text:
    Alice C. GUERRERO f/k/a Alice C. Guerra, Appellant, v. Daniel E. GUERRA, Appellee.
    No. 04-04-00097-CV.
    Court of Appeals of Texas, San Antonio.
    April 20, 2005.

      Gary A. Beahm, Gary A. Beahm, P.C., San Antonio, for appellant.
    James N. Higdon, Higdon, Hardy & Zu-flacht, L.L.P., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice. .
   OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

Alice C. Guerrero appeals the trial court’s order clarifying and enforcing the division of her retirement benefits set forth in the final divorce decree entered January 17, 1984. In her sole issue, Guerrero asserts the trial court erred in awarding her ex-husband, Daniel E. Guerra, a portion of her retirement benefits which was earned after the divorce. We disagree, and affirm the judgment of the trial court.

Factual And ProceduRal History

A final decree of divorce was entered on January 17, 1984, dissolving the sixteen-year marriage of Alice Guerrero and Daniel Guerra and dividing their marital estate. Each spouse was awarded a share of the other spouse’s retirement benefits to be calculated according to a formula set forth in the agreed divorce decree. On February 28, 2001, Guerrero filed a motion seeking clarification of the decree with respect to the exact amount that Guerra is entitled to receive of her retirement benefits from SBC Communications, Inc., fik/a Southwestern Bell Telephone Company (“SBC”). An evidentiary hearing was held on January 30, 2002, at which Guerrero and Guerra testified about their intent, and Douglas Kruppa, a certified public accountant, testified about the valuation of Guerrero’s SBC retirement benefits, which are comprised of a pension plan, a 401k savings plan and a discontinued profit sharing plan (the “PAYSOP”). The trial court took the matter under advisement. On October 21, 2003, Guerra filed a motion to enter a clarification order and qualified domestic relations order (“QDRO”) dividing and assigning his share of Guerrero’s retirement benefits. On November 18, 2003, the court entered an “Order Clarifying and Enforcing Prior Order” in which it found the decree’s retirement formula was ambiguous, and’ awarded Guerra a 24.69% share of the total SBC retirement benefits received by Guerrero valued at the time of retirement. The trial court signed written findings of fact and conclusions of law on January 7, 2004. Guerrero timely appealed.

Analysis

On appeal, Guerrero argues the trial court erred in awarding Guerra a share of her SBC retirement benefits which she earned after the parties’ divorce. Guerrero does not challenge the court’s ruling that Guerra is entitled to a 24.69% share, only its use of the date of her retirement as the valuation date for the retirement benefits. She argues the retirement benefits should be valued as of the date of divorce, because to do otherwise includes post-divorce increases and therefore invades her separate property. Guerra responds that the parties are bound by the agreed divorce decree, and that the decree requires the retirement benefits to be valued as of the date of retirement, which necessarily includes any post-divorce increases. Both parties argue that the language of the divorce decree supports their interpretation. The trial court found the decree was ambiguous as to the division of retirement benefits, and entered a clarifying order awarding Guerra a share of the total retirement benefits valued on the date of retirement.

The divorce decree provides in pertinent part,

the Court finds that Respondent [Guerra] has earned certain retirement benefits arising out of the past employment of the Petitioner [Guerrero] with Southwestern Bell Telephone Company. Therefore, the Court ORDERS, as part of the partition of the estate of the parties, Petitioner to transfer and assign to Respondent a percentage based on the formula below of any and all sums, whether accrued or unaccrued, matured or unmatured, vested or otherwise, together with all increases thereon, and any other rights related thereto, IF, AS, and WHEN paid by Southwestern Bell Telephone Company as pension, retirement, nondisability, or other benefits existing by virtue of Petitioner’s past association with Southwestern Bell Telephone Company.
IT IS FURTHER ORDERED, that said partition shall be in accordance with the approved ‘after-acquired’ property theory concerning division of pension and retirement benefits.

The decree then sets forth a formula which provides that Guerra’s share is to be calculated by (1) dividing the number of months the parties were married while Guerrero was employed at SBC by the number of months Guerrero was employed by SBC, (2) multiplying that quotient by the retirement pay received by Guerrero, and (3) then multiplying that product by 50%. The decree does not specify whether the fraction’s denominator is the number of months employed by SBC at the time of retirement, or at the time of divorce. See Taggart v. Taggart, 552 S.W.2d 422, 424 (Tex.1977) (establishing a fraction-based formula for determining the community interest in retirement benefits and the non-employee spouse’s share of that interest measured at the time of retirement); but see Berry v. Berry, 647 S.W.2d 945, 947 (Tex.1983) (altering the Taggart formula by changing the fraction’s denominator to the number of months employed under the plan at the time of divorce). The formula set forth in the decree also provides for an adjustment to the amount of retirement pay received by Guerrero based on the “after-acquired property theory,” but does not define the theory or how it is to be applied in calculating the benefits.

In its findings of fact and conclusions of law, the trial court found there is an ambiguity in the terms of the formula used to calculate Guerra’s share of the SBC retirement benefits. The court clarified the formula by calculating Guerra’s share as “24.69% of the totality of the SBC retirement pay received by [Guerrero] in whatever form received by her,” and valuing the retirement benefits as of the date of receipt, i.e., retirement. The court found that Guerrero had received the following sums from the three SBC retirement vehicles: $508,061.54 in a lump sum distribution from the pension plan upon her retirement on November 16, 2000; $129,538.10 which remained in the 401k plan as of August 21, 2003; and $3,028.46 in stock interests which remained in the PAYSOP as of July 31, 2003. The court calculated Guerra’s 24.69% interest in the total retirement benefits as follows: $125,440.39 from the pension plan; $31,982.96 from the 401k plan; and $747.73 from the PAYSOP. The court ordered Guerrero to pay Guerra the sum of $163,141.24, representing his 24.69% share of the pension plan plus prejudgment interest, and to transfer a 24.69% interest-in the 401k plan and PAY-SOP to Guerra. The court’s findings reflect that Guerrero signed a QDRO effecting the transfer.

While a court may not modify a property division in a divorce decree, if it is ambiguous, the trial court may enter a clarifying order to enforce compliance with the original division of property. Tex. Fam.Code Ann. § 9.008(b) (Vernon 1998); see Pearcy v. Pearcy, 884 S.W.2d 512, 514 (Tex.App.-San Antonio 1994, no writ). Whether a decree is ambiguous is a question of law subject to de novo review. Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex.2003); Bishop v. Bishop, 74 S.W.3d 877, 880 (Tex.App.-San Antonio 2002, no pet.). Agreed judgments are interpreted according to the law of contracts. Allen v. Allen, 717 S.W.2d 311, 313 (Tex.1986) (marital property agreement incorporated into a final divorce decree is interpreted as a contract). A contract is ambiguous when its meaning is uncertain or doubtful, or it is reasonably susceptible to more than one meaning. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983). The court determines whether a contract is ambiguous by looking at the contract as a whole in light of the circumstances surrounding formation of the contract. Id. Merely because the parties argue different interpretations does not make an agreement ambiguous. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132,134 (Tex.1994).

If we conclude the agreed decree, when read as a whole, is unambiguous with respect to the division of the retirement benefits, we must enforce the decree according to its literal language even if the decree improperly divided the benefits. Baxter v. Buddie, 794 S.W.2d 761, 762-63 (Tex.1990); Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex.2003) (where no direct appeal was taken, divorce decree was res judicata). However, if we conclude the decree is ambiguous, that is, subject to more than one reasonable interpretation, then the decree must be construed to give effect to the parties’ true intent as expressed in the written instrument. Forbau, 876 S.W.2d at 133. When a contract is ambiguous, the parties’ intent is a question of fact. Coker, 650 S.W.2d at 393-94; Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). The parties’ intent is determined by reviewing the language of the decree as a whole, giving effect to each part of the decree. Forbau, 876 S.W.2d at 133; Coker, 650 S.W.2d at 393. “No one phrase, sentence or section [of a contract] should be isolated from its setting and considered apart from the other provisions.” Forbau, 876 S.W.2d at 134 (quoting Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579, 583 (1938)). When a contract is ambiguous, parol evidence may be considered for the purpose of ascertaining the parties’ intention at the time the contract was entered. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). In addition, the parties’ post-divorce conduct may be considered in determining the parties’ intent. Consol. Eng’g Co. v. S. Steel Co., 699 S.W.2d 188, 192-93 (Tex.1985).

We must first determine whether the decree’s division of Guerrero’s retirement benefits is reasonably susceptible to more than one meaning, and is thus ambiguous. Based on the contradictory language regarding valuation of the retirement benefits, we hold that it is ambiguous. The decree awards Guerra a share of “any and all [retirement] sums,” “whether accrued or unaccrued, matured or unmatured, vested or otherwise,” “together with all increases thereon,” “if, as and when paid” by SBC to Guerrero, which suggests the retirement benefits are to be valued on the date of Guerrero’s retirement. The decree also provides, however, that the amount of retirement pay received is to be adjusted according to the “after-acquired property” theory, which suggests the benefits are to be valued on the date of divorce. Application of the “after-acquired property adjustment” to the formula is described in the text of the decree as “the retirement pay received proportioned thereon the number of months the parties were married while Petitioner was employed by Southwestern Bell Telephone Company in accordance with the ‘after-acquired’ property theory....”

