Aaron Chevalier v. W.M. Roberson

Opinion

FILED IN 1STCOURT OFAPPEALS HOUSTON, TEXAS

Case No. 01-15-00225-CV NOV IB 2015 IN THE CHRISTOPHER A^RINE

COURT OF APPEALS

FIRST JUDICIAL DISTRICT

HOUSTON, TEXAS

Aaron Chevalier, Appellant-Tenant

-vs-

W M Roberson, Appellee-Landlord (Pro Se)

On Appeal from Judgment No. 1058132 County Civil Court at Law No. One Hon. Debra Ibarra Mayfield, Judge Houston, Texas

FIRST AMENDED BRIEF FOR APPELLEE (PRO SE)

W M ROBERON P.O. Box 842583 Houston, TX 77284 Request for Oral Argument

Appellee does not waive oral argument. Appellee believes that oral

argument is not necessary for this Court to understand the issues in the

Brief. However, if this Court desires oral argument, Appellee wishes to

participate. Tex.R.App.P.39.7. Identities of Parties and Counsel

The following is a complete list of names and addresses of all parties to the

trial court proceeding and their counsel.

Appellant: Aaron Chevalier

Appellant's Counsel: Nasischa Biscette, 1811 Bering Dr. #300, Houston, TX 77057

Appellee: W M Roberson (Pro Se)

Appellee's Counsel: P.O. Box 842583 Houston, TX 77284-2583

Trial Court Judge: The Hon. Debra Ibarra Mayfield (former-County Civil Court at Law # 1) Harris County, Texas Table of Contents

Page: Request for Oral Argument i

Identities of Parties and Counsel ii

Table of Contents iii

Index of Authorities iv-ix

Statement of the Case 1

Statement of Facts . 1-8

Summary of the Argument 8

Argument and Authorities .9-29

Conclusion and Prayer 29

Certificate of Service . 30

Certificate of Compliance . 30

Appendix . . 31 Index of Authorities

Federal Cases and Statutes:

Fuentesv. Shevin, 92 S.Ct. 1983, 1994(1971) .25

U.S. Const., Article I, §10 (Contract) 19

U.S. Const., XIV Amend. (Due Process & Equal Protection). 3-4, 24-25

Texas Cases:

Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) 27

Bell v. Ott, 606 S.W.2d 942, 952 (Tex. App.-Waco 1980, writ refdn.r.e.) 22

Black v. Washington Mut. Bank, 318 S.W.3d 414, 416,417 (Tex. App. -Houston [1st Dist.] 2010, pet. dism'd w.o.j.) 10,13

Bittinger v. Wells Fargo, N.A., as Trustee, 14-10-00698-CV (Tex.App-Houston [14th Dist.] 2011) 11

Gate v. Woods, 299 S.W.3d 149,152 (Tex. App. -Texarkana 2009, no pet.) 20

Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) .18

Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852 (Tex. 1992) . . 28

City of El Paso v. Heinrich, 284 S.W.3d 366, 377 (Tex. 2009) . .19

City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) . 26, 28 Cubertson v. Brodsky, 788 S.W.2d 156,157 (Tex. App.-Fort Worth 1990, writ denied) 20

Diversified, Inc. v. Hall, 23 S.W.3d 403,406 (Tex. App.-Houston [1st Dist.] 2000, pet, denied) 21-22 iv Pormady v. Dinero Land & Cattle Co., L.C, 61S.W.3d 555, 557 (Tex. App. -San Antonio 2001, pet. dis'm w.o.j.)(op. on reh'g) 11

Dow Chem. Co. v. Frances, 46 S.W.3d 237, 241 (Tex. 2001) 27-28

Enter. Leasing Co. v. Barrios, 156 S.W.3d 547, 549-50 (Tex. 2004) (per curiam) .17

Foreness v. Hexamer, 971 S.W.2d 525 (Tex. App.-Dallas 1997, pet. denied) 15

Geodyne Energy Income Prod. P'ship l-E v. Newton Corp., 161 S.W.3d 482, 486-87 (Tex. 2005) 21

Gordon v. West Houston Trees, LTD., 462 S.W.3d 520, 522-23 (Tex. App. -Houston [1st Dist.] 2011) 21-23

GTE Mobilnet of South Texas vs. Pascouet, 61 S,W.3d 599, 616 (Tex. App. -Houston [14 Dist.] 2001, pet denied). .28

Haginas v. Malbis Mem. Found., 354 S.W.2d 368, 371 (Tex. 1962) . 10

Hahn v. Love, 321 S.W.3d 517,531 (Tex. App. -Houston [1st Dist.] 2009, pet. denied) .22

Haith v. Drake, 596 S.W.2d 194, 196 (Tex. App.-Houston [1st Dist] 1980, writ refdn.r.e.) . .10

Hebisen v. Clear Creek Indep. Sen. Dist,, 217 S.W.3d 527, 536 (Tex. App.—Houston [14th Dist] 2006, no pet.) . .17

Henningan v. I.P. Petroleum Co., 858 S.W.2d 371, 372 (Tex. 1993) .23

Holy Cross Church of God in Christ v. Wolf, 44S.W.3d562, 568 (Tex. 2001) 23

In re Cerberus Capital Mgmt., LP., 164 S.W.3d 379, 382 (Tex. 2005). 27 In re Marriage of Rice, 96 S.W.3d 642, 645-46 (Tex. App.—Texarkana 2003, no pet.) 18

Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1 9 8 3 ) . . . 26

Jacobs v, Cude, 641 S.W.2d 258, 260 (Tex. Civ. App.—Houston [14th Dist.] 1982, writ, ref.'d n.r.e.) 15-16

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 755 (Tex.2003). 21

Koslow's v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990) ... 27

Longoria v. Lasater, 292 S.W.3d 156,165 n, 7 (Tex. App. -San Antonio 2009, pet denied) .22

Lopez v. Sulak, 76 S.W.3d 597, 605 (Tex. App.-Corpus Christi 2002, no pet.) 12

Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001) ... 20

Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402,407 (Tex. 1998) . 27

Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006) 11

Martin v. Amerman, 133S.W.3d262, 267 (Tex.2004) ... 22

McGlothlin v. Kliebert, 672 S.W.2d 231, 233 (Tex. 1984) . .12

Mclntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2789 (2011) . 9

Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.—Houston [1st Dist] 1995, writ denied) .10

