Opinion
No. 06-17-00007-CV
09-07-2017
IN THE ESTATE OF BRANDON SCOTT EMMONS, DECEASED
On Appeal from the County Court at Law No. 1 McLennan County, Texas
Trial Court No. 20150281PR1 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Before the unexpected death of Brandon Scott Emmons, he was engaged to Amanda Crawford, was just a few months short of their intended wedding date, and had been sharing his Windsor Avenue house in Waco with her. The two had also been sharing living expenses and their mutual fondness for hunting. When Crawford moved out of the Windsor Avenue house a few months after Emmons' death, she took with her Emmons' collection of pistols, shotguns, rifles, and knives. Later, she sued Joyce Nuner, Emmons' sister, in her capacity as the Independent Administrator of Emmons' Estate, claiming that Emmons had gifted Crawford various assets and that she was entitled to reimbursement of various expenditures she had made before Emmons' death. Crawford's claims related to the house, Emmons' bank and investment accounts, a 1991 Airstream recreational vehicle (the Airstream RV), a 2006 Mastercraft boat, a 1991 Land Rover Defender (the Defender), and a 2012 Land Rover Evoque (the Evoque). The Estate admitted that Emmons had given Crawford the Evoque, but denied the rest of her claims, and counterclaimed for the recovery of Emmons' furniture, rifles, shotguns, pistols, and personal belongings allegedly converted by Crawford. After a bench trial, the trial court denied all of Crawford's claims, except her claim relating to the investment account, and found in favor of the Estate on the conversion claim for the rifles, shotguns, pistols, and knives. After offsetting the damages awarded to Crawford against the Estate's damage award, the trial court entered judgment against Crawford in the amount of $42,500.00.
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
The parties also referred to the Defender as "blue" or "the blue beast."
On appeal, Crawford complains that the trial court erred in admitting the listing of guns and knives found on Emmons' computer (Exhibit 2), that the court erred in excluding Crawford's testimony that Emmons had given her the Defender, that the evidence is insufficient to support (a) the trial court's finding that the guns and knives listed on Exhibit 2 were the property of the Estate, (b) the finding that Crawford committed conversion or civil theft of the property listed in Exhibit 2, (c) the finding that the Estate was damaged in the amount of $49,000.00, (d) the trial court's refusal to find that Emmons gave Crawford the Defender, (e) the trial court's refusal to find that the Estate converted the Defender, (f) the refusal to find that the Estate was unjustly enriched by Crawford's contributions to Emmons' bank account and the Windsor house, and (g) the refusal to find that the Estate converted Crawford's interest in Emmons' bank account.
We find that (1) Crawford failed to preserve her objection to the admission of Exhibit 2; (2) Crawford failed to preserve her complaint regarding the exclusion of her testimony; (3) sufficient evidence supports the trial court's complained-of fact-findings in favor of the Estate; (4) sufficient evidence supports the trial court's refusal to make the findings argued by Crawford on appeal, and (5) Crawford failed to preserve any complaint regarding the trial court's failure to find unjust enrichment and constructive trust. Therefore, we affirm the judgment of the trial court.
(1) Crawford Failed to Preserve her Objection to the Admission of Exhibit 2
Much focus at trial involved what has been named Exhibit 2, a document printed from Emmons' computer listing guns, knives, and sporting good items that Emmons owned. Crawford asserts that the trial court erred in admitting Exhibit 2 because it was not properly authenticated. The Estate argues initially that Crawford failed to preserve her error by failing to make a specific or timely objection. Alternatively, the Estate argues that Exhibit 2 was properly authenticated and that any error was harmless. Crawford responds that her complaint was preserved when she filed a pre-trial objection to, and motion to exclude, Exhibit 2. We find that Crawford has failed to preserve her complaint.
Crawford's pre-trial motion referred to the weapons list as the Estate's "Proposed Exhibit 4" or "Gun List."
The night before trial, Crawford filed an objection to the admission of Exhibit 2 based on an alleged lack of relevancy and an inability of anyone to authenticate it. Crawford did not obtain a pre-trial ruling on her objection. Instead, when Nuner was asked at trial whether she had been able to locate a gun inventory in Emmons' documents, Crawford objected and, when asked the nature of her objection, handed the trial court the document she had filed the night before. Although Crawford did not state her objection as to authentication, the trial court looked at the document. When asked for a response, the Estate's attorney stated that he was in the process of laying the predicate for admission of the document. The trial court then overruled the objection, and Nuner was questioned as to where she located the weapons inventory, whether she was familiar with and had seen Emmons' guns, knives, and sporting items, and whether Exhibit 2 was an accurate list of the same. Nuner testified that she obtained Exhibit 2 from Emmons' computer, that she was familiar with his guns, knives, and sporting items from being around the house and seeing them, and that Exhibit 2 appeared to be an accurate inventory of Emmons' guns, knives, and sporting equipment.
Exhibit 2 listed four specifically identified pistols, eight specifically identified shotguns, ten specifically identified rifles and scopes, one pair of binoculars, and eight specifically identified knives. Beside each entry was a dollar figure under a column titled "est. value."
The following exchange took place:
[Counsel for the Estate]: At this time, we offer Exhibit 2 into evidence, Judge.
(Plaintiff Exhibit No. 2 offered)
THE COURT: Exhibit 2 is admitted.
Q. [Counsel for Estate] All right. Those guns that are listed there --
THE COURT: Hold on.
[Counsel for Crawford]: I just want to object, for the record.
THE COURT: All right. Anything further, Ms. Galik?
[Counsel for Crawford]: No.
THE COURT: All right. It's admitted. Objection is overruled.
