Frank Lucio v. Rachel Armendarez

Opinion filed December 18, 2025

In The

Eleventh Court of Appeals
__________

No. 11-24-00125- CV
__________

FRANK LUCIO, Appellant
V.
RACHEL ARMENDAREZ, Appellee

On Appeal from the County Court at Law No. 1
Tarrant County, Texas
Trial Court Cause No. 2023-007136-1

MEMORANDUM OPINION
A forcible detainer action was initiated by Appellee, Rachel Armendarez, in
which she sought possession of the subject property resided in by Appellant, Frank
Lucio, “and all occupants.”1 The justice court awarded possession of the property

1
Pursuant to Misc. Docket Order No. 24-9013 issued by the Texas Supreme Court on March 21,
2024, this appeal was transferred to us from the Second Court of Appeals. Therefore, as the transferee
court, we must decide the issues raised in this appeal in accordance with the precedent of the Second Court
of Appeals if its precedent conflicts with ours. See TEX. R. APP. P. 41.3.
to Armendarez and, in the de novo trial on appeal from the justice court’s decision,
the county court at law also awarded possession to Armendarez. See TEX. PROP.
CODE ANN. § 24.004(a) (West Supp. 2025); TEX. R. CIV. P. 510.9, 510.10(c).
In his first and second issues on appeal, Lucio contends that the trial court
could not properly proceed in a forcible detainer suit because Armendarez failed to
provide him with the statutorily required pre-suit demand notice and Armendarez’s
“pleading then on file was not a valid pleading on which judgment could have been
granted.” See PROP. §§ 24.002 (West 2023), 24.005. In his third issue, Lucio claims
that there was insufficient evidence of Armendarez’s superior right to possession of
the property. In his fourth issue, Lucio argues that the trial court erred in periodically
releasing funds deposited by him in the registry of the court in lieu of a supersedeas
bond. We affirm in part and reverse in part.
I. Factual and Procedural History
Lucio and Armendarez are half-siblings, and the subject property belonged to
their late mother, Mary Dolores Lucio. In 2019, Mary Dolores executed, in the
presence of witnesses, her Last Will and Testament. The will appointed Armendarez
as the estate’s independent executrix, and it bequeathed the subject property to
Armendarez following Mary Dolores’s death. Mary Dolores died in 2021.
Armendarez was appointed executrix, and the will was probated in trial court cause
no. 2022-PR01615-1. In March 2023, Armendarez in her role as independent
executrix, issued to herself as the will’s stated beneficiary, a special warranty deed
to the subject property, a copy of which was sent to Lucio via certified mail.
Armendarez thereafter attempted to execute a lease agreement with Lucio, but Lucio
declined and no money was ever exchanged.
On May 9, 2023, Armendarez sent Lucio a notice to vacate the premises. He
refused. On September 5, 2023, Armendarez filed an eviction suit in the justice
court seeking possession of the property. Armendarez’s claim of superior right to
2
possession of the property was based on the special warranty deed granting her
record title ownership in fee simple. The justice court issued a judgment in
Armendarez’s favor on September 22, 2023, from which Lucio appealed to the
county court at law.
On November 7, 2023, while the forcible detainer appeal was pending in the
county court at law, Lucio filed a “Motion to Revoke a [Fraudulent] Last Will and
Testament” in the estate probate proceeding. Lucio then admitted a copy of the
motion to revoke as an exhibit in the de novo trial. The attachments to his motion
include: (1) the will, which was attested to by two witnesses under oath and left all
property to Armendarez, and (2) the first page of the probate court’s order admitting
the will to probate and authorizing letters testamentary, which reflects a filing date
of August 5, 2022.
During the de novo trial, Lucio notified the county court at law that he had
filed a challenge to the will, which he argued precluded the county court’s
jurisdiction. Lucio additionally argued that even though Armendarez had previously
provided a notice to vacate, a new notice was required because the Texas Property
Code “require[d] that there be a new notice for each forcible [detainer] proceeding.”
The trial court disagreed, concluding that “as long as a proper amount of time has
passed that’s required by the [P]roperty [C]ode, . . . the notice will suffice.” In
support of Armendarez’s claim for superior right of possession, the special warranty
deed and Armendarez’s notice to vacate were admitted into evidence.
At the conclusion of the trial, the trial court found in favor of Armendarez
and, at Lucio’s request for “a workable bond,” set a supersedeas bond of $500 per
month. A written judgment followed on December 19, 2023.
On January 18, 2024, Lucio filed a motion for new trial, arguing that
Armendarez had failed to provide the proper notice and demand for possession, and

