Opinion issued March 27, 2014.




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00463-CV
                           ———————————
                       VERONICA L. DAVIS, Appellant
                                        V.
  JAMES A. WEST AND HOUSTON REPORTING SERVICES, Appellees


                   On Appeal from the 149th District Court
                          Brazoria County, Texas
                        Trial Court Case No. 40,104


                                  OPINION

      This is the fourth appeal arising out of two lawsuits regarding court reporter

fees. In the first lawsuit filed in justice court, Houston Reporting Services (HRS)

alleged that Veronica Davis, an attorney, breached her contractual obligation to

pay for deposition transcripts. HRS obtained a post-answer default judgment
against Davis, and then used a court-appointed receiver to remove funds from

Davis’s bank account. Davis filed a notice of appeal; however, the appeal was

dismissed.

      In the second lawsuit, Davis sued HRS, its attorney, the court-appointed

receiver, and her own bank in district court. All defendants except HRS were

granted summary judgment, and their cases were severed. HRS ultimately won on

summary judgment. This appeal is limited to Davis’s claims against HRS.

      In three issues, Davis contends that (1) the trial court lacked jurisdiction to

grant summary judgment to HRS due to an earlier recusal order, (2) even if the

court had jurisdiction, fact issues existed that prevented judgment as a matter of

law, and (3) the trial court erred by denying Davis’s two earlier motions for default

judgment against HRS.

      We affirm.

                                   Background

      HRS contends that Davis ordered copies of deposition transcripts on behalf

of her client. Davis disputes this and states that, regardless, she withdrew as

attorney of record for that client. When Davis failed to pay for the transcripts, HRS

sued her in justice court and obtained a post-answer default judgment. Davis

asserts that the justice court made multiple errors in granting the default judgment

against her and, later, authorizing the removal of funds from her bank account. She


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challenges the notice given to her of the trial setting, the appointment of the

receiver, the issuance of a turnover order, and multiple other aspects of the

litigation. Although she initially appealed that judgment, her appeal was dismissed

because she did not pay the required fees.

      In a second lawsuit, Davis sued HRS, its attorney, the court-appointed

receiver, and her bank in district court. Her cause of action against HRS was for

abuse of process related to the earlier default judgment and collection efforts. The

receiver and bank were granted summary judgments, which were severed,

appealed to this Court, and affirmed. 1 While her claims against HRS and West

were still pending, Davis filed a motion to recuse the district court judge, Robert E.

May. May recused himself and requested that the presiding judge for the Second

Administrative District “assign a judge to sit in this cause.” The presiding judge

“assign[ed] the Honorable Neil Caldwell . . . to the 149th Judicial District Court of

Brazoria County, Texas,” which was Judge May’s court.

      West moved for summary judgment. At the hearing on that motion, Davis

orally requested a default judgment against HRS. Before Judge Caldwell ruled,

HRS filed its answer. Judge Caldwell denied Davis’s motion for default against

HRS. Judge Caldwell granted West’s summary judgment motion and severed it

into a final judgment. Davis appealed but her appeal was dismissed for failure to

1
      See Davis v. West, 317 S.W.3d 301 (Tex. App.—Houston [1st Dist.] 2009, no pet.)
      (affirming summary judgment for receiver and bank).
                                          3
pay the filing fee. Little activity took place in the trial court over the next two years

on the only remaining claim—Davis’s suit for abuse of process against HRS.

      When Judge May retired, Judge Terri Holder was elected to take his place.

Judge Holder set the case for trial. HRS did not appear at the February 2013 trial

date, leading Davis to move for a post-answer default judgment—her second

motion for default judgment. The trial court denied the motion, noting that its file

did not indicate that HRS had received notice of the trial setting. Two months later,

Judge Holder signed an order granting summary judgment to HRS. Davis appeals

the summary judgment in HRS’s favor, arguing that the court lacked jurisdiction.

She also alleges that the trial court erred by denying her two motions for default

judgment.

