author: JEFFREY V. BROWN, Justice. LESLIE B. YATES, Justice,

text:
    The STATE of Texas, Appellant, v. Lavetta Renee WILLIAMS, Appellee.
    Nos. 14-09-00353-CR, 14-09-00354-CR, 14-09-00355-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 6, 2010.

      Jeri Yenne, Sparks P. Veasey, III, An-gleton, for appellant.

      James Joseph Hanley, Houston, for ap-pellee.
    Panel consists of Justices YATES, BROWN, and BOYCE.
   MAJORITY OPINION

JEFFREY V. BROWN, Justice.

Lavetta Renee Williams was arrested on three counts of possession of a controlled substance, penalty group three less than twenty-eight grams. The arrest occurred after police discovered she was concealing prescription drugs in her bra. She filed a motion to suppress the evidence obtained in the search. After reviewing all the evidence during the hearing on the motion to suppress, the trial court granted Williams’s motion. We affirm.

I

At about 4:30 a.m. on July 29, 2008, Angleton police officer Tony Duncan pulled over a vehicle with a defective tail lamp. Four people were in the vehicle including Lavetta Renee Williams, who was seated in the rear seat behind the passenger. Officer Duncan testified that he had pulled over the same vehicle earlier that night in the same part of town. He stated that only Joseph Newman, the driver, was in the vehicle at the time of the first incident. During the first incident, Officer Duncan noticed a bottle of pills in the center console of the vehicle, but he let Newman “go with a warning.”

When Officer Duncan pulled over the vehicle the second time, he noted that the bottle of pills was missing. Officer Duncan also testified that when Newman pulled over, the front-seat passenger exited the vehicle and ran into a nearby convenience store. Officer Duncan arrested Newman for possession of a controlled substance after he discovered numerous prescription pills in his pocket during a pat-down search.

Officer Duncan testified that after he made the arrest, Newman told him that Williams had a steak knife, and she was threatening to stab the other passengers. During Newman’s arrest, Williams had stayed seated in the back seat of the vehicle, she did not make any sudden movements or gestures, and she never attempted to escape. Officer Duncan testified that he was familiar with Williams because she had been the subject of several narcotics complaints and had a reputation for having a violent temper.

After all the occupants were out of the vehicle, at least two other officers, including one female officer, arrived on the scene to assist Officer Duncan. Officer Duncan testified that he did not want to conduct a pat-down of Williams because she was a female. He stated that he asked Williams to “kind of reach underneath [her bra] and just pull it out a little bit and kind of shake it a little bit ... and maneuver it.” Because Williams was relatively well-endowed — “more than average” — Officer Duncan was concerned she may have concealed the steak knife in her bra. Williams “refused, cried, and said she did not want to pull out her bra.” Officer Duncan again asked Williams to shake out her bra. After the second request, Williams complied and numerous pills fell out of her bra. Officer Duncan arrested Williams for possession of a controlled substance. After she was arrested, the female officer on the scene conducted a pat-down of Williams.

Williams filed a motion to suppress the evidence of drugs in her bra, and after reviewing all the evidence at the hearing on the motion to suppress, the trial court granted the motion. The State’s appeal followed.

II

The State contends that the trial court erred in granting Williams’s motion to suppress the prescription pills that fell out of Williams’s bra after she maneuvered it. Specifically, the State argues that the search was reasonable under the circumstances, Williams consented to the search, and Officer Duncan’s request was less intrusive than a pat-down. Williams contends that the search exceeded the permissible scope of a pat-down, she did not voluntarily consent to the search, and Officer Duncan’s request was more intrusive than a pat-down.

We generally review a trial court’s decision to grant or deny a motion to suppress using an abuse-of-discretion standard. Swain v. State, 181 S.W.3d 359, 365 (Tex.Crim.App.2005). During the suppression hearing, the trial court is the exclusive trier of fact and judge of the witnesses’ credibility. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); Mason v. State, 116 S.W.3d 248, 256 (Tex.App.-Houston [14th Dist.] 2003, pet. ref d). An appellate court affords almost total deference to the trial court’s determination of historical facts supported by the record, especially when the trial court’s findings are based on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)). We afford the same amount of deference to a trial court’s ruling on “application of law and facts questions” or “mixed questions of law and fact” if the resolution turns on evaluating credibility and demeanor. Johnson, 68 S.W.3d at 652; Guzman, 955 S.W.2d at 89. We review de novo, however, those questions of mixed law and fact not turning on credibility or demeanor. Johnson, 68 S.W.3d at 653 (citing Guzman, 955 S.W.2d at 89). If the trial court’s ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, the reviewing court must sustain it upon review. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); Flores v. State, 172 S.W.3d 742, 748 (Tex.App.-Houston [14th Dist.] 2005, no pet.). This is true even if the trial court states the wrong reason for the correct decision. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App.2000).

A

The State argues that Officer Duncan did not violate Williams’s Fourth Amendment rights against unlawful searches and seizures because the officer’s actions were reasonable under the circumstances. Officer Duncan testified that he had a reasonable basis to believe Williams possessed a steak knife, and he was concerned for his safety. Based on this information, he requested that Williams pull her bra away from her body and maneuver it in lieu of conducting a pat-down. The State would have this court conclude that based on these facts Officer Duncan’s actions are permissible under Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny. We decline to do so.

The Fourth Amendment protects individuals from unlawful searches and seizures. U.S. Const, amend. IV. Both the U.S. Supreme Court and the Court of Criminal Appeals have held that a traffic stop is considered a Fourth Amendment seizure. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); see Davis v. State, 947 S.W.2d 240, 243-45 (Tex.Crim.App.1997). Because traffic stops are analogous to investigative detentions, they are analyzed under the two-prong test in Terry. Green v. State, 256 S.W.3d 456, 461 (Tex.App.-Waco 2008, no pet.) (citing Berkemer, 468 U.S. at 439, 104 S.Ct. 3138). During a valid traffic stop, the driver and all of his passengers are considered seized within the meaning of the Fourth Amendment. Brendlin v. California, 551 U.S. 249, 257-58, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). To be a valid traffic stop, the stop must be reasonable. Davis, 947 S.W.2d at 244; see U.S. Const, amend. IV. A detention is reasonable if: (1) the police officer’s actions were justified at the stop’s inception; and (2) the stop was reasonably related in scope to the circumstances that initially justified the stop. Terry, 392 U.S. at 19-20, 88 S.Ct. 1868; Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App.2004). Once a police officer makes a valid traffic stop and detains the suspect, the officer may further detain the suspect if he develops reasonable suspicion that another offense is being committed. Goudeau v. State, 209 S.W.3d 713, 719 (Tex.App.-Houston [14th Dist.] 2006, no pet.); see Davis, 947 S.W.2d at 244.

The State correctly argues that there may be reasonable circumstances that allow officers to search a suspect for weapons, but courts have not allowed an overly broad or unlimited search during a pat-down. See Balentine v. State, 71 S.W.3d 763, 770 (Tex.Crim.App.2002). A valid investigative detention can give a police officer the ability to pat-down or frisk the suspect for weapons. Baldwin v. State, 278 S.W.3d 367, 371 (Tex.Crim.App.2009). Police officers may conduct a limited search for weapons of the suspect’s outer clothing, even in the absence of probable cause, when an officer reasonably believes that the suspect is armed and dangerous. Balentine, 71 S.W.3d at 769; Carmouche v. State, 10 S.W.3d 323, 329 (Tex.Crim.App.2000); see Terry, 392 U.S. at 27, 88 S.Ct. 1868. Courts have emphasized, however, that the protective search is not related to seizing evidence or other non-weapon contraband. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (“The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.... ”); Balentine, 71 S.W.3d at 769. An officer is allowed to search a suspect for weapons only if he can point to specific and articulable facts which reasonably led him to conclude that the suspect might possess a weapon. Balentine, 71 S.W.3d at 769; Carmouche, 10 S.W.3d at 329. The officer’s belief that the suspect has a weapon must be “objectively reasonable in light of the circumstances.” Carmouche, 10 S.W.3d at 330. In other words, “[t]he officer need not be absolutely certain that an individual is armed; the issue is whether a reasonably prudent person would justifiably believe that he or others were in danger.” Balentine, 71 S.W.3d at 769. Courts have stressed, however, that the permissible scope of a protective search for weapons is extremely narrow. Spillman v. State, 824 S.W.2d 806, 809 (Tex.App.-Austin 1992, pet. ref'd) (discussing Supreme Court cases recognizing a balance between privacy interests of individuals and officer safety).

But courts have allowed officers to conduct more intrusive searches of suspects under certain situations. See Adams, 407 U.S. at 145, 147-48, 92 S.Ct. 1921; Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 11.48 (2d ed.), 11.50 (2d ed. & Supp. 2009-2010). In Adams v. Williams, a police officer approached the suspect’s vehicle and saw a gun in the suspect’s waistband. 407 U.S. at 144-45, 92 S.Ct. 1921. Instead of pulling the suspect out of the vehicle and conducting a pat-down, the officer reached into the vehicle and extracted the gun. Id. at 145, 92 S.Ct. 1921. Although the officer’s actions exceeded the scope of a pat-down, the Court held the officer’s actions were proper because of the surrounding circumstances. Id. at 149, 407 U.S. 143. First, the officer had received a tip that the suspect was carrying a gun in his waistband, so there was specific information that the suspect had a weapon and where it was concealed. Id. at 146, 92 S.Ct. 1921. Second, the suspect refused to exit the vehicle. Id. at 148, 92 S.Ct. 1921. Finally, because the suspect was in a vehicle in a seated position, an attempt to pat him down would have been dangerous and difficult. See id.; Dix & Dawson, § 11.48. The combination of the above facts justified why the officer did not need to perform a traditional pat-down.

In Minnesota v. Dickerson, the Supreme Court expanded Terry to allow officers to permissibly retrieve contraband that they immediately detected during a pat-down. 508 U.S. at 375-76, 113 S.Ct. 2130. When performing a pat-down, if an officer “feels an object whose contour or mass makes its identity immediately apparent there had been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.” Id. at 375, 113 S.Ct. 2130; Carmouche, 10 S.W.3d at 330. Therefore, the officer’s subsequent seizure of the object is valid. Carmouche, 10 S.W.3d at 330.

