author: JOHN S. ANDERSON, Justice.

text:
    Arthur JOHNSON, Appellant, v. Brigido SEPULVEDA; Maria Sepulveda; Lynn Henderson; City of Houston Fire Chief Chris Connealy, In his Individual and Official Capacities; City of Houston Mayor Lee Brown, In his Individual and Official Capacities; and Henry Daniels, et al., Appellees.
    No. 14-04-00098-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 28, 2005.
    Rehearing Overruled Oct. 6, 2005.

      Arthur Johnson, Houston, pro se.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

JOHN S. ANDERSON, Justice.

Appellant, Arthur Johnson, filed suit against appellees in February of 2003. The trial court dismissed appellant’s suit for want of prosecution on October 8, 2003. In this pro se appeal, appellant contends: (1) the trial court abused its discretion in not complying with his motion for recusal; and (2) the trial court erred in not setting and holding a hearing on his motion to reinstate. We affirm.

Motion for Recusal

Appellant argues in his first and fourth points of error that the trial court abused its discretion in “not complying” with his motion for recusal.

To recuse a judge, a party must follow the procedure prescribed by Texas Rule of Civil Procedure 18a. Tex.R. Crv. P. 18a. According to Rule 18a, on the day a motion for recusal is filed, copies must be served on all other parties or their counsel of record, together with a notice that the movant expects the motion to be presented to the judge three days after the filing of such motion unless otherwise ordered by the judge. Tex.R. Crv. P. 18a(b). Additionally under Rule 18a, the motion to recuse must be verified and state with particularity the grounds why the judge before whom the case is pending should not sit. Tex.R. Crv. P. 18a(a). The motion must be made on personal knowledge and set forth such facts as would be admissible in evidence, provided that facts may be stated upon information and belief if the grounds of such belief are specifically stated. Id. If a party fails to follow the mandatory requirements of Rule 18a, he waives the right to complain of a judge’s failure to recuse himself. Carson v. Serrano, 96 S.W.3d 697, 698 (Tex.App.-Texar-kana 2003, pet. denied); Gill v. Texas Dept. of Criminal Justice, Institutional Div., 3 S.W.3d 576, 579 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

Here, appellant filed a general motion for recusal. There is no evidence he gave notice of expectancy of presentment to the judge three days after filing, and there is no evidence the judge was presented with the motion three days after filing. See Tex.R. Civ. P. 18a(b). Additionally, appellant’s motion to recuse is not properly verified because the affidavit attached to the motion addresses only appellant’s indigence. See Tex.R. Crv. P. 18a(a). Furthermore, appellant’s motion to recuse does not state with particularity the grounds why the trial judge should not sit and is not made on personal knowledge or information and belief. Id. Because appellant did not comply with the mandatory procedures prescribed by Rule 18a, appellant waived his right to complain on appeal about the trial judge’s failure to take any action in response to the motion. See Barron v. State Atty. Gen., 108 S.W.3d 379, 382 (Tex.App.-Tyler 2003, no pet.) (stating the procedural requisites for recusal are mandatory and party failing to conform waives right to complain of judges failure to recuse himself). Thus, the provisions of the rule obligating the trial judge either to recuse herself or refer the motion to the presiding judge of the administrative judicial district were never triggered. Id. at 383.

Accordingly, we overrule points of error one and four.

Failure to Hold a Hearing on Motion to Reinstate

In points of error two and three, appellant argues the trial court erred in not setting and holding an oral hearing on his motion to reinstate after his suit was dismissed for want of prosecution. Texas Rule of Civil Procedure 165a(3) requires a trial court to set an oral hearing on any timely filed and properly verified motion to reinstate after dismissal of a suit for want of prosecution. See Tex.R. Civ. P. 165 a(3); Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex.1991).

Here, appellant’s affidavit accompanying his motion to reinstate is not properly verified as required by Rule 165a(3). Specifically, the affidavit attached to the motion to reinstate addresses only appellant’s indigence and does not reference the attached motion to reinstate. See Guest v. Dixon, 153 S.W.3d 466, 468 (Tex.App.Amarillo 2004, pet. filed) (holding motion to reinstate was not properly verified because affiant was former attorney of party and because alleged verification was incomplete). Indeed, the affidavit attached to the motion to reinstate is virtually identical to the one attached to the recusal motion. Appellant’s improper affidavits vitiate his motions. Additionally, there is no showing in the record appellant requested a hearing on his motion in the trial court. “Clearly before trial court error can be found in the failure to set a hearing on a motion to reinstate the movant must request a hearing.” Cabrera v. Cedarapids Inc., 834 S.W.2d 615, 618-19 (Tex.App.Houston [14th Dist.] 1992, writ denied) (stating that a party may not lead a trial court into error and then complain about it on appeal); see Rainbow Home Health, Inc. v. Schmidt, 76 S.W.3d 53, 57 (Tex. App.-San Antonio 2002, pet. denied) (holding trial court did not err in failing to conduct a hearing on motion for reinstatement when appellants failed to call to the trial court’s attention the need for a hearing); see also Smith v. McKee, 145 S.W.3d 299, 305-06 (Tex.App.-Fort Worth 2004, no pet.) (reversing trial court for failure to hold a hearing on motion to reinstate, but noting the motion to reinstate requested a hearing).

Because appellant’s motion to reinstate is unverified and no request was made for a hearing on the motion, we overrule points of error two and three.

Vexatious Litigant

Arthur Johnson has been declared to be a vexatious litigant pursuant to Chapter 11, Civil Practice and Remedies Code. See Johnson v. Johnson, No. 01-03-00209-CV, 2004 WL 219795, at *1 (Tex.App.-Houston [1st Dist.] Jan. 30, 2004, no pet.)(mem op.); In re Johnson, No. 01-03-01229-CV, 2004 WL 36248, at *1 (Tex.App.-Houston [1st Dist.] Jan. 7, 2004, orig.proceeding)(mem op.); see also http://www.courts.state.tx.us/ocaArexa-tious — litigants.pdf (June 8, 2005) (listing Arthur Johnson as a vexatious litigant).

Under section 11.101 of the Texas Civil Practice and Remedies Code:

(a) A court may, on its own motion or the motion of any party, enter an order prohibiting a person from filing, in pro-pria persona, a new litigation in a court in this state if the court, finds, after notice and hearing as provided by Sub-chapter B, that:
(1) the person is a vexatious litigant; and
(2) the local administrative judge of the court in which the person intends to file the litigation has not granted permission to the person under Section 11.102 to file the litigation.
(b) A person who disobeys an order under Subsection (a) is subject to contempt of court.

Tex. Civ. PRAC. & Rem.Code Ann. § 11.101 (Vernon 2002) (footnote omitted). Because Arthur Johnson is a vexatious litigant, he is subject to the forgoing rules.

Chapter 11 of the Texas Civil Practice and Remedies Code is entitled “Vexatious Litigants.” This law originated in House Bill 3087 authored by Representative Will Hartnett. The bill analysis from the Civil Practices Report provides as follows under a section entitled “Background:”

Some litigants abuse the Texas court system by systematically filing lawsuits with little or no merit. This practice clogs the courts with repetitious or groundless cases, delays the hearing of legitimate disputes, wastes taxpayer dollars, and requires defendants to spend money on legal fees to defend against groundless lawsuits.

House Comm. On State PRACTICES, Bill Analysis, Tex. H.B. 3087, 75th Leg., R.S. (1997).

Similarly, the bill analysis contains a “purpose” section, as follows: “H.B. 3087 will curb vexatious litigation by requiring plaintiffs found by a court to be ‘vexatious’ to post security for costs before proceeding with a lawsuit.” Id.

Consistent with the principles .and purposes of Chapter 11, judicious application by trial courts of the provisions of Chapter 11 to those persons declared vexatious litigants will benefit the judicial branch of Texas’ government by deterring abuses of our judicial system and protecting scarce judicial resources.

CONCLUSION

Because we have overruled all of appellant’s points of error, we affirm the judgment of the trial court.

YATES, J., concurs in result only.

      . In propria persona is synonymous- with pro se; it refers to a situation in which a litigant represents himself or herself without the benefit of a lawyer. Spiller v. Spiller, 21 S.W.3d 451, 454 (Tex.App.-San Antonio 2000, no pet.).


source: Caselaw Access Project

author: EVELYN V. KEYES, Justice.

license: Public Domain

text:
    Richard BARTON, Independent Executor of the Estate of Clyde E. Gillespie, Appellant, v. Lora A. GILLESPIE and Jerry Hayes, Appellees.
    No. 01-04-00890-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 30, 2005.

      Paul Randall Koenig, Baytown, TX, for Appellant.
    Maroulia Lynn Pontikas, Martin, Garza & Fisher, LLP, Galveston, Christina Shropshire Tillinger, Gregory B. Enos, The Enos Law Firm, P.C., Webster, TX, for Appellees.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Richard Barton, Independent Executor of the Estate of Clyde E. Gillespie, appeals the trial court’s modification of judgment in favor of appellees, Lora A. Gillespie (Wife) and Jerry Hayes. In his sole issue, appellant asks this Court to set aside and find void the portion of the Final Decree of Divorce Nunc Pro Tunc that changes Clyde E. Gillespie’s (Husband) award of a money judgment and an equitable lien against Wife’s interest in the disputed property.

