text:
    Saul R. ACEVEDO, Appellant, v. The STATE of Texas, Appellee.
    No. 04-98-01025-CV.
    Court of Appeals of Texas, San Antonio.
    March 15, 2000.
    Barry P. Hitchings, Hitchings & Pollock, San Antonio, for appellant.
    Susan A. Bowen, Asst. Criminal Dist. Atty., Civil Section, San Antonio, for appel-lee.
    Sitting: TOM RICKHOFF, Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice.
   OPINION

Opinion by:

TOM RICKHOFF, Justice.

Saul R. Acevedo appeals from a final judgment against him as surety on a bond following bond forfeiture proceedings. Acevedo raises three points of error, complaining that: (1) there was insufficient evidence to support the final judgment; (2) appellant was exonerated pursuant to Arti-ele 22.13, section 4, of the Texas Code of Criminal Procedure; and (3) the final judgment was based upon an invalid bond. Because we hold that appellant was exonerated from liability in accordance with Texas Code of Criminal Procedure article 22.13, section 4, we reverse the judgment of the trial court.

Background and Facts

On August 29, 1995, a pre-indictment bail bond was executed against the Defendant-Principal Sri T. Punjabi. Punjabi was not indicted until January 10, 1996, during the January/February 1996 term of court. During the calendar years 1995 and 1996, the terms of the Bexar County district courts giving preference to criminal cases began on the first Mondays in January, March, July, September, and November pursuant to Section 24.139 of the Texas Government Code. The case against Punjabi was carried over by order of the court from the July/August 1995 term of court to the September/October and to the November/December 1995 terms of court. Punjabi’s name did not appear on the list of cases continued into the January/February 1996 term of court. On January 10, 1996, Punjabi was indicted by the Bexar County Grand Jury in cause 96-CR-0064. Defendant Punjabi was re-indicted on October 1, 1996 in cause 96-CR-4728 for the same offense. On March 10,1997, Punjabi failed to appear and answer in court. On September 11, 1998, a final judgment was entered by the trial court ordering that the State of Texas recover from Punjabi, as principal, and Saul Acevedo, as surety, jointly and severally in the amount of $100,000 and the costs of court.

Argument

Appellant as surety argues that he was entitled to exoneration from liability on the forfeited bond as Punjabi’s name was not included in those cases continued into the January/February 1996 first term of the court. Article 22.13 of the Texas Code of Criminal Procedure provides:

The following causes, and no other, will exonerate the defendant and his sureties, if any, from liability upon the forfeiture taken:
4. Failure to present an indictment or information at the first term of the court which may be held after the principal has been admitted to bail, in case where the party was bound over before indictment or information, and the prosecution has not been continued by order of the court.

Tex. Code CRiM. PROC. Ann. art. 22.13 § 4 (Vernon’s 1989).

The effect of this rule is that where a person charged with a crime has been held over to await the action of the grand jury, if not indicted at the first term of court at which his case was returnable, the sureties should be relieved, unless by an order duly entered the prosecution has been continued. Headley v. State, 58 Tex.Crim. 185, 186, 125 S.W. 27, 28 (Tex.Crim.App.1910). In Headley, the court reversed the trial court’s final bail bond forfeiture judgment against the sureties and rendered that the State take nothing. The court stated that to hold otherwise would not only violate the law, but be a breach of good faith on the part of the State. Id. In 1968, the Fifth Circuit Court of Appeals considered Article 22.13 section 4 and noted that, “under Texas law, the failure to present an indictment or information during the term of court next after a defendant has been released on bail relieves him and his sureties from all liability on the bond.” Luna v. Beto, 395 F.2d 35, 39 (5th Cir.1968). The Texas Court of Criminal Appeals affirmed this interpretation in 1978, holding that if the principal was not indicted the next term after he was admitted to bail, the surety was entitled to exoneration from the forfeiture. Smith v. State, 561 S.W.2d 502, 503 (Tex.Crim.App.1978).

Punjabi was admitted to bail on August 29, 1995. He was not indicted in either the July/August 1995 term of court or during the next term after, the September/October 1995 term of court. He was not indicted until January 10, 1996, during the January/February 1996 term of court. In addition, because Punjabi’s name was not included on the list of cases continued from the November/December 1995 term of court into the January/February 1996 term of court, the prosecution against Punjabi was not continued by order of the court.

The State claims that appellant waived his right to the affirmative defense of article 22.13, section 4, by failing to object until after the indictment was returned. The State claims that this case is analogous to the treatment of article 32.01 of the Texas Code of Criminal Procedure in Brooks v. State, 990 S.W.2d 278, 285 (Tex.Crim.App.1999). In Brooks, the Court held that article 32.01 has no application once an indictment is returned. The appellant waived his right to challenge the indictment since he filed his writ of habeas corpus almost a year and a half after the indictment was returned by the grand jury. Brooks, 990 S.W.2d at 285.

The primary consideration in Brooks is the issue of mootness. An application for writ of habeas corpus complaining about a delayed indictment under article 32.01 is rendered moot by the return of the indictment before the complainant files his writ. State v. Bruni, 2 S.W.3d 420, 421 (Tex.App.-San Antonio 1999, pet. refd); State v. Weiblen, 2 S.W.3d 375, 376 (Tex.App.-San Antonio 1999, pet. refd). Brooks and its progeny are not applicable to our consideration under article 22.13, section 4. A surety has no responsibility to object prior to the rendering of the indictment in order to preserve his article 22.13, section 4, defense. That logic would erroneously require a third party to raise an objection to preserve a defense before any action had been taken against him. Accordingly, we hold that the appellant raised the article 22.13, section 4, defense at the proper time, during the bond forfeiture hearing.

The State also argues that appellant was not entitled to exoneration under 22.13, section 4, because Punjabi’s absence from the list of names to be carried forward on the January/February term of the Grand Jury was a clerical error. In the findings of fact and conclusion of law, the trial court claimed that the returning of the indictment on January 10, evidenced the clerical error. A finding that the State made a clerical error is irrelevant to our examination as there is no clerical error exception provided under 22.13, section 4. Nor, under these facts, do we believe it is necessary or appropriate to judicially create a clerical error exception after decades of irenic constancy.

Punjabi’s name was not included on the November/December list for the grand jury; and thus, his prosecution was not carried over to the next term by court order. In addition, Punjabi was not indicted at the first term of court after the principal had been admitted to bail. Therefore, when the grand jury indictment was issued on January 10, appellant had already been released from his bond obligation.

Accordingly, we hold that appellant is entitled to exoneration as surety for the bond in accordance with article 22.13, section 4. We reverse the judgment of the trial court making bond forfeiture final and render judgment of exoneration.


source: Caselaw Access Project

author: TOM RICKHOFF, Justice.

license: Public Domain

text:
    Cesar Dario DEVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 04-99-00013-CR.
    Court of Appeals of Texas, San Antonio.
    March 22, 2000.

      George E. Shaffer, San Antonio, for Appellant.
    Edward F. Shaughnessy, III, Asst. Crim. Dist. Atty., San Antonio, for Appel-lee.
    Sitting: TOM RICKHOFF, Justice, ALMA L. LÓPEZ, Justice, PAUL W. GREEN, Justice.
   OPINION

Opinion by:

TOM RICKHOFF, Justice.

Cesar Dario Devis appeals his conviction of one count of murder along with four counts of aggravated assault. Appellant raises four points of error: 1) that the trial court erred during voir dire by commenting on the weight of the evidence; 2) that the trial court erred in failing to remove defendant from the courtroom when defendant’s attorney absented himself from a pre-trial hearing; 3) that the trial court erred in allowing the state to display weapons not in evidence without a limiting instruction; and 4) that defendant’s trial counsel rendered ineffective assistance. We affirm the judgment of the trial court.

Facts And Background

On December 20,1997, at approximately 4:00 a.m., a shooting took place outside the La Estrellita restaurant on Nogalitos Street. One person, Robert Alvarez, was shot and killed. Alexander Palma, Jaime Rodriguez, Arnold Reyna, Jr., and Arnold Reyna, Sr. were injured by gunfire. Appellant was indicted along with two co-defendants; Tomas Hernandez and Miguel Gutierrez. The indictment charged appellant with the offenses of murder and aggravated assault. At trial, both Jaime Rodriguez and Arnold Reyna, Jr. identified appellant as a shooter. The jury found appellant guilty on all counts and assessed punishment at 60 years for the offense of murder and 2 years for each aggravated assault. The trial and motion for new trial were presided over by visiting Judge Eschenburg. The pre-trial identification hearing was presided over by Magistrate/Master Carruthers.

Point of Error Number One

At the onset of the jury selection process, the trial judge sought to explain the punishment phase of the trial. The appellant had filed an application for probation; and thus, the jury had to consider probation under certain circumstances. The court instructed the jury as follows:

And also, in this case if the defendant has filed an application for probation, and you may wonder why you have to do that prior to you finding him-or deciding guilty or not. Because under our law, if he’s eligible for probation-and I will explain that-he has to file that before we start the trial, even though later you may find that he is not guilty and he goes free. But if this defendant had never been convicted of a felony, and if you decide the appropriate punishment is between five years and ten years, then you must be willing to consider probation, even if you find him guilty of murder.
What that means is, you do not have to give this defendant probation. And if you decide the appropriate years, or any 11 or more, then by law you cannot even consider probation. But if you decide if you’re-if you find him guilty, that the appropriate punishment for him lies between either five years or ten years, then you also have to consider whether you will give him probation. You don’t have to, but you have to consider it.
So I want you to think about that. Because right now you do not have to make up your mind ahead of time. No way in the world would you find somebody guilty of murder and give him probation.

