Affirmed and Memorandum Opinion filed August 18, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00324-CV

   IN THE ESTATE OF RAUL HUMBERTO AYALA, SR., DECEASED


                    On Appeal from the Probate Court No 2
                            Harris County, Texas
                        Trial Court Cause No. 409,268

                 MEMORANDUM                       OPINION


      Appellant Raul Humberto Ayala, Jr., contests the validity of a will executed
in 2006 by his late father, Raul Humberto Ayala, Sr. Appellant challenges the
legal and factual sufficiency of the evidence to support three of the jury’s findings.
In his first issue, appellant argues the evidence is insufficient for the jury to find
the will was properly executed. In his second issue, appellant asserts the evidence
is conclusive that the decedent executed the will as a result of undue influence, or
that the jury’s failure to find undue influence is against the great weight and
preponderance of the evidence. In his third issue, appellant contends the evidence
is insufficient to support the jury’s finding that the decedent had the testamentary
capacity to execute the will. We hold the evidence is legally and factually
sufficient to support each of the challenged findings. We therefore affirm the
judgment.

                                   BACKGROUND

      In 2000, Raul Humberto Ayala, Sr. (Raul Sr.) executed a will devising all of
his stock in the family business, Ayala Quality Foods, Inc., to his son, appellant
Raul Humberto Ayala, Jr. Six years later, Raul Sr. executed a new will that is the
subject of the present will contest. In the 2006 Will, Raul Sr. devised “all stock
owned or hereafter acquired in Ayala Quality Foods, Inc. to [his] daughters, Sandra
Wallace Ayala Wied and Martha Enriquetta Ayala Garza, in equal shares.” The
2006 Will expressly revoked the 2000 Will and made other, similar changes to the
disposition of Raul Sr.’s estate. Appellant was not notified that Raul Sr. executed
the 2006 Will.

      Following Raul Sr.’s death, Martha filed an application for probate of the
2006 Will, which Sandra supported, and appellant filed an application for probate
of the 2000 Will. Evidence was presented during the trial that in the years after
Raul Sr. executed the 2000 Will, appellant mistreated Raul Sr. and this
mistreatment caused Raul Sr. to execute the 2006 Will. For example, Mario
Ramon Garcia, Raul Sr.’s nephew, testified appellant reduced Raul Sr.’s salary by
over fifty percent. In addition, Raul Sr. was not allowed to act as an owner of the
business. After Raul Sr. suffered a hip injury that put him in the hospital, appellant
did not care for him. Instead, appellant took Raul Sr.’s keys to the business and
never returned them. According to Mario, Raul Sr. frequently complained about
appellant and his wife.

      Following the presentation of Martha’s and Sandra’s case, appellant moved
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for a directed verdict on the issues of Raul Sr.’s testamentary capacity to make the
2006 Will and due execution of the will. The trial court denied the motion. The
jury ultimately found that Raul Sr. had testamentary capacity to sign the 2006 Will
and that it met the execution requirements of a valid will. When asked whether
Raul Sr. signed the will as a result of undue influence, the jury answered “No.”
Appellant filed a motion for judgment notwithstanding the verdict, but no ruling on
the motion appears in our record. The trial court rendered judgment on the verdict
and admitted the 2006 Will into probate. Appellant’s motion for new trial was
overruled by operation of law. This appeal followed.

                                        ANALYSIS

      Appellant challenges the legal and factual sufficiency of the evidence to
support three of the jury’s findings.

I.    Standard of review
      In conducting a legal sufficiency review, we consider the evidence in the
light most favorable to the challenged finding and indulge every reasonable
inference that supports it. Univ. Gen. Hosp., L.P. v. Prexus Health Consultants,
LLC, 403 S.W.3d 547, 550 (Tex. App.–Houston [14th Dist.] 2013, no pet.). The
evidence is legally sufficient if it would enable reasonable and fair-minded people
to reach the decision under review. Id. at 551. We must credit favorable evidence
if a reasonable trier of fact could, and disregard contrary evidence unless a
reasonable trier of fact could not. Id. The trier of fact is the sole judge of the
witnesses’ credibility and the weight to afford their testimony. Id.