We affirm.

Background

This appeal arises from a divorce. Husband and Wife agreed on all issues except ownership of a piece of property located in Hobbs, New Mexico (Hobbs Property). Jerry Hayes (Intervenor), an appellee in this case and Wife’s son, intervened in the divorce suit to protect his interest in the Hobbs Property. Intervenor lived on the Hobbs Property and paid the mortgage, taxes, insurance, and maintenance for a number of years. A bench trial was conducted in March 2002 concerning the ownership of the Hobbs Property.

At the end of August 2002, the trial court wrote and faxed a letter to Husband, Wife, and Intervenor regarding its disposition of the Hobbs Property. The letter stated:

The Court finds that the property located ... in Hobbs, New Mexico, belongs one-half to the community estate of [Husband] and [Wife] and one-half to [Intervenor].
The Court further finds that on the date of the divorce, the fair market value of the real property was $260,000.... The Court further finds that the estate of [Husband] is entitled to a judgment of $65,000.00 from the estate of [Wife] and is awarded a lien on the property located at ... Hobbs, New Mexico_
The Court further orders that [Husband’s] community interest in the property be sold.

The trial court instructed Husband’s attorney to draft the divorce decree and submit it to opposing counsel.

On September 30, 2002, the trial court conducted a hearing and signed the “Final Decree of Divorce.” The relevant portions of the Final Decree of Divorce stated:

Provisions Dealing with the Sale of Residence

IT IS FURTHER ORDERED AND DECREED that the [Hobbs] property and all improvements ... shall be sold under the following terms and conditions
The property shall be listed for a minimum sales price of $260,000 ... Sixty-Five Thousand Dollars and no/100 ($65,000.00) plus interest ... to [Husband] in full satisfaction of the judgment against [Wife] awarded herein, ... One-third of the remaining net proceeds to [Husband], and ... The remaining net proceeds less the real property taxes owed against the property to date of judgment to [Intervenor].

Equitable Interest Lien Against [Wife] for Discharge of Debt

IT IS DECREED that the estate of [Husband] is entitled to reimbursement from the estate of [Wife] and that [Husband] is entitled to a judgment of $65,000.00, secured by an equitable lien on the [Hobbs Property]. IT IS THEREFORE ORDERED AND DECREED that [Husband] is awarded a judgment of $65,000.00 against [Wife]. To secure payment of the judgment, [Husband] is granted an equitable lien on the separate property of [Wife’s interest in the Hobbs Property].

The Final Decree of Divorce was not challenged with a motion for new trial by any party. Instead, on October 7, 2002, Intervenor requested findings of fact and conclusions of law. On October 22, 2002, the trial court signed and filed its findings of fact and conclusions of law. The trial court’s findings of fact provide:

During the marriage [Husband] and [Wife] acquired the [Hobbs Property] other than by gift or inheritance ... On the date of divorce, the fair market value of the [Hobbs Property] was $260,000.00.
On the date of divorce, the [Hobbs Property] was owned 1/2 by [Husband] and [Wife] as community property and 1/2 by Intervenor.

On November 27, 2002, the trial court conducted a hearing because “this judge didn’t carefully read the judgment that she signed. And because there are things in the judgment that the Court did not order. And we are here to try to figure out how to fix it.” The following discourse took place:

[Husband’s Counsel]: It is my position, your Honor, that if this judgment does not contain what you’ve intended it to, it was drafted by me based on how I read the rendition that his court rendered in this case. And it is my position that if there’s a perceived error in the judgment, it’s a judicial error ... not a clerical error [and] cannot be corrected by a judgment nunc pro tunc.
Judgment in this case was signed on September the 20th of 2002, with the plenary power expiring then on October the 20th 2002 is my understanding.
No motions were filed during that plenary period

[Trial Court]: But nowhere in my rendition did I order the property sold.

Based on Electronic Power Design, Inc. v. R.A. Hanson, intervenor argued that the trial court’s plenary power was extended because he had filed a request for findings of fact and conclusions of law. The trial court concluded the hearing by granting, on its own motion, a new trial to “correct a judicial error.” The trial court stated it based its decision on Electronic Power.

Husband sought a writ of mandamus from the court of appeals to order the trial court to vacate its November 27, 2002 order setting aside the divorce decree because the trial court no longer had plenary power to act. See In re Gillespie, 124 S.W.3d 699, 701-02 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding). The court of appeals denied the writ of mandamus and motion to dismiss. Id. at 701. The court held that a trial court’s plenary power is not extended by a request for findings of fact and conclusions of law. Id. at 703. The court then overruled Electronic Power to the extent that it held that a request for findings of fact and conclusions of law extends the trial court’s plenary power. Id. at 704. The court of appeals concluded by stating, “We are confident the trial court will reconsider its order in light of our conclusion, that a request for findings of fact and conclusions of law does not extend a court’s plenary power.” Id. at 704-05.

Relying on the court of appeals’s opinion regarding his mandamus, Husband filed a motion to vacate the trial court’s order granting a new trial. The trial court granted the order on April 7, 2004.

In June 2004, Intervenor filed a motion for judgment nunc pro tunc because the Final Decree of Divorce signed on September 20, 2002, contained two incorrect provisions. First, the judgment orders the entire Hobbs Property sold. Second, it orders one-third of the remaining proceeds from the sale to go to Husband, above his interest in the property. Inter-venor contended that neither of these provisions was included in the judgment rendered by the trial court.

In July 2004, the tidal court held a hearing on Intervenor’s motion for judgment nunc pro tunc.

[Trial Court]: First of all it was very clear in my letter that I was ordering only [Husband’s] interest sold. I don’t believe that.... And as I also said, I don’t know that it was on the record before, I did not read the decree word for word at the time that I sold it— signed it. But it was my intention to only require [Husband’s] interest sold.
[Essentially what the Court had intended was that [Husband] would get $65,000 cash, that on the payment of that, [Wife] would own half of the property and [Intervenor] would own half the property.
It’s my understanding, is it not, [Husband’s counsel], that you’re willing to agree that the portion regarding the sale would be clerical error?
[Husband’s Counsel]: Yes, ma’am. [Trial Court]: I can sign, without a doubt, sign an order that orders only [Husband’s] interest in the property sold.
[Intervenor’s Counsel]: So by granting the equitable lien ... did you mean to award an additional $65,000?
[Trial Court]: No.

While the parties agreed that the provision ordering the sale of the house was a clerical error, the parties did not come to an agreement regarding the error granting Husband a total of $180,000, instead of $65,000.

At the end of the hearing, the trial court made hand-written changes to the Final Decree of Divorce Nunc Pro Tunc and signed it on July 19, 2004. The Final Decree of Divorce Nunc Pro Tunc stated:

IT IS DECREED that to effectuate the sale of [Husband’s] interest in the property in Hobbs, New Mexico ... [Husband] is entitled to a judgment of $65,000, secured by an equitable lien on the property located at ... Hobbs, New Mexico. IT IS THEREFORE ORDERED AND DECREED that [Husband] is awarded a judgment of $65,000 against [Wife]. To secure payment of the judgment, [Husband] is granted an equitable lien on the separate property of [Wife], ... Hobbs, New Mexico, until the entire judgment, plus accrued interest, is paid in full.... Upon payment of the above judgment, [Husband] shall be divested of his undivided one-fourth interest in the [Hobbs Property] and the equitable hen shall be released.

This appeal followed.

Discussion

We construe appellant’s argument to be that the trial court relieved Wife of her obligation to pay Husband $65,000 above his one-fourth interest in the Hobbs Property when it signed the Final Decree of Divorce Nunc Pro Tunc. Appellant relies on McGehee v. Epley, and In re Brous-sard, for the contention that it is not a clerical error to impose an obligation to pay where no obligation existed before the judgment nunc pro tunc. See McGehee, 661 S.W.2d 924, 925-26 (Tex.1983); 112 S.W.3d 827, 833-34 (TexApp.-Houston [14th Dist.] 2003, orig. proceeding). Appellant contends that “the effect of that [judgment nunc pro tunc] order was to eliminate the portion of the original order which granted [Husband] a judgment against [Wife] for $65,000.” Appellant argues that, just as a clerical error cannot impose an obligation to pay where one did not previously exist, a clerical error cannot relieve a person of an obligation to pay where one previously did exist.

Appellees contend that the trial court’s rendition did not both award Husband $65,000 and order the Hobbs Property to be sold so that Husband could receive an additional $65,000. Appellees argue that the trial court clarified its intention of the rendition at the July 2004 hearing. As quoted above, the trial court stated at the hearing that (1) only Husband’s interest in the Hobbs Property should be sold and (2) that by granting the equitable lien against Wife’s interest in the Hobbs Property the court was not awarding Husband an additional $65,000. Therefore, appellees contend that because the original divorce decree did not accurately reflect the trial court’s rendition, the errors were clerical and were properly corrected by the judgment nunc pro tunc.

