author: FELIPE REYNA, Justice.

text:
    Robert Wayne JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00130-CR.
    Court of Appeals of Texas, Waco.
    May 25, 2005.
    John M. Barron, Jr., Cedar Creek, pro se.

      James M. Kuboviak, Brazos County Dist. Atty., Bryan, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Robert Wayne Johnson of misdemeanor theft. The court sentenced Johnson to 365 days’ confinement, suspended imposition of sentence, and placed him on community supervision for two years. Johnson perfected this appeal pro se.

This Court abated Johnson’s appeal for an indigence hearing. The trial court determined that Johnson is not indigent. Accordingly, Johnson was directed to pay the court reporter’s fee for preparation of the reporter’s record. The Clerk of this Court notified Johnson that he must pay the reporter’s fee or the appeal would be submitted on the clerk’s record alone. Despite being given ample opportunity to do so, Johnson did not pay the fee, and the Clerk notified him that the appeal would be submitted on the clerk’s record alone. See Tex.R.App. P. 87.3(c).

The Clerk then notified Johnson that his brief was due within thirty days. After this deadline passed, the Clerk notified Johnson that his brief must be filed within fourteen days or the appeal may be considered without briefs or dismissed for abuse of the judicial process. See Lott v. State, 874 S.W.2d 687, 688 (Tex.Crim.App.1994); Peralta v. State, 82 S.W.3d 724, 725 (Tex. App.-Waco 2002, no pet.); see also Brager v. State, No. 0365-03, 2004 WL 3093237, at *3 (Tex.Crim.App. Oct.13, 2004) (not designated for publication). After this deadline passed, Johnson was given an additional thirty days to file his brief. Nevertheless, Johnson has failed to file a brief.

Although this appeal has been pending for nearly twelve months, this Court has not received a single pleading or piece of correspondence from Johnson. Under these circumstances, we conclude that Johnson filed this appeal only for purposes of delay. See Peralta, 82 S.W.3d at 725; see also Brager, 2004 WL 3093237 at *1-3. Thus, we find “that appellant has engaged in dilatory and bad-faith abuse of the judicial process rather than seriously pursuing his appeal.” Brager, 2004 WL 3093237, at *3; see also Peralta, 82 S.W.3d at 725.

Accordingly, we dismiss the appeal.


source: Caselaw Access Project

author: BILL VANCE, Justice. TOM GRAY, Chief Justice,

license: Public Domain

text:
    In the Interest of B.R.S. and A.N.S., Children, Appellants.
    No. 10-04-00110-CV.
    Court of Appeals of Texas, Waco.
    May 25, 2005.
    Rehearing Overruled June 21, 2005.

      Brian J. Tehan, Dallas, for appellants.
    Constance McGuire, Kendall Lee Drew, Waxahachie, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Lewis Seward and Carol Seward (Grandparents) sought to modify the parent-child relationship to seek court-ordered access to B.R.S. and A.N.S. Their November 2005 petition was opposed by both their son Jacob Seward and their former daughter-in-law Deanna Seward, who had divorced in October of 2002.

Without hearing evidence on'the merits of the Grandparents’ claim, the trial court found the grandparent visitation statute, sections 153.432 and 153.433 of the Family Code, unconstitutional and dismissed the claim. Tex. Fam.Code Ann. §§ 153.432, 153.433 (Vernon 2002). The Grandparents appeal.

The sole issue before us is whether the statute is facially unconstitutional under Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). We review the trial court’s finding under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982).

In 2001, the Austin Court of Appeals held that the statute is not unconstitutional on its face. Lilley v. Lilley, 43 S.W.3d 703, 712 (Tex.App.-Austin 2001, no pet.). Other courts of appeals have agreed with that holding. In re C.P.J., 129 S.W.3d 573, 578 (TexApp.-Dallas 2003, pet. denied); In re Pensom, 126 S.W.3d 251, 254 (Tex.App.-San Antonio 2003, no pet.).

We join those courts in holding that the grandparent access statute is not unconstitutional on its face. Tex. Fam. Code Ann. §§ 153.432, 153.433. Thus, we hold the trial court abused its discretion in dismissing the claim by the Grandparents. See Gillespie, 644 S.W.2d at 451; Lilley, 43 S.W.3d at 712. We reverse the trial court’s dismissal order and remand the cause for further proceedings under the statute.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

The wrong standard of review.

No analysis.

The wrong result.

I dissent.

OVERVIEW

Ultimately, this case will turn on whether the-best-interest-of-the-child finding necessarily includes an affirmative finding on the elements of a constitutionally permissible state intervention into the parent-child relationship. But first, we must address our standard of review, then the burden of proof on the best-interest-of-the-child finding, and then standing. Only then can we analyze what the best-interest-of-the-child finding includes, or must take into consideration.

BACKGROUND

We do not write on a clean slate. But this is the first appeal in Texas in which a trial court has examined the Texas Grandparent Access statute and determined that, as written, it does not comport with substantive due process of the fourteenth amendment as interpreted by the United States Supreme Court in Troxel v. Gran-ville. It is not the first time this particular trial judge has so ruled; it is simply the first time his determination has been brought to us on appeal. He wants a definitive ruling. I want him to have one. I agree with his legal analysis and conclusion.

This is a case which deserves a substantial amount of analysis. But the majority refuses to do the analysis. Look at what they offer you as an opinion. It references other cases but disclaims the analysis of those cases. So it is nothing more than a reversal of the trial court without explaining why. The cross-points, properly raised, are not even mentioned. Cross-points upon which the judgment could be affirmed raise other serious constitutional issues that were presented to the trial court and include an equal protection challenge to the validity of the statute.

I would prefer to conduct an extensive analysis of the cases the majority cites, as well as other Texas cases, and explain in greater detail why, in truth, a proper facial challenge analysis has not yet been conducted of this statute. I will, however, only lay out the outline of what I believe a proper analysis must consider and the answer based upon my limited analysis. See In the Interest of S.A.P., 135 S.W.3d 165, 177 (Tex.App.-Waco 2004) (Gray, C.J., dissenting) (discussing the delay by conducting a full analysis), rev’d, 156 S.W.Sd 574 (Tex.2005).

What greatly assisted me in my limited analysis is an Attorney General opinion on the validity of the statute. Op. Tex. Att’y Gen. No. GA-0260, 2004 WL 2326558, 2004 Tex. AG LEXIS 9228 (Oct. 13, 2004). This opinion summarizes the Texas cases that have discussed the statute. The Attorney General ultimately concludes that the statute is constitutionally valid:

... the Texas Grandparent Access Statute, is constitutional on its face. It may be constitutionally applied, however, only in light of the limitations imposed by Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In order to avoid an unconstitutional application of the statute, a court must require a grandparent to “overcome the presumption that a fit parent acts in the best interest of his or her child.” In re Pensom, 126 S.W.3d 251, 256 (Tex.App.San Antonio 2003, no pet.). To overcome the presumption, “a grandparent has the burden to prove, by a preponderance of the evidence, either that the parent is not fit, or that denial of access by the grandparent would significantly impair the child’s physical health or emotional well-being.” Id. at 256.

While the summary was helpful, its conclusion is not controlling authority. Tussey v. State, 494 S.W.2d 866, 870 n. 3 (Tex.Crim.App.1973); Weaver v. Head, 984 S.W.2d 744, 746 (Tex.App.-Texarkana 1999, no pet.). The problem with every case that examined the statute, and ultimately the Attorney General’s opinion as well, is that the reviewing court was examining the statute as the statute was applied in each of the various cases on the facts and holding of each case. The Attorney General, then, simply reviewed the cases to see if the court determined whether the Grandparent Access statute violated the U.S. Supreme Court’s holding in Troxel. Thus, I do not believe any court or agency has conducted a proper analysis of a facial challenge to the Grandparent Access statute. The Attorney General’s opinion follows the discussion of the cases and characterizes the analysis as a facial analysis. I must, however, ask the question: was it really a facial analysis if the analysis focused on the provisions that courts have “engrafted” onto the statute so as to make it comply with Troxel — provisions not in the statute, provisions that are added by an appellate court in an ad hoc effort to make the statute survive a facial challenge?

A Facial Analysis

The facial challenge analysis that needs to be performed is an analysis of the statute as written, not an analysis based upon a provision engrafted upon the statute by a court to make the statute work. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex.2000). As a legal question, we decide the issue without regard to the trial court’s decision, de novo. See Tex. DOT v. Needham, 82 S.W.3d 314, 318 (Tex.2002); In the Interest of C.P.J., 129 S.W.3d 573, 576 (Tex.App.-Dallas 2003, pet. denied).

The statute provides:

§ 153.432. Suit for Access
(a) A biological or adoptive grandparent may request access to a grandchild by filing:
(1) an original suit; or
(2) a suit for modification as provided by Chapter 156.
(b) A grandparent may request access to a grandchild in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit.
§ 153.433. Possession of and Access to Grandchild
The court shall order reasonable access to a grandchild by a grandparent if:
(1) at the time thp relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated; and
(2) access is in the best interest of the child, and at least one of the following facts is present:
■ (A) the grandparent requesting access to the child is a parent of a parent of the child and that parent of the child has been incarcerated in jail or prison during the three-month period preceding the filing of the petition or has been found by a court to be incompetent or is dead;
(B) the parents of the child are divorced or have been living apart for the three-month period preceding the filing of the petition or a suit for. the dissolution of the parents’ marriage is pending;
(C) the child'has been abused or neglected by a parent of the child;
(D) the child has been adjudicated to be a child in need of supervision or a delinquent child under Title 3;
(E) the grandparent requesting access to the child is the parent of a person whose parent-child relationship with the child has been terminated by court order; or
(F) the child has resided with the grandparent requesting access to the child for at least six months within the 24-month period preceding the filing of the petition.

