author: GEORGE C. HANKS, JR., Justice.

text:
    CENTERPOINT ENERGY HOUSTON ELECTRIC, L.L.P., Appellant, v. The OLD TJC COMPANY, Appellee.
    No. 01-03-00158-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 5, 2005.
    Rehearing Overruled Aug. 8, 2005.

      J. Mark Breeding, Andrews & Kurth, Charles Black McFarland, Vinson & El-kins, L.L.P., Houston, TX, Richard L. Tate, Tate & Associates, Richmond, TX, H. Dixon Montague, Vinson & Elkins, Houston, TX, for Appellant.
    Alan Brandt Daughtry, Houston, TX, For Appellee.
    Panel consists of Justices TAFT, JENNINGS, and HANKS.
   OPINION

GEORGE C. HANKS, JR., Justice.

This appeal arises out of a dispute regarding the ownership of a landlocked 60.724-acre tract of undeveloped land located in the Brazos River flood way in southeastern Fort Bend County, Texas. Appellant, CenterPoint Energy Houston Electric, LLC, as successor to Reliant Energy, Incorporated, formerly Houston Lighting & Power Company (“HL & P”), appeals the Agreed Final Judgment Nunc Pro Tunc, in which the trial court denied HL & P’s motion for summary judgment seeking fee simple title to the property and granted the motion for summary judgment filed by the appellee, the Old TJC Company, formerly The Johnson Company (“the Old TJC”). In six issues, HL & P contends that the trial court erred (1) in holding that, six years after the Deed was drafted, the Old TJC still owned an interest in the property; (2) in implicitly holding that the interest that the Old TJC reserved in the Special Warranty Deed was a conditional limitation and not a condition subsequent; (3) in holding that the “mere conveyance” of the property to HL & P triggered the Old TJC’s claimed interest in the property; (4) in holding that the property “automatically” and immediately reverted to the Old TJC; (5) in denying HL & P’s motion for summary judgment; and (6) in granting the Old TJC’s cross-motion for summary judgment. We reverse and render.

Background

On April 21, 1986, the Old TJC executed a Special Warranty Deed (“Original Deed”) in which it “GRANTED, SOLD, and CONVEYED” 60.724 acres of land to Fort Bend County. The deed contained the following restriction:

It is expressly provided, agreed and understood that the herein described and conveyed property shall be used exclusively by [Fort Bend County] for purposes of operating and maintaining the same as a public park for recreational purposes only, and in the event that [Fort Bend County] should for any reason fail or cease to use the herein described property as a public park for more than ninety (90) days, then title to the herein described property shall, on the ninety-first (91st) day following such cessation or abandonment of use, revert to and become the property of [the Old TJC], its successors or assigns, and [Fort Bend County] agrees to execute such deeds or other instruments as may be necessary or appropriate to evidence such reversion of title and to convey the property herein described to [the Old TJC], its successors or assigns.
The restriction on the use of the herein described property as a public park, and the provisions hereof relating to the automatic reversion of title to [the Old TJC] shall remain in full force and effect from the date of execution hereof until the date that is twenty one (21) years after the death of all of the now living decendants [sic] of Ronald Reagan, the president of the United States.

(Emphasis added.) Following the execution of this deed, the Old TJC retained only a reversionary interest in the subject property.

On June 25, 1990, the Old TJC and Fort Bend County executed a “Correction Deed.” In its recitals, the Correction Deed referenced the Original Deed and set forth the metes and bounds description of the property, but it did not reference the use restriction contained in the Original Deed. The Correction Deed stated in pertinent part that:

WHEREAS, by deed dated April 21, 1986, (Original Deed), which appears of record under County Clerk File No. 8667669 in the deed records of Fort Bend County, Texas, THE JOHNSON CORPORATION, a Texas corporation, (“Grantor”), GRANTED, SOLD and CONVEYED unto FORT BEND COUNTY, TEXAS, a political subdivision of the State of Texas (“Grantee”) all of Grantor’s rights, title and interest in and to that certain tract of land therein described as follows, ....

The Correction Deed also noted that the metes and bounds description contained in the Original Deed was incorrect and that the parties desired to correct this in the Correction Deed.

WHEREAS, said property description contained in the original deed is incorrect in that the fifth paragraph recites, “THENCE NORTH 86 DEGREES 08 MINUTES, 59 SECOND ...” and in that said fifth paragraph should recite, “THENCE SOUTH 86 DEGREES 08 MINUTES, 59 SECONDS ....”; and, WHEREAS, Grantor and Grantee desire to correct the property description contained in the Original Deed so that the public records will show that FORT BEND COUNTY’S rights in and to the deeded lands were intended to be, and are in and to the tract of land hereinafter correctly described; ....

The Correction Deed proceeded to grant all of the Old TJC’s rights, title and interest in the property to Fort Bend County.

KNOW ALL MEN BY THESE PRESENTS:
That THE JOHNSON CORPORATION, a Texas corporation (“Grantor”) for and in the consideration of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration, the sufficiency of which is hereby acknowledged and confessed have GRANTED, SOLD AND CONVEYED, and by these presents do GRANT, SELL and CONVEY unto FORT BEND COUNTY, TEXAS, a political subdivision of the State of Texas (“Grantee”), all of Grantor’s rights, title, interest, claim and demand in and to that certain tract of land situated in said County of Fort Bend and described as follows: ....

The Correction Deed also contained an habendum clause, which stated:

TO HAVE AND TO HOLD the above described rights, title, interest, claim, and demand, to the said GRANTEE [Fort Bend County], its heirs and assigns forever, so that neither the GRANTOR [the Old TJC], its legal representatives or assigns shall have any right or title to or interest in such property, premises, or appurtenances, or any part thereof, at any time hereafter.

The Correction Deed was “EXECUTED, ACCEPTED AND EFFECTIVE for ah purposes as of April 21,1986 .... ”

On February 12, 1996, HL & P sued Fort Bend County and the Old TJC in an attempt to seek “declaration of the property interests” owned by the County and the Old TJC resulting from the 1986 and 1990 deeds. It also attempted to establish a “claim of a property interest as to a portion of the land in controversy and for condemnation thereof in favor of HL & P.” In its petition, HL & P explained that it was in the process of establishing a railway or railroad spur terminating at one of its electric generation plants in Fort Bend County. In connection with the rail spur project, HL & P determined that it was necessary to excavate soil and clay from areas near to the rail spur easement in order to construct the railroad. The property that was the subject of the Original and Correction Deeds was ideally suited for the excavation project.

In response, among other things, the Old TJC filed a plea to the jurisdiction in which it asserted that, because HL & P had no ownership interest in the property, the case should be dismissed. Subject to its other pleadings, the Old TJC filed counterclaims seeking, among other things, declaratory relief determining ownership of the property.

The next week, HL & P nonsuited all of its “claims stated in its Original Petition.” On the same day, HL & P bought the property from Fort Bend County. After it purchased the property from Fort Bend County, HL & P filed a new petition that, among other things, responded to the Old TJC’s jurisdictional challenge. Both parties filed competing motions for summary judgment.

In an Agreed Final Judgment Nunc Pro Tunc, the trial court determined that, “as of April 12, 1996, Old TJC owned a rever-sionary interest in the 60.724-acre tract .... The Court also determined that Old TJC’s reversionary interest was triggered by Fort Bend County on April 12, 1996, thereby causing title to the 60.724-acre tract to revert automatically to Old TJC on that date.” The claims regarding the title to the property were severed, and the order was made final and appealable.

Summary Judgment Standard of Review

In a traditional summary judgment, the movant bears the burden of proof, and all doubts concerning the existence of a genuine issue of fact must be resolved against the movant. Tex.R. CIV. P. 166a(c); Roskey v. Tex. Health Facilities Comm’n, 639 S.W.2d 302, 303 (Tex.1982). Once the movant proves a right to a summary judgment, the burden shifts to the nonmovant to present evidence creating genuine issues of material fact. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

When, as here, both sides move for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment proof presented by both sides and determine all questions presented. See Comm’rs Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997); Admiral Ins. Co. v. Trident NGL, Inc., 988 S.W.2d 451, 453 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). If we find error, we must render the judgment the trial court should have entered. Agan, 940 S.W.2d at 81.

