









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-01-00159-CR
______________________________


ELIJAH ROBINSON, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 208th Judicial District Court
Harris County, Texas
Trial Court No. 863324





Before Grant, Ross, and Cornelius,* JJ.
Opinion by Justice Cornelius
*William J. Cornelius, C.J., Retired, Sitting by Assignment

O P I N I O N

	A jury found Elijah Robinson guilty of aggravated assault and set his punishment at
fifteen years' confinement.  On appeal, Robinson contends there was improper voir dire
of the jury, there is legally and factually insufficient evidence to support his conviction, there
was improper admission of extrinsic evidence of a defense witness' prior inconsistent
statement, and he received ineffective assistance of counsel.  We overrule these
contentions and affirm the judgment.
	Robinson first contends that he should be granted a new trial because the
prosecutor asked a question at voir dire that caused a veniremember to be precommitted
to convict Robinson.  At voir dire, the prosecutor asked prospective jurors whether they
could convict a defendant if the State had only one witness who was willing to testify that
a crime occurred, if they believed that witness beyond a reasonable doubt.  Seven
venirepersons said they could convict in that circumstance.  The prosecutor then asked,
"What if there were more than one witness but maybe they don't want to testify or
something like that?  Can anyone think of a reason why someone else that saw this might
not want to testify?"  One venireperson answered "fear," and either the same or another
venireperson answered "perhaps relative." (1)  According to Robinson, this shows that the
prosecutor was able to precommit the venireperson to return a guilty verdict in this case
by his use of a hypothetical of the "uncooperative witness" scenario.  
	To preserve error for review, a party must make a timely and specific objection that
is followed by an adverse ruling.  Tex. R. App. P. 33.1.  Robinson failed to make any
objection to these questions during voir dire, so he has failed to preserve error, and we
may not review the issue.
	Robinson next complains that the evidence is legally and factually insufficient to
sustain the conviction for aggravated assault with a deadly weapon.  In our review of the
legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).  This requires us to view the
relevant evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  In our
review, we must evaluate all of the evidence in the record, both direct and circumstantial,
whether admissible or inadmissible.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim.
App. 1999).  In determining the factual sufficiency of the evidence, we review all the
evidence in a neutral light and set aside the verdict only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust.  Johnson v. State,
23 S.W.3d at 7; Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). 
	The complainant was Robinson's sister-in-law, Sandra Marie Mack.  At the time of
the alleged assault, Robinson and his wife, Joyce Simon Robinson, were separated, and
Joyce Simon Robinson was staying at Mack's house.  Mack testified as follows:  Before the
assault, she had told Robinson to stay away from her house.  On the day in question, while
standing outside at a neighbor's house, she saw Robinson drive to her home.  She then
went to her home, where she and Robinson argued.  During this argument, Robinson went
to his truck, got his gun, pointed it at Mack, threatened to kill her, and pulled the trigger. 
The gun jammed.  Mack then went inside the house and called the police.  At some point
after Robinson left the house and before the police arrived, Robinson called the house and
left this message on the answering machine:  "Tell that bitch she lucky the gun jammed." 
One of the police officers who arrived at the scene testified that the details Mack related
in her testimony were repeated to him by Mack that day.  The officer also heard the
message left on the answering machine and testified that it was consistent with what Mack
had told him. 
	Robinson testified in his own defense that he went to Mack's house to take his wife
some medicine.  Although he admitted having a gun during the time of the alleged assault,
he denied pointing it at Mack or threatening to kill her.  Joyce Robinson testified she was
at Mack's home at the time of the alleged assault, but that she did not see everything that
occurred between Robinson and her sister, Mack.  For example, she testified that she went
to put on some pants during the incident, and she said that, although Mack told her
Robinson pointed a gun at her, she never saw that.  The prosecutor asked Joyce Robinson
numerous questions, to which she either stated she did not remember or she gave no
response at all, apparently being emotionally unable to do so.  Among these questions
were whether she remembered telling the police officer that the gun jammed and that her
husband had threatened Mack's life; whether she had previously failed to tell the truth to
investigators because of her fear of Robinson; whether she had previously stated that,