The judge then goes on to explain that in a mercy killing you may want to consider probation; however, in a murder involving torture you should probably give him the maximum.

To the jury, the language and conduct of the trial court have a special and peculiar weight. See Livingston v. State, 782 S.W.2d 12, 14 (Tex.App.-Dallas 1989, pet. refd). Accordingly, the trial court should never “make any remark calculated to convey to the jury [its] opinion of the case.” Tex.Code Crim. PROC. Ann. art. 38.05 (Vernon 1999); Clark v. State, 878 S.W.2d 224, 226 (Tex.App.-Dallas 1994, no pet.). The jury was entitled to give the defendant probation if they found him guilty of murder and sentenced him between 5-10 years. Thus, the trial judge committed error in this case by disclosing his opinion of a material issue properly before the jury.

Generally, in order to preserve for appellate review a complaint about a trial judge’s comments during trial, counsel must object or otherwise bring the complaint to the trial judge’s attention. Tex. R. App. P. 33.1; Sharpe v. State, 648 S.W.2d 705, 706 (Tex.Crim.App.1983); Hoang v. State, 997 S.W.2d 678, 680 (Tex.App.-Texarkana 1999, no pet. h.); Blue v. State, 983 S.W.2d 811, 812 (Tex.App.-Houston [1st. Dist.] 1998, pet. granted). Arguably, the appellant waived his complaint on review by failing to object. Hoang, 997 S.W.2d at 680; Blue, 983 S.W.2d at 812. According to Hoang, any error contained in the Texas Code of Criminal Procedure and not in the Texas Rules of Evidence must be properly preserved or it is waived, regardless of whether or not it was a “fundamental error”. Hoang, 997 S.W.2d at 680. Whether or not an appellate court in the absence of a trial objection should make a determination of whether the trial court’s comments amounted to fundamental error, is unsettled law. See Id.; Blue, 983 S.W.2d at 814-815.

Regardless of whether the error is fundamental error or not, if we “determine beyond a reasonable doubt that the court’s error made no contribution to the conviction,” we should hold the error harmless. Tennison v. State, 814 S.W.2d 484, 486 (Tex.App.-Waco 1991, no pet.). After the jury chose to sentence the defendant to 60 years of incarceration, probation was not an option for the jury. Thus, the jury’s conclusions were unaffected by the Judge’s erroneous instruction. See Lee v. State, 874 S.W.2d 220, 225 (Tex.App-.Houston [1st Dist.] 1994, pet. refd). We hold that the trial court’s error was harmless and not reversible error.

Point of Error Number Two

On May 22, 1998, the defendant appeared in the magistrate court before Judge Carruthers. He appeared with co-defendants Miguel Gutierrez and Tomas Hernandez. The pre-trial hearing was held in order to hear the appellant’s co-defendants’ identification suppression motions. Primarily the purpose of the hearing revolved around the photo array identification of Miguel Gutierrez. While on the witness stand, Jaime Rodriguez identified appellant as a shooter with a shotgun. Appellant’s counsel was present and cross-examined Jaime.

Later, with the court’s approval, trial counsel for appellant determined that it was unnecessary for him to be at the hearing. The court did not subsequently order the appellant to leave the courtroom, nor did trial counsel request that he be returned to custody. While appellant’s counsel was absent, appellant was identified by victim-witness Arnold Reyna, Jr. The court recognized appellant’s need for counsel, and ordered the hearing in recess until trial counsel returned to the courtroom.

Appellant argues that the court violated his Sixth Amendment right to counsel by either allowing appellant’s trial counsel to leave or failing to order the appellant removed from the courtroom once his attorney had left. In addition, appellant argues that the identification was impermissibly suggestive and should be suppressed.

In effect, after counsel left, the appellant was subjected to a pre-trial identification. As the co-defendants were sitting together the prosecution asked Arnold Reyes, Jr.:

Q. Okay. Wednesday night who did you see at the café?
A. I seen each of these gentlemen right here, all three of ‘em 1, 2, and 3.
Q. Okay. Arnold, did you see number 1 on Saturday morning about the time of the shooting?
A. Yes, I did.
Q. Okay. Number 1 is Cesar Devis.
A. Okay.
Q. What was he doing?
A. At the time of the shooting he was the one that I saw with the gun.

As the State admits, a pretrial identification conducted after a suspect has been indicted is a critical stage in a criminal prosecution at which the Sixth Amendment entitles the accused to the presence of counsel. Moore, v. Illinois, 434 U.S. 220, 224, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). The State argues that the right to counsel was protected by the preservation of cross examination. However, counsel is required throughout the proceeding so that the accused’s counsel can object to suggestive features of a procedure before they influence a witness’s identification. Id. at 225, 98 S.Ct. 458.

The State also asserts that appellant failed to properly preserve this issue for appellate review. Upon returning to the trial, appellant’s trial counsel objected to the identification. However, trial counsel failed to get a ruling on that objection, failed to file a motion to suppress the identification, and failed to object at trial that the identification made at trial was tainted by this pre-trial identification. Thus, he arguably waived error. See Archie v. State, 615 S.W.2d 762, 764 (Tex.Crim.App.1981); Paez v. State, 995 S.W.2d 163, 173 (Tex.App.-San Antonio 1999, pet. refd); Baskin v. State, 672 S.W.2d 312, 314 (Tex.App.-San Antonio 1984, no pet.). However, all of these cases are distinguishable in that they took place before any formal judicial proceedings were instituted. See Archie, 615 S.W.2d at 764; Paez, 995 S.W.2d at 173; Baskin, 672 S.W.2d at 314.

In our case, formal judicial proceedings were instituted and appellant’s right to counsel had fully attached. After the right to counsel has attached, a criminal suspect cannot be subjected to a pre-trial identification in the absence of counsel without violating the Sixth Amendment. Moore, 434 U.S. at 224, 98 S.Ct. 458; Kirby v. Illinois, 406 U.S. 682, 690, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1971). There is nothing in the record evidencing that appellant knowingly waived his right to counsel. As such, it was error for the magistrate court to allow the identification to take place without the presence of counsel. Moore, 434 U.S. at 224-225, 98 S.Ct. 458. The right to counsel is fundamental to the proper functioning of our adjudicatory process and cannot be forfeited by inaction alone. Marin v. State, 851 S.W.2d 275, 278-279 (Tex.Crim.App.1993).

The result of the magistrate court’s error is that the prosecution may not support or buttress a later in-court identification of the witness by any reference to the previous identification. Barnhill v. State, 657 S.W.2d 131, 132 (Tex.Crim.App.1983). Furthermore, the in-court identification is not admissible at all unless the prosecution can establish by clear and convincing proof that the testimony was of independent origin and not the fruit of the earlier identification made in the absence of the accused’s counsel. Id. at 132.

In determining whether the evidence offered established that the identification was of independent origin, we consider the following factors: 1) the opportunity the victim-witness had to observe the alleged criminal act; 2) the existence of any discrepancy between any pretrial identification and the actual description of the defendant; 3) any identification prior to the lineup of another person; 4) the identification by picture of the defendant prior to the lineup; 5) the failure to identify the defendant on a prior occasion; and 6) the lapse of time between the alleged act and the lineup identification. Loserth v. State, 985 S.W.2d 536, 548 (Tex.App.-San Antonio 1998, pet. refd).

The shooting occurred on the morning of December 20, 1997. Appellant was first identified at the pretrial hearing on May 21, 1998. He was not identified previously in a photo array by any of the victim-witnesses. In fact, according to detective Thomas Matjeka, Arnold Reyes, Jr. previously in a photo lineup “without any hesitation whatsoever” identified Tomas Hernandez as the person with the shotgun. At the pretrial hearing, with counsel present, appellant was first identified by Jaime Rodriguez who had a chance to see him both at the window of the restaurant prior to the shooting and with a shotgun during the shooting. Later in the proceeding Arnold Reyes, Jr. also identified appellant, this time with counsel absent. Given the prior misidentification, and the short and hectic opportunity Arnold Reyes, Jr. had to view the appellant, the State arguably did not meet its burden of proving the independent origin of his identification. See Loserth, 985 S.W.2d at 548.

In any case, the violation of appellant’s Sixth and Fourteenth Amendment right to counsel at the pretrial identification and the failure to exclude evidence derived directly from that violation is subject to harmless constitutional error analysis. Tex.R.App. P. 44.2(a); Moore, 434 U.S. at 232, 98 S.Ct. 458. A constitutional error that is subject to harmless error review requires reversal unless the appellate court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); In re M.R.R., 2 S.W.3d 319, 325 (Tex.App.-San Antonio 1999, no pet.). In determining harm, the question is not whether the outcome was proper or whether there was overwhelming evidence of guilt, but whether the overwhelming evidence “dissipates the error’s effect upon the jury’s function in determining the facts so that it did not contribute to the verdict.” Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989). We must isolate the error and all its effects, then ask whether a rational trier of fact might have reached a different result if the error and its effects had not occurred. See id. at 588. To make this determination, we consider: (1) the source of the error; (2) the nature of the error; (3) whether or to what extent it was emphasized by the State; (4) the probable collateral implications of the error; and (5) whether declaring the error harmless would encourage the State to repeat it with impunity. Id. at 587. We do not focus on the propriety of the outcome of the trial, but on the integrity of the process that led to conviction and punishment. Id. at 587-588.

