Opinion issued February 27, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-01042-CV
LENWOOD E. JOHNSON, Appellant
V.
HOUSING AUTHORITY OF THE CITY OF HOUSTON (IRVINGTON VILLAGE), Appellee
On Appeal from County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 756784
MEMORANDUM OPINION
Appellant, Lenwood E. Johnson, a former tenant of the Irvington Village Apartments, brings this appeal, after a jury trial, from a judgment in favor of the Housing Authority of the City of Houston (Irvington Village). In what are essentially three issues on appeal, appellant contends the trial court erred by (1) sustaining the contest to his affidavit of indigency, (2) delivering possession of the premises to Irvington Village during the pendency of the appeal, and (3) entering judgment in favor of Irvington Village based on the jury’s verdict. We affirm.
Background
On July 2, 2001, the Housing Authority filed a petition to evict Johnson from his apartment at Irvington Village and to collect for utilities Johnson had failed to pay. After a jury trial, the jury found that (1) Johnson failed to comply with the lease agreement, (2) Johnson’s failure to comply with the lease agreement was not excused, and (3) Irvington Village had a superior right to possession of the premises made the subject of the suit. Thereafter, the trial court entered a judgment that (1) rendered a writ of possession to the premises at 2901 Fulton, #230, Houston, TX 77009 to appellee, the Housing Authority of the City of Houston (Irvington Village), (2) rendered a judgment for excess utilities in the amount of $3,976.42 to Irvington Village, and (3) ordered all funds placed into the trial court registry in the cause paid to Irvington Village. This appeal followed. The County Clerk of Harris County filed a contest of appellant’s affidavit of indigency on appeal, and, after a hearing on the same, the trial court sustained the County Clerk’s contest.
Indigency
Appellant contends the trial court erred by sustaining the District Clerk’s contest to his affidavit of indigency. However, appellant has waived the right to complain about this issue on appeal. On January 31, 2002, this Court ordered the court reporter to file, without charge to appellant, the reporter’s record of the indigency hearing in the trial court, in accordance with In re Arroyo, 988 S.W.2d 737, 739 (Tex. 1998). Such reporter’s record of the indigency hearing was filed. The January 31, 2002 order also directed appellant to file, within 25 days, a brief demonstrating why the trial court erred in signing the November 8, 2001 order sustaining the contest to his affidavit of indigency. The January 31 order also stated that if no such brief was filed within 25 days, the Court would presume that appellant waived any objection to the trial court’s order on the indigency contest. Appellant did not file a brief as ordered, and, on July 25, 2002, this Court ordered as follows:
Appellant having failed to file a brief demonstrating why the trial court erred in sustaining the contest to appellant’s affidavit of indigency within the time set forth in this Court’s order of January 31, 2002, appellant has waived any objection to the trial court’s ruling that appellant was not indigent.
Appellant filed no brief addressing the indigency issue until his brief on the merits was filed on September 25, 2002, almost 8 months after he was originally ordered by this Court to brief the indigency issue. Therefore, by not complying with this Court’s January 31, 2002 order, appellant has waived his right to complain about the trial court’s order sustaining the County Clerk’s contest to his indigency affidavit. Accordingly, we overrule appellant’s first issue.
Delivery of Possession Pending Appeal
Appellant also contends that the trial court erred by allowing Irvington Village to take possession of the apartment while the appeal was pending. This issue, too, has already been addressed by this Court. Appellant filed a Petition for Writ of Prohibition in this Court complaining that the trial court and Harris County Constables were interfering with this appeal by enforcing his eviction, even though this appeal from the eviction was pending before the Court. This Court, however, denied the petition, noting that appellant had not filed a supersedeas bond in the appeal. See In re Johnson, no. 01-01-01190-CV (Tex. App.—Houston [1st Dist.] Dec. 14, 2001, orig. proceeding) (not designated for publication). For the same reason we denied the petition for writ of prohibition, we dismiss appellant’s second issue regarding possession as moot. See Tex. R. Civ. P. 749b; Tex. Prop. Code Ann. § 24.007 (Vernon 2000); see also Kemper v. Stonegate Manor Apts., Ltd., 29 S.W.3d 362, 363 (Tex. App.—Beaumont 2000, pet. dism’d w.o.j.).
Propriety of Eviction
In numerous related issues, appellant contends the trial court erred by rendering judgment on the jury verdict in favor of Irvington Village. Essentially, he argues that the eviction was unlawful because (1) he was not given access to his resident file, (2) he was not given a grievance hearing, (3) the excess utility charges were impermissible, and (4) the eviction process was an attempt to violate his First Amendment right to free speech. We construe these issues as being a challenge to the sufficiency of the evidence to support the jury’s findings that appellant breached the lease and that his breach was unexcused.
The record, however, is insufficient for this Court to review the sufficiency of the evidence. On September 25, 2002, this Court received and filed a statement by the court reporter that she did not file the reporter’s record because of nonpayment by appellant. Accordingly, on October 21, 2002, this Court ordered as follows:
Appellant having failed to pay for the reporter’s record is advised that we will proceed and consider this appeal based on the clerk’s record and briefs alone. See Tex. R. App. P. 37.3(c).
There being no reporter’s record of the jury trial in this case, we must presume there was evidence to support the findings of the jury and the trial court’s judgment rendered thereon. Bryant v. United Shortline, Inc., 972 S.W.2d 26, 31 (Tex. 1998); Mays v. Pierce, 281 S.W.2d 79, 82 (Tex. 1955).
Accordingly, we overrule appellant’s third issue.
Conclusion
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.