author: PRICE, J., WOMACK, J.,

text:
    Zedric MILLER, Appellant, v. The STATE of Texas.
    No. 1692-99.
    Court of Criminal Appeals of Texas.
    Dec. 13, 2000.

      Richard W. Kennedy, Tyler, for appellant.
    Edward J. Marty, Asst. Dist. Atty., Tyler, Matthew Paul, State’s Atty. Austin, for State.
   OPINION

PRICE, J.,

delivered the opinion of the Court

in which MEYERS, HOLLAND, JOHNSON, and KEASLER, JJ., joined.

Our prior opinion, delivered November 8, 2000, is withdrawn.

Appellant Zedric Miller was found guilty of aggravated assault, and the jury recommended a sentence of 20 years imprisonment and a $10,000 fine. At the hearing on the State’s Motion to Cumulate Sentences, Miller’s attorney admitted that Miller was currently serving 30 years for two prior convictions. No other evidence of the two previous convictions or that Miller was the same person in the two convictions was presented. The trial court exercised its discretion under art. 42.08(a) of the Code of Criminal Procedure and “stacked” Miller’s 20 year sentence with the previous two convictions. The Court of Appeals struck the order for cumulative sentencing, finding that the record contained no evidence that linked Miller with the two prior convictions in violation of our decision in Turner v. State.

The State primarily argues that Turner is based on an improper construction of article 42.08(a) because Turner imposes an evidentiary burden although there is no express burden in the statute. Because a burden is implicit within the language of 42.08(a) and because the legislature is presumed to adopt a judicial interpretation when it has made changes to a statute that do not affect that interpretation, we hold Turner was decided correctly and the Court of Appeals has correctly stated the law. However, we find that Miller’s counsel did admit his prior two convictions. Because the admission is sufficient evidence linking him to the prior convictions, we set aside the Court of Appeals’s modification and otherwise affirm the judgment.

FACTS

In 1998, a Smith County jury found Zedric Miller guilty of aggravated assault. The State filed a pretrial Motion to Cumu-late Sentences in which two prior convictions were identified by cause number, date, and punishment assessed. At the beginning of the hearing on the motion to cumulate sentences, the trial court asked defense counsel if he had explained cumu-lation and the present motion, to which the defense counsel responded in the affirmative. Defendant also stated that ‘cumulat-ing the sentence’ meant “[slacking them.” Before handing down Miller’s sentence at the punishment phase of the trial, the trial court heard arguments on the State’s motion. After the State made its argument supporting the motion, defense counsel stated the following:

Your Honor, again, I would certainly oppose that. This defendant, Zederic [sic] Miller, has 30 years right now. Before this trial he had 30 years. Those are aggravated years. As it stands now ... he’s not even eligible for parole until probably about 15 years down the road somewhere.... This jury, yeah, that he made a statement, [sic] They said this is bad. 20 years, $10 thousand. The Court — I wouldn’t [sic] allowed to tell them that he was already serving 30 [years] .... 30 years is what he’s serving right now, Your Honor.

After listening to the arguments, the trial judge exercised his discretion under article 42.08(a) and granted the motion. Miller was thereby sentenced to 20 years imprisonment and a $10,000 fine, the prison term to run consecutively with the two prior convictions. While Judge Kent actually signed the final order, the trial judge who granted and heard arguments on the motion to cumulate was Visiting Judge Clapp.

On appeal, Miller argued that the cumulative order was void as the State introduced no evidence linking him with the two previous convictions. The Court of Appeals agreed citing our decision in Turner, which requires some evidence linking the defendant with the previous convictions. The Court struck the cumulative order, but affirmed the conviction in all other respects. The State appeals this ruling.

ARGUMENTS

The State basically argues that Turner and its supporting law were decided incorrectly and based on faulty premises. The State points to the plain language of article 42.08(a) and notes that there is no express requirement that it produce evidence to support the exercise of the trial court’s discretion to cumulate sentences. Since there is no express requirement, the State argues that the judge has “absolute discretion.” Furthermore, the State avers that if the legislature had intended to impose an evidentiary requirement in article 42.08(a), it could easily have done so by adding the phrase “when it is shown” as it did in article 42.12 § 3g(a)(2). Because there is no procedure or evidentiary requirement specified in article 42.08(a), the Turner court’s premise that the proper procedures must be followed is illogical. Thus, the State contends, Turner and its supporting cases are based on an improper construction of article 42.08(a).

The State also argues that cumulative sentencing is basically an administrative matter; either the defendant is serving another sentence or he is not. If he is not, then the prison system will ignore the faulty cumulation order, and the prisoner will only serve time for the current conviction. We disagree.

DISCUSSION

In Turner v. State, the defendant was convicted of aggravated sexual assault. Prior to formal sentencing the trial court conducted a hearing on the State’s motion for “consecutive sentencing” pursuant to art. 42.08. The trial court granted the motion despite the fact that the record contained no evidence of the prior conviction or any evidence linking the defendant to the prior conviction. After outlining the history of art. 42.08 and noting case law dating back to 1899 that required some evidence linking the defendant to the prior conviction, we reversed the trial court. Since there was no evidence of the prior conviction or evidence linking the defendant with the prior conviction, the cumulation order was invalid.

In statutory construction, we begin with the language of the statute, and if the language is clear, it is not for the judiciary to add to or subtract from the statute. In addition, it is presumed that the legislature is aware of case law affecting or relating to the statute. “When the Legislature meets, after a particular statute has been judicially construed, without changing that statute, we presume the legislature intended the same construction should continue to be applied to that statute.” Or stated another way, “[w]hen a statute is reenacted without material change, it is generally presumed that the legislature knew and adopted or approved the interpretation placed on the original act, and intended that the new enactment should receive the same construction as the old one.”

Article 42.08(a) reads in pertinent part:

When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction .... in the discretion of the court, the judgment in the second and subsequent convictions may either [run consecutively or concurrently].

Although there does not appear to be an express evidentiary requirement for linking the defendant to a prior conviction, the statute does state that the defendant must have been convicted in two or more cases. By implication, before a judge may exercise his discretion to cumulate, he must be aware of a prior conviction.

Moreover, we presume that the Legislature has been aware of our construction of article 42.08(a) and its forerunners for over 100 years. The Turner decision was based on over 100 years of case law construing article 42.08 and its predecessors. As we outlined in Turner; the substance of article 42.08(a) remains largely the same as original article 800 of 1879 despite several amendments, the most notable occurring in 1919, which gave judges the discretion to cumulate. Also, the earliest case to require some evidence that links a defendant with a prior conviction was Bullard v. State in 1899. Since Bullard, we have continued to require some evidence connecting a defendant with prior convictions.

Under the rules of statutory construction described above, we must presume that the legislature was fully aware of both Bullard and Turner. From 1899 to the present, no amendment by the legislature has cast these decisions in doubt. In fact, after the Turner decision in June of 1987, the legislature has amended article 42.08 two times. As neither amendment negates or alters our interpretation of article 42.08, we presume that the legislature approved of and adopted our interpretation of article 42.08(a) and its predecessors in Bullard and Turner.

While it is true that article 42.08(a) does not contain the words “when it is shown” as in article 42.12 § 3g(a)(2), our interpretation of article 42.08 predates the language of article 42.12 § 3g(a)(2). If the legislature disapproved of our interpretation of article 42.08(a) and its forerunners, it could have made the appropriate amendments. Moreover, article 42.12 § 3g(a)(2) does not deal with cumulative sentencing. It seems unusual that the legislature would disapprove of over 100 years of uniform interpretation by using the words “when it is shown” in an unrelated statute.

