author: Justice OWEN

text:
    Jose GARZA, Petitioner, v. EXEL LOGISTICS, INC. and Interim Services Pacific LLC, Respondents.
    No. 02-1187.
    Supreme Court of Texas.
    Argued Feb. 18, 2004.
    Decided April 8, 2005.
    Loren George Klitsas, Klitsas & Vereher, P.C., Lauren L. Beck-Harris and Eileen K. Wilson, Johnson, Spalding, Doyle, West & Trent, L.L.P., Houston, for Petitioner.
    Robert D. Allen, Baker & McKenzie, LLP, Linda Marie Dedman, Dedman & Handschuch, Dallas, for Respondents.
    E. Thomas Bishop and Alexander N. Beard, Bishop & Hummert, P.C., Dallas, for Amicus Curiae Utica National Insurance Group.
    Neal Kieval, Phillips & Akers, P.C., Houston, for Amicus Curiae The Kroger Company.
   Justice OWEN

delivered the opinion of the Court.

A worker hired by a temporary employment agency was injured while performing tasks for the agency’s client. The trial court granted summary judgment for the agency and its client, concluding that the Workers’ Compensation Act’s exclusive remedy provision bars the worker’s common law claims. The court of appeals affirmed. We affirm the court of appeals’ judgment as to the temporary employment agency. But because the client company did not establish that it is “covered by workers’ compensation insurance coverage,” which is necessary to come within the exclusive remedy provision, we reverse the court of appeals’ judgment as to the client company and remand the case to the trial court for further proceedings.

I

Interim Services Pacific LLC, a temporary employment agency, employed Jose Garza as a laborer and assigned him to perform general labor at Exel Logistics, Inc., one of Interim’s clients. Garza sued Interim and Exel after he was injured while crossing over a moving conveyor belt to turn off a machine at the request of an Exel supervisor.

Interim and Exel jointly moved for summary judgment, arguing that both companies were Garza’s employers when he was injured, a workers’ compensation policy that Interim obtained inured to Exel’s benefit, and the Texas Workers’ Compensation Act’s exclusive remedy provision therefore bars Garza’s claims. In response, Garza conceded that Interim was his employer and that he received workers’ compensation benefits through a policy Interim procured, but he argued that Exel was not his employer and that there was insufficient proof that Exel was covered by workers’ compensation insurance.

The trial court granted summary judgment in favor of Interim and Exel, and the court of appeals affirmed, holding that both Interim and Exel were entitled to summary judgment based on the exclusive remedy provision. The court of appeals concluded that the summary judgment evidence established that Interim and Exel were Garza’s co-employers based on Exel’s actual control over Garza and other temporary workers assigned to Exel. The court also determined that Exel was covered by Interim’s workers’ compensation insurance policy based on contract provisions requiring Exel to pay Interim for costs associated with maintaining workers’ compensation insurance.

On appeal to this Court, Garza does not dispute that workers’ compensation is his exclusive remedy against Interim. Because we conclude that Exel did not conclusively establish that it is “covered-by workers’ compensation insurance coverage” within the meaning of the exclusive remedy provision, we reverse the court of appeals’ judgment in part and remand the case to the trial court.

II

The causes of action available to Garza against Exel depend on whether Exel was (1) his employer and “covered by workers’ compensation insurance coverage,” (2) his employer and not covered by workers’ compensation insurance, or (3) not his employer. In the first instance, Garza’s exclusive remedy would be recovery of workers’ compensation benefits. In the second, Garza would be required to prove that his injuries were caused by the negligence of Exel or its agent, servant or employee acting within the general scope of employment, but Exel would be foreclosed from asserting certain defenses, including contributory negligence. In the third, Garza would have the full array of causes of action, and Exel would have all defenses available to it.

Exel asserts that it was Garza’s employer and that it was covered by workers’ compensation insurance. Garza contends there is a fact question on both scores. Because this case was decided on summary judgment, Exel must establish each of its contentions as a matter of law.

The court of appeals decided this case before we issued our decision in Wingfoot Enterprises v. Alvarado. In Wingfoot, we examined the Workers’ Compensation Act and held that an employee of a temporary employment agency who is “injured while working under the direct supervision of a client company is conducting the business of both the general employer [the temporary employment agency] and that employer’s client.” We further held, based on the provisions of the Act, that the injured “employee should be able to pursue workers’ compensation benefits from either,” and that “[i]f either has elected not to provide coverage, but still qualifies as an ‘employer’ under the Act, then that employer should be subject to common law liability without the benefit of the defenses enumerated in section 406.033.”

In Wingfoot, it was undisputed that the client company had workers’ compensation insurance coverage, and no one challenged the jury’s finding that the client controlled the details of the employee’s work at the time of her injury. The only question was whether the temporary employment agency that was Alvarado’s general employer could also be an “employer” for purposes of the exclusive remedy provision in section 408.001. We held that the exclusive remedy provision applied to a general employer that had workers’ compensation insurance coverage.

In the case presently before us, we have the reverse situation. Garza concedes that his general employer Interim, a temporary employment agency, was his employer when he was injured and that' his claims against Interim are limited to recovery of workers’ compensation benefits. The question is whether Interim’s client, Exel, was also Garza’s employer and was covered by workers’ compensation insurance.

In determining whether Exel established as a matter of law that it was Garza’s employer, we begin with the provisions of the Workers’ Compensation Act to determine who is an employee and who is an employer for workers’ compensation purposes. The Act defines “employer” in section 401.011, the general definitions section:

“Employer” means, unless otherwise specified, a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage. The term includes a governmental entity that self-insures, either individually or collectively.

We consider below whether Exel “has workers’ compensation insurance coverage” and conclude that is an unanswered question based on this record. However, and more importantly, the meaning of “employer” is “otherwise specified” in the Act when determining whether an employer has elected to obtain workers’ compensation coverage. Section 406.001, found in the subchapter dealing with “Coverage Election,” says: “In this subchapter, ‘employer’ means a person who employs one or more employees.” This definition is one piece to the puzzle, but it does not, in and of itself, tell us whether Garza was Exel’s employee. “[A] person who employs one or more employees” is a less restrictive definition than the general definition in section 401.011. But it is obvious that an employer of one or more employees is not the employer of every person who is an employee. General Motors has more than one employee, but it is not the employer of Ford Motor Company employees, at least not as a general proposition. To fully answer the question of who is an employer and who is that employer’s employee, we must look elsewhere in the Act.

The Act defines “employee” as “each person in the service of another under a contract of hire, whether express or implied, or oral or written.” There is no indication from the legislative history of this definition that the Legislature intended to dispense with traditional notions of what it means to be “in the service of another.” We are guided by the Code Construction Act, which tells us that “[wjords and phrases shall be read in context and construed according to the rules of grammar and common usage,” and “[wjords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”

In another section of the Workers’ Compensation Act that pertains only to certain hiring contractors and independent contractors in the building or construction industry, the Legislature implicitly recognized that exerting “employer-like” controls might cause an employee of an independent contractor to be considered the employee of the hiring contractor for workers’ compensation purposes. The Legislature specified that controlling certain matters did not amount to “employer-like controls.”

Accordingly, in determining if a general employee of a temporary employment agency is also an employee of a client company for purposes of the Act, we consider traditional indicia, such as the exercise of actual control over the details of the work that gave rise to the injury.

The material evidence in the summary judgment record in this regard is undisputed. Garza was working on Exel’s premises when he was injured. He was supervised on those premises by an Interim employee, Joe Castaneda. Garza testified, however, that sometimes he was supervised by an Exel employee, Roberto Luna. When asked: “Generally, on a day-to-day basis, who was the person that told you exactly what to do and how to do it?,” Garza replied: “As I said, sometimes it would be Roberto [an Exel supervisor]; and sometimes it would be Joe Castaneda [an Interim supervisor].” Garza was injured when he responded to direct instructions from Luna, the Exel supervisor. Luna told Garza to cross over a moving conveyor belt to turn off a machine, and Garza was injured in doing so. When asked why he did not walk around the conveyor belt, Garza testified, “I was going to go around, but Roberto Luna told me to cross over down there in order to turn off the machine quickly.”

This undisputed evidence establishes that at the time Garza was injured, he was working on Exel’s premises, in the furtherance of Exel’s day-to-day business, and the details of his work that caused his injury were specifically directed by Exel. Accordingly, for workers’ compensation purposes, Garza was an Exel employee within the meaning of section 401.012 — (a) a “person in the service of another under a contract of hire, whether express or implied, oral or written” — at the time he was injured. We turn to whether Exel was covered by a workers’ compensation insurance policy.

Ill

Exel has not come forward with a workers’ compensation policy that it ob-tamed for itself. Instead, it contends that under its contract with Interim, the “markup” it paid to Interim was to be used to purchase workers’ compensation insurance, that Interim in fact purchased insurance, and therefore, Exel is covered. The evidence, however, does not indicate that coverage was extended to Exel in its own right. The court of appeals concluded that the contract between Interim and Exel “required [Exel] to pay Interim for the costs associated with maintaining [Interim’s] workers’ compensation insurance,” and therefore, “Excel [sic] provided worker’s [sic] compensation insurance for Garza, albeit through Interim.” We disagree. The Act does not permit a temporary employment agency like Interim to obtain coverage for a client simply by obtaining coverage for itself. There must be explicit coverage for the client.

The Act governs how an employer must make an election to obtain coverage. Section 406.002 says “an employer may elect to obtain workers’ compensation insurance coverage,” and if it does so, it is subject to the Act. The methods of obtaining coverage specified in the Act are “through a licensed insurance company or through self-insurance as provided by this subtitle.” “An insurance company may contract to secure an employer’s liability and obligations and to pay compensation by issuing a workers’ compensation insurance policy,” and “[t]he contract for coverage must be written on a policy and endorsements approved by the Texas Department of Insurance.” There is no evidence that an insurance company has contracted to secure Exel’s liability and obligations, as distinguished from Interim’s.