Morris v. American Home Mortgage Serv., Inc., 360 S.W.3d 32, 34-35 (Tex. App. -Houston [1st Dist] 2012, no pet.) 10-14,16

Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441,446 (Tex. App.-Houston [1st Dist] 2006, pet. denied) .13 vi Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist] 2007, no pet.) .17

Nissan Motor Co. v. Armstrong, 145 S.W.3d 131,144 (Tex. 2004) . 25

Noell v. Crow-Billingsley Air Park Ltd. P'ship, 233 S.W.3d 408,416-17 (Tex. App. -Dallas 2007, pet. denied) . 20

Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1 9 8 6 ) . . . 28

Puentes v. Fannie Mae, 350 S.W.3d 732 (Tex. App. -El Paso, 2011, pet. dism'd w.o.j.) .24

Rice v. Pinney, 51 S.W.3d 705, 708, 713 10-12 (Tex. App.—Dallas 2001, no pet)

Richards v. Schion, 969 S.W.2d 131,133 (Tex. App.—Houston [1st Dist] 1998, no pet.) .18

Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 769 (Tex. 1994) 20-22

Sandoval v. Comm'n for Lawyer Discipline, 25 S.W.3d 720, 722 (Tex. App.—Houston [14th Dist] 2000, pet, denied) 17-18

Schafer v. Conner, 813 S.W.2d 154,155 (Tex. 1991) (per curiam) 17-18

Scott v. Hewitt, 127 Tex. 31,90 S.W.2d 816, 818-19 (1936) . 12

Smith v. Pass, Inc., 283, S.W.3d 537, 542 (Tex. App. -Dallas, 2009, no pet.) 20

Solomon, Lambert & Roth Assoc, Inc. v. Kidd, 904 S.W.2d 896, 901 (Tex. App. [1st Dist] 1995, no pet.) 15

State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007) . .13

State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) 9

VII Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994) . 24

Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44,446 (Tex. 1993). . 9, 13-14

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) 13

Thomson v. Locke, 66 Tex. 383,1 S.W. 112,115(1886) . . . 22

Villalon v. Bank One, 176 S.W.3d 66, 71 (Tex. App.—Houston [1st Dist] 2004, pet. denied) 11-12

Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010) . 26

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). .27

White v. White, 142 Tex. 503, 179 S.W.2d 503, 505 (1944) . 15

Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.-Dallas 2010, no pet.) 10,12

Texas Statutes and Rules:

TEX. CIV. PRAC.& REMEDIES CODE ANN. §16.021 etseq. . . 23

TEX. CONST. Art. I, §16 (due course of law) . . 20

TEX. CONST. Art. V, § 19 .9

TEX. CONST. Art. XVI § 50(a) 20

TEX. GOV'T CODE ANN. § 27.031(a)(2) (Vemon Supp. 2014) . . 10

TEX. GOV'T CODE ANN. § 27.031(b) (4) 10

TEX. PENAL CODE ANN. §§ 1.07(a), (35), (A-B) . . . . 19

TEX. PENAL CODE ANN. § 1.07(a) (39) 19 viii TEX. PROBATE CODE 52A (Affidavit of Heirship) 14

TEX. PROP. CODE ANN. § 13.001(b) (West 2004) . ... 20

TEX. PROP. CODE ANN. §22.001 (a) (Vernon 2000) . . . 21

TEX. PROP. CODE ANN. § 24.002 11

TEX. PROP. CODE ANN. § 24.004 (Vemon 2014) . 9-10

TEX. PROP. CODE ANN. § 24.005 11

TEX. PROP. CODE ANN. §§91.001(e) (1-2) 11

TEX. R. APP. P. 33.1(a) 18-19

TEX. R. APP. P. 34.1 16

TEX. R. APP. P. 34.6(c)(1) 18

TEX. R. APP. P. 38.1(g) 1,8

TEX. R. APP. P. 44.1(a) (1-2) 24

TEX. R. CIV. P. 21 (Service of Record) . . . . . . 25

TEX. R. CIV. P. 21a (Certificate of Service) 25

TEX. R. CIV. P. 21b 25

TEX. R. CIV. P. 93, (7) 18

TEX. R. CIV. P. 510.10(c) .10

TEX. R. CIV. P 746 10

IX TO THE HONORABLE COURT:

W M Roberson, appellee (pro se), respectfully submits his brief in the

above captioned case, showing:

Statement of the Case

This is an eviction case (Appx 5; CR 6-9). In an appeal from the justice

court, the county court at law determined that appellee W M Roberson had a

superior right of possession of a residence (Appx 25-26).

Statement of Facts

TEX. R. APP. P. 38.1(g) states that the statement of facts portion of an

appellant's brief "must be supported by record references." Appellant's

Brief violates this rule by providing no record citations, and therefore, the

following statement of facts is provided by the Appellee.

On Feb. 23, 2015, the trial court heard testimony and received evidence

from the Appellee that on March 9, 2005, a special warrant deed was signed

by Ella F. Wilmore conveying ownership of the residence in question to

Appellee (See Id.; Appx 36-37). In May 2012, a landlord-tenant agreement

was signed and initialed by Appellant to rent from Appellee said property on

a monthly basis to commence on June 1, 2012 (Id.; Appx 28-32).

In July 2012, Appellee filed in the county property records an affidavit

notice of "deed and adverse possession" citing his special warrant deed, as legal "Remedies for the Record Owner" in response to allegations a

trespasser "may have" lived in his boarded-up property prior to his total

renovation and rental of the premises (Id.; Appx 36-37, CR 67-68,189).

In Oct. 2012, Appellant complained that the name "Ella F. Wilmore"

signed on the special warrant deed is different than "Ella Francis Townsend"

named in a 1959 deed; despite knowing that she later married Mr. Wilmore;

and Appellant filed in the prior trial record (but withheld from Appellee) an

ownership and encumbrance report, and partial pages of a home equity loan

that both prove "Ella F. Wilmore's" signature in Sept. 1999 (Id.; Appx 36-37,

CR 155-156), but he withheld from evidence loan "Page 7 of 8" which would

have proved that Wilmore's initials and signature match the deed to Appellee

(Id., Appx A-1); and a Texas driver's license issued to "Ella F. Wilmore" was

used on the loan to ID her by a notary (Id.; CR 165-171); and he also

withheld an escrow account that further proves she had abandoned the use

of her maiden name of "Townsend" shortly after her husband's death in 1979

(Id.; CR 175). Appellee offered new evidence that "Ella Francis Wilmore" is

also the name used in her own obituary in 2008 (Id.; CR 38).

