text:
    Irving D. BOYES, Appellant, v. MORRIS POLICH & PURDY, LLP, A California and Nevada Limited Liability Partnership, Appellee.
    No. 08-04-00157-CV.
    Court of Appeals of Texas, El Paso.
    July 21, 2005.

      Ronald Payne, Dallas, for Appellant.
    Lynn Rene Levitan, Brown Mccarroll, Lip, Dallas, for Appellee.
    Before BARAJAS, C.J., MeCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s denial of Appellant’s motion for new trial and to stay execution of a foreign judgment. For the reasons stated herein, we affirm the trial court’s denial of the motion for new trial and the stay of execution.

I.FACTUAL AND PROCEDURAL BACKGROUND

Appellee, Morris Polich & Purdy, LLP filed suit in Nevada state court against various corporate defendants and Irving D. Boyes, individually to recover attorney’s fees incurred by Appellee in representing the defendants in an unrelated lawsuit. A copy of the answer filed by Appellant in the Nevada action was included in the appellate record. The Nevada trial court entered a post-appearance and answer, default judgment against all the defendants after striking defendants’ answers. The record does not contain any evidence of the reason for the Nevada court’s striking of the defendants’ answers. No notice of appeal of the Nevada judgment appears in the appellate record and we assume that none was filed. Appellee then filed a notice of filing of foreign judgment in district court in Dallas County, Texas for the purpose of domestication of the judgment in compliance with Chapter 35 of the Texas Civil Practice and Remedies Code. Appellant filed a motion for new trial and motion to stay execution of the judgment solely on the grounds that the Nevada court lacked jurisdiction over Appellant on the basis of insufficient minimum contacts. Appellant does not address the striking of his answer or the entry of the post-answer default judgment. The motion for new trial was denied by the trial court without specifying the grounds. Appellant filed a notice of appeal of the Texas court’s decision, and asserts one issue with three sub-issues.

II.ISSUES ON APPEAL

In one issue with three sub-issues, Appellant challenges the trial court’s denial of his motion for new trial on the grounds that the foreign trial court lacked in per-sonam jurisdiction over Appellant for the reason that “(A) Nevada lacked sufficient minimum contacts to exercise jurisdiction over the non-resident Appellant; (B) Ap-pellee failed to present sufficient evidence at trial [emphasis Appellant’s] to establish sufficient minimum contacts over the nonresident appellee [sic]; and (C) it was error for the Court to consider the affidavit of Lynn Levitan and the documents attached thereto as evidence to establish the sufficient minimum contacts over the non resident [sic] appellant.” His brief does not address the striking of his answer or the entry of the post-answer default judgment. His appeal only challenges the underlying jurisdictional basis of the case. We read these three sub-issues together as a challenge to the Dallas trial court’s failure to grant a motion for new trial for the reason that the Nevada court lacked jurisdiction over Appellant.

III.STANDARD OF REVIEW

The standard of review of the denial of a motion for new trial is abuse of discretion. Champion Int’l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988) (orig.proceeding); Dugan v. Compass Bank, 129 S.W.3d 579, 582 (Tex.App.-Dallas 2003, no pet .). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or in other wording, if it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); Dugan, 129 S.W.3d at 582. Similarly, the standard of review for a trial court’s imposition of sanctions is also an abuse of discretion. Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex.1990); Masterson v. Cox, 886 S.W.2d 436, 437 (Tex.App.-Houston [1st Dist.] 1994, no writ).

The requisites for setting aside a post-answer default judgment are the same as those essential to set aside a no-answer default judgment. Director, State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994). The three requirements that must be shown by the movant in order to obtain a new trial are found in the venerable case of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939): (1) the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident, (2) provided the motion for new trial sets up a meritorious defense, and (3) is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. The Craddock test applies to post-answer default judgments and to defaults resulting from trial court sanctions that strike pleadings. See Evans, 889 S.W.2d at 268 (holding Craddock applies to post-answer default judgments); Equinox Enters., Inc. v. Associated Media, Inc., 730 S.W.2d 872, 874 (Tex.App.-Dallas 1987, no writ) (holding Craddock applies to default judgments issued after court strikes pleadings in sanction hearing). As stated above, we review a trial court’s determination of a motion for new trial under an abuse of discretion standard. Sharpe v. Kilcoyne, 962 S.W.2d 697, 701 (Tex.App.-Fort Worth 1998, no pet.).

Because we do not know the basis for the trial court’s striking of the pleadings below, we can only assume it was a sanction imposed by the court for some action or inaction by Appellant. Appellant does not challenge the striking of the answer, but rather presents a motion for new trial attacking the merits of the original jurisdictional determination of the trial court. Craddock and its progeny limit our review of the denial of a motion for new trial, but because Appellant has not addressed the basis for the striking of his answer and the entry of the default, we look to the second prong to determine whether he has presented a meritorious defense to the judgment. Initially, we note Appellant’s motion for new trial only attacks the trial court’s judgment on the grounds that Appellant lacks sufficient minimum contacts to be subjected to the Nevada court’s jurisdiction. He makes no mention of the procedural process that led to his being haled into the Nevada court and has not preserved any challenge to that process.

A meritorious defense is one which, if proved, would cause a different result upon a retrial of the case, although it need not be a totally opposite result. Jackson v. Mares, 802 S.W.2d 48, 51 (Tex.App.-Corpus Christi 1990, writ denied). In Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966), the supreme court explained what is required to “set up” a meritorious defense:

The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense.

Id. at 214; see also Guar. Bank v. Thompson, 632 S.W.2d 338, 339 (Tex.1982); Jackson, 802 S.W.2d at 51. Conclusory allegations do not satisfy the meritorious defense requirement of Craddock. Luebbe v. Booth, No. 12-03-00289-CV, 2004 WL 1574224, at *3 (Tex.App.-Tyler 2004, pet. denied); see Stein v. Meachum, 748 S.W.2d 516, 518 (Tex.App.-Dallas 1988, no writ) and Boulware v. Sec. State Bank of Navasota, 598 S.W.2d 687, 689 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ ref'd n.r.e.).

We are presented with a record that establishes that Appellant was before the Nevada court with an answer that was struck subjecting him to a post-answer default judgment. Presented with this limited scope of inquiry, we must determine whether the judgment filed by Appel-lee should be entitled to full faith and credit as required by the United States Constitution.

IV. FULL FAITH AND CREDIT

The limited appellate record before us consists of a clerk’s record and a supplemental clerk’s record containing few relevant documents with no reporter’s record of any proceedings either in the Texas trial court or the Nevada trial court. Ap-pellee is seeking to enforce a Nevada judgment in Texas pursuant to the Uniform Enforcement of Foreign Judgments Act (“UEFJA”) pursuant to the requirements of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. §§ 35.001-008 (Vernon 1997). The judgment became’ enforceable as a Texas judgment on the date it was filed. See Tex. Civ. Prac. & Rem.Code Ann. § 35.003; Walnut Equip. Leasing Co., Inc. v. Wu, 920 S.W.2d 285, 286 (Tex.1996). It was subject to the same defenses and proceedings for reopening, vacating, or staying a judgment as a judgment of the Texas court. See Tex. Civ. Prac. & Rem.Code Ann. § 35.003(c). Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., 132 S.W.3d 477, 483 (Tex.App.-Houston [14th Dist.] 2004, pet. denied).

Under the United States Constitution, each state must give a final judgment of a sister state the same force and effect the judgment would be entitled to in the state in which it was rendered. U.S. Const. art. IV, § 1. Under the authority of the full faith and credit clause of the United States Constitution, Congress enacted a statute, now designated 28 U.S.C. § 1738, which dictates the manner of proving the records of judicial proceedings of other states and also provides that copies of such proceedings, when properly authenticated under the statute, “shall have ... full faith and credit in every court within the United States.... ” Under the statute, when a judgment of another state is properly authenticated and appears to be a record of a court of general jurisdiction, the court’s jurisdiction over the cause on the parties is presumed, unless disproved by extrinsic evidence or the record itself. See Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct. 157, 159, 96 L.Ed. 146 (1951); Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 456, 82 L.Ed. 649 (1938); A & S Distrib. Co. v. Providence Pile Fabric Corp., 563 S.W.2d 281, 283 (Tex.Civ.App.-Dallas 1977, writ ref'd n.r.e.); First Nat’l Bank of Libby, Montana v. Rector, 710 S.W.2d 100, 103 (Tex.App.-Austin 1986, writ ref'd n.r.e.).

