author: JAMES CURWOOD WITT, JR., J.,

text:
    STATE of Tennessee v. Michael Bruce McCLOUD.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    March 25, 2009 Session.
    June 12, 2009.

      Mark E. Stephens, District Public Defender, and Christy Murray, Assistant District Public Defender, for the appellant, Michael Bruce McCloud.
    Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Sarah Winningham and Leon Franks, Assistant District Attorneys General, for the appellee, State of Tennessee.
   OPINION

JAMES CURWOOD WITT, JR., J.,

delivered the opinion of the court,

in which JOSEPH M. TIPTON, P.J., and D. KELLY THOMAS, JR., J., joined.

A Knox County Criminal Court jury convicted the defendant, Michael Bruce McCloud, of driving under the influence, second offense, and the trial court imposed a sentence of 11 months and 29 days. In this appeal, the defendant asserts that the trial court erred by denying his motion to dismiss, that the trial court erred by denying his motion to exclude the blood alcohol test results as violative of Tennessee Code Annotated section 55-10-406, that the court erred in denying his bid to exclude the testimony of a police officer who opined about “occupant kinetics” inside a vehicle, that the trial court erred by limiting his cross-examination of a State’s witness, and that the evidence was insufficient to support his conviction. Discerning no error, we affirm the judgment of the trial court.

The conviction arose in this case from a February 20, 2004 automobile accident involving the defendant and his friend, Rusty Harpe. At trial, Mr. Harpe testified that on February 20, 2004, he and the defendant “went out to a strip club” and “got very, very drunk.” According to Mr. Harpe, the two left the club in Mr. Harpe’s car with the defendant driving and Mr. Harpe in the passenger’s seat. Mr. Harpe testified that after leaving the club, they “had a wreck,” but he could not recall the details of the crash. He said, “I remember wrapped around the telephone — or down in the ravine, sitting in the passenger side. And I got out. I did not see [the defendant] in the car. I got out and seen him behind the car.” Mr. Harpe stated that he did not remember why he was not driving, explaining, “Too drunk. Way too drunk. I ... do remember vomiting. Now, why I was not driving the car, I don’t know. That’s not an answer I can really give, why I was not driving.” Mr. Harpe stated that he did not “[n]ormally” allow others to drive his car, but he added, “If I’ve had too much to drink, I will not drive.”

Mr. Harpe testified that he could not recall why he left the scene of the accident, but he insisted that he “did not leave because [he] was scared of what had happened.” He stated further, “I did go to get help.” According to Mr. Harpe, he walked from the scene to his house, which was “only about maybe a half mile, three quarters of a mile” away and “yell[ed] for [his] grandmother.” He testified that his grandmother “was picking up the phone and then two police officers pulled in to [the defendant’s] house, which was right next door.” He told the officers that “he was the other passenger in the car,” and the officers transported him back to the accident scene.

Mr. Harpe testified that he “did not think” he was injured in the accident, but he admitted that he went to the hospital on the day following the accident for a “bang on the side of [his] head.” He said that although the “medical records show[ed] otherwise,” he could not recall going to the hospital. He did recall traveling with a police officer to the University of Tennessee Medical Center on the night of the accident for the purpose of having his blood drawn for alcohol content testing. He stated that he was arrested that night and charged with “DUI by consent” for allowing the intoxicated defendant to drive his car.

Mr. Harpe testified that he reached an agreement with the State that allowed him to plead guilty to a misdemeanor charge of “unlawful usage” in exchange for his testimony against the defendant.

During cross-examination, Mr. Harpe admitted that he drove to the club and that the defendant had never driven his car before that evening because it was Mr. Harpe’s “preference” that no one else drive his car. He conceded that the car went down an embankment, crashed into trees, and broke a telephone pole and that the car was “[c]ompletely totaled.” After the accident, Mr. Harpe got out of the ear and went to his house. Although he could not recall any specifics about the visit, Mr. Harpe acknowledged going to Parkwest Hospital later in the day of the crash complaining of pain in both legs and a laceration on the back of his head. He could not recall telling the treating physician that his left leg was “throbbing” or the physician’s diagnosis of a deep bone bruise to his left leg.

Mr. Harpe also admitted that his insurance company refused to pay the balance due on his car loan or any of his medical expenses because alcohol was a factor in the accident. The insurance company also refused to pay the $2,500 he was charged by the City of Knoxville for the replacement of the telephone pole.

Mr. Harpe conceded that although he had testified that he did not drink and drive, he was serving a sentence of probation for a driving under the influence (“DUI”) conviction at the time of trial. Mr. Harpe acknowledged that he understood that the penalties for DUI convictions increased with each subsequent conviction.

Despite his concession that he had been convicted of DUI, on redirect examination, Mr. Harpe testified that the defense’s questioning did not “make [him] feel too well” because he had not “been convicted of DUIs.” He said, “I don’t like for things to be brought up if I wasn’t convicted of the charge.... ” He again admitted his prior felony conviction of aggravated burglary, stating, “I have to admit when I was younger I used to raise a lot of cane.... But ... people do change. And since '011 have this DUI ... and ... I have a DUI that two months ago I pled guilty to from two years ago.” Mr. Harpe agreed that he “chose” to testify against the defendant even though he was aware he would be questioned about his prior convictions.

During recross-examination, Mr. Harpe conceded that his testimony against the defendant was required in order to receive the reduction in his charge of DUI by consent.

Following Mr. Harpe’s testimony, the State introduced by stipulation the alcohol and toxicology reports generated on February 20, 2004, for both the defendant and Mr. Harpe. The reports indicated that the defendant had a blood alcohol content of .11 percent and that Mr. Harpe had a blood alcohol content of .16 percent.

Knox County Sheriffs Department Officer Tom Walker, who was on patrol when the automobile accident occurred on February 20, 2004, testified that he received the initial call “[a]t one o’clock in the morning” and that he proceeded to the accident scene, which was .4 miles south of Kingston Pike on Ebenezer Road. He found the car in a ditch and the defendant “standing next to the passenger side of the vehicle.” Officer Walker recalled that he told the defendant not to move because the defendant “had an obvious leg injury. There was a bulge that was in his skin that was sticking out through the rip in his pants.” At that point, the defendant asked, “[Wlhere’s Rusty?” and told Officer Walker that “Rusty” was “the guy that was with [him].” Officer Walker and other emergency personnel began searching for “Rusty” in the nearby woods.

Another officer learned that the vehicle was registered to an address “just a half mile to three quarters of a mile up the road.” That officer proceeded to the residence, where he located Mr. Harpe and brought him back to the scene. Emergency personnel placed the defendant on a backboard and “immobilized his leg in a brace because of the obvious leg injury to the left side.” Officer Walker stated that the defendant also had “multiple cuts and bruises to the left side of his face.” He said, “It was almost like you drew a line right down the center of his face. Everything was on the left side of the body, arms, face area, were all cut and bloody and blood was coming down onto his clothes.”

Officer Walker stated that he “could smell the odor of an alcoholic beverage on [the defendant]” and that the defendant “had blood shot eyes, his speech was slurred.” Officer Walker stated that these signs led him to believe that the defendant “had been drinking and driving.”

Officer Walker testified that Mr. Harpe “had cuts and bruises and everything to the right side of his body.” He stated that Mr. Harpe “was obviously intoxicated, blood shot eyes, slurred speech. He couldn’t stand very well either.” Officer Walker transported Mr. Harpe to the hospital in his police cruiser. Mr. Harpe told Officer Walker that the car, which was registered to Mr. Harpe’s grandmother, “was basically his. He was making the payments, that kind of stuff.” Mr. Harpe also told Officer Walker that the defendant had been driving the vehicle when the accident occurred.