Tex. Fam.Code Ann. §§ 158.432 & 158.433 (Vernon 2002).

Burden of Proof

The trial court was concerned about the burden of proof. To determine who has the burden of proof, I use a technique taught by an esteemed Baylor Law School professor. The technique asks a simple question — “Who wins if no one puts on any evidence?” See Hardy v. State, 50 S.W.3d 689, 698 (Tex.App.-Waco 2001) (Gray, J., concurring), aff'd, 102 S.W.3d 123, 129 (Tex.2003).

In this instance, if no one presents any evidence of the best interest of the child, the grandparents are not entitled to court ordered access. Thus, the burden of proof is clearly on the grandparent to prove what the best interest of the child is for there to be grandparent access.

Standing

Next, a brief note about standing. This statute is not as broad as the Washington statute at issue in Troxel. To establish standing to bring the suit, a person must be a grandparent and one of the specific conditions set out in the statute must be met. See Tex. Fam.Code Ann. §§ 153.432 & 153.433 (Vernon 2002). There is no issue in this case that the petitioners are grandparents and that the parents are divorced, thus meeting Section 153.433(2)(B) of the statute. But it is the disparate treatment of divorced parents as opposed to married parents that leads to Deanna Seward’s cross-point that this disparate treatment violates the Equal Protection Clause. This provision would likewise apply if one of the parents were working away from home such as serving in the military or as an overseas contractor. Thus, I agree with Justice Marion on the San Antonio Court in concluding that our statute is better than the Washington statute because standing was used to limit the breadth of those who could seek the State’s assistance in interfering with the parent-child relationship. In re Pensom, 126 S.W.3d 251, 254 (Tex.App.-San Antonio 2003, no pet.). But limiting the breadth by limiting who has standing, alone, will not cure the statute’s ailments if it suffers other constitutional shortcomings.

Best-InteRESt-Of-The-Child Analysis

Now we must turn our attention to the crux of the statute, the best interest of the child. The best interest of the child is not defined in the context of this statute. That is ultimately why this statute fails the facial challenge.

The best-interest terminology is very familiar to Texas family law attorneys, child protective services case workers, legislators, courts, etc. It is frequently a part of some other analysis. For example,

• to remove disabilities of minority, the best interest of the minor must be explained in the petition. Tex. Fam. Code Ann. § 31.002(a)(5) (Vernon 2002);
• in a judicial bypass to parental notification of a minor’s decision to have an abortion, the trial court shall determine whether parental notification would not be in the minor’s best interest. Tex. Fam.Code Ann. § 33.00S(i) (Vernon 2002);
• the change of a child’s name must be in the child’s best interest. Tex. Fam. Code Ann. § 45.004(a)(1) (Vernon Supp.2004-2005);
• in placing a delinquent child on probation outside his home or committing the child to the Texas Youth Commission, the juvenile court shall include in its order that placement outside the home is in the child’s best interest. Tex. Fam.Code Ann. § 54.04(i)(l)(A) (Vernon Supp.2004r-2005);
• the best interest of the child is the primary consideration in conservator-ship of, possession, and access to a child. Tex. Fam.Code Ann. § 153.002 (Vernon 2002);
• an order of support conforming to the child support guidelines is presumed to be in the best interest of the child. Tex. Fam.Code Ann. § 154.122 (Vernon 2002);
• certain factors are used to determine the best interest of the child at a permanency hearing when the child is in the care of the Department of Protective and Regulatory services. Tex. Fam.Code Ann. § 263.307 (Vernon 2002).

But the best-interest test itself is a factor test, not an element test.

As a factor test, it is composed of a review of the evidence of various factors. The most common rendition of the best-interest test comes from Holley. Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976). And it has frequently been stated that it is a balancing test. Evidence on each factor need not be presented, and it is possible that evidence on a single factor can overwhelm the evidence on all other factors. See In re C.H., 89 S.W.3d 17, 27 (Tex.2002); In the Interest of 39 S.W.3d 234, 240 (Tex.App.-Waco 1999, no pet.). We typically review a trial court’s determination of the best-interest test under the abuse of discretion standard. See e.g. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982) (custody determination); Green v. Remling, 608 S.W.2d 905, 908 (Tex.1980) (adoption decree); In the Interest of H.E.L., No. 10-04-00204-CV, 2005 WL 170644, *1-2, 2005 Tex.App. LEXIS 609, *4-5 (Tex.App.-Waco Jan. 26, 2005, no pet.) (mem.op.) • (change of child’s name); In the Interest of A.C.S., 157 S.W.3d 9, 20 (Tex.App.-Waco 2004, no pet.) (modification of custody/relocation of child).

The exception to the typical review of best interest is the review of best interest in a termination of parental rights case. In those cases, best interest has been reviewed for legal and factual sufficiency of the evidence. See In the Interest of J.F.C., 96 S.W.3d 256, 265-267 (Tex.2002). But even in a review of a termination case, it is still a reviev? of evidence of the various factors which is used to determine the overall sufficiency of the evidence..

An element test, on the other hand, requires affirmative proof on each element of the test. A failure to prove each element of the test means the person with the burden of proof loses. An element test is typically reviewed for sufficiency of the evidence, both legal sufficiency and factual sufficiency. The most common form of an element test is the proof of a cause of action. For example, a negligence cause of action has three elements: 1) a legal duty; 2) breach of that duty; and 3) damages proximately resulting from the breach. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998). The plaintiff loses his case by his failure to prove any one of these elements. In Van Horn, the plaintiffs failed to prove the existence of a legal duty; thus, the Supreme Court rendered a judgment that the plaintiffs take nothing on their claims. Van Horn v. Chambers, 970 S.W.2d 542 (Tex.1998).

What the various courts that have been confronted with the Grandparent Access statute in Texas have done is judicially engraft onto the factor analysis of a traditional best-interest test the two specific elements enumerated in Troxel, an affirmative finding on at least one of which is necessary to make the Grandparent Access statute constitutional.

The two elements that courts have en-grafted upon the best-interest test to overcome the presumption that a fit parent acts in the best interest of his or her child which must be accorded great weight in the balancing analysis — rather than a vanishing presumption that evaporates when contrary evidence is introduced — are either 1) an affirmative finding that the parent is not fit; or 2) an affirmative finding that the child would suffer injury if grandparent access is not ordered. See In re Pensom, 126 S.W.3d 251, 256 (Tex.App.San Antonio 2003, no pet.) (engrafted elements 1 and 2); In the Interest of C.P.J., 129 S.W.3d 573, 579 (Tex.App.-Dallas 2003, pet. denied) (generally engrafted elements 1 and 2); Roby v. Adams, 68 S.W.3d 822, 828 (Tex.App.-El Paso 2002, pet. denied) (facial challenge not specifically addressed but generally engrafted elements 1 and 2 and denied access); see also Lilley v. Lilley, 43 S.W.3d 703 (Tex.App.Austin 2001, no pet.).

Because, under no established best-interest analysis in Texas has best interest been defined to require an affirmative finding on either of these engrafted elements, and because an affirmative finding on either of these elements is required before the statute meets constitutional muster under Troxel, the statute is not constitutional on its face. See Tex. DOT v. Needham, 82 S.W.3d 314, 318 (Tex.2002) (terms should be interpreted consistently in every part of an act.). Those courts that have engrafted a required finding onto the best-interest analysis have simply performed the legislative function of adding the elements necessary to make the statute constitutional. That is not the proper role of the judiciary. “In sum, that the application of an unconstitutional statute can, in some cases, reach the same result as the application of a constitutional statute does not make the unconstitutional statute constitutional.” FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 878 (Tex.2000).

Thus, because the best-interest analysis in Texas does not require an affirmative finding on either element necessary to make the statute constitutional, I would affirm the judgment of the trial court.

Conclusion

The problems of this case are not nearly so easily swept under the rug as the majority opinion might suggest. As written, the statute survives a challenge that it is facially unconstitutional only by a tortured application of presumptions and engrafting onto the best-interest-of-the-child test determinations that are not part of that test in any other context. The statute is broken. It needs-to be fixed. The question is do we act where the legislature has not, or do we call it.the way it is? Other courts have struggled with the question and cobbled together what -they no doubt hoped would be a temporary fix based upon the facts as developed in a given case. A brave, and correct, trial judge did not succumb to the temptation in this case to try to fix the statute by engrafting provisions onto it that are simply not there. I, too, would not. : As a conservative jurist, I would do my job and await the time with patience until the legislature has fixed the constitutional problems in this statute.

I dissent.

      . We cite these cases only for the holding of facial constitutionality, not for their discussions of how the statute is to be applied.

      . Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

      . This is an excellent opinion that engages in more analysis than most. Another excellent opinion is by Justice Lang from the Fifth Court of Appeals. In the Interest of C.P.J., 129 S.W.3d 573 (Tex.App.-Dallas 2003, pet. denied). Ultimately, however, both opinions looked at the facts of the case and what the trial court had engrafted upon the factor analysis, thus reverting to an "as applied” analysis rather than a facial validity analysis.

      . The court only discussed the presumption of a fit parent acting in the best interest of the child which is the general presumption giving rise to the need to prove one of the specific elements.