Deed Construction

In this case, the resolution of the competing motions for summary judgment turns on the construction of the language of the Original and Correction Deeds. The construction of an unambiguous contract is a question of law, which is reviewed de novo. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650-51 (Tex.1999). It is a well-settled rule of law that, in the construction of written instruments, all instruments in a chain of title, when referred to in a deed or any instrument conveying an interest in real property, will be read into it. Dixon v. Amoco Prod. Co., 150 S.W.3d 191, 194 (Tex.App.-Tyler 2004, no pet.); Harris v. Windsor, 279 S.W.2d 648, 649 (Tex.App.-Texarkana 1955), aff'd, 156 Tex. 324, 294 S.W.2d 798 (1956).

Our primary concern in construing a deed is to ascertain the true intent of the parties as expressed in the instrument. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). To determine the parties’ intent, extrinsic evidence is admissible only when an ambiguity appears on the face of the deed, in a suit for reformation, or when a party alleges fraud, accident or mistake. See Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669, 673 (1959); Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563, 564 (1945). In this case, because the Old TJC did not seek reformation and also did not allege fraud, accident, or mistake, there must be an ambiguity in the deed before we may consider affidavits and correspondence attached as summary judgment evidence. See Rutherford v. Randal, 593 S.W.2d 949, 953 (Tex.1980). Whether a contract is ambiguous is also a question of law. See Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). To determine whether a contract is ambiguous, we look at the agreement as a whole in light of the circumstances present when the parties entered into the contract. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). We examine and consider the entire writing in an effort to harmonize and to give effect to all the provisions of the contract so that none will be rendered meaningless. Forbau, 876 S.W.2d at 133-34. No single provision will control; rather, all provisions must be considered with reference to the whole instrument. Id.

If a written contract is worded in such a way that it can be given a definite or certain legal meaning, then the contract is not ambiguous. CBI Indus., 907 S.W.2d at 520. A contract is ambiguous only if its meaning is uncertain or if it is subject to two or more reasonable interpretations. Id. An ambiguity does not arise simply because the parties advance conflicting interpretations of the contract. Forbau, 876 S.W.2d at 134.

Moreover, we may not consider extrinsic evidence to contradict or to vary the meaning of unambiguous language in a written contract in order to create an ambiguity. Sears, Roebuck & Co. v. Commercial Union Ins. Corp., 982 S.W.2d 151, 154 (Tex.App.-Houston [1st Dist.] 1998, no pet.). A court may consider the parties’ interpretations of the contract through extrinsic or parol evidence only after a contract is first determined to be ambiguous. See Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 283 (Tex.1996). An “ambiguity must become evident when the contract is read in context of the surrounding circumstances, not after parol evidence of intent is admitted to create an ambiguity.” CBI Indus., 907 S.W.2d at 521.

An ambiguity in a contract may be said to be “patent” or “latent.” Id. at 520. A patent ambiguity is evident on the face of the contract. Id. A latent ambiguity arises when a contract that is unambiguous on its face is applied to the subject matter with which it deals and an ambiguity appears by reason of some collateral matter. Id. If a latent ambiguity arises from this application, parol evidence is admissible for the purpose of ascertaining the true intention of the parties as expressed in the agreement. Id. When a latent ambiguity arises, the focus shifts to the facts and circumstances under which the agreement was made. GTE Mobilnet of South Tex. Ltd. P’ship v. Telecell Cellular, Inc., 955 S.W.2d 286, 290 (Tex.App.-Houston [1st Dist.] 1997, pet. denied). A latent ambiguity exists when the contract appears to convey a sensible meaning on its face, but it cannot be carried out without further clarification. See CBI Indus., 907 S.W.2d at 520; Eckels v. Davis, 111 S.W.3d 687, 695 (Tex.App.-Fort Worth 2003, pet. denied).

Old TJC’s Cross-Motion for Partial Summary Judgment

In its Cross-Motion for Partial Summary Judgment, the Old TJC argued that HL & P’s motion for summary judgment was without merit because, “based on the affidavits attached” to the motion, the facts “indisputably” established (1) that the 1990 Correction Deed was not intended to, nor did it, affect the Old TJC’s reverter interest contained in the 1986 Deed because it “clearly intended the 1990 Correction Deed only to correct the metes and bounds description in the 1986 Special Warranty Deed” and the latent ambiguity in the Correction Deed allowed the introduction of extrinsic evidence; and (2) that Fort Bend County, by its actions on April 12, 1996, triggered the reverter provision in the 1986 Deed causing title to the 60.724 acres to revert automatically to the Old TJC.

Construction of the Correction Deed

To construe the rights of the Old TJC and Fort Bend County under the Correction Deed, we must first read it together with the Original Deed to which it specifically references. See Dixon, 150 S.W.3d at 194; Harris, 279 S.W.2d at 649. It is well established under Texas law that a party cannot convey to another a greater interest in a property than it possesses. See Morris v. Eddins, 18 Tex.Civ.App. 38, 44 S.W. 203, 204 (1898).

Pursuant to the plain language of the Original Deed, the Old TJC granted all of its “rights, title, and interest” in the subject property to Fort Bend County and only retained a reversionary interest in the property. The Old TJC’s subsequent grant of all of its “rights, title, and interest” to the property in the Correction Deed could only pertain to its reversionary interest, nothing more. Accordingly, following the execution of the Correction Deed, the Old TJC retained no interest in the subject property.

In its Cross-Motion for Summary Judgment, the Old TJC attempted to introduce extrinsic evidence that would prove otherwise and argued that “any latent ambiguity in the 1990 Correction Deed allows for the introduction of extrinsic evidence of the grantor’s intent to retain a reverter interest in the property.” The Old TJC asserts that there is a latent ambiguity in the Deeds because the 1990 Correction Deed “incorrectly states that the 1986 Special Warranty Deed conveyed ‘all of Grantor’s rights, title, and interest in and to’ the Property, while, on the face of the 1986 Deed, it stated that the grantor retained a reverter interest.”

However, our review of a latent-ambiguity argument does not hinge on whether the deed “incorrectly states” a conveyance. Rather, we must determine whether the deed, as it appears, can be carried out without further clarification. See CBI Indus., 907 S.W.2d at 520; Eckels, 111 S.W.3d at 695. Furthermore, in construing the language of deeds, we do not use parol evidence to create ambiguity when none exists. Commercial Union Ins. Corp., 982 S.W.2d at 154.

Here, the Correction Deed can be performed as written and does not require further clarification. When both deeds are read together, the Correction Deed’s recital language cannot be logically interpreted as implying that the Original Deed did not contain a use restriction. Accordingly, we hold that there is no latent ambiguity in the 1990 Correction Deed and, because the Old TJC did not plead fraud, accident, or mistake, the trial court should not have considered extrinsic evidence in its contrary determination below. Based on the unambiguous language of the Deeds, following the execution of the Correction Deed, the Old TJC retained no interest in the subject property.

Legal Effect of Correction Deed

In its cross-motion for partial summary judgment, the Old TJC asserted that the Correction Deed “was entitled a ‘Correction Deed’ for a reason, and its recitals clearly indicate that its sole intent was to do nothing other than that which its title suggests — to correct the property description — and not to convey a greater interest in the property.” In support of this position, the Old TJC contended that its case was “indistinguishable” from the facts in Parker v. McKinnon, 353 S.W.2d 954 (Tex.App.-Amarillo 1962, writ ref'd n.r.e.).

In Parker, which concerned an action in trespass to try title to an undivided one-half mineral interest in a section of land, all parties claimed under a common source of title. Id. at 954. Parker claimed title through a correction deed, and McKinnon claimed title through a predecessor title. Id. at 954-55. The correction deed neglected to mention the division of the mineral interest in the property that had previously been divided in the original deed. Id. at 955. Neither party contended that the correction deed was ambiguous, and the Amarillo Court of Appeals held that, when read together with the original deed, the correction deed by its own terms was executed “for the purpose of correcting an error in a former deed.” Id. at 956. The court concluded that “the correction deed is looked to in aid of the description given in the prior deed, and as between the parties thereto the second deed relates back and becomes effective as of the date of the first deed.” Id.