On Oct. 24, 2012, Appellant filed a baseless criminal complaint with the

District Attorney's Office similarly alleging that the Appellee had fraudulently rented the premises, but there is no finding of probable cause to arrest

(Id.; CR 177).

On Nov. 1, 2012, Appellant failed to pay rent and breached lease

contract paragraphs 4, 21, 22 & 28, and failed to quit possession after being

served notices to terminate lease and vacate the premises (Id.; Appx 28-32).

On Nov. 16, 2012, Appellant filed a small claims action in the Justice of

the Peace Court, Precinct 5, Place 1, alleging that Appellee fraudulently

rented the premises in which he moved into "on June 1, 2012," contrary to

his later claim of move-in "In 2011"), and that lawsuit was also dismissed

after Appellee discovered said impeachment evidence (Id.; CR 146, 204).

On Jan. 9, 2013, Appellee filed a prior eviction action due to Appellant's

failure to pay rent or vacate the premises at 6922 Cluett St, Houston, TX

77028 (Id.; CR 141). On Jan. 25, 2013, Appellant filed an unserved ex parte

answer with exhibits alleging that Appellee did not own the premises, and

that he had a "grandson" "sole heir" "caretaker" claim to the premises without

due process notice or certificate of service to Appellee (Id.; CR 43, 143-144

et seq.; 190). On Jan. 30, 2013, the Justice Court entered judgment for

possession of the premises to Appellee. On Feb. 21, 2013, Appellant filed

another unserved ex parte answer with exhibits alleging new and unsworn fraud allegations without due process notice or certificate of service to

Appellee (Id; CR 192-193 et. seq.).

On Feb. 28, 2013, Appellant filed in the county property records a

warrant deed to the premises signed on Feb. 25, 2013, by an alleged "sister"

"co-heir," which admittedly and conclusively refutes Appellant's prior

"grandson" "sole heir" "caretaker" claim (Id., CR 43, 44-46); moreover, he

withheld this impeachment evidence from the trial court and Appellee).

and this new evidence was first discovered by Appellee on Oct. 31, 2014.

On March 4, 2013, the County Civil Court at Law No. 1 un-wittedlv

considered the unserved ex parte exhibits, and entered a take nothing

judgment (Id,; CR 191). On April 4, 2013, Appellee filed notice of appeal.

On April 10, 2013, Appellee filed an amended motion for new trial based on

first knowledge that the face of the appellate record contains conclusive

evidence of no certificates of service on said answers and exhibits. On April

22, 2013, Appellee filed a supplement for new trial based on first knowledge

that the record also contains an unserved ex parte affidavit of heirship filed

by Appellant which refutes his "grandson," "sole heir," "caretaker" claim

to the premises (Id.; CR 39-42, 43), including other unserved ex parte

exhibits which refutes his unsworn fraud allegation of different names signed

on the special warrant deed as compared to his other withheld exhibits (Id.; CR 155-156, 165-171). On April 29, 2013, Appellee's motion for new trial

was denied, and requests for findings of fact and conclusions of law were

overruled on May 3, 2013 (CR 202). On July 15, 2014, the Court of Appeals

held that without a court reporter's record - (overlooking Appellee's timely

motion for such transcript and record cited in his motion for rehearing) - the

trial court's take nothing judgment must be affirmed (CR 203-209). On Oct.

7, 2014, Appellee's motion for rehearing was denied (Id.).

On Dec. 19, 2014, Appellee filed in the county property records his

special warrant deed to settle claims that it was unrecorded (Id; Appx 36-37),

despite public notice of same (Id.; CR 67-68). On Dec. 15, 2014, Appellee

served new notices to terminate the lease and to vacate the premises

"unless you pay all said rents and late fees since Nov. 2014" on the

Appellant by certified mail return receipt requested (Id.; CR 33-35).

On Dec. 29, 2014, Appellee filed this latest eviction suit against Appellant

in case # EV31C0071928, Harris County Justice Court, Precinct 3, Place 1,

which was dismissed without preiudice on Jan. 14, 2015 (Id.; CR 5-10). After

notice of appeal to the Harris County Civil Court at Law # 1, the trial judge

heard these statements of fact, and allowed both parties the opportunity to

present the merits of this case on Feb. 23, 2015. Appellee testified that in

2005 his notary agent met over coffee with Mrs. Wilmore who transferred ownership of the premises to Appellee under a special warrant deed with a

disclaim of "heir" (Id.; Appx 36-37). The lack of a business record

certificate failed Appellee's attempt to offer the home equity loan signature

"Page 7 of 8," which was the only page that Appellant knowingly withheld

from evidence because "Ella F. Wilmore's" signature matched the name on

Appellee's deed (Id.; Appx 36, A-1; cf. CR 165-171 total of only 7-pages).

Appellee sought to introduce more evidence to support his testimony that

"Appellant and Counsel had perpetrated a fraud upon the court" by knowing

filing baseless and fanciful claims in order for the Appellant to live rent-free;

however, the court asked for their response (Id.).