      . I do not find it necessary to reach the equal protection argument presented by cross-point. But I have grave concerns about a statute that would compel divorced parents of a child to allow grandparent visitation when the same grandparents could not compel visitation with the children of married parents. This case presents a situation where both of the divorced parents agree that the parents should not be compelled by the State to allow the paternal grandparents access to their children.

      . This issue is currently before the legislature in Tex. H.B. 261, 79th Leg., R.S. (2005).


text:
    David E. MOORE, Appellant, v. Billy WALDROP, Appellee.
    No. 10-04-00205-CV.
    Court of Appeals of Texas, Waco.
    May 25, 2005.

      Richard T. Miller, San Saba, for appellant.
    Alfred Mackenzie, Haley & Davis PC, Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   Opinion

FELIPE REYNA, Justice.

David E. Moore brought suit against Billy Waldrop claiming slander per se and intentional infliction of emotional distress. The trial court granted Waldrop’s motion for summary judgment. Because we find that Waldrop conclusively established his entitlement to judgment on both of Moore’s claims, we affirm.

Background

In 1997, Moore was an employee of the Limestone County Sheriffs Department. A dispute arose between Moore and some members of the Limestone County Commissioner’s Court, including Commissioner Waldrop. At a restaurant after a Commissioner’s Court meeting, Waldrop and other commissioners asked Moore if he would like to sit at their table. Moore replied, “No, I don’t want to sit at a table with a bunch of liars.” After that incident, Moore was called into his supervisor’s office on two separate occasions to discuss how Waldrop was upset about Moore’s comment at the restaurant. At one time, Moore’s supervisor told Moore that Wal-drop wanted Moore fired.

Subsequently, Moore and other Limestone County employees were involved in a suit against Limestone County for violations of the Fair Labor Standards Act. Most of the employees settled, but Moore refused to sign the settlement because he believed he was entitled to be paid for overtime hours worked in caring for the department’s drug dog. Moore signed a separate settlement agreement for his care and maintenance of the dog. Shortly thereafter, Moore left to attend law school.

After Moore completed law school, Roy DeFriend, district attorney for Limestone County, hired Moore as an assistant district attorney despite DeFriend’s expressed concerns that hiring Moore would anger Waldrop. Shortly thereafter, while in the presence of numerous colleagues and other county officials, Waldrop asked DeFriend if he was considering hiring Moore. DeFriend stated that he had already done so. Waldrop replied, “You don’t want to hire him, he’s a crook.” Waldrop acknowledges that he made this statement, but states that it was made to DeFriend only.

During a budget session, DeFriend and Moore received notice that the Commissioner’s Court was considering cutting the funding for Moore’s position. At this time, Commissioner Don Ford approached Moore and asked him what he had done to Waldrop. Ford told Moore that Waldrop “is still mouthing and hates your guts,” and that Waldrop was still angry over Moore’s 1997 comment.

Subsequently, Moore filed suit against Waldrop claiming slander per se and intentional infliction of emotional distress. Waldrop filed a traditional motion for summary judgment. The trial court granted the motion.

Moore argues on appeal that the trial court erred in granting Waldrop’s motion for summary judgment because fact issues exist as to whether (1) Waldrop’s comment was slanderous per se; (2) Waldrop’s conduct was extreme and outrageous or caused Moore to suffer severe emotional distress; (3) Waldrop is entitled to sovereign immunity; and (4) Moore was a public official.

Standard of Review

The standard of review for a traditional summary judgment is well established. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). The mov-ant has the burden of showing that no genuine issue of material fact exists and that he is entitled to summary judgment as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Ash v. Hack Branch Distributing Co., Inc., 54 S.W.3d 401, 413 (Tex.App.-Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Grinnell, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. The non-movant need not respond to the motion for summary judgment unless the movant meets its burden of proof. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex.1999). But if the movant meets its burden of proof, the non-movant must present evidence to raise a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Rosas v. Hatz, 147 S.W.3d 560, 564 (Tex.App.-Waco 2004, no pet.). When the trial court does not specify the basis for its summary judgment, as here, the appealing party must show it is error to base it on any ground asserted in the motion. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995); Rosas, 147 S.W.3d at 564.

Slander Per Se

Moore argues in his first issue that fact issues exist as to whether Waldrop’s comment is slanderous per se.

Defamation is a false-statement about a plaintiff published to a third person without legal excuse which damages the plaintiffs reputation. Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40, 48 (Tex. App.-Corpus Christi 2001, no pet.). Libel is defamation in written or other graphic form. Tex. Civ. PRAC. & Rem.Code Ann. § 73.001 (Vernon 1997); Doe, 43 S.W.3d at 48. Slander is orally communicated defamation. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995); Doe, 43 S.W.3d at 48.

A defamatory oral statement may be slander per se or slander per quod. Minyard Food Stores, Inc. v. Goodman, 50 S.W.3d 131, 140 (Tex.App.-Fort Worth 2001), rev’d on other grounds, 80 S.W.3d 573 (Tex.2002). If a statement is slander per quod, the plaintiff must present proof of actual damages. Id. If the statement is slander per se, no independent proof of damage to the plaintiffs reputation or of mental anguish is required, as the slander itself gives rise to a presumption of these damages. Mustang Athletic Corp. v. Monroe, 137 S.W.3d 336, 339 (Tex.App.-Beaumont 2004, no pet.) (citing Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex.1984) (op. on reh’g)).

To be considered slander per se, the statement must (1) impute the commission of a crime; (2) impute contraction of a loathsome disease; (3) cause injury to a person’s office, business, profession, or calling; or (4) impute sexual misconduct. Goodman, 50 S.W.3d at 140. . Whether words are capable of the defamatory meaning the plaintiff attributes to them is a question of law for the court. Musser v. Smith Protective Serv., Inc., 723 S.W.2d 653, 654-55 (Tex.1987).

In his pleadings, Moore alleges that Waldrop’s statement calling Moore a crook is slanderous per se because it imputes the commission of a crime and caused injury to his profession.

However, taken by itself, Waldrop’s statement is not slanderous per se. See Billington v. Houston Fire & Cas. Ins. Co., 226 S.W.2d 494, 496 (Tex.Civ.App., Fort Worth-1950, no writ) (holding words such as ‘liar’ and ‘crook’ are not actionable per se); Arant v. Jaffe, 436 S.W.2d 169, 176 (Tex.Civ.App.-Dallas 1968, no writ) (‘phony’, ‘cheat’, and ‘crook’, in the absence of innuendo are not actionable per se). The parties disagree upon whether innuendo may be used to clarify the meaning of Waldrop’s statement. Once applied, Moore argues the innuendo will turn Wal-drop’s otherwise inactionable statement into an actionable one.

Waldrop argues that a trial court should not use innuendo to expound upon the meaning of a statement when the plaintiff is arguing that the statement is slanderous per se. He argues that if innuendo must be used to interpret .the meaning of the statement, then the statement cannot be per se slanderous. Waldrop cites Mont gomery Ward & Co. v. Peaster which states:

If particular language alleged to be defamatory may, or may not, be so, according to other facts or circumstances, then an innuendo is required in order to tender as an issue the fact that the words conveyed to hearers the defamatory meaning. In a slander suit, not involving an imputation of unchastity in a female, if an innuendo is required, then the allegation and proof of special damages is also required in order to authorize a recovery.

178 S.W.2d 302, 305 (Tex.Civ.App.-East-land 1944, no writ) (citations omitted).

Waldrop also argues that the courts in Billington and Arant refused to use innuendo to interpret the meaning of the word “crook.” However, Moore distinguishes these cases. In Billington, the court found that “crook” was not actionable per se, but stated that it would not use innuendo to clarify the meaning of “crook” because the plaintiff did not plead innuendo. 226 S.W.2d at 497 (“[the statements] were practically meaningless in the absence of a pleading of innuendo.”). Moore argues that because he pleaded innuendo in his first amended petition, innuendo should be used. Also, in Arant the court found that the defendant’s statement was not actionable per se because the plaintiff failed to substantiate her allegations of innuendo with proof. 436 S.W.2d at 176-78. Again, Moore argues, innuendo was or could have been used.

Moore also points to well known language in defamation cases as proof that a trial court is allowed to consider innuendo. This language states that an allegedly defamatory statement “must be construed as a whole, in light of surrounding circumstances, based upon how a person of ordinary intelligence would perceive the entire statement.” New Times, Inc. v. Isaacks, 146 S.W.3d 144, 154 (Tex.2004); Carr v. Brasher, 776 S.W.2d 567, 571 (Tex.1989); Cram Roofing Co. v. Parker, 131 S.W.3d 84, 90 (Tex.App.-San Antonio 2003, no pet.).

Moore states that the circumstances surrounding Waldrop’s statement concern his settlement agreement with Limestone County. By calling him a crook, Moore states that Waldrop insinuated that Moore had committed a crime by falsifying government records concerning his overtime hours in the settlement agreement. In his deposition, Waldrop admits that this is the reason that he called Moore a crook, and that he still believes that Moore was not truthful in his accounting of the overtime hours he spent taking care of the drug dog. Moore argues that those who heard Waldrop’s statement knew of the circumstances surrounding the settlement with Limestone County, and thus knew what Waldrop meant when he called Moore a crook.

However there is a difference between the language quoted by Moore, the consideration of surrounding circumstances, and the definition of innuendo at common law. Innuendo is extrinsic evidence used to prove a statement’s defamatory nature. 50 Am.Jur.2d Libel and Slander § 137 (1995). It includes the aid of inducements, colloquialisms, and explanatory circumstances. Id.

