author: JAN P. PATTERSON, Justice.

text:
    Gene ENNIS, Appellant, v. Robert LOISEAU, Special Deputy Receiver of American Benefit Plans, et. al., Appellee.
    No. 03-04-00748-CV.
    Court of Appeals of Texas, Austin.
    May 5, 2005.

      Toni Hunter, Douglas M. Becker, Gray & Becker, PC, Austin, TX, for appellant.
    Jane M.N. Webre, Cynthia S. Connolly, S. Abraham Kuczaj, Scott, Douglass & McConnieo, LLP, Austin, TX, for appellee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

JAN P. PATTERSON, Justice.

After being appointed by the Texas Insurance Commissioner to serve as a Special Deputy Receiver for a conglomerate of entities accused of participating in a mul-ti-state scheme of insurance fraud, appel-lee Robert Loiseau brought suit, as the assignee of the victims’ claims, to liquidate and collect the entities’ assets on behalf of the victims. Among the 140 defendants sued in the receivership action, Gene En-nis was named in his individual capacity as a “general agent,” and two companies for which Ennis is president, Fidelity Benefit Administrators and NetPay USA, were named as corporate defendants. Ennis filed a special appearance, which was denied. He appeals, claiming in four issues that the trial court erred by denying his special appearance, admitting certain affidavits and exhibits offered by Loiseau, sustaining objections to Ennis’s affidavit, and failing to enter findings of fact and conclusions of law. Because the evidence in the record is legally and factually sufficient to support the trial court’s denial of Ennis’s special appearance and no reversible error was committed, we affirm the trial court’s order.

BACKGROUND

In 2002, the State of Texas began the process of shutting down a multi-state network of fraudulent insurers based in Fort Worth and primarily operated by Fort Worth resident Robert David Neal and his companies, American Benefit Plans (ABP), United Employers Voluntary Employees Beneficiary Association (UEVEBA), and National Association of Working Americans (NAWA). In May 2002, a final judgment and a permanent injunction were entered against many of the fraudulent insurers and Loiseau was appointed as the Special Deputy Receiver. The receiver took over and ceased all operations at Neal’s Fort Worth offices. Thereafter, hundreds of victims of the scheme assigned their claims to Loiseau, and he filed the underlying receivership action to liquidate and collect the assets on their behalf.

Gene Ennis, Fidelity Benefit Administrators, and NetPay USA were three of the defendants sued in the receivership action. Ennis is a Florida resident and is president of Fidelity and NetPay, both of which are incorporated in Florida. Loi-seau’s petition named Ennis as a “General Agent who engages in business in the State of Texas” and claimed that, despite the duties of care owed to “the employers, employee groups, enrollees, and insureds that purchased health insurance plans marketed by ABP, et al,” many general agents operated without a license and all “negligently failed to use due diligence to determine whether the ABP programs were properly authorized and licensed,” including the “fail[ure] to discover, through readily available open records, that ABP/NAWA was not licensed, that Robert David Neal was subject to numerous complaints,” and “the true nature of any alleged reinsurance or other financial backing for the programs.” Loiseau further alleged that each of the defendants “committed torts in the State of Texas and entered into contracts with one or more of the Receivership Defendants in the State of Texas” and profited from its involvement in the insurance scheme to the detriment of Texas and its residents. Finally, Loiseau asserted that there were “numerous communications between the Defendants in this case and the ABP/ NAWA headquarters in Texas by way of telephone, fax, United States Postal Service, internet, and overnight courier services.” Based on these allegations, Loi-seau asserted that the defendants were subject to personal jurisdiction in Texas and were liable for negligence, gross negligence, negligent misrepresentation, conspiracy, violation of Texas Insurance Code section 101.201, and breach of fiduciary duty. Loiseau also sought disgorgement and exemplary damages, asserting that “the defendants had and/or should have had actual, subjective awareness of the risk involved, but proceeded with conscious indifference to the rights, safety, or welfare of others.”

In response, Ennis and NetPay specially appeared. Fidelity did not challenge the court’s jurisdiction. Ennis invoked the fiduciary, shield doctrine by challenging that Texas lacked personal jurisdiction over him as an individual because all of his contacts with the state were performed in his corporate, capacity as the president of Fidelity and NetPay. Ennis asserted that the jurisdictional pleadings were insufficient because they only named Ennis as an individual, while all of the receiver’s evidence pertained to Ennis’s corporate capacity, and because the pleadings did not establish alter ego or allege a cause of action for which Ennis could be held personally liable. However, Ennis acknowledged that he was the “man in charge” of both Fidelity and NetPay; he did not dispute the substantial connections between Fidelity and Texas-based Neal, ABP, UEVEBA, and NAWA; and he agreed that NetPay contracted with NAWA, collected funds from Texas employers to support a carrier that insured Texas employees, and sold insurance documents to Texas employers via its website. Loiseau contended that the evidence established “abundant” contacts made by Ennis as the agent of Fidelity and NetPay and argued that Ennis was not shielded from personal jurisdiction simply by wearing his “president of Fidelity hat” while committing torts and engaging in a conspiracy to defraud Texas consumers.

The trial court denied the special appearances. Ennis requested that the trial court issue findings of fact and conclusions of law, but the court declined to do so, stating that “[bjased on this short eviden-tiary hearing, the Court finds that Findings of Fact would be unnecessary in this case.” NetPay did not challenge the denial of its special appearance. Ennis filed this interlocutory appeal, claiming that it is not appropriate to exercise jurisdiction over him as an individual because he is protected by the fiduciary shield doctrine, and that the trial court also committed reversible error by admitting evidence that was untimely offered by Loiseau, by sustaining Loiseau’s objections to Ennis’s affidavit, and by not issuing findings of fact and conclusions of law.

ANALYSIS

Evidentiary Challenges

As an initial matter, we address Ennis’s second and third issues, in which he asserts two evidentiary errors pursuant to Rule 120a: He claims that the trial court erred in admitting affidavits and exhibits that were untimely filed by Loiseau and in sustaining Loiseau’s objections to portions of Ennis’s affidavits. See Tex.R. Civ. P. 120a(3). We address these claims initially because Ennis’s primary issue on appeal, whether he is subject to personal jurisdiction in Texas, relies in part on the contested evidence.

In support of his challenge to En-nis’s special appearance, Loiseau offered seventy affidavits at the special appearance hearing; each affidavit was attested to by Loiseau, as the Special Deputy Receiver on behalf of Texas Insurance Commissioner Jose Montemayor, and each certified that the attached records were held by Loiseau “in the course of delinquency proceedings against American Benefit Plans, et. al.” Ennis asserts that, because Loiseau did not provide copies to him until the day before the hearing, they were untimely filed and the trial court should have excluded them based on the requirement that, in a special appearance, “affidavits, if any, shall be served at least seven days before the hearing.” Id.

