Jonese M. Ortegon v. Housing Authority of Bexar County ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00546-CV
Jonese M. ORTEGON,
Appellant
v.
HOUSING AUTHORITY OF BEXAR COUNTY,
Appellee
From the County Court at Law No. 10, Bexar County, Texas
Trial Court No. 375315
Honorable David J. Rodriguez, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: April 30, 2014
AFFIRMED
Appellant Jonese Ortegon complained to employees of Appellee Housing Authority of
Bexar County (HABC) about its alleged failures to properly maintain her home. According to
HABC, Ortegon threatened its employees, and her threats violated the terms of her lease. HABC
notified Ortegon that her lease was terminated, but she refused to move out. HABC filed a forcible
detainer action, the trial court awarded possession to HABC, and Ortegon appeals. Because the
evidence was legally and factually sufficient to support the necessarily implied findings, we affirm
the trial court’s order.
04-12-00546-CV
BACKGROUND
Ortegon leased a home in Bexar County from HABC under a Low Rent Dwelling Lease
agreement. According to Ortegon, she repeatedly asked HABC to repair her home’s air
conditioner, but HABC failed to do so properly. When she received an unaffordably high
electricity bill, she went to HABC’s offices and complained to its employees.
According to testimony from HABC employees, Ortegon caused them to become fearful
of imminent serious bodily injury when she allegedly said “As upset as I am right now, you’re
lucky I don’t have a gun or I would start shooting people.” 1 Based on Ortegon’s statements, HABC
notified Ortegon in writing that her threats violated the terms of her lease and the lease had been
terminated. When Ortegon refused to vacate the premises, HABC filed a forcible detainer action.
The justice of the peace awarded possession to HABC, issued a writ of possession, and
Ortegon appealed. After a trial de novo to the county court at law bench, the trial court awarded
HABC possession of the premises and its attorney’s fees. After the trial court issued its writ of
possession, Ortegon posted a supersedeas bond. Representing herself, Ortegon appeals the trial
court’s order.
EVICTION ORDER CHALLENGE
In her pro se brief, Ortegon complains she had no opportunity to respond to HABC’s
arguments, she is indigent and should not have to pay the assessed attorney’s fees, and the trial
court erred because she did not violate her lease terms. Even liberally construing Ortegon’s brief,
we conclude her only issue that was not waived was her complaint that the eviction order is
improper because she did not violate her lease terms. See TEX. R. APP. P. 38.1(f), (i) (brief
1
In a separate proceeding, the district court issued a temporary injunction prohibiting Ortegon from, inter alia, being
at certain HABC locations or near certain HABC employees.
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requirements); Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.—
Dallas 2010, no pet.) (briefing waiver). We turn to Ortegon’s sole surviving issue.
A. Standard of Review
Ortegon asserts there is no evidence that she violated the terms of her lease. We construe
her complaint as a challenge to the sufficiency of the evidence.
“In a [bench] trial, where no findings of fact or conclusions of law are filed or requested,
it will be implied that the trial court made all the necessary findings to support its judgment.” Holt
Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); accord Roberson v. Robinson, 768
S.W.2d 280, 281 (Tex. 1989) (per curiam). If a reporter’s record is filed, an appellant may
challenge the legal and factual sufficiency of the court’s implied findings. Heine, 835 S.W.2d at
84; Roberson, 768 S.W.2d at 281; Volume Millwork, Inc. v. W. Houston Airport Corp., 218 S.W.3d
722, 729 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). We conduct the sufficiency reviews
using the same standards applicable to a jury’s findings. See Ortiz v. Jones, 917 S.W.2d 770, 772
(Tex. 1996) (per curiam); Roberson, 768 S.W.2d at 281.
1. Legal Sufficiency
We review the legal sufficiency of the implied findings by crediting favorable evidence
that a reasonable fact-finder could and disregarding contrary evidence unless a reasonable fact-
finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Ingham v.
