author: TERRY McCALL, Justice.

text:
    In re Ray B. SMITH.
    No. 11-10-00034-CV.
    Court of Appeals of Texas, Eastland.
    April 29, 2010.

      Edward P. Perrin, James N. Henry, Jennifer R. Poe, Hallett & Perrin, P.C., Dallas, for appellant.
    Charles W. Getman, Diane M. Guariglia, Cokinos, Bosien & Young, Houston, Scott A. Elder, Cokinos, Bosien & Young, Arlington, for appellee.
    Jerry D. Ray, pro se.
    Panel consists of: WRIGHT, C.J., Justice McCALL, J., and STRANGE, J.
   OPINION

TERRY McCALL, Justice.

Relator, Ray B. Smith, Ph.D., brings this original habeas corpus proceeding and, alternatively, mandamus proceeding complaining of the trial court’s finding him in contempt for violating a permanent injunction. Because the trial court’s final order and judgment of contempt lacks evi-dentiary support, we conditionally grant mandamus relief.

Introduction

In 2007, Dr. Smith published a book entitled Cranial Electrotherapy Stimulation, Its First Fifty Years, Plus Three: A Monograph (the 2007 book). Cranial Electrotherapy Stimulation (CES) is used for treatment of anxiety, depression, insomnia, and other conditions. Dr. Smith’s 2007 book contained his meta-analyses of studies that had been performed to determine the effectiveness of CES in treating various conditions. “Meta-analysis” is defined as “a quantitative statistical analysis of several separate but similar experiments or studies in order to test the pooled data for statistical significance.” MerRiam-Webster’s Collegiate Dictionary 779 (11th ed.2004). Dr. Smith explained in his 2007 book that “[m]eta-analysis is a way of combining the results of many separate studies to see the effectiveness of a treatment.”

Dr. Smith is a former Director of Science at Electromedical Products International, Inc. (EPII). EPII researches, develops, and markets CES technology. EPII asserted that Dr. Smith’s publication of his 2007 book violated a permanent injunction that it had obtained against Dr. Smith in 2003. Therefore, EPII filed a motion to enforce the permanent injunction and to hold Dr. Smith in contempt for violating the permanent injunction. Following a hearing on EPII’s motion, the trial court found that Dr. Smith had violated the terms of the permanent injunction and entered its final order and judgment of contempt against him. In this original proceeding, Dr. Smith challenges the trial court’s final order and judgment of contempt.

The 2003 Suit and Judgment

Dr. Smith began his employment with EPII in 1998. At that time, Dr. Smith and EPII entered into a Non-Disclosure/Non-Cireumvention Agreement. The agreement contained a “Restrictive Covenant” in which Dr. Smith agreed that, during or after the term of his employment, he would not, among other things, “disclose, disseminate, publish, or use ... [EPII’s] Confidential Information, ... except as may be required in the proper discharge of [his] duties pursuant to [his] employment.” As defined in the agreement, the term “Confidential Information” included information “disclosed to [Dr. Smith] or known by [Dr. Smith] as a consequence of or through [his] employment by EPII which information is not generally known in the industry in which EPII is or may become engaged.” The agreement provided that, upon the termination of Dr. Smith’s employment, (1) Dr. Smith would return all confidential information and customer lists to EPII, (2) EPII would be entitled to injunctive relief against Dr. Smith if he breached the restrictive covenant, and (8) Dr. Smith would not enter into or engage in any business in competition with EPII for a period of three years from the date of his termination.

Dr. Smith’s employment duties included writing items for publication on behalf of EPII. At EPII’s request, Smith began writing a manuscript that was entitled Cranial Electrotherapy Comes of Age. Before the manuscript was completed, EPII discovered facts leading it to conclude that Dr. Smith had breached the Non-Disclosure/Non-Circumvention Agreement. Therefore, EPII terminated Dr. Smith’s employment.

On February 7, 2003, EPII filed suit against Dr. Smith for breach of the agreement. In its petition, EPII requested the trial court to enjoin Dr. Smith from “disclosing, publishing, and/or using [its] confidential information and trade secrets” and from “competing with EPII or participating in business in a similar capacity to EPII’s business for a period of three years from the date of the termination of [Dr.] Smith’s employment.”

Following a bench trial, the trial court concluded that Dr. Smith had breached the agreement. On August 11, 2003, the trial court entered a judgment in EPII’s favor. In the judgment, the trial court found that, unless permanently enjoined, “[Dr. Smith] intends to directly or indirectly participate in business in a similar capacity to EPII’s business in violation of the non-competition provisions of his Non-Disclosure/Non-Circumvention Agreement” and “[Dr. Smith] intends to disclose, disseminate, publish, or use or permit the use, of [EPII’s] business information in violation of the Non-Disclosure/N on-Circumvention Agreement.” Therefore, the trial court granted injunc-tive relief in EPII’s favor and ordered the following:

[T]hat [Dr. Smith] ... desist and refrain from directly or indirectly entering into or engaging in any business in competition with [EPII] ... through January 31, 2006.
... THAT [Dr. Smith] ... desist and refrain from ... disclosing, disseminating, lecturing upon, publishing, using or permitting the disclosure, dissemination, publishing or use of any and all information disclosed to [him] or known by [him] as a consequence or through his employment by [EPII] which information is not generally known in the industry in which [EPII] is engaged or may become engaged....
... [T]hat [Dr. Smith] ... return any and all copies ... of all unpublished manuscripts, monologues, articles, books and studies, whether in draft or final form, that were written on the subject of CES, TENS, and/or wound healing while an employee of [EPII] or thereafter, including, but not limited to, all copies of “Cranial Electrotherapy Comes of Age.” The Court finds that all manuscripts, monologues, articles, books and studies written by [Dr. Smith] on the subject of CES, TENS and/or wound healing during or after his employment with [EPII] are the property of [EPII] and [Dr. Smith] may not disclose, disseminate, lecture upon, publish, use or permit the disclosure, dissemination, publication or use of any of the materials listed above.

In addition to granting injunctive relief, the trial court awarded attorney’s fees to EPII. The trial court entered findings of fact and conclusions of law in support of its judgment. In one finding of fact, the trial court stated that, under the Non-Disclosure/Non-Circumvention Agreement, “in exchange for EPII providing Smith with confidential business information, Smith agreed not to disclose such confidential business information during or after his employment with EPII.”