As in Adams, Officer Duncan obtained information that Williams may have a weapon, and he was understandably concerned for his safety. But unlike Adams, Officer Duncan did not refrain from conducting a pat-down because doing so would have been dangerous or difficult, or because Williams refused to exit the car, or because he had been told the weapon was hidden in her bra. Officer Duncan testified that Williams complied with his request to exit the car, and that he did not conduct a pat-down on Williams because she was a female.

Officer Duncan’s reluctance to perform a pat-down on a female provides insufficient justification for broadening the scope of the search, especially when a female officer was on the scene and immediately available to conduct the pat-down in his place. Having the female officer perform the pat-down would neither compromise officer safety nor expose Williams to an overly broad search. Besides, we are aware of no authority prohibiting a male officer from patting down a female suspect, nor has the State pointed to any such authority.

In its brief, the State maintains that our decision in Johnson v. State demonstrates that Officer Duncan’s actions were proper. See No. C14-92-00216-CR, 1992 WL 289330, at *1 (Tex.App.-Houston [14th Dist.] Oct. 15, 1992, no pet.) (mem. op., not designated for publication). In Johnson, police officers tried to execute a search warrant on a residence and the appellant fled. Id. When the appellant was apprehended, a female officer asked her to reach under her blouse and shake out her bra. Id. The appellant complied with the request, and drug paraphernalia fell out of her bra. Id. The issue in Johnson, however, was not whether the request was permissible, but whether the officer had reasonable, articulable facts that the appellant possessed a weapon. Id. at 648-51. Because the scope of the search was not an issue in Johnson, it is distinguishable and the State’s reliance on it is misplaced.

The State also compares aspects of Williams’s ease to the Court of Criminal Appeals’s conclusions in State v. Sheppard and Carmouche v. State. The State argues that when a weapon may be concealed on the suspect and an officer is reasonably concerned with his safety, then an officer can conduct a search. In both Sheppard and Carmouche, the court decided that an officer could lawfully search the suspect for weapons. State v. Sheppard, 271 S.W.3d 281, 288 (Tex.Crim.App.2008); Carmouche, 10 S.W.3d at 330-31. But the facts in Carmouche and Sheppard initially involved a police pat-down or frisk of the outer clothing of a suspect, not a search of the suspect’s undergarments. Sheppard, 271 S.W.3d at 284; Carmouche, 10 S.W.3d at 327. Only after the initial frisk or pat-down did the court allow an officer to try to extract a weapon from the suspect. See Sheppard, 271 S.W.3d at 288, 292; Carmouche, 10 S.W.3d at 330-31.

Here, the trial court concluded that Officer Duncan would have been justified in conducting a pat-down of Williams. The distinction between Sheppard and Car-mouche and the case at bar is that Officer Duncan did not conduct a Terry pat-down before employing more intrusive means of searching Williams. If a pat-down had been conducted, and- if a weapon or other contraband had been detected as a result, then either Officer Duncan or the female officer could have attempted to extract the item or could have conducted a more intrusive search.

Additionally, although Officer Duncan had been told that Williams had a knife, he was not told, nor was there any other indication, that Williams had hidden the knife in her bra. Furthermore, there is nothing to show that a pat-down would have been dangerous or ineffective. Officer Duncan stated that he did not want to pat-down a female, but the State has not cited any authority to show that he was therefore justified in conducting a more intrusive search. And the “more than average” size of Williams’s bust, as Officer Duncan described it, did not constitute a reasonable circumstance that would allow officers to conduct an overly broad search. See Balentine, 71 S.W.3d at 770. Because the State has not presented us with a situation justifying a search exceeding the scope of a pat-down, we cannot say the trial court abused its discretion in suppressing the evidence.

B

The State asserts that Williams voluntarily consented to Officer Duncan’s request to maneuver her bra. Courts have held that consent to search is one of the specific and “well-established exceptions to the constitutional requirements of both a warrant and probable cause.” Carmouche, 10 S.W.3d at 331; see Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Flores v. State, 172 S.W.3d 742, 749 (Tex.App.-Houston [14th Dist.] 2005, no pet.). The consent must be voluntary. Carmouche, 10 S.W.3d at 331; Flores, 172 S.W.3d at 749. The validity of consent is a question of fact that is determined from all of the circumstances. Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Carmouehe, 10 S.W.3d at 331. When an individual gives consent to search, the consent must “not be coerced, by explicit or implicit means, by implied threat or covert force.” Schneckloth, 412 U.S. at 228, 93 S.Ct. 2041; see also Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App.1991) (“The consent must be shown to be positive and unequivocal, and there must not be any duress or coercion.”). “Although the federal constitution only requires the State to prove the volun-tariness of the consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely given.” Camouche, 10 S.W.3d at 331; see Flores, 172 S.W.3d at 749.

Courts consider many factors in deciding if a suspect’s consent was given voluntarily. Flores, 172 S.W.3d at 749-50. These factors include: (1) whether the consenting person was in custody; (2) whether the suspect was arrested at gunpoint; (3) whether the suspect had the option of refusing consent; (4) the constitutional advice given to the suspect; (5) the length of detention; (6) the repetitiveness of the questioning; and (7) the use of physical punishment. Id. We also consider the suspect’s age, intelligence, and education. Flores, 172 S.W.3d at 750. Therefore, the examination of the totality of the circumstances should include all the circumstances before the search, the suspect’s reaction to pressure, and any other factor deemed relevant. Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App.2000).

When a suspect’s consent may be questionable, courts consider the above factors in deciding if consent was voluntary. Reasor, 12 S.W.3d at 818-19 (discussing that although the defendant was arrested at gunpoint, his consent to search his house was voluntary because he had received his statutory warnings two times, he signed a consent form, and he was repeatedly warned he had the right to remain silent); Carmouche, 10 S.W.3d at 332-33 (holding the appellant’s consent was not voluntary because four police officers backed him up against a car when they asked him to consent, he was never told he had the right to refuse consent, and officers had already searched the appellant during a Terry frisk); Flores, 172 S.W.3d at 750-52 (stating the court decided, after reviewing the totality of the circumstances, that the appellant’s consent was not voluntary because the appellant was never given his Miranda warnings, the appellant twice declined the officer’s request to search, the appellant was handcuffed and under arrest when he consented, the officers used coercive tactics to push the appellant to consent to the search, and the officers threatened to vacate the appellant’s mother and young son from the house during the search if the appellant did not consent). The number of officers present at the scene is significant in determining the validity of consent. Manzi v. State, 56 S.W.3d 710, 717 (Tex.App.-Houston [14th Dist.] 2001), aff'd, 88 S.W.3d 240 (Tex.Crim.App.2002). “The Court of Criminal Appeals has been critical of consent given in the face of numbers of armed officers.” Id. (citing Lowery v. State, 499 S.W.2d 160, 168 (Tex.Crim.App.1973)). Courts have considered the fact that the appellant initially refused to give consent; however, courts have also recognized the ability for a person to change his mind and later consent. Manzi, 56 S.W.3d at 718. Finally, courts have tried to balance the fact that a suspect was not informed he could refuse to consent with the premise that officers have no affirmative obligation to inform the suspect he may refuse to consent. Carmouche, 10 S.W.3d at 332-33; Manzi, 56 S.W.3d at 718-19.

The State cites to McAllister v. State, Champenois v. State, and Collins v. State for the proposition that because Williams complied with Officer Duncan’s request, the trial court should not have suppressed the evidence of drugs. See McAllister v. State, 34 S.W.3d 346, 350-351 (Tex.App.-Texarkana 2000, pet. refd); Champenois v. State, 874 S.W.2d 254, 258 (Tex-App.Houston [1st Dist.] 1994, pet. refd); Collins v. State, No. 14-06-00889-CR, 2007 WL 3287879, at *4 (Tex.App.-Houston [14th Dist.] Nov. 6, 2007, no pet.) (mem. op., not designated for publication). The State urges that it is permissible for officers to ask a suspect to remove an item of clothing, such as a shoe, if a suspect voluntarily consents. See Champenois, 874 S.W.2d at 258; Collins, 2007 WL 3287879, at *4. Although in Collins and Champe-nois the courts held that officers permissibly asked a suspect to remove a shoe, the circumstances surrounding those cases are factually different from the ease at bar. Champenois, 874 S.W.2d at 258; Collins, 2007 WL 3287879, at *4. In Collins and Champenois, the suspects never argued their consent was involuntary. Champe-nois, 874 S.W.2d at 258 (“Officer Stone asked [appellant] if he would consent to be searched. Appellant replied, ‘Sure, I consent to search’ ... [appellant] also admitted that he gave his assent.”); Collins, 2007 WL 3287879, at *4 (“Appellant neither asserts nor cites evidence suggesting that his removal of his shoes was anything other than consensual.... ”). Additionally, the appellant in McAllister also voluntarily consented. McAllister, 34 S.W.3d at 351. The police officer offered to give McAllis-ter a ride home after the officer had arrested the driver of the vehicle in which McAllister was a passenger. Id. The officer explained he needed to conduct a pat-down of McAllister before he entered the officer’s vehicle. Id. The court concluded that McAllister indicated his consent by throwing his hands in the air. Id.

Here, Williams physically and verbally indicated she did not want to comply with Officer Duncan’s request. In the findings of fact, the trial judge found that “Williams refused, began crying, and said she did not want to pull out her bra.” This finding demonstrates that Williams did not simply and readily consent like the suspects in Collins, Champenois, and McAllister.

Before Williams was searched, the trial court found she remained seated in the back of the vehicle, she did not make any sudden movements, and she did not attempt to escape. Before Officer Duncan even asked Williams to step out of the vehicle, the front-seat passenger had fled the vehicle, the other back-seat passenger was pulled out of the vehicle and patted down, and the driver was searched and arrested for possession of prescription pills. Williams witnessed all these events from the back seat of the vehicle. The trial court found that at least two other officers arrived on the scene to assist Officer Duncan, including one female officer. The officers arrived on the scene before Officer Duncan requested that Williams pull out her bra and maneuver it. There is neither a finding of fact nor testimony from Officer Duncan to show that he informed Williams she had the right to refuse to acquiesce to his request, or that he read Williams her constitutional rights. After Officer Duncan asked Williams to maneuver her bra, she “refused, began crying, and said she did not want to pull out her bra.” Officer Duncan asked Williams a second time before she complied with his request. Although Williams was not under arrest, held at gunpoint, or threatened with physical punishment, the State has not provided clear and convincing evidence that Williams consented voluntarily. Carmouche, 10 S.W.3d at 331. After examining the totality of the circumstances leading up to the search and the suspect’s reaction to the pressure of the situation, we conclude that Williams did not voluntarily consent to Officer Duncan’s request.