                                        Recusal

      In her first issue, Davis argues that the “149th lacked jurisdiction to render

the decision in this cause” because the cause “was never reassigned back to the

149th Judicial District Court by the Administrative Judge for the Second Judicial

District.” It appears Davis is making two separate arguments: (1) that the 149th

Judicial District Court, as an entity broader than any single judge, lacked

jurisdiction, and (2) that Judge May’s elected replacement, Judge Holder, lacked

authority to dispose of her case. We consider first Davis’s contention that the 149th

lacked jurisdiction.


                                           4
A.    Recusal of 149th Judicial District Court

      Davis contends that the 149th lacked jurisdiction because the administrative

judge assigned the case to another judge and never reassigned it back to the 149th.

Davis relies on section 25.0022 2 of the Texas Government Code to support her

contention; however, that provision does not apply here. It falls within subchapter

B, entitled “General Provisions Relating to Statutory Probate Courts” and concerns

“Administration of Statutory Probate Courts.” TEX. GOV’T CODE ANN. § 25.0022

(West Supp. 2013).

      The Rules of Civil Procedure govern recusal of district court judges. See

TEX. R. CIV. P. 18a, 3 18b. A party seeking to recuse a judge may file a verified

motion stating one or more of the grounds listed in rule 18b as a basis for recusal.

TEX. R. CIV. P. 18a(a). The judge can either sign an order of recusal or refer the

motion to the regional presiding judge. TEX. R. CIV. P. 18a(f). In the latter case, if

the motion is granted, “the regional presiding judge must transfer the case to

another court or assign another judge to the case.” TEX. R. CIV. P. 18a(g)(7)

(emphasis added).

2
      Davis actually cites this court to section 25.022; however, that section does not
      exist. In context, we understand her to be referring to section 25.0022 instead.
      TEX. GOV’T CODE ANN. § 25.0022 (West. Supp. 2013).
3
      Comment to Rule 18a states as follows: “Rule 18a governs the procedure for
      recusing or disqualifying a judge sitting in any trial court other than a statutory
      probate court, justice court or municipal court. Chapter 25 of the Government
      Code governs statutory probate courts . . . .” TEX. R. CIV. P. 18a comment.
                                           5
      Davis’s argument that the 149th lacked jurisdiction after Judge May was

recused is incorrect for three reasons. First, Davis incorrectly categorizes a recusal

issue as a jurisdictional issue. Judicial recusal is a non-jurisdictional issue that

requires either a proper recusal motion or an assertion that the case has been

assigned to another court to avoid waiver. See Buckholts Indep. Sch. Dist. v.

Glaser, 632 S.W.2d 146, 148 (Tex. 1982); McElwee v. McElwee, 911 S.W.2d 182,

185–86 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (noting that ability to

recuse judge can be waived). By contrast, judicial disqualification is a

jurisdictional issue, and any judgment rendered by a constitutionally disqualified

judge is void. See In re Wilhite, 298 S.W.3d 754, 757 (Tex. App.—Houston [1st

Dist.] 2009, orig. proceeding) (noting differences between recusal and

disqualification); Gulf Mar. Warehouse Co. v. Towers, 858 S.W.2d 556 (Tex.

App.—Beaumont 1993, writ denied) (explaining further distinction between

recusal and disqualification).

      Second, recusal removes only the individually challenged judge—not the

court—from participation in a case. See TEX. R. CIV. P. 18a, 18b. Rule 18a

contemplates recusal of “a judge who is sitting in the case.” TEX. R. CIV. P. 18a.

Rule 18b states that “a judge” may be recused for one of eight possible reasons,

including “personal bias . . . personal knowledge of disputed evidentiary facts,”

and that “the judge, individually or as a fiduciary, or the judge’s spouse or minor


                                          6
child residing in the judge’s household, has a financial interest in the subject

matter.” TEX. R. CIV. P. 18b. These reasons are specific to a judge as an individual

and do not cause the numbered court, as an entity, to also be recused.

      Third, not all recusals result in reassignment to another court, as Davis

suggests. Instead, the rules afford the regional presiding judge a choice either (1) to

“transfer the case to another court” or (2) to “assign another judge to the case.”

TEX. R. CIV. P. 18a(g)(7). In this case, the administrative judge assigned Judge

Caldwell to the 149th Judicial District Court to preside over Davis’s case against

HRS. Therefore, the case was not transferred from the 149th. And there is no basis

for concluding that the court lacked jurisdiction as a result of Judge Caldwell’s

assignment.