Dr. Smith appealed the trial court’s 2003 judgment to this court. In a single point of error, Dr. Smith contended that the trial court lacked subject-matter jurisdiction over EPII’s claims because the claims were copyright claims that fell within the exclusive jurisdiction of the federal courts. We disagreed with Dr. Smith, and we affirmed the trial court’s judgment. See Smith v. Electromedical Prods. Int'l, Inc., No. 11-03-00386-CV, 2005 WL 1983550 (Tex.App.-Eastland Aug. 18, 2005, no pet.) (mem.op.).

The Current Proceedings

Following Dr. Smith’s publication of his 2007 book, EPII filed its motion to enforce the permanent injunction and for contempt. In its motion, EPII alleged that Smith had violated the permanent injunction (1) by publishing his 2007 book and (2) by failing to return to EPII all copies of EPII’s 2003 unpublished manuscript, Cranial Electrotherapy Comes of Age (the 2003 manuscript). The trial court held an evidentiary hearing on EPII’s motion. Daniel Kirsch, Ph.D. (the chairman of EPII) and Dr. Smith testified. Following the hearing, the trial court entered its final order and judgment of contempt.

As set forth above, the trial court included three areas of injunctive relief in the 2003 permanent injunction. First, the trial court enjoined Dr. Smith from competing with EPII through January 31, 2006. Second, the trial court enjoined Dr. Smith from disclosing or using information he learned through his employment with EPII that was “not generally known in the industry.” Third, the trial court required Dr. Smith to return all copies of the listed materials, including the 2003 manuscript, and the trial court found that all such materials were EPII’s property and prohibited Dr. Smith from disclosing or using the materials.

In finding Dr. Smith in contempt, the trial court relied on the third area of in-junctive relief in the 2003 permanent injunction. Specifically, the trial court stated in the contempt order that the permanent injunction contained the following provision:

ORDERED, that [Dr. Smith] be and hereby is commanded to return any and all copies, whether currently held in paper or electronic or disk format, of all unpublished manuscripts, monologues, articles, books, and studies, whether in draft or final form, that were written on the subject of CES, TENS and/or wound healing while an employee of [EPII] or thereafter, including, but not limited to, all copies of “Cranial Elec-trotherapy Comes of Age.” The Court finds that all manuscripts, monologues, articles, books, and studies written by [Dr. Smith] on the subject of CES, TENS and/or wound healing during or after his employment with [EPII] are the property of [EPII] and [Dr. Smith] may not disclose, disseminate, lecture upon, publish, use or permit the disclosure, dissemination, publication, or use of any of the materials listed above.

The trial court found that “Dr. Smith’s 2007 book entitled Cranial Electrotherapy Stimulation, Its First Fifty Years, Plus Three: A Monograph (‘Smith’s 2007 Book’) is more than substantially the same as the contents of Plaintiff EPII’s 2003 Manuscript, which is EPII’s property.” Based on this finding, the trial court concluded that Dr. Smith had knowingly violated the permanent injunction “(i) [by] materially using EPII’s 2003 Manuscript in the publication of Dr. Smith’s 2007 Book, and (ii) by failing to return to EPII all copies and/or notes of his work on EPII’s 2003 Manuscript.” Therefore, the trial court granted EPII’s motion to enforce the permanent injunction and for contempt. The trial court stated that “Defendant Dr. Smith is found in contempt of this Court’s August 11, 2003 permanent injunction prohibiting his publication of the information within EPII’s 2003 Manuscript, and further requiring his return to [EPII] of all copies and drafts of EPII’s 2003 Manuscript.”

Based on its finding that Dr. Smith was in contempt, the trial court set forth the following remedies in its final order and judgment of contempt:

(1) Dr. Smith is hereby found in contempt and ordered to be incarcerated in the Palo Pinto county jail for 180 days.
(2) Within 30 days of the signing of this Order, Dr. Smith, at his sole expense, shall recall all copies of Dr. Smith’s 2007 Book that have been printed, sold, or otherwise distributed, either directly by himself, or through any employer, and/or through any third parties pursuant to his direction or control, expressly including, but not limited to, amazon.com and barnesandnoble.com; and shall thereafter produce all recovered books to Plaintiffs counsel within 30 days of Dr. Smith’s receipt. Dr. Smith shall fully and concurrently reimburse all purchasers and/or distributors of same, including purchase price, shipping costs, and all other reasonable expenses.
(3) Within 30 days of the signing of this Order, Dr. Smith shall issue written instruction to Fisher Wallace Laboratories, in a form to be approved by Plaintiffs counsel, directing Fisher Wallace Laboratories to remove Dr. Smith’s 2007 Book from Fisher Wallace’s website, and to return to Dr. Smith all copies of Dr. Smith’s 2007 Book, which Dr. Smith shall forward to Plaintiffs counsel within 30 days of Dr. Smith’s receipt of same.
(4) Within 30 days of the signing of this Order, Dr. Smith shall issue written apologies, in forms acceptable to the Court, to both this Court, for violating the Court’s lawful orders, and to Plaintiff, for Dr. Smith’s prohibited use of Plaintiffs proprietary information.
(5) Within 30 days of the signing of this Order, Dr. Smith shall return, and seek any and all non-parties to return, any and all manuscripts, monologues, articles, books and studies that were written by Dr. Smith on the subject of CES, TENS, and/or wound healing while an employee of Plaintiff, or based upon information acquired during such employment, and/or his work with same, pursuant to this Court’s Final Judgment, dated August 11, 2003.
(6) Within 30 days of the signing of this Order, Dr. Smith shall provide an accounting of all compensation and other consideration received by and/or promised to Dr. Smith arising from the sale of his 2007 Book, and/or the writing of same as an employee, agent, or contractor for himself or others. Within 60 days of delivery to Plaintiff of Dr. Smith’s accounting, Plaintiff may make application to this Court for disgorgement and/or other relief regarding same.

The trial court suspended Dr. Smith’s jail sentence specified in item 1, “contingent upon [Dr. Smith’s] full and timely performance of the instruction items 2 through 6 above, failing which he shall present himself to this Court for incarceration under item 1 above and coercive confinement thereafter until the contempt is purged.” The trial court awarded EPII $52,000 for attorney’s fees plus conditional attorney’s fees in the event of an appeal.

