author: DIXON W. HOLMAN, Justice.

text:
    Brandon Keith SHAFFER, Appellant, v. The STATE of Texas, State.
    No. 2-04-483-CR.
    Court of Appeals of Texas, Fort Worth.
    Jan. 19, 2006.

      James Rasmussen, Wichita Falls, for appellant.
    Barry L. Macha, Crim. Dist. Atty., John W. Brasher and Dobie Kosub, Asst. Crim. Dist. Attys., Wichita Falls, for appellee.
    PANEL A: HOLMAN, GARDNER, and McCOY, JJ.
   OPINION ON REHEARING

DIXON W. HOLMAN, Justice.

After reconsidering our prior opinion on Appellant’s motion for rehearing, we deny the motion, but withdraw our opinion and judgment dated November 23, 2005, and substitute the following.

Appellant Brandon Keith Shaffer appeals his conviction for possession of certain chemicals, namely pseudoephedrine, with intent to manufacture a controlled substance, namely methamphetamine. After the jury convicted Appellant, he pled true to the enhancement paragraphs that alleged previous convictions for burglary of a building and burglary of a vehicle, and the jury assessed a sentence of fifty years’ confinement and a $10,000 fine. The trial court sentenced Appellant accordingly. In his three points, Appellant contends that the evidence was legally and factually insufficient to sustain a conviction for the offense of possession of pseu-doephedrine with the intent to manufacture methamphetamine, the trial judge abused his discretion in admitting, over objection, hearsay evidence that the labeling on the packages could serve as proof of the contents of the package, and Texas Health and Safety Code Section 481.124(a)(2) is unconstitutional. We affirm.

FACTUAL BACKGROUND

On November 21, 2003, Wichita Falls Police Officer Joe Lemond stopped Appellant’s vehicle for speeding. Officer Le-mond radioed for a records check of Appellant and also requested that a dog handler respond to the scene. Sergeant Joe Snyder arrived at the scene with a dog certified in narcotic detection and began walking the dog around the vehicle. The dog indicated that he detected something inside the vehicle. A search of the inside of the vehicle revealed a partially smoked marihuana cigarette and a bag containing six cans of lighter fluid, eight lithium batteries, and twenty-four bottles of cold medicine containing pseudoephed-rine. After finding these items, the officers arrested Appellant, and the grand jury returned an indictment charging him with possession of pseudoephedrine with the intent to manufacture methamphetamine.

The State alleged that Appellant possessed the chemical precursor pseu-doephedrine, which was marked as an ingredient on the twenty-four bottles of “Max Brand” cold medicine seized from Appellant’s vehicle. At trial, the State offered the two boxes which contained twelve sealed bottles of “Max Brand” cold medicine tablets. The labeling on the bottles identified the cold medicine as containing pseudoephedrine, sixty milligrams. The State relied upon the labeling as proof that the tablets contained pseudoephed-rine, and Appellant objected, complaining that the labeling was hearsay. The trial court overruled Appellant’s objection and the bottles were admitted into evidence.

LEGAL AND FACTUAL SUFFICIENCY

In his first point, Appellant asserts that the evidence was legally and factually insufficient because the evidence as to the proof of a chemical precursor and the intent to manufacture methamphetamine was inadequate to sustain Appellant’s conviction. Appellant contends that the State’s failure to offer any scientific or expert testimony identifying the nature of the alleged chemical precursor, pseu-doephedrine, relying instead exclusively on the labels on the bottles, resulted in legally and factually insufficient evidence that the substance seized was pseudoephedrine. Additionally, Appellant complains that the evidence is legally and factually insufficient to prove that Appellant had the requisite intent to manufacture a controlled substance.

1. Legal Sufficiency Standard of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App.2005).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

In determining the legal sufficiency of the evidence to show appellant’s intent, and faced with a record that supports conflicting inferences, we “must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991). We must consider all the evidence admitted at trial, even improperly admitted evidence, when performing a legal sufficiency review. Moff v. State, 131 S.W.3d 485, 489-90 (Tex.Crim.App.2004).

2. Factual Sufficiency Standard of Review

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) when the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment and, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. “This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.” Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id.

In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for the fact finder’s. Zuniga, 144 S.W.3d at 482.

A proper factual sufficiency review requires an examination of all the evidence. Id. at 484, 486-87. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

3. Proof of Chemical Precursor

Appellant complains that the trial court erroneously admitted, over objection, hearsay evidence that the labeling on the packages could serve as proof of the contents of the package. The State asserts that, by conceding to the jury that the substance in question was pseudoephed-rine, Appellant is judicially estopped from claiming otherwise on appeal. Alternatively, the State contends that the evidence is legally and factually sufficient to establish that the alleged chemical precursor was in fact pseudoephedrine and that the pseu-doephedrine was possessed with the intent to manufacture a controlled substance.

The State cites Davidson v. State for the proposition that Appellant is judicially estopped from claiming on appeal that the State failed to prove the substance in question was pseudoephedrine because Appellant conceded that the substance was in fact pseudoephedrine. See 737 S.W.2d 942, 948 (Tex.App.-Amarillo 1987, pet. ref'd). Davidson stands for the proposition that a party may use a formal judicial admission made by party opponent as a substitute for evidence if the statement is clear, definite, and unambiguous. Id.

In urging that Appellant judicially admitted the substance was pseudoephed-rine, the State points to the fact that during closing arguments, defense counsel stated:

Now, naturally some of the elements of the offense we’re not going to dispute .... Sergeant Snyder testified that that’s the individual they stopped. Element of the offense, that Mr. Shaffer was involved. That this contraband or evidence that they seized whatever you [want to] call it, is pseudoephedrine. Nobody tested it, therefore you’re going to have to look at it and make that determination for yourself. I’m not putting that much in issue there.

The State contends that through this statement, Appellant conceded that this substance was in fact pseudoephedrine. We disagree because we do not believe that the statement made during closing arguments was so clear, definite, and unambiguous as to constitute a judicial admission.

Appellant contends that the labeling on the “Max Brand” cold medicine bottles was not sufficient to prove that the substance was in fact pseudoephedrine; Appellant asserts that the only type of evidence sufficient to support a conviction for possessing contraband of a chemical nature is expert scientific testimony. To support this contention, Appellant directs us to three cases. The first two cases deal with the necessity of expert testimony in identifying a white, powdery substance as cocaine. See Bright v. State, 556 S.W.2d 317, 321-22 (Tex.Crim.App.1977) (disallowing a lay witness’s testimony that a given substance was heroine on the basis that an experienced narcotics officer could not testify in that regards), overruled on other grounds, McClenan v. State, 661 S.W.2d 108 (Tex.Crim.App.1983); Steele v. State, 681 S.W.2d 129, 131 (Tex.App.-Houston [14th Dist.] 1984, pet. ref'd) (requiring expert testimony to establish that the white, powdery substance was cocaine and if so, to show its weight). We believe the present case is distinguishable from these cited cases, because the cold medication was discovered in its original, sealed packaging.

The final case cited by Appellant lends the greatest support to his argument that the only type of evidence sufficient to support a conviction for possessing a dangerous drug or controlled substance is through the introduction of expert scientific testimony, but the case is distinguishable from the case at bar. See Manning v. State, 637 S.W.2d 941 (Tex.Crim.App.1982). In Manning, the court of criminal appeals found the evidence the State presented to establish the substance seized was phenmetrazine, a controlled substance, was insufficient. Id. at 942. An officer testified that he found twenty-four pink tablets that he believed to be “Preludin.” Id. On appeal, the State argued that phenmetrazine hydrochloride is marketed in the United States under the trade name Preludin and is the only source of such tablets listed in the Physician’s Desk Reference, from which the trial court could properly take judicial notice of the fact. Id. at 943. Looking to the record, the court of criminal appeals found no evidence, other than color, showing that the distinctive nature of the tablets matched the description of Preludin, and an examination of the Physician’s Desk Reference yielded numerous tablets similar to Prelu-din. Id. Therefore, the court of criminal appeals determined that the State failed to prove by a preponderance of the evidence that the substance possessed was phenme-trazine. Id.

We believe the cited cases are distinguishable from the present case because the cold medicine Appellant possessed was contained in sealed packages. Additionally, as discussed below, the labeling on the packages reliably established that the cold medicine contained pseudoephedrine. We hold that this evidence is legally and factually sufficient to prove that Appellant was in possession of the chemical precursor pseudoephedrine.

Ip. Intent to Manufacture

Appellant contends that the mere possession of lithium batteries, starter fluid, and the “Max Brand” cold medicine containing pseudoephedrine is insufficient to prove beyond a reasonable doubt Appellant’s intent to manufacture methamphetamine. Appellant contends that a person could innocently possess these items without intending to engage in criminal behavior.

A person acts with intent with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Penal Code Ann. § 6.03(a) (Vernon 2003). Intent can be inferred from the acts, words, and conduct of the accused. Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App.1982).

Police seized twenty-four bottles of cold medicine containing pseudoephedrine, eight lithium batteries, and six cans of starter fluid from Appellant’s car. The State called Officer John Spragins, who is specially trained in narcotics investigation, specifically in investigating methamphetamine laboratories, and who teaches law enforcement officers concerning the investigation of methamphetamine laboratories, to testify regarding the manufacturing of methamphetamine. Officer Spragins testified that the items officers found in Appellant’s possession are used to manufacture methamphetamine. He further testified that the particular brand of starter fluid that Appellant possessed was a brand that is preferred by manufacturers of methamphetamine because it contains less oil than other brands.

Additionally, Appellant possessed an amount of cold medication containing pseu-doephedrine that is inconsistent with personal use. Police seized two boxes of pseudoephedrine, containing twenty-four bottles. Each bottle contained thirty-six tablets, amounting to a total of 864 tablets. Officer Spragins testified that this quantity of pseudoephedrine was sufficient to manufacture a sizeable amount of methamphetamine.