In our case, while the trial court should have recognized the potential problems immediately when counsel sought to leave, the source of the error was appellant’s trial counsel. The trial court immediately suspended the proceeding after the identification and preserved cross-examination. Thus, there is no reason to believe that the State intended to taint the process. See Irizarry v. State, 916 S.W.2d 612, 616 (Tex.App.-San Antonio 1996, pet. refd). In addition, another victim-witness, Jaime Rodriguez was able to identify appellant as a shooter in substantially identical testimony as that of Arnold Reyes, Jr. Therefore, we hold that the admission of the identification testimony was harmless.

Point of Error Number Three

Appellant’s third point of error is that the trial court erred in allowing the State to display certain weapons in front of the jury, a high powered rifle and a shotgun, without a limiting instruction. After the weapons had successfully been entered and marked as State’s exhibits 48 & 49, counsel finally chose to object. “Your Honor, could we put those aside? They’re just inflaming people around here.” Counsel never got a ruling on his objection. Later in the proceeding after the guns had been used several times counsel renewed his objection in a bench conference.

Counsel: ... I was under the impression that they were the weapons that were found, and otherwise, I’m sure I would have objected to them presenting them in court. But since they are demonstrative, my only objection would be that they are presenting them to the Jury, showing them in open court, did nothing more than to inflame and prejudice the defendant’s case. They’re inflammatory. And again, I thought the— I believe that the jury got the impression that these were the weapons used in the crime and—
The court: Well, we’ll clear up that problem with the Jury when they come back.
Counsel: Okay, Judge.

Despite the court’s assurance, it never addressed the jury about the weapons. Appellant by failing to make a timely objection and obtain a ruling arguably waived his right to bring appeal on this error. See Bhakta v. State, 981 S.W.2d 293, 296 (Tex.App.-San Antonio 1998, pet. refd). However, a complaint and a request was made to the tidal court with sufficient specificity to make the trial court aware of the issue, and a ruling was eventually made by the court preserving error. See Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App.1999).

Demonstrative weapons can be utilized by the prosecution if: 1) the original is not available; 2) if available the original would be admissible; 3) if it is relevant and material to an issue in controversy; 4) its probative value outweighs any inflammatory effect; and 5) the jury is instructed that the weapon is not the weapon used in the commission of the crime, and is to be considered by the jury solely as evidence that demonstrated or illustrated what the object used in the offense looks like. Miskis v. State, 756 S.W.2d 350, 352 (Tex.App.-Houston [14th Dist.] 1988, pet. refd). The trial court erred by failing to instruct the jury on the appropriate consideration of the weapons. Id. at 352. However, this error can be considered harmless under Tex.R.App. Proc. 44.2(b). Id.

The weapons were never presented by the prosecution as the weapons used in the offense. In the prosecutors closing remarks he stated, “These weapons are here for demonstrative purposes so that you can see what kind of weapons were used, so that witnesses can refer to weapons, and that it can be clear to you. We don’t have the weapons. But you know what? We don’t need to.” Likewise, defense counsel in its closing argument also stressed that the demonstrative weapons were not the weapons used in the offense. Therefore, error was harmless.

Point of Error Number Four

Appellant’s fourth point of error, that trial counsel was ineffective, is necessarily related to his first three points of error. Appellant argues that trial counsel was ineffective by failing to preserve error under point of error number one regarding the pre-trial instruction on punishment, by leaving his client during a pre-trial hearing as discussed under point of error two, and by failing to object appropriately to the introduction of weapons used for demonstrative purposes under point of error number three. He also cites the court to several other instances in the trial where counsel was ineffective including: failing to make and get rulings on objections; poor opening and closing arguments; returning late from a recess and being held in contempt of court by the trial court judge; and exhibiting a general lack of preparation.

The criteria for assessing ineffective assistance of counsel has been set forth by the United States Supreme Court in Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland test focuses on reasonableness, measuring the assistance received against the prevailing norms of the legal profession. Id. at 690, 104 S.Ct. 2052. Counsel is presumed to have rendered adequate assistance, and it is incumbent on the defendant to identify those acts or omissions which do not amount to reasonable professional judgment and are outside the “range of professionally competent assistance.” Id. To show prejudice, the defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. The constitutional right to counsel, whether appointed or retained, does not mean errorless counsel. Castoreno v. State, 932 S.W.2d 597, 604 (Tex.App.-San Antonio 1996, pet. ref d).

We first address counsel’s most glaring and unusual example of ineffective assistance, leaving his client during the pre-trial hearing. In the motion for new trial, trial counsel explained that upon leaving the pre-trial identification hearing it didn’t occur to him to request the removal of his client from the courtroom because he presumed the court would do it. Trial counsel inexcusably disregarded his role in protecting the rights of his client, undermining the fairness of the pretrial proceeding. Judge Eschenburg, during the motion for new trial, offered this attention line, “Well, I have some grave concerns about what happened at the hearing that Magistrate Carruthers presided over ... I think that the defendant didn’t get the best representation that’s possible, but I think it’s close enough that I’m going to let the Fourth Court decide.”

We find that trial counsel was ineffective; however, there must also be a showing of prejudice. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. As explained under point of error number two, trial counsel’s cross-examination of the witness after the identification was preserved by the action of the court. In addition, a witness identified appellant as a shooter in the pre-trial proceeding prior to counsel leaving the proceeding. Thus, counsel fails to demonstrate prejudice.

In the motion for new trial, trial counsel also explained that he failed to object to the State’s use of the demonstrative weapons because of a misrepresentation by the State, and because he felt that after they were shown to the jury the damage was done. His lack of awareness as to whether the State could produce the authenticated weapons demonstrated his lack of appropriate preparation for this case. However, due to the previously explained reasons under point of error number three, there was no showing of prejudice on this error. Nor was there any prejudice shown by appellant’s failure to preserve point , of error number one. We previously found both errors harmless.

Appellant cites several other examples of inadequate representation by trial counsel attributed by appellant to his total lack of preparation, lack of rational thought, and lack of logical presentation of a defense at trial. During trial counsel’s opening argument he inexplicably challenges the prosecution by saying, “I expect that they will only be able to produce one person that said they saw this man do anything. And that person is the co-defendant.” This is despite the fact that at a prior pretrial hearing appellant was identified by two of the victim-witnesses. During punishment he chose not to make an opening statement. When the court inquired if appellant’s trial counsel wanted to make an opening statement, he gave a conflicting response, “Yes, your honor. Under protest, I would like to make a statement. But at this time I would like to call the father of the defendant.” Whereupon he was cut off by the court, because the State had not yet presented its evidence. Appellant also complains that trial counsel failed to get a ruling on a variety of pre-trial motions, and often failed to make appropriate objections or get rulings on the objections he did make.

Although appellant cites several examples of trial counsel’s deficiencies, appellant fails to demonstrate a reasonable probability that but for counsel’s unprofessional errors the result of the trial would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; McFarland v. State, 928 S.W.2d 482, 501 (Tex.Crim.App.1996). In addition, except for trial counsel’s decision to leave the hearing and his decision to not object to the demonstrative weapons, the record provides no discernible explanation of the motivation behind trial counsel’s acts and omissions, whether those actions were of strategic design or the result of negligent conduct. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App.1999). Without a fully developed record, appellant is unable to negate the strong presumption that the conduct of counsel during trial fell within the wide range of reasonable assistance. Id. at 814-815.

Counsel did put the defendant on the stand to present his defense. He cross examined all of the prosecution’s witnesses, engaged in extensive voir dire, and put both of appellant’s parents on the stand during punishment. Finally, after being found guilty of murder, appellant was sentenced to only 60 years for the murder out of a possible 99 years. Therefore, given the exceedingly short leash on our review, appellant failed to affirmatively demonstrate ineffective assistance of counsel.

We affirm the judgment of the trial court.

      . There appears to be an increase in allegations of ineffective assistance of counsel. In response, the court of criminal appeals has tightened the standard of review. See e.g., Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App.1999). In my judgment, this is precisely the wrong response. Intermediate appellate court justices have experience and expertise in evaluating the performance of counsel and are competent to exercise judgment on an issue this subjective. Before appellate review, no participant can stop an obviously ineffective performance by defense counsel. Criminal defendants, usually not part of the most vocal or analytical segments of society, are most often unable to identify ineffectiveness, speak for themselves, and urge a resolution. See Roe v. Flores-Ortega, — U.S. —, —, 120 S.Ct. 1029, 1042-43, 145 L.Ed.2d 985, — (2000) (Souter, J., dissenting). Trial judges are entirely frustrated. Once counsel is appointed or retained, a trial judge generally lacks authority to unilaterally remove counsel. Trial judges have no formal process for clearly identifying and recording incidents of ineffectiveness. Occasionally, a trial judge will remark on the record that counsel’s performance may be deficient. See e.g., Bone v. State, 12 S.W.3d 521 (Tex.App.-San Antonio, 1999, pet. filed)(not designated for publication). Certainly, the opposing advocate can do nothing. Following the trial, even if we as appellate justices believe in good conscience that we have identified an ineffective performance, we are unable to satisfy the standard of review imposed upon us. See, e.g. Mitchell v. State, 974 S.W.2d 161 (Tex.App.-San Antonio 1998), vacated, 989 S.W.2d 747 (Tex.Crim.App.1999) The bar has no effective program to identify, mentor, or eliminate ineffective defense counsel. We all proceed with the fiction that anyone who passes the bar is competent to defend all but capital cases. The result is an institution unable to remedy a problem all recognize as increasing. Our criminal justice system operates on the assumption that both defendant and the State will have able and effective counsel. Unless and until the court of criminal appeals revisits this issue, trial judges and intermediate appellate courts are powerless to ensure that this assumption is justified.


author: MAURICE E. AMIDEI, Justice.

text:
    Elbert Eugene DAGLEY, Jr., et al., Appellant, v. HAAG ENGINEERING CO., Appellee.
    No. 14-98-01053-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 23, 2000.