In Texas, the enforcement of foreign judgments is governed by the Texas version of the Uniform Enforcement of Foreign Judgments Act. Tex. Civ. PRAC. & Rem.Code Ann. §§ 35.001 et seq. (Vernon 1997). In interpreting the Act, courts have held that the enforcing state may make a reasonable inquiry into a sister state’s judgment and the jurisdiction over the parties before affording the judgment full faith and credit. See Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); First Nat’l Bank of Libby, Montana, 710 S.W.2d at 103. Specifically, a defendant may challenge the jurisdiction of a sister state to render a foreign judgment on two grounds. First, the defendant may try to demonstrate that service of process was inadequate under the service of process rules of the sister state. Second, the defendant may assert that the sister state’s exercise of jurisdiction does not meet the requirement of that state’s long-arm statute and due process of law. See O’Brien v. Lanpar Co., 399 S.W.2d 340 (Tex.1966); First Nat’l Bank of Libby, Montana, 710 S.W.2d at 104.

In interpreting both the Uniform Enforcement of Foreign Judgments Act and the Texas version of the Act, courts have held that when a plaintiff sues on a foreign judgment of a sister state and introduces a properly authenticated copy of the judgment, a prima facie case for enforcement of the judgment is presented. First Nat’l Bank of Libby, Montana, 710 S.W.2d at 103. Thereafter, the burden of attacking the judgment and establishing any reason why it should not be given full faith and credit shifts to the defendant. Williams, 325 U.S. at 235, 65 S.Ct. at 1097-98; Minuteman Press Intern., Inc. v. Sparks, 782 S.W.2d 339, 340-41 (Tex.App.-Fort Worth 1989, no writ); First Nat’l Bank of Libby, Montana, 710 S.W.2d at 103.

Looking to the limited record before us, we evaluate Appellant’s claim of a lack of jurisdiction by the Nevada trial court to determine whether the Nevada court’s judgment properly established jurisdiction over Appellant. We are not presented with any underlying evidence in support of any of the factual allegations of jurisdiction and must look only to the record on appeal. We note that the appellate record contains a copy of the Nevada judgment which reflects the following facts: Plaintiff below presented an application for entry of default judgment before the Honorable Jessie Walsh, judge presiding, over the District Court of Clark County, Nevada, Department XII, on December 1, 2003. The trial court granted the default judgment and found that the default of the defendants was entered on September 23, 2003 due to the court striking the defendants’ answers. The court held that Appellant is individually and jointly and severally liable with the corporate defendants for the damages found.

The question presented by Appellant is whether the judgment, as a matter of law, reflects personal jurisdiction over Appellant. We hold that it does. The judgment on its face reflects that Appellant had appeared before the Nevada trial court and answered. The record does not reflect the reason that the answer was struck but the fact that an answer on behalf of Appellant was filed and later struck is sufficient to establish that Appellant was subject to the personal jurisdiction of the Nevada court. Under Texas law, the filing of an answer is deemed a general appearance submitting him to the jurisdiction of the court for all reasons. See Baker v. Monsanto, Co., 111 S.W.3d 158, 161 (Tex.2003). Appellee’s response to Appellant’s motion for new trial reflects that Appellant filed a motion in the Nevada litigation to challenge the Nevada court’s jurisdiction over him which was denied. Appellant did not include in the appellate record before us the documents or records related to the proceedings he filed challenging service on him in Nevada. Appellant does not challenge the court’s striking of his answer nor does he provide an explanation for the court’s actions. As stated previously, no record is included, therefore, we do not know whether the answer was struck for non-appearance or as another sanction. The denial of his original jurisdictional challenge by the Nevada court resulted in the establishment of personal jurisdiction over Appellant. See Canadian Helicopters v. Wittig, 876 S.W.2d 304, 308-09 (Tex.1994). Under Texas law, if Appellant had desired to attack the jurisdiction of the trial court, he could have filed an immediate appeal. A trial court’s order granting or denying a special appearance under Rule 120a is ap-pealable as an interlocutory appeal. Tex. Crv. Prac. & Rem.Code Ann. § 51.014(a)(7) (Vernon Supp.2004-05). This he did not do.

From the limited record before us, it appears that Appellant waived his jurisdictional challenge to the denial of the Nevada motion to quash service submitting him to the personal jurisdiction of the Nevada trial court by failing to challenge the denial. Further, Appellant filed an answer in the Nevada litigation which submits him to the Nevada trial court’s jurisdiction under Texas law. See Tex.R. Civ. P. 121. Appellant has not provided us with evidence of any Nevada law which would require a different finding nor requested that we take judicial notice of any Nevada law. When a party does not provide a court with proof of laws of another state by judicial notice or otherwise, then the laws are presumed to be the same as that of Texas. See Minais Metals, Inc., 132 S.W.3d at 487.

Whether a court has personal jurisdiction over a defendant is a question of law. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). We hold that Appellant was subject to the in personam jurisdiction of the Nevada trial court as a matter of law.

Turning to Appellant’s remaining sub-issues, which contend that Appellant lacked minimum contacts with Nevada to establish jurisdiction, and attempts to attack the validity of an affidavit filed by Appellee’s Texas attorney providing the court with a copy of the Nevada answer filed by Appellant, we hold that the record is sufficient to establish minimum contacts submitting Appellant to the jurisdiction of the Nevada court. A Texas court may assert personal jurisdiction over a nonresident defendant only if the requirements of both the Texas long-arm statute and the United States Constitution are satisfied. See Tex. Civ. Prac. & Rem.Code Ann. §§ 17.041-045. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 1871-72, 80 L.Ed.2d 404 (1984); CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996).

The Texas Supreme Court has interpreted this broad statutory language to reach “as far as the federal constitutional requirements of due process will permit.” BMC Software Belgium, N.V., 83 S.W.3d at 795. Therefore, the requirements of the Texas long-arm statute are satisfied if the exercise of personal jurisdiction comports with federal due process limitations. CSR Ltd., 925 S.W.2d at 594.

Personal jurisdiction over nonresident defendants is constitutional when two conditions are met: (1) the defendant has established minimum contacts with the forum state, and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). A non-resident defendant that has “purposefully availed” itself of the privileges and benefits of conducting business in the foreign jurisdiction has sufficient contacts with the forum to confer personal jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985) (discussing the constitutional boundaries of personal jurisdiction). Although not determinative, foreseeability is an important consideration in deciding whether the non-resident defendant has purposefully established “minimum contacts” with the forum state. Guardian Royal Exchange Assurance, Ltd. v. English China Clays, 815 S.W.2d 223, 227 (Tex.1991). A defendant, however, should not be subject to a foreign court’s jurisdiction based upon “random,” “fortuitous,” or “attenuated” contacts. Burger King, 471 U.S. at 475, 105 S.Ct. at 2183.

Personal jurisdiction exists if the non-resident defendant’s minimum contacts give rise to either specific jurisdiction or general jurisdiction. See Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 413-14, 104 S.Ct. at 1872; BMC Software Belgium, N.V., 83 S.W.3d at 795; Guardian Royal Exchange Assurance, Ltd., 815 S.W.2d at 227. Specific jurisdiction is established if the defendant’s alleged liability arises from or is related to an activity conducted -within the forum. BMC Software Belgium, N.V., 83 S.W.3d at 796; Guardian Royal Exchange Assurance, Ltd., 815 S.W.2d at 228. In contrast, general jurisdiction is present when a defendant’s contacts in a forum are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. BMC Software Belgium, N.V., 83 S.W.3d at 796; Guardian Royal Exchange Assurance, Ltd., 815 S.W.2d at 228; Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). Therefore, we must determine that there are either minimum contacts sufficient to confer specific jurisdiction or continuous and systematic contacts sufficient to confer general jurisdiction.

To establish specific jurisdiction, the cause of action must arise out of or relate to the non-resident defendant’s contact with the forum state, and the conduct must have resulted from that defendant’s purposeful conduct, not the unilateral conduct of the plaintiff or others. TeleVentures, Inc. v. International Game Technology, 12 S.W.3d 900, 907 (Tex.App.-Austin 2000, pet. denied). Thus, in analyzing minimum contacts for the purpose of determining Texas courts’ specific jurisdiction, we focus on the relationship among the defendant, the forum, and the litigation. TeleVentures, 12 S.W.3d at 908; Michiana Easy Livin’ Country Inc. v. Holten, No. 04-0016, 168 S.W.3d 777, 789, 2005 WL 1252268, at *6 (Tex. May 27, 2005); Blair Communications, Inc. v. SES Survey Equip. Services, Inc., 80 S.W.3d 723, 727 (Tex.App.-Houston [1st Dist.] 2002, no pet.). The contacts must be purposely directed at or take place within the forum, and must have a substantial connection that results in the alleged injuries. See Michiana Easy Livin’ Country Inc., 168 S.W.3d at 784, 2005 WL 1252268, at *3.