We further disagree with the State’s characterization of cumulation as merely an administrative act. To be sure, the act of cumulating is in part an administrative activity, and there must be sufficient, specific information that would allow the Texas Department of Criminal Justice— Institutional Division to identify the prior conviction with the new one. But, as we noted above, before a judge can exercise his discretion to cumulate, the defendant must be eligible for cumulative sentencing. In order to be eligible for cumulative sentencing, a defendant must have “been convicted in two or more cases,” and the sentence in the earlier case or cases must not have been fully served. If a defendant has not been previously convicted as required by the statute, then the trial judge does not have the discretion or authority to cumulate the sentences. Only when the record contains some evidence that links the defendant to the prior convictions is the trial judge’s authority under 42.08(a) triggered. In other words, the record must support the trial judge’s exercise of discretion.

Even though we reject the State’s arguments and find that the Court of Appeals has correctly relied on Turner, we find that the Court of Appeals incorrectly applied the law to the facts of this case.

In Turner, we stated that an admission by a defendant was sufficient evidence to link the defendant to his prior convictions. Furthermore, in Resanovich v. State, we found that the defendant had admitted prior convictions and his status as an inmate when his counsel said: “It [prior conviction for theft] has not been discharged, your Honor, he is currently serving it. ... He’s serving both of them [convictions for theft and murder].” Although Resanovich dealt with art. 42.08(b), we distinguished its facts from Turner by noting the defense counsel’s admission in Resanovich that was absent from Turner. “Here, appellant’s counsel admitted at sentencing ... that appellant was incarcerated and currently serving the murder sentence.... In addition, in Turner the sentence was cumulated on a sentence of a case which was on appeal and neither Turner nor his counsel admitted that he was serving the sentence to which the new sentence would be cumulated.” We think the case at bar fits within our discussion of Turner in Resanovich.

Here, unlike in Turner, Miller’s counsel admitted three times at the hearing on the motion that Miller was “serving 30 years right now.” The motion had been filed pretrial, it identified the convictions by cause number and the name of the offense, and it stated the punishments assessed. The trial court took pains to ensure that the defendant understood what was occurring, and defense counsel made it clear that the motion had been explained to and understood by Miller. Furthermore, the district attorney twice described the sentences at the hearing and said that they had previously been stacked. In granting the motion, the judge also made it clear that all three sentences were to be stacked. Miller and his counsel were aware of the convictions that the State intended to stack, and, far from refuting the representations of the State, defense counsel made arguments that were perfectly consistent with the State’s motion and representations.

By admitting that he already was serving 30 years (the total punishment assessed for the prior two convictions), Miller’s counsel admitted that Miller indeed had the two prior convictions identified in the Motion to Cumulate Sentences. Under Turner, this admission constitutes sufficient evidence linking Miller to the two prior convictions.

CONCLUSION

We find that the Court of Appeals correctly relied on our decision in Turner and that case’s interpretation of article 42.08(a). We further hold that Miller admitted the two prior convictions that formed the basis of the cumulation order. The Court of Appeals’s modification of the appellant’s sentence is set aside, and the judgment is otherwise affirmed.

WOMACK, J.,

filed an opinion

concurring in the judgment and dissenting from the order to publish,

in which KELLER, J., joins.

We granted discretionary review to consider whether a judgment of conviction could order that the sentence be cumulat-ed if there was no evidence to prove that another sentence had been imposed on the defendant. Our decision turned out to be improvident because, as the Court holds ante at 9-11, the record of this case contains sufficient evidence that other sentences had been imposed on the defendant. The case does not present the issue we agreed to resolve. The Court’s discussion of the issue, ante at 5-9, is at most an advisory opinion of little or no precedential value. We should dismiss the State’s Petition as improvidently granted. Now that we have expended our resources on the case, we should grant review on our own motion and reverse the judgment of the court of appeals in an unpublished opinion.

I concur in the judgment and dissent from the decision to publish.

      . See Miller v. State, No. 12-98-00214-CR (Tex.App.—Tyler Aug. 30, 1999) (not designated for publication) (citing Turner v. State, 733 S.W.2d 218 (Tex.Crim.App.1987)).

      . Miller had two prior convictions, one for deadly conduct and the other for aggravated assault, both from the 114th District Court, for which he had been sentenced to 10 years and 20 years respectively. These prior sentences had also been cumulated. No record of these convictions was introduced at trial. Since appeal to this court, the Court of Appeals affirmed the cumulation of the 10 and 20 year sentences in Miller v. State, 21 S.W.3d 327 (Tex.App.—Tyler 1999, pet. ref'd).

      .
      [COURT]: Counsel, if you'll explain to your client what we’re talking about.
      [COUNSEL]: Yes, Judge, he is aware. I've shown him the motions that the State had filed previous to trial, ex[p]lained [sic] what that meant. Of course he knows what that meant. He’s been through it before.

      .
      [COURT]: I want him to tell the Court as a matter of records what the meaning of that is.
      [COUNSEL]: Do you know what the meaning of cumulating the sentence is?
      [DEFENDANT]: Stacking them, Your Honor.

      . Ct.R., vol. VI, at 134.

      . Miller, No. 12-98-00214, slip op. at 4-5.

      . See Turner, 733 S.W.2d at 221.

      . See id. at 219.

      . See id.

      . See id. at 219-23.

      . See id. at 223.

      . See Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991).

      . See Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex. Crim.App.1992).

      . Marin v. State, 891 S.W.2d 267, 271-72 (Tex.Crim.App.1994).

      . Ex parte Henderson, 565 S.W.2d 50, 54 (Tex.Crim.App.1978) (Onion, P.J., concurring): see also, Moosani v. State, 914 S.W.2d 569, 575 (Tex.Crim.App.1995) (Baird, J., dissenting) (“When the Legislature amends other portions of the statute, but declines to change the specific language before the Court, we presume legislative approval of our statutory interpretations.”).

      . See Bell v. State, 994 S.W.2d 173, 175 (Tex.Crim.App.1999) (Johnson, J., concurring).

      . See Turner, 733 S.W.2d at 220-21.

      . 40 Tex.Crim. 270, 50 S.W. 348 (1899) ("We hold that, unless record evidence of former convictions of the defendant is introduced, together with oral evidence of his identity unless the convictions occurred at the same term ... the court will not be authorized to make the sentence cumulative.”)

      . See Turner, 733 S.W.2d at 221-22.

      . See Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.11, 1989 Tex.Gen.Laws 3495; Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 5.03, 1993 Tex.Gen.Laws 3752, 3753.

      . See Bell, 994 S.W.2d at 174-75. We further note that Bell should not be read to call Turner into question. Bell was interpreting art. 42.08(b) and not 42.08(a). Article 42 .08(a) is applicable to all cases not falling within sections (b) or (c) and gives the trial court the discretion whether to cumulate. Article 42.08(b), on the other hand, gives the trial court no discretion and was meant to deal with a specific situation, a second crime committed while in prison. By its nature, it will be clear if a crime was committed while in prison and thus falls within the purview of art. 42.08(b); a Turner style evidentiary burden is not necessary. In Bell, we recognized that, "[b]ecause of the different natures of cumulation orders entered either pursuant to subsection (a) or (b) [of art. 42.08], an order entered pursuant to subsection (b) will entail different ... less stringent requirements of proof and specificity than have been classically required of a subsection (a) cumulation order.” Id. at 174.

      . See Tex.Code Crim.Proc.Ann. art. 42.08(a) (Vernon Supp .2000); Turner, 733 S.W.2d at 221; cf. Bell, 994 S.W.2d at 175 (Johnson, J„ concurring) ("Nevertheless, it is not TDCJ ID but the trial court who must be aware, at trial, of appellant’s status ...”).

      . Tex.Code Crim.Pro.Ann. art. 42.08(a) (Vernon Supp.2000).

      . See Turner, 733 S.W.2d at 221 (noting several methods of linking a defendant to prior convictions); Daniel v. State, 585 S.W.2d 688, 690-91 (Tex.Crim.App.1979).

      . See Bullard v. State, 40 Tex.Crim. 270, 50 S.W. 348, 349 (Tex.Crim.App.1899) (finding the trial court did not have authority to cumu-late when "no record [was] presented of his conviction, nor was the court furnished any data as to whether he was serving a term in one or more cases in the penitentiary, or the length of said terms, or how much longer he had to serve.... [Thusjunder the law and evidence adduced upon this question, there was no authority before the court authorizing the court to make the sentence cumulative.”); Turner, 733 S.W.2d at 221-23.