      When an appellant attacks the legal sufficiency of an adverse finding on an
issue on which he did not have the burden of proof, the appellant must demonstrate
on appeal that there is no evidence to support the adverse finding. Id. at 550. A
party attacking the legal sufficiency of an adverse finding on an issue on which he
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had the burden of proof must demonstrate that the evidence conclusively
establishes all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46
S.W.3d 237, 241 (Tex. 2001).

      In reviewing the factual sufficiency of the evidence, we must examine the
entire record, considering both the evidence in favor of, and contrary to, the
challenged findings. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07
(Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The amount of
evidence necessary to affirm is far less than the amount necessary to reverse a
judgment. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 616
(Tex. App.–Houston [14th Dist.] 2001, pet. denied). This Court is not a factfinder.
Ellis, 971 S.W.2d at 407. Instead, the jury is the sole judge of the credibility of the
witnesses and the weight to afford their testimony. Pascouet, 61 S.W.3d at 615–
16. Therefore, we may not pass upon the witnesses’ credibility or substitute our
judgment for that of the jury, even if the evidence would also support a different
result. Id. If we determine the evidence is factually insufficient, we must detail
the evidence relevant to the issue and state in what regard the contrary evidence
greatly outweighs the evidence in support of the verdict; we need not do so when
affirming a jury’s verdict. Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680,
681 (Tex. 2006) (per curiam).

      When a party challenges the factual sufficiency of the evidence supporting a
finding for which he did not have the burden of proof, we may set aside the verdict
only if it is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. See Ellis, 971 S.W.2d at 407; Nip v. Checkpoint Sys., Inc., 154
S.W.3d 767, 769 (Tex. App.–Houston [14th Dist.] 2004, no pet.). When a party
attacks the factual sufficiency of an adverse finding on which he bore the burden of
proof, he must establish that the finding is against the great weight and

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preponderance of the evidence. Dow Chemical Co., 46 S.W.3d at 242.

II.   The evidence is legally and factually sufficient to support the jury’s
      finding that Raul Sr. validly executed the 2006 Will.
      In his first issue, appellant alleges the evidence is legally and factually
insufficient that the 2006 Will was properly executed. When a contest is filed
before the will is admitted to probate, the proponents of the will—in this case,
Martha and Sandra—bear the burden of establishing that it was properly executed
and that the testator had testamentary capacity. Croucher v. Croucher, 660 S.W.2d
55, 57 (Tex. 1983); In re Estate of Coleman, 360 S.W.3d 606, 610 (Tex. App.—El
Paso 2011, no pet.). To determine whether the 2006 Will was properly executed,
the jury was asked:

      Does the document dated June 26, 2006 meet all the following
      requirements?

      1. The document is in writing; and
      2. The document was signed by the DECEDENT in person; and

      3. The DECEDENT was 18 years of age or older or married or a
         member of the United State Armed Forces when the document was
         signed; and

      4. The document was attested by two or more credible persons above
         the age of fourteen years who signed their names to the document
         in their own handwriting in presence of the DECEDENT; and
      5. The DECEDENT signed the document with the intent to dispose of
         his property after his death.

The jury found the 2006 Will satisfied these requirements.        We measure the
sufficiency of the evidence using the language of this question and the instructions
associated with it. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).

      A copy of the 2006 Will was admitted into evidence, showing that it was in

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writing. Raul Sr.’s signature appears on pages 5 and 7 of the 2006 Will. Darryl
Fitch and Scott Cooper, who both signed the 2006 Will as witnesses, testified that
they saw Raul Sr. sign the 2006 Will. Keith Weid, Sandra’s husband, also testified
that he saw Raul Sr. sign the 2006 Will. Moreover, the signatures on the 2006 Will
match the signatures on other evidence admitted during the trial, including the
2000 Will, Raul Sr.’s Mexican Voter ID, his Texas Driver’s License, and his
Power of Attorney. The record shows that Raul Sr. was above the age of eighteen
when he signed the 2006 Will. According to his driver’s license and certificate of
naturalization, Raul Sr. was born on December 23, 1930.