Appellant admitted that"[he] did not live in the premises" before signing

the lease, and "On June 1, 2012 ... [he] moved into the property," which

admittedly and conclusively refutes his prior residence claim "In 2011" (Id.;

CR 43, 146; cf. 204). Appellant also testified that he initialed the lease (Id.;

Appx 28-32). Appellant has absolutely no evidence of title from Wilmore

as "a common source" of ownership of the premises, or any will or probate

order to transfer title, and his alleged warrant deed from a "sister" "co-heir"

was withheld from trial evidence in 2013 (Id.; CR 47-49), which now

admittedly and conclusively refutes his "grandson" "sole heir" "caretaker*'

claim (Id.; CR 43). The Trial Court re-examined the prior trial record and appellate opinion (CR 203-210), before denying res judicata and collateral

estoppel claims, ruling that there are "no prior rulings on the merits" of: (1)

new notices to vacate and terminate lease contract for non-payment of rent

(Id.; CR 33-35); (2) new public recording of Appellee's special warrant deed

(Id.; Appx 36-37); (3) new signature evidence of Ella F. Wilmore (Id.; CR 40,

165-171), and discontinued use of her "Townsend" maiden name in a home

equity loan and obituary (Id.; CR 38, 165-171); (4) new "sister" "co-heir" deed

withheld from prior evidence by the Appellant (Id.; CR 44-46), which

contradict his "grandson" "sole heir" "caretaker" claim (Id,; CR 43); and (5),

Mrs. Wilmore's affidavit of heirship previously filed but withheld from the

Appellee that proves "NO CHILDREN WERE BORN OR ADOPTED" and

"without leaving a will" (Id.; CR 39-42, 44-46), which admittedly and

conclusively refutes Appellant's "grandson" "sole heir" and sister "co-heir"

claims or deed (Id.; CR 43, 44-46).

The Trial Court also heard other testimony and arguments, assessed the

parties' demeanor and credibility, and entered a final judgment for

possession of the premises in favor of Appellee (Id.; Appx 25-26).

On April 2, 2015, Appellant's second amended motion for new trial based

on new evidence of a similar fraud was overruled due to the foregoing facts,

including admitted and conclusive evidence of his Jan. 2013 answer and exhibit proving his actual knowledge of the "Bayou Woods" "third property"

affidavit (Id.; CR 147, 184; cf. 125-136).

On April 24, 2015, Appellant filed a trespass to try title action against

Appellee in case #2015-23604 in the 151st District Court of Harris County,

and to hinder the trial court's writ of possession he obtained an ex parte

temporary restraining order that was dismissed in May 2015 (Id.).

Please Take JUDICIAL NOTICE of the final judgment of dismissal in case

#2014-59807 in 133rd Dist. Ct. of Harris County on May 2015, including the

aforesaid five (5) independent official findings of no evidence of fraud

(CR 125-136, etal).

This appeal follows without a reporter's record in clear violation of the

TEX. R. APP. P. 38.1(g).

Summary of the Argument

Appellant appeals the county court's judgment in Appellee's favor,

contending that the trial court : 1) had no subject matter jurisdiction; 2) had

no evidence of Appellant's ownership of the premises or a landlord-tenant

relationship; 3) erred in overruling res judicata or collateral estoppel claims;

and 4) erred in denying a motion for new trial. However, there is no credible

support in the record to justify overturning the decision of the trial court.

8 Argument and Authorities

Jurisdiction

Subject-matter jurisdiction is essential to the authority of a court to decide

a case and is never presumed. Tex. Ass'n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440, 443-44 (Tex. 1993). The existence of subject-matter

jurisdiction is a question of law, which the court must decide de novo. See

State Dept of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327

(Tex. 2002). Subject matter jurisdiction is a structural aspect of our legal

system, which make a court's ruling legal only if it has jurisdiction in the first

place. See Mclntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2789 (2011).

This "central concept of sovereign authority" is the core source of the

"conclusion that jurisdiction is in the first instance a question of authority

rather than fairness[.]" Id. at 2788-89. Thus, "whether a judicial judgment is

lawful depends on whether the sovereign has authority to render it." Id.

Eviction

The Texas Constitution Article V, Section 19, states that "QJustice of the

peace courts shall have ... such other jurisdiction as may be provided by

law." TEX. CONST. Art. 5, § 19. Original jurisdiction over forcible detainer

and eviction actions is expressly given to the justice court of the precinct

where the property is located. See TEX. PROP. CODE ANN. § 24.004 (Vernon 2014); TEX. GOV'T CODE ANN. § 27.031(a) (2) (Vemon Supp.

2014); Rice v. Pinney, 51 S.W.3d 705, 708 (Tex. App. -Dallas 2001, no pet.).

A judgment of the justice court may then be appealed to the county courts for

a trial de novo, and the jurisdiction of a statutory county court is confined to

the jurisdictional limits of the justice court. TEX. R. CIV. P. 510.10(c); Rice,

51 S.W.3d at 708. A justice court also has jurisdiction to issue a writ of

possession to enforce an eviction. TEX. PROP. CODE ANN. § 24.0054(b).

The justice court is expressly denied jurisdiction to adjudicate title to land.

TEX. GOV'T CODE ANN. § 27.031(b) (4); TEX. R. CIV. P 746; Haginas v.

Malbis Mem. Found., 354 S.W.2d 368, 371 (Tex. 1962); Black v. Washington

Mut. Bank, 318 S.W.3d 414, 416, 417 (Tex. App. -^Houston [1st Dist.] 2010, pet. dism'd w.o.j.)(holding that plaintiff is not required to prove title); and

Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App. -

Houston [1st Dist] 1995, writ denied). If it becomes apparent that a genuine

issue regarding title exists in an eviction suit, the court does not have

jurisdiction over the matter. Id. at 171 (citing Haith v. Drake, 596 S.W.2d 194,

196 (Tex. App. -Houston [1st Dist.] 1980, writ refd n.r.e.)). See also Williams

v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App. - Dallas 2010, no

pet.). Morris v. American Home Mortgage Servicing, Inc., 360 S.W.3d 32, 34

(Tex. App. -Houston [1st Dist] 2011, no pet.); and Rice, 51 S.W.3d at 709.

10 In a forcible detainer trial the judge or a requested jury must decide the

sole issue of who has superior rights to actual possession of real property

after notice to vacate under TEX. PROP. CODE ANN. §§ 24.002, & 24.005.

However, a notice to vacate may be waived by contract or breach thereof.