Here, unlike in Parker, the Correction Deed addressed more than “correcting an error.” It stated “WHEREAS, Grantor [the TJC] and Grantee [Fort Bend County] desire to correct the property description contained in the Original Deed so that the public records will show that FORT BEND COUNTY’S rights in and to the deeded lands were and intended to be, and are in and to the tract of land hereinafter correctly described; .... ” Following this statement is essentially a rewording of the entire deed. There is not simply a correct statement of the metes and bounds description of the property. In fact, immediately after the revised metes and bounds description of the property, the correction deed included a new habendum clause that stated

TO HAVE AND TO HOLD the above described rights, title, interest, claim, and demand, to the said GRANTEE [Fort Bend County], its heirs and assigns forever, so that neither the GRANTOR [the Old TJC], its legal representatives or assigns shall have any right or title to or interest in such property, premises, or appurtenances, or any party thereof, at any time hereafter.

The correction deed in Parker is substantially different from the Correction Deed before us because, here, both the granting clause and the habendum clause express a clear intent that the Old TJC be divested of all of its claim to the property, including the interest that had been reserved in the 1986 Deed. Entitling the 1990 Deed a “Correction Deed” neither rendered these provisions meaningless nor altered the principle that the meaning of the instrument must be determined from review of the deed’s four corners and application of the rules of construction. Regardless of what they meant to say, effect must be given to what the parties did say in the 1990 Deed. Furthermore, Parker does not stand for the proposition that “correction deeds” can be used only to correct a property’s description. The court simply held that, in Parker, the “language clearly indicates the correction deed was simply intended to correct the description of the land conveyed in the prior deed.” Id. That is not the case with the Correction Deed before us.

The Old TJC also relies on Joe T. Garcia’s Enterprises v. Snadon, 751 S.W.2d 914 (Tex.App.-Dallas 1988, writ denied) to support its position that a correction deed can correct only a property description. In Snadon, the case related to restrictive covenants on a 2.3-acre tract of land originally owned by Snadon in Dallas County. Id. at 915. Snadon conveyed his property to King and Simpson free of any restrictive covenants. Id. Two months later, a “Correction Warranty Deed,” signed only by Snadon, was filed in the deed records in Dallas County. Id. The correction deed was to correct an “erroneously omitted” restriction that the land be used for a “modern first class restaurant.” Id. Through a series of transactions, Garcia, who purchased the property from King and Simpson “subject to the restrictive covenants,” filed an action for declaratory judgment that the restrictive covenants on the land were invalid. Id. at 915-16. The Dallas Court of Appeals reversed the trial court and held that “a correction deed is executed and recorded for the unique purpose of correcting a scrivener’s error in the description of the property.” Id. at 916. We disagree with the Dallas Court of Appeals’ narrow reading of this term, and we do not read the cases cited by that court to support this proposition.

Contrary to the cases cited by the Old TJC, in Halbert v. Green, 156 Tex. 223, 293 S.W.2d 848 (1956), the Texas Supreme Court addressed a case in which a “correction deed” appeared “to have been to change the nature of the estate granted from an interest in the minerals to an interest in royalty, to change the fractional interest ... to the oil and gas ... and to cut down the interest from one in perpetuity to a term interest....” Id. at 851. The “correction deed ... changed completely the nature of the estate conveyed to and owned by the respondents.” Id. The Texas Supreme Court never mentioned the significance of the title of the deed. There is no declaration that “a correction deed is executed and recorded for the unique purpose of correcting a scrivener’s error in the description of the property.” Therefore, we refuse to follow Snadon, and we hold that a correction deed can do more than simply correct a scrivener’s error in the description of the property.

HL & P’s Motion for Summary Judgment

In its motion for summary judgment, HL & P asked the trial court to declare that the Old TJC owned no compensable interest in the property that HL & P purchased from Fort Bend County. Specifically, it asserted that (1) the effect of the 1990 deed was, as stated in the deed, to grant “all of [the Old TJC’s] rights, title, interest, claim and demand” to the property “so that neither [the Old TJC], its legal representatives or assigns shall have any right or title or interest in such property ... at any time hereafter”; (2) the combined effect of the 1986 and 1990 deeds was to grant fee simple title to the surface estate of the property to Fort Bend County, effective as of April 21, 1986; the limitation language in the 1986 deed was “relieved by the retroactive grant and habendum language in the second deed”; and (3) HL & P purchased the land owned by Fort Bend County, and HL & P took it free of any claims by the Old TJC. For the reasons set out above, we agree with HL & P’s position.

After a de novo review of the 1986 Deed and 1990 Correction Deed, we hold that, because the Deeds are not ambiguous, and because the Old TJC did not plead fraud, accident, or mistake, we cannot consider extrinsic evidence. We hold that the 1990 Correction Deed created an unrestricted conveyance to Fort Bend County and the trial court erred in granting the Old TJC’s motion for summary judgment and in denying HL & P’s motion for summary judgment.

We sustain HL & P’s first, fifth, and sixth issues.

Conclusion

Having sustained HL & P’s first, fifth, and sixth issues and having held that the trial court erred in granting the Old TJC’s summary judgment motion and in denying HL <& P’s summary judgment motion, we need not address HL & P’s second, third, fourth issues addressing the reversionary interest. We reverse the trial court’s judgment and render judgment in favor of HL & P.

      . Fort Bend County nonsuited the counterclaims that it had filed, thus removing itself from this case entirely.

        . The nunc pro tunc resulted from some "incorrect or marred exhibits" that were attached to the trial court’s final judgment.

      . The Old TJC never pleaded mutual mistake. Although it alluded to mistake in its "Factual Statement” portion of its Fourth Amended Counterclaim, the Old TJC never pleaded "mistake” in its answer. Rule 94 requires the parties to specifically plead matters that are affirmative defenses to matters pleaded in a pleading filed by an opponent. First Bank of Deer Park v. Harris County, 804 S.W.2d 588, 593 (Tex.App.-Houston [1st Dist.] 1991, no writ). By case law, mutual mistake has been identified as an affirmative defense that must also be pled. See Durham v. Uvalde Rock Asphalt Co., 599 S.W.2d 866, 869 (Tex.App.-San Antonio 1980, no writ).

      . For example, if a contract called for goods to be delivered to “the green house on Pecan Street,” and there were in fact two green houses on the street, it would be latently ambiguous. Id. at n. 4.

      . As summary judgment evidence, the Old TJC attached six affidavits and multiple letters from those involved in the drafting and execution of the two Deeds.

      . Similarly, the Old TJC’s reliance on the holdings in Borden v. Hall, 255 S.W.2d 920 (Tex.Civ.App.-Beaumont 1951, writ ref'd n.r.e.) and DeWitt Cty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96 (Tex.1999) for this same proposition is misplaced. In both of those cases, the correction deeds, unlike this case, did not go on to include extensive unambiguous language conveying rights, title or interest in the property or including an habendum clause.

      . The Snadon court cited the following cases for the proposition that correction deeds can correct only properly description errors: Wilson v. Dearing, Inc., 415 S.W.2d 475 (Tex.App.-Eastland 1967, no writ) (correction deed dealt only with property description, but case does not restrict correction deeds to such); Parker, 353 S.W.2d at 955 (same); Fenn v. Boxwell, 312 S.W.2d 536 (Tex.App.-Amarillo 1958, writ ref'd n.r.e.) (same).


source: Caselaw Access Project

author: JANE BLAND, Justice.

license: Public Domain

text:
    Samuel Olglkan OGUNTOPE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00205-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 5, 2005.

      Charles H. Portz, Houston, TX, for Appellant.
    Eric Kugler, Assistant District Attorney of Harris County, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
   OPINION

JANE BLAND, Justice.