The trier of fact has the responsibility to weigh the evidence and draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Appellant’s possession of such a large amount of pseudoephedrine, as well as the starter fluid and lithium batteries, leads to an inference that Appellant possessed the pseudoephedrine with the intent to manufacture methamphetamine. Giving proper deference to the fact finder’s determinations and without substituting our judgment for that of the fact finder’s, we hold that the evidence is legally and factually sufficient to support a finding of guilt beyond a reasonable doubt. We overrule Appellant’s first point.

ADMISSIBILITY

In his second point, Appellant contends that the trial court abused its discretion in admitting, over counsel’s objection, hearsay evidence that the labeling on the packages could serve as proof of the contents of the package. The State contends that the federally mandated labeling of the package provided proof that the substance was pseudoephedrine; therefore, the State was authorized to use the labeling as proof pursuant to Texas Rules of Evidence 803(17) and 902(7).

We review the trial court’s admission of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g). If the trial court’s decision to admit the evidence lies within the zone of reasonable disagreement, then the decision must be upheld. Id. at 391; Rankin v. State, 974 S.W.2d 707, 718 (Tex.Crim.App.1998) (op. on reh’g).

The labeling constitutes hearsay because it is an extrajudicial assertion offered to prove the truth of the matter asserted that the tablets contain pseudoephedrine. See Tex.R. Evid. 801(d). Hearsay is inadmissible unless some other rule or statute permits introduction. Tex.R. Evid. 802. Appellant contends that no exception permits the introduction of the labels as a method of proving the chemical contents of the bottles. The State suggests that Rule 803(17) furnishes the requisite exception.

Rule 803(17) provides, as an exception to the rule against the admission of hearsay, “[m]arket quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.” Tex.R. Evid. 803(17). The cold medication label constitutes a list of the medication it contains; therefore, we must determine whether the list is generally used and relied upon by the public. See id. Federal regulations provide extensive requirements for the labeling of drugs, including the established name and quantity of the active ingredients, which suggests that the cold medication labels are accurate and trustworthy. See 21 U.S.C. § 352(e) (1999).

The fact that the cold medicine was contained in bottles that remained unopened indicates that the contents had not been changed since the manufacturer bottled them. The labeling on the packages indicating that the cold medicine contained pseudoephedrine was sufficiently reliable to establish that the cold medicine did in fact contain pseudoephedrine. We hold that the trial court did not abuse its discretion in admitting the labels as substantive proof that the cold medicine contained pseudoephedrine. We overrule Appellant’s second point.

CONSTITUTIONALITY

In his third point, Appellant complains that Texas Health and Safety Code Section 481.124(a)(2) is unconstitutional; specifically, he contends that it violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution because it is vague and indefinite. See U.S. Const, amend. XIV. He asserts that the statute fails to delineate the forbidden conduct that must be avoided, in that no ordinary person would ever know whether he or she was subject to arrest and prosecution because no certain quantity of pseudoephedrine is prohibited, and the statute permits arbitrary and erratic arrests and convictions because the possession of pseudoephedrine may be subjectively enforced by law enforcement officials any time they discover pseudoephedrine in a person’s possession. The State contends that Appellant has failed to preserve this point for our review because he first raised the issue in an untimely filed amended motion for new trial.

There are two types of challenges to the constitutionality of a statute: the statute is unconstitutional as applied to the defendant, or the statute is unconstitutional on its face. Fluellen v. State, 104 S.W.3d 152, 167 (Tex.App.-Texarkana 2003, no pet.). The constitutionality of a statute as applied must be raised in the trial court in order to preserve error. Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App.1995).

Under the Texas Rules of Appellate Procedure, a motion for new trial must be filed within thirty days of the date that the sentence was imposed or suspended in open court. Tex.R.App. P. 21.4. An amended motion for new trial may be filed within thirty days after the date the trial court imposes or suspends the sentence in open court but before the court overrules any preceding motion for new trial, but an amended motion for new trial cannot be considered if it is filed after this thirty-day time period. Id.; see also Rangel v. State, 972 S.W.2d 827, 838 (Tex.App.-Corpus Christi 1998, pet. ref'd); Johnson v. State, 925 S.W.2d 745, 747 (Tex.App.-Fort Worth 1996, pet. ref'd); Kiser v. State, 788 S.W.2d 909, 915 (Tex.App.-Dallas 1990, pet. ref'd).

The trial court sentenced Appellant in open court on July 28, 2004. Appellant timely filed his first motion for new trial and a second motion for new trial, but made no mention of his constitutionality challenge. Appellant then filed a third motion for new trial, in which he asserted his constitutionality challenge. The deadline for filing all motions for new trial in the present case was August 27, 2004, but the certificate of service reflects that the third motion for new trial, alleging the constitutionality challenge, was mailed on August 28, 2004 and was filed in the trial court on August 30, 2004. See Tex.R.App. P. 21.4. Appellant untimely filed his last motion for new trial; therefore, to the extent that Appellant is asserting an as-applied constitutional challenge, we hold that he has not preserved error for our review.

Appellant was not required, however, to raise in the trial court a constitutional challenge that the statute is facially invalid, because a defendant may raise a constitutional challenge to the facial validity of a statute for the first time on appeal. Garcia v. State, 887 S.W.2d 846, 861 (Tex.Crim.App.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). Accordingly, we will address Appellant’s argument that the statute he was convicted under is unconstitutionally void for vagueness. See id.

When reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting it. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978); Sisk v. State, 74 S.W.3d 893, 901 (Tex.App.-Fort Worth 2002, no pet.). It is the challenger’s burden to show that the statute is unconstitutional. Webb v. State, 109 S.W.3d 580, 582 (Tex.App.-Fort Worth 2003, no pet.). The statute must be upheld if a reasonable construction can be ascertained that will render the statute constitutional and carry out the legislative intent. Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App. [Panel Op.] 1979); Sisk, 74 S.W.3d at 901.

To pass a vagueness challenge, a criminal statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited. Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972); Long v. State, 931 S.W.2d 285, 287 (Tex.Crim.App.1996). Further, the law must establish determinate guidelines for law enforcement. Long, 931 S.W.2d at 287.

A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App.) (op. on reh’g), cert. denied, 506 U.S. 999, 113 S.Ct. 600, 121 L.Ed.2d 537 (1992). Because a statute may be valid as applied to one set of facts and invalid as applied to another, it is incumbent upon the appellant to first show that in its operation the statute is unconstitutional as to him in his situation; that it may be unconstitutional as to others is not sufficient. Id.; Fluellen, 104 S.W.3d at 167. In determining whether a statute provides adequate guidelines for its enforcement, the reviewing court may consider hypothetical situations to determine whether the guidelines are adequate. Margraves v. State, 34 S.W.3d 912, 921 (Tex.Crim.App.2000). Initially, though, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations. Santikos, 836 S.W.2d at 633.

The statute in question provides in pertinent part as follows:

(a) A person commits an offense if, with the intent to unlawfully manufacture a controlled substance, the person possesses or transports:
(1) anhydrous ammonia;
(2) an immediate precursor; or
(3) a chemical precursor or an additional chemical substance named as a precursor by the director under Section 481.077(b)(1).

Tex. Health & Safety Code Ann. § 481.124 (Vernon Supp.2005). Section 481.077 regulates the selling and distribution of chemical precursors, which, under the health and safety code, include pseudoephedrine. Id. §§ 481.002(51), 481.077.

Appellant was charged with violating section 481.124 by possessing pseu-doephedrine with the intent to manufacture a controlled substance. Appellant asserts that this statute fails to instruct ordinary people with .any level of precision as to what conduct must be avoided in order to avert arrest and prosecution. Additionally, Appellant complains that the statute fails to outlaw any particular quantity of pseudoephedrine that would trigger an arrest and subsequent prosecution. We disagree. The clear language of the statute does not proscribe the mere possession of pseudoephedrine; rather, it prohibits the possession of pseudoephed-rine with the intent to manufacture methamphetamine. See id. § 481.124. Thus, any person of ordinary intelligence would understand that it is not the mere possession of pseudoephedrine that is prohibited, but it is the possession of pseu-doephedrine coupled with the intent to manufacture methamphetamine that is unlawful. See id. Therefore, the possession of any quantity of pseudoephedrine, if the possessor has the intent to manufacture methamphetamine, will lead to a violation of this statute. See id. As previously discussed, the evidence presented was sufficient for the jury to infer that Appellant possessed these items with the intent to manufacture methamphetamine; therefore, the statute is not unconstitutionally vague as applied to him.

Appellant also asserts that the statute punishes lawful conduct that does not amount to more than mere preparation, and thus, the statute would never pass muster under the criminal attempt statute. See Tex. Penal Code Ann. § 15.01(a) (Vernon 2003). He contends that because mere preparation is insufficient to sustain a conviction for criminal attempt, the statute subjects people to arbitrary and erratic enforcement in that it prosecutes something that does, not amount to more than mere preparation. He cites no authority for the proposition that the challenged statute should pass muster under the criminal attempt statute.

Texas Health and Safety Code section 481.124 prohibits the possession of certain items with the intent to manufacture controlled substances. It is not the manufacturing of these controlled substances the statute prohibits, but rather it is the possession of the items necessary for the manufacturing of these drugs combined with the intent to manufacture controlled substances that is prohibited. The offense for which Appellant was convicted is a completely separate offense from the offense of attempted manufacture of methamphetamine. Appellant has failed to demonstrate how the statute unconstitutionally permits arbitrary and erratic enforcement.