Other provisions of the Labor Code indicate that the Legislature envisioned that a workers’ compensation policy must cover the employer and that premiums are to be based on that employer’s rating experiences, not another employer’s. One such indication is the Staff Leasing Services Act. To qualify under that Act, a contract between.a staff leasing license holder and its client must provide that the leasing company “shares, as provided by Subsection (b), with the.client company the right of direction and control over employees assigned to a client’s worksites.” The leasing company decides whether to obtain workers’ compensation coverage, and its election is binding on its client. If the leasing company elects coverage, its policy covers both the leasing company and its client. However, the client company’s experience rating, not the leasing company’s, is used to determine premiums for workers’ compensation insurance for the first two years. Thereafter, the premiums may be based on other factors. The Staff Leasing Services Act does not apply to temporary or seasonal employment, but the specificity with which it addresses workers’ compensation strongly indicates that a leasing company cannot accomplish under the general workers’ compensation provisions of the Labor Code what it is prohibited from accomplishing under the Staff Leasing Services Act, which is also a part of the Labor Code. Suppose, for example, that the leasing company and the client decided not to expressly agree in a written contract that the client shares the right of direction and control of employees, but in fact, the parties contemplated they would share actual control and did so. The Staff Leasing Services Act would not apply. Did the Legislature intend to allow the leasing company and its client nevertheless to agree that the leasing company would obtain a policy for itself, based on its own experience rating, and that such a policy would also cover leased employees while working under the actual control of the client? The answer is no, this is not contemplated by the Labor Code. The specificity and details of the Staff Leasing Services Act negate the notion that parties can, by private agreement, decide that a single policy naming only one insured will cover one company’s employees while they are working under the direct control of another company, or that the experience rating of one and not the other will determine who the named insured will be.

Other provisions of the Labor Code strongly suggest that two employers cannot agree that one workers’ compensation policy will name only one employer but cover both. The Labor Code has a specific section that allows general contractors to agree in writing with subcontractors that the general contractor will provide workers’ compensation coverage for the subcontractor’s employees. Such an agreement “makes the general contractor the employer of the subcontractor and the subcontractor’s employees only for purposes of the workers’ compensation laws.” There are similar provisions for motor carriers and employees of an owner-operator. If two employers could agree that one of them would obtain a workers’ compensation insurance policy that named only one of them but that it was to be for the benefit of both and therefore both would be protected by the exclusive remedy of workers’ compensation benefits, then there would have been no need for the statutory grant of authority to general contractors and motor carriers to obtain coverage for themselves as well as subcontractors or independent contractors and their employees. The Legislature obviously thought that specific permission was necessary.

Nothing in the contract between Interim and Exel indicates that Interim was required to obtain a workers’ compensation policy that named both parties as insureds, or that Interim was required to obtain a separate policy for Exel. The contract indicates the opposite.

Exel points to a section in the contract entitled “PAYMENT FOR SERVICES,” which provides:

In consideration for [Interim’s] performance of the Services, [Interim] shall receive as sole payment, the hourly rates negotiated with Exel Logistics Operations in the respective market plus the markups reflected for the appropriate classification of temporary labor for the respective market as set forth in Exhibit A1 (Rate Schedule). The markups in Exhibit A1 include all costs, overhead and burden associated with providing temporary labor to Exel Logistics, including but not limited to costs associated with testing, background investigations, training, workers compensation, insurance, etc. No fees may be billed other than the markup on the hourly rate.

It is unclear from this paragraph whether the workers’ compensation insurance was to be procured for Interim or Exel, but other provisions make it clear that Interim was to be the insured, not Exel. A paragraph addressing insurance required Exel to be named as an additional insured under “Commercial General Liability” coverage, “Automobile Liability” coverage and “Commercial Blanket Bond,” but not “Workers’ Compensation” coverage:

4.8 [Interim] agrees to procure and maintain insurance during the entire term of the Agreement and, prior to the commencement of providing the Services, shall furnish to Exel Logistics Certificates of such insurance and, upon its request, shall provide Exel Logistics the opportunity to review [Interim’s] policies, covering the following risks:
(i) Commercial General Liability— $1,000,000
(ii) Automobile Liability — $1,000,000
(iii) Workers’ Compensation — Statutory Limits
(iv) Employer’s Liability — $1,000,000
(v) Employer Practices — $1,000,000
(vi) Directors/Officers — $1,000,000
(vii) Commercial Blanket Bond— $1,000,000
(viii) Depositor’s Forgery — $100,000
(ix) Umbrella Liability — $20,000
[Interim] will add Exel Logistics as an additional insured to coverage (i), (ii), and (vii).

Additionally, the contract provided that none of the temporary employees would be eligible for Exel’s employee benefits, which would seem to include workers’ compensation benefits, if any:

[Interim] hereby acknowledges and agrees that neither [Interim], the Employees, nor any of [Interim’s] employees, associates, contractors, agents, representatives, assignees or successors in interest will be eligible for any Exel Logistics employee benefits.

The term “the ‘Employees’ ” is defined in the contract: “[Interim] shall, as approved and supervised by Exel Logistics, furnish and assign necessary personnel (collectively the ‘Employees’) and equipment, except such as are furnished by Exel Logistics, to complete various tasks as required to perform the Services.”

But even if Interim were contractually obligated to obtain workers’ compensation insurance that named Exel as an insured, or it gratuitously chose to do so, no such policy has been identified or made part of this record. Accordingly, Exel has not established that it is “covered by workers’ compensation insurance coverage” for a “work-related injury sustained by the employee,” in this case, Garza, which is a prerequisite to the application of the exclusive remedy provision in section 408.001(a).

In this case, we are construing only the Labor Code, specifically the Workers’ Compensation Act; we are not applying general common-law principles regarding vicarious liability for injuries to third parties. We reiterate what we said in Wing-foot: “The common-law principles that define when there will be vicarious liability are designed to assign liability for injury to third parties to the party who was directing the details of the negligent actor’s conduct when that negligence occurred.” The Workers’ Compensation Act was not. Nor are we called upon to consider today the rights of two workers’ compensation carriers who have insured against injuries to the same individual, or whether an injured employee who is insured under more than one workers’ compensation policy may retain benefits under both.

We reverse the court of appeals’ judgment in Exel’s favor and remand the case to the trial court for further proceedings. Because Garza concedes that Interim is his employer and that he has received workers’ compensation insurance under its policy, we affirm the court of appeals’ judgment as to Interim.

      . See Tex. Lab.Code § 408.001.

        . 100 S.W.3d280.

      . Id. at 287-88.

      . Id. at 288.

      . Tex. Lab.Code § 408.001(a).

      . Id. § 408.001(a).

      . Id. § 406.033.

      . Id. § 408.001(a). It provides:
      § 408.001. Exclusive Remedy; Exemplary Damages
      (a) Recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.

      . Id. § 406.033(a), (c), (d).

      . See Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 927 (Tex.1996) (a defendant moving for summary judgment on an affirmative defense must prove each element of its defense as a matter of law, leaving no issues of material fact).

      . Ill S.W.3d 134 (Tex.2003).

      . Id. at 143.

      . Id. (citing Tex. Lab.Code § 406.033).

      . Id. at 135-36.

      . Id. at 134-35 (citing Tex. Lab.Code § 408.001).

      . Id. at 135, 139, 149.

      . Tex. Lab.Code§ 401.011(18).

      . Id. § 406.001.

      . Id. § 401.012(a).

      . Tex. Gov’t Code § 311.001-.034.

      . Id. §311.011.

      . Tex. Lab.Code § 406.142. It provides:
      § 406.142. Application
      This subchapter applies only to contractors and workers preparing to construct, constructing, altering, repairing, extending, or demolishing:
      (1) a residential structure;
      (2) a commercial structure that does not exceed three stories in height or 20,000 square feet in area; or
      (3) an appurtenance to a structure described by Subdivision (1) or (2).

      . Tex. Lab.Code § 406.146(b) provides:
      (b) A hiring contractor does not exert employer-like controls over an independent contractor or an independent contractor's employee solely because of:
      (1) controlling the hours of labor, if that control is exercised only to:
      (A) establish the deadline for the completion of the work called for by the contract;
      (B) schedule work to occur in a logical sequence and to avoid delays or interference with the work of other contractors; or
      (C) schedule work to avoid disturbing neighbors during night or early morning hours or at other times when the independent contractor’s activities would unreasonably disturb activities in the neighborhood; or
      (2) stopping or directing work solely to prevent or correct an unsafe work practice or condition or to control work to ensure that the end product is in compliance with the contracted for result.

      . Id.

      . Id. § 401.012(a).

      . 100 S.W.3dat288.

      . Tex. Lab.Code § 406.002.

      . Id. § 406.003.

      . Id. § 406.051(a).

      . Id. § 406.051(b).

      . Id. §§ 91.001-.063.

      . Id. § 91.032(a)(1). The referenced subsection (b) says in part:
      (b) Notwithstanding any other provision of this chapter, a client company retains responsibility for:
      (1) the direction and control of assigned employees as necessary to conduct the client company's business, discharge any applicable fiduciary duty, or comply with any licensure, regulatory, or statutory requirement.

        Id. § 91.032(b)(1).

      . Id. § 91.042(c), (d); see also Tex. Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 594 (Tex.2000).

      . Tex. Lab.Code § 91.042(c); Del Indus., 35 S.W.3d at 594.

      . Tex. Lab.Code § 91.042(b).

      . Id. § 91.042(e).

      . Id. § 91.001(14).