At the hearing, Ennis objected by saying, “Your Honor, I’d like to address for a few minutes the response that [Loiseau] made to — in opposition to Gene Ennis’s special appearance, and I’d like to object because it’s not very — it’s not timely, just last evening at 4:30 or so. But speaking to its content....” Ennis then continued with a lengthy challenge to the substance of the evidence; he never returned to the timeliness issue and never obtained a ruling, express or implied, on that objection. In order to preserve error for appeal, a party must make a timely objection “with sufficient specificity to make the trial court aware of the complaint” and obtain a ruling on the record. Tex.R.App. P. 33.1. Because Ennis failed to preserve error on whether Loiseau’s exhibits were timely filed under Rule 120a(3), the seventy exhibits offered by Loiseau may be properly relied on as support for subjecting Ennis to personal jurisdiction. Ennis’s second issue is overruled.

Ennis also claims that the trial court erred by sustaining Loiseau’s objections that portions of Ennis’s affidavit and supplemental affidavit were conclusory. The trial court sustained objections to the following statements, thereby excluding them as evidence to be considered in determining the special appearance:

• As an individual, I do not have any substantial connection with Texas arising from any of my actions or conduct purposefully directed toward Texas.
• The Plaintiffs’ claims do not arise from and are not related to any activity conducted by me as an individual in Texas.
• As an individual, I do not have any continuing or systematic contacts with Texas.
• As an individual ... [I have not] committed any tort, in whole or in part, within the state.

Rule 120a(3) states that affidavits offered in a special appearance “shall be made on personal knowledge [and] shall set forth specific facts as would be admissible in evidence.” Tex.R. Civ. P. 120a(3). Further, special appearance affidavits must be “direct, unmistakable, and unequivocal as to the facts sworn to.” Wright v. Sage Eng’g, Inc., 137 S.W.3d 238, 250 n. 8 (Tex. App.-Houston [1st Dist.] 2004, pet. denied) (nonresident’s statement that he had committed no torts in Texas was properly excluded as conclusory).

Here, the trial court overruled objections to portions of Ennis’s affidavits that contained factual information and only sustained objections to the above statements, which were legal conclusions and did not set forth specific facts. In his brief, Ennis agrees that these statements were conclu-sory, but claims they “had to be conclusory to some extent in the absence of allegations of specific facts by the plaintiff.” Because Loiseau satisfied his pleading burden, this claim does not justify the conclu-sory nature of Ennis’s affidavits. Thus, the trial court did not err in excluding the eonclusory portions of Ennis’s affidavits, and we do not consider those statements in weighing the sufficiency of the evidence. In any event, even if we were to consider the contested portions of Ennis’s affidavit, it would not alter our conclusion. Ennis’s third issue is overruled.

Personal Jurisdiction

In his first issue, Ennis challenges the court’s exercise of jurisdiction over him, asserting that the receiver failed to plead sufficient jurisdictional facts, that he satisfied his burden of negating the bases of jurisdiction pled, and that the evidence does not show that he, as an individual, purposefully established minimum contacts with Texas. Loiseau counters that, by not filing a motion to quash, Ennis failed to preserve error on the sufficiency of Loi-seau’s pleadings. Loiseau further asserts that the record evidence supports subjecting Ennis, individually as an agent of Fidelity and NetPay, to specific jurisdiction in Texas; Loiseau does not contend that Ennis should be subjected to general jurisdiction.

Motion to Quash

In attempting to subject a nonresident defendant to jurisdiction in Texas, the plaintiff bears the initial burden of pleading sufficient allegations to satisfy the Texas long-arm statute. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.2001); see Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (West 1997) (jurisdiction proper upon showing that defendant is “doing business” in Texas, which includes entering contract with Texas resident and committing tort within Texas). The burden then shifts to the defendant to affirmatively negate all bases of jurisdiction asserted by the plaintiff. Tex.R. Civ. P. 120a; BMC Software, 83 S.W.3d at 793. Loiseau asserts that, because Ennis did not file a motion to quash, Ennis waived his complaint that the “[p]laintiff failed to allege the necessary minimum contacts ... to bring [Ennis] under the jurisdiction of a Texas court.” Loiseau bases this claim on language in Kawasaki Steel Corp. v. Middleton stating that “defective jurisdictional allegations in the petition ... must be challenged by a motion to quash, not a special appearance.” 699 S.W.2d 199, 203 (Tex.1985).

However, reading Kawasaki as a whole, it is clear that the supreme court required a motion to quash only for the purpose of challenging curable, procedural defects with the service of process. Id. at 202 (motion to quash required to challenge such things as failure to serve defendant or defect in citation). The Court explained that the “jurisdictional facts” to be challenged with a motion to quash are those allegations “required for service under the long-arm statute” concerning why the secretary of state is an appropriate substituted agent for serving process on a nonresident defendant. Id. at 202; see also Tex. Civ. Prac. & Rem.Code Ann. § 17.044 (West 1997) (cited in Kawasaki as “article 2031(b), R.C.S.”).

Facts regarding the service of process, which are properly challenged with a motion to quash, are distinguishable from jurisdictional allegations establishing that the nonresident is amenable to personal jurisdiction based on his minimum contacts with this state. If a defendant wishes to challenge jurisdictional pleadings “on the ground that such party or property is not amenable to process issued by the courts of this State,” then his proper tool is a special appearance. Compare Tex.R. Civ. P. 122 (motion to quash), with id. 120a (special appearance). The Kawasaki court recognized this distinction: “A curable defect in service of process does not affect a nonresident defendant’s amenability to service of process.” 699 S.W.2d at 202. The distinction is based on the cures available from each motion. Id.; Wright, 137 S.W.3d at 245-46. Because a citation error is procedural and curable, the remedy provided by a motion to quash is additional time for the defendant to answer. Kawasaki Steel Corp., 699 S.W.2d at 202. However, a substantive defect in the pleading is not curable and, thus, the remedy for a defendant’s special appearance is dismissal from suit. Id.

Accordingly, nonresidents routinely file special appearances to challenge jurisdiction; it follows that a special appearance is the proper method for a nonresident defendant to assert that, based on the capacity in which he was sued, the plaintiff failed to allege sufficient minimum contacts between the defendant and Texas to establish his amenability of process in this state. See Morris v. Powell, 150 S.W.3d 212, 221 (Tex.App.-San Antonio 2004, no pet.) (nonresidents filed special appearance to assert that plaintiffs allegations were insufficient to establish jurisdiction over them individually because all contacts were made in corporate capacity); Brown v. General Brick Sales Co., Inc., 39 S.W.3d 291, 293 (Tex.App.-Fort Worth 2001, no pet.) (same). Ennis does not complain of any error regarding the service of process. Rather, he raises a standard special appearance challenge, asserting that the plaintiff failed to establish proof of minimum contacts between himself, in his individual capacity, and the forum. Ennis, therefore, did not waive his first issue by raising it in a special appearance rather than a motion to quash.

Although Ennis preserved his challenge that Loiseau failed to plead a sufficient basis for subjecting him to personal jurisdiction, this does not provide grounds for reversal because Loiseau satisfied his burden. The plaintiffs original pleadings as well as its response to the defendant’s special appearance can be considered in determining whether the plaintiff satisfied its burden. Wright, 137 S.W.3d at 249 n. 7. Rule 120a also states that, in determining whether the special appearance should be granted or denied, courts may consider evidence from “the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony.” Tex.R. Civ. P. 120a(3); see also Gutierrez v. Deloitte & Touche, 100 S.W.3d 261, 273 (Tex. App.-San Antonio 2002, pet. dism’d).