3
that there was a defect of title on the face of the public record. The trial court denied
Lucio’s motion.
II. Statutory Requirements
Lucio’s first and second issues relate to the trial court’s ability to “hear[] the
case” and render judgment. Lucio first argues, as he did in his motion for new trial,
that there was no “statutorily sufficient pre-suit demand for possession.” Lucio
argues that Armendarez was required to issue a new notice to vacate and demand for
possession after “a take nothing judgment for Armendarez” was entered in a prior
eviction suit in the justice court regarding the same property. Lucio further
maintains that Armendarez cannot have made a proper pre-suit notice and demand
for possession as required by Sections 24.002 and 24.005 of the Texas Property Code
because Armendarez cannot claim in good faith to own the real property in question.
Chapter 24 of the Texas Property Code grants justice courts jurisdiction in
eviction suits, which includes suits for forcible entry and detainer and forcible
detainer. See PROP. § 24.004(a); Westwood Motorcars, LLC v. Virtuolotry, LLC,
689 S.W.3d 879, 883 (Tex. 2024). Forcible detainer actions are intended to be a
summary, speedy, and inexpensive remedy to resolve the question of entitlement to
the immediate possession of the property. Westwood Motorcars, 689 S.W.3d at 883.
As a result, however, “eviction suits are limited in scope and effect, with the ‘sole
focus’ being ‘the right to immediate possession of [the] real property.’” Id. (quoting
Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 478 (Tex. 2017)); see TEX. R.
CIV. P. 510.3(e) (“The court must adjudicate the right to actual possession and not
title.”). A party may appeal the justice court’s judgment to the county court. TEX. R.
CIV. P. 510.9, 510.10; Westwood Motorcars, 689 S.W.3d at 881.
Because forcible detainer is a statutory cause of action under the Texas
Property Code, a plaintiff must strictly comply with its requirements. See Perry v.
Wichita Falls Hous. Auth., 646 S.W.3d 908, 912 (Tex. App.—Fort Worth 2022, no
4
pet.); see generally PROP. §§ 24.002–.0051. One such requirement is that a plaintiff
must make a written demand for possession in compliance with Section 24.005’s
notice-to-vacate requirements. PROP. §§ 24.002(b), 24.005(b), (h). Relevant here,
if the occupant is a tenant at will or by sufferance, the plaintiff must give the tenant
at least three days’ written notice to vacate before the plaintiff files a forcible
detainer suit. Id. § 24.005(b).
To prevail in a forceable detainer action, a plaintiff must also present
sufficient evidence to demonstrate a superior right to immediate possession. Lua v.
Cap. Plus Fin., LLC, 646 S.W.3d 622, 632 (Tex. App.—Dallas 2022, pet. denied);
Yarbrough v. Household Fin. Corp. III, 455 S.W.3d 277, 280 (Tex. App.—Houston
[14th Dist.] 2015, no pet.). That is, a plaintiff must show that: (1) the plaintiff owned
the property; (2) the person who refuses to surrender possession “is either a tenant
at will, tenant at sufferance, or a tenant or subtenant willfully holding over after the
termination of the tenant’s right of possession”; (3) the plaintiff gave proper notice
to vacate the premises; and (4) the person refused to vacate the premises. Shields
Ltd. P’ship, 526 S.W.3d at 478 (citing PROP. CODE § 24.002); Lua, 646 S.W.3d at
632.
The parties do not dispute that the notice to vacate was properly addressed
and sent by priority mail with prepaid postage on May 9, 2023. Lucio does not
contend that he did not receive this notice. Armendarez thereafter filed suit in
September 2023, more than three days later. See PROP. § 24.005(b); see, e.g.,
Gardner v. Morazan, No. 02-21-00251-CV, 2022 WL 1420543, at *2 (Tex. App.—
Fort Worth May 5, 2022, no pet.) (mem. op.) (concluding that an appellee had
provided appellant sufficient statutory notice before filing a forcible detainer suit
when they “provided more than three days’ notice under Section 24.005(b) of the
Property Code before they filed their suit”).