C

The State contends that even if we hold “an issue of search did not exist” or Williams’s consent was not voluntary, Officer Duncan’s request for Williams to maneuver her bra is still permissible because the request was less intrusive than a pat-down search. The State cites Bell v. Wolfish and McGee v. State to support its argument that law enforcement’s interest can outweigh the intrusiveness of the search. See Bell v. Wolfish, 441 U.S. 520, 560, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); McGee v. State, 105 S.W.3d 609, 616 (Tex.Crim.App.2003). In Bell, a prison guard was searching an inmate for contraband, and the search involved an intrusive visual body-cavity search. 441 U.S. at 558, 99 S.Ct. 1861. In McGee, an officer performed a search pursuant to a lawful arrest at a fire station, and the search was also an intrusive visual body-cavity search. 105 S.W.3d at 615. Although these cases discuss degrees of intrusion, the searches are body-cavity searches, which are significantly different from a Terry pat-down. Thus, the cases the State cites do not support its position. Accordingly, we overrule the State’s issue on appeal and affirm the trial court’s ruling.

For the foregoing reasons, we affirm the trial court’s judgment.

YATES, J., concurring.

LESLIE B. YATES, Justice,

concurring.

I agree with the majority’s conclusion that the trial court properly granted Williams’s motion to suppress. I write separately to provide a different analysis for the ultimate conclusion that the trial court was correct.

Because Officer Duncan searched Williams without a warrant, it was the State’s burden to prove that the search was reasonable under the circumstances. See Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005). When, as here, an officer has a reasonable suspicion that a suspect may be armed and dangerous, he is entitled to conduct a limited search for weapons to ensure the safety of the officer and those around. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Carmouche v. State, 10 S.W.3d 323, 329 (Tex.Crim.App.2000). This is an extremely narrow exception, and the search must “be strictly circumscribed by the exigencies which justify its initiation.” Terry, 392 U.S. at 26, 88 S.Ct. 1868; see also Balentine v. State, 71 S.W.3d 763, 769-70 (Tex.Crim.App.2002); Lippert v. State, 664 S.W.2d 712, 718 (Tex.Crim.App.1984) (citing Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)). The touchstone of any Terry analysis is reasonableness, and we must balance each case individually to determine whether the circumstances giving rise to the need to search justified the level of personal intrusion. See Michigan v. Long, 463 U.S. 1032, 1046, 1050-51, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); Carmouche, 10 S.W.3d at 329-30.

In this case, the trial court concluded that Officer Duncan exceeded the scope of a pat down for weapons. Although Terry involved a pat down of outer clothing and is the typical way of conducting a weapon search, such searches can be conducted in another manner if the circumstances justify. For example, if an officer has received specific information about the location of a possible weapon, either through a tip or from viewing a suspicious bulge, courts have allowed the officer to forgo a pat down and take actions such as (1) requesting a suspect to lift his shirt, (2) reaching into a suspect’s boots or waistband, and (3) requiring a suspect to open his mouth. Courts have also allowed weapon searches and seizures without a pat down first if the officer demonstrated that a pat down would be ineffective or dangerous, such as (1) if a suspect refused to get out of a car or (2) if the pat down would not have revealed sufficient information to allay the officer’s suspicion because the suspect’s clothing was overly bulky or the suspect’s boots were too hard. In all of these cases, the circumstances justified something other than a traditional pat down. Cf. Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (holding that reaching into pockets without first conducting a pat down search was improper under the circumstances).

The difficulty in making such an assessment of the search in this ease is the state of the record. The written record is unclear or silent regarding several critical items, including:

• Why did Officer Duncan think a pat down would have been ineffective? Officer Duncan testified that he was concerned that Williams might have had something concealed in her bra that might not have readily been felt during a typical pat down. He stated that Williams’s bust size was “above average,” but that does not explain why he thought she could have hidden a steak knife in her bra or that a pat down would not have revealed some indication of the knife, which could have justified additional searching. Although Officer Duncan may have been hesitant to pat down a woman’s bra area, he did not explain why a pat down would have been ineffective in this case had he done so, and the State has cited no authority to show that it is inherently unreasonable for a male officer to pat down a female suspect.
• Did Officer Duncan require Williams to reach under her dress to lift her bra, or did she lift her bra by grabbing it through her dress? The record merely states that she had to “reach underneath,” but it is unclear if she was reaching underneath her dress also or just her bra, and the parties disagree in their briefs regarding the interpretation of the record on this point.
• How much, if any, were Williams’s breasts or other body parts exposed during the search? The record is completely silent on this point. Though the State asserts in its brief that the search occurred in a place not observable by the public, it is undisputed that it occurred in a convenience store parking lot, and Officer Duncan testified in the hearing that Williams was not later subjected to a full strip search because “we’re right there in view of the public.”

The opinions and conclusions motivating police conduct must be objectively reasonable and supported by facts articulated in the record. See Torres v. State, 182 S.W.3d 899, 902-03 (Tex.Crim.App.2005); Ford, 158 S.W.3d at 492-94; Grimaldo v. State, 223 S.W.3d 429, 433-34 (Tex.App.Amarillo 2006, no pet.). When a record is undeveloped, either because the evidence is conelusory or because it is silent on critical matters, a court cannot conduct a proper assessment of the reasonableness of the officer’s actions. See Ford, 158 S.W.3d at 493; Paulea v. State, 278 S.W.3d 861, 865-66 (Tex.App.-Houston [14th Dist.] 2009, pet. refd); Grimaldo, 223 S.W.3d at 433-34. Based on this record, it is impossible to balance the degree of invasion against the officer’s need to search. Because it was the State’s burden to show the search was reasonable and this record does not have the information needed to assess the reasonableness of the situation, the State has not met its burden. See Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 494. For these reasons, I conclude the trial court did not err in granting Williams’s motion to suppress, and therefore I respectfully concur.

      . " ‘Reasonable suspicion’ exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person had engaged or (soon will be) engaging in criminal activity.” Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001) (citing Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997)).

      . "A pat-down search is substantially less intrusive than a standard search requiring probable cause.” O’Hara v. State, 27 S.W.3d 548, 550 (Tex.Crim.App.2000).

        . See, e.g., Sturchio v. State, 136 S.W.3d 21, 24 (Tex.App.-San Antonio 2002, no pet.) (explaining that an officer was able to conduct a weapon pat-down of a suspect because she knew from experience that prostitutes frequently carried small weapons like scissors or fingernail files).

      . In addition to its flawed comparison with Johnson, the State improperly tried to link evidence of flight to Williams. In its brief, the State argues that courts consider evidence of flight to decide if an officer had reasonable suspicion to detain and search a suspect. The record clearly indicates that it was the front-seat passenger that exited the vehicle after it stopped. Williams remained in the back seat of the vehicle while Officer Duncan arrested Newman, and she never tried to escape.

      . See United States v. Baker, 78 F.3d 135, 136, 138 (4th Cir.1996) (officer ordered suspect to lift shirt after observing triangular-shaped bulge near suspect's waistband); United States v. Hill, 545 F.2d 1191, 1192-93 (9th Cir.1976) (officer ordered suspect to lift shirt when officer saw a bulge at waistband and officer had report of bank robber in area who had displayed gun in waistband to bank tellers).

      . See Adams v. Williams, 407 U.S. 143, 146-48, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (officer who reached into waistband had just been given information that suspect had gun there); Garcia v. State, 649 S.W.2d 697, 697-98 (Tex.App.-San Antonio 1983, no pet.) (officer removed gun from boot after informant told officer suspect had gun in boot and officer observed a bulge there).

      . See Dixon v. State, 187 S.W.3d 767, 769-70 (Tex.App.-Amarillo 2006, no pet.) (officer required suspect to open mouth after officer saw suspect raise hands and then refused to face officer and spoke in mumbles through clenched teeth).

      . See Adams, 407 U.S. at 146-48, 92 S.Ct. 1921 (officer removed gun from suspect’s waistband after receiving tip that gun was there and suspect refused to get out of car to be patted down).

      . See Ex Parte Alabama, 678 So.2d 1049, 1051 (Ala.1996) (officer reached into jacket pockets when extremely bulky jacket made pat down ineffective); State v. Vasquez, 167 Ariz. 352, 807 P.2d 520, 524 (1991) (in banc) (officer reached into hard leather boots rather than patting them down because pat down would not have been effective); People v. Sorenson, 196 Ill.2d 425, 256 Ill.Dec. 836, 752 N.E.2d 1078, 1089 (2001) (pat down of steel-toed hiking boots would not have revealed weapon).

      . See Balentine, 71 S.W.3d at 769-70; Lippert, 664 S.W.2d at 721; McAllister v. State, 34 S.W.3d 346, 352-53 (Tex.App.-Texarkana 2000, pet. ref’d).

      . The State argues that because the trial court found a pat down would be justified and the search here was less intrusive than a pat down, the search should be upheld on that basis. Williams argues that Officer Duncan would not have been allowed to lift and shake her bra himself and that him requiring her to do so does not render the search unintrusive. All weapon searches of a person involve some level of personal intrusion. See Terry, 392 U.S. at 16-17, 88 S.Ct. 1868. Our task is to balance all the circumstances for reasonableness in each case. See Long, 463 U.S. at 1046, 1050-51, 103 S.Ct. 3469; Carmouche, 10 S.W.3d at 329-30. A comparison to a traditional pat down would be but one factor in our analysis, not an independent ground to justify the search.


source: Caselaw Access Project

author: Justice O’NEILL.

license: Public Domain

text:
    In re E.M.V., a child.
    No. 05-09-00306-CV.
    Court of Appeals of Texas, Dallas.
    May 7, 2010.

      Harold Glen Adams, McKinney, TX, for Appellant.
    Vincent Chuks Ndukwe, Law Office of MNC Vincent & Associates, for Appellee.
    Before Justices O’NEILL, FRANCIS, and MURPHY.
   OPINION

Opinion By

Justice O’NEILL.

This is a restricted appeal brought by appellant Jose Vargas. He contends the trial court erred by signing a default judgment granting a final divorce decree between him and his wife Eva, which divided property and determined custody of the couple’s child. We affirm-in part and reverse and remand in part.

