author: Justice CARTER.

text:
    Bruce Alan VACTOR, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00094-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 24, 2005.
    Decided Nov. 10, 2005.

      Jason D. Cassel, The Cassel Law Firm, PC, Longview, for appellant.
    Ray Bowman, Asst. Dist. Atty., Long-view, for state.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

After the trial court denied his motion to suppress evidence, Bruce Alan Vactor pled guilty to the offense of possession of a controlled substance (cocaine) in an amount greater than one gram but less than four grams, a third-degree felony. See Tex. Health & Safety Code ANN. § 481.102(3)(D) (Vernon Supp.2005) (cocaine is group 1 drug); § 481.115(c) (Vernon 2003) (offense of possessing penalty group 1 drug). There was no negotiated plea agreement, and Vactor’s punishment range was enhanced by virtue of his plea of “true” to having been previously and finally convicted of one other felony offense. See Tex. PeN.Code Ann. § 12.42(c)(1) (Vernon Supp.2005) (enhanced range fifteen to ninety-nine years or life). The trial court sentenced Vactor to fifteen years’ imprisonment. Vactor now appeals, contending the trial court erred by denying his motion to suppress in contravention of his state and federal constitutional rights. We affirm.

Vactor argues on appeal that the police lacked reasonable suspicion to stop him. Alternatively, Vactor contends that, if the initial detention was proper, the subsequent invasive search was unlawful. In both arguments, Vactor claims the police searched him in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution, and in violation of Article I, Section 9 of the Texas Constitution. Vactor does not, however, provide argument or authority that the Texas Constitution is more comprehensive than the federal counterpart. Accordingly, we limit our analysis to the federal protections. Cf. Carmouche v. State, 10 S.W.3d 328, 326 n. 1 (Tex.Crim.App.2000).

A. Standard of Review

A trial court’s ruling on a motion to suppress evidence is reviewed for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); Carter v. State, 150 S.W.3d 230, 235 (Tex.App.-Texarkana 2004, no pet.). If the trial court’s ruling is correct under any theory of law applicable to the case, we must affirm. Romero v. State, 800 S.W.2d 539, 543-44 (Tex.Crim.App.1990); Shaw v. State, 122 S.W.3d 358, 363 (Tex.App.-Texarkana 2003, no pet.). “The general rule is that an appellate court should afford almost total deference to a trial court’s determination of the historical facts supported by the record, especially when the trial court’s fact-findings are based on an evaluation of credibility and demeanor.” Carter, 150 S.W.3d at 235 (citing State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000)). “At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses.” Carter, 150 S.W.3d at 235 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)). We should afford great deference to a trial court’s ruling on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those questions turns on an evaluation of credibility and demeanor. Carter, 150 S.W.3d at 235. However, we review de novo those issues and questions that do not turn on credibility or demean- or. Id. <fWhere, as here, a trial court makes no explicit findings of historical fact, the appellate court should view the evidence in the light most favorable to the trial court’s ruling and assume the trial court made implicit findings of fact.” Id. (citing Carmouche, 10 S.W.3d at 328).

B. The Initial Investigative Detention

The United States Supreme Court has held “police can stop and briefly detain a person for investigative purposes if [the officer has] a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if [the officer] lack[s] probable cause.... ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “The officer, of course, must be able to articulate something more than an inchoate and unpartic-ularized suspicion or ‘hunch.’ ” Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). But this level of reasonable suspicion “is considerably less than proof of wrongdoing by a preponderance of the evidence,” and it requires less than the probable standard, which calls for facts suggesting “a fair probability that contraband or evidence of a crime will be found.” Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); and referencing United States v. Montoya de Hernandez, 473 U.S. 531, 541, 544, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985)). And the Court further instructs us to consider the totality of the circumstances in considering whether the initial detention was reasonable. Sokolow, 490 U.S. at 8, 109 S.Ct. 1581; see also United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). In fact, several individual considerations that by themselves each appear innocent can, seen as part of a greater totality, “justify the suspicion that criminal activity was afoot.” Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980).

At the hearing on the motion to suppress, Officer Larry Webb of the Long-view Police Department testified he was working the late afternoon and early evening patrol of May 24, 2003. Webb arrived at the intersection of Oden and Davis Streets in Longview, and he started to turn into a nearby alley. As Webb approached the alley, an area Webb testified was a high narcotics trafficking area, Webb saw Gwen King (a person Webb knew to be both a drug user and a prostitute) and Vactor. Webb observed Vactor had cupped his hands out in front toward King, and it appeared Vactor was showing something in his hands to her. Vactor then saw Webb, turned his back to Webb, and then appeared to take what had previously been in his cupped hands and stuff it into his pants. When Vactor turned around to where Webb could see his face, Webb noticed something different about the front of Vactor’s pants: Vactor now had what appeared to be an abnormally large bulge in his crotch. Webb then exited his patrol vehicle and made contact with Vactor. Vactor denied having stuffed anything in his pants. On the videotape, it is clear that Webb then repeatedly advised Vactor that Webb needed to check Vac-tor’s person for weapons and appeared to attempt to do a Terry pat-down. Vactor reacted negatively, was uncooperative, and his actions frustrated Webb’s attempts at a pat-down search. When Webb subsequently tried to place Vactor in handcuffs for the purpose of performing a Terry pat-down for weapons, Vactor resisted by forcefully struggling and pushing away the officer.

Vactor argues this case is “almost identical” to the facts in Cook v. State, 1 S.W.3d 718 (Tex.App.-El Paso 1999, pet. ref'd), where the El Paso court found the officer did not have a reasonable suspicion that criminal activity was taking place to justify a temporary detention of the defendant. Id. at 722. We acknowledge some of the facts in Cook are similar (for instance, both defendants were talking with a female in an area where drugs were commonly sold), but we do see some significant factual distinctions. In Cook, the officer observed Cook standing with a female with his hand out. On top of his hand was a white Kleenex or baggie. Cook was flipping through something with his thumb. The officer testified this was a typical way to sell drugs in that area. Id. at 719. However, it appeared the officer in Cook did not stop to investigate this incident until he was later flagged down by a merchant who was complaining about drug sales in front of his place of business. In the case now before this Court, Webb observed Vactor talking to a known drug user with his hands cupped. When Vactor saw Webb, Vactor stuffed something in his pants, creating a bulge that was readily observable by Webb. Webb immediately made contact with Vactor. We believe the facts that Vactor was talking with a person known by the police to be a drug user (rather than simply a male talking to a female) and that Vactor was observed placing a noticeable object in his pants are important distinctions from the facts in Cook. Further, in this case, Webb stopped to investigate immediately, whereas in Cook the officer stopped after a request from a business owner in the area. That owner then told the officer that Cook was not the individual he had earlier seen selling drugs. Id. at 720.

While each of the facts in Vactor’s case may or may not individually suggest criminal activity, considered in concert they support the trial court’s conclusion that Webb’s initial detention of Vactor was justified by a reasonable suspicion Vactor was engaged, or would soon be engaging in, criminal activity. Being in a known drug location, furtively showing something to a known drug user, and then both hiding the item (or items) and lying to the police officer about having tried to conceal evidence all support the trial court’s conclusion. Cf. Acosta v. State, 868 S.W.2d 19, 21 (Tex.App.-Austin 1993, no pet.) (officer’s traffic stop of appellant justified by facts, including giving ride to known prostitute and subsequently driving elusively). Thus, we agree that the officer’s initial detention of Vactor was supported by reasonable suspicion. We now turn to the issue of whether Webb’s subsequent search of Vac-tor was lawful.

