Opinion issued August 12, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00237-CV

———————————

RUBEN GARCIA AND JOSE GARCIA, Appellants

V.

JAVIER E. PERRETT, Appellee

On Appeal from County Civil Court at Law No. 3

Harris County, Texas

Trial Court Case No. 1025209

MEMORANDUM OPINION

Appellants, Ruben Garcia and Jose Garcia (the “Garcias”), challenge the 

trial court’s judgment of possession of real property in favor appellee, Javier E. 

Perrett, in Perrett’s forcible-detainer action against them. In two issues, the 

Garcias contend that the evidence is legally and factually insufficient to support the 
2

trial court’s finding that they committed a forcible detainer of the real property and 

the sale of the property to Perrett should be set aside.

We affirm.

Background1

Perrett filed, in a Harris County justice court, a sworn complaint for eviction, 

seeking to evict the Garcias and all occupants from a home at 1802 Dominic Lane 

in Sonoma Ranch, a subdivision located in Houston. In his complaint, Perrett 

identified himself as the owner of the property, having purchased it at an execution

sale foreclosing on a lien held by the Sonoma Ranch Homeowner’s Association

(the “Association”). Perrett asserted that he delivered “in person” to the Garcias a 

written notice to vacate and demand for possession of the property. The justice 

court entered a judgment of possession in favor of Perrett, and the Garcias

appealed to the county court for a trial de novo. 

At trial in the county court, Perrett, proceeding pro se, testified that he had 

purchased the property at “auction.” And the trial court admitted into evidence a 

certified copy of Perrett’s “Deed Under Execution,” which shows that he

purchased the property on June 5, 2012 for $7,000 at a public sale conducted by 

 1 The Garcias present in their appellate brief what they assert are “[f]acts not 

apparent from the record in this cause,” and they have attached various exhibits to 

their brief. However, we must hear and determine a case on the record as filed; we 

may not consider documents attached to briefs as exhibits if they are not included 

in the record. See Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.—Houston [1st 

Dist.] 1999, no pet.).
3

the Harris County Precinct 3 Constable, by virtue of a writ issued pursuant to a

judgment and decree of sale.

2

 Perrett further testified that he gave the Garcias

notice to vacate, and he referred the trial court to a “Vacate Notice Request” that he 

had submitted to the constable. The trial court responded, 

That’s [a] request. Let me look through the court file and see if it’s in 

there. If you requested the constable to do it, it might be in here. 

Sometimes the constable attaches it to the original pleadings. Okay. 

Date of the 30-day notice, 9/6/12. According to this, the 30-day 

notice was sent by the constable on 9/6/12 . . . . Owner desires 

possession of property for [sic] 30 days.3

Finally, Perrett testified that despite notice, the Garcias had refused to vacate the 

property. 

Ruben Garcia, also proceeding pro se, explained that the Association had 

sold the property because of a “problem that [he] had on a bill.” Since the sale,

however, he “paid the amount” to the Association, and it had released its lien. 

Garcia asserted, thus, Perrett was no longer entitled to possession of the property. 

The trial court concluded that Perrett’s deed was “good” and the Garcias’ 

payment to the Association after the foreclosure sale did not invalidate the effect of 

Perrett’s deed on this proceeding. Accordingly, it rendered judgment of possession 

in favor of Perrett.

 2 Sonoma Ranch Homeowner’s Ass’n, Inc. v. Ruben Garcia, No. 2011-05162, in the 

270th District Court of Harris County.

3 Only the “Vacate Notice Request” appears in the appellate record.
4

Standard of Review

In a nonjury trial, when no findings of fact or conclusions of law are filed,4

we imply that the trial court made all necessary findings to support its judgment. 

Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). When a 

reporter’s record is filed, as in this case, the implied findings are not conclusive, 

and a party may challenge both the legal and factual sufficiency of the evidence

supporting those findings. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 

789, 795 (Tex. 2002). When legal- and factual-sufficiency issues are raised, the 

applicable standards of review are the same as those applied to review jury 

findings. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). The judgment 

must be affirmed if it can be upheld on any legal theory supported by the evidence. 

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

We will sustain a legal-sufficiency or “no-evidence” challenge if the record 

shows one of the following: (1) a complete absence of evidence of a vital fact, (2) 

rules of law or evidence bar the court 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 scintilla, or (4) the evidence establishes conclusively the opposite of 

the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In 

 4 The record does not show that the Garcias filed the requisite notice of past due 

findings of fact and conclusions of law. See TEX. R. CIV. P. 297; Alpert v. Crain, 

Caton & James, P.C., 178 S.W.3d 398, 410 (Tex. App.—Houston [1st Dist.] 