Officer Walker testified that based upon the damage to the vehicle and the injuries suffered by the defendant, he concluded that the defendant was driving the vehicle at the time of the accident. He explained:

The evidence at the scene was the car, while going around a slight curve, went over the center line, and the driver over corrected and started to skid sideways. He was unable to recover from the skid, went off the road, hit the telephone pole right in the driver’s side door. This caused the car to rotate on 180 degrees, go down in the ditch a little further, and hit another stand of trees, about three of them, after traveling another 20 feet. It rotated another 180 degrees, traveled over 19 feet, and hit two more trees, becoming wedged in between these two trees, with the only door being able to open was the passenger side.
Based on the injuries and the extent of the injuries on the two people that were in the car, it is my opinion that Mr. McCloud as the initial impact, as you will see by the pictures, if I am the driver and I come into — hit a telephone pole at high speed, my body is going to go to the left, because the body is in motion, is going to keep in motion until the wreck of an outside force. He came in contact with an unmovable object. The telephone pole and the door, causing his major injuries to his left side. Plus, the glass breaking right next to his head on the driver’s side glass causing cuts only to the left side of his face.
When the ear rotated 180 degrees, my opinion, Mr. Harpe was a passenger, when they hit those trees behind him, it was not the same kind of impact. He’s already lost speed, he’s already lost momentum, it’s not the same type of impact. He hits, of course, on his side so the body tends to go back this way. He comes in contact with the door on his side, causing injury to his right knee, which apparently in the hospital report he had an injury to his right knee. The glass breaks again right here next to his face causing the cuts and bruising to the right side of his face.

Following voir dire of Officer Walker on the issue of his training and experience, the trial court declared the officer “an expert in the field of accident reconstruction.” The court ruled “[t]hat would include issues such as the position of people within the vehicle.” Officer Walker then reiterated that the defendant’s injuries, which were confined to the left side of his body, led him to conclude that the defendant had been driving the vehicle at the time of the accident. He testified that the defendant’s injuries could not have been caused by his striking the center console of the vehicle, explaining:

If [the defendant] had been the passenger, and had struck that console hard enough to cause the major injury, crushing injuries to his left side, that console being this flimsy, would have had major damage. Something that I could have detected, that something came in major contact with that device, versus a door which is designed to stay shut.

He added that had he been driving, “Mr. Harpe would have had serious injuries to [the left] side. And he did not.”

Testing of blood samples provided by the defendant and Mr. Harpe following the accident established the defendant’s blood alcohol content as .11 percent and Mr. Harpe’s blood alcohol content as .16 percent. Based upon these results, Officer Walker charged the defendant with DUI as the driver of the vehicle and Mr. Harpe with DUI by consent for allowing the defendant to drive his car while intoxicated.

During cross-examination, Officer Walker acknowledged that he had not reviewed the defendant’s medical records and that he had based his opinions on only those injuries he observed on the night of the accident. He stated that he had reviewed Mr. Harpe’s medical records after they were subpoenaed by the State in anticipation of the trial. According to the officer, Mr. Harpe’s records supported his opinion because they indicated injuries to Mr. Harpe’s right knee and cuts and bruises on the right side of his face.

The defendant testified that on the evening before the accident, he and Mr. Harpe began “hanging out” at Mr. Harpe’s house at approximately 5:30 p.m. The two men, along with the defendant’s ex-wife and Mr. Harpe’s girlfriend, were “drinking and ... playing cards and whatnot.” The defendant stated that he left Mr. Harpe’s residence at approximately 9:30 p.m. but returned after his wife went to bed. He recalled that he drank “a couple more beers” and that he and Mr. Harpe “just kinda chilled out.” At some point, Mr. Harpe suggested that the two go to the “Mouse’s Ear,” a nearby strip club.

The defendant testified that Mr. Harpe drove them in his Buick Regal and that they stayed at the club for approximately one and a half hours. According to the defendant, he and Mr. Harpe took beer to the Mouse’s Ear because the club does not serve alcoholic beverages. He recalled that Mr. Harpe drank six beers while at the Mouse’s Ear and that he drank “three or four” beers while there. When they left the Mouse’s Ear at 12:30 a.m., Mr. Harpe was driving. The defendant testified that he had never driven Mr. Harpe’s car. According to the defendant, the last thing he could remember was falling asleep at the traffic light “next to Rafferty’s on Ebenezer.” The defendant stated that he did not awake during the accident, explaining, “Well, when I woke up, I was in a ditch, and, you know, just the ... shock, you know, because I didn’t know what had happened, and it took me a few minutes to realize what had happened.”

The defendant testified that when he realized there had been an accident, he became “worried” about Mr. Harpe, fearing that “he might have got ejected or something and was maybe in front of the car.” He decided to look for Mr. Harpe, “so [he] opened the passenger’s side door and pulled [him]self up and out.” He explained that he “was in real pain” and that he was unable to bear any weight on his left leg. The defendant stated that he used the door panel to brace himself as he shouted for Mr. Harpe. He was still standing next to the door when Officer Walker arrived. The defendant speculated that Mr. Harpe had used the back window of the car, which had been shattered, to exit the vehicle.

The defendant testified that he was taken by ambulance to the University of Tennessee Medical Center where he was treated for a fractured pelvis. He indicated that the fracture occurred “somewhat below the left side of his belt and towards the back.” He stated that he did not have a broken leg and that he did not have any “protrusion” on his left leg. The defendant also testified that he suffered a large cut on his right ear. He stated that Mr. Harpe lied when he said that the defendant was driving at the time of the accident.

During cross-examination, the defendant conceded that he had consumed approximately 12 beers on the night of the accident and that he was drunk.

The State called Officer Walker in rebuttal. Officer Walker testified that the condition of the vehicle established that Mr. Harpe did not exit the vehicle through the rear window. He explained,

After a wreck, especially of this magnitude, when it goes into debris and dirt, dust goes up and then it settles back down into the car. And as you can see, there’s dust all over the trunk area of the vehicle.
If a person had climbed out that direction, there would be foot scuff marks, hand-prints where they’ve actually moved the debris. This debris has not been moved in any way where anybody could have climbed out that way.
.... You’ll notice that both seats are upright and intact. Neither one has been broken back.
In order — under the theory of the Defense, for him to have climbed out through the back, he would have had to turn through the air bag, through the steering wheel, go in between the seats that were upright, climb out through the back window over the deck that was pointed up, across the broken glass and across the trunk and not leave any marks. There’s no evidence that he would have been able to go out that way.

Officer Walker also testified that Mr. Harpe could not have exited the vehicle via the driver’s side window “because it was right up against the tree, and a human body couldn’t have fit in between there, especially the size of Mr. Harpe.”

At the conclusion of the trial, the jury returned a verdict of guilty of DUI. After a second proceeding wherein the State introduced certified copies of the defendant’s driving history from the Department of Safety and his previous conviction of DUI, the jury found the defendant guilty of second offense DUI.

I. Commencement of Prosecution

In his first assignment of error, the defendant contends that the trial court erred by denying his motion to dismiss because, he asserts, the prosecution was not commenced within the 12-month time frame provided by Tennessee Code Annotated section 40-2-102. The State asserts that the prosecution in this case commenced with the issuance of the affidavit of complaint on February 20, 2004, the date of the offense. In the alternative, the State submits that the prosecution commenced when the defendant was bound over to the grand jury in October 2004, some eight months after the offense.

Because the facts regarding this issue are not in dispute and because our analysis employs the construction and interpretation of various statutes and the rules of criminal procedure, our review is de novo with no presumption of correctness afforded to the ruling of the trial court. State v. Ferrante, 269 S.W.3d 908, 911 (Tenn.2008).

The defendant was convicted of the misdemeanor offense of DUI, second offense. T.C.A. §§ 55-10-403(a)(1), 39-11-110 (2003). Tennessee Code Annotated section 40-2-102 provides that “[e]xcept as provided in § 62-18-120(g) and subsection (b) of this section, all prosecutions for misdemeanors shall be commenced within twelve (12) months next after the offense has been committed.” T.C.A. § 40-2-102(a). The purpose of this limitations period “is to protect a defendant against delay and the use of stale evidence and to provide an incentive for efficient prosecu-torial action in criminal cases.” State v. Nielsen, 44 S.W.3d 496, 499 (Tenn.2001). Statutes of limitation are construed “liberally in favor of the criminally accused.” Ferrante, 269 S.W.3d at 911 (citing State v. Henry, 834 S.W.2d 273, 276 (Tenn.1992)).

Tennessee Code Annotated section 40-2-104 provides that a prosecution is commenced by the following:

finding an indictment or presentment, the issuing of a warrant, binding over the offender, by the filing of an information as provided for in chapter 3 of this title, or by making an appearance in person or through counsel in general sessions or any municipal court for the purpose of continuing the matter or any other appearance in either court for any purpose involving the offense.