C. Search Incident to Arrest

A warrantless search of a person is presumed unreasonable unless one of the exceptions to the warrant requirement applies. Brimage v. State, 918 S.W.2d 466, 500 (Tex.Crim.App.1996) (plurality op.) (op. on reh’g); Kelly v. State, 669 S.W.2d 720, 725 (Tex.Crim.App.1984); Hitchcock v. State, 118 S.W.3d 844, 848 (Tex.App.-Texarkana 2003, pet. ref'd). The State argued at trial, and now again on appeal, that Webb’s warrantless search of Vactor was permissible as a search incident to Vactor’s arrest. A search made incident to arrest is excepted from the Fourth Amendment’s warrant requirement. See, e.g., United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

When reasonably necessary given the circumstances of the investigar tive detention, an officer may place a suspect in handcuffs for purposes of protecting and ensuring the officer’s safety before performing a Terry pat-down search of the suspect. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Crim.App.1997); Spight v. State, 76 S.W.3d 761 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Since Vactor had repelled several attempts by Webb to do a pat-down search, Webb attempted to place Vactor in handcuffs before he performed a Terry search. The videotape also shows Webb ordered Vactor no fewer than twenty times to place his hands behind his back to facilitate the handcuffing process, but Vactor refused to comply. Given the specific facts available to Webb at the time, we cannot say it was unreasonable under the circumstances of this case — high narcotics trafficking area, presence of known drug user and prostitute, lying about furtive movements, failing to comply with repeated requests to permit a pat-down— that the use of handcuffs was improper. The use of handcuffs appeared to be necessary to thwart Vactor’s attempts to frustrate the Terry search. Cf. Rhodes, 945 S.W.2d at 117 (quoting 3 Lafave, Search and Seizure, § 9.2(d), 364 (1987). See also, 4 LaFave, Search and Seizure, § 9.2(d), 36-38 (1996)). When Webb grabbed Vac-tor’s right hand and started to move it behind Vactor’s back, Vactor forcefully struggled and pushed Webb away. Webb and another officer had to wrestle Vactor to the ground to gain control of the situation.

Vactor does not challenge the reasonableness of the decision to place him in handcuffs during the planned Terry search. Nevertheless, once Vactor forcefully resisted Webb’s attempt to place him in handcuffs for the purpose of safely performing a Terry search, Vactor committed the new criminal offense of resisting a search. See Tex.Pen.Code ANN. § 38.08 (Vernon 2003); see also Santos v. State, No. 14-03-01150-CR, 2005 WL 1552638, at *1, 2005 Tex.App. LEXIS 5167, at *3-4 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (mem.op.) (not designated for publication). This new offense was unquestionably committed in Webb’s presence. Therefore, Webb had probable cause to arrest Vactor for the new criminal offense. See Tex.Code Crim. Proc. Ann. art. 14.01 (Vernon 2005) (peace officer may arrest without a warrant for any offense committed in his or her presence). The invasive search that is the subject of this appeal occurred subsequent to Vactor committing the new criminal offense. Because the trial court could have reasonably concluded Webb had probable cause to arrest Vactor for the new criminal offense, it follows that the trial court could have determined Webb’s subsequent search of Vactor was permissible as a search incident to arrest. Accordingly, we overrule Vactor’s point of error.

D. Conclusion

For the foregoing reasons, we affirm the trial court’s judgment.

      . By this time, other officers with the Long-view Police Department had arrived as backup. Webb also turned on his patrol unit’s video camera, which made a recording of the subsequent events. This recording was admitted into evidence, and it is part of the record before us.

      . See generally Terry, 392 U.S. 1, 88 S.Ct. 1868.

      . Both Cook, 1 S.W.3d at 720, and Jackson v. State, 993 S.W.2d 162, 164 (Tex.App.-East-land 1999, no pet.), have treated the resistance to a search incident to an investigative detention as a violation of Tex. Pen.Code Ann. § 38.03 as well as resisting a "traditional” search.


source: Caselaw Access Project

author: BOB McCOY, Justice.

license: Public Domain

text:
    Melissa Ann KITCHEN, Appellant, v. Steven Allen FRUSHER, Appellee.
    No. 2-04-205-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 10, 2005.
    Rehearing Overruled Dec. 1, 2005.

      Brown, Dean, Wiseman, Liser, Proctor & Hart, L.L.P. and Billy R. McGill, Fort Worth, for Appellant.
    Kelsoe, Anderson, Khoury & Clark and Jeffrey L. Clark, Dallas, Shannon, Gracey, Ratliff & Miller, L.L.P. and Joseph W. Spence, Fort Worth, for Appellee.
    Panel A: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
   OPINION ON REHEARING

BOB McCOY, Justice.

On June 30, 2005, we issued an opinion reversing the trial court’s judgment and remanding it for a new trial. Appellee subsequently filed a motion for rehearing. After reconsidering our opinion, we deny the motion for rehearing, withdraw our prior opinion and judgment, and substitute the following in their place.

I. INTRODUCTION

Appellant Melissa Ann Kitchen appeals from a judgment rendered on a jury verdict whereby the jury failed to award her any remuneration for her work at a health club. In four issues, she complains that (1) an irreconcilable conflict exists in the answers to the first two jury questions wherein the jury found that she performed compensable work but valued the work at zero dollars, (2) the finding of zero value for her compensable work is against the great weight and preponderance of the evidence, or alternatively, (3) the zero finding is supported by no evidence, and (4) the jury finding of zero for the value of her attorney’s fees is against the great weight and preponderance of the evidence. We will reverse and remand for a new trial.

II. Factual Background

Kitchen met Appellee Steven Allen Frusher while working at a bar, moved in with him in June 2000, and became engaged to him three months later. Kitchen and Frusher began discussing opening a Curves health club in Grapevine, Texas because he had experience managing health clubs in the 1980s and she wanted to get out of bartending and establish a career for herself. Frusher was acquainted with Curves because his sister works for Curves Franchise Sales and he is a friend of the founder and CEO of Curves International, Inc. Curves offers thirty-minute fitness workouts and weight loss and nutritional programs that cater to women who do not feel comfortable walking into a traditional health club facility.

Frusher purchased the franchise rights to a Curves using funds from his personal account and subsequently entered into a franchise agreement with Curves International, Inc. in April 2001. The signed franchise agreement for the health club was between Curves International, Inc. and Frusher. The club was located in a shopping center; the lease agreement was between Frusher and Park and 114 Joint Venture. Frusher obtained a $15,000 start up loan, which he used to renovate a portion of the leased space. Frusher alone was obligated on the note. Frusher also acquired an assumed name certificate for the franchise, which was also solely in his name. He testified that all of the original documents connected with the health club indicated that he was the sole owner of the business, that he had told Kitchen no part of the business would be in her name until they were married, and that she had no problem with that. Frusher testified that the reason for his caution was because Kitchen had been engaged on two prior occasions.