when Robinson pointed the gun at her sister, she jumped in front of it; whether she had
previously stated that the scar on her right palm was the result of Robinson's abuse; and
whether she had previously confirmed that Robinson called and left the above-mentioned
message on the answering machine.  Six days after the alleged assault, Robinson was
stopped while driving his vehicle.  The police found a weapon in the vehicle which Mack
testified was the same color, size, and shape as the weapon Robinson had used against
her.
	The jurors are the exclusive judges of the facts, the credibility of the witnesses, and
the weight to be given their testimony.  Penagraph v. State, 623 S.W.2d 341, 343 (Tex.
Crim. App. [Panel Op.] 1981).  A jury is entitled to accept one version of the facts and
reject another or reject any of a witness' testimony.  Id.  The evidence summarized above
is both legally and factually sufficient for the jury to find Robinson guilty of the charged
offense.  We overrule Robinson's challenge to the sufficiency of the evidence.
	Robinson next complains of the improper admission of extrinsic evidence of a
defense witness' prior inconsistent statement.  The prosecutor asked Joyce Robinson
whether she had a scar on her palm, and she admitted that she did.  The prosecutor then
asked whether she remembered telling him and another prosecuting attorney the scar was
from a wound inflicted by Robinson.  Defense counsel objected to the relevance of this
testimony, and the trial court overruled the objection.  Later, the prosecutor called the other
prosecutor, Peyton Z. Peebles, III, to the stand to testify about conversations he had with
Joyce Robinson.  Peebles testified that she showed him the scar on her palm as evidence
of her husband's violent behavior.  No objection was made to this testimony by Peebles,
of which Robinson now complains.  By failing to make a specific objection and obtain a
ruling by the trial court, Robinson has failed to preserve error on this matter for appeal, and
we may not review it.  Tex. R. App. P. 33.1.
	Finally, Robinson alleges he received ineffective assistance of counsel.  The
two-pronged test for evaluating claims of ineffective assistance of counsel is set out by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), and adopted for Texas constitutional claims in Hernandez v. State,
726 S.W.2d 53, 57 (Tex. Crim. App. 1986).  First, the defendant must show that his
counsel's representation fell below an objective standard of reasonableness.  Strickland
v. Washington, 466 U.S. at 688.  To prove this deficiency in representation, the defendant
must demonstrate that his counsel's performance deviated from prevailing professional
norms.  Id.; McFarland v. State, 845 S.W.2d 824, 842-43 (Tex. Crim. App. 1992).  The
defendant must also show prejudice.  This requires the defendant to show there is a
reasonable probability that, but for his counsel's unprofessional errors, the result of the
proceeding would have been different.  A reasonable probability is a probability sufficient
to undermine confidence in the outcome.  Strickland v. Washington, 466 U.S. at 694.  The
failure to satisfy one prong of the Strickland test negates a court's need to consider the
other.  Id. at 697. 
	Robinson alleges ineffective assistance of counsel on the basis that his trial counsel
never filed a "Theus" motion to limit the prosecutor's impeachment of Robinson with his
two prior convictions for unlawfully carrying a firearm.  See Theus v. State, 845 S.W.2d
874, 881-82 (Tex. Crim. App. 1992).  We need not consider whether a Theus motion would
have been appropriate in these circumstances, because the testimony of which Robinson
now complains was arguably pursuant to trial strategy.  Robinson's strategy at trial appears
to have been to be honest about his gun possession and to show that Mack lied about the
gun and was in a good position to do so because she knew he always carried a gun. 
Allowing the prosecutor to introduce into evidence his arrests and jail time for possession
of a weapon was conceivably consistent with counsel's trial strategy of showing that, by
necessity, Robinson always carried a gun for his own protection and that Mack, knowing
this, fabricated the story about the gun.  As Robinson has failed to show that counsel's
actions were not sound strategy, he has failed in his burden to show ineffective assistance
of counsel.
	Moreover, Robinson cannot show prejudice as required by Strickland.  Given the
incriminating testimony of Mack, the police officers, the investigators, and Robinson's wife-
all that she did and did not say-the mere admission by Robinson that he had been arrested
and incarcerated for possessing a gun can hardly be said to undermine confidence in the
outcome.  Robinson's failure to demonstrate prejudice as required by Strickland precludes
any relief.  Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999).  
	The judgment is affirmed.


						William J. Cornelius
						Justice*

*William J. Cornelius, Chief Justice, Retired, sitting by assignment.

Date Submitted:	May 31, 2002
Date Decided:	July 25, 2002

Publish
1. The court reporter did not distinguish between venirepersons as they answered
counsels' questions.