TEX. PROP. CODE ANN. §§ 91.001(e) (1-2). A forcible detainer action

is intended to be a speedy, simple, and inexpensive means to obtain

possession of real property under Marshall v. Hous. Auth. of San Antonio,

198 S.W.3d 782, 787 (Tex. 2006).

To prevail, it is not necessary for the plaintiff to prove title to the property;

rather, the plaintiff is only required to present sufficient evidence of

ownership to demonstrate a superior right to immediate possession. Bittinger

v. Wells Fargo, N.A., as Trustee, 14-10-00698-CV (Tex.App -Houston [14th

Dist] 2011); Rice, 51 S.W.3d at 709; and Dormady v. Dinero Land & Cattle

Co., L.C., 61S.W.3d 555, 557 (Tex. App. -San Antonio 2001, pet. dis'm

w.o.j.)(op. on reh'g). A written or oral landlord-tenant agreement also

provides a basis for the court to determine the right to immediate possession

without resolving the question of title. Morris, 360 S.W.3d at 34, (citing

Villalon v. Bank One, 176 S.W.3d 66, 71 (Tex. App. -Houston [1st Dist.]

2004, pet. denied)).

li An action for forcible detainer is cumulative of all other remedies a party

may have in the courts of this state, including a suit to try title. Morris, 360

S.W.3d at 35. "If all matters between the parties cannot be adjudicated in

the justice court ... then either party may maintain an action in a court of

competent jurisdiction for proper relief." McGlothlin v. Kliebert, 672 S.W.2d

231, 233 (Tex. 1984). For these reasons, a forcible detainer suit may run

concurrently with another action in another court even if the other action

adjudicates matters that could result in a different determination of

possession from that rendered in the forcible detainer suit. See VHIalon, 176

S.W.3d at 70-71. Matters relating to possession may overlap in the two

proceedings because "a judgment of possession in a forcible detainer action

is a determination only of the right to immediate possession and does not

determine the ultimate rights of the parties to any other issue in controversy

relating to the realty in question." Lopez v. Sulak, 76 S.W.3d 597, 605 (Tex.

App. -Corpus Christi 2002, no pet.). Likewise, any question over whether a

real estate sale or deed is invalid "must be brought in a separate suit." See

Williams, 315 S.W.3d at 927; Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816,

818-19 (1936); Rice, 51 S. W. 3d at 710; and Murphy v. Countrywide Home

Loans, Inc., 199 S.W.3d 441, 446 (Tex. App. -Houston [1st Dist] 2006, pet.

denied).

12 Petition

The court must "focus first on the plaintiffs petition to determine whether

the facts pled affirmatively demonstrate that jurisdiction exists." State v.

Holland, 221 S.W.3d 639, 642 (Tex. 2007); also Tex. Dep't of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)("whether undisputed

evidence of jurisdictional facts establishes a trial court's jurisdiction is a

question of law."). The court must examine the pleadings, taking as true the

facts pleaded, and determine whether those facts support jurisdiction in the

trial court. Morris, 360 S.W.3d at 34, (citing Tex. Ass'n of Bus., 852 S.W.2d

at 446). The Court must construe the pleadings in favor of the pleader. Id.

Appellee's superior rights to immediate possession of the premises is

proved by four (4) "independent basis" of ownership under a recorded special

warrant deed, rental contract, affidavit of possession, and a sworn eviction

petition as a matter of fact and law (Appx 5, 28-32, 36-37.CR 180-181).

Black, 318 S.W.3d at 417. Appellee's petition must be taken as true and it

states that he owns the property, there is a signed lease, failure to pay rent,

and failure to quit possession with notice to vacate (Appx 5, 28-32, 33-35).

Appellant offered no credible evidence of actual possession of the

premises under the withheld deed of an alleged "sister" "co-heir," which

clearly impeached his prior "grandson" "sole heir" claim (CR 43; cf. 47-49).

13 Appellant's unserved answer alleged that the grandson was an "elderly"

heir to maliciously increase the civil and criminal severity of his charge,

contrary to his admission of Wilmore's affidavit of heirship disclaim of any

"children" at the age of 81-years old (CR 39-42, 154; cf. 143).

Appellant's 2012 actual knowledge of the special warrant deed clearly

proves that his alleged 2013 purchase of the premises was not bought as an

"innocent" or bona fide purchaser for a value of at least $10.00 or more (CR

47-49; cf. 180-181, 190). Moreover, Appellant offered no evidence of any

ownership transfer of the premises under: (1) a title deed from Wilmore to

any "sole-" or "co-heir;" (2) a will or probate court order for any heir; (3) an

affidavit of heirship for any heir under TEX. PROBATE CODE 52A; or (4) a

cause of action filed by any heir as a matter of fact and law. The record

contains no credible evidence to contradict the trial court's implicit findings of

fact and conclusions of law to support the right to possession of the premises

in favor of Appellee. Taking as true the facts pled by Appellee and

construing them in his favor, as the court must, it is clear that these facts

support the judgment of the trial court. See Tex. Ass'n of Bus., 852 S.W.2d

at 446; Morris, 360 S.W.3d at 34-35. The facts pled by Appellee did

establish his superior rights to immediate possession of the premises. This

ownership evidence conferred on the justice court the jurisdiction to

14 determine the right to immediate possession of the premises as requested by

Appellee.

Judgment

There is a legal presumption that judgments are signed with regularity

and in conformance with all legal requirements; that is, judgments are

presumed to be supported by facts established when the cause was tried.

White v. White, 142 Tex. 503, 179 S.W.2d 503, 505 (1944) ("[l]f the record in

the cause does not negative the existence of facts authorizing the court to

render judgment, the law conclusively presumes that such facts were

established before the court when such judgment was renderedf.J"). This is

true even when the recitations in a judgment do not show jurisdiction, the law

presumes that such facts were show. Foreness v. Hexamer, 971 S.W.2d

525, 531 (Tex. App.—Dallas 1997, pet. denied) ("When recitations in a

judgment are insufficient to affirmatively show the court's jurisdiction, a

presumption in favor of jurisdiction prevails so long as the recitations do not

affirmatively show a lack of jurisdiction."); Solomon, Lambert & Roth Assoc,

Inc. v. Kidd, 904 S.W.2d 896, 901 (where a judgment "does not affirmatively

show lack of jurisdiction on its face, but merely fails to affirmatively recite

jurisdiction, then a jurisdictional presumption in favor of the judgment

applies"). The judgment must show lack of jurisdiction on its face. Jacobs v.

15 Cude, 641 S.W.2d 258, 260 (Tex. Civ. App. -Houston [14th Dist.] 1982, writ,

ref.'d n.r.e.) ("If a judgment is regular on its face and does not reveal a lack of

jurisdiction of the court to enter the same, it must be presumed valid").