The decree does not define the “after-acquired property” theory or clearly explain its application. Guerra states in his brief that he has been unable to locate any cases that define or use the term “after-acquired property” in the context of a division of retirement benefits. In her brief, Guerrero argues the phrase “after acquired property” is “a word of art which traditionally holds [th]at property accrued after a date of divorce earned by a party as compensation [for] services rendered after a divorce [is] not part of the estate of the parties subject to division on divorce.” The only authority Guerrero cites for this interpretation is Berry. In Berry, the Supreme Court valued the retirement benefits at the time of divorce, rather than the time of retirement, to avoid invading the employee spouse’s separate property; however, the Court did not use the phrase “after-acquired property” or refer to this change to the Taggart formula as being based on an “after-acquired property theory.” See Berry, 647 S.W.2d at 947. Moreover, the divorce decree in Berry was silent as to the division of retirement benefits, whereas here there was an agreed division of retirement benefits that was incorporated in the final divorce decree. We conclude that due to the inclusion of an undefined and unclear “after-acquired property theory” adjustment, the decree is subject to more than one reasonable interpretation regarding valuation of the SBC retirement benefits, and is therefore ambiguous. Therefore, the trial court appropriately entered a clarifying order. See Pearcy, 884 S.W.2d at 514; Cohen v. Cohen, 663 S.W.2d 617, 621 (Tex.App.-Houston [1st Dist.] 1983, writ ref'd n.r.e.) (trial court properly entered clarifying order where provision of property settlement in divorce decree failed to define phrase pertaining to future adjustment, making provision susceptible to two meanings and thus, ambiguous).

Having determined the decree’s division of retirement benefits is ambiguous, we must next consider whether the trial court’s interpretation of the provision is supported by the record. When a contract is ambiguous, its interpretation is a question of fact for the trial judge, aided by extrinsic evidence, if necessary. Coker, 650 S.W.2d at 393-94; Cohen, 663 S.W.2d at 621. As the fact finder, the trial judge determines the weight to be given any testimony and resolves conflicts in the evidence. Chavez v. Chavez, 148 S.W.3d 449, 457 (Tex.App.-El Paso 2004, no pet.). When the trial court makes specific findings of fact, and a statement of facts is filed, we will sustain the court’s fact findings as legally sufficient if there is any probative evidence in the record to support them. Cohen, 663 S.W.2d at 621; see also Chavez, 148 S.W.3d at 457. We will sustain the court’s fact findings on factual sufficiency grounds unless they are so contrary to the overwhelming weight of the evidence as to be manifestly wrong. Chavez, 148 S.W.3d at 457.

Here, the trial court entered written findings of fact stating that Guerra’s share of the SBC retirement pay is “24.69 % of the totality of the SBC retirement pay received by ... Guerrero in whatever form received by her.” The court then calculated Guerra’s share as 24.69% of the total benefit amounts received by Guerrero upon her retirement. In this case, there is probative evidence in the record to support the court’s fact findings in the form of Guerra’s testimony as to his understanding of the decree, and the language of the decree itself.

At the hearing, Guerra testified that he understood the decree to clearly award him a 24.69% share of the total retirement benefits received by Guerrero, including any post-divorce increases. He stated that he did not understand the meaning of the “after-acquired property adjustment theory” referenced in the decree. Guerrero testified that she was employed by SBC for sixteen years following the divorce, and retired on November 15, 2000. She stated her belief that Guerra’s share of her retirement was limited to 24.69% of the value of the retirement benefits as of the date of divorce, although she too stated she did not know what the “after-acquired property theory adjustment” meant. Kruppa, the accountant testified that the value of Guerrero’s pension plan at the time of divorce was $43,454.81. Kruppa stated he was not familiar with the “after-acquired property theory,” and could not calculate Guerra’s share under that theory. .

On appeal, both parties highlight different phrases within the decree to support their opposing interpretations. Guerrero argues the decree unambiguously provides that the retirement benefits are to be valued at the date of divorce, and that any post-divorce increases are excluded, based on her interpretation of the “after acquired property” adjustment. As discussed above, she has not presented any authority for her interpretation of that phrase, it is undefined and unclear in the decree, and both parties testified they do not know what the phrase means. Guerrero also stresses the decree’s statement that Guerra’s share arises out of her “past employment” and “past association” with SBC as an indication that the benefits are to be valued at the time of divorce. However, we have construed the phrase “past employment” as merely a description of the type of benefits the ex-spouse is entitled to receive, i.e., arising from the spouse’s past employment, and not a limitation on the value of the interest. See Hernandez v. Hernandez, No. 04-97-00025-CV, 1998 WL 466096, at *3 (Tex.App.-San Antonio, Aug. 12, 1998, pet. denied) (not designated for publication).

On the other side, Guerra concedes the decree is ambiguous due to the inclusion of the undefined “after-acquired property” adjustment, which he contends has no determinable meaning. Guerra argues that the parties’ intent can be discerned from the language of the decree itself, stressing the decree’s use of the total number of months of Guerrero’s SBC employment as the denominator of the formula’s fraction, the use of the phrases “accrued and unac-crued,” “together with all increases thereon,” “if, as, and when” received. Clearly, if the parties had so intended, they could have expressly limited the valuation of Guerra’s share to the date of divorce by changing the fraction’s denominator to the number of months employed at SBC at the time of divorce, or by citing to Bern/ as the controlling authority on valuation. See Lopez v. Lopez, No. 04-04-00277-CV, 2004 WL 2945697, at *2 (Tex.App.-San Antonio, Dec.22, 2004, no pet.).

Based on the entire record, and reading the decree as a whole, we conclude there is probative evidence to support the trial court’s interpretation of the decree and calculation of Guerra’s share as 24.69% of the total SBC retirement benefits received by Guerrero valued at the date of retirement. Further, we cannot say the trial court’s fact findings are so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Accordingly, we overrule Guerrero’s issue on appeal and affirm the trial court’s judgment.

      . The court’s findings contain a typographical error indicating they were signed on “January 7, 2003;” it is clear from the remainder of the record, including the court’s docket sheet, that the findings were signed on January 7, 2004. In addition, the initial omission from the clerk’s record of the court’s findings of fact and conclusions of law has been cured through their inclusion in a supplemental clerk's record filed with this court on December 2, 2004. We note that the findings of fact and conclusions of law track the court’s findings contained in the November 18, 2003 order.

      . The decree recites that the parties entered into an agreement for the division of their marital estate, finds that such agreed division is "just and right,” and incorporates the agreement into the decree. Both parties on appeal refer to the divorce decree as an agreed decree.

      . Guerra contends that because Guerrero does not designate the particular findings of fact and conclusions of law that she is challenging on appeal, she has failed to raise a challenge to the court’s findings and conclusions; therefore, the findings are binding and must be sustained if there is any evidence to support them. It is clear from the appellant’s brief that Guerrero is challenging the court’s finding that the decree is ambiguous and the court’s calculation of Guerra's share as of the date of retirement rather than divorce. Guerrero has adequately presented her issue on appeal. TexJR.App. P. 38.1(e), 38.9.

      . The decree expresses the formula as follows: no. of mos. parties were married while Petitioner was employed by SBCfTC]

      no. of mos. Petitioner was employed by SBC[TC]
      X SBC[TC] retirement] pay (after “after-acquired” property theory adjustment)
      X 50% = Respondent's share

      . In Treadway, the Supreme Court disagreed with some courts' designation of the phrase "if, as, and when received” as a term of art evidencing an intent to value retirement benefits at the time of receipt rather than divorce. The Court noted that the phrase merely "reflects the contingent nature of the community’s interest in the retirement benefits and not necessarily the value of that interest.” Treadway, 110 S.W.3d at 449 n. 7.


source: Caselaw Access Project

author: KAREN ANGELINI, Justice.

license: Public Domain

text:
    Benito TOVAR, Appellant, v. The STATE of Texas, Appellee.
    No. 04-03-00588-CR.
    Court of Appeals of Texas, San Antonio.
    April 20, 2005.

      David A. Cuellar, Law Office of David A. Cuellar, San Antonio, for appellant.
    Kevin P. Yeary, Asst. Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

Benito Tovar was convicted of (1) producing and promoting a sexual performance by a child and (2) possession of child pornography. The trial court sentenced him to five years imprisonment. On appeal, Tovar brings six issues. We overrule all six issues and affirm the judgment of the trial court.

Background

Tovar met fifteen-year-old T.J. on a public bus; Tovar handed T.J. his business card, which provided the name of his photography business, “Studio Phoenix Photography,” his phone number, and his email address. After their initial meeting, T.J. contacted Tovar by email and saw Tovar again on the public bus. T.J. was interested in Tovar’s photography business because T.J. wished to work in the modeling industry. T.J. told Tovar that he was fifteen years old.

At around 9:00 a.m. on November 3, 2001, T.J. met Tovar at the River Center Mall food court. Tovar showed T.J. some pictures that he had taken. The pictures in Tovar’s portfolio were of both men and women and depicted both fully clothed subjects and nude subjects. T.J. and Tovar then began walking around the mall, talking about scenery. Tovar then stopped walking and started taking pictures of T.J.

T.J. was wearing black pants and a shirt. Tovar asked T.J. to remove his shirt and took some pictures of him shirtless. They then moved to an area with a stairwell. Tovar then asked T.J. to remove his pants. T.J. complied, and Tovar began taking nude pictures of T.J. T.J. testified at trial that although he had never had nude pictures taken of himself before, he had told Tovar that he had posed for nude pictures in the past.

Because Tovar and T.J. were in a public space, they began to attract attention. Juan Hernandez, an employee of the City of San Antonio Parks and Recreation Department, called the Park Rangers. The Park Rangers arrived and stopped Tovar and T.J. as they were attempting to leave. Both were arrested. Tovar gave a written statement to the police that was later admitted at trial. In his statement, he admitted that he took nude pictures of T.J. and that he knew that T.J. was fifteen years old. However, he did not believe that he was doing anything against the law:

All I can say is that I don’t feel I was doing anything wrong. What I was doing was to advance my photography to obtain a new client. It was never my intent to get [T.J.] into trouble. The plan was to show the pictures to his mom, and if she did not like them, they would keep the pictures. Now I know that despite what anyone would tell me, not to take their word for it. I mean anything that a sixteen year old would tell me about their past experience. I would not take their word for it any longer. I was not aware of the law that prohibits me from taking nude pictures of anyone under 18 until now that you have shown me the law from the blue book (Penal Code).