O’Block, 351 S.W.3d 96, 100 (Tex. App.—San Antonio 2011, pet. denied). We “consider [the]
evidence in the light most favorable to the [finding], and indulge every reasonable inference that
would support it.” City of Keller, 168 S.W.3d at 822; accord Drury Sw., Inc. v. Louie Ledeaux #1,
Inc., 350 S.W.3d 287, 291 (Tex. App.—San Antonio 2011, pet. denied). “[I]f there is more than
a scintilla of evidence to support the finding,” the evidence is legally sufficient. BMC Software
Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); accord Heine, 835 S.W.2d at 84.
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2. Factual Sufficiency
We review the factual sufficiency of the findings by considering all of the evidence in the
record. Ortiz, 917 S.W.2d at 772; Flying J Inc. v. Meda, Inc., 373 S.W.3d 680, 690 (Tex. App.—
San Antonio 2012, no pet.). If the appellant did not have the burden of proof on the adverse
finding, the appellant must show the evidence is insufficient to support the finding. Johnson v.
Waters at Elm Creek L.L.C., 416 S.W.3d 42, 47 (Tex. App.—San Antonio 2013, pet. denied)
(quoting Flying J Inc., 373 S.W.3d at 690–91). We will set aside the order “only if the evidence
that supports the [implied] finding is so weak as to make the [order] clearly wrong and manifestly
unjust.” Brown v. Traylor, 210 S.W.3d 648, 667 (Tex. App.—Houston [1st Dist.] 2006, no pet.);
accord Flying J Inc., 373 S.W.3d at 691; Ruiz v. Guerra, 293 S.W.3d 706, 718 (Tex. App.—San
Antonio 2009, no pet.).
B. Applicable Law
If a tenant refuses to surrender possession of real property after a proper, written demand
for possession by one entitled to such possession, the tenant commits a forcible detainer. TEX.
PROP. CODE ANN. § 24.002 (West 2000); see Coinmach Corp. v. Aspenwood Apartment Corp.,
417 S.W.3d 909, 915 (Tex. 2013); Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 497
(Tex. App.—Houston [14th Dist.] 2006, no pet.). The purpose of a forcible detainer action is to
determine who has the right to possession of the premises. Marshall v. Hous. Auth. of San
Antonio, 198 S.W.3d 782, 785 (Tex. 2006); McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex.
1984). “To prevail in a forcible detainer action, . . . the plaintiff must present sufficient evidence
of ownership to demonstrate a superior right to immediate possession.” Dormady v. Dinero Land
& Cattle Co., L.C., 61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.); accord
Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). A plaintiff may
demonstrate its superior right to possession by showing it is entitled to evict the tenant for cause,
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such as under the terms of the lease. 2 See Hinojosa v. Hous. Auth. of Laredo, 940 S.W.2d 763,
765–66 (Tex. App.—San Antonio 1997, no writ); Barajas v. Hous. Auth. of Harlingen, 882 S.W.2d
853, 855–56 (Tex. App.—Corpus Christi 1994, no writ).
C. Analysis
1. Ortegon’s Argument
Ortegon asserts that, given the lack of evidence to support any breach of her lease, she
should be able to remain in her home. She insists she did not commit any violent act against
HABC personnel or take a weapon to HABC offices, she has not been found guilty of any crime,
and she is not under any criminal indictment. We must decide whether the evidence is sufficient
to support the trial court’s eviction order that necessarily found HABC has a superior right to
immediate possession of the property. See Marshall, 198 S.W.3d at 785; Dormady, 61 S.W.3d at
557.
2. Lease, Right to Possession
To prove its superior right to immediate possession, HABC submitted a copy of Ortegon’s
lease. See Hinojosa, 940 S.W.2d at 765–66. Ortegon does not dispute the existence of the lease
or its terms. The relevant lease term (paragraph 7.Q.) reads as follows:
Resident Agrees:
...