Appellant Samuel Oguntope waived his right against self-incrimination, his right to trial by jury, and his right to confrontation. He judicially confessed to the State’s allegations that he committed the misdemeanor offense of driving while intoxicated (“DWI”). After finding true an enhancement paragraph alleging a prior felony, the trial court assessed punishment at ten days’ confinement, suspended his driver’s license for one year, and entered an order requiring Oguntope to install an ignition interlock restriction device in his vehicle.

Before entering his plea of guilty, Ogun-tope moved to suppress the results of his field sobriety test. The trial court denied the motion. After entry of the plea, he filed a motion for new trial and to withdraw his plea. The trial court denied the motion. On appeal, Oguntope contends the trial court erred in denying his motion to suppress the results of his field sobriety test because his agreement to perform the test improperly was coerced. We conclude that the trial court did not err and therefore affirm.

Facts and Procedural History

On December 12, 2003, a Texas Department of Public Safety trooper pulled over Oguntope’s vehicle at approximately 11:45 p.m. The trooper detected an alcoholic odor on Oguntope’s breath, and Oguntope admitted that he had consumed one beer. The trooper instructed Oguntope to follow his finger with his eyes. Oguntope refused. The trooper then requested that he submit to a breathalyzer test. Oguntope did not blow hard enough into the tube to successfully complete the test. The trooper told Oguntope that, “If you can’t do what I’m asking you to do, then I’m going to take you to jail for DWI.” Oguntope then performed several field sobriety tests, including the horizontal gaze nystagmus (“HGN”) test, straight line walk test, and a stand on one foot test. Oguntope failed the field sobriety tests, and the trooper arrested him for DWI. The trooper told Oguntope that he would give him another chance to take a breath test at the jail, and if he blew .08 or less, he would let the district attorney decide whether to keep him in jail. The trooper denied Ogun-tope’s requests to allow him to repeat the field sobriety tests. The trooper read Oguntope the statutory warnings and asked him whether he would perform the breathalyzer test. Oguntope answered both yes and no, which the trooper interpreted as a no.

At trial, Oguntope moved to suppress evidence of the field sobriety tests. After watching the videotaped footage of the field sobriety tests and hearing oral argument, the trial court granted the motion in part and denied it in part. The court agreed to suppress (1) any breathalyzer results, although the trooper gathered no results because Oguntope did not successfully blow into the tube, and (2) the trooper’s statement concerning the district attorney. The trial court refused to suppress the results of the field sobriety tests. Oguntope then pleaded guilty to DWI.

Standard of Review

In reviewing a trial court’s ruling on a motion to suppress, we apply the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We defer to a trial court’s determination of historical facts, and review de novo the trial court’s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000) (citing Guzman, 955 S.W.2d at 88-89). If the issue involves the credibility of a witness, we defer to a trial court’s ruling, as a trial court is in a better position to evaluate the credibility of witnesses before it. Guzman, 955 S.W.2d at 87, 89. If the trial court is called upon to apply the law to the facts, and the ultimate resolution of the issue does not turn on an evaluation of the credibility and demeanor of a witness, we review that issue de novo. Id. at 89.

Motion to Suppress

Oguntope contends the trial court erred in refusing to suppress the results of his field sobriety tests. Specifically, Ogun-tope contends the trooper’s comment that he would arrest him if he refused to perform the HGN test constitutes coercion that renders involuntary his agreement to take the test. Oguntope relies on the “due process clause of the federal Constitution” and the Texas Court of Criminal Appeal’s decision in Erdman v. State, 861 S.W.2d 890 (Tex.Crim.App.1993).

Oguntope observes that it is unlawful for “the police to coerce a defendant into producing evidence,” citing Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). In Rogers, the United States Supreme Court held that “convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand.” 365 U.S. at 540, 81 S.Ct. at 739. Although Rogers holds that the State may not coerce a confession from a defendant, its reasoning does not preclude the State from obtaining evidence from a defendant against his or her will. 365 U.S. at 540-42, 81 S.Ct. at 739-40 (emphasis added). Contrary to Oguntope’s contention, the Court of Criminal Appeals has held that authorities may compel a defendant to submit physical evidence of intoxication. Jones v. State, 795 S.W.2d 171, 175 (Tex.Crim.App.1990); see also Thomas v. State, 723 S.W.2d 696, 704-05 (Tex.Crim.App.1986); Martin v. State, 97 S.W.3d 718, 720 (Tex.App.-Waco 2003, pet. ref'd).

Unlike a confession, the performance of a field sobriety test is not testimonial in nature, but rather is physical evidence of a motorist’s mental and physical faculties. Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App.1997); Jones, 795 S.W.2d at 175; see also Shpikula v. State, 68 S.W.3d 212, 219 n. 5 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (citing Youens v. State, 988 S.W.2d 404, 407 (Tex.App.-Houston [1st Dist.] 1999, no pet.)). In particular, the Texas Court of Criminal Appeals has reasoned that field sobriety tests are not testimonial because their results do not create “an express or implied assertion of fact or belief.” Gassaway, 957 S.W.2d at 51. Accordingly, the trooper’s statement that Oguntope would be subject to arrest if he refused to perform the field sobriety tests does not violate Oguntope’s constitutional right to due process. See Martin, 97 S.W.3d at 720.

In addition, Oguntope relies on Erdman to contend that the trooper’s coercive statements render the field sobriety tests inadmissible as a matter of Texas law. 861 S.W.2d at 894. In Erdman, the Texas Court of Criminal Appeals held that, if an officer fails to recite the proper statutory warning to the defendant before a breathalyzer or blood alcohol concentration test, then the defendant’s consent is involuntary as a matter of law. Id. at 893-94. According to statute, however, officers may only conduct breathalyzer or blood alcohol tests after a suspect has heard the statutory warnings of the legal consequences of consenting or refusing to consent, and has given consent. Erdman, 861 S.W.2d at 893 (construing Tex.Rev.Civ. Stat. Ann. art. 6701/-5, § 2 (Vernon 1977), now codified at Tex. Transp. Code Ann. § 724.012, .013, .015 (Vernon 1999 & Supp. 2004-2005)) (emphasis added). These required statutory warnings do not extend to field sobriety tests. In Erdman, the Court held that the officer had not provided the appropriate warnings. 861 S.W.2d at 893-94. Thus, the breathalyzer evidence was inadmissible under article 38.23, which prohibits the admission of evidence obtained in violation of any provisions of Texas law. See id.; Tex.Code CRIM. Prog. Ann. art. 38.23 (Vernon 1979 & Supp.2004-2005).

Without any similar statute requiring warnings before consenting to perform a field sobriety test, the trooper’s statements did not violate Texas law so as to taint the admission of the results of the tests. See Tex.Code Crim. PRoc. Ann. art 38.23. We therefore hold that the trial court did not err in denying the motion to suppress on this ground.

Conclusion

We conclude that (1) the trooper’s statement that he would arrest Oguntope if he refused to perform the field sobriety test does not violate constitutional due process requirements, because the tests are not testimonial in nature, and (2) the trooper’s comments to Oguntope do not violate Texas Transportation Code sections 724.013 and 724.015, as those sections apply only to breathalyzer and blood alcohol testing. We therefore affirm the trial court’s denial of Oguntope’s motion to suppress.

      . Oguntope appealed his driver’s license suspension to an administrative law judge ("ALT”). The ALJ found that the State’s evidence was insufficient to establish Oguntope's intoxication, and entered an order denying the Texas Department of Public Safety's authority to suspend Oguntope's driver’s license.


author: TIM TAFT, Justice.

text:
    Craig GLATTLY, Appellant, v. CMS VIRON CORPORATION f/k/a Viron Energy Services, Appellee.
    No. 01-04-00998-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 5, 2005.

      Ronald D. Cohen, Houston, for appellant.
    Joe W. Redden, Jr., Russell S. Post, Felicia Harris Kyle, Beck, Redden & Sec-rest, L.L.P., Lucas Thomas Elliot, Fulbright & Jaworski LLP., Houston, for ap-pellees.
    Michael J. Yanochik, Houston, for other interested party State Street Bank and Trust Company.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

TIM TAFT, Justice.