Photographs

In his first two issues, Tovar argues the following:

(i) Are the photographs in this case child pornography and was the appellant denied due process by lack of instruction regarding a definition of lewd; and
(ü) Should the trial court have granted the appellant’s motion for directed verdict based on [the appellantj’s assertion that no evidence proving “lewd exhibition of the genitals” was provided by the State.

Although Tovar argues that the trial court should have granted his motion for directed verdict, “[w]e treat a point of error complaining about a trial court’s failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence.” Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996). Thus, we must decide whether the trial court should have given an instruction regarding the definition of “lewd” and whether there was legally sufficient evidence that the child in the photographs was lewdly exhibiting his genitals.

Tovar was charged with producing and promoting a sexual performance of a child in violation of section 43.25(d) of the Texas Penal Code and with possession of child pornography in violation of section 43.26. Specifically, Count I of the indictment charged Tovar with “intentionally and knowingly producing] and promoting] a child younger than eighteen (18) years of age, namely [T.J.], to engage in sexual conduct, by photographing the said child lewdly exhibiting his genitals.” (emphasis added). And, Count II charged Tovar with “intentionally and knowingly possessing] visual material containing an image that visually depicts a child younger than eighteen (18) years of age at the time the image of the child was made and said child is engaging in sexual conduct, namely: lewdly exhibiting his genitals, and the defendant knew that said visual material depicted said child engaging in sexual conduct.” (emphasis added).

With regard to Count I, producing or promoting sexual performance by a child, section 43.25(d) provides that “[a] person commits an offense if, knowing the character and content of the material, he produces ... or promotes a performance that includes sexual conduct by a child younger than 18 years of age.” Tex. Pen.Code Ann. § 43.25(d) (Vernon Supp.2004-05) (emphasis added). “Sexual conduct” is defined as “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.” Tex. Pen.Code. Ann. § 43.25(a)(2) (Vernon Supp.2004-05).

With regard to Count II, possession of child pornography, section 43.26(a) provides,

A person commits an offense if: (1) the person knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct; and (2) the person knows that the material depicts the child as described by subdivision (1).

Tex. Pen.Code Ann. § 43.26(a) (Vernon 2003). And, “sexual conduct has the same meaning assigned by section 43.25.” Tex. Pen.Code Ann. § 43.26(b)(2) (Vernon 2003). Thus, both offenses as charged in the indictment require evidence of lewd exhibition of genitals by the child. “Lewd” is not defined by the penal code.

If a phrase, term, or word is statutorily defined, the trial court should submit the statutory definition to the jury. Roise v. State, 7 S.W.3d 225, 242 (Tex. App.-Austin 1999, pet. refd). The word “lewd” or the phrase “lewd exhibition of genitals” has not been statutorily defined by the legislature. Id. Words that are not statutorily defined are to be given their common, ordinary, or usual meaning. Martinez v. State, 924 S.W.2d 693, 698 (Tex.Crim.App.1996); Roise, 7 S.W.3d at 242. Thus, if the phrase or word is not statutorily defined, the trial court is not required to define the word or phrase to the jury. Andrews v. State, 652 S.W.2d 370, 375 (Tex.Crim.App.1983); Roise, 7 S.W.3d at 242. Only if the word or term does not have a common meaning that the jurors can be fairly presumed to know and apply, must a definition be supplied. Roise, 7 S.W.3d at 242. Normally, a trial court has broad discretion in submitting proper definitions and explanatory phrases to the jury. Id.; Macias v. State, 959 S.W.2d 332, 336 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd).

In Roise v. State, 7 S.W.3d 225, 242 (Tex.App.-Austin 1999, pet. ref'd), and Alexander v. State, 906 S.W.2d 107, 111 (Tex.App.-Dallas 1995, no pet.), both defendants complained that the trial court did not define the term “lewd exhibition of genitals.” Recognizing that this term was not statutorily defined, both courts of appeals held that the trial court was not required to define the term in the jury charge. Roise, 7 S.W.3d at 242; Alexander, 906 S.W.2d at 111. We agree. Because the term “lewd” is not statutorily defined and because “lewd” has a common meaning that jurors can be fairly presumed to know and apply, the trial court was not required to define “lewd” in the jury charge. See Roise, 7 S.W.3d at 242.

We note that Tovar relies on Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), for the proposition that the trial court’s failure to instruct the jury on the definition of “lewdness” amounted to a violation of due process. Osborne, however, is distinguishable. In Osborne, the Ohio statute with which the defendant was charged provided that it was a crime for a person to “possess or view any material or performance that shows a minor who is not the person’s child or ward in a state of nudity, unless one of the following applies ...” Id. at 106, 110 S.Ct. 1691 (emphasis added). The statute listed several exceptions, including material presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose. Id. Although the trial court noted that possession of nude photographs of children, without more, is constitutionally protected, it held, based on the statutorily-created exceptions, that the Ohio statute was not unconstitutionally overbroad because it applied only to depictions of nudity involving a lewd exhibition or graphic focus on a minor’s genitals. Id. at 107, 110 S.Ct. 1691.

On appeal, the defense complained that despite its interpretation of the statute, the trial court had failed to instruct the jury that lewd exhibition and scienter were elements of the crime. Id. at 107, 123, 110 S.Ct. 1691. The defendant emphasized that a statute that criminalizes the possession of nude photographs of a child, without more, is unconstitutional. Thus, without an instruction explaining that the defendant would only be guilty of a crime if he intentionally possessed lewd nude photographs of a child, the jury possibly convicted him for constitutionally protected activities. Although the Supreme Court held that the defendant had failed to preserve his scienter allegation, it allowed him to argue that the trial court should have instructed the jury on “lewdness.” Id. at 123-24, 110 S.Ct. 1691. Because the jury was not instructed that lewd exhibition was an element of the offense, the Supreme Court held that it was possible that the jury could have convicted the defendant without finding that the material was lewd. Id. 123-26, 110 S.Ct. 1691.

Significantly, the Supreme Court in Osborne did not hold that “lewd” must be defined; it held that because the Ohio statute could be unconstitutionally over-broad, the trial court should have instructed the jury that it could only convict the defendant if the photographs were lewd. In other words, mere nudity is not sufficient to convict. Here, however, the statute does not criminalize mere nudity of minors; it clearly only criminalizes activity where the minor is engaging in lewd exhibition of the genitals. Thus, the concerns presented in Osborne do not apply in this case.

We hold that the trial court did not err in failing to define “lewd” in the jury charge.

With regard to Tovar’s legal sufficiency claim, we review the claim as prescribed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not weigh the evidence tending to establish guilt against the evidence tending to establish innocence, nor do we assess the credibility of witnesses on each side. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex.Crim.App.1996). We view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App.1998). If we determine that the evidence is legally insufficient, we must render a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996).

Tovar argues that the evidence is legally insufficient because the photographs do not show a lewd exhibition of genitals by the child. We disagree. In determining whether a visual depiction of a child constitutes a lewd exhibition of genitals, courts should consider whether (1) the focal point of the visual depiction is the child’s genitalia, (2) the place or pose of the child in the photograph is sexually suggestive, (3) the child is depicted in an unnatural pose or inappropriate attire, (4) the child is fully or partially clothed or nude, (5) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity, or (6) the visual depiction is intended or designed to elicit a sexual response in the viewer. Alexander v. State, 906 S.W.2d 107, 110 (Tex.App.-Dallas 1995, no pet.).

Here, the photographs depict a progression of T.J. from a face and shirtless upper body to showing T.J. fully nude. State’s Exhibit 13 shows T.J.’s head and shirtless upper body. State’s Exhibit 12 shows T.J.’s head, shirtless body, with.his pants on, buttoned and belted. State’s Exhibits 11 and 10 show T.J.’s head, his shirtless body with his pants on, but now unbuttoned, revealing pubic hair and what appears to be part of his penis. State’s Exhibits 9 and 8 show T.J., completely nude, from the front. State’s Exhibits 7 and 6 show T.J., completely nude, from behind and from the side as he leans forward over a railing on a staircase. State’s Exhibits 5 and 4 show T.J., completely nude, from the front. State’s Exhibits 3 and 2 show T.J., completely nude, from the back as he stands with his front side of his body up against a wall. In the photographs depicting T.J. from the front, he appears to have an erect penis.

In considering the factors noted above, the focal point of many of the visual depictions are the child’s genitalia. The child’s poses are sexually suggestive. The child is completely nude. Many of the visual depictions suggest sexual coyness or a willingness to engage in sexual activity. And, the visual depictions do appear to be intended or designed to elicit a sexual response in the viewer. Moreover, at trial, T.J. testified that Tovar directed him to remove his shirt and pants. According to T.J., Tovar directed him during the shoot. Additionally, Dr. Nancy Kellogg testified that in some of the photographs, T.J.’s penis appears to be partially erect, and in State’s Exhibit 7, there appears to be a drop of pre-ejaculation fluid on the tip of T.J.’s penis.

We hold that the evidence is legally sufficient.

Intent

In his second issue, Tovar argues that the trial court erred in denying his “request to include case law from the Texas Appeals Court case Alexander v. State in the jury charge.” Specifically, Tovar argues that the trial court should have instructed the jury that “whether the content of a photograph constitutes a lewd or lascivious exhibition of a child’s genitals depends on the intent of the photographer.” Tovar cites no legal support for his assertion that the trial court is required to include such language in a jury charge, see Tex.R.App. P. 38.1(h), and we find none.