5
As we have said, as evidence of her superior right to possession, Armendarez
submitted the duly executed special warranty deed. See Jimenez v. McGeary, 542
S.W.3d 810, 815 (Tex. App.—Fort Worth 2018, pet. denied) (“The special warranty
deed in evidence established that McGeary was one of the property’s owners.”). The
written “notice to vacate” addressed to Lucio was also admitted. Thus, Armendarez
met the statutory notice requirements. See PROP. §§ 24.002–.0051.
By his secondary argument, Lucio challenges the validity of the notice’s use.
Lucio argues that the same notice was used in a prior suit involving the same
property, which precludes its use in the instant suit. Although the parties do not
dispute the existence of a prior suit and the use of the same notice in the prior suit,
the disposition of the prior suit is unknown. Lucio’s own characterization of the
prior suit’s disposition varies. Lucio claims on appeal—as he did in his original
answer—that he received a “take nothing judgment for [Armendarez] on August 24,
2023,” before Armendarez filed the instant suit in September 2023. Then, during
the de novo trial, Lucio instead referenced a “dismissal” of a prior suit utilizing the
same notice but did not state the reason for the dismissal. Armendarez, in a letter to
the county court, also claimed that a prior suit was dismissed and alleged that it was
dismissed because the petition had been untimely filed. See PROP. § 24.005
(requiring a three-day period between the written notice and the filing of a forcible
detainer suit).
Lucio nonetheless argues that the use of the notice in the prior suit precludes
its use in the instant suit and cites two cases in support. See Fed. Home Loan Mortg.
Corp. v. Pham, 449 S.W.3d 230 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(discussing the nature of forcible detainer actions and the application of res judicata);
Custer v. Wells Fargo Bank, N.A., No. 03-15-00362-CV, 2016 WL 1084165 (Tex.
App.—Austin Mar. 18, 2016, pet. dism’d w.o.j.) (mem. op.) (examining the
relationship between the notice provided and when the cause of action accrues for
6
the purpose of calculating the statute of limitations). While these two cases may
suggest that the delivery of a proper notice to vacate is a necessary step for the
accrual of a new cause of action, neither of these cases concern a prior suit of
uncertain disposition utilizing the same notice. Moreover, the Property Code does
not explicitly require a new notice to vacate when a prior forcible detainer action has
been dismissed, nor have we found caselaw addressing the question.
Nevertheless, in any matter, “[w]e cannot look outside the record in an effort
to discover relevant facts omitted by the parties; rather, we are bound to determine
this case on the record as filed.” Quorum Int’l v. Tarrant Appraisal Dist., 114
S.W.3d 568, 572 (Tex. App.—Fort Worth 2003, pet. denied); see, e.g., Hanna v.
Hanna, No. 11-15-00178-CV, 2017 WL 3194740, at *2 (Tex. App.—Eastland
July 27, 2017, no pet.) (mem. op.) (“[T]he evidence Appellant relies on to make this
assertion is not part of the appellate record, and we cannot look outside the record in
conducting our analysis.”); see generally TEX. R. APP. P. 34.1 (“The appellate record
consists of the clerk’s record and, if necessary to the appeal, the reporter’s record.”).
As discussed supra, the record as filed indicates timely written notice was served
upon Lucio in compliance with the statute. See PROP. §§ 24.002–.0051.
Accordingly, Lucio has not demonstrated that the trial court abused its discretion in
awarding possession to Armendarez on this basis.
We overrule Lucio’s first and second issues.
III. Sufficiency of the Evidence
In his third issue, Lucio challenges the sufficiency of the evidence to support
the trial court’s finding of Armendarez’s superior right to possession. Lucio argues
that the 2019 deed was not entitled to any evidentiary presumption of validity given
that (1) Armendarez’s right to possession was founded on a special warranty deed
executed March 28, 2023, by Armendarez herself, albeit in her role as the