The health club opened in May 2001 with both Kitchen and Frusher participating in operating the business. Frusher handled much of the computer work, and Kitchen assisted training the women. Kitchen also paid bills, signed up new customers, trained new customers on equipment, hired part-time employees, was primarily in charge of customer service and customer relations, did marketing, advertising, and promotion work, and maintained the fitness equipment. After the first six months of operation, however, Kitchen worked at the club more than Frusher did, and according to Frusher’s sister-in-law, Cheryl Frusher, Kitchen was the person who was primarily running the business on a daily basis.

Kitchen worked at Curves for two years. She testified that Frusher led her to believe that she was a co-owner of the business. Frusher ordered business cards for Curves that read “Melissa Kitchen and Steve Frusher, Owners.” Frusher testified that he had these cards made because he and Kitchen were supposed to be married shortly after they opened the club and that he passed those business cards out to friends and people who might be interested in joining the club. Frusher also ordered a name tag that read “Melissa Kitchen, Owner,” which she wore. During this time she received no salary, no paycheck, and no cash for working there, nor were social security or medicare taxes paid for her. However, both Kitchen and Frusher used the Curves bank account for their personal expenses. Frusher allowed Kitchen to write checks on and withdraw funds from the business account the entire time she worked at Curves, which she did; there was no monetary limit regarding what she could spend from the account.

Kitchen and Frusher had planned to be married in Las Vegas at a Curves convention in November 2001, but the wedding did not take place because they could not afford the trip and the time away from the business. No new wedding date was set. From October 2002 through June 2003, Frusher was in Austin, Texas working on special effects for the movie “The Alamo.” Kitchen ran the club on a daily basis while he was away. Frusher also had a few small projects in Dallas in addition to his movie work. Kitchen broke off their engagement in June 2003 after Frusher returned from Austin because they had “grown apart” and they had “personal issues.” After the breakup, Frusher asked Kitchen to move out of his house, he removed her name from the bank accounts, and he changed the locks on the business, denying her access thereto. Frusher told her that the business was solely his and that she was entitled to nothing.

At the time of the breakup, the club had 191 members, according to Frusher, or around 300 members, according to Kitchen, and was generating around $10,000 a month in gross revenue. Kitchen testified that it was never her intention that the only benefit she would receive from working at Curves was to be able to use the bank account for personal expenses, and she thought that she and Frusher would share in the profits of the business as co-owners. Frusher, on the other hand, considered Kitchen to be an employee of Curves and believed her compensation was the use of the Curves bank account to pay her personal expenses.

III. Procedural Background

Kitchen filed suit against Frusher, alleging in her first amended petition that she was entitled to a declaratory judgment that the business was a partnership and that Frusher breached the agreement by excluding her from the business. Alternatively, Kitchen alleged a claim for quantum meruit for the value of her services working at the club. At the time of trial, Kitchen dropped her partnership claim and proceeded only on her quantum meru-it claim.

In the charge of the court, the jury was asked three questions. In response to question one, “Did Melissa Ann Kitchen perform compensable work for Steven Allen Frusher with respect to the Curves business?,” the jury answered ‘Tes.” In response to question number two, “What is the reasonable value of such compensable work at the time and place it was performed?,” the jury answered “$0.00,” which is the same answer the jury gave to question number three inquiring about the reasonable value of attorney’s fees for Kitchen’s lawyer. Neither party objected to the jury verdict, the verdict was accepted, and the jury was discharged. Based upon the jury findings, the trial court entered a final judgment in favor of Frusher and against Kitchen. This appeal followed.

IV. Irreconcilable Conflict

In her first issue, Kitchen argues that there was an irreconcilable conflict between the answers to the first two jury questions. She asserts that one cannot reconcile the answer to question number one that she performed “compensable work,” which was defined as having value, and then find that the “reasonable value of such compensable work” is zero, unless the jury took into account the value of her personal expenses paid from the Curves checking account that Kitchen argues was impermissible because “payment” was not pled as an affirmative defense. The trial court provided the following definition of “compensable work”: “One party performs compensable work if valuable services are rendered for another party who knowingly accepts them and if the party accepting them should know that the performing party expects to be paid for the work.”

Frusher initially responds that Kitchen failed to preserve error by not objecting to the conflicting answers prior to the jury’s discharge. We agree. We specifically held in Columbia Medical Center of Las Colinas v. Bush, 122 S.W.3d 835 (Tex.App.-Fort Worth 2003, pet. denied), that a complaint of conflicting jury findings was not “preserved for our review because Appellants did not raise any contention concerning conflicting jury findings before the jury was discharged.” Id. at 861; see, e.g., Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 865 (Tex.App.-Corpus Christi 1999, pet. denied); Durkay v. Madco Oil Co., 862 S.W.2d 14, 16 (Tex.App.-Corpus Christi 1993, writ denied). To the extent our holding on this issue in First Texas Service Corp. v. McDonald, 762 S.W.2d 935, 939-40 (Tex.App.-Fort Worth 1988, writ denied), is in conflict with our more recent decision in Bush, it is overruled. Kitchen’s first issue is likewise overruled.

V. Zero Value of Compensable Services

In her second and third issues, Kitchen argues that the finding of no value for her compensable work in response to question number two is “against the great weight and preponderance of the evidence so as to be manifestly unjust” and that “there was no evidence supporting the jury’s finding.”

A. Legal Sufficiency

1. Standard of Review

A legal sufficiency challenge may only be sustained when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfin-der could, and disregard evidence contrary to the finding unless a reasonable factfin-der could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005).

If a party is attacking the legal sufficiency of an adverse finding on an issue on which the party had the burden of proof, she must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). We first examine the record for evidence that supports the finding, while disregarding evidence to the contrary when reasonable to do so. Dow Chem. Co., 46 S.W.3d at 241; see also City of Keller, 168 S.W.3d at 827. If there is no evidence to support the finding, we will then examine the entire record to determine if the contrary proposition is established as a matter of law. Dow Chem. Co., 46 S.W.3d at 241; Sterner, 767 S.W.2d at 690.

2. Evidence of Reasonable Value

After examining the record, we initially note that there is no evidence that Kitchen’s compensable work had no reasonable value. We now examine the record to determine if a particular value for Kitchen’s compensable work was established as a matter of law. See Dow Chem. Co., 46 S.W.3d at 241; Sterner, 767 S.W.2d at 690.

The jury heard varying amounts of evidence regarding the reasonable value of the compensable work performed by Kitchen. Frusher testified that a reasonable annual rate of compensation for a full-time manager of Curves with responsibilities identical to Kitchen’s would be $24,000 a year based on a good job performance. Kitchen testified that a reasonable hourly range for her services would be $12.00 per hour with time-and-a-half for work over forty hours per week. Heather Whitman, manager of the health club at the time of trial, earned $12.00 per hour in that position, and Frusher testified that she performed the same duties as Kitchen. Frusher testified that Kitchen worked twenty to twenty-five hours a week, but Kitchen testified that she worked fifty to fifty-five hours a week. A part-time employee, according to Frusher, was paid $8.00 per hour.