Under the minimum contacts test for specific jurisdiction, we must determine whether Appellee has had purposeful contacts with the forum state, thus invoking the benefits and protections of its laws. Guardian Royal Exchange Assurance, Ltd., 815 S.W.2d at 226. This requirement ensures that a non-resident defendant will not be haled into a jurisdiction based solely upon random or fortuitous contacts or the “unilateral activity of another party or a third person.” Id. As long as the contact creates a substantial connection with the forum state, even a single act can support jurisdiction, but a single act or occasional acts may be insufficient to establish jurisdiction if their nature and quality and the circumstances of their commission create only an attenuated connection with the forum. Burger King, 471 U.S. at 475 n. 18, 105 S.Ct. at 2184. In determining whether a non-resident defendant’s contacts are random and fortuitous, the Texas Supreme Court has looked at whether the contacts are based upon the unilateral acts of the plaintiff or if the defendant participated in an act that resulted in a contact. See Dawson-Austin v. Austin, 968 S.W.2d 319, 321, 326 (Tex.1998); CSR Ltd., 925 S.W.2d at 595.

If a non-resident has a single contact with Texas, our courts may exercise specific jurisdiction only if the contact is of substantial quality and nature and the cause of action arises out of that contact. Michiana Easy Livin’ Country Inc., 168 S.W.3d at 787, 2005 WL 1252268, at *5. The focus of the examination must be the nature of the contacts and the “connection” these contacts create with the forum state. See id., 168 S.W.3d at 784, at *3.

Included in the appellate record is a copy of the contract signed by the Appellant agreeing to retain Appellee to provide legal services in connection with litigation occurring in Nevada. The agreement meets the threshold requirement of the minimum contacts for specific jurisdiction. We also note that the agreement as signed by Appellant contains a forum selection clause establishing jurisdiction in Nevada for any dispute arising out of the payments due under agreement. There is no evidence included in the record that contests the validity of the agreement. We must presume that the trial court found the agreement to be valid and binding on the Appellant. Further, the Texas Supreme Court has established that enforcement of forum-selection clauses is mandatory unless the party opposing enforcement “clearly show[s] that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.” In re Automated Collection Technologies, Inc., 156 S.W.3d 557, 559 (Tex.2004); see also In re AIU Ins. Co., 148 S.W.3d 109, 112 (Tex.2004). The agreement with the forum selection clause, in light of virtually no evidence challenging its validity, is sufficient to comply with due process.

In his brief, Appellant’s arguments are limited to attempts to attack the ultimate finding that the Nevada and Texas trial court’s made. Appellant does not provide us with a record to establish what occurred during the Nevada trial court proceedings or any Texas hearing. Appellant’s ability to challenge the Nevada judgment is limited by Appellant’s failure to properly attack the Nevada judgment by appeal. He cannot now attempt to collaterally attack the Nevada court’s judgment.

Once a properly authenticated copy of the judgment is introduced, the burden shifts to the defendant to prove any affirmative defenses to the judgment, such as lack of jurisdiction, faulty service, lack of finality, etc. Minuteman Press Intern., Inc., 782 S.W.2d at 342; First Nat’l Bank of Libby, Montana, 710 S.W.2d at 103; Schwartz v. F.M.I. Properties Corp., 714 S.W.2d 97, 100 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.); Starzl v. Starzl, 686 S.W.2d 203, 205 (Tex.App.-Dallas 1984, no writ); A & S Distrib. Co., 563 S.W.2d at 283.

A defense asserted in a Texas court against the enforcement of a foreign judgment is a collateral attack. Cash Register Sales & Servs. of Houston, Inc. v. Copelco Capital, Inc., 62 S.W.3d 278, 281 (Tex.App.-Houston [1st Dist.] 2001, no pet.); Rector, 710 S.W.2d at 103. In a collateral attack on a sister state’s judgment, no defense that goes to the merits of the original controversy may be raised. Cash Register Sales & Servs., 62 S.W.3d at 281; Goodier v. Duncan, 651 S.W.2d 25, 27 (Tex.App.-Dallas 1983, writ ref'd n.r.e.) (concluding the merits of the underlying action, dealing with an arbitration award, could not be addressed in an action to enforce the judgment). This is true for questions of jurisdiction, if those issues were fully and fairly litigated and decided in the sister court. Mayhew v. Caprito, 794 S.W.2d 1, 2 (Tex.1990). A collateral attack on a judgment is successful only where the judgment is established as void. A judgment is void only when it is apparent the court rendering it lacked (1) jurisdiction over the parties or property; (2) jurisdiction over the subject matter; (3) jurisdiction to enter the particular judgment; or (4) the capacity to act as a court. See Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985); Woodfin v. Coleman, 931 S.W.2d 383, 384 (Tex.App.-Austin 1996, writ denied).

Although recitals in the foreign judgment are generally presumed valid, in an action to enforce a foreign judgment, a Texas court may consider evidence that goes to the jurisdiction of the sister state court over the parties or the subject matter. Charles Brown, L.L.P. v. Lanier Worldwide, Inc., 124 S.W.3d 883, 903 n. 34 (Tex.App.-Houston [14th Dist.] 2004, no pet.); see Johnson v. Johnson, 37 S.W.3d 523, 526-27 (Tex.App.-El Paso 2001, no pet.); see Rector, 710 S.W.2d at 103; 5 Roy W. Mgdonald & Elaine A. GRaeton Carlson, Texas Civil Practice § 29:27 (2d ed.2000).

Here the record contains no evidence other than one conclusory affidavit provided by Appellant as an attachment to his motion for new trial attempting to challenge the Nevada court’s implied finding of minimum contacts. Nothing in his motion addresses the court’s recitations regarding his answer and the entry of a post-answer default judgment.

Therefore, when a sister state judgment is assailed in Texas, the attack being collateral, the judgment must be void for the attack to be successful. Hungate v. Hungate, 531 S.W.2d 650, 653 (Tex.Civ.App.-El Paso 1975, no writ); Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216 (1942). Finding nothing in the record to suggest that the Nevada judgment is void, we overrule Appellant’s sub-issue “B.” Because our decisions regarding Appellant’s sub-issues “A” and “B” are dispositive of this appeal, we do not reach Appellant’s sub-issue “C.” Accordingly, having overruled Appellant’s Issue No. One, sub-issues “A” and “B,” we affirm the trial court’s denial of Appellant’s motion for new trial and motion for stay.

Having overruled Appellant’s issue on review, we affirm the judgment of the trial court.


source: Caselaw Access Project

author: Opinion by Justice ROSS.

license: Public Domain

text:
    In the Matter of K. H., a Child.
    No. 06-04-00103-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted March 25, 2005.
    Decided July 26, 2005.

      Tim Cone, Gilmer, for Appellant.
    William M. Jennings, District Attorney, Ray Bowman, Assistant District Attorney, Longview, for Appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

K. H., a twelve-year-old boy, appeals from his adjudication for the offense of retaliation. A jury found that K.H. engaged in delinquent conduct, and at a later disposition hearing, the trial court committed K.H. to the Texas Youth Commission. K.H. contends on appeal the evidence is legally and factually insufficient to prove he committed the criminal act.

Proceedings brought under the Texas Juvenile Justice Code, Title 3 of the Texas Family Code, are hybrid actions. They are brought as civil proceedings, but are “quasi-criminal” in nature. As noted by the San Antonio court in In re K.T., 107 S.W.3d 65, 67 (Tex.App.-San Antonio 2003, no pet.), the language used to describe the proceedings are euphemisms to describe juvenile proceedings that are parallel to criminal proceedings: the adjudication is the trial, while the disposition is equivalent to a sentencing proceeding. Nonetheless, the result of applying euphemisms, however well-intended, can be confusing.

