author: SUSAN LARSEN, Justice.

text:
    In re BUNZL USA, INC., Relator.
    No. 08-03-00306-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 8, 2004.

      Steven J. Blanco, Delgado, Acosta, Bra-den & Jones, P.C., El Paso, for Relator.
    Yvonne Rangel, El Paso, for Respondent.
    Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
   OPINION

SUSAN LARSEN, Justice.

In this mandamus proceeding, Bunzl USA, Inc. argues that the trial court abused its discretion by refusing to compel arbitration. We deny the requested writ.

Procedural Background

Manuel Avila filed suit against Bunzl USA, Inc., Bunzl Distribution, Inc., Bunzl Distribution USA, Inc., Bunzl Dallas, Inc., Paul Lorenzini, and Elizabeth Isam. He alleged that he was employed by the defendants as a sales representative between June 26, 1993 and November 29, 2001 and that he was terminated because of his race or ethnicity. He asserted causes of action for violations of the Texas Commission on Human Rights Act and for intentional infliction of emotional distress. Lorenzini, the president of Bunzl USA, Inc., filed a special appearance, which the court granted.

The remaining defendants filed a motion seeking to compel Avila to arbitrate his claims pursuant to the Federal Arbitration Act (FAA). They also filed a memorandum in support of their motion. Attached to the memorandum was a copy of a “Salesperson Employment Agreement,” dated December 6, 1993, between Bunzl USA and Avila.

The Salesperson Employment Agreement recites that Avila desires to be employed or continue employment and that Bunzl desires to employ or continue to employ him. It further recites that Avila’s position with Bunzl will provide him with access to Bunzl’s customers and confidential or proprietary business information. The Agreement then sets out provisions common to a non-compete contract.

The Agreement also includes a paragraph labeled “Arbitration and Governing Law.” This paragraph states:

[A]ny dispute arising out of, pursuant to, or relating to this Agreement, or to the employment or the termination of Employee by Company, shall be resolved by binding arbitration in St. Louis County, Missouri before one (1) arbitrator pursuant to the rules of the American Arbitration Association for commercial arbitration. This Agreement shall be interpreted in accordance with and governed by the law of Missouri. The sole function of the arbitrator is to interpret and enforce the Agreement under Missouri law, and ... the arbitrator shall have no authority to alter, amend, modify or change the Agreement.

The next paragraph provides, “No modification or amendment of any provision of this Agreement is effective unless it is in writing and signed by the parties to this Agreement.”

The Agreement concludes with a signature block that has three lines. The first line is blank. The second line has “By:” in typewriting at the beginning of the line and the word “COMPANY” in typewriting beneath the line. “Bunzl/Papereraft” is printed by hand on the line. The third line has “EMPLOYEE” in typewriting beneath it. On the line is an illegible signature dated “12-6-93.” No affidavit accompanied the copy of the Agreement that was attached to the memorandum.

At the hearing on the defendants’ motion to compel arbitration, Avila’s counsel maintained that the Agreement was not valid because, among other things, it was not properly signed by Bunzl. Counsel argued that the lack of a signature called into question whether the parties ever reached an agreement. The court also expressed concern over the missing signature, stating that the existence of an agreement to arbitrate was the defendants’ “weakest point.” The defendants’ counsel responded to this argument by asserting that an arbitration agreement does not have to be signed to be valid. Neither side presented any evidence at this hearing or requested an evidentiary hearing. The court denied the motion to compel arbitration.

The defendants filed a motion to reconsider. They also filed a memorandum in support of this motion. The defendants argued in the memorandum that the missing signature does not render the Agreement unenforceable. They attached several documents to the memorandum, including a copy of the Salesperson Employment Agreement and the affidavit of Elizabeth Isam. Isam averred that she is the regional human resources manager for Bunzl Distribution Southwest, L.P., which Avila wrongly named in this suit as Bunzl Dallas, Inc. She further stated that she is the custodian of records for Bunzl Southwest, that she maintains the personnel jackets of Bunzl employees within her region of authority, that the attached copy of the Salesperson Employment Agreement is “a true and accurate copy of Mr. Avila’s Employment Agreement,” that the Agreement was kept in his employment jacket so it could be reviewed if questions arose regarding the parties’ rights and obligations under the Agreement, and that she personally reviewed the Agreement before Avila was terminated to ensure that Bunzl acted in accordance with its obligations under the Agreement.

The court conducted a hearing on the motion. Again, with the exception of the documents attached to the motion, neither party presented any evidence or requested an evidentiary hearing. The court denied the motion to reconsider.

The Parties’ Arguments

Bunzl asserts that the trial court abused its discretion in refusing to compel arbitration. It argues that it presented overwhelming evidence that its employment relationship with Avila affected interstate commerce and that Avila’s claims fall within the scope of the arbitration provision. Bunzl also argues, although it is the only relator in this proceeding, that all the defendants are entitled to invoke the arbitration provision under the doctrine of equitable estoppel. Finally, Bunzl argues that Missouri is the proper venue for the arbitration proceeding. Curiously, despite the trial court’s statement that the absence of Bunzl’s signature on the Agreement is the weakest part of its case, Bunzl’s petition does not address this issue.

In his response, Avila argues that Bunzl failed to establish that the parties assented to the Agreement because Bunzl did not sign it, there was no evidence that the employee signature on the Agreement was his, and there was no other evidence to show that the parties assented to the Agreement’s terms. Avila also argues that his claims do not fall within the scope of the arbitration provision.

In its reply brief, Bunzl again fails to offer any argument regarding the absence of its signature. The only reference to this issue is an assertion that Avila did not “claim or argue to the Trial Court that the agreement presented was not the Parties’ Agreement.” Appended to this assertion is a footnote, which acknowledges that Avila argued below that the Agreement “was unenforceable because Bunzl had not signed the agreement.” Bunzl then points out, without citation to the record, that it responded to this “specious argument” in its motion for reconsideration.,

Standard of Review

A writ of mandamus will issue to correct a clear abuse of discretion when there is no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding). There is no other adequate remedy at law when a trial court improperly denies a motion to compel arbitration under the FAA. In re Halliburton Co., 80 S.W.3d 566, 573 (Tex.2002); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272-73 (Tex.1992).

A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker, 827 S.W.2d at 839. With respect to the resolution of factual issues, this means that we may not substitute our judgment for that of the trial court, even if we would have decided the issue differently. Id. at 839-40. Instead, we may not overturn the trial court’s decision unless that court could reasonably have reached only the opposite decision. See id. at 840. The relator has the burden of establishing that the trial court abused its discretion. Id.

With respect to the resolution of legal issues, our review is much less deferential. Id. The trial court has no discretion in determining what the law is or in applying the law to the facts. Id. Therefore, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id. .

The Pkocedure to be Followed on a Motion to Compel Arbitration

In Tipps, the Texas Supreme Court set out the procedure to be followed when a motion to compel arbitration has been filed:

[T]he trial court may summarily decide whether to compel arbitration on the basis of affidavits, pleadings, discovery, and stipulations. However, if the material facts necessary to determine the issue are controverted, by an opposing affidavit or otherwise admissible evidence, the trial court must conduct an evidentiary hearing -to determine the disputed material facts.

Tipps, 842 S.W.2d at 269. In arriving at this procedure, the supreme court drew from established summary judgment procedure. See id.; see also In re Jebbia, 26 S.W.3d 753, 756-57 (Tex.App.-Houston [14th DistJ 2000, orig. proceeding) (“A summary motion to compel arbitration is essentially a motion for partial summary judgment, subject to the same evidentiary standards.”).

Our sister appellate courts have elaborated on the procedure set out in Tipps. See, e.g., Jebbia, 26 S.W.3d at 756-57; Jennings, 936 S.W.2d at 18-19; Prudential Sec. Inc. v. Banales, 860 S.W.2d. 594, 597 (Tex.App.-Corpus Christi 1993, orig. proceeding). The Fourteenth Court of Appeals explained the correct procedure this way:

The party alleging an arbitration agreement must present complete summary proof of his “case in chief’ that an agreement to arbitrate requires arbitration of the issues in dispute. 1 If that summary proof intrinsically raises issues about the procedural enforceability of the agreement, the movant’s summary proof should include any evidence that resolves those issues without creating an issue of material fact. Naturally, the non-movant, to resist summary arbitration, needs only to raise an issue of material fact about a necessary element of its opponent’s “case in chief’ or present some evidence supporting every element of a defensive claim that there is no enforceable agreement to arbitrate.
If the movant has proven there is an arbitration agreement, as a matter of law, the court must compel arbitration, and a presumption arises that all disputed, issues between the parties must be arbitrated. If issues of material fact remain about whether there is an enforceable agreement to arbitrate, the trial court must promptly allow the party claiming the right to arbitrate an eviden-tiary hearing on the matter.