2005, pet. denied).
5

conducting a legal-sufficiency review, a “court must consider evidence in the light 

most favorable to the verdict, and indulge every reasonable inference that would 

support it.” Id. at 822. The term “inference” means,

[i]n the law of evidence, a truth or proposition drawn from another 

which is supposed or admitted to be true. A process of reasoning by 

which a fact or proposition sought to be established is deduced as a 

logical consequence from other facts, or a state of facts, already 

proved . . . .

Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—

Houston [1st Dist.] 1993, writ dism’d w.o.j.) (quoting BLACK’S LAW DICTIONARY

700 (5th ed. 1979)). For a factfinder to infer a fact, “it must be able to deduce that 

fact as a logical consequence from other proven facts.” Id.

If there is more than a scintilla of evidence to support the challenged finding, 

we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs & 

Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). “[W]hen the evidence offered 

to prove a vital fact is so weak as to do no more than create a mere surmise or 

suspicion of its existence, the evidence is no more than a scintilla and, in legal 

effect, is no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 

2004). However, if the evidence at trial would enable reasonable and fair-minded 

people to differ in their conclusions, then factfinders must be allowed to do so. 

City of Keller, 168 S.W.3d at 822; see also King Ranch, Inc. v. Chapman, 118 

S.W.3d 742, 751 (Tex. 2003). “A reviewing court cannot substitute its judgment 
6

for that of the trier-of-fact, so long as the evidence falls within this zone of 

reasonable disagreement.” City of Keller, 168 S.W.3d at 822.

In conducting a factual-sufficiency review, we must consider, weigh, and 

examine all of the evidence that supports or contradicts the factfinder’s

determination. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); 

Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). In a bench 

trial, the trial court is the sole judge of the witnesses’ credibility, and it may choose 

to believe one witness over another; a reviewing court may not impose its own 

opinion to the contrary. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 

757, 761 (Tex. 2003); Howeth Invs., Inc. v. City of Hedwig Vill., 259 S.W.3d 877, 

894 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). We may set aside the 

verdict only if the evidence is so weak or the finding is so against the great weight 

and preponderance of the evidence that it is clearly wrong or manifestly unjust. 

Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

Forcible Detainer

In their first issue, the Garcias argue that the evidence is legally and 

factually insufficient to support the trial court’s finding that they committed a 

forcible detainer because they had a superior right to possess the real property and 

Perrett failed to make a timely written demand for possession of the property prior 

to filing suit.
7

A person who “purchases occupied property at a sale foreclosing a property 

owners’ association’s assessment lien must commence and prosecute a forcible . . .

detainer action . . . to recover possession of the property.” TEX. PROP. CODE ANN.

§.209.011(a) (Vernon Supp. 2013). A forcible-detainer action is intended to be a 

speedy, simple, and inexpensive method to obtain immediate possession of 

property. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 787 (Tex.

2006). It is “cumulative” of any other legal remedy that a party may have. Hong 

Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 437 (Tex. App.—Houston [1st Dist.] 

2007, no pet.). The only issue to be determined in a forcible-detainer action is 

which party is entitled to immediate possession of the real property at issue, and 

the merits of whether a party has title shall not be adjudicated. See TEX. R. CIV. P.

510.3(e); Marshall, 198 S.W.3d at 787. 

To prevail in his forcible-detainer action, Perrett had to show that (1) he was 

the owner of the property at issue, (2) the Garcias were occupants of the property 

at the time of foreclosure, (3) the foreclosure was of a lien superior to the Garcias’

right to possession, (4) Perrett made a sufficient written demand for possession, 

and (5) the Garcias refused to vacate. See TEX. PROP. CODE ANN. § 24.002 

(Vernon 2000); Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 445 

(Tex. App.—Houston [1st Dist.] 2006, pet. denied). 
8

Regarding his ownership of the real property, Perrett, as the purchaser, was 

not required to prove title, but only to show sufficient evidence of ownership to 

demonstrate a superior right to immediate possession. See Murphy, 199 S.W.3d at 

446. Perrett testified that he purchased the real property at auction, and the county

court admitted into evidence a certified copy of his “Deed Under Execution,” 

which shows that he purchased the property at a public sale conducted by the 

Harris County Precinct 3 Constable by virtue of a writ issued pursuant to the 

judgment and decree of sale entered against Ruben Garcia in Sonoma Ranch 

Homeowner’s Association, Inc. v. Ruben Garcia, No. 2011-05162, in the 270th 

District Court of Harris County. Perrett further testified, and it is undisputed, that 

the Garcias occupied the property at the time of foreclosure, and they refused to 

vacate. See Murphy, 199 S.W.3d at 445. “Generally, an occupant of the property 

holding over after execution of a deed is considered a permissive tenant whose 

right to possession is inferior to that of the party holding title.” Id. (citing Tex–Wis 

Co. v. Johnson, 534 S.W.2d 895, 899 (Tex. 1976)). 