Under the applicable statutes and caselaw, civil and criminal rules apply at different stages of the same proceeding. Section 51.17 of the Family Code provides that the Texas Rules of Civil Procedure shall apply, the Texas Code of Criminal Procedure and the applicable criminal caselaw shall govern the discovery process, and the Texas Rules of Evidence (as applied to criminal cases) shall be used during the judicial proceeding. Tex. Fam.Code Ann. § 51.17 (Vernon Supp.2004-2005). Section 54.03 of the Family Code provides that the burden of proof in an adjudication hearing is the criminal burden: beyond a reasonable doubt. Tex. Fam.Code Ann. § 54.03 (Vernon Supp.2004-2005). If the trier of fact determines the juvenile engaged in delinquent conduct, a separate disposition hearing is conducted subsequent to the adjudication hearing. Tex. Fam.Code Ann. §§ 54.03(h), 54.04 (Vernon Supp.2004-2005). It is clear that, in reviewing the disposition portion of the proceeding, we determine whether the trial court abused its discretion in the disposition of the juvenile. We do not disturb the juvenile court’s disposition order in the absence of an abuse of discretion. In re H.R.C., 153 S.W.3d 266, 269 (Tex.App.-El Paso 2004, no pet.); In re J.D.P., 85 S.W.3d 420, 426 (Tex.App.-Fort Worth 2002, no pet.); In re J.R., 907 S.W.2d 107, 110 (Tex.App.-Austin 1995, no writ); In re E.F., 535 S.W.2d 213, 215 (Tex.Civ.App.-Corpus Christi 1976, no writ).

The result of this patchwork arrangement is, predictably, a certain lack of clarity among courts reviewing different stages of the process about the standards to be applied. It is within this context that we address an appeal brought solely on the adjudication portion of the process.

In reviewing the adjudication itself, and the findings made as a result of the adjudication, most courts apply a criminal legal/factual sufficiency review. Even though the appeal of juvenile court orders are generally treated as civil cases, adjudications of delinquency in juvenile cases are statutorily based on the criminal standard of proof. See Tex. Fam.Code Ann. § 54.03(f). Thus, an adjudication should be reviewed by applying the same standards applicable to sufficiency of the evidence challenges in criminal cases. In re 157 S.W.3d 823 (Tex.App.-Fort Worth 2005, no pet.); In re N.M.K., 137 S.W.3d 696, 697 (Tex.App.-Eastland 2004, no pet.); In re Z.L.B., 115 S.W.3d 188, 190 (Tex.App.-Dallas 2003, no pet.); In re M.C.L., 110 S.W.3d 591, 594 (Tex.App.-Austin 2003, no pet.).

When both legal and factual sufficiency are challenged, we first determine whether the evidence is legally sufficient to support the verdict. Rivera v. State, 59 S.W.3d 268, 273 (Tex.App.-Texarkana 2001, pet. ref'd). It is only if we find the evidence legally sufficient that we then consider the factual sufficiency challenge. In other words, if we find the evidence legally insufficient, we need not address the factual sufficiency challenge.

In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000).

In this case, K.H. was charged with the offense of retaliation pursuant to Section 36.06 of the Penal Code. That statute provides, in relevant part, as follows:

(a) A person commits an offense if he intentionally or knowingly ... threatens to hann another ...:
(1) in retaliation for or on account of the ... status of another as a:
(A) ... witness, prospective witness, ...; or
(B) person ... who the actor knows intends to report the occurrence of a crime; or
(2) to prevent or delay the service of another as a:
(B) person ... who the actor knows intends to report the occurrence of a crime.

Tex. Pen.Code Ann. § 36.06 (Vernon Supp. 2004-2005).

The State’s evidence showed that K.H. possessed a gun on school premises and displayed that gun to C. J., and told C.J. he would use the gun if C.J. told anyone about it. The evidence further showed that, while the gun had the appearance of a firearm, it was, in fact, an inoperable pellet gun.

The State’s petition accused K.H. of threatening to harm C.J. “in retaliation for or on account of the status of [C.J.] as a person who was a witness to a crime, the same being a Third Degree felony if committed as an adult.” Alternatively, the State accused K.H. of threatening to harm C.J. “to prevent and delay the service of [C.J.] as a person who [K.H.] knew intended to report the occurrence of a crime, the same being a Third Degree felony if committed as an adult.” The jury charge explicitly sets out both options and then goes on to authorize the jury to find K.H. guilty beyond a reasonable doubt, “as alleged in the Petition.”

As we will discuss later, the first accusation is not actionable under the retaliation statute. The statute does not contemplate that the offense occurs if an actor threatens a person because such person is a witness to a crime, but instead because the person is a witness at trial. However, we first address the contention common to both accusations.

In his argument under both accusations, K.H. contends that, because each of the underlying accusations alleged he had committed a crime, and because there was no evidence he had committed such a crime, the State failed to meet its burden of proof and the evidence cannot support the finding in the adjudication that he was guilty. We agree.

The question raised under both the first and second accusations is whether the statute requires the state to show that the actor actually committed a crime, or if it was sufficient that the person thought the act reported was a crime. Neither party has directed us to any cases directly on point, and we have found none.

The plain language of the statute applies solely to the occurrence of “a crime.” It does not implicate an act that a person might reasonably believe to be a crime. The evidence is undisputed that K.H. took an inoperable pellet gun to school. K.H. was not charged with a crime in connection with this act, and there was no suggestion or any proof that the act was, in fact, a crime. The State’s petition did not identify “the crime.”

The crime suggested by the State in its closing argument to the jury is possessing a weapon on the premises of a school, a violation of Tex. Pen.Code Ann. § 46.03 (Vernon Supp.2004-2005). While that offense is one punishable as a third degree felony, it expressly describes a firearm as the kind of gun prohibited on school premises. A firearm is “any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.” Tex. Pen.Code Ann. § 46.01(3) (Vernon 2003). James Mathis, the police officer who seized the pellet gun from KH.’s backpack, agreed in his testimony that the pellet is propelled from this gun by compressed air. K.H. clearly did not violate this statute.

“The crime” also could not have been unlawfully carrying a handgun, in violation of Tex. Pen.Code Ann. § 46.02 (Vernon 2003), as a handgun is defined as “any firearm that is designed, made, or adapted to be fired with one hand.” Tex. Pen.Code Ann. § 46.01(5) (Vernon 2003).

The State suggests in its brief K.H. could have been charged with the offense of disorderly conduct and correctly writes, “It is disorderly conduct, and a crime, to display a firearm or other deadly weapon in a public place in a manner calculated to alarm.” See Tex. Pen.Code Ann. § 42.01(a)(8) (Vernon Supp.2004-2005). “Deadly weapon” is defined as:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Tex. Pen.Code Ann. § 1.07(a)(17) (Vernon Supp.2004-2005).

As stated above, the gun in this ease clearly was not a firearm. And, while the State may have been able to prove K. H.’s gun was “capable of causing ... serious bodily injury,” the record in this case is devoid of any such evidence. The State cites Corte v. State, 630 S.W.2d 690, 691-92 (Tex.App.-Houston [1st Dist.] 1981, pet. ref'd), for the proposition that even an unloaded pellet gun can be a deadly weapon. In that case, however, the First court pointed out that an investigator testified the gun used “was capable of inflicting serious bodily injury.” We have no such evidence in the instant case.

We are constrained by the language of the Penal Code, and we cannot stretch its language to make “reasonably believed to be a crime” equivalent to “a crime.” We find the evidence legally insufficient to prove that an underlying crime existed.

There is a separate problem with the first allegation in the petition, also requiring reversal on that accusation. Even if we assumed the existence of an underlying crime, the State was required to prove C.J. was a “witness or prospective witness” as contemplated by the statute. See Tex. Pen.Code Ann. § 36.06(a)(1)(A). The State’s petition alleged the offense was committed due to C.J.’s status as “a witness to a crime.” The statute criminalizes retaliation against a person who is a witness in court. The two terms are not interchangeable.

In this context, the Texas Court of Criminal Appeals defines the term “witness” as “one who has testified in an official proceeding.” Jones v. State, 628 S.W.2d 51, 55 (Tex.Crim.App. [Panel Op.] 1980); accord Morrow v. State, 862 S.W.2d 612, 614 (Tex.Crim.App.1993); see In re B.P.H., 83 S.W.3d 400, 407-08 (Tex.App.-Fort Worth 2002, no pet.).

A “prospective witness” is one who may testify in an official proceeding. Ortiz v. State, 93 S.W.3d 79, 86 (Tex.Crim.App.2002); see Morrow v. State, 862 S.W.2d 612, 614 (Tex.Crim.App.1993). A person who witnesses an offense, but who has not yet testified in a trial involving that offense, is also a prospective witness. Morrow, 862 S.W.2d at 614; see also Ortiz, 93 S.W.3d at 86 (“Any person who is involved in an offense with a defendant, who sees the defendant committing an offense, or who hears the defendant discuss committing an offense is a ‘prospective witness’ in the prosecution of that defendant because he ‘may’ testify.”); Stewart v. State, 137 S.W.3d 184, 187 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). The State’s petition in this case, however, did not allege C.J. was a “prospective witness.”