Appellant further complains that the statute permits arbitrary and erratic arrests because the possession of pseu-doephedrine may be subjectively enforced by law enforcement officials anytime they discover pseudoephedrine in the possession of speeding motorists or others. Here, Appellant contends that the statute was arbitrarily applied to him because the arresting officer recognized him when he stopped Appellant and on that basis called a dog unit to respond to the scene. Appellant never complained on appeal about the traffic stop, the officer’s probable cause to search, or the manner in which the search was conducted. Furthermore, the mere fact that the officer recognized Appellant does not show that he arbitrarily arrested Appellant for the possession of pseudoephedrine with the intent to manufacture methamphetamine. The officer determined that the amount of pseudoephedrine Appellant possessed was inconsistent with personal use. Additionally, the officer noted that Appellant possessed both lithium batteries and starter fluid, both used for the manufacturing of methamphetamine. Therefore, we conclude that the statute was not unconstitutional as applied to Appellant. Because the statute was not unconstitutional as applied to Appellant, he cannot establish that the statute operates unconstitutionally as to all convicted persons. Thus, Appellant has failed to establish that under no set of circumstances would the statute be valid. See Santikos, 836 S.W.2d at 633. Accordingly, we overrule Appellant’s third point.

CONCLUSION

Having overruled Appellant’s three points, we affirm the trial court’s judgment.

      . Indiana, Mississippi, and Iowa have rules of evidence identical to Texas Rule of Evidence 803(17). In cases factually similar to the case at bar, the highest courts of these states have determined that the labeling on drug containers is sufficiently reliable as to constitute an exception to the ban on the admission of hearsay. Reemer v. State, 835 N.E.2d 1005, 1006-09 (Ind.2005); Burchfield v. State, 892 So.2d 191, 198-200 (Miss.2004); State v. Heuser, 661 N.W.2d 157, 163-65 (Iowa 2003).

      . A limited exception has been recognized for statutes that broadly prohibit speech protected by the First Amendment, but such a statute is not at issue here. See Santikos, 836 S.W.2d at 633.

      . We note that the penal code also contains statutes that prohibit the possession of certain items with the intent to use the items in a particular manner. See, e.g., Tex. Penal Code Ann. § 43.26(e)(Vernon 2003) (outlawing the possession of child pornography with the intent to promote child pornography); Tex. Penal Code Ann. § 46.09 (Vernon 2003) (precluding the possession of components of an explosive weapon with the intent to combine the components into an explosive weapon for use in a criminal endeavor).


source: Caselaw Access Project

author: DAVID PURYEAR, Justice.

license: Public Domain

text:
    Joe Lawrence LUTZ, Appellant, and Joseph Alfred Rome, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 03-03-00723-CR, 03-04-00157-CR.
    Court of Appeals of Texas, Austin.
    Jan. 19, 2006.
    David B. Frank, Austin, for appellants.
    Jade M. Meeker, Asst. Dist. Atty., Austin, for appellee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

In 1982, appellant Joe Lawrence Lutz was convicted of aggravated rape in Taylor County. In 1983, appellant Joseph Alfred Rome, Jr., was convicted of aggravated sexual abuse of a child in Denton County. In 2002, Lutz and Rome were indicted in Travis County for violating requirements of the Texas Sex Offender Registration Program. After their pretrial motions to dismiss were overruled, Lutz and Rome entered bargained pleas of guilty and were sentenced to prison terms of six and three years, respectively. These companion appeals raise the question of whether Lutz’s conviction for aggravated rape and Rome’s conviction for aggravated sexual abuse of a child are reportable convictions subjecting them to the requirements of the registration program. A second question is whether the convictions were for sexually violent offenses as defined by the program. We answer “yes” to both questions and affirm the convictions for failing to register.

The sex offender registration program requires a person having a reportable conviction to register with his local law enforcement authority, periodically verify his registration, and report any change of address. See Tex.Code Crim. Proc. Ann. arts. 62.051(a), (d), 62.055(a) (West Supp. 2005) (formerly arts. 62.02(a), (d), 62.04(a)). The term of the offender’s obligation to register and report, the frequency with which he must do so, and the punishment for a violation of the registration program are determined in part by whether the offender’s reportable conviction was for a sexually violent offense. See id. arts. 62.058(a), 62.101(a), 62.102(b) (formerly arts. 62.06(a), 62.10(b), 62.12(a)). A reportable conviction is defined as a conviction for one of several enumerated offenses. See id. art. 62.001(5) (formerly art. 62.01(5)). There is a similar list of sexually violent offenses. See id. art. 62.001(6) (formerly art. 62.01(6)). Neither list expressly includes either aggravated rape or aggravated sexual abuse of a child.

When interpreting a statute, we seek to effectuate the collective intent or purpose of the legislature. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). Ordinarily, we do this by giving effect to the plain meaning of the statute’s text. Id. We may consider extratextual factors only if the statute is ambiguous or if the plain language of the statute would lead to absurd results the legislature could not possibly have intended. Id. If a statute is subject to two reasonable interpretations, we may consider the consequences of the alternative interpretations in deciding which to adopt. Muniz v. State, 851 S.W.2d 238, 244 (Tex.Crim.App.1993).

Lutz and Rome argue that the relevant statutes are unambiguous: aggravated rape and aggravated sexual abuse of a child are plainly not named as reportable, sexually violent offenses subject to the sex offender registration program. The State responds that the definitions in question should be read to include the statutory predecessors of the enumerated offenses, all of which are current penal code offenses. Under the State’s proposed reading of the statute, Lutz and Rome have reportable convictions for sexually violent offenses because aggravated rape and aggravated sexual abuse of a child are statutory predecessors of aggravated sexual assault, which is defined as a reportable conviction and a sexually violent offense. Tex.Code Crim. Proc. Ann. art. 62.001(5)(A), (6)(A) (formerly art. 62.01(5)(A), (6)(A)). Anticipating the State’s argument, Lutz and Rome draw our attention to the statutes providing for civil commitment of sexually violent predators. See Tex. Health & Safety Code Ann. §§ 841.001-.150 (West 2003 & Supp.2005). There, the definition of sexually violent offense includes not only current statutory offenses but also “an offense under prior state- law that contains elements substantially similar to the elements” of the listed statutes. Id. § 841.002(8)(F) (West Supp. 2005). Lutz and Rome argue that if the legislature had intended persons convicted under prior statutes to be included within the scope of the sex offender registration program, the program’s definitions would have a similar provision.

Athough article 62.001 does not expressly incorporate convictions for offenses under prior state laws, it does state that a reportable conviction means “a conviction under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice for an offense containing elements that are substantially similar to the elements” of an enumerated offense. Tex.Code Crim. Proc. Ann. art. 62.001(5)(J) (formerly art. 62.01(5)(J)). Similarly, an offense “under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice” is a sexually violent offense “if the offense contains elements that are substantially similar to the elements” of an enumerated sexually violent offense. Id. art. 62.001(6)(E) (formerly art. 62.01(6)(E)). Under the reading of the statutes advocated by Lutz and Rome, a person with a conviction in another jurisdiction for an offense substantially similar to an offense enumerated in article 62.011(5) or (6) would be subject to the requirements of the sex offender registration program, but a person with a Texas conviction for a substantially similar, or even identical, offense that has since been renamed would not be subject to the program.

In 1983, the rape and sexual abuse offenses previously found in chapter 21 of the penal code were consolidated, renamed sexual assault and aggravated sexual assault, and moved to chapter 22. See Act of May 29, 1983, 68th Leg., R.S., ch. 977, §§ 3 & 12, 1983 Tex. Gen. Laws 5311, 5312-15, 5321. In 1997, the legislature expanded the sex offender registration program to include persons having reportable convictions occurring on or after September 1, 1970. See Tex.Code Crim. Proc. Ann. art. 62.002(a) (formerly art. 62.11(a)). Under Lutz’s and Rome’s reading of the statutes, persons who committed sexual assaults prior to 1983 are exempt from this expansion of the program because the offenses were then called rape or sexual abuse.

The statutory construction issue before us is analogous to those raised in two recent court of criminal appeals opinions. In Griffith v. State, 116 S.W.3d 782 (Tex.Crim.App.2003), the court construed penal code section 12.42(c)(2), which creates an enhanced punishment for certain repeat sex offenders. See Tex. Pen.Code Ann. § 12.42(c)(2) (West Supp.2005). Under the statute, a person convicted of a sex offense listed in section 12.42(c)(2)(A) shall be punished by life imprisonment if he has previously been convicted for a sex offense listed in section 12.42(c)(2)(B). Following his conviction for a section 12.42(c)(2)(A) offense, Griffith was sentenced to life on the basis of his previous convictions for rape and aggravated rape. Griffith, 116 S.W.3d at 784. Griffith urged that this was unlawful because neither rape nor aggravated rape is listed as an enhancing offense in section 12.42(c)(2)(B). Id.

The court of criminal appeals responded to this argument by pointing out that rape and aggravated rape are statutory predecessors to the offenses of sexual assault and aggravated sexual assault, which are enhancing offenses under section 12.42(c)(2)(B). Id. at 787; Tex. Pen.Code Ann. § 12.42(c)(2)(B)(ii). The court also noted that convictions “under the laws of another state containing elements that are substantially similar to” the offenses enumerated in section 12.42(c)(2)(B) are also enhancing offenses. Griffith, 116 S.W.3d at 786; Tex. Pen.Code Ann. § 12.42(c)(2)(B)(v). The court held that it was absurd to conclude that a sex offender with a previous conviction in another state for an offense substantially similar to sexual assault would be subject to enhanced punishment, but a sex offender with a previous rape conviction in Texas would avoid enhanced punishment simply because he committed his earlier crime at a time when it. was not called sexual assault. Griffith, 116 S.W.3d at 786. The court held that section 12.42(c)(2)(B) should be read to include the statutory predecessors to the enumerated offenses. Id. at 788.