      . Turner, 733 S.W.2d at 221.

      . 906 S.W.2d 40, 41-42 (Tex.Crim.App.1995).

      . See id. at 42.

      . Id.

      . Ct.R., vol. VI, at 134.

      . “Got 20 years on the case of Lindsey Park, got 10 years out of this same incident. The jury reduced it to deadly conduct against Leo Aleman. Judge Kent stacked those on top of each other. We came back to the trial on the offense against Oscar Cocolan.” Id. at 133. Also, “With the jury speaking that strong, with the kinds [sic] of defendant. we have seated here today, we’re going to ask that he be given-that he's been given his day in court as he has, and that this sentence be stacked upon the 10 and 20 he’s already gotten, which is contained in the motion, Your Honor.” Id. at 134.

      . The trial judge said after sentencing Miller to 20 years imprisonment and a $10,000 fine, "So that you [Miller] will understand what the Court is saying, the Court is saying these three sentences that you have now received shall all three of them be stacked.”

      . See Resanovich, 906 S.W.2d at 42.


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    Wiley Eugene BALKUM, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 08-99-00127-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 10, 2000.

      William B. Smith, Midland, for Appellant.
    Imajean Gray, Timothy Michael Flath-ers, Midland, Kevin Michael Givens, Austin, for Appellee.
    Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Wiley Eugene Balkum appeals from an order of the County Court at Law of Midland County, affirming the administrative suspension of Balkum’s driver’s license for a period of ninety days. We affirm.

FACTUAL SUMMARY

During the evening hours of November 14, 1997, Officer Gary Kennedy of the Midland Police Department received a call from Detective McLane who stated that he had avoided an accident with a white Ford extended-cab truck only by taking evasive action. McLane expressed his belief that the driver might be intoxicated. At a nearby intersection, Kennedy met with McLane and Officer Rackow to discuss the situation. As they talked, the white truck turned left at the intersection and Kennedy activated his emergency lights and began following the truck. When the vehicle did not immediately stop, Kennedy activated his “quick” siren to alert the driver. The driver, subsequently identified as Bal-kum, eventually pulled over after being followed for approximately half a mile. Kennedy approached the truck and Bal-kum opened his door after the officer knocked on the glass. Kennedy immediately noticed an extremely strong odor of alcohol when Balkum opened the door. Because Balkum would not look up at Kennedy, he knelt down beside him and noticed that Balkum could not focus his eyes and that his eyes appeared quite glazed. Balkum stumbled when getting out of the vehicle and while walking to the back of the vehicle. He also had to use the vehicle for support to hold himself upright. Kennedy found a half-empty bottle of Canadian Mist whiskey in the floorboard of Balkum’s truck. Due to Bal-kum’s unsteadiness and apparent degree of intoxication, Kennedy did not require him to perform the field sobriety tests. Kennedy arrested Balkum for driving while intoxicated and transported him to the county jail where he provided him with the DWI statutory warning and requested that he submit a specimen of his breath to be analyzed by an intoxilyzer. When Bal-kum refused, Kennedy served him with a notice of suspension of his driver’s license pursuant to the Texas Transportation Code and he filed a sworn report with the Texas Department of Public Safety (DPS) concerning Balkum’s refusal to submit to the breath test. See Tex.Transp.Code Ann. §§ 724.031-.035 (Vernon 1999).

Based upon Balkum’s timely request for a hearing before the State Office of Administrative Hearings (SOAH), DPS notified Balkum that the hearing would be held on January 7, 1998, fifty-four days after Balkum received the notice of suspension from Kennedy. Prior to the hearing, Balkum requested that subpoenas be issued for Kennedy, McLane, Rackow, and Rick Yadon, a private citizen who was participating in a ride-along program with Kennedy that evening. Following a telephone conference, the administrative law judge (ALJ) denied Balkum’s request to subpoena any of the witnesses except Kennedy on the ground that good cause did not exist. With regard to Yadon, however, the ALJ expressly permitted Balkum to renew his request after he further investigated the relevance of the testimony. According to the ALJ, Balkum did not make another request for a subpoena of Yadon.

Balkum also filed a motion to dismiss the license suspension proceeding based upon the failure to conduct the administrative hearing within forty days of the issuance of the notice of suspension as required by the Transportation Code. The ALJ denied the motion. At the conclusion of the hearing, the ALJ found that DPS had established that reasonable suspicion existed to stop Balkum, that probable cause existed to believe that Balkum was operating a motor vehicle in a public place while intoxicated, that the officer had properly asked Balkum to submit a specimen of his breath for analysis, and that Balkum had refused. Accordingly, the ALJ entered an order authorizing DPS to suspend Balkum’s license for ninety days. Balkum appealed this decision to the County Court at Law No. 2 of Midland County, complaining of the restriction on his ability to subpoena witnesses and the denial of his motion to dismiss. The County Court at Law affirmed the decision of the administrative law judge. Balkum raises the same two issues in his appeal to this Court.

REFUSAL TO ISSUE SUBPOENAS

In Point of Error No. One, Balkum contends that the ALJ abused its discretion by refusing to issue subpoenas for McLane, Rackow, and Yadon. He also maintains that the denial of the subpoenas violated his right to confrontation guaranteed by the Sixth Amendment to the United States Constitution. The general procedure for obtaining a subpoena in an administrative hearing is set forth in section 2001.089 of the Texas Government Code:

On its own motion or on the written request of a party to a contested case pending before it, a state agency shall issue a subpoena addressed to the sheriff or to a constable to require the attendance of a witness or the production of books, records, papers, or other objects that may be necessary and proper for the purposes of a proceeding if:
(1) good cause is shown; and
(2) an amount is deposited that will reasonably ensure payment of the amounts estimated to accrue under Section 2001.103.

Tex.Gov’t Code Ann. § 2001.089 (Vernon 2000).

This case is also governed by the SOAH Rules of Practice and Procedure for Administrative License Revocation cases. The relevant portions of Rule 159.17 provide as follows:

(a) A request for the issuance of a subpoena to require attendance of witnesses or the production of documents shall be in writing and must be received by the Office at least five days prior to the scheduled hearing, with a copy sent to the department, and shall contain:
(7) A short statement indicating good cause why the expected testimony or evidence to be obtained through the witness and/or documents is relevant and necessary to the issues involved in the hearing;
(e) The decision to issue a subpoena shall be in the sound discretion of the Judge assigned to the case. The Judge shall refuse issuance of a subpoena if the testimony or evidence to be offered:
(1) is immaterial or irrelevant; or
(2) good cause has not been shown that the witness or documents pertain to a genuine issue in the contested case.
(g) If a subpoena is requested and the Judge requires additional evidence or arguments to support its issuance, the Judge may arrange a telephone conference hearing in order to resolve the matter prior to the hearing. If a pre-hearing decision is not possible, the Judge may defer the decision on the request until the hearing is held and then may take the testimony and receive evidence to determine if the request should be granted. The Judge may entertain an offer from the requestor or his attorney as to the nature of the witness’ testimony....

1 Tex.Admin.Code 159.17 (West 1998).

DPS concedes that Balkum timely made his requests, but urges that the ALJ did not abuse his discretion in finding that Balkum had failed to establish good cause for issuance of the subpoenas. In alleging that good cause existed to obtain the testimony of McLane, Rackow, and Yadon, Bal-kum made the same statement in each application for the issuance of the subpoena:

Defendant believes examination of the witness is essential to challenge the existence of probable cause as set forth in the Department’s Notice of Hearing as this officer is alleged to have been a witness concerning the captioned investigation and arrest of the Defendant.