Elements of a Restricted Appeal

As a threshold matter, we must determine whether appellant has satisfied the requirements of a restricted appeal. The four elements necessary for review of a restricted appeal are (1) notice filed within six months of the date of judgment; (2)by a party to a suit; (3) who did not participate at trial; and (4) the error complained of is apparent from the face of the record. Tex. RsApp. P. 26.1(c), 30; Osteen v. Osteen, 38 S.W.3d 809, 811-12 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Appellant satisfies the first element because he filed his Notice of Restricted Appeal on March 6, 2009, and the trial court signed the final divorce decree on January 12, 2009. He satisfies the second element because it is undisputed he was the respondent below.

Appellant also meets the third requirement of a restricted appeal because he did not participate in the hearing resulting in the default judgment. The supreme court’s test for participation is whether appellant participated in the decision-making event that resulted in judgment adjudicating his rights. Osteen, 38 S.W.3d at 812. Here, the divorce decree states “Respondent, JOSE VARGAS, although duly and properly cited, did not appear and wholly made default.”

Thus, the only remaining jurisdictional issue before us is whether error is apparent from the face of the record. For purposes of a restricted appeal, the face of the record consists of all the papers on file in the appeal, including the reporter’s record. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.1997). Therefore, we will review the reporter’s record for error regarding the sufficiency of the evidence.

Standard of Review

When reviewing a legal sufficiency point, an appellate court must consider only the evidence and inferences which tend to support the trial court’s findings, disregarding all contrary evidence and inferences. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998). Any evidence of probative force supporting a finding requires the reviewing court to uphold the finding. Osteen, 38 S.W.3d at 813.

Discussion

As a general rule, no evidence is required to support a default judgment. Id. at 814. But in the context of a divorce, the rule is narrower. Texas Family Code Annotated section 6.701 provides, “In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer.” Tex. Fam.Code Ann. § 6.701 (Vernon 2006). Therefore, even if the respondent fails to file an answer, the petitioner must adduce proof to support the material allegations in the petition. Osteen, 38 S.W.3d at 813; Considine v. Considine, 726 S.W.2d 253, 254 (Tex.App.-Austin 1987, no writ).

Here, the record is legally sufficient to support the trial court’s decision to restrict appellant’s visitation with EMV despite his allegation that the evidence “is eonclusory and does not give the Court any sufficient facts to deny possession.” Eva testified appellant is a violent man who has committed multiple acts of violence towards her in the previous two years. Her daughter also witnessed some of the violence. Further, she testified appellant agreed to restricted access to EMV with supervised visitation. We conclude this evidence is of sufficient probative force to uphold the trial court’s decision to restrict appellant’s access to EMV. Osteen, 38 S.W.3d at 813. We overrule appellant’s first issue.

In his second issue, he complains the evidence is legally insufficient to support the trial court’s division of community property. The trial court awarded Eva two houses in Dallas County and appellant a house and some land in Mexico. The divorce decree provides a legal description and physical address of the homes in Dallas County, but only describes appellant’s property as “the house and 3 lots in Mexico.”

Although the trial court is not required to divide the community estate equally, its division must - be equitable.

Sandone v. Miller-Sandone, 116 S.W.3d 204, 207 (Tex.App.-El Paso 2003, no pet.). The trial court’s discretion is not unlimited, and there must be some reasonable basis for unequal division. Id. Here, there is a complete absence of evidence to support the division of property because there is no evidence of the properties’ values. Id.; see also O’Neal v. O’Neal, 69 S.W.3d 347, 350 (Tex.App.-Eastland 2002, no pet.) (holding evidence was insufficient to support division of community property when the record contained no evidence of property value). Thus, the trial court had insufficient evidence to divide the property fairly and equitably, and this error is apparent from the face of the record. Consequently, the trial court abused its discretion in the division of property. We sustain appellant’s second issue.

Conclusion

The divorce decree is reversed as to the division of the residential community property and remanded to the trial court for consideration. In all other respects, the judgment is affirmed.


author: Justice MOSELEY.

text:
    Nancy D. McCLELLAN, Appellant, v. HICA EDUCATION LOAN CORPORATION, acting by and through its Servicing Agent, SALLIE MAE, INC., Appellee.
    No. 05-08-01549-CV.
    Court of Appeals of Texas, Dallas.
    May 10, 2010.

      Jack B. Peacock, Jr., D.G. Gagnon, Cynthia Kay Shanklin, Gagnon & Peacock & Shanklin, P.C., for Appellant.
    F. Scott Flow, Flow Law Firm, P.L.L.C., Amarillo, TX, for Appellee.
    Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion By

Justice MOSELEY.

HICA Education Loan Corporation, acting by and through its servicing agent, Sallie Mae, Inc., sued Nancy D. McClellan for breach of contract. McClellan was served with process but did not answer. The trial court granted a default judgment in HICA’s favor. In a single issue, McClellan contends the trial court erred in denying her second motion for new trial. For the reasons set forth below, we conclude the trial court’s order denying the second motion for new trial is void. Therefore, we dismiss this appeal for lack of jurisdiction.

BACKGROUND

The trial court signed the judgment on August 6, 2008, awarding HICA damages, attorney’s fees, additional appellate attorney’s fees, costs, and pre- and post-judgment interest. Acting pro se, McClellan filed a motion for new trial on August 22, 2008. Without elaboration or support, she asserted merely that she received no notice of trial, she had a meritorious defense, and the granting of a new trial would not injure HICA. The trial court denied that motion by written order on September 4, 2008.

On September 5, 2008, McClellan, represented by counsel, filed a second motion for new trial, supported by her affidavit, setting forth the requirements of Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 392-93, 133 S.W.2d 124, 126 (1939), and arguing she met those requirements. On September 23, 2008, McClellan moved for leave to file the second motion for new trial, explaining that counsel was unaware of the first motion, which did not allege the Craddock factors. No written ruling on this motion for leave to file appears in the record. The trial court denied the second motion for new trial by written order on October 8, 2008. No other postjudgment motions were filed. This appeal followed.

JURISDICTION

Rule of civil procedure 306a(l) provides that the periods within which parties may file various postjudgment motions and trial courts may exercise their plenary jurisdiction all run from the date the judgment is signed. Tex.R. Civ. P. 306a(l); Abilene Diagnostic Clinic v. Downing, 233 S.W.3d 532, 534 (Tex.App.-Eastland 2007, pet. denied). A motion for new trial “shall be filed prior to or within thirty days after the judgment ... is signed.” Tex.R. Civ. P. 329b(a). Once extended by a timely filed motion for new trial, the trial court’s plenary power extends until thirty days after the motion is overruled, whether by written order or by operation of law. See Tex.R. Civ. P. 329b(e); Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex.1993) (orig.proceeding) (per curiam). An amended motion for new trial may be filed without leave of court when: (1) no preceding motion for new trial has been overruled, and (2) it is filed within thirty days of judgment. In re Brookshire Grocery Co., 250 5.W.3d 66, 69 (Tex.2008) (orig. proceeding) (citing Tex.R. Civ. P. 329b(b)). Thus, an amended new-trial motion is timely filed only before the trial court overrules a pri- or one. Id. An amended new-trial motion filed afterwards: (1) need not be considered by the trial court, and (2) does not extend the trial court’s plenary power. Id. Judicial action taken after the trial court’s plenary jurisdiction over a cause has expired is a nullity, and an appeal based upon a void judgment should be dismissed for lack of jurisdiction. State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex.1995) (per curiam) (citing Tex.R. Civ. P. 329b(d)).

DISCUSSION

Here, the judgment was signed August 6, 2008, extending the trial court’s plenary power to September 5, 2008. McClellan’s first motion for new trial was timely filed on August 22, 2008. See Tex.R. Crv. P. 329b(a). The trial court denied it on September 4, 2008, extending the trial court’s plenary power to October 6, 2008. See Tex.R. Civ. P. 329b(e). Because McClellan’s second motion was filed — on September 5, 2008 — after the trial court overruled her first motion, the second motion was not timely filed as an amended motion and did not extend the trial court’s plenary power. See In re Brookshire Grocery Co., 250 S.W.3d at 69. McClellan’s second motion was denied by an order signed on October 8, 2008, which was after the trial court’s plenary power expired. See id. Accordingly, that order was void. See State ex rel. Latty, 907 S.W.2d at 486.

McClellan challenges only the denial of her second motion for new trial. Because the order appealed from is void, we dismiss this appeal for lack of jurisdiction. See id.

      . The thirtieth day was Saturday, October 4. However, pursuant to rule of civil procedure 4, in this case the trial court’s plenary power expired on Monday, October 6, 2008, which was the first day after the thirtieth day that was not a Saturday, Sunday, or legal holiday. See Tex.R. Civ. P. 4.


author: WILLIAM J. BOYCE, Justice.

text:
    Melinda R. BUSCH, Appellant, v. HUDSON & KEYSE, LLC, Appellee.
    No. 14-09-00009-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 11, 2010.

      Neal D. Cannon, Jr., Houston, for appellant.
    Keith Wier, Houston, for appellee.
    Panel consists of Justices FROST, BOYCE, and SULLIVAN.
   OPINION

WILLIAM J. BOYCE, Justice.

Appellant Melinda R. Busch challenges the trial court’s judgment in favor of ap-pellee Hudson & Keyse, LLC. Hudson & Keyse sued Busch to recover credit card debt. Busch contends that the trial court erred in (1) issuing untimely findings of fact and conclusions of law; (2) granting judgment for Hudson & Keyse because Hudson & Keyse is not entitled to recover on any of its causes of action; and (3) awarding Hudson & Keyse attorney’s fees. We affirm.

Background

Discover issued a Discover Card to Busch in 1996. Busch made purchases with the credit card and made payments on the account. Busch subsequently defaulted on the account in the amount of $9,779.61, and Discover sold the account to Vision Nevada, Inc. Vision Nevada sold Busch’s account to Hudson & Keyse.

Hudson & Keyse filed suit on August 20, 2007, alleging causes of action for account stated, open account, and breach of contract, and seeking to recover the principal amount of $9,779.61, plus interest totaling $4,656.77, costs, and attorney’s fees. Busch filed her “Second Amended Answer, Counterclaim and Request for Disclosures” on July 7, 2008, asserting various defenses and counterclaims for alleged violations of the Fair Debt Collection Practices Act and Texas Debt Collection Act.

After a bench trial, the trial court signed a final judgment in favor of Hudson & Keyse and a take-nothing judgment on Busch’s counterclaims. The final judgment awarded Hudson & Keyse $14,436.38, plus post-judgment interest and attorney’s fees. Busch timely requested findings of fact and conclusions of law on October 23, 2008. When the trial court did not file its findings of fact and conclusions of law by November 12, 2008, Busch filed a notice of past due findings of fact and conclusions of law on November 20, 2008, making the findings and conclusions due December 2, 2008.