      . Tex. Lab.Code § 406.123 says:
      § 406.123. Election to Provide Coverage; Administrative Violation
      (a) A general contractor and a subcontractor may enter into a written agreement under which the general contractor provides workers’ compensation insurance coverage to the subcontractor and the employees of the subcontractor.
      (b) If a general contractor has workers' compensation insurance to protect the general contractor’s employees and if, in the course and scope of the general contractor’s business, the general contractor enters into a contract with a subcontractor who does not have employees, the general contractor shall be treated as the employer of the subcontractor for the purposes of this subtitle and may enter into an agreement for the deduction of premiums paid in accordance with Subsection (d).
      (c) A motor carrier and an owner operator may enter into a written agreement under which the motor carrier provides workers' compensation insurance coverage to the owner operator and the employees of the owner operator.
      (d) If a general contractor or a motor carrier elects to provide coverage under Subsection (a) or (c), then, notwithstanding Section 415.006, the actual premiums, based on payroll, that are paid or incurred by the general contractor or motor carrier for the coverage may be deducted from the contract price or other amount owed to the subcontractor or owner operator by the general contractor or motor carrier.
      (e) An agreement under this section makes the general contractor the employer of the subcontractor and the subcontractor’s employees only for purposes of the workers’ compensation laws of this state.
      (f) A general contractor shall file a copy of an agreement entered into under this section with the general contractor’s workers’ compensation insurance carrier not later than the 10th day after the date on which the contract is executed. If the general contractor is a certified self-insurer, the copy must be filed with the division of self-insurance regulation.
      (g) A general contractor who enters into an agreement with a subcontractor under this section commits a violation if the contractor fails to file a copy of the agreement as required by Subsection (f). A violation under this subsection is a Class B administrative violation.
      (h) Notwithstanding Subsection (b), a person who performs work or provides a service for an oil or gas well operator and who is an independent contractor that has no employees shall be treated in the same manner as an independent contractor with employees and is not entitled to coverage under the general contractor’s workers’ compensation insurance policy unless the independent contractor and the general contractor enter into an agreement under this section.

      . Id. § 406.123(e).

      . Id. § 406.123(c), (d), (e)..

      . Id. § 408.001(a).

      . Wingfoot Enters, v. Alvarado, 111 S.W.3d 134, 146 (Tex.2003).


source: Caselaw Access Project

author: Justice BRISTER

license: Public Domain

text:
    GEODYNE ENERGY INCOME PRODUCTION PARTNERSHIP I-E, Geodyne Energy Income Production Partnership I-F, Geodyne Production Partnership II-A, and Geodyne Resources, Inc., Petitioners, v. The NEWTON CORPORATION, Respondent.
    No. 03-0209.
    Supreme Court of Texas.
    Argued Sept. 9, 2004.
    Decided April 8, 2005.

      Cynthia Keely Timms, Karin B. Torger-son, C. Michael Moore, Locke Liddell & Sapp, LLP, Dallas, for Petitioner.
    Jeffrey C. King, Jamie Lavergne Bryan, Hughes & Luce, L.L.P., Dallas, for Respondent.
    Laura Rowe, Hicks Thomas & Lilienst-ern,' LLP, Houston, J. Robert Beatty, Locke Liddell & Sapp LLP, Dallas, Royal B. Lea III, Bingham <&• Lea, P.C., San Antonio, Stephen L. Tatum, Cantey & Hanger, L.L.P., Fort Worth, Joseph R. Knight, Baker & Botts, Austin, for Amicus Curiae.
   Justice BRISTER

delivered the opinion of the Court.

The Newton Corporation bid $300 at an industry auction, and got a quitclaim deed of Geodyne’s interest in an offshore mineral lease. Six months later, Newton was informed that the lease had expired and the operator wanted reimbursement for the costs of plugging and abandoning the well. Finding a violation of section 581-33(A)(2) of the Texas Securities Act (TSA), the jurors and judges below rescinded the auction sale and assessed abandonment costs against Geodyne.

Since the adoption of section 33(A)(2) in 1963, this Court has never reviewed a claim against a seller under that section’s private cause of action for misrepresentations in the sale of securities. The parties and several amici ask us to settle a number of questions that have arisen in the intermediate appellate courts regarding causation and affirmative defenses. But because we find the quitclaim deed here was not a misrepresentation, we must reverse the judgment below and leave those questions for another day.

I

In 1987, Geodyne obtained several oil- and-gas interests by special warranty deed, including a 10 percent interest in a lease known as Block 87-S in the Gulf of Mexico. The lessor was the State of Texas, through the General Land Office (GLO). At all relevant times here, the lease operator was Xplor Energy, Inc. or a corporate predecessor (Xplor).

After the primary term expired, the lease remained in effect so long as oil or gas was produced in paying quantities. By December 1996, production had dwindled below that amount. Nevertheless, the lease provided for extension if reworking operations were begun within 60 days and continued without interruptions totaling more than 60 days.

In June 1997, Xplor wrote the GLO that it was “currently evaluating what further additional measures can be taken to restore production.” On October 28, 1997, the operator’s landman wrote the GLO detailing efforts in the last six months “to flow the well,” and requesting that “before approving the necessary expenditures for the recompletion, our management would like an opinion from the GLO that the lease is still in effect.”

The GLO did not respond for several months, but in an internal memo the land-man recorded his impression that the GLO “does not appear to be overly concerned with the lack of production from the lease,” and that “[i]f we restore production in paying quantities no later than 12 months after its cessation, the GLO should be satisfied on this point.”

None of this was communicated to other interest owners. Throughout 1997, Xplor continued to send out joint interest billing statements, and Geodyne continued paying them.

On October 21, 1997, Geodyne contracted with an industry auctioneer to sell nearly thirty properties, including its interest in the Block 87-S well, without reserve. At the auction on December 9, 1997, Newton bought this interest for $300.

On March 4, 1998, almost three months later, an interoffice memo indicates the GLO told Xplor for the first time that the lease had expired and the well needed to be plugged. But Xplor did not notify the other interest holders in the lease until July 1998, at which time it asked for payment of each owner’s proportionate share “at your earliest convenience.”

Both Newton and Geodyne refused to pay. Xplor sued both to recover 10 percent of its plugging costs — $72,240.95.

The case was tried to a jury, which assessed the plugging costs against Geo-dyne, as well as $300 for Geodyne’s violation of the TSA. Attorney’s fees were tried to the trial judge, who awarded Newton $161,269.53 plus additional amounts for appeal.

After the trial, Geodyne settled with Xplor, but appealed the remainder of the judgment. The court of appeals generally affirmed, reversing only the fee award for failure to segregate recoverable from unrecoverable fees. Geodyne now seeks review of that portion of the court of appeals’ judgment rescinding the parties’ contract under the TSA, and denying Geodyne’s claim for reimbursement of the plugging costs.

II

A

Section 581-33(A)(2) imposes liability on “[a] person who offers or sells a security ... by means of an untrue statement of a material fact or an omission to state a material fact.” The statute defines “security” to include interests in oil and gas leases.

The misrepresentation Newton alleged here had nothing to do with the plugging costs that (except for attorney’s fees) made up most of the judgment. Newton’s President, Pete Spiros, admitted knowing that interest owners must pay their share of plugging costs whenever a well stops producing, and that all wells eventually do.

Instead, the only misrepresentation Newton pleaded or tried to prove was that Geodyne represented it was selling a 10 percent interest in a valid lease. Newton bases its claim on an auction catalog and an accompanying well-data-profile sheet identifying the property as “ST 87-S 1” and showing “GWI.10000000.” It is undisputed there were no other communications or representations — Newton made no inquiries of Geodyne, and no one from Geodyne attended the auction.

B

Geodyne argues there was no representation of valid title here because the sale to Newton was by quitclaim deed. Even though Geodyne obtained its interest by special warranty deed, it asserts it never purported to sell anything other than the interest it had, if any, at the time of the auction.

A warranty deed to land conveys property; a quitclaim deed conveys the grantor’s rights in that property, if any. We have long recognized the validity of quitclaim deeds, even if it turns out that they convey nothing. In deciding whether an instrument is a quitclaim deed, courts look to whether the language of the instrument, taken as a whole, conveyed property itself or merely the grantor’s rights.

Here, the parties’ Assignment and Bill of Sale identified the lease, but never stated the nature or percentage interest that was being conveyed. Instead, it (1) conveyed to Newton “all of [Geodyne’s] right, title, and interest” in the described lease “AS IS, AND WHERE IS, WITHOUT WARRANTY OF MERCHANTABILITY,” (2) provided that “this Assignment hereby conveys to Assignee ... all of Assignor’s right, title, and interest on the effective date hereof in and to the Property,” and (3) concluded in the habendum clause that the assignment was “WITHOUT WARRANTY OF TITLE, EITHER EXPRESS OR IMPLIED.” As a matter of the law, this was a quitclaim deed.

C

Although the court of appeals recognized this fact, it nevertheless found Geo-dyne misrepresented that it was selling a 10 percent working interest in a valid lease, when in fact the lease had expired. For four reasons, we disagree.

First, a 10 percent interest is exactly what Newton got. While the lease may have expired before the auction, the rights and duties of interest owners thereunder had not; indeed, it is precisely the 10 percent share of plugging costs that Newton is trying to avoid. Shortly after the auction, Newton recorded its interest, and it remained the owner of record until the time of trial. Newton requested and received a division order from Xplor listing Newton as an interest holder. Just because Newton got a 10 percent interest in liabilities rather than assets, that does not make the catalog listing a misrepresentation.

Second, as purchaser of a quitclaim deed, Newton cannot claim the deed itself was a misrepresentation that the lease was valid. Quitclaim deeds are commonly used to convey “interests of an unknown extent or claims having a dubious basis.” A quitclaim deed conveys upon its face doubts about the grantor’s interest; any buyer is necessarily put on inquiry as to those doubts. Thus, a quitclaim deed without warranty of title cannot be a warranty (or “misrepresentation”) of title.

That is not to say quitclaim deeds can never constitute misrepresentation. Despite the merger doctrine, prior agreements are not merged into a realty deed in cases in which a quitclaim deed is signed due to fraud, accident, or mistake. Similarly, the merger doctrine may not prevent proof of prior misrepresentations under the Deceptive Trade Practices-Consumer Protection Act. But as there was no evidence that anything other than a quitclaim deed was ever contemplated by the parties here, there is nothing to show Geodyne ever represented the validity of the underlying lease.