Loiseau’s pleadings alleged that, as a general agent, Ennis engaged in business and committed torts in the State of Texas; entered into contracts with Texas entities; communicated via facsimile, telephone, and e-mail with Texas entities; and profited from his involvement with these entities, to the detriment of Texas residents. The pleadings also set forth specific allegations concerning how Ennis, as a general agent, had been negligent and breached his fiduciary duty. Loiseau also filed a response to Ennis’s special appearance, further detailing why the court had personal jurisdiction over Ennis as an individual. He alleged that Ennis may be held personally liable for playing a “key role in the creation, marketing, and administration of the bogus health plans,” provided a specific list of activities demonstrating Ennis’s participation in the fraudulent scheme, explained why Ennis’s corporate capacity did not shield him from jurisdiction, and offered proof that Ennis was aware that Fort Worth was the home base of the fraudulent programs. Seventy-six exhibits were admitted in support of Loiseau’s response.

Loiseau, therefore, satisfied his initial burden of pleading a sufficient basis upon which to subject Ennis to personal jurisdiction. To avoid litigating in Texas, it was then Ennis's burden to negate Loi-seau’s pleadings. After the special appearance hearing, the trial court determined that Ennis failed to do so. We now review that determination.

Standard of Review

A trial court’s order granting or denying the special appearance is subject to an interlocutory appeal in which we review de novo the legal question of whether a Texas court can properly exercise personal jurisdiction over the nonresident defendant. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (West Supp. 2004-05); BMC Software, 83 S.W.3d at 794. Questions of fact must frequently be resolved by the trial court before reaching the jurisdictional inquiry. Id. While a special appearance is not the appropriate stage to make a determination on liability, we must consider facts regarding the defendant’s actions that could foreseeably cause harm in Texas in order to determine whether the defendant should have anticipated being haled into a Texas court. Wright, 137 S.W.3d at 251.

If the trial court denied the special appearance without delineating findings of fact and conclusions of law, all facts necessary to support the order are implied in its favor, if they are supported by the record. BMC Software, 83 S.W.3d at 795. When a clerk’s and reporter’s record are included on appeal, as here, these implied findings may be challenged for both legal and factual sufficiency. Id. In determining whether the evidence is sufficient to support a trial court’s factual determinations, we consider the entire record and conduct an ordinary sufficiency review. French v. Glorioso, 94 S.W.3d 739, 744 (Tex.App.San Antonio 2002, no pet.). We will set aside a trial court’s implied finding only if it is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Id. The trial court, as the fact-finder, is the sole arbiter of the witnesses’ credibility and the weight that their testimony should be afforded. Wyatt v. Wyatt, 104 S.W.3d 337, 340 (Tex. App.-Dallas 2003, no pet.). This Court will not disturb a trial court’s resolution of conflicting evidence that turns on the credibility or weight of the evidence. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951).

Minimum Contacts and the Fiduciary Shield Doctrine

A Texas court may exercise personal jurisdiction over a nonresident defendant if it is authorized by the Texas long-arm statute and if it comports with the constitutional guarantees of due process. Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.1990); see Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (West 1997). The broad language of the Texas statute allows it to reach as far as the federal Constitution permits and thus the due process analysis under state law is consistent with the federal test. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991). Accordingly, a three-prong test must be satisfied in order to subject a nonresident defendant to personal jurisdietion in Texas: (i) the defendant must establish minimum contacts by purposefully doing some act or consummating some transaction in the forum state; (ii) the cause of action must arise from or be connected with such act or transaction, as to support specific jurisdiction, or the defendant’s contacts with Texas must be continuing and systematic, as to support general jurisdiction; and (iii) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice. Schlobohm, 784 S.W.2d at 358.

Ennis claims that any contacts he purposefully directed at Texas were performed in his corporate capacity and, thus, pursuant to the fiduciary shield doctrine, it is inappropriate for a Texas court to exercise jurisdiction over him as an individual. We need not determine whether the fiduciary shield doctrine should be adopted in this case, however, because the courts that have adopted it have expressly limited its application to general jurisdiction, and Loi-seau does not assert that Ennis should be subjected to general jurisdiction. See, e.g., Wright, 137 S.W.3d at 250.

Even if the fiduciary shield were adopted by this Court, it would not protect Ennis from the exercise of specific jurisdiction. Courts recognize that a corporate officer is not protected from the exercise of specific jurisdiction, even if all of his contacts were performed in a corporate capacity, if the officer engaged in tortious or fraudulent conduct, directed at the forum state, for which he may be held personally liable. Id.; see SITQ E. U., Inc. v. Reata Rest., Inc., 111 S.W.3d 638, 651 (Tex.App.-Fort Worth 2003, pet. denied); see also Morris v. Kohls-York, No. 03-04-00371-CV, 164 S.W.3d 686, 696, 2005 WL 1034082, at ⅜ 8 (Tex.App.-Austin May 5, 2005, no pet. h.). This rule is not based on an exception to the fiduciary shield doctrine, but rather on the well-established principle that “a corporate officer is primarily liable for his own torts.” Morris, 150 S.W.3d at 219, 221 (specific jurisdiction satisfied based on allegations that officers committed negligence, fraud, and/or negligent misrepresentation in carrying out corporate activities). One’s “status as an employee does not somehow insulate [him] from jurisdiction” and “there is no blanket protection from jurisdiction simply because a defendant’s alleged acts were done in a corporate capacity.” Colder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984); SITQ E.U., Inc., 111 S.W.3d at 651. A corporate officer may not escape liability where he had direct, personal participation in the wrongdoing, as to be the “ ‘guiding spirit’ behind the wrongful conduct” or the “ ‘central figure’ in the challenged corporate activity.” Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 174 (5th Cir.1985) (citations omitted). Hence, “[i]t is the general rule in Texas that corporate agents are individually liable for fraudulent or tortious acts committed while in the service of their corporation.” Shapolsky v. Brewton, 56 S.W.3d 120, 133 (Tex.App.Houston [14th Dist.] 2001, pet. denied).

