally or knowingly caused the penetration of the mouth of M.L. by his sexual organ, and M.L. was younger than fourteen years of age at the time. Tex. Penal Code Ann. § 22.021(a)(l)(B)(ii), (2)(B) (Vernon Supp.2009). A person acts intentionally with respect to the nature of his or her conduct or to a result of his or her conduct when it is their conscious objective or desire to engage in the conduct or cause the result; a person acts knowingly with respect to a nature of his or her conduct or the circumstances surrounding their conduct when he or she is aware of the nature of their conduct or that the circumstances exist. A person acts knowingly with respect to a result of his or her conduct when they are aware that the conduct is reasonably certain to cause the result. Tex. Penal Code Ann. § 6.03(a), (b) (Vernon 2003).

B. Time of Offense

Halbrook first complains that the evidence is insufficient to establish that the offenses occurred within the time frame alleged by the State. The State is not required to allege a specific date in an indictment. Mitchell v. State, 168 Tex. Crim. 606, 330 S.W.2d 459, 462 (1959). “It is well settled the “on or about” language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.” Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.1997) (citing Tex.Code CRIM. PROC. Ann. art. 21.02(6) (Vernon 2009); Scoggan v. State, 799 S.W.2d 679, 680 n. 3 (Tex.Crim.App.1990)) (“[T]he State is not bound by the date alleged in the indictment ... so long as the date proved is a date anterior to the presentment of indictment and the crime’s occurrence is not so remote as to be barred by limitation.”); Thomas v. State, 753 S.W.2d 688, 692 (Tex.Crim.App.1988) (“[W]here an indictment alleges that some relevant event transpired ‘on or about’ a particular date, the accused is put on notice to prepare for proof that the event happened at any time within the statutory period of limitations.”). The indictments alleged a date after which M.L. spoke with the police. Aggravated sexual assault of a child under Section 22.021(a)(1)(B) of the Texas Penal Code is an offense for which there is no limitation by statute. See Tex.Code Crim. Proc. ANN. art. 12.01(1)(B) (Vernon Supp. 2009). Thus, the State proved that the offense occurred more than once prior to the date alleged in the indictment.

C. The Evidence

Deputy Nathan Ehrhart was led to Halbrook’s home after receiving a tip from a concerned parent. M.L. was taken to the Crisis Center of Northeast Texas, where she was interviewed by executive director Kacy Flanagan. The video recording of M.L.’s interview was played for the jury, in which she told Flanagan that Halbrook “made me suck on his winkie” “lots of times.”

“The testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault.” Ozuna v. State, 199 S.W.3d 601, 606 (Tex.App.-Corpus Christi 2006, no pet.) (citing Tex.Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App.1978)). M.L. testified in front of the jury that her stepfather, “Donny” touched the inside of her mouth with the “front part” used for “[g]o-ing to the restroom” a “lot of times.” M.L. illustrated this act for the jury through stick figure drawings.

Looking at this evidence in the light most favorable to the verdict, we determine that a rational jury could have found the following beyond a reasonable doubt: that Halbrook, a.k.a. “Donny,” intentionally or knowingly caused the penetration of the mouth of M.L. by his sexual organ, more than one time, and that M.L. was younger than fourteen years of age at the time. Tex. Penal Code Ann. § 22.021(a)(1)(A)(i), (2)(B) (Vernon Supp. 2009); Watson, 204 S.W.3d at 414-15. Even examined under a neutral light, we find that the verdict was not clearly wrong, manifestly unjust, or against the great weight and preponderance of the evidence. Id. at 415 (citing Johnson, 23 S.W.3d at 11). Thus, the evidence was both legally and factually sufficient.

II. Admission of Ehrhart’s Testimony as Outcry Statements Was Not Error

Ehrhart stated that M.L. “simply told me that her father was making her put his penis in her mouth.” A video of Ehrhart’s initial visit and interview with the children was played for the jury, in which M.L. implicated Halbrook. Hal-brook’s counsel objected to Ehrhart’s testimony and police car video of the interview, alleging that they were hearsay and that “M.L. testified the first adult she told was her uncle.”

If a “statement about the offense” alleged is made by a victim under fourteen years of age, “the first person, 18 years of age or older,” to whom the statement was made may testify about the victim’s statements at trial. Tex.Code Crim. Proc. Ann. art. 38.072, § 2 (Vernon Supp.2009). Testimony of such an outcry witness is an exception to the hearsay rule. Padilla v. State, 278 S.W.3d 98, 107 (Tex.App.-Texarkana 2009, pet. ref'd).

In this case, direct examination of M.L. produced the following:

Q. Did you ever talk to anyone like your mom or a police officer or the judge?
A. I told the police officer....
Q. Had you ever told your mama before you told the policeman?
A. Yeah.
Q. You told her.
A. She was there.
Q. She was there and heard you tell the policeman. But before that night had you ever told your mama what Donny was doing to you?
A. No.
Q. Before you told the policeman, did you tell any other adults?
A. My uncle.
Q. You told your uncle. Was he there with the policeman too?
A. I’m not really sure. I forgot.