Rule 329b(d) of the Texas Rules of Civil Procedure provides that the trial court has plenary power for 30 days after the judgment is signed to grant a new trial or to vacate, modify, correct, or reform the judgment. Tex.R. Crv. P. 329b(d). Once the trial court’s plenary power expires, the trial court cannot set its judgment aside except by a bill of review for sufficient cause. Tex.R. Civ. P. 329b(f). However, the trial court may correct clerical errors in the judgment at any time by using a judgment nunc pro tunc. Tex.R. Civ. P. 316; 329b(f); Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986). The trial court signed the original divorce decree on September 20, 2002. Thus, the trial court’s plenary power expired on October 20, 2002. See Tex.R. Civ. P. 329b(d). The issue is whether the trial court’s Final Decree of Divorce Nunc Pro Tunc, signed on July 19, 2004, corrected clerical errors or was void because it corrected judicial errors.

A clerical error is a discrepancy between the entry of a judgment in the record and the judgment that was actually rendered. See Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986); Butler v. Cont’l Airlines, Inc., 31 S.W.3d 642, 647 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). A clerical error does not result from judicial reasoning, evidence or determination. Andrews, 702 S.W.2d at 585. Conversely, a judicial error arises from a mistake of law or fact that requires judicial reasoning to correct. Butler, 31 S.W.3d at 647. A judicial error occurs in .the rendering, rather than the entering of the judgment. Escobar, 711 S.W.2d at 231.

A trial court can only correct nunc pro tunc the entry of a final written judgment that incorrectly states the judgment actually rendered. Id. at 231-32. Even if the trial court incorrectly renders judgment, the trial court cannot alter a written judgment that precisely reflects the incorrect rendition. Id. at 232. If the trial court corrects a judicial error after its plenary power has expired, the judgment is void. Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973). When deciding whether an error in a judgment is clerical or judicial, the court must look to the judgment actually rendered and not the judgment that should have been rendered. Escobar, 711 S.W.2d at 231. Whether an error is judicial or clerical is a question of law. Id.

It is well settled that the rendition of a judgment occurs when the trial court’s decision is officially announced either by a signed memorandum filed with the clerk of the court or orally in open court. In re Fuselier, 56 S.W.3d 265, 268 (Tex.App.-Houston [1st Dist.] 2001, orig. proceeding). Here, neither party disputes that the trial. court’s August 2002 letter was the trial court’s rendition of judgment.

In order for a judgment nunc pro tunc to be properly granted, the evidence must be clear and convincing that a clerical error was made. Riner v. Briargrove Park Prop. Owners, Inc., 976 S.W.2d 680, 688 (Tex.App.-Houston [1st Dist.] 1997, no writ); see Broussard, 112 S.W.3d at 883. Evidence may be from oral testimony of witnesses, written documents, previous judgments, docket entries, or the trial judge’s personal recollection. Riner, 976 S.W.2d at 683. If the trial court relies on its own personal recollection of the facts, we presume that the court’s recollection supports the finding of clerical error. Id.

As evidenced by the trial court’s statements at the November 2002 and July 2004 hearings, the divorce decree signed on September 30, 2002 clearly did not reflect the trial court’s rendition. As the parties agreed, the rendition did not order the entire Hobbs Property sold, only Husband’s one-fourth interest. No party disputes this was a clerical error. Therefore, the error was properly corrected by the judgment nunc pro tunc. See Andrews, 702 S.W.2d at 585.

The heart of the dispute, however, is how much money the court ordered Wife to pay Husband in its rendition of judgment. The trial court explained in the July 2004 hearing that it never intended to grant Husband an additional $65,000 above his one-fourth interest in the Hobbs Property. The trial court hand-corrected the Decree of Divorce Nunc Pro Tunc to accurately reflect the trial court’s understanding of its rendition. Because the trial court relied on its personal recollection, we will presume the trial court’s recollection supports the finding that the error was clerical and that Husband is entitled only to one-fourth of the Hobbs Property, worth $65,000, with an equitable lien against Wife’s interest in the Hobbs Property to secure payment. See Riner, 976 S.W.2d at 683; Pruet v. Coastal States Trading, Inc., 715 S.W.2d 702, 705 (Tex. App.-Houston [1st Dist.] 1986, no writ) (holding that trial court may rely on its personal recollection of facts at time of original judgment’s rendering, and, if trial court corrects its judgment by signing judgment nunc pro tunc, court’s personal recollection supports finding of clerical error).

We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

      . 821 S.W.2d 170 (Tex.App.-Houston [14th Dist.] 1991, no writ).


author: SHERRY RADACK, Chief Justice.

text:
    Keith BAKER, Individually, and Ian Baker, Individually and as Independent Executor of the Estate of Jean Baker, Deceased, Appellants, v. ST. JUDE MEDICAL, S.C., INC. and St. Jude Medical, Inc., Appellees.
    No. 01-02-00802-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 30, 2005.

      James V. Pianelli, McGehee & Pianelli, L.L.P., Timothy D. Riley, Riley Law Firm, Houston, TX, for Appellants.
    David M. Gunn, Joe W. Redden, Jr., Beck, Redden & Secrest, L.L.P., Houston, TX, for Appellees.
    Panel consists of Chief Justice RADACK and Justices JENNINGS and HIGLEY.
   OPINION

SHERRY RADACK, Chief Justice.

This appeal involves the issue of federal preemption of state law causes of action arising out of the implantation of an allegedly defective heart valve in the deceased, Jean Baker. Specifically, we must decide whether state common-law causes of action asserted by Baker’s heirs against the valve manufacturer are preempted by the manufacturer’s compliance with the Food and Drug Administration’s premarket approval procedures for certain medical devices. Because we hold that state product-liability claims are preempted by federal law in this case, we affirm the summary judgment granted in the manufacturer’s favor.

BACKGROUND

Legislative Background of Medical Devices Act

In 1976, in response to mounting consumer concern over, among other things, defective intrauterine devices, Congress passed the Medical Device Amendments (MDA) to allow the Food and Drug Administration (FDA) to regulate medical devices. The MDA creates three categories of medical devices. The most stringent FDA control is over Class III devices, which are devices that either “presen[t] a potential or unreasonable risk of illness or injury,” or which are “purported or represented to be for a use in supporting or sustaining human life or for a use which is of substantial importance in preventing impairment of human health.” See 21 U.S.C. § 360c(a)(l)(C)(ii)(I-II). It is undisputed that a heart valve is a Class III medical device.

Obtaining FDA Approval to Market Class III Devices

1. Full PMA Approval

Before marketing a Class III device, the manufacturer must either submit its product to the FDA for premarket approval (PMA) or qualify for one of two exceptions to the premarket approval process. To obtain PMA approval, the manufacturer must provide the FDA with “reasonable assurance” that the device is safe and ef-feetive. See 21 U.S.C. § 360e(d)(2). To do so, manufacturers submit detailed information regarding their device, which the FDA then reviews for an average of 1200 hours before approving or disapproving the device. Medtronic, Inc. v. Lohr, 518 U.S. 470, 477, 116 S.Ct. 2240, 2247, 135 L.Ed.2d 700 (1996).

2. § 510(h) Exemption to PMA approval

In addition to the “rigorous” PMA process, there are two exemptions by which a manufacturer may gain the FDA’s permission to market a device. Id. at 477-78,116 S.Ct. at 2247. One of these exemptions permits devices that are “substantially equivalent” to devices existing in 1976 to be marketed and sold without full PMA approval. See 21 U.S.C. § 360j(g)(1). This review is known as a section 510(k) review (after the number of the section in the original act) and is “by no means comparable to the PMA process.” Lohr, 518 U.S. at 479,116 S.Ct. at 2247. As opposed to the PMA’s average review time of 1200 hours, a § 510(k) review takes an average of only 20 hours to complete. Lohr, 518 U.S. at 478, 116 S.Ct. at 2247.

3. PMA Supplementation for Modifications to PMA — Approved Devices

If a manufacturer wants to modify a Class III device that already has PMA approval, the manufacturer may submit a PMA supplement, rather than obtain an entirely new PMA approval. See U.S. v. Prigmore, 243 F.3d 1, 5 (1st Cir.2001) (describing PMA supplement process). The PMA supplement “must contain scientific information that provides a basis for approval of the modified device.” Id. (quoting 21 C.F.R. § 814.39(c)). The procedures for a PMA supplement are the same as those for an original PMA, although the FDA requires only that the manufacturer provide materials supporting the proposed modification. Worthy v. Collagen Corp., 967 S.W.2d 360, 364-65 (Tex.1998); Kemp v. Medtronic., Inc., 231 F.3d 216, 222 (6th Cir.2000).

Factual Background

In 1982, the FDA approved St. Jude’s initial PMA application for a mechanical heart valve. During the following years, St. Jude made several improvements to the valve, which were approved through a series of PMA supplements. One of these improvements incorporated a rotating sewing cuff, which eliminated the need for surgery to position the valve before sewing it in place.

In an effort to combat endocarditis, a life-threatening infection of the heart muscle, St. Jude notified the FDA that it planned to develop a mechanical heart valve with an infection-resistant, sterile, silver coating on the sewing cuff. In May 1997, after an FDA-required animal test was completed, St. Jude submitted a PMA supplement to add the Silzone coating to its already approved heart valve.