Citing Wright v. Sage Engineering, Ennis asserts that, in order to exercise specific jurisdiction over a nonresident corporate officer, the plaintiff must produce evidence of an intentional tort or fraud committed by the officer. See 137 S.W.3d at 250 (corporate officer not protected “from specific personal jurisdiction as to intentional torts or fraudulent acts for which he may be held individually liable”). It is true that an officer is not protected from specific jurisdiction if he has committed an intentional tort; yet, Wright does not stand for the proposition that specific jurisdiction can only be exercised over the corporate officer upon proof of an intentional tort. As noted in Wright, the key to subjecting an individual officer to specific jurisdiction is whether he may be held individually liable for those actions constituting minimum contacts with the forum, even if the actions were performed in his corporate capacity. Id. at 250-51 (because corporate officer could be individually liable for misrepresentations made as corporate representative, specific jurisdiction was proper over him in individual capacity). The court in Wright relied on cases that do not require proof of an intentional tort in order to exercise specific jurisdiction over corporate officers. See, e.g., Jackson v. Kincaid, 122 S.W.3d 440, 448 (Tex.App.-Corpus Christi 2003, pet. granted) (holding that is was proper to subject defendant-attorneys to specific jurisdiction based on proof that they had appeared pro hac vice in a Texas court, for which they could be individually liable, without stating that their actions were intentionally tortious or fraudulent); Shapolsky, 56 S.W.3d at 133-34 (specific jurisdiction appropriate over individual officer based on fraudulent misrepresentations made in corporate capacity); General Elec. v. Brown & Ross Int’l Distribs., Inc., 804 S.W.2d 527, 532-33 (Tex.App.-Houston [1st Dist.] 1990, writ denied) (allegations of bribery and conspiracy sufficient evidence of “tortious activity” to support exercise of specific jurisdiction over corporate officer); see also Morris, 150 S.W.3d at 219, 221 (specific jurisdiction can be asserted over individual officer based on “torts for which the employee may be individually liable,” without requiring that the torts be intentionally committed, because “a corporate officer is primarily liable for his own torts”). Moreover, the Fort Worth court has stated that a corporate officer is not protected from specific jurisdiction if the officer performed any action for which he may be individually liable, including unintentional torts. SITQ E.U., Inc., 111 S.W.3d at 651.

We agree with our sister courts that it is not necessary to prove that the corporate officer engaged in intentionally tortious activity to subject him to specific jurisdiction; rather, the plaintiff must establish that the officer committed fraudulent or tortious acts for which he may be held individually liable. In any event, there is sufficient evidence in the record to support the trial court’s implied finding that Ennis engaged in intentionally tor-tious or fraudulent activity for which he may be personally liable.

Because “ultimate liability in tort is not a jurisdictional fact, and the merits of the cause are not at issue,” our jurisdictional inquiry focuses on whether Loiseau sufficiently established facts suggesting that Ennis should have anticipated being haled into a Texas court based on his actions. Wright, 137 S.W.3d at 251; French, 94 S.W.3d at 743-44 (jurisdictional determination only requires sufficient evidence to support implied findings that suggest, but do not ultimately prove, liability). Hence, if the evidence suggests that the nonresident officer participated in tortious or fraudulent activities, which were directed at Texas and for which he may be held personally liable, then there is a sufficient basis to assert specific jurisdiction over him. Wright, 137 S.W.3d at 251.

Ennis agrees that substantial connections exist between his companies — Fidelity and NetPay — and the Texas-based companies run by Neal that comprised the nucleus of the fraudulent insurance scheme — ABP, UEVEBA, and NAWA. Ennis testified that Fidelity hired Neal as a consultant and used his services to develop and sell three “limited benefit plans with a reduced prescription benefit,” and that both Fidelity and NetPay used UEVEBA as a “funding mechanism.” In connection with these arrangements, Ennis signed an “administrative and service agreement” on behalf of Fidelity identifying services Fidelity would provide to UEVEBA in exchange for a fee of 20% of all contributions collected. Ennis also testified about the “bank draft authorization” contract between Fidelity and NAWA: individual employees who were members of NAWA would enroll in the ABP program and provide preauthorized bank drafts so that their monthly contributions could be automatically deducted from their checking accounts. The record contains copies of many of these preauthorized checks, evidencing that several of the participating employees were Texas residents. Fidelity then processed these automated transactions; wired a portion of the money to a bank account that was co-signed by NAWA, Neal, and Fidelity; and kept a percentage of the monthly contribution as its fee. Fidelity sent a letter to all participating employees, including those in Texas, stating that ABP had contracted with Fidelity to handle the automated monthly payments. Ennis testified that he understood Neal was responsible for distributing the wired money to the reinsurance carriers, but that at some point Neal began to fraudulently divert these funds.

Ennis further testified that he was the “man in charge” of Fidelity and NetPay, that he was the “ultimate person in charge of putting together and finalizing the UEVEBA-related programs,” and that, as president, it was his responsibility to be aware of and authorize all activities that his company engaged in with Neal or his entities. As such, Ennis signed several contracts establishing relations between his and Neal’s companies and frequently communicated with Neal. Ennis testified about numerous e-mails, facsimiles, and telephone calls that he directed to Neal in Texas. Loiseau testified that this “raft of correspondence” shows Ennis and Neal to “clearly [be] on a first-name basis, writing in a very personal, familiar tone.” Additionally, Ennis testified that he traveled to Texas to meet with Neal about the business deals between their various companies.

Ennis disputes that he knew he was directing his actions toward Texas; he claims that he believed UEVEBA was a California company with a Nevada domicile. Contrary to Ennis’s claim, however, the record establishes his knowledge that he was dealing with a Texas resident and Texas-based companies. Ennis acknowledged that he traveled to Texas to meet with Neal, entered a contract with UEVE-BA listing its address as located in Fort Worth, signed a document stating that all UEVEBA notices from Fidelity should be directed to Neal in Fort Worth, and communicated with Neal and several employees of Neal’s companies in Fort Worth.

Regardless of whether Ennis is ultimately held liable for the actions he performed in connection with Neal, ABP, UEVEBA, and NAWA, the evidence presented in the context of the special appearance — primarily from Ennis’s own testimony — suggests that Ennis participated in a fraudulent scheme, operating out of Texas, for which he may be held personally responsible. Ennis acknowledged that Neal’s actions were fraudulent and testified that, during the time their companies were working together, he was aware that Neal had come under “regulatory scrutiny,” with which he was “not comfortable.” Ennis also testified that he had been the subject of insurance regulators’ investigations based on his interaction with Neal. Ennis testified that, because of this regulatory scrutiny, when he sent Fidelity’s insurance documents to Neal, he attached a note advising Neal to “guard the complete set from our competitors and everyone except those in your inner circle” and to “reformat them to appear different from ours for the regulators.”

This evidence suggests, for purposes of this special appearance, that Ennis took actions — such as entering contracts and engaging in frequent communications with Neal and his entities, and traveling to Texas to facilitate business with Neal — with knowledge that the arrangements between his and Neal’s companies were part of a fraudulent insurance scheme. Ennis acquiesces to these facts, only challenging that they do not establish minimum contacts because he was acting on behalf of his corporations. Even if Ennis performed these actions in a corporate capacity, he can be held personally liable for fraudulent activity and, therefore, should have anticipated being haled into a Texas court to answer for these actions. Ennis’s uncontroverted actions establish minimum contacts between him, as an individual, and the State of Texas.

Specifíc Jurisdiction: Nexus and Due Process Considerations

Having established that Ennis purposefully directed minimum contacts toward Texas, thereby satisfying the first prong of Texas’s three-part jurisdictional inquiry, the determination of whether it is appropriate to subject him to specific jurisdiction depends on (i) whether a nexus exists between those contacts, the forum, and the litigation and (ii) whether the exercise of jurisdiction would comport with due process considerations. See BMC Software, 83 S.W.3d at 795-96.