Despite the testimony above, the jury may have believed that the reasonable value of compensable work performed by Kitchen was not $8.00 per hour, $12.00 per hour, or $24,000 per year, but the amounts she withdrew from the Curves business account for personal expenses. This is because the jury heard repeated, unobject-ed to evidence that Kitchen’s compensation for working at the health club consisted of her access to the Curves business account. Kitchen testified on cross-examination as follows:

[Frusher’s Counsel]: And what agreement did you and Mr. Frusher make about the compensation that you would receive relating to your working at the Curves business?
[Kitchen]: Relating to sharing in the profits.
[Frusher’s Counsel]: Okay. And tell the ladies and gentleman of the jury what the terms of your agreement was.
[Kitchen]: I would pay our personal expenses and I would pay the business expenses out of that account.
[Frusher’s Counsel]: So how it worked is your compensation would be you would be able to take money out of the business account and pay for your personal expenses?
[Kitchen]: Yes.

Frusher testified,

[Kitchen’s Counsel]: I know. But as you sit here today, did you consider her personal expenses her pay for managing Curves?
[Frusher]: Yes.

Frusher further testified as follows:

[Frusher’s Counsel]: And tell the ladies and gentlemen of the jury what corn-pen — what the terms of that compensation agreement was.
[Frusher]: She would basically run the club, and for her — for—her compensation would be that she would be able to withdraw money out of the bank account to pay for all her expenses.
[Frusher’s Counsel]: And did you comply with that agreement that you made with Ms. Kitchen?
[Frusher]: Fully, yes.

Finally, Kitchen, again, testified as follows:

[Frusher’s Counsel]: Let me ask you this way: Is it a true statement that at the time that the Curves business was opened in Grapevine that you and Mr. Frusher had an oral agreement about how you would be compensated?
[Kitchen]: I would have to say, yes, we did.

Thus, the jury may have considered the reasonable value of Kitchen’s compensable work the amounts that she withdrew from the Curves business account pursuant to the alleged “arrangement” between her and Frusher.

Our examination of the entire record thus demonstrates that the jury heard varying evidence regarding the value of Kitchen’s compensable work but that no particular value was conclusively established as a matter of law. See Uniroyal Goodrich Tire Co., 977 S.W.2d at 334. Accordingly, because the evidence failed to establish a particular value for Kitchen’s compensable work as a matter of law, her legal sufficiency challenge must fail. We overrule Kitchen’s third issue.

B. Factual Sufficiency

In reviewing an issue asserting that a finding is “against the great weight and preponderance” of the evidence, we must consider and weigh all of the evidence and set aside the finding only if the evidence is so weak or the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 242; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

In accordance with the Texas Supreme Court’s instruction, we will detail the evidence relevant to the issue in consideration and clearly state why the finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust, why it shocks the conscience, or why it clearly demonstrates bias. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) (op. on reh’g); see also Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28 (Tex.1993).

In the instant case, the record demonstrates that while there is no conclusive evidence of a specific value for Kitchen’s work, the evidence is uncontroverted that her work did have value. The evidence detailed above showed that the value of her work ranged from $8.00 per hour to $12.00 per hour, $24,000 per year, and the amounts withdrawn from the Curves business account reflected in the bank records. The evidence that Kitchen’s work had a reasonable value thus overwhelmingly outweighs the jury’s finding that her work had no value such that it is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Dow Chem. Co., 46 S.W.3d at 242. Accordingly, we hold that the evidence is factually insufficient to support the jury’s zero value finding, and we sustain Kitchen’s second issue. Therefore, having sustained her second issue, unless independent grounds exist for upholding the verdict, reversal is warranted.

VI. Independent Grounds for Upholding the Jury Verdict

Frusher cites four reasons for upholding the jury verdict of zero value for Kitchen’s compensable work that were contained in his motion for directed verdict presented at the close of the evidence, which was denied by the trial court.

A directed verdict is proper only under limited circumstances: (1) when the evidence conclusively establishes the right of the movant to judgment or negates the right of the opponent or (2) when the evidence is insufficient to raise a material fact issue. See Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000); Ray v. McFarland, 97 S.W.3d 728, 730 (Tex.App.-Fort Worth 2003, no pet.); see also Tex.R. Civ. P. 268. In reviewing a directed verdict, we must view the evidence in the light most favorable to the party against whom the verdict was rendered. Szczepanik v. First Southern Trust Co., 883 S.W.2d 648, 649 (Tex.1994).

If the question to be decided is whether the losing party at trial raised a material fact issue, we limit our consideration to the evidence in that party’s favor and discard all contrary evidence and inferences. Id. If we determine that any conflicting evidence of probative value raises a material fact issue on any theory of recovery, then the directed verdict is improper because such an issue is for the jury to resolve. Id. When reviewing a directed verdict on a legal issue, we consider all the evidence presented at trial, viewing it in the losing party’s favor as much “as the record allows.” S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.1996).

A. Express Agreement

Frusher first asserts that if a plaintiff and defendant have an express agreement for payment of services, there cannot be a cause of action for quantum meruit as a matter of law. Murray v. Crest Constr., Inc., 900 S.W.2d 342, 345 (Tex.1995). Although we agree with this basic principle, it is inapplicable here because there is evidence that Kitchen and Frusher did not have an express agreement regarding payment. As we discussed above in section V.A.3, supra, Kitchen had access to the Curves business account and used the funds to pay for her personal expenses. This, however, was done with the understanding that she and Frusher were co-owners of the business and that they would share equally in the profits. She did not agree, as Frusher contended during trial and continues to argue on appeal, that she was to be compensated as an employee through her access to the business account. Thus, the evidence was sufficient to create a material fact issue regarding the parties’ agreement for Kitchen’s payment of services. Accordingly, the trial court did not err by denying Frusher’s motion for directed verdict on this ground. This additional ground for affirmance is overruled.

B.Expectation of Payment

Frusher next asserts that the evidence conclusively established- that he should not have known that Kitchen expected to be paid additional money for her work at Curves above and beyond her expenses drawn from the health club bank account. He points to that part of the instruction in question one discussing “compensable work,” which states in part that “the party accepting them [valuable services] should know that the performing party expects to be paid for the work,” which is consistent with element four of a quantum meruit claim. Frusher appears to argue that because there is evidence “concerning the existence of an express agreement between Kitchen and Frusher regarding her compensation at work,” he should not have known that Kitchen expected to be paid additional monies. However, as we discussed above, there is evidence that Kitchen and Frusher did not have an express agreement concerning compensation; evidence was presented demonstrating that the parties had two different understandings regarding payment, i.e. Kitchen did not expect compensation as an employee, but rather as an owner of the business. As such, the issue is not whether Frusher knew that Kitchen expected to be paid additional monies, but whether he knew that she expected to be paid at all. A directed verdict is improper if more than a scintilla of evidence exists, that is, if there is a reasonable basis for a differing conclusion as to whether Frusher should have known Kitchen expected to be paid. See Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 77 S.W.3d 253, 262 (Tex.2002). Because Frusher asserts that they had an agreement to pay her expenses from the club account, he obviously was on notice of her intent to be paid, in conformance with the requirements of the quantum meruit cause of action. Therefore, this additional ground for affirmance is overruled.

C. Insufficient Evidence

In his third ground, Frusher urges that there was legally insufficient evidence to submit the question of the value of the services to the jury. An assertion that the evidence is “insufficient” to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all the evidence in the case in making this determination, not just the evidence that supports the finding. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). As previously set forth in detail, there was ample evidence presented as to the reasonable value of Kitchen’s services. This ground is overruled.