Jebbia, 26 S.W.3d at 757 (citations omitted). We agree that this is the correct procedure for the trial court and the parties to follow.

Establishing the Existence op an Arbitration Agreement

Public policy favors the submission of disputes to arbitration. In re Conseco Fin. Servicing Corp., 19 S.W.3d 562, 566 (Tex.App.-Waco 2000, orig. proceeding). But arbitration is also a creature of contract. Am. Heritage Life Ins. Co. v. Lang, 321 F.3d 533, 537 (5th Cir. 2003); Ysleta Indep. Sch. Dist. v. Godinez, 998 S.W.2d 700, 702 (Tex.App.-El Paso 1999, no pet.). Therefore, a party cannot be compelled to arbitrate a dispute unless he has agreed to do so. Lang, 321 F.3d at 537. A party seeking to compel arbitration must first establish that an arbitration agreement exists. Id. at 537; In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999); In re Anaheim Angels Baseball Club, Inc., 993 S.W.2d 875, 877 (Tex.App.-El Paso 1999, orig. proceeding). When we are called upon to decide whether the parties have agreed to arbitrate, we do not resolve doubts or indulge a presumption in favor of arbitration. Lang, 321 F.3d at 537-38; Jebbia, 26 S.W.3d at 757. Instead, we apply standard contract principles to determine whether a valid arbitration agreement exists. Lang, 321 F.3d at 538; Godinez, 998 S.W.2d at 702.

Under standard contract principles, the presence or absence of signatures on a written contract is relevant to determining whether the contract is binding on the parties. According to Corbin, if the parties have unconditionally assented to terms stated in an unsigned document, the document constitutes a binding written contract, regardless of whether it is signed. 1 Arthur LintoN Corbin, Corbin on Contracts § 2.10, at 168 (Joseph M. Perillo rev., 1993). But a party’s signature on a written contract is “strong evidence” that the party unconditionally assented to its terms. Id. In the absence of a signature, other evidence must be relied upon to prove the party’s unconditional assent. Id. Furthermore, the parties may provide that the signature of each party is a prerequisite to a binding written contract. Id. at 165.

The Texas Supreme Court has relied on these principles from Corbin to decide whether parties were bound by an instrument that only one party signed. See Simmons & Simmons Constr. Co. v. Rea, 155 Tex. 353, 286 S.W.2d 415 (Tex.1955). In Rea, a general contractor and a subcontractor orally agreed upon the terms of a contract, which the general contractor immediately reduced to a written instrument that included a signature block and provided for the furnishing of a bond after the instrument was signed. The general contractor then delivered the instrument to the subcontractor with directions to obtain a bond, sign the instrument, and return the instrument, along with the bond, so that the general contractor could sign the instrument. The general contractor also told the subcontractor to be available to begin work when the materials became available. Id. at 357, 286 S.W.2d at 417. After the subcontractor followed these instructions, the general contractor repudiated the agreement and refused to sign the instrument. Id. at 355, 286 S.W.2d at 416. The jury returned a verdict in favor of the subcontractor, finding that the parties intended for the written instrument to be binding regardless of whether it was signed by both parties. Id. at 355-56, 286 S.W.2d at 416-17.

In an opinion by Justice Calvert, the supreme court concluded that the evidence was legally insufficient to support the verdict. The court ruled that there was nothing in the general contractor’s words or conduct that would reasonably raise an inference “that he intended to assent to the instrument in the absence of the signatures of the parties or that he intended to waive signing as a condition of such assent.” Id. at 359, 286 S.W.2d at 419.

Thus, the question of whether a written contract must be signed to be binding is a question of the parties’ intent. See, e.g., Scaife v. Associated Air Ctr. Inc., 100 F.3d 406, 410 (5th Cir.1996); ABB Kraftwerke Aktiengesellschaft v. Browns ville Barge & Crane, Inc., 115 S.W.3d 287, 292 (Tex.App.-Corpus Christi 2003, no pet. h.). But see McCulley Fine Arts Gallery, Inc. v. “X” Partners, 860 S.W.2d 473, 477 (Tex.App.-El Paso 1993, no writ) (stating, in dicta, that “execution and delivery of the contract with intent that it become mutual and binding on both parties” is an element of a binding contract). Therefore, it is generally a question for the fact- finder to answer. Scaife, 100 F.3d at 410. In this regard, Texas law is in accord with Missouri law. See, e.g., Stege v. Hoffman, 822 S.W.2d 517, 518 (Mo.Ct.App.1991) (“A signature is not always essential to the binding force of an agreement and whether an unsigned writing constitutes a binding contract depends upon the parties’ intention.”); Sanders v. DeWitt, 579 S.W.2d 707, 711 (Mo.Ct.App.1979) (“The object of a signature is to show mutuality or assent which may be shown in other ways as, for example, by acts or conduct of the parties.”).

Texas law is also in accord with decisions applying the FAA. Although the FAA requires an arbitration agreement to be written, it does not expressly require the agreement to be signed by the parties. See 9 U.S.C.A. § 3 (West 1999); Valero Ref., Inc. v. M/T Lauberhorn, 813 F.2d 60, 63-64 (5th Cir.1987). Nevertheless, a party seeking to enforce a purported arbitration agreement must establish that the parties agreed to arbitrate the dispute. Lang, 321 F.3d at 537. In the absence of signatures, other evidence has been held sufficient to establish the parties’ assent.

For example, in Valero, the court stated, “It is established that a party may be bound by an agreement to arbitrate even in the absence of his signature [and][o]rdi-nary contract principles determine who is bound by a written arbitration agreement.” 813 F.2d at 64. The court noted that the party attempting to avoid the arbitration agreement acknowledged in its pleadings that the agreement existed and that it had executed the agreement. That party’s counsel stated at a hearing before the trial judge that there were no problems with the agreement’s authenticity. Based on these facts, the appellate court held that there was sufficient evidence in the record to uphold the trial court’s finding that the parties assented to the arbitration agreement. Id.

In another case, the defendants agreed to build a home for the plaintiff. The plaintiff attempted to avoid an arbitration agreement included within the written contract by arguing that the defendants did not properly sign the contract and therefore did not demonstrate the assent necessary to form a binding contract. Stinson v. America’s Home Place, Inc., 108 F.Supp.2d 1278, 1280, 1283 (M.D.Ala.2000). A federal district judge noted that “a proper signature is by no means the only way a party can manifest assent to a contract.” Id. at 1283. The judge found that the defendants demonstrated their assent to the contract by following through on their contractual obligation to build the home. Id.

Application op the Law to the Facts of this Case

From the foregoing discussion of the law, it is clear that Bunzl had the burden in the trial court of establishing the existence of an agreement to arbitrate. Oak-wood Mobile Homes, 987 S.W.2d at 573; Jebbia, 26 S.W.3d at 757. Because Bunzl did not sign the Agreement, Bunzl’s burden included establishing that the parties intended to be bound regardless of whether the contract was signed by both parties. See Jebbia, 26 S.W.3d at 757; see also Rea, 155 Tex. at 357-59, 286 S.W.2d at 417-19 (suggesting that signatures may be a condition precedent to the effectiveness of a contract); Jennings, 936 S.W.2d at 18-19 (holding that the party seeking to compel arbitration has the burden of establishing that conditions precedent to arbitration have been satisfied). The question of the parties’ intent was a fact question for the trial court to resolve. See Scaife, 100 F.3d at 410. We cannot overturn the trial court’s resolution of this fact question unless Bunzl establishes that the trial court could reasonably have reached only the opposite decision. See Walker, 827 S.W.2d at 840. Moreover, if Bunzl found itself unable to establish, as a matter of law, that the parties intended to be bound regardless of whether the contract was signed, it should have requested an evidentiary hearing. See Jebbia, 26 S.W.3d at 758. But Bunzl did not request an evidentiary hearing below and does not complain in this Court of the trial court’s failure to conduct such a hearing.