Jurisdiction to Review the Trial Court’s Contempt Order

A court of appeals lacks jurisdiction to review a contempt order by direct appeal. Tex. Animal Health Comm’n v. Nunley, 647 S.W.2d 951, 952 (Tex.1983); Tracy v. Tracy, 219 S.W.3d 527, 530 (Tex.App.-Dallas 2007, no pet.). Contempt orders that involve imprisonment may be reviewed via a petition for writ of habeas corpus; contempt orders that do not involve confinement may be reviewed via a petition for writ of mandamus. In re Long, 984 S.W.2d 623, 625 (Tex.1999); Tracy, 219 S.W.3d at 530; Adams v. Bell, 94 S.W.3d 759, 762 (Tex.App.-Eastland 2002, no pet.). In this case, the trial court suspended its order of confinement. Because Dr. Smith has not been confined, his only possible relief is a writ of mandamus. See In re Long, 984 S.W.2d at 625; see also In re Zenergy, Inc., 968 S.W.2d 1, 12 (Tex.App.-Corpus Christi 1997, orig. proceeding) (A suspended contempt order may be reviewed by habeas corpus “when and if [the trial court] enforces the judgment.”).

Standard of Review

Mandamus is an extraordinary remedy that is available to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). A trial court abuses its discretion by entering a contempt judgment that is not supported by evidence, and such a judgment is void. In re Long, 984 S.W.2d at 626-27 (The trial court abused its discretion in entering a contempt order; the contempt order was void because there was no evidence of contempt.); Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 830 (1960) (“A judgment of contempt without support in the evidence is void, and the Court is without jurisdiction to order punishment in the absence of some evidence of contemptuous disobedience.”).

Issues Presented

Dr. Smith presents four issues for review. In his first issue, he asserts that the trial court’s final order and judgment of contempt is void because it lacks evi-dentiary support. In his second issue, he asserts that the trial court abused its discretion by expanding the scope of the injunctive relief awarded in the 2003 judgment so as to preclude his use of nonconfidential information. In his third issue, he contends that, if we conclude that the trial court’s interpretation of the 2003 judgment was reasonable, the 2003 judgment is ambiguous and susceptible to more than one interpretation. In his fourth issue, he contends that the trial court abused its discretion in ordering remedies other than confinement or a fine.

The Evidence

EPII introduced a copy of Dr. Smith’s 2007 book and a copy of its 2003 manuscript into evidence. Both works contain Dr. Smith’s meta-analyses of studies performed to determine the effectiveness of CES in treating various conditions. In his 2007 book, Dr. Smith meta-analyzed many of the CES studies that he meta-analyzed in EPII’s 2003 manuscript.

Dr. Smith’s 2007 book contains meta-analyses summarizing CES studies of the following syndromes: (1) insomnia; (2) depression; (3) anxiety; (4) cognitive dysfunction; and (5) drug abstinence. Dr. Smith meta-analyzed a total of fifty-seven CES studies in his 2007 book. Many of the fifty-seven studies fell into more than one of the five areas listed above. For example, Dr. Smith analyzed one study as being a sleep study, a depression study, and an anxiety study.

Dr. Smith’s 2007 book contains tables identifying the CES studies that he meta-analyzed in each of the above areas. The tables show, among other things, the study design for each study (double blind, single blind, crossover, or open clinical) and the number of subjects involved in each study. The tables also reference each study by number so that the authors of the various studies may be identified from a reference list in the book. The tables also show that Dr. Smith meta-analyzed the following CES studies: (1) 18 sleep studies involving 648 patients that had been completed over the past 43 years; (2) 18 depression studies involving 853 patients that had been completed over the past 36 years; (3) 38 anxiety studies involving 1,495 patients that had been completed over the past 36 years; (4) 13 cognitive function studies involving 648 patients that had been completed over the past 31 years; and (5) 15 drug abstinence syndrome studies involving 535 patients. Based on his five meta-analyses, Dr. Smith concluded (1) that the overall effectiveness of CES for treating sleep disorder conditions was 62% improvement; (2) that the overall effectiveness of CES for treating depression was 47% improvement; (3) that the overall effectiveness of CES for treating anxiety was 58% improvement; (4) that the overall effectiveness of CES for treating cognitive dysfunction was 44% improvement; and (5) that the overall effectiveness of CES for treating drug abstinence syndrome was 60% improvement.

EPII’s 2003 manuscript contains meta-analyses by Dr. Smith of anxiety studies, depression studies, addiction studies, sleep studies, and cognitive function studies. EPII’s manuscript also includes tables identifying the studies that Dr. Smith meta-analyzed. The tables show, among other things, the authors of the studies and the number of patients treated in the studies. In the tables, the studies that Dr. Smith meta-analyzed are listed by author. In contrast, in the tables in Dr. Smith’s 2007 book, the studies are grouped by study design: “Double Blind,” “Single Blind,” “Crossover,” or “Open Clinical.”

Dr. Kirsch testified that meta-analysis is a mathematical means of combining a number of studies to basically reaffirm the results. He said that Dr. Smith drafted EPII’s 2003 manuscript. Dr. Kirsch also said that he had compared EPII’s 2003 manuscript with Dr. Smith’s 2007 book. He said that EPII’s 2003 manuscript and Dr. Smith’s 2007 book contain meta-analy-ses of the same CES data and that the meta-analyses in the two works are “virtually the same.” He also said that the charts (tables) in the two works are “virtually identical.” Dr. Kirsch testified that some studies that are included in EPII’s 2003 manuscript are omitted from Dr. Smith’s 2007 book. Dr. Kirsch also testified that, to his knowledge, Dr. Smith had not returned any copies of the 2003 manuscript. During cross-examination, Dr. Kirsch acknowledged that there are differences in Dr. Smith’s 2007 book and EPII’s 2003 manuscript.

Dr. Smith’s counsel asked Dr. Kirsch a number of questions about whether EPII contended that Dr. Smith had published EPII’s confidential or proprietary information in his 2007 book. EPII’s attorney stated that “[w]e’re not alleging that anything that has been published is confidential; and if that’s what — if that’s the gist of what we’re getting at, we’ll concede that.”