The record before us does not contain a transcription of the pre-hearing telephone conference between counsel for the parties and the ALJ. Instead, we only have the discussion which took place at the beginning of the administrative hearing when Balkum raised the issue regarding the denied subpoenas. Balkum’s counsel stated that he determined from reading the reports contained within the prosecutor’s file in the DWI case that the three witnesses would have relevant testimony pertaining to the probable cause issue because they had observed Balkum’s condition at the time of arrest. However, he did not explain the substance of their testimony in more detail. Counsel told the ALJ that Balkum had spoken with Yadon but counsel did not know this in time to meet a deadline for resubmission of his subpoena request. Disagreeing that he had set a “hard and fast” deadline to resubmit his subpoena request, the ALJ asked whether counsel had specific information that Ya-don’s testimony would be of assistance to him. When counsel replied that he did not know because he did not personally speak with Yadon, the ALJ then proceeded with the hearing. The ALJ also told Balkum that, if necessary, he would continue the case after hearing Kennedy’s testimony and subpoena additional witnesses. At the conclusion of the hearing, Balkum did not ask the ALJ to continue the hearing nor did he ask to subpoena additional witnesses.

We first find that Balkum waived any complaint pertaining to the Sixth Amendment’s right of confrontation because he did not raise it in the administrative hearing. See Tex.R.App.P. 33.1(a)(1); Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990)(defendant waived alleged violation of rights to confrontation and due process by failing to object at trial); Serrano v. State, 936 S.W.2d 387, 390 (Tex.App.—Houston [14th Dist.] 1996, pet. ref d)(defendant waived review of issue of whether admission of blood test in prosecution for driving while intoxicated deprived him of his constitutional right of confrontation, where defendant failed to object on that ground). Even constitutional errors may be waived by failing to object at trial. Briggs, 789 S.W.2d at 924; Serrano, 936 S.W.2d at 390. Further, Bal-kum waived any argument that the ALJ abused the discretion provided him by the Texas Administrative Code in denying his subpoenas because he did not re-urge his complaint at the conclusion of the hearing. While the ALJ initially denied the request for the additional subpoenas, he made it clear that he would reconsider his decision after hearing Kennedy’s testimony. Bal-kum did not request a continuance and he made no effort to establish the necessity of the other witnesses’ testimony at the conclusion of the hearing. See Tex.R.App.P. 33.1.

Even in the absence of waiver, we are unable to find an abuse of discretion by the ALJ. Because the decision whether to issue a subpoena is submitted to the sound discretion of the administrative law judge, we must determine “whether the court acted without reference to any guiding rules and principles” or, stated differently, “whether the act was arbitrary and unreasonable.” See Texas Dep’t of Public Safety v. Mendoza, 956 S.W.2d 808, 810-11 (Tex.App.—Houston [14th Dist.] 1997, no pet.); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). Other than generally alleging that the witnesses could testify whether he was intoxicated because they were present at the time of his arrest and shortly thereafter, Balkum made no effort to establish how their testimony would have tended to show a lack of probable cause to believe that he was intoxicated. Even after Kennedy testified, Balkum did not articulate in what manner any of the three witnesses would have contradicted his testimony on this issue. On appeal, Balkum does not suggest that he would have benefitted from the testimony of the witnesses but argues simply that eyewitness testimony is always relevant and material. Under the Texas Administrative Code, it is not enough that a witness could testify to the same facts as another live witness. The question is whether the witness sought to be subpoenaed could provide relevant testimony on a genuine contested issue. Because Balkum failed to meet this showing, we conclude that the ALJ acted within his discretion in denying the three subpoenas. Point of Error No. One is overruled.

THE FORTY-DAY RULE

In his second point of error, Bal-kum contends that the ALJ erred in failing to dismiss the proceeding because the hearing was conducted beyond the mandatory period of forty days after issuance of the notice of suspension. This contention is subject to de novo review. Texas Dep’t of Public Safety v. Dear, 999 S.W.2d 148, 150 (Tex.App.—Austin 1999, no pet.). Section 724.041(b) of the Transportation Code provides: “A hearing shall be held ... before the effective date of the notice of suspension or denial.” Tex.Transp.Code Ann. § 724.041(b). A suspension or denial takes effect on the fortieth day after the date on which the person receives notice of suspension or denial. Tex.Transp.Code Ann. § 724.035(d). The Austin court of appeals has addressed this same issue in the context of an administrative license revocation procedure where a driver’s breath test reveals an alcohol concentration that exceeds the legal limit, and in a license suspension proceeding arising from a refusal to perform breath tests. Upon examination of the legislative intent and following the Supreme Court’s instructions for interpreting whether a statute is mandatory or directory, the court of appeals found the forty-day requirement to be directory rather than mandatory, and therefore, the failure to hold the hearing within that time period did not deprive the agency of jurisdiction. Salas, 977 S.W.2d at 847; Guerra, 970 S.W.2d at 648-49. Other courts have agreed. See Texas Dep’t of Public Safety v. Vela, 980 S.W.2d 672, 674 (Tex.App.—San Antonio 1998, no pet.). In a subsequent case involving the same issue, the Austin court further considered what penalty could be visited upon DPS for failure to conduct the suspension hearing within the required period. See Dear, 999 S.W.2d at 151-53. The court began its analysis by reiterating that violation of a directory provision does not render the proceedings void for lack of jurisdiction. Dear, 999 S.W.2d at 151, citing Lewis v. Jacksonville Bldg. & Loan Ass’n, 540 S.W.2d 307, 311 (Tex.1976); City of Uvalde v. Burney, 145 S.W. 311, 312 (Tex.Civ.App.—San Antonio 1912, no writ); Nash v. Civil Serv. Comm’n, Palestine, 864 S.W.2d 163, 166 (Tex.App.—Tyler 1993, no writ); Kessler v. Texas Employers’ Ins. Ass’n, 421 S.W.2d 133, 136 (Tex.Civ.App.—Eastland 1967, writ ref'd n.r.e.); Texas Dep’t of Public Safety v. Dawson, 360 S.W.2d 860, 862 (Tex.Civ.App.—Dallas 1962, no writ); McKee v. State, 318 S.W.2d 113, 116-17 (Tex.Civ.App.—Amarillo 1958, writ refd n.r.e.). In determining the effect of noncompliance, the court considered that laws subjecting intoxicated motorists to suspension of driving licenses are intended to remove dangerous drivers from roadways to protect both themselves and other motorists, and the purpose of the forty-day requirement is to promote the proper, orderly, and prompt conduct of business. Dear, 999 S.W.2d at 152. Given these purposes, the court held that violation of the forty-day provision does not invalidate the suspension in the absence of a clear showing of bad faith by DPS. Id. at 152-53. Persuaded that the holdings in Guerra, Salas, and Dear are sound, we will apply them here. Accordingly, we find that the failure to hold the hearing within forty-days did not deprive the ALJ of jurisdiction to conduct the hearing nor did it deprive DPS of jurisdiction to suspend the license. Because Balkum did not allege or establish any bad faith on the part of DPS, the ALJ properly denied the motion to dismiss. Point of Error No. Two is overruled.

Having overruled both points of error, we affirm the judgment of the county court at law and the administrative decision.

      . See Tex.Transp.Code Ann. § 724.041 (providing for hearing, upon request, by administrative law judge employed by SOAH).

      . Yadon was present in Kennedy’s vehicle and during the videotaping of Balkum at the county jail.

      . On appeal, Balkum alleges that McLane, Rackow, and Yadon could have testified to facts other than probable cause to believe he was intoxicated. He did not, however, present these arguments .to the trial court either in his written application for the subpoenas or at the hearing when the parties discussed this topic with the ALJ. Therefore, these arguments are waived. See Tex.R.App.P. 33.1(a)(1).

      . The hearing was held on January 7, 1998, fifty-four days after Officer Kennedy served Balkum with the notice of suspension.

      . Texas Dep't of Public Safety v. Guerra, 970 S.W.2d 645 (Tex.App.—Austin 1998, pet. denied).

      . Texas Dep’t of Public Safety v. Salas, 977 S.W.2d 845 (Tex.App.—Austin 1998, no pet.).