In March 1998, the FDA approved St. Jude’s PMA supplement. As part of its approval, the FDA imposed several post-approval requirements, including how the valve could be marketed. Specifically, the FDA prohibited St. Jude from making any claims about the efficacy of the Silzone coating in preventing endocarditis. St. Jude began marketing the Silzone valve accordingly.

St. Jude, however, continued to participate in studies to determine the efficacy of the Silzone coating in preventing endocar-ditis. One of these studies was the Artificial Valve Endocarditis Reduction Trial (AVERT). On January 21, 2000, approximately one month before Baker’s death, an independent board reviewing the AVERT data concluded that patients with the Sil-zone valve were more likely to experience a post-operative complication known as a paravalvular leak. Approximately 2% of the patients with the Silzone valve experienced such leaks, as opposed to .25% of patients with conventional valves.

The same day that it became aware of the conclusions of the AVERT monitoring board, St. Jude began a voluntary recall of all non-implanted Silzone valves, and so informed the FDA. In response, the FDA, in a letter from Edwin Dee to St. Jude, stated, “We agree with your firm’s decision to recall [the Silzone valve] ... We have reviewed your action and conclude that it meets the formal definition of a ‘Recall.’ This is significant, as your action is an alternative to a Food and .Drug Administration legal action to remove the defective products from the market.” It is undisputed, however, that the FDA never formally withdrew its PMA approval of the valve, and that the valve had FDA approval on the date it was implanted in Baker.

The decedent in this case, Jean Baker, a 66-year-old woman, had undergone open heart valve-replacement surgery in November 1999. A. Silzone-coated heart valve, manufactured by St. Jude, was implanted in Baker to replace her own deteriorating mitral heart valve. In February 2000, approximately one month after St. Jude issued its voluntary recall of the valves, Baker died.

Baker’s two sons, Ian Baker and Keith Baker, filed this wrongful death suit against St. Jude based on theories of negligence, product liability, breach of warrant under the Deceptive Trade Practices Act, malice, and fraud. St. Jude filed a motion for summary judgment, contending that the appellee’s state., court claims were preempted by the FDA’s federal regulation over the valves at issue. The trial court agreed, and granted St. Jude’s motion for summary judgment.

ANALYSIS

Standard of Review for Summary Judgments

We will uphold a summary judgment only if the record establishes that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law on a ground set forth in the motion. See Tex.R.Civ.P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995). In reviewing the summary judgment, we indulge every reasonable inference in favor of the non-movant, resolve any doubts in its favor, and take as true all evidence favorable to it. Pace v. Jordan, 999 S.W.2d 615, 619 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).

Preemptive Effect of PMA Approval

1. Can a State-Court Action be a Prohibited State “Requirement”?

State laws that conflict with federal laws are preempted under the Supremacy Clause of the Constitution. U.S. Const. Art. VI, cl. 2. Congressional intent to preempt state law can either be expressly stated in statutory language or implied in the structure and purpose of federal law. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992). The MDA contains an express preemption provision, which provides as follows:

[N]o State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement—
(1) which is different from, or in addition to, any requirements applicable under this [Act] to the device, and
(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this [Act].

21 U.S.C. § 360k (emphasis added). The initial issue, thus, is whether a state tort lawsuit can ever be a state “requirement,” prohibited by § 360k.

The Supreme Court considered this issue in Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). In Lohr, the Supreme Court held that state-tort claims were not preempted if a medical device received FDA approval through the § 510(k) notification process. The majority noted that, under § 510(k) approval process, the FDA makes no endorsement as to a product’s safety, but concludes only that it is “substantially equivalent” to a device already on the market. The Court concluded that because a § 510(k) approval by the FDA did not impose any federal requirements, any requirement imposed by the states was not prohibited. 518 U.S. at 493-94, 116 S.Ct. at 2254-55.

The Lohr court, however, could not agree on whether a state-court action could ever be considered a state “requirement.” Four justices of the majority (Stevens, Kennedy, Souter, and Ginsburg) could not accept “Medtronic’s argument that by using the term ‘requirement,’ Congress clearly signaled its intent to deprive States of any role in protecting consumers from the dangers inherent in many medical devices.” 518 U.S. at 489, 116 S.Ct. at 2252.

This portion of the Lohr opinion, however, was not supported by a majority of the members of the Court. The dissenting justices (O’Connor, Rehnquist, Scalia, and Thomas) concluded that “a fair reading of § 360k indicates that state common-law claims are preempted, as the statute itself states, to the extent that their recognition would impose ‘any requirement’ different from, or in addition to, FDCA requirements applicable to the device.” 518 U.S. at 512, 116 S.Ct. at 2263 (O’Connor, J., dissenting).

Justice Breyer also refused to join the portion of the opinion holding that § 360k did not prohibit state-court actions because he was “not convinced that future incidents of MDA preemption of common law claims will be ‘few’ or ‘rare’.” 518 U.S. at 508, 116 S.Ct. at 2261-62 (Breyer, J., concurring). Justice Breyer concluded that, “insofar as the MDA pre-empts a state requirement embodied in a state statute, rule, regulation, or other administrative action, it would also pre-empt a similar requirement that takes the form of a standard of care or behavior imposed by a state-law tort action.” 518 U.S. at 504-05, 116 S.Ct. at 2260.

As we read Lohr, a majority of the justices of the Supreme Court would hold that a state-court tort claim can be expressly preempted by § 360k of the MDA. Since Lohr, a majority of the federal courts considering the issue have agreed. See Horn v. Thoratec Corp., 376 F.3d 163, 176 (3rd Cir.2004) (holding that state common law claims and duties were preempted because they were “in severe tension with” requirements established by FDA in approving device); Martin v. Medtronic, Inc., 254 F.3d 573, 585 (5th Cir.2001) (holding that “a medical device manufacturer’s compliance with the FDA’s PMA process will preempt state tort law claims with respect to that approved device and relating to safety, effectiveness or other MDA requirements when the substantive requirements imposed by those claims potentially conflict with PMA approval.”); Kemp v. Medtronic, Inc., 231 F.3d 216, 230 (6th Cir.2000); Mitchell v. Collagen Corp., 126 F.3d 902, 913-14 (7th Cir.1997); Brooks v. Howmedica, Inc., 273 F.3d 785, 796 (8th Cir.2001); Papike v. Tambrands, Inc., 107 F.3d 737, 742 (9th Cir.1997); but see Oja v. Howmedica, Inc., 111 F.3d 782, 789 (10th Cir.1997) (common-law failure to warn claim is not subject to preemption under the MDA); Goodlin v. Medtronic, Inc., 167 F.3d 1367 (11th Cir.1999) (holding that simple approval of a PMA application imposes no federal “requirements”); In re St. Jude Medical, Inc., 2004 WL 45503, *10 (D.Minn. Jan.5, 2004) (same).

Importantly, the Texas Supreme Court has held that “a federal requirement concerning a device can preempt a suit in which the claim is that the device should have been made or marketed differently provided ... the federal requirement is sufficiently specific.” Worthy v. Collagen Corp., 967 S.W.2d 360, 371 (Tex.1998) (emphasis added).

The Supreme" Court has recently reaffirmed that a “requirement” can reach beyond positive enactments, such as statutes and regulations, to embrace common-law duties. Bates v. Dow Agrosciences, L.L.C.,-U.S.-.,-, 125 S.Ct. 1788, 1798, 161 L.Ed.2d 687 (2005). “A requirement is a rule of law that must be obeyed; an event, such as a jury verdict, that merely motivates an optional decision is not a requirement.” Id. at 1799. Like the preemption clause in Bates, § 360k prohibits requirements that are different from, or in addition to those provided in the federal act. A state-law requirement is not preempted if it is equivalent to, and fully consistent with, the federal act. See id. at 1800.

Based on the authorities cited above, we conclude that state-tort claims can impose prohibited state “requirements” under § 360k of the MDA if a jury award on the cause of action would conflict with or add to a specific requirement set by the FDA for the device at issue. That is, if a jury award on the asserted cause of action could potentially set a standard of care different from that specifically set by the FDA, the state law cause of action would constitute a prohibited state-law “requirement.” Accordingly, we disagree with appellants’ assertion that their lawsuit merely seeks “remedies,” but does not impose any additional state “requirements.”

2. Does the PMA/PMA Supplement Process Impose Federal Requirements?

The issue of whether a state law cause of action imposes a state requirement is irrelevant if there is no federal requirement to preempt the state requirement. In Lohr, the Supreme Court held that, under the less rigorous § 510(k) approval process there was no federal requirement imposed because the FDA makes no endorsement as to a product’s safety, but concludes only that it is “substantially equivalent” to a device already on the market. Thus, the Court concluded that a § 510(k) approval by the FDA did not impose any federal requirements. 518 U.S. at 493-94, 116 S.Ct. at 2254-55. There being no federal requirement, no issue of preemption was raised.

