                              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.
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                                                  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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                                                                                                  04-12-00546-CV


        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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