      . See Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956).

      . At oral argument, Balkum maintained that DPS failed to affirmatively establish good cause for holding a hearing outside the forty-day time limit, and therefore, it lacked jurisdiction to suspend his driver's license. Balkum is correct that Guerra seemingly placed the burden on DPS to establish good cause. See Guerra, 970 S.W.2d at 650. However, the Austin court of appeals clarified in Dear that it did not hold that DPS faced invalidation of a license suspension if it failed to make this showing. See Dear, 999 S.W.2d at 151-52. Instead, a driver seeking to invalidate a license suspension must establish bad faith on the part of DPS. Dear, 999 S.W.2d at 152-53. Placing the burden on DPS to establish good cause for holding the hearing outside of the forty-day period, or else face invalidation of a license suspension, effectively requires DPS to demonstrate that it has jurisdiction to act. Such a holding runs absolutely counter to the well-established rule that violation of a directory provision does not deprive the agency of jurisdiction to act. See Dear, 999 S.W.2d at 151-52 (and the numerous cases cited therein). As the Dear Court noted, "If the legal consequence of failing to comply with a directory provision was the same as that for failing to comply with a mandatory provision, there would be no meaningful distinction between the two.” Id. at 152. Because we believe Dear’s analysis is correct, we have required Balkum to prove bad faith on the part of DPS.


author: DON WITTIG, Justice.

text:
    Maya ANGELOU, Appellant, v. AFRICAN OVERSEAS UNION, Appellee.
    No. 14-00-00004-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 24, 2000.
    Rehearing Overruled Nov. 16, 2000.

      Melvin Houston, Houston, for appellants.
    Clay Crawford, Houston, for appellees.
    Panel consists of Chief Justice MURPHY and Justices WITTIG and FROST.
   OPINION

DON WITTIG, Justice.

The former poet laureate of the United States essays the district court’s ruling finding personal jurisdiction over her in Texas. We first determine whether her Rule 11 agreement extending the answer date, filed with the court, constitutes a general appearance. We hold it does not. We then address whether appellant, who expressly agreed to appear in Texas to accept a prestigious award, but refused to do so knowing of appellee’s elaborate preparations, subjected herself to the jurisdiction of Texas courts. We hold she has. We accordingly affirm the trial court’s denial of her special appearance.

Facts

Appellant, Maya Angelou, is a celebrated poet, author, and a professor at Wake Forest University. Appellee, African Overseas Union (AOU), is a non-profit organization. On June 29, 1998, Nosa Ajayi of AOU called Angelou at her home in North Carolina. On behalf of AOU, Ajayi offered to bestow the Order of Kilimanjaro award upon Angelou in Houston. The award was to be for Angelou’s “lifetime of contributions to African culture in America.” Angelou asked how elaborate the award ceremony would be. Ajayi replied that the presentation of the award is “very similar to the coronation of a chief in Nigeria.” Angelou asked how long the ceremony would last. Ajayi told her it would be two to three hours. Regarding its proposed plans for the event, Ajayi also told Angelou that:

— AOU wanted to have a book-signing session, a luncheon, and a dinner leading up to the award ceremony.
— The “whole evening’s affair will be focused on our presentation ceremony.”
— AOU would specially prepare an outfit and shoes in which Angelou would receive the award.
— AOU would present Angelou with a “specially carved staff from Nigeria”
— AOU was considering flying in a previous recipient of the award for the ceremony.

Angelou told Ajayi that December 5, 1998 would be a good date because she had already planned to be in Houston two days precedent to speak at a fundraiser hosted by Living Bank, a non-profit organization dedicated to organ donation. Through her booking agent, Angelou had contracted with Living Bank approximately three months earlier to speak at its fundraising event for approximately $35,000. Angelou stated she would tell her secretary about the AOU award date to avoid any conflict. Ajayi asked Angelou if she would have any special needs. Angelou stated that because she had a severe allergy to seafood, it should not be served at the award ceremony dinner. Angelou gave Ajayi her address and told Ajayi to send her as much information as he could, and mark the envelope “personal.” Ajayi then stated he would like to have a letter of confirmation from Angelou.

On July 1, 1998, Ajayi sent Angelou a letter which opened with the request that she send a formal letter of acceptance to receive the award on December 5, 1998 in Houston. The letter reiterated that preparations for the award ceremony would be elaborate. In that connection, he informed Angelou the ceremony would include traditional African rituals from the Palace of Alafin of Oyo and that a traditional dance troupe would be flown in from outside the United States. The letter requested Angelou advise of “any special requests or needs such as hotel(s) of choice, a personal assistant, etc.” It closed repeating AOU’s request for Angelou’s letter of acceptance.

On July 8, 1998, Ajayi called Angelou again. Angelou acknowledged she had received Ajayi’s letter. She asked that he send her an “itinerary” of the events. She also instructed Ajayi to call her secretary to get a publicity photo and biographical sketch for AOU to promote the event. Angelou said she would review the itinerary and let Ajayi know about the book signing and the luncheon in her letter of acceptance. Ajayi then sent Angelou a proposed itinerary which detailed events involving Angelou over a period of two days. The letter stated that the itinerary was tentative and that Angelou should feel free to make any changes. Once again, Ajayi’s letter closed that AOU was awaiting Angelou’s formal letter of acceptance.

On July 21, 1998, Angelou’s employee, on behalf of Angelou, wrote AOU, in pertinent part:

Dr. Maya Angelou thanks you for the offer to bestow upon her the esteemed and prestigious Order of Kilimanjaro at the African Traditional Award ceremony of commendation in Houston on Saturday December 5,1998.
It brings me great pleasure to inform you that Dr. Angelou would be honored to accept this award. Please find a biographical vita and a photograph to be used in your commemorative program book.

After receiving the letter, AOU began preparations for the ceremony and events surrounding. AOU also commenced selling tickets and soliciting patrons for the events. There were no contemporaneous discussions of ticket sales, payment of a monetary honorarium, or other financial matters between AOU and Angelou.

On August 19, 1998, Ajayi called Angelou to inquire about whether she would do the book-signing and the luncheon which she had earlier told Ajayi she would address in her acceptance letter. Angelou apologized for failing to do so and promised to get back to Ajayi with her decision. Ajayi mentioned to Angelou the event was going to be well-publicized and that it was getting a good response from the people of Houston.

In early September, Ajayi tried to telephone Angelou at her home and office but did not meet with success. Shortly after, Ajayi reached Angelou. She told him that he she was tired of his calls. When Ajayi began talking about an interview on local television, she told him she was not interested in a television appearance, nor would she do a luncheon or book-signing. She stated she was only interested in receiving the award and leaving Houston. Angelou said “she had a business to run” and that she would appreciate Ajayi’s minimizing his calls to her.

Later in September, Bruce Conway, president of the Living Bank, called Ajayi expressing concern the AOU award ceremony would conflict with its event. After some discussion, AOU agreed to help publicize Living Bank at the AOU award ceremony. On September 18, Angelou’s booking agent, David LaCamera, wrote a letter to Conway which ostensibly confirmed that agreement. Angelou stated in her deposition that it was about this time that she and LaCamera first found out that AOU was publicizing that Angelou would speak at the event and that it was selling tickets. Angelou stated that she decided not to appear at the AOU event for this reason. However, it was not until December 1, approximately two-and-a-half months later, and only a few days before the award ceremony, that Angelou’s office faxed Ajayi a letter notifying AOU that “due to conflicts with her contracted agreements,” Angelou would not appear. The award ceremony was never held.

AOU then sued Angelou for breach of contract to recover its costs of preparation for the event. Pursuant to Angelou’s counsel’s request, counsel for AOU agreed by Rule 11 letter to “an extension of the Answer deadline.” The agreement was drafted and filed with the court by Angelou’s counsel. It was Angelou’s first filing with the court. The agreement contained no mention of a special appearance by Angelou; however, Angelou later filed her special appearance, the subject of this appeal, with her answer.