The issue in Ex parte Ervin, No. AP-74,985, 187 S.W.3d 386, 2005 WL 767846, 2005 Tex.Crim.App. LEXIS 518 (Tex.Crim.App. Apr. 6, 2005), was the proper interpretation of the government code provision denying mandatory supervision to inmates with previous convictions for certain enumerated offenses, including sexual assault. Tex. Gov’t Code Ann. § 508.149(a) (West 2004). Ervin was denied mandatory supervision because he had a previous conviction for sexual abuse of a child. Ervin, at 387, 2005 WL 767846, at *1. He challenged this denial on the ground that sexual abuse of a child is not a disqualifying offense under section 508.149(a). Id. The court of criminal appeals concluded that the legislature could not have reasonably intended to deny mandatory supervision for inmates with sexual assault convictions but allow mandatory supervision for inmates convicted under predecessor statutes. Id., at 389, 2005 WL 767846, at *2. The court held that section 508.149(a) should be read to include the statutory predecessors to the enumerated offenses and that Ervin was ineligible for mandatory supervision. Id. at 389, 2005 WL 767846, at *2.

In light of the opinions in Griffith and Ervin, and considering the purposes of the sex offender registration program, we conclude that there is no rational basis for exempting from its coverage a person who committed a sex offense substantially similar to one designated as reportable solely because the offense was committed in Texas and had a different name at the time it was committed. We therefore agree with the State that article 62.001(5) and (6) should be read to include the statutory predecessors of the enumerated offenses.

Two other courts of appeals have concluded that the sex offender registration program applies to persons convicted of predecessor offenses. In Turner v. State, 101 S.W.3d 750, 758-59 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd), the court held that sodomy under former penal code article 524 was a sexually violent offense. In Reyes v. State, 119 S.W.3d 844, 847-48 (Tex.App.-San Antonio 2003, no pet.), the court held that a conviction for rape of a child was a reportable conviction.

Lutz and Rome also argue that the punishment provisions of the sex offender registration program are unconstitutionally vague. This contention was not made in the trial court. Even constitutional issues may be waived by failing to raise them at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990). We also note that this contention was raised and rejected in Reyes. Id. at 844.

We hold that Lutz’s 1982 conviction for aggravated rape and Rome’s 1983 conviction for aggravated sexual abuse of a child were reportable convictions for sexually violent offenses and overrule their points of error to the contrary. The judgments of conviction for violating the sex offender registration program are affirmed.

      . Chapter 62 of the code of criminal procedure, the Texas Sex Offender Registration Program, was reenacted and amended effective September 1, 2005. See Act of May 8, 2005, 79th Leg., R.S. ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385. None of the amendments are pertinent to these appeals. We will cite the current statutes and, in parentheses, note the corresponding former article numbers.


author: Justice MORRIS.

text:
    AMERISTAR JET CHARTER, INC., Appellant, v. Charles Jeff COBBS and Falcon Air Charter, L.L.C., Appellees.
    No. 05-04-01356-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 20, 2006.
    Rehearing Overruled March 3, 2006.

      Richard Illmer, Chad Andrew Johnson, Brown, McCarroll, L.L.P., Dallas, for appellant.
    Robert F. Maris, Maris & Lanier, P.C., Dallas, for appellees.
    Before Justices MORRIS, WRIGHT, and RICHTER.
   OPINION

Opinion by

Justice MORRIS.

This is an appeal from a jury verdict in favor of appellees Charles Jeff Cobbs and his company, Falcon Air Charter, L.L.C., in a lawsuit they brought for declaratory judgment and damages. The lawsuit arose out of a dispute between Cobbs and his former employer, appellant Ameristar Jet Charter, Inc. In its appeal, Ameristar challenges the legal and factual sufficiency of the jury’s adverse findings on appellees’ claim for malicious prosecution and also on Ameristar’s counterclaim against Cobbs for breach of fiduciary duty. Ameristar further challenges the trial court’s failure to award it attorney’s fees on appellees’ declaratory judgment action. Appellees raise two conditional cross-issues asserting the trial court erred in granting Ameristar a judgment notwithstanding the verdict on appellees’ claims for tortious interference with an existing contract and wrongful injunction. For the reasons that follow, we affirm the trial court’s judgment in part and reverse and render judgment in part.

I.

From 1994 to 2002, Cobbs worked for Ameristar, a large on-demand air cargo charter company. Ameristar flies cargo throughout North America on its own planes and also subcontracts other carrier’s planes when its planes are unavailable. The case arises out of a dispute that occurred after Cobbs left Ameristar’s employment. Shortly after resigning from Ameristar, Cobbs, through his company Falcon Air, began to manage a single Falcon 20 aircraft owned by Tech Air Services, L.L.C. Specifically, Ameristar and appellees disagreed about whether Cobbs had usurped Ameristar’s opportunity to use Tech Air’s Falcon. Also, the parties disagreed about whether Cobbs was using Ameristar’s confidential information to compete with Ameristar, in violation of a confidentiality agreement Cobbs had signed with Ameristar.

Cobbs instituted this lawsuit one week after he resigned from Ameristar. Among other things, he sought a declaratory judgment that the confidentiality agreement with Ameristar was unenforceable. In response, Ameristar filed a counterclaim for breach of fiduciary duty, tortious interference with prospective contract, breach of contract, and misappropriation of trade secrets. Ameristar also sought and obtained a temporary injunction preventing Cobbs and Falcon Air from doing business with Tech Air and Tech Air’s owner, Robert Brown. The trial court enjoined appel-lees from working with Tech Air and Brown for over three months before it dissolved the temporary injunction. After the injunction was lifted, appellees amended their pleadings to assert claims for malicious prosecution, wrongful injunction, and tortious interference with an existing contract. They also sought, in response to Ameristar’s claim for misappropriation of trade secrets, an additional declaration that certain items were not trade secrets.

The case was tried to a jury. It found Ameristar wrongfully enjoined appellees, maliciously prosecuted the injunction, and intentionally interfered with Falcon Air’s contract with Tech Air. The jury also found that appellees did not breach any fiduciary duty owed to Ameristar, misappropriate any of Ameristar’s trade secrets, breach the confidentiality agreement, or tortiously interfere with any prospective contract of Ameristar. The jury found only a portion of the items claimed by Ameristar to be trade secrets.

In accordance with the jury verdict, the trial court rendered judgment in favor of appellees on their malicious prosecution claim and awarded Ameristar a take-nothing judgment on its affirmative claims. The trial court also rendered a declaratory judgment in accordance with the jury findings with respect to trade secrets and awarded appellees attorney’s fees in an amount stipulated by the parties. The trial court, however, granted Ameristar’s judgment notwithstanding the verdict with respect to appellees’ wrongful injunction and tortious interference claims. This appeal followed.

II.

In its first issue, Ameristar challenges the legal and factual sufficiency of the evidence to support the jury’s adverse finding on its breach of fiduciary duty claim. Specifically, it contends the trial evidence establishes, as a matter of law, that Cobbs breached his fiduciary duty to Ameristar. Alternatively, it argues the jury finding on this issue is against the great weight and preponderance of the evidence.

A party challenging the legal sufficiency of the evidence supporting an adverse finding on an issue on which it had the burden of proof must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). In reviewing such a challenge, we must determine whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). When a party challenges the factual sufficiency of the evidence supporting an adverse finding on which it bore the burden of proof, it must demonstrate the adverse finding is against the great weight and preponderance. of the evidence. Francis, 46 S.W.3d at 242. Only if we determine, after considering all the evidence, the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust will we set aside the verdict for factual insufficiency. Id.

Although the jury found Cobbs owed a fiduciary duty to Ameristar, it also found that Cobbs did not breach this fiduciary duty. Ameristar contends the evidence that Cobbs, while working for Amer-istar, formed a competing business without telling Ameristar and encouraged Brown and Tech Air to do business with him and not with Ameristar establishes, as a matter of law, that Cobbs breached his fiduciary duty to Ameristar. It also asserts Cobbs’s solicitation of customers that the jury found to be trade secrets of Ameristar conclusively establishes such a breach. We do not agree.

It is undisputed that Cobbs filed the paperwork to form Falcon Air before he resigned from Ameristar. There was no evidence, however, that Falcon Air actually competed with Ameristar while Cobbs was an Ameristar employee. In fact, Cobbs testified he did not work out a deal with Brown to manage Tech Air’s Falcon until after he left Ameristar. Only after the deal was struck with Brown did Cobbs begin booking flights for Tech Air’s Falcon. The mere formation of Falcon Air while Cobbs was still an Ameristar employee is therefore no basis for concluding, as a matter of law, that Cobbs breached his fiduciary duty to Ameristar.

Ameristar also argues the evidence conclusively establishes Cobbs, while still its employee, breached his fiduciary duty with respect to his dealings with Brown and Tech Air. At the outset, we note the jury found that the Tech Air opportunity was not a trade secret of Ameristar and Ameristar has not challenged that finding. Additionally, there was conflicting evidence with respect to the business opportunity presented by Brown and Tech Air. Ameristar’s president testified that he instructed Cobbs to find out the story on Tech Air’s Falcon after noticing the plane was on the ground for long periods of time. Cobbs testified, however, that during his employment with Ameristar, no one ever instructed him to get information on, or expressed interest in, Tech Air’s Falcon. Cobbs stated that he inquired about Tech Air’s Falcon strictly as a possible employment opportunity for himself. Ameristar’s president Tom Wachendorfer admitted that, throughout its history, Ameristar had never done a long-term lease agreement on a Falcon. Both Wachendorfer and Cobbs acknowledged that, absent a long-term lease, using another carrier’s plane would generally reduce Ameristar’s profit margin. Cobbs further testified that, immediately after he told Ameristar about his intentions to use Tech Air’s Falcon to start his own business, Ameristar implemented a policy prohibiting its own use of Tech Air’s Falcon. This policy remained in effect until after the trial court granted Ameristar’s request for a temporary injunction.