Appellant, Craig Glattly, appeals from the denial of his special appearance. See Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(7) (Vernon Supp.2004-2005). We affirm.

Background

Glattly, who is not a Texas resident, wore several corporate hats. First, he was the president and CEO of Academic Capital, L.L.C. Second, Glattly was a principal shareholder, the president, and the CEO of Academic Capital Group, Inc. (“ACG”), which was incorporated in 1999 to succeed to the business of Academic Capital, L.L.C. Third, Glattly was a principal shareholder, the president, and the CEO of Academic Capital Services, Inc. (“ACS”). In this opinion, we refer to ACG and ACS together as “the Academic entities.” None of the Academic entities was a Texas corporation.

ACG’s business was to underwrite and to finance certain leases, which ACG accomplished with capital provided under lines of credit with third-party lenders. ACS completed the lease transactions and administered the agreements’ lease payments.

Appellee, CMS Virón Corporation (“Vi-rón”), was a Missouri corporation that was awarded a contract by Texas Southern University (“TSU”) to construct an energy-savings project on TSU’s Houston campus (“the TSU project”). To consummate this agreement, Virón and TSU entered into a “Master State and Municipal Lease/Purchase Agreement” (“the Master Lease”) in 1998. Virón was the lessor under the Master Lease, and TSU was the lessee. Under the Master Lease, Virón was to lease the TSU project’s equipment to TSU, and TSU was to make rental payments to Virón. To finance the TSU project, Virón assigned its rights under the Master Lease to ACG’s predecessor (“the Lease Assignment”). To service the amount financed, Virón, ACS, and TSU entered into an escrow agreement (“the Escrow Agreement”), under which ACS was the escrow agent for the TSU project. In transactions such as that between Virón and TSU, ACG and its predecessor functioned as interim lenders, assigning their rights to the stream of rental payments under such leases to permanent lenders interested in receiving the income stream. Accordingly, ACG’s predecessor assigned its rights under the Master Lease to State Street Bank and Trust of Boston (“State Street Bank”).

The Master Lease between Virón and TSU provided that it was to be construed in accordance with the laws of Texas. The Lease Assignment between Virón and ACG’s predecessor provided, in part, that

If [Virón] has performance responsibilities under the Master Lease, and [TSU] abates payment of rent due to [Viron]’s lack of performance (as determined by [TSU]), then, upon notice to [Virón] from [ACG’s predecessor], [Virón] will remit such abated amount within 10 days of [ACG predecessor’s] notice.

The Escrow Agreement signed by Virón, TSU, and ACS provided, in part, as follows:

1. This Escrow Agreement relates to and is hereby made part of the [Master Lease] dated August 22, 1998 between [Virón] and [TSU],....
3. [Virón, TSU, and ACS] agree that [ACS] will act as sole escrow agent under the [Master] Lease and this Escrow Agreement.... [ACS] shall not be deemed to be a party to the [Master] Lease, and this Escrow Agreement shall be deemed to constitute the entire agreement between [Virón, TSU, and ACS].
7. Moneys in the [escrow fund] shall be used for the cost of acquisition of the Equipment and related delivery, engineering and installation costs. Payment shall be made from the [escrow fund] for the cost of acquisition of part or all Equipment upon presentation to [ACS] of one or more properly executed Payment Request Forms executed by [TSU]....
[TSU] agrees that, should the final acceptance of the Equipment not occur prior to December SO, 1999, the unspent funds in the [Escrow account] shall become the property of [TSU], and that the [Master] Lease and Lease Payments will commence as if Acceptance had occurred on December 30, 1999, pursuant to sections 2 and 4 of the [Master] Lease.
12. This Escrow Agreement shall be governed by and construed in accordance with the laws of the State of Illinois.

(Emphasis added.)

ACS made three of four payments from the escrow account to Virón for the TSU project. However, in December 1999, before the fourth payment was requested or made, ACS learned, from communications between TSU and Glattly, that TSU was alleging problems with Viron’s performance on the TSU project. TSU soon stopped making rental payments under the Master Lease. After TSU stopped making rental payments, Glattly directed that the funds in the escrow account be paid to State Street Bank, rather than to Virón. Suffice it to say that the parties disputed below and dispute on appeal both Glattly’s motivation for ordering payment to State Street Bank and the legal significance of that decision. In a nutshell, the underlying litigation arose out of both the failed TSU project and the payment of the escrow funds to State Street Bank, rather than to Virón.

In October 2002, State Street Bank sued Virón for breach of contract, negligence, and breach of warranty relating to Viron’s alleged faulty performance under the Master Lease and related matters. In December 2002, Virón counterclaimed against State Street Bank for breach of contract, conversion, and breach of fiduciary duty; asserted third-party claims against TSU for breach of contract and quantum meru-it; and asserted third-party claims against the Academic entities for breach of contract, conversion, and breach of fiduciary duty relating to the payment of escrow funds to State Street Bank, rather than to Virón. Virón also sought indemnification from TSU if State Street Bank prevailed in its claims against Virón. In December 2003, the Academic entities asserted third-party claims against State Street Bank, seeking indemnification if Virón prevailed on its claims against the Academic entities.

By February 2004, Virón had amended its petition to assert claims against Glattly, Dennis Stephans, and Eric Harkness in their individual capacities (collectively, “the individual defendants”) for breach of fiduciary duties, conversion, negligence (including gross negligence), fraud, breach of contract, tortious interference with con-traetual relationships, and misapplication of fiduciary property, all apparently relating to the payment of the escrow funds to State Street Bank. Among other things, Virón alleged that the individual defendants were personally liable to it because they (1) had “knowingly authorized, directed, participated in and ratified” the Academic entities’ breach of fiduciary duties, breach of contract, and conversion; (2) had been “negligent in the performance of their duties as officers and directors of [the Academic entities], and in the supervision and management of the Acquisition Fund”; and (3) had tortiously interfered with the Academic entities’ and Viron’s contractual relationship “by causing the escrowed funds to be transferred to State Street Bank.” Separately and alternatively, Virón also alleged that the individual defendants were liable on all causes of action asserted against the Academic entities by virtue of those entities’ being the individual defendants’ alter egos. Each individual defendant specially appeared to contest personal jurisdiction over him.

The trial court granted the special appearances of Harkness and Stephans, but denied the special appearance of Glattly. Glattly appeals.

Standard of Review

Although a legal conclusion concerning the existence of personal jurisdiction is a question of law subject to de novo review, that conclusion must sometimes be preceded by the resolution of underlying factual disputes. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 805-06 (Tex.2002). When, as here, the trial court does not issue fact findings, we presume that the trial court resolved all factual disputes in favor of its ruling. Am. Type Culture Collection, 83 S.W.3d at 805-06. When the appellate record contains the applicable trial record, these implied factual findings are not conclusive, and an appellant may challenge them for evidentiary sufficiency. BMC Software Belgium, 83 S.W.3d at 794; Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex.App.-Houston [1st Dist.] 2000, pet. dism’d w.o.j.); Wright v. Sage Eng’g, Inc., 137 S.W.3d 238, 248 (Tex.App.-Houston [1st Dist.] 2004, pet. denied). However, we apply a de novo review to the extent that the underlying facts are undisputed. Preussag Aktiengesellschaft, 16 S.W.3d at 113.

Personal Jurisdiction

In two issues, Glattly argues that the trial court erred in denying his special appearance because the court had no specific personal jurisdiction over him, it had no general personal jurisdiction over him, and it could not assert personal jurisdiction over him based on the corporate defendants’ being his alter egos.

A. The Law

The plaintiff bears the initial burden of pleading allegations sufficient to bring a non-resident defendant within the terms of the Texas long-arm statute. Am. Type Culture Collection, 83 S.W.3d at 807. When a non-resident defendant files a special appearance, however, the defendant assumes the burden of negating all bases of personal jurisdiction that the plaintiff has alleged. Id.

