      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00296-CV



                                     Cesar Sotelo, Appellant

                                                 v.

                    Federal Home Loan Mortgage Corporation, Appellee


            FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
       NO. C-1-CV-12-002999, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In this forcible-detainer action, Cesar Sotelo, an occupant of the property at issue,

appeals from the trial court’s judgment of possession in favor of appellee Federal Home Loan

Mortgage Corporation. On July 10, 2012, Federal Home filed a motion to dismiss Sotelo’s appeal

as moot, asserting that Sotelo had failed to file a supersedeas bond, that a writ of possession had

issued, and that Federal Home had taken possession of the subject property on or around May 16,

2012. See Tex. Prop. Code Ann. § 24.007 (West. Supp. 2012).

               “The only issue in an action for forcible detainer is the right to actual possession of

the premises, and the merits of title shall not be adjudicated.” Wilhelm v. Fannie Mae, 349 S.W.3d

766, 768 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Tex. R. Civ. P. 746; Marshall

v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 785 (Tex. 2006)). Although the failure

to supersede a forcible-detainer judgment does not divest a defendant of his right to appeal when
the defendant is no longer in possession of the premises, an appeal from the judgment in that case

is moot unless the defendant asserts a “potentially meritorious claim of right to current, actual

possession.” Marshall, 198 S.W.3d at 787; Wilhelm, 349 S.W.3d at 768.

               In response to Federal Home’s motion to dismiss and its factual assertions regarding

possession of the property, we requested a response from Sotelo by July 23, 2012. Sotelo has not

filed a response. Absent any assertion of a potentially meritorious claim of right to current, actual

possession, we grant Federal Home’s motion and dismiss Sotelo’s appeal as moot. See Marshall,

198 S.W.3d at 787; Wilhelm, 349 S.W.3d at 768.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Henson

Dismissed as Moot

Filed: August 16, 2012




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