Considering the surrounding circumstances does not necessarily require the use of extrinsic evidence. The surrounding circumstances are the setting in which the alleged slanderous statement is spoken, consisting of the context of the statement and the common meaning attached to the statement. Common sense requires courts to understand the statement as ordinary men and women would, considering the temper of the times, and the current of contemporary public opinions. “The test is what construction would be placed upon such language by the average reasonable person or the general public, not by the plaintiff.” Schauer v. Memorial Care Syst., 856 S.W.2d 437, 448 (Tex.App.-Houston [1st Dist.] 1993, no writ). If the statement seen in this light has but one clear and obvious meaning, then no further inquiry is necessary. Gray v. HEB Food Store No. A, 941 S.W.2d 327, 329 (Tex.App.-Corpus Christi 1997, writ denied) (“If a statement unambiguously and falsely imputes criminal conduct to plaintiff, it is defamatory per se ”). However, if the statement is ambiguous, or if the full effect of the statement cannot be understood without the use of extrinsic evidence, then the trial court must go beyond the snapshot óf time in which the statement was published and admit into consideration inducements and explanatory circumstances. See Peasier, 178 S.W.2d at 305; Billington, 226 S.W.2d at 496.

Accordingly, when dealing with the initial question of whether a statement is slanderous, a trial court should look to innuendo and explanatory circumstances in order to interpret the meaning of the statement. Consideration of innuendo and extrinsic evidence is sometimes the only way to know whether the statement is slanderous or not. Yet, once innuendo is being considered, the statement has moved beyond the analysis of slander per se and into that of slander per quod, because innuendo not only reflects the meaning of the statement but also illuminates the amount of harm the plaintiff may have suffered. For if innuendo is used to prove slander, then innuendo must also be used to prove damage to the plaintiff. In order to prove harm, the plaintiff must prove that those to whom the statement was published understood the meaning that the plaintiff attaches to the statement. See Diaz v. Rankin, 777 S.W.2d 496, 499 (Tex.App.-Corpus Christi 1989, no writ); Bergman v. Oshman’s Sporting Goods, Inc., 594 S.W.2d 814, 816 (Tex.Civ.App.-Tyler 1980, no writ) (“third party must understand the words in a defamatory sense”). Therefore, when innuendo is required, it follows that proof of damages must be required as well.

Consequently, innuendo should never be considered when interpreting slander per se. The very definition of “per se,” “in and of itself,” precludes the use of innuendo. If the statement, taken by itself and as a whole, is slanderous, it will require no extrinsic evidence to clarify its meaning. It will stand alone. Burnaman v. J.C. Penney Co., 181 F.Supp. 633, 636-37 (S.D.Tex.1960) (“Statements were not slanderous per se and could only become so by innuendo added by plaintiffs.”). And by its very nature of being per se slanderous, damages are presumed, because contained in the statement itself is a single meaning so obviously harmful that all proof of damages may be dispensed with.

Standing alone, the word “crook” is a general disparagement. See Billington, 226 S.W.2d at 496. A specific crime or moral turpitude is not imputed, nor does it injure Moore’s profession.

The threat to ruin appellant and to hurt him, and to put him out of business, and to send a letter to Austin to accomplish that purpose, did not impute the commission of a crime. Nor were the words [“crook” and “liar”], taken by themselves and without explanation, such as would tend to affect appellant injuriously in his office, profession, or occupation.

Id. On its face, Waldrop’s statement is but mere “name calling.” Waldrop’s words may indeed be slander per quod when innuendo and extrinsic evidence are considered, but it is not per se slanderous so as to absolve Moore from proving special damages.

Therefore, the trial court did not err in finding that as a matter of law Waldrop’s statement was not slanderous per se. See Grinnell, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. As Moore did not plead a cause of action for slander per quod or special damages, the trial court did not err in granting Waldrop’s motion for summary judgment on Moore’s slander claim. Accordingly, we overrule Moore’s first issue.

Intentional Infliction of Emotional Distress

Moore argues in his second issue that the trial court erred in granting Waldrop’s motion for summary judgment because fact issues exist as to whether Waldrop’s conduct was extreme and outrageous or whether Moore suffered severe emotional distress.

To recover damages for intentional infliction of emotional distress, a plaintiff must prove that (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex.1998); Durckel v. St. Joseph Hosp., 78 S.W.3d 576, 586 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

Waldrop argues that his conduct is not extreme or outrageous. We agree. Waldrop’s statement while rude, and certainly not inconsequential, does not rise to the level of outrageous behavior. Even if we consider Moore’s assertions that Wal-drop was actively attempting to thwart his employment as an assistant district attorney, these actions are not so extreme as to come within the definitions of outrageous behavior. Insensitive and rude behavior, “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” are not considered outrageous conduct. Porterfield v. Galen Hosp. Corp., 948 S.W.2d 916, 920 (Tex.App.-San Antonio 1997, writ denied) (emphasis added); Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 817-18 (Tex.2005).

Therefore, the trial court did not err in finding as a matter of law that Waldrop’s conduct was not extreme or outrageous. See Grinnell, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. Accordingly, we overrule Moore’s second issue.

Conclusion

Because issues one and two are disposi-tive of this appeal, we need not address Moore’s other issues. Accordingly, we affirm the judgment of the trial court.

      . Per se is defined as "of, in, or by itself; standing alone.” Black's Law Dictionary 1178 (Bryan A. Garner ed., 8th ed., West 2004). Per quod is Latin for "whereby,” and is defined as "requiring reference to additional facts.” Black's Law Dictionary 1177 (Bryan A. Garner ed., 8th ed., West 2004).


author: TOM GRAY, Chief Justice, PER CURIAM BILL VANCE, Justice.

text:
    Doyle Sherman ARD, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00034-CR.
    Court of Appeals of Texas, Waco.
    May 25, 2005.
    Doyle Sherman Ard, Abilene, pro se.
    Dale S. Hanna, Johnson County Dist. Atty., Cleburne, for appellee.
   TOM GRAY, Chief Justice,

dissenting.

If I thought the State would file a mandamus against us for the folly of the majority’s order, I would spend the time to fully explain why, in my opinion, this is probably one of the more unreasonable positions I have seen the majority take. Notwithstanding that it is the type of order that results in the needless expenditure of taxpayer resources, it will be easier for the county to spend the money for an appointed attorney to pursue a meritless appeal than to fight the order; so you know what the ultimate result will be.

In summary, the majority reverses this Court’s prior unanimous decision and holds that once a trial court erroneously appoints counsel for a post-trial DNA motion, the trial court cannot correct that decision. The holding means that once appointed, no matter how frivolous, or without any basis in law or fact the motion for post-conviction DNA testing is, the trial court cannot correct the earlier mistake of appointing counsel, even if the original appointment was done in an attempt to be cautious.

This appeal presents a classic example of why the majority’s new decision is wrong.

The sad truth is that because of what the majority does here the good and noble purposes of having post-conviction DNA testing when 1) identity is an issue and 2) there is biological evidence to test are greatly frustrated. Neither issue is present here. As Ard’s counsel explained, he is really trying to challenge the jury’s determination of guilt, an issue resolved against him in the trial and earlier appeal. Ard v. State, 10-00-0028S-CR (Tex.App.Waco, October 30, 2002) (not designated for publication) (text attached as Appendix B). Identity of the shooter was not an issue. Id.

After we denied Ard’s motion for the appointment of appellate counsel, Ard filed his brief on the merits of his appeal. I would address The issues raised by Ard. What follows is my opinion on the issues raised by Ard in his brief.

Memorandum Opinion

Ard appeals the denial of his motion for forensic DNA testing pursuant to Texas Code of Criminal Procedure Chapter 64. See Tex.Code Ceim. Proc. Ann. arts.- 64.01-64.05 (Vernon Supp.2004-2005). I would affirm.

Effective Assistance of Counsel. In Ard’s first issue, he contends that his counsel appointed for Ard’s motion failed to render the effective assistance of counsel. See U.S. Const, amend. VI; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is no federal or state constitutional right to counsel in proceedings under Chapter 64, and thus no right to the effective assistance of counsel. Winters v. Presiding Judge, 118 S.W.3d 773, 774 (Tex.Crim.App.2003); Hughes v. State, 135 S.W.3d 926, 927 (Tex.App.-Dallas 2004, pet. dism’d); Morris v. State, 110 S.W.3d 100, 108 (Tex. App.-Eastland 2003, pet. refd, untimely filed); but see Bell v. State, 90 S.W.3d 301, 307 (Tex.Crim.App.2002) (refraining from deciding issue). Our disposition should not be taken as any inference upon our view of counsel’s effectiveness or ineffectiveness in this case. That is simply not the issue. I would overrule Ard’s first issue.

Consideration of Appellant’s Motion. In Ard’s second issue, he contends that the trial court erred in considering Ard’s motion, in that the motion was “legally-defective.” Ard invited any error by filing the “legally-defeetive” motion. See Charles v. State, 146 S.W.3d 204, 212-213 & n. 25 (Tex.Crim.App.2004). In any event, the record clearly reflects that the trial court overlooked the defects and addressed the substance of the motion. I would overrule Ard’s second issue.