7
independent executrix as designated by the will and (2) Lucio has challenged the
validity of that will.
Because there were no findings of fact or conclusions of law in this case, the
trial court’s finding on this element of superior right to possession is implied if there
is sufficient evidence to support it. See Gaber v. U.S. Bank Nat’l Ass’n as Tr. for
Truman 2016 SC6 Title Tr., No. 02-20-00376-CV, 2021 WL 5367851, at *4 (Tex.
App.—Fort Worth Nov. 18, 2021, pet. denied) (mem. op.) (first citing Shields Ltd.
P’ship, 526 S.W.3d at 478, 480; and then citing Onyedebelu v. Wilmington Sav.
Fund Soc’y, FSB as Tr. of Residential Credit Opportunities Tr. V-C, No. 02-20-
00239-CV, 2021 WL 4319705, at *3 (Tex. App.—Fort Worth Sept. 23, 2021, pet.
denied) (mem. op.)).
“If the reporter’s record is filed on appeal, as it was here, implied findings
may be challenged on insufficiency grounds in the same manner as jury findings or
a trial court’s express findings of fact.” Enriquez v. Cap. Plus Fin., LLC, No. 02-
19-00184-CV, 2020 WL 719441, at *3 (Tex. App.—Fort Worth Feb. 13, 2020, no
pet.) (mem. op.). In our review, we consider evidence favorable to the finding if a
reasonable factfinder could have done so, and we disregard contrary evidence unless
a reasonable factfinder could not have done so. See Shields Ltd. P’ship, 526 S.W.3d
at 480; Gaber, 2021 WL 5367851, at *4. The evidence is legally insufficient to
support the challenged finding if:
(1) the record bears no evidence of a vital fact; (2) the court is barred
by rules of law or of evidence 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 mere scintilla; or (4) the evidence conclusively
establishes the opposite of a vital fact.
Shields Ltd. P’ship, 526 S.W.3d at 480; Enriquez, 2020 WL 719441, at *3.
As noted supra, the will concerning the property was executed and attested to
by two witnesses and admitted into probate; Armendarez was named as independent

8
executrix, and letters testamentary were issued to her. Only after the special
warranty deed to the property as inherited was executed, did Armendarez initiate her
right of possession regarding the forcible detainer action. This evidence was
admitted in the forcible detainer proceeding. Although Lucio initiated a will
challenge during the pendency of the forcible detainer suit, “an eviction suit in
justice court ‘may run concurrently with another action in another court’ . . . even if
the two proceedings ‘overlap’ and ‘the other action adjudicates matters that could
result in a different determination of possession.’” Westwood Motorcars, 689
S.W.3d at 883–84 (quoting Kassim v. Carlisle Ints., Inc., 308 S.W.3d 537, 541 (Tex.
App.—Dallas 2010, no pet.)); Stedfast Baptist Church v. Fellowship of the Sword,
Inc., No. 02-21-00436-CV, 2022 WL 11485472, at *8 (Tex. App.—Fort Worth
Oct. 20, 2022, no pet.) (mem. op.). In this regard, matters relating to possession may
overlap in the two proceedings, and a justice court’s judgment in an eviction suit on
the right to immediate possession “is not . . . a final determination of the parties’
ultimate rights, the wrongfulness of the eviction, or any other question.” Westwood
Motorcars, 689 S.W.3d at 885. Thus, viewed in the light most favorable to
Armendarez, the evidence is sufficient to demonstrate Armendarez’s right to
immediate possession of the subject property irrespective of Lucio’s “motion to
revoke” the will in the separate probate proceeding. See Enriquez, 2020 WL 719441,
at *3. We overrule Lucio’s third issue.
IV. Supersedeas Bond
In his fourth issue, Lucio argues that the trial court erred in periodically
releasing funds deposited in the registry of the court by him in lieu of a supersedeas
bond. Armendarez counters that the trial court’s release of these funds was
permissible under Section 24.0053(a-4) of the Property Code.
Relevant here, a judgment debtor may supersede a judgment by posting “a
good and sufficient bond” or by “making a deposit with the trial court clerk in lieu
9
of a bond.” See TEX. R. APP. P. 24.1(a)(2), (3). Deposits in lieu of a bond must be
in an amount that is “the value of the property interest’s rent or revenue.” See id.
R. 24.1(c)(2), 24.2(a)(2)(A). If a judgment debtor deposits cash or a cashier’s check
in lieu of a supersedeas bond, the trial court clerk “must hold the deposit until the
conditions of liability” as set forth below are “extinguished”:
(1) the debtor does not perfect an appeal or the debtor’s appeal is
dismissed, and the debtor does not perform the trial court’s judgment;
(2) the debtor does not perform an adverse judgment final on appeal; or
(3) the judgment is for the recovery of an interest in real or personal
property, and the debtor does not pay the creditor the value of the
property interest’s rent or revenue during the pendency of the appeal.
Id. R. 24.1(c)(3), (d).
The combined effect of these rules is that a trial court clerk must hold the
deposit until one of the three “Conditions of Liability” set forth in Rule 24.1(d) is
satisfied, and only then may the clerk release any remaining funds in the deposit.
See id. R. 24.1(c), (d), cmt. (“Paragraph 24.1(d) provides the conditions for the
surety to honor the bond and for the deposit to be paid to the judgment creditor.”);
see also 2200 W. Alabama, Inc. v. Doc’s Delight, L.L.C., No. 01-10-00364-CV, 2011
WL 2436288, at *2 (Tex. App.—Houston [1st Dist.] June 16, 2011, no pet.) (mem.
op.) (“Because the [Rule 24.1(d)] conditions for liability have been met, [the debtor]
was entitled to the value of the unpaid rent during the pendency of the appeal, up to
the amount of the deposit.”).
The trial court’s judgment here ordered a supersedeas bond amount of $500,
payable each month while the appeal is pending. The clerk’s certificates of Lucio’s
cash deposits in lieu of a supersedeas bond appear in the record. For three
consecutive months in early 2024, following repeated postjudgment motions from
Armendarez requesting the release of funds from the registry, the trial court ordered
the funds disbursed. The disbursement occurred, however, absent the presence of