Appellants argue that, like the 510(k) process evaluated in Lohr, the PMA supplement process is too “abbreviated” to have imposed any “federal requirements.” In support, appellants argue that the PMA Supplement took only 10 months to obtain and the entire file for the supplement is only 2 inches thick.

We disagree with appellants’ characterization of the PMA supplement process as “abbreviated.” In Kemp v. Medtronic, the Sixth Circuit considered an argument that the PMA supplement process was less rigorous than the initial PMA approval process. 231 F.3d at 227. The court noted that

[t]his distinction [between the rigors of an initial PMA and a PMA Supplement] is readily understandable because a PMA requires review of a previously unapproved device that does not qualify for exemption either as substantially equivalent to devices extant in 1976 or as in IDE. By contrast, a PMA Supplement proposes changes to a device that has already received rigorous review and approval during the original PMA process. Hence, because the FDA has already made a determination as to the safety and effectiveness of the underlying device in the original PMA, it can evaluate only the proposed modifications presented in the PMA Supplement while relying on its earlier approval of the original device.

Id. Similarly, a federal district court in Texas has adopted the reasoning of Kemp and held that “for purposes of a preemption analysis ... there is no difference between the PMA process and the PMA Supplement process.” In re Medtronic Polyurethane Insulated Pacing Lead Prod. Liability Litigation, 96 F.Supp.2d 568, 570 (E.D.Tex.1999). In fact, the federal regulations applicable to PMA supplements provide that “all procedures and actions that apply to an application under [an initial PMA] also apply to PMA supplements except that the information required in a supplement is limited to that needed to support the change.” 21 C.F.R. § 814.39(c).

There is no categorical distinction between a device approved solely on a PMA application and a device that has been approved through a PMA application coupled with a subsequent PMA supplement. If we were to accept appellants’ argument that the PMA supplement must itself be as exhaustive as the initial PMA, there would be no need for PMA supplements. Rather, an entire new PMA application would be required for each product innovation. Therefore, in analyzing whether the PMA approval process is sufficient to support a finding that federal regulations were imposed, we believe that we must look at the initial PMA and the PMA Supplement together. Thus, the proper inquiry is to consider the initial PMA application and the PMA supplement, as a whole, in determining whether federal requirements have been imposed.

In concluding that PMA approval imposed federal requirements, the Worthy court considered the specificity of the manufacturer’s presentation to the FDA, the amount of time required to obtain approval, the recurrence of the investigation a decade later, the prohibition against deviation from the conditions of approval, and the FDA’s specific finding that the product was “safe and effective.” 967 S.W.2d at 376.

We find many of these same factors present in this case. St. Jude’s submissions to the FDA in connection with the initial PMA included detailed information about its intended use, manufacturing methods, design, testing, labeling, etc. The FDA imposed specific conditions, including the required labeling for the valve. The FDA imposed precise manufacturing standards. The initial PMA application took nearly two years to complete.

The PMA Supplement process, which addressed only the addition of the silver coating to the sewing cuff, was equally as exacting and took an additional 10 months. The FDA required that St. Jude conduct certain animal tests, which St. Jude conducted before ever submitting its PMA Supplement application. St. Jude’s PMA supplement application included detailed information regarding how the silver coating would be manufactured. Specifically, a coating of silver 0.4 microns thick would be applied to the rotating cuff by using an ion beam to assist the deposition process. The application further stated that the manufacturing process for the Master Series mechanical heart valve with and without Silzone was identical, with the exception of the silver coating. In four amendments to its PMA Supplement application, St. Jude, at the request of the FDA, provided further substantiation regarding the benefits of the silver cuff, labeling changes regarding the effectiveness of reducing endocarditis in humans, revisions to a proposed clinical study, and information regarding corrosion issues that had been raised by an FDA expert. St. Jude’s final amendment to its PMA Supplement application included a detailed explanation of the sewing cuff attachment mechanism, a discussion of the manufacturing and assembly process, and a discussion regarding corrosion issues.

Finally, some 10 months after St. Jude filed the PMA Supplement application and over two years after initially proposing the silver cuff to the FDA, the FDA approved the PMA Supplement for the Masters Series valve with the Silzone coating. The FDA’s approval was conditioned on certain labeling, including a requirement that, when the term “Silzone” was used, that it be followed by an asterisk that directed the reader to a prominently placed footnote explaining that no clinical studies were performed to evaluate the effect of the Silzone coating in reducing the incidence of endocarditis.

Like the Worthy court, we conclude that the FDA’s approval of the PMA supplement device constituted a finding that the device, as modified, was “safe and effective,” see 21 U.S.C. at § 360e(d)(2), although the FDA did not allow St. Jude to make any claims about its effectiveness in preventing endocarditis. This conclusion is supported by the FDA’s own words in its letter approving the PMA Supplement, wherein the FDA notes that further PMA Supplements are required whenever a “device is to be modified and the modified device should be subjected to animal or laboratory or clinical testing designed to determine if the modified device remains safe and effective.” (Emphasis added).

Accordingly, we hold that the PMA approval process that St. Jude went through in obtaining FDA approval, including both the initial application process and the PMA Supplement process for the Silzone-coated cuff, was sufficiently specific to impose federal requirements on St. Jude regarding the manufacture and labeling of the heart valve. .

2. Are Appellants’ State-Court Causes of Action Prohibited “Requirements”?

Having decided that state-tort claims can be prohibited state “requirements” under § 360k, and that the PMA and PMA Supplement process imposed federal requirements in this case, we must now decide whether appellants’ state-law claims impose requirements that potentially conflict with or add to the FDA’s requirements. To do so, we examine the allegations made under each cause of action.

A. Negligence/Products Liability/DTPA

In their petition, appellants contend that St. Jude was negligent in the design, manufacture, and marketing of the Silzone valve. Under their produets-liability claims, the appellants contend that the Silzone valve was unreasonably dangerous and defective and was defectively manufactured. Under their DTPA claim, appellants allege that St. Jude made promises and express warranties that the product was safe and that there were implied warranties of merchantability and fitness in connection with the product. In sum, the appellants’ claims all require them to prove that the Silzone valve was not safe.

In Worthy, the Texas Supreme Court considered whether preemption applied to a product that had been approved by the FDA through a PMA application and following PMA supplement. 967 S.W.2d at 364-65, 376-77. The plaintiff in that case brought DTPA claims, asserting that the product, Zyderm, was unsafe for her use. Such a finding, the court noted, would “contradict not only the FDA’s specific finding to the contrary but also the manufacturing, distribution, and labeling protocols approved by the FDA.” Id. at 376. The court also noted that there was “no difference in substance” between the plaintiffs claims under the DTPA or “common law claims for negligence, breach of warranty, and products liability.” Id.

Based on Worthy, we conclude that appellants’ claims for negligence, products liability, and DTPA violations are preempted because they would require a finding that the Silzone valve was unsafe, a direct contradiction to the PMA approval and PMA supplemental approval granted by the FDA. In other words, the jury could potentially set a standard of care for St. Jude that was over and above what the FDA had determined was necessary to produce a safe product. The FDA had set specific manufacturing and labeling requirements that cannot be altered by a jury’s potential finding that another manufacturing process would have been safer or another label clearer. Thus, we hold that appellants’ negligence, products liability, and DTPA claims are expressly preempted under § 360k.

B. Fraud/Malice

The appellants also allege that St. Jude committed fraud and acted with malice because it did not report certain adverse events involving Silzone valves before issuing its voluntary recall, even though the FDA had mandated that it do so. Appellants argue that, because these claims rely on the enforcement of a federal requirement, they are not “additional” state requirements.

We agree that claims based on a manufacturer’s failure to follow the FDA’s regulations and procedures in manufacturing and marketing a device are not preempted. Martin, 254 F.3d at 583. “Nothing in § 360k denies [a state] the right to provide a traditional damages remedy for violations of common-law duties when those duties parallel federal requirements.” Lohr, 518 U.S. 470, 495, 116 S.Ct. at 2255, 135 L.Ed.2d 700. Appellants contend that St. Jude knew of adverse effects at the time of Baker’s implant, but did not report them to the FDA until the AVERT study was completed. Appellants argue that St. Jude’s failure to make these reports, as required by the FDA, gave rise to a common-law cause of action for fraud and also shows malice.

St. Jude, however, contends that this is essentially a “fraud-on-the-FDA” claim, which the Supreme Court has held is preempted. In Buckman v. Plaintiffs’Legal Committee, 531 U.S. 341, 121 S.Ct. 1012, 1015, 148 L.Ed.2d 854 (2001), the plaintiffs contended that the defendant made misrepresentations to the FDA to secure PMA approval for the product at issue, and that, but for those misrepresentations, FDA would not have approved the product and the plaintiffs would not have been injured. 531 U.S. at 343, 121 S.Ct. at 1015. The Supreme Court concluded that “policing fraud against federal agencies is hardly ‘a field which the States have traditionally occupied,’” and held that the plaintiffs’ claims arising out of misrepresentations made to the FDA were “impliedly preempted.” 531 U.S. at 347, 348, 121 S.Ct. at 1017. Such claims, the court held, “inevitably conflict with the FDA’s responsibility to police fraud consistently with the Administrations judgment and objectives.” 531 U.S. at 350, 121 S.Ct. at 1018. The Supreme Court noted that “although [Lohr ] can be read to allow certain state-law causes of action that parallel federal safety requirements, it does not and cannot stand for the proposition that any violation of the FDCA will support a state law claim.” 531 U.S. at 353, 121 S.Ct. at 1020.