Crawford argues that her objection to Exhibit 2 was preserved when she filed her pre-trial objection and motion to exclude, citing Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203-06 (Tex. App.—Texarkana 2000, pet. denied). However, in Huckaby, the appellant filed pre-trial objections and a motion to exclude evidence, a pre-trial hearing was held on the objections, and the trial court's pre-trial ruling on the objections was in writing. Id. at 205. We held that, in that case, the trial court's ruling on the pre-trial objections would preserve the objection through trial. Id. at 206. In this case, Crawford neither brought her objections and motion to exclude to the trial court's attention before trial, nor obtained the trial court's pre-trial ruling on the same. Rather, Crawford presented the trial court with a copy of her objections to explain the basis of her objection at trial. Without a pre-trial ruling by the trial court, her objections were not preserved throughout trial without lodging a timely and specific objection to the evidence each time it was offered. See id.
To preserve a complaint about the admission of evidence on appeal, the record must show that the complainant made a timely objection "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." TEX. R. APP. P. 33.1(a)(1)(A). Further, unless the party obtains a running objection, she must object to the evidence every time it is offered, or the objection is not preserved. Ganter v. Indep. Bank, No. 05-15-00413-CV, 2016 WL 4376284, at *5 n.4 (Tex. App.—Dallas Aug. 16, 2016, pet. denied) (mem. op.) (citing Duperier v. Tex. State Bank, 28 S.W.3d 740, 755 (Tex. App.—Corpus Christi 2000, pet. dism'd by agr.)); Brown v. Traylor, 210 S.W.3d 648, 656 n.8 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
In this case, it appears that both the parties and the trial court understood that Crawford's objection to Exhibit 2 was based on a lack of authentication. It also appears that the trial court recognized that Crawford's objection when the exhibit was offered into evidence was timely. Crawford did not ask for a running objection, however, and she failed to object when two other witnesses, both Nuner's husband, Eric, and Emmons' close friend, David Jeremy Hill, testified that Exhibit 2 was an accurate inventory of Emmons' weapons. Since the same evidence was admitted without objection, any error concerning the admission of Exhibit 2 was unpreserved. Brown, 210 S.W.3d at 656 n.8; Crouse v. State, 441 S.W.3d 508, 517 (Tex. App.—Dallas 2014, no pet.). We overrule this point of error.
(2) Crawford Failed to Preserve her Complaint Regarding the Exclusion of Her Testimony
Crawford complains that the trial court erred in excluding (a) her testimony that Emmons gave her the Defender and (b) her testimony that she made deposits into Emmons' bank account to pay joint expenses. Crawford first points to the following exchange during her testimony:
Crawford's point of error is stated broadly as "The Trial Court Improperly Refused to Consider Evidence to Which [the Estate] Objected as Hearsay and Under the Dead Man's Rule." However, in her argument Crawford complains only about two instances in which the trial court excluded her testimony, which we will address. The trial court also excluded a Facebook post offered by Crawford, Crawford Exhibit 8, when the Estate objected to it as hearsay and under the Dead Man's Rule. In her original brief, Crawford does not complain about the trial court's exclusion of the Facebook post. Even though Crawford made no complaint, the Estate addresses the exclusion of the Facebook post in its brief. Consequently, in her reply brief, Crawford argues that the exclusion of the Facebook post was error. However, a reply brief may not raise complaints not raised in the appellant's original brief. Ledig v. Duke Energy Corp., 193 S.W.3d 167, 177 n.8 (Tex. App.—Houston [1st Dist] 2006, no pet.) (citing TEX. R. APP. P. 38.3). Further, since the complaint about the exclusion of the Facebook post was not addressed in Crawford's original brief, it has been waived as inadequately briefed. See id. (citing TEX. R. APP. P. 38.1).
Q. [By counsel for Crawford]: And when did you get engaged?
A. Oh, July 14th -- is that right? I forgot. I can't remember.
Q. Of what year?
A. 2013.
Q. And you posted an announcement?
A. I did. I posted it up on Facebook at that point in time that we had gotten engaged. And Brandon was so excited. We were having such a great time. And he had also given me the blue beast at that point in time, too.
MR. RAINEY (counsel for the Estate): I'm going to object to hearsay and dead man's rule.
Crawford argues that there was corroborating evidence in the record, so the trial court erred in refusing her testimony regarding Emmons' oral statements evidencing a gift to her. However,THE COURT: Sustained.
To challenge the exclusion of evidence, a party must: (1) attempt to introduce the evidence; (2) if an objection is made, specify the purpose for which the evidence is offered and give the trial court reasons why the evidence is admissible; (3) obtain a ruling from the court; and (4) if the court rules the evidence inadmissible, make a record, either through an informal offer of proof or a formal bill of exceptions, of the evidence the party desires admitted.Culver v. Culver, 360 S.W.3d 526, 531 n.9 (Tex. App.—Texarkana 2011, no pet.) (citing TEX. R. APP. P. 33.2; TEX. R. EVID. 103; Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 335 (Tex. App.—Dallas 2008, no pet.); Fletcher v. Minn. Mining & Mfg. Co., 57 S.W.3d 602 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)). Crawford did not explain to the trial court why her testimony regarding the oral statements of Emmons was admissible. Further, since Crawford did not make an offer of proof or file a formal bill of exceptions as to what her testimony would have been, we have no record to enable us to determine whether the testimony would have been admissible. Therefore, any error in the trial court's ruling has not been preserved for our review. See Culver, 360 S.W.3d at 531 n.9.
Crawford also complains that the trial court excluded her testimony that she made deposits into Emmons' bank account to be used to pay their joint expenses and that the trial court sustained objections based on hearsay and the Dead Man's Rule. However, the only instance cited by Crawford is the following exchange during her testimony:
Q. You had investments -- you deposited money in [Emmons'] account, generally, for what purpose?
A. It was to invest into our stocks in the investment accounts. It was also for Brandon to use at his discretion to pay our bills.
Q. Was there ever a time that there was -- that you designated funds for a certain purpose?
A. Yes. We had designated that I would give Brandon $1,000 a month -- I mean, $1,000, initially, to get that one account started and then give him an additional $500 every month after that into the Edward Jones account.