10
any of the triggering conditions set forth in Rule 24.1(d). See R. 24.1(c)(3), (d).
Therefore, the trial court erred in ordering supersedeas funds released on January 3,
2024, February 2, 2024, and March 12, 2024. See id.; In re Mittelsted, 651 S.W.3d
630, 636 (Tex. App.—Houston [14th Dist.] 2022, orig. proceeding) (concluding the
“release of supersedeas funds on deposit in the court’s registry before the conditions
of liability have been met [was] clear error”). Although Lucio also challenges orders
purportedly issued after March 2024, no such orders appear in the appellate record,
and we are unable to consider that which is not in the appellate record. See TEX. R.
APP. P. 34.1; BBVA Compass Inv. Sols., Inc. v. Brooks, 456 S.W.3d 711, 716 (Tex.
App.—Fort Worth 2015, no pet.) (“An appellate court cannot look outside the record
but is bound to determine the case on the record filed.”).
Additionally, Armendarez’s reliance on Section 24.0053 of the Property Code
as a mechanism for the release of supersedeas funds here is misplaced. See PROP.
§ 24.0053. This provision, entitled “Payment of Rent During Appeal of Eviction”
specifically states that “[t]his subsection does not require or prohibit payment of rent
into the court registry or directly to the landlord during the pendency of an appeal of
an eviction case based on grounds other than nonpayment of rent.” Id. § 24.0053(a)
(Emphasis added). In Armendarez’s eviction complaint, she left the “UNPAID
RENT AS GROUNDS FOR EVICTION” portion of the form blank, and instead,
filled out the portion below it that is entitled “HOLDOVER AS GROUNDS FOR
EVICTION.” Further, Section 24.0053(a-4) specifically requires a sworn motion
and hearing before a plaintiff “may withdraw money deposited in the court registry
before the final determination in the case.” Id. § 24.0053(a-4) (Emphasis added).
This instant suit is not based on grounds of nonpayment of rent, and irrespective of
that fact, this appeal does not concern monies deposited into the registry before the
final determination of a case. See Gloston v. Ellison, 651 S.W.3d 637, 642 (Tex.
App.—Houston [14th Dist.] 2022, no pet.) (distinguishing between a supersedeas
11
bond paid into the registry from funds defined under Texas law as payment for a
rental period under Section 24.0053).
Therefore, we conclude the trial court erred in ordering the distribution of
supersedeas deposits to Armendarez. We sustain Lucio’s issue in part, with respect
to the trial court’s January 3, 2024, February 2, 2024, and March 12, 2024 orders,
but deny the issue with respect to any orders following March 12, 2024, which do
not appear in the appellate record.
V. This Court’s Ruling
We affirm the judgment of the trial court and reverse the trial court’s
January 3, 2024, February 2, 2024, and March 12, 2024 orders and remand for
further proceedings consistent with this opinion.

W. BRUCE WILLIAMS
JUSTICE

December 18, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

12