T.C.A. § 40-2-104. This section “provides for the commencement of a prosecution by several methods, ‘all deemed to provide the defendant with sufficient notice of the crime.’ ” Ferrante, 269 S.W.3d at 914 (quoting State v. Tait, 114 S.W.3d 518, 522 (Tenn.2003)). “ ‘A lawful accusation is an essential jurisdictional element of a criminal trial, without which there can be no valid prosecution.’” Id. (quoting State v. Morgan, 598 S.W.2d 796, 797 (Tenn.Crim.App.1979)). Our supreme court “has long recognized that, ‘prior to formal accusation, [a] defendant’s rights are protected' by the statute of limitations.’ ” Id. (quoting State v. Baker, 614 S.W.2d 352, 354 (Tenn.1981)).

Because the defendant was not indicted until August 2005, more than 12 months after the offense, we must determine whether some other event occurred before the filing of the indictment that was sufficient to commence the prosecution in this case. As indicated, the State asserts that “the defendant’s prosecution commenced on February 20, 2004, with a valid affidavit of complaint charging him with a second offense of driving under the influence.” The plain language of Code section 40-2-104 provides five specific ways by which a prosecution may be commenced, and an affidavit of complaint is not listed among the alternatives. See T.C.A. § 40-2-104. An affidavit of complaint is merely “a statement alleging that a person has committed an offense,” see Tenn. R.Crim. P. 3, and is not, standing alone, sufficient to provide formal notice of the offense charged, see State v. Richard Gastineau, No. W2004-02428-CCA-R3-CD, slip op. at 4, 2005 WL 3447678 (Tenn.Crim.App., Jackson, Dec. 14, 2005). Because an arrest warrant may or may not issue upon the affidavit of complaint, the “affidavit of complaint will not necessarily provide a defendant with notice that he is being charged with an offense, and an affidavit of complaint, with nothing more to provide a defendant with notice, is not a charging instrument.” See id.

Similarly, a citation issued by an officer in lieu of a custodial arrest is not a “formal accusation.” Just as a warrantless custodial arrest does not, alone, commence a prosecution, a citation issued in lieu of an arrest is not the result of an independent probable cause determination and, therefore, does not mark the beginning of the prosecution. See State v. Best, 614 S.W.2d 791, 795 (Tenn.1981) (holding in the case of a warrantless arrest that without a “followup” determination of probable cause either through the issuance of a warrant or a binding over to the grand jury “the criminal prosecution terminates”); see also Ferrante, 269 S.W.3d at 912 (noting that Rule 5(a) of the Tennessee Rules of Criminal Procedure requires those defendants arrested without a warrant be taken before a magistrate for the lodging of “ ‘formal’ ” charges by the filing of the affidavit of complaint and issuance of a warrant). Indeed, the Advisory Commission Comments to Rule 4 of the Tennessee Rules of Criminal Procedure note clearly that, even in cases of warrantless arrest, the arrest warrant issued upon the affidavit of complaint rather than the affidavit of complaint itself “still serves as the official charging instrument, issued after a judicial finding of probable cause, and gives notice of the charge which must be answered.” Tenn. R.Crim. P. 4, Advisory Comm’n Comments. In consequence, the affidavit of complaint and citation in lieu of arrest issued to the defendant on February 20, 2004, did not commence the prosecution in this case.

The State also contends that the prosecution in this case could have commenced when the defendant’s case was bound over to the grand jury by the general sessions court. Citing Ferrante, the defendant asserts that because the affidavit of complaint did not allege the essential elements of the offense, the bind-over order was ineffective to commence the prosecution in this case.

The defendant’s argument overlooks entirely the probable cause finding of the general sessions court, which occurred within the statute of limitations period. Code section 40-2-104 provides that a prosecution may commence by the court’s “binding over the offender.” In this case, the indictment provides that the defendant’s case was bound over to the grand jury on October 26, 2004, well within the statute of limitations. In Ferrante, Fer-rante’s case was not bound over to the grand jury before the expiration of the statute of limitations, and as a result, the State sought to rely upon Ferrante’s various appearances in the general sessions court as the start of the prosecution. Our supreme court ruled that a defendant’s appearance in the general sessions court wiE only mark the commencement of the prosecution under Code section 40-2-104 where the underlying affidavit of complaint is valid. See Ferrante, 269 S.W.3d at 914-15. In this case, unlike Ferrante, there was a judicial finding of probable cause and a statutorily sufficient commencement of the prosecution within 12 months of the commission of the offense. Thus, the prosecution in this case commenced within the period provided by law.

II. Admission of Blood Alcohol Test

The defendant next asserts that the trial court erred by denying his motion to exclude the blood alcohol test results as violative of Tennessee Code Annotated section 55-10-406(a)(l) (2006). The State contends that the trial court properly admitted the test results.

At the hearing on the motion to suppress, Officer Walker testified that he was dispatched to the accident scene at 1:00 a.m. on February 20, 2004. When he arrived, he saw the defendant standing next to the wrecked vehicle. The defendant told Officer Walker that he could not remember if he had been driving the car when the accident happened and that he could not find his friend, who had been with him in the car. Officer Walker stated that he conducted “about another half hour’s investigation,” during which time Officer Walker noticed the odor of an alcoholic beverage on the defendant and located an empty beer bottle inside the car. At the conclusion of this investigation period, other officers discovered Mr. Harpe at his residence. According to Officer Walker, he determined that the defendant would be arrested and charged with DUI “[a]t the point when [he] found [Mr. Harpe] at his home. We brought him down and interviewed him. He was more coherent. Told us they had been drinking all night ... and ... he allowed [the defendant] to drive the car.” By that time, the defendant had been transported to the hospital, so Officer Walker “went to the hospital and cited Mr. McCloud for DUI.”

During cross-examination, Officer Walker testified that immediately upon his arrival on the scene, he instructed the defendant not to move “because he said his leg hurt.” Officer Walker added that he told the defendant, “I have an ambulance on the way.” He said that his attention was then diverted to the search for the missing occupant, which search took “[p]robably about 20 minutes.” He admitted that upon smelling the odor of alcohol, he decided to ask the defendant to submit to a field sobriety test.

The “Knox County Sheriffs Office Alcoholic Influence Report” filed as an exhibit to Officer Walker’s testimony reflects that the defendant was taken into custody at 1:30 a.m. The “Alcohol/Toxicology Request” also exhibited to Officer Walker’s testimony reflects that the defendant’s blood was drawn at 3:20 a.m.

The defendant testified that when Officer Walker arrived on the scene, he told the defendant, “Don’t move. Stay right there.” He stated that he would not have been able to move because of his injuries. He admitted during cross-examination that Officer Walker never told him that he was under arrest and that he left in the ambulance without speaking to the officer.

At the conclusion of the hearing, the trial court specifically accredited Officer Walker’s testimony that he “conducted some initial investigation before he made any determination about who he could even charge.” The court concluded that the defendant’s blood was drawn “within the two-hour period and is admissible for that reason.” The trial court noted that “this statute is going to have to be interpreted a little bit different than the Fourth Amendment areas that we would normally rely on.”

A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217 (Tenn.2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). Thus, questions of credibility, the weight and value of the evidence, and the resolution of conflicting evidence are matters entrusted to the trial judge, and this court must uphold a trial court’s findings of fact unless the evidence in the record preponderates against them. Odom, 928 S.W.2d at 23; see also Tenn. R.App. P. 13(d). The application of the law to the facts, however, is reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn.1998). We review the issue in the present appeal with these standards in mind.

At the time of the hearing in this case, Tennessee Code Annotated section 55-10-406 provided, in pertinent part, as follows:

Any person who drives a motor vehicle in this state is deemed to have given consent to a test or tests for the purpose of determining the alcoholic content of that person’s blood, a test or tests for the purpose of determining the drug content of such person’s blood, or both such tests. However, no such test or tests may be administered pursuant to this section, unless conducted at the direction of a law enforcement officer having reasonable grounds to believe such person was driving while under the influence of alcohol, a drug, any other intoxicant or any combination of alcohol, drugs, or other intoxicants as prohibited by § 55-10-401, or was violating the provisions of §§ 39-13-106, 39-13-213(a)(2) or 39-13-218. For the results of such test or tests to be admissible as evidence, it must first be established that all tests administered were administered to the person within two (2) hours following such person’s arrest or initial detention.