#160;          In 1991, Diamondhead (Purcell Co.) sold its undeveloped lots to Albert Bacarisse, trustee
for an unnamed entity, specifically subject to existing restrictions.  The property was then sold to
Newport Partners, Inc., also subject to then-existing restrictions. 
            In 1997, Newport Partners declared bankruptcy.  NPOAN had been involved in litigation
with Newport Partners, and NPOAN's claims were settled in the bankruptcy proceedings when, in
1998, as part of the liquidation proceedings, the trial court ordered the sale of the remaining
undeveloped property to Rampart Properties Corporation (hereinafter "Rampart").  In this sale,
Rampart purchased the real property, together with all rights, if any, located in the Newport
subdivision.  Then, as part of the resolution of NPOAN's claims, Rampart and NPOAN entered into
an agreement in which Rampart assigned to NPOAN certain rights with respect to the property
(hereinafter "the 1999 Assignment"). 
            C.        Driveway Construction and Approval Process
            In 1990, Mary Lee Anderson and her former husband purchased two adjoining pieces of real
property to use as a single home site in Section Eight of the Newport Subdivision.  In 1991,
Anderson and her husband applied to the Section Eight Owners' Association for permission to build
a U-shaped driveway.  The AC approved the driveway plans.  Marital difficulties postponed the
construction of the driveway.
            On June 30, 2000, Anderson filed a second application with CIA Services, a company
managing the subdivision on behalf of NPOAN.  NPOAN claims it rejected her application due to
a lack of information.  Anderson claims she never received notice of denial and, therefore, acted
pursuant to Article III of the Declarations, which deemed the plans were approved if the AC did not
act on them within thirty days of submission.  In March 2001, after having received appropriate
permits from Harris County, Anderson began construction of the driveway. 
            On March 27, Anderson received a letter from NPOAN's attorney, directing Anderson to
cease construction immediately because she lacked approval from the Architectural Control
Committee of NPOAN.  In response, on that same day, Anderson submitted a second request for
approval through CIA Services.  A letter dated March 29, 2001, denied Anderson's request for
approval of the U-shaped driveway construction.  The letter offered no reason for the denial of
Anderson's request.
            Despite the letter of denial, Anderson resumed construction and, on March 30, 2001, NPOAN
instituted this suit, seeking a temporary restraining order and injunction to stop construction. 
NPOAN's request for an injunction was denied on April 30, and a second request was also denied
on December 3.  Rampart, Newport Fund, L.L.C., and Newport Development Joint Venture
intervened in the matter.
            D.  Bench Trial 
            NPOAN filed suit as a Texas nonprofit corporation composed of persons who reside and own
homes in the Newport Subdivision.  Anderson entered a verified denial challenging NPOAN's
standing and capacity.  A trial to the court began on January 29, 2002.  The trial court's judgment
ordered Anderson to remove the driveway, restore the property, and awarded NPOAN attorneys' fees. 
On July 18, 2002, the trial court entered findings of fact and conclusions of law.  Anderson now
brings forth points of error challenging several of the trial court's conclusions of law.
II.       Preservation of Error
            Anderson filed a verified denial in which she challenged NPOAN's standing and capacity to
bring this suit.  This pleading was sufficient to preserve error as to both issues.  It was necessary that
Anderson file such a challenge with the trial court in order to preserve for review the issue of
NPOAN's capacity to sue.  See Tex. R. Civ. P. 93(1).  However, even if Anderson had not filed the
verified pleading challenging NPOAN's standing, we could properly decide the issue.  Standing is
a component of subject matter jurisdiction; it cannot be waived and may be raised for the first time
on appeal.  Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) (overruling Tex.
Indus. Traffic League v. R.R. Comm'n, 633 S.W.2d 821, 822-23 (Tex. 1982) (per curiam)); Musgrave
v. Brookhaven Lake Prop. Owners Ass'n, 990 S.W.2d 386, 393 (Tex. App.‒Texarkana 1999, pet.
denied).  We hold that both issues of standing and capacity are properly before us.
            As to her other points of error regarding the trial court's conclusions of law, Anderson
properly preserved error with her timely motion for new trial, which was denied by written order,
complaining of the trial court's conclusions.  See McClary v. Thompson, 65 S.W.3d 829, 833 (Tex.
App.‒Fort Worth 2002, pet. denied).  Therefore, the issues presented by Anderson's points of error
are properly before this Court.  See Tex. R. App. P.  33.1. 
III.      Standard and Scope of Review
            A trial court's conclusions of law cannot be challenged for factual insufficiency, but may be
reviewed for correctness.  First Nat'l Bank v. Kinabrew, 589 S.W.2d 137, 146 (Tex. Civ. App.–Tyler
1979, writ ref'd n.r.e.).  We will not disturb a conclusion of law unless it is erroneous as a matter of
law.  Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.–Austin
1992, no writ).  We review conclusions of law under a de novo standard.  Richardson Indep. Sch.