The jury was instructed that if a corporation abandons a business opportunity, the taking of that opportunity by a person who is a fiduciary cannot serve as the basis for breach of a fiduciary duty. According to Cobbs, Ameristar never expressed an interest in Tech Air’s Falcon before or after he disclosed his plans to use the aircraft. In fact, the evidence indicated Ameristar immediately implemented a policy prohibiting Ameristar’s use of the Falcon after Cobbs informed Ameristar of his intentions to use the aircraft. Based on this evidence, the jury could have found that Ameristar abandoned any potential opportunity presented by Tech Air’s Falcon. We therefore conclude Cobbs’s actions with respect to the Tech Air opportunity do not conclusively establish a breach of his fiduciary duty to Ameristar nor do they establish the jury’s adverse finding on this issue was clearly wrong or unjust.

Also under its first issue, Ameris-tar urges us to reverse the judgment on its breach of fiduciary duty claim because ap-pellees solicited several brokers and carriers that the jury found to be trade secrets of Ameristar. Although the jury found five of the brokers and carriers appellees solicited were trade secrets of Ameristar, it also found appellees did not misappropriate any of these trade secrets and complied with Ameristar’s confidentiality agreement.

Cobbs presented extensive testimony on the methods he used to solicit business. He testified that he used the internet by searching various keywords, the Air Now bulletin, and trade publications, including an air charter guide. He denied taking or utilizing any of Ameristar’s information with respect to its customers. He further indicated all contact information he used for solicitations was in the public domain. According to the confidentiality agreement Cobbs signed with Ameristar, confidential information did not include “any information which is or lawfully becomes public information through no act, direct or indirect, of Employee.” Cobbs’s mere solicitation of brokers and carriers the jury found to be trade secrets, absent a finding that Cobbs improperly obtained or utilized these trade secrets, does not compel a finding that Cobbs breached his fiduciary duty to Ameristar. Accordingly, we will not disturb the jury finding with respect to Ameristar’s breach of fiduciary duty claim. Having concluded the evidence is legally and factually sufficient to support the jury’s adverse findings on Ameristar’s breach of fiduciary duty claim, we resolve Ameristar’s first issue against it.

In its second issue, Ameristar contends the trial court erred in signing a judgment for appellees on their malicious prosecution claim arising out of the temporary injunction. Among other things, Am-eristar complains there was no evidence that appellees were damaged by the injunction because there was no evidence they ever made a profit with Tech Air’s Falcon.

To succeed on their malicious prosecution claim, appellees had to establish that the injunction suit was prosecuted maliciously and without probable cause, was terminated in their favor, and the issuance of the injunction caused them damages. See DeSantis v. Wackenhut Corp., 798 S.W.2d 670, 686 (Tex.1990). Our focus is on the issue of damages. The trial court instructed the jury to consider only appellees’ lost profits or, in the alternative, if appellees’ lost profits were not readily ascertainable, Ameristar’s profits. Cobbs provided the sole evidence on Falcon Air’s lost profits. On direct examination, his testimony in its entirety on this issue was as follows:

Q. Let me ask you this. Falcon Air, was Falcon Air able — ever able to make a profit?
A. No.
Q. At the end of the year — the first year of the operation, the end of 2002, was Falcon Air able to make a profit? A. No.
Q. At the end of 2003, was it able to make a profit?
A. No.
Q. Were you able to make money, or at least positive money, above overhead before the injunction?
A. Yes, I was.
Q. Had you ever been able to make a profit or positive money after the injunction?
A. No.
Q. Are you — I know — I know that your company has never been able to up to this point to make a profit, but are you able to ascertain a dollar amount of damages that Ameristar has cost you? A. No.

To recover lost profits, the amount of the loss must be shown by competent evidence with reasonable certainty. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 505 (Tex.2001). Given this rule, the injured party must do more than merely show it suffered some lost profits. See El Dorado Motors, Inc., v. Koch, 168 S.W.3d 360, 366 (Tex.App.-Dallas 2005, no pet. h.). Appellees’ evidence was clearly legally insufficient under the first part of the jury’s damage instruction. Even under the alternative presented by the trial court’s jury charge, appellees were required, at a minimum, to show that they sustained some lost profits and that the dollar amount of those lost profits was unascer-tainable. The above testimony, however, is legally insufficient to support such a finding. Cobbs’s conclusory statements that he made “positive money” before the injunction and that the dollar amount of his damages was unascertainable do not establish that appellees lost any profits as a result of Ameristar’s actions. Indeed, Cobbs’s conclusory testimony was predicated on nothing more than unsupported, speculative assumptions. Appellees presented no objective facts, figures, data, or other evidence of historical profitability to support their position that Falcon Air was economically viable or that its purported lost profits were unascertainable. Because there was no evidence to support the jury’s finding on lost profits, we resolve Ameris-tar’s second issue in its favor.

In its third issue, Ameristar asserts the trial court abused its discretion in failing to award it attorney’s fees on appellees’ declaratory judgment action because Ameristar prevailed on appellees’ claims for declaratory relief. Pursuant to section 37.009 of the Declaratory Judgment Act, the trial court has discretion to award reasonable and necessary attorney’s fees “as are equitable and just.” Tex. Civ. PRAC. & Rem.Code Ann. § 37.009 (Vernon 1997); FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 888 (Tex.2000). Unlike other statutes, the Act does not require an award of attorney’s fees to the prevailing party. See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998). We will not disturb the trial court’s determination with respect to attorney’s fees absent a showing that the trial court abused its discretion. Id. at 21.

Here, appellees sought a declaration that the confidentiality agreement Cobbs signed with Ameristar was unenforceable under the Texas Business and Commerce Code because it was against public policy and lacked consideration. They also requested an order prohibiting Ameristar from enforcing the agreement because of unclean hands, lack of consideration, estop-pel and waiver. Finally, they requested a declaration of the parties’ rights under the agreement, that certain customers identified by Ameristar were not trade secrets, and that appellees could compete with Am-eristar using such information. Appellees substantially succeeded on their declaratory judgment action to the extent the jury found that the Tech Air opportunity and eight of the thirteen Ameristar customers listed were not trade secrets as Ameristar claimed. We therefore conclude the trial court did not abuse its discretion in denying Ameristar attorney’s fees. We resolve Ameristar’s third issue against it.

Because we have resolved Ameristar’s second issue in its favor, we next address appellees’ conditional cross-issues attacking the trial court’s judgment notwithstanding the verdict on their tortious interference and wrongful injunction claims.

Ameristar moved for a judgment notwithstanding the verdict on appellees’ tor-tious interference claim contending it was entitled to judgment as a matter of law because the claims were barred by the Noerr-Pennington doctrine of immunity and Ameristar was merely exercising its bona fide legal rights under the confidentiality agreement. In their first cross-issue, appellees contend the trial court erred in granting Ameristar’s motion for judgment notwithstanding the verdict on their tortious interference claim because Ameristar failed to plead the Noerr-Pen-nington doctrine as an affirmative defense. Appellees have not challenged on appeal Ameristar’s second ground asserted in its motion for judgment. Because the trial court’s judgment notwithstanding the verdict can be affirmed on this unchallenged alternative ground, we need not address the merits of appellees’ argument. See Perez v. Tex. Dept. of Prot. and Reg Serv., 148 S.W.3d 427, 433-34 (Tex.App.-El Paso 2004, no pet.). To the extent appellees attempt to address this alternative ground in their surreply brief, we note the Texas Rules of Appellate Procedure do not allow appellees to include in a reply brief a new cross-issue in response to a matter raised in appellant’s reply brief but not raised in appellees’ original brief. See Howell v. Tex. Workers’ Comp. Comm’n, 143 S.W.3d 416, 439 (Tex.App.-Austin 2004, pet. denied).

In their second cross-issue, ap-pellees challenge the trial court’s judgment notwithstanding the verdict on their wrongful injunction claim. A cause of action for wrongful injunction is predicated on a breach of the injunction bond’s condition that the injunction applicant will abide by the court’s decision and will pay all sums adjudged against it if the temporary injunction is dissolved in whole or in part. DeSantis, 793 S.W.2d at 685. The damages recoverable in an action on an injunction bond are limited to the amount of the bond. Id. at 686. Here, it is undisputed that the trial court released the injunction bond at the time it dissolved the temporary injunction. Appellees did not object to the release of the bond. Because there is no injunction bond on which to base appellees’ wrongful injunction claim, the trial court did not err in granting a judgment notwithstanding the verdict on this cause of action. In reaching this conclusion, we necessarily reject appellees’ contention that the trial court erred in denying their post-trial request to reinstate the bond. Appellees have not provided any authority, nor have we found any, that would support their position. We therefore resolve appellees’ second cross issue against them.

In conclusion, we reverse the trial court’s judgment on appellees’ malicious prosecution claim and render judgment that appellees take nothing on that claim. We affirm the trial court’s judgment in all other respects.

      . Ameristar also sued Brown and Tech Air. Tech Air, in turn, asserted claims for wrongful injunction, malicious prosecution, and tor-tious interference with contract against Amer-istar. Neither Brown nor Tech Air are parties to this appeal.

      . Brokers are companies in the on-demand air cargo industry that do not own their own aircraft. They act as a middleman between shippers and carriers. Carriers own their own aircraft. A carrier may act as a broker if its aircraft is unavailable to meet a shipper’s need.

      . During oral argument, appellees’ counsel indicated that Ameristar’s exhibit 24 provided additional evidence on gross profits for Tech Air’s Falcon. Our review of the record reveals, however, that this exhibit was never admitted into evidence. As such, we will not consider it in our analysis.


author: BEA ANN SMITH, Justice.

text:
    CITY OF AUSTIN, Appellant, v. Olga RANGEL, Appellee.
    No. 03-05-00281-CV.
    Court of Appeals of Texas, Austin.
    Jan. 20, 2006.