      Bruce Feichtinger, Houston, for appellants.
    James L. Sowder, Erin L. Williams, Jacquelyn Chandler, Dallas, for appellees.
    Panel consists of Justices MAURICE E. AMIDEI, EDELMAN and WITTIG.
   CORRECTED OPINION

MAURICE E. AMIDEI, Justice.

Appellants appeal the summary judgment granted in favor of Haag Engineering Co. in a suit arising out of the alleged wrongful denial of insurance claims under appellants’ homeowner’s policies for damage purportedly sustained in a hail storm. We affirm.

Background

Appellants are owners of 45 homes, which they claim sustained significant damage as the result of a hail storm. Appellants are also policyholders with State Farm Fire and Casualty Company and State Farm Lloyds (collectively “State Farm”). State Farm either denied appellants’ claims or offered appellants’ less than what they believed was; the actual damage to their homes.

State Farm hired Haag to perform certain engineering services on five homes with regard to the hail storm. Prior to the storm, Haag also had provided State Farm with materials regarding the evaluation of hail storm damage. Those materials generally state that hail stones less than one inch in diameter will not cause damage to composition shingle roofs. Appellants contend that based on Haag’s estimates that the hail stones were ⅛” to ⅜” in diameter, State Farm’s rejection of their claims was “preordained.”

Appellants brought claims against Haag for negligence, conspiracy, tortious interference, and violations of the Texas Deceptive Trade Practices Act (“DTPA”) and the Texas Insurance Code related to wrongful denial of then.- claims. The trial court granted summary on all of appellants’ claims against Haag. ; ..

Standard of Review

To prevail on a motion for summary judgment, the defendant must establish that no material fact issue exists and it is entitled to judgment as a matter of law. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex.1999). Once the defendant establishes that no genuine issue of material fact exists regarding an element of the plaintiffs claim, the plaintiff must present competent summary judgment evidence raising a fact issue on that element. See Guest v. Cochran, 993 S.W.2d 397, 401 (Tex.App.-Houston [14 th Dist.] 1999, no pet.). In conducting this review, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmovant’s favor. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999).

Negligence

Appellants contend the trial court erred in granting summary judgment on their negligence claim against Haag. To prevail on a cause of action for negligence, the plaintiff must satisfy three elements: (1) a legal duty owed by the defendant to the plaintiff; (2) breach of that duty; and (3) damages proximately caused by the breach. See Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998). The threshold issue in a negligence case is whether the defendant owed a duty to the plaintiff. See Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex.1999). Whether the defendant owed a duty to the plaintiff is a question of law for the court to decide from the particular facts of the case. See Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 289 (Tex.1996).

The duty of good faith and fair dealing emanates from the special relationship between an insurer and its insured. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 697-98 (Tex.1994). The special relationship exists because the insured and the insurer are parties to a contract that is the result of unequal bargaining power. See id. at 698. Without such a contract, there is no special relationship. See id. Absent privity of contract with the insured, an insurance carrier’s agents or contractors owe no such duty to the insured. See id.

The Dallas Court of Appeals has extended the rationale of Natividad to negligence claims against parties not in privity of contract with an insured. See Dear v. Scottsdale Ins. Co., 947 S.W.2d 908, 916-17 (Tex.App.-Dallas 1997, writ denied). In Dear, the insured sued the independent adjuster, which the insurance company had hired, for improperly or negligently investigating its claims. See id. at 916. The court found that the independent adjuster, having been hired by the insurer, had no relationship with the plaintiff and, therefore, did not owe the plaintiff a duty. See id. at 917.

The San Antonio Court of Appeals considered similar facts in a case involving both State Farm and Haag. See Muniz v. State Farm Lloyds, 974 S.W.2d 229 (Tex.App.-San Antonio 1998, no pet.). In Mun-iz, the dispute centered on whether damage to the plaintiffs home was covered under the homeowner’s policy. See id. at 231. The original dispute centered on what caused the soil beneath the plaintiffs house to shift. See id. The plaintiffs contended that water leaking from the house’s plumbing caused the clay beneath the foundation to swell, which would be covered by the policy. See id. State Farm claimed the shift was cause by the “inherent vice” of the neighborhood’s soil, which would not be covered by the policy. See id. In support of its position, State Farm cited a report by Haag noting that its investigation showed the plumbing did not cause the shifting. See id.

The Muniz court noted the lack of privity between Haag and the plaintiffs, i.e., that Haag had never worked for the plaintiffs, but was acting as an agent of State Farm in investigating the plaintiffs’ claim. See id. at 235. Relying on reasoning in Dear, the court found the trial court properly granted summary judgment on the plaintiffs’ negligence claim because Haag owed no duty to the plaintiffs. See id. at 236-37.

Here, there is no dispute that State Farm, not appellants, hired Haag to investigate appellants’ storm damage claims. Finding Dear and Muniz persuasive, we conclude that Haag did not owe a duty to appellants in its investigation of their claims or providing evaluation materials to State Farm. Therefore, trial court did not err in granting summary judgment on appellants’ negligence claim.

DTPA

Next, appellants assert the trial court erred in granting summary judgment on their claims that Haag violated the DTPA. The DTPA prohibits “[fjalse, misleading, or deceptive acts or practices in the conduct of any trade or commerce ...” Tex. Bus. & Com.Code Ann. § 17.46(a) (Vernon Supp.2000). To recover under the DTPA, the plaintiff must establish: (1) he was a consumer of the defendant’s goods or services; (2) the defendant committed false, misleading, or deceptive acts in connection with the lease or sale of goods or services; and (3) such acts were a producing cause of actual damages to the plaintiff. See Brown v. Bank of Galveston, N.A, 963 S.W.2d 511, 513 (Tex.1998).

The Texas Supreme Court has found the defendant’s deceptive trade act or practice is not actionable under the DTPA unless it was committed in connection with the plaintiffs transaction in goods and services. See Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 650 (Tex.1996). The “in-eonnection-with” requirement imposes a limitation of liability consistent with the underlying purposes of the DTPA, i.e., to protect consumers in consumer transactions. See id. at 649-50.

The Amstadt case involved DTPA claims by homeowners against manufacturers of, and suppliers of raw material used in the manufacture of, polybutylene plumbing systems. See id. at 650. At issue was whether the Legislature intended that upstream suppliers of raw material and component parts be liable under the DTPA when none of their misrepresentations reached consumers. See id. at 647. The court found the upstream manufacturers and suppliers never directly marketed or promoted their product to the homeowners; therefore, any misrepresentations made with regard to their product were not made with the relevant consumer transactions, i.e., the purchase of the homes. See id. at 650-652. Although one defendant marketed the plumbing system to homebuilders, this fell short of the nexus required for DTPA liability. See id. at 651-52. The court’s analysis applies with equal force to allegations based on misrepresentations and unconscionable acts. See id. at 652.

Although Amstadt concerns defendants who were suppliers and manufacturers, we' find its underlying analysis pertinent to the facts of this case. As in Amstadt, none of Haag’s alleged misrepresentations were directly communicated to appellants. State Farm hired Haag to investigate certain hail storm damage claims. Haag submitted its evaluation materials, findings, and opinions to State Farm, not to appellants.

Moreover, in the absence of a special relationship, Haag cannot be liable under the DTPA for its alleged improper investigation of appellants’ claims. See Dear, 947 S.W.2d at 917 (stating the adjuster could not be liable to the plaintiff “for improper investigation and settlement advice, regardless of whether Dear phrased his allegations as negligence, bad faith, breach of contract, tortious interference, or DTPA claims”). Therefore, we find the trial court did not err in granting summary judgment on appellants’ DTPA claims.

Insurance Code

Appellants contend the trial court erred in granting summary judgment on their claim that Haag violated Article 21.21 of the Texas Insurance Code. The purpose of article 21.21 “is to regulate trade practices in the business of insurance by defining, or providing for the determination of, all such practices in this state which constitute unfair methods of competition or unfair or deceptive acts or practices and by prohibiting the trade practices so defined or determined.” Tex. Ins.Code Ann. art. 21.21, § 1(a) (Vernon Supp.2000). An action under article 21.21 may be maintained against “the person or persons engaging in such acts or practices.” Id. at § 16(a). “Person” is defined as: “any individual, corporation, association, partnership, reciprocal exchange, inter-insurer, Lloyds insurer, fraternal benefit society, and any other legal entity engaged in the business of insurance, including agents, brokers, adjusters and life insurance counselors.” Id. at § 2(a) (emphasis added).

Appellants argue that Haag is an entity “engaged in the business of insurance” because it was involved in the investigation of its claims and because it provided State Farm material on hail storm damage evaluation. In support of this argument, appellants cite to former Article 1.14-1, § 2(a)(6) of the Insurance Code, which provides, among other things, that “[d]irectly or indirectly acting as an agent for or otherwise representing or aiding on behalf of another any person or insurer in the ... investigation ... of claims ...” is an act of the business of insurance in Texas. Act of May 28, 1987, 70 th Leg., R.S., ch. 254, § 1, 1987 Tex. Gen. Laws 1573, repealed by Act of May 17, 1999, 76 th Leg., R.S., ch. 101, § 5, 1999 Tex. Gen. Laws 528 (current version at Tex. Ins.Code Ann. § 101.051(b)(6)(G) (Vernon Supp.2000)) (emphasis added).