The defendants provided the trial court with Isam’s affidavit, which states that the Agreement is “a true and accurate copy of Mr. Avila’s Employment Agreement,” that the Agreement was kept in his employment jacket so it could be reviewed if questions arose regarding the parties’ rights and obligations under the Agreement, and that she personally reviewed the Agreement before Avila was terminated to ensure that Bunzl acted in accordance with its obligations under the Agreement. This is some evidence that Bunzl considered itself bound by the Agreement.

The trial court also had the Agreement itself to review. Although the Agreement has a signature block intended for Bunzl’s representative, it was never signed. The trial court also noted that the Agreement states, “No modification or amendment of any provision of this Agreement is effective unless it is in writing and signed by the parties to this Agreement.” (Emphasis added). This provision and the blank signature block are evidence that the parties did not intend to be bound until both parties signed the Agreement. See Scaife, 100 F.3d at 410-11 (holding that signatures were required where, among other things, contract contained signature block, along with a provision that amendments had to be in signed writings); Rea, 155 Tex. at 358-59, 286 S.W.2d at 418-19 (holding that signatures were required where, among other things, contract had signature block).

From this conflicting evidence, the trial court could have reasonably concluded that Bunzl did not establish the existence of an agreement to arbitrate. Therefore,, the court did not abuse its discretion by refusing to compel arbitration.

Conclusion

For the reasons stated herein, the petition for writ of mandamus is denied.

      . The other documents relate to whether the arbitration provision encompasses' Avila’s claims and whether the Agreement affects interstate commerce.

      . Avila’s counsel argued before the trial court that the missing signature called into question whether Bunzl manifested assent to the Agreement. For example, in reference to the provision requiring modifications to be signed by the parties, counsel argued, "I would suggest to the Court that it's not reasonable to believe that they intended modifications or amendments to be required to be signed by the parties, but not the agreement itself to be signed by both parties.” This was sufficient to preserve this issue for review. See Weakley Homes, Inc. v. Jennings, 936 S.W.2d 16, 18 (Tex.App.-San Antonio 1996, writ denied) (holding that party resisting arbitration preserved issue by raising it orally before the trial court and by pointing to controverting evidence within the movant's proof).

      . In oral argument before this Court, Bunzl did address the missing signature, claiming that the signature was not necessary for two reasons: (1) as a matter of law, a signature was not necessary to complete the contract; and (2) Avila's counsel judicially admitted that his client had entered the agreement which included the arbitration clause. We address the signature issue below. As to the statement by Avila's counsel, we cannot agree that it constituted a judicial admission.
      A judicial admission is a formal act, done in the course of judicial proceedings, which dispenses with the production of evidence and takes the matter out of the domain of proof. Gunter v. Bailey, 808 S.W.2d 163, 164 (Tex. App.-El Paso 1991, no writ). Such an admission may be by way of facts admitted by pleadings, by stipulation, and by formal declaration in open court by a party. Id. At the beginning of his argument to the trial court, Avila's counsel said merely: "First of all, Your Honor, I think it’s very important — do you have the agreement the plaintiff — -the agreement that my client entered into?” We do not find this was an admission that Avila was bound by the contract to arbitrate, but was simply directing the judge’s attention to the item he wanted to discuss. This does not rise to the level of a clear, deliberate and unequivocal statement required to constitute a judicial admission. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex.2000).

      . Although Bunzl did not make this argument below or in this Court, we note that Bunzl’s employment of Avila could be some evidence that it considered itself bound by the Agreement. See, e.g., Stinson, 108 F.Supp.2d at 1283 (finding that party manifested assent by performing under the contract); Halliburton, 80 S.W.3d at 568-69 (holding that an employee accepted the employer’s offer to resolve future disputes through arbitration by continuing to work after being notified that continuing to work for the employer would constitute acceptance of the arbitration agreement). We also note, however, that the Agreement is dated December 6, 1993, and Avila alleges that his employment began in June of that year. The Agreement does not provide that Avila’s employment is contingent upon the Agreement, nor does it provide that employment constitutes acceptance of the Agreement. Thus, Bunzl did not necessarily manifest its assent to the Agreement by employing Avila.
      It is not even clear that Bunzl USA, the only relator in this proceeding, did in fact employ Avila. Although the Agreement purports to be between Avila and "Bunzl USA,” it contains the words "Bunzl/Papercraft” in the signature block, and Isam’s affidavit indicates that Avila was employed by "Bunzl Distribution Southwest, L.P.” Another affidavit attached to the defendants’ memorandum in support of their motion to reconsider states that Avila was employed by "Papercraft Albuquerque,” which "is one of the facilities that makes up Bunzl Distribution Southwest, L.P.” Lorenzini's affidavit, attached to his special appearance, states that Bunzl Distribution Southwest, L.P. is "an indirect subsidiary” of Bunzl USA.


source: Caselaw Access Project

author: Justice FITZGERALD. JAMES, J.

license: Public Domain

text:
    Charles BATES, Appellant, v. The STATE of Texas, Appellee.
    No. 05-03-00195-CR.
    Court of Appeals of Texas, Dallas.
    Jan. 13, 2004.

      Adam Seidel, Dallas, for Appellant.
    William T. (Bill) Hill, Jr., Dallas, for State.
    Before Chief Justice THOMAS and Justices JAMES and FITZGERALD.
   OPINION

Opinion by

Justice FITZGERALD.

Charles Bates appeals his conviction for unlawful possession of a firearm by a felon. After finding appellant guilty, the trial court found one enhancement allegation true and sentenced appellant to six years’ imprisonment and a $1000 fine. On appeal, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm the trial court’s judgment.

FACTUAL BACKGROUND

On April 26, 2002, at 11:50 p.m., Dallas police officers Thomas Tompkins and Julio Ortiz were dispatched to Lisa Watts’s house. Watts had called 911 to report telephone harassment, that the man harassing her was on his way to her house, and that he had a gun. Tompkins arrived within fifteen minutes of Watts’s 911 call, and he saw a minivan stopped in front of the house. Appellant was sitting in the driver’s seat of the minivan. When Tompkins stopped near the house, appellant put the minivan into park, got out of the minivan, and walked to the front of it. Because the call sheet indicated appellant had a gun, Tompkins frisked appellant but did not find a gun. Watts was standing by the front door of the house, and she and appellant were shouting at each other. Tompkins told appellant to sit on the curb while he spoke to Watts. After speaking to Watts, Tompkins took appellant’s identification and called to see if he had any outstanding warrants. After confirming appellant had outstanding warrants, he placed appellant under arrest. Tompkins told appellant he was going to search the minivan, and appellant told Tompkins “he didn’t think it was right I should look through his vehicle due to it not being his vehicle.” Appellant told Tompkins Ella Hester owned the minivan, and appellant gave Tompkins her telephone number. Tompkins called Hester and told her she could pick up the minivan or it would be impounded.

By this time, Ortiz arrived on the scene. Ortiz searched the minivan, and he found a small drawer-like compartment under the front passenger seat. The compartment was “slightly opened.” Inside the compartment was a nine-millimeter semi-automatic handgun with eleven rounds in the magazine. Ortiz testified the gun in the compartment was accessible to a person sitting in the driver’s seat depending on his height, and Tompkins testified appellant could have reached the gun.

Tompkins testified Hester arrived to pick up her minivan. Tompkins spoke to her briefly, confirmed she owned the minivan, and released it to her. Tompkins did not ask her about the gun.

Hester testified she had loaned appellant her minivan at about 10:00 p.m. that night. She did not own a gun, and she had not seen appellant with a gun. Hester had a boyfriend, Derek Parmon, who made threats to shoot people, but he had not been in the minivan for the preceding two weeks. Hester used the compartment under the passenger seat to “put my junk stuff and perfumes, stuff you don’t want in the dashboard. I throw odds and ends in there.” Hester said she used the compartment “mostly when I clean it out I put excessive stuff in there.” The compartment was typically not latched, and it would “jump out” when the minivan hit a bump.