The trial court filed its findings and conclusions on December 31, 2008. In its findings of fact, the trial court found that (1) Busch had a credit card account with Discover; (2) Hudson & Keyse “is the current holder and legal owner of [Busch’s] Discover account;” (3) Busch made purchases and payments on the account; (4) Hudson & Keyse proved the contractual terms of the agreement between Discover and Busch at trial; (5) Hudson & Keyse proved the balance due on the account was $14,436.38; and (6) Busch offered no proof supporting her counterclaims or affirmative defenses. In its conclusions of law, the trial court concluded (1) Hudson & Keyse offered sufficient proof to establish (a) that it is the rightful owner of Busch’s Discover Card account, (b) the terms of the agreement between Busch and Discover, and (c) that Busch failed to pay the amount due, which was $14,436.38; (2) Hudson & Keyse is entitled to judgment in the amount of $14,436.38, plus attorney’s fees in the amount of $15,000; and (3) Busch failed to provide any credible evidence supporting her counterclaims or affirmative defenses. Busch appeals from the trial court’s judgment.

Analysis

Busch presents eight issues on appeal. First, Busch contends that “[t]he trial court erred in filing findings of fact and conclusions of law more than forty days after the filing of the request for findings and conclusions by [Busch].” In her second issue, Busch argues that the evidence is legally insufficient to support the trial court’s judgment on Hudson & Keyse’s breach of contract claim. In issues three through five, Busch challenges the legal sufficiency of the evidence regarding finance charges, late fees, and over-limit fees. In her sixth issue, Busch contends that “the trial court erred in granting judgment for [Hudson & Keyse] based on open account or account stated because such causes of action are not available where the underlying debt arises from a credit card account.” In her seventh issue, Busch argues that the trial court erred in granting judgment for Hudson & Keyse. Lastly, in her eighth issue, Busch contends that the trial court erred in awarding Hudson & Keyse attorney’s fees.

I. Findings of Fact and Conclusions of Law

In her first issue, Busch argues that we cannot consider the trial court’s findings of fact or conclusions of law for any purpose because they were filed untimely. We disagree.

If proper presentation of a case on appeal is prevented by a trial court’s failure to make requested findings of fact and conclusions of law, the proper remedy is to abate the appeal and direct the trial court to make findings and conclusions pursuant to Texas Rule of Appellate Procedure 44.4(b). Acad. Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 739 n. 1 (Tex.App.-Houston [14th Dist.] 2000, no pet.). In this case, no purpose would be served by abatement because the trial court corrected its failure to act by filing findings of fact and conclusions of law on December 31, 2008. We can consider the late-filed findings and conclusions on appeal. See In re Gillespie, 124 S.W.3d 699, 703 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding) (en banc) (“Thus, even if a trial court’s plenary power has expired, the trial court is not prevented from entering properly requested findings and conclusions.”). Busch was not prejudiced by the trial court’s delay because the findings of fact and conclusions of law were on file almost three months before she filed her original appellate brief.

We overrule Busch’s first issue.

II. Sufficiency of the Evidence

Busch argues that the trial court erred in granting judgment for Hudson & Keyse because Hudson & Keyse is not entitled to judgment based on any of its causes of action—account stated, open account, or breach of contract.

We must affirm if the trial court’s judgment is supported by any of the theories relied upon. See Boyce Iron Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex.1988); Durban v. Guajardo, 79 S.W.3d 198, 207 (Tex.App.-Dallas 2002, no pet.). We turn first to Hudson & Keyse’s account stated cause of action.

In her sixth and seventh issues, Busch argues that the account stated cause of action does not apply to the collection of credit card accounts. We disagree. We have previously addressed this issue and held that account stated is a proper cause of action for a credit card collection suit. See Jaramillo v. Portfolio Acquisitions, LLC, No. 14-08-00939-CV, 2010 WL 1197669, at *7 (Tex.App.-Houston [14th Dist.] Mar. 30, 2010, no pet. h.) (mem. op.); Butler v. Hudson & Keyse, L.L.C., No. 14-07-00534-CV, 2009 WL 402329, at *3 (Tex.App.-Houston [14th Dist.] Feb. 19, 2009, no pet.) (mem. op.). Opinions from other courts also so hold. See McFarland v. Citibank (S.D.), N.A., 293 S.W.3d 759, 764 (Tex.App.-Waco 2009, no pet.); Dulong v. Citibank (S.D.), N.A, 261 S.W.3d 890, 893 (Tex.App.-Dallas 2008, no pet.); Tully v. Citibank (S.D.), N.A, 173 S.W.3d 212, 216 (Tex.App.-Texarkana 2005, no pet.).

In her third, fourth, and fifth issues, Busch argues that the evidence is legally insufficient to support the trial court’s award of finance charges, late fees, and over-limit fees. In reviewing a trial court’s findings of fact for legal sufficiency, we apply the same standards that we apply in reviewing jury findings. Ulmer v. Ulmer, 130 S.W.3d 294, 299 (Tex.App.Houston [14th Dist.] 2004, no pet.) (en banc). Legal insufficiency challenges may be sustained only when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005) (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence Points of Error,” 38 Tex. L. Rev. 361, 362-63 (I960)).

We must consider evidence in the light most favorable to the findings and indulge every reasonable inference that would support them. City of Keller, 168 S.W.3d at 822. If the evidence allows only one inference, neither the fact finder nor the reviewing court may disregard that evidence. Id. “The traditional scope of review does not disregard contrary evidence in every no evidence review if there is no favorable evidence (situation (a) above), or if contrary evidence renders supporting evidence incompetent (situation (b) above) or conclusively establishes the opposite (situation (d) above).” Id. at 810-11. If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then the fact finder must be allowed to do so. Id. at 822. Accordingly, the ultimate test for legal sufficiency always must focus on whether the evidence would enable a reasonable and fair-minded fact finder to reach the judgment under review. Id. at 827. Legal sufficiency review in the proper light must credit favorable evidence if a reasonable fact finder could do so, and must disregard contrary evidence unless a reasonable fact finder could not do so. Id. The reviewing court cannot substitute its judgment for that of the fact finder if the evidence falls within this zone of reasonable disagreement. Id. at 822.

We review a trial court’s conclusions of law de novo. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). If we determine that the trial court made an erroneous conclusion of law, we will not reverse if the trial court rendered the proper judgment. See id. We uphold conclusions of law if the judgment can be sustained on any legal theory supported by the evidence. Id.

A party is entitled to relief under the common law cause of action for account stated when (1) transactions between the parties give rise to indebtedness of one to the other; (2) an agreement, express or implied, between the parties fixes an amount due; and (3) the one to be charged makes a promise, express or implied, to pay the indebtedness. Dulong, 261 S.W.3d at 893; Butler, 2009 WL 402329, at *2. Because an agreement on which an account stated claim is based can be express or implied, a creditor need not produce a written contract to establish the agreement between the parties; an implied agreement can arise from the acts and conduct of the parties. See McFarland, 293 S.W.3d at 763.

Hudson & Keyse submitted billing statements from September 2001 until November 2003. There is no evidence to suggest the statements were not received. The statements reflect that charges and payments were made on the account. The statements also reflect that interest was charged against the account at varying rates, and late fees and over-limit fees were periodically assessed against Busch. There is no evidence Busch ever objected to or disputed any charges or fees.

Timothy Elder, Hudson & Keyse’s Dallas office manager, testified that Hudson <& Keyse was “seeking to recover the sum of $9,779.61, plus interest totaling [$]4,656.77” based on Busch’s use of the Discover credit card. Nancy Quere, Hudson & Keyse’s legal account manager, stated in her affidavit that “there is justly an amount due and owing ... by [Busch] to [Hudson & Keyse] ... amounting to $9,779.61, plus interest totaling $4,656.77, beginning from OCT 31 2003 through JUN 20, 2001....” Based on Busch’s use of the credit card, we may reasonably infer that Busch impliedly agreed to pay a fixed amount equal to the purchases she made, plus interest and fees. See McFarland, 293 S.W.3d at 763; Dulong, 261 S.W.3d at 894.

Viewing the evidence in the light most favorable to the finding in the trial court, we hold that the evidence is legally sufficient to support the trial court’s award of finance charges, late fees, and over-limit fees based on Hudson & Keyse’s account stated claim. See City of Keller, 168 S.W.3d at 822. Accordingly, the trial court did not err in granting judgment for Hudson & Keyse based on an account stated cause of action. See McFarland, 293 S.W.3d at 764.

We overrule Busch’s third, fourth, fifth, sixth, and seventh issues.

III. Attorney’s Fees

In her eighth issue, Busch challenges the trial court’s award of attorney’s fees to Hudson & Keyse under Chapter 38 of the Texas Civil Practice and Remedies Code.

Texas Civil Practice and Remedies Code section 38.001(8) authorizes a prevailing party in a claim based on an oral or written contract to recover attorney’s fees. Tex. Civ. Prac. & RermCode Ann. § 38.001(8) (Vernon 2008). Hudson & Keyse can recover attorney’s fees under Chapter 38 based upon an account stated claim. See Budzyn v. Citibank (S.D.), N.A., No. 01-08-00211-CV, 2010 WL 1240765, at *6 (Tex.App.-Houston [1st Dist.] Mar. 25, 2010, no pet. h.); see also Butler, 2009 WL 402329, at *4 (affirming attorney’s fees award based on account stated cause of action).

Under Chapter 38, the prevailing party must be represented by an attorney and must present the claim to the opposing party or to a duly authorized agent of the opposing party. Tex. Civ. Prac. & RermCode Ann. § 38.002 (Vernon 2008). If payment for the just amount owned is not tendered before the expiration of the 30th day after the claim is presented, the prevailing party may recover attorney’s fees. Id. Presentment of the claim is required to provide the other party with an opportunity to pay the claim before incurring an obligation for attorney’s fees. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 818 (Tex.2006). No particular form of presentment is required. France v. Am. Indem. Co., 648 S.W.2d 283, 286 (Tex.1983). All that is necessary is that a party show that its assertion of a debt or claim and a request for compliance was made to the opposing party, and the opposing party refused to pay the claim. Standard Constructors, Inc. v. Chevron Chem. Co., Inc., 101 S.W.3d 619, 627 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). It is the claimant’s burden to plead and prove pi'esentment. See Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex.1983).