D. Cohabitation

Finally, Frusher asserts that the fact that persons are living in the same household creates a presumption that services are gratuitous, citing Coons-Andersen v. Andersen, 104 S.W.3d 630, 637-38 (Tex.App.-Dallas 2003, no pet.), and Zaremba v. Cliburn, 949 S.W.2d 822, 825-26 (Tex.App.-Fort Worth 1997, writ denied). These cases involve household-related services, not running an outside business. Further, the Coons-Anderson case holds that “where persons are living together as one household, services performed for each other are presumed to be gratuitous, and an express contract for remuneration must be shown or that circumstances existed showing a reasonable and proper expectation that there would be compensation.” Coons-Andersen, 104 S.W.3d at 638. As previously discussed, there is evidence that Kitchen had an expectation of remuneration. Zaremba is a palimony suit subject to the statute of frauds, and we find it inapplicable. 949 S.W.2d at 825-26. Therefore, this ground is also overruled.

VII. Conclusion

In light of our holding sustaining Kitchen’s second issue and our having overruled Frusher’s independent grounds for affir-mance, it is unnecessary for us to reach Kitchen’s fourth issue. See Tex.R.App. P. 47.1. This cause is reversed and remanded for a new trial.

      . Frusher testified that only after Kitchen hired an attorney did he become aware that Kitchen was claiming that she was entitled to compensation exceeding her Curves account withdrawals.

      . See Torres v. Caterpillar, Inc., 928 S.W.2d 233, 244-45 (Tex.App.-San Antonio 1996, writ denied), and Roling v. Alamo Group (USA), Inc., 840 S.W.2d 107, 110 (Tex.App.-Eastland 1992, writ denied), for a discussion of the First Texas Service Corp. holding.

      . When both legal and factual sufficiency challenges are raised on appeal, we must first examine the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981).

      . The arrangement regarding Kitchen’s use of the business account is not "payment” evidence and was not subject to the trial court’s ruling granting Kitchen’s motion to exclude. The trial court made it clear that its ruling "doesn’t preclude [Frusher] from talking about what [his] arrangement is and the fact that [Kitchen] took money out.” Indeed, Kitchen’s counsel stated, "[W]e didn’t get into amounts, and' that’s what my objection is to. If they start getting into amounts to try to offset, then that’s what you have to plead payment for.” (Emphasis added).
      These statements also clarify the extent of the trial court’s decision to exclude particular amounts of payment evidence. Plaintiff’s Exhibit 2, the Curves bank records detailing the deposits and withdrawals made on the account from April 2001 through June 2003, was offered into evidence by Kitchen just before the triad court announced the names of the twelve individuals chosen to serve on the jury panel. Frusher offered no objection to the evidence, which the trial court admitted. After Kitchen objected to Frusher’s attempt to introduce alleged "payment” evidence, the trial court ultimately prohibited Frusher from admitting specific evidence of payment in order to show an offset. It did not prohibit the jury from considering Plaintiff’s Exhibit 2 for other purposes, such as determining the amount of money Kitchen withdrew from the account.

      . Kitchen also does not assert that a particular sum of money has been conclusively established as a matter of law, which is fatal to her legal sufficiency argument. See Ponce v. Sandoval, 68 S.W.3d 799, 809 (Tex.App.-Amarillo 2001, no pet.) (holding that a challenge to the legal sufficiency of the evidence by a party with the burden of proof on the issue fails under the inquiry’s second prong when mov-ant “does not assert that a particular sum of money has been conclusively established by the evidence.”).

      . The elements of a quantum meruit claim are (1) valuable services and/or materials were furnished, (2) to the parties sought to be charged, (3) which were accepted by the parties sought to be charged, and (4) under circumstances that reasonably notified the recipient that the complaining party, in performing, expected to be paid by the recipient. Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992).


text:
    Johnny Lee RHEA, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00007-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 13, 2005.
    Decided Nov. 14, 2005.
    Discretionary Review Refused March 1, 2006.

      George Stephen Hebert, Huffman, for appellant.
    Michael A. Mark, Asst. Dist. Atty., Liberty, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

In what seemed to be a sudden change of strategy, Johnny Lee Rhea pled guilty to two charges of aggravated sexual assault of a child and to two charges of indecency with a child. A Liberty County jury assessed punishment of thirty-five years for each aggravated sexual assault conviction and twenty years for each indecency with a child conviction. The trial court ordered that the sentences run concurrently. Rhea now appeals, contending the trial court committed reversible error by failing to admonish him in accordance with Tex.Code Ceim. PROC. Ann. art. 26.13. We affirm the conviction.

I. FACTUAL AND PROCEDURAL HISTORY

Initially, Rhea insisted on pleading not guilty to the four counts alleging sexual abuse of his stepdaughter. During voir dire, the trial court excused the jury panel and allowed Rhea to consider, and ultimately reject, the State’s final negotiated plea offer. In fact, he persisted in his plea of not guilty until after a jury was empaneled. Following Rhea’s rejection of the State’s final offer, defense counsel requested permission to make a record of his and Rhea’s conversation. In the following lengthy exchange, defense counsel confirmed he and Rhea had discussed the range of punishment to which he was subject, Rhea’s plea options, the sex offender registration requirement, and the limitations on his right to appeal connected with a plea of guilty:

[Defense counsel]: Mr. Rhea, you and I have just momentarily talked. We’ve had a chance to see a portion of the panel members’ answers to the prosecutor’s questions, particularly in light of how they feel about punishment on child abuse cases. You have filed a motion for probation in this case, and I know that you are hoping to get probation, but it will be totally up to the jury.
[Rhea]: I understand.
[Defense counsel]: Do you understand that?
[Rhea]: Yes, sir, I do.
[Defense counsel]: The prosecutor has reopened the offer of 40 years. I have indicated to you my concerns that the possibility of probation is very, very slight, you know, once all of the evidence is out.
[Rhea]: Uh-huh.
[Defense counsel]: Now, whether I can sway a jury to that point or whether I can sway them something under 40 years, only time can tell. Do you understand that?
[Rhea]: Yes, sir, I do.
[Defense counsel]: If after everything I’ve put into it does not work, the jury can come back with 60 years, 70 years, 80 years, 90 years, 99 or life, and at that point there’s no hiring King’s X, I want to do the 40. There’s no way.
[Rhea]: I understand that.
[Defense counsel]: Now, you and I have been working on our trial’s strategy over these last few months, correct?
[Rhea]: Yes, sir.
[Defense counsel]: Now, do you understand that you have a right to plead not guilty and have the prosecutor pull all its witnesses in and make them testify and confront them and cross — examine them and see if I can persuade the jury that you did not in fact do what you’re accused of. You understand?
[Rhea]: Yes, sir.
[Defense counsel]: Okay. And if you enter a plea of guilt before the jury and the State presents just a teeny tiny bit of evidence that supports that plea, the Judge has no choice but to instruct the jury that they must find you guilty. Do you understand that?
[Rhea]: Yes, sir, I do.
[Defense counsel]: Okay. You do understand if a Judge instructs the jury to find you guilty, the jury has no choice but to find you guilty. Okay?
[Rhea]: Yes.
[Defense counsel]: Okay. All right. You understand you have a right not to have to testify. You know, you don’t have to get up there on the witness stand if you don’t want to. Nobody can force you. And if you do not take the stand, the Judge must tell the jury you are not to take that as any evidence of guilt. You understand?
[Rhea]: Yes, sir, I do.
[Defense counsel]: Okay. Now, if you were to take it and enter a plea of guilty to the jury and the State presents just a little bit of evidence to support that-that plea, do you understand that from a real practical standpoint there would be no way an appeal will change the issue of whether or not you are guilty? If you enter a plea, we go forward, the State presents some sort of evidence to support that plea, the jury finds you guilty and assesses some punishment, that as far as the issue of whether you are guilty or not guilty from a real practical standpoint, there will be virtually no grounds for appeal. And there might be some technical things to play with, but from a realistic aspect. Do you understand?
[Rhea]: Yes, sir, I do.
[Defense counsel]: Now, if you go that way and the jury decides they want to go 99 years or life, then the only thing that an appeal could be based on is if the Judge did something wrong in allowing some evidence in or keeping some evidence out that should have been brought in; otherwise, you’re just stuck with whatever happens. Do you understand?
[Rhea]: Yes, sir, I do.
[Defense counsel]: Okay. Now, you and I have talked and I’ve recommended to you that you enter a plea of guilty based on my assessment of the facts, what you’ve described to me in our private conversations, and that is also based on the trial tactic that if you come clean to the jury and the jury can sufficiently see remorse that the punishment might — and I say “might” — be lighter than what they would give someone who they think is trying to deny everything and not trying to change. And I think we heard one or two of the panel members talk about somebody that has changed, you know, if they’ve changed then their views would be different. However, this is just my recommendation and it’s got to be your final choice because this is your life that we’re dealing with. I have no crystal ball.
[Rhea]: Okay. So I can plead not guilty or guilty.
[Defense counsel]: You have a decision to plead either not guilty or guilty, to take the stand or not take the stand.
THE COURT: Or no contest.
[Defense counsel]: You do have the right to plead no contest if you choose to do that.
[Rhea]: I don’t understand no contest.
[Defense counsel]: No contest is basically saying I’m not going to contest the issues of guilt, and then the prosecutor puts on their — their evidence; and if their evidence covers all the elements, then the Judge instructs the jury to find you guilty. Now, you understand that once you enter a plea of guilty, assuming the jury hears sufficient evidence to support that plea, then whatever punishment is assessed, if it is a prison term, then you would have to serve a minimum of one-half of that prison term day for day before the Parole Board will even open up the book on you and see whether or not they’re going to start thinking about parole.
[Rhea]: Okay.
THE COURT: Or — or what period of time?
[State]: 30 years, whatever is less.
[Defense counsel]: And even if the jury goes probation for the remainder of your life, you would be obligated to register as a sex offender.
[Rhea]: I understand that.
[Defense counsel]: If the jury were to recommend probation, this Judge right here would be called upon to determine the conditions of probation, which could include some incarceration as a condition of probation, as well as very strict terms related to what he felt like would be with rehabilitation and security of society.
[Rhea]: I understand that.
[Defense counsel]: Now, with all of this in mind, do you wish to go forward with the trial or do you wish to accept the offer of 40 years from the State?
[Rhea]: I wish to go forward.
[Defense counsel]: By choosing to go forward, do you wish to enter a plea of guilty, not guilty or no contest?
THE COURT: I’m not going to make him make that choice at this point. He’ll have that option after the indictment is read. I think you’ve made it very clear what his options are, and then you can choose that from — when you get before this panel.

We note the trial court’s — -and even the State’s — clarifications and additions to the information relayed by defense counsel to Rhea during this recitation.

Then, after the indictment was read, the trial court reminded Rhea of the available pleas, and in the presence of the jury, Rhea decided to plead guilty. The trial court accepted Rhea’s guilty pleas without further inquiry and without objection: “All right. Your guilty pleas will be accepted and we will move to the punishment phase in this trial.” In a pro se motion for new trial, Rhea requested new counsel and advanced arguments regarding trial counsel’s effectiveness, the victim’s age and consent, the excessive punishment, and the sufficiency of the State’s evidence.

II. APPLICABLE LAW: ARTICLE 26.13 ADMONISHMENTS

Article 26.13 requires the trial court to issue the following admonishments before accepting a plea of guilty or a plea of nolo contendere:

(1) the range of the punishment attached to the offense;
(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contende-re;
(3) the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial;
(4) the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo conten-dere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law; and
(5) the fact that the defendant will be required to meet the registration requirements of Chapter 62, if the defendant is convicted of or placed on deferred adjudication for an offense for which a person is subject to registration under that chapter.

Tex.Code Crim. PROC. Ann. art. 26.18 (Vernon Supp.2005). We note that, since Rhea did not plead guilty pursuant to a negotiated plea agreement, subsections (2) and (3) are not relevant here.

In his first point of error, Rhea complains of the trial court’s general failure to admonish him in accordance with Article 26.13. In his second point of error, Rhea specifically complains of the trial court’s failure to admonish him regarding the sex offender registration requirements as required by Article 26.13(a)(5). We find no authority that would support a different analysis of the trial court’s failure to warn Rhea of the sex offender registration requirement than that required of the trial court’s failure to otherwise warn a defendant in accordance with Article 26.13. Since both points of error, in essence, make the same general contentions, we will treat them together as complaints that the trial court failed to admonish Rhea in compliance with Article 26.13.

III. ANALYSIS

A. Preservation of Rhea’s Complaint

A trial court’s failure — -whether partial or whole — to comply with the Article 26.13 requirement to admonish a defendant regarding the proper range of punishment is subject to a harm analysis. See Aguirre-Mata v. State, 125 S.W.3d 473, 473 (Tex.Crim.App.2003). An appellant who complains about the trial court’s failure to admonish on the range of punishment must have preserved error. See Tex. R.App. P. 33.1; Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App.2004) (“Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, ... all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).”). Rhea did not object to the trial court’s failure at the time of the trial court’s acceptance of his guilty plea or at sentencing. However, complaints of a trial court’s failure to comply with Article 26.13 can be preserved by a timely-fíled motion for new trial. See Papillion v. State, 908 S.W.2d 621, 623 (Tex.App.-Beaumont 1995, no pet.) (relying on Issa v. State, 826 S.W.2d 159, 160-61 (Tex.Crim.App.1992)).

Here, Rhea filed his own motion for new trial. Reading that motion liberally, we note that Rhea maintained his innocence and stated that appointed counsel refused to move for a new trial or to appeal and failed to protect Rhea’s best interests. Rhea also argues that the State’s evidence was insufficient and that the thirty-five-year sentence was excessive, both points arguably raising the issue that Rhea was unaware of the consequences of his plea of guilty. However, Rhea does not specifically complain of the absence of Article 26.13 admonishments.

A complaint raised in a motion for new trial is not preserved unless the motion is presented to the trial court. Tex.R.App. P. 21.6 (requiring presentment within ten days of filing); Carranza v. State, 960 S.W.2d 76, 78-79 (Tex.Crim.App.1998). To establish presentment, the record must show that the movant brought the motion to the trial court’s attention. Id. at 79. The mere filing of a motion for new trial is insufficient to show presentment. Id. at 78. This requirement' is satisfied when the movant “actually deliver[s] the motion for new trial to the trial court or otherwise bring[s] the motion to the attention or actual notice. of the trial court.” Id. at 79.