Denial of Appearance. In Ard’s third issue, he contends that he requested to appear by telephone at the hearing on his motion, and that the trial court denied the request and thus erred. Ard filed a motion captioned “Motion for Appointment of Counsel Pursuant to Article 64, Code of Criminal Procedure.” The motion prays, “WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays this Honorable Court would APPOINT him Counsel under the provisions of Art. 64.01(c) YAACCP.” In one section of the motion, titled “APPEARANCE ON THIS MOTION,” Ard states, “If this Honorable Court requires testimony on this Motion, then the Defendant would invoke his right to APPEARANCE BY TELEPHONIC MEANS.” We assume without deciding that this pleading put the trial court on notice of Ard’s request. See Tex.R.App. P. 33.1(a); Loredo v. State, 159 S.W.3d 920, 924, 2004 Tex.Crim.App. LEXIS 635, at *9 (Tex.Crim.App. Apr. 7, 2004). However, Ard does not suggest that the trial court found that Ard’s testimony was required, and the trial court did not receive any testimony at the hearing; nor did Ard give the trial court any reason why his testimony was required. Ard thus “failed to make the required showing and the trial court is not required, on its own, to seek out the necessary information.” See In re Z.L.T., 124 S.W.3d 163, 166 (Tex.2003). I would overrule Ard’s third issue.

Denial of Appointment of Counsel on Appeal. In his fourth issue, Ard contends that he requested the appointment of counsel on appeal of the denial of his motion for testing, and that the trial court denied the request. Neither a request for counsel on appeal nor a denial of appellate counsel appears in the trial court record. See Tex.R.App. PRO. 33.1(a); Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App.2001). Further, we have previously addressed his motion to this Court for the appointment of appellate counsel, and denied that request. See Ard v. State, 10-04-00034-CR (Tex.App.-Waco June 30, 2004) (order) (not designated for publication) (see Appendix A incorporated for all purposes). I would overrule Appellant’s fourth issue.

Conclusion. Having overruled Ard’s issues, I would then affirm the judgment.

Conclusion of Dissenting Opinion

This Court addressed the issue addressed by the majority in an order of June 30, 2004 and proceeded with the appeal. I know that this Court does not always get the right answer. But I have seen nothing in the statute that trumps the trial court’s inherent authority to correct an earlier erroneous decision, or that trumps the statutory language of whether an appellant is entitled to counsel, at trial or on appeal, or trumps traditional notions of trial practice that a trial court can correct an erroneous ruling, particularly in a situation like this case where the initial ruling was made on the basis of a “legally-defeetive” motion and upon hearing, after the receipt of evidence, by way of affidavit, and argument of counsel, it is made clear to the trial court that the statutory entitlement to the appointment of counsel has not been met.

To change directions in this appeal now is unwarranted folly. I do not agree with any part of the reasoning, explanation, or result of the abatement order issued by the majority. I dissent.

APPENDIX A

June 30, 2004 Order of the Court ORDER

PER CURIAM

Doyle Sherman Ard represents himself in this appeal from the denial of his motion for postconviction DNA testing. Ard has filed a third motion for extension of time to file the appellant’s brief in which he contends that an extension should be granted because (1) the appeal should be abated for a hearing in the trial court on a motion for appointment of counsel; and (2) he has not yet received a copy of the clerk’s record. Because the trial court determined that Ard is not entitled to appointed counsel and because the district clerk has advised the Clerk of this Court that a copy of the clerk’s record was mailed to Ard, we will grant the motion only in part, giving Ard additional time to file the appellant’s brief.

The trial court granted Ard’s request for appointment of counsel in connection with the filing of his motion for postconviction DNA testing under article 64.01 of the Code of Criminal Procedure. In denying the motion for DNA testing however, the court determined that Ard is not entitled to appointed counsel. Article 64.01(c) authorizes such a finding if the court fails to find reasonable grounds for the filing of the motion. See Tex.Code Ceim. PROc. Ann. art. 64.01(c) (Vernon Supp.2004).

This Court has previously recognized that the right to counsel in proceedings under Chapter 64 of the Code of Criminal Procedure is governed solely by statute and that a convicted person has no federal or state constitutional right to counsel in such proceedings. See Gray v. State, 69 S.W.3d 836, 837 & n. 2 (Tex.App.-Waco 2002, order). Article 64.01(c) vests a trial court with discretion to refuse to appoint counsel if the court fails to find reasonable grounds for the filing of a motion for post-conviction DNA testing. Here, exercising that discretion, the trial court has determined that Ard is not entitled to appointed counsel.

Ard also contends that he has not received a copy of the clerk’s record for preparation of the appellant’s brief. However, the district clerk has advised the Clerk of this Court that the record was in fact mailed to Ard on April 30, 2004.

Because the trial court acted within its discretion in concluding that Ard is not entitled to appointed counsel, we deny Ard’s request for an abatement of this appeal to the trial court for appointment of counsel. Ard must file the appellant’s brief within 30 days after the date of this Order or this appeal will be dismissed.

APPENDIX B

Court’s October 30, 2002 Opinion in Original Appeal OPINION

BILL VANCE, Justice.

On New Year’s Eve, Doyle Sherman Ard and Robert Davis were at Ard’s apartment. Both were intoxicated. Ard got a pistol and discharged it twice, seriously injuring Davis’s finger. Ard was indicted for assault with a deadly weapon. The issue at trial was whether Ard’s shooting of Davis was an accident, or an intentional or knowing act.

The State called three witnesses at trial: Davis and two police officers. Davis said Ard put the gun to Davis’s head and cocked it; but Davis was able to avoid being shot by “thr[owing] [his] right hand up to grab the gun away from [Ard] and that’s when it went off,” shooting Davis in the finger. Ard fired again as Davis went down the hall, and that bullet grazed his arm. For the defense, Ard called his mother to testify that Davis told her the incident was an accident, and a medical-records custodian to testify about Davis’s hospital records; he also recalled Davis and one of the officers. Finally, he introduced a tape-recording, which was played to the jury, of an interrogation of him by a police officer after the shooting. On the tape, Ard said repeatedly he did not remember what happened, including shooting Davis: “It’s just black, I can’t remember.” The jury convicted Ard and, after finding that he had two prior felony convictions, assessed punishment at forty years in prison.

On appeal Ard asserts: (1) ineffective assistance of counsel; (2) an improperly admitted tape-recording of the interrogation of him by the officer; and (3) factually insufficient evidence.

We will affirm the judgment.

Ineffective Assistance of Counsel

Ard points out the following alleged erroneous acts by his trial counsel, which are confirmed by the record:

• During voir dire, Counsel strongly suggested to the jury, by repeated inquiries about their attitudes toward punishing a “hypothetical” defendant who has previous convictions, that Ard had two previous felony convictions. (Reporter’s Record: V. 2, pp. 114, 117, 126-35, 141-42,146-47,149,153-54,167,172)
• During his opening statement, counsel told the jury that Ard had two previous felony convictions, one in 1985 and one in 1988. (Reporter’s Record: V. 3, p. 17)
• During the guilt — innocence phase, the State attempted to introduce the tape-recording of the interrogation of Ard by the officer. Defense counsel successfully objected that a proper predicate had not been laid. Later, defense counsel introduced the tape-recording which was played to the jury. In the tape, Ard admitted that he had served two years in prison for assault with a weapon, the “same kind of trouble” as in this case. Texas courts follow the United States

Supreme Court’s two-pronged Strickland test to determine whether counsel’s representation was so inadequate as to be in violation of the Sixth Amendment right to effective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999) (citing Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986), which adopted the standard in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)). Appellant must show: (1) counsel’s assistance fell below an objective standard of reasonableness, and (2) counsel’s deficient assistance, if any, prejudiced the defendant. Thompson, 9 S.W.3d at 812 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim.App.1996)). This two-pronged test is the “benchmark for judging whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a reliable result.” Thompson, 9 S.W.3d at 812-13 (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App.1992) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. at 2064)). There is a strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Id. at 813 (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). Appellant must prove ineffective assistance by a preponderance of the evidence. Id. (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App.1984)).

The State’s case rests primarily on the credibility of Davis’s eyewitness testimony. To convict Ard, the jury had to believe Davis’s testimony and conclude that Ard intentionally or knowingly shot him. But Davis, an unemployed veteran on disability who was in “a lot of pain most of the time,” admitted to being depressed at the time of the incident because of personal problems, having two convictions for driving while intoxicated, for one of which he was currently on probation, having two prior misdemeanor convictions for theft, having been involved with drugs in the past, and being intoxicated at the time of the incident. He also testified that initially he thought the shooting was an accident and he told the treating physician so, but after having nightmares about it, he came to believe it was intentional. For all these reasons, his testimony was controvertible.

Because the credibility of the State’s one incriminating witness was impeachable, for the jury to learn that Ard had prior felony convictions, especially when one was for an aggravated assault, had the potential to be highly damaging. And for Ard’s counsel to be the source of the information would appear to fall below an objective standard of reasonableness. Sometimes, however, conduct that appears to be below average is based on trial strategy. There is a presumption that the challenged act by defense counsel is trial strategy. Pena-Mota v. State, 986 S.W.2d 341, 346 (Tex.App.-Waco 1999, no pet.) (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994)). Because we cannot determine from this record why defense counsel acted as he did, we must presume he was following a strategy he thought reasonable under the facts. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). Consequently, we find that defense counsel’s acts did not fall below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812.

We overrule this issue.

Tape-Recording

Ard introduced a tape-recording, played to the jury, of an interrogation of him by a police officer after the shooting. On the tape, Ard said repeatedly he did not remember what happened, including shooting Davis. But he also admitted that he had served two years in prison for assault with a weapon, the “same kind of trouble” as in this case. On appeal, Ard argues that the tape was more prejudicial than probative and should not have been admitted.