Q. that the Resident . . . shall not engage in (1) any criminal activity that threatens
the health, safety or right to peaceful enjoyment of the neighborhood or other
residents or employees of the Housing Authority . . . . Any criminal activity in
2
If the plaintiff is a federally-regulated public housing authority (PHA), federal regulations impose certain
requirements on PHA leases and also permit eviction in certain circumstances.
The PHA may evict the tenant by judicial action for criminal activity in accordance with this section
if the PHA determines that the covered person has engaged in the criminal activity, regardless of
whether the covered person has been arrested or convicted for such activity and without satisfying
the standard of proof used for a criminal conviction.
24 C.F.R. § 966.4(l)(4)(iii) (2013); accord Hinojosa v. Hous. Auth. of Laredo, 940 S.W.2d 763, 766 (Tex. App.—San
Antonio 1997, no writ); Barajas v. Hous. Auth. of Harlingen, 882 S.W.2d 853, 856 (Tex. App.—Corpus Christi 1994,
no writ).
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violation of the preceding sentence shall be cause for termination of tenancy, and
for eviction from the dwelling unit.
Reviewing the plain language of the lease, we determine that it is not ambiguous, and we
construe it as a matter of law. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) (“If the
written instrument is so worded that it can be given a certain or definite legal meaning or
interpretation, then it is not ambiguous and the court will construe the [lease] as a matter of law.”);
Hinojosa, 940 S.W.2d at 765. We conclude that if Ortegon threatened the safety of an HABC
employee, conduct that is prohibited by Ortegon’s lease and federal regulations, she would be
subject to eviction. See Hinojosa, 940 S.W.2d at 765; see also 24 C.F.R. § 966.4(l)(2)(iii)(A)
(2013). We now turn to the evidence pertaining to Ortegon’s alleged threats.
3. Evidence of Ortegon’s Threats
The trial court heard HABC employees testify that Ortegon came to their office, she was
upset and yelling, and she threatened them. One HABC employee testified that, as Ortegon was
leaving, she turned around and said they “were lucky she did not have a gun because she would
start shooting.” Another witness testified—based on her memory and her contemporaneous record
of Ortegon’s statement—that Ortegon said “As upset as I am right now, you’re lucky I don’t have
a gun or I would start shooting people.” Both testified that Ortegon’s statement made them believe
Ortegon was threatening their safety, and each was afraid of immediate harm. See, e.g., TEX.
PENAL CODE ANN. § 22.07 (West 2011) (defining the offense of terroristic threat as where “[a]
person . . . threatens to commit any offense involving violence to any person . . . with intent to . . .
place any person in fear of imminent serious bodily injury”); id. § 36.06(a)(1)(A) (making it an
offense to threaten to harm a public servant); id. § 42.01(4) (making it an offense to “threaten[] a
person in a public place in an obviously offensive manner”). One witness testified she was so
afraid that she immediately called the police.
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In rebuttal, Ortegon at first denied she made the statement, then admitted she “might have,”
but insisted she never said she was going to kill anybody; she was just using a figure of speech.
4. Sufficient Evidence
Having reviewed the evidence 3 under the respective standards of review, we conclude the
evidence is both legally and factually sufficient to support the implied findings that Ortegon
threatened the safety of HABC employees, her threat constitutes criminal activity proscribed by
the lease, and HABC demonstrated a superior right to immediate possession of the property. See
Marshall, 198 S.W.3d at 785; Dormady, 61 S.W.3d at 557. We overrule Ortegon’s complaint.
CONCLUSION
Ortegon asserts she should not be evicted from her home because she did not violate her
lease’s terms when she expressed her discontent to HABC employees. Having reviewed the
evidence as required, we conclude it is legally and factually sufficient to support the necessarily
implied findings underpinning the trial court’s eviction order. We affirm the trial court’s order.
Patricia O. Alvarez, Justice
3
In her pro se brief, Ortegon attached a number of documents that are not part of the appellate record; we do not
consider them. See Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (per curiam);
Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
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