Hester testified she received a call from the police about midnight telling her to pick up the minivan or it would be impounded. Appellant’s sister drove Hester to the location, and without speaking to the officers or appellant, she got in the minivan and drove away.

Appellant testified he borrowed Hester’s minivan and went home. He then telephoned Watts and asked her to return the battery charger for his cordless telephone. Watts told appellant the charger did not belong to him, and she refused to give it to him. Appellant told Watts he was coming to her house to pick up the charger, and she told him the police would be waiting for him because she was tired of appellant and his family and because appellant’s sister had threatened her. Appellant then drove to Watts’s house and knocked on her door. Watts did not open the door, and she told appellant to leave and that the police were coming. As appellant walked back to the minivan, the police arrived. Appellant walked over to the squad car and told Tompkins what was going on, “I told them we were buying a battery charger.” Appellant did not have any identification with him, but he told Tompkins his correct name and birth date. Tompkins asked appellant if he had any warrants, and appellant said he did for traffic tickets. Watts then stepped outside and told Tompkins she did not want appellant to go to jail. Tompkins asked appellant if he had anything in the minivan, and appellant told him it did not belong to him and he did not know what was in it. Tompkins asked if he could search the minivan, and appellant told him, “No, I’m — I can’t give permission, but I can give you the owner’s phone number, and if she said it’s okay, it’s okay with me.” Instead of calling Hester, Tompkins confirmed appellant had warrants, and Ortiz searched the minivan. After Ortiz found the gun, appellant was arrested. The officers asked appellant if the gun was his, and appellant said it was not. Tompkins told Ortiz he could leave, and only appellant and Tompkins were present when Hester and appellant’s sister arrived. Hester got in the van and drove away. Tompkins would not allow appellant’s sister to speak to appellant. Appellant denied owning a gun, possessing a gun that night, showing a gun to Watts, or knowing about the gun Ortiz found in the minivan. Appellant admitted having been convicted in 1999 of unlawful possession of a firearm by a felon and sentenced to two years’ confinement and a $1500 fine.

The indictment alleged appellant had been convicted in 1998 of unlawful delivery of a controlled substance and that appellant possessed a firearm within five years of his release from confinement for this offense. The parties stipulated to evidence appellant was convicted in 1993 of delivery of a controlled substance and was sentenced to eight years’ imprisonment.

SUFFICIENCY OF THE EVIDENCE

In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App.2000). The standard is the same for both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App.2001). In analyzing whether the evidence was factually sufficient to support the conviction, we must determine “whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). In conducting this analysis, the appellate court must defer to the trier of fact’s determination concerning the weight given contradictory evidence. Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We must set the verdict aside only if it is só factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996).

To establish unlawful possession of a firearm by a felon, the State was required to show appellant was previously convicted of a felony offense and possessed a firearm after the conviction and before the fifth anniversary of his release from confinement or from supervision under community supervision, parole, or mandatory supervision, whichever date is later. Tex. Pen.Code Ann. § 46.04(a)(1) (Vernon Supp. 2004); see also Martinez v. State, 986 S.W.2d 779, 780 (Tex.App.-Dallas 1999, no pet.). ■“ ‘Possession’ means actual care, custody, control, or management.” Tex. Pen.Code Ann. § 1.07(a)(39) (Vernon Supp. 2004). A person commits a possession offense only if he voluntarily possesses the prohibited item. See id. § 6.01(a) (Vernon 2003). “Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.” Id. § 6.01(b).

In cases involving unlawful possession of a firearm by a felon, we analyze the sufficiency of the evidence under the rules adopted for determining the sufficiency of the evidence in cases of unlawful possession of a controlled substance. Young v. State, 752 S.W.2d 137, 140 (Tex.App.-Dallas 1988, pet. ref'd). Thus, the State was required to prove: (1) the accused exercised actual care, control, or custody of the firearm; (2) he was conscious of his connection with it; and (3) he possessed the firearm knowingly or intentionally. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986); Nguyen v. State, 54 S.W.3d 49, 52 (Tex.App.-Texarkana 2001, pet. ref'd); see also Corpus v. State, 30 S.W.3d 35, 38 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). The State’s evidence, which may be either direct or circumstantial, must establish the accused’s connection with the firearm was more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995).

If the firearm is not found on the accused’s person or is not in the exclusive possession of the accused, the evidence must affirmatively link the accused to the firearm. Davis v. State, 93 S.W.3d 664, 667 (Tex.App.-Texarkana 2002, pet. ref'd). Factors which may establish affirmative links include whether: (1) the contraband was in plain view; (2) the accused was the owner of the car in which the contraband was found; (3) the accused was the driver of the car in which the contraband was found; (4) the accused was in close proximity and had ready access to the contraband; (5) the contraband was found on the same side of the car seat as the accused was sitting; (6) contraband was found on the accused; (7) the defendant attempted to flee; (8) conduct by the accused indicated a consciousness of guilt, including extreme nervousness or furtive gestures; (9) the accused had a special connection or relationship to the contraband; (11) the place where the contraband was found was enclosed; (12) occupants of the automobile gave conflicting statements about relevant matters; and (13) affirmative statements connect the accused to the contraband, including incriminating statements made by the accused when arrested. Dixon v. State, 918 S.W.2d 678, 681 (Tex.App.-Beaumont 1996, no pet.); Watson v. State, 861 S.W.2d 410, 414-15 (Tex.App.-Beaumont 1993, pet. ref'd). The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband. See Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd).

In this case, appellant was the driver and sole occupant of the vehicle, which he had borrowed about two hours before this incident. The gun, found in a partially opened compartment under the front passenger seat, was in close proximity to and accessible to appellant as he sat in the driver’s seat. The only other people besides appellant who could have put the gun in the compartment were Hester and Par-mon. Hester denied all knowledge of the gun, and she testified Parmon was not in the car during the two weeks preceding appellant’s arrest. Hester also testified she kept her perfumes and other “junk stuff’ in the compartment and that the compartment would “jump out” whenever she hit a bump. The trial court could rationally conclude from this evidence that if the gun had been in the compartment for the preceding two weeks, she would have seen it in there. Parmon was not called as a witness.

The evidence further showed Watts had called 911 to report telephone harassment, that the man harassing her was on his way to her house, and that he had a gun. Responding immediately to this call, the police discovered only one man at Watts’s residence, appellant, who was seated in a vehicle in front of Watts’s residence. Based on conversations the police conducted at the scene, it is undisputed appellant had just arrived at Watts’s residence. The 911 call referred to “harassment.” Upon their arrival, the police witnessed appellant and Watts yelling at each other. Appellant’s verbal confrontation with Watts outside her house around midnight continued even after the police arrived. The call sheet resulting from the 911 call said the man “had a gun,” and a gun was subsequently located under the front passenger seat of the vehicle appellant had just driven to Watts’s house. After comparing the facts developed at the scene with the 911 call, we conclude the evidence reasonably shows appellant was harassing Watts on the telephone, that he was on his way to her home at the time she called the police, and that he possessed a gun.

Viewing all the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient for the trial court to find beyond a reasonable doubt that appellant had possession of the gun found in the minivan. Accordingly, we hold the evidence is legally sufficient to support appellant’s conviction. We overrule appellant’s first point of error.

In arguing the evidence is factually insufficient, appellant relies on Nguyen v. State, 54 S.W.3d 49 (Tex.App.-Texarkana 2001, pet. ref'd). In that case, a peace officer pursued a speeding vehicle. Id. at 51. When the vehicle did not immediately pull over, the officer shined his spotlight on the back window of the car, and he saw the appellant, who was sitting in the front passenger seat, reach between the two front seats toward the back seat. Id. The officer could not tell if the appellant was holding a gun. Id. at 52. The vehicle then pulled over. Id. at 51. When the officer approached the vehicle, the appellant appeared to be asleep, and the driver appeared to wake him up to get the proof of insurance. Id. The officer obtained consent to search the vehicle, which belonged to the appellant’s brother, and the officer found a handgun completely hidden under a removable rear seat behind the driver’s seat, which had to be lifted to place the gun beneath it. Id. at 52. The officer testified it would have been more difficult for the appellant to lift the rear seat and place the gun beneath it while seated in the front seat than it was for the officer to lift the rear seat while standing next to it. Id. The gun had been stolen during a burglary of the Arlington home of a Vietnamese family by five Asian males. Id. The appellant lived in Arlington and was also Vietnamese. Id. The Texarkana court held the evidence was factually insufficient to support the appellant’s conviction because the driver did not try to flee, the car did not belong to the appellant, the officer did not see the gun in the appellant’s hand, and no usable fingerprints could be lifted from the gun.