Q. Okay.
A. Into the Edward Jones account. And it was to buy stocks for, like AT&T, Halliburton, Ford Motor Credit Company --
We note that, in this example, no objection was made to Crawford's testimony that she made deposits into Emmons' account to invest in stocks and to pay the couple's bills. Crawford has cited no instances, and we have found none, where the trial court excluded her testimony that she deposited funds to be used to pay the couple's bills based on hearsay or the Dead Man's Rule. To the contrary, Crawford testified extensively regarding her deposits into Emmons' bank account and that he was to use them to help pay the couple's bills. To the extent that Crawford complains about the exclusion of her testimony regarding her deposits into Emmons' bank account in order to make investments in his investment account, the trial court allowed evidence of these transactions, found in favor of Crawford on her claim for reimbursement of the funds she contributed to the investment account, and entered judgment for the total amount of funds she deposited for investment purposes. Therefore, this complaint is without merit.[Counsel for Estate]: I'm going to object again, dead man's rule, hearsay.
THE COURT: Sustained.
For the reasons stated, we overrule this point of error.
(3) Sufficient Evidence Supports the Trial Court's Complained-of Fact-Findings in Favor of the Estate
In her first, second, third, fifth, sixth, and seventh points of error, Crawford challenges the legal and factual sufficiency of the evidence supporting the trial court's findings regarding the ownership of the guns and knives, Crawford's conversion of the same, and the Estate's damage award. Crawford has combined her argument regarding these issues.
In determining legal sufficiency, 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); Basley v. Adoni Holdings, LLC, 373 S.W.3d 577, 582 (Tex. App.—Texarkana 2012, no pet.). In looking at the evidence, we credit favorable evidence if a reasonable fact-finder could and disregard contrary evidence unless a reasonable fact-finder could not. City of Keller, 168 S.W.3d at 827. We review the evidence in the light most favorable to the trial court's findings and assume that it "made all inferences in favor of [its] verdict if reasonable minds could, and disregard all other inferences." Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620-21 (Tex. 2014) (quoting City of Keller, 168 S.W.3d at 821).
The evidence is legally insufficient if (1) there is a complete absence of evidence of a vital fact; (2) the rules of law or of evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) there is no more than a mere scintilla of evidence offered to prove a vital fact; or (4) the opposite of the vital fact is conclusively established by the evidence. Dallas Nat'l Ins. Co. v. De La Cruz, 470 S.W.3d 56, 57 (Tex. 2015) (citing City of Keller, 168 S.W.3d at 810). More than a scintilla of evidence exists when the evidence reaches a level enabling reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
When a trial court's findings of fact are challenged for factual sufficiency, we employ the same standards used to review jury verdicts. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). In our review of a factual-sufficiency challenge to an adverse finding on which the opposing party had the burden of proof, we consider all of the evidence in the record, both in support of and contrary to the finding. In re Estate of Ward, No. 10-11-00003-CV, 2011 WL 3720829, at *2 (Tex. App.—Waco Aug. 24, 2011, pet. denied) (mem. op.) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001)). The trial court's finding will be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Id. (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). On disputed issues of fact, deference is given to the fact-finder as the "sole judge . . . of the credibility of the witnesses and the weight to be given to their testimony." Id. (quoting Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28 (Tex. 1993)).
At trial, Crawford testified that she and Emmons became engaged July 14, 2013. That same year, Emmons purchased the Windsor house. At the time, Emmons was the city manager for the City of Bridgeport. Crawford moved into the Windsor Avenue house in April 2014, and Emmons completely moved in when he retired in December 2014. Crawford testified that she was responsible for the upgrades to the house, lawn maintenance, and maid service. She paid for the termite service, the installation of an irrigation system, and a sewer line repair, made a deposit for exterior painting, and gave Emmons $2,500.00 toward a new roof for the house. She also claimed to have deposited thousands of dollars into Emmons' bank account each month for Emmons to pay bills and living expenses. She also testified that Emmons had automatic payroll deposits into his account totaling about $5,000.00 each month. She also testified that she and Emmons had had several conversations about getting married and what they wanted for their future, their finances, and their home. She said that they discussed how their finances would be combined and how they would live.
Crawford introduced a summary of transfers from her personal account to Emmons' account between July 11, 2014, and April 17, 2015, totaling $19,400.00. Included in these transfers was $6,500.00, which Crawford testified was to be used by Emmons to open and make monthly deposits into an Edward Jones investment account. In support of her testimony, Crawford introduced a series of text messages between Crawford and Emmons in which Emmons told Crawford that the investments were theirs and that his money was theirs. He also explained why the Edward Jones investment account was in his name, but assured her, "[I]t's your money."
Crawford also introduced, and testified about, a series of text messages between Crawford and Emmons that occurred October 31, 2014. Crawford explained that she had taken the Defender out to run errands and to get it inspected. After she got it inspected, the Defender died when she turned a corner. When the issue was resolved, Emmons texted, "Don't be breaking my truck." About forty minutes later, and after text messages unrelated to the Defender, Emmons texted, "Why are you always breaking stuff I give you?"
On cross-examination, Crawford testified that the mortgage payment was just under $1,000.00 per month, that the electric bill was between $100.00 and $300.00 per month, that the Evoque car payment was $700.00 per month, and that there were also expenses for cable, internet, and groceries. She admitted that all of these were paid out of Emmons' bank account. Although she characterized Emmons' bank account as their joint account, she admitted that her name was not on the account, that she did not have privileges to write checks out of the account, and that it was Emmons' account. She also admitted that, after his death, she did not transfer any money to Emmons' account and that she did not give any money to the Estate to help pay for Estate expenses. She admitted that, while she lived in the Windsor Avenue house for two or three months after Emmons died, she did not help with the mortgage payment or other bills or expenses.
Crawford testified that there was a credit card account that was Emmons' sole account, but that she was an authorized user. She also admitted that she is not required to make a payment on the credit card account and that, after Emmons' death, she made $4,300.00 in charges on the credit card, including $3,939.32 for her engagement ring. Crawford admitted that she had not reimbursed the Estate for her ring. She also testified that Emmons purchased the Evoque for her and that, when it broke down the night before his death, she did not have it repaired or make any car payments after he died. Crawford testified that, on July 7, 2015, Nuner texted her and said that there was no more money to pay the expenses and that they needed to transfer the utility bills to Crawford's name. She admitted that she moved out of the house two days later. She also admitted that the Defender was in Emmons' name while he was alive.