Dist. v. GE Capital Corp., 58 S.W.3d 290, 293 (Tex. App.–Dallas 2001, no pet.).  Specifically, a trial
court's conclusions regarding standing and capacity are questions of law.  See Mayhew v. Town of
Sunnyvale, 964 S.W.2d 922, 928-29 (Tex. 1998).  Standing is determined at the time suit is filed in
the trial court, and subsequent events do not deprive the court of subject matter jurisdiction.  Tex.
Ass'n of Bus., 852 S.W.2d at 445-46.
IV.      Analysis
            A.        NPOAN's Standing to Bring Cause of Action
            Since standing is a threshold question, we will first address that issue.  See Exxon Corp. v.
Pluff, 94 S.W.3d 22, 26 (Tex. App.–Tyler 2002, pet. denied).  Standing is a necessary component
of subject matter jurisdiction.  Tex. Ass'n of Bus., 852 S.W.2d at 445-46.  It is fundamental that only
the entity whose primary legal right has been breached may seek redress for an injury.  Nobles v.
Marcus, 533 S.W.2d 923, 927 (Tex. 1976).  Without a breach of a legal right belonging to a plaintiff,
that plaintiff has no standing to litigate.  Brunson v. Woolsey, 63 S.W.3d 583, 587 (Tex. App.–Fort
Worth 2001, no pet.).  Relying on these principles, Anderson argues NPOAN lacked standing to sue
to enjoin her from constructing the driveway.
            An association has standing to sue when it satisfies a three-pronged test.  See Tex. Ass'n of
Bus., 852 S.W.2d at 447.  First, the members must otherwise have standing to sue in their own right. 
Id.  Second, the interests it seeks to protect must be germane to the organization's purpose.  Id. 
Finally, neither the claim asserted nor the relief requested may require the participation of individual
members in the lawsuit.  Id.
            Ordinarily, any person entitled to benefit under a restrictive covenant may enforce it.  See
Calvary Temple v. Taylor, 288 S.W.2d 868, 872-73 (Tex. Civ. App.–Galveston 1956, no writ).  This
means that, generally, an interested property owner may enforce a restrictive covenant.  Giles v.
Cardenas, 697 S.W.2d 422, 427 (Tex. App.–San Antonio 1985, writ ref'd n.r.e.).  In its petition,
NPOAN alleges it is a nonprofit Texas corporation whose members consist of residents and owners
of property in the Newport Subdivision.  NPOAN members, as property owners, would have
standing to bring this suit to enforce deed restrictions.  NPOAN satisfies the first requirement for
standing as an association.
            Also, since NPOAN's purpose is aligned with that of its members, it satisfies the second
prong of the test.  In its articles of incorporation, NPOAN states its purpose is to: 
[D]evote itself to the civic betterment of social improvement of the Newport property
development in Harris County, Texas, and to the maintenance, operation, acquisition
and ownership of the common areas and recreational facilities within the Newport
subdivision, and to engage in any other activity permitted by law which may be
useful in accomplishing any of the foregoing, with the best interests of the residents
of Newport to be its primary consideration.  
NPOAN's members certainly have an interest in the civic betterment and social improvement of life
in their neighborhood.  Applying the terms in a broad sense, we conclude that such a purpose could
include protection of the property owners' interests in maintaining an aesthetically pleasing and well-defined appearance.
            Further, the claim NPOAN asserts and the relief it requests do not require the participation
of any individual members.  When, as here, an association seeks declaratory or injunctive relief, it
is reasonable to suppose that the relief sought will inure to the benefit of the injured members.  See
Tex. Ass'n of Bus., 852 S.W.2d at 448.  Granting of the relief NPOAN sought will not require proof
of any of the association members' circumstances.  We hold that NPOAN, as an association, did
hold, through its members, an interest which was allegedly violated by Anderson's construction of
the driveway, establishing standing to bring suit for the violation.  
            We must now determine whether NPOAN sued Anderson in the proper capacity.  In order
to determine this issue, we need to examine the possible sources of the authority NPOAN exercised. 
To affirm the trial court's conclusion that NPOAN had capacity, we must determine that NPOAN
had authority to bring this cause of action.  See Nobles, 533 S.W.2d at 927.
            B.        NPOAN's Capacity to Sue
                        1.         As Provided in the Declarations for Section Eight
            Article II of the Declarations provides a list of entities who shall have authority to enforce
the restrictive covenants:
NOW THEREFORE, the Corporation being the sole owner of the property
known as NEWPORT, SECTION EIGHT, a subdivision in Harris County, Texas,
according to the Map hereinabove described, does hereby impose the following
restrictions, covenants, and liens upon NEWPORT, SECTION EIGHT, which shall
inure to the benefit of the Corporation, its successors and assigns and to each and
every purchaser of lands in NEWPORT, SECTION EIGHT, and their heirs,
successors and assigns and to the Architectural Committee, which is hereinafter
designated, its successors and assigns, and to Newport Yacht and Country Club, Inc.,
its successors and assigns, and any one of said beneficiaries shall have the right to
enforce such restrictions, covenants and liens using whatever legal method is deemed
advisable, including without limitation, injunctive relief; . . . .