Dr. Smith testified that he did not have any copies of EPII’s 2003 manuscript. Dr. Smith testified that most of the CES studies that are included in the 2003 manuscript are also included in his 2007 book. However, he said that the meta-analyses in the 2003 manuscript are not similar to the meta-analyses in his 2007 book. Dr. Smith testified that he completely redid the meta-analyses for the 2007 book. He said that he had not seen the 2003 manuscript in the past five years. The following exchange then took place:

[EPII’S COUNSEL]: You had the— just so happened to use the identical 109 studies in 2007 as the same 109 studies that you used in 2003. You just came upon those studies, right?
[DR. SMITH]: No.
In meta-analysis, you go through all the studies that are published and you take out the ones that can be meta-analyzed and you get as many of those you can find and you meta-analyze those. And I did that in the 2003 manuscript. I did it again for my book.
[EPII’S COUNSEL]: So is it your testimony that the 2007 book is a complete do-over? You had nothing at all about the 2003 manuscript. You didn’t rely upon it. You didn’t copy it. You didn’t even have it. You didn’t have any analysis or any access to it all and you just—
[DR. SMITH]: That’s correct. That is correct.
[EPII’S COUNSEL]: — for the purposes of drafting your 2007 book?
[DR. SMITH]: That’s correct.

Dr. Smith testified that he learned how to perform meta-analysis in 1964 as part of his Ph.D. program. He said that he started studying CES in 1972. He testified that, in 1985, he performed a meta-analysis of forty-four CES studies in connection with writing a chapter in the book, Neural Stimulation. He also testified that, before working for EPII, he meta-analyzed fifty-two of the fifty-seven CES studies in his 2007 book. He said that the other five studies in his book were published while he was employed with EPII. Dr. Smith also said that all of the studies contained in the 2007 book were available to the public.

Dr. Smith testified that, with respect to his 2007 book, he did separate meta-analy-ses on the double-blind studies, the single-blind studies, and the open clinical studies. He testified that, in his 2007 book, he wrote about a new and previously unpublished theory as to why CES works. Dr. Smith believed that about 400 copies of his 2007 book had been sold.

Dr. Smith’s Challenges to Trial Court’s Contempt Findings

In his first issue, Dr. Smith argues that no evidence supports the trial court’s conclusion that he violated the 2003 permanent injunction. The trial court found that the contents of the 2007 book and the contents of the 2008 manuscript are “more than substantially the same.” Dr. Smith asserts that, based on this finding, the trial court impermissibly presumed, without ev-identiary support, that he used the 2008 manuscript when writing his 2007 book and that he failed to return to EPII all copies of the 2003 manuscript. Dr. Smith asserts that the trial court’s final judgment and order of contempt is void because it lacks evidentiary support.

In arguing that the evidence supports the trial court’s final order and judgment of contempt, EPII asserts that “[Dr.] Smith’s 2007 Book is nearly identical to EPII’s 2003 Manuscript.” A side-by-side comparison of Dr. Smith’s 2007 book with EPII’s 2003 manuscript shows that, while the works contain similarities, they are different in many respects. Some of the similarities are (1) that Dr. Smith’s 2007 book and EPII’s 2003 manuscript both contain meta-analyses of CES studies, (2) that the 2007 book includes most of the CES studies that are included in EPII’s 2003 manuscript, and (3) that, based on his meta-analyses, Dr. Smith reached similar conclusions as to the effectiveness of CES treatment in the 2007 book and the 2003 manuscript. However, viewing all the evidence in the record, the similarities in the works do not support the conclusion that Dr. Smith used EPII’s 2003 manuscript in publishing his 2007 book.

Dr. Smith testified that he did not have a copy of EPII’s 2003 manuscript when writing his 2007 book. He testified that he performed new meta-analyses for his 2007 book. Dr. Smith explained the process for performing meta-analysis. He said that all published studies are examined for the purpose of identifying which of the studies contain sufficient data for meta-analysis. Once those studies are identified, they are meta-analyzed. Dr. Smith said that he followed this process in EPII’s 2003 manuscript and that he “did it again” for his 2007 book. The studies that contained sufficient data for meta-analysis in 2003 would still have been available in 2007. Therefore, one would expect the studies that are included in EPII’s 2003 manuscript to also be included in Dr. Smith’s 2007 book.

EPII did not present evidence that Dr. Smith published any information in his 2007 book that necessarily came from his use of its 2003 manuscript. The evidence showed that the CES studies contained in the 2007 book were not confidential information belonging to EPII. Instead, the studies were public information, and they were readily available from sources other than EPII’s 2003 manuscript. The evidence showed that Dr. Smith had knowledge of available CES studies. Dr. Smith testified that, before his employment with EPII, he meta-analyzed fifty-two of the fifty-seven studies that are included in his 2007 book. The fact that Dr. Smith’s 2007 book includes most of the CES studies that are included in EPII’s 2003 manuscript is no evidence that Dr. Smith used EPII’s 2003 manuscript when writing his 2007 book.

Dr. Kirsch testified that meta-analysis is a mathematical means of combining a number of studies to basically reaffirm the results. Because Dr. Smith’s 2007 book includes most of the studies that are included in the 2003 manuscript, one would expect the results of his meta-analyses to be similar, if not the same, in both works. Thus, the fact that Dr. Smith’s meta-analy-ses yielded similar conclusions in the 2007 book and the 2003 manuscript is no evidence that he used the 2003 manuscript in writing his 2007 book.

There is no evidence that Dr. Smith used EPII’s 2003 manuscript in publishing his 2007 book or that he failed to return to EPII all copies of the 2003 manuscript. Therefore, no evidence supports the trial court’s conclusions that Dr. Smith knowingly violated the 2003 permanent injunction “(i) [by] materially using EPII’s 2003 Manuscript in the publication of Dr. Smith’s 2007 Book, and (ii) by failing to return to EPII all copies and/or notes of his work on EPII’s 2003 Manuscript.” Dr. Smith’s first issue is sustained.

In his second issue, Dr. Smith asserts that, in its final order and judgment of contempt, the trial court improperly expanded the scope of the permanent injunction in the 2003 judgment so as to preclude his use of noneonfidential information. The trial court made a distinction between “information” and “materials” in the 2003 judgment. In one injunctive provision, the trial court prohibited Dr. Smith from publishing or using information learned by him. through his employment with EPII that was “not generally known in the industry.” Under the terms of this provision, EPII’s confidential information was protected from disclosure. On the other hand, Dr. Smith was free to publish or use information that was generally known in the industry. In another injunctive provision, the trial court prohibited Dr. Smith from publishing or using certain materials, including EPII’s 2003 manuscript, which the trial court found belonged to EPII. In its final order, and judgment of contempt, the trial court interpreted this “materials” provision to prohibit Dr. Smith not only from publishing or using the materials but also from publishing or using the information contained in the materials. Thus, the trial court found Dr. Smith “in contempt of this Court’s August 11, 2003 permanent injunction prohibiting his publication of the information within EPII’s 2003 Manuscript.”