The court later denied Angelou’s special appearance, ruling that Texas courts had both specific and general jurisdiction over her. It also found that the filed Rule 11 letter did not waive Angelou’s special appearance. The court filed findings of fact and conclusions of law, which are reflected, in part, in the factual summary above.

Effect of Rule 11 Agreement

We will first address AOU’s cross-point. AOU claims that Angelou’s having procured the Rule 11 agreement extending the answer date and filing that letter with the court constitutes a general appearance, thus she waived her special appearance. A defendant enters a general appearance: (1) whenever it invokes the judgment of the court on any question other than the court’s jurisdiction; (2) if its act recognizes that an action is properly pending; or (3) it seeks affirmative action from the court. See Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex.1998). However, an act of a defendant may nonetheless have some relation to the cause without constituting a general appearance. Id.

Dawson-Austin discusses what constitutes “seeking affirmative action” in the context of a special appearance. In that case, the defendant filed several motions in the same instrument with, or subsequent to, her special appearance. One of the subsequently filed motions requested a continuance on the hearing for special appearance and was not made subject to the special appearance. The supreme court held that the motion did not constitute a general appearance because the motion merely asked the court to defer action on all matters, thus it was not inconsistent with the defendant’s assertion that the court lacked jurisdiction. Id. at 323.

AOU claims that Angelou’s filing of the Rule 11 agreement was an act that both sought affirmative action from the court and recognized its action as properly pending. In support, AOU cites Texas Rules of Civil Procedure 238 and 239. Rule 238 provides:

On the appearance day of a particular defendant and at the hour named in the citation, or as soon thereafter as may be practicable, the court or clerk in open court shall call, in their order, all the cases on the docket in which such day is appearance day as to any defendant, or, the court or clerk failing therein, any such case shall be so called on request of the plaintiffs attorney.

Tex.R. Civ. P. 238. Rule 239 provides, in relevant part: “Upon such call of the docket, or at any time after a defendant is required to answer, the plaintiff may in term time take judgment by default against such defendant if he has not previously filed an answer_” Tex.R. Civ. P. 239.

AOU posits that, under Rule 238, the trial court is “commanded” to call the docket on Angelou’s answer date. However, because Angelou’s Rule 11 agreement “asked” the court to delay that date, she both sought affirmative action from the trial court and recognized the action as properly pending. Under Rule 239, AOU argues that in the absence of the Rule 11 agreement, the trial court had the “power” to take a default judgment against Angelou on her answer date. But, by filing the agreement and thus, as AOU puts it, “seeking protection from default judgment,” Angelou recognized the action as properly pending and sought affirmative relief. We disagree with these contentions.

First, we would not characterize, as AOU does, Rule 238 as a “command” that the trial court call the docket on answer day. While the rule provides for the court or clerk to call the docket, it also contemplates the contrary by allowing the plaintiffs attorney to request the docket call. Thus, in the absence of a legitimate request by a plaintiff, we do not perceive the trial court as being compelled to take action under Rule 238 in response to the filing with it a Rule 11 agreement merely extending the answer date. If plaintiff had agreed to extend the answer date, any request to prematurely call the docket would certainly not be a legitimate one. Rule 239 also requires no action from the trial court in response to filing a Rule 11 agreement extending the answer date. Rather, the plaintiff must move for default judgment.

We also note that the relevant inquiry concerning a defendant’s waiver of a special appearance, is not what a court does in response to a filing, as AOU seems to imply with its arguments under Rules 238 and 239. Rather, the pertinent inquiry is whether a defendant truly seeks any affirmative action from the court. Id. at 322. It is significant, then, that there is no precatory language in the Rule 11 agreement at issue. Angelou sought an extension of the answer date from AOU, not the court. AOU agreed to the extension. In turn, Angelou was required to file the agreement with the court for it to be enforced. See Tex.R. CIV. P. 11; see also Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex.1995) (Rule 11 requires that agreement be filed before it may be enforced). Thus, contrary to AOU’s claims, Angelou did not seek affirmative action from the court by “asking” it not to call the docket, nor did it do so by “requesting” the court “protect it from default judgment” (other than perhaps impliedly requesting the court to hold AOU to its agreement should it attempt to rescind or breach the agreement.) Even if the agreement in some incidental manner somehow called for the court to take or refrain from some sort of action, at most it only “asked” the court “defer any action it might have otherwise taken.” This, the Dawson-Austin court held, did not constitute a general appearance. Id. at 323. We therefore hold the Rule 11 agreement did not seek affirmative action from the court.

AOU also claims the filed Rule 11 agreement constituted a general appearance because the filing recognized the action as properly pending. This contention is marginally true in a very confined sense. However, we do not agree that the actions taken show a recognition that AOU’s action is properly pending within the contemplation of Dawson-Austin and the cases leading up to it. If Angelou’s Rule 11 agreement recognizes AOU’s lawsuit is properly pending, it is only in that she tacitly acknowledges that she has to somehow respond. The carefully crafted Rule 11 agreement does no more than extend the answer date. Hence, it does not in any way limit what responsive pleadings she may file when the answer date arrives. To read into this Rule 11 agreement that Angelou acknowledged that she was subject to the court’s jurisdiction for all purposes, is a sesquipedalian stretch.

For these reasons, we hold Angelou’s Rule 11 agreement did not constitute a general appearance and therefore overrule AOU’s cross-point.

Specific Jurisdiction

Angelou argues the court erred in denying her special appearance based on specific jurisdiction because she did not enter into a contract with AOU.

We begin with the presumption that the court has jurisdiction over the parties. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). Further, it is the defendant’s burden to negate all bases for jurisdiction. See National Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 772 (Tex.1995).

The scope of review of a ruling on a special appearance includes all evidence in the record. See Vosko v. Chase Manhattan Bank, N.A., 909 S.W.2d 95, 99 (Tex.App.-Houston [14 th Dist.] 1995, writ denied). The existence of personal jurisdiction is a question of law. See B.H.P. de Venezuela a/k/a B.H.P. Veneca v. Casteig, 994 S.W.2d 321, 326 (Tex.App.-Corpus Christi 1999, pet. denied). However, to resolve a question of personal jurisdiction, the district court often must resolve underlying factual disputes. See Dowelanco v. Benitez, 4 S.W.3d 866, 870 (Tex.App.-Corpus Christi 1999, no pet. h.). We review the resolution of these factual disputes under an ordinary sufficiency of the evidence standard. See Smith v. Lanier, 998 S.W.2d 324, 329 (Tex.App.-Austin 1999, pet. denied). The appeals court may not disregard findings of fact if the record contains some evidence from which inferences may be drawn, or unless the findings are so contrary to the overwhelming weight of the evidence as to be manifestly wrong. See Conner v. ContiCarriers and Terminals, Inc., 944 S.W.2d 405, 411 (Tex.App.-Houston [14 th Dist.] 1997, no writ); Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.-Dallas 1993, writ denied). Additionally, if the evidence supports an implied finding of fact, we must uphold the district court’s judgment on any theory supported by the evidence. See Fish v. Tandy Corp., 948 S.W.2d 886, 892 (Tex.App.-Fort Worth 1997, writ denied).

For a Texas court to exercise jurisdiction over a nonresident defendant, the Texas long-arm statute must authorize the exercise of jurisdiction, and the exercise of jurisdiction must be consistent with federal and state due-process guarantees. See Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.1990). The long-arm statute authorizes jurisdiction over a nonresident defendant (1) where the nonresident contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in Texas, and (2) where the nonresident commits a tort in whole or in part in Texas. See Tex. Civ. PRAC. & Rem.Code Ann. § 17.042 (Vernon 1997). The statute also permits the exercise of personal jurisdiction where the nonresident is “doing business” in Texas by “other acts.” Id. The broad language of the statute’s “doing business” requirement permits the statute to reach as far as the federal constitutional requirements of due process will allow. See Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991).