The long-arm statute provides that, “[i]n addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident: ... (2) commits a tort in whole or in part in this state_” Tex. Civ. PRAC. & Rem.Code Ann. § 17.042(2) (Vernon 1997). “On reaching a decision to exercise or [to] decline jurisdiction based on the defendant’s alleged commission of a tort, the trial court should rely only on the necessary jurisdictional facts and should not reach the merits of the case.” Wright, 137 S.W.3d at 251 n. 10; accord Stauffacher v. Lone Star Mud, Inc., 54 S.W.3d 810, 819 (Tex.App.-Texarkana 2001, no pet.); Royal Mort. Corp. v. Montague, 41 S.W.3d 721, 732 (Tex.App.-Fort Worth 2001, no pet.); Portland Savs. & Loan Ass’n v. Bernstein, 716 S.W.2d 532, 535 (Tex.App.-Corpus Christi 1985, writ ref'd n.r.e.) (tort allegations), overruled on other grounds, Dawson-Austin v. Austin, 968 S.W.2d 319, 323 (Tex.1998). “[Ultimate liability in tort is not a jurisdictional fact, and the merits of the cause are not at issue.” Wright, 137 S.W.3d at 251 n. 10. “Rather, the purpose of a special appearance is to determine whether the actions alleged by a plaintiff suggest that a defendant should expect to be subject to jurisdiction in Texas.” Id. “Accordingly, ... the necessary proof is only that the purposeful act was committed in this State.” Id.

A court may assert personal jurisdiction over a non-resident defendant only if “the Texas long-arm statute authorizes jurisdiction and the exercise of jurisdiction is consistent with federal and state due process standards.” Am. Type Culture Collection, 83 S.W.3d at 806. Because the Texas long-arm statute reaches as far as the federal constitutional requirements of due process will allow, the statute is satisfied if the exercise of personal jurisdiction comports with federal due process. Id.

Federal due process requirements are two-fold. First, the non-resident defendant must have purposefully established such minimum contacts with the forum state that the defendant could reasonably anticipate being sued there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985). If the non-resident defendant has purposefully availed itself of the privileges and benefits of conducting business in a state, the defendant has sufficient contacts to confer personal jurisdiction. Id. Random, fortuitous, or attenuated contacts do not suffice. Id. It is the quality and nature of the contacts, rather than their number, that is important. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 230 n. 11 (Tex.1991). “The purpose of the minimum-contacts analysis is to protect the defendant from being haled into court when its relationship with Texas is too attenuated to support jurisdiction. Accordingly, we focus upon the defendant’s activities and expectations in deciding whether it is proper to call it before a Texas court.” Am. Type Culture Collection, 83 S.W.3d at 806 (citations omitted). “Although not determinative, foreseeability is an important consideration in deciding whether the nonresident defendant has purposefully established minimum contacts with the forum state.” Wright, 137 S.W.3d at 247.

Minimum-contacts analysis is further divided into general and specific personal jurisdiction. CSR, Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996). Specific personal jurisdiction exists if the defendant’s alleged liability arises from or is related to an activity conducted within the forum. Id. The defendant’s contacts must thus have had a substantial connection to the forum that resulted in the alleged injuries. Shell Compania Argentina de Petroleo, S.A. v. Reef Exploration, Inc., 84 S.W.3d 830, 837 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). However, the “substantial connection” and “related tó” requirements of specific personal jurisdiction do not mean that the non-resident defendant’s purposeful contacts had to have been a proximate cause of the plaintiffs alleged injury. See id. at 837 n. 5 (“[Defendant] contends that specific jurisdiction should be determined under the ‘substantial relevance test,’ which requires that the non-resident defendant’s purposeful contacts be at least a proximate cause of the plaintiffs injury. We decline to follow this test inasmuch as this test has not been adopted by any court in our jurisdiction.”). In considering specific personal jurisdiction, we focus our minimum-contacts analysis on the defendant’s, the forum’s, and the litigation’s relationship with each other. Wright, 137 S.W.3d at 248. “It is not necessary that a nonresident defendant’s conduct actually occur in Texas, as long as the defendant’s acts were purposefully directed toward the state.” Id.

General personal jurisdiction allows a forum to exercise jurisdiction over a defendant even if the cause of action did not arise from or relate to the defendant’s contacts with the forum. Am. Type Culture Collection, 83 S.W.3d at 806-07. To result in general personal jurisdiction over a defendant, the defendant’s contacts with the forum must be continuous and systematic, which is a more demanding minimum-contacts analysis than that for specific jurisdiction. Id. at 807.

Second, if the nonresident defendant has purposefully established minimum contacts with the forum, the exercise of personal jurisdiction must also comport with fair play and substantial justice. Burger King Corp., 471 U.S. at 475-76, 105 S.Ct. at 2183-84; Guardian Royal, 815 S.W.2d at 228.

B. Specific Personal Jurisdiction

Under part of his first issue, Glattly argues that Texas courts have no specific personal jurisdiction over him.

We begin by noting that Glattly made his special appearance “to the entire proceeding,” rather than asserting that specific claims were severable and making his special appearance only as to them. See Tex.R. Civ. P. 120a(l) (“A special appearance may be made as to an entire proceeding or as to any severable claim involved therein.”); Dawson-Austin, 968 S.W.2d at 324. Neither did his personal-jurisdiction briefing below assert separate jurisdictional arguments for separate causes of action or argue that any cause of action against him was severable. Accordingly, if personal jurisdiction exists over Glattly with respect to any claim that Virón alleged, we will hold that the trial court properly denied his special appearance. See Dechon v. Dechon, 909 S.W.2d 950, 955 & n. 5 (Tex.App.-El Paso 1995, no writ) (in family-law case in which plaintiff had pleaded both modification and enforcement causes of action, and in which personal jurisdiction existed with respect to enforcement cause of action but did not exist initially with respect to modification cause of action, holding that, “in light of [defendant’s] generic special appearance which contested the trial court’s jurisdiction as to ‘the entire proceeding,’ rather than contesting jurisdiction as to the modification [cause of action] only, we find that the trial court was correct in overruling [defendant’s] special appearance.”).

Among other claims, Virón alleged that Glattly had personally committed various intentional torts against it, such as breach of fiduciary duty, conversion, fraud, tortious interference with contractual relationships, and misapplication of fiduciary property. “It is well-settled that a corporate agent can be held individually liable for fraudulent statements or knowing misrepresentations even when they are made in the capacity of a corporate representative.” Wright, 137 S.W.3d at 250; accord Barclay v. Johnson, 686 S.W.2d 334, 336-37 (Tex.App.-Houston [1st Dist.] 1985, no writ) (“[A] corporate agent knowingly participating in a tortious or fraudulent act may be held individually liable, even though he performed the act as an agent for the corporation.”). “It is not necessary that the ‘corporate veil’ be pierced in order to impose liability, as long as it is shown that the corporate officer knowingly participated in the wrongdoing.” Barclay, 686 S.W.2d at 337.

In response to Glattly’s special appearance, Virón produced evidence showing that the escrow account, funds, and contractual arrangement and any duties flowing from them were clearly tied to the TSU project, which took place in Texas. Even though Glattly did not sign any agreement arising out of the TSU project personally, the torts that he was alleged to have committed — -all of which were based on his decision to disperse the escrow funds to State Street Bank — necessarily affected the TSU project because they affected the funds earmarked for payment to the project’s parties. The disputed escrow funds amounted to over $2 million and constituted the final payment under the Master Lease, the contract executed to carry out the TSU project. Additionally, Virón produced as evidence Glattly’s deposition testimony, in which he admitted to having called or talked to Gina Bolt, TSU’s general counsel, “multiple times” about the problems that had arisen in December 1999 on the TSU project and indicated that he may have spoken with “anyone at [TSU] who could shed light on” the situation. The evidence also showed that Glattly received four faxes from Bolt about matters related to the TSU project dispute. We recognize that Virón did not allege any tort arising directly out of Glattly’s communications with TSU, but we regard these communications as showing that Glattly could have foreseen that the commission of the torts that Virón did allege would affect a project in Texas to which Virón was a party.