Crawford also testified that she removed Emmons' guns and knives when she moved from the Windsor Avenue house. She said that she removed some on the morning of July 8 and more July 9. She also testified that the police had asked her to account for the guns and to tell them where they were, but she refused. The police also asked her to turn the guns over to them, but she refused this request also. Eventually, Crawford returned four of the guns to the Estate. Crawford claimed that Emmons had given her all of the other guns at various times during their relationship, but she admitted that he had never given her a bill of sale or any other document showing he gave her any gun.
Nuner testified that she and Emmons were extremely close and that she was the beneficiary of all of his investment accounts. Exhibit 2 was admitted over Crawford's objections that it lacked relevancy and authentication. Nuner testified that the total value of the guns and knives listed on Exhibit 2 was $53,464.00. Nuner said that the values of the guns and knives on Exhibit 2 were on it when she pulled it off of Emmons' computer. She testified these were the same guns Emmons owned and that Crawford removed. She was not certain whether the four guns Crawford returned to the Estate were included in Exhibit 2.
Regarding the Defender, Nuner testified that Emmons had owned it for eight or ten years, that it was titled in his name when he died, and that he never indicated he had given it to Crawford. She testified that there was nothing in his records that indicated that Crawford had bought the Defender or that Emmons had made a gift of it to her. She explained that Emmons was very proud of the Defender and had a special affinity for it. She could not imagine that he would give it to Crawford. Nuner also testified that Emmons purchased the Airstream RV in 2011 and that Emmons never told her that he had given it to Crawford. She testified that Emmons loved to hunt, that he loved fancy guns, and that, in her opinion, he would not have given the guns to Crawford.
On cross-examination, Nuner testified that her husband had retrieved Exhibit 2 off of Emmons' computer within a week or two of his death, in the presence of Nuner, Crawford, and a friend of Crawford's. She believed that Emmons made the list and explained his thorough records by noting that he had a list of every CD he owned. She did not know when the list was made.
Eric Nuner testified that, on the day after Emmons died, he was on Emmons' computer searching for information about his accounts. He testified that the computer belonged to Emmons and that Crawford had her own computer. He also said that Crawford took Emmons' computer.
Eric also testified without objection that Exhibit 2 was the gun and weapon inventory that Emmons kept on his computer. He said that he spent lots of time looking over Emmons' guns with him and that he had shot the guns multiple times, so that he was familiar with Emmons' guns. He also said that he had seen Exhibit 2 before. Eric testified that Exhibit 2 was an accurate list of the guns owned by Emmons and seen by Eric. He was not familiar with the value of the guns, but stated that Emmons was very meticulous with his numbers and that he trusted that the values were accurate.
Eric identified the four guns returned by Crawford to the Estate as a Walther P22 pistol, a Mossberg Ulti-Mag 12 gauge, and a Remington 722 .22-250, all of which were listed on Exhibit 2, with stated values of $400.00, $300.00, and $650.00, respectively. The fourth gun was not on the gun list, and Eric opined that it was probably worth about $100.00 new.
On cross-examination, Eric testified that he thought the newer guns were probably priced at the amount Emmons paid for them and that the older ones were depreciated. He also testified that he did not know how old the list was, but that he had seen the list in some form five years before and that Emmons would update the list as he bought and sold guns. The last two guns that Emmons bought two months before his death were on the list. He affirmed that Emmons was meticulous and wanted to know what guns he had in inventory and their value. Eric testified that a Browning .25-06 and two pistols owned by Crawford were not listed on Exhibit 2. He stated that Emmons did not give any of the guns on the list to Crawford.
Lisa Daschofsky, Emmons' insurance agent, testified that insurance on the Windsor Avenue house was acquired by Emmons November 18, 2013, and listed only him as the owner. She said that Emmons added Crawford as an additional insured April 2, 2014, to ensure that her contents in the house would be insured. On April 9, 2014, he added Crawford as an additional insured on the Evoque and the Defender that he owned. She testified that he told her that Crawford was driving the Evoque that he bought her. He never told her that he gifted the Defender to Crawford. She also said the Airstream RV was originally insured June 1, 2011, and that it was a total loss as of November 2014. Payment for the loss was made only to Emmons. Emmons purchased it back for salvage value. Daschofsky also testified that, if there had been a fire at the Windsor Avenue house, the proceeds would have gone to the lienholder and the owner, Emmons. Crawford, as a named insured, could have added her contents to the claim, but the insurance company would still only pay Emmons.
Hill testified that he had been close friends with Emmons since 2001 and that they hunted together and traveled around the world together. He testified that he had a collection of guns and that he bought, sold, and traded two or three guns a year. Hill said he kept up with the value of guns through consistent trading and that he stayed on top of the market, so that he knew the price of guns. Hill testified that he was familiar with all of Emmons' guns and that there was never one that Emmons purchased that he was not either holding in his hands or that Emmons was not sending photographs of and telling him how he got it. He also testified that he had shot Emmons' guns regularly. After reviewing Exhibit 2, Hill testified, without objection, that he remembered each of the guns and that Exhibit 2 was a list of Emmons' gun inventory. He also testified, again without objection, that the values listed on Exhibit 2 would be the market value of the guns or what they would sell for. Hill also testified that the Krieghoff Ultra was a commissioned rifle, which was built to specifications. He related that, on a hunting trip to Africa, he had to carry and insure Emmons' guns, which is when he learned about commissioned guns. He testified that the guns he transported on that trip were the Remington 700, the Krieghoff Ultra, the Browning Abolt .338, and the Browning BPS .30-06. Hill testified that the values on Exhibit 2 were accurate prices, if Emmons were trying to sell the guns, and that they totaled $54,000.00.