The following exchange occurred during cross-examination:

A. ... That was my uncle that I told.
Q. Oh, your Unele John.
A. No. He’s out in the hall.
Q. Okay. And you told him something before, right? Before you told the officer?
(Shakes head in the affirmative).

The evidence establishes that some statement by M.L. was made to the uncle before the statements made to Ehrhart. However, the Texas Court of Criminal Appeals has interpreted Article 38.072 of the Texas Code of Criminal Procedure to require that the previous statement be one which “in some discernible manner describes the alleged offense.” Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App.1990). It must be “more than words which give a general allusion that something in the area of child abuse was going on.... The statute demands more than a general allusion of sexual abuse.” Id.; see also Thomas v. State, 1 S.W.3d 138, 140-41 (Tex.App.-Texarkana 1999, pet. ref'd).

“Trial courts are afforded broad discretion in determining the admissibility of outcry statements, and the decision to admit such evidence will not be disturbed absent a clear abuse of that discretion.” Harvey v. State, 123 S.W.3d 623, 627 (Tex.App.-Texarkana 2003, pet. ref'd) (citing Garcia, 792 S.W.2d at 92). We will not substitute our judgment for that of the trial court unless it acted in an arbitrary or unreasonable manner, without reference to any guiding rules or principles. Id. (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990)).

From M.L.’s testimony, while it appears that Ehrhart was not the first person over eighteen whom she told about “what Donny was doing” to her, there is nothing in the record suggesting M.L.’s statements to her uncle described the alleged offense in some discernible manner. In contrast, the record establishes M.L.’s discernible statement to Ehrhart. In Garcia, the child complainant made general statements of abuse to her teacher. 792 S.W.2d at 91. From the record, the court was unable to determine “what it was the complainant told her teacher.” Id. Garcia found that where the State laid “a proper predicate that [a child protective specialist] was the outcry witness,” and “the defense had ample opportunity to recall [the teacher] in an attempt to rebut this predicate, but failed to do so,” and did not “elicit testimony from the complainant regarding the specifics of the statements she made to [the teacher],” the trial court was within its discretion to consider the child protective specialist as the proper outcry witness. Id. at 91-92. Similarly, in this case, the defense had the ability to call the uncle who “was out in the hall,” or recall M.L. in order to clarify the statements she made to him. Because the defense failed to do so, we find the trial court was within its discretion in finding Ehrhart to be the proper outcry witness. See In re Z.L.B., 102 S.W.3d 120, 122-23 (Tex.2003) (“defendant in this case had the burden to introduce evidence that J.M.’s statement to his mother was more than just a general allusion to abuse”). We overrule this point of error.

Halbrook also argues that the trial court erred by faffing to conduct a hearing outside the presence of the jury to determine if the statement given to Ehr-hart was reliable. Tex.Code CRiM. Proc. Ann. art. 38.072, § 2(b)(2). The State has the burden to comply with the terms of the statute, and the trial court is required to determine the statement is reliable after a hearing conducted outside the presence of the jury. Id. The provisions of the statute are mandatory and must be satisfied. Long v. State, 800 S.W.2d 545, 547 (Tex.Crim.App.1990). An issue that has split some of the courts of appeals is whether a more specific objection than “hearsay” is required to preserve argument that a section of the statute has been violated (lack of notice, failure to conduct hearing, etc.). Zarco v. State, 210 S.W.3d 816, 828 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (compilation of Texas opinions on this issue). We believe the Texas Court of Criminal Appeals has definitively resolved this issue in Long when it held that Long preserved error by his hearsay objection and therefore was allowed to argue that the trial court failed to conduct a hearing to determine if the statement was reliable as required by the statute. Long, 800 S.W.2d at 548. We agree with the holding in Zarco, “we will follow the Court of Criminal Appeals’ binding precedent....” This argument is preserved for our consideration.

Here, during Ehrhart’s testimony, the trial court conducted a hearing outside the presence of the jury to determine the admissibility of a video recording of a ten-minute portion of the child’s statement. This procedure necessarily involved a review of the child’s statement and was more extensive than Ehrhart’s abbreviated report of the child’s statement. The State argued the video recording would show “the actual scene when the officer responds and it shows the layout of the area, how they talked to everybody, what was said.” A bench conference has been found to fulfill the requirements of the statute. Zarco, 210 S.W.3d at 831. We find that this review by the trial court satisfied the hearing requirement; by overruling the objection, the trial court impliedly found the statement given to the officer and recorded on the videotape was reliable. Id.

III. Conclusion

We affirm the judgment of the trial court.

      . Halbrook was also convicted of two counts of aggravated sexual assault and four counts of indecency with his then eight-year-old daughter, M.B. Although Halbrook filed a single brief addressing points of error presented in this case and companion cause number 06-09-00204-CR, which were tried together, we address each case separately since certain points of error apply only to one case or the other.

      . Halbrook argues that M.L. failed to identify him during trial. It is clear that M.L. looked at a picture of Halbrook and identified him as “Donny.”

      . The hearsay objection was only that the officer’s testimony and the video recording were not admissible because "the first person outcry was made to the uncle.”