Even in the face of an allegation of trespass to try title in another court,

the justice of the peace court has jurisdiction. Morris, 360 S.W.3d at 35.

Moreover, there is nothing in the record of this case to overcome the

presumption that the judgment was entered in conformance with the law (CR

25-26). Similarly, the record does not "affirmatively and conclusively show

that the court rendering the judgment was without jurisdiction of the subject

matter."

Remaining Issues

In his remaining issues, Appellant remaining issues complain that the trial

court erred in determining that he should be evicted due to an alleged lack of

ownership or a landlord-tenant relationship, erred in denying res judicata and

collateral estoppel claims, and erred in denying his motion for new trial.

However, the record on appeal does not contain a reporter's record of the

live testimony in either the justice or county court.

Reporter's Record

TEX. R. APP. P. 34.1 provides that the appellate record consists of a

clerk's record and, if necessary to appeal, a reporter's record. Here, the

16 record on appeal contains no evidence to dispute the factual allegations in

the Appellee's sworn petition.

An appellant has the burden to bring forward a sufficient record to show

the trial court's claimed error. Nicholson v. Fifth Third Bank, 226 S.W.3d

581, 583 (Tex, App. -Houston [1st Dist] 2007, no pet.). In the absence of a

reporter's record, the court must presume that the omitted evidence supports

the trial court's judgment. See Schafer v. Conner, 813 S.W.2d 154, 155

(Tex. 1991) (per curiam); Sandoval v. Comm'n for Lawyer Discipline, 25

S.W.3d 720, 722 (Tex. App. -Houston [14th Dist.] 2000, pet denied); see

also Enter. Leasing Co. v. Barrios, 156 S.W.3d 547, 549-550 (Tex. 2004)

(per curiam)(stating that "on appeal Barrios bears the burden to bring forward

the record of the summary judgment evidence to provide appellate courts

with a basis to review his claim of harmful error" and concluding that "[i]f the

pertinent summary judgment evidence considered by the trial court is not

included in the appellate record, an appellate court must presume that the

omitted evidence supports the trial court's judgment"). Also, the court

assumes that "the trial court heard sufficient evidence to make all the

necessary findings in support of its judgment." See e.g. (SF pg. 1-7); and

Hebisen v. Clear Creek Indep. Sch. Dist, 217 S.W.3d 527, 536 (Tex. App. -

Houston [14th Dist.] 2006, no pet.).

17 Here, Appellant did not provide a record of any of the live testimony

before the justice court or the county court, nor does the record contain a title

transfer of ownership from Wilmore to any alleged "grandson" "sole heir,"

and/or "sister" "co-heir." The court must presume that the evidence

presented at trial supported the trial court's judgment. See Schafer, 813

S.W.2d at 155; Sandoval, 25 S.W.3d at 722. Likewise, when the entire

record is not brought forward - transcription of the trial is missing - the

judgment must be affirmed. See e. g. TEX. R. APP. P. 34.6(c) (1);

Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990); Richards v.

Schion, 969 S.W.2d 131, 133 (Tex. App. -Houston [1st Dist] 1998, no pet);

In re Marriage of Rice, 96 S.W.3d 642, 645-46 (Tex. App.—Texarkana 2003,

no pet.). Thus, Appellant's remaining issues should be overruled due to his

failure to provide a recorder's record, including other principles of law below.

Contract

Appellant admits he signed and initialed the landlord-tenant agreement,

and his complaint of a lack of execution on the contract was not sworn

contrary to TEX. R. CIV. P. 93, (7). Moreover, the record on appeal does not

reflect that a lack of signatures complaint was first made to the trial court.

See TEX. R. APP. P. 33.1(a) ("As a prerequisite to presenting a complaint for

appellate review, the record must show that: (1) the complaint was made to

18 the trial court by a timely request, objection, or motion . . . and (2) the trial

court: (A) ruled on the request, objection, or motion, either expressly or

implicitly; or (B) refused to rule on the request, objection, or motion, and the

complaining party objected to the refusal"). See also City of El Paso v.

Heinrich, 284 S.W.3d 366, 377 (Tex. 2009) (observing that constitutional

complaints can even be waived by failure to object at trial).

Appellee's special warrant deed and landlord-tenant agreement are

enforceable property rights contracts protected by the Texas and U. S.

Constitution (Appx 28-32, 36-37). The state shall make no "law impairing the

obligation of contracts" under the U. S. Const, Article I, § 10.

Ownership

Appellee's special warrant deed is evidence that he is the legal owner of

the premises (Appx 36-37). TEX. PENAL CODE ANN. §§ 1.07(a)(35)(A-B),

defines an owner as "a person who has title to the property, possession of

the property, whether lawful or not, or a greater right to possession of the

property than the acton or is a holder in due course of a negotiable

instrument." Likewise, Appellee's affidavit of possession, landlord-tenant

contract, and swom petition are further evidence that he is the legal owner of

the premises (Appx 5, 28-32, 180-82). TEX. PENAL CODE ANN. § 1.07(a)

(39), defines possession as "actual care, custody, control, or management."

19 An "unrecorded instrument is binding on a party to the instrument, on the

parties' heirs, and on a subsequent purchaser who does not pay a valuable

consideration or who has notice of the instrument" See and cf. Noell v.

Crow-Billingsley Air Park Ltd. P'ship, 233 S.W.3d 408, 416-17 (Tex. App. -

Dallas 2007, pet denied)(citing TEX. PROP. CODE 13.001/b;(West 2004)).

Texas has a long-standing interest in protecting homeowners under the

TEX. CONST. Art. XVI § 50(a). The Texas Constitution further forbids the

deprivation of a citizen's life or property except by the due course of law.

TEX. CONST. Art. I, § 16. Real property is so unique that specific

performance of a contract is an available remedy in suits against real

property under Cate v. Woods, 299 S.W.3d 149, 152 (Tex. App. -Texarkana

2009, no pet.); Smith v. Dass, Inc., 283, S.W.3d 537, 542 (Tex. App. -Dallas,

2009, no pet.); Cubertson v. Brodsky, 788 S.W.2d 156, 157 (Tex. App. -Fort

Worth 1990, writ denied). Texas case law also protects innocent buyers

such as the Appellee (who as a bona fide purchaser "acquires property in

good faith, for value, and without notice of any third-party claim or interest"

(CR 44-46, cf. 36-37). Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001)).