This case is distinguishable from Nguyen. In Nguyen, the car. in question had two occupants, the driver and Nguyen, the passenger; in the instant case, appellant was the sole occupant. In Nguyen, the gun was found under a removable rear seat directly behind the driver’s seat; in the instant case, the gun was found in a “slightly opened” compartment accessible to appellant. In Nguyen, it was impossible to determine whether the appellant had just put the gun under the seat or whether the gun had been left hidden under the seat by the appellant’s brother or someone else. In this case, a rational trier of fact judging the credibility of the witnesses could conclude appellant must have put the gun in the compartment because: (a) Hester testified she had no knowledge of the gun; (b) Parmon was the only other person the record shows who could have put the gun in the compartment, and he had not been in the minivan for the preceding two weeks; and (c) because Hester put her “junk stuff and perfumes” and items she did not want on the dashboard in the compartment, and because the compartment would “jump out” whenever the minivan struck a bump, Hester would have been aware of the gun’s presence during the two weeks between Parmon’s access to the minivan and her loaning it to appellant. Finally, in Nguyen, there was no evidence the appellant had a gun; in this case, Tompkins testified, “The call sheet stated he had a gun.”

After reviewing all the evidence in a neutral light, we conclude the proof of appellant’s guilt is not so obviously weak as to undermine confidence in the trial court’s determination, nor is the proof of appellant’s guilt greatly outweighed by contrary proof. Appellant’s conviction is neither against the great weight and preponderance of the evidence nor clearly wrong and manifestly unjust. Accordingly, we hold the evidence is factually sufficient to support appellant’s conviction. We overrule appellant’s second point of error.

We affirm the trial court’s judgment.

THOMAS, Chief Justice concurring without opinion.

JAMES, J.

dissenting.

Dissenting Opinion by Justice JAMES.

I agree the majority has correctly presented the law applicable to the offense of unlawful possession of a firearm by a felon. I also agree the majority has applied the appropriate standard of review. However, I disagree with the majority’s conclusion that the evidence is legally sufficient to support appellant’s conviction. Specifically, the evidence is insufficient for the trial court, sitting as the finder of fact, to find beyond a reasonable doubt that appellant had possession of the gun found in the minivan, an essential element of the offense charged. Accordingly, I respectfully dissent.

As the majority has posited, in cases charging unlawful possession of a firearm, we analyze the sufficiency of the evidence under the rules for determining the sufficiency of the evidence of unlawful possession of a controlled substance. See Young v. State, 752 S.W.2d 137, 140 (Tex.App.-Dallas 1988, pet. ref'd). The State must prove: (1) the accused exercised actual care, control, or custody of the firearm; (2) he was conscious of his connection with it; and (3) he possessed the firearm knowingly or intentionally. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986); Nguyen v. State, 54 S.W.3d 49, 52 (Tex.App.-Texarkana 2001, pet. ref'd). The State’s evidence, either direct or circumstantial, must establish the accused’s connection with the firearm was more than fortuitous by proving beyond a reasonable doubt the accused knowingly and intentionally possessed the weapon. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995).

Where, as in this case, there is no direct evidence the weapon was found on the accused’s person or was in his exclusive possession, the circumstantial evidence must affirmatively link the accused to the firearm. See id. The necessity of proving affirmative links between the accused and the firearm is mainly to establish his knowledge and intent to possess the weapon. See id. Factors which may establish affirmative links to the accused include whether: (1) the firearm was in plain view; (2) the accused was the owner of the vehicle in which the firearm was found; (3) the accused was the driver of the vehicle in which the firearm was found; (4) the accused was in proximity to and had access to the firearm; (5) the firearm was found on the same side of the vehicle as where the accused.was sitting; (6) the firearm was found on the accused’s person; (7) the accused attempted to flee; (8) conduct of the accused indicated a consciousness of guilt, including extreme nervousness or furtive gestures; (9) the accused had a special connection or relationship to the firearm; (10) the place where the firearm was found was enclosed; (11) occupants of the automobile gave conflicting statements about relevant matters; and (12) affirmative statements connect the accused to the firearm, including incriminating statements made by the accused when arrested. See Dixon v. State, 918 S.W.2d 678, 681 (Tex.App.-Beaumont 1996, no pet.). “Affirmative link” is only a shorthand expression of what the State must prove to establish that a person possessed some kind of contraband “knowingly or intentionally.” See Brovm, 911 S.W.2d at 747. The evidence must affirmatively link the defendant to the thing he is alleged to have possessed. Id.

In this case the evidence is undisputed the firearm was found in a compartment under the passenger seat of a minivan owned by Hester. The arresting officer testified appellant was seated in the driver’s seat and was the only occupant of the vehicle. Appellant did not attempt to flee when the officer drove up. Appellant declined to give the officer permission to search the vehicle saying it was not his, but he gave the officer Hester’s phone number to call for permission. The firearm was not examined for fingerprints of appellant or others. Appellant told the officer the gun was not his and he did not know it was in the minivan. Based on these facts, I would conclude the State failed to adduce any evidence of affirmative links set forth in at least nine of the twelve affirmative links the majority cites from Dixon. See id. However, I recognize the number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband. See Wallace v. State, 932 S.W.2d 519, 520 (Tex.App.-Tyler 1995, pet. ref'd). Thus an analysis of the evidence relevant to these three remaining factors is required.

The State presented evidence the automobile appellant was driving was owned by Hester. Appellant had driven the car less than two hours when he was arrested. According to the arresting officers, Lisa Watts reported appellant was harassing her with threats and was coming to her residence. She .told the dispatcher appellant was five minutes from her and had a gun. Within fifteen minutes of Watts’s call to the dispatcher, the arresting officer arrived at Watts’s house and saw appellant seated in the driver’s seat of Hester’s' parked minivan. This testimony indicates appellant had been in Hester’s automobile for less than half an hour when he came under surveillance of the police. This short period of time of being the driver of the vehicle, no more than the fifteen minutes after Watts’s call, implies appellant had no more than limited or temporary control of the minivan. I would conclude this factor does not provide a strong affirmative link between appellant and the' firearm.

The police searched the minivan, and the firearm was found in a compartment under the passenger seat. The officer testified appellant, by “lunging,” could have reached the weapon in the “slightly opened” compartment under the passenger seat from his position in the driver’s seat. Again, this evidence fails to provide a strong affirmative link based on appellant’s proximity to and the accessibility of the firearm.

The arresting officer testified appellant declined his request to consent to a search of the minivan, and in the officer’s opinion this indicated appellant had something in the vehicle he wanted to conceal. However, appellant explained he could not give consent because the automobile belonged to someone else. He gave the officer Hester’s phone number and said to call her for permission. To the extent the trial court sitting as the fact finder may have considered this evidence to be conduct indicating a consciousness of guilt, I conclude it is, at best, a very weak affirmative link, a conclusion shared somewhat by the majority.

In reviewing a challenge to the legal sufficiency of the evidence, we must review the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App.2000). The burden of proof is on the prosecution to prove each element of the offense beyond a reasonable doubt. Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref'd). As I have stated at the outset, the State was required to prove: (1) the accused exercised actual care, control, or custody of the firearm; (2) he was conscious of his connection with it; and (3) he possessed the firearm knowingly or intentionally. Cude, 716 S.W.2d at 47; Nguyen, 54 S.W.3d at 52.

After examining the record for any evidence of an affirmative link tending to prove that the appellant was actually aware of his possession of a firearm, I conclude the State’s evidence is so weak a rational trier of fact could not have found the essential elements of the charged offense beyond a reasonable doubt. Confidence in the trial court’s determination of appellant’s guilt is undermined because the evidence is so weak it fails to prove beyond a reasonable doubt that the appellant knowingly or intentionally possessed the firearm and fails to overcome the presumption of the appellant’s innocence. Accordingly, the evidence is legally insufficient and the judgment should be reversed. See Brown, 911 S.W.2d at 746.