(Emphasis added.)  The Declarations also provide a procedure whereby Section Eight could amend
or modify the restrictions and covenants of the original Declarations:
(B) Any one or more of the restrictions, covenants and liens herein contained
may be annulled, amended or modified at any time by, but shall be deemed to have
been annulled, amended or modified only upon, the recordation of an instrument in
writing setting forth such annulment, amendment or modification and executed by
the then record owner or owners (as shown by the Official Public Records of Real
Property of Harris County, Texas, at the time of the filing of such instrument) of
seventy-five (75%) percent of the real property comprising NEWPORT, SECTION
EIGHT, (computed upon a square foot basis).

            On March 30, 2001, when NPOAN filed suit, neither provision of the Declarations gave it
the authority to enforce deed restrictions.  It was not a party specifically given such authority. 
Further, the record establishes that the amendment procedure was not complete until October 2001,
when the amendments to the Declarations for Section Eight were recorded.
                        2.         By Assignment from Rampart
            Next, we look to the 1999 Assignment to determine whether Rampart assigned to NPOAN
the authority to bring this suit.  Contract construction is a question of law and one we will review
de novo.  Buys v. Buys, 924 S.W.2d 369, 372 (Tex. 1996).  When construing the agreement, a court's
primary concern is to ascertain and give effect to the parties' intentions as expressed in the
agreement.   R & P Enters. v. LaGuarta, Gavrel & Kirk, 596 S.W.2d 517, 518 (Tex. 1980).  To
ascertain the intent of the parties, we must examine the entire instrument and give effect to all the
provisions so that none will be rendered meaningless.  Coker v. Coker, 650 S.W.2d 391, 393 (Tex.
1983).  No single provision, when read alone, should control.  Id.
            As an assignee of Newport Partners, Article II of the Declarations specifically gives Rampart
the authority to enforce deed restrictions.  We turn to the 1999 Assignment to determine if Rampart
assigned to NPOAN such a power.  As mentioned, the purpose of the 1999 Assignment was to
document the terms and conditions of the agreement of the parties concerning the settlement of the
claims against Newport Partners and to transfer certain rights and obligations of the parties to
NPOAN as part of a settlement.  The Assignment provides:
1.  Assignment of Fees, Dues and Assessments.  Subject to the reservation of certain
rights set forth herein and subject to applicable laws, rules and regulations, Rampart
hereby grants and assigns to NPOAN its rights to assess and collect all future
monthly maintenance charges, fees, dues and assessments, arising or accruing
after the date hereof, as provided in the applicable restrictive covenants and
other subdivision documents governing the entire Newport subdivision
("Newport") an exhibit map of which is attached hereto as Exhibit "A" (the "Newport
Plat").  Any monthly maintenance charges, fees, dues or assessments relating to use
of the golf course or club house facilities, located within Newport or any other public
or private facilities which are or may in the future be located on real property within
Newport on real property presently owned by Rampart, are excluded from this
provision and are retained by Rampart.  NPOAN agrees and acknowledges that the
assignment to assess and collect future monthly maintenance charges, fees, dues
and assessments set forth in this paragraph 1, is limited to any rights Rampart
may have to collect future monthly maintenance charges, fees, dues and assessments,
if any.