      Two witnesses, Darryl Fitch and Scott Cooper, signed the 2006 Will. Each
witness testified at trial and stated that he was at least fourteen years old at the
time. Both individuals are credible witnesses because neither is a beneficiary
under the 2006 Will. See Brown v. Taylor, 210 S.W.3d 648, 661 (Tex. App.—
Houston [1st Dist.] 2006, no pet.). Fitch and Cooper testified that they signed the
2006 Will in Raul Sr.’s presence. Mary McFarland and Keith Weid corroborated
this testimony.

      The testators’ intent to dispose of his property is set forth in the instrument
itself. The first paragraph states:

      I, Raul Humberto Ayala, Sr., of the County of Harris and the State of
      Texas, being in good health, of sound mind and memory, do make and
      declare this instrument to be my Last Will and Testament, hereby
      expressly revoking all former Wills and Codicils made by me at any
      time heretofore, and intending hereby to dispose of all the property of
      whatever kind and wherever situated which I own, or in which I have
      any kind of interest at the time of my death.

See Huffman v. Huffman, 339 S.W.2d 885, 888 (Tex. 1960) (stating that intent of
the testator must be determined from the words used in the will).

      Appellant argues that there is insufficient evidence that Raul Sr. had the
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requisite testamentary intent because Martha, not Raul Sr., is the individual who
initially contacted Daniel Kasprzak, the attorney who drafted the 2006 Will, and
Martha and Sandra were the will’s primary beneficiaries. These facts are not
evidence of a lack of testamentary intent, however. Although these facts could
tend to undermine Martha’s and Sandra’s credibility with the finder of fact, we do
not make credibility determinations under our standard of review for legal and
factual sufficiency challenges.       Univ. Gen. Hosp., LP, 403 S.W.3d at 551;
Pascouet, 61 S.W.3d at 615–16. The language in the 2006 Will is sufficient
evidence to demonstrate testamentary intent.

          Appellant argues that Raul Sr. could not read English and thus contends that
we should not rely on the language in the 2006 Will as evidence of the testator’s
intent.     Even if evidence of the testator’s ability to understand English were
necessary to uphold the jury’s finding in this case, there is sufficient evidence in
the record indicating that Raul Sr. understood some English. Mary McFarland, the
notary, stated that she had an extended conversation with Raul Sr. in English
during the signing of the 2006 Will. Mario, who had a very close relationship with
Raul Sr., testified that Raul Sr. could read English. Sandra also testified regarding
Raul Sr.’s ability to understand English, and she noted that Raul Sr. had passed his
test for United States citizenship in English. Moreover, Kasprzak testified that he
communicated with Raul Sr. in English. He stated that whenever Raul Sr. reached
the point where his English language skills inhibited his ability to communicate, a
family member was present to translate.

          Kasprzak testified that in 2006, he met with Raul Sr. and his two daughters.
During the meeting, Raul Sr. stated that he wanted to revoke his 2000 Will and
execute a new one. The most significant change was that Raul Sr. wanted to leave
his interest in the family business to his daughters. According to Kasprzak, there

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was no doubt that Raul Sr. intended to change the distribution of his estate.
Kasprzak testified that Raul Sr. went through the 2000 Will with him paragraph by
paragraph and told Kasprzak what to change and which property should be left to
whom. Kasprzak presented diagrams to Raul Sr. in order to verify the requested
distribution changes made in the 2006 Will, and Kasprzak testified that Raul Sr.
confirmed the diagrams were exactly what he wanted to do.            Mario testified
regarding the reasons Raul Sr. gave for wanting to change his will, including
appellant’s treatment of him. This evidence is legally and factually sufficient for
the jury to find Raul Sr. had testamentary intent when he signed the 2006 Will.
Although there was also contrary testimony regarding appellant’s relationship with
Raul Sr., it was the jury’s role to determine whom to believe.