Given this context, we hold that Glattly’s alleged tort liability sufficiently “related to” conduct purposefully directed toward Texas, and likewise that Glattly’s alleged conduct had a sufficiently substantial connection to Texas, for the exercise of personal jurisdiction over Glattly to comport with due process. Put another way, it would have been foreseeable to a person committing the tortious acts alleged here that the injurious effect of those acts would extend into Texas. See Wright, 137 S.W.3d at 248 (“It is not necessary that a nonresident defendant’s conduct actually occur in Texas, as long as the defendant’s acts were purposefully directed toward the state.”).

Glattly does not challenge the sufficiency of the evidence relating to the court’s implied factual findings based on Viron’s evidence. See Preussag Aktiengesellschaft, 16 S.W.3d at 113 (indicating that appellant may challenge sufficiency of evidence supporting implied factual findings related to special appearance). Instead, Glattly challenges the trial court’s implicit legal conclusion that these unchallenged findings supported the exercise of specific personal jurisdiction over him. Specifically, Glattly notes that (1) he was not a party to the Escrow Agreement; (2) his alleged actions took place in Illinois and were undertaken pursuant to an agreement (the Escrow Agreement) to which Illinois law applied; (3) ACS sent the escrow funds to State Street Bank in Massachusetts; and (4) Glattly had a choice of sending the escrow funds either to Massachusetts (State Street Bank) or to Missouri (Virón). Glattly also argues that (1) he was “duty-bound as a representative of the corporate escrow agent to determine to whom the balance of funds should go”; (2) his contacts with TSU were thus “innocent”; (3) had Virón disputed Glattly’s decision to send State Street Bank the escrow funds, ACS could have considered interpleading the funds, rather than paying them to the bank; (4) Glattly’s actions “were neither fraudulent nor an intentional tort” because he “negated that [he had committed] an intentional tort in the trial court” by “negating] that he sought or received any personal benefit from his administration of the escrow” — and thus could not have anticipated being haled into Texas courts in his individual capacity.

We reject Glattly’s first category of arguments because it focuses on only part of the overall situation. All of the contracts were interrelated: the Escrow Agreement existed to service and to fund the Master Lease; the Master Lease existed to allow the TSU project to move forward; the TSU project took place in Texas. Glattly’s alleged tortious disposal of the very escrow funds that funded the TSU project thus substantially related to activities in Texas and could potentially have a significant effect in that forum. We reject Glattly’s second category of arguments because it relates, in essence, to the merits of whether he actually committed the intentional torts that Virón alleged. Ultimate tort liability is not a jurisdictional fact; the merits of claims are not at issue during a special appearance; and the proof necessary to show personal jurisdiction is only that the purposeful act was committed in Texas. Wright, 137 S.W.3d at 251 n. 10. Accordingly, we reject Glattly’s arguments that the ultimate merits of Viron’s claims against him show that he could not have anticipated being haled into court in Texas.

We hold that Glattly did not carry his burden of negating every basis for specific personal jurisdiction. Given this holding and the fact that Virón alleged that Glattly had committed intentional torts and fraudulent acts, we further hold that the trial court had specific personal jurisdiction over Glattly. Because we have held that specific personal jurisdiction existed with respect to some of Viron’s claims, and because Glattly filed his special appearance to the entire proceeding, we also hold that the trial court did not err in denying his special appearance, and we need not consider whether specific personal jurisdiction existed with respect to the remainder of Viron’s claims against Glattly. See Dechon, 909 S.W.2d at 955, 955 n. 5. Finally, because we hold that Texas courts have specific personal jurisdiction over Glattly, we need not reach Glattly’s alternative challenges to general personal jurisdiction or to jurisdiction based on alter ego status. See Wright, 137 S.W.3d at 251 n. 11.

C. Fair Play and Substantial Justice

Because we have determined that Glattly purposefully established minimum contacts with Texas, we must also determine whether the exercise of personal jurisdiction over him comports with fair play and substantial justice. See Burger King Corp., 471 U.S. at 475-76, 105 S.Ct. at 2183-84; Guardian Royal, 815 S.W.2d at 228.

Glattly had the burden to present a “compelling case” that exercising personal jurisdiction over him would not comport with fair play and substantial justice. See Guardian Royal, 815 S.W.2d at 231. The fairness inquiry is judged by a “stringent standard” and is met only in “rare cases.” Id. In considering the fairness of exercising personal jurisdiction over a non-resident defendant, we consider, when appropriate, such matters as the burden on the defendant, the interests of the forum state in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental, substantive social policies. Id.

Glattly asserts that exercising personal jurisdiction over him does not meet this test. Specifically, Glattly argues that (1) he would be burdened by having to defend himself in Texas because he did not engage in economic activity in Texas “either at the time of the alleged liability or at the time the lawsuit was filed, and he does not now”; (2) Texas has no compelling interest in providing a forum for the resolution of the dispute between Virón and Glattly because both are non-residents and because their contacts occurred exclusively out of state; and (3) allowing him to be sued in Texas just because the other parties to the lawsuit first sued or were sued here “would permit jurisdiction over a defendant to be determined by plaintiff or by a third-party, contrary to due process requirements.”

However, Glattly did not make these specific arguments in the trial court with respect to the fair-play-and-substantial-justice inquiry. Rather, he twice stated-in cursory and conclusory fashion — simply that the assertion of personal jurisdiction over him would offend traditional notions of fair play and substantial justice. The only elaboration that he provided below was that “Texas has no special interest in asserting personal jurisdiction over [Glattly], who only ever had random and isolated contacts with Texas if at all.” Accordingly, Glattly has waived his appellate fair-play-and-substantial-justice challenge. See Tex.R.App. P. 38.1(a)(1). The waiver of this challenge is another basis for affirming the trial court’s order. Additionally, we note that the trial would not have erred if it concluded, based on the fact that Glattly’s alleged tortious acts affected the TSU project in Texas and that the underlying litigation was based in large part on the same factual nexus, both that (1) Texas has an interest in adjudicating a dispute that, at its core, relates to a contract for capital improvements to be performed in the state and (2) the fairness calculation weighs in favor of adjudicating all related disputes in one forum.

Conclusion

We overrule appellant’s first issue. We do not reach his second issue (concerning personal jurisdiction based on alter ego status). We affirm the order of the trial court.

      . ACS was formerly known as Academic Service Corporation.

      . ACS paid the remaining escrow funds to State Street Bank in four payments, the last payments of which appear to have been authorized by another officer of the Academic entities. That officer is no longer a party to this lawsuit.

      . For example, in contesting Glattly’s special appearance, Virón produced evidence that, in December 1999, it sent ACS a form request for the fourth and final payment, which form was also signed by TSU's Associate Vice President of Facilities, and which indicated that "the amount of this requisition constitutes a partial acceptance of the project.” Virón also produced a certificate of final delivery and acceptance for the TSU project, which Glattly acknowledged was presented to ACS, signed by the same TSU official and dated December 22, 1999, indicating that Viron’s equipment and work was satisfactory to and accepted by TSU. Virón also relied below on a portion of Glattly’s deposition in which he stated that he did not tell a Virón officer before the payment to State Street Bank that ACS was paying the escrowed funds to State Street Bank. It is also evident from Viron’s counsel’s deposition questions that one of Viron’s theories in the underlying lawsuit was that Glattly and ACS sought to please State Street Bank — an "excellent” customer of ACS’s with whom it had done business repeatedly and with which ACS "wanted to maintain a good client relationship” — by paying the escrow money to it, rather than to Virón. On the other hand, other evidence indicated that (1) Glattly knew that TSU's alleged problem with Viron’s performance continued after Viron’s final payment request and after TSU signed the certificate of final delivery and acceptance; (2) Glattly was simply following the Escrow Agreement’s terms when he paid the escrow funds to State Street Bank; and (3) Glattly informed Viron's officer, without objection, that he would pay the escrow funds to State Street Bank.

      . Dennis Stephans was, at various times, a shareholder and an officer of ACG.

      . Eric Harkness eventually became the sole shareholder in ACG and was a principal shareholder in ACS.

      . By this time, Virón had dropped TSU as a third-party defendant.

