                                  NO. 12-09-00329-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

KATHERINE R. MACKEY AND                       §             APPEAL FROM THE
ALL OTHER OCCUPANTS,
APPELLANTS

V.                                            §             COUNTY COURT AT LAW#2

HOUSING AUTHORITY OF THE
CITY OF GLADEWATER, TEXAS,
APPELLEE                                     §              GREGG COUNTY, TEXAS


                                     MEMORANDUM OPINION
       Katherine R. Mackey appeals from a judgment evicting her from an apartment and
ordering the payment of back rent. In three issues, she contends that the evidence is insufficient
to support the judgment of the trial court. We affirm.


                                         BACKGROUND
       At the time litigation began in the trial court, Katherine R. Mackey was a resident in a
federally subsidized apartment building managed by the Housing Authority of the City of
Gladewater (“Housing Authority”). She originally signed a lease with the Housing Authority in
March 2008 in which she represented that her minor daughter resided with her. Based on the
relevant regulations and on Mackey’s representation of her family size, she was allowed to rent a
two bedroom apartment. In addition, the amount of rent she was required to pay for the
apartment was determined on the basis of her reported income and family size.
       In December 2008, the Housing Authority determined that Mackey’s daughter did not
live with her often enough for her to be considered a resident of the apartment for the purposes of
calculating Mackey’s entitlement to housing benefits. The Housing Authority wrote Mackey a
letter in December 2008 telling her that it had recalculated her rent based on their assessment of
her family size and that she owed back rent from October 2008. In March 2009, Mackey
recertified her family status, but she stopped paying rent on that date because, she later testified,
she had not “understood anything” that the Housing Authority had told her.
       The Housing Authority notified her on March 24, 2009 that it was terminating her lease
for nonpayment of back rent. The Housing Authority brought an action in the justice court in
April 2009 and obtained a judgment for possession of the property the same month. An appeal
was brought to the County Court at Law No. 2 for Gregg County, and a trial de novo was
conducted in July 2009. The trial court granted judgment to the Housing Authority awarding it
possession of the premises, a money judgment, costs, and attorney’s fees. This appeal followed.