Busch argues that Hudson & Keyse failed to prove that it “presented” its claim to Busch as required by Chapter 38. At trial, Hudson & Keyse offered into evidence Busch’s responses to its Request for Admissions. These were admitted without objection. Request 16 reads, “Plaintiff made demand on Defendant(s) before filing suit, for payment of the outstanding balance due at that time.” Busch responded, “Admit.” Request 17 reads, “Defendant(s) received a demand letter from Plaintiff (or Plaintiffs predecessor or attorneys) for payment on the account.” Busch responded, “Admit that Defendant received a demand from Plaintiff.” We hold that Busch’s responses to Hudson & Keyse’s Requests for Admissions are sufficient to establish that Hudson & Keyse “presented” its claim to Busch as required by Chapter 38. Therefore, the trial court did not err in granting Hudson & Keyse attorney’s fees.

We overrule Busch’s eighth issue.

Conclusion

We affirm the trial court’s judgment based on Hudson & Keyse’s account stated cause of action.

      . Any party may request findings of fact and conclusions of law within 20 days after the judgment is signed. Tex.R. Civ. P. 296. In this case, the trial court signed its judgment on October 15, 2008.

      . If the trial court does not file its findings of fact and conclusions of law within 20 days after a timely request, the requesting party shall file a "Notice of Past Due Findings of Fact and Conclusions of Law” within thirty days after filing the original request. Tex.R. Civ. P. 297. The trial court then has 40 days from the date the original request was filed to file its findings of fact and conclusions of law. Id.

      . Busch does not challenge the portion of the trial court’s judgment addressing her counterclaims. Therefore, we do not address her counterclaims on appeal.

      . Because we hold that the trial court did not err in granting judgment for Hudson & Keyse based on Hudson & Keyse’s account stated cause of action, we need not address appellants arguments regarding Hudson & Keyse's open account or breach of contract causes of action.


author: Justice LANG-MIERS.

text:
    The STATE of Texas for the Best Interest and Protection of J.W.
    No. 05-09-01253-CV.
    Court of Appeals of Texas, Dallas.
    May 12, 2010.

      Deborah Farris, Dallas, TX, for Appellant.
    Craig Watkins, Dallas County District Attorney, Dallas, TX, for Appellee.
    Before Justices RICHTER, LANG-MIERS, and MYERS.
   OPINION

Opinion By

Justice LANG-MIERS.

J.W. appeals the trial court’s judgment granting the State’s application for court-ordered temporary mental health services. J.W. argues that the evidence is insufficient to support the trial court’s findings that: (1) she was likely to cause serious harm to herself, and (2) she was deteriorating in her ability to function independently. We conclude that the evidence is legally insufficient to support the trial court’s judgment. We reverse the trial court’s judgment and render judgment denying the State’s application for court-ordered temporary mental health services.

Factual Background

On September 8, 2009, J.W.’s father filed an application for mental illness emergency detention, describing J.W.’s “specific recent behavior, overt acts” as follows: “patient was initially ill & diagnosed 3 yrs. ago and since receiving one month’s treatment has refused voluntarily to seek treatment, hasn’t been able to work, has no insurance, but has two health issues.” The application further identifies J.W.’s health issues as bulemia and a thyroid disorder. The application also indicates that J.W. evidences a substantial risk of serious harm to herself and others because she is “not taking meds,” “wandering alone,” and “threatening family.”

After a judge issued a warrant for her apprehension, J.W. was involuntarily admitted to Green Oaks Hospital on September 10, 2009. On September 11, 2009, the State filed an application for court-ordered temporary mental health services, along with a physician’s certificate of medical examination for mental illness, which was completed and signed by Aditya Sharma, M.D. Dr. Sharma’s certificate lists J.W.’s diagnosis as Paranoid Schizophrenia and states that Dr. Sharma is of the opinion that J.W. is (1) likely to cause serious harm to herself and others, (2) suffering severe and abnormal mental, emotional or physical distress, (3) deteriorating in her ability to function independently, and (4) unable to make rational and informed decisions about whether to submit to treatment. Under the heading “objective reasons, observed behaviors, of why the ‘risk of harm to self or others,’ ” the certificate states: “Very Disorganized, paranoid!,] aggressive toward family,” “wandering in dangerous areas,” and “vomitus all over her apartment — not able to care for herself due to psychosis.” The certificate describes J.W.’s mental status as “disorganized/fragmented thoughts,” “delusions— persecutory/paranoid,” and “illogical.”

J.W. was later transferred to Terrell State Hospital and evaluated by Margaret Weidow, M.D. on September 28, 2009. Dr. Weidow’s certificate of medical examination for mental illness describes the following acts committed by J.W.:

a. ARGUES [WITH] STAFF [ABOUT] WHY THEY QUESTION HER
b. DEMANDED [TREATMENT] FOR GOITER & THEN REFUSED [TREATMENT]
c. REFUSED VISIT [WITH] FAMILY & WON’T ALLOW U.S. TO TELL THEM ANYTHING

The certificate describes J.W.’s mental status as follows:

a. PARANOID BEHAVIOR
b. PARANOID DELUSIONS
c. DENIES [SUICIDAL IDEATION]/[HOMICIDAL IDEATION]
d. POOR JUDGMENT, NO INSIGHT

The trial court held a hearing on the State’s application for temporary mental health services on September 24, 2009. At that hearing, Dr. Weidow testified that J.W. was likely to cause serious harm to herself. When asked to explain the basis for her opinion, Dr. Weidow responded,

The patient doesn’t accept that she has a mental illness and, as a result, is extremely paranoid and is disorganized and puts herself in dangerous situations. She described to me yesterday that she has a studio here and, she said, — I’m trying to remember the exact words she used. What I interpreted as an area that’s not too safe. And she says she’s been broken into. She had a man come urinate next to her car. I see that as putting herself in dangerous positions where people could injure her.

Dr. Weidow also testified that J.W.’s family applied for a mental illness warrant because “[t]hey were concerned about what they saw as her deterioration.” According to Dr. Weidow, the family’s concern arose after J.W. got in “a struggle” with her aunt that involved pushing and shoving. J.W.’s family also learned that she was being evicted from her apartment, which was “in real disarray,” with “vomit in various containers around the apartment.” Dr. Weidow also testified that after J.W. was transferred from Green Oaks to Terrell, J.W. was very isolated and irritable, but was not violent. J.W. complained of a thyroid problem, but the results from her lab work were normal and she refused to allow the hospital to perform a scan.

During cross-examination, Dr. Weidow testified that J.W. has “at least a two-year history” of paranoid schizophrenia and refuses to take any medication. J.W. would not give consent to allow officials at the hospital to talk with her family because “[s]he feels her family is plotting against her in order to get control of her finances.” Dr. Weidow testified that J.W. was not a candidate for out-patient treatment “because she refuses to accept that there is a problem or that she needs help.”

J.W.’s father, L.W., testified at the hearing that J.W. is mentally ill and cannot take care of herself. When L.W. went to J.W.’s apartment to pick her up, he found “[l]ittle bitty pieces of trash” all over the floor, and no furniture. According to L.W., J.W. is bulimic and he thinks there were containers of vomit in her apartment. There were pins stuck in the floor because J.W. was “trying to make trinkets to sell.”

J.W.’s sister, K.W., testified at the hearing that she believed J.W. needed to be committed because “she’s been having these symptoms for several years now, about two and a half or three years.” According to K.W., J.W. is paranoid and delusional. J.W. thought someone stole her phone out of her car and then put it back. J.W. took a suitcase with her to job interviews because she was afraid that someone was going to steal her documents. K.W. also testified that J.W. “doesn’t feel like she has a problem or a mental illness” and refuses to take her medicine.

J.W. also testified at the hearing. She testified that she has a masters degree in fine arts from the University of Houston. She acknowledged that she elected to go to a hospital in Alabama in 2007 and was diagnosed at that time with “psychosis NOS.” She testified that the bag she took to a job was a roller bag like a lot of students and professionals use. J.W. was not asked about the incident with her aunt. When asked whether she had cups of vomit in her apartment, J.W. responded, “There was one cup of vomit when they came and bombarded me and I threw up.” And when asked whether she feels that she currently has a mental illness, J.W. responded, “No. I feel like I’m shaken by the environmental things that have happened, and I think that’s very normal.” She testified that she was diagnosed with a goiter. She said she refused to allow hospital officials to scan her because she was already tested at another hospital and “[a]ll they have to do is send out for the records.” When asked whether she would go to out-patient treatment if ordered to do so, J.W. essentially explained that she is not willing to listen to doctors whom she believes “barely assess their patients” and make “broad, politician-like statements” that are unrelated to her care. J.W. indicated that, if she was released, she would go to a shelter until she could find placement.

The trial court signed a judgment on September 24, 2009, committing J.W. to Terrell State Hospital for a period of time not to exceed 90 days. The trial court included findings in its judgment that J.W. is mentally ill, and as a result, (1) is likely to cause serious harm to herself, and (2) is suffering severe and abnormal mental, emotional, or physical distress and is deteriorating in her ability to function independently, and is unable to make rational and informed decisions about her treatment. J.W. timely filed her notice of appeal.

Applicable Law

Subsections (a) and (d) of section 574.034 of the Texas Health and Safety Code state the applicable criteria for court-ordered temporary inpatient mental health services. Under those subsections,

(a) The judge may order a proposed patient to receive court-ordered temporary inpatient mental health services only if the judge or jury finds, from clear and convincing evidence, that:
(1) the proposed patient is mentally ill; and
(2) as a result of that mental illness the proposed patient:
(A) is likely to cause serious harm to himself;
(B) is likely to cause serious harm to others; or
(C) is:
(i) suffering severe and abnormal mental, emotional, or physical distress;
(ii) experiencing substantial mental or physical deterioration of the proposed patient’s ability to function independently, which is exhibited by the proposed patient’s inability, except for reasons of indigence, to provide for the proposed patient’s basic needs, including food, clothing, health, or safety; and
(iii) unable to make a rational and informed decision as to whether or not to submit to treatment.
(d) To be clear and convincing under Subsection (a), the evidence must include expert testimony and, unless waived, evidence of a recent overt act or a continuing pattern of behavior that tends to confirm:
(1) the likelihood of serious harm to the proposed patient or others; or
(2) the proposed patient’s distress and the deterioration of the proposed patient’s ability to function.