The problem with Ard’s argument is transparent. It was he who introduced the tape into evidence, and he did not request that it be redacted or that a limiting instruction be given. Our criminal law recognizes a rule of estoppel called the “doctrine of invited error” which generally prohibits a party from complaining on appeal of an action he requested. Prystash v. State, 3 S.W.3d 522, 531-32 (Tex.Crim. App.1999) (overruling Powell v. State, 897 S.W.2d 307, 315 (Tex.Crim.App.1994) (defense procured the absence of a special issue in the charge)). Said another way, “error” cannot be predicated on an act the complaining party affirmatively sought. Id. The doctrine applies in many contexts. E.g., id. (citing Carbough v. State, 49 Tex. Crim. 452, 455-56, 93 S.W. 738 (1906) (jury charge: a party may not “take advantage of his own wrong”)); Mann v. State, 850 S.W.2d 740, 741-42 (Tex.App.-Houston [14th Dist.] 1993, pet. refd) (defendant may not later attack defect in stipulation of evidence after representing that the court could rely on it); Ex parte Hargett, 827 S.W.2d 606, 607 (Tex.App.-Austin 1992, pet. refd) (defendant seeking habeas relief may not complain of lack of evidentiary hearing when defendant requested that the merits be determined solely on basis of trial transcript).

We overrule this issue.

Factual Sufficiency of the Evidence

The standard of review for a factual sufficiency claim, which is derived from Clewis v. State, 922 S.W.2d 126 (Tex.Crim. App.1996), is set forth in Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App.2000). The reviewing court “asks 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’ “to the extent that the [finding of guilt] is clearly wrong and manifestly unjust.” Johnson, 23 S.W.3d at 11. The court does not view the evidence through the prism of “in the light most favorable to the prosecution.” Id. at 7 (quoting Clewis, 922 S.W.2d at 129). The trier of fact is the sole judge of the weight and credibility of the testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). A bedrock principle of a factual sufficiency analysis is deference to the findings of the jury or other fact finder. See Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). Thus, we should be on guard not to substitute our own judgment in these matters for that of the trier of fact. See Santellan, 939 S.W.2d at 164. “A decision is not manifestly unjust merely because the jury [or fact finder] resolved conflicting views of the evidence in favor of the State.” Cain, 958 S.W.2d at 410.

Ard’s argument is that there were some inconsistencies in Davis’s testimony at trial. However, faced with Davis’s testimony, including the inconsistencies, and Ard’s testimony, the jury — the sole judge of the weight and credibility of the testimony— made a credibility determination, and believed Davis. Santellan, 939 S.W.2d at 164. Also, the unrefuted physical evidence is that Davis was shot twice with a .357 magnum, Ard owned a .357 magnum which was found a few feet from him and which had two spent rounds, and there was no one else present during the shooting. Based on the evidence, we do not find that the verdict is “clearly wrong and manifestly unjust.” Johnson, 23 S.W.3d at 11.

We overrule this issue.

Conclusion

Having overruled Ard’s issues, we affirm the judgment.

      . The full text of that earlier unpublished order is attached as Appendix A and incorporated herein for all purposes.

      . If Ard has not yet received a copy of the clerk’s record, he should notify the Clerk of this Court promptly and appropriate action will be taken.

      . Reporter’s Record: V. 3, p. 35.

      . The record also shows that, after verdict, Ard’s counsel filed a one-page motion for new trial alleging, among other grounds, newly discovered evidence and ineffective assistance of counsel. A hearing was neither requested nor conducted. On appeal, counsel filed an appendix containing statements from three apparently disinterested witnesses who said Davis told them separately after the shooting that it was an accident which occurred when Davis attempted to prevent Ard from committing suicide. These three statements were not attached to Ard’s motion for new trial and are not otherwise in the record from the trial court; none of the three witnesses testified at trial. Therefore, we cannot consider the statements on appeal as grounds that trial counsel failed to properly investigate and present a defense of prior inconsistent statements by Davis.

      . Reporter’s Record: V. 3, pp. 158-59.


author: BEA ANN SMITH, Justice.

text:
    INOVA DIAGNOSTICS, INC., Appellant, v. Carole Keeton STRAYHORN, Comptroller of Public Accounts of the State of Texas and Greg Abbott, Attorney General of the State of Texas, Appellees.
    No. 03-04-00503-CV.
    Court of Appeals of Texas, Austin.
    May 26, 2005.

      Gilbert J. Bernal Jr., David J. Sewell, Stahl, Bernal & Davies, LLP, Austin, for Appellant.
    Christine Monzingo, Asst. Atty. Gen., Austin, for Appellees.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

When INOVA, a California corporation, hired a salesperson in this state, the Texas Comptroller informed the company that it was required to pay the state franchise tax. INOVA paid the taxes under protest and filed suit in the district court for a refund.' The trial court ruled in favor of the Comptroller.

INOVA argues that Public Law 86-272 (15 U.S.C. §§ 381-84 (West 1997)) exempts INOVA from paying any portion of the franchise tax measured by earned surplus and that the portion of the franchise tax imposed on capital cannot be separated from the portion imposed on earned surplus. Even if the franchise tax contains two distinct components, INOVA insists that net taxable capital is measured in part by surplus earnings and it is thus exempt. In the alternative, INOVA contends it lacks a substantial nexus with this state to be subject to the franchise tax under the Commerce Clause. We reject all of INO-VA’s challenges and affirm the district court’s judgment denying the refund.

BACKGROUND

INOVA is a California corporation based in San Diego. It develops and manufactures products used in medical testing. INOVA has only one employee in Texas, who was hired in 1996. That employee is a salesperson who works an average of seven to ten days per month in Texas. His activities in Texas are limited to visiting existing and prospective customers, providing promotional materials, and demonstrating INOVA products. All orders are placed directly with INOVA in California and delivered via mail or common carrier.

In 1998, INOVA completed a business tax questionnaire at the Comptroller’s request. Based on the questionnaire, the Comptroller informed INOVA that it was required to pay the Texas franchise tax for the years following INOVA’s employment of a salesperson in Texas. INOVA initially refused to pay the tax but ultimately paid the taxes under protest when the Comptroller notified INOVA that it had forfeited its corporate privileges in Texas. INOVA submitted claims for refunds of franchise taxes paid for the years 1999 through 2003. The Comptroller denied these claims and INOVA filed suit in the district court. After a bench trial, the district court entered judgment in favor of the Comptroller. This appeal followed.

STATUTORY AND ADMINISTRATIVE PROVISIONS

Our resolution of INOVA’s issues involves the interaction of the Texas franchise tax, Public Law 86-272, and the Comptroller’s rules for assessing the franchise tax. Accordingly, it is useful to briefly review the relevant statutes and rules before discussing INOVA’s issues.

The franchise tax

Texas imposes a tax on corporations for the privilege of doing business in the state. See Tex. Tax Code Ann. § 171.001(a) (West Supp.2004-05); Anderson-Clayton Bros. Funeral Home, Inc. v. Strayhorn, 149 S.W.3d 166, 169 (Tex.App.-Austin 2004, pet. filed); Rylander v. Fisher Controls Int’l, Inc., 45 S.W.3d 291, 293 (Tex.App.-Austin 2001, no pet.). The tax is imposed annually on “each corporation that does business in the state or is chartered in the state.” Tex. Tax Code Ann. § 171.001(a). Before 1991, the franchise tax had been assessed solely on a corporation’s taxable capital. See General Dynamics Corp. v. Sharp, 919 S.W.2d 861, 863-64 (Tex.App.-Austin 1996, writ denied) (discussing history of franchise tax). The tax code was amended in 1991 to add taxation of a corporation’s taxable earned surplus or its taxable capital, whichever is higher under the statutory formula. See Act of Aug. 12, 1991, 72d Leg., 1st C.S., ch. 5, § 8.02,1991 Tex. Gen. Laws 134, 152. This amendment corrected an inequity of the prior law in which capital-intensive industries bore the brunt of the tax, while less capital-intensive service industries did not pay as much even when they generated large profits. See Anderson-Clayton Bros. Funeral Home, 149 S.W.3d at 169; General Dynamics Corp., 919 S.W.2d at 863. The tax on capital is set at the lower rate of .25 percent of a corporation’s net capital, while franchise tax on earnings is set at 4.5 percent of net earned surplus.

Public Law 86-272

Congress enacted Public Law 86-272 in 1959 in response to a United States Supreme Court decision that indicated that the federal constitution does not prohibit individual states from imposing an income tax on out-of-state corporations, even when their only business activity in the state is solicitation of purchases. See Wisconsin Dep’t of Revenue v. William Wrigley, Jr. Co., 505 U.S. 214, 220-21, 112 S.Ct. 2447, 120 L.Ed.2d 174 (1992) (discussing opinion in Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 452, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959)). Less than a year after the Northwestern States Portland Cement opinion, Public Law 86-272 was passed to create minimum standards for business activity required within a state before that state may impose , state income tax on an out-of-state corporation. See William Wrigley, Jr. Co., 505 U.S. at 223, 112 S.Ct. 2447. Specifically, the statute prohibits a state from imposing a net income tax if the foreign taxpayer’s only business activity in the state is the solicitation of orders. See 15 U.S.C. § 381(a). The statute defines net income tax as “any tax imposed on, or measured by, net income.” Id. § 383.