      We turn next to Davis’s contention that recusal of Judge May caused his

replacement, Judge Holder, also to be recused.

B.    Recusal of Judge Holder

      Davis states that she “outlined [her] objection” to Judge Holder presiding

over her case at the hearing on HRS’s motion for summary judgment; however,

Davis did not state an objection at that hearing or file a written motion to recuse

the judge. Instead, she stated as follows:

      MS. DAVIS:       Mr. West never did file an answer to this case until
                       this case was transferred from the 149th. As a matter
                       of fact, I’d like to reflect on the record, it’s never been


                                             7
                       transferred back to the 149th because it was
                       transferred out. So in terms of—

      COURT:           It wasn’t transferred out. It was—Judge Caldwell was
                       appointed to hear it as a visiting judge, but it wasn’t
                       transferred from this court.

      MS. DAVIS:       No. It was transferred from the 149th.

      COURT:           That’s not what my file reflects. Go ahead.

      We read this exchange as an argument that the 149th lacked jurisdiction, a

contention we already have rejected. Davis did not move to recuse Judge Holder.

To the extent Davis is asserting that Judge Holder also should have been recused,

Davis has waived that complaint by failing to raise it in the trial court. Cf. Pena v.

Pena, 986 S.W.2d 696, 700–01 (Tex. App.—Corpus Christi 1998, pet. denied)

(holding that party waived claim for recusal by failing to “specifically request it”

even though party asserted in motion for new trial facts that, if true, would support

recusal motion); see also Barron v. State Att’y Gen., 108 S.W.3d 379, 382 (Tex.

App.—Tyler 2003, no pet.) (explaining that rule 18a requires recusal motion to be

in writing and verified).

      Davis contends that she also objected to Judge Holder at a hearing on a

motion for continuance; however, we find no evidence of an objection in the

record.

      Having concluded that (1) Judge Caldwell was assigned to the 149th and

that court retained jurisdiction over Davis’s case, and (2) Davis failed to effectively

                                          8
seek recusal of Judge Holder, we hold that Judge Holder had jurisdiction to rule on

HRS’s motion for summary judgment.

      We, therefore, overrule issue one.

                           Denial of Default Judgments

      In her second issue, Davis challenges the denial of two separate motions for

default judgment against HRS.

A.    Standard of review

      Denial of a motion for default judgment is reviewed under an abuse of

discretion standard. See Aguilar v. Livingston, 154 S.W.3d 832, 833 (Tex. App.—

Houston [14th Dist.] 2005, no pet.) (citing Aguilar v. Alvarado, 39 S.W.3d 244,

247–48 (Tex. App.—Waco 1999, pet. denied). Determination of factual matters is

left to the sound discretion of the trial court; however, a trial court abuses its

discretion when it fails to analyze or apply the law correctly. See id.

B.    Denial of default judgment in 2009

      Davis complains that the visiting judge denied her request for default

judgment against HRS in 2009. She states that she orally moved for default

judgment at the hearing on West’s motion for summary judgment on September

17, 2009—before HRS answered. Davis followed up her oral motion for default

with a written motion filed on October 5, 2009. But on October 1—before Davis

filed her written motion—HRS filed an answer. The order denying the motion,


                                           9
dated October 6, 2009, acknowledged that Davis moved for default in September

but denied the motion because HRS answered on October 1.

        The temporal requirement on a judge to rule on a pending motion for default

judgment is only that the judge rule within a “reasonable time.” Barnes v. State,

832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding); In

re Martinez Ramirez, 994 S.W.2d 682, 683 (Tex. App.—San Antonio 1998, orig.

proceeding). “Whether the judge has acted within a ‘reasonable’ period of time

depends on the circumstances of the case.” In re Mitchell, No. 10-07-00250-CV,

2008 WL 191477, at *1 (Tex. App.—Waco Jan. 23, 2008, orig. proceeding) (mem.

op.). Appellate courts have held that one month is a reasonable time to pass before

a court rules. See In re Holleman, 2004 WL 624584, at *1 (Tex. App.—San

Antonio Mar. 31, 2004, orig. proceeding) (mem. op.); but see In re Martinez

Ramirez, 994 S.W.2d at 683–84 (deciding that 18 month delay was unreasonable).