Third, the terms of the auction itself prevent any claim that Geodyne represented the lease was valid. The auction here was not open to the general public. To gain access, Newton’s president had to warrant that he had substantial experience and investments in the oil and gas business, and signed a two-page “Buyer’s Terms and Conditions of the Sale” that stated:

• DUE DILIGENCE IS REQUIRED PRIOR TO BIDDING ON ANY PROPERTIES. BIDDER UNDERSTANDS AND AGREES THAT EBCO [the auctioneer] AND SELLER MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, ON THE PROPERTY LISTED FOR SALE AS TO ITS OIL AND/OR GAS PRODUCTION, MARKETABLE TITLE, CONDITION, QUALITY, FITNESS FOR GENERAL OR PARTICULAR PURPOSE, MERCHANTABILITY, OR OTHERWISE...
• All descriptions of properties in the sale, including any published in sale brochures or promotional material, have been supplied by Seller for the sole purpose of identifying such properties ... Well data and other information provided by Seller is intended solely as a guide for Bidder due diligence and is not a warranty or guarantee of any kind whatsoever.
• ALL INTERESTS BEING CONVEYED MUST BE VERIFIED BY BIDDER. Neither Seller nor EBCO warrants or guarantees the accuracy of such interests.
• BIDDER ACKNOWLEDGES THAT HE HAS REVIEWED AND UNDERSTANDS THE TERMS OF THE SELLER’S CONVEYANCING DOCUMENTS.

Having agreed to these terms to get into the auction, and having paid a mere $300 for a quitclaim deed without warranty of title, Newton cannot now claim the listing of “GWI.10000000” was a representation of the validity of the lease.

Fourth, Newton admitted reviewing well files for the property showing virtually no production for January through June 1997. Also available at the auction was a Lease Income and Expense Summary showing “$0” spent for workover operations. Immediately before the auction itself, an auctioneer announced that the well had no production. In this context, the identification of “GWI.10000000” did not reasonably imply anything about the status of the lease.

D

Newton raises two additional reasons why section 581-33 requires rescission of the sale. First, Newton points out that the section renders void any contractual provision requiring a buyer to waive compliance with the TSA. Second, it points to the explicit provision in section 581-33(A)(2) of a defense to sellers if an alleged misrepresentation (a) was known to the buyer, or (b) could not reasonably have been discovered by the seller. Newton argues the first renders void the warnings in the auction documents, and the second impliedly prohibits a defense based on a misrepresentation that neither party knew was false but both might have discovered.

But before either of these statutory arguments come into play, there must be some evidence of a misrepresentation. By offering only a quitclaim deed, Geodyne disclosed that what it was selling might turn out to be nothing. The deed and documents here show that — viewing the entire transaction in context — there was no misrepresentation, not that Newton waived its right to assert one or that Geo-dyne had an affirmative defense against it.

E

We recognize there is some tension between the concepts behind quitclaim deeds and Blue Sky laws. From inception, the latter were intended at least in part to curb oil-drilling investment schemes based on leases that existed only in the wild blue yonder.

But both long before and long after the TSA was enacted, Texas law also recognized the validity and utility of quitclaim deeds. Indeed, the State itself sometimes uses them. If Newton is correct in this case, then non-operating mineral interests can never be sold by quitclaim deed in Texas — a seller must either warrant title directly, or will be held to have done so indirectly by application of the TSA. We do not believe that is what the Legislature intended.

In 1983, the Legislature amended the TSA to provide that its purpose was not only “to protect investors,” but consistent with that purpose “to encourage capital formation, job formation, and free and competitive securities markets and to minimize regulatory burdens on issuers and persons subject to this Act, especially small businesses.” Construing the TSA to outlaw quitclaim deeds would have serious consequences for jobs, markets, issuers, and small businesses, for several reasons.

First, it is often difficult to tell whether a mineral interest has expired. Depending on the terms of each lease, expiration may turn on contingencies and activities that are controlled by others, difficult to ascertain, and (as our own docket shows) hotly disputed. Even if a lease has expired, it may be ratified and revived by the lessor. If mineral interests must be sold with warranty of title, many will be held in unproductive hands solely because the holder cannot afford the risk of sale.

Second, oil and gas leases are often held in fractional interests much smaller than those typical of other property. As production and prices wax and wane, some interests will have exceedingly small financial value. As a result, the income from such interests may not justify the cost of monitoring their current status.

Third, we long ago recognized that while deeds are usually drafted by grantors, mineral leases are usually drafted by lessees, whose primary interest is ensuring that the lessee gets everything the lessor has. Quitclaim deeds must be viewed in this context — not as means for unscrupulous sellers to sell nothing, but for sophisticated and willing buyers to make sure they buy everything.

While some might question the value of a commodity auction with so little potential value and so great potential risks, that is clearly not the view of the many companies who frequent them. According to its ami-cus brief, the Oil and Gas Asset Clearinghouse is the largest auction of mineral interests in the United States, closing more than 22,500 transactions involving hundreds of thousands of interests over the last ten years. Having chosen to play in such a market with such rules, the evidence here does not justify releasing Newton from its bargain.

A different question might be presented if there were evidence that Geodyne knew this lease had lapsed, or knew of an undisclosed and unexpected potential liability, but induced Newton to bid anyway by representing just the opposite. But the jury found neither fraud nor fraudulent inducement here. As nothing in the Assignment or the auction documents represented that the lease had not expired, we hold that Geodyne’s sale by quitclaim deed-did not violate the TSA.

Ill

Because the court of appeals rescinded Geodyne’s sale to Newton, it declined to enforce that part of their Assignment allocating expenses like the plugging costs at issue here. Due to our opposite conclusion, we reach the opposite result.

The jury found that Geodyne was the interest owner when state law required the well to be plugged. But the parties here agreed that Newton would be liable for all expenses after the auction, regardless of which party was liable under state law:

Assignee shall (i) upon closing, but effective as of the effective date hereof, assume and be responsible for and comply with all duties and obligations of Assignor, ... including, without limitation, those arising under or by virtue of any lease, contract, agreement, document, permit, applicable statute or rule, regulation, or order of any governmental authority (specifically including without limitation, any governmental request or requirement to plug, re-plug, and/or abandon any well of whatsoever type, status or classification, or take any clean-up or other action with respect to the Property) and (ii) defend, indemnify and hold Assignor harmless from any and all claims in connection therewith, except any such claims asserted against Assignor prior to the effective date hereof.... (Emphasis added).

. It is undisputed that Xplor first asserted its claims for plugging costs six months after the effective date of the parties’ auction and sale. The provision above is not ambiguous, and thus did not need to be submitted to the jury.

The trial court submitted the issue to the jury with instructions that Newton did not breach the agreement if there was either mutual mistake or no meeting of minds. By answering “no” to the breach question, jurors must have found one or both.

But a quitclaim deed cannot be set aside on either basis under these facts. A person who intentionally assumes the risk of unknown facts cannot escape a bargain by alleging mistake or misunderstanding. The Restatement gives the precise example of quitclaim deeds to illustrate this principle:

A contracts to sell and B to buy a tract of land. A and B both believe that A has good title, but neither has made a title search. The contract provides that A will convey only such title as he has, and A makes no representation with respect to title. In fact, A’s title is defective. The contract is not voidable by B, because the risk of the mistake is allocated to B by agreement of the parties.

As the deed here purported to transfer Geodyne’s interest whatever that might be, Newton’s assumption that the lease was valid was neither a mutual mistake nor a mutual misunderstanding.

Accordingly, we reverse in part the court of appeals’ judgment and render judgment that Newton take nothing on its TSA claim against Geodyne. We remand the case to the trial court to render judgment in an amount to be determined for Geodyne on its indemnification claim and for further proceedings consistent with this opinion.

      . Petitioners Geodyne Energy Income Production Partnership T-E, Geodyne Energy Income Production Partnership I-F, Geodyne Production Partnership II-A, and Geodyne Resources, Inc. (collectively "Geodyne”) are all Oklahoma general partnerships qualified to do business in Texas.

      . Tex.Rev.Civ. Stat. art. 581-33(A)(2).

      . 97 S.W.3d 779, 785-86.

      . Xplor bought Araxas Exploration, Inc. in September 1997. Araxas had been the operator since September 1996.

      . 97 S.W.3d at 790.

      . Tex.Rev.Civ. Stat. art. 581 — 33(A)(2).

      . Id. art. 581-4(A).

      . See Tex. Nat. Res.Code §§ 89.011, 89.012, 89.081.

      . Newton also asserted at trial that the auction documents represented the seller as Samson Resources Co. (Geodyne's owner) rather than Geodyne. But the transfer documents Newton signed indicated the correct owner, and no evidence was presented at trial that this error was material. See Tex.Rev.Civ. Stat. art. 581-33(A)(2) (providing liability only for material misrepresentations).

      . Though not defined in the auction materials, "GWI” represents gross working interest — a percentage share of all expenses and revenues (the latter subject to royalties) in the well plus any royalties attributable to the working interest. See 8 Howard R. Williams & Charles J. Meyers, Oil & Gas Law, Manual Of Terms 474, 1191 (2004) (citing the Energy Info. Admin, (of the U.S. Dep’t of Energy)) (glossary at http://www.eia.doe.gov/) (last visited Apr. 5, 2005). While one listing in the materials showed a lower share after payout, it was clear that this well had not yet paid out, as an attachment showed costs of $1,857,449.95 and revenues of $1,475,504.63.

      . Cook v. Smith, 107 Tex. 119, 174 S.W. 1094, 1095 (1915).

      . See, e.g., Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 769 (Tex. 1994); Garrett v. Christopher, 74 Tex. 453, 12 S.W. 67, 67 (1889); Laurens v. Anderson, 1 S.W. 379, 380 (Tex. 1886); BLACK'S LAW DICTIONARY 1126 (8th ed.2004) (defining quitclaim deed as “[a] deed that conveys a grantor’s complete interest or claim in certain real property but that neither warrants nor professes that the title is valid").

      . Porter v. Wilson, 389 S.W.2d 650, 654 (Tex. 1965); Cook, 174 S.W. at 1094; Threadgill v. Bickerstaff, 87 Tex. 520, 29 S.W. 757, 758 (1895).

      . 97 S.W.3d at 785.

      . Id. at 786-87.

      . Porter, 389 S.W.2d at 654.

      . Richardson v. Levi, 67 Tex. 359, 3 S.W. 444, 447-48 (1887).