T.C.A. § 55-10-406(a)(l) (2006).

Here, the trial court accredited the testimony of Officer Walker that he did not detain the defendant immediately upon his arrival at the accident scene and that he investigated the scene for 20 to 30 minutes before deciding to charge the defendant with DUI. Moreover, the documents exhibited to Officer Walker’s testimony confirm that the defendant was not placed under arrest until 1:30 a.m., one hour and 50 minutes before his blood was drawn for alcohol content testing. Witness credibility and the resolution of conflicts in the proof are clearly the province of the trial judge, and we will not disturb the conclusions of the trial judge in this ease.

III. Expert Testimony

The defendant next contends that the trial court erred by permitting Officer Walker to testify as an expert witness on the issue of the position of the occupants of the vehicle during the crash, a field the defense deems “occupant kinetics.” The State asserts that the trial court properly allowed Officer Walker to testify as an expert.

During a pretrial hearing to determine whether Officer Walker would be permitted to testify as an expert witness, he testified that he “received basic accident investigation training in [the] police academy and then advanced accident investigation also during the academy.” In addition, he stated that he “went to the fatal accident investigator’s course, which is a specialty course to investigate fatal accidents.” He stated that the advanced accident investigation course “teaches you to go a little more in depth as far as scientific evidence to determine who the driver is and who’s lying to you and who is not lying to you.” According to Officer Walker, the fatal accident investigation course “goes more in depth on the mechanics of the car and then more in depth as to how an accident really happens.” He added, “And then we can also determine, based on injuries to people and everything else, where they were seated in the car.” Officer Walker explained the difference between skid marks and yaw marks, and how each can be useful in determining the speed and trajectory of the vehicle during an accident. He stated that in his 14 years as a police officer, he had investigated 20 fatal accidents and well over one hundred nonfatal accidents.

During cross-examination, Officer Walker admitted that he did not possess a degree in either physics or medicine. He also admitted that he had never been qualified as an expert in accident reconstruction. Officer Walker testified that he based his opinion that the defendant was the driver of the vehicle in part on his interview of the defendant and his observation of the defendant’s injuries. He stated that the emergency medical personnel told him the defendant likely had a broken left femur. He admitted that he later learned the defendant had broken his left hip rather than his leg. He stated the only impact sufficient to cause such an injury was the initial impact of the driver’s side door and the telephone pole. Officer Walker added that the fact that the defendant’s injuries were confined to the left side of his body and that there was no damage to the center console of the vehicle contributed to his determination that the defendant had been driving at the time of the accident. Officer Walker conceded that he did not review the defendant’s medical records.

At the conclusion of Officer Walker’s testimony, the State offered him as an expert witness to provide testimony on

his investigation dealing with the injuries of the individuals, looking a[t] the point of impact on the vehicle, and applying those two things together, the physics involving the point of impact, the way it was turning, and the injuries that were consistent with those impacts on the vehicle to determine the occupant positioning of the occupants of the vehicle.

At the conclusion of the hearing, the trial court overruled the defendant’s objection, ruling:

It appears to me that the officer, if it’s relevant, will be able to testify based on his experience and training about accidents and what he knows from his training and experience. As far as what is the opinion of what caused the accident, the ... order of the events as far as how the car impacted on several different occasions, I, quite frankly, don’t think that those opinions go to who the driver was, on the issue of the driver. If it ends up being solely based on the location of the injuries, I think that really qualifies under Rule 701 as opinion testimony by a lay witness.
But the other areas, if the State puts those on, I find he is qualified to testify about accidents and the opinions he’s testified to today. Those would be admissible based upon his experience and training under Rule 702.

At trial, the State again had Officer Walker relate his training and experience, and, on the basis of that testimony, the trial court declared the officer an expert in “accident reconstruction” and ruled that his expertise “would include issues such as the position of the people within the vehicle.”

Initially, we note that it is not entirely clear whether the trial court allowed Officer Walker to offer his expert opinion that the defendant was the driver of the vehicle or to offer lay opinion that, based on his observations of the defendant’s injuries, the defendant was the driver of the vehicle. As such, we will analyze each theory of admission in turn.

First, we note that the admissibility of expert testimony is governed by Rules 702 and 703 of the Tennessee Rules of Evidence. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn.1997). Rule 702 addresses the need for expert testimony and the qualifications of the expert: “If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702. Its counterpart, Rule 703, focuses on the reliability of expert opinion testimony. Generally, the admissibility of expert testimony is a matter entrusted to the sound discretion of the trial court, and there can be no reversal on appeal absent clear abuse of that discretion. State v. Copeland, 226 S.W.3d 287, 301 (Tenn.2007); State v. Ballard, 855 S.W.2d 557, 562 (Tenn.1993).

Here, Officer Walker testified that he had been trained in accident investigation at the police academy and that he had taken further training in the investigation of fatal accidents, which he described as “more in-depth” than the police academy training. He stated that this training specifically included training to discern the relative positions of the vehicle’s occupants at the time of the accident. He also noted that he had investigated more than one hundred non-fatal accidents and 20 fatal accidents prior to the accident in this case. This training and experience, in our estimation, permitted him to testify as an expert witness regarding the mechanics of the accident in this case, particularly the movement of the ear during the accident and the force applied to the car at the various points of impact. Furthermore, because Officer Walker testified that he had been trained to use the mechanics of the accident to determine the positions of occupants within the vehicle, the trial court properly determined that he was entitled to provide an expert opinion that the defendant was driving the vehicle at the time of the accident.

In our view, this court’s ruling in State v. William Earl Murphy, No. 15, 1990 WL 40995 (Tenn.Crim.App., Jackson, Apr. 11, 1990), is distinguishable from the defendant’s case because Officer Walker, unlike the patrolman in William Earl Murphy, testified that he had received particular training to surmise the position of the vehicle’s occupants during the crash, which we termed “occupant kinetics.” Although the defense argues that Officer Walker’s lack of a degree in either physics or medicine precluded him from offering testimony about occupant kinetics, we note that William Earl Murphy states only “a general grasp” of “physics or mechanics, engineering or mathematics” is required. Officer Walker’s qualifications meet this requirement.

As indicated, the trial court ruled prior to trial that Officer Walker would be allowed to offer his opinion as a lay witness that the defendant was driving the vehicle. Lay witnesses may give testimony in the form of an opinion where the testimony is “(1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.” Tenn. R. Evid. 701(a). The testimony is not objectionable merely because it embraces an ultimate issue before the jury. Tenn. R. Evid. 704. However, the admission of lay opinion testimony is limited to those situations wherein the jury could not readily draw its own conclusions on the ultimate issue, without the aid of the witness’s opinion testimony. Blackburn v. Murphy, 787 S.W.2d 529, 533 (Tenn.1987). Where “ ‘the subject of [a non-expert’s] inference [from the facts is] well within the range of common knowledge,’ then a question calling for a conclusion of a lay witness or an answer offering an opinion of a lay witness on an ultimate issue is generally improper.” Id. at 532 (quoting Nat'l Life & Accident Ins. Co. v. Follett, 168 Tenn. 647, 663, 80 S.W.2d 92, 98 (1935)). When the admission or exclusion of opinion evidence is challenged on appeal, it is reviewable only for abuse of discretion. See, e.g., State v. Gray, 960 S.W.2d 598, 606 (Tenn.Crim.App.1997).

Officer Walker testified that because the defendant suffered the greater injury of the two occupants and because that injury was to the left side of the defendant’s body, he had concluded that the defendant was the driver of the vehicle. Because the jury could have easily drawn this conclusion for itself based upon Officer Walker’s testimony about the defendant’s injuries and the condition of the vehicle, the trial court should not have allowed the officer to offer a lay opinion that the defendant was the driver of the vehicle. Because the conclusion was so readily apparent from the evidence and because there was other,, direct evidence that the defendant was driving at the time of the accident, the erroneous admission of the officer’s opinion as a lay witness was harmless. See Tenn.R.App. P. 36(a); see also Murphy, 737 S.W.2d at 533.

A protracted analysis of whether the trial court intended Officer Walker’s opinion as lay or expert testimony is unnecessary. Under either analysis, the defendant has failed to show reversible error.

IV. Cross-examination of Rusty Harpe

The defendant next contends that the trial court erred by prohibiting him from cross-examining Mr. Harpe “on his prior driving under the influence related charges and accidents.” The State submits that the trial court did not err by limiting the defendant’s cross-examination.