In this case, only two weeks passed between the oral motion for default and the

date the court ruled on the motion. We hold that the court ruled within a reasonable

time.

        Davis also argues that her right to a default judgment was prejudiced by the

trial court’s delay in ruling until after HRS filed an answer. We disagree. “At any

time before a judgment by default has been actually announced by the court, a

defendant has the right to file his answer.” City of Jefferson v. Jones, 12 S.W. 749,


                                         10
749 (Tex. 1889); In re $475,001.16, 96 S.W.3d 625, 627 (Tex. App.—Houston [1st

Dist.] 2002, no pet.); In re S.K.A., 236 S.W.3d 875, 895 (Tex. App.—Texarkana

2007, pet. denied). “Once an answer is on file, even if it is filed after the due date,

the district court may not render a no-answer default judgment.” Conely v. Tex. Bd.

of Criminal Justice, No. 03-08-00293-CV, 2010 WL 1632972, at *2 (Tex. App.—

Austin Apr. 22, 2010, no pet.) (mem. op.); TEX. R. CIV. P. 239 (judgment by

default). HRS’s answer made Davis’s timing complaint moot. Conely, 2010 WL

1632972, at *2. In Conely, the plaintiff complained on appeal that the trial court

“waited until defendants filed a written answer before it ruled on [his] default

motion.” Id. The appellate court held that, “even when a district court refuses to

rule on a motion for default judgment, once an answer has been filed, any

complaints regarding the district court’s prior failure to act are rendered moot.” Id.

(citing Palacios v. Rayburn, 516 S.W.2d 292, 294 (Tex. App.—Houston [1st Dist.]

1974, no writ) (denying petition for writ of mandamus seeking to compel trial

court to rule on pending motion for default judgment because defendant filed

answer in interim).

      We conclude that the trial court did not abuse its discretion by failing to rule

on the motion during the two week period that elapsed between the date of Davis’s

oral request for default and the date HRS answered. We further hold that the filing

of an answer on behalf of HRS mooted Davis’s complaint.


                                          11
C.    Denial of default judgment in 2013

      Davis also argues that the trial court abused its discretion by denying her

motion for a post-answer default judgment presented at the February 2013 trial

setting. HRS failed to appear for trial. Davis presented evidence and moved for

default judgment. Later that day, Judge Holder wrote a letter to the parties stating

that the court did “not find verification that notice of [the trial setting] was given to

Mr. West [attorney for HRS]. Since an answer is on file for Houston Reporting

Services the default requested today is denied.” Subsequently, in a motion to quash

and for protective order, HRS explained that it had received a notice from the court

two years earlier stating that the case had been dismissed and had not received any

notice of the 2013 trial setting.

      A post-answer default is possible when a party has filed an answer but fails

to appear for trial. See Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979).

Once the party answers, that party must be given adequate notice of a trial setting

before a post-answer default can be granted. See TEX. R. CIV. P. 245 (requiring trial

court to give parties not less than forty-five days’ notice of first trial setting, then

“reasonable notice” of any subsequent setting). Failure to appear at trial

“constitutes neither an abandonment of defendant’s answer nor an implied

confession of any issues thus joined by the defendant’s answer.” Stoner, 578

S.W.2d at 682. Judgment cannot be entered on the pleadings; the plaintiff must


                                           12
prove his case at trial. Id. (citing Frymire Eng’g Co. v. Grantham, 524 S.W.2d 680

(Tex. 1975)).

      Davis points to the trial court’s docket sheet as evidence notice was sent to

HRS of the trial setting. But docket sheets are not evidence and, therefore, cannot

demonstrate that proper notice was given. Pifer v. State, 893 S.W.2d 109, 111

(Tex. App.—Houston [1st Dist.] 1995, pet. ref’d); Guyot v. Guyot, 3 S.W.3d 243,

246 (Tex. App.—Fort Worth 1999, no pet.).