The State has directed us to our opinion in Solomon v. State, 830 S.W.2d 636 (Tex.App.-Texarkana 1992, pet. ref'd), to support its position that the crime of retaliation was committed because C.J. could have been a witness in a number of different ways. Our opinion does so hold, but in connection with the separate portion of Section 36.06(a)(1)(A), which describes a “prospective witness,” not a witness, and the charging instrument in Solomon also correctly alleged a threat against a person who was a prospective witness in court, not a witness to an act.

K.H. contends there is no evidence to support the jury’s finding that he threatened C.J. in retaliation for the status of C.J. as a witness. He is correct; there is no evidence to support that finding. The contention is sustained.

The State also argues in the alternative that, if we conclude the evidence is insufficient, then a second charge of ter-roristic threat made against K. H., which was not reached by the jury, should be treated as a lesser included offense, and we should reform the judgment to find K.H. guilty of the lesser offense. Terror-istic threat is committed when:

(a) A person ... threatens to commit any offense involving violence to any person or property with intent to:
(2) place any person in fear of imminent serious bodily injury.

Tex. Pen.Code Ann. § 22.07 (Vernon Supp. 2004-2005).

We first address the question posed in the second ground for review stated above. A defendant is entitled to a lesser included offense instruction in the jury charge if (1) the requested charge is a lesser included offense of the offense charged, and (2) there is some evidence that, if the defendant is guilty, he or she is guilty only of the lesser offense. To determine if an offense is a lesser included offense, we look to Article 37.09 of the Code of Criminal Procedure, which states in relevant part: “An offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Tex.Code Crim. Proc. Ann. art. 37.09 (Vernon 1981); see Irving v. State, 161 S.W.3d 503 (Tex.Crim.App., 2005).

Several courts have held that terroristic threat is not a lesser included offense of retaliation because retaliation does not require that the actor threaten with the intent to place a person in fear of imminent serious bodily injury. See Coward v. State, 931 S.W.2d 386, 389 (Tex.App.-Houston [14th Dist.] 1996, no pet.); Davis v. State, 890 S.W.2d 489, 492 (Tex.App.-Eastland 1994, no pet.); see also Helleson v. State, 5 S.W.3d 393, 396 (Tex.App.-Fort Worth 1999, pet. ref'd). Retaliation requires nothing other than a threat to harm. Terroristic threat requires much more, a threat intended to place a person in fear of “imminent bodily injury.” This is the reverse of a lesser included offense situation, for terroristic threat requires proof of a higher level of threat than does retaliation. Thus, we do not believe that this greater level of threat could be subsumed within the lesser amount required by retaliation. Even if the evidence could have supported such a result, the jury did not pass on the greater level, and in the absence of uncontroverted, unchallenged evidence, we could not put ourselves in the place of the fact-fínder and so find for the first time at this level of review.

When we find legally insufficient evidence to support a judgment, we typically reverse and render. In this case, however, at the time of the adjudication and disposition sending K.H. to the Texas Youth Commission, he was already on probation for a prior act, and further action by the trial court will be required to effectuate our judgment.

For the reasons set forth above, we reverse the judgment and remand the case for further proceedings in accordance with this opinion.

      . In re J.K.R., 986 S.W.2d 278, 280-81 (Tex.App.-Eastland 1998, pet. denied); In re R.S.C., 940 S.W.2d 750, 751 (Tex.App.-El Paso 1997, no writ); In re D.S., 921 S.W.2d 860, 861 (Tex.App.-San Antonio 1996, no writ); In re J.R., 907 S.W.2d 107, 109 (Tex.App.-Austin 1995, no writ); C.E.J. v. State, 788 S.W.2d 849, 852 (Tex.App.-Dallas 1990, writ denied); see In re D.A.S., 973 S.W.2d 296, 299 (Tex.1998) (recognizing consequences of adjudication of delinquency and loss of liberty by juvenile may be comparable to felony conviction); In re M.A.F., 966 S.W.2d 448, 450 (Tex.1998) (recognizing that juvenile cases are quasi-criminal in nature).

      . Under the authority of In re M.R., 858 S.W.2d 365, 366 (Tex.1993), most courts of appeals require a motion for new trial raising a factual sufficiency challenge before the party may challenge the factual sufficiency of the evidence in a juvenile adjudication hearing. See In re J.A.A., No. 10-03-012-CV, 2003 WL 23120184, at *1, 2003 Tex.App. LEXIS 10880, at *1 (Tex.App.-Waco Dec.31, 2003, no pet.) (mem.op.) (motion for new trial raising factual sufficiency challenge required); In re E.U.M., 108 S.W.3d 368, 371-72 (Tex.App.-Beaumont 2003, no pet.) (motion for new trial raising factual sufficiency challenge required); In re D.T.C., 30 S.W.3d 43, 51 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (indicating that motion for new trial raising factual sufficiency challenge required). Contra In re J.L.H., 58 S.W.3d 242, 245 (Tex.App.-El Paso 2001, no pet.). In this case, K.H. did not file a motion for new trial.

      . Taken to its logical conclusion, K.H. argues that, if there is no conviction for the underlying crime, then under the express language of the statute, any behavior by the actor toward a witness or prospective witness is irrelevant.

      . See Adame v. State, 69 S.W.3d 581, 582 (Tex.Crim.App.2002).

      . Compare Zorn v. State, — S.W.3d -, -, No. 12-01-00111-CR, 2002 WL 841146, at *1, 2002 Tex.App. LEXIS 3058, at *2 (Tex.App.-Tyler Apr.30, 2002, pet. granted). In that case, the Tyler court applied Cunningham v. State, 726 S.W.2d 151, 154-55 (Tex.Crim.App.1987), for the proposition that, if the facts required to satisfy the elements of the greater offense can be used to satisfy the dissimilar element of the lesser offense, then that offense is properly categorized as a "lesser included offense" of the greater offense, and decided it would address the question on a case-by-case basis. Id.


author: Opinion by Chief Justice MORRISS.

text:
    Tavares Latra MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00148-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted March 24, 2005.
    Decided July 26, 2005.

      R. Scott Walker, Marshall, for appellant.
    Ray Bowman, Asst. Dist. Atty., Long-view, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Chief Justice MORRISS.

Approximately one hour after responding to a report of domestic violence at the home of Kimberly Fifita and Tavares La-tea Moore, police questioned Fifita and her nine-year-old son on videotape. In response to police questions, Fifita stated that Moore had assaulted her, by choking her, hitting her with a chair, and slamming her against a wall. Fifita’s son offered a few corroborating answers on the videotape. Although Fifita had been subpoenaed by the State to testify at Moore’s resulting trial for assault, she did not appear in time to be examined in person. Her son also did not testify. The videotape was admitted over Moore’s objection.

In two points of error, Moore contends that the introduction of the videotape was harmful error and that his motion for directed verdict should have been granted. We reverse his conviction and remand for a new trial because we hold (1) admitting the videotape was harmful error, and (2) denying Moore’s motion for directed verdict was proper.

(1) Admitting the Videotape Was Harmful Error

In his first point of error, Moore argues that admitting the videotape violated the Confrontation Clause of the United States Constitution. The State argues the videotape contained only excited utterances, all excited utterances are nontestimonial, and therefore this statement was properly admitted. We sustain Moore’s first point of error because

(a) after Crawford, the Confrontation Clause requires exclusion of testimonial statements unless there has been a prior opportunity for cross-examination;
(b) “testimonial” statements include at least prior testimony, police interrogations, and the like;
(c) an excited utterance is not necessarily nontestimonial;
(d) the videotape was testimonial and therefore was erroneously admitted; and
(e) admitting the videotape was harmful.

We examine each of those logical steps in that order.

(a) After Crawford, the Confrontation Clause Requires Exclusion of Testimonial Statements Unless There Has Been a Prior Opportunity for Cross-Examination

The Sixth Amendment provides, “in all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him.” U.S. Const. amend. VI. “The Sixth Amendment’s right of confrontation is a fundamental right and is applicable to the States by virtue of the Fourteenth Amendment.” Shelby v. State, 819 S.W.2d 544, 546 (Tex.Crim.App.1991); McClenton v. State, 167 S.W.3d 86, 93 (Tex.App.-Waco 2005, no pet.).

Until recently, the application of the Confrontation Clause to an out-of-court statement was governed by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), overruled in part, Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. Under Roberts, the statement of an unavailable witness was admissible if it had sufficient “indicia of reliability.” Roberts, 448 U.S. at 66, 100 S.Ct. 2531. Reliability could be inferred if the evidence fell within a firmly rooted hearsay exception. Id.