The insurance activities that occurred between Ennis’s two companies and the Texas-based ABP, UEVEBA, and NAWA, are undisputably connected to the underlying litigation. Loiseau testified, and Ennis conceded, that of the 3,040 proofs of claims filed against Ennis, Fidelity, and NetPay, 409 of them were filed by Texas residents. Based on this, a nexus is present between Ennis’s contacts, the forum, and the litigation.

Ennis does not assert that it would be burdensome for him to litigate in Texas. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (nonresident defendant has burden to present “compelling case” of why-litigation in forum would be unduly burdensome to avoid jurisdiction). Even if his special appearance were granted, Ennis must be in Texas as a part of this litigation as the president of Fidelity, which did not challenge jurisdiction, and of NetPay, which filed a special appearance but did not challenge its denial. Because Ennis does not contest this issue, and because he does not assert that any greater burden results from appearing individually than already exists from appearing as a corporate representative, we determine that it does not violate the traditional notions of fair play and substantial justice to subject Ennis to personal jurisdiction in Texas.

It is, therefore, appropriate to exercise specific jurisdiction over Ennis, in his individual capacity, based on the evidence suggesting that he participated in a fraudulent scheme for which he may be personally liable. Because these actions established minimum contacts, which were substantially connected to Texas and the underlying litigation, and because it comports with due process considerations for Ennis to litigate in Texas, we affirm the trial court’s order denying his special appearance. En-nis’s first issue is overruled.

Findings of Fact and Conclusions of Law

In his fourth issue, Ennis contends that the trial court erred by not issuing findings of fact and conclusions of law upon his request. Ennis recognizes that Texas Rule of Appellate Procedure 28.1 gives the trial court discretion whether to issue these. See Tex.R.App. P. 28.1 (“The trial court need not, but may — within 30 days after the order is signed — file findings of fact and conclusions of law.”) (emphasis added). Also, Ennis brings this claim only in the alternative, stating that “if this Court is able to determine the jurisdictional issues without the trial court’s findings and conclusions,” then “he does not want the expense of returning to the trial court” to obtain them. Because we are able to determine the jurisdictional issues on the record before us, we hold that the trial court did not abuse its discretion in deciding to not issue findings and conclusions. Ennis’s fourth issue is overruled.

CONCLUSION

Holding that the record contains sufficient evidence to subject Ennis individually to specific personal jurisdiction in Texas and that no reversible error occurred, we overrule Ennis’s issues and affirm the trial court’s order denying his special appearance.

      . Appellee is the Special Deputy Receiver for the following entities: American Benefit Plans; National Association of Working Americans a/k/a National Association for Working Americans; United Employers Voluntary Employees Beneficiary Association; United Employers Voluntary Employees Beneficiary Association I; Electronic Benefits Group, Inc.; Enhanced Health Management, Inc.; Four Comers Company, LLC a/k/a Four Comers Co. LLC, a/k/a Four Comers Corp.; American Association of Agriculture, Forestry and Fishing Workers; American Association of Transportation, Communication, Electrical, Gas and Sanitary Workers; American Association of Wholesale Trade Workers; American Association of Manufacturer Workers; American Association of Service Workers; American Association of Construction Workers; and American Association of Professional Workers.

      . Section. 101.201(a) states that "[a]n insurance contract effective in this state and entered into by an unauthorized insurer is unenforceable by the insurer. A person who in any manner assisted directly or indirectly in the procurement of the contract is liable to the insured for the full amount of a claim or loss under the terms of the contract if the unauthorized insurer fails to pay the claim or loss.” Tex. Ins.Code Ann. § 101.201(a) (West Supp.2004-05).

      . Ennis asserts, without citing any authority, that "no facts should be implied in favor of the trial court’s judgment” when a clerk’s and reporter's record are provided. This is contrary to well-established precedent that such facts should be implied. See, e.g., Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex.2003); Tempest Broad. Corp. v. Imlay, 150 S.W.3d 861, 867-68 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (rejecting defendant’s argument in special appearance case that, because findings were properly requested yet not issued, a less deferential standard of review should be applied to implied findings); Smith v. Lanier, 998 S.W.2d 324, 329-30 (Tex. App.-Austin 1999, pet. denied).

      . See SITQ E.U., Inc. v. Reata Rest., Inc., Ill S.W.3d 638, 651 (Tex.App.-Fort Worth 2003, pet. denied) (fiduciary shield protects corporate officer, individually, from general jurisdiction if all contacts made in corporate capacity, unless alter ego is proven); see also, Morris v. Powell, 150 S.W.3d 212, 221 (Tex. App.-San Antonio 2004, no pet.); Wright v. Sage Eng’g, Inc., 137 S.W.3d 238, 250 & n. 9 (Tex.App.-Houston [1st Dist.] 2004, pet. denied); Jaclcson v. Kincaid, 122 S.W.3d 440, 448 (Tex.App.-Corpus Christi 2003, pet. granted); D.H. Blair Inv. Banking Corp. v. Reardon, 97 S.W.3d 269, 277 (Tex.App.-Houston [14th Dist.] 2002, pet. dism'd w.o.j.); Tuscano v. Osterberg, 82 S.W.3d 457, 467 (Tex.App.-El Paso 2002, no pet.). Although not formally adopted by the supreme court, the doctrine is consistent with the court’s language in Sis-kind v. Villa Found, for Educ., Inc., 642 S.W.2d 434, 437-38 (Tex.1982) (can impute individual liability to corporate officers upon proof of alter ego), and with the Supreme Court's holding in Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (jurisdiction proper over corporate officers, individually, because they were "primary participators in an alleged wrongdoing intentionally directed at” forum state).

      . Ennis claims that he stopped wiring money to the NAWA account as soon as he discovered this fraudulent activity, which he states did not happen until February 25, 2002. However, Ennis acknowledged in his deposition that, prior to that date, he was aware that both he and Neal were under investigation by insurance regulators. Even with this knowledge, Ennis continued to wire money to the NAWA account and otherwise transact business with Neal.

      . The Florida Department of Insurance informed Ennis in 2001 that their investigation determined Fidelity had engaged in unauthorized insurance practices.


source: Caselaw Access Project

author: BEA ANN SMITH, Justice.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Brenda HUDDLESTON, Appellee.
    No. 03-03-00522-CR.
    Court of Appeals of Texas, Austin.
    May 5, 2005.

      Clyde W. Chandler, Cameron, for appel-lee.
    Dan Cervanka, Assistant County & District Attorney, Cameron, for appellant.
    Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

Our previous opinion and judgment issued on October 28, 2004 in this cause are withdrawn.

Following her arrest for driving while intoxicated, appellee Brenda Huddleston filed a motion to suppress evidence. The trial court granted Huddleston’s motion and attached a finding of “not guilty” to its written order. The State appeals this order. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp.2004). We will modify the trial court’s order to delete the not guilty finding and affirm it as modified.

Background

The only witness at the suppression hearing was Milam County Sheriffs Department Officer John Donahoo. In addition to Donahoo’s testimony, the State also offered in evidence a videotape of the incident made by the officer’s in-car video camera.