Because it is undisputed that Perrett provided the trial court with a 

foreclosure sale deed, which, on its face, purports to transfer the property to him,

and the foreclosure was of a lien superior to the Garcias’ right to possession, the 

evidence demonstrates Perrett’s superior right to immediate possession. See id. at 

445–47 (holding deed obtained at foreclosure sale established ownership in 
9

forcible-detainer action); see also Wells Fargo Bank, N.A. v. Ezell, 410 S.W.3d 

919, 922 (Tex. App.—El Paso 2013, no pet.) (same); Villalon v. Bank One, 176 

S.W.3d 66, 71 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (holding 

purchaser established ownership of property by virtue of deed following 

foreclosure sale); Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.—Houston 

[14th Dist.] 1993, no writ) (holding uncontroverted testimony and execution sale 

deed constituted evidence of superior right to possession).

The Garcias argue that “at the time Perrett filed this forcible detainer action

. . . , he did not have a superior right to possession of the property because [Ruben 

Garcia] had already begun to exercise [his] right to redeem the property.”

A residential-property owner or lienholder of record “may redeem” property 

sold at a sale foreclosing on a property association’s assessment lien “not later than 

the 180th day after the date the association mails written notice of the sale to the 

owner and the lienholder.” TEX. PROP. CODE ANN. §.209.011(b) (Vernon Supp. 

2013). To redeem property purchased at a foreclosure sale by a person other than 

the property owners’ association, the owner or lienholder must pay the association 

all amounts due at the time of the foreclosure sale, “less the foreclosure sales price 

received by the association from the purchaser”; reimburse the purchaser the price 

he paid at the foreclosure sale; and pay any new assessments, fees, and costs. Id.

§ 209.011(e). “If a lot owner or lienholder redeems the property under this section, 
10

the purchaser of the property at foreclosure shall immediately execute and deliver 

to the redeeming party a deed transferring the property to the lot owner.” Id.

§ 209.011(f). “If a purchaser fails to comply with this section, the lot owner or 

lienholder may file an action against the purchaser and may recover reasonable 

attorney’s fees from the purchaser if the lot owner or the lienholder is the 

prevailing party in the action.” Id. “If a lot owner makes partial payment of 

amounts due the association at any time before the redemption period expires but 

fails to pay all amounts necessary to redeem the property before the redemption 

period expires, the association shall refund any partial payments to the lot owner

. . . .” Id. §.209.011(l).

Here, the Garcias assert that they had taken the “first step toward redemption 

by paying the amounts due to [the Association] and obtaining a release of lien.” 

The clerk’s record contains the Association’s lien release, which is dated August 

21, 2012 and shows that it was recorded in the county’s real property records on 

September 4, 2012. However, the lien release does not reflect what sums were 

paid or by whom.5

 

Even if we were to conclude that the Association’s lien release constitutes

evidence that the Garcias paid the Association in accordance with the statute, the 

 5 We cannot discern whether the Association released its lien because Perrett 

satisfied the delinquent assessments through his purchase at the foreclosure sale; 

the Garcias paid their delinquent assessments, resulting in the Association having 

been paid twice; or the Garcias paid a deficiency that remained after the sale.
11

Garcias do not assert, and there is nothing in the record that shows, that they paid 

Perrett. See id. § 209.011(e). Rather, they make only a bare assertion for the first 

time on appeal that they attempted to pay Perrett. Thus, the Garcias have not 

demonstrated that the trial court erred in finding that Perrett demonstrated a 

superior right to possession of the real property. 