Hill also testified that Emmons bought Crawford a Browning Gold Medallion deer rifle that was not on Exhibit 2. Emmons never told him of any other guns he gave Crawford, although Emmons would let her use different ones when they hunted together. He testified that Emmons would let Crawford use his Browning Cynergy .20 gauge for dove hunting, but he had no knowledge of Emmons giving it to her. Hill said that, if Emmons had given his guns to Crawford, he would have known about it. Hill was also familiar with the Defender and Emmons' love for it. He testified that, to his knowledge, Emmons would not have given it to Crawford. He said that Emmons would have told him if he had.
On cross-examination, Hill acknowledged that Crawford was an avid hunter and that she had owned some guns before meeting Emmons. He also acknowledged that Emmons and Crawford hunted together all the time and that they were planning on going on a hunting safari in Africa. Although he could not say definitively that Emmons did not give Crawford what was referred to as "Amanda's gun," he said that Emmons would typically call him and tell him everything and that he never told him he had given Crawford the gun. Hill admitted that he had borrowed money from Emmons, but stated that he had paid him back. He testified that he and Emmons would exchange guns on occasion, but never permanently traded them.
Colton Emmons, Emmons' nephew, testified that he had lived in the Windsor Avenue house since August 2014 while he was going to school. He testified that Emmons had about thirty guns that were kept in a safe in Colton's room. He said that Crawford had keys to the safe and that, the night before Crawford moved out, he noticed the safe was unlocked and the guns were gone. He also testified that all of the guns in the safe belonged to Emmons, except two or three. One was Colton's, and the other ones not owned by Emmons were owned by Crawford. He had no knowledge of Emmons giving the Defender to Crawford.
To prevail on a claim of conversion, a plaintiff must show that
(1) the plaintiff owned or had legal possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; and (3) the plaintiff suffered injury.Lopez v. Lopez, 271 S.W.3d 780, 784 (Tex. App.—Waco 2008, no pet.) (citing United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147-48 (Tex. 1997); Apple Imports, Inc. v. Koole, 945 S.W.2d 895, 899 (Tex. App.—Austin 1997, pet. denied)).
Crawford argues that the evidence is legally and factually insufficient to support the trial court's findings that the Estate owned the guns and knives and that Crawford removed any specific guns from the house. However, Nuner, Eric, and Hill all testified that they were familiar with the guns, knives, and sporting equipment owned by Emmons. Nuner testified that Exhibit 2 appeared to be, and Eric and Hill testified that Exhibit 2 was, an accurate list of the guns and knives Emmons owned. Nuner and Eric testified that the list that became Exhibit 2 was located on Emmons' computer the day after his death. Eric and Hill testified that Emmons was meticulous in keeping track of what he owned, and Eric testified that he had seen a similar list on several occasions over a several year period and that Emmons would update the list as he bought and sold guns. He also testified that the last two guns Emmons purchased two months before his death were on the list. Eric also identified the four guns that Crawford had returned to the Estate, three of which were on the list. Nuner, Eric, and Hill testified about Emmons' love of hunting and guns and expressed their opinions that Emmons would not have given his guns to Crawford. Hill added that he expected that Emmons would have told him if he had given guns to Crawford, but he never did tell Hill of such gifts. Each of them acknowledged that Crawford owned guns of her own and that Emmons had given her one gun; they also testified that such guns were not listed on Exhibit 2. The only evidence in support of Crawford's contention that Emmons had given her all of his guns and knives, except the four guns she returned to the Estate, was her own testimony. She admitted, however, that Emmons had never given her any document showing that he had given her the guns. The trial court, as the sole judge of the credibility of the witnesses, could reasonably discredit Crawford's testimony and reasonably infer that Exhibit 2 was an accurate list of the guns and knives owned by Emmons when he died and that the Estate owned them.
The following are key findings of fact and conclusions of law made by the trial court regarding the ownership of the guns and knives, and their removal by Crawford:
FINDINGS OF FACT
. . . .
24. Amanda Crawford admitted to removing the guns and knives from 3026 Windsor after Brandon Emmons' death and while she was still living in the residence.
25. Administrator/Plaintiffs Exhibit 2 lists guns and knives that Brandon Emmons owned immediately before he died and that were taken from the Estate of Brandon Emmons by Amanda Crawford. Administrator/Plaintiff Exhibit 2 shows the fair market value of those guns and knives. The evidence presented by witnesses established by a preponderance of evidence that the guns and knives listed in Plaintiffs Exhibit 2 were present in Brandon's house on the day before Amanda Crawford moved out of the house. Amanda Crawford moved from the house and took the contents with her including the guns, knives and other items listed on Administrator/Plaintiffs Exhibit 2.
26. Brandon Emmons did not gift the guns, knives or other items listed on Plaintiff/Administrator's Exhibit 2 to Amanda Crawford.
27. Brandon Emmons kept possession of the guns, knives and other items listed on Plaintiff/ Administrator's Exhibit 2 and did not deliver them to Amanda Crawford.
. . . .
CONCLUSIONS OF LAW
. . . .
7. Brandon Emmons did not gift the guns, knives or other items listed on Plaintiff/Administrator's Exhibit 2 to Amanda Crawford.
8. Amanda Crawford took the guns, knives and other items listed on Plaintiffs/Administrator's Exhibit 2 without permission from the Administrator of the Estate of Brandon Emmons and converted those items to her dominion, control, possession and use to the exclusion of the Administrator of the Estate.
9. Amanda Crawford has refused to return the guns, knives and other items listed on Plaintiffs/Administrator's Exhibit 2 to the Administrator of the Brandon Emmons Estate.
. . . .
ADDITIONAL FINDINGS OF FACT
. . . .
37. Amanda Crawford took the guns, knives and binoculars from the Estate of Brandon Emmons without permission and has refused to return those times [sic], despite being asked to return those items to the Administrator of the Estate of Brandon Emmons. Amanda Crawford has possession and control of the guns, knives and binoculars listed in the Administrator's Inventory and presented to the Court.