We also note that the FDA has the tools necessary to police and punish those who conceal or fail to report information. As the Court detailed in Buckman,

The FDA is empowered to investigate suspected fraud, see 21 U.S.C. § 372; 21 CFR § 5.35 (2000), and citizens may report wrongdoing and petition the agency to take action, § 10.30. In addition to the general criminal proscription on making false statements to the Federal Government, 18 U.S.C. § 1001 (1994 ed., Supp. V), the FDA may respond to fraud by seeking injunctive relief, 21 U.S.C. § 332, and civil penalties, 21 U.S.C. § 333(f)(1)(A); seizing the device, § 334(a)(2)(D); and pursuing criminal prosecutions, § 333(a). The FDA thus has at its disposal a variety of enforcement options that allow it to make a measured response to suspected fraud upon the Administration.

531 U.S. at 349, 121 S.Ct. at 1017-18 (footnote omitted).

In this case, appellants’ fraud claim is not based on a “parallel federal safety requirement.” Rather, appellants are essentially alleging that St. Jude withheld, or unreasonably delayed, in providing the FDA with information that it had regarding adverse effects associated with the Sil-zone valve. As such, we hold that appellants’ fraud claim is really a “fraud-on-the-FDA claim,” and is, therefore, impliedly preempted.

CONCLUSION

Because we have held that all of appellants’ claims are preempted by federal law, we affirm.

      .The MDA includes a “grandfathering” clause, which allows pre-1976 devices to remain on the market until such time as the FDA initiates and completes PMA approval. See 21 U.S.C. § 360e(b)(l)(A). The MDA also contains an investigational device exemption (IDE), which permits unapproved devices to be used in human trials. See 21 C.F.R. § 812.1. Neither the grandfathering clause or the IDE exemption is relevant to this case.

      . The record shows that the decedent, Baker, was suffering from endocarditis before her valve replacement surgery. Endocarditis is fatal in 25% to 60% of those suffering from it.

      . Silzone ® is the trademark name for the sterile, silver coating that St. Jude added to the sewing cuff of its heart valve.

      . Appellants contend that the trial court erred in granting St. Jude's objection to the Dee letter and to another FDA memo, in which an FDA official referred to the Silzone valve as "misbranded” or “adulterated.” We do not find the admissibility of this evidence to be a deciding factor in this case (see fn. 5).

      . We likewise disagree with appellants’ assertion that preemption, if applicable, evaporates if the FDA later determines that the PMA approval was wrongly granted. Appellants cite no authority for this position. The issue is whether, at the time the device was implanted, it was covered by PMA approval. Whether St. Jude was in compliance with federal requirements setting the standard of care at the time the alleged tort was committed is appropriate issue. See Carey v. Shiley, 32 F.Supp.2d 1093, 1095 (S.D.Iowa 1998) (preemption appropriate in suit involving PMA-approved device although product was later withdrawn from market). It is undisputed that, in this case, the Silzone valve, at the time it was implanted in Baker, had been approved by the FDA through both a PMA and a PMA supplement.

      . Ms. Baker's death was allegedly caused by a paravalvular leak, not endocarditis.

      . In March 1998, when the FDA approved the PMA Supplement to add the Silzone coating to the sewing cuff of the valve, it did so on the condition that St. Jude: (1) not market the product with any claim or implication that the Silzone coasting was effective in the prevention of endocarditis; (2) submit post-approval reports to the FDA at intervals of one a year; (3) carefully track, to the final user or patient, each device so that they could be located quickly is serious problems were determined to be occurring with the product; (4) submit a new PMA Supplement when any unanticipated adverse effect, increase in the incidence of adverse effect, or device failure, was encountered; (5) submit, within 10 days of having knowledge, any adverse reaction, side effect, injury, toxicity, or sensitivity reaction that was attributable to the device; and (6) report any time [appellees] received or otherwise became aware of any information from any source, that suggested that the device may have caused or contributed to a serious death or injury, or had malfunctioned such that it could be likely to cause or contribute to a death or serious injury if the malfunction were to recur, within 30 days of becoming aware of a reportable death, injury, or malfunction, or within 5 days of becoming aware that a reportable event required remedial action to prevent an unreasonable risk of substantial harm to the public.


author: JANE BLAND, Justice.

text:
    Vincent L. EDWARDS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 01-04-01013-CR, 01-04-01014-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 30, 2005.

      On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause Nos. 975031 & 975032.

    Jerald K. Graber, Houston, TX, for Appellant.
    Lori Deangelo Fix, Asst. Dist. Atty., Charles A. Rosenthal, Jr., Dist. Atty.-Harris County, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.

      . The first indictment, cause number 975031 at trial and 01-04-01013-CR on appeal, alleges that Edwards possessed more than four grams and less than two-hundred grams of phencyclidine. See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003). The second indictment, cause number 975032 at trial and 01-04 — 01014—CR on appeal, alleges that Edwards committed the state jail felony offense of the unauthorized use of a motor vehicle. See Tex. Pen.Code Ann. § 31.07 (Vernon 2003).

   OPINION

JANE BLAND, Justice.

A jury found appellant, Vincent L. Edwards, guilty of the second-degree felony offense of possession of phencyclidine in the amount of more than four grams and less than two-hundred grams, and the state jail felony offense of the unauthorized use of a motor vehicle. The jury assessed punishment at three years’ confinement for the possession conviction and the trial court assessed punishment at eighteen months’ confinement for the unauthorized use of a motor vehicle conviction. The trial court orally pronounced Edwards’s punishment for the unauthorized use of the motor vehicle at sixteen months’ confinement, but the written judgment and sentence reflect eighteen months’ confinement. Edwards contends (1) the evidence is legally and factually insufficient to support his convictions, and (2) the trial court erred in sustaining one-of the State’s objections during trial. We modify the judgment to reflect the trial court’s oral pronouncement and affirm as modified.

Facts

During a routine patrol in January 2004, Houston Police Department Officers Dan Johnson and Tony Ruggeroli observed a truck entering an apartment complex at 12302 Fondren Road in Houston, Texas. The officers ran a license plate check on the truck, which revealed that the truck had been reported stolen a week earlier. Johnson and Ruggeroli observed the driver park the truck in the apartment parking lot. The officers drove down an adjacent street, and Johnson entered a neighboring home’s backyard to view the apartment parking lot.

Peering through the backyard fence, Johnson observed Edwards’s girlfriend, Dominique Goudeau, sitting in the passenger seat of the truck. Johnson testified that Edwards walked to the truck and handed a brown bottle with a red cap to Goudeau, who then placed the bottle in a purse she was wearing around her neck. The officers subsequently pulled over the truck and detained Goudeau and Edwards. A search of Goudeau’s purse revealed a brown bottle with a red cap. The bottle contained eighteen grams of phencyclidine.

At trial, Edwards testified that he was unaware of any drugs inside the truck. Also, Edwards and Goudeau testified that Edwards did not bring the bottle to the truck and that the purse in which the officers discovered the bottle did not belong to Goudeau. Goudeau further testified that the purse was in the truck’s backseat, not around her neck.

The owner of the truck, Fredericka Small, testified that she gave her husband, Maurice Small, permission to use her truck, and no one else. Although she did not authorize anyone else to drive her truck, she admitted that Maurice frequently drove it. After police arrested him for an unrelated theft, Maurice left the truck in a motel parking lot on Reed Road. At the time of his arrest, Maurice entrusted the truck’s keys to a friend, C.J., and told him to watch over the vehicle until Freder-icka could come and retrieve it. Maurice denied permitting C.J. to drive the truck. Fredericka and Maurice also testified that they did not permit Edwards to drive the truck, because neither had ever seen or met Edwards.

Edwards testified that he borrowed the truck from a man named Chris. Edwards further testified that a man had loaned the truck to Chris in exchange for drugs. Both Edwards and Godeau testified that they had ridden in the truck with Chris several times during the two weeks prior to their arrests. Chris did not testify at trial.

Sufficiency of the Evidence

Standard of Review

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004), cert. denied, — U.S. -, 125 S.Ct. 1697, 161 L.Ed.2d 528 (2005). In a factual sufficiency review, we view all of the evidence in a neutral light, and set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Id. In a factual sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.1996). In conducting a factual sufficiency review, we discuss the evidence that Edwards contends most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). Unless the available record clearly reveals that a different result is appropriate, we defer to the jury’s determination concerning the weight to place upon conflicting testimony, because resolution of facts often turns on an evaluation of the credibility and demeanor of the witnesses. See Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App.2000).

Possession of a Controlled Substance

Edwards contends that the evidence is legally and factually insufficient to support his conviction for the possession of phencyclidine. Specifically, he contends that he was unaware of any drugs inside the truck, he did not bring the bottle to the truck, and the purse in which the officers discovered the bottle did not belong to him or to Goudeau.