At approximately 10:30 p.m. on March 21, 2003, Officer Donahoo was patrolling U.S. Highway 79 near Milano in Milam County. As the officer was traveling westbound towards Nat’s Bar, a car pulled out from the bar’s parking lot and also proceeded westbound. The officer testified that he quickly caught up with the vehicle and within one-and-a-half miles of the bar observed it drift twice to the right side of the roadway and cross over the white shoulder stripe, or fog line. After these two movements across the fog line, Dona-hoo activated the video camera in his patrol car. The video shows that the right wheels of the car crossed the fog line three more times diming the next three minutes. Donahoo testified that, in total, the vehicle crossed the fog line five times over a five-to-six mile distance. He never saw the vehicle cross the yellow line separating the two lanes of traffic. To the contrary, the video shows that the vehicle consistently stayed to the right in its lane of traffic.

Donahoo testified that the vehicle’s speed fluctuated between 58-64 mph; the posted limit was 65 mph. The officer testified that neither the individual movements across the fog line nor the fluctuating speed of the vehicle was unlawful or unsafe. Donahoo said that the vehicle neither swerved nor veered, but instead moved to the right in a slow, gradual manner before moving in a similar manner back to the left. Only the vehicle’s right tires crossed the stripe. On only one occasion shown on the videotape did the vehicle cross the fog line by more than a few feet: while it was negotiating a curve to the right, about half of the car crossed over the fog line onto the improved shoulder. The officer testified that while none of these movements, individually, was unsafe, he believed that the number of crossings made the vehicle’s movements unsafe.

Officer Donahoo testified that he stopped the vehicle for failing to stay within a single marked lane. See Tex. Transp. Code Ann. § 545.060 (West 2004). He identified Huddleston as the driver of the vehicle. After seeing an open bottle of beer in Huddleston’s lap and conducting field sobriety tests, Donahoo arrested Huddleston for driving while intoxicated.

The sole issue at the hearing was whether Donahoo’s initial stop of Huddleston’s vehicle was valid. The trial court found that the officer did not have reasonable suspicion to stop Huddleston and concluded that the stop was unlawful. Consequently, the trial court orally granted the motion to suppress. The State filed a motion for rehearing, but no hearing on the motion was held. The court later filed written findings of fact and conclusions of law, together with a written order granting the motion to suppress and finding Hud-dleston “not guilty.” The State appealed.

Standard of review

A bifurcated standard is used to review an order granting or denying a motion to suppress. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). An appellate court must give “almost total deference to a trial court’s determination of the historical facts that the record supports,” especially when those fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The same level of deference should also be accorded a trial court’s rulings on mixed questions of law and fact if those decisions turn upon the credibility and demeanor of the witnesses. Id.; Hayes v. State, 132 S.W.3d 147, 151 (Tex.App.-Austin 2004, no pet.). Appellate courts review de novo, however, mixed questions of law and fact that do not turn on the credibility and demeanor of the witnesses. Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89; Hayes, 132 S.W.3d at 151.

Discussion

The State complains that: (1) some of the trial court’s findings of fact are not supported by the record; (2) the court’s conclusion that the officer did not have a reasonable basis for stopping Huddleston’s car is contrary to the facts and the law; and (3) the court exceeded its authority when it added a finding of “not guilty” to its order granting the motion to suppress. Findings

The trial court made the following findings:

A. The Court finds that defendant was driving her vehicle towards Rock-dale around 10:40 P.M. when her right side tires crossed over the white fog line on Highway 79. The Officer testified that only her right side tires moved over the line on five occasions within a 5-6 mile distance. The officer testified that the defendant did not swerve or veer over the line but gradually moved to the right as oncoming traffic was approaching.
B. The officer said that the defendant’s actions were not unsafe or dangerous, and that it was not against the law to drive on the shoulder of the highway.

The State urges that there are two errors in the court’s findings shown by the record. First, the State complains that the court erred in stating that Donahoo testified that Huddleston “did not swerve or veer over the line but gradually moved to the right as oncoming traffic was approaching.” (Emphasis added.) The State does not deny that the officer repeatedly testified that Huddleston did not swerve or veer over the fog line. The State points out, however, that the officer testified that the first two times Huddle-ston moved over the line — the two times not shown on the videotape — there was no oncoming traffic. Moreover, of the three crossings of the fog line shown on the videotape, two were made in the face of oncoming traffic but the third was not.

The other factual error asserted by the State is in the court’s finding that “[t]he officer said that the defendant’s actions were not unsafe or dangerous.” The State concedes that the officer did testify that considering each act individually, Huddle-ston never crossed the fog fine in an unsafe manner. The State draws attention, however, to the officer’s testimony that he believed that “the number of times that she crossed the fine was unsafe.” According to the officer, it was this “pattern” that led him to conclude that a traffic offense had been committed.

Having reviewed Donahoo’s testimony and reviewed the videotape, we believe that it is more accurate to characterize the challenged findings as incomplete rather than erroneous. For the purposes of this appeal, we will take into consideration the additional testimony cited by the State.

Reasonable suspicion

A warrantless automobile stop is a Fourth Amendment seizure analogous to a temporary detention, and it must be justified by reasonable suspicion. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.-Austin 1998, pet. ref'd). A detaining officer must have specific articulable facts which, taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App.1997); Hernandez, 983 S.W.2d at 869.

At the suppression hearing, the only justification offered for stopping Hud-dleston was Officer Donahoo’s belief that she had violated section 545.060 by failing to remain within a single lane. Under this statute, a violation occurs only when a vehicle fails to stay within its lane and such movement is not safe or is not made safely. Hernandez, 983 S.W.2d at 871. Donahoo testified that Huddleston never crossed the fog line in an unsafe manner. Instead, he said that Huddleston’s repeated crossings of the line established a “pattern” in violation of the statute. Section 545.060 requires drivers to remain in a single lane “as nearly as practical,” but allows lane changes if “that movement can be made safely.” Witnessing Huddleston safely cross the fog line five times over a stretch of six miles did not give Donahoo a reason to suspect that she was unsafely failing to remain in a single lane in violation of section 545.060. The trial court did not err in concluding that the officer did not have a reasonable suspicion that section 545.060 was being violated.

A week after the hearing and the court’s oral ruling granting the motion to suppress, the State filed a motion for rehearing urging two justifications for Hud-dleston’s detention that it had not presented at the hearing: (1) Officer Donahoo had a reasonable suspicion that Huddleston was driving while intoxicated, and (2) the officer had properly exercised his community caretaking function. The court’s docket sheet reflects that the motion was “granted,” but from statements made in the State’s brief we understand this to mean only that the court agreed to set the motion for a hearing. We are also advised by the State that the hearing was never held. The court later made an additional docket entry stating that its previous ruling granting the motion to suppress “stands.” The State now urges this Court to reverse the trial court’s order granting Huddleston’s motion to suppress for either or both of the reasons asserted in its motion for rehearing.