In Texas, trial courts have a duty to give their juries “a written charge distinctly setting forth the law applicable to the case.” Tex.Code CRim. PROC. Ann. art. 36.14 (Vernon Supp.2004-05). Specifically requested charges may be refused where the instructions given by the court are adequate and fully protect the rights of the accused. Parks v. State, 437 S.W.2d 554, 557 (Tex.Crim.App.1969). Here, with respect to Count I, the jury was instructed that to find Tovar guilty, it must find that Tovar did “intentionally or knowingly produce or promote ... [T.J.], to engage in sexual conduct by photographing him lewdly exhibiting his genitals.” (emphasis added). With respect to Count II, the jury was instructed that it was required to find that Tovar “intentionally or knowingly possessed visual material containing an image that visually depicts a child ... engaging in sexual conduct, namely: lewdly exhibiting his genitals, and [Tovar] kneiv that said visual material depicted said child engaging in sexual conduct.” (emphasis added). This language properly placed the burden on the State to prove Tovar’s mens rea as required by the relevant statutes. Moreover, the language tracked the language of the relevant statutes. As such, the instructions given adequately and fully protected Tovar’s rights.

We overrule Tovar’s third issue.

Jury

In his fourth issue, Tovar argues that he was denied a fair trial because a juror “prejudged” his case. For support, Tovar attached a newspaper article and emphasizes a juror’s quote in that article. This newspaper article, however, is not a part of the appellate record. We cannot look outside of the appellate record. See Bowler v. State, 822 S.W.2d 334, 334-35 (Tex.App.-San Antonio 1992, pet. ref'd). Tovar has not pointed to any part of the appellate record that would support his assertion that a juror was prejudiced against him. We overrule, Tovar’s fourth issue.

LesseR-Included Offense

In his fifth issue, Tovar contends that because disorderly conduct is a lesser-included offense, the trial court should have instructed the jury on that offense. To determine whether a charge on a lesser-included offense should be given, we apply a two-prong test. Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App.2002). We must first decide whether the offense is actually a lesser-included offense of the offense charged. Id. Second, we determine whether there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Id.

Here, the first prong of this test is not met; disorderly conduct is not a lesser-included offense of either producing and promoting a sexual performance of a child or possession of child pornography. Article 37.09 of the Texas Code of Criminal Procedure defines a lesser-included offense as the following:

An offense is a lesser-included offense if:

(1)it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex.Cobe CRiM. PROC. Ann. art. 37.09 (Vernon 1981). When we review a trial court’s decision to deny the requested instruction, we consider the charged offense, the statutory elements of the lesser offense, and the evidence actually presented at trial. Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005). More specifically, we examine the statutory elements of the charged offense as modified by the indictment. Id. Then, we examine the elements of the offense claimed to be a lesser-included offense to see if the elements are functionally the same as or less than those required to prove the charged offense. Id. Finally, we examine the evidence actually presented to prove the elements of the charged offense to see if that proof also shows the lesser-included offense. Id.

To commit the offense of disorderly conduct, a person must intentionally or knowingly expose his anus or genitals in a public place and be reckless about whether another may be present who will be offended or alarmed by his act. Tex. Pen. Code Ann. § 42.01(a)(10) (Vernon Supp. 2004-05). In contrast, to commit the offense of sexual performance by a child, as charged in the indictment, a person must, knowing the character and content of the material, produce or promote a performance that includes sexual conduct by a child younger than 18 years of age. Tex. Pen.Code Ann. § 43.25(b) (Vernon Supp. 2004-05). And, to commit the offense of possession of child pornography, as charged in the indictment, a person must knowingly or intentionally possess visual material that visually depicts a child younger than eighteen years of age at the time the image of the child was made who is engaging in sexual conduct and the person knows that the material depicts such a child. Tex. Pen.Code Ann. § 43.26(a) (Vernon 2003).

In examining the statutory elements of the charged offenses as modified by the indictment against the elements of the claimed lesser-included offense of disorderly conduct, we conclude that the facts required to prove disorderly conduct and the facts required to prove the two charged offenses are not functionally equivalent. To prove disorderly conduct, the State would have had to present facts proving Tovar’s recklessness about whether another may have been present who would have been offended or alarmed by the act. In proving the two charged offenses, however, the State was not required to present facts of Tovar’s recklessness in this regard. See Noyola v. State, 25 S.W.3d 18, 21 (Tex.App.-El Paso 1999, no pet.) (holding that aggravated assault and disorderly conduct were not functionally equivalent because aggravated assault, as charged in indictment, did not require the State to prove that appellant made threats or acted in an “obviously offensive manner,” as would be required under disorderly conduct). We, therefore, hold that disorderly conduct is not a lesser-included offense of either of the two charged offenses. Because disorderly conduct is not a lesser-included offense, Tovar was not entitled to an instruction. We overrule Tovar’s fifth issue.

Severance

In his sixth and final issue, Tovar argues that the trial court erred in denying his motion to sever. Generally, a trial court may consolidate cases for trial when the charged offenses arise out of the same “criminal episode.” Salazar v. State, 127 S.W.3d 355, 363-64 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd); see Tex. Pen. Code Ann. § 3.02(a) (Vernon 2003). However, a defendant generally has the right to demand that cases consolidated under section 3.02 be severed for trial, see Tex. Pen.Code Ann. § 3.04(a) (Vernon 2003). This general rule is limited by section 3.04(c). Section 3.04(c) states,

The right to severance under this section does not apply to a prosecution for offenses described by section 3.03(b)(2) unless the court determines that the defendant or the State would be unfairly prejudiced by a joinder of offenses, in which event the judge may order the offenses to be tried separately or may order other relief as justice requires.

Tex. Pen.Code Ann. § 3.04(c) (Vernon 2003). Section 3.03(b)(2), in turn, provides,

If the accused if found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of: ... (2) an offense: (A) under section 21.11, 22.011, 22.021, 25.02, or 43.25 committed against a victim younger than 17 years of age at the time of the commission of the offense regardless • of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section ...

Tex. Pen.Code Ann. § 3.03(b)(2) (Vernon 2003).

Here, Tovar was charged with violating sections 43.25 (sexual performance by a child) and 43.26 (possession of child pornography) of the Texas Penal Code. Because Tovar was charged with an offense listed in section 3.03(b)(2), the State argues that section 3.04(c) applies and as such, Tovar has no right to severance. Tovar, in contrast, emphasizes that one of the charged offenses, possession of child pornography, is not listed in section 3.03(b)(2). Thus, because both offenses were not listed in section 3.03(b)(2), he argues that section 3.04(c) does not apply and as such, he does have the right to severance.

We need not decide whether section 3.04(c) would apply here, because any error is harmless. In Llamas v. State, 12 S.W.3d 469, 470 (Tex.Crim.App.2000), the court of criminal appeals disavowed its holding in Warmowski v. State, 853 S.W.2d 575 (Tex.Crim.App.1993), that severance error is never subject to a harm analysis. In doing so, it relied on Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997), in which it held that, except for certain federal constitutional errors labeled by the Supreme Court as structural, no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis. See Llamas, 12 S.W.3d at 470. As severance error is not structural error, it is subject to harmless error analysis, and we analyze any harm pursuant to Texas Rule of Appellate Procedure 44.2(b). Id. at 470-71. Under rule 44.2(b), we must determine whether the trial court’s denial of Tovar’s motion for severance affected a substantial right. Id. at 471-72; see also Tex.R.App. P. 44.2(b).

In determining harm, we consider the entire record. See Llamas, 12 S.W.3d at 471. The rule allowing severance rests upon two legitimate concerns: (1) that the jury may convict a “bad man” who deserves to be punished — not because he is guilty of the crime charged but because of his prior or subsequent misdeeds; and (2) that the jury will infer that because the accused committed other crimes, he probably committed the crime charged. Id. at 471-72. Here, the State argues that any error is harmless because evidence of each of the crimes would have been admissible in a separate trial of the other offense. See Dominguez v. State, 62 S.W.3d 203, 208 (Tex.App.-El Paso 2000, pet. ref'd) (holding that severance error was harmless because evidence of each crime would be admissible in a separate trial of the other offense as same transaction contextual evidence). Thus, the jury would have heard the same evidence regardless of whether the offenses were tried separately in different trials or together in one. See id. We agree. Because the same evidence would be admissible regardless of whether the offenses were tried separately or jointly, we hold that any severance error did not affect a substantial right. We overrule Tovar’s sixth and final issue.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.


author: JIM R. WRIGHT, Justice.

text:
    Robert C. FARONE, Appellant, v. BAG’N BAGGAGE, LTD. and Caribbean Marine, Inc., Appellees.
    No. 11-03-00049-CV.
    Court of Appeals of Texas, Eastland.
    April 21, 2005.

      Brett Myers, Gregory Weiss, David, Goodman & Madole, Dallas, for appellant.
    Michael Abcarian, Epstein Becker Green Wickliff & Hall, Jonni Walls, M. Brenk Johnson, Winstead, Sechrest & Minick, Dallas, for appellees.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

JIM R. WRIGHT, Justice.

Bag’n Baggage, Ltd. and Caribbean Marine, Inc., appellees, successfully obtained a partial summary judgment in which the trial court held that Robert C. Farone could not recover from them in his suit for breach of an employment contract. The trial court also ruled that Farone was not entitled to recover upon his claims for breach of a stock option contract. The parties resolved other issues by agreement, and this judgment became final. We hold that the statute of frauds prohibits enforcement of any extension of the original employment agreement between the parties. We also hold that, in the absence of an express agreement extending or renewing the original two-year contract, the employment-at-will doctrine prevents recovery by Farone. Further, we hold that the alleged oral stock option agreement fails because it does not include essential terms. We affirm the judgment of the trial court.

In 1983, Caribbean Marine, Inc. (CMI), a corporation, purchased Bag’n Baggage. Bag’n Baggage was a closely held corporation at the time that CMI purchased it. On June 17, 1985, Bag’n Baggage, Inc. entered into an employment agreement with Farone whereby Farone was to serve as president of Bag’n Baggage. The employment agreement provided that it would expire after a term of 2 years beginning June 17, 1985, unless terminated earlier by Farone’s death or disability or by his breach of the employment agreement as set forth in the agreement. The agreement did not contain language that addressed renewal of the agreement.