We need not tarry long over the defendant’s claim because he failed to make an offer of proof regarding those “driving under the influence related charges and accidents” he claims he was prohibited from utilizing. Defense counsel made several statements to the trial court regarding accidents that Mr. Harpe had been involved in and charges that had begun as DUI and were later reduced to lesser offenses, but she never offered any proof to the trial court to support the assertion that the accidents were alcohol-related or that the prior convictions began as DUI charges. Without this information, it is impossible to conduct a meaningful review of this issue. See State v. Hall, 958 S.W.2d 679, 691 n. 10 (Tenn.1997) (“Not only does [an offer of proof] ensure effective and meaningful appellate review, it provides the trial court with the necessary information before an evidentiary ruling is made. Indeed, generally, if an offer of proof is not made, the issue is deemed waived and appellate review is precluded.”); see also Tenn. R. Evid. 108. The trial court allowed the defendant to question the witness regarding his previous conviction of DUI and any resultant motive to lie.

The defendant also contends, as part of his argument regarding the limitation of his cross-examination of Mr. Harpe, that the trial court violated his “basic rights essential to a fair trial” when it prohibited him from questioning the witness “about the conditions and implications of [his plea] agreement.” The record belies the defendant’s argument. Although it is clear from the record that the defendant was unaware of the agreement prior to the trial, the trial court did not, in any way, limit his questioning of the witness about the agreement. The defendant is not entitled to relief on this issue.

V. Sufficiency of the Evidence

In his final assignment of error, the defendant asserts that the evidence adduced at trial was insufficient to support his conviction. The State disagrees. We agree with the State.

We review the defendant’s claim mindful that our standard of review is whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn. R.App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn.Crim.App.2003). This standard applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. Winters, 137 S.W.3d at 654.

When examining the sufficiency of the evidence, this court should neither re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id. at 655. Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). Significantly, this court must afford the State the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. Id.

At the time of the offense in this case, Tennessee Code Annotated section 55-10-401 provided, in pertinent part, “It is unlawful for any person to drive or to be in physical control of any automobile ... on any of the public roads and highways of the state ... while ... [t]he alcohol concentration in such person’s blood or breath is eight-hundredths of one percent (.08 %) or more.” T.C.A. § 55-10-401(a)(2) (2008).

The evidence adduced at trial, taken in the light most favorable to the State, established that the defendant and Mr. Harpe began drinking beer together at approximately 5:30 p.m. After drinking for several hours, the two men traveled together in Mr. Harpe’s vehicle to the Mouse’s Ear, where they consumed even more alcohol. Mr. Harpe testified that they left the Mouse’s Ear with the defendant driving. Officer Walker testified that because the defendant’s injuries were confined to the left side of his body, he concluded that the defendant had been driving when the car struck the telephone pole. The defendant admitted being “drunk” at the time of the accident, and testing established that his blood alcohol content was .11 percent. Although the defendant denied driving the car, the jury clearly chose to accredit the testimony of Officer Walker and Mr. Harpe. We decline the defendant’s invitation to reassess the credibility of either witness. See Cabbage, 571 S.W.2d at 835. The evidence was sufficient to support the defendant’s conviction.

Conclusion

Based on the foregoing analysis, the judgment of the trial court is affirmed.

      . We note that the supreme court repeatedly referred to the affidavit of complaint in Ferrante as “the purported charging instrument." See Ferrante, 269 S.W.3d at 909, 912, 914, 915. However, a careful reading of the case establishes that the officer who executed the affidavit of complaint attempted to comply with the necessary steps for the issuance of an arrest warrant by presenting the affidavit of complaint to the court clerk, who signed it as a "neutral and detached” magistrate. Id. at 910. Because the clerk had no authority to make a probable cause determination, however, the supreme court ruled that the "affidavit of complaint was void ab initio.” Id. at 915. Moreover, Code section 40-2-104 clearly states the means by which a prosecution may be commenced, and the issuance of an affidavit of complaint is not listed among the alternatives. See T.C.A. § 40-2-104. In addition, the rules of procedure provide that the arrest warrant rather than the affidavit of complaint is the "formal charging instrument.” Tenn. R.Crim. P. 4, Advisory Comm'n Comments. We surmise that the high court did not intend to suggest that an affidavit of complaint, standing alone, can serve as a charging instrument.

      . The legislature adopted the amendment including this language in 2005. The last sentence, which created the two-hour limitation, was deleted as of January 1, 2009. See Tenn. Pub. Acts 2008, ch. 957, § 1.

      . This court has previously offered the following definition of the term: "Occupant kinetics, as we use the term, is the determination of what happened to the persons (bodies) in the vehicle during the accident.” State v. William Earl Murphy, No. 15, slip op. at 7, 1990 WL 40995 (Tenn.Crim.App., Jackson, Apr. 11, 1990).


source: Caselaw Access Project

author: Chief Justice JEFFERSON

license: Public Domain

text:
    SPIR STAR AG, Petitioner, v. Louis KIMICH, Respondent.
    No. 07-0340.
    Supreme Court of Texas.
    Argued Dec. 10, 2008.
    Decided March 12, 2010.

      Sarah B. Duncan, Elissa Gail Underwood, Mike A. Hatched, Locke Lord Bis-sell & Liddell, LLP, Austin, TX, Rick Lee Oldenettel, Oldenettel & Associates, P.C., Houston, TX, for Petitioner.
    Scott Rothenberg, Law Offices of Scott Rothenberg, Keith M. Fletcher, Simmons & Fletcher, Houston, TX, for Respondent.
   Chief Justice JEFFERSON

delivered the opinion of the Court.

A foreign manufacturer sold its products in Texas through a Texas distributor. We must decide whether the use of that distributorship insulates the manufacturer from the reach of a Texas court when one of the products injures a Texas citizen. We hold that a manufacturer is subject to specific personal jurisdiction in Texas when it intentionally targets Texas as the marketplace for its products, and that using a distributor-intermediary for that purpose provides no haven from the jurisdiction of a Texas court. Because, in this case, personal jurisdiction comports with traditional notions of fair play and substantial justice, we affirm the court of appeals’ judgment.

I. Factual and Procedural Background

Spir Star AG (“AG”), a German corporation headquartered in Rimbach, Germany, manufactures high-pressure hoses and fittings for sale throughout the world. AG is owned by three German citizens: Werner Buchner, Gerhard Strobach, and Walter de Graaf. In 1995, AG decided that Houston would be the optimal location for a distributorship because the Texas coastal region’s numerous refineries were well suited for AG’s energy-related products. AG’s executives traveled to Houston, leased office space, and established a Texas distributorship, Spir Star Inc., now Spir Star Limited (“Limited”). AG’s directors gave Limited permission to use the trademarked “Spir Star” name free of charge. Although it sells products other than AG’s, Limited is AG’s exclusive distributor in Texas and North America.

AG manufactures hoses that are used primarily in the energy industry. Each month, Limited purchases a maritime eon-tainer full of AG’s products, which are then shipped to the port of Houston. Limited assembles the hoses using AG-provided training and tools and sells them to customers in Texas and elsewhere. Title to the hoses passes to Limited in Europe. The Texas distributorship accounts for thirty-five percent of AG’s annual sales, although Limited and AG do not share profits or finances with each other.

De Graaf, AG’s president, is also the president of Limited. He splits his time between Houston and Germany, and regularly conducts AG’s business in Texas. De Graaf and AG’s other two officers own seventy-five percent of Limited; twenty-five percent is owned by Limited employees.

In 2003, an AG high-pressure hose ruptured and seriously injured Louis Kimich. AG had sold the hose to Limited, which in turn sold it to Kimich’s employer. Kimich sued his employer and the premises owner, and later added claims against AG and Limited.

AG filed a special appearance, which the trial court and the court of appeals denied. 311 S.W.3d 1. We granted AG’s petition for review, 51 Tex. Sup.Ct. J. 1403, 1416 (Sept. 26, 2008), and now affirm.

II. Applicable Law

To render a binding judgment, a court must have both subject matter jurisdiction over the controversy and personal jurisdiction over the parties. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996). Whether a court has personal jurisdiction over a defendant is determined as a matter of law, which appellate courts review de novo. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). When, as here, a trial court does not issue findings of fact or conclusions of law to support its special-appearance determination, we presume that all factual disputes were resolved in favor of the trial court’s ruling. Id.