      Christine Edwards, Asst. City Atty., Austin, for appellant.
    Bradley G. Urrutia, Lopez and Uttutia, LLP, Austin, for appellee.
    Before Justices B.A. SMITH, PATTERSON and PURYEAR.
   OPINION

BEA ANN SMITH, Justice.

The City of Austin appeals the district court’s order denying its plea to the jurisdiction. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West 2005). The City asserts that sovereign immunity bars the negligence claims of the appellee, Olga Rangel. Rangel sued the City after she was injured on a public sidewalk by stepping into an uncovered water meter box. She alleged both premise and special defects under the Texas Tort Claims Act (the “Act”). See id. § 101.022 (West Supp. 2005). The City argues that, whether or not the open meter box constituted a premise defect or a special defect, the district court erred in denying its plea to the jurisdiction. We hold that Rangel failed to establish a waiver of the City’s immunity under the Act because she did not controvert the City’s evidence negating the existence of jurisdictional facts in order to raise a fact issue regarding whether the City knew or should have known of the open meter box. Accordingly, we reverse the district court’s order denying the City’s plea to the jurisdiction and dismiss Rangel’s claims for lack of subject-matter jurisdiction.

BACKGROUND

In 2002, Olga Rangel and her husband attended a festival in downtown Austin. Walking to the event, they came to a blocked street. According to their affidavits, a uniformed police officer directed them to the sidewalk. Rangel subsequently stepped into an uncovered water meter box on the sidewalk. She had not noticed the hole, nor had she seen any warning signs in the area. Rangel suffered injuries to her knee and ankle that required surgery.

After her fall, a nearby police officer was summoned and Rangel was taken away by an EMS unit. Rangel’s husband heard the police officer say that the meter box should have been covered and saw him place an orange cone over the hole. When Rangel’s husband returned later that day, the cone had been replaced by an oversized lid. The next day, he found the appropriate lid had been placed over the meter box. However, a City official stated in his deposition that he had not become aware that the meter box was missing its lid until nearly two months after the incident.

In her third amended petition, Rangel alleged that the open meter box constituted either a premise defect or a special defect. The City filed an amended plea to the jurisdiction and reply, denying that either defect existed and asserting that Rangel’s pleadings had not established a waiver of the city’s sovereign immunity under the Act. The City explained that it had not been actually aware of the missing lid at this location, nor would it be reasonable to require the City to be aware of the condition of every meter box at all times.

The City maintains over 300,000 public-works lids and covers in Austin. Rather than routinely inspecting lids and covers for problems, the City relies on reports by personnel working on infrastructure or reading meters, and on a citizen emergency hotline. When a broken or missing lid is reported, the standard dispatch time is thirty minutes and the standard time to fix the problem is two hours. On the street where Rangel fell, there had been twenty-six service requests in 2002; the standard dispatch time was met ninety-five percent of the time and the standard repair time was met seventy-seven percent of the time. Out of the fifty-six service requests on this street between 2000 and 2002, only two related to the block where Rangel fell, and neither request concerned a broken or missing lid.

The City noted that the open box Ran-gel stepped into contained a meter that was not in service at the time. During the festival and the days preceding it, the City did not receive any service requests or reports of problems concerning the block where the meter box was located. The City denied that the presence of a police officer near the scene established that the City knew or should have known of a problem. Moreover, the City asserted that requiring routine inspection of public-works lids and covers would be an unreasonable and insurmountable burden.

After a hearing, the district court denied the City’s plea to the jurisdiction. The City now brings this interlocutory appeal.

STANDARD OF REVIEW

A city’s sovereign immunity from suit deprives a district court of subject-matter jurisdiction. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). Thus, a city properly raises the issue by a plea to the jurisdiction. See id. A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The plaintiff has the burden of alleging facts to affirmatively demonstrate that the district court has jurisdiction. Miranda, 133 S.W.3d at 226; Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). To prevail on a plea to the jurisdiction, the defendant must show an incurable jurisdictional defect on the face of the pleadings, making it impossible for the plaintiff to amend its petition in order to confer jurisdiction on the district court. MAG-T, L.P. v. Travis Cent. Appraisal Dist, 161 S.W.3d 617, 624 (Tex.App.-Austin 2005, pet. denied).

We review a denial of a plea to the jurisdiction de novo. See Miranda, 133 S.W.3d at 226. We do not look at the merits of the case but construe the pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept the pleadings’ factual allegations as true. Texas Ass’n of Bus., 852 S.W.2d at 446; City of Austin v. Lamas, 160 S.W.3d 97, 100 (Tex.App.-Austin 2004, no pet.). If the pleadings lack sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id.

However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider evidence necessary to resolve the jurisdictional issues, just as the district court is required to do. See Miranda, 133 S.W.3d at 227 (citing Bland, 34 S.W.3d at 555). When the jurisdictional challenge implicates the merits of the plaintiff’s cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists. Id. If the evidence shows a fact question regarding the jurisdictional issue, the district court may not grant the plea to the jurisdiction. Id. at 227-28. If the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the district court rules on the plea to the jurisdiction as a matter of law. Id. at 228.

In Miranda, the supreme court recognized that a trial court’s review of a plea to the jurisdiction challenging the existence of jurisdictional facts “mirrors” that of a traditional summary judgment. Id.; Tex.R. Civ. P. 166a(c). The Miranda court explained, “By requiring the state to meet the summary judgment standard of proof ... we protect the plaintiffs from having to ‘put on their case simply to establish jurisdiction.’ ” Miranda, 133 S.W.3d at 228 (quoting Bland, 34 S.W.3d at 554). Under this procedure, the burden is on the defendant to put forth evidence establishing as a matter of law that the trial court lacks subject-matter jurisdiction. Id.; Tex.R. Civ. P. 166a(c). The burden then shifts to the plaintiff to demonstrate that there is a disputed issue of material fact regarding the jurisdictional issue. Miranda, 133 S.W.3d at 228. The defendant cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a fact issue. See Tex.R. Civ. P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002).

DISCUSSION

The City argues that its sovereign immunity has not been waived under the Act because there is no issue of material fact regarding whether it had actual or constructive knowledge that the offending meter box lid was missing, and it is not reasonably possible to inspect every public-works lid at all times for problems. We first address the threshold question of whether the open meter box constituted a premise or special defect. After determining what kind of defect was involved, we will address whether the City established that it did not know and should not reasonably have known of the condition.

Premise versus Special Defect

Under the Act, a governmental unit’s immunity to suit is waived to the extent that the Act creates liability. Tex. Civ. Prac. & Rem.Code Ann. § 101.025(a) (West 2005); State ex. rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 326 (Tex.2002). A governmental unit may be liable for personal injuries caused by a condition of real property if the governmental unit would, were it a private person, be liable under Texas law. Tex. Civ. Prac. & Rem.Code Ann. § 101.021(West 2005). The governmental unit’s standard of care depends on whether the condition is classified as a premise defect or a special defect. Id. § 101.022; State Dep’t of Highways v. Payne, 838 S.W.2d 235, 237 (Tex.1992).

If a premise defect existed, the City owed Rangel the same duty that a private landowner owes a licensee. See Payne, 838 S.W.2d at 237 (citing Tex. Civ. Prac. & Rem.Code Ann. § 101.022(a)). That duty requires the City to not injure a licensee by willful, wanton or grossly negligent conduct; the City must use ordinary care to warn a licensee, or to make reasonably safe a dangerous condition of which the City is aware of and the licensee is not. See id. If instead the condition was a special defect, the City is treated as a private landowner and Rangel as an invitee. See id. (citing Tex. Civ. Prac. & Rem.Code Ann. § 101.022(b)). With respect to an invitee, the City owes a higher duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the City is or reasonably should be aware. See id.

The determination of whether a condition is a special defect is a question of law for the court to decide. City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex.1997); Payne, 838 S.W.2d at 238. Special defects include “defects such as excavations or obstructions on highways, roads, or streets.” Tex. Civ. Prac. & Rem.Code Ann. § 101.022(b). The statute’s list is non-exclusive, but courts limit special defects to the kind or class of conditions in the statute. See Harris County v. Eaton, 573 S.W.2d 177, 179 (Tex.1978).

Generally, special defects satisfying the statute “present an unexpected and unusual danger to ordinary users of roadways.” Payne, 838 S.W.2d at 238. When determining whether a special defect exists, courts often look to factors such as the size, nature, location and permanence of the condition. See City of Grapevine, 946 S.W.2d at 843 (crumbled and cracked sidewalk steps not special defect); Payne, 838 S.W.2d at 239 (culvert too far from road to be encountered by normal users of roadway); Eaton, 573 S.W.2d at 179-80 (abnormally large hole in highway was special defect); Harris County v. Smoker, 934 S.W.2d 714, 718-19 (Tex.App.-Houston [1st Dist.] 1996, writ denied) (longstanding, routine, or permanent conditions are not special defects).

A special defect need not be on the surface of the road itself. See Payne, 838 S.W.2d at 239 n. 3. However, the condition must be sufficiently “related to the street” to constitute a special defect. See, e.g., City of El Paso v. Chacon, 148 S.W.3d 417, 422-23 (Tex.App.-El Paso 2004, pet. denied) (analyzing status of sidewalk). In Chacon, the court determined a sidewalk was sufficiently related to the street because pedestrians wanting to walk up or down the street were required to use the sidewalk. Id. at 423. In addition, the transportation code defines a sidewalk as “the portion of the street that is between a curb or lateral line of a roadway and the adjacent property line and is intended for pedestrian use.” Tex. Transp. Code Ann. § 541.302(16) (West 2005) (emphasis added); Chacon, 148 S.W.3d at 423.

A special defect does not have to be “specially created” by the governmental unit. See Eaton, 573 S.W.2d at 179 (analyzing former Act). In Eaton, the supreme court noted that the statute governing special defects expressed no such requirement. See id. Using the example of an avalanche blocking a mountain road, the Court explained that “[w]hether created by the governmental unit, by natural forces or by a third persons, the dangerous condition on the roadway is the same.” Id. at 180.