      . McIntyre v. De Long, 71 Tex. 86, 8 S.W. 622, 623 (1888) ("Ordinarily, when a vendee accepts a quitclaim deed ... the presumption of law is that he acts upon his own judgment and knowledge of the title, and he will not be heard to complain that he has not acquired a perfect title.”)

      . Commercial Bank, Unincorporated v. Satterwhite, 413 S.W.2d 905, 909 (Tex.1967); McIntyre, 8 S.W. at 623.

      . Alvarado v. Bolton, 749 S.W.2d 47, 48 (Tex.1988).

      . Newton points out that Geodyne omitted from the well file at the auction the joint interest billings on the well that would have shown no drilling or reworking operations were ongoing. But it was undisputed that the same information was included in the Lease Income and Expense Summary, which Newton had.

      . Tex.Rev.Civ. Stat. art. 581-33(L).

      . Id. art. 581-33(A)(2).

      . Cf. Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 163-64 (Tex.1995) (holding "as is” clause was not a waiver of Texas Deceptive Trade Practices-Consumer Protection Act).

      . Black's Law Dictionary (8th ed.2004) (noting that appellation "bluesky law” has “several suggested origins").

      . See, e.g., Tex. Trans. Code § 202.025(4)-(5); Tex.Rev.Civ. Stat. art. 5421d.

      . Tex.Rev.Civ. Stat. art. 5 81-10-1 (B).

      . See, e.g., Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143 (Tex.2004); Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188 (Tex.2003); Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550 (Tex.2002); Concord Oil Co. v. Pennzoil Exploration & Prod. Co., 966 S.W.2d 451 (Tex.1998).

      . See Westbrook v. Atlantic Richfield Co., 502 S.W.2d 551, 553 (Tex.1973).

      . See, e.g., Freeman v. Samedan Oil Corp., 78 S.W.3d 1, 8 n. 7 (Tex.App.-Tyler 2001, pet. granted, cause remanded w.r.m.) (noting that complainants’ interest was 0.001296 on surface-acreage basis but only 0.000020 and 0.000061 under waterflood unit agreement).

      . McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 346 (1957).

      . See Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 162 (Tex.1995) (stating that “as is” clause is not binding if induced by fraud or if buyer’s inspection is impaired).

      . 97 S.W.3d at 790; see Tex.Rev.Civ. Stat. art. 581-33(K) ("No person who has made or engaged in the performance of any contract in violation of any provision of this Act ... may base any suit on the contract.”)

      . Exxon Corp. v. West Tex. Gathering Co., 868 S.W.2d 299, 302 (Tex. 1993).

      . Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990).

      . Restatement (Second) of Contracts § 154, cmtb, illus. 1 (1981).

      . Glash, 789 S.W.2d at 264 ("The question of mutual mistake is determined not by the self-serving subjective statements of the parties’ intent, which would necessitate trial to a jury in all such cases, but rather solely by objective circumstances surrounding execution of the [contract].”)


author: COCHRAN, J.,

text:
    Alexander HERNANDEZ, Appellant, v. The STATE of Texas.
    No. PD-1222-04.
    Court of Criminal Appeals of Texas.
    March 2, 2005.
    Rehearing Denied May 25, 2005.

      Kurt Corley, Marble Falls, for Appellant.
    Jeffrey L. Van Horn, Asst. Atty., Matthew Paul, State’s Atty., Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the unanimous Court.

Appellant was charged with possession of methamphetamine with intent to deliver it. After a pretrial evidentiary hearing, the trial judge denied appellant’s motion to dismiss based on entrapment. Appellant then pled guilty, and was sentenced to five years’ probation and a $5,000 fine. He appealed the denial of his entrapment motion to the court of appeals under Rule 25.2(a)(2)(A) of the Texas Rules of Appellate Procedure.

The court of appeals reversed appellant’s conviction and ordered the case dismissed because the State “failed to meet its burden to disprove entrapment beyond a reasonable doubt.”

We granted review to decide whether a trial judge could rationally deny an “entrapment as a matter of law” motion by concluding that the defendant’s testimony was not credible. Or, put conversely, is the defendant necessarily entitled to prevail in his “entrapment as a matter of law” motion if the State does not offer affirmative evidence that directly contradicts a defendant’s testimony? We conclude that, under State v. Ross, a trial judge is not required to believe a defendant’s version of events supporting his entrapment defense, even if it is largely uncontradicted. In this case, a rational trial judge could find against appellant’s “entrapment as a matter of law” defense based upon disbelief of some or all of appellant’s testimony. We therefore reverse the court of appeals and affirm the trial court’s judgment.

I.

At the pretrial hearing on entrapment, appellant, who had recently been released from prison on a prior methamphetamine conviction, testified that he and his neighbor, Chris, first met Felicia Farr, a confidential informant, at his mother’s house. Appellant said that Ms. Farr walked down the street from her trailer a block and a half away and started talking about how she had “been to the pen” four times. She was drinking beer and “shooting bull.” A week later she came up to Chris and appellant at his mother’s house and offered both of them oral sex. She drank and “carried on” and asked if they could find some drugs for her. She came over to appellant’s mother’s house a lot and asked appellant if he could score her some drugs “that was her number one deal.” Ms. Farr asked “almost every day.” She mainly wanted methamphetamine.

Appellant testified that on Valentine’s Day she came over and asked appellant to light her gas heater. She was high on something, but appellant went back to her trailer with her. As soon as they reached her trailer, she began fondling appellant and asking him if he wanted to have sex. Appellant said, “No.” She wanted to give appellant oral sex, and she was trying to pull appellant’s “britches” down. He resisted.

According to appellant, Ms. Farr asked for some money for beer and, after appellant obliged her, she went out to buy it. Appellant went back to fixing her heater. When she returned, she said, “I’ve got something else,” and she pulled out some “dope” and two syringes. She mixed up the methamphetamine with water in a spoon, and they shared it. She again said she wanted to give appellant sex. She took a shower and when she came out, she started “messing” with him, giving him oral sex. Her clothes were off, his clothes were off, and she was performing when somebody “come knocking — storming in the door — knocking and just storming in the door.” Appellant testified:

They were out — there was no sign that there were police officers. All it was is she was giving me oral sex. The dope was sitting right there beside the bed. And when she heard the boom, boom, boom, she said, oh, God. Oh, God. She says just stay back here. She goes here, here. Do something with this. And she grabs the dope and tells me to put it up.
I said what? She goes put this in your pocket. When they leave we’ll finish what we’re doing. And she sits there and tries to shove it in my pocket. And I’m sitting there going why? She said let me put my pants on. Somebody is coming in. They bang on that door. All I remember is they come storming in. They’re already almost in the back bedroom by the time — she didn’t let them in. She didn’t — no more than pulled her britches up and they were inside the door.

When his attorney asked appellant how he ended up with the two methamphetamine packets in his pants’ pocket, he testified:

Well, under the circumstances her giving me oral sex and it being her house and her — you know, being right in the middle of that act whenever she heard the door getting beat on real hard and she grabs the dope and says, here, do something with this. And puts it in my pocket — I mean she puts it in my pocket.
She knew what she was doing. I mean she put it in my pocket to make me have it on me. She says wait right here. As soon as I get back behind her — I didn’t have my pants on all the way up when she was putting it in my pocket. I’m sitting here trying to pull my pants up at the same time. I wouldn’t have let her put it in here. It wasn’t my — it wasn’t my dope. It was her dope. I should have never even let her attempt it but I — under the circumstances, I wasn’t thinking.

Appellant said that he considered himself an ordinary and law-abiding person of average resistance to this type of sexual invitation because:

I had just gotten out of the penitentiary. I had made a promise to myself that I would stay away from them kind of things, and I was attending church. I was riding with my mom to Goldthwaite and back every day to work. And I was doing my darndest to really try to live a good life because I had just gotten contact visits with my — supervised contact visits with my kids.

When his attorney asked appellant to explain all the reasons why he had the methamphetamine in his pocket that day, he said:

It was just poor judgment on my half [sic] because I was under the influence of narcotics and I was in — I was teased by someone offering sexual favors ... By her fondling me and begging me to let her give me head — giving me a blow job and telling me that she wanted someone to be with her....
And that’s-it was just my not thinking, being messed up and also wanting her to finish what she told me she would do.

After this testimony, the trial judge agreed with appellant’s attorney that “I think you’ve met your burden.”

The State then called Sgt. Simler who testified to a somewhat different scenario. He said that Felicia Fox- was indeed a police confidential informant who had a written contract with the Narcotics Enforcement Team (“NET”) to purchase illegal narcotics “under supervised buys.” She had been working undercover in San Saba for about a month before this event.

On the day of appellant’s arrest, Sgt. Simler and Sgt. Byler were at a gas station when they received a call from Ms. Fox. This was not a “scheduled or a documented controlled purchase,” so Ms. Fox had not been searched or “wired” before the meeting. She simply called the officers and asked them to come over. Based upon the information she gave them, they drove to her trailer, which was five minutes away. Sgt. Simler knocked on the front door, and Sgt. Byler covered the back door. Ms. Fox opened the door, and, when Sgt. Simler asked where the person was, Ms. Fox said, “[H]e’s in the back room.” Sgt. Simler went to the back bedroom, but saw no one there. He returned and again asked Ms. Fox where the person was, and she again told him that he was in the back bedroom. When Sgt. Simler returned, he saw appellant walk out of the closet. He' was fully dressed, and Ms. Fox was fully dressed. Neither looked out of breath or sweaty; neither had hair in disarray. Sgt. Simler patted down appellant, found two packets of methamphetamine in his pants’ pocket, and arrested him without incident.

On rebuttal, the defense called Sgt. Byler who testified that the officers did not target appellant. Neither he nor Sgt. Sim-ler knew if Ms. Fox had been in prison. She was “probably” paid $100 for this “bust” and left San Saba a few'days later. Neither the State nor defense had subpoenaed Ms. Fox, and she did not appear to testify.