                        . . . .
 
4.  Assumption of Obligations.  NPOAN hereby assumes all obligations,
responsibilities and duties of Rampart as assigned by the Trustee, in connection
with the security, improvement, maintenance, beautification and other matters
relating to the daily operation of the common areas of the Subdivision.  In this
regard, NPOAN agrees to operate and maintain Newport as a first class subdivision
in the suburban Houston, Texas market place.  Without in any way limiting the
generality of the foregoing, NPOAN agrees to spend up to $150,000 as soon as is
reasonably possible, to improve, upgrade, maintain and bring into good operating
status and condition, the following items:

                        . . . .
 
5.  Indemnification.  The NPOAN hereby unconditionally and irrevocably, agrees to
indemnify, defend and hold harmless Rampart and Rampart's officers, directors,
employees, agents and contractors (collectively the "Rampart Parties" and
individually a "Rampart Party") from and against any and [sic] Losses (as hereinafter
defined) which Rampart may suffer or incur as a result of any demand, lawsuit or
claim ("Claim") asserted against Rampart and / or any Rampart [sic] by any other
person or entity for any of the obligations of the NPOAN described in Paragraph 4
arising out of or relating to any act or omission of NPOAN, its officers, employees,
agents, contractors, (whether occurring in the past, present or future) including,
without limitation, a Claim arising out of or related in any way to (i) restrictive
covenants, (ii) any approval or rejection of lot owner's plans and specifications
for improvements, (iii) any interpretation or enforcement of the restrictive
covenants, or (iv) any collection or enforcement actions hereunder or under the
restrictive covenants.

(Emphasis added.)  Anderson points to the absence in paragraph one of any language relating to
enforcement of deed restrictions or AC authority and to the "in connection with" language of
paragraph four and argues that the unambiguous language did not convey any authority with respect
to enforcement of the nonconforming deed use restrictions.  NPOAN's reading focuses on the
"generality" language and also interprets the provision in light of paragraph five.  NPOAN contends
the Assignment could only obligate NPOAN to indemnify Rampart for activities NPOAN was
authorized to undertake, which, according to the specific reference in paragraph five, includes the
power to approve, reject, or interpret restrictive covenants.
            Language in the Assignment does not sufficiently support the conclusion that Rampart
assigned to NPOAN the right to sue in its own right to enforce deed restrictions.  Clearly, paragraph
five, addressing only the issue of indemnity, mentions the right to enforce restrictions, but this
provision does not indicate a clear intention to convey these rights to NPOAN.  Paragraph one is the
provision that assigns rights to NPOAN, and it is completely silent as to the authority to enforce deed
restrictions.  Additionally, paragraph four, the provision through which NPOAN assumes any rights,
does not mention the right to enforce deed restrictions.  A reading of the instrument as a whole fails
to indicate Rampart's intent to convey to NPOAN its right to enforce deed restrictions.
                        2.         As provided in the Texas Property Code
            NPOAN also contends the Texas Property Code confers on it the capacity to enforce deed
restrictions in a subdivision.  NPOAN relies on our opinion in Musgrave to assert that NPOAN has
capacity to sue under Section 202.004(b) of the Texas Property Code.  That provision provides:
(b) A property owners' association or other representative designated by
an owner of real property may initiate, defend, or intervene in litigation or an
administrative proceeding affecting the enforcement of a restrictive covenant or the
protection, preservation, or operation of the property covered by the dedicatory
instrument.