The Texas Supreme Court, however, holds that former article 1.14-1 does not govern the scope of the term “business of insurance” as used in article 21.21. See Great Am. Ins. Co. v. North Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 424 (Tex.1995). Therefore, the term “business of insurance” has never been defined under article 21.21. See id. at 420.

State Farm hired Haag to determine the extent of damage, if any, from the storm. Haag did not: (1) participate in the sale or servicing of the policies, (2) make any representations regarding the coverage of the policies, or (3) adjust any claims. As an independent firm hired to provide engineering services, it cannot be said that Haag is engaged in the business of insurance. The trial court did not err in granting summary judgment on appellants’ Insurance Code claims.

No Evidence Summary Judgment Standard of Review

Haag moved for summary judgment on appellants’ tortious interference and conspiracy claims under Texas Rule of Civil Procedure 166a(i). On review of a “no evidence” summary judgment, the appellate court reviews the evidence in the fight most favorable to the nonmovants and disregards all evidence and inferences to the contrary. See Blan v. Ali, 7 S.W.3d 741, 747 (Tex.App.-Houston [14 th Dist.] 1999, no pet.). We sustain a no evidence summary judgment if: (1) there is a complete absence of proof in a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. See id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise of suspicion of a fact. See Isbell v. Ryan, 983 S.W.2d 335, 338 (Tex.App.-Houston [14 th Dist.] 1998, no pet). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. See id.

Tortious Interference

Appellants contend the trial court erred in denying their claim for tortious interference against Haag. The elements of tortious interference are: (1) the existence of a contract subject to interference; (2) the occurrence of an act of interference that was willful and intentional; (3) the act was a proximate cause of the plaintiffs damage; and (4) actual damage or loss occurred. See Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex.1998).

Appellants contend that Haag interfered with their contracts with State Farm by preparing false reports minimizing or denying hail storm damage and preparing materials regarding hail storm damage evaluations in an attempt to justify State Farm’s refusal to pay the full policy benefits due to appellants. Appellants cite the following evidence from which they claim a reasonable inference can be drawn that Haag was aware that State Farm relied on its damage evaluations and materials in denying or minimizing claims: (1) Haag does not dispute that State Farm improperly minimized or denied appellants’ damage claims; (2) Haag and State Farm have a longstanding, financially significant relationship; (3) Haag knew its actions would affect State Farm’s insureds; (4) Haag failed to consider certain factors in its inspection of appellants’ homes; and (5) Haag provided materials that allowed State Farm to conclude, without inspection, that appellants’ roofs had not sustained hail storm damage.

Because a defendant accused of tortious interference rarely admits his guilt, a plaintiff must prove his cause of action with circumstantial evidence. See Meza v. Service Merchandise Co., 951 S.W.2d 149, 152 (Tex.App.-Corpus Christi 1997, pet. denied). Circumstantial evidence may raise a fact issue if, from the evidence, a reasonable person would conclude that the existence of the fact is more reasonable than its nonexistence. See id. The circumstances need only point to ultimate facts sought to be established with such a degree of certainty as to make the conclusion reasonably probable. See id.

The circumstantial evidence produced by appellants is insufficient to raise a fact issue, i.e., that a reasonable person would conclude that Haag’s willful and intentional interference with appellants’ homeowner’s policies with State Farm is more reasonable than Haag’s not interfering with their policies. Whether Haag’s failure to deny appellants’ allegations that State Farm improperly denied their claims is irrelevant; it is not necessary for Haag make this denial in defense of appellants’ claim against it. Likewise, Haag knowing that its opinions and material regarding hail storm damage could affect claimants does not raise a fact issue. Because Haag was hired to perform engineering services in the evaluation of damage claims and to submit its findings to State Farm, it could reasonably assume that State Farm would rely on those findings. Finally, evidence demonstrating an extended business relationship between two entities is not sufficient to create a fact issue on the element of intent.

Moreover, absent a special relationship, Haag cannot be held liable for tortious interference. See Dear, 947 S.W.2d at 917 (stating the adjuster could not be liable to the plaintiff “for improper investigation and settlement advice, regardless of whether Dear phrased his allegations as negligence, bad faith, breach of contract, tortious interference, or DTPA claims”). Appellants have failed to raise a fact issue with respect to the willful and intentional interference element of their claim for tor-tious interference.

Appellants also complain of the affidavits of a State. Farm claims adjuster and a Haag engineer submitted in support of Haag’s motion for summary judgment because they are from interested witnesses and cannot be readily controverted because they go to the element of intent. Haag, however, moved for summary judgment on appellants’ tortious interference claim under the no evidence summary judgment rule. Rule 166a(i) does not require us to review the affidavits submitted in support of Haag’s no evidence motion for summary judgment. Accordingly, we find the trial court did not eiT in granting summary judgment on appellants’ claim for tortious interference.

Civil Conspiracy

Appellants claim the trial judge erred in granting summary judgment on its conspiracy claims against Haag. Civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose by unlawful means. See Operation Rescue-Nat’l v. Planned Parenthood of Houston & S.E. Tex., Inc., 975 S.W.2d 546, 553 (Tex.1998). The elements of conspiracy are: (1) two or more persons, (2) an object to be accomplished, (3) a meeting of minds on the object or course of action, (4) one or more unlawful, overt acts, and (5) damages. See id.

In their first amended petition, appellants allege that State Farm and Haag conspired in the investigation of their claims in an effort “to deny Plaintiffs’ the Policy benefits rightfully due Plaintiffs.” “The mere agreement to resist a claim, however, is not an actionable civil conspiracy.” Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983). For liability to attach, there must be an unlawful, overt act in furtherance of the conspiracy. See id. We cannot conclude that submitting a report to State Farm with a conclusion that there was no hail storm damage to appellants’ homes is an unlawful, overt act to support a conspiracy. Moreover, having found that Haag is not hable to appellants on their other claims, Haag cannot be liable for conspiracy. Therefore, trial court did not err in granting summary judgment on appellants’ conspiracy claim.

Time for Discovery

In their response to Haag’s no evidence motion for summary judgment, appellants objected that the motion was “premature” because adequate discovery had not been conducted and attached an affidavit from trial counsel. Having considered the substantive law, however, we do not find that the trial court abused its discretion. With respect to their claim for tortious interference, appellants rely on inferences, which if carried to their full conclusion, are insufficient to establish a fact issue as to whether Haag willfully and intentionally interfered with appellants’ homeowner’s policies with State Farm. Appellants’ conspiracy claim rests on the allegation that Haag and State Farm conspired to deny their insurance claims, which is not sufficient to establish an unlawful, overt act in furtherance of a conspiracy. See Massey, 652 S.W.2d at 934.

Conclusion

In sum, we find the trial court did not err in entering summary judgment in favor of Haag on all of appellants’ claims. Accordingly, the judgment of the trial court is affirmed.

      . Specifically, State Farm asked Haag: (1) to inspect two homes and provide State Farm with an engineering evaluation on those homes; (2) to evaluate one home as an appraiser; and (3) to participate in arbitration proceedings concerning two other homes.

      . The trial court initially granted summary judgment on appellants’ DTPA and Insurance Code claims. After Haag filed a supplemental motion for summary judgment, the trial court granted summary judgment on the negligence, tortious interference, and conspiracy claims, and entered an order severing appellant’s claims against Haag from their remaining claims against State Farm.

      . Finding that the defendant was an independent adjuster, retained and paid by the insurer, which had never entered into a contract with the insured, and had performed its work solely in its role as an independent adjusting firm, the court determined it was an agent or independent contractor of the insurance company. See Dear, 947 S.W.2d at 917.

      . The Muniz court also noted other precedent “unfriendly” to the plaintiff's claims. See id. at 235-36 (citing Bui v. St. Paul Mercury Ins. Co., 981 F.2d 209, 210 (5 th Cir.1993) (holding dismissal of claim of negligent investigation against an independent adjuster was proper under Texas law because the adjuster was not a party to the insurance contract and did not owe a duty to the insured); Hartman v. Urban, 946 S.W.2d 546, 550 (Tex.App.-Corpus Christi 1997, no writ) (holding that an engineering company hired by a developer is not ultimately liable to the party who bought the platted piece for negligence for an inaccurate plat on the basis of lack of privity)).

      .Appellants’ DTPA claims are based on Haag’s allegedly engaging in an unconscionable action or course of action, representing that its services were of a particular standard when they were of another, representing that its services have characteristics and/or benefits which they do not have, and representing that an agreement confers or involves rights, remedies, or obligations which it did not have.

      . The court noted that the purpose of former article 1.14-1, which is titled “Unauthorized Insurance,” is " 'to subject certain persons and insurers to the jurisdiction of the State Board of Insurance, of proceedings before the Board, and of the courts of this state in suits by or on behalf of the state and insureds or beneficiaries under insurance contracts.’ ” Great Am. Ins. Co., 908 S.W.2d at 422-23 (quoting former art. 1.14-1). "[Tjhe Legislature provides for substituted service of process on unauthorized insurers, and ‘in doing so exercises its power to protect residents of this state and to define what constitutes doing an insurance business in this state.’ ” Id. at 423 (quoting former art. 1.14-1). Nowhere in the “purpose” clause of former art. 1.14-1 did the Legislature suggest that the list of acts which constitute "doing an insurance business” is applicable throughout the Insurance Code. See id.