At the conclusion of the testimony, the defense argued that it had raised the defense of entrapment by offering some evidence, and the State had failed to contradict appellant’s testimony with evidence to disprove the defense beyond a reasonable doubt. The State argued that: 1) appellant denied committing the offense; 2) he testified that someone else put the drugs in his pocket; 3) he never testified to any inducement or quid pro quo; 4) the trial court need not, and ought not, believe appellant’s testimony; '5) some of appellant’s testimony was directly contradicted by the officers; and 6) this is not the type of inducement that “the Court or society should recognize as justifying a ordinary, law-abiding person of average resistance in violating the law.” The trial judge denied appellant’s entrapment motion without comment, and appellant pleaded guilty to five years’ probation in accordance with a pre-arranged plea bargain.

The Third Court of Appeals reversed appellant’s conviction and ordered the prosecution dismissed. It concluded that “the State offered no evidence to contradict the assertions that the methamphetamine discovered in this case belonged to a law enforcement agent and that the agent directly placed it in appellant’s pants pocket when their sexual encounter was interrupted, as arranged by that agent.... [W]e rest our decision on the fact that the State failed to meet its burden to disprove entrapment beyond a reasonable doubt.”

II.

Some types of criminal conduct, such as the illicit drug trade, present difficult issues of detection and prosecution because the crime is committed secretly between willing participants. Thus, law enforcement agents sometimes resort to “encouragement” or “undercover sting operations” to bring these crimes to light. However, extreme forms of law enforcement “encouragement” might induce an otherwise law-abiding person to engage in criminal conduct that, absent the law-enforcement official’s inducement, he would not otherwise have committed. Texas, like other jurisdictions, has enacted the defense of entrapment to steer between the competing goals of promoting effective law enforcement by permitting undercover operations and preventing inappropriate and coercive trickery, persuasion, or fraud by law enforcement officials.

Under Texas law, when a defendant raises the defense of entrapment at trial, he has the burden of producing evidence to establish every element of that defense. He must present a prima facie case that:

1) he engaged in the conduct charged;
2) because he was induced to do so by a law enforcement agent;
8) who used persuasion or other means; and
4) those means were likely to cause persons to commit the offense.

Once the defense makes a prima facie showing of each element, the State then has the burden of persuasion to disprove entrapment beyond a reasonable doubt. In this burden-shifting context, entrapment acts like a justification defense such as self-defense.

Normally, a defense such as entrapment is a question for the jury to decide because it is determined largely by weighing facts and assessing credibility. The defendant may, however, raise the legal issue of entrapment to the trial judge in a pretrial hearing under article 28.01. This “permissible” procedure of trying the entrapment defense prior to trial “is generally undesirable because it permits the piecemeal trial of a criminal case.” Presentation of an entrapment defense to the jury is preferred because “the defense of entrapment is intertwined with the issue of intent and is typically based on credibility determinations, an area traditionally reserved for jury resolution.” Additionally, entrapment issues are generally considered appropriate ones for the jury “because the jury has a ‘particular claim to competence’ on the question of what temptations would be too great for an ordinary law-abiding citizen.”

Nonetheless, in some instances, the facts underlying an entrapment defense may be undisputed, and the question is one solely of the application of the law to those undisputed facts. In such a case, a pretrial judicial determination of the existence of an entrapment defense may be both an effective and efficient use of scarce judicial resources. In this respect, a pretrial motion asserting “entrapment as a matter of law” is analogous to a motion for summary judgment in civil case in which, if there is no disputed fact issue, the movant is entitled to judgment as a matter of law. Although the wording in some of our prior cases has been inconsistent, a defendant is entitled to dismissal of the charges under section 8.06 in the pretrial hearing context only when he can establish entrapment as a matter of law with conflict-free, uncontradicted, uncontested or undisputed evidence. If the facts concerning entrapment are in dispute, there cannot be entrapment “as a matter of law” determined at the pretrial stage. It is the defendant, not the State, who must “establish beyond a reasonable doubt that he was entrapped” at the pretrial stage. At that stage, the State has no burden of proof; it need only raise a fact issue that a jury would be required to resolve. It is only at the trial stage that the State has the burden to disprove the factual defense of entrapment beyond a reasonable doubt.

Furthermore, we agree with the Fifth Circuit, which has stated that “Generally speaking, a defendant’s testimony cannot by itself establish entrapment as a matter of law because, absent unusual circumstances, the jury is almost always entitled to disbelieve that testimony.” In-deed, the United States Supreme Court in Masciale v. United States, concluded that the defendant’s undisputed testimony which, if believed, would establish entrapment as a matter of law, need not be believed (and apparently was not believed) by the jury.

When an entrapment defense is presented in either the pretrial or trial context, the factfinder is authorized “to weigh the evidence and draw a conclusion” as to whether that evidence establishes entrapment “as a matter of law” in the pretrial context or “as a matter of fact or law” in the trial context. Any such weighing of the evidence necessarily involves determining the credibility of the witnesses. A defendant’s testimony which is not directly contradicted at a pretrial hearing may nonetheless be “disputed” because the trial judge, as the sole trier of fact, is not required to believe that testimony. In such instances, a trial court does not err in overruling a motion to dismiss. The defendant who has made a prima facie showing of entrapment may then choose to present that defense to a jury to resolve evidentiary conflicts.

In reviewing a trial court’s denial of a defendant’s pretrial motion to dismiss based on entrapment “as a matter of law,” we determine de novo whether any rational trier of fact could conclude that the undisputed facts failed to establish all of the elements of entrapment. In reviewing a jury’s rejection of an entrapment defense, we determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the criminal offense beyond a reasonable doubt and also could have found against the defendant on the issue of entrapment beyond a reasonable doubt. This review must take into account that “the trier of fact ... not the appellate court ... was free to accept or reject all or any portion of any witness’s testimony.”

III.

In the present case, appellant testified that a government agent tempted him with repeated and urgent requests for both sex and drugs. Listening to appellant’s words from the witness stand, one reasonable trier of fact might well conclude that this was an appalling example of police misconduct and law enforcement trickery run rampant. Another reasonable trier of fact might conclude from appellant’s words, appearance, demeanor, and tone that he was indulging in post hoc creativity. This is an instance in which the defendant’s credibility is crucial.

Is there any other evidence in this record that might raise a question of credibility or a disputed fact issue? Certainly the fact that appellant had recently been released from prison for a prior methamphetamine conviction is of some probative value in assessing the probabilities of whether Ms. Pox “induced” appellant to first inject methamphetamine and then stuffed two packets of methamphetamine in his pocket. Further, appellant’s prior felony conviction for possession of illegal drugs aids in assessing his witness credibility under Rule 609 of the Texas Rules of Evidence. And, Sgt. Simler’s testimony explicitly or implicitly conflicts with that of appellant:

• Sgt. Simler testified that Ms. Fox called him on the phone and, based upon the information she gave him, he and Sgt. Byler immediately drove to her trailer; appellant’s version neither accounts for this telephone call nor the awkwardness of Ms. Fox telling the police to come right now and then disrobing and commencing her sexual activities, knowing that officers were on the way;
• Sgt. Simler said that he knocked on the front door and waited; appellant testified that the officers went “boom, boom, boom” and barged right into the trailer and the back bedroom;
• Sgt. Simler stated that Ms. Fox, fully clothed, opened the front door; appellant said that Ms. Fox was frantically trying to clothe herself when confronted right outside the bedroom door by the officers;
• According to Sgt. Simler, appellant was fully dressed, and neither he nor Ms. Fox appeared out of breath, sweaty, or in disarray, and Sgt. Simler did not testify to any disheveled clothing or bedding; appellant said that he could barely pull his pants on and was not wearing a shirt or shoes when the officers came “storming in”;
• Sgt. Simler testified that appellant was hiding in the closet when he first went into the back bedroom; appellant mentioned nothing about being in the closet.

In sum, there is evidence in this record, coupled with reasonable inferences from that evidence, that raises a disputed fact issue concerning the circumstances under which the two packets of methamphetamine found their way into appellant’s pants’ pocket. Under Ross, a factfinder may disbelieve some or all of a witness’s testimony, even when that testimony is uncontradicted. The same is true under traditional entrapment defense cases.

The trial judge’s statement that appellant’s testimony was sufficient to “carry his burden” to raise a prima facie showing of entrapment, was simply an acknowledgment that appellant had offered “some” evidence, however slight, contradicted, or lacking in credibility, that could support a rational conclusion that he had been entrapped. The fact that the trial judge ultimately denied his “entrapment as a matter of law” motion was simply an acknowledgment that appellant had not established his defense beyond a reasonable doubt with undisputed facts. Appellant could have raised his entrapment defense anew to a jury and asked it to resolve the disputed facts. In sum, we hold that appellant failed to prove his “entrapment as a matter of law” defense with undisputed facts, and, therefore, the trial court did not err in denying his pretrial motion.

For the foregoing reasons, we reverse the decision of the court of appeals and affirm the trial court’s judgment.

      . Hernandez v. State, 149 S.W.3d 761, 769 (Tex.App.-Austin 2004).

      . We granted the State Prosecuting Attorney's two grounds for review:
      1) Does the appellate standard of review adopted in State v. Ross, 32 S.W.3d 853 (Tex.Cr.App.2000), apply to an appellate court’s review of a decision by the trial court denying a pretrial motion to dismiss on grounds of entrapment?
      2) Did the court of appeals err by failing to sustain the ruling by the trial court on a theory applicable to the case — i.e., that the trial court could have found the evidence relating to entrapment not to be credible?

      .. 32 S.W.3d 853, 858-59 (Tex.Crim.App. 2000) (upholding a trial court’s ruling granting a motion to suppress on the basis that the trial court might have completely disbelieved the testimony of the State's witness, even though that testimony was uncontroverted).

      . Appellant stated that he had also been convicted of carrying an unlawful weapon, possession of marijuana, and criminal non-support.

      . According to Sgt. Simler, Ms. Farr had been working as a confidential informant for the NET for two to three years and came to San Saba in January specifically for a short-term undercover "buy” operation. Sgt. Simler testified that Ms. Fox was permitted only to purchase drugs; she was never given methamphetamine to deliver to others. The NET paid the rent for her trailer, but, because she was not his agent, Sgt. Simler was not aware of how many buys she had made or how much she had been paid. Sgt. Simler had last had contact with Ms. Fox two days before appellant's arrest when she had made a controlled buy for his partner, Sgt. Byler.