On the same date that Bag’n Baggage and Farone signed the employment agreement, they also signed an agreement granting stock options to Farone whereby Farone had the option to purchase 10 percent of the shares of Bag’n Baggage. The parties provided that the option would expire three years from the date of the agreement, unless exercised earlier. The agreement contained language that provided for expiration of the stock option agreement in the event that Farone ceased to be employed by Bag’n Baggage for any reason other than Farone’s death or disability-

Farone exercised stock options equal to 5 percent of the outstanding shares of Bag’n Baggage. Subsequently, CMI’s board of directors voted to convert Bag’n Baggage into a partnership. Farone was a member of the board of directors of CMI at the time of the vote. CMI offered to exchange Farone’s stock in Bag’n Baggage for CMI stock of equal value. Farone accepted that offer. Farone also accepted CMI’s offer whereby Farone would be allowed to purchase a 1 percent limited partnership interest in the newly-formed Bag’n Baggage partnership. Farone paid $10,000 for a 1 percent interest in Bag’n Baggage, Ltd. Farone takes the position that he was concerned that he would lose his remaining stock options in Bag’n Baggage, Inc. if the conversion to a limited partnership took place. Farone also alleges that he was concerned that his 5 percent equity interest in Bag’n Baggage, Inc. would be diluted in the conversion to CMI stock. Farone claims that he related those fears to Bill Bowen, the president of CMI at the time. Farone maintains that Bowen told him that he would be compensated for the remaining stock options when Bag’n Baggage was sold or when Farone left the company. This alleged compensation agreement was not reduced to writing.

Bowen died in 1996. Patrick Sullivan replaced Bowen as president of CMI. Over a period of time, CMI’s board, except for Farone, became dissatisfied with Farone’s performance; and, in December 2000, they voted to discharge him. Sullivan informed Farone of the board’s action on January 11, 2001.

Farone brought suit against Bag’n Baggage and CMI seeking, among other things, damages for breach of the employment contract and damages for breach of the alleged compensation contract pertaining to the stock options. Farone sought other relief in his lawsuit, but those claims have been settled by the parties and are not a part of this appeal.

Bag’n Baggage and CMI filed a motion for partial summary judgment; they state that the motion is filed under TEX. R.CIV.P. 166a(e) & 166a(i). However, the motion is couched primarily in Rule 166a(c) terminology, and we will decide the issues in this case in accordance with standards relating to Rule 166a(c).

The rules for reviewing a traditional summary judgment are well-established. The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Every reasonable inference is indulged in favor of the non-movant, and any doubts must be resolved in favor of the non-mov-ant. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420 (Tex.1997); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985). Summary judgment is proper if the defendant disproves at least one element of each of the plaintiffs claims or establishes all elements of an affirmative defense to each claim. American Tobacco Company, Inc. v. Grinnell, supra; Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476-77 (Tex.1995); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). When a trial court does not specify the grounds upon which a motion for summary judgment is granted, an appellate court will affirm the judgment if any of the theories advanced are meritorious. Cincinnati Life Insurance Company v. Cates, 927 S.W.2d 623 (Tex.1996).

Farone brings seven issues in this appeal. In Farone’s first and second issues, he claims that the trial court erred in granting the motion for summary judgment because his contract satisfied the statute of frauds and because he was not an employee-at-will. See TEX. BUS. & COM. CODE ANN. § 26.01(b)(6) (Vernon 2002).

In response, Bag’n Baggage and CMI claim that any continuation of the original employment agreement is not enforceable under the statute of frauds. They also contend that Farone was an employee-at-will at the time that he was terminated.

The employment-at-will doctrine, generally, absent a specific agreement otherwise, provides that an employer may terminate an employee for good cause, bad cause, or no cause at all. Montgomery County Hospital District v. Brown, 965 S.W.2d 501 (Tex.1998). Employment-at-will status is presumed. Montgomery County Hospital District v. Brown, supra at 502. In order for an employee to avoid the effects of the employee-at-will doctrine, he must show that the employer unequivocally expressed its intent to be bound not to terminate the employment except under clearly specified circumstances or conditions. Midland Judicial District Community Supervision and Corrections Department v. Jones, 92 S.W.3d 486, 488 (Tex.2002).

The employment contract between the parties is a part of the summary judgment evidence. In Paragraphs 2 and 5 of the contract, the parties provided:

2. Term of Employment.
(a) Employment of Farone hereunder shall be effective on the date of this Agreement and shall continue in effect, subject to earlier termination pursuant to paragraph 2(b) hereof, for a term of 24 months from June 17,1985.
(b) The foregoing notwithstanding, this Agreement shall terminate upon the earlier to occur of the following:
(i) the death or permanent disability of Farone; or
(ii) the breach of this Agreement by Farone as described in paragraph 5 hereof.
5. Breach by Farone.
(a) In the event Farone materially breaches this Agreement, Bag ‘N Baggage may terminate this Agreement effective thirty (30) days after Company gives written notice of such termination to Farone, provided that Company shall pay to Farone all compensation accrued under this Agreement to the date of such termination.
(b) A material breach of this Agreement by Farone shall be deemed to have occurred upon the happening of any of the following:
(i) willful misconduct of Farone in the performance of Farone’s duties, functions, and responsibilities;
(ii) failure of Farone to comply with any duty, function or responsibility herein undertaken by Farone;
(in) conviction of Farone of any felony offense during the term of this Agreement;
(iv) resignation or voluntary retirement of Farone from employment; or
(v) any other conduct or failure to perform hereunder by Farone which the Board of Directors in good faith determines to be detrimental to Company.

TEX. BUS. & COM. CODE ANN. § 26.01(a) (Vernon 2002)(statute of frauds) contains the requirement that certain promises and agreements are not enforceable unless the promise or agreement, or a memorandum of the promise or agreement, is in writing and signed by the party to be charged with the promise or agreement or by someone who is lawfully authorized to sign for him. Section 26.01(b)(6) provides that agreements which are not to be performed within one year from the date of making the agreement are covered by Section 26.01(a).

The original term of Farone’s employment agreement was for a period of two years. Although Farone continued to be employed as president of Bag’n Baggage after the initial two-year term, the parties did not enter into additional written employment contracts after the expiration of the initial two-year term. We must decide at the outset whether an employment contract which is originally subject to the statute of frauds can be renewed and extended by implication and enforced as originally written or does the statute of frauds prevent such an implied renewal and extension of contracts that originally could not have been performed within a period of one year.

Performance of an agreement must be possible within one year or the contract will fall within the provisions of the statute of frauds. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 489 (Tex.1991). Here, the contract provided that the agreement was for a period of two years unless terminated earlier by Farone’s death or permanent disability or upon the occurrence of certain performance failures attributable to Farone as set forth in the agreement. While the original contract called for termination by death, disability, or performance failures, those events are methods of termination. Those events do not constitute performance of the contract; they constitute excusable nonperformance of the contract. Montgomery County Hospital District v. Brown, supra at 505 (citing Collins v. Allied Pharmacy Management, Inc., 871 S.W.2d 929, 934 (Tex.App.-Houston [14th Dist.] 1994, no writ)). We hold that the original contract falls under the statute of frauds.

For purposes of this appeal, we will assume, without deciding, that Bag’n Baggage unequivocally expressed its intent to be bound not to terminate Farone’s employment for an initial period of two years, except under clearly identified circumstances as set forth in Paragraph 5 of the agreement. See Midland Judicial District Community Supervision and Corrections Department v. Jones, supra. The question then becomes whether the agreement was continued by implication after the expiration of the initial two-year term. We hold that it was not because there were no successive agreements in writing as required by the Statute of Frauds. TEX. BUS. & COM. CODE ANN. § 26.01 (Vernon 2002).

All of the cases which have been cited to this court by Farone concern cases that do not fall within the statute of frauds and are held to be extended or renewed by implication. Farone cites the following distinguishable cases for the proposition that this case is not within the statute of frauds: Fenno v. Jacobe, 657 S.W.2d 844, 847 (Tex.App.-Houston [1st Dist.] 1983, writ ref'd n.r.e.)(the original agreement was for a term of one year and the court there held that the contract was impliedly extended when the employee continued to work under the same circumstances); Thames v. Rotary Engineering Company, 315 S.W.2d 589, 591 (Tex.Civ.App.-El Paso 1958, writ ref'd n.r.e.)(lawsuit dealt with noncompetition agreements; case did not involve the statute of frauds; each monthly pay period constituted a monthly extension of the original agreement); Montgomery County Hospital District v. Brown, supra at 503 (case did not involve the statute of frauds; court held that alleged oral promises modifying employment-at-will were not definite enough to do so); Hardison v. A.H. Belo Corp., 247 S.W.2d 167, 168-69 (Tex.Civ.App.-Dallas 1952, no writ)(involved oral contract to employ for as long as employer was satisfied; statute of frauds does not apply in “satisfaction” type contracts because contract could be performed within one year); Stone v. Griffin Communications and Security Systems, Inc., 53 S.W.3d 687 (Tex.App.-Tyler 2001, no pet’n)(if situation is actually an employment-at-will situation, then an employer can terminate at any time without cause; but, in “satisfaction” type contract, there must be a bona fide dissatisfaction or cause for discharge; statute of frauds not addressed); Sadowski v. Dell Computer Corporation, 268 F.Supp.2d 129, 135-36 (D.Conn.2003)(case involved stock options and maturity of those options upon disability; statute of frauds not addressed, but, court addressed good faith and reasonableness requirements when dealing with a “satisfaction” type employment contract). The agreement before us could be terminated for stated causes; but the original contract term for performance was for a period of two years, it was not for so long as the employer was satisfied. The contract in this case is not a “satisfaction” contract.

The original contract could not be performed within one year. Any implied renewal of the contract, therefore, could not be performed within one year. The statute of frauds requires that those agreements are not enforceable unless the promise or agreement, or a memorandum of the promise or agreement, is in writing and signed by the party to be charged with the promise or agreement or by someone who is lawfully authorized to sign for him. Section 26.01(b)(6).