Crawford admitted that she removed the guns and knives from the Windsor Avenue house on the mornings of July 8 and July 9, when she moved from the house. She also admitted that she refused the police department's requests to account for the whereabouts of the guns and to return them to the Estate. Although Crawford never identified which guns and knives she removed, based on her admission that she removed the guns and knives, her contention that Emmons had given them to her, her refusal to account for and return the guns, and Colton's testimony that all of the guns were missing the night before Crawford moved, the trial court could reasonably determine that Crawford removed all of the guns and knives owned by the Estate unlawfully and without authorization and that she exercised control over them to the exclusion of the Estate.
The evidence is legally and factually sufficient to support the trial court's findings of fact that the Estate owned the guns and knives, that the guns and knives were removed by Crawford, and that Crawford removed them without permission and has refused to return them to the Estate.
Crawford also complains that the evidence is legally and factually insufficient to support the trial court's findings of fact supporting its award of $49,000.00 in damages to the Estate on its conversion claim. She argues that Nuner testified only as to the total of the numbers listed on Exhibit 2, but otherwise offered no testimony as to the value of the guns and knives. Crawford also argues that Hill offered expert testimony, but that his testimony is unreliable and therefore cannot support a finding, citing Gharda USA, Inc. v. Control Solutions, 464 S.W.3d 338 (Tex. 2015). She further argues that Hill's testimony was conclusory, lacked a factual basis, and cannot be considered testimony even without any objection to it at trial, citing Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 833 (Tex. 2014).
The trial court made the following findings of fact and conclusions of law regarding the Estate's damages:
ADDITIONAL FINDINGS OF FACT
. . . .
35. The guns, knives and binoculars presented in Plaintiffs Exhibit 2 are valued at $52,114.00 and the Estate of Brandon Emmons was damaged in the sum of $52,114.00 by Amanda Crawford's conversion of these items.
36. There was sufficient evidence presented by the Administrator to show that the guns, knives and binoculars inventoried and taken by Amanda Crawford are valued at $52,114.00.
. . . .
38. The Administrator agreed to reduce the value of damages sought against Amanda Crawford for conversion and theft of the guns, knives and binoculars to $49,000.00 and these items are valued at $49,000.00 or more.
. . . .
ADDITIONAL CONCLUSIONS OF LAW
14. There was sufficient evidence presented by the Administrator to show that the guns, knives and binoculars inventoried and taken by Amanda Crawford are valued at $52,114.00.
15. There was evidence presented by the Administrator to show that the guns, knives and binoculars inventoried and taken by Amanda Crawford are valued at $52,114.00.
16. The Estate of Brandon Emmons was damaged in the amount of at least $49,000.00 by Amanda Crawford's taking of the guns, knives and binoculars which such amount is part of the $52,114 of damages.
17. The Estate of Brandon Emmons was damaged in the amount of $52,114.00 by Amanda Crawford's taking of the guns, knives and binoculars.
18. The Administrator agreed to reduce the damages to the Estate of Brandon Emmons for the conversion of the guns, knives and binoculars to $49,000.00.
First, Hill was not tendered, nor was he recognized by the trial court, as an expert witness. If he had been an expert witness, Crawford's unreliability argument would fail since an expert opinion admitted into evidence without objection is considered probative evidence even if its basis is unreliable. See id. at 829 (citing City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009)). Crawford made no objection to Hill's testimony regarding the value of the guns and knives.
Rather, Hill offered lay testimony regarding the value of the guns. Opinion testimony by a lay witness is allowed if it is rationally based on his or her perception and is helpful in determining a fact in issue. TEX. R. EVID. 701. As long as a lay witness testifies about matters within his or her knowledge, lay witness testimony on damages is admissible. Sierad v. Barnett, 164 S.W.3d 471, 483-84 (Tex. App.—Dallas 2005, no pet.) (citing Coker v. Burghardt, 833 S.W.2d 306, 309 (Tex. App.—Dallas 1992, writ denied)). "A lay witness can testify about value if he has personal knowledge of facts forming the opinion, a rational connection exists between the facts and opinion, and the opinion is helpful." Id. at 484 (citing Laprade v. Laprade, 784 S.W.2d 490, 492 (Tex. App.—Fort Worth 1990, writ denied)). In regard to personal property, a non-owner may testify about value if the record establishes the basis of his or her personal knowledge and a rational connection of that knowledge with the opinion. See id. (no abuse of discretion in allowing decedent's fiancée, best friend, and roommate to testify regarding value of decedent's furnishings when record showed that they were familiar with them and owned similar furnishings); Rio Grande Land & Cattle Co. v. Light, 749 S.W.2d 206, 212 (Tex. App.—San Antonio 1988), rev'd in part on other grounds, 758 S.W.2d 747 (Tex. 1988) (lay witness familiar with cattle owned, cattle his family owned, and cattle owned by third party qualified to testify as to value of all cattle).
Hill testified that he was familiar with Emmons' guns, that he hunted with Emmons, that he shot Emmons' guns often, and that Exhibit 2 was an accurate inventory of Emmons' guns. Hill testified that he has his own collection of guns, buys and sells two or three guns a year, and keeps current with the market for guns. Hill testified that the values assigned to the inventory on Exhibit 2 would be the market value of the guns, not what Emmons paid for them, and that the values were accurate prices for what the inventory could be sold, including the total of approximately $54,000.00.
Crawford did not object to any of the opinions and testimony of Eric or Hill. Eric's testimony was based on his personal knowledge of Emmons, Emmons' weapons inventory, and Emmons' habit of keeping a current inventory and the value of the same; and there was a rational connection between Eric's knowledge and his opinion. Hill's testimony was based on his personal knowledge of Emmons' guns, his experience in buying and selling guns, and his knowledge of the market for guns. There was a rational connection between his knowledge and his opinion, at least as far as the value of the guns.