The majority asserts appellant must have placed the gun in the minivan because “(t)he only other people who could have put the gun in the compartment were Hester and Parmon.” Hester denied all knowledge of the gun and said Parmon had not used the car in the two weeks prior to appellant’s arrest. The record, however, does not support the majority’s conclusion that Parmon or someone else could not have put the gun in the compartment. There is no evidence Hester did not allow anyone other than the appellant to use her minivan before the time appellant was arrested.

The majority concludes that the trial court could have rationally determined Hester would have seen the gun if it had been in the compartment before appellant drove it. This, however, is not supported by any evidence in the record. There is no evidence Hester had opened the compartment in the intervening two-week period following Parmon’s use of the minivan. Accordingly, I conclude this is no evidence the appellant knowingly or intentionally possessed the firearm.

The majority details the evidence of Watts’s 911 call reporting the appellant was on his way to her house and had a gun. From this the majority concludes the evidence reasonably shows appellant had a gun. I respectfully disagree. This evidence would be supportive of showing the officer had a right to search appellant before arresting him, but it is not probative of appellant’s knowingly and intentionally possessing the firearm. Indeed, this evidence fails to supply any affirmative link to the appellant.

The Fourteenth Amendment to the Constitution protects an accused’s right to a fair trial; the presumption of innocence is a basic component of that right. See U.S. Const, amend. XIV; Tex.Code CRiM. Peoc. Ann. Art. 38.03 (Vernon Supp.2004). Federal due process holds that a conviction is unconstitutional unless after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential element of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 318, 99 S.Ct. 2781; Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992).

In summary, I would conclude the evidence of appellant’s connection to the firearm is so weak as to show no more than appellant had a fortuitous relation to the firearm. As such, the State failed to prove the essential elements of appellant’s voluntary possession of the firearm beyond a reasonable doubt. To conclude otherwise is to allow conviction for unlawful possession of a firearm solely on evidence the defendant was driving an automobile in which a firearm was found under the passenger seat. Such a conclusion vitiates the constitutionally protected presumption of innocence every defendant enjoys by allowing the State to prove possession by sparse evidence that falls far short of overcoming that presumption.

Because I would reverse and enter judgment of acquittal, I respectfully dissent.

      . The "call sheet” dispatching the officers is not in the record, but its contents were testified to by the officers. Ortiz testified the call sheet stated "the complainant called 911 regarding — regarding harassment over the phone. Somebody was calling her over the phone making threats.” Tompkins described the contents of the call sheet at least three different times: (1) "on the call sheet it stated gun possibly involved”; (2) "[d]ue to the call sheet stating gun involved, for officer’s safety I did the Terry frisk on him to make sure he didn't have a firearm on his person”; and (3) "[t]he call sheet stated he had a gun.”

      . Tompkins testified that Watts was under stress and excitement caused by a startling event when he spoke to her, and what she told him' related to the startling event, the predicate facts for admission of hearsay statements under the excited-utterance exception. Tex.R. Evid. 803(2). However, the trial court sustained appellant’s hearsay objection to Tompkins’s testimony about Watts’s statements, explaining:
      [Fjrom the testimony I heard, I’m not convinced that whatever excitement she was under had to do with the event that took place, is my concern. That's the reason .for my ruling, was that from what I heard she was outside, not locked inside. She and the defendant were engaged in mutual argument. So I'm not convinced the excitement had anything, necessarily, to do with the event that had taken place earlier. It appears they were jawing at each other at that point. It's not your predicate [tjhat concerns me so I’ll sustain it.
      The trial court excluded Ortiz’s and Tompkins’s testimony that Watts said appellant had a gun. The trial court also sustained objections to the prosecutor’s questions to Tompkins about whether Watts told him appellant owned a firearm, what Watts feared appellant was going to do, what Watts said had happened, and what Watts said when she was under the stress or excitement of the startling event. The State did not appeal these rulings; accordingly, the issue of the correctness of the trial court's rulings is not before us, and we make no decision on that issue.

      . Appellant also testified Watts “felt” the charger was appellant’s and she would give it to him after she found hers.

      . Neither the State nor the defense asked Hester when she last looked in the compartment before she loaned the minivan to appellant.

      . The State also argued, “Upon the police's arrival, appellant emerged from his vehicle and walked around to the front of it, fending off any opportunity for them to talk to him while he sat inside the vehicle,” conduct the State labeled “furtive behavior.” The State, however, does not explain how such conduct could be construed as "furtive” and does not cite any authority to support its conclusion. Under the circumstances of this case, we are not inclined to view appellant’s conduct of getting out of the minivan and walking to the front of it as “furtive behavior” or any indication of his guilt. The State also argues appellant’s refusal to consent to the search of the vehicle and appellant’s prior conviction for unlawful possession of a firearm by a felon are evidence of his guilt in this case. The State cites no authority in support of these arguments. Appellant’s assertion of his Fourth Amendment rights and proof of his prior conviction for the same offense three years earlier are not evidence of his guilt in this case. Tex.R. Evid. 404(b) (evidence of other crimes is not admissible to prove character and to show action in conformity therewith); Tex.R. Evid. 609 (prior conviction admissible for impeachment purposes); Shipman v. State, 604 S.W.2d 182, 184 (Tex.Crim.App. [Panel Op.] 1980) (two-year-old prior conviction for DWI “not legally relevant” in defendant's current DWI trial); Adams v. State, 862 S.W.2d 139, 147 (Tex. App.-San Antonio 1993, pet. ref'd) (impeachment evidence has no probative value and cannot be considered as substantive evidence); see also Reeves v. State, 969 S.W.2d 471, 493 (Tex.App.-Waco 1998, pet. ref'd) (refusal of consent to search is not admissible as evidence of guilt); Powell v. State, 660 S.W.2d 842, 845 (Tex.App.-El Paso 1983, no pet.) (same). Appellant's prior conviction of possession of a firearm by a felon was not alleged in the indictment as his prior felony conviction. Thus, it was not an element of the offense charged and is not evidence of his guilt.

      , The court of appeals, however, determined the evidence was legally sufficient to prove possession of a firearm by a felon.


text:
    In re R. Jeanette HAMMOND, Relator.
    No. 08-03-00400-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 15, 2004.

      Al Weisenberger, El Paso, for Relator.
    Susan M. Urbieta, El Paso, for Real Party In Interest.
    Before Panel No. 3 BARAJAS, C.J., LARSEN, and CHEW, JJ.
   OPINION

SUSAN LARSEN, Justice.

R. Jeanette Hammond filed a petition for writ of habeas corpus in this Court, seeking to be discharged from confinement pursuant to a trial court order holding her in contempt for failing to pay child support. On August 29, 2003, this Court granted the writ and ordered her discharged upon the posting of a $100 bond. For the reasons that follow, we overrule the issues raised by Hammond in this proceeding. Therefore, we will remand her to the custody of the El Paso County Sheriff.

Factual and PROCEDURAL Background

Hammond and Wiley F. James, III, are the parents of a daughter. On June 1, 2001, they agreed to an order that requires Hammond to pay James $443.57 per month in child support. The order further provides that if James determines that their daughter’s best interest would be served by attending private school or by receiving tutoring, he is authorized to enroll her in a private school of his choice or to make arrangements for tutoring, and Hammond must pay 50 percent of the costs. Hammond must also pay 50 percent of their daughter’s uninsured medical expenses.

James later filed a motion in the 171st Judicial District Court to enforce the order and to hold Hammond in contempt. He alleged that Hammond had violated the order by failing to pay child support or to reimburse him for uninsured medical expenses and private school tuition. James requested that Hammond be held in civil contempt for disobeying the order.

On August 14 and 15, 2003, the parties appeared along with counsel for a hearing on James’s motion. On August 15, the trial court signed an order holding Hammond in criminal and civil contempt. The court determined that Hammond was in arrears on her child support obligation in the amount of $5,866.19, was in arrears on her obligation for private school tuition in the amount of $6,623.68, and was in arrears on her obligation to pay uninsured medical expenses in the amount of $1,284.75. The total arrearage was $13,774.62.