In Crawford, the United States Supreme Court set out a new test for challenges to out-of-court statements based on the Confrontation Clause. Crawford held that the Confrontation Clause was a procedural guarantee which commands that “reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford, 541 U.S. at 61, 124 S.Ct. 1354. The Court held that, “where testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability [of the witness] and a prior opportunity for cross-examination.” Id. at 68, 124 S.Ct. 1354. Crawford reasoned that the Confrontation Clause was intended to prevent the historic practice of using ex parte examinations as evidence against the accused. Id. The Court rejected the view that the Confrontation Clause applies only to in-court testimony and that the introduction of out-of-court testimonial statements depended on the laws of evidence. Id. at 61, 124 S.Ct. 1354. The Court determined that the framers of the Constitution would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he or she was unavailable to testify and the defendant had a prior opportunity for cross-examination. Id. at 68, 124 S.Ct. 1354.

(b) “Testimonial” Statements Include at Least Prior Testimony, Police Interrogations, and the Like

Though Crawford does not definitively define “testimonial,” it does give some suggestions as to its meaning. The Court held that a statement, which was “knowingly given in response to structured police questioning,” was testimonial. Id. at 53 n. 4, 124 S.Ct. 1354. The Court noted:

“Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” 1 N. Webster, An American Dictionary of the English Language (1828). An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.

Id. at 51, 124 S.Ct. 1354. Testimonial statements are not limited to statements given under oath. See id. at 52, 124 S.Ct. 1354. In addition, the Court noted several proposed definitions for testimonial:

Various formulations of this core class of “testimonial” statements exist: “ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used proseeuto-rially,” Brief for Petitioner 23; “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” Brief for National Association of Criminal Defense Lawyers et al. as Am-ici Curiae S.

Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354. The first two proposed formulations relate to the formal nature of the interaction during which the statement was made. They focus on the formal quality of the statement and its similarity to ex parte in-court testimony. The third proposed formulation focuses on the reasonable expectations of an objective witness.

Yet the Court refused to adopt any of the proposed formulations as a core class of “testimonial” statements. The Court noted that the term “testimonial” includes at a minimum “prior testimony at a preliminary hearing, before a grand jury, or at a former trial” and to “police interrogations.” Id. at 68, 124 S.Ct. 1354. In determining whether a statement is “testimonial,” courts have examined the formal nature of the interaction, the intent of the declarant, or some combination of the two factors. We will examine each of these factors in turn.

Formality. The text of Crawford focuses extensively on the formal nature or quality of the interaction. The Court held “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” Id. at 50, 124 S.Ct. 1354. The Court analyzed at length historical ex parte examination practices and the original intent of the Confrontation Clause. As the Court emphasized, the Confrontation Clause “is a procedural rather than a substantive guarantee.” Id. at 61, 124 S.Ct. 1354. Thus, if the nature of the interaction possesses a sufficiently formal quality such that it is the functional equivalent of ex parte in-court testimony, the statement is testimonial.

Some other courts have focused on the formal nature of the interaction. See Lee v. State, 143 S.W.3d 565, 570 (Tex.App.-Dallas 2004, pet. ref'd); see also Ruth v. State, 167 S.W.3d 560, 568-69 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.) (whether statement is testimonial turns on procedure used to obtain it, not its contents). In Lee, the Dallas Court of Appeals held that an out-of-court statement of a codefendant made during a roadside stop, after he had been arrested and in response to questions of an officer, was testimonial. See Lee, 143 S.W.3d at 570. The court stated, “Although the statement in question was not audible on the recording, that does not alter the formality of the setting that was intended to record testimony for the prosecution of the case being investigated.” Id. The State argues the Dallas Court of Appeals erred in focusing on the intent of the police officer in recording the statement. We disagree that the Dallas Court of Appeals erred in focusing on the intent of the police officer. The intent of the police officer is relevant because it is a strong indication that the interaction was the functional equivalent of a police interrogation. See id. Though the Lee interview may have lacked some of the formality of the interrogation addressed in Crawford, the Dallas Court of Appeals apparently concluded that formality in an interaction could be sufficiently similar to a formal police interrogation to make the statement testimonial.

The Indiana Court of Appeals has held that whether a statement is testimonial revolved around the official and formal quality of the statement. See Fowler, 809 N.E.2d at 963.

Declarant’s Intent. Another approach of determining whether a statement is testimonial involves examining the intent of the declarant. The intent could be examined from either an objective or subjective point of view. While the proposed formulation noted by the Supreme Court views the intent of the declarant from an objective perspective, i.e., whether an objective witness would reasonably believe that the statement would be available for use at a later trial; the intent could also be examined from the subjective view of the de-clarant. While the Supreme Court in Crawford did not specifically adopt the subjective intent of the declarant in defining testimonial, it held that a statement “knowingly given in response to structured police questioning” was testimonial under any conceivable definition of interrogation. Crawford, 541 U.S. at 53, 124 S.Ct. 1354. This statement indicates that the subjective intent of the declarant may be relevant in determining if a statement is testimonial. This Court has held that co-conspirator statements made to another co-conspirator “were not made in a setting where it might reasonably be expected the statements would be used in judicial proceedings.” See Wiggins, 152 S.W.3d at 659; cf. Woods v. State, 152 S.W.3d 105, 114 (Tex.Crim.App.2004) (casual remarks spontaneously made to acquaintances are nontestimonial).

Some courts have indicated that the subjective intent of the declarant is also relevant. Key v. State, No. 12-04-00030-CR, 173 S.W.3d 72, 76, 2005 WL 467167, *4, 2005 Tex.App. LEXIS 1573, at *13 (Tex.App.-Tyler Feb. 28, 2005, no pet.); Fowler, 809 N.E.2d at 965. See Chris Hutton, Sir Walter Raleigh Revived: The Supreme Court Revamps Two Decades of Confrontation Clause Precedent in Crawford v. Washington, 50 S.D. L.Rev. 41, 58 (suggesting “testimonial” includes both objective and subjective aspects).

Hybrid Formulations. Alternatively, “testimonial” could encompass some aspects of both the formal nature of the interaction and intent of the declarant formulations. As discussed below, we believe that Fifita’s statement qualifies as testimonial under either formulation. Therefore, we decline to determine whether “testimonial” refers to the formal nature of the interaction, the intent of the declarant, or some combination of the two approaches at this time.

(c) An Excited Utterance Is Not Necessarily Nontestimonial

The State argues that, as a class, excited utterances are not testimonial. It argues that excited utterances are not generally made in formal settings, for the purpose of preparing a criminal case for prosecution, and are frequently collected at the scene of the crime. The State further argues that an excited utterance cannot be testimonial since the declarant is dominated by the emotions, excitement, fear, or pain of the exciting event.

In support of its argument, the State cites Fowler, 809 N.E.2d 960; Hammon v. State, 809 N.E.2d 945 (Ind.Ct.App.2004), trans. granted; People v. Cage, 15 Cal.Rptr.3d 846 (Cal.Ct.App.2004), review granted and superseded, 19 Cal.Rptr.3d 824, 99 P.3d 2 (Cal.2004). The Indiana Court of Appeals stated:

We further note that the very concept of an “excited utterance” is such that it is difficult to perceive how such a statement could ever be “testimonial.” “The underlying rationale of the excited utterance exception is that such a declaration from one who has recently suffered an overpowering experience is likely to be truthful.” Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind.2000). To be admissible, an excited utterance “must be unrehearsed and made while still under the stress of excitement from the startling event.” Id. “The heart of the inquiry is whether the declarants had the time for reflection and deliberation.” Id. An unrehearsed statement made without reflection or deliberation, as required to be an “excited utterance,” is not “testimonial” in that such a statement, by definition, has not been made in contemplation of its use in a future trial. See Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364 ....

Hammon, 809 N.E.2d at 952-53; see Fowler, 809 N.E.2d at 964. We note that, in Fowler, the court also based its decision on its conclusion that the questioning did not constitute a classic “police interrogation.” Fowler, 809 N.E.2d at 964.

At least one Texas court of appeals appears to have been persuaded by the reasoning of the Indiana Court of Appeals. The Tyler Court of Appeals has stated “we are persuaded that the underlying rationale of an excited utterance supports a determination that it is not testimonial in nature.” Key, 2005 WL 467167 at *5. In making this determination, the Tyler Court of Appeals considered whether the statements were made with the reasonable expectation that they would be used in court. Id. at *4. Because an excited utterance is made by a declarant who has not had time for reflection or deliberation, the court reasoned that the declarant of such a statement did not contemplate its use at a future trial. Id. 2005 WL 467167 at *5.