Appellant's alleged warrant deed has no specific warrant of title and is

merely a "quitclaim," and is not "title or color of title" as required to prove

adverse possession (CR43, 44-46). See e.g. Rogers v. Ricane Enters., Inc., 20 884 S.W.2d 763, 769 (Tex. 1994). See also Geodyne Energy Income Prod.

P'ship l-E v. Newton Corp., 161 S.W.3d 482, 486-87 (Tex. 2005). Two

causes of action relate to disputes over title to property: trespass to try title

and suit to quiet title. Gordon v. West Houston Trees, Ltd., 462 S.W.3d 520,

522-23 (Tex. App. -Houston [1st Dist.] 2011)("A trespass to try title action is the method of determining title to lands, tenements, or other real property."

TEX. PROP. CODE ANN. § 22.001(a) (Vernon 2000)). Rival claims to title

or right of possession may be adjudicated in a trespass to try title action.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 755 (Tex.2003). The plaintiff

in a trespass to try title action must recover, if at all, on the strength of its own

title and may not rely on the weakness of the defendant's title. Rogers, 884

S.W.2d at 768; Diversified, Inc. v. Hall, 23 S.W.3d 403, 406 (Tex. App. -

Houston [1st Dist.] 2000, pet. denied). "The plaintiff has the burden to

establish superior title by showing it has (1) title emanating from the

sovereignty of the soil, (2) a superior title in itself emanating from a common

source (CR 36-37), (3) title by adverse possession (CR 181-82), or (4) title by

earlier possession coupled with proof that possession has not been

abandoned." Diversified, 23 S.W.3d at 406. Because a plaintiff must recover

on the strength of his title, the effect of a trespass to try title action is to

21 establish the validity of the plaintiffs' claim of title. See Rogers, 884 S.W.2d at

768 (holding plaintiff must recover on strength of his title)). Id.

In contrast, a suit to quiet title — also known as a suit to remove cloud

from title — relies not on the validity of the plaintiff's claim but on the

invalidity of the defendant's claim. Gordon, 462 S.W.3d at 522-23; (citing

Longoria v. Lasater, 292 S.W.3d 156,165 n. 7 (Tex. App. -San Antonio 2009,

pet. denied)). A suit to quiet title exists "to enable the holder of the feeblest

equity to remove from his way to legal title any unlawful hindrance having the

appearance of better right." Id., (citing Bell v. Ott, 606 S.W.2d 942, 952 (Tex.

App. -Waco 1980, writ refd n.r.e.)(quoting Thomson v. Locke, 66 Tex. 383,1

S.W. 112, 115 (1886)). A cloud on title exists when an outstanding claim or

encumbrance is shown, which on its face, if valid, would affect or impair the

title of the owner of the property. Id., (citing Hahn v. Love, 321 S.W.3d 517,

531 (Tex. App. -Houston [1st Dist.] 2009, pet. denied). The effect of a suit to

quiet title is to declare invalid or ineffective the defendant's claim to title. See

Id. (holding plaintiff bears the burden of establishing the adverse claim is a

cloud oh title that equity will remove).

When a party attempts to bring a trespass to try title claim as a

declaratory judgment action, it is treated as a trespass to try title claim.

Martin v. Amerman, 133 S.W.3d 262, 267 (Tex.2004).

22 Appellant testified that he "did not" live in the premises before the rental

agreement was signed in 2012, (supported by his prior answer that "On June

1, 2012, [he] moved into the property" (Id.; CR 146)), refutes the opinion that

"In 2011, [he] lived in" the premises(CR 204), which proves that he has no

credible claim of adverse possession (CR 43), or he has abandoned any

prior possession (Appx 28-32). Henningan v. LP. Petroleum Co., 858 S.W.2d

371, 372 (Tex. 1993)(pleadings are judicial admissions); Holy Cross

Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001)(parties are

barred from disputing their own admissions).

It is not enough to be merely caring for the property" of an heir or others

(CR 43, 187). TEX. CIV PRAC. & REM. CODE ANN. §16.021 etseq.

Moreover, Appellant offered no evidence of a title to ownership of the

premises "emanating from a common source" of Mrs. Wilmore. See Gordon,

462 S.W.3d at 522-23 (burden of proof for adverse possession claim).

Although Appellant argues that the special warrant deed is invalid and he

filed a declaratory judgment action in the district court, he has no credible

evidence to support similar fraud allegations which have all been dismissed

by four (4) different independent judges from justice thru district courts.

Res Judicata and Collateral Estoppel

23 Appellant's res judicata point is contrary to Puentes v. Fannie Mae,

350 S.W.3d 732 (Tex. App. -El Paso, 2011, pet. dism'd w.o.j.)(holding that

res judicata does not bar subsequent forcible detainer actions

between the same parties, as facts change, so do possessory rights, and a

forcible detainer action must only decide the issue of "possession now").

Moreover, the trial court now had new evidence which supports its

judgment in favor of the Appellee, including new evidence that the facts of

this case were not "fully and fairly litigated in the first action" contrary to the

collateral estoppel principle stated under Sysco Food Servs. v. Trapnell,

890 S.W.2d 796, 801 (Tex. 1994). Appellee's rights to due process notice

and an opportunity to present a defense against the unserved answers and

exhibits were hindered and delayed by Appellant's violation of the service

of record rules, which "served no legitimate purpose," and violated "the

constitution's guarantee of equality under the laws" per the U.S. Const,

XIVAmend. (Id., CR 39-46, 143-49, 152-76, 178-79, 184, 187-89 etai).

Appellant's said acts and omissions "probably caused the rendition of

an improper judgment," or probably prevented the Appellee from property

presenting the merits of the case per TEX. R. APP. P. 44.1(a) (1-2).

Here, this Court should consider the Appellant's efforts to withhold

material evidence from Appellee and/or the prior trial, contrary evidence of

24 Wilmore's affidavit disclaim of "heir," contrary evidence of a "co-heir" deed

now before the court, and contrary evidence of Mrs. Wilmore's signature

"Page 7 of 8," and Appellant's use of same to emphasize the erroneous

"grandson" "sole heir" and "fraud" claims, and whether it was calculated to

overcome the contrary evidence of Appellee's special warrant deed with

declaim of "heir" and affidavit of possession. See Nissan Motor Co. v.