EPII does not contend that Dr. Smith published any of its confidential information in his 2007 book. However, as the trial court concluded, EPII argues that the injunctive provision prohibiting Dr. Smith from publishing or using “materials” precludes his publication or use of information within those materials, whether or not the information is confidential. EPII states that the permanent injunction “clearly prohibited [Dr.] Smith’s publication or use of the information within EPII’s 2003 Manuscript.”

We disagree with EPII’s argument for a number of reasons. First, EPII did not seek to protect nonconfidential information in the 2003 suit. Such a request would have been improper because an injunction that grants protection to information that is not confidential or proprietary is imper-missibly overbroad. Sw. Research Inst. v. Keraplast Techs., Ltd,., 103 S.W.3d 478, 482 (Tex.App.-San Antonio 2003, no pet.). Second, we look to the clear language in the 2003 judgment. The trial court stated that “[Dr. Smith] may not ... publish [or] use ... any of the materials listed above.” The trial court did not state that Dr. Smith could not publish or use information that was in those materials. Third, EPII’s argument ignores the distinction between “information” and “materials” in the 2003 judgment. If the “materials” provision is interpreted to include a prohibition against publishing or using nonconfidential information, it conflicts with the “information” provision in the judgment, which allows Dr. Smith to publish or use information that is generally known in the industry. Fourth, EPII’s interpretation of the “materials” provision is unreasonable because it results in the protection of nonconfiden-tial information and, therefore, makes the provision impermissibly overbroad. Id.

The trial court’s 2003 judgment is unambiguous. One reasonable interpretation of the judgment exists. The judgment prohibited Dr. Smith from publishing or using information learned through his employment with EPII that was not generally known in the industry. The judgment also prohibited Dr. Smith from publishing or using certain materials, including EPII’s 2003 manuscript. However, the judgment did not prohibit him from publishing or using the information contained in those materials, as long as that information was generally known in the industry. There was no evidence that Dr. Smith published any of EPII’s confidential information in his 2007 book. Therefore, the trial court improperly concluded that Dr. Smith violated the 2003 judgment by “his publication of the information within EPII’s 2003 Manuscript.” Dr. Smith’s second issue is sustained.

The trial court abused its discretion in finding Dr. Smith in contempt of the 2003 judgment. Therefore, Dr. Smith is entitled to mandamus relief. Based on our rulings on Dr. Smith’s first two issues, we need not address his third and fourth issues.

We conditionally grant Dr. Smith’s petition for writ of mandamus. The trial court is directed to vacate its October 16, 2009 “Final Order and Judgment of Contempt.” With respect to the relief granted in this opinion, the writ of mandamus will issue only if the trial court fails to act by May 19, 2010.

      . The trial court stated:
      For purposes of this order “business in competition with [EPII]” shall include, but not be limited to, the research, development, inventing, manufacturing, constructing, promoting, accounting, merchandising, advertising, selling, leasing, contracting and general business techniques as they relate to Cranial Electrotherapy Stimulation (“CES”) devices, Transcutaneous Electrical Nerve Stimulation (“TENS”) devices, wound healing devices, and the research, data recovery, analysis, drafting and publication of written materials related to CES, TENS and wound healing.

      . The trial court stated that "information” included, but was not limited to:
      [information relating to research, development, programming, techniques of application, inventions, manufacturing, operations, construction, promotion, purchasing, accounting, marketing, merchandising, advertising, selling, renting, leasing, negotiating, contracting, recording; information identifying or tending to identify any or all of [EPII's] customers, clients, employees or insured of customers; recordings, scripts, concepts, ideas, advertising, promotional material, copy, logos, techniques, methods, plans, whether or not copyrightable or patentable; discoveries, concepts, ideas, processes, methods, formulas, designs, techniques and improvements thereof.

      . In the contempt order, the trial court punishes Dr. Smith for past violations — as found by the trial court — of the provision in the 2003 injunction prohibiting Dr. Smith from using or publishing EPII's materials. Therefore, the trial court’s contempt order, at least in part, is in the nature of a criminal contempt order. Ex parte Jones, 36 S.W.3d 139, 142 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d); Ex parte Busby, 921 S.W.2d 389, 391 (Tex.App.-Austin 1996, pet. ref’d). However, the issue of whether the trial court’s order is a criminal contempt order, a civil contempt order, or a hybrid contempt order has no bearing on the outcome of this original proceeding.

      . The table entitled "Studies of the Drug Abstinence Syndrome with CES” does not indicate the time period during which the studies were completed. However, the reference numbers in the table indicate that the earliest study was published in 1967.


source: Caselaw Access Project

author: HOLLIS HORTON, Justice. DAVID GAULTNEY, Justice,

license: Public Domain

text:
    Ex parte Tracy FRANKLIN.
    Nos. 09-09-00320-CR, 09-09-00321-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted April 8, 2010.
    Decided May 5, 2010.

      Bryan Laine, Beaumont, for appellant.
    Tom Maness, Crim. Dist. Atty., Ann Manes, Asst. Crim. Dist. Atty., Beaumont, for the State.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

In two separate cases, Tracy Franklin appeals and argues that the trial court abused its discretion in failing to conduct evidentiary hearings on his writs of habeas corpus. Franklin asserts that the trial court improperly stated and misapplied the standard for evaluating the evidence that Franklin used to support his applications for writs of habeas corpus. Franklin asserts in his applications that he is innocent of the two crimes for which he had been convicted. We reverse, remand the two cases to the trial court, and instruct the trial court to conduct evidentiary hearings on Franklin’s claims of innocence.

In separate cases and for separate offenses (trial cause numbers 91799-B and 91802-B), the State indicted Franklin for aggravated sexual assault of a child. In both cases, Franklin waived his right to a jury trial. Franklin then pled no contest to the charges in each case. Subsequently, in each case, the trial court found Franklin guilty, deferred adjudication of Franklin’s guilt, placed Franklin on unad-judicated community supervision for ten years, and assessed a $2,000.00 fine. Although Franklin appealed, this court affirmed the trial court’s judgments in 2007.

In 2009, alleging that newly discovered evidence proved his innocence of having sexually assaulted S.D., Franklin filed applications under the provisions of section 11.072 of the Texas Code of Criminal Procedure seeking writs of habeas corpus. See Tex.Code Crim. Proc. Ann. art. 11.072 (Vernon 2005). Franklin’s application includes the affidavit of S.D., dated July 25, 2006, which states: “I made up the story of [Franklin] molesting me to get him away from my mother and me.” S.D.’s affidavit also contains S.D.’s explanation about the circumstances that led her to provide the account she gave at the time of Franklin’s trials, and why she now wanted to “testify to the truth.”