      . Appellants allege that from 1989 through 1996, Haag received $11,000,000 from State Farm.

      . Even if we were to consider these affidavits, we find they could properly serve as a basis for Haag's summary judgment. We recognize that issues of intent and knowledge are not susceptible of being readily controverted and are generally inappropriate for summary judgment. See Frias v. Atlantic Richfield Co., 999 S.W.2d 97, 106 (Tex.App.-Houston [14 th Dist.] 1999, pet. filed); RRR Farms, Ltd. v. American Horse Protection Ass'n, 957 S.W.2d 121, 132 (Tex.App.-Houston [14 th Dist.] 1997, pet. denied) (finding that affidavit, which stated that defendant “never acted with the intent to prohibit the plaintiffs from entering into any contract or business relationship” did not meet standard for readily controverted). While these affidavits are from interested witnesses, they, nonetheless, are susceptible of being readily controverted. Each affidavit is based on objective facts and in no way makes any assertions of Haag's or State Farm's intent with respect to the outcome of the evaluation of the hail storm damage or the investigation of appellants’ claims.

      . By granting Haag’s motion for summary judgment, the trial court implicitly overruled appellant’s objection. See Tex. R. App. P. 33.1(a)(2)(A).


author: MARILYN ABOUSSIE, Chief Justice.

text:
    Adrian FLORES, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 03-99-00368-CR to 03-99-00372-CR.
    Court of Appeals of Texas, Austin.
    March 30, 2000.

      Richard D. Woods, San Antonio, for Appellant.
    Daniel Thornberry, Asst. Grim. Dist. Atty., San Antonio, for Appellee.
    Before Chief Justice ABOUSSIE, Justices KIDD and B.A. SMITH.
   MARILYN ABOUSSIE, Chief Justice.

On September 29, 1998, appellant Adrian Flores, Jr. pleaded guilty to felony weapon possession (cause 03-99-00370), possession with intent to deliver cocaine (cause 03-99-00371), and possession with intent to deliver methamphetamine (cause 03-99-00372). See Tex. Penal Code Ann. § 46.04 (West 1994); Tex. Health & Safety Code Ann. § 481.112 (West Supp.2000). He entered his guilty plea pursuant to an agreement with the State that recommended limiting his range of punishment to fifteen years, waived repeat offender paragraphs for the two drug charges, recommended that appellant’s sentences run concurrently, and noted that the State opposed community supervision and deferred adjudication. On March 11, 1999, appellant pleaded true to the State’s motions to revoke his probation for prior convictions for possession of cocaine (cause 03-99-00368) and methamphetamine (cause 03-99-00369). See Tex. Health & Safety Code Ann. § 481.115 (West Supp.2000). The district court found appellant guilty and sentenced him to twelve years’ confinement in each of the three new causes; the court revoked his probation and sentenced him to confinement for ten years in cause 03-99-00369 and five years in cause 03-99-00368. The district court ordered appellant’s five sentences to run concurrently.

Appellant claims that the district court erred in not holding a hearing on his motion for new trial and that his guilty pleas were involuntary due to ineffective assistance of counsel. We will affirm the district court’s judgments.

Did the district court err in not holding an evidentiary hearing?

We review a trial court’s refusal to hold an evidentiary hearing on a motion for new trial for an abuse of discretion. See Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App.1993). A trial court abuses its discretion in denying a hearing on a timely filed motion for new trial if the motion raises a matter outside the record upon which relief could be granted, such as the voluntariness of a guilty plea. See Reyes, 849 S.W.2d at 816; Alvarez v. State, 995 S.W.2d 185, 187 (Tex.App.—San Antonio 1999, pet. ref d). While not statutorily required, if the motion alleges facts outside the record, it must be supported by the affidavit of someone with knowledge of the facts. See Reyes, 849 S.W.2d at 816; Mallet v. State, 9 S.W.3d 856, 865 (Tex.App.—Fort Worth 2000, no pet. h.); Oestrick v. State, 939 S.W.2d 232, 236 (Tex.App.—Austin 1997, pet. refd).

A defendant may file a motion for new trial within thirty days of the date the trial court imposes or suspends sentence. See Tex.R.App. P. 21.4(a). Once a motion for new trial is filed, the defendant has ten days to present it to the trial court, unless the trial court allows it to be presented and heard within seventy-five days from the date sentence is imposed or suspended. See Tex.R.App. P. 21.6. The trial court must rule on the motion within seventy-five days of sentencing, or the motion is deemed overruled by operation of law. See Tex.R.App. P. 21.8.

A defendant may amend his motion for new trial before it is acted upon, as long as it is amended within thirty days of the sentencing date. See Tex.R.App. P. 21.4(b); Dugard v. State, 688 S.W.2d 524, 530 (Tex.Crim.App.1985), overruled on other grounds, Williams v. State, 780 S.W.2d 802, 803 (Tex.Crim.App.1989). Filing affidavits in support of a motion for new trial more than thirty days after sentencing is considered an untimely attempt to amend the motion. See Dugard, 688 S.W.2d at 529-30; Mallet, 9 S.W.3d at 865. A motion for new trial alleging facts outside the record filed without supporting affidavits is not a proper pleading and is fatally defective; a trial court does not err in refusing to grant a hearing on such a motion. See Dugard, 688 S.W.2d at 530.

The district court sentenced appellant on March 11, 1999. Appellant timely filed his motion for new trial on April 6, but the motion was unsupported by affidavit or other evidence. Appellant filed his affidavit in support of his motion on May 3, fifty-three days after the sentences were imposed, beyond both the thirty days to file or amend the- motion and the ten days to present the motion. See Tex.R.App. P. 21.4, 21.6; Mallet, 9 S.W.3d at 865. Appellant’s affidavit was not properly before the trial court; we therefore review his issues on appeal without the benefit of appellant’s affidavit. See Mallet, 9 S.W.3d at 865.

A defendant’s right to an evidentiary hearing on a motion for new trial is not an absolute right, and we will not reverse a court’s decision to deny a hearing absent a clear abuse of discretion. See Reyes, 849 S.W.2d at 815-16; Mallet, 9 S.W.3d at 867-68. It is not an abuse of discretion to refuse to hold a hearing on a motion for new trial that is not properly supported by affidavit evidence showing reasonable grounds entitling the defendant to a new trial. See Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App.1994); Mallet, 9 S.W.3d at 868.

Appellant’s motion does not set forth grounds showing he was entitled to relief. See Jordan, 883 S.W.2d at 665; Dugard, 688 S.W.2d at 530; Mallet, 9 S.W.3d at 868. Appellant’s entire motion complains as follows:

Through representations made by [appellant’s] trial counsel, mitigating evidence relevant to the Court’s assessment of [appellant’s] punishment was not presented. Based upon certain representations made by [appellant’s] trial counsel, [appellant] was induced not to put on such evidence. Counsel’s representations afforded no effective trial strategy and resulted in trial counsel’s representation of him being ineffective. But for counsel’s ineffective assistance, [appellant] would have put on a meaningful case of mitigation during the punishment phase which could have affected the outcome of the sentence received.

Appellant’s motion does not allege any specific misrepresentations by counsel or that his guilty pleas were involuntarily given. The only specific complaint he raises concerns his attorneys’ decision not to present evidence at the punishment hearing. Appellant’s motion makes conclusory statements that he received ineffective assistance but does not raise matters outside the record upon which relief can be granted. See Reyes, 849 S.W.2d at 816. The district court did not err in failing to hold a hearing on appellant’s motion.

Even considering appellant’s untimely filed affidavit, the district court initially set a hearing on appellant’s motion for June 14, ninety-five days after the court imposed sentence and well beyond the seventy-five days required by the rules. See Tex.R.App. P. 21.8. It was appellant’s burden to present his motion and request a timely hearing date. See Oestrick, 939 S.W.2d at 235.

The district court did not err in failing to hold a hearing on appellant’s motion for new trial. We overrule appellant’s first issue on appeal.

Did appellant receive ineffective assistance of counsel?

Appellant claims his guilty pleas were involuntary because trial counsel misrepresented appellant’s eligibility for probation. He claims those misrepresentations deprived him of the opportunity to present evidence of his good character and qualifications for probation. Appellant states that, but for the deficient representation, he would not have pleaded guilty and instead would have requested a jury trial.

When a defendant challenges the voluntariness of a guilty plea on the basis of ineffective assistance of counsel, the voluntariness of his plea depends on (1) whether counsel’s advice was within the range of competence demanded and, if not, (2) whether there is a reasonable probability that, but for the ineffective assistance, the defendant would not have pled guilty and would have insisted on going to trial. See In re Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App.1999). In reviewing counsel’s performance, we indulge a strong presumption that he acted within the wide range of reasonable professional assistance. See McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App.1992); Oestrick, 939 S.W.2d at 237. The defendant bears the burden of showing that his counsel’s performance was deficient and that it is reasonably probable that he would have insisted on a trial had he been properly advised. See Moody, 991 S.W.2d at 858.

When the record is silent as to possible trial strategies undertaken by defense counsel, we will not speculate on why counsel acted as he did. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994); Gravis v. State, 982 S.W.2d 933, 937-38 (Tex.App.—Austin 1998, pet. refd); Mayhue v. State, 969 S.W.2d 503, 511 (Tex.App.—Austin 1998, no pet.). There is no evidence in this record, other than appellant’s late-filed and self-serving affidavit, to support his claims that his counsel was ineffective and that his guilty pleas were involuntarily made. See Enard v. State, 764 S.W.2d 574, 576 (Tex.App.—Houston [14th Dist.] 1989, no pet.). Without proof that shows both ineffective assistance and a reasonable probability that appellant would have insisted on a trial, he cannot overcome the strong presumption of effective assistance of counsel. See Mayhue, 969 S.W.2d at 511.