An appellate court may affirm a trial court’s decision on a legal theory not presented to the trial court because the ordinary notions of procedural default do not require a prevailing party to list or verbalize in the trial court every possible basis for upholding its decision. Hailey v. State, 87 S.W.3d 118, 121-22 (Tex.Crim.App.2002) (citing State v. Mercado, 972 S.W.2d 75, 77-78 (Tex.Crim.App.1998)). But an appellate court may not reverse a trial court’s decision on a legal theory not presented to the trial court by the complaining party because the ordinary notions of procedural default do not permit a trial court’s decision to be reversed on a theory the trial court did not have an opportunity to rule upon and upon which the non-appealing party did not have an opportunity to develop a complete factual record. Id. at 122. The ordinary notions of procedural default apply equally to the defendant and the State. Mercado, 972 S.W.2d at 78. The basic appellate principle that points not argued at trial are deemed waived applies to the State when it is the appellant. Id.

It was the State’s burden to prove that Huddleston’s warrantless detention was lawful. See Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991). At the hearing held for that purpose, the State sought to justify the stop solely on the basis of the alleged traffic offense. Only after the hearing was over and the trial court had ruled against it did the State attempt to bring alternative theories to the trial court’s attention in its motion for rehearing. While the court agreed to schedule a hearing on the motion, the hearing was not held. Neither the docket notation that the original ruling “stands” nor the later signing of the written order granting the motion to suppress necessarily means that the trial court considered and rejected the arguments made in the State’s motion. On this record, the State is procedurally defaulted from asserting that the trial court’s ruling should be reversed on these additional grounds.

Not guilty finding

In its last point of error, the State complains that the trial court’s insertion of a “not guilty” finding within the order granting Huddleston’s motion to suppress exceeded the court’s authority. We agree, and we will strike the finding from the suppression order.

The trial court lacked the authority to make fact-findings to determine the guilt of the defendant based only on the granting of a motion to suppress. See State ex rel. Curry v. Carr, 847 S.W.2d 561, 562 (Tex.Crim.App.1992); see also State v. Nolan, 808 S.W.2d 556, 560 (Tex. App.-Austin 1991, no pet.); State v. Lewallen, 927 S.W.2d 737, 739 (Tex.App.-Fort Worth 1996, no pet.). ‘While the county court’s orders suppressing evidence may have the practical effect of making convictions in these causes impossible, it is for the prosecutor, as the officer charged with the responsibility for preparing and prosecuting criminal suits, to decide whether a prosecution is sustainable.” Nolan, 808 S.W.2d at 560. Furthermore, the trial court’s finding of not guilty was not made during an adversary proceeding, and thus none of the events that occurred on the day the trial court attached such a finding to the suppression order constitutes an “acquittal” in compliance with Texas law. Lewallen, 927 S.W.2d at 739.

Conclusion

We overrule the State’s arguments that the trial court erred in granting Huddle-ston’s motion to suppress. We agree, however, that the trial court had no authority to enter a finding of “not guilty” in the suppression order. Accordingly, we modify the suppression order and strike the finding of “not guilty.” We affirm the trial court’s order as modified.

      . The videotape shows that Highway 79 is divided into two lanes, one eastbound and one westbound. On the outside of each lane is a solid white stripe, referred to in the record as the fog line, separating the lane from the paved shoulder of the road. Dona-hoo testified that this improved shoulder was about six feet wide.

      . This statute provides, in relevant part:
      An operator on a roadway divided into two or more clearly marked lanes for traffic:
      (1) shall drive as nearly as practical entirely within a single lane; and
      (2) may not move from the lane unless that movement can be made safely.
      Tex. Transp. Code Ann. § 545.060(a) (West 2004).

      . The written order does not refer to the State’s motion for rehearing or to the arguments made in the motion.


text:
    Joshua Glenn ALLMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 03-04-00402-CR.
    Court of Appeals of Texas, Austin.
    May 5, 2005.

      Bob D. Odom, Odom & Hurley, Belton, for Appellant.
    C. Stephen Hughes, Administrative Asst. D.A., Belton, for State.
    Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.
   OPINION

BEA ANN SMITH, Justice.

Appellant Joshua Glenn Allman pleaded guilty to manufacturing more than 400 grams of methamphetamine. See Tex. Health & Safety Code Ann. § 481.112(a), (f) (West 2003). The court adjudged him guilty and imposed a sentence of twenty-five years’ imprisonment and a $5000 fine. Allman’s sole point of error is that the court erroneously permitted the State to introduce additional evidence after argument was concluded. We will sustain this contention and reverse the judgment of conviction.

A trial court “shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.” Tex.Code Crim. Proc. Ann. art. 36.02 (West 1981). In 1895, construing the virtually identical statutory predecessor to article 36.02, the court of criminal appeals wrote that the statute “conveys the idea that evidence should not be introduced after the close of the argument, in as strong terms as if the legislature had said so in direct language.” Williams v. State, 35 Tex.Crim. 183, 32 S.W. 893, 894 (1895). The prohibition on evidence following argument is mandatory, and it applies whether the argument is made to a jury or to the court. Lockett v. State, 55 S.W. 336, 336 (Tex.Crim.App.1900). More recently, the court of criminal appeals observed that article 36.02 “permits evidence to be admitted after arguments have begun, as long as the arguments have not yet concluded.” Peek v. State, 106 S.W.3d 72, 78 (Tex.Crim.App.2003). The statute encourages litigants “to introduce their evidence during the course of the trial rather than waiting until closing arguments.” Id. at 79. It thereby prevents either party from seeking out additional evidence in order to counter the other party’s argument.

In the cause before us, the trial court withheld its verdict and ordered a presen-tence report after accepting Allman’s guilty plea. The presentence report disclosed that, while free on bond following his arrest in this cause, Allman was arrested in Georgia and charged with conspiring to manufacture methamphetamine and several related offenses. According to the report, Allman told the probation officer that “[t]he only thing that is pending [in Georgia] is the Driving While License Suspended charge. All of the other charges were dropped because I testified against my father-in-law, who was actually the one making it.” The probation officer had contacted the Georgia prosecutor, however, and had been informed that “[a]ll of the charges are pending and the case is being prepared for Court.”

When trial resumed six weeks after the guilty plea, Allman and his mother testified regarding his desire to rehabilitate his life and his suitability for probation. He was also questioned about the Georgia case. Allman testified that he had traveled to his in-laws’ residence in Georgia to visit his son, and that he had been arrested merely because he was present when the police arrived to execute a search warrant. Allman testified that he had nothing to do with his in-laws’ unlawful activities and was cooperating with the Georgia prosecutors. After Allman and his mother testified, both sides rested and closed.

The State waived its opening argument. Defense counsel argued that Allman deserved a second chance, citing his cooperation with the Georgia authorities, and urged the court to place Allman on probation. In his closing argument, the prosecutor argued that Allman’s testimony was not worthy of belief and urged the court to impose a prison sentence. After the arguments were concluded, the court ordered Allman to immediately report for a drug test and took the noon recess.