The State filed answers to Franklin’s applications in June 2009. In connection with cause number 91799-B, the State attached to its answer an affidavit dated January 23, 2008, that S.D. provided to an investigator in the District Attorney’s office. S.D.’s 2008 affidavit states that her 2006 affidavit was untrue, and also states that “[Franklin] really did molest me and everything I said in court was true.” S.D.’s 2008 affidavit asserts that she provided the earlier affidavit because Franklin promised to provide S.D. and her mother with financial assistance. The State also attached an affidavit from S.D.’s mother that she provided to the District Attorney on January 24, 2008. The affidavit of S.D.’s mother suggests that Franklin obtained S.D.’s cooperation by promising to help S.D. financially. In cause number 91802-B, the State’s answer references the affidavits of S.D. and her mother, but the affidavits are not contained in the record before us.

The trial court denied Franklin’s applications for writs of habeas corpus without conducting evidentiary hearings and filed findings of fact and conclusions of law in each case. The trial court’s findings and conclusions are identical in both cases. In its conclusions of law, the trial court concludes that “the affidavits of complainant and her mother do not prove Applicant is innocent, nor do they challenge the determination of Applicant’s guilt. The affidavits, taken as a whole, reaffirm the factual basis supporting a finding of guilt beyond a reasonable doubt.”

Standard of Review

Franklin’s applications advance the claim that he is actually innocent of the sexual assaults, thus he asserts a Herrera claim. “[A] Herrera claim — is a substantive claim in which the person asserts a ‘bare claim of innocence’ based solely on newly discovered evidence.” Ex parte Brown, 205 S.W.3d 538, 544 (Tex.Crim.App.2006) (citation omitted). In Ex parte Brown, the Court of Criminal Appeals stated that to be entitled to a hearing, “the applicant must make a claim that, if true, establishes affirmative evidence of his innocence.” Id. at 546. “Once the applicant provides such evidence, it is then appropriate to proceed with a determination of whether the applicant can prove by clear and convincing evidence that no reasonable juror would have convicted him in light of the newly discovered evidence.” Ex parte Franklin, 72 S.W.3d 671, 678 (Tex.Crim.App.2002).

The question of whether Franklin’s evidence entitled him to evidentiary hearings on his applications is a “mixed question of law and fact” that does not depend on the affiant’s credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Brown explains that “the evidence presented must constitute affirmative evidence of the applicant’s innocence.” Ex parte Brown, 205 S.W.3d at 546 & n. 21. Therefore, as the determination at this stage does not require the trial court to weigh the exculpatory evidence, the issue is reviewed on appeal under a de novo standard. Guzman, 955 S.W.2d at 89.

In addition, as in this case, when the trial judge is not in an appreciably better position than the reviewing court, a de novo review by the appellate court is appropriate. Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App.1999) (citing Guzman, 955 S.W.2d at 89). Here, the habeas judge did not preside over the prior trial proceeding, so the judge did not have personal knowledge of the trial and did not personally view the witnesses testifying. In Martin, the only evidence submitted was an affidavit from the State and the only issue before the habeas and reviewing courts was whether the facts in that case amounted to good cause, so a de novo review was appropriate. 6 S.W.3d at 526. As in Martin, a de novo review is appropriate in this case because the only evidence submitted consists of affidavits, and the only issue before this Court is whether the affidavits establish affirmative evidence of Franklin’s innocence entitling him to evidentiary hearings.

Analysis

Franklin asserts that based on the evidence submitted with his applications, he was entitled to evidentiary hearings. Thus, the question we must decide is whether Franklin’s “newly discovered evidence,” which in this case consists of S.D.’s 2006 affidavit, “establishes affirmative evidence” of Franklin’s innocence. See Ex parte Brown, 205 S.W.3d at 544, 546.

S.D.’s affidavit states that she “made up the story” she provided at trial, and then states that Franklin “did not touch me or molest me in any inappropriate way.” The Court of Criminal Appeals, addressing the procedure to follow in resolving an application for habeas relief, states that:

When an applicant asserts a Herrera-type claim based on newly discovered evidence, the evidence presented must constitute affirmative evidence of the applicant’s innocence. Once the applicant provides such evidence, it is then appropriate to proceed with a determination of whether the applicant can prove by clear and convincing evidence that no reasonable juror would have convicted him in light of the newly discovered evidence.

Ex parte Franklin, 72 S.W.3d at 678 (citation omitted). We conclude that S.D.’s 2006 affidavit, if true, constitutes affirmative evidence of Franklin’s innocence.

The purpose of the evidentiary hearing, according to the Court of Criminal Appeals, is to allow the trial judge to assess the witnesses’ credibility, to examine the newly discovered evidence, and to determine whether the new evidence, when balanced against the inculpatory evidence, unquestionably establishes the applicant’s innocence. Ex parte Brown, 205 S.W.3d at 546. While the trial judge is required to hold a hearing under circumstances where newly discovered evidence, if believed, establishes the defendant’s innocence, it is not clear how formal the hearing must be. Chapter 11 of the Code of Criminal Procedure contemplates a hearing with live testimony that is most likely subject to the rules of evidence. 43B George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice & Procedure § 47.49 (2nd ed. 2001). As Dix and Dawson note, article 11.48 states that proof shall be heard accordingly, both for and against the applicant for relief. Id.; (quoting Tex.Code Crim. Proc. Ann. art. 11.48 (Vernon 2005)). Further, article 11.44 directs the court to proceed according to the facts and circumstances after it has heard the testimony offered on both sides. § 47.49, see also Tex.Code Crim. Proc. Ann. art. 11.44 (Vernon 2005).