Tex. Prop. Code Ann. § 202.004(b) (Vernon 1995) (emphasis added).
            Here, the record shows that Section Eight did not designate NPOAN as the property owners'
association for that section until October of 2001, well after NPOAN instigated this suit.  However,
under Section 202.004(b), NPOAN need not be the property owners' association for Section Eight
in order to bring this cause of action on behalf of other property owners.  In this vein, NPOAN
argues that Section 202.004 provides no procedure in order to designate a representative and that,
therefore, an oral designation would suffice to designate NPOAN as the property owners'
representative.  
            We conclude that, while Section Eight did not designate NPOAN as its property owners'
association until October 2001 when the Amendments to Declarations were filed in Harris County
records, property owners in the Newport Subdivision could designate NPOAN as a representative
association under Section 202.004(b) of the Texas Property Code.  See Musgrave, 990 S.W.2d at
394.
  Eileen Fashoro, vice president of Rampart, testified that Rampart assigned to NPOAN the
authority to enforce deed restrictions.  While this testimony cannot support the conclusion, contrary
to the written assignment, that Rampart assigned certain rights to NPOAN, it does indicate that
Rampart, an owner of Section Eight property, designated NPOAN to sue on Rampart's behalf.  That
being the case, NPOAN could sue in its representative capacity to enforce deed restrictions in
Section Eight in March 2001.
            C.        NPOAN'S Exercise of Authority
            We have determined that NPOAN had both standing and capacity to bring this suit against
Anderson.  Now, we are left to assess the action NPOAN took with respect to the driveway plans. 
The trial court concluded that, "Rampart assigned to NPOAN full power and authority to carry out
all other terms and conditions of the declarations covering the Newport Subdivision including,
without limitation, the enforcement of deed restrictions and approval required by the Architectural
Control Committee."  
            By rejecting plans for construction of the driveway, NPOAN exercised architectural control
authority, which the Declarations conferred on the AC.  The Texas Property Code provides a
standard for reviewing such an exercise of discretionary authority:
(a) An exercise of discretionary authority by a property owners' association
or other representative designated by an owner of real property concerning a
restrictive covenant is presumed reasonable unless the court determines by a
preponderance of the evidence that the exercise of discretionary authority was
arbitrary, capricious, or discriminatory.

Tex. Prop. Code Ann. § 202.004 (Vernon 1995).  
            Anderson challenges NPOAN's authority to reject her plans for construction.  An appellate
court has the duty to independently evaluate the trial court's findings on the law.  Pearce v. Pearce,
824 S.W.2d 195, 199 (Tex. App.‒El Paso 1991, writ denied).  So, we will examine the sources from
which NPOAN may have received this discretionary authority. 
                        1.         Assignment from Rampart
            In much the same way that the Assignment fails to convey to NPOAN the right to act as
property owners' association, it, too, fails to convey to NPOAN the right to reject plans for
improvement to property in Section Eight.  Looking again at the language of the Assignment, we see
that paragraph five mentions the right to approve or reject.  However, paragraph four, the provision
in which NPOAN assumes rights, does not address these rights.  Therefore, we conclude the
instrument does not establish a clear intent on the part of Rampart to transfer to NPOAN the rights
of an architectural control committee.  That being so, NPOAN did not have the authority by way of
the Assignment to reject Anderson's construction plans.
                        2.         Automatic Vesting under Texas Property Code
            The Texas Property Code provides for automatic vesting of an architectural control
committee's authority to approve or deny applications for construction or modification of structures
or improvements in a property owners' association on the occurrence of specified events.  Tex. Prop.
Code Ann. § 204.011(b) (Vernon Supp. 2003).  An architectural control committee's authority,
given to it by the original restrictions, will vest in the property owners' association when (1) the term
of the architectural control committee authority expires as prescribed by the restrictions; (2) a
residence on the last available building site is completed and sold; (3) the person or entity designated
as the architectural control committee in the restrictions assigns, in writing, authority to the
association; or (4) an assignee of the original holder abandons its authority for more than one year. 
Id.  The pertinent provision is subparagraph four, regarding the abandonment of the original AC for
over one year.  Since there is evidence NPOAN had been exercising authority since 1996, we need
to address the application of this provision.
 