      . Virón did not differentiate the individual defendants' actions allegedly constituting fraud and misapplication of fiduciary property from the actions of the other third-party defendants.

      .Although Virón appealed the granting of Harkness’s and Stephans’s special appearances, it later moved to dismiss its appeal. We previously granted Viron’s motion to dismiss its appeal, and our judgment now incorporates that dismissal.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997).

      . Glattly relies on Vosko v. Chase Manhattan Bank, N.A. for the proposition that he cannot be sued in Texas simply because of the Academic entities' activities. See 909 S.W.2d 95, 99 (Tex.App.-Houston [14th Dist.] 1995, writ denied) (holding that individual defendant was not subject to general personal jurisdiction based on actions of corporation with which he was associated unless corporation was alter ego of individual). That holding in Vosko is distinguishable because it concerned general personal jurisdiction, not specific personal jurisdiction based on alleged intentional torts or fraud. See Wright v. Sage Eng’g, Inc., 137 S.W.3d 238, 250 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) ("Wright invokes the fiduciary shield doctrine, which protects a corporate officer or employee from the trial court’s exercise of general personal jurisdiction when all of the individual’s contacts with Texas were on behalf of his employer. Texas courts applying the fiduciary shield doctrine have expressly limited its application to attempts to exercise general jurisdiction over a nonresident defendant. The fiduciary shield doctrine does not protect a corporate officer from specific personal jurisdiction as to intentional torts or fraudulent acts for which he may be held individually liable.”) (emphasis in original; citations omitted).

      . Glattly also argues, with respect to the shared interest of the several states in furthering fundamentad, substantive social policies, that "the substantive policy here should be the refusal to exercise jurisdiction ex post facto where there was no jurisdiction at the time of the injury; further, that continuing contact in the forum state which begins aifter a cause of action arose outside the forum state should be irrelevant to the jurisdictional inquiry.’’ This argument relates to Glattly’s challenge concerning the exercise of general personal jurisdiction over him. Because we do not decide whether Texas courts may exercise general personal jurisdiction over Glattly, we do not consider this argument.


author: EVELYN V. KEYES, Justice.

text:
    John Wayne BATES, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00033-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 12, 2005.
    Discretionary Review Refused Sept. 28, 2005.

      Mark W. Stevens, The Law Office of Mark Stevens, Galveston, TX, for Appellant.
    Kurt Sistrunk, Criminal District Attorney, Galveston County, B. Warren Good-son, Jr., Assistant District Attorney, Galveston, TX, for Appellee.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, John Wayne Bates, challenges the trial court’s order denying his motion for post-conviction DNA testing. In his sole point of error, appellant contends that the trial court erred in denying his motion for forensic DNA testing. We affirm.

Background

A jury convicted appellant of aggravated sexual assault and sentenced him to life imprisonment. In 1992, this Court affirmed appellant’s conviction. See Bates v. State, No. 01-90-00809-CR, 1992 WL 76400 (Tex.App.-Houston [1st Dist.] Apr. 16, 1992, pet. ref'd) (not designated for publication). In July 2001, appellant filed a pro se motion requesting DNA testing. In August 2001, the trial court appointed counsel to represent appellant on his motion for DNA testing.

In his motion, appellant argued that he was entitled to post-conviction DNA testing of the rape kit that was collected during the investigation of his case. Appellant stated that the evidence should be retested because the original findings were inconclusive. The original laboratory results showed that no spermatozoa or acid phosphates were detected. However, the original laboratory results also indicated that pulled hair, pubic hair, and “loose head hair” had been taken from the complainant. Appellant contended that the loose head hair had not been tested and that it might have come from a third person. He contended that at the time of the first tests, the DNA testing technology “was not capable of providing accurate probative results,” but stated that “newer testing techniques will provide accurate probative results” that could identify the person who committed the offense. The trial court found the motion legally sufficient to warrant a hearing.

At the hearing, the State argued that appellant’s motion should be denied. The State first stated that the technology used to detect DNA had not changed since 1990, the time of the original results. The State introduced an affidavit from K. Gibson, an evidentiary records custodian for the Texas Department of Public Safety. Gibson stated that the current screening procedures and limits on detection are the same as in 1990, and, therefore, no better analysis than the previous one is possible.

The State then stated that in 1990 the results of the rape kit were negative and that the State and appellant stipulated to such at his trial. The State argued that although the lack of appellant’s DNA in the rape kit was exculpatory evidence, appellant was nevertheless prosecuted and convicted. The State outlined the trial testimony of S. Brown. Brown was the outcry witness and an eyewitness. Brown testified at trial that she walked in on appellant and the complainant just after the act had occurred. Brown stated that she saw the complainant crying as she sat on the couch with her panties around her ankles. Brown looked around the room and saw appellant behind the door pulling up his pants.

During the course of the hearing, the court asked whether the “loose hairs” noted in the rape kit had been tested. The hearing was adjourned while the State attempted to answer the court’s question. Upon reconvening, appellant’s attorney stated, “There were no foreign hairs found in the victim’s rape kit, all right?”

After reviewing all the evidence presented, the trial court found the evidence insufficient to order forensic DNA testing because “[t]he convicted person has failed to establish by a preponderance of the evidence that ... a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.” This appeal followed.

Discussion

Before a trial court can order post-conviction DNA testing, the convicted person must meet the requirements of article 64.03 of the Code of Criminal Procedure. Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 3 (amended 2003) (current version at Tex.Code CRIM. PROC. Ann. art. 64.03 (Vernon Supp.2004-2005)). The relevant portion of article 64.03 states that “[a] convicting court may order forensic DNA testing under this chapter only if ... the convicted person establishes by a preponderance of the evidence that ... a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.” Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 3 (amended 2003).

The convicted person must show that a reasonable probability exists that the DNA tests would prove his innocence. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002). “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Torres v. State, 104 S.W.3d 638, 640 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (citing Ex Parte Guzmon, 730 S.W.2d 724, 733 (Tex.Crim.App.1987)). A reasonable probability of innocence does not exist if there is sufficient evidence, other than the evidence in question, to establish guilt. Id. at 640. The convicted person does not meet this burden if the results would “merely muddy the waters.” Rivera, 89 S.W.3d at 59 (citing Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App.2002)).

We apply a bifurcated standard of review to a trial court’s decision to deny post-conviction DNA testing. Id. Accordingly, we afford almost total deference to the trial court’s determination of issues of historical fact and its application of the law to fact issues that turn on an evaluation of credibility and demeanor. Id. We review de novo other application of law to fact issues, including the ultimate question of whether the trial court was required to grant a motion for DNA testing under chapter 64 of the Code of Criminal Procedure. Id.

In his brief, appellant argues that if the loose head hair included in the rape kit contained the DNA of a third party, the results “would provide at least some evidence of impeachment.” Appellant does not argue that the hairs would prove his innocence; instead, he argues he could have attacked the complainant’s credibility. However, attacks on credibility are not a valid reason for DNA testing under chapter 64. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2-5, (amended 2003) (containing statutory provisions governing post-conviction requests for DNA testing).

Appellant was convicted on evidence that included a rape kit that did not contain DNA evidence connecting appellant to the crime. At trial, appellant and the State stipulated that the rape kit had negative results. This was exculpatory evidence and yet appellant was still prosecuted and convicted. There is no evidence that a third person’s hair, which was not tested, was in the rape kit or that new techniques exist for testing the same DNA evidence.

Appellant has not proved by a preponderance of the evidence that a reasonable probability exists that he would not have been convicted if he were permitted to conduct DNA testing. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 3 (amended 2003). Accordingly, based on the record before us, we hold that the trial court did not err in denying appellant’s motion for DNA testing. We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

      . A convicted person who submits a motion under article 64.03 before September 1, 2003 is covered by the law in effect when the motion was submitted. Tex.Code Crim. Proc. Ann. art. 64.03 (Vernon Supp.2004-2005). Act of April 25, 2003, 78th Leg., R.S., ch. 13, § 8, 2003 Tex. Gen. Laws 17. Appellant filed his motion in July 2001, so we apply the law in effect at that time.