      . Hernandez, 149 S.W.3d at 769.

      . See 2 Wayne R. LaFave, Jerold H. Israel, Nancy J. King, Criminal Procedure § 5.1, at 399 (2d ed.1999).

      . Id. at 399-400.

      . Id.

      . See Sorrells v. United States, 287 U.S. 435, 441-46, 53 S.Ct. 210, 77 L.Ed. 413(1932) (discussing the history and rationale of entrapment defense). The Supreme Court explained:
      It is well settled that decoys may be used to entrap criminals, and to present opportunity to one intending or willing to commit crime. But decoys are not permissible to ensnare the innocent and law-abiding into the commission of crime. When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor.

        Id. at 445 (quotations and citations omitted). See generally Rebecca Roiphe, The Serpent Beguiled Me: A History of the Entrapment Defense, 33 Seton Hall L.Rev. 257 (2003); Michael A. DeFeo, Entrapment as a Defense to Criminal Responsibility: Its History, Theory and Application, 1 U.S.F. L.Rev. 243 (1967).

      . Tex. Pen.Code § 8.06(a); see generally, England v. State, 887 S.W.2d 902, 913-14 (Tex. Crim.App.1994). In England, this Court held that the entrapment defense has both subjective and objective elements. The subjective element requires evidence that "the accused himself was actually induced to commit the charged offense by the persuasiveness of the police conduct.” Id. at 913 n. 10. Evidence that a person has committed a crime before is some evidence that a subsequent commission of the crime was not induced by police. Id. at 914. "Once inducement is shown, the issue becomes whether the persuasion was such as to cause an ordinarily law-abiding person of average resistance nevertheless to commit the offense.” Id. With respect to this objective element, prohibited police conduct can include pleas based on extreme need, sympathy, pity, or close personal friendship, offers of inordinate sums of money, and other methods of persuasion that are likely to cause the otherwise unwilling person-rather than the ready, willing and anxious person-to commit an offense. Id.

      . See Melton v. State, 713 S.W.2d 107, 113 (Tex.Crim.App.1986). In Melton, this Court stated:
      Normally, the factual issue of entrapment is a question for the jury, unless as a matter of law the accused has established beyond a reasonable doubt that he was entrapped. Where the evidence on the issue of entrapment is in conflict, the issue should be submitted to the jury.

        Id.; Redman v. State, 533 S.W.2d 29, 31 (Tex. Crim.App.1976) ("It appears to be well established that the factual issue of entrapment is a question for the juty, unless as a matter of law the accused has established beyond a reasonable doubt he was entrapped”) (citations omitted); McKelva v. State, 453 S.W.2d 298, 299 (Tex.Crim.App.1970) ("Unless an accused has established as a matter of law that he was entrapped, the factual issue is a question for the jury when the evidence raises an issue as to whether the intent to commit the crime originated in the mind of the accused or in the officer's mind”); Powers v. State, 737 S.W.2d 53, 55 (Tex.App.-San Antonio 1987, pet. ref'd) ("It is a well established rule that the factual issue of entrapment is a question for the jury, unless as a matter of law the accused has established beyond a reasonable doubt he was entrapped”); Mustard v. State, 711 S.W.2d 71, 76-77 (Tex.App.-Dallas 1986, pet. ref’d) ("Unless the accused has established beyond a reasonable doubt that he was entrapped, the issue of entrapment is a question for the trier of fact”). In Bush v. State, 611 S.W.2d 428, 430 (Tex.Crim.App.1980) (panel op.), a panel plurality of this Court stated that the State had the burden of persuasion to disprove entrapment beyond a reasonable doubt even in a pretrial hearing. On en banc rehearing, the original panel opinion was superceded, but the original opinion was never even mentioned. 611 S.W.2d at 432 (Tex.Crim.App.1981) (en banc) (op.on reh'g).
      Our state's reticence to decide the factual issue of entrapment by means of a pretrial motion is in accord with federal entrapment law. See, e.g., Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) ("The question of entrapment is generally one for the jury, rather than for the court”); United States v. Kurkowski, 281 F.3d 699, 701 (8th Cir.2002)("to show entrapment as a matter of law, the evidence must clearly show the government agent developed the criminal plan and that the defendant was not predisposed to commit the crime independent of the government's activities”); United States v. Tucker, 133 F.3d 1208, 1217 (9th Cir. 1998)("To establish [inducement] as a matter of law, the defendant must point to undisputed evidence making it patently clear that [the government induced] an otherwise innocent person ... to commit the illegal act by trickery, persuasion, or fraud of a government agent”); United States v. Lampley, 127 F.3d 1231, 1243 (10th Cir.1997) ("Entrapment as a matter of law exists only when there is undisputed evidence which shows conclusively and unmistakably that an otherwise innocent person was induced to commit the act”) (internal quotations omitted); Coronado v. United States, 266 F.2d 719, 721 (5th Cir.1959) ("entrapment is a jury question unless evidence is so clear and convincing that the matter can be passed on by the court as a matter of law”).

      . Tex.Code Crim. Proc. art. 28.01, § 1(9).

      . Bush v. State, 611 S.W.2d 428, 432 n. 1 (Tex.Crim.App.1981) (en banc) (op. on reh’g) (further stating that although article 28.01 "allows such a procedure, it is not required; a trial judge may refuse a pretrial hearing, and the defendant may then present his evidence when the case is tried on its merits”).

      . United. States v. Fadel, 844 F.2d 1425, 1430 (10th Cir.1988).

      . 2 LaFave, § 5.3(c), at 421 (citations omitted). The defense of entrapment, the Supreme Court has explained, "was not intended to give the federal judiciary a 'chancellor's foot’ veto over law enforcement practices of which it did not approve.” United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). What one trial judge or group of appellate judges may find "overzealous law enforcement” techniques, a citizen-juror may find appropriate and necessary weapons in the police arsenal. Id. Or vice-versa.

      . See Tex.R. Civ. P. 166a(c).

      . See Melton, 713 S.W.2d at 113 (when evidence on issue of entrapment is "in conflict,” the issue is decided by the jury); Redman, 533 S.W.2d at 32; United States v. Jones, 231 F.3d 508, 516 n. 4 (9th Cir.2000) (unless evidence is “undisputed,” defendant cannot establish entrapment as a matter of law).

      . See id.

      . Melton, 713 S.W.2d at 113. Refer to note 12, supra.

      . We note that some lower courts, including the court of appeals in this case, have inadvertently misstated the State’s trial burden of proof as being the burden of proof at the pretrial stage. See, e.g., Hernandez, 149 S.W.3d at 769 ("we rest our decision on the fact that the State failed to meet its burden to disprove entrapment beyond a reasonable doubt”).

      . United States v. Rodriguez, 43 F.3d 117, 127 (5th Cir.1995) (internal quotations omitted); see also United States v. Mora, 994 F.2d 1129, 1137-38 (5th Cir.1993) (although government did not introduce any evidence directly contradicting defendants’ stories about undercover agent’s threats, there was evidence that cast doubt upon their credibility).

      . 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958).

      . Id. at 388, 78 S.Ct. 827 (jury was entitled to disbelieve defendant's uncontradicted testimony as to his persuasion by informant who did not testify; thus jury could reject entrapment defense even though raised by defendant’s testimony).

      . State v. Ross, 32 S.W.3d at 857 ("[a]s the sole trier of fact and judge of credibility, the trial court was not compelled to believe the [witness’s] testimony, even if uncontroverted, based on credibility and demeanor”).

      . See Cook v. State, 646 S.W.2d 952, 952 (Tex. Crim.App. 1983).

      . See generally, Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992) (discussing standard of review of the sufficiency of the evidence to reject a defense).

      . Id. This deference to the factfinder’s role in assessing credibility applies not only to jury verdicts, but, as we held in Ross, to pretrial factual determinations by the trial judge. 32 S.W.3d at 855.

      . See England, 887 S.W.2d at 913-14 (evidence of defendant’s prior drug sales admissible to show he was not "induced” to commit crime by police agent’s persistent conduct). Refer to note 11, supra.

      . 32 S.W.3d at 857.

      . Masciale, 356 U.S. at 388, 78 S.Ct. 827; Rodriguez, 43 F.3d at 127; Redman, 533 S.W.2d at 32 (”[t]he jury chose to reject the testimony of the appellant on the issue of entrapment. That was their prerogative”).

      . Refer to note 12, supra.


author: PER CURIAM.

text:
    David Sidney HISEY, Appellant, v. The STATE of Texas.
    No. PD-0223-04.
    Court of Criminal Appeals of Texas.
    April 27, 2005.
    Roger Ezell, for Galveston, for Appellant.
    B. Warren Goodson, Jr., Assist. DA, Galveston, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

PER CURIAM.

Appellant was charged with capital murder for intentionally or knowingly causing the death of his mother, Sunnye Hisey, on or about November 15,1999, and for intentionally or knowingly causing the death of his father, Hollis Hisey, on or about July 15, 2000, pursuant to the same scheme or course of conduct. A jury convicted appellant of the lesser offense of murder and assessed punishment at 43 years’ imprisonment and a $10,000 fine.

The charge to the jury instructed that appellant should be found guilty of the lesser offense of murder if jurors found that appellant was guilty of murdering both parents (but not pursuant to the same scheme or course of conduct), his mother only, or his father only. The verdict form provided the jury with three options: (1) guilty of capital murder; (2) guilty of murder; or, (3) not guilty. In neither the jury instructions nor the verdict form was the jury instructed that it must unanimously agree upon any one of the three different criminal acts — murder of mother, murder of father, or murder of both but not pursuant to a single scheme — to convict appellant of the lesser offense. The First Court of Appeals held that “[a]s written, the charge allowed for a non-unanimous jury verdict, in violation of the Texas Constitution’s and Texas Code of Criminal Procedure’s requirements of a unanimous jury verdict in felony cases.” We granted the State’s petition for discretionary review to determine the correctness of that decision. In -the interim, however, we addressed this same issue in Ngo v. State, and answered it adversely to the State’s position. We therefore dismiss the State’s petition.