In this case, Franklin presented newly discovered evidence in the form of an affidavit executed by S.D., the child victim, in which she recanted her trial testimony that Franklin molested her. Although she later recanted that affidavit, the Court of Criminal Appeals has directed that the credibility of the newly discovered evidence is to be tested at a “hearing.” See Ex parte Brown, 205 S.W.3d at 546; Ex parte Franklin, 72 S.W.3d at 678. As Justice Cochran has explained, “[t]rial judges who are confronted with contradictory affidavits, each reciting a plausible version of the events, ought to convene an evidentiary hearing to see and hear the witnesses and then make a factual decision based on an evaluation of their credibility.” Manzi v. State, 88 S.W.3d 240, 255 (Tex.Crim.App.2002) (Cochran, J., concurring). And “[i]n cases where such a hearing would be impracticable, [] trial judges should place on the record their rationale for deciding, from the face of opposing affidavits, why the light was red rather than green, and why it was impracticable to conduct an evidentiary hearing.” Id. In Ex parte Tuley, a case involving a victim of sexual assault that later recanted her trial testimony, we further notice that the Court of Criminal Appeals relied in part upon testimony that had been given at an evidentiary hearing on the writ application in finding that habeas relief was appropriate. 109 S.W.3d 388, 395-97 (Tex.Crim.App.2002).

We are aware of several cases in which appellate courts have concluded a hearing is not required for a trial court to make a determination on the merits of 11.072 writ applications, but these cases are distinguishable, as the claims advanced by the respective applicants did not involve claims of actual innocence. These courts of appeals, including ours, have determined that the trial court is not required to hold oral hearings in order to determine whether to deny an 11.072 application for a writ of habeas corpus application alleging ineffective assistance of counsel. See Ex parte Luciw, No. 03-08-00445-CR, *2, *4 2009 WL 5150018 (Tex.App.-Austin Dec. 31, 2009, no pet.) (mem. op., not designated for publication) (no error in not ordering a hearing on claims alleging improper venue, illegal search and seizure, and ineffective assistance of counsel); Ex parte Cano, No. 04-08-00203-CR, 2008 WL 4500306, at **1-2 (Tex.App.-San Antonio Oct. 8, 2008, pet. ref'd) (mem. op., not designated for publication) (trial court did not err by not conducting an evidentiary hearing on 11.072 writ application that alleged ineffective assistance); Ex parte Faulkner, No. 09-05-478 CR, WL 3094339, * 4 (TexApp.-Beaumont Nov. 1, 2006, pet. ref'd) (mem. op., not designated for publication) (where trial judge had prior knowledge of the case, trial court did not abuse its discretion in deciding the merits of the 11.072 application upon affidavits on applicant’s claim of ineffective assistance); Ex parte Garcia, No. 10-06-0067-CR, 2006 WL 2876758, * 1 (Tex.App.-Waco Oct. 4, 2006, no pet.) (mem. op., not designated for publication) (trial court did not err in not conducting a hearing when no hearing was requested and 11.072 writ alleged ineffective assistance); Ex parte Cummins, 169 S.W.3d 752, 757-58 (Tex.App.-Fort Worth 2005, no pet.) (trial court not required to hold hearing where 11.072 writ application alleged ineffective assistance of counsel).

We conclude that because Franklin asserted a claim that he was actually innocent, the trial court should have conducted evidentiary hearings to allow Franklin the opportunity to call S.D. as a witness and to allow S.D. to provide an explanation about which of her accounts is accurate. If Franldin chose not to call her, or if the trial court explains why the hearing is impractical, the trial court can then proceed to make its determination based on its assessment of all the affidavits together with the inculpatory evidence from Franklin’s trials. Ex parte Brown, 205 S.W.3d at 546.

Because we find that the trial court erred in refusing to conduct evidentiary hearings, we reverse the trial court’s June 25, 2009 orders and remand the cases, and instruct the trial court to conduct eviden-tiary hearings, unless it is not practical to do so. See generally Tex.R.App. P. 31.3 (In habeas appeals, “[t]he appellate court will render whatever judgment and make whatever orders the law and the nature of the case require.”).

We reverse the trial court’s orders in trial cause numbers 91799-B and 91802-B and remand the cases to the trial court for further proceedings consistent with our opinion.

REVERSED AND REMANDED.

DAVID GAULTNEY, Justice,

dissenting.

I respectfully dissent. The complaining witness disavowed her 2006 affidavit, and signed an affidavit consistent with her trial testimony. She says “everything I said in court was true.” The 2006 recanted affidavit is insufficient to entitle defendant to habeas relief.

      . The cases were appealed separately to this Court. As both cases present identical records and briefs, we address them in one opinion.

      . See Franklin v. State, Nos. 09-06-164 CR, 09-06-165 CR, 2007 WL 1219473 (Tex.App.Beaumont, Apr. 25, 2007, no pet.) (not designated for publication).

      . In 2007 and 2008, Franklin filed 11.07 and 11.08 applications for writs of habeas corpus, but they were both withdrawn by Franklin and then denied by the trial court because they were not based on section 11.072.

      . See Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).

      . We do not reach the question of whether a habeas court is required to have a hearing when the habeas court has personal knowledge of the prior trial proceedings, and therefore has knowledge of the witness from the prior proceedings. In this case, the trial judge that presided over Franklin's trial had retired; consequently, the judge that conducted the determination in the habeas case had no personal knowledge of S.D.'s testimony from the proceedings that resulted in Franklin's two convictions.


author: STEVE MeKEITHEN, Chief Justice.

text:
    Larry Dean GRAVES, Appellant, v. The STATE of Texas, Appellee.
    No. 09-09-00171-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Jan. 19, 2010.
    Decided May 5, 2010.

      Joseph C. “Lum” Hawthorn, Zack Hawthorn, Hawthorn & Hawthorn, P.C., Beaumont, for appellant.
    Tom Maness, Crim. Dist. Atty., Ann Manes, Asst. Crim. Dist. Atty., Beaumont, for the State.
    Before MeKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

STEVE MeKEITHEN, Chief Justice.

A jury convicted appellant Larry Dean Graves of aggravated sexual assault of a child and assessed punishment at imprisonment for life. Graves then filed this appeal, in which he raises four issues for our consideration. In his first issue, Graves argues he received ineffective assistance of counsel. In his second and third issues, Graves asserts the trial court erred by refusing to give a “beyond a reasonable doubt” instruction concerning extraneous offenses admitted during the guilt/innocence and punishment phases. In his fourth issue, Graves contends the trial court erred by failing to give him a full Jackson v. Denno hearing. We affirm the trial court’s judgment.