A person is guilty of second-degree felony possession if he knowingly or intentionally possesses a controlled substance, in an amount greater than four grams and less than two-hundred grams. Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003). Phencyclidine is a controlled substance as defined by the statute. Tex. Health & Safety Code Ann. § 481.102(8).

In order to establish the offense, the State must prove that (1) the accused exercised care, custody, control, or management over the contraband, and (2) the accused knew that what he possessed was contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995); Cedano v. State, 24 S.W.3d 406, 411 (Tex.App.-Houston [1st Dist.] 2000, no pet.). If the accused does not have exclusive control of the place where police recover the contraband, then the State must show additional affirmative links between the accused and the contraband. Cedano, 24 S.W.3d at 411; Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, pet. refd). Possible factors showing affirmative links include whether:

(1) the contraband was in plain view;
(2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the car seat as the accused was sitting; (6) the place where the contraband was found was enclosed; (7) the odor of marijuana was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused has a special connection to the contraband; (11) occupants of the automobile gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the contraband found in the ear; and (13) affirmative statements connect the accused to the contraband.

Gilbert, 874 S.W.2d at 298. The probative value is not in the number of factors met, but in the “logical force” of the totality of the factors. Id. A court should not focus on the absence of affirmative links, as had been done before the decision in Geesa v. State, but rather should consider the logical force of links that are present. See Hurtado v. State, 881 S.W.2d 738, 744 (Tex.App.-Houston [1st Dist.] 1994, pet. refd) (emphasis in original) (discussing Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991)).

To determine if the evidence is legally sufficient, a court asks whether enough evidence exists for a rational jury to find beyond a reasonable doubt that the accused had knowledge of the presence of the contraband. Roberson v. State, 80 S.W.Sd 730, 735-36 (Tex.App.-Houston [1st Dist.] 2002 pet. ref'd). Here, several factors affirmatively link Edwards to the contraband. First, the officers found the contraband inside the truck driven by Edwards. Second, Johnson testified that he observed Edwards carry the brown bottle, later found to contain phencyclidine, to the truck. Third, Johnson further testified that Edwards exhibited bloodshot eyes and slurred speech, which indicate intoxication.

We recognize that Edwards testified that he was unaware of the phencyclidine inside the truck, and that he denied bringing the bottle to the truck. Edwards further relies on his and Goudeau’s testimony that the purse in which the officers discovered the bottle did not belong to Godeau, and that purse was in the truck’s backseat. As fact finders, however, the jury, was free to discount any of the witnesses’ credibility and testimony. McKinny v. State, 76 S.W.3d 463, 468-69 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

Viewing this evidence in a light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that Edwards knowingly and intentionally possessed phencyclidine. Viewing all of the evidence neutrally, the evidence is not so weak as to undermine the jury’s findings and is not so greatly outweighed by contrary proof as to imply that a serious injustice was permitted. We therefore hold that the evidence is legally and factually sufficient to support Edwards’s conviction for the unlawful possession of phency-clidine.

Unauthorized Use of a Motor Vehicle

Edwards contends the evidence is legally and factually insufficient to support his conviction for the unauthorized use of a motor vehicle because the State failed to prove that he knowingly operated the truck without the owner’s consent. He further contends the he could not. have known that Fredericka had reported the truck stolen and that Chris was not in “full legal possession of the truck.”

A person commits an unauthorized use of a vehicle if he “intentionally or knowingly operates another’s boat, airplane, or motor-propelled vehicle without the effective consent of the owner.” Tex. Pen.Code Ann. § 31.07(a) (Vernon 2003). Effective consent includes “consent by a person legally authorized to act for the owner.” Tex. Pen.Code Ann. § 31.01(3). Unauthorized use of a vehicle is a “circumstances crime” — operating a vehicle is unlawful only if the accused is aware of the attendant circumstance — that the operation of the vehicle is without the owner’s consent. Gardner v. State, 780 S.W.2d 259, 262-63 (Tex.Crim.App.1989). Without requiring a culpable mental state of knowingly, unauthorized use of a motor vehicle would become a strict liability crime. Id.; see also McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App.1989) (holding that defendant must know that his use of motor vehicle was without effective consent of owner).

In McQueen, the Court of Criminal Appeals held that testimony that the car owner did not give anyone consent to operate his vehicle was sufficient to support a finding that the defendant knew he did not have consent to operate the vehicle. Id. at 604-05. Without noting McQueen, this court, in a case decided three years later, held that testimony that the car owner did not give anyone consent to use the vehicle, alone, without any indicia that the defendant was aware that the owner had not consented, was legally insufficient evidence of intent. See Herbert v. State, 827 S.W.2d 507, 508-09 (Tex.App.-Houston [1st Dist.] 1992, no pet.).

Unlike Herbert, the evidence in this case demonstrates some awareness by Edwards that he knew he did not have the consent of the owner. Fredericka testified that she gave permission to use her truck to her husband only. Her husband, Maurice, testified that he gave a man named C.J. the keys to his truck and asked him to “watch” it until Fredericka could retrieve it from the motel parking lot. Maurice further testified that he prohibited C.J. from permitting anyone else to drive the truck. Fredericka never loaned the truck to Chris, nor to Edwards.

Edwards testified that a man named Chris loaned him the truck. When questioned as to how Chris obtained the truck, Edwards testified that Maurice had “loaned” Chris the truck in exchange for drugs. Thus, Edwards’s own testimony indicates an awareness that Chris did not own the truck. Though Edwards earlier had testified that he believed Chris owned the truck, the jury was free to discredit this portion of his testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986). Here, no witness testified that Chris ever was authorized to lend the truck to another, and Edwards admitted that he knew that Chris was not the truck’s owner. Although we consider all of the evidence presented at trial, the trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. Id. We conclude that the evidence legally and factually supports the State’s contention that Edwards knowingly operated the truck without the consent of the owner, and thus hold that the evidence is legally and factually sufficient to support Edwards’s conviction for the unauthorized use of a motor vehicle.

Evidentiary Objections

Edwards contends the trial court erred in sustaining the State’s objections to testimony he offered to establish that Maurice, the man who loaned Chris the truck, was an addict who traded his car to Chris in exchange for drugs. In his briefing to this court, Edwards contends that “the testimony about Mr. Small’s [Maurice’s] crack addiction was vitally important to the defense because it was the crucial fact that made all the other things fall into place.” The State responds that (1) Edwards failed to preserve his issue for appeal, and (2) the trial court did not abuse its discretion in sustaining the State’s objection. Standard of Review

We review the trial court’s admission or exclusion of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim. App.2000) (citing Prystash v. State, 3 S.W.3d 522, 527 (Tex.Crim.App.1999)); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). A trial court has wide discretion in its decision to admit or exclude evidence. Guzman, 955 S.W.2d at 89; Pierre v. State, 2 S.W.3d 439, 442 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) (citing Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App.1992)). A trial court’s evidentiary ruling should not be disturbed on appeal unless it is an abuse of discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App.2001); see also Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App.1993). If the trial court’s ruling is within the reasonable zone of disagreement, then an appellate court should not disturb it. Powell, 63 S.W.3d at 438 (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990)); see also Pierre, 2 S.W.3d at 442.

During Edwards’s trial testimony, the following exchange occurred:

[Trial Counsel]: Do you know how Chris got the truck?
[Edwards]: Yes.
[Trial Counsel]: How did he get it?
[Edwards]: The man lend [sic] him the truck for some drugs.
[Trial Counsel]: The gentleman that came in here?
[Edwards]: Yes.
[Trial Counsel]: He was on crack?
[Edwards]: Yes, sir.
[State]: Objection, relevance; facts not in evidence.
[The Court]: Sustained. Disregard the last comment by the witness and do not consider it for any purpose.

We note that Texas Rule of Evidence 103(a)(2) requires an offer of proof of the proposed evidence to the trial court, unless the substance is apparent from the context, if the ruling of the trial court excludes the evidence. Guidry v. State, 9 S.W.3d 133, 153 (Tex.Crim.App.1999); Howard v. State, 962 S.W.2d 119, 122 (Tex.App.-Houston [1st Dist.] 1997, pet. ref d). An offer of proof must show that the excluded evidence is relevant and admissible. See Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App.1998) (per cu-riam). Here, Edwards answered trial counsel’s question regarding Maurice’s alleged drug use on the record, and therefore counsel preserved the issue for appeal.

Relevant evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Tex.R. Evid. 401. Generally, all relevant evidence is admissible, and the evidence that is not relevant is inadmissible. Tex.R. Evid. 402. “Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence.” Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App.2004).

Although Edwards contends the State made an improper relevancy objection, he fails to offer support for his contention. Edwards’s trial counsel did not take him on voir dire in order to more fully develop the record, nor did he offer to demonstrate how the purported evidence that the man who loaned the truck to Chris was “on crack” is relevant to his own defense. We cannot conclude that the trial court’s decision to exclude Edwards’s testimony was arbitrary or unreasonable. We therefore hold that the trial court did not err in sustaining the State’s objection.