      Appellant next argues that there is insufficient evidence to show the process
of executing the will was handled in accordance with the statute.          Appellant
emphasizes that the notarized copy of 2006 Will contains two different dates, June
26 on the will itself, and June 27 on the self-proving affidavit. Appellant points to
inconsistencies in the testimony from the witnesses regarding the notarization of
the will. Appellant also asserts that there is insufficient evidence the will was
properly executed because McFarland notarized a copy of the self-proving
affidavit. We need not address any inconsistencies in the testimony about the
notarization and date of the self-proving affidavit, however, because the evidence
discussed above supports each element listed in the jury charge without resort to
the self-proving affidavit.

      Appellant also contends there is insufficient evidence to prove Raul Sr.
signed the 2006 Will because testimony revealed that Sandra Wied was capable of
signing Raul Sr.’s signature. Appellant states that these “factors raise[] doubts
about the authenticity of [Raul Sr.’s] signature.” In conducting a legal sufficiency

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review, however, we must consider the evidence in the light most favorable to the
appealed finding and indulge every reasonable inference that supports it. Univ.
Gen. Hosp., L.P., 403 S.W.3d at 550. We must credit favorable evidence if a
reasonable trier of fact could, and disregard contrary evidence unless a reasonable
trier of fact could not. Id. at 551. In challenges to the factual sufficiency of the
evidence, we may not pass upon the witnesses’ credibility or substitute our
judgment for that of the jury, even if the evidence would also support a different
result. Pascouet, 61 S.W.3d at 615–16

       Appellant asks us to make inferences that contradict the jury’s finding and to
disregard the evidence, detailed above, indicating that Raul Sr. signed the 2006
Will. He has not argued and cannot show that a reasonable trier of fact could not
credit that evidence. In addition, there is no evidence in the record demonstrating
that Sandra Wied did in fact forge Raul Sr.’s signature on the 2006 Will. We hold
that the evidence was legally and factually sufficient for the jury to conclude the
2006 Will was properly executed. We overrule appellant’s first issue.

III.   The evidence is legally and factually sufficient to support the jury’s
       failure to find that Raul Sr. executed the 2006 Will as a result of undue
       influence.
       In his second issue, appellant argues the evidence is legally and factually
insufficient to support the jury’s “No” answer to the question whether Raul Sr.
executed the 2006 Will as a result of undue influence—a question on which
appellant had the burden of proof.      Our record does not show that appellant
preserved the legal sufficiency portion of his challenge for our review, as it does
not contain a ruling on appellant’s motion for judgment notwithstanding the
verdict. Even if appellant had preserved that portion of his challenge, however, we
conclude that the evidence is both legally and factually sufficient to support the
jury’s answer.
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      A will may be set aside based on undue influence if the contestant proves:
(1) the existence and exertion of an influence; (2) the effective operation of such
influence so as to subvert or overpower the mind of the testator at the time of the
execution of the testament; and (3) the execution of the testament which the maker
thereof would not have executed but for such influence.1 Rothermel v. Duncan,
369 S.W.2d 917, 922 (Tex. 1963). The burden of proving undue influence is upon
the party contesting execution—here, appellant. Id. The contestant must introduce
some evidence that meets each of the elements of undue influence. Id.