A defendant does not receive ineffective assistance of counsel simply because trial counsel advises the defendant to plead guilty under an expectation that the court will probate the sentence or impose a lighter sentence than is received. See Graves v. State, 803 S.W.2d 342, 345 (Tex.App.—Houston [14th Dist.] 1990, pet. refd); Medford v. State, 766 S.W.2d 398, 401 (Tex.App.—Austin 1989, no pet.). A defendant’s reliance on his attorney’s professional opinion does not render a guilty plea involuntary. See Medford, 766 S.W.2d at 401.

Appellant was orally admonished of the range of punishment before entering his guilty pleas and pleas of true. He was further advised by the district court that the State (1) recommended a cap of fifteen years punishment in each cause, (2) recommended that appellant’s sentences in all five causes should run concurrently, and (3) opposed probation. The written guilty plea appellant signed set out the same terms. Although the State opposed probation, appellant was still eligible to receive probation, and during the sentencing hearing, his attorney argued that he should receive probation. The district court opted not to grant probation, stating, “not many other lawyers would have been able to argue as eloquently as [appellant’s attorney at the sentencing hearing] did. And you got a great deal ... and it’s — the fact that I came off of that speaks very highly of his eloquence. I just hope you understand that. I wish there were another alternative, but based on what I saw on the PSI and based on your history, I just can’t do it.”

The record does not indicate that before appellant entered his guilty pleas, he was promised he would receive probation. See Moody, 991 S.W.2d at 858 (ineffective assistance when defendant misinformed regarding concurrence of federal and state sentences; distinguished from “a case in which a defendant relies on erroneous parole eligibility information, which is speculative by nature”); Rodriguez v. State, 933 S.W.2d 702, 707 (Tex.App.—San Antonio 1996, pet. refd) (no evidence in record of assurances or promises by attorney concerning community supervision, only that “[defendant’s] attorney said community supervision was a possibility.”). As in Rodriguez, when appellant entered his guilty pleas, he was eligible for judge-ordered probation. See Tex.Code Crim. Proc. Ann. art. 42.12 §§ 3, 3g, 5,12 (West Supp.2000). The trial court reviewed the evidence and decided against probation. Appellant did not receive ineffective assistance simply because he relied on his attorneys’ professional opinions and unsuccessful trial strategy. See Medford, 766 S.W.2d at 401. Appellant has not established that his guilty pleas were involuntary. We over-rale appellant’s second issue on appeal.

Conclusion

The district court did not err in failing to hold a hearing on appellant’s motion for new trial, nor did appellant receive ineffective assistance of counsel that led him to enter involuntary guilty pleas. We affirm the district court’s judgments.

      . Appellant makes the same arguments for his probation revocations as he does regarding his three new convictions. We will examine appellant’s pleas of "true” to the allegations in the State’s motions to revoke probation under the same analysis as for his guilty pleas in the other three causes.

      . Even if we consider appellant's affidavit as evidence of ineffective assistance, his argument fails. Appellant's affidavit states his first attorney, who represented him when he entered his guilty pleas, said appellant's "chances were very good" to get probation, and his second attorney, who represented him at the punishment hearing, "assured” him that he would get shock probation and that there was no need to put on evidence of his good character. Appellant does not argue in his affidavit that his guilty pleas were involuntary due to misrepresentations regarding probation. He states he was surprised to learn that he was ineligible for probation; but he was eligible for probation when he entered his pleas. Reading the affidavit in the light most generous to appellant’s argument, he argues he was "assured” of probation by the attorney who represented him at the punishment hearing; however, that was after he had already entered his guilty pleas.


author: ANN CRAWFORD McCLURE, Justice.

text:
    Benjamin Franklin McGUIRE, Appellant, v. Giovanna Dionne McGUIRE, Appellee.
    No. 08-99-00343-CV.
    Court of Appeals of Texas, El Paso.
    March 30, 2000.

      Larry Zinn, San Antonio, Marc R. May, Attorney at Law, Odessa, for Appellant.
    Rhett Hoestenbach, John Hoestenbach, Odessa, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This case presents a classic example of the deficiencies of the Uniform Child Custody Jurisdiction Act (UCCJA) that gave rise to the recent adoption by the Texas Legislature of the Uniform Child Custody Jurisdiction and Enforcement Act (UC-CJEA). The district court entered a default judgment modifying a joint managing conservatorship. Because the uncontro-verted evidence establishes that the child and his primary managing conservator had established a new home state under the former UCCJA, we reverse and render.

SUMMARY OF THE EVIDENCE

Ben and Giovanna McGuire were divorced in Ector County in 1996 and named joint managing conservators of their four-year-old son, Spencer. The divorce decree granted Ben primary custody with the exclusive right to establish Spencer’s legal residence and domicile. Giovanna was granted possession at all times as the parties may mutually agree, and failing that, pursuant to a standard possession order incorporated in the decree. In December 1996, Ben and Spencer moved to Illinois. In August 1998, Giovanna began to have difficulty with Ben concerning her visitation with Spencer. The problems continued for several months and escalated to the point that Giovanna sought a modification in Texas while Ben filed suit in Illinois. Giovanna’s motion sought to modify the decree to include provisions to facilitate Spencer’s visitation with his mother via air travel. Ben’s suit requested an increase in child support, a modification of visitation, and the requirement of supervised visitation in Kane County, Illinois. Giovanna responded to the Illinois suit and filed a motion requesting a judicial conference pursuant to the UCCJA and a motion to dismiss for want of jurisdiction.

Giovanna tried several times to serve Ben with process, albeit unsuccessfully. In her third amended petition, she requested that the court authorize substituted service, revoke the joint managing con-servatorship, and appoint her as sole managing conservator. Substituted service was eventually effectuated on June 9, 1999 by leaving a copy of the citation and petition attached to the door of Ben’s residence. Ben admittedly found the citation and petition, looked them over, and put them away. He did not respond to the Texas lawsuit because he believed that everything should be filed in Illinois.

On June 27, 1999, Giovanna’s father drove to Illinois, picked up Spencer, and brought him back to Odessa for summer visitation with his mother. On July 6, 1999, the trial court entered a default judgment against Ben. Finding that it had continuing jurisdiction over the case, the trial court revoked the joint managing con-servatorship, appointed Giovanna sole managing conservator, and appointed Ben possessory conservator with visitation pursuant to a standard possession order. Ben filed a motion for new trial on August 4, 1999. Following an evidentiary hearing, the motion was overruled on September 1, 1999. This appeal follows.

SUBJECT MATTER JURISDICTION

The first of three appellate issues presented is whether the trial court lacked subject matter jurisdiction to modify custody. Because it is dispositive of our decision, we need not address the remainder.

Elements of Jurisdiction

Generally, there are three jurisdictional elements: (1) jurisdiction over the subject matter; (2) jurisdiction over the person or res; and (3) power to render the particular relief awarded. City of El Paso v. Madero Development, 803 S.W.2d 396, 399 (Tex.App.—El Paso 1991, writ denied), cert. denied, 502 U.S. 1073, 112 S.Ct. 970, 117 L.Ed.2d 135 (1992). Subject matter jurisdiction exists when the nature of the case falls within a general category of cases the court is empowered, under applicable statutory and constitutional provisions, to adjudicate. Bullock v. Briggs, 623 S.W.2d 508 (Tex.App.—Austin 1981, writ refd n.r.e.), cert. denied, 457 U.S. 1135, 102 S.Ct. 2962, 73 L.Ed.2d 1352 (1982). It is essential to the authority of a court to decide a case. Texas Ass’n of Business v. Texas Air Control Board, 852 S.W.2d 440, 443 (Tex.1993). Lack of subject matter jurisdiction will arrest a cause at any stage of the proceedings. Madero Development, 803 S.W.2d at 400. Because the question of subject matter jurisdiction is a legal question, we review the trial court’s ruling under a de novo standard. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

Waiver

Subject matter jurisdiction is never presumed and cannot be waived. Texas Ass’n of Business, 852 S.W.2d at 443-44; Gonzalez v. Sanchez, 927 S.W.2d 218, 221 (Tex.App.—El Paso 1996, no writ); Abderholden v. Morizot, 856 S.W.2d 829, 832 (Tex.App.—Austin 1993, no writ); Madero Development, 803 S.W.2d at 400; Armstrong v. West Texas Rig Company, 339 S.W.2d 69, 71 (Tex.Civ.App.—El Paso 1960, writ refd n.r.e.). Despite these well settled principles, Giovanna contends that Ben waived his jurisdictional complaint when he filed his motion for new trial. This argument confuses personal jurisdiction with subject matter jurisdiction. See CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996)(explaining personal jurisdiction). Personal jurisdiction can certainly be waived when it is not properly contested. See Tex.R.Civ.P. 120a; Texas Ass’n of Business, 852 S.W.2d at 444 n. 5. By failing to file a special appearance, Ben has waived the issue of personal jurisdiction. See Liberty Enterprises, Inc. v. Moore Transportation Company, Inc., 690 S.W.2d 570, 571-72 (Tex.1985)(any effort by nonresident to invoke judicial powers of Texas court in an attempt to set aside a default judgment constitutes a general appearance); Bruneio v. Bruneio, 890 S.W.2d 150, 154 (Tex.App.—Corpus Christi 1994, no writ)(holding that failure to follow special appearance procedure waives the issue of personal jurisdiction). However, the issue of subject matter jurisdiction cannot be waived and, thus, Ben may raise it for the first time on appeal. Texas Ass’n of Business, 852 S.W.2d at 443-444; Gonzalez, 927 S.W.2d at 221; Abderholden, 856 S.W.2d at 832; Madero Development, 803 S.W.2d at 400; Armstrong, 339 S.W.2d at 71.