Tex. Health & Safety Code Ann. § 574.034(a), (d) (Vernon 2003). Clear and convincing evidence is “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” State v. Addington, 588 S.W.2d 569, 570 (Tex.1979) (per curiam); In re S.C., No. 05-08-00373-CV, 2008 WL 3412222, at *4 (Tex.App.Dallas Aug. 13, 2008, no pet.) (mem.op.).

The expert’s opinions and recommendations must be supported by a showing of the factual bases on which they are grounded. In re S.C., 2008 WL 3412222, at *4. An expert diagnosis of mental illness, standing alone, is not sufficient to confine a patient for treatment. Id. Likewise, evidence that merely reflects a patient’s mental illness and need for hospitalization is not sufficient to meet the State’s burden. Id.

STANDARD OF REVIEW

Because the State’s burden of proof is clear and convincing evidence, we apply a heightened standard of review. In reviewing a legal sufficiency claim, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable fact-finder “could form a firm belief or conviction that the matter that must be proven is true.” See In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). We assume the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so, and we disregard all contrary evidence unless a reasonable fact-finder could not. Id.; see also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). When reviewing factual sufficiency, we must give due consideration to evidence that the fact-finder could reasonably have found to be clear and convincing and then determine whether, based on the entire record, disputed evidence that a reasonable fact-finder could not have credited in favor of the finding is so significant that a fact-finder could not reasonably have formed a firm belief or conviction that the allegations in the petition were true. In re J.F.C., 96 S.W.3d at 266.

Analysis

J.W. raises three issues on appeal. In her first two issues, J.W. challenges the legal and factual sufficiency of the evidence to support the trial court’s findings that she was a danger to herself and that she was experiencing deterioration of her ability to function independently. In her third issue J.W. challenges the legal and factual sufficiency of the evidence to support the trial court’s finding “of an overt act or continuing pattern of behavior that relates to the criteria on which the judgment is based.”

J.W. does not challenge the trial court’s finding that she is mentally ill, and we do not question her family’s concern, or Dr. Weidow’s opinion that J.W. would benefit from hospitalization. Nevertheless, the fact that J.W. is mentally ill and would benefit from hospitalization is not enough to satisfy the statutory requirements to commit her, against her will, to inpatient mental health services. “The statutory requirements for an involuntary commitment are strict because an involuntary commitment is a drastic measure.” In re S.C., 2008 WL 3412222, at *4 (internal quotation omitted).

Was J.W. likely to cause serious harm to herself?

The evidence is somewhat inconclusive with respect to the vomit in J.W.’s apartment. J.W. testified she threw up once at her apartment, when she was confronted by her family. Although Dr. Weidow testified that there was “vomit in various containers” in J.W.’s apartment, she also acknowledged that she did not see the containers herself and did not talk to J.W. about them. And when J.W.’s father was asked if there was vomit in containers inside J.W.’s apartment, he answered somewhat equivocally: ‘Tes, I think.” Even if J.W. vomited in her apartment, however, there is no evidence that it posed a serious health risk to J.W. And there is no evidence in the record that J.W. was malnourished or suicidal. As a result, we conclude that the evidence in the appellate record does not demonstrate a likelihood of serious harm to J.W. sufficient to satisfy the requirements of the statute. See Tex. Health & Safety Code Ann. § 574.034(a)(2)(A), (d)(1). Additionally, J.W.’s paranoid and delusional statements do not amount to clear and convincing evidence that J.W. is likely to cause serious harm to herself. See, e.g., In re T.G., 7 S.W.3d 248, 252 (Tex.App.-Dallas 1999, no pet.) (appellant’s beliefs that a mail carrier was responsible for her and that she was in the military did not demonstrate likelihood of serious harm to appellant). Because there is no evidence of a recent overt act or continuing pattern of behavior that tends to confirm that J.W. was likely to cause serious harm to herself, we conclude that the evidence is legally insufficient to support involuntary commitment under subsection 574.034(a)(2)(A). See Tex. Health & Safety Code Ann. § 574.034(a)(2)(A), (d)(1); cf. In re R.M., 90 S.W.3d 909, 911-12 (Tex.App.-San Antonio 2002, no pet.) (evidence that appellant left lit candles unattended, left family home and walked deserted streets at night, accepted rides from strangers, and was so provocative that she could provoke people into violence towards her was sufficient to support finding, by clear and convincing evidence, that appellant was likely to cause serious harm to herself).

Was J.W. deteriorating in her ability to function independently?

Because we have concluded that the evidence was legally insufficient to support involuntary commitment under subsection 574.034(a)(2)(A), we next analyze whether the evidence was legally sufficient to support involuntary commitment under subsection 574.034(a)(2)(C). J.W. argues that the evidence is legally insufficient to support involuntary commitment under subsection 574.034(a)(2)(C) because there is no evidence that she was experiencing substantial deterioration of her ability to function independently, as required by subsection 574.034(a)(2)(C)(ii). We agree with J.W.

Although Dr. Weidow answered “Yes” to the general question of whether J.W. was deteriorating in her ability to function independently, Dr. Weidow was not asked to describe the basis for her answer, nor was she asked to describe why she concluded that J.W.’s ability to provide for her own basic needs had deteriorated. There is no evidence in the record that, as a result of mental illness, J.W. could not provide for her own food, clothing, or health. And the only testimony concerning J.W.’s safety was Dr. Weidow’s testimony that J.W. told her that “she’s been broken into” and that “[s]he had a man come urinate next to her car.” But there is no evidence about when either of these incidents occurred, and Dr. Weidow’s testimony about these two incidents does not demonstrate by clear and convincing evidence that J.W.’s mental illness renders her unable to provide for her own personal safety. It is undisputed that J.W. refused to take psychiatric medication. But this fact alone does not demonstrate by clear and convincing evidence that J.W. was deteriorating in her ability to function independently. See, e.g., In re C.C., III, 253 S.W.3d 888, 894 (Tex.App.-Dallas 2008, no pet.) (“The evidence that appellant had stopped taking his medication before his commitment and refused to take his medicine in the hospital is not evidence of deterioration of ability to function independently.”).

There is evidence that J.W. was living in an apartment with no furniture, did not have a job or health insurance, and was being evicted from her apartment. But while this evidence may suggest that J.W. is indigent, section 574.034 specifically excepts “reasons of indigence” as a basis for a finding that a proposed patient cannot provide for her basic needs. See Tex. Health & Safety Code Ann. § 574.034(a)(2)(C)(ii); D.J. v. State, 59 S.W.3d 352, 356 (Tex.App.-Dallas 2001, no pet.) (“Although part of the statutory standard is satisfied by evidence the proposed patient is unable to provide for her basic needs, the statute specifically excepts ‘reasons of indigence’ as a basis for such a finding.”). The record does not contain evidence, apart from circumstantial evidence of indigence, that would enable a reasonable fact-finder to form a firm belief or conviction that J.W. cannot provide for her basic needs as a result of her mental illness. See, e.g., In re S.C., 2008 WL 3412222, at ⅜5. And J.W.’s paranoid and delusional statements do not amount to clear and convincing evidence that J.W. is deteriorating in her ability to function independently. See, e.g., In re C.C., III, 253 S.W.3d at 893-94. Because there was no evidence of a recent overt act or continuing pattern of behavior that tends to confirm that J.W. was experiencing substantial deterioration of her ability to function independently, we conclude that the evidence is legally insufficient to support involuntary commitment under subsection 574.034(a)(2)(C). See Tex. Health & Safety Code Ann. § 574.034(a)(2)(C), (d)(2); cf. Goldwait v. State, 961 S.W.2d 432, 433, 435 (Tex.App.-Houston [1st Dist.] 1997, no writ) (evidence, for example, that appellant “(1) wanted to start an international organization in order to provide his and his brothers’ genetically superior blood to various hospitals to use for treatment of immune diseases; (2) had sold all of his belongings;” (3) asked his brother to get suction supplies so that he could let his and his brother’s blood; and (4) slept in his brother’s driveway one night because “the sun, stars, and moon all emitted particles that drained his gray matter” clearly and convincingly established elements under subsection 574.034(a)(2)(C)); L.S. v. State, 867 S.W.2d 838, 842-43 (Tex.App.-Austin 1993, no writ) (evidence, for example, that appellant “ritualistieally burned the skin on his fingers with cigarettes,” “ ‘plow[ed]’ out into the street without looking,” drank sufficient water to gain ten pounds in one day and cause long-term health consequences, “had been assaulted on several occasions because he is intrusive,” stuck nine-volt batteries to the exposed roots of his teeth, and “sometimes used his hands to clean himself after defecating, leaving feces smeared on his clothes” was sufficient to support finding by clear and convincing evidence that appellant was suffering severe distress and deteriorating in his ability to function independently).

Conclusion

We sustain J.W.’s legal-sufficiency challenges. As a result, we do not need to address her factual-sufficiency challenges. We reverse the trial court’s judgment and render judgment denying the State’s application for court-ordered temporary mental health services.

      . The reporter’s record erroneously states that the hearing occurred on the "24th day of October, 2009.”

      . Although the 90-day commitment period has run, this appeal is not moot. See State v. Lodge, 608 S.W.2d 910, 912 (Tex.1980); D.J. v. State, 59 S.W.3d 352, 354 (Tex.App.-Dallas 2001, no pet.).


author: Justice MYERS.

text:
    Calvin W. CARTER d/b/a The Carter Group, LLC, Appellant, v. PEOPLEANSWERS, INC., Appellee.
    No. 05-09-00566-CV.
    Court of Appeals of Texas, Dallas.
    May 13, 2010.

      Richard L. Bufkin, Dallas, TX, for Appellant.
    Ronald Wayne Chapman, Ogletree, Dea-kins, Nash, Smoak & Stewart, P.C., Dallas, TX, for Appellee.
    Before Justices RICHTER, LANG-MIERS, and MYERS.
   OPINION

Opinion By

Justice MYERS.

Calvin W. Carter d/b/a The Carter Group, LLC appeals the summary judgment rendered against him on his claims against PeopleAnswers, Inc. Appellant brings four issues asserting the trial court erred in granting appellee’s motion for summary judgment because (a) the release on which appellee relied was not effective or did not release appellant’s claims; (b) the written employment agreement was not effective; (c) if the written employment agreement was effective, then its terms did not support judgment for appel-lee; and (d) the statute of frauds did not apply to the parties’ oral employment agreement. We affirm the trial court’s judgment.