Exhibit 2 listed the estimated value of each gun, each knife, and the binoculars and totaled $53,464.00. Although Hill's testimony as to the total value of the items on Exhibit 2 may have been conclusory as to the value of the binoculars and the knives, his testimony that the value of the guns on Exhibit 2 reflected the market value of the guns, coupled with Eric's testimony regarding Emmons' habit of updating the list as he bought and sold guns and his carefulness in keeping track of his inventory and its value, would allow the trial court to reasonably infer that the values assigned to the binoculars and knives also reflected their market value. Subtracting the value of the guns returned by Crawford that were listed on Exhibit 2 gives a remaining value of $52,114.00, which is greater than the trial court's award of $49,000.00 in damages.
On this record, we find that there is some evidence to support the trial court's award of $49,000.00 in damages to the Estate. Further, in the absence of any evidence to the contrary, we cannot say that the trial court's findings regarding damages are so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Estate of Ward, 2011 WL 3720829, at *2. Therefore, we find that there is legally and factually sufficient evidence to support the trial court's damage award.
For the reasons stated, we overrule these points of error.
(4) Sufficient Evidence Supports the Trial Court's Refusal to Make the Findings Argued by Crawford on Appeal
In her ninth and tenth points of error, Crawford challenges the factual sufficiency of the evidence supporting the trial court's findings regarding the ownership of the Defender and its denial of her conversion claim against the Estate. In its original findings of fact and additional findings of fact the trial court found that (a) Emmons had purchased the Defender and had maintained its title and insurance in his name, (b) the Defender was purchased before his relationship with Crawford and was the property of the Estate, (c) the Facebook posting, even if it had been admitted into evidence, was insufficient to corroborate Crawford's claim that Emmons had gifted her the Defender, (d) the text message exchange between Crawford and Emmons (Crawford Exhibit 13a) was insufficient evidence to establish Emmons had gifted the Defender to Crawford, (e) Crawford's Exhibit 13a shows that Emmons considered the Defender his truck, (f) sufficient evidence showed that Emmons did not give the Defender to Emmons, (g) Emmons kept possession of the Defender and occasionally allowed Crawford to drive it, (h) the testimony of Emmons' family, friends, and insurance agent showed that Emmons would not give the Defender to Crawford, and (i) Emmons kept possession of the Defender and did not deliver it to Crawford. In its additional findings, the trial court found that the Estate has proper and legal possession of the Defender and that it was never gifted to Crawford.
Crawford frames her issues as "The Trial Court's Failure to Find That Emmons Gave Crawford the . . . Defender and that the Estate Converted It Is Against the Great Weight and Preponderance of Evidence." Crawford's language challenges the factual sufficiency of the evidence supporting the trial court's refusal to make her desired findings. The trial court, however, entered findings of fact and conclusions of law that defeat one or more elements of Crawford's cause of action. In her brief, Crawford listed the numbers, but not the substance, of the findings of fact and conclusions of law that she was challenging. Because these challenged findings included the findings that ultimately defeated her causes of action, we will construe these points of error as challenging the factual sufficiency of those findings that defeated one or more elements of her causes of action.
A party challenging the factual sufficiency of evidence regarding the trial court's refusal to find on an issue that the party bore the burden of proof must show that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Checker Bag Co., a Div. of Checker Food Prods. Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App.—Waco 2000, pet. denied). After we examine the entire record, if there is some evidence to support the finding, we "can set aside [the] verdict only if the evidence is so weak or if the finding is so contrary to the great weight and preponderance of the evidence that it is clearly wrong and unjust." Dow Chem. Co., 46 S.W.3d at 242; Checker Bag Co., 27 S.W.3d at 633.
To prevail on her claim of conversion, one of the necessary elements Crawford had to show was that she owned or had legal possession of the Defender, or that she was entitled to its possession. See Lopez, 271 S.W.3d at 784. Crawford bases her right to ownership or possession on her contention that the Defender was a gift to her from Emmons. A gift is a voluntary transfer of property made to another gratuitously and without consideration. Gomer v. Davis, 419 S.W.3d 470, 476 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing Lopez, 271 S.W.3d at 788). To establish the existence of a gift, Crawford had to show (1) that Emmons intended to make a gift of the Defender, (2) delivery of the Defender to Crawford, and (3) acceptance of ownership of the Defender by Crawford. See Nipp v. Broumley, 285 S.W.3d 552, 558 (Tex. App.—Waco 2009, no pet.); Lopez, 271 S.W.3d at 788. Although the name in which an automobile is titled is not conclusive of ownership, evidence showing the vehicle is titled in a person's name raises a presumption that he or she owns the vehicle. Grant v. Espiritu, 470 S.W.3d 198, 202 (Tex. App.—El Paso 2015, no pet.). That presumption is overcome only by positive evidence to the contrary. Id.
On appeal, Crawford does not point to any evidence in support of her contention that Emmons gifted the Defender to her. Rather, she faults the trial court for excluding her testimony that Emmons gave it to her on their engagement. As we previously noted, Crawford failed to make a record of the substance of this excluded testimony. Therefore, we cannot consider it. The record shows, however, that Crawford testified regarding, and introduced, a series of text messages between Emmons and Crawford in which Emmons at one point texted, "Don't be breaking my truck," and later texted, "Why are you always breaking stuff I give you[?]" Crawford also admitted that the Defender was registered in Emmons' name and that he did not give her any documentation showing he had given the truck to her. Testimony also showed that Emmons purchased the Defender before he knew Crawford, and that he had an affinity for it. Nuner and Hill both testified that they did not believe Emmons would give the Defender to Crawford. Daschofsky testified that Emmons added Crawford as a named insured on the Defender because she was driving it on occasion, but never told her that he had given the truck to Crawford.
On this record, we find there is some evidence to support the trial court's findings that Emmons owned the Defender and that he did not give ownership of the truck to Crawford. Further, we cannot say that the trial court's findings are so contrary to the great weight and preponderance of the evidence that they are clearly wrong and unjust. See Dow Chem. Co., 46 S.W.3d at 242; Checker Bag Co., 27 S.W.3d at 633. Since Crawford's conversion claim was dependent on her establishing that Emmons had gifted her the Defender, we find that the evidence is factually sufficient to support the trial court's judgment denying Crawford's conversion claim regarding the Defender. Consequently, we overrule these points of error.