Judgment Correction

The State requests that we reform the written judgment and sentence to comport with the trial court’s oral assessment of punishment. The written judgment indicates that the trial court sentenced Edwards to eighteen months’ confinement for the unauthorized use of a motor vehicle. During the punishment phase of trial, however, the trial court orally assessed punishment at sixteen months’ confinement. A sentence must be orally pronounced in the defendant’s presence. Tex.Code CRim. Proc. Ann. art. 42.03 § 1(a) (Vernon 2003); Taylor v. State, 131 S.W.3d 497, 500 (Tex.Crim.App.2004). The sentence and judgment merely memorialize the oral pronouncement. Tex.Code Crim. Proc. Ann. art. 42.01 § 1; Taylor, 131 S.W.3d at 500. If the written sentence and judgment conflict with the oral pronouncement, the oral pronouncement controls. Taylor, 131 S.W.3d at 500; Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App.1998). Here, the reporter’s record shows that the trial judge orally pronounced Edwards’s sentence for the unauthorized use of a motor vehicle to be sixteen months’ confinement. The judgment incorrectly provides that Edwards is sentenced to eighteen months’ confinement. We therefore modify the judgment to reflect the trial court’s oral pronouncement of sixteen months’ confinement in the Texas Department of Criminal Justice, State Jail Division, for the unauthorized use of a motor vehicle offense.

Conclusion

We hold that (1) the evidence is legally and factually sufficient to support Edwards’s conviction for the possession of phencyclidine; (2) the evidence is legally and factually sufficient to support Edwards’s conviction for the unauthorized use of a motor vehicle; and (3) the trial court did not abuse its discretion in sustaining the State’s evidentiary objection. We therefore affirm the judgment of the trial court as modified.

      . Edwards elected the jury to assess his punishment on the possession conviction, and the trial court to assess his punishment on the unauthorized use of a motor vehicle conviction.


text:
    James Bruce ARMENTOR, Appellant, v. Tracy Lea KERN and the Office of the Attorney General of Texas, Appellees.
    No. 01-04-00579-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 30, 2005.

      Myrna J. Dunnam, Baytown, TX, for Appellant.
    John B. Worley, Child Support Division, Rhonda Amkraut Pressley, Asst. Atty. Gen., Greg Abbott, Office of the Attorney General, Austin, TX, Shawn Casey, Shawn Casey & Associates, Houston, TX, for Ap-pellees.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

JANE BLAND, Justice.

James Armentor appeals the trial court’s order granting Tracy Kern and the Attorney General of Texas’s motion for enforcement of a child support order. Ar-mentor contends the trial court erred in ordering him to pay $21,793 for child support arrearages because the underlying child support order is void due to the trial court’s lack of personal jurisdiction over him. We affirm.

The Background

In May 2000, Kern sued Armentor to establish that Armentor is the father of her daughter, M.N.G., born in 1993 in Lake Charles, Louisiana. Kern, a Texas resident, served Armentor with a nonresident citation in his home state of Louisiana in June 2000. Armentor did not answer or appear for trial. In November 2000, the trial court signed a default final order establishing parentage and awarding child support.

The November order recites that the court had jurisdiction over the parties and that Armentor is M.N.G.’s father. The order requires Armentor to pay $525 per month for child support until June 1, 2001, and $600 per month thereafter. The order further renders a retroactive support judgment against Armentor in the amount of $33,225, to be liquidated in monthly payments of $150.

Armentor did not move for a new trial, appeal, or file a bill of review to contest the final order. Armentor also did not pay child support as directed by the trial court, although he did pay smaller sums to Kern over time. In 2002, the attorney general moved to enforce the child support order. Armentor answered with a general denial and asserted that “there is no enforceable order on which to find a child support arrearage.” He later moved to strike the Attorney General and Kern’s motion for enforcement on the ground that the trial court lacked personal jurisdiction over him, as a nonresident party, at the time it signed the November 2000 final order.

In February 2002, the trial court heard argument on Armentor’s motion to strike. The trial court denied the motion. Further, after hearing evidence, the trial court granted the motion to enforce the child support order, and signed an order confirming $21,793 in child support arrearag-es. Armentor moved for a new trial, which the trial court denied. This appeal followed.

Discussion

Armentor contends the trial court erred in entering an order confirming a child support arrearage because the underlying court order establishing parentage and awarding child support is void due to the trial court’s lack of personal jurisdiction over him. The Attorney General responds that (1) the underlying order expressly states that the trial court had personal jurisdiction over Armentor, thus he cannot now collaterally attack the order; and (2) the evidence demonstrates Armentor maintained continuous, systematic, and substantial contacts with Texas, related to the subject matter of the suit, thereby subjecting Armentor to personal jurisdiction in Texas. In her briefing to this court, Kern adopts the Attorney General’s briefing, and further requests that we strike the reporter’s record of the original default final order hearing, because it was not before the trial court at the motion to enforce hearing.

Standing to Raise a Jurisdictional Challenge

A collateral attack, unlike a direct attack, does not attempt to secure the rendition of a single, correct judgment in the place of a former judgment. Solomon, Lambert, Roth & Assoc’s, Inc., v. Kidd, 904 S.W.2d 896, 900 (Tex.App.-Houston [1st. Dist.] 1995, no writ) (citing Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex.1973) and Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985)). Instead, it is “an attempt to avoid the effect of a judgment in a proceeding brought for some other purpose.” Id. (citing Employers Cas. Co. v. Block, 744 S.W.2d 940, 943 (Tex.1988)).

A party may collaterally attack a judgment of a court of general jurisdiction in another court of equal jurisdiction if the underlying judgment is void. Solomon, 904 S.W.2d at 900 (citing Browning, 698 S.W.2d at 363). A trial court’s judgment is void only if the court had no jurisdiction over the parties or the property, no jurisdiction over the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court. Id. (citing Browning, 698 S.W.2d at 363). All errors other than jurisdictional deficiencies render the judgment voidable, and such errors must be corrected on direct attack. Id. (citing Browning, 698 S.W.2d at 363). The party collaterally attacking the judgment bears the burden of demonstrating that the judgment under attack is void. See Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex.1994).

Here, Armentor contends the underlying default final order against him is void because the trial court never acquired personal jurisdiction over him. If the trial court lacked personal jurisdiction over Ar-mentor, then the default final order is void, and it is permissible for Armentor to challenge that default order by a collateral attack. See Solomon, 904 S.W.2d at 900-01. We therefore conclude Armentor has standing to collaterally challenge the underlying default order for lack of personal jurisdiction.

Jurisdictional Recitals in the Default Final Order

Armentor contends that he did not engage in activities within Texas' sufficient to subject him to suit in Texas state district court. Kern and the Attorney General respond that (1) Armentor’s attack cannot prevail because the jurisdictional recitals in the final order under attack must be given absolute verity; and (2) even if Ar-mentor could collaterally attack the final order, the evidence sufficiently proves that the Texas court had personal jurisdiction over Armentor at the time it rendered its default final order.

“It is the well settled law of this state that where a judgment is collaterally attacked, plain jurisdiction recitals contained therein must be accorded absolute verity.” Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932, 934 (1935); see also Akers v. Simpson, 445 S.W.2d 957, 959 (Tex.1969) (“It is the firmly established rule in Texas that a defendant who is not served and who does not appear may not, as a matter of public policy, attack the verity of a judgment in a collateral proceeding; the jurisdictional recitals import absolute verity.”). This court and the Dallas Court of Appeals more recently have followed this rule. See Solomon, 904 S.W.2d at 900; Huffstutlar v. Koons, 789 S.W.2d 707, 710 (Tex.App.-Dallas 1990, no writ). The November 2000 default final order in this ease contains such recitals, and thus the trial court properly deferred to their verity.

Even if, in an appropriate case, the veracity of personal jurisdiction recitals could be questioned in a collateral attack on the judgment, this is not such a case. Armentor failed to introduce evidence contradicting these recitals at the motion to enforce hearing. Armentor instead contended that the pleadings that sought relief did not establish the trial court’s exercise of personal jurisdiction. Armentor did not offer the testimony from the earlier default hearing. Armentor testified at the motion to enforce hearing, but not about his contacts in Texas during the time preceding the trial court’s default final order. Rather, he testified about his ability to pay the order and his current infrequent contacts with the child. Such testimony does not contradict the veracity of the recitals in the default final order. Thus, even assuming that personal jurisdictional recitals can be collaterally attacked, Armentor has failed to meet his burden to demonstrate that the default final order is void. See Stewart, 870 S.W.2d at 20.

Conclusion

We hold that the trial court did not err in finding that Arnaentor failed to overcome the validity of the underlying default final order. We therefore affirm the order of the trial court confirming a child support arrearage.

      . Kern moves to strike the record of the October 2000 default hearing because it was not introduced into evidence at the motion to enforce hearing — and, indeed, was not even transcribed until after the motion to enforce proceedings had concluded. The record supports Kern’s contention. Though the trial court took judicial notice of the "entire court file,” the clerk's file does not contain a copy of the default final order hearing, which took place three years and three months earlier. We thus grant Kern’s motion. We note, however, that the record of that hearing includes Kern's testimony that Armentor had been to Texas on frequent occasions to transport M.N.G. to and from Louisiana.