In this case, the plea to the jurisdiction evidence shows that the uncovered meter box on the sidewalk was an eleven inch opening that was located approximately twenty feet from the curb and two feet from the building adjacent to the sidewalk. There is no evidence of who removed the meter’s lid or for how long it had been missing before Rangel was injured.

A normal user of the roadway in this situation would be a pedestrian on the sidewalk, as Rangel was at the time she stepped into the open meter box. An average pedestrian would not expect to encounter a hole of this size on a downtown public sidewalk. Consequently, we hold that the uncovered meter box was a special defect of the kind and class covered by the Act and that it posed an unexpected and unusual danger to ordinary users of the sidewalk. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); Payne, 838 S.W.2d at 238.

Waiver of Sovereign Immunity

The City argues that Rangel does not allege a cause of action’falling within the Act’s waiver of sovereign immunity. Sovereign immunity is waived if Rangel’s pleadings and factual allegations, taken as true, demonstrate that the City may be liable for her injuries. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.021(2), 101.022(b), 101.025; Miranda, 133 S.W.3d at 226. To establish liability for a tort claim arising from a special defect under the Act, a plaintiff must show that (1) a condition of the premises created an unreasonable risk of harm to the invitee; (2) the owner knew or should have known of the condition; (3) the owner failed to exercise ordinary care to protect the invitee from danger; and (4) the owner’s failure was a proximate cause of injury to the invitee. Payne, 838 S.W.2d at 237. The City contends that the evidence in the record demonstrates as a matter of law that it did not know nor should it have known about the open meter box.

There may be a fact issue regarding a city’s actual or constructive knowledge of a special defect if the condition existed for a substantial period of time. See, e.g., Eaton, 573 S.W.2d at 180; Chacon, 148 S.W.3d at 426. The supreme court has recognized that the element of notice can also be satisfied by establishing that the governmental unit created the condition. See Eaton, 573 S.W.2d at 180. For example, a plaintiff may sufficiently allege jurisdiction under the Act by pleading that the city installed a device and then removed it, creating the defect. See. Chacon, 148 S.W.3d at 426.

In its plea to the jurisdiction, the City challenged Rangel’s allegation that it knew or should have known of the offending meter box, an essential element of a tort claim arising from a special defect. In addition, the City submitted evidence that (1) it would be impossible for it to routinely inspect over 300,000 meter boxes in its jurisdiction; (2) it relies on reports by personnel reading meters and on a citizen hotline to learn of problems; (3) it has a standard dispatch time of thirty minutes and a standard repair time of two hours in response to such a report; and (4) it had received no report between 2000-02 of a missing lid in the block where Rangel fell. Rangel did not controvert this evidence.

We recognize that establishing actual knowledge of a missing meter box lid is extremely onerous because of the possibility that the lid was removed by parties other than the City. However, a fact issue regarding whether a governmental entity should have known about the missing lid could exist if a plaintiff alleged facts indicating that the lid had been missing for a long time. Here, Rangel did not allege any facts suggesting that the lid had been missing for a substantial period of time, and the record does not contain any evidence supporting such an allegation. Nor did she allege that the City had constructive knowledge because it created the defect.

Rangel pleaded that the City “knew or reasonably should have known of the condition” and that “a reasonable and careful inspection by [the City] would have revealed the condition.” The attached affidavits of the Rangels establish that a police officer directed them to the sidewalk where the injury occurred and that this police officer was approximately a block away from the open meter box. Mr. Ran-gel detailed how a plastic cone was placed over the box after his wife’s injury and how the hole was first covered with an oversized lid and then covered with the appropriate lid by the next day.

The mere presence of a police officer directing pedestrians away from a blocked street and onto the abutting sidewalk does not impart to the City actual knowledge of the open meter box a block away, nor does it demonstrate that the City reasonably should have known of the condition. Without any other facts connecting the officer to the dangerous condition before Rangel’s injury occurred, the officer’s presence directing pedestrians does not impart notice of the defect to the City. Rangel’s husband’s affidavit about when the lid was replaced after Rangel’s injury adds nothing to the analysis of what the City knew or should have known before Rangel stepped into the hole.

There is no evidence in the record about how long the meter’s lid had been missing, or who or what caused it to go missing. During the festival, and in the days preceding it, the City stated that there had been no service requests or citizen reports concerning meter boxes in the block where the injury occurred. The meter in question was not in service at the time, eliminating regular reports from meter readings. Moreover, in the previous two years there had been only two service requests concerning that block, none of which related to a broken or missing lid.

It is not reasonable to conclude that the City should have been aware of this particular open meter box without any specific reports or a pattern of reports in that area. This is not a situation in which the City should have known about the defect because it created the condition. Moreover, with nothing showing how long the lid had been missing, it is impossible to conclude that inspections at any given interval would have revealed the condition or made it reasonable for the City to have known about it.

Because Rangel failed to controvert the City’s evidence and raise a fact issue regarding the City’s knowledge of the special defect, she has not established a cause of action under the Act and the district court lacked subject-matter jurisdiction.

CONCLUSION

Because Rangel is required to raise a fact issue regarding whether the City knew or should have known about the open meter box in order to establish a waiver of the City’s sovereign immunity under the Act, the district court was without subject-matter jurisdiction. We reverse the denial of the plea to the jurisdiction and dismiss Rangel’s action for lack of subject-matter jurisdiction.

      . The evidence in the record establishes that the uncovered meter box on the sidewalk was an eleven-inch opening that was located twenty feet from the curb and two feet from the building adjacent to the sidewalk.

      . In his dissenting opinion, Justice Scott Bris-ter strongly criticizes the use of pleas to the jurisdiction in governmental immunity cases, especially when "deciding the jurisdictional questions bears a strong resemblance to deciding the merits.” Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 243 (Tex.2004) (Brister, J., dissenting). This is such a case, and an attack on the element of a tort claim would seem to be the subject of a motion for summary judgment rather than a plea to the jurisdiction. Justice Brister advocates the use of special exceptions or motions for summary judgment, rather than pleas to the jurisdiction, to assert governmental immunity because "[i]t would make government entities rather than trial judges decide whether the jurisdictional challenge is directed to the plaintiff’s pleadings or the underlying facts.” Id. at 244. The district court below agreed and suggested that the City should proceed on motion for summary judgment; however, we are bound by the supreme court's opinion in Miranda.


author: BOB PEMBERTON, Justice.

text:
    MID-SOUTH TELECOMMUNICATIONS COMPANY, Appellant, v. Norman K. BEST and Philip W. Faris, Jr., Appellees.
    No. 03-04-00586-CV.
    Court of Appeals of Texas, Austin.
    Jan. 27, 2006.

      W. Michael Stephens, Thomas W. Stephens, Houston, for appellant.
    James G. Ruiz, Winstead Sechrest & Minick, PC, Austin, for appellees.
    Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

This case presents the issue of when a creditor’s claim against a guarantor of a debt accrues. Norman K. Best and Philip W. Faris, Jr. were among the guarantors of a loan from Mid-South Telecommunications Company to VidiMedix Corporation. After VidiMedix defaulted on the loan when it came due on December 31, 1999, Mid-South demanded payment from the guarantors. Eventually, in May 2004, Mid-South sued Best and Faris, asserting a breach-of-contract claim for failure to perform under the Guaranty. Mid-South sought summary judgment on that claim. Best and Faris filed both a response and a cross-motion for summary judgment raising the four-year statute of limitations. See Tex. Civ. Prac. & Rem.Code Ann. § 16.004(a)(3) (West 2002). The district court denied Mid-South’s motion and granted that of Best and Faris, finding that Mid-South’s claims were barred. For the reasons stated below, we will affirm.

BACKGROUND

The summary judgment record reflects the following. On January 27, 1999, Vidi-Medix executed a “Convertible Promissory Note” (the “Note”) in favor of Mid-South for $250,000. The Note was made payable on or before December 31, 1999. Paragraph 3 of the Note, titled “Default,” provided that VidiMedix “will be deemed in default under this Note if [it] fails to meet its payment obligations hereunder.” On the same date, in consideration for the loan and Note, four guarantors, including Faris and Best, executed a guaranty under which

each of the undersigned guarantors ... hereby severally, unconditionally and irrevocably guarantees the prompt and complete payment of all amounts [Vidi-Medix] owes to [Mid-South] under the Note, in strict accordance with its terms.

Each guarantor agreed to be liable for a specified pro-rata share of the unpaid debt and accrued interest. Best and Faris’s shares were 8.1% and 2.36%, respectively. Further, each guarantor explicitly waived any right to require Mid-South to proceed first against VidiMedix, to exhaust any security held by VidiMedix, or to exercise any other remedy Mid-South might possess before seeking recovery from them.

Paragraph 6 of the Guarantee provided: One or more of the following shall constitute an Event of Default under the Guarantyf:] if Guarantor purports to revoke or otherwise avoid any obligation under this Guaranty; or if a Guarantor dies, becomes insolvent, commences or has commenced against him an action under the United States Bankruptcy Code, becomes subject to any criminal prosecution, suffers a judgment or judgments for the payment of money individually or in the aggregate in excess of $100,000, or suffers any portion of his assets to be attached, seized or levied upon; or any circumstances arising causing [Mid-South] in good faith, to become insecure as to the satisfaction of any of Guarantors’ obligations under this Guaranty.