Texas courts have personal jurisdiction over a nonresident defendant when (1) the Texas long-arm statute provides for it, and (2) the exercise of jurisdiction is consistent with federal and state due process guarantees. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002). Our long-arm statute reaches “ ‘as far as the federal constitutional requirements for due process will allow.’ ” Id. (quoting Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991)). Consequently, the statute’s requirements ai’e satisfied if exei’cising jurisdiction comports with federal due process limitations. Id.

If a defendant has never invoked the protections that a forum offers its residents, or has no purposeful contact with it, the forum court’s jurisdiction is confined. Personal jurisdiction over nonresident defendants is constitutional only when: (1) the defendant has established minimum contacts with the forum state, and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 167 (Tex.2007). The catchphrase “traditional notions of fair play and substantial justice,” first used in Milliken v. Meyer, 311 U.S. 457, 463-64, 61 S.Ct. 339, 85 L.Ed. 278 (1940), has its origins in a 1917 decision that referred to both “fair- play” and “substantial justice” when the Supreme Court considered whether service by publication comported with the due process clause. See McDonald v. Mabee, 243 U.S. 90, 91-92, 37 S.Ct. 343, 61 L.Ed. 608 (1917) (reversing a judgment of the Supreme Court of Texas). Since that time, we have incorporated the phrase into our own jurisprudence, beginning with O’Brien v. Lanpar Co., 399 S.W.2d 340, 342 (Tex.1966) (quoting Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154). The phrase remains a hallmark of personal jurisdiction today. See, e.g., Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.2009); PHC-Minden, 235 S.W.3d at 166; Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007).

Although this “fair play” and “substantial justice” test is well known to appellate courts, the expression is imprecise. It gains meaning, however, when viewed in light of the “minimum contacts” a defendant has with the forum. Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154. Significant contacts suggest that the defendant has taken advantage of forum-related benefits, while minor ones imply that the forum itself was beside the point. When a nonresident defendant has purposefully availed itself of the privilege of conducting business in a foreign jurisdiction, it is both fair and just to subject that defendant to the authority of that forum’s courts. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1984).

A defendant’s contacts with a forum can give rise to either specific or general jurisdiction. CSR, 925 S.W.2d at 595. General jurisdiction exists when a defendant’s contacts are continuous and systematic, even if the cause of action did not arise from activities performed in the forum state. Id. Here, the court of appeals concluded that AG’s continuous and systematic contacts with Texas established general jurisdiction. 311 S.W.3d at 5. We do not reach that issue, however, because we conclude instead that the trial court had specific jurisdiction over AG.

III. AG satisfies the “additional conduct” standard required for specific jurisdiction.

A court has specific jurisdiction over a defendant if its alleged liability arises from or is related to an activity conducted 'within the forum. CSR, 925 S.W.2d at 595. Unlike general jurisdiction, which requires a “more demanding minimum contacts analysis,” id. at 595, specific jurisdiction “may be asserted when the defendant’s forum contacts are isolated or sporadic, but the plaintiffs cause of action arises out of those contacts with the state.” 4 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1067.5 (3d ed. 2002). In such cases, “we focus on the ‘relationship among the defendant, the forum[,] and the litigation.’ ” Moki Mac, 221 S.W.3d at 575-76 (quoting Guardian Royal, 815 S.W.2d at 228). Specific jurisdiction is appropriate when (1) the defendant’s contacts with the forum state are purposeful, and (2) the cause of action arises from or relates to the defendant’s contacts. See Retamco, 278 S.W.3d at 338.

The “touchstone of jurisdictional due process [is] ‘purposeful availment.’ ” Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.2005). Purposeful availment requires a defendant to seek some “benefit, advantage, or profit by ‘availing’ itself of the jurisdiction.” Id. at 785. Thus, sellers who reach beyond one state and create continuing relationships with residents of another state are subject to the specific jurisdiction of the latter in suits arising from those activities. Moki Mac, 221 S.W.3d at 575.

Notably, however, a seller’s awareness “ ‘that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State.’ ” CSR, 925 S.W.2d at 595 (quoting Asahi Metal Indus. Co., Ltd. v. Superior Court of Cal., 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality opinion)). Instead, our precedent generally follows Justice O’Connor’s plurality opinion in Asahi, which requires some “additional conduct” — beyond merely placing the product in the stream of commerce-that indicates “an intent or purpose to serve the market in the forum State.” Asahi, 480 U.S. at 112, 107 S.Ct. 1026; Mold Mac, 221 S.W.3d at 577; Michiana, 168 S.W.3d at 786. Examples of this additional conduct include: (1) “designing the product for the market in the forum State,” (2) “advertising in the forum State,” (3) “establishing channels for providing regular advice to customers in the forum State,” and (4) “marketing the product through a distributor who has agreed to serve as the sales agent in the forum State.” Asahi, 480 U.S. at 112, 107 S.Ct. 1026; see also Moki Mac, 221 S.W.3d at 577; Michiana, 168 S.W.3d at 786; Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex.1985). In this case, Kimich argues that AG’s substantial sales plus utilization of Limited as its distributor meets this standard.

AG relies on a different line of cases that reject jurisdiction “[w]hen a nonresident defendant purposefully structures transactions to avoid the benefits and protections of a forum’s laws.” Am. Type Culture, 83 S.W.3d at 808. Twice recently we have rejected attempts to sue foreign subsidiaries in Texas based on a parent corporation’s contacts, holding that jurisdiction over one does not automatically establish jurisdiction over the other. PHC-Minden, 235 S.W.3d at 172; see also BMC Software, 83 S.W.3d at 800. Instead, to “fuse” two corporations for jurisdictional purposes, a parent must “control[ ] the internal business operations and affairs of the subsidiary” to an extent beyond its role as an investor. PHC-Minden, 235 S.W.3d at 175.

AG argues the same principles apply here, even'though this case involves a foreign corporation’s use of a Texas distributorship rather than a parent/subsidiary relationship. The issue is not, however, whether Limited’s actions in Texas can be imputed to AG. Rather, our concern is with AG’s own conduct directed toward marketing its products in Texas.

When an out-of-state manufacturer like AG specifically targets Texas as a market for its products, that manufacturer is subject to a product liability suit in Texas based on a product sold here, even if the sales are conducted through a Texas distributor or affiliate. See Asahi, 480 U.S. at 112, 107 S.Ct. 1026 (“Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, ... marketing the product through a distributor who has agreed to serve as the sales agent in the forum State.”). In such cases, it is not the actions of the Texas intermediary that count, but the actions of the foreign manufacturer who markets and distributes the product to profit from the Texas economy. As the United States Supreme Court stated in World-Wide Volkswagen Corp. v. Woodson, purposeful availment of local markets may be either direct (through one’s own offices and employees) or indirect (through affiliates or independent distributors):

[I]f the sale of a product of a manufacturer ... is not simply an isolated occurrence, but arises from the efforts of the manufacturer ... to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others.

World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (emphasis added).

There are several limitations inherent in this rule. First, it is limited to the specific jurisdiction context, because stream-of-commerce analysis “is relevant only to the exercise of specific jurisdiction; it provides no basis for exercising general jurisdiction over a nonresident defendant.” Purdue Research Found v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 788 (7th Cir.2003); accord D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 106 (3rd Cir.2009); Nuovo Pignone, SpA v. STORMAN ASTA M/V, 310 F.3d 374, 380 (5th Cir.2002); Barone v. Rich Bros. Interstate Display Fireworks Co., 25 F.3d 610, 612 (8th Cir.1994); Moki Mac, 221 S.W.3d at 579; Joseph S. Pevsner and Gregory W. Curry, Down the Block But Outside Jurisdiction: Personal Jurisdiction in a Modern World, 29 Tex. Tech L.Rev. 977, 991 (1998). If sales alone created general jurisdiction, a foreign manufacturer like AG could be sued in Texas for labor practices occurring in Germany even though they had nothing to do with Texas.