Hammond failed to make fifteen child support payments, two payments for private school expenses, and seventy-two payments for uninsured medical expenses. In assessing punishment for criminal contempt, the court sentenced her to sixty days in jail for each of these eighty-nine violations, to be served consecutively. In sanctioning Hammond for civil contempt, the court ordered Hammond to be confined until she pays the total arrearage of $13,774.62 and James’s attorneys’ fees in the amount of $17,000.28. But the court suspended her commitment until August 28 and provided that if she paid the total arrearage and the attorneys’ fees by that date, she would not go to jail.

Because Hammond failed to pay the amount due by August 28, she was committed to jail on that date. On August 29, she filed a petition for writ of habeas corpus and was released from jail by order of this Court, upon the posting of a $100 bond.

The case was subsequently transferred from the 171st Judicial District Court to the 383rd Judicial District Court. On November 8, 2003, the 383rd Judicial District Court signed a nunc pro tunc order. This order is substantially similar to the August 28 order, except that it does not contain a finding of criminal contempt.

Hammond’s Arguments

Hammond argues that she was denied her right to a jury trial and that she was denied due process because she does not have the ability to pay the amounts ordered by the trial court, she was not allowed an opportunity to present evidence of her inability to pay, and the trial court faded to make a finding that she had the ability to pay. She also argues generally that her confinement is illegal, unconstitutional, excessive, cruel, and unusual, and an abuse of discretion.

Standard op Review

In a habeas corpus proceeding, the guilt or innocence of the relator is not an issue. Ex parte Kimsey, 915 S.W.2d 523, 525 (Tex.App.-El Paso 1995, orig. proceeding). The only issue is the legality of the relator’s confinement. Id. A writ of habeas corpus will not issue if a contempt order is merely erroneous. Ex parte Swate, 922 S.W.2d 122, 124 (Tex.1996). But a writ will issue if the order is void. Id.; Kimsey, 915 S.W.2d at 525. In the context of a habeas proceeding, a contempt order is void if it is beyond the power of the court to enter or if it deprives the relator of liberty without due process of law. Swate, 922 S.W.2d at 124; Kimsey, 915 S.W.2d at 525. The relator bears the burden of showing entitlement to relief in a habeas corpus proceeding. Kimsey, 915 S.W.2d at 525.

Regarding evidentiary challenges, we do not have jurisdiction to assess the witnesses’ credibility or to weigh the evidence. Ex parte Hightower, 877 S.W.2d 17, 20 (Tex.App.-Dallas 1994, orig. proceeding). We may only determine whether the trial court’s contempt finding is so completely without evidentiary support that it deprives the relator of liberty without due process of law. Id.

Right to a Juey TRial

In her first issue, Hammond argues that she was denied her right to a jury trial. When a contemnor has a right to a jury trial, the record must show that the court informed her of the right and that she affirmatively waived that right. Ex parte Sproull, 815 S.W.2d 250, 250 (Tex.1991); Ex parte Casillas, 25 S.W.3d 296, 299 (Tex.App.-San Antonio 2000, orig. proceeding); Ex parte Levingston, 996 S.W.2d 936, 938 (Tex.App.-Houston [14th Dist.] 1999, orig. proceeding). We cannot presume that a jury was waived when the record is silent on the matter. Sproull, 815 S.W.2d at 250; Casillas, 25 S.W.3d at 299; Levingston, 996 S.W.2d at 938.

There is no absolute right to a jury trial in a contempt proceeding. See Muniz v. Hoffman, 422 U.S. 454, 475-77, 95 S.Ct. 2178, 2190-91, 45 L.Ed.2d 319 (1975); Ex parte Werblud, 536 S.W.2d 542, 546-47 (Tex.1976); Casillas, 25 S.W.3d at 299. A person held in civil contempt is not entitled to a jury trial. Shillitani v. United States, 384 U.S. 364, 370-71, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 (1966); Ex parte Johns, 807 S.W.2d 768, 772 (Tex.App.-Dallas 1991, orig. proceeding). The right generally attaches only when the contemnor is held in criminal contempt and assessed a serious punishment. See Muniz, 422 U.S. at 476-77, 95 S.Ct. at 2190; Werblud, 536 S.W.2d at 546-47.

Confinement for more than six months is considered serious punishment. See Sproull, 815 S.W.2d at 250; Werblud, 536 S.W.2d at 546-47; Casillas, 25 S.W.3d at 299. Confinement for six months or less, on the other hand, is considered petty and does not entail a right to a jury trial. Werblud, 536 S.W.2d at 546; Casillas, 25 S.W.3d at 299. But even if the contemnor is sentenced to no more than six months’ confinement for each of several contumacious acts, the punishment is considered serious if the sentences must be served consecutively and they add up to more than six months’ confinement. Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex.1986); Casillas, 25 S.W.3d at 299.

A judgment that orders a con-temnor confined unless and until she performs some act is a judgment of civil contempt. Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631-32, 108 S.Ct. 1423, 1429, 99 L.Ed.2d 721 (1988); Johns, 807 S.W.2d at 770. Unlike confinement for civil contempt, confinement for criminal contempt is for a definite period and is unconditional; there is nothing the contemnor can do to purge herself of the contempt. Hicks, 485 U.S. at 631-32, 108 S.Ct. at 1429; Johns, 807 S.W.2d at 771.

In this case, the trial court initially held Hammond in both criminal and civil contempt. The court ordered her confined for sixty days for each of the eighty-nine separate violations of the prior order. Furthermore, the sixty-day sentences were to be served consecutively. Because this adds up to a sentence of 5,340 days in jail, or more than fourteen and a half years, Hammond had a right to a jury. Yet there was no jury, and there is nothing in the record before this Court to reflect that Hammond was informed of her right to a jury trial or that she affirmatively waived that right. Accordingly, the portions of the August 15 and August 28 orders that held Hammond in criminal contempt are void.

We note that the trial court attempted to replace these orders with the November 8 nunc pro tunc order, which eliminated the criminal contempt provisions. Hammond argues that the nunc pro tunc order is ineffective because it does more than correct clerical errors in the earlier orders and was not signed within the period of the trial court’s plenary power. See Tex.R. Crv. P. 329b(f).

Rule 329b, which limits a trial court’s plenary power to alter a judgment, does not apply to contempt orders. See Ex parte Anderson, 900 S.W.2d 333, 335 n. 1 (Tex.1995) (orig.proceeding). Therefore, the nunc pro tunc order would not be rendered ineffective by the court’s failure to sign it within the usual period of plenary power.

The supreme court has held that a trial court cannot enter a new contempt judgment after a habeas proceeding has been filed in an appellate court. See, e.g., Anderson, 900 S.W.2d at 334-35 (holding that a trial court could not enter a new contempt judgment that corrected the earlier judgment’s failure to state how the contemnor could purge himself because the new judgment was not signed close enough in time to the original pronouncement of contempt); Ex parte Delcourt, 888 S.W.2d 811, 812 (Tex.1994) (orig.proceeding) (holding that a trial court could not enter a new contempt judgment that included additional violations while a habeas proceeding was pending in the appellate court because the new judgment was not signed close enough in time to the original pronouncement of contempt); Ex parte Barnett, 600 S.W.2d 252, 256-57 (Tex.1980) (orig.proceeding) (holding that a trial court could not correct its failure to enter a written judgment at the time the contem-nor was confined by entering a written contempt judgment eighty days later and that after the supreme court granted the writ of habeas corpus the trial court lost jurisdiction over the contemnor). In these cases, the trial court’s rulings worked to the disadvantage of the contemnor. In this case, the nunc pro tunc order benefit-ted Hammond by eliminating the finding of criminal contempt. We find it unnecessary to decide whether a trial court can modify its contempt judgment to benefit the contemnor while a habeas proceeding is pending. Regardless of whether the nunc pro tunc order validly eliminated the finding of criminal contempt, the portions of the earlier orders finding Hammond in criminal contempt are void and ineffective because Hammond’s right to a jury trial was violated.

With the elimination of the criminal contempt finding, only the finding of civil contempt remains at issue. Hammond was not entitled to a jury trial before being found in civil contempt. See Levingston, 996 S.W.2d at 938; Johns, 807 S.W.2d at 772. Hammond’s first issue is overruled.