BACKGROUND

Appellee is a marketer of software used to provide personality profiles on prospective employees. Appellant was a sales agent for appellee selling “services agreements” to appellee’s clients. During ap-pellee’s early years, it wanted an “Iconic Customer” whose recognition and credibility would support the sale of the software. In 2002, appellant obtained both a lucrative and “Iconic” client for appellee by procuring a services agreement with Nei-man Marcus. Another client obtained by appellant was Lonestar Freight.

Appellee permitted appellant to sign up and train “third-party referral agents,” and appellant would receive a share of the commissions earned by those agents. Appellant signed up Jane Pierotti and her corporation, Counterpoint, Inc., in August 2002, and he finished training her within a year. However, her company did not earn any commissions until October 2004.

In 2008, the parties signed a release of claims against each other effective September 15, 2003. Besides the mutual release of claims, the consideration for the release was to be a $4000 cash payment from appellee to appellant and appellee’s guarantee that appellant’s stock options were vested. Appellee was unable to show it paid appellant the $4000, but the stock options were vested.

Until at least January 2004, appellant and appellee’s relationship was governed under an oral agreement. In January 2004, appellee prepared a written contract, the “Marketing Referral Agreement,” incorporating their oral agreements. Appellant executed the agreement, but appellee did not. However, appellant stated that certain of the financial terms of the written agreement were identical to the oral agreement. Their agreement provided appellant would receive a fifty-percent commission on Neiman Marcus’s services agreement “as long as [appellant] is actively involved in the renewal of their Services Agreement.” Appellant would also receive a commission for three years for “any third party that [appellant] successfully signs up as another referral party.”

Appellant was actively involved in the renewals of the Neiman Marcus and the Lonestar Freight agreements, and he received commissions on those accounts for 2004, 2005, and 2006. Counterpoint began earning commissions in October 2004, but appellant was not paid a commission for Counterpoint’s sales.

In 2007, appellant was seriously injured in a plane crash. While still recovering, appellant expressed his intent to make his annual visit to Neiman Marcus to obtain the renewal of the services agreement. However, appellee’s president told appellant that due to his injuries, his participation would not be required or necessary. Neiman Marcus and Lonestar Freight renewed their services agreements for 2007, but appellee did not pay appellant a commission because he had not been actively involved in the renewal of their services agreements. On September 25, 2007, appellee told appellant “there is no longer a need for you to continue to be involved with our relationship with Neiman Marcus and Lonestar. We got it covered.” On November 19, 2007, appellee gave appellant notice it was terminating their agreement.

In 2008, appellant sued appellee for breach of contract from appellee’s failure to pay appellant commissions for the sales to Neiman Marcus and Lonestar Freight, and the failure to pay appellant a share of the commissions earned by the third-party referral agent, Counterpoint. In his live pleading, appellant alleged the parties’ agreement was an oral agreement and that the written Marketing Referral Agreement was not a valid contract. Appellant pleaded that appellee breached the oral agreement. Appellant also pleaded alternatively that if the written Marketing Referral Agreement was the contract of the parties, then appellee breached that agreement by not paying him the commissions.

Appellee moved for summary judgment on appellant’s claims, asserting appellant was not entitled to the commissions under either the parties’ oral agreement or the written Marketing Referral Agreement. The trial court granted appellee’s motion for summary judgment.

SUMMARY JUDGMENT

The standard for reviewing a traditional summary judgment is well established. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Defendants who move for summary judgment must show the plaintiffs have no cause of action. Defendants may meet this burden by either disproving at least one essential element of each theory of recovery or conclusively proving all elements of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995) (per curiam). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). After the movants have established a right to summary judgment, the burden shifts to the nonmovants to present evidence creating a fact issue. Denson v. Dallas County Credit Union, 262 S.W.3d 846, 849 (Tex.App.-Dallas 2008, no pet.). When multiple grounds for summary judgment are raised and the trial court does not specify the ground or grounds relied upon for its ruling, the appellate court will affirm the summary judgment if any of the grounds advanced in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Red Roof Inns, Inc. v. Murat Holdings, L.L.C., 223 S.W.3d 676, 684 (Tex.App.-Dallas 2007, pet. denied). If an appellant does not challenge each possible ground on which summary judgment could have been granted, we must uphold the summary judgment on the unchallenged ground. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970); Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex.App.-Dallas 2009, pet. denied).

In this case, the trial court did not specify the ground on which it granted appellee’s motion for summary judgment. Accordingly, if any of the grounds in ap-pellee’s motion are meritorious, we must affirm the trial court’s judgment.

STATUTE OF FRAUDS

In his issue “d.,” appellant asserts the trial court erred in granting the motion for summary judgment on appellee’s assertion that the statute of frauds applies to appellant’s alleged oral agreement and bars enforcement of the agreement. See Tex. Bus. & Com.Code Ann. § 26.01(a), (b)(6) (Vernon 2009).

In the supplemental motion for summary judgment, appellee asserted an additional summary judgment ground that appellant’s claims for commissions on sales to Neiman Marcus and Lonestar Freight as well on sales by Counterpoint were barred by the statute of frauds. In his brief on appeal, appellant argued his claim for a share of the commissions on sales by Counterpoint was outside the statute of frauds. However, appellant does not argue on appeal that his claim for commissions on the renewal of the Neiman - Marcus and Lonestar Freight services agreements was outside the statute of frauds. Because appellant does not address this ground as to the Nei-man Marcus and Lonestar Freight commissions, we must affirm the summary judgment as to those commissions. See Malooly Bros., Inc., 461 S.W.2d at 121; Jarvis, 298 S.W.3d at 313. We overrule appellant’s issue “d.” as to appellant’s claims for commissions from the renewal of the services agreements with Neiman Marcus and Lonestar Freight.

THE RELEASE

In issue “a.,” appellant contends the trial court erred in granting the motion for summary judgment based on the ground that appellant released his claims against appellee. Appellant asserts appel-lee’s reliance on the release fails because appellee did not pay the $4000 consideration and because the release did not apply to claims arising after the release’s effective date, September 15, 2003.

The release stated the consideration for the release was a cash payment of $4000 from appellee to appellant to be made by March 31, 2004. Appellant argues that appellee’s failure to pay the $4000 resulted in a failure of consideration entitling him to rescind the release agreement. Appel-lee asserts the failure to pay the $4000 was a partial, nonsubstantial failure of consideration, which did not permit appellant to rescind the release.

Only a substantial failure of consideration will operate to discharge the other party. Estate of Menifee v. Barrett, 795 S.W.2d 810, 815 (Tex.App.-Texarkana 1990, no writ); Huff v. Speer, 554 S.W.2d 259, 263 (Tex.Civ.App.-Houston [1st Dist.] 1977, writ ref'd n.r.e. A partial failure of consideration does not invalidate the contract but entitles the injured party to a suit for damages. Moreover, the right of rescission is waived by the injured party’s retention of the partial performance rendered by the breaching party. Estate of Menifee, 795 S.W.2d at 815.

Consideration is a present exchange bargained for in return for a promise. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex.1991); Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 695, 702 (Tex.App.-Dallas 2008, no pet.). The release in this case contained three types of consideration: the $4000 cash payment, the mutual release of all claims, and appellee’s acknowledgment that appellant’s stock options were fully vested and not subject to forfeiture. Appellant later redeemed all of his stock options earned during his employment with appellee for about $250,000. We conclude the partial failure of consideration did not invalidate the release.

The text of the release shows the parties each did “release, hold harmless, and forever discharge” the other “from and against any and all damages, debts, losses, claims, liabilities, demands, or causes of action in law or in equity of any kind whatsoever, ... which are directly or indirectly attributable” to the parties’ agreements concerning appellant’s stock options, the engagement of the appellant’s corporation, TCG, and appellant’s conduct of business and relationship with appellee through TCG.

Appellee asserted in its motion for summary judgment that appellant released his right to commissions on sales generated by Counterpoint because the right to those commissions was part of appellant’s conduct of business and relationship with ap-pellee. Appellant asserts the release did not bar appellant’s claim because his claim for commissions arose after the effective date of the release. In the release, however, appellant did not merely release his claim for accrued commissions but all claims based on his past relationship with appellee. That relationship included his right to a share of the commissions on the future sales, if any, by Counterpoint. At the time of the release, appellant had signed up Counterpoint, but it had not yet earned any commissions. Appellant’s claim for a share of Counterpoint’s commissions is one “arising out of, in connection with, or with respect to ... [appellant’s] conduct of business and relationship with appellee” before the release. Accordingly, appellant’s claim for a share of Counterpoint’s commissions was released. We overrule appellant’s issue “a.”

We conclude the trial court did not err in granting the motion for summary judgment on appellant’s breach-of-contract claim based on the parties’ oral agreement.

CLAIMS UNDER THE WRITTEN AGREEMENT

In issue “c.,” appellant argues that if the written Marketing Referral Agreement does constitute the parties’ operative agreement, then the trial court erred in granting the motion for summary judgment. Appellant asserts that the terms of the written agreement support his claim for breach of contract.

Appellant argues that under the written agreement, he was entitled to commissions on Neiman Marcus’s and Lonestar Freight’s renewal of their services agreements after his termination as long as he was involved in the renewal of the agreements. Appellant argues that paragraphs 3 and 22 of the written agreement provide that appellant’s commissions on the renewal of the accounts would continue after his termination. Appellant asserts he was entitled to a commission for the 2008 renewals of the Neiman Marcus and Lonestar Freight services agreements after his termination because he was actively involved in their renewal. Paragraphs 3 and 22 provide that the terms of the agreement concerning payment of commissions survive its termination. In paragraph 2 of the agreement, appellee agreed to pay appellant “a commission on Service Agreements signed during the term of this Agreement.” The renewals for 2008, however, were signed after appellant was terminated, so the renewals were not “signed during the term of this Agreement,” and appellant was not entitled to commissions for the renewals of those services agreements.

Concerning appellant’s right to a share of the commissions earned by Counterpoint, the written agreement stated, “For any third party that [appellant] successfully signs up as another referral party, commissions will be paid to [appellant] according to the following schedule:.... ” The phrase, “successfully signs up” refers to future events, not to third parties, like Counterpoint, already signed up as referral agents.

We conclude the trial court did not err in granting appellee’s motion for summary judgment concerning appellant’s claim that appellee breached the parties’ written agreement. We overrule appellant’s issue “c.”

Because of our determination of the issues discussed above, we need not reach appellant’s remaining issues. See Tex. R.App. P. 47.1.

We affirm the trial court’s judgment.