Second, specific jurisdiction is limited to claims that “arise out of or relate to” a nonresident’s forum contacts. Burger King, 471 U.S. at 472, 105 S.Ct. 2174; Retamco, 278 S.W.3d at 338. In such cases, there must be a “substantial connection” between the defendant’s contacts and the operative facts of the litigation. See Moki Mac, 221 S.W.3d at 585. So when a nonresident’s only contacts with Texas involve indirect sales through a distributor or subsidiary, specific jurisdiction is limited to claims arising out of those sales. See, e.g., Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 216 (5th Cir.2000) (“Appellants are correct in noting that we have not, in our decisions dealing with the stream-of-commerce theory, entirely foreclosed its application to cases not involving product liability claims. We need not decide here whether the theory is, or is not applicable to a broader range of cases.”).

Third, not every product claim against a foreign manufacturer is included; there must be a substantial connection. That similar products were sold in Texas would not create a substantial connection as to products that were not. Similarly, a nonresident that buys a Texas distributor might have no substantial connection with sales that occurred before that purchase. See Commonwealth Gen. Corp. v. York, 177 S.W.3d 923, 924 (Tex.2005).

Finally, the manufacturer must have intended to serve the Texas market. CSR, 925 S.W.2d at 596. While use of a Texas distributor may satisfy this requirement, there may be situations in which it does not. A Texas distributorship may increase the manufacturer’s bottom line because it is more efficient or has greater access to economies of scale, and not because it is intended to serve Texas consumers. Cf. Asahi, 480 U.S. at 112, 107 S.Ct. 1026 (“Additional conduct” may include “marketing the product through a distributor who has agreed to serve as the sales agent in the forum State.” (emphasis added)).

Many transactions can be structured to avoid any benefit from or availment of Texas law — but not all. A nonresident manufacturer does not avoid Texas law merely by forming a Texas affiliate or utilizing a Texas distributor to sell its products in Texas markets. Just as manufacturers cannot escape liability for defective products by selling them through a subsidiary or distributor, neither can they avoid jurisdiction related to such claims by the same means.

The question is whether AG has purposefully directed acts towards Texas or purposefully availed itself of the benefits and protections of Texas law. We conclude that it has.

A. AG marketed its products exclusively through Limited, a Texas distributor.

AG argues that its individual owners— rather than AG itself — established Limited. Even if that were true, by “marketing [its] product through a distributor who has agreed to serve as the sales agent in the forum state,” AG has met Asahi’s “additional conduct standard.” Asahi, 480 U.S. at 112, 107 S.Ct. 1026.

AG also contends that, because it receives none of Limited’s profits and relinquishes title to the hoses before they reach Texas, AG does not benefit from Limited’s Texas connections. But AG reaps substantial economic gain through its sales to Limited, its largest distributor by far, responsible for over one-third of AG’s annual sales. See Moki Mac, 221 S.W.3d at 578 (finding purposeful availment because of foreign corporation’s “additional conduct through which it aimed to get extensive business in or from this state”). Indeed, specific jurisdiction over foreign manufacturers is often premised on sales by independent distributors. See, e.g., Bridgeport Music, Inc. v. Still N The Water Publ’g, 327 F.3d 472, 483-84 (6th Cir.2003) (finding specific jurisdiction under “additional conduct” standard based in part on nationwide distribution agreement with independent distributor); Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 458 (10th Cir.1996) (noting that “[t]he actions of an independent distributor may not insulate a foreign company from specific jurisdiction”); Tobin v. Astra Pharm. Prods., Inc., 993 F.2d 528, 533-34 (6th Cir.1993) (holding that foreign drag manufacturer who marketed its product in Kentucky through independent distributor was nonetheless subject to personal jurisdiction in forum under Asahi’s “additional conduct” standard); see also Pennzoil Prods. Co. v. Colelli & Assocs., 149 F.3d 197, 206-07 (3d Cir.1998) (applying “additional conduct” standard and finding specific jurisdiction in Pennsylvania over Ohio chemical producer who sold products to independent Ohio oil well producers that then sold oil to Pennsylvania refineries).

Thus, it is not persuasive that title to the hoses passed in Europe, rather than in Texas. See Renner v. Lanard, Toys Ltd., 33 F.3d 277, 282 (3d Cir.1994) (noting that “a foreign manufacturer or seller [which] rids itself of title by a sale F.O.B. a foreign port [does not] insulate [itself] from jurisdiction if there is the other type of activity” indicating purposeful availment); Gulf Consol. Servs., Inc. v. Corinth Pipeworks, S.A., 898 F.2d 1071, 1073 (5th Cir.1990) (observing that “the simple fact that a sales transaction is consummated outside that jurisdiction does not prevent the sale from forming the basis of jurisdiction”); Benitez-Allende v. Alcan Aluminio Do Brasil, S.A., 857 F.2d 26, 30 (1st Cir.1988) (holding that title passing in Brazil “is beside the point” in a specific jurisdiction analysis); Charles W. “Rocky” Rhodes, The Predictability Principle in Personal Jurisdiction Doctrine: A Case Study on the Effects of a “Generally” Too Broad, but “Specifically” Too Narrow Approach to Minimum Contacts, 57 Baylor L.Rev. 135, 213 (2005).

B. AG intended to serve the Texas market, and Kimich’s claim arose from AG’s purposeful direction of acts towards Texas.

Not only did AG market its products through a distributor in the forum state, AG directly targeted the Texas market. In CSR, we held that there was no specific jurisdiction over CSR, a foreign asbestos supplier whose product wound up in Texas: CSR’s knowledge that its buyer, a pipe manufacturer, had a plant in Texas was not determinative because that manufacturer also had plants in at least four other states, and CSR’s awareness that the stream of commerce may sweep the product into Texas “ ‘[did] not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State.’ ” CSR, 925 S.W.2d at 595 (quoting Asahi, 480 U.S. at 112, 107 S.Ct. 1026). Instead, we held that “there must be some indication that CSR intended to serve the Texas market.” Id. at 595.

This is consistent with federal authority holding that no specific jurisdiction exists over a manufacturer whose product just happens to end up in the forum state. For example, the Seventh Circuit Court of Appeals recently held that a Danish jack manufacturer was not subject to specific jurisdiction in Indiana, because there was no evidence that the manufacturer had “an awareness or expectation that some of its products would be purchased in Indiana”:

In World-Wide Volkswagen, the Supreme Court held that personal jurisdiction was lacking because, in part, there was no evidence in the record that any products that the defendants distributed (in that case, automobiles) were ever sold to retail customers in the forum state. Similarly in this case, Jennings produced no evidence that any of AC Hydraulic’s products (including the jack at issue in this suit) were ever sold in Indiana. Jennings claims that an Indiana company purchased the jack, but even if we were to accept this unsubstantiated allegation as evidence, Jennings does not tell us in what state or from whom this company purchased the jack. Additionally, Jennings established that AC Hydraulic sells some of its products to two distributors in Florida, but she did not present any volume information for these sales or provide us with information about where the distributors resell the products, so the scope of any alleged distribution in the rest of the United States, and whether any AC Hydraulic products have been distributed in Indiana, cannot be determined. The bottom line is that, relying on the sparse evidence that Jennings presented, we do not know how the jack in question got to Indiana, or if any other AC Hydraulic products have ever been sold there. It is possible that the “unilateral activity” of a third party, rather than the defendant’s distribution scheme, landed the jack in Indiana, which is the very scenario that doomed the plaintiffs’ case in WorldAWide Volkswagen.

Jennings v. AC Hydraulic A/S, 383 F.3d 546, 550-51 (7th Cir.2004) (internal citations omitted)(emphasis added); see also Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 683 (1st Cir.1992) (finding no specific jurisdiction over foreign corporation because there was “no evidence that [corporation] intended to serve the market in Maine”).

Contrast those cases with the situation here. AG’s board of directors created Limited because AG wanted to take advantage of “the biggest economy in the world.” Strobach testified that “the whole board ... decided that [Houston would be the best place for a distributor] because we knew that — we thought that would be the greatest need, because of the immediate vicinity of all the refineries.” Strobach traveled to Houston because “we wanted to establish an office in Houston.” The Board’s selection of a Houston office preceded by a few days the arrival of Walter De Graaf, president of both AG and Limited and an employee of each, who signed the documents that created Limited. De Graaf spends half the year working in Houston and is paid by both AG and Limited while there; his contract with AG authorizes him to act on its behalf no matter where he is.