      Given the trial court’s explanation that the court’s file did not support the

conclusion that proper notice was given to HRS of the trial setting, we hold that the

trial court did not abuse its discretion denying Davis’s 2013 motion for default

judgment. Cf. Aguilar, 154 S.W.3d at 833 (noting that “determination of factual

matters is left to the sound discretion of the trial court”).

      We overrule issue two.

                                   Abuse of Process

      Davis sued HRS for the tort of “abuse of process.” HRS filed both a no-

evidence and a traditional motion for summary judgment. In her third issue, Davis

argues that the trial court erred by granting summary judgment to HRS because a

fact issue existed whether HRS abused process in its efforts to obtain and enforce

the judgment against her and HRS failed to establish its right to judgment as a

matter of law.


                                            13
A.    Standard of review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary judgment without

specifying the grounds for doing so, we must uphold the trial court’s judgment if

any of the grounds relied on by the movant is meritorious. Parker v. Valerus

Compression Servs., LP, 365 S.W.3d 61, 65 (Tex. App.—Houston [1st Dist.] 2011,

pet. denied). When reviewing a summary judgment motion, we (1) take as true all

evidence favorable to the nonmovant and (2) indulge every reasonable inference

and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003).

      A party seeking summary judgment may combine in a single motion a

request for summary judgment under the no-evidence standard with a request

under the traditional, as-a-matter-of-law standard. Binur v. Jacobo, 135 S.W.3d

646, 650 (Tex. 2004). If a motion argues both bases for summary judgment and the

order does not specify which motion was granted, we typically review the

propriety of the summary judgment under the no-evidence standard first. See

Parker, 365 S.W.3d at 65. If the no-evidence summary judgment was properly

granted, we need not reach arguments on the traditional motion for summary

judgment. See id.


                                       14
      To prevail on a no-evidence motion for summary judgment, the movant

must establish that there is no evidence to support an essential element of the

nonmovant’s claim on which the nonmovant would have the burden of proof at

trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied).

B.    The tort of abuse of process

      The elements of an abuse-of-process claim are (1) the defendant misused a

regularly issued process—e.g., “the issuance of a citation or a writ”—for a purpose

not lawfully warranted by that particular process, (2) the defendant had an ulterior

motive or purpose for misusing the process, and (3) the plaintiff sustained damage

from the irregularity. Detenbeck v. Koester, 886 S.W.2d 477, 480 (Tex. App.—

Houston [1st Dist.] 1994, no writ); Tandy Corp. v. McGregor, 527 S.W.2d 246,

249 (Tex. App.—Texarkana 1975, writ ref’d n.r.e.); see also Pittsburgh SNF, LLC

v. PharMerica E., Inc., 2:10-CV-363-JRG-RSP, 2012 WL 4509753, at *2 (E.D.

Tex. July 19, 2012), report and recommendation adopted, No. 2:10-CV-363-JRG-

RSP, 2012 WL 4508127 (E.D. Tex. Sept. 28, 2012) (listing examples of

processes). The focus is on the use of the process once it is properly obtained, not

on the motive for originally obtaining the process. See Detenbeck, 886 S.W.2d at

480–81; Tandy, 527 S.W.2d at 249 (“An action for abuse of process presupposes

an originally valid and regular process, duly and properly issued.”); cf. Bossin v.


                                        15
Towber, 894 S.W.2d 25, 33 (Tex. App.—Houston [14th Dist.] 1994, writ denied)

(explaining that malicious prosecution, by contrast, focuses on party’s actions and

malice in getting process issued); Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203,

207–08 (Tex. 1996) (malicious prosecution case).

      A suit for abuse of process must be based on an allegation that the other

party misused process for a collateral purpose:

      Some definite act or threat not authorized by the process . . . is
      required; and there is no liability where the defendant has done
      nothing more than carry out the process to its authorized conclusion,
      even though with bad intentions. The improper purpose usually takes
      the form of coercion to obtain a collateral advantage, not properly
      involved in the proceeding itself, such as the surrender of property or
      the payment of money, by the use of the process as a threat or a club.
      There is, in other words, a form of extortion, and it is what is done in
      the course of negotiation, rather than the issuance or any formal use of
      the process itself, which constitutes the tort.