      Factors that are typically considered in gauging undue influence include: (1)
the circumstances surrounding the execution of the instrument; (2) the relationship
between the testator and the beneficiary and any others who might be expected
recipients of the testator’s bounty; (3) the motive, character, and conduct of the
persons benefitted by the instrument; (4) the participation by the beneficiary in the
preparation or execution of the instrument; (5) the words and acts of the parties; (6)
the interest in and opportunity for the exercise of undue influence; (7) the physical
and mental condition of the testator at the time of the will’s execution, including
the extent to which he was dependent upon and subject to the control of the
beneficiary; and (8) the improvidence of the transaction by reason of unjust,
unreasonable, or unnatural disposition of the property. See Guthrie v. Suiter, 934
S.W.2d 820, 831 (Tex. App.—Houston [1st Dist.] 1996, no writ). Undue influence
may be established by circumstantial evidence, but such evidence must be
probative of the issue and not merely create a surmise or suspicion that such
influence existed at the time the document was executed. Reynolds v. Park, 485
S.W.2d 807, 813 (Tex. Civ. App.—Amarillo 1972, writ ref’d n.r.e.).             Undue
influence cannot be inferred by opportunity alone because “[t]here must be some

      1
          The jury charge on undue influence tracks these elements.

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evidence to show that the influence was not only present, but [that it was] in fact
exerted with respect to the [execution of the document] itself.” Cotten v. Cotten,
169 S.W.3d 824, 827 (Tex. App.—Dallas 2005, pet. denied).

      In making this challenge, appellant largely asks us to draw inferences
contrary to the jury’s finding.     Because Martha and Sandra are the primary
beneficiaries of the 2006 Will, appellant contends they had a motive. Appellant
also notes Martha and Sandra had an opportunity to exercise undue influence on
Raul Sr.’s dispositions under the 2006 Will, particularly given Raul Sr.’s limited
ability to understand English.     He also contends that the 2006 Will was an
unnatural disposition because it removed the bequests to him in the 2000 Will.

      Under our standard of review, however, we must make inferences that
support the jury’s findings. Univ. Gen. Hosp., L.P., 403 S.W.3d at 550 Moreover,
the burden was on appellant to demonstrate undue influence. Rothermel, 369
S.W.2d at 922. Appellant’s allegations do not constitute evidence that Martha and
Sandra did in fact exercise undue influence. Neither Martha nor Sandra was
present when Raul Sr. executed the will (though Sandra’s husband was), and the
witnesses testified that Raul Sr. was not being pressured or manipulated. The jury
found that Raul Sr. had testamentary capacity, and the evidence supporting that
finding is discussed in Part IV below. In addition, as discussed in Part II above,
Kasprzak testified about the manner in which Raul Sr. communicated his wishes,
and there was evidence of Raul Sr.’s ability to understand English. The mere
possibility that Sandra and Martha exercised undue influence is insufficient to
overturn the jury’s conclusion because “[t]here must be some evidence to show
that the influence was not only present, but [that it was] in fact exerted with respect
to the [execution of the document] itself.” Cotten, 169 S.W.3d at 827.

      We hold the evidence is legally sufficient because appellant did not

                                          11
conclusively establish the successful exercise of undue influence. Dow Chem. Co.,
46 S.W.3d at 241. Similarly, we hold the evidence is factually sufficient because
appellant has not shown that the jury’s failure to find undue influence is against the
great weight and preponderance of the evidence.                  Id. at 242.   We overrule
appellant’s second issue.

IV.   The evidence is legally and factually sufficient to support the jury’s
      finding that Raul Sr. had the testamentary capacity to sign the 2006
      Will.
      In his third issue, appellant challenges the sufficiency of the evidence
supporting the jury’s finding that Raul Sr. had the testamentary capacity to execute
the 2006 Will. To make a last will and testament, a testator must be of sound
mind. Tex. Estates Code Ann. § 251.001 (West 2014). This means the testator
must have testamentary capacity at the time the will is executed. In re Neville, 67
S.W.3d 522, 524 (Tex. App.—Texarkana 2002, no pet.).