The UCCJA Applies

Texas enacted the UCCJA in 1983. The clear purpose of the Act is to discourage and eliminate child snatching, to avoid jurisdictional competition, to avoid continued relitigation of custody decisions, and to promote cooperation between the states to ensure that a custody decision is rendered in the state that can better determine the best interest of the child. Tex.Fam.Code Ann. § 152.001 (Vernon 1996). Jurisdiction to enter a child custody determination arises from one of four sources:

• Texas is the home state of the child as of the date suit is commenced or had been the child’s home state within six months of filing, the child was removed by a person claiming custody and a parent or person acting as a parent continues to live in Texas.
• It appears that no other state would have home state jurisdiction and it is in the best interest of the child that Texas assume jurisdiction because the child and at least one contestant have a significant connection with Texas other than mere physical presence, and there is available substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.
• The child is present in Texas and has been abandoned or it is necessary to protect the child in an emergency because the child has been subjected to or threatened with abuse or is otherwise neglected or there is a serious and immediate question concerning the welfare of the child.
• It is in the best interest of the child that Texas assume jurisdiction and it appears that no other state would have jurisdiction under the first three prongs or another state has declined to exercise jurisdiction on the ground that Texas is the more appropriate forum.

Further, “[e]xcept on written agreement of all the parties, a court may not exercise its continuing jurisdiction to modify custody if the child and the party with custody have established another home state unless the action to modify was filed before the new home state was acquired.” [Emphasis added.] Tex.Fam. Code Ann. § 152.003(d). Perhaps not surprisingly, litigation has arisen concerning the highlighted word “custody” and what it encompasses. To answer this question, two definitional distinctions are appropriate. The phrase “custody determination” as used in the hierarchy of jurisdiction is defined as a court decision providing for the custody of a child, including visitation rights. Tex.Fam.Code Ann. § 152.002(3). “Custody,” however, is defined as managing conservatorship of a child. Tex.Fam. Code Ann. § 152.002(2). Thus, for purposes of the ability of a trial court to exercise its continuing jurisdiction to modify a prior order, custody and visitation are treated differently.

The Texas version of the UCCJA differs significantly from the Uniform Act. The statute enacted in the majority of states does not prioritize “home state” jurisdiction over the “significant connection” test. One commentary has noted that:

Because these two provisions are of equal rank under the UCCJA, the priority to decide the issue of custody between two states with concurrent jurisdiction is determined by the first filing. Unfortunately the uniform act does not conform to the preemptive federal act on the subject — the Parental Kidnapping Prevention Act of 1980 (PKPA) 28 U.S.C.A. § 1738A, which accords ‘home state’ priority for full faith and credit recognition. The Texas version of the UCCJA conforms to the PKPA; the home state is preferred and is superior to a ‘significant connection’ state. Only if a home state does not exist or declines jurisdiction will the significant connection ground prevail.
Subsection (d) is the second major Texas variation on the uniform text. It establishes a restriction on the exercise of jurisdiction to modify custody (managing conservatorship) after a child has acquired a new home state. Although the Texas court that rendered the original SAPCR order is restrained from modifying managing conservatorship, it retains continuing jurisdiction over the terms of possessory conservatorship (and over the child support order) so long as one contestant remains in Texas....

Sampson & Tindall, Texas Family Code Annotated § 152.003 (1998).

Over the years, the “inconsistency of interpretation of the UCCJA and the technicalities of applying the PKPA, resulted in a loss of uniformity among the States.” Sampson & Tindall, Texas Family Code Annotated § 152.001, Introductory Comment, p. 410 (1999). As a result, the National Conference of Commissioners on Uniform State Law adopted the UCCJEA in 1997. Effective September 1, 1999, the Texas Legislature adopted the UCCJEA, thereby replacing the UCCJA. The new act applies to any suit affecting the parent-child relationship, including modifications, filed on or after September 1, 1999. See Act of May 6, 1999, 76th Leg., R.S., ch. 34, 1999 Tex.Sess.Law Serv. 1 (Vemon)(to be codified as Tex.Fam.Code Ann. Ch. 152). Suits pending as of September 1,1999 are governed by the former law. Id. The trial court below granted relief on Giovanna’s third amended petition, which was filed on April 27, 1999. Because this request for relief was made before the effective date of the UCCJEA, the UCCJA applies. See In re Alley, 1 S.W.3d 268, 271 (Tex.App.—Texarkana 1999, no pet.)(stating general rule that jurisdiction attaches at the time the proceeding is filed).

Before beginning our analysis of the matter before us, we join Sampson & Tin-dall in their caution that “[c]ase law under the former Texas version of the Uniform Child Custody Jurisdiction Act regarding continuing jurisdiction will have little, if any, precedent value under the new act.” Sampson & Tindall, Texas Family Code Annotated § 152.001, Introductory Comment, p. 408 (1999). Consequently, the result reached in this case should in no way be interpreted as the result which would arise from applying the UCCJEA in the event of future litigation concerning Spencer.

Continuing, Exclusive Jurisdiction

We have already outlined the statutory framework which governs our decision. In order for the trial court to exercise its continuing, exclusive jurisdiction under the UCCJA, Texas must have been Spencer’s home state at the time suit was filed, the modification must have been filed before Spencer obtained a new home state, or the parties must have agreed in writing to the exercise of the trial court’s jurisdiction. See Tex.Fam.Code Ann. § 152.003(d); Phillips v. Beaber, 995 S.W.2d 655, 661 (Tex.1999).

Turning now to the record, the uncontroverted evidence reveals that Spencer moved to Illinois, in December 1996 and resided there with Ben until June 1999 when he was brought to Texas by his grandfather. Illinois was Spencer’s home state at the time Giovanna filed her motion to modify. The record does not indicate that the parties signed a written agreement of the parties pursuant to § 152.003(d). We therefore conclude that the trial court lacked the authority to exercise its continuing jurisdiction. See Tex. Fam.Code Ann. § 155.003(b)(Vernon 1996) and Tex.Fam.Code Ann. § 152.003(d); Beaber, 995 S.W.2d at 659; Coots, 959 S.W.2d at 302-03.

Jurisdiction Declined by Illinois

Giovanna counters that the trial court had jurisdiction pursuant to § 152.003(a)(4)(B), because the Illinois court declined to exercise jurisdiction. The Illinois court tried on several occasions to contact the Texas court concerning Spencer, but the Texas court did not respond. The record does not reveal the reason the trial court failed to communicate with the Illinois court, and it is particularly troublesome given that the affidavit filed by Giovanna in support of her modification acknowledged that there was a simultaneous proceeding pending in Illinois- After receiving news that the Texas court had entered an order modifying custody, the Illinois court declined to exercise jurisdiction over the case. Section 152.003(a)(4)(B) provides that a court has jurisdiction to modify a custody determination if “it is in the best interest of the child ... and ... another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child.” Tex. Fam.Code Ann. § 152.003(a)(4)(B).

We conclude that § 152.003(d), not § 152.003(a)(4)(B), controls. First, § 152.003(d) specifically prohibits a trial court from exercising its continuing jurisdiction to modify custody when the child establishes a new home state. See Beaber, 995 S.W.2d at 658-59 (noting that the Legislature intentionally departed from the model UCCJA by enacting § 152.003(d)). Second, and more importantly, the Illinois court did not decline jurisdiction because Texas would be a more appropriate forum to determine custody. It declined jurisdiction because the Texas court had already issued a custody determination, an outcome the Illinois court intended to prevent or forestall by virtue of its attempts at communication. Finally, as a matter of policy, we cannot sanction the “bootstrapping” of jurisdiction onto a court which fails in its duty to communicate with a sister state.

We conclude that the trial court lacked subject matter jurisdiction to modify the joint managing conservatorship. Accordingly, Ben’s first issue is sustained, the trial court’s order is vacated, and Giovanna’s suit to modify custody is dismissed for want of jurisdiction. We deny Ben’s parenthetical request that we order Spencer returned to him, as that relief is appropriately addressed in a writ of habeas corpus proceeding.

      . Giovanna filed her petition in Texas on December 3, 1998; however the petition did not request service on Ben. Ben filed his petition in Illinois on December 4, 1998, and Giovan-na was served on December 9.

        . We apply a different standard, however, upon review of a trial court's refusal to exercise jurisdiction in a suit, affecting the parent-child relationship. For example, where a trial court declines to exercise jurisdiction on the basis of forum non conveniens, we apply an abuse of discretion standard. Coots v. Leonard, 959 S.W.2d 299, 301 (Tex.App.—El Paso 1997, no pet.).

      . We pause to note that one of the specific purposes of the UCCJA was to “promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child." See Tex.Fam. Code Ann. § 152.001(a)(8). Indeed, the Family Code requires that before conducting a hearing, the Texas court "shall examine the pleadings and other information supplied by the parties ... and shall consult the child custody registry ... concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state, it shall direct an inquiry to the state court administrator or other appropriate official of the other state.” Tex.Fam.Code Ann. § 152.006(b). The pleadings and supporting affidavit here provided the necessary information to trigger the duty to contact the Illinois court.