Russell Hernandez v. Miguel Espinoza

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-26-00060-CV

Russell HERNANDEZ,
Appellant

v.

Miguel ESPINOZA,
Appellee

From the County Court at Law No. 10, Bexar County, Texas
Trial Court No. 2025CV10617
Honorable Cesar Garcia, Judge Presiding

PER CURIAM

Sitting: Lori Massey Brissette, Justice
Adrian A. Spears II, Justice
H. Todd McCray, Justice

Delivered and Filed: June 24, 2026

VACATED AND DISMISSED

In this forcible detainer case, appellant appeals the trial court’s judgment, which awarded

possession of the real property to appellee. Included in the clerk’s record on appeal is the trial

court’s judgment and a writ of possession. The record does not show that appellant filed a

supersedeas bond to suspend the judgment. The record includes a sheriff’s return, indicating the

writ of possession has been executed and possession delivered to appellee.
04-26-00060-CV

We have a duty to examine our own jurisdiction. Guillen v. U.S. Bank, N.A., 494 S.W.3d

861, 865 (Tex. App.—Houston [14th Dist.] 2016, no pet.). We lack jurisdiction to decide moot

appeals. Briones v. Brazos Bend Villa Apts., 438 S.W.3d 808, 812 (Tex. App.—Houston [14th

Dist.] 2014, no pet.). A case becomes moot if, at any stage of the proceedings, a controversy ceases

to exist between the parties. See Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782,

787 (Tex. 2006). The only issue in a forcible detainer action is the right to actual possession of the

property. See id. at 785; TEX. R. CIV. P. 510.3(e); see also TEX. PROP. CODE §§ 24.001–.002.

“When a tenant is no longer in possession of the property and has not superseded the judgment of

possession, [his] appeal is moot unless: (1) []he timely and clearly expressed an intent to exercise

the right of appeal, and (2) appellate relief is not futile.” Stewart v. Fiesta City Realtors, No. 04-

17-00839-CV, 2018 WL 4760151, at *1 (Tex. App.—San Antonio Oct. 3, 2018, no pet.) (mem.

op.). “Appellate relief is not futile if the tenant holds and asserts ‘a potentially meritorious claim

of right to current, actual possession’ of the property.” Id. (quoting Marshall, 198 S.W.3d at 787)

(emphasis in original).

Because the record shows appellant did not pay a supersedeas bond to stay execution of

the judgment and the writ of possession was subsequently executed, this appeal may be moot. See

Marshall, 198 S.W.3d at 787. We therefore ordered appellant to show cause in writing no later

than May 5, 2026, why this appeal should not be dismissed for lack of jurisdiction. See TEX. R.

APP. P. 42.3(a), 43.2(f), 44.3.

Appellant did not file a response. Accordingly, we vacate the trial court’s judgment and

dismiss the case as moot. See Marshall, 198 S.W.3d at 786–87.

PER CURIAM

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