Moreover, any defects in the foreclosure process or with title to the property 

following foreclosure may not be considered in a forcible-detainer action, but must

be pursued in a separate suit in the district court for wrongful foreclosure or to set 

aside the deed. See TEX. R. CIV. P. 510.3(e); Marshall, 198 S.W.3d at 787; 

Salaymeh v. Plaza Centro, LLC, 264 S.W.3d 431, 435–36 (Tex. App.—Houston 

[14th Dist.] 2008, no pet.); Villalon, 176 S.W.3d at 70–71 (holding because 

forcible-detainer action not exclusive, but cumulative, “the displaced party is 

entitled to bring a separate suit in the district court to determine the question of 

title”); see also Rice v. Pinney, 51 S.W.3d 705, 708–09 (Tex. App.—Dallas 2001, 

no pet.) (holding county courts are without jurisdiction to adjudicate title in de 

novo trial of forcible-detainer action from justice court). “Judgment of possession 

in a forcible detainer action is not intended to be a final determination of whether 

the eviction is wrongful; rather, it is a determination of the right to immediate 

possession.” Marshall, 198 S.W.3d at 787. Title issues must be brought in a 

separate suit in district court, even if such action “involves adjudication of matters 
12

that could result in a different determination of possession from the decision 

rendered in the forcible detainer suit.” Salaymeh, 264 S.W.3d at 436. 

The Garcias further assert that Perrett failed to make a written demand for 

possession and he “produced no evidence” of any notice to vacate. A written 

demand for possession must be made by a person entitled to possession of the 

property and it must comply with the requirements for “notice to vacate” in Texas 

Property Code section 24.005. TEX. PROP. CODE ANN. §.24.002(b) (Vernon 2000), 

§.24.005 (Vernon Supp. 2013). Section 24.005 required Perrett, before filing a 

forcible-detainer action, to give the Garcias “at least three days’ written notice to 

vacate.” Id. §.24.005(b). “The notice to vacate shall be given in person or by mail 

at the premises in question.” Id. §.24.005(f). Notice by mail “may be by regular 

mail” or by certified mail, return receipt requested. Id.

In his sworn petition filed in the justice court on October 5, 2012, Perrett 

asserted that he made “demand for possession” and gave the Garcias “[w]ritten 

notice to vacate” by “delivery in person” on September 6, 2012. The record 

contains Perrett’s “Vacate Notice Request,” sent on September 6, 2012 to the 

Harris County Constable by facsimile, asking that thirty days’ notice to vacate be 

issued to “all occupants” at 1802 Dominic Lane. And it shows that it was received 

by “HCCO Precinct 3” on September 6, 2012. The actual notice to vacate and 

return receipt, if any, are not in the appellate record. See id. (allowing notice “by 
13

regular mail”). However, the trial court indicated on the record that its file 

contained a “30-day notice . . . sent by the constable on 9/6/12.” A trial court may 

take judicial notice of the contents of its file. See TEX. R. EVID. 201 (providing 

trial court may take judicial notice of matters generally known or easily proven and 

cannot reasonably be disputed); Hunt Const. Grp., Inc. v. Konecny, 290 S.W.3d 

238, 244 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); see also In re 

M.C.H., No. 01-02-00686-CV, 2003 WL 21470347, at *2 (Tex. App.—Houston 

[1st Dist.] June 26, 2003, no pet.) (mem. op.) (holding reporter’s record showing 

trial court took judicial notice of constable’s return constituted sufficient evidence 

notice was given). The Garcias did not object to the trial court’s action, and they 

do not assert that they did not receive notice. 

Viewing the evidence in the light most favorable to the trial court’s 

judgment and indulging every reasonable inference that would support it, we 

conclude that there is evidence to support the trial court’s implied findings that 

Perrett demonstrated a superior right to immediate possession of the property,

Perrett made written demand for possession, and the Garcias refused to vacate. We 

further conclude, after viewing all of the evidence neutrally, that the evidence 

supporting these findings is not so weak as to render the trial court’s judgment

clearly wrong or manifestly unjust. Accordingly, we hold that the evidence is 
14

legally and factually sufficient to support the trial court’s judgment that the Garcias

committed a forcible detainer.

We overrule the Garcias’ first issue.

Underlying Judgment

In their second issue, the Garcias argue that the “sale of the property should 

be set aside” because the Association did not provide proper notice “prior to 

proceeding with their action to obtain the underlying judgment.” As noted above, 

any defects in the underlying foreclosure process may not be considered in a 

forcible-detainer action. See TEX. R. CIV. P. 510.3(e); Marshall, 198 S.W.3d at 

787; Salaymeh, LLC, 264 S.W.3d at 435–36; Villalon, 176 S.W.3d at 70–71.

We overrule the Garcias’ second issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice 

Panel consists of Justices Jennings, Higley, and Sharp.