      . - S.W.3d -, 2005 WL 600353, 2005 Tex.Crim.App. LEXIS 457 (Tex.Crim. App., delivered March 16, 2005).

      . Id. at *11 (concluding that ”[w]hen the State charges different criminal acts, regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must be instructed that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one of these criminal acts”).

      . Hisey v. State, 129 S.W.3d 649, 659 (Tex. App.-Houston [1st Dist] 2004); see Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). Although appellant did not object to the jury charge, the court of appeals found this error reversible under Almanza because appellant suffered "egregious harm.” The State did not request — and we did not grant— review of the court of appeals’ "egregious harm” analysis.

      . We granted the State's single ground for review: "The First Court of Appeals erred in finding the guilt-innocent charge of the court with its verdict page allowed for a non-unanimous jury verdict of guilty for the lesser included offense of murder.”


author: MEYERS, J.,

text:
    Charles Ray IRVING, Appellant, v. The STATE of Texas.
    No. PD-91-04.
    Court of Criminal Appeals of Texas.
    April 27, 2005.
    Bryan Frazier, Orange, for Appellant.
    Jeffrey L. Van Horn, First Assist. St. Atty., Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court,

in which PRICE, WOMACK, JOHNSON, and COCHRAN, J.J., joined.

Appellant Charles Ray Irving was convicted of the offense of aggravated assault. On appeal, Appellant argued that the trial court erred in failing to instruct the jury-on the lesser-included offense of simple assault. The Ninth Court of Appeals held that Appellant was entitled to an instruction on the lesser-included offense and reversed and remanded the case to the trial court. We will reverse.

I. Facts

The evidence presented at trial showed that Appellant had known the victim, Phyllis Chargois, for almost 20 years, and that they had previously lived together, although they were not living together at the time of the offense. Chargois testified that Appellant followed her from work on August 3, 2000, to a bar, and then to her sister’s house in Louisiana. Chargois said she drove home the next morning, at which time she found Appellant inside her home. Chargois testified that Appellant was holding a bat, told her not to run and that it was “her day to die,” and then struck her several times with the bat. Chargois suffered injuries including a broken ankle, leg, and arm. She also testified she fell against a glass shelf with Appellant during the attack and broke the glass, cutting herself. According to testimony at trial, Appellant then went to get a towel for Chargois to stop the bleeding, and Char-gois crawled out her front door for help. A neighbor across the street testified that he saw Chargois being held by Appellant, and that it looked as if Appellant was “fixing to twist her head off.” The neighbor then told Appellant to drop Chargois, and then helped Chargois to his house where he called the police.

Appellant testified to a different version of events at trial. He denied following Chargois as she left her job, and claimed that he went to her home only because he was supposed to meet her there to retrieve some of his personal belongings. He testified that when he encountered Chargois in her home, she began cursing at him, and he picked up a bat, but he then claimed he threw the bat down and denied ever striking Chargois with it. He did acknowledge that he struggled physically with Chargois, and that they fell into the glass shelves in the process, but said that he did not attack nor seriously injure her. He then testified that when he went to get her a towel for the cut on her head resulting from the fall into the glass shelves, she went out the door. He said he saw her laying on the walkway outside the door, and that he assumed her injuries came from a fall on the walkway.

Dr. Wesley Palmer was the physician who treated Chargois at the hospital. He testified that Chargois suffered broken bones in her arm and leg, injuries to her hip and thigh, and a head laceration. According to Dr. Palmer’s testimony, the extent of the injuries was such that Chargois had to have pins inserted into the bones in her arm. He testified that, in his opinion, Chargois suffered “serious bodily injury” according to the legal definition. Dr. Palmer stated that Chargois told him that her ex-boyfriend hit her with a bat. He also said Chargois’ injuries were consistent with being struck with a bat, and testified that, while it was possible the injuries could have been caused by a fall to the floor, the extent and number of injuries would have required multiple falls.

II. Appellate Decision and Grounds for Review

The court of appeals reversed Appellant’s conviction and remanded for a new trial. The court considered whether or not Appellant was entitled to the requested jury instruction on the lesser-included offense of simple assault and concluded that simple assault is necessarily a lesser-included offense of aggravated assault, and has long been recognized as such. The court then held that Appellant was entitled to the lesser-included offense instruction of simple assault because there was “evidence, which if believed by the trier of fact, would constitute evidence of simple assault.” Thus, the court of appeals held that the trial court erred by fading to include the instruction for the lesser-included offense of simple assault.

This Court granted review on two grounds: First, did the court of appeals eiT in holding that the trial court erred in failing to instruct the jury on the lesser offense of assault? And second, must a trial court instruct a jury on a lesser offense where the conduct establishing the lesser offense is not “included” within the conduct charged?

I. Law

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 is guilty only of the lesser offense. To determine if an offense is a lesser-included-offense, we look to Texas Code of Criminal Procedure Art. 37.09, 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; (emphasis added)

We now look to the indictment to determine what offense was charged, and whether Appellant’s request for a jury instruction on simple assault was properly denied.

II. Analysis

The court of appeals held that simple assault is necessarily a lesser-included offense of aggravated assault, citing a Court of Criminal Appeals ease from 1888. What the court fails to consider, however, is that while simple assault may be a lesser-included offense of aggravated assault in some cases, here, Appellant is asking for a lesser-included offense instruction based on facts not required to establish the commission of the offense charged. In other words, the conduct constituting the lesser-included offense for which Appellant requested an instruction is different from the conduct which was alleged in the charging instrument for Appellant’s aggravated— assault charge. The indictment for the aggravated assault alleged that Appellant committed aggravated assault against the victim by two separate theories, namely, that Appellant attacked the victim with a deadly weapon, to wit, a baseball bat, and that Appellant caused the victim serious bodily injury by hitting her with the bat. Here, Appellant is asking for an instruction for the offense of simple assault stemming from the conduct of hitting the victim with his fists and not a baseball bat.

Because the conduct constituting the offense of assault for which the Appellant wanted an instruction is not the same as the conduct charged in the indictment for aggravated assault, assault by means of striking the victim with his fists is not a lesser-included offense of aggravated assault by striking the victim with a bat. This offense fails to meet the requirements of Texas Code of Criminal Procedure Art. 37.09 because the same facts or less than the same facts required to prove the greater aggravated assault offense are not required to prove the assault offense. Proof that Appellant hit the victim with his fists is not required to prove aggravated assault by hitting the victim with a bat. Assault by hitting someone with a fist may be a lesser-included offense of aggravated assault in some instances, but not as the greater offense was charged in the indictment in this case.

Thus, as to the second ground for review, we re-affirm our decision in Hayward. A trial court is not required to instruct a jury on a lesser included offense where the conduct establishing the lesser offense is not “included” within the conduct charged; i.e. within the facts required to prove the charged offense.

In answer to the question posed in the first ground for review, we hold that the court of appeals erred by holding that the trial court erred in failing to give the jury the lesser-included offense instruction for assault. For the reasons stated above, Appellant was not entitled to a lesser-included offense instruction. The trial court did not err in failing to instruct the jury. The decision of the court of appeals is reversed, and we affirm the trial court’s holding and Appellant’s conviction.

KELLER, P.J., and KEASLER, HERVEY, and HOLCOMB, J.J., concurred in the judgment.

      . Charles Ray Irving v. State, No. 09-02-476-CR, 2003 WL 22736207, 2003 Tex.App. T.F.XIS 9942 (Beaumont Nov. 19, 2003, pet. granted)(not designated for publication).

      . Id. at 6.

      . Id. at 8.

      . Id. at 9.

      . Hayward v. State, 158 S.W.3d 476, 478, 2005 Tex.Crim.App. LEXIS 266 at *3 (Tex. Crim.App. March 2, 2005); Jacob v. State, 892 S.W.2d 905, 907 (Tex.Crim.App. 1995).

      . Assault is defined in Texas Penal Code § 22.01 as follows: "(a) A person commits an offense of the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.”

      . Texas Penal Code § 22.02 defines aggravated assault as follows: "(a) A person commits an offense if the person commits assault as defined in Section 22.01 and the person: (1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.”

      . Charles Ray Irving v. State, No. 09-02-476-CR, 2003 WL 22736207, 2003 Tex.App. LEXIS 9942 (Beaumont Nov. 19, 2003, pet. granted)(not designated for publication)(citing Foster v. State, 25 Tex. Ct.App. 543, 543, 8 S.W. 664, 665 (1888)).

      . The indictment in the trial court read specifically that Appellant:
      did then and there intentionally and knowingly use a deadly weapon, to wit: a bat, that in the manner of its use and intended use was capable of causing death and serious bodily injury, and did then and there intentionally and knowingly cause bodily injury to Phyllis Chargois by hitting the said Phyllis Chargois on the head and body with the said bat.
      The second count of the indictment alleged that Appellant:
      did then and there intentionally and knowingly cause serious bodily injury to Phyllis Chargois by hitting her on the head and body with a bat.

      . Hayward v. State, No. PD-2081-03, at * 479-80 2005 Tex.Crim.App. LEXIS 266 at *7-8 (Tex.Crim.App. March 2, 2005)

      . Jacob v. State, 892 S.W.2d 905, 908 (Tex.Crim.App. 1995)(citing Bartholomew v. State, 871 S.W.2d 210 (Tex.Crim.App. 1994)). The court in Bartholomew reasoned that in a case where the indictment charged reckless driving and alleged the acts showing recklessness as speeding and racing, speeding and racing would be lesser-included-offenses of reckless driving. However, if the indictment had alleged the acts showing reckless driving as “driving in circles” or "doing donuts” in the street, speeding and racing would not be lesser-included-offenses because they would not be required to establish the charged offense.

      . Hayward v. State, No. PD-2081-03, at * 479-80 2005 Tex.Crim.App. LEXIS 266 at *7-8 (Tex.Crim.App. March 2, 2005)