      The testamentary capacity requirement is satisfied upon proof that the
testator has sufficient mental ability to understand he is making a will, the effect of
making a will, and the general nature and extent of his property. Long v. Long,
196 S.W.3d 460, 464 (Tex. App.—Dallas 2006, no pet.); In re Neville, 67 S.W.3d
at 524. He must also know his next of kin and natural objects of his bounty and
their claims upon him, and have sufficient memory to collect in his mind the
elements of the business transacted and hold them long enough to form a
reasonable judgment about them.2 In re Estate of Blakes, 104 S.W.3d 333, 336
(Tex. App.—Dallas 2003, no pet.).               As noted in appellant’s first issue, the
proponent of the will bears the burden of establishing that the testator had
testamentary capacity. Croucher, 660 S.W.2d at 57; In re Estate of Coleman, 360

      2
          The jury charge on testamentary capacity tracks these elements.

                                                12
S.W.3d at 610.

      Appellant contends that Martha and Sandra presented no evidence at trial
regarding Raul Sr.’s testamentary capacity on the day he signed the 2006 Will.
Appellant argues that the testimony of Raul Sr.’s accountant, Jesse Cantu,
demonstrates that Raul Sr.’s mental capacity diminished after he fell during a
robbery in 2004.      Cantu testified that after the incident, Raul Sr. would
occasionally repeat himself or ask non-business questions. According to appellant,
Cantu’s statements demonstrate that Raul Sr. exhibited obvious signs of
diminished mental and physical capabilities. Appellant asserts that Raul Sr. could
not articulate the nature of his property because Kasprzak contacted Cantu during
the April 2006 meeting, and Cantu informed Kasprzak of Raul Sr.’s ownership
interests in the family business and the real property upon which it is located.

      We hold the evidence is legally and factually sufficient to support the jury’s
conclusion that Raul Sr. had testamentary capacity to execute the 2006 Will.
Witness Cooper provided the following testimony about the day Raul Sr. executed
the Will:

      [Raul Sr.] and I had a conversation in Spanish. Based on my
      observations of him and my own common sense, it appeared that
      [Raul Sr.] had sufficient mental ability to understand that he was
      making a will. It appeared that [Raul Sr.] had sufficient mental ability
      to understand the effect of his act in making the will. It appeared that
      [Raul Sr.] had sufficient mental ability . . . to understand the general
      nature and extent of his property. It appeared that [Raul Sr.] had
      sufficient mental ability to know his family members and who would
      be receiving which property under his will. It appeared that [Raul Sr.]
      had sufficient memory to collect in his mind the elements of the
      business to be transacted and to be able to hold the elements long
      enough to perceive their obvious relation to each other and to form a
      reasonable judgment as to these elements.
As explained above, Kasprzak also met with Raul Sr. about changing his will, Raul

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Sr. left Kasprzak with no doubt that he intended to change the distribution of his
estate, and Kasprzak prepared diagrams that Raul Sr. confirmed reflected his
wishes. Kasprzak described Raul Sr. in 2006 as being “as sharp as he was the day
I met him” in 2000. In addition, Mario testified that Raul Sr.’s mental state was
normal in 2006, that he knew what property he owned, and that Mario believed he
had the mental ability to make a will. This testimony was corroborated by a friend
of Raul Sr., Arturo Garcia. Sandra also testified that Raul Sr. had not lost his
mental abilities in 2006 and provided examples of his activities, including his
ability to pass a test for United States citizenship in 2011.

      Thus, even if Cantu’s testimony were viewed as some evidence that Raul Sr.
lacked testamentary capacity, the jury’s finding of capacity is not so contrary to the
overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.
Ellis, 971 S.W.2d at 407. In addition, Cooper’s testimony alone provides more
than a scintilla of evidence supporting the jury’s finding. Univ. Gen. Hosp., LP,
403 S.W.3d at 551. We therefore overrule appellant’s third issue.

                                     CONCLUSION

      Having overruled appellant’s three issues, we affirm the trial court’s
judgment.




                                        /s/     J. Brett Busby
                                                Justice



Panel consists of Justices Jamison, Busby, and Brown.



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