Armstrong, 145 S.W.3d 131,144 (Tex. 2004).

Due Process Notice

Appellant's failure to serve Appellee with due process notice and

certificate of service on prior answers and exhibits violated the mandates of

TEX. R. CIV. P. 21 ("copy shall be served"); 21a ("shall certify to the court");

and 21b ("sanctions for failure to serve or deliver a copy of pleadings");

including Fuentes v. Shevin, 92 S. Ct 1983, 1994 (1971)(Supreme Court

holding that litigants have a due process right to prior notice, and a hearing to

prevent the arbitrary deprivation of property, assuring a right to introduce

evidence at a meaningful time, and in a meaningful manner, and to have a

judicial decision based on the evidence properly introduced at trial).

New Trial

Appellant offered no credible evidence that a similar property fraud claim

was newly discovered, not due to a lack of diligence, not cumulative, and

25 likely to produce a different result at a new trial; especially since the other

"similar fraud" case was also dismissed by a district court with subject-matter

jurisdiction to decide title to the "feeblest equity" (CR 147; cf. 125-136).

Moreover, Appellant's motion for new trial attacked the validity of

Appellee's special warrant deed -an issue that the county trial court could

not properly address in this eviction action.

A party seeking a new trial on grounds of newly discovered evidence

must demonstrate that (1) the evidence has come to its knowledge since the

trial, (2) its failure to discover the evidence sooner was not due to lack of

diligence, (3) the evidence is not cumulative, and (4) the evidence is so

material it would probable produce a different result if a new trial were

granted. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010).

The trial court's ruling on a motion for new trial is addressed to the trial

court's sound discretion and will not be disturbed in the absence of an abuse

of discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983),

overruled in part on other grounds by Moritz v. Priess, 121 S.W.3d 715, 721

(Tex. 2003). The fact finder is the sole judge of witness credibility and the

weight to give their testimony. See City of Keller v. Wilson, 168 S.W.3d 802,

819 (Tex. 2005). The court may not substitute its own judgment for that of

26 the trier of fact, or pass upon the credibility of the witnesses. See Mar.

Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).

Abuse of Discretion

In applying the abuse of discretion standard, the reviewing court must

defer when the trial court acts within the permissible scope of its discretion.

Koslow's v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990). But, a trial court

has no discretion in ascertaining the proper legal rule or how it should apply

it to the facts and it is entitled to no deference in those matters. See

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).

A trial court abuses its discretion if its decision is so arbitrary and

unreasonable that it is a clear and prejudicial legal error or it is based on an

incorrect analysis or application of the law. In re Cerberus Capital Mgmt,

LP., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). A trial court's

decision is arbitrary or unreasonable if it acts without reference to any

guiding rules and principles. Am. Flood Research, Inc. v. Jones, 192

S.W.3d 581, 583 (Tex. 2006); Mackie, 796 S.W.2d at 704.

A party attacking the legal sufficiency relative to an adverse finding

on which it had the burden of proof must demonstrate that the evidence

conclusively establishes all vital facts in support of the issue. Dow Chem.

Co. v. Frances, 46 S.W.3d 237, 241 (Tex. 2001). The fact finder is the sole

27 judge of a witness's credibility and the weight to give their testimony. See

City of Keller, 168 S.W.3d at 819; and Ellis, 971 S.W.2d at 407.

In a factual sufficiency review, the court considers and weighs all the

evidence, both supporting and contradicting the finding. See Ellis, 971

S.W.2d at 406-07. A party attacking the factual sufficiency with respect to

an adverse finding on which it had the burden of proof must demonstrate

that the finding is against the great weight and preponderance of the

evidence. Frances, 46 S.W.3d at 242.

Whether a decision is arbitrary or unreasonable is decided based on an

independent review of the entire record. Chrysler Corp. v. Blackmon,

841 S.W.2d 844, 852 (Tex. 1992). Here, the trial court's implicit or explicit

findings in favor of Appellee are not so contrary to the overwhelming weight

of the relevant evidence as to be clearly wrong and unjust. Pool v. Ford

Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

Moreover, the amount of evidence necessary to affirm the judgment for

Appellee is far less than that necessary to reverse the judgment in favor of

Appellant (Appx 5, 28-32, 36-37, A-1, CR 159-162, 180-181; cf. CR 47-49,

176). GTE Mobilnet of South Texas vs. Pascouet, 61 S.W.3d 599, 616

(Tex. App. -Houston [14 Dist] 2001, pet denied).

28 Thus, the foregoing legal principles are applicable to the facts in this

present case, and the trial court did not abuse its discretion by denying a

new trial.

Conclusion and Prayer

In conclusion, the trial court judgment should be affirmed because the

evidence at trial supports the judgment of possession in favor of Appellee.

It is reasonable to conclude, based on all inconsistencies in the documents

relied upon by Appellant to show any right to possession of the premises,

reasonable minded people would agree with the trial court's decision.

Appellant had a fair opportunity to present his argument, and the trier of

fact judged his credibility. The trial court decided that Appellant's evidence

was not credible, and entered a judgment for possession to Appellee.

WHEREFORE, PREMISES CONSIDERED, Appellee asks this Court

to affirm the trial court's decision and tax appeal costs to Appellant, and

grant the Appellee all other relief at law and in the interest of justice.

Respectfully,

Nov. iH, 2015. W M Roberson' P.O. Box 842583 Houston, TX 77284-2583

Appellee (Pro Se)

29 Certificate of Service

On this day a copy of this document was mailed to counsel of record,

Nasischa Biscette, 1811 Bering Dr. #300, Houston, TX 77057.

Wm Roberson

Certificate of Compliance

On this day, I certify that the computer generated word count for the

entirety of this Appellee's Brief (excluding the caption, statement for oral

argument, table of contents, index of authorities, statement of case,

signature, certificate of service, and certificate of compliance) total less

than 6,500 words.

W M Roberson

30 Appendix

Petition for Eviction 5

Final Judgment . 25-26

Rental Agreement 28-32

Special Warrant Deed 36-37

Signature of Wilmore - page 7 of 8 A-1