Blackstock v. Tatum, 396 S.W.2d 463, 468 (Tex. Civ. App.—Houston 1965, no

writ); cf. Blanton v. Morgan, 681 S.W.2d 876, 878 (Tex. App.—El Paso 1984, writ

ref’d n.r.e.) (seeking exemplary damages as means to extort settlement not abuse of

process because process was used for intended purpose to require answer to

petition). The process must be used to “compel[] a party to do a collateral thing

which he would not be compelled to do” otherwise. See Detenbeck, 886 S.W.2d at

480; Blanton, 681 S.W.2d at 878; Baubles & Beads v. Louis Vuitton, S.A., 766

S.W.2d 377, 378–79 (Tex. App.—Texarkana 1989, no writ) (citing RESTATEMENT

(SECOND) OF TORTS § 682, cmt. b (1977)).

                                         16
C.    No evidence in support of abuse of process claim

      HRS filed a no-evidence motion for summary judgment arguing that Davis

presented no evidence of a misuse of process, e.g., the order appointing a receiver

or the turnover order. In her response, Davis did not argue that HRS misused a

properly obtained process to obtain a collateral advantage. Instead, she argued that

HRS’s suit to collect a debt was filed in the wrong venue, that she was not notified

of the trial setting, that the turnover order was deficient, and that the amount of

funds removed from her account exceeded the judgment. Davis proffered no

evidence in her response to support her complaint that the funds removed exceeded

the lawful amount owed under the default judgment. The court order closing the

receivership lists the amount the receiver removed from Davis’s account, which

matches the amount Davis claims to have been removed. Davis’s other complaints,

challenging the legality of the judgment, are required to have been raised through a

direct appeal of the judgment, not through an independent suit for misuse of a

properly issued process. See Davis v. West, 317 S.W.3d 301, 309 (Tex. App.—

Houston [1st Dist.] 2009, no pet.) (affirming summary judgment for court-

appointed receiver and bank against Davis; noting that Davis “failed to timely

prosecute a direct appeal of the turnover order or seek injunctive or mandamus

relief prohibiting the execution of the turnover order” and stating that appellate

challenge to turnover order and scope of the receiver’s powers constituted “a


                                        17
collateral attack on the turnover order.”); see also Browning v. Prostok, 165

S.W.3d 336, 346 (Tex. 2005) (“A collateral attack is an attempt to avoid the

binding force of a judgment in a proceeding not instituted for the purpose of

correcting, modifying, or vacating the judgment, but in order to obtain some

specific relief which the judgment currently stands as a bar against.”).

      Davis presented no evidence that HRS misused process to compel Davis to

act in a collateral way; rather, the only evidence is that the process was used to

satisfy the debt. See Bossin, 894 S.W.2d at 33; see also March v. Cacioppo, 185

N.E.2d 397, 243 (Ill. App. Ct. 1962) (“The complaint does not charge an ulterior

purpose or that either judgment or garnishment was used to effect an objective not

within their proper scope, such as an attempt to force the plaintiffs to do something

other than to pay their supposed debt. There was no abuse of process in this

case.”). Further, the only evidence presented by Davis—her affidavit—stated that

the written request for deposition transcripts did not create a legal obligation for

her to pay HRS the underlying debt, that she was never given a copy of the release

of judgment, and that she was given insufficient notice that the release of judgment

would be used as summary judgment evidence. None of these statements raises a

fact issue concerning misuse of process for a collateral purpose. See Baubles &

Beads, 766 S.W.2d at 379 (stating that neither pleadings nor response to motion for

summary judgment constitutes summary judgment evidence and finding that


                                         18
plaintiff failed to present evidence to avoid summary judgment on abuse of process

claim).

       Having concluded that Davis presented no evidence that HRS misused a

properly obtained process for a collateral advantage, we conclude that the trial

court did not abuse its discretion granting summary judgment to HRS on Davis’s

abuse of process claim.

       We overrule issue three.

                                   Conclusion

       Having overruled all three of Davis’s issues, we affirm the judgment of the

trial court.




                                             Harvey Brown
                                             Justice

Panel consists of Justices Keyes, Bland, and Brown.




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