To comply with the federal constitutional standard, Texas uses the following test: (1) The nonresident defendant must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, the act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation. See Schlobohm, 784 S.W.2d at 358.

The first prong of the jurisdictional analysis is to determine whether the nonresident defendant “purposefully” established “minimum contacts” with the state. See Guardian Royal, 815 S.W.2d at 230. In establishing minimum contacts, a court may have “general” or “specific” jurisdiction over the defendant. Id. General jurisdiction exists where the defendant has maintained continuous and systematic contacts with the forum state so that it is amenable to all suits there. Id. Specific jurisdiction exists where the injury to the plaintiff arises out of the minimum contacts with the forum state. Id. Specific jurisdiction may arise without the nonresident defendant setting foot upon the forum state’s soil or may arise from the commission of a single act directed at the forum. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). If a cause of action arises from or is related to the nonresident defendant’s contacts with state, a case for exercising jurisdiction over a nonresident defendant will be much more compelling. See Beechem v. Pippin, 686 S.W.2d 356, 361 (Tex.App.-Austin 1985, no writ).

In a hearing on a special appearance motion, a trial court should not reach the merits of the case. See Portland Savings & Loan Ass’n v. Bernstein, 716 S.W.2d 532, 535 (Tex.App.-Corpus Christi 1985, writ ref'd n.r.e.).

The parties appear to agree that the only basis for specific jurisdiction over Angelou would be the contract prong of section 17.042. Angelou offers several arguments in support of her contention that she had negated the existence of a contract in her special appearance. She cites the elements that are generally required to create an enforceable contract:

(1) An offer;
(2) Acceptance in strict compliance with terms of the offer;
(3) A meeting of the minds;
(4) A communication that each party has consented to the terms of the agreement;
(5) Execution and delivery of the contract with an intent that it become mutual and binding on both parties. See Hallmark v. Hand, 885 S.W.2d 471, 476 (Tex.App.-El Paso 1994, writ denied); and
(6) Consideration. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496

The determination of a meeting of the minds, and thus offer and acceptance, is based on the objective standard of what the parties said and did and not on their subjective state of mind. See Copeland v. Alsobrook, 3 S.W.3d 598, 604 (Tex.App.—San Antonio 1999, pet. denied). Unexpressed subjective intent is irrelevant. Id. In determining whether mutual assent is present, the court looks to the communications between the parties and to the acts and circumstances surrounding these communications. See Wiley v. Bertelsen, 770 S.W.2d 878, 882 (Tex.App.-Texarkana 1989, no writ). The offer must be clear and definite just as there must be a clear and definite acceptance of all terms contained in the offer. See Gulf Coast Farmers Co-op. v. Valley Co-op Oil Mill, 572 S.W.2d 726, 737 (Tex.Civ.App.-Corpus Christi 1978, no writ). Where a meeting of the minds is contested, as it is here, determination of the existence of a contract is a question of fact. See Runnells v. Firestone, 746 S.W.2d 845, 849 (Tex.App.-Houston [14th Dist.] 1988), writ denied per curiam, 760 S.W.2d 240 (Tex.1988). If the factfinder determines that one party reasonably drew the inference of a promise from the other party’s conduct, that promise will be given effect in law. See Copeland, 3 S.W.3d at 605.

The trial court made explicit findings of fact that led inexorably to its legal conclusion that a prima facie contract existed between AOU and Angelou. After examining the evidence under each element, we find the court’s findings are amply supported by the evidence.

Offer and Acceptance: In her brief, Angelou contends that AOU “only requested that Angelou respond to its request” that she accept the award, and that “in her response letter, Angelou made no agreement to attend the award ceremony.” We disagree. Angelou essentially contends that AOU made no offer to her, only that it “requested a response to its request.” However, as outlined above, the evidence shows that AOU quite clearly offered both verbally and in writing to bestow the Order of Kilimanjaro upon Angelou in Houston on December 5, 1998, and provide her with ceremonial attire and gifts, in exchange for her agreement to attend the award ceremony in her honor.

In turn, Angelou’s written agreement to come to Houston on December 5, 1998, to accept the award was in direct response to AOU’s offer and to its numerous requests that she provide, as AOU unmistakably couched it, her “formal letter of acceptance.”

In light of the unambiguous words of AOU’s offer and Angelou’s corresponding formal acceptance letter, as well as her numerous communications with Ajayi that led up to it, Angelou’s contentions that there was no discernable offer and acceptance simply stretch the bounds of credible argument. Thus, while Angelou may now flatly deny there was any evidence that she agreed to attend the award ceremony, we find there is significant evidence she did precisely that, substantially all of it coming from Angelou’s agents and Angelou herself.

Additionally, Angelou’s letter did not vary the terms of AOU’s offer (e.g., that she would only, say, accept the award in Dallas), nor was it in any way equivocal (e.g., she would only “consider” coming); thus, her acceptance was in strict compliance with the terms of AOU’s offer.

Meeting of the minds: Angelou next contends that because she did not intend to obligate herself to attend the AOU award ceremony, there was no evidence of a meeting of the minds. Again, the evidence of record and our objective standard of review dictate otherwise. The term “meeting of the minds” refers to the parties’ mutual understanding and assent to the expression of their agreement. See Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex.App.—Dallas 1999, pet. denied). The parties must agree to the same thing, in the same sense, at the same time. Id.

Having already discussed AOU’s offer and Angelou’s formal letter of acceptance in response, there is little to add to the issue of whether there was a meeting of the minds. We note, however, that it is manifest from the communications between Angelou and Ajayi, that AOU’s elaborate preparations would only begin after Angelou agreed, in a formal letter of acceptance, to attend the award ceremony on a specific day and location. After being made aware that the requested formal letter of acceptance would trigger AOU’s extensive preparations for an award ceremony in her honor, it is difficult to imagine that Angelou could have authorized such a letter without understanding and expecting it to communicate to AOU (1) her unequivocal assent to appear in accord with AOU’s offer, and (2) her willingness to be bound by her acceptance of the offer. Thus, despite Angelou’s avowed lack of subjective intent to bind herself to appear, we find her actions provided sufficient evidence of a meeting of the minds. See Copeland, 3 S.W.3d at 604.

Communication that each party consented to the terms of the contract; execution and delivery of the contract with the intent it become mutual and binding on both parties: As outlined above, these two elements were shown by the discussions between Angelou and AOU and with the delivery to AOU of Angelou’s formal acceptance letter.

Consideration: Angelou contends there was no consideration given by AOU to support the existence of a contract. Consideration consists of either a benefit to the promisor or a detriment to the promisee. See Roark, 813 S.W.2d at 496. It is a present exchange bargained for in return for a promise. Id. It may consist of some right, interest, or profit, or benefit that accrues to one party, or, alternatively, of some forbearance, loss or responsibility that is undertaken or incurred by the other party. See Solomon v. Greenblatt, 812 S.W.2d 7, 15 (Tex.App.—Dallas 1991, no writ). It is not necessary for a contract to be supported by a pecuniary consideration. See City of Crystal City v. Crystal City Country Club, 486 S.W.2d 887, 888 (Tex.Civ.App.-Beaumont 1972, writ ref'd n.r.e.); see also Jennings v. Radio Station KSCS, 96.3 FM, Inc., 708 S.W.2d 60, 61 (Tex.App.-Fort Worth 1986) rev’d on other grounds, 750 S.W.2d 760 (Tex.1988) (plaintiffdistener entitled to collect contest proceeds; consideration to radio station was gain in new listeners who hoped to win contest).