(5) Crawford Failed to Preserve any Complaint Regarding the Trial Court's Failure to Find Unjust Enrichment and Constructive Trust
In her eleventh point of error, Crawford complains that the trial court erred in failing to find unjust enrichment and establish a constructive trust. The trial court's original findings of fact and conclusions of law do not address Crawford's unjust enrichment claim or her request for a constructive trust. When the trial court's findings fail to address a ground of recovery, the party asserting that ground of recovery must request additional findings in proper form, or any complaint about the unaddressed ground of recovery is forfeited. Austin Capital Collision, LLC v. Pampalone, No 03-15-00447-CV, 2016 WL 7187478, at *8 (Tex. App.—Austin Dec. 8, 2016, no pet.) (mem. op.) (citing TEX. R. CIV. P. 298; Briggs Equip. Trust v. Harris Cty. Appraisal Dist., 294 S.W.3d 667, 670 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)); Wheelock v. Trim Electric, Inc., No 01-12-00475-CV, 2013 WL 3233239, at *7 (Tex. App.—Houston [1st Dist.] June 25, 2013, no pet.) (mem. op.). The record shows that Crawford did not request additional findings of fact or conclusions of law on her claims for unjust enrichment and constructive trust. Consequently, Crawford has forfeited her complaint regarding the trial court's refusal to find unjust enrichment and constructive trust. See Wheelock, 2013 WL 3233239, at *7. We overrule this point of error.
(6) Factually Sufficient Evidence Supports the Trial Court's Findings Regarding Emmons' Bank Account
In her twelfth point of error, Crawford contends that factually insufficient evidence supports the trial court refusal to find that the Estate converted Crawford's interest in Emmons' bank account. Crawford argues only that she had an interest in Emmons' bank account in constructive trust as a result of her confidential relationship with Emmons. As we previously noted, since the trial court made no findings on her claim for unjust enrichment and constructive trust, and Crawford failed to request additional findings on these claims, any complaint based on them was forfeited.
In her request for additional findings, Crawford requested the trial court to find the following regarding Emmons' bank account:
whether (a) . . . Crawford was entitled to certain funds on deposit in that account, (b) [the Estate] assumed or exercised dominion and control over the property in an unlawful and unauthorized manner, (c) . . . Crawford made a demand for the property; and (d) [the Estate] refused to return the property.In its Additional Findings, the trial court found
40. . . . Crawford did not have a contract or agreement with . . . Emmons to be reimbursed funds that she placed into [Emmons' bank account,] and the [Estate] has proper and legal possession of this bank account and its funds. . . . Crawford was not entitled to funds or money in this bank account. Any funds . . . Crawford placed in this account were used for her share of the living expenses that she agreed to help pay while she lived with . . . Emmons.This additional finding was included among the numbered findings of fact that Crawford stated she was challenging in her brief. Therefore, we construe this point of error as challenging the factual sufficiency of the evidence supporting these findings.
To prevail on her claim of conversion, Crawford had to show, inter alia, that she was entitled to the funds she deposited into Emmons' bank account. See Lopez, 271 S.W.3d at 784. Crawford's pleadings alleged not only unjust enrichment and constructive trust, but also a contract with Emmons. One of the requirements for a contract is that "mutual assent must be present." Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 850 (Tex. 2009). "The determination of a meeting of the minds . . . is based on the objective standard of what the parties said and did[,] not on their subjective state of mind." Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Davidson v. McLennan Cty. Appraisal Dist., No. 10-11-00061-CV, 2012 WL 3799149, at *6 (Tex. App.—Waco Aug. 30, 2012, pet. denied) (mem. op.). When a meeting of the minds is contested, "the existence of a contract is a fact question." Angelou, 33 S.W.3d at 278.
Crawford testified that she began living in the Windsor Avenue house in April 2014 and lived there continuously until July 2015. She also testified, and offered documentary evidence, that she had transferred a total of $19,400.00 into Emmons' bank account between July 11, 2014, and April 17, 2015. Included in these transfers was $6,500.00, which Crawford testified was to be used by Emmons to open and make monthly deposits into an Edward Jones investment account and which the trial court's judgment ordered reimbursed to Crawford. Crawford testified that she deposited the remaining $12,900.00 to be used by Emmons to pay their bills and living expenses. She also testified that Emmons had automatic payroll deposits into the account totaling $5,000.00 each month. Crawford acknowledged that payments for the mortgage, electric bill, and the loan on the Evoque totaled approximately $2,000.00 per month and that there were other bills and living expenses. She also admitted that all of their living expenses and bills were paid out of Emmons' bank account, that the account was solely in Emmons' name, that her name was not on the account, and that she could not draft checks against it. Emmons' bank records support this testimony. Crawford also admitted that, for two to three months after Emmons' death, she continued to live in the Windsor Avenue house without paying any money toward the mortgage payment or utility bills or making additional transfers to Emmons' bank account. Although Crawford testified that she and Emmons talked about getting married and how they would combine their finances, she never testified they had a present agreement regarding their finances, the house, or Emmons' bank account.
In this record, therefore, there is some evidence to support the trial court's findings that there was no agreement to reimburse Crawford for funds deposited into Emmons' bank account, that such funds were used to pay her share of the couple's living expenses, and that Crawford was not entitled to funds in the account. Further, we cannot say that the trial court's findings are so contrary to the great weight and preponderance of the evidence that they are clearly wrong and unjust. See Dow Chem. Co., 46 S.W.3d at 242; Checker Bag Co., 27 S.W.3d at 633.
Crawford's claim of entitlement to funds in Emmons' account depended on her establishing an enforceable contract to the same with Emmons. The trial court's findings rejected this claim. Since Crawford's conversion claim was dependent on her establishing her entitlement to funds in the account, we find that the evidence is factually sufficient to support the trial court's judgment denying Crawford's conversion claim regarding funds in Emmons' bank account. Consequently, we overrule this point of error.
For the reasons stated, we affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice Date Submitted: June 22, 2017
Date Decided: September 7, 2017