                                  SUFFICIENCY OF THE EVIDENCE
       In three issues, Mackey argues that there is no evidence or insufficient evidence that she
breached her lease by not making back rent payments. Specifically, she argues that her report
that her daughter lived with her comported with the relevant housing rules and the Housing
Authority’s conclusion to the contrary was not supported by the evidence at trial.
Standard of Review
       When the appellant challenges the legal sufficiency of the evidence to support a finding
on which she did not have the burden of proof at trial, the appellant must demonstrate that no
evidence exists to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58
(Tex. 1983). In reviewing the legal sufficiency of the evidence, we consider the evidence in the
light most favorable to the verdict. See AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex.
2008). The test for legal sufficiency “must always be whether the evidence at trial would enable
[a] reasonable and fair-minded [fact finder] to reach the [result] under review.” City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Legal sufficiency review must credit favorable
evidence if a reasonable fact finder could, and disregard contrary evidence unless a reasonable
fact finder could not. Id.
       We sustain a legal sufficiency challenge when the record discloses one of the following
situations: (1) there is a complete absence of evidence establishing a vital fact, (2) the court is
barred by rules of law or of evidence from giving weight to the only evidence offered to prove a
vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the
evidence conclusively establishes the opposite of a vital fact. See Uniroyal Goodrich Tire Co. v.
Martinez, 977 S.W.2d 328, 334 (Tex. 1998); see also City of Keller, 168 S.W.3d at 810.
Anything more than a scintilla of evidence is legally sufficient to support the finding. See Cont’l
Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Leitch v. Hornsby, 935 S.W.2d
114, 118 (Tex. 1996). More than a scintilla of evidence exists if the evidence furnishes some
reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact.
See Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
       The fact finder is the sole judge of the credibility of the witnesses and the weight to be
assigned to their testimony. See City of Keller, 168 S.W.3d at 819. Reviewing courts must
assume that the fact finder decided all credibility questions in favor of the verdict, crediting
testimony favorable to the verdict and disbelieving testimony contrary to it if a reasonable person
could do so. Id.
Analysis
       Mackey argues that the evidence is insufficient to establish that her daughter did not live
with her more than half the time, there is no evidence that the child was not a resident of
Mackey’s apartment, and that there is no evidence that she misrepresented her family
composition. We will address these questions together because they all turn on the common
question of whether the trial court’s finding that Mackey’s daughter did not live with her more
than half the time is supported by the evidence.
       The parties agree on much of the evidence and the relevant legal standards in this case.
The Housing Authority agrees that it had the burden of proof at trial to show that Mackey was in
violation of the lease for nonpayment of back rent. Mackey did not pay the back rent. She did
not owe the back rent if her daughter lived with her more than half the time because, in that case,
the daughter was a resident of the apartment and the March 2008 calculation of rent is the correct
one. If her daughter did not live in the apartment more than half the time, Mackey owed the
back rent.
       The trial court issued written findings of fact and conclusions of law. The trial court
found that the child was not living on the premises as “prescribed in the lease agreement,” that
Mackey has misrepresented the facts as to her family composition, and that she owed and had
not paid back rent.
       There were three areas of evidence or testimony at trial that related to how often
Mackey’s daughter lived with her. First, Mackey signed an affidavit for appointed counsel in a
previous eviction proceeding in which she stated that her daughter stayed with her on the
weekends. The second item was testimony by an agent of the Housing Authority that when
recertifying Mackey’s rent for the second year, Mackey told her that the child lived with her
father in West Rusk.     This testimony is supported by a contemporaneous notation on the
application that includes notes memorializing that conversation and also shows Mackey’s
daughter’s name crossed out.
       Finally, there is Mackey’s testimony in which she stated that her daughter lived with her
when school was not in session. She testified that her daughter attended school in West Rusk,
where her father resided, but that she lived with her father only on Monday, Tuesday,
Wednesday, and Thursday nights when school was in session. She testified that the child’s
father’s girlfriend picked the child up on Monday mornings and took her to school. Mackey also
testified that she did not tell the agent that her daughter did not live with her and that the notes
and the crossing out of the name occurred after her recertification interview. She testified that
her statement in the affidavit was an incomplete one and that her daughter lived with her for
more than just weekends. Finally, although it is difficult to parse what she meant, Mackey
testified that the Housing Authority “knew that [her daughter] was staying the school year with
the dad and the rest of the time she would be with [Mackey].”
       The trial court’s resolution of whether Mackey’s daughter lived with her for more than
half the year relied in large part on its assessment of the relative credibility of the witnesses.
Generally, we must defer to the fact finder’s assessment of credibility to the extent that is
possible. See City of Keller, 168 S.W.3d at 819. And when an appellant makes a “no evidence”
legal sufficiency challenge, we must simply determine if there is more than a scintilla of
evidence to support the verdict. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727–28 (Tex.
2003). Evidence does not exceed a scintilla if it is so weak as to do no more than create a mere
surmise or suspicion that the fact exists. See Kroger Tex. Ltd. v. Suberu, 216 S.W.3d 788, 793
(Tex. 2006).
       Given a straightforward reading, the affidavit and the conversation with the agent are
consistent with Mackey’s daughter’s living with her less than half the year. Mackey’s testimony,
if credited, is consistent with her daughter’s living with her more than half the year. Mackey
suggests that the evidence can be reconciled. She notes that she signed the affidavit during the
school year and so the affidavit should be read to mean that her daughter was staying with her on
the weekends during the school year.                 She further argues that the evidence regarding the
recertification process can be understood to mean simply that Mackey’s daughter was going to
school in the district where her father lived.
         The trial court could have accepted this construction of the evidence. However, it was
not required to accept Mackey’s qualifications or explanations of the evidence or to construe the
affidavit and testimony about the recertification interview in the way Mackey suggests they
should be understood. The evidence supporting the conclusion that Mackey’s daughter did not
live with her more than half the year is not so weak that the trial court could not rely on it.
Because more than a scintilla of evidence supports the trial court’s ruling, we hold that the
evidence is legally sufficient to support the verdict. We overrule Mackey’s three issues.


                                                    DISPOSITION
         Having overruled Mackey’s three issues, we affirm the judgment of the trial court.


                                                                    BRIAN HOYLE
                                                                         Justice



Opinion delivered May 12, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)