Here, there may have been implied agreements to continue the original contract; but, without a further writing during each period of extension of the original two year agreement, any subsequent agreements are not enforceable. Because they are not enforceable, Farone was an employee-at-will. Because Farone was an employee-at-will, Bag’n Baggage could terminate him at will for good cause, bad cause, or no cause at all. Midland Judicial District Community Supervision and Corrections Department v. Jones, supra. Farone’s first and second issues on appeal are overruled. In view of our ruling on those two issues, we need not consider Farone’s third issue on appeal. TEX. R.APP.P. 47.1.

Farone directs his fourth, fifth, and sixth issues on appeal to questions involving stock options for which Farone seeks compensation. At the time that Bag’n Baggage was converted from a corporation into a limited partnership, Farone held an unexercised option to purchase an additional five percent of the stock of Bag’n Baggage. Bowen had approached Farone in an attempt to obtain Farone’s approval of the change to the limited partnership. Farone was to convert his Bag’n Baggage stock into stock of equal value in CMI, and, he was also to buy a one percent interest in the new limited partnership for $10,000. Those transactions happened. Being concerned about the dilution of the value of his Bag’n Baggage stock, Farone approached Bowen to discuss his unexer-cised options he held for an additional five percent of the stock of Bag’n Baggage. The summary judgment evidence shows that at that time Bowen stated merely that Farone would be “compensated” at the time that Bag’n Baggage was sold or at the time that Farone left the company. There were no other discussions about this “compensation.”

Farone maintains that the statement to him that he would be “compensated” is enough to create an enforceable contract. Appellees maintain that the oral agreement is not specific enough to create a contract.

In general, a contract is legally binding only if its terms are sufficiently definite to enable a court to understand the parties’ obligations. Fort Worth Independent School District v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex.2000). If an essential term is left open for negotiation in the future, there is no contract. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). The terms of an oral contract must be definite, certain, and clear as to all essential terms; or the contract will fail for indefiniteness. Meru v. Huerta, 136 S.W.3d 383, 390 (Tex.App.-Corpus Christi 2004, no pet’n). Although Texas courts favor validating contracts, courts may not create a contract where there is none. Kelly v. Rio Grande Computerland Group, 128 S.W.3d 759, 766 (Tex.App.-El Paso 2004, no pet’n).

There is no contract between Farone and appellees. The only summary judgment evidence in this record is that Far-one had a conversation with Bowen before Bowen died in which Bowen told Farone that he would be “compensated” for his unexercised stock options for Bag’n Baggage, Inc. stock. There is no summary judgment evidence of anything else relating to the “compensation” which Farone was to receive. Essential terms are missing: such as price; whether the method of payment would be in cash or in an equity interest; and if in an equity interest, the method of compilation of value; and whether the equity interest would come from CMI or Bag’n Baggage, Ltd. These are just some of the essential terms upon which there is no agreement. The contract is not definite, certain, and clear as to essential terms; and it fails for indefiniteness. Meru v. Huerta, supra. Farone’s fourth and fifth issues on appeal are overruled. Because Farone’s fourth and fifth issues on appeal are overruled, we need not consider his sixth issue on appeal. Rule 47.1.

In his seventh issue on appeal, Farone asserts that appellees failed to point out the elements to which there is no evidence. See Rule 166a(i). We specifically have not based our decision upon Rule 166a(i) and do not need to address this issue on appeal.

After reviewing the summary judgment evidence, taking as true all evidence favorable to Farone, indulging every reasonable inference in his favor, and resolving any doubts in his favor, we hold that the trial court did not err when it granted appel-lees’ motion for summary judgment. The judgment of the trial court is affirmed.


author: Chief Justice MORRISS.

text:
    Shawn Christopher WHEAT, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00077-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Feb. 24, 2005.
    Decided May 11, 2005.
    Discretionary Review Refused August 31, 2005.

      Robert D. Bennett, Robert D. Bennett and Associates, PC, Gilmer, for appellant.
    Timothy J. Cariker, Asst. Dist. Atty., Gilmer, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

It took authorities almost ten years to find Shawn Christopher Wheat and revoke his community supervision. In May of 1994, Upshur County filed its motion to revoke Wheat’s community supervision and obtained a capias for his arrest. Wheat was finally arrested on the capias March 4, 2004, in Indiana. At the heart of this appeal is whether the State used due diligence between those dates and the limited extent to which that defense remains viable.

On April 19, 2004, after a revocation hearing focusing entirely on the due diligence issue and not contesting the truth of Wheat’s community supervision violations, the trial court held that the State had exercised due diligence in executing the arrest capias, revoked Wheat’s community supervision, and sentenced Wheat to ten years’ imprisonment.

In three points of error, Wheat asserts his revocation was improper because the State failed to use due diligence to find him, and the due-diligence finding was based on improperly admitted hearsay evidence. We affirm the revocation because we hold (1) the evidence that letters were sent to Wheat was properly admitted, and (2) a lack-of-due-diligence defense was not available on each ground of revocation.

1. Evidence That Letters Were Sent to Wheat Was Properly Admitted

Wheat asserts the trial court erred in overruling his hearsay objection to the community supervision officer’s testimony about the letters from the post office asserting that they had no forwarding address for Wheat. At trial, the State argued that the letters were admissible as business records of the post office. Wheat argues that the letters and the testimony that the letters had been sent were hearsay because the community supervision officer testified he did not personally send the letters and they did not qualify as business records.

On appeal, the State argues that the letters are admissible because the officer spoke only of his actions. Although, the community supervision officer testified that he did not personally send the letters, he testified that the returned letters were in the file. Because the returned letters were in the file in the community supervision officer’s control, the officer’s testimony that the letters were sent was not hearsay. The fact that the community supervision officer did not have personal knowledge of the statements contained in the letters does not cause a hearsay problem, because the letters’ contents were not the reason for the testimony. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.R. Evro. 801(d). These letters were not being admitted for the truth of the matter asserted in the letters, e.g., the lack of a forwarding address, but rather as evidence of the efforts taken by the State to contact Wheat. See $445.00 in United States Currency v. State, 856 S.W.2d 852, 853 (Tex.App.-Fort Worth 1993, no writ) (pad containing “dope notes” not hearsay since it was not introduced to prove the truth of the matter asserted). The letters were not introduced for the statements contained therein, but for proof the State actually sent the letters. The community supervision officer’s testimony that the letters were sent and returned was not hearsay. The officer’s lack of personal knowledge of the statements contained in the letters is irrelevant. The trial court did not err in overruling the objection.

2. A Lack-of-Due-Diligence Defense Was Not Available on Each Ch'ound of Revocation

Wheat’s points of error one and two raise the central issue in this appeal, the issue of due diligence. We reject those points of error because — although (A) the record establishes that officers did not attempt to contact Wheat in person at his last known address, thus proving Wheat’s affirmative defense on the revocation ground that Wheat failed to report as ordered — (B) the other grounds for Wheat’s revocation no longer support any lack-of-due-diligenee defense.

Before we discuss those two points, however, we review the 2003 statutory changes to the due-diligence landscape. After the 2003 amendments to Article 42.12 of the Texas Code of Criminal Procedure, lack of due diligence became an affirmative defense and is limited to only grounds for revocation alleging failure to report or failure to remain in a specified place, and only certain specific failures by the State will establish the defense.

Previously, a trial court’s jurisdiction over a motion to revoke community supervision did not survive the expiration of the community supervision period unless (1) a motion to revoke was filed before the community supervision period expired, (2) an arrest warrant, capias, or summons was issued before the community supervision period expired, and (3) the State exercised due diligence in having a revocation hearing. Peacock v. State, 77 S.W.3d 285, 287-88 (Tex.Crim.App.2002); see Harris v. State, 843 S.W.2d 34, 35 n. 1 (Tex.Crim.App.1992), modified, Bawcom v. State, 78 S.W.3d 360, 363 (Tex.Crim.App.2002) (due diligence may be shown by pre-capias diligence). The State’s failure to execute a capias with due diligence was regarded as a plea in bar or defense. Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App.1999); Gutierrez v. State, 46 S.W.3d 394, 396 (Tex.App.-Corpus Christi 2001), aff'd, 85 S.W.3d 817 (Tex.Crim.App.2002). Under prior caselaw, the State had the burden to prove its due diligence once the defendant raised the issue. Rodriguez v. State, 804 S.W.2d 516, 517-18 (Tex.Crim.App.1991). Under that prior state of the law, Wheat could have properly claimed that the State failed to use due diligence as to each of the grounds it had alleged for revocation.

Effective June 18, 2003, the Texas Legislature amended Article 42.12 of the Texas Code of Criminal Procedure to extend the trial court’s continuing jurisdiction to revoke community supervision after the expiration of the term of community supervision. See Act of May 30, 2003, 78th Leg., R.S., ch. 250, §§ 2, 3, 2003 Tex. Gen. Laws 1158 (codified at Tex.Code Crim. Proc. Ann. art. 42.12, §§ 21(e) & 24 (Vernon Supp.2004-2005)). See also Nurridin v. State, 154 S.W.3d 920, 922-23 (Tex.App.-Dallas 2005, no pet. h.). That amendment added paragraph (e) to Section 21:

A court retains jurisdiction to hold a hearing under Subsection (b) and to revoke, continue, or modify community supervision, regardless of whether the period of community supervision imposed on the defendant has expired, if before the expiration the attorney representing the state files a motion to revoke, continue, or modify community supervision and a capias is issued for the arrest of the defendant.

Tex.Code Crim. ProC. Ann. art. 42.12, § 21(e). Note that the principal change made by the statute was the elimination of the due-diligence element. Therefore, that change to Section 21 removed the broad, lack-of-due-diligence defense that had prevailed according to the prior caselaw. See Nurridin, 154 S.W.3d at 924.