The record yields considerable evidence that Angelou’s promise to appear at the award ceremony induced AOU, to its detriment, to make elaborate preparations for the event. Likewise, there is evidence that AOU’s detriments and obligations to Angelou induced her promise to appear. More specifically, AOU obligated itself to bestow upon Angelou an “esteemed and prestigious” award. The award was previously given to another noted author, Prof. Chinua Achebe, and renowned artist, Dr. John Biggers. In her deposition, Angelou expressed her great admiration for both of these previous recipients. Additionally, AOU promised Angelou specially made ceremonial clothing and an elaborately carved staff. Finally, it promised to undertake to present the honor in an elaborate ceremony. The record does not show that AOU required any more in exchange from Angelou other than her willingness to accept the award at the ceremony. The evidence thus supports the conclusion that there was a mutual exchange of promises between Angelou and AOU, a benefit to Angelou, and a detriment to AOU. Therefore, their agreement was supported by consideration.

Finally, Angelou has defended the cancellation of her AOU appearance because of an “unforseen conflict,” namely that the engagement conflicted with her contract with Living Bank. We note that Angelou essentially stated at the outset of her 'discussions with AOU that she was willing to come to Houston to accept the award because it coincided with her Living Bank appearance. It appears, though, that Angelou may be relying upon an implicit contention that there was no contract with AOU because she discovered in September, 1998 that AOU, unbeknownst to her, was selling tickets to the award ceremony and that Angelou would be speaking there. However, this contention does not undermine the existence of the earlier-formed agreement of July 21, 1998. First, Angelou has not raised any issue in this interlocutory appeal which plight establish an impediment to formation of an enforceable contract. Moreover, we observe that after learning of AOU’s efforts to sell tickets and promote her giving a speech, Angelou, via her own booking agent, wrote the president of Living Bank a letter that, although Angelou would “not present a talk” at the AOU award ceremony, she would “say a few words to the gathering” about the Living Bank. This letter is significant because it provides evidence that, in spite of Angelou’s and the Living Bank’s awareness of AOU’s unartistic acts (1) Living Bank no longer objected to her AOU appearance, and (2) Angelou nonetheless confirmed her agreement to appear at the AOU event.

For purposes of the jurisdictional argument, we find there is ample evidence in the record of that Angelou entered into an enforceable agreement with AOU, thus she has failed to meet her burden to negate the existence of a contract.

Fair Play and Substantial Justice

We next determine whether the exercise of jurisdiction over Angelou would offend the notion of fair play and substantial justice. To defeat the fair play and substantial justice prong of due process, a nonresident defendant must present a compelling case that the exercise of jurisdiction would be unreasonable. See In re S.A.V., 837 S.W.2d 80, 85 (Tex.1992). Only in rare instances will the exercise of jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state. See Guardian Royal Exch., 815 S.W.2d at 231. This is true because the minimum contacts analysis encompasses so many considerations of fatness. See Schlobohm, 784 S.W.2d at 357-58. Nor is distance alone ordinarily sufficient to defeat jurisdiction; modern transportation and communication have made it much less burdensome for a party sued to defend himself in a state where it engages in economic activity. See Guardian Royal Exch., 815 S.W.2d at 231.

In determining whether the exercise of jurisdiction comports with the traditional notions of fair play and substantial justice, the court considers (1) the burden on the defendant; (2) the interest of the forum state in adjudicating the dispute; (3) the plaintiffs interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. See Guardian Royal, 815 S.W.2d at228.

Angelou claims she did not purposefully direct any activities toward Texas, thus the “minimum contacts” prong is not established. Angelou does acknowledge her office sent the acceptance letter but claims the letter was merely “random, fortuitous, and attenuated” contact with the state. We disagree.

Angelou correctly points out that AOU initiated contact with her and that it made all subsequent phone calls to her. Still, this ignores other relevant facts of Angelou’s involvement in the formation of her agreement to appear in Texas:
— Angelou determined the date of the event.
— She actively participated in and often controlled discussions about the event.
— She instructed Ajayi a number of times to send her information about the event to which she or her office would respond.
— She instructed her office to send information to be included in the program and for the event to be publicized.

In this light, her letter agreeing to be in Houston to accept the award on a specific date is far from “random, fortuitous, and attenuated” contact. Rather, it was the culmination of an extended process, in which Angelou, directly and through her agents, took an active role that led up to her agreement to come to Houston to accept the award.

Indeed, Angelou does not contend that trying the case in Texas would be unduly burdensome on her. She admitted in her deposition that she comes to Texas, specifically Austin, “quite a lot.” Her appearances include at least twelve paid speaking engagements in Texas between 1995 and 1999. This includes four paid engagements in 1999. Additionally, Angelou has twenty-two books in print, all of which are sold in Texas. She stated that the southern states are a large source of sales for her books. Texas has some interest in resolving a dispute where the contract was to have been performed in Texas. AOU, as plaintiff, operating from the state of Texas, has chosen Texas as the forum obtaining the most convenient and effective relief.

The trial court’s finding of specific jurisdiction over Angelou does not offend traditional notions of fair play and substantial justice. We therefore find that the trial court did not err in denying Angelou’s special appearance based on specific jurisdiction. We overrule Angelou’s specific jurisdiction issue. Because of this, we need not determine whether Texas courts may exercise general jurisdiction over her. See Tex.R.App. P. 47.1.

Sanctions for Frivolous Appeal

Finally, AOU has requested that we impose sanctions upon Angelou for a frivolous appeal of the trial court’s order overruling her special appearance. See Tex.R.App. P. 45. The question of whether to grant sanctions is a matter of discretion, which we exercise with prudence and caution, and only after careful deliberation. See Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 306 (Tex.App.-Houston [14 th Dist.] 1995, no writ). Although imposing sanctions is within our discretion, we will do so only in circumstances that are truly egregious. See Bridges v. Robinson, 20 S.W.3d 104, 114 (Tex.App.-Houston [14 th Dist.] 2000, no pet. h.); City of Houston v. Crabb, 905 S.W.2d 669, 676 (Tex.App.-Houston [14 th Dist.] 1995, no writ). Though we disagree with the merits of Angelou’s appeal, after considering the record and Angelou’s briefs, we do not believe the circfimstances in this case warrant sanctions. We therefore overrule AOU’s request for Rule 45 sanctions.

We affirm the trial court’s order.

      . Angelou characterizes the content of the letter as her employee's own "poetry.” She does not, however, dispute the employee acted as her agent nor contend that she did not authorize her to send a letter of acceptance.

      . There are no details in the record about specifically what type of talk AOU was publicizing Angelou was to give at the ceremony. We note there is nothing in the itinerary AOU sent to Angelou or in their discussions in the record that indicates AOU wished Angelou to give a talk.

      . The body of the letter of the letter, in its entirety, reads:
      This will confirm our telephone conversation of this date, wherein you have agreed to grant an extension to the answer deadline, in the above-styled and numbered cause, to August 18, 1999.
      If your understanding of our agreement is the same as that outlined, please sign this letter where indicated below and fax it back to me so that I may file it with the Court. Thank you for your cooperation in this matter.

      . We also note, one of the very purposes of a Rule 11 agreement is to facilitate the professional and amicable disposition of issues. It seems unseemly to use such an agreement as a sword to attempt to sever rights of the parties. Still, appellee's counsel contended he was ambushed when his cordial extension of time occasioned both the dilatory plea and this interlocutory appeal.

      . We note that AOU proposed other events such as a book signing and television interview, however, it clearly stated that they were only tentative and that Angelou could forego these. In turn, Angelou does not contend these events were necessary to AOU’s offer.

      . As Judge Learned Hand long ago observed in applying the objective theory of contract interpretation:
      A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes upon them, he would still be held, unless there were some mutual mistake, or something else of the sort. Of course, if it appear by other words, or acts, of the parties, that they attribute a peculiar meaning to such words as they use in the contract, that meaning will prevail, but only by virtue of the other words, and not because of their unexpressed intent.

        Hotchkiss v. Nat’l City Bank, 200 F. 287, 293 (S.D.N.Y.1911) (Hand, J.), aff'd, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913).

      . Angelou has not contended that AOU was not likewise bound to her to bestow the award in a manner commensurate with its offer to do so.

      . We have been provided no evidence that Angelou would have been in breach of any express provisions of her contract with Living Bank had AOU sold tickets for the award ceremony or had Angelou given a speech.