            Here, the record does not reflect that the original AC dissolved or that any other conditions
were met in order for such authority to vest automatically in NPOAN.  Further, as established,
NPOAN was not the acting property owners' association at the time of suit.  Therefore, we cannot
say the Texas Property Code confers any right on NPOAN to approve or reject any improvements
proposed by property owners in Section Eight.
            The trial court's conclusion that NPOAN had the authority to approve or reject lot owners'
plans for improvements in Section Eight is incorrect as a matter of law.  The evidence before us
establishes that NPOAN did not have authority to act as property owners' association or as an
architectural control committee in Section Eight.  Rejecting Anderson's driveway plans without
having established authority to approve or reject plans for improvements in Section Eight represents
an arbitrary and capricious exercise of discretionary authority.
            Having concluded that NPOAN had standing to maintain this suit and capacity to sue on
behalf of Rampart but acted without authority as an architectural control committee in Section Eight,
we must address a further consideration.  The original Declarations made it a violation of the deed
restrictions to make certain improvements without approval of the original AC.  NPOAN argues that,
since it could sue to enforce deed restrictions, it could enforce this restriction against Anderson and
require her to remove the unapproved driveway.  However, the record does not show Anderson
constructed the driveway contrary to the decision of a valid, active architectural control committee
authorized to act in Section Eight.  Therefore, we cannot say she violated a deed restriction in this
manner.  NPOAN, thus, cannot avail itself of such a position.  
            D.        Order to Remove Driveway
            The granting or denial of a permanent injunction is within the trial court's sound discretion,
and a reviewing court's inquiry is limited to the question of whether the trial court abused its
discretion.  Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass'n, 25 S.W.3d 845, 848 (Tex.
App.‒Houston [14th Dist.] 2000, pet. denied); Priest v. Tex. Animal Health Comm'n, 780 S.W.2d
874, 875 (Tex. App.‒Dallas 1989, no writ).  The trial court abuses its discretion when it misapplies
the law to the established facts or when the evidence does not reasonably support the conclusion that
the applicant has a right of recovery.  Musgrave, 990 S.W.2d at 398.  Here, the order granting
injunctive relief was based on a misapplication of the law, thus constituting an abuse of discretion.
            E.        Attorneys' Fees
            Anderson is not entitled to attorneys' fees in this matter.  In an action based on breach of a
restrictive covenant pertaining to real property, the court shall allow to a prevailing party who
asserted the action reasonable attorney's fees in addition to the party's costs and claim.  Tex. Prop.
Code Ann. § 5.006(a) (Vernon 1984).  Only a party who successfully prosecutes a claim alleging
breach of a restrictive covenant is entitled to recover attorney's fees.  Pebble Beach Prop. Owners'
Ass'n v. Sherer, 2 S.W.3d 283, 291-92 (Tex. App.‒San Antonio 1999, no pet.).  Since Anderson did
not assert this action, she is unable to seek attorneys' fees under this provision.
            Anderson also seeks attorneys' fees under the Uniform Declaratory Judgments Act.  See Tex.
Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997).  It provides that the court may award costs
and reasonable and necessary attorney's fees as are equitable and just.  Id.  Declaratory relief is not
available to settle disputes already pending before the court.  BHP Petroleum Co. v. Millard, 800
S.W.2d 838, 841 (Tex. 1990).  In Millard, the Texas Supreme Court carved out an exception to this
rule applicable when the counterclaim seeks a true declaration of an ongoing and continuing
relationship, and when the counterclaim asserts relief having "greater ramifications" than the original
suit.  Id.  If the defensive declaratory action presents such issues, then the Uniform Declaratory
Judgments Act can be an appropriate mechanism under which to award attorney's fees.  Id.
            Here, NPOAN's cause of action involves the same parties and same issues as alleged in
Anderson's counterclaim seeking declaratory relief.  Anderson's allegations are merely denials of
NPOAN's cause of action.  Therefore, Anderson would not be entitled to attorneys' fees under the
Uniform Declaratory Judgments Act.  Also, we cannot say Anderson's allegations qualify under the
exception to this rule.  Her allegations do not present any issues beyond those asserted by NPOAN
or seek a declaration as to the parties' ongoing relationship.  In fact, the parties' ongoing relationship
is now defined since NPOAN completed the ballot drive and properly recorded the Amendments to
the Declarations for Section VIII so as to gain the full authority of a property owners' association in
that section of the subdivision.
V.        Conclusion
            We conclude that, although NPOAN did possess standing and capacity to sue Anderson for
violation of deed restrictions, it did not possess a right to deny Anderson's plans for improvement
to the property.  NPOAN was not authorized to exercise architectural control authority in Section
Eight at the time Anderson constructed her driveway, and it did not show the construction was
otherwise contrary to an action of an architectural control committee acting with authority in Section
Eight.  Therefore, NPOAN's rejection of Anderson's plans and its suit to remove the driveway
represents an arbitrary and capricious act.  The trial court's conclusions of law that conclude
otherwise are incorrect as a matter of law.  Accordingly, we reverse the judgment of the trial court,
set aside the injunction, render judgment in favor of Anderson.
 


                                                                        Jack Carter
                                                                        Justice

Date Submitted:          December 1, 2003
Date Decided:             December 2, 2003