At the same time as the above amendment, the Legislature also added Section 24, which gives back a limited affirmative defense of lack of due diligence:

For the purposes of a hearing under Section ... 21(b), it is an affirmative defense to revocation for an alleged failure to report to a supervision officer as directed or to remain within a specified place that a supervision officer, peace officer, or other officer with the power of arrest under a warrant issued by a judge for that alleged violation failed to contact or attempt to contact the defendant in person at the defendant’s last known residence address or last known employment address, as reflected in the files of the department serving the county in which the order of community supervision was entered.

Tex.Code Crim. PROC. ÁNN. art. 42.12, § 24 (emphasis added). See Nurridin, 154 S.W.3d at 923.

The hearing in this case was held April 5, 2004. The amended version of Article 42.12 applies to cases in which hearings are held on or after June 18, 2003. See Act of May 30, 2003, 78th Leg., R.S., ch. 250, § 4, 2003 Tex. Gen. Laws 1158. Therefore, due diligence was an affirmative defense applicable only to the grounds of revocation alleging failure to report or failure to remain in a specified location. And, to establish the defense, Wheat had the burden of proving that no community supervision officer attempted to contact him in person at his last known address according to the State’s records.

(A) The Record Establishes No Officer Attempted To Contact Wheat in Person at His Last Known Address

In revoking Wheat’s community supervision, the trial court found Wheat had (i) failed to report to Upshur County as ordered; (ii) failed to pay court costs, restitution, and attorney’s fees as ordered; (iii) failed to pay supervision fees as ordered; and (iv) failed to perform community service restitution work as ordered. Because the revocation hearing was held after the effective date of the 2003 amendments to Article 42.12, the only one of those grounds for which Wheat had an available defense that the State had failed to use due diligence .was the failure to report.

Therefore, on the ground of failure to report, Wheat had the right to raise and attempt to prove the lack-of-due-diligence affirmative defense that State officials failed to attempt to contact Wheat in person at his last known address as reflected by the State’s records. See Tex.Code Crim. Proc. Ann. art. 42.12, § 24.

The record reflects that, during the time the motion to revoke was pending, the State took several actions to attempt to locate Wheat. But none of those are relevant to the affirmative defense of failure to attempt to contact Wheat in person at his last known address. The only evidence on that narrow point establishes that no such attempt was made. Therefore, that affirmative defense was proven, negating revocation on the ground of Wheat’s failure to report.

(B) The Other Grounds for Wheat’s Revocation No Longer Support Any Lack-of-Due-Diligence Defense

On the other hand, the other grounds for revocation found by the trial court — Wheat’s failure to pay court costs, restitution, attorney’s fees, and supervision fees, and failure to perform community service — were not subject to any lack-of-due-diligence defense. Therefore, those grounds found by the trial court must stand, and we must affirm the trial court’s judgment on that basis.

We affirm the judgment of the trial court.

      . Wheat had been convicted of indecency with a child in Upshur County, Texas, in 1993 and placed on community supervision for ten years. Wheat's community supervision was transferred to Orange County, Texas, where he intended to reside with his father. As a condition of the transfer, Wheat was required to report by mail to Upshur County and report any change of address to Upshur County. Wheat stopped reporting to Upshur County in November 1993. When Wheat stopped reporting to Orange County, Orange County informed Upshur County it was rejecting its supervision of Wheat for Upshur County. The motion to revoke followed.

      . There was no affidavit from the post office that the records were kept in the course of regularly conducted business. See TexR. Evid. 803(6).

      . Section 24 is titled "Due Diligence Defense.” “The heading of a ... section does not limit or expand the meaning of a statute.” Tex. Gov’t Code Ann. § 311.024 (Vernon 2005). Section 311.024 of the Texas Government Code applies to the construction of the Texas Code of Criminal Procedure. TexCode Crim. Proc. Ann. art. 101.002 (Vernon Supp.2004-2005).

      . We note that both parties argued at trial and on appeal that the State had the burden of proving due diligence by a preponderance of the evidence.

      . The capias warrant was entered into the Texas Crime Information Center database and its national counterpart. To Wheat's last known address, the community supervision office sent a letter, which was returned undelivered. The State made several inquiries at the post office concerning whether Wheat had left a forwarding address. The community supervision office ran various credit history inquiries to see if Wheat had purchased or rented anything. In addition, the State ran various Texas Workforce Commission wage inquiries to seek if Wheat was working in Texas. In 1998, the community supervision office ran a criminal history check on Wheat. While none of these efforts succeeded, Wheat was ultimately arrested by Indiana authorities in Lake County, Indiana, in late 2003, leading to his April 2004 arrest on the warrant in this case. Viewed in a light most favorable to the prosecution, a rational fact-finder could have concluded Wheat did not prove the State failed to exercise due diligence.
      The record contains some evidence that the State failed to exercise due diligence. It did not request Orange County to investigate or to contact any of Wheat’s relatives. Wheat's community supervision officer admitted that no request was ever made to the Upshur County sheriffs office to execute the capias. Further, the community supervision officer testified that the community supervision office had not contacted or attempted to contact any of Wheat’s relatives listed on his personal data sheet.

      . A defendant bears the ultimate burden of proving an affirmative defense by a preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 594 n. 5 (Tex.Crim.App.2003). When conducting a legal sufficiency review concerning an issue on which the defendant had the burden of proof, we view the evidence in a light most favorable to the verdict and reverse only when the evidence conclusively establishes the opposite. Ballard v. State, 161 S.W.3d 269 (Tex.App.-Texarkana 2005, pet. filed); see Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998). When considering a factual sufficiency challenge concerning an issue on which the defendant had the burden of proof, we review a jury’s finding concerning an affirmative defense in a neutral light and determine whether the verdict is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ballard,; Vasquez v. State, 84 S.W.3d 269 (Tex.App.-Corpus Christi 2002, no pet.); see Howard v. State, 145 S.W.3d 327, 335 (Tex.App.-Fort Worth 2004, no pet.).

      . Nurridin, 154 S.W.3d at 923. If any ground for revocation is sustainable, that is sufficient to sustain the revocation. See Gill v. State, 593 S.W.2d 697, 699 (Tex.Crim.App.1980).


author: W. KENNETH LAW, Chief Justice.

text:
    Gary Eugene FRANKLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 03-05-00184-CR.
    Court of Appeals of Texas, Austin.
    May 16, 2005.
    Gary Eugene Franklin, Del Valle, pro se.
    Ronald Earle, District Atty., Austin, for The State.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

W. KENNETH LAW, Chief Justice.

Gary Franklin was placed on deferred adjudication supervision after he pleaded guilty to sexually assaulting a child. Franklin has now been adjudicated guilty and he seeks to appeal. The trial court has certified that this is a plea bargain case and Franklin has no right of appeal. See Tex.R.App. P. 25.2(a)(2).

A defendant who plea bargains for deferred adjudication has a right to appeal, following a subsequent adjudication, issues unrelated to the conviction but no right to appeal issues related to the conviction. Woods v. State, 68 S.W.3d 667, 669 (Tex.Crim.App.2002); Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App.2001); Vidaurri v. State, 49 S.W.3d 880, 884-85 (Tex.Crim.App.2001). The form promulgated by the court of criminal appeals to certify the defendant’s right of appeal does not provide for this conditional right of appeal. See Tex.R.App. P. appendix (found at Tex.R.App. P. 25.2, notes and comments (West 2003)); and see Kahookele v. State, 165 S.W.3d 440 (Tex.App.-Austin 2005, no pet. h.); Carroll v. State, 119 S.W.3d 838, 840 (Tex.App.-San Antonio 2003, no pet.).

The trial court’s certification that Franklin has no right of appeal is incorrect and therefore defective. See Dears v. State, 154 S.W.3d 610, 614 (Tex.Crim.App.2005) (inaccurate certification is defective). We abate the appeal for ten days and instruct the trial court to prepare and send to this Court an amended certification that accurately reflects Franklin’s conditional right of appeal. Tex.R.App. P. 37.1; see Dears, 154 S.W.3d at 614. The certification should state that there was a plea bargain for deferred adjudication, but following an adjudication of guilt the defendant has the right of appeal as to issues unrelated to the conviction. See Kahookele, 165 S.W.3d at 443-44.

The appeal is abated.


author: SAM GRIFFITH, Justice.

text:
    In re MABANK INDEPENDENT SCHOOL DISTRICT.
    No. 12-04-00382-CV.
    Court of Appeals of Texas, Tyler.
    May 18, 2005.

      Dennis Eichelbaum, Janice S. Parker, Schwartz & Eichelbaum, P.C., Frisco, Sharon S. Gilmore, for relator.
    Myrna B. Silver, Pamela A. Cherry, Dallas, for real party in interest.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION DENYING REHEARING

SAM GRIFFITH, Justice.

Relator Mabank Independent School District has filed a motion for rehearing in this original proceeding. The motion is denied. However, we withdraw our opinion dated March 31, 2005 and substitute the following opinion in its place.

In this original proceeding, relator Ma-bank Independent School District (MISD) challenges an abatement order signed by the respondent, the Honorable Howard Tygrett, Judge of the 86th Judicial District Court, Kaufman County, Texas, after MISD filed a plea to the jurisdiction. MISD requests that we (1) grant its plea to the jurisdiction and dismiss the case, (2) remand with directions for the respondent to grant the plea to the jurisdiction and dismiss the case, or (3) issue a writ of mandamus directing the respondent to rule immediately on MISD’s plea to the jurisdiction. We deny the petition.

Background

On October 23, 2003, Allen and Stacy Allen, as parents and next friends of Dillon Allen, entered into a mediated settlement agreement (MSA) with MISD to resolve their claims against MISD arising under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1487. Paragraph A.6. of the MSA provided that MISD would allow the Allens’ children, Dillon, Dakota, and Destiny, to transfer to Central Elementary School and would not “unreasonably deny requests for transfer in future school years.”