Administrative rules

The Comptroller agrees that it may not impose the net earned surplus component of the franchise tax on an out-of-state corporation whose only activity in the state is solicitation of orders. See 34 Tex. Admin. Code §§ 3.546, 3.554 (2005). However, for more than ten years, the Comptroller has held that Public Law 86-272 does not exempt an out-of-state corporation from the payment of franchise tax based on its net taxable capital. See id. § 3.546 (adopted 1992); id. § 3.554 (adopted 1994). Section 3.546 of the rules explains that “a corporation may be subject to the taxable capital component [of the franchise tax], but not subject to the earned surplus component, because of Public Law 86-272.” 34 Tex. Admin. Code § 3.546(b). Section 3.554 provides that:

If the only business activity within this state is the solicitation of orders for sales of tangible personal property ... then the corporation is not subject to the earned surplus component of the franchise tax, even if the corporation has obtained a certificate of authority. Only the sale of tangible personal property is afforded immunity under Public Law 86-272; therefore, the leasing, renting, licensing, or other disposition of tangible personal property, intangibles, or any other type of property is not immune from taxation by reason of Public Law 86-272. This subsection does not apply to a corporation chartered in Texas.

Id. § 3.554(b). Section 3.554 also contains detailed provisions defining solicitation and discussing what business activities will subject a corporation to the earned surplus component of the franchise tax. See id. § 3.554(c), (d), (e), and (f).

DISCUSSION

The parties do not dispute the underlying facts of the case; they agree that INOVA only engages in the solicitation of orders in Texas for the purposes of Public Law 86-272. The resolution of this case turns on questions of law that we review de novo. See Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). INOVA raises two issues contending that Public Law 86-272 prevents the Comptroller from imposing the taxable capital component of the state franchise tax. First, it contends that the franchise tax is a single integrated tax and may not be separated into components for the purpose of avoiding the application of Public Law 86-272. Second, INOVA contends that even if the taxable capital component stands alone, INOVA is exempted from that portion of the franchise tax as well because the capital component is imposed on, or measured by, net income. Finally, INOVA contends that it lacks a substantial nexus with Texas under the Commerce Clause to permit state taxation.

May the Comptroller impose franchise tax on net capital alone?

Although the practical effect of the present franchise tax is to assess the greater of a 4.5 percent tax on net taxable earned surplus or a .25 percent tax on net taxable capital, the legislature chose to express this tax in a more complicated formula. See Tex. Tax Code Ann. § 171.002(b). The tax is calculated by adding the tax on net taxable capital and the difference between the tax on net taxable earned surplus and the tax on net taxable capital. See id. INOVA contends in its first issue that the Comptroller may not ignore that formula and assess only the capital taxable component of the tax in order to avoid the application of Public Law 86-272.

This contention requires us to construe section 171.002 of the tax code to determine whether the legislature intended for the franchise tax to be imposed on net taxable capital when a corporation is exempt from paying tax on earned surplus under Public Law 86-272. Our primary goal in statutory construction is to ascertain and effectuate the legislature’s intent. Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.1999). When construing a statute, we ascertain the intent of the legislature from the plain meaning of the actual language used. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). Every word, phrase, clause, and sentence of a statute should be given effect. Strasburger Enters., Inc. v. TDGT Ltd. P’ship, 110 S.W.3d 566, 570 (Tex.App.-Austin 2003, no pet.). Additionally, the primary rule in statutory interpretation is that a court must give effect to legislative intent, considering the language of the statute, as well as its legislative history, the objective sought, and the consequences that would flow from alternative constructions. Croum Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex.2000) (op. on reh’g). Although we are not bound by the Comptroller’s interpretation, see Rylander v. Fisher Controls Int'l, Inc., 45 S.W.3d 291, 302 (Tex.App.-Austin 2001, no pet.), “[t]he consistent construction by an administrative agency charged with effectuating the policy of an enactment carries very considerable weight.” Sergeant Enters, v. Strayhom, 112 S.W.3d 241, 250-51 (Tex.App.-Austin 2003, no pet.) (citing Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 543 (1947)).

Viewing the Comptroller’s rules in the context of the language of the statute, we find that the Comptroller has not ignored the statutory formula for calculating the franchise tax. Wflien the legislature amended the franchise tax to add a tax based on income, it referred to that component as “taxable earned surplus.” See Anderson-Clayton Bros. Funeral Home, 149 S.W.3d at 169. We find the legislature’s use' of the term taxable to be significant. Inherent in the term is the premise that the earned surplus is indeed taxable. Here, the parties agree that Public Law 86-272 prohibits the imposition of a tax on INOVA’s earned surplus. Accordingly, INOVA’s earned surplus cannot be considered a taxable earned surplus under the statute.

The Comptroller’s rule recognizes this fact by stating that a corporation may be subject to the taxable capital component, but not the taxable earned surplus component in light of Public Law 86-272. See 84 Tex. Admin. Code § 3.554. The rule acknowledges that an out-of-state corporation that only solicits orders in Texas has no taxable earned surplus. Thus, applying Public Law 86-272 to the formula in section 171.002 of the tax code, an out-of-state corporation’s net taxable earned surplus will always be zero, and the tax on capital will always be greater. When the statutory formula is applied to taxable earned surplus, the franchise tax will always be based 'on the foreign corporation’s net taxable capital.

We agree that the franchise tax is one integrated tax. However, Public Law 86-272 exempts INOVA’s earned surplus from taxation. Because INOVA has no taxable earned surplus, the calculation of its franchise tax is based solely on net taxable capital. Thus, the Comptroller’s rule is not inconsistent with the statute. We uphold the Comptroller’s rule and overrule INOVA’s first issue.

Is the taxable capital component measured by net income?

INOVA contends in its second issue that the taxable capital component of the franchise tax is “imposed on, or measured by, net income,” and, therefore, may not be imposed under Public Law 86-272. INOVA points to the method of computing taxable capital that includes a corporation’s retained earnings as evidence that the tax is imposed on net income. INOVA also relies on case law discussing the Buck Act (4 U.S.C. § 106 (West 2005)) in which the franchise tax is considered an income tax. See General Dynamics Corp. v. Bullock, 547 S.W.2d 255 (Tex.1976).

INOVA first argues that net income is an integral part of the taxable capital component of the franchise tax. The taxable capital component of the franchise tax is the stated stock value of the corporation plus its surplus. Tex. Tax Code Ann. § 171.101(a)(1) (West 2002). Surplus is defined as the net assets of a corporation minus its stated capital. Id. § 171.109(a)(1) (West Supp.2004-05). INOVA points out that, under generally accepted accounting principles, the tax code’s definition of surplus is also equal to a corporation’s retained earnings. Retained earnings consist of a corporation’s current net income plus its net income over time. See 34 Tex. Admin. Code Ann. § 3.547(c)(6) (retained earnings represent accumulated gains and losses of corporation to date). INOVA asserts that, because net income is included in the calculation of a corporation’s taxable capital, the franchise tax is a “tax imposed on, or measured by net income” for the purposes of Public Law 86-272. However, other courts have rejected similar arguments.

In Gillette Co. v. Dept. of Treasury, the Michigan Court of Appeals considered whether Michigan’s single business tax was a net income tax for the purposes of Public Law 86-272. See 198 Mich.App. 303, 306-07, 497 N.W.2d 595 (Mich.Ct.App.1993). The calculation of Michigan’s single business tax begins with a corporation’s federal taxable income, see Gillette, 198 Mich.App. at 309-310, 497 N.W.2d 595, which is then adjusted by a number of factors to arrive at- the tax base. This base is then apportioned, subjected to other adjustments, and multiplied' by' the appropriate rate to arrive at the tax. Id.

Applying Public Law 86-272, the court concluded that Michigan’s single business tax, calculated in this manner, is not imposed on net income; rather it is imposed on the privilege of doing business. Id. at 308, 497 N.W.2d 595. Furthermore, the court held that the tax is not measured by net income because federal taxable income is only the starting point of the extensive adjustments required to compute the, tax. Id. at 810-11, 497 N.W.2d 595.

Similarly, a New Jersey court has held that the net worth component of New Jersey’s business tax is not “imposed on, or measured by, net income” under Public Law 86-272. See Clairol, Inc. v. Kingsley, 109 N.J.Super. 22, 262 A.2d 213, 216-17 (App.Div.1970). The New Jersey tax on net worth is measured by stockholder’s book equity value. See Roadway Express, Inc. v. Director, Division of Taxation, 50 N.J. 471, 236 A.2d 577, 580 (1967). One component of net worth or stockholder’s book equity value is a corporation’s retained earnings. See Black’s Law Dictionary 1131 (7th ed.2001) (stockholder’s equity is capital contributed plus retained earnings). By implication, the court rejected the argument that a tax that is based in part on retained earnings is a tax imposed on or measured by net income under Public Law 86-272.

The legislative history of Public Law 86-272 also supports the conclusion that the law does not exempt the taxable capital component of the Texas franchise tax. INOVA argues that the purpose of Public Law 86-272 was to respond to the “creation of sprawling diverse [state] revenue systems” and that a narrow interpretation of the law would frustrate that objective. See S.Rep. No. 86-658, at 4 (1959). A review of the House and Senate conference reports on the legislation confirms that Congress was concerned about the burden imposed on interstate commerce by the lack of uniformity in state taxation of businesses and the growing cost of compliance. See id.; H.R. Conf. Rep. No. 86-1103 (1959). But both reports also recognize the limited nature of Public Law 86-272 and express the need for further study of the problem. See S.Rep. No. 86-658, at 4; H.R. Conf. Rep. No. 86-1103. The language of Public Law 86-272 and the conference reports indicate that the legislation was intended only to govern the narrow category of state net income taxes. In fact, the language regarding “sprawling diverse revenue systems” cited by INOVA is contained in the section of the Senate report discussing the need for a committee to study the broader tax problem at a later date and does not state the specific purpose of Public Law 86-272. See S.Rep. No. 86-658, at 4-5.