Here, although the trial court’s docket indicates it filed Rhea’s motion for new trial, this notation is not sufficient to show presentment. See Longoria v. State, 154 S.W.3d 747, 762 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd); Hernandez v. State, 84 S.W.3d 26, 33 (Tex.App.-Texarkana 2002, pet. ref'd). Since Rhea’s motion lacks the requisite specificity to preserve error and the record does not show Rhea’s motion was timely presented to the trial court, we conclude Rhea did not preserve error. Even if he would have done so, the trial court’s failure to .admonish Rhea was harmless.

B. Recitals in Jury Charge and Judgment Are Not Conclusive

In its charge to the jury, the trial court recites that Rhea “has persisted in entering his plea of guilty, notwithstanding that the Court, as required by law, has admonished him of the consequences.” Similarly, the trial court’s judgment states Rhea pled guilty, having been “admonished of the consequences.” The State relies on the rule that such “recitations are sufficient to show compliance with Art. 26.13 ... in the face of a silent record.” See Creeks v. State, 537 S.W.2d 29, 30 (Tex.Crim.App.1976). The presumption of regularity created by the recitals can be overcome only when the record otherwise affirmatively reflects that Article 26.13 was violated. Breazeale v. State, 683 S.W.2d 446, 449-50 (Tex.Crim.App.1984) (op. on reh’g). A reporter’s record that clearly shows a defendant was not admonished is sufficient to overcome a recital in the judgment that he or she was admonished. See Song Sun Hwang v. State, 130 S.W.3d 496, 498-99 (Tex.App.-Dallas 2004, pet. ref'd).

C. The Record Shows a Failure to Admonish Pursuant to Article 26.13

Here, it is clear from the record Rhea was not admonished in compliance with Article 26.13. When Rhea, obviously having changed his mind, pled guilty, the trial court readily stated only that the pleas “will be accepted and we will move on to the punishment phase in this trial.” Nowhere in the record does the trial court specifically warn Rhea of the range of punishment, sex offender registration, possible deportation if he is not a citizen, or any other of the consequences outlined in Article 26.13. Texas caselaw makes it clear that such failure is error. See Burnett v. State, 88 S.W.3d 633, 636-37 (Tex.Crim.App.2002); Webb v. State, 156 S.W.3d 653, 655 (Tex.App.-Dallas 2005, no pet.).

D. Error Subject to Harm Analysis

Before 1997, error such as we have here would result in automatic reversal of the conviction and remand for a new trial. See Ex parte McAtee, 599 S.W.2d 335, 336 (Tex.Crim.App.1980), overruled by Ex parte Tovar, 901 S.W.2d 484, 486 n. 2 (Tex.Crim.App.1995); Lunsford v. State, 896 S.W.2d 394, 397 (Tex.App.-Beaumont 1995, no pet.). The courts reasoned that, where there was a total failure to admonish, the danger of the defendant entering an unknowing and involuntary plea is so great that no specific harm need be shown. See McAtee, 599 S.W.2d at 335-36. This rule was applied in two cases procedurally similar to the instant case in that the respective defendant initially indicated he wanted to plead not guilty. See Fuller v. State, 576 S.W.2d 856, 857 (Tex.Crim.App. [Panel Op.] 1979); McDade v. State, 562 S.W.2d 487, 488 (Tex.Crim.App. [Panel Op.] 1978).

However, this rule, on which Rhea specifically relies, no longer reflects the state of the law in Texas. We have reviewed the Texas Court of Criminal Appeals’ opinions on the issue of harm analysis of Article 26.13 error, concentrating on the opinion in Aguirre-Mata, 125 S.W.3d 473. In 1997, the Texas Court of Criminal Appeals concluded that a trial court’s failure to warn a defendant in accordance with Article 26.13 was subject to harm analysis. See Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997). After two standards of harm analysis were set forth, the court clarified that error concerning Article 26.13 was subject to harm analysis for nonconstitutional error rather than constitutional error, meaning that a reviewing court must disregard the error unless the record shows that the error affected the defendant’s substantial rights. See Tex. R.App. P. 44.2(b); Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App.1998).

In conducting harm analysis, we must independently examine the record for indications that a defendant was or was not aware of the consequences of his or her plea and whether he or she was misled or harmed by the trial court’s failure to admonish him or her of the punishment range. Burnett, 88 S.W.3d at 638. Therefore, our first inquiry should be whether the record supports an inference that Rhea did not know the consequences of his plea. See id.; Song Sun Hwang, 130 S.W.3d at 499. A silent record supports such an inference. See Burnett, 88 S.W.3d at 638. If the record supports such an inference, we move on to the second consideration: whether Rhea was “misled or harmed” by the trial court’s error. See id. “Harm” in this context means the appellant probably would not have pled guilty but for the failure to admonish. See Carranza, 980 S.W.2d at 657-58.

E. Record Does Not Support a Finding that Error Affected Rhea’s Substantial Rights

We do not have before us a silent record that would support an inference that Rhea was unaware of the consequences of his guilty pleá. See Burnett, 88 S.W.3d at 638. To the contrary, the record shows that Rhea was present at voir dire examination, during which prospective jurors were informed of the range of punishment for each offense and thoroughly examined by the State regarding the range of punishment.

Additionally, we look to the thorough “recitation” between defense counsel and Rhea in which they discuss Rhea’s plea options and the respective consequences. This recitation lends a great deal of support to the conclusion that Rhea did, in fact, know the consequences of a guilty plea. For instance, as defense counsel explained the limitations on appeal associated with a guilty plea, he set out the possibility that the jury could impose ninety-nine years or life: “[I]f you go that way [plead guilty] and the jury decides they want to go 99 years or life.... ” Also, Rhea rejected at least two plea offers during which, judging from the information in the recitation, defense counsel and Rhea most certainly would have discussed the consequences of Rhea’s options. In his second point of error, Rhea specifically points to the trial court’s failure to warn him regarding the requirement that he register as a sex offender. While we acknowledge that defense counsel did not specifically outline the details of registration, we also recognize that Rhea’s response indicated he had discussed the matter with defense counsel. Had this been the only mention of the requirement, we would expect Rhea to respond with some degree of confusion or otherwise demonstrate surprise by the registration requirement in much the same manner as he did regarding the mention of a plea of no contest: “I don’t understand no contest.” Instead, Rhea responded that he understood he would be obligated to register as a sex offender if he did decide to plead guilty. Likewise, the record fails to show that the trial court’s failure to warn Rhea that he would have to register as a sex offender somehow harmed or misled Rhea into making the decision to plead guilty. From the recitation between Rhea and his defense counsel, we see that a guilty plea was most likely a part of a “come clean to the jury” trial strategy in the hope the jury would assess community supervision. See Webb, 156 S.W.3d at 657 (concluding that the record showed the appellant pled guilty in the hope of avoiding a twenty- or forty-year sentence).

Finally, we find that Rhea could not have been misled or harmed due to the failure of the trial court to admonish him of possible deportation. The evidence is that Rhea was born in Houston September 9, 1968. Since Rhea is a United States citizen, the admonishment concerning deportation was not applicable to him and the failure to advise him on that subject could not have misled or harmed him.