After deciding to establish Limited, AG authorized Limited to use the “Spir Star” name, and Limited became AG’s exclusive distributor in Texas and throughout North America. According to one of AG’s directors, Limited has been “very successful indeed,” and it is AG’s largest customer by far. AG has sold millions of dollars worth of hoses to Limited; each month, AG sells Limited a maritime container full of reels of hose, which are shipped to the port of Houston. AG supplies Limited with crimping and assembly tools and written assembly standards, and AG personnel train Limited’s employees in hose assembly.

AG’s website, authored by one of its employees, states that:

In order to cover the world-wide market and provide quick service to our customers, office [sic] were opened in the following countries: SPIR STAR France, S.A.R.L. 1991 in Haguenau/France, SPIR STAR Inc. [Limited] 1995 in Housten [sic]/Texas (U.S.A.) and SPIR STAR Asia Pty. Ltd. 1999 in Singapore.

Limited’s website, which is written from AG’s perspective, states that “the decision was made that the company should expand its activities outside of Europe” and that “we ventured across the Atlantic and founded SPIR STAR, Ltd. in Houston, Texas.” The same website touts Limited as “the main link for our growing market share in North and South America.” Under the heading “Spir Star Companies,” four entities are listed: AG, Limited, Spir Star France, and Spir Star Asia, PTE Ltd. De Graaf, AG’s president, testified that he reviewed the content of both websites pri- or to their publication. The trial court could have believed, as Kimich argues, that AG, acting through its directors and officers, created Limited or that the website statements were admissions by AG. Or the trial court simply could have determined that AG “marketed [its] product through a distributor who has agreed to serve as the sales agent in the forum State.” Asahi, 480 U.S. at 112, 107 S.Ct. 1026. If the foregoing evidence does not indicate “an intent or purpose to serve the market in [Texas],” it is difficult to imagine what would. Cf id. (finding no specific jurisdiction in California because “respondents have not demonstrated any action by Asahi to purposefully avail itself of the California market”).

Finally, Kimieh’s claim arose from AG’s Texas contacts. See World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559 (“[I]f the sale of a product of a manufacturer ... is not simply an isolated occurrence, but arises from the efforts of the manufacturer ... to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others.”); Bearry v. Beech Aircraft Corp., 818 F.2d 370, 374 (5th Cir.1987) (“When the contact stems from a product, sold or manufactured by the foreign defendant, which has caused harm in the forum state, the court has [specific] jurisdiction” provided defendant purposefully availed itself of the privilege of conducting activities within the forum); cf. Hicks v. Kawasaki Heavy Indus., 452 F.Supp. 130, 134 (M.D.Pa.1978)(noting that “there exists a direct relationship between the cause of action and [Kawasaki’s] contacts with the state,” as motorcycle sold by foreign manufacturer to distributor “is alleged to have caused injury in the state to a resident of the state”), cited in Asahi, 480 U.S. at 112-13, 107 S.Ct. 1026.

IV. Exercising jurisdiction over AG comports with traditional notions of fair play and substantial justice.

Because AG’s Texas contacts support specific jurisdiction, we must now determine whether jurisdiction is consistent with traditional notions of fair play and substantial justice. Retamco, 278 S.W.3d at 341. “Only in rare cases, however, 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.” Guardian Royal, 815 S.W.2d at 231 (citing Burger King, 471 U.S. at 477, 105 S.Ct. 2174). To evaluate this component, we must consider AG’s contacts in light of: (1) “the burden on the defendant”; (2) “the interests of the forum state in adjudicating the dispute”; (3) “the plaintiffs interest in obtaining convenient and effective relief’; (4) the interstate or international judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several nations or states in furthering fundamental substantive social policies. Id. at 231. To defeat jurisdiction, AG must present “ ⅛ compelling case that the presence of some consideration would render jurisdiction unreasonable’ ” — something AG has not done. See id. (quoting Burger King, 471 U.S. at 477, 105 S.Ct. 2174).

Requiring AG to defend Kimich’s claim in Texas would not pose an undue burden for the company. The fact that AG is headquartered in Germany cannot, by itself, defeat jurisdiction. See id. at 231 (“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 he engages in economic activity.’ ” (quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957))). Houston is familiar territory for AG’s leadership: its president spends six months of the year there (and can carry on AG’s business while there), two of AG’s directors traveled to Houston to establish Limited, and one of them returned—at AG’s expense—to celebrate Limited’s fifth anniversary. Cf. id. at 232-33, 78 S.Ct. 199 (finding jurisdiction unreasonable because, among other things, the English defendant was unaffiliated with any American companies). Three of AG’s directors collectively own seventy-five percent of Limited, which will be litigating in Houston.

Moreover, Texas has a significant interest in exercising jurisdiction over controversies arising from injuries a Texas resident sustains from products that are purposefully brought into the state and purchased by Texas companies. Cf. Asahi, 480 U.S. at 114, 107 S.Ct. 1026 (“Because the plaintiff is not a California resident, California’s legitimate interests in the dispute have considerably diminished.”); Guardian, 815 S.W.2d at 233 (“[S]ince Guardian Royal and U.S. Fire are neither Texas consumers nor insureds, Texas’ interest in adjudicating the dispute ... is considerably diminished.”). Not only would Kimich face an undue burden were he forced to litigate his product liability claim against AG in Germany, but because the claims against Limited will be heard in Texas, it would be more efficient to adjudicate the entire case in the same place. See Retamco, 278 S.W.3d at 341 (“[The plaintiff] has an interest in resolving this controversy in Texas because that is where the litigation began.”). We recognize “the unique and onerous burden placed on a party called to defend a suit in a foreign legal system.” CSR, 925 S.W.2d at 595 (citing Asahi, 480 U.S. at 114, 107 S.Ct. 1026). In this case, that burden is minimal and is outweighed by Kimich’s and Texas’s interests in adjudicating the dispute here. See Asahi 480 U.S. at 114, 107 S.Ct. 1026. Asserting personal jurisdiction over AG comports with traditional notions of fair play and substantial justice.

V. Conclusion

Under the appropriate standard of review, our task ends when, as here, some evidence supports the trial court’s denial of AG’s special appearance. BMC, 83 S.W.3d at 794-95. AG did not merely set its products afloat in a stream of commerce that happened to carry them to Texas. AG “marketed [its] product through a distributor who has agreed to serve as [its] sales agent in [Texas],” Asahi, 480 U.S. at 112, 107 S.Ct. 1026, and AG undoubtedly “intended to serve the Texas market,” CSR, 925 S.W.2d at 595. Further, AG’s potential liability arises out of its contacts with Texas, and exercising personal jurisdiction over AG does not offend traditional notions of fair play and substantial justice. The court of appeals and the trial court correctly concluded that Texas courts have personal jurisdiction over this claim against AG. We affirm the court of appeals’ judgment. Tex.R.App. P. 60.2(a).

      . Limited has not challenged jurisdiction.

      . The court did not resolve whether Justice O’Connor’s or Justice Brennan's Asahi standard should be applied, because the plaintiff failed to make even a threshold showing that AC Hydraulic had an awareness or expectation that some of its products would be purchased in Indiana. Jennings, 383 F.3d at 551 n. 2.

      . There is some confusion about a court’s need to evaluate the fourth and fifth considerations in cases involving a foreign defendant. In Guardian Royal, we held that in cases involving a foreign defendant rather than two "coequal sovereigns in our federal system, we need not consider the interstate judicial system's interest in obtaining the most efficient resolution of controversies or the shared interest of the several states in furthering fundamental substantive social policies,” Guardian Royal, 815 S.W.2d at 232 n. 17, considerations that would be relevant in a dispute among residents of differing states. While this is true, we failed to explain that in such cases courts must instead consider the interests of "other nations whose interests are affected by the assertion of jurisdiction.” Asahi, 480 U.S. at 115, 107 S.Ct. 1026. Here, the court of appeals examined the international interest in obtaining the most efficient resolution of controversies but failed to consider the shared interest of the several nations in furthering fundamental substantive social policies. 311 S.W.3d at 8 ("We will not address the fifth factor as only one state is involved in this dispute.”). This disparate holding gives us jurisdiction over this interlocutory appeal. Tex. Gov’t Code § 22.225(c), (e) (noting that one court "holds differently from another when there is inconsistency in their respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants”).

      . De Graaf has established a residence in Houston and obtained a "green card” in 2000.