After the end of the 2003-2004 school year, Mrs. Allen submitted a formal transfer request for Dakota and Destiny to attend Central Elementary School during the 2004-2005 school year. By letter dated July 20, 2004, the MISD superintendent notified Mrs. Allen that her transfer request had been denied. Mrs. Allen then requested a mitten reason for the denial. In response, she received a letter from MISD’s counsel informing her that MISD could not accommodate her transfer request because the applicable programs at Central Elementary School were at capacity. Because the MSA had been mediated pursuant to the IDEA, Mrs. Allen filed a request for a due process hearing with the Texas Education Agency. On August 30, 2004, the request was dismissed because Dakota and Destiny were not special education students.

In September 2004, the Allens filed suit alleging that MISD had breached the MSA by unreasonably denying the transfer request. MISD filed a plea to the jurisdiction alleging that the Allens (1) failed to make a written objection to the denial of the transfer request, (2) failed to timely seek a transfer, and (3) failed to appeal the denial of the transfer request to the superintendent and the board of trustees. In their response, the Allens averred that they had objected, in writing, to denial of the transfer request and that the next step was for the superintendent to place the matter on the agenda for the next regularly scheduled meeting of MISD’s Board of Trustees (the Board). The respondent conducted a hearing on MISD’s plea, at which time the respondent was informed that the Board had received the Allens’ appeal. After the hearing, the respondent abated the plea to the jurisdiction pending the Allens’ exhaustion of their administrative remedies. MISD subsequently filed a motion requesting the respondent to reconsider its action and rule on the plea to the jurisdiction. After considering MISD’s motion, the respondent signed a written order abating the underlying proceeding until the Board ruled on the Al-lens’ transfer request. The order included a recitation that “[t]he Court, having considered [MISD’s plea to the jurisdiction], has neither granted nor denied the plea to the jurisdiction.” This original proceeding followed.

Discussion

Availability of Mandamus

Mandamus is an extraordinary remedy available only to correct a clear abuse of discretion or the violation of a duty imposed by law and only in situations where there is no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). Erroneously analyzing and applying the law constitutes an abuse of discretion. Id. at 840.

The Parties’ Contentions

MISD asserts that the legislature has granted the trustees of an independent school district exclusive jurisdiction to resolve transfer issues, and a court may not consider a transfer appeal until after the Board has considered the appeal and any exceptions to its ruling. MISD further contends that student transfer requests arise under the school laws of Texas. Therefore, its argument continues, the parties must exhaust all administrative remedies before resorting to the courts for relief. Relying on City of Galveston v. Gray, 93 S.W.3d 587 (Tex.App.-Houston [14th Dist.] 2002, pet. denied), MISD urges that the respondent had a duty imposed by law to rule on MISD’s plea to the jurisdiction. Finally, MISD argues that the respondent also had a duty imposed by law to grant the plea to the jurisdiction and dismiss the underlying proceeding with prejudice.

The Allens argue that because them lawsuit involves the breach of an MSA, the district court has jurisdiction over this matter just as it would over any other contract dispute. See Tex. Civ. PRAC. & Rem.Code Ann. § 154.071(a) (Vernon 1997) (written settlement agreement enforceable in same manner as any other written contract). Thus, the Allens urge that the Board has primary, but not exclusive, jurisdiction and maintain that the respondent’s ruling and corresponding order were proper.

Exclusive versus Primary Jurisdiction

Under the exclusive jurisdiction doctrine, the legislature grants an administrative agency the sole authority to make an initial determination in a dispute. See Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex.2000). An agency has exclusive jurisdiction when a pervasive regulatory scheme indicates that the legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed. See Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex.2002).

Whether an agency has exclusive jurisdiction depends on statutory interpretation. Id. Typically, if an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking judicial review of the agency’s action. See Bennett, 35 S.W.3d at 15. Until then, the trial court lacks subject matter jurisdiction and must dismiss without prejudice the claims within the agency’s exclusive jurisdiction. Subaru, 84 S.W.3d at 221. In other words, exclusive jurisdiction is jurisdictional. Id. at 220.

“Primary jurisdiction” is a judicially-created doctrine whereby a court may dismiss or stay an action, pending a resolution of some portion of the case by an administrative agency. Shell Pipeline Corp. v. Coastal States Trading, Inc., 788 S.W.2d 837, 842 (Tex.App.-Houston [1st Dist.] 1990, writ denied). The doctrine operates to allocate power between courts and agencies when both have authority to make initial determinations in a dispute. Subaru, 84 S.W.3d at 221. Questions of primary jurisdiction arise only when the statutory arrangements are such that administrative and judicial jurisdiction are concurrent for the initial decision of some questions. The purpose of the doctrine is to assure that the agency will not be bypassed on what is especially committed to it. Foree v. Crown Cent. Petroleum Co., 431 S.W.2d 312, 315 (Tex.1968) (citations omitted).

The Board’s Jurisdiction

The trustees of an independent school district have the exclusive power and duty to oversee the management of the public schools of the district. Tex. Eduo.Code AnN. § 11.151(b) (Vernon Supp.2004-05). In performing this statutory duty, the board of trustees of an independent school district, or a school employee designated by the board, may assign and transfer any student from one school facility or classroom to another within its jurisdiction. Tex. EduC.Code Ann. § 25.031 (Vernon 1996).

The board’s decision on a transfer request is final unless the student, or the parent, guardian, or custodian of the student as next friend, files an exception to the board’s decision, alleging that the decision denies a right of the student that is guaranteed by the United States Constitution. Id. § 25.034(e). If the exception is overruled, the objecting party may then appeal the board’s decision to the district court of the county in which the board is located. Id. § 25.034(f). The petition must state facts relevant to the student that relate to the alleged denial of the student’s rights under the United States Constitution. Id. § 25.034(f)(2).

The language of these statutes expresses the legislative intent that the board of trustees of an independent school district have exclusive jurisdiction over transfer requests. This interpretation is consistent with the statement of purpose preceding the original enactment of the provisions relating to transfers within and outside the district, which states, in part, as follows:

An Act to declare the public policy of the State of Texas with respect to public education; ... and to prohibit [Boards of School Trustees] from making or administering any order of reallocation of pupils without a finding by the Board or authority designated by it that such transfer or placement is as to each individual pupil consistent with the policies prescribed in this Act....

Act of May 23, 1957, 55th Leg., R.S., ch. 287, 1957 Gen. Laws 683 (amended 1969, 1995) (current version at Tex. Educ.Code Ann. § 25.031-25.042 (Vernon 1996 & Supp.2004-2005)). Thus, as a general rule, the district court has subject matter jurisdiction to review a board’s denial of a transfer request only where the requesting party (1) has exhausted the administrative remedies set out in Section 25.034 and (2) complains to the district court that the denial is violation of a right guaranteed the student by the United States Constitution. See Tex. Educ.Code ANN. § 25.034(f).

The Trial Court’s Order

Because the Allens do not contend that the denial resulted in a deprivation of constitutional rights, see id. § 25.034(e), (f), no challenge to the reasonableness of the Board’s transfer decision is available under the “school laws of Texas.” See id. § 25.034(e). Moreover, the Allens did not assert a cause of action pursuant to the Texas Education Code. Instead, they allege that MISD unreasonably denied Mi’s. Allen’s transfer request, thereby breaching the MSA. Thus, the Allens’ claim is one for breach of contract.

We see nothing in the statutes relating to student transfers, nor does MISD cite to any such statute, that delegates to the Board jurisdiction to resolve a contractual dispute such as the one alleged here. Thus, the district court has jurisdiction over this matter just as it would over any other contract dispute. See Tex. Civ. PRAC. & Rem.Code Ann. § 154.071(a). However, the necessary facts underlying the Allens’ breach of contract claim raise an issue that falls within the Board’s exclusive jurisdiction, i.e., the disposition of Mrs. Allen’s transfer request.

The Allens’ claim is predicated on the assumption that the Board will deny their appeal of the superintendent’s decision. Consequently, the Allens must first exhaust their administrative remedies and obtain a final Board decision on their transfer request. See Subaru, 84 S.W.3d at 226 (where necessary facts underlying breach of oral contract claim fall within exclusive jurisdiction of administrative agency, party making claim must first exhaust administrative remedies). Therefore, abatement was the proper course for the respondent trial court. See id. at 228 (Texas Supreme Court remanded breach of oral contract claim to trial court with instructions to abate pending exhaustion of administrative remedies to obtain final board finding supporting claim). Although MISD maintains that Gray requires a contrary result, that case did not involve the exhaustion of administrative remedies and is inapposite. See Gray, 93 S.W.3d at 589 (respondent trial court refused to rule on plea to jurisdiction filed in suit brought pursuant to Texas Tort Claims Act).

Conclusion

Because abatement was proper under the facts presented here, the respondent’s December 14, 2004 abatement order does not constitute an abuse of discretion. Because MISD has not shown an abuse of discretion, we need not consider whether MISD has an adequate remedy by appeal. The writ of mandamus is denied.

      . MISD's “Intradistrict Transfer Guidelines’’ permitted a parent or guardian to complete an "Intradistrict Transfer Request” form and submit it to the superintendent or the superintendent's designee.

      . Dillon, a special education student, was moving to a middle school campus for the 2004-2005 school year and therefore was not named in the transfer request.

      . MISD’s "Intradistrict Transfer Guidelines” provided as follows:
      The parent may appeal the Superintendent’s decision to the Board. Upon receiving from the Parent/guardian a written objection to the Superintendent’s decision, the Superintendent shall list the item on the next agenda of the regularly scheduled board meeting. If the Board takes no action, the objection is considered to be overruled. The Superintendent will notify the parent/guardian of the result of the appeal. The decision of the Board is final.

      . MISD also questions whether it was bound by the MSA past the 2003-2004 school year. However, that issue is not before us here.