IV. CONCLUSION

While Rhea’s pro se motion failed to preserve error, we conclude the trial court’s error in failing to admonish Rhea in accordance with Article 26.13 would have been harmless. Since the record would have failed to support an inference that Rhea was unaware of the consequences of his guilty plea, we would have been required to disregard such error.

We overrule Rhea’s points of error and affirm the trial court’s judgment.

      . The grand jury returned two indictments against Rhea. In cause number 24,806, Rhea was charged with aggravated sexual assault of a child and with indecency with a child. The same charges were brought against Rhea in cause number 24,807 in connection with another date. The trial court consolidated the causes for trial. On appeal, Rhea challenges his conviction in cause number 24,806 in appellate cause number 06-05-00007-CR and challenges his conviction in cause number 24,807 in appellate cause number 06-04-00008-CR. He makes the same contentions in each cause.

      . No such notation is contained in the record in the companion case number 06-05-00008-CR.

      . We acknowledge that Rhea's defense counsel provided Rhea with a great deal of information relating to Rhea’s options and the consequences relating to each. However, an admonishment is not in substantial compliance with Article 26.13 if it comes from a source other than the trial court. Murray v. State, 561 S.W.2d 821, 822 (Tex.Crim.App.1977). Under the current law, a defendant’s knowledge concerning the consequences of his or her plea of guilty is relevant in determining whether the error is harmful. Burnett, 88 S.W.3d at 639-41.

      . We note that the Beaumont court, from which this case was transferred to us, recently applied the same reasoning to reach a similar conclusion in Eleby v. State, 172 S.W.3d 247, 248-49 (Tex.App.-Beaumont 2005, no pet. h.).


author: OPINION Justice ROSS.

text:
    William Ray JACOBS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00118-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 24, 2005.
    Decided Nov. 16, 2005.

      William Ray Jacobs, Huntsville, pro se.
    Henry Whitley, Special Asst. Dist. Atty., Marcus D. Taylor, Dist. Atty., Quitman, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

William Ray Jacobs appeals from the denial of his post-conviction motion for DNA testing in connection with his 1997 conviction for aggravated sexual assault. This is Jacobs’ second effort to obtain such testing. His first motion for testing was denied by the trial, court in 2002, and its denial was affirmed by this Court in Jacobs v. State, 115 S.W.3d 108 (Tex.App.-Texarkana 2003, pet. ref'd). Jacobs was convicted for forcing a woman, at gunpoint, to perform oral sex on him.

In disposing of his first motion, the trial court acknowledged there was biological material available for testing, including “scrapings,” from the victim’s face, saliva samples, and “scrapings” from fingernails and clothing. Id. at 110. Two human hairs were found when submitted to a crime laboratory for testing, but they had no root material or skin cells as are necessary to perform nuclear DNA testing, and mitochondrial DNA testing that would be effective was not then available at that laboratory. The State filed a motion to reconsider, which, after hearing, was granted by the trial court. Based on a large amount of inculpatory evidence, including eyewitness testimony and testimony from the defendant’s wife, the trial court found that DNA testing would not serve to exculpate Jacobs and denied that motion. We affirmed.

In this, his second motion for DNA testing, Jacobs duplicated the same requests made previously. Article 64.01(b)(l)(A)(ii), (b)(2) allows, a second attempt to obtain DNA analysis in light of improved technical abilities. TexCode Crim. Proc. Ann. art. 64.01(b)(l)(A)(ii), (b)(2) (Vernon Supp. 2005).

The authority of a court to hear a particular case is a systemic requirement that cannot be waived or conferred by consent and which may be considered at any time. Mendez v. State, 138 S.W.3d 334, 340 (Tex.Crim.App.2004) (citing Marin v. State, 851 S.W.2d 275, 279-80 (Tex.Crim.App.1993)); see also Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.1993) (holding it is appropriate for reviewing court to raise sua sponte issue of lower court’s subject matter jurisdiction and address it for the first time on appeal).

This is evidently a question of first impression. We first address Jacobs’ initial argument: that the trial court which ruled on his motion had no authority to do so. Article 64.01(a) requires the submission of DNA testing to be to made “to the convicting court.” Tex.Code Crim. Proo. Ann. art. 64.01(a) (Vernon Supp.2005). The convicting court was the 114th Judicial District Court, which in 1997 had jurisdiction over Wood and Smith Counties. Jacobs was tried and convicted in Wood County. However, in 1999, the 114th court was divested of jurisdiction over Wood County, and its authority over that county was vested in the newly created 402nd Judicial District Court.

Jacobs’ motion was thus decided by the 402nd Judicial District Court, which is the successor court over the county in which he was convicted. Jacobs argues that, because the DNA statute requires the determination to be made by the “convicting court,” the 402nd court has no authority over his motion. We disagree. The legislation creating that court required all cases then pending in the 114th Judicial District Court to be transferred to the 402nd Judicial District Court. Act of May 30, 1999, 76th Leg., R.S., ch. 1337, §§ 10, 23, 1999 Tex. Gen. Laws 4547, 4549, 4551 (effective September 1, 1999). It did not explicitly address the status of cases that had previously been decided by that court. We also recognize that criminal cases are required to be tried in the county in which some portion of the offense occurs, as shown by the list of venue requirements found in Article 13 of the Texas Code of Criminal Procedure. The DNA statute also contains provisions requiring responses from the state—which in this context is the district attorney’s office for the county of conviction—and if hearings are necessary, there is authority that they must be held in the county of conviction. If the court is required to appoint counsel, the procedures set out by the Code authorize only district courts trying cases in the county to appoint counsel, Tex.Code Crim. Proc. Ann. art. 26.04(b)(1) (Vernon Supp. 2005), and they are to be paid according to a fee schedule adopted (among others) by district judges trying criminal cases in that county. Tex.Code Crim. Proc. Ann. art. 26.05(b) (Vernon Supp.2005). If a reporter’s record is to be prepared for appellate review, the reporter must be paid from the general funds of the county in which the offense was committed. Tex.R.App. P. 20.2.

Although the statute creating the 402nd Judicial District Court does not explicitly state it has jurisdiction over DNA appeals, it is apparent from the scope of the enacting statute and the other requirements common to all criminal cases—as well as the removal of Wood County from the jurisdiction of the 114th Judicial District Court—that the Legislature intended for the 402nd court to act as the successor court to the 114th court for these purposes. Thus, we conclude that the motion was properly presented to the 402nd Judicial District Court of Wood County. The contention of error is overruled.

Jacobs contends on the merits that the court erred by denying his motion for DNA testing this time because he established that a reasonable probability existed that the testing would prove his innocence. In his argument, he takes the position that the DNA evidence could establish the involvement of a third person, thus it could prove his innocence. This is the same argument posited in his initial DNA motion, covering the same evidence, that we addressed in our prior opinion.

For the same reasons as stated in that opinion, we likewise conclude here that there is nothing to suggest that, even if DNA testing showed that a third party was present, it would necessarily exonerate Jacobs. See Jacobs, 115 S.W.3d at 113.

We affirm.

      . Jacobs was convicted in 1997, and his conviction was affirmed on appeal by this Court in 1997. Jacobs v. State, 951 S.W.2d 900 (Tex.App.-Texarkana 1997, pet. ref'd).

      . This would be impossible in any event, because the DNA statutes were not enacted until 2001.