Next, INOVA relies on the Texas Supreme Court’s discussion of another federal law, the Buck Act, to insist that the capital component of the franchise tax is a net income tax under Public Law 86-272. The Buck Act is a federal statute that allows a state to levy and collect state income taxes on persons residing in a federal area within the state. See 4 U.S.C. § 106(a). It defines an income tax as “any tax levied on, with respect to, or measured by net income, gross income, or gross receipts.” Id. § 110(c). In General Dynamics Corp. v. Bullock, the supreme court held that the Texas franchise tax is an income tax for the purposes of the Buck Act. See 547 S.W.2d 255, 259 (Tex.1976). The supreme court cited a Senate Finance Committee report explaining that Congress intended a broad definition for income tax under the Buck Act:

The Congressional intent is strongly stated in the bill’s Senate Report where it is stated that “[t]his definition [of income tax] ... must of necessity cover a broad field because of the great variations to be found between the different State laws. The intent of your committee in laying down such a broad definition was to include therein any State tax (whether known as a corporate-franchise tax, or business-privilege tax, or any other name) if it is levied on, with respect to, or measured by net income, gross income, or gross receipts.”

General Dynamics, 547 S.W.2d at 257 (quoting Report of the Senate Finance Committee of May 16, 1940 at page 5; 76th Congress, 3rd Session; Report No. 1625, Calendar No. 1692, as stated in Humble Oil & Refining Co. v. Calvert, 478 S.W.2d 926, 929 (Tex.1972)).

Unlike the Buck Act, which broadened the states’ authority to tax, Public Law 86-272 limits the states’ power to tax. Where a federal law explicitly supercedes a state’s powers, we construe the preemption provision more narrowly than an identical phrase in another context. Moore v. Brunswick Bowling & Billiards Corp., 889 S.W.2d 246, 249 (Tex.1994). When Congress enacted Public Law 86-272, the Buck Act had been on the books for nineteen years. Had Congress intended Public Law 86-272 to be as broad as the Buck Act, it would have used similar language. Instead, Congress omitted any reference to gross income or gross receipts and only extended an exemption to net income taxes. In light of the differences in language, history, and purpose of the two statutes, we cannot conclude that Congress intended Public Law 86-272 to cover as broad an array of state taxes as the Buck Act.

Thus, we read Public Law 86-272 to do exactly what it says. It exempts certain businesses from state taxes imposed on net income or measured by net income. Extending the exemption in Public Law 86-272 to taxes that only use net income as a factor in calculating another tax would be inconsistent with the stated intent of the law, the longstanding interpretation by the Comptroller, as well as the decisions of all of the courts that, have considered this issue. Because we interpret the definition of net income in Public Law 86-272 narrowly, we hold that the capital component of the franchise tax is not a net income tax under Public Law 86-272 and therefore INOVA is not exempt from paying franchise tax on its net taxable capital.

Commerce Clause

In its final issue, INOVA contends that the corporation is not subject to the state franchise tax because it lacks a substantial nexus with Texas. Those engaged in interstate commerce may be required to pay their fair share of state taxes consistent with the Commerce Clause so long as the tax (1) is applied to an activity with a substantial nexus with the taxing state, (2) is fairly apportioned, (3) does not discriminate against interstate commerce, and (4) is fairly related to the services provided by the state. Quill Corp. v. North Dakota, 504 U.S. 298, 314, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1993); Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076/ 51 L.Ed.2d 326 (1977). The Supreme Court has established and followed a bright-line rule in determining whether a taxing state has a sufficient nexus with the taxpayer to allow taxation. This bright-line rule states that physical presence in a state establishes a sufficient nexus to allow taxation under the Commerce Clause. See Quill, 504 U.S. at 314, 112 S.Ct. 1904; National Bellas Hess, Inc. v. Dept. of Revenue of Ill., 386 U.S. 753, 759-60, 87 S.Ct. 1389, 18 L.Ed.2d 505 (1967); Rylander v. Bandog Licensing Corp., 18 S.W.3d 296, 299 (Tex.App.-Austin 2000, pet. denied). This line draws a clear distinction between those companies that merely communicate with residents of the taxing state by way of mail or common carrier, as part of' a general interstate business, and those who maintain retail outlets, solicitors, or property within the state. See Quill, 504 U.S. at 307, 112 S.Ct. 1904; Bellas Hess, 386 U.S. at 758, 87 S.Ct. 1389. While the tax in question- in Quill was a use tax, this Court has applied this same bright-line test when determining whether the franchise tax is consistent with the Commerce Clause. Bandog Licensing, 18 S.W.3d at 299.

Although it is undisputed that INOVA employs a Texas resident who spends seven to ten days per month soliciting orders in the state, INOVA contends that this presence in the state is de minimis. INO-VA points to several cases in which no nexus was found after a company sent employees into a state. However, in each of these cases, the company’s presence was much more limited than INOVA’s. In In Re: Intercard, the Kansas Supreme Court held that, where an out-of-state corporation’s only presence in the state was sending technicians into the state to install equipment for a total of forty-four hours over one three-month period, that presence was not sufficient to establish a substantial nexus under the Commerce Clause. See 270 Kan. 346, 14 P.3d 1111, 1113 (2000). In Florida v. Share Inter’l, Inc., a Florida court of appeals held that the presence of employees for three days per year at a national chiropractic seminar held in Florida did not establish a substantial nexus with that state. See 667 So.2d 226, 230 (Fla.Dist.Ct.App.1995). These two cases involving short visits to a state are distinguishable from the present facts. Here, INOVA has a permanent sáles presence in Texas. INOVA’s employee lives in Texas, works from his home in Texas, and systematically solicits orders from new and existing customers in Texas. This sustained activity is clearly encompassed by the bright-line rule equating physical presence in the state to a substantial nexus. See Quill, 504 U.S. at 314, 112 S.Ct. 1904; Bellas Hess, 386 U.S. at 759-60, 87 S.Ct. 1389; Bandag Licensing, 18 S.W.3d at 299. Because INOVA has a physical presence in Texas, we hold that the Comptroller’s imposition of the franchise tax does not violate the Commerce Clause of the federal constitution. We overrule INO-VA’s final issue.

CONCLUSION

We hold that the imposition of the franchise tax on INOVA’s net taxable capital alone is consistent with the statute, that Public Law 86-272 does not exempt INO-VA from paying the state franchise tax on its taxable capital, and that INOVA has a substantial nexus with the state. Accordingly, we affirm the judgment of the district court.

      . A corporation's taxable capital or taxable earned surplus is apportioned to the state by dividing the corporation's gross receipts generated in Texas by the corporation’s total world-wide gross receipts. See Tex. Tax Code Ann. § 171.106 (West Supp.2004-05); General Dynamics, 919 S.W.2d at 863. This percentage is then multiplied by the total tax base to calculate the amount of tax base ap-portionable to Texas. General Dynamics, 919 S.W.2d at 863; see Tex. Tax Code Ann. § 171.106.

      . If the difference between net taxable earned surplus and net taxable capital is less than zero, the difference should be computed as zero. See Tex. Tax Code Ann. § 171.002(c) (West 2002). This provision ensures that the full tax on net taxable capital is collected when the tax on net taxable earned surplus is less than the tax on net taxable capital.

      . We have previously recognized that Public Law 86-272 has been incorporated in the Comptroller’s rules, see Rylander v. Fisher Controls Int’l, Inc., 45 S.W.3d 291, 297 (Tex. App.-Austin 2001, no pet.), but we have never considered a challenge to the Comptroller’s longstanding practice of assessing only the taxable capital component of the franchise tax against qualifying out-of-state corporations.

      . This calculation is also reflected by the placement of a zero in the entry for net taxable earned surplus on INOVA’s franchise tax reports.

      . The Supreme Court of Ohio also concluded that Michigan’s single business tax is not "imposed on, or measured by, net income" in determining whether an Ohio taxpayer was entitled to an income tax credit for its single ■ business tax paid to Michigan. See Ardire v. Tracy, Tax Comm’r, 77 Ohio St.3d 409, 674 N.E.2d 1155, 1156 (1997). The court cited the Gillette opinion extensively and adopted its reasoning. Id. at 1158.

      . The section of the Senate report discussing minority views emphasized the limited nature of Public Law 86-272:
      It should be borne in mind that the subject of the bill is a tax on net income or a tax measured by net income. We are not here considering licensing or franchise regulations or fees which might truly set up barriers to interstate commerce.
      S. Rep. No. 86-658, at 9 (1959).

      . We note that the concept of gross receipts or gross income is quite distinct from net income. Gross income or gross receipts do not take a corporation's expenses into account, while net income is defined as the "excess of all revenues and gains for a period over all expenses and losses of the period.” Black’s Law Dictionary 1040 (6th ed.1990). Thus, a corporation may have considerable gross receipts or gross income, yet have no net income.

      . INOVA discusses Comptroller's Decision No. 361590 (2000), STAR Document No. 200001136H, stating that the Comptroller based its ruling on the Commerce Clause. This decision does not mention the Commerce Clause; rather it is a determination that certain business activities within the state were de minimis and did not amount to more than solicitation for the purposes of Public Law 86-272. See id. at 13.

      . INOVA also cites Pledger v. Troll Book Clubs, where a company provided incentives for teachers to solicit orders on behalf of the company. See 316 Ark. 195, 871 S.W.2d 389, 390 (1994). However, this case is not relevant to our determination because it was decided based on the fact that the teachers were not agents of the company. See id. at 392-93.