It is undisputed that VidiMedix defaulted on the Note when it became due on December 31, 1999. On April 26, 2000, Michael Stephens, attorney for Mid-South, sent a letter to VidiMedix (through Faris, its President and CEO) demanding payment of all principar and accrued interest due on the Note. On the same day, Stephens also sent letters to both Faris and Best demanding payment of their respective pro-rata percentages of principal and accrued interest for which they were each liable under the Guaranty. Subsequently, on June 15, 2000, Michael L. Patrick, Mid-South’s Executive Vice-President, wrote Faris, as VidiMedix’s president and CEO, “relative to our concerns in how you, on behalf of VidiMedix, have .handled our Note.” Patrick stated that Mid-South had granted a three-month extension of the note’s due date to March 2000, that Vidi-Medix had still not performed, that Faris had subsequently indicated that VidiMedix was experiencing financial difficulties and would likely file for bankruptcy, and that Faris had advis.ed that the guarantors could not honor the Guaranty. Patrick added that Faris had been furtive and misleading in his communications with Mid-South. Patrick suggested that if the guarantors would restructure the Guaranty, “likely Mid-South will consent to converting the Note into eMedSoft.com shares on the same basis as.other Bridge Note-holders.”

The record reflects further negotiations between Mid-South and the guarantors over the ensuing four years. It is undisputed, however, that neither Faris nor Best ever performed their obligations under the Guaranty. Mid-South ultimately filed suit against Faris and Best on May 17, 2004, for breach of contract based on their failure to perform under the Guaranty. Faris and Best answered with a general denial and the affirmative defense that the four-year statute of limitations barred Mid-South’s claims. See Tex. Civ. Prac. & Rem.Code Ann. § 16.004(a)(3) (suit on debt must be filed not later than four years after cause of action accrues).

Mid-South moved for summary judgment as to both liability and damages on its claims against Faris and Best. Faris and Best filed a cross-motion for summary judgment and a response to Mid-South’s motion, relying on their limitations defense and their affidavits that neither ever made payments in accordance with the Guaranty. Best and Faris contended that, as a matter of law, Mid-South’s breach-of-contract claims against them accrued on December 31, 1999, the date that VidiMedix defaulted on the Note. Mid-South countered that, under the terms of the Guaranty, its claims accrued only upon an “Event of Default” defined in paragraph 6 of the agreement and that Best and Faris failed to conclusively establish that such an event occurred earlier than four years before Mid-South filed suit. According to Mid-South, the earliest evidence in the summary judgment record of an Event of Default was its June 15, 2000 letter to Faris, which it characterized as a memorialization of “circumstances arising causing [Mid-South] in good faith, to become insecure as to the satisfaction of any of Guarantors’ obligations under this Guaranty.”

The district court granted Best and Far-is’s cross-motion for summary judgment, finding that Mid-South’s claims were barred, denied Mid-South’s motion, and rendered a take-nothing judgment in favor of Best and Faris. This appeal followed.

DISCUSSION

Mid-South presents a single issue on appeal: whether the district court erred in determining that Mid-South’s breach-of-contract claim accrued more than four years before it filed suit so as to be barred by limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3).

Standard of review

We review the district court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d at 215; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(e); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 (Tex.2004) (citing Knott, 128 S.W.3d at 215-16). When, as here, both parties move for summary judgment and the district court grants one motion and denies the other, we review the summary-judgment evidence presented by both sides, determine all questions pre-sented, and render the judgment the district court should have rendered. Texas Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex.2004); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

Best and Faris’ summary judgment motion

We will consider first whether the district court erred in granting summary judgment for Best and Faris. Best and Faris sought summary judgment on the ground that “[t]he statute of limitations bars Mid-South’s claims.” There is no dispute that this case is governed by the four-year statute of limitations for suits on debts, see Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3), or that this provision required Mid-South to bring its breach-of-contract action no later than four years after the day its cause of action accrued. The parties’ dispute centers on the date on which Mid-South’s cause of action accrued. When a cause of action accrues is a question of law. Moreno v. Sterling Drug, 787 S.W.2d 348, 351 (Tex.1990). A cause of action generally accrues at the time when facts come into existence that authorize a claimant to seek a judicial remedy. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.1990).

Best and Faris argue that Mid-South’s breach-of-contract claim accrued on December 31, 1999, when the Note matured and VidiMedix defaulted on its repayment obligation. Best and Faris do not purport to adopt the date at which Mid-South’s claim under the Note against VidiMedix accrued, nor are they attempting to incorporate any limitations defense that VidiMedix might have asserted against such a claim. See, e.g., Beddall v. Reader’s Wholesale Distribs., Inc., 408 S.W.2d 237, 240 (Tex.Civ.App.-Austin 1966, no writ) (where guarantor can be sued independently from principal obligor, guarantor cannot invoke principal obligor’s limitation’s defense); see also Willis v. Chowning, 90 Tex. 617, 40 S.W. 395, 396-97 (1897) (in cases where surety could be sued without joining principal, surety could not assert maker’s limitations defense on note); Western Casket Co. v. Estrada, 116 S.W. 113, 113-14 (Tex.Civ.App.-El Paso 1909, no writ) (applying principles announced in Willis to guarantors). Instead, to determine when Mid-South’s claim against them accrued, Best and Faris recognize that we must look to the source of their obligations to Mid-South — the terms of the guarantee. See Vastine v. Bank of Dallas, 808 S.W.2d 463, 464 (Tex.1991); Wiman v. Tomaszewicz, 877 S.W.2d 1, 6 (Tex.App.-Dallas 1994, no writ).

We construe a guaranty as any other contract. The construction of a contract is a question of law for the court. Buys v. Buys, 924 S.W.2d 369, 372 (Tex.1996). We examine the entire document and consider each part with every other part so that the effect and meaning of one part on any other part may be determined. Heritage Res. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996); Steeger v. Beard Drilling, Inc., 371 S.W.2d 684, 688 (Tex.1963). We interpret the contract by ascertaining the true objective intentions of the parties, based on the contract language. SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex.2005). We presume that the parties to a contract intend every clause to have some effect. Heritage Res., 939 S.W.2d at 121; Ogden v. Dickinson State Bank, 662 S.W.2d 330, 331 (Tex.1983). We give words their plain, common, or generally accepted meaning unless the instrument shows that the parties used them in a technical or different sense. Heritage Res., 939 S.W.2d at 121.

Under the Guaranty, Best and Faris “unconditionally and irrevocably” guaranteed “the prompt and complete payment” of VidiMedix’s obligations under the Note “in strict accordance with its terms.” This type of language tends to denote an absolute guaranty, or one made contingent solely upon the default of the principal obligor. See Universal Metals & Mach, Inc. v. Bohart, 539 S.W.2d 874, 877-78 (Tex.1976). Under an absolute guaranty, a guarantor is primarily liable on the underlying obligation; thus, “[t]he terms of the note must be examined to ascertain the guarantor’s obligations under his unconditional guarantee, for by that guaranty he agrees to pay the instrument according to its terms if it is not paid when due.” Hopkins v. First Nat’l Bank at Brownsville, 551 S.W.2d 343, 345 (Tex.1977); see Reece v. First State Bank of Denton, 566 S.W.2d 296, 297 (Tex.1978).

Each guarantor also explicitly waived “all presentments, demands for performance, notices of performance, protest, notices of protest, notices of dishonor, and notices of acceptance of the Guaranty and its existence, creation, or incurring of new or additional indebtedness” and any right to require Mid-South to proceed against VidiMedix, to exhaust any security interest held by VidiMedix, or to seek any other remedy. See, e.g., Ocean Transp., Inc. v. Greycas, Inc., 878 S.W.2d 256, 267-68 (Tex.App.-Corpus Christi 1994, writ denied). Thus, demand was not an integral part of the cause of action or a condition precedent to Mid-South’s right to enforce the Guaranty. See id.

Paragraph 6 defines an “Event of Default” under the Guaranty: if a guarantor “purports to revoke or otherwise avoid any obligation under this Guaranty,” dies, becomes insolvent, commences bankruptcy or has bankruptcy commenced against him, is criminally prosecuted, incurs a money judgment greater than $100,000, has assets attached, seized, or levied upon; or “any circumstances aris[e] causing [Mid-South] in good faith, to become insecure as to the satisfaction of any of Guarantors’ obligations under this Guaranty.” Construing paragraph 6 in the context of the Guaranty as a whole, see Columbia Gas Transmission Corp., 940 S.W.2d at 589, we find that it operates to identify acts and omissions that constitute a failure to perform under the Guaranty, but it does not limit the central promise that Best and Faris made concerning “the prompt and complete payment of all amounts that Borrower owes [Mid-South] under the Note, in strict accordance of its terms.” In other words, Best and Faris made themselves bound, when guaranteeing the loan, to the payment obligations of the Note. Paragraph 6, then,' adds events that could constitute an event of default on the part of a guarantor that do not arise from the terms of the Note itself. In the end, the guarantors had a payment obligation immediately upon VidiMedix’s default and, from that point forward, were in breach of that obligation as long as they failed to perform. Cf. Ocean Transp., 878 S.W.2d at 268.

All parties agree that VidiMedix defaulted on the Note on December 31, 1999. Best and Faris became obligated to make payment under the terms of their guaranty agreements on that date. Thus, Mid-South’s claim against Best and Faris accrued on December 31, 1999. Other than its reliance on paragraph 6, Mid-South did not present any grounds for finding a later accrual date. Accordingly, the district court did not err in granting summary judgment for Best and Faris and denying Mid-South’s motion.

CONCLUSION

We affirm the district court’s grant of summary judgment in favor of Best and Faris.

      . The record indicates that each guarantor was a principal of VidiMedix. Faris was the company's president and CEO.

      . The letter indicates that Stephens also enclosed a copy of the demand letter he had sent to VidiMedix;

      . Alternatively, Mid-South suggested that limitations did not begin to run until it filed its petition on May 17, 2004.

        . Best and Faris also asserted as a summary judgment ground that a contractual waiver of limitations within the Guaranty was void and unenforceable. Mid-South did not dispute this proposition in the district court, nor has it attempted to invoke the waiver on appeal.