The Fourteenth District Court of Appeals has recently rejected the notion that all excited utterances are nontestimonial. Spencer v. State, 162 S.W.3d 877, at 878-881 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Although the court held that a declarant’s state of excitement can be considered when determining whether his or her statement is testimonial, the Fourteenth District refused to establish a bright-line rule that excited utterances can never be testimonial. Id. at 881. In addition, the Austin Court of Appeals has stated that the determination of whether a statement is testimonial does not turn on whether it qualifies under a hearsay exception. See Davis v. State, No. 03-04-00014-CR, 169 S.W.3d 660, 668-71, 2005 WL 1173964, at *6-9, 2006 Tex.App. LEXIS 3773, at *20-29 (Tex.App.-Austin May 19, 2005, no pet.) (extensive analysis concluding excited utterances are not necessarily nontestimonial); see also Scott v. State, 165 S.W.3d 27, 47, (Tex.App.-Austin Mar.24, 2005, no pet.) (whether statement is testimonial does not turn on whether it qualifies as self-inculpatory within meaning of hearsay exception). We agree with the reasoning of the Austin Court of Appeals and the Fourteenth District Court of Appeals. Each statement must be analyzed individually independent of whether it is an excited utterance under the Texas Rules of Evidence.

The Crawford decision specifically excludes a statement’s exemption based on the Rules of Evidence. While the Supreme Court noted that “not all hearsay implicates the Sixth Amendment’s core concerns,” it also opined that “leaving the regulation of the confrontation out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices.” Crawford, 541 U.S. at 51, 124 S.Ct. 1354. If we held that all excited utterances were nontestimonial, we would be leaving the regulation of the Confrontation Clause to the Rules of Evidence, which is specifically prohibited by Crawford. The mere fact that a statement may be an excited utterance does not satisfy the Confrontation Clause concerns espoused in Crawford. Under Crawford, whether the introduction of a statement violates the Confrontation Clause is entirely independent of the Texas Rules of Evidence. “The threshold question imposed by Crawford is whether the proffered out-of-court statement is ‘testimonial’ in nature.” Brooks v. State, 132 S.W.3d 702, 707 (Tex.App.-Dallas 2004, pet. ref'd); see Crawford, 541 U.S. at 36, 124 S.Ct. 1354. While many excited utterances will be non-testimonial, we are unwilling to conclude that a statement is not testimonial simply because it is an excited utterance.

(d) The Videotape Was Testimonial and Therefore Was Erroneously Admitted

Whether the right of confrontation has been violated should be reviewed de novo. We note that the State argues that this appeal involves an evidentiary ruling, which is reviewed for an abuse of discretion. The State cites Wilson in urging us to review the trial court’s ruling for an abuse of discretion. Wilson, 151 S.W.3d at 699. But Wilson held that the standard for reviewing a potential Confrontation Clause violation was de novo. Id. at 697. Only after the statements had been determined to be nontestimonial did the court review the admission of the statement under an abuse of discretion standard. Id. at 699. We will review the trial court’s determination that the statement is nontestimonial de novo.

Under the circumstances of this case, Fifita’s statement, that was recorded on videotape, is testimonial. At the time the statement was made, Moore had reported to the police that Fifita had assaulted him. The police officer informed Fifita of her Miranda rights before the interview, and the statements of Fifita and her son were made in response to questioning by the police officer. At trial, the State used the resulting videotape as the functional equivalent of in-court testimony.

The formal nature of the interaction indicates that the statement is testimonial. Although the interview was conducted at Fifita’s residence, the videotaped interview is, or is similar to, a police interrogation. The Supreme Court explicitly held that “statements taken by police officers in the course of interrogations” are clearly testimonial. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Crawford asserted that it used “the term ‘interrogation’ in its colloquial, rather than any technical legal, sense.” Id. at 53 n. 4, 124 S.Ct. 1354. “Colloquial” means “used in or characteristic of familiar and informal conversation.” MeRRiam WebsteR’s Collegiate Dictionary (10th ed.1993). Even if the interview was not a police interrogation in the technical legal sense, it qualifies in the colloquial sense. Moore had been previously interviewed after he reported to the police that Fifita had assaulted him. Fifita was read her rights and asked several questions concerning the events of that morning. She was aware that she was being videotaped and that evidence was being collected. Even though the interview was not as formal as many police interrogations, the purpose of the interview was the same as a typical police interrogation — to record testimony for the prosecution of the offense being investigated. The formality of the videotaped statement greatly favors a finding of the statement being testimonial.

Further, both the subjective intent of the declarant and the reasonable expectations of an objective witness indicate that the statement is testimonial. Fifita understood that the statement could be used to investigate or prosecute the offense and was conscious that she was bearing witness. The State argues that an excited utterance cannot be given solemnly or with the purpose of establishing a fact in court. We disagree. Even if a declarant is still under the influence of the traumatic event and has not had sufficient time to reflect on the incident, the declarant can still understand, under certain circumstances, that the statement will be used for prosecution. In this case, Fifita stated that she understood her Miranda rights. Fifita clearly understood that the videotape was being taken to preserve evidence for later use. Further, an objective witness could reasonably expect the videotaped statement to be available for use at a trial.

Texas eases have held that statements similar to the statement at issue were testimonial. Both the formal nature of the interaction and the intent of the declarant indicate that the statement was testimonial. We conclude Fifita’s recorded out-of-court statement made in response to the questioning of the police officer, especially after she had been warned of her rights under Miranda, are testimonial.

In addition, we believe the brief statement given by Fifita’s son is testimonial as well. While Fifita was being interviewed on the videotape, Fifita called her son in from an adjoining room at the police officer’s request. Fifita’s son stated that he saw Moore grab his mother around the neck, appear to choke her, and throw her against the wall. While the officer did not read the son his rights, the police officer did introduce himself and inform the son that he was investigating the “incident” which occurred that morning. The formal nature of the statement indicates it was testimonial. The interview was the functional equivalent of in-court testimony. The son was aware that he was being videotaped and that evidence was being collected. The purpose of the interview was to memorialize the evidence and preserve it for trial. Further, an objective witness would reasonably believe that the statement would be available for use later at trial. The police officer informed the son that he was investigating the “incident,” and the son could observe the statement was being videotaped. Both the formal nature of the interaction and the intent of the declarant indicate that the statement was testimonial. We conclude Fifita’s son’s recorded, out-of-court statement made in response to the questioning of the police officer, after being informed the officer was investigating “the incident,” was testimonial. Therefore, admitting the videotape was error.

(e) Admitting the Videotape Was Harmful

When a defendant’s rights under the Confrontation Clause are violated, we must reverse the trial court’s judgment due to constitutional error unless it is determined beyond a reasonable doubt that the error did not contribute to the appellant’s conviction. Tex.R.App. P. 44.2(a); McClenton, 167 S.W.3d at 94-95; Wall, 143 S.W.3d at 851.

In determining if the error contributed to the appellant’s conviction, we apply the factors enunciated by the Supreme Court in Delaware v. Van Arsdall. McClenton, 167 S.W.3d at 95; see Delaware v. Van Arsdall, 475 U.S. 673, 686-87, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). These factors include (1) the importance of the witness’ testimony, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the witness’ testimony, (4) the extent cross-examination was permitted, and (5) the overall strength of the State’s case. McClenton, 167 S.W.3d at 95; see Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431. If, after considering the above factors, we cannot conclude beyond a reasonable doubt that the error did not contribute to the appellant’s conviction, we must reverse the trial court’s judgment. McClenton, 167 S.W.3d at 95-96. Our inquiry focuses on whether the eomplained-of error contributed to the jury’s verdict— regardless of the sufficiency of the legally admitted evidence. Id.; Bratton v. State, 156 S.W.3d 689, 693 (Tex.App.-Dallas 2005, no pet.).

The Van Arsdall factors indicate that the error did contribute to Moore’s conviction. The videotape was not merely cumulative of other testimony and was of great importance. The videotape contained the only direct evidence that Moore assaulted Fifita. Moore had no opportunity for cross-examination. Further, the State’s case was weak without the videotape. While Fifita’s injuries did partially corroborate the statement, the corroboration is insufficient to conclude beyond a reasonable doubt that the error in admitting the videotape did not contribute to the conviction.

We sustain Moore’s first point of error.