Inability to Pay

In her second issue, Hammond asserts that she is unable to pay the child support. A person cannot be incarcerated indefinitely for civil contempt if she does not have the ability to perform the condition required for release. Ex parte Rojo, 925 S.W.2d 654, 655-56 (Tex.1996). Consequently, a person cannot be held in contempt for failing to pay child support if she establishes that she: (1) lacked the ability to provide support in the amount ordered; (2) lacked property that could be sold, mortgaged, or otherwise pledged to raise the needed funds; (3) attempted unsuccessfully to borrow the needed funds; and (4) knew of no source from which the money could have been borrowed or legally obtained. Tex. Fam.Code Ann. § 157.008(c) (Vernon 2002). A contemnor is not entitled to habeas relief based on this statute unless she conclusively established all four elements in the trial court. See Rojo, 925 S.W.2d at 656; Hightower, 877 S.W.2d at 20.

The record reveals that when the parties agreed to the June 2001 order, Hammond was earning $2,500 a month as a teacher. In September 2002, Hammond began working as an attorney for $3,206 a month. She still had this position at the time of the August 14-15 hearing. Hammond testified, however, that she was working under a provisional license in New Mexico and that her current position was going to end in October 2003 because she had not taken the New Mexico bar examination. She claimed that she did not have the money to take the examination. She had applied for about fifteen legal jobs. She still had a Texas law license. At the August 28 hearing, Hammond informed the trial court that she had lost her job because of the contempt finding.

In June 2001, Hammond had housing expenses because she was estranged from her current husband, Charles, and they were not living together. But she and Charles reconciled in the summer of 2002. Since that time, Hammond has lived in a ranch house that is apparently owned by a corporation in which Charles and two of his family members are the only shareholders. The Hammonds do not pay rent or make mortgage payments on the ranch house.

From August 2002 through July 2003, the Hammonds received between $17,000 and $20,000 of oil and gas income. The Hammonds also benefit from a net operating loss that relieves them of paying federal income tax for several years into the future. Jeanette Hammond owns a one-third undivided interest in at least 640 acres of land that would be valued at more than $100 an acre. She tried to borrow money using that land as collateral, but was unsuccessful. She also tried to sell it to her sister and mother, the owners of the remaining interests in the land, but they refused to purchase it.

Hammond testified that she did not have any property that she could sell or mortgage or any other source of money or property from which she could obtain funds and that she was not able to borrow the money necessary to pay the child support arrearage. She claimed that she has already sold all of her jewelry and furniture, some items she inherited from her grandmother, and some art. When asked by her attorney why she was unable to pay child support during the period in which the arrearages accrued, she testified, “My expenses had increased. My income had gone down pretty substantially.” She stated that her husband had health expenses associated with diabetes. Hammond also testified that when she agreed to the June 2001 order, she hoped that her income would go up to $58,000.

From this review of the record, we cannot say that Hammond conclusively established the four elements of section 157.008(c). Nor can we say that the trial court’s finding that Hammond has the ability to pay is so completely without eviden-tiary support that it amounts to a denial of due process. There was evidence from which the trial court could infer that Hammond’s financial situation has actually improved since June 2001. The trial court could have also questioned the Hammonds’ credibility. For example, Hammond testified that she did not remember having a $16,000 ring that she had admitted having in 1999. She later testified that she sold a ring for $16,000 in 1999. Additionally, the testimony of Hammond and her husband regarding the ownership of the ranch was confusing. Hammond claimed that she did not know whether Charles had any ownership interest in the ranch. We must defer to the trial court on matters of credibility. Hammond’s second issue is overruled.

OPPORTUNITY TO PRESENT EVIDENCE

In her fourth issue, Hammond argues that she was denied the opportunity to present evidence regarding a change in her financial circumstances and her inability to pay the child support. She does not specify how she was denied this opportunity or what evidence was erroneously excluded. We have reviewed the record and have found no support for Hammond’s assertion. At the August 14-15 hearing, Hammond was represented by counsel, who called her husband, Charles, to testify on her behalf. We do note that the trial court excluded the only exhibit that Hammond’s counsel sought to admit. This exhibit showed the child support payments that Hammond had made from July 2001 to June 2002 and the percentage of her net income that the payments represented. This exhibit would have done nothing to establish that Hammond was unable to pay the child support at the time of the hearing or during the period in which the arrearages occurred. Hammond had a different job at the time of the hearing than she had during the period covered by the exhibit. Moreover, with the exception of a few payments totaling less than $500, the finding of contempt was based on Hammond’s failure to pay child support and tuition between June 2002 and August 2003.

At the August 28 hearing, Hammond, representing herself, requested to put some documents on the record “for appellate purposes.” The trial court denied this request. There is nothing in the record to show that these documents related to any change of circumstances that had occurred since August 15. Furthermore, because Hammond expressly offered the documents only “for appellate purposes,” it is not even clear that she intended the documents to be considered by the trial court.

In short, we conclude that the record does not support Hammond’s claim that she was denied the opportunity to present evidence of a change in her financial circumstances or of her inability to pay. Hammond’s fourth issue is overruled.

Hammond’s Remaining Arguments

In a supplemental brief, Hammond argues that the trial court failed to make a ruling on the record that Hammond had the ability to pay the child support and the attorneys’ fees assessed against her. This argument is without merit. Hammond does not cite any authority that the trial court has to make an express finding of the contemnor’s ability to pay. See Tex. Fam.Code Ann. § 157.166 (Vernon 2002) (setting out the required contents of an enforcement order). In any event, the trial court did make such a finding. At the conclusion of the hearing on August 15, the trial court implicitly found that Hammond had the ability to pay when it stated, “I just didn’t see anything that amounted to — that came up to a level of one of the defenses that you might have.” The August 28 and November 8 orders both recite that Hammond has the ability to pay the child support. Attorneys’ fees incurred in enforcing a child support order are part of the child support obligation and may be enforced by contempt. See id. § 157.167(c); Ex parte Helms, 152 Tex. 480, 486, 259 S.W.2d 184, 188 (1953); In the Interest of Gonzalez, 993 S.W.2d 147, 158 (Tex.App.-San Antonio 1999, no pet.). We overrule this issue.

We also overrule Hammond’s third issue, which asserts that her confinement is illegal, unconstitutional, excessive, cruel and unusual, and an abuse of discretion. Hammond has not established any of these assertions.

Conclusion

For the reasons stated herein, we remand Hammond to the custody of the El Paso County Sheriff to be held until: (1) she purges herself by paying the amounts set forth in the order signed on August 28, 2003 by the 171st Judicial District Court in cause number 89-6831, under the heading “Civil Contempt,” or (2) until further order of the 383rd Judicial District Court in cause number 89-6831.

      . In any event, the turne pro tunc order was signed within the usual period of plenary power. Hammond filed a timely motion for new trial on September 15, 2003, which, as far as our records reflect, was not overruled by a written order. See TexR. Civ. P. 329b(a). When a motion for new trial is not overruled by a written order, it is deemed overruled by operation of law seventy-five days after the judgment was signed, and the trial court has plenary power to alter the judgment for thirty days after the deemed overruling. Tex.R. Civ. P. 329b(c), (e). A trial court is not limited to correcting clerical errors when it alters a judgment during the period of its plenary power. See Tex.R. Civ. P. 329b(e), (f).

      . Hammond argues in a supplemental brief that she was also entitled to a jury trial because James filed a jury request and paid the fee. She relies on Rule 220 of the Texas Rules of Civil Procedure, which provides, "When any party has paid the fee for a jury trial, he shall not be permitted to withdraw the cause from the jury docket over the objection of the parties adversely interested.” By its terms, this rule requires a party relying on another party's jury request to object to the removal of the case from the jury docket. Here, Hammond appeared in person and through counsel and proceeded to try the issues with no objection to the absence of a jury. Therefore, she waived her right under Rule 220. See In the Interest of A.M., 936 S.W.2d 59, 61 (Tex.App.-San Antonio 1996, no writ); Lambert v. Coachmen Indus, of Tex., Inc., 761 S.W.2d 82, 85 (Tex.App.-Houston [14th Dist.] 1988, writ denied).

      . Although Hammond stated at the August 28 hearing that she had lost her job because of the contempt finding, the trial court could have reasonably concluded that this change in circumstances was not material, as Hammond's job was already set to terminate in October 2003.