Trial resumed two-and-a-half hours later. The prosecutor told the court that he had spoken to the Georgia prosecutor during the recess: “I told her the entire story the defendant gave in his direct examination and cross exam. She said the only grain of truthfulness to any of that was the fact that he is charged down there. She said the rest of it is nothing but a lie.” The prosecutor added, “I’d like an opportunity to question the defendant about some facts I just learned. So if we’re going to go forward, I’d like to call him back to the stand.” Defense counsel objected, “The State has rested on the matter and we were at — both parties have rested on the sentencing portion of it so I would object to any more questioning since the State rested their case of this defendant.” The court stated, “[M]y concern was to ask both State and Defense to get a hold of the State in the other case to see if what the defendant said was in fact true, because it would make a difference as to— or possibly could make a difference as to what this Court would do.” The court overruled Allman’s objection and, after establishing for the record that neither the defense nor the court was calling him, permitted the State to call Allman for further testimony.

The prosecutor asked Allman a series of questions regarding the details of the Georgia offenses that were obviously based on information he had received from the Georgia prosecutor. In this manner, the prosecutor was able to establish that All-man’s involvement in the Georgia methamphetamine operation was more extensive than his earlier testimony had suggested. After additional short questioning by defense counsel and by the court, and after both sides gave brief additional argument, the court adjudged Allman guilty and imposed sentence.

The State argues that Allman did not preserve his article 36.02 complaint because he objected to the additional testimony on the ground that both sides had closed, rather than on the ground that argument had been concluded. “The standards of procedural default ... are not to be implemented by splitting hairs in the appellate court.” Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992). We believe that Allman’s objection was sufficiently clear under the circumstances to make the court aware of his complaint that it was too late for further testimony. Id.; Tex.R.App. P. 33.1(a). The alleged error was preserved for appeal.

As to the merits of Allman’s point of error, the State argues that article 36.02 was not violated because argument had not concluded. The State notes that the court ordered Allman to submit to a urine test without objection. The State also claims that the court “requested further information about the out of state case pending against Appellant.” The State concludes, “Clearly this matter had not concluded in the trial court’s opinion or in [the] opinion of counsel in the case. Further evidence was going to be heard and with it the opportunity for further argument.”

If the trial court believed that a drug test or additional information regarding the Georgia allegations was material evidence, it should have sought out this information before allowing the parties to conclude their arguments. A trial court does not err by reopening for further evidence before arguments conclude provided the evidence is material. Peek, 106 S.W.3d at 79. But it is clear from the record that both parties had concluded their arguments before the court admitted the additional evidence. Whatever the trial court might have believed or desired, article 36.02 prohibited further evidence at that point in the proceeding. As the court wrote in Williams:

There must be an end to the introduction of evidence somewhere.... [W]e believe that the administration of justice is best conserved by adhering to the plain rules of law as enunciated by our statute.... [T]he object and purpose of [article 36.02] was to mark the limit beyond which no court should be authorized to allow the introduction of testimony.

32 S.W. at 894. We are not persuaded by the State’s argument that there was no error because the court wanted to hear more testimony following the conclusion of argument. Article 36.02 makes it clear that the court had no discretion or authority to admit evidence after the close of argument.

Nor are we persuaded by the State’s argument that no error is presented because both parties were permitted further argument after the new testimony was adduced. This argument is contrary to the object and purpose of the statute as explained in Williams. The close of argument would no longer clearly mark the point beyond which no further evidence is allowed. Instead, evidence could be reopened repeatedly and further testimony adduced so long as the parties were each given an additional opportunity to argue. Simply put, this is not what the statute says.

Finally, the State argues that “the due administration of justice required a challenge of Appellant’s testimony.” The State relies on the opinion in Peek, in which the court held that the phrase “due administration of justice” in article 36.02 means that “a judge should reopen the case if the [additional] evidence would materially change the case in the proponent’s favor.” 106. S.W.3d at 79. But the issue in Peek was whether the trial court should have granted a request to reopen testimony that was made before argument. See id. at 73-74. Peek does not hold that the “due administration of justice” warrants reopening for further testimony after argument is concluded.

We understand that a bench trial, particularly a bench trial on a plea of guilty, is often conducted with less formality than a jury trial. But even a bench trial must be conducted in accordance with applicable procedural statutes and rules. The trial court in this cause permitted the State to introduce further evidence after both parties had concluded argument in clear violation of article 36.02. As the State itself argues in its brief, the additional testimony was such as to materially change the case in the State’s favor. We conclude that the court’s error affected Allman’s substantial rights and cannot be disregarded. Tex.R.App. P. 44.2(b).

The judgment of conviction is reversed and the cause is remanded for a new trial.

      . The test was negative.

      . We believe that the receipt of the drug test result after the conclusion of arguments was also a violation of article 36.02, but Allman’s failure to object precludes him from raising it.


author: RICHARD BARAJAS, Chief Justice.

text:
    In re Jeffrey LUTZ, Relator.
    No. 08-05-00162-CV.
    Court of Appeals of Texas, El Paso.
    May 5, 2005.

      Jeffrey D. Lutz, pro se.
    Patricia A. Macias, El Paso, for respondent.
    C. Jeff Minor, Semko & Minor, El Paso, for interested party.

      Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION ON PETITION FOR WRIT OF MANDAMUS

RICHARD BARAJAS, Chief Justice.

This is an original proceeding in mandamus. Jeffrey Lutz, Relator, seeks a writ of mandamus requiring the trial court to recuse itself from presiding over the case in question. For the reasons stated below, we deny relief.

STANDARD OF REVIEW

Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.l992)(orig.proceeding). Moreover, there must be no other adequate remedy at law. Id.

1. Clear abuse of discretion

An appellate court rarely interferes with a trial court’s exercise of discretion. A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.l985)(orig.proceed-ing). With respect to resolution of factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for that of the trial court. Walker, 827 S.W.2d at 839-40. The relator must therefore establish that the trial court could reasonably have reached only one decision. Id. at 840. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. Id. With respect to a trial court’s determination of the legal principles controlling its ruling, the standard is much less deferential. A trial court has no “discretion” in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Id.

2. No adequate remedy by appeal

An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex.l986)(orig.pro-ceeding). Mandamus will not issue where there is “a clear and adequate remedy at law, such as a normal appeal.” Walker, 827 S.W.2d at 840, quoting State v. Walker, 679 S.W.2d 484, 485 (Tex.1984). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989)(quoting James Sales, Original Jurisdiction of the Supreme Court and the Courts of Civil Appeals of Texas in Appellate Procedure in Texas, Sec. 1.4(l)(b) at 47 [2d Ed.1979]).

APPLICATION OF THE LAW TO THE FACTS BEFORE THE COURT

Relator is attempting to challenge the denial of his motion to recuse the trial court judge. Texas Rules of Civil Procedure provide that if the motion is denied, the denial may be reviewed on appeal from the final judgment. Tex.R. Civ. P. 18a(f); In re Union Pacific Resources Co., 969 S.W.2d 427, 428 (Tex.1998). Review of the denial of a motion to recuse via the normal appellate process is an adequate remedy, and thus intervention in trial court proceedings by appellate courts through the extraordinary remedy of -writ of mandamus is not justified. Id. at 428-29. If the motion to recuse is granted, the order of recusal is not reviewable. Tex.R. Civ. P. 18a(f); District Judges of Collin County v. Commissioners Court of Collin County, 677 S.W.2d 743, 745 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). The record before us complains only of the denial of the motion for recusal. Accordingly, we deny the relief requested in the petition for mandamus.