(¾) Denying Moore’s Motion for Directed Verdict Was Proper

In his second point of error, Moore alleges the trial court erred in denying his motion for a directed verdict. A point of error complaining about a trial court’s failure to grant a motion for directed verdict is a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996); Smith v. State, 109 S.W.3d 80, 81 (Tex.App.-Texarkana 2003, no pet.). In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This requires us to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999); Glover v. State, 102 S.W.3d 754, 759 (Tex.App.-Texarkana 2002, pet. ref'd).

Blackburn testified to some of what Fifita told him the morning of the assault, but he did not recount any allegation from Fifita that Moore assaulted her. Further, we are required to consider the videotape as part of the evidence for this review, even though it should not have been admitted. Even erroneously admitted evidence must be considered when addressing a challenge to the sufficiency of the evidence. Glover, 102 S.W.3d at 759. Both Fifita and her son describe on the videotape the assault and identify Moore as the person who committed the assault. In addition, the videotape reveals Fifita’s injuries. Because we are to consider even erroneously admitted evidence in determining if the evidence is sufficient, the evidence is legally sufficient. The trial court did not err in denying the motion for directed verdict. We overrule Moore’s second point of error.

We reverse the judgment of the trial court and remand this case for a new trial.

      . During the early morning of March 17, 2004, an altercation occurred between Moore and Fifita, in the presence of Fifita's son. The confrontation resulted in several bruises to Fifita’s legs and back. After Moore left the residence, he called the police and accused Fifita of assaulting him. The police were dispatched to the residence at seven o’clock that morning. At approximately eight o'clock, after advising Fifita of her Miranda rights, the police recorded the videotaped statements of Fifita and her son. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Moore was charged with and convicted of felony assault of a household member after having been convicted previously for assault of a household member. See Tex. Pen.Code Ann. § 22.01(b)(2) (Vernon Supp.2004-2005). He was sentenced to ten years’ imprisonment.

      . When the State subpoenaed Fifita, she informed the prosecuting attorney she would not be coming to trial and "might as well write her own obituary" if she testified against Moore. In violation of the subpoena, Fifita did not appear to testify at trial. In cases like this, the victims of domestic violence are often reluctant to participate in the prosecution of their abusers. As noted by other courts, scholars have estimated that as many as "eighty to ninety percent of domestic violence victims recant their accusation or refuse to cooperate with a prosecution.” Fowler v. Indiana, 809 N.E.2d 960, 965 (Ind.Ct.App.2004), trans. granted (citing Tom Linger, Evidentiary Issues in Federal Prosecutions of Violence Against Women, 36 Ind. L.Rev. 687, 709 n. 76 (2003)); see Spencer v. State, 162 S.W.3d 877 (Tex.App.-Houston [14th Dist.] 2005, no pet.).

      . The State introduced the videotape under the excited-utterance exception to the hearsay rule, and the investigating officer testified. Before the State rested and outside the presence of the jury, the trial court was able to contact Fifita on her cell phone and discovered she was in Shreveport, Louisiana. Fifita promised the trial court she would return to Longview and would arrive in about an hour. At that point, the State rested, the jury charge was read, and the jury retired for deliberations. After the jury had begun deliberations, Fifita arrived at the courthouse.

      . Moore raises the confrontation issue only under the United States Constitution. He makes no claim of such right under Article I, Section 10 of the Texas Constitution. See Tex.R.App. P. 38.1(h). Moore has not claimed that the state constitution provides greater or different protection than the federal constitution. See Lagrone v. State, 942 S.W.2d 602, 613 (Tex.Crim.App.1997); Wall v. State, 143 S.W.3d 846, 849 (Tex.App.-Corpus Christi 2004, pet. filed); Hale v. State, 139 S.W.3d 418, 421 (Tex.App.-Fort Worth 2004, no pet.). We therefore do not address any state constitutional issue.

      . Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . Several courts have suggested that nontesti-monial statements are still governed by Roberts. See Wiggins v. State, 152 S.W.3d 656, 660 (Tex.App.-Texarkana 2004, pet. ref'd).

      . Of course, when a witness appears at trial and is subject to cross-examination, the Confrontation Clause is not violated. See Champion v. State, No. 06-04-00141-CR, 2005 WL 1147832 at *3 n.4 (Tex.App.-Texarkana May 17, 2005, no pet.); Mumphrey v. State, 155 S.W.3d 651, 657 n. 1 (Tex.App.-Texarkana 2005, pet. ref'd); Carter v. State, 150 S.W.3d 230, 241 n. 13 (Tex.App.-Texarkana 2004, no pet.); see also Mason v. State, No. 06-03-00199-CR, 2004 WL 1615785, at *2 n.1, 2004 Tex.App. LEXIS 6458, at *5 n. 1 (Tex.App.-Texarkana June 10, 2004, no pet.) (not designated for publication.)

      .Although Crawford is clearly a landmark decision, there is understandable uncertainty in its implementation. The Court declined to provide a comprehensive definition for testimonial statements. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Until the Court provides that comprehensive definition, the meaning of ‘'testimonial'' will likely be refined by courts for some time.

      . The Supreme Court suggested that dying declarations may be an exception to the Rules of Evidence not applying to Confrontation Clause challenges, but chose not to decide that issue. Crawford, 541 U.S. at 56 n. 6, 124 S.Ct. 1354.

      . McClenton, 167 S.W.3d at 93; Scott, 165 S.W.3d at 45; Wilson v. State, 151 S.W.3d 694, 697 (Tex.App.-Fort Worth 2004, pet. ref'd); Wall, 143 S.W.3d at 849; Brooks, 132 S.W.3d at 705; see Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); see also Ponce-Duron v. State, No. 2-03-362-CR, 2004 WL 2568122, 2004 Tex.App. LEXIS 10149 (Tex.App.-Fort Worth Nov. 12, 2004, no pet.) (not designated for publication) (de novo review).

      . Samarron v. State, 150 S.W.3d 701, (Tex.App.-San Antonio 2004, no pet.) (statement taken approximately an hour after incident, in response to police questioning, admitted under excited-utterance exception); Gutierrez v. State, 150 S.W.3d 827, 830 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (videotaped statement held testimonial); Jahanian v. State, 145 S.W.3d 346, 349 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (written statement made after declarant became suspect); see Wall, 143 S.W.3d at 851 (victim’s statement at hospital held testimonial); Hale v. State, 139 S.W.3d 418, 420 (Tex.App.-Fort Worth 2004, no pet.) (codefendant’s statement to police); Brooks, 132 S.W.3d at 707 (codefendant's written statement to police). But see Cassidy v. State, 149 S.W.3d 712, 716 (Tex.App.-Austin 2004, pet. ref'd) (victim’s statement to police at hospital admitted as excited utterance held not result of interrogation).

      . Though not argued by the parties, one might question whether Officer Michael Blackburn’s testimony concerning his encounter with Fifita the morning of the incident might cure the error in admitting the videotape. While some of Blackburn’s testimony was objected to, the defense did not make objections to all of his testimony. Any error in allowing inadmissible evidence is cured when the same evidence comes in without objection elsewhere at trial. Rogers v. State, 853 S.W.2d 29, 35 (Tex.Crim.App.1993). Yet, when the other evidence is not subject to the same basis for an objection, admission of the same substance elsewhere does not cure the improper admission. Matt v. State, 14 S.W.3d 746, 747 (Tex.Crim.App.2000) (when defense objection is based on form of evidence, i.e., hearsay, defense’s failure to object to evidence with same substance did not cure error in admitting inadmissible evidence). Since the objection to the excited utterances contained on the videotape concerned the Confrontation Clause, Blackburn's testimony might have been objected to on the same basis. The unobjected-to testimony of Blackburn, though, did not concern the substance of Fifita’s statement, but rather that Fifita had visible injuries, appeared to be nervous and startled, and later sought a protective order. We believe that the unobjected-to testimony of Blackburn does not contain sufficiently similar substance to cure the improper admission. We note that the San Antonio Court of Appeals has held, when the error involves the denial of a constitutional right, the admission of other evidence proving the same facts is only one factor to consider when deciding whether harm resulted and is not dispositive on its own. Rodriguez v. State, 926 S.W.2d 379, 381 (Tex.App.-San Antonio 1996, no pet.).

      . Crawford noted that “the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds.” Crawfofd, 541 U.S. at 62, 124 S.Ct. 1354. Although the State alleged at trial that the victim was afraid of testifying, the State neither argues on appeal that Moore forfeited his confrontation claims, nor alleges any acts committed by Moore which may have forfeited his confrontation claims.