Pertinent Evidence

The victim, B.G., testified that Graves adopted her after marrying her mother when B.G. was a child. According to B.G., during the spring semester of her sixth grade school year, Graves came into her bedroom and touched her genital area, but she did not tell anyone. B.G. testified that the next day, Graves picked her up from school, so she was alone in the house with him. B.G. explained that she went to her room to take a nap, but Graves awakened her, lifted her shirt, and began to massage her breasts, and Graves then removed her shorts and began touching her female sexual organ. According to B.G., after a few minutes, Graves removed her underwear and penetrated her female sexual organ with his finger. B.G. explained that she did not feel that it was safe to tell her mother what had happened. B.G. testified that she continued to reside with Graves, her mother, and her siblings for about two more years, and Graves fondled her on other occasions. In addition, B.G. testified that on one occasion, Graves physically assaulted her, and her mother notified the police. B.G. testified that in April of 2002, she decided to move in with her grandmother, who lived nearby. B.G. explained that as she went through junior high and entered high school, she did not experiment with sex; instead, she was saving sex for marriage, and she wore a ring to so indicate. B.G. explained that from 2000 to 2005, while she was living with her grandmother, Graves did not abuse her.

B.G. testified that when Hurricane Rita occurred in September of 2005, she had to evacuate with her mother, Graves, her siblings, and her grandmother. According to B.G., during the evacuation, Graves touched her breasts on one occasion, and another time, he touched her female sexual organ. B.G. explained that eventually, Graves put her on the bed, removed her pajama bottoms and underwear, and penetrated her sexual organ with his fingers and then with his sexual organ. Graves’s counsel did not object to B.G.’s testimony. When the prosecutor asked B.G. whether anything else happened, B.G. responded, “Not to me, thankfully. But the night that the rape actually happened — [,]” and the following exchange between defense counsel and the trial court then occurred:

[Defense counsel]: Your Honor, I object. She’s testifying as to hearsay.
THE COURT: It’s overruled.
[Defense counsel]: And, also, Your Hon- or, if we’re getting into one of those extraneous matters that we talked about, we would ask for a hearing on that matter.
THE COURT: We’ll have to see where it goes. If we get to that point, I’ll certainly do that.

The prosecutor then elicited testimony from B.G. concerning an incident involving one of B.G.’s siblings. B.G. testified that the incident with Graves was the only time she had ever been penetrated by a male sexual organ.

Jeffrey Wilmore, former Chief Deputy in the city of Groves, testified that he investigated the case involving B.G. After taking B.G.’s statement, Wilmore interviewed Graves. Wilmore testified that Graves voluntarily came to the meeting. When the prosecutor asked whether Graves was free to leave and Wilmore responded affirmatively, defense counsel objected and requested a hearing. At the hearing, which was conducted outside the presence of the jury, Wilmore testified that Graves was not under arrest at the meeting, but came voluntarily and was always free to leave. Wilmore testified that he did not arrest Graves the day the meeting concluded. During cross-examination, Wilmore explained that B.G. had identified Graves as the perpetrator when the interview took place. Wilmore also testified that he did not give Graves Miranda warnings. According to Wilmore, he gave Graves Miranda warnings during a subsequent interview because Wilmore was taking Graves’s statement. According to Wil-more, when asked about specific instances of sexual contact with B.G., Graves’s response was “I don’t remember doing that.” Wilmore explained that Graves’s responses struck him as very unusual. Defense counsel eventually stated that he had no other questions for Deputy Wilmore.

The trial court found that Graves’s statements were freely and voluntarily given, and that they were taken pursuant to a noncustodial interrogation. After the trial court made its findings, the following exchange occurred between defense counsel and the trial court:

[Defense counsel]: Oh, Your Honor, I’m sorry. Because it was a hearing as to voluntariness, I needed to call Mr. Graves to testify as to his voluntarily presenting himself for—
THE COURT: And I’ll let you do that. We’re going to do that after — we’ll do it after work. We’ll do it on a break. We’ll do it sometime. But as far as my ruling, my ruling is to this witness [sic]; and I do find that they were freely and voluntary [sic] given.

The trial court then admitted into evidence two tape-recorded statements given by Graves. The State then presented the remainder of its case, and after unsuccessfully moving for a directed verdict, Graves presented his defense.

During the punishment phase, Graves’s biological daughter, R.G., testified that Graves touched her genital area eight to ten times. Defense counsel did not object to R.G.’s testimony. On cross-examination, defense counsel asked R.G. whether she was certain that Graves intended to put his hand inside her underwear and to go further if she had not gotten up, and R.G. responded affirmatively to both questions. In addition, defense counsel asked R.G. exactly what type of sexual contact occurred, and R.G. responded that Graves “rubbed his hands under my panties right above my pubic area.” Graves’s brother testified that he saw Graves put his hand in R.G.’s pants, which made him uncomfortable, but he did not believe Graves did so for sexual gratification.

Issue One

In his first issue, Graves argues that trial counsel provided ineffective assistance by failing to request proper notice from the State of its intent to use extraneous offense evidence, failing to obtain rulings on motions, failing to request hearings, and failing to object to the admissibility of “highly prejudicial extraneous offenses[.]” Graves complains that although he was indicted for penetrating B.G.’s sexual organ by inserting his finger, the jury heard evidence of several other “sexual bad acts” he committed against B.G. without objection from his counsel. In addition, Graves maintains that when the trial court admitted the extraneous offense evidence, counsel was ineffective when he failed to request that the trial court conduct a balancing test under Rule 403 of the Texas Rules of Evidence. See Tex.R. Evid. 403. Graves also complains that although defense counsel filed a motion in limine, a motion for notice of the State’s intention to use extraneous offense evidence at trial, a motion pursuant to article 38.37 of the Texas Code of Criminal Procedure, and a motion for discovery of punishment evidence, defense counsel did not obtain rulings from the trial court on the motions. See Tex.Code CRiM. Proc. Ann. art. 38.37 (Vernon Supp.2009). Furthermore, Graves asserts that counsel was ineffective because counsel did not file a motion requiring the State to give notice of its intent to introduce punishment evidence.

To prevail on a claim of ineffective assistance of counsel, Graves must satisfy a two-pronged test:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986). Texas courts have held that Strickland requires an appellant to show a reasonable probability that, but for his counsel’s errors, the outcome of his trial would have been different. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). “Appellate review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance.” Id. Appellant must prove there was no plausible professional reason for specific acts or omissions of his counsel. Id. at 836. Furthermore, “[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996)). Because the reasonableness of counsel’s decisions and strategy often involves facts that do not appear in the appellate record, the record on direct appeal is generally insufficient to support a claim of ineffective assistance. Id. at 813-14. The mere fact that another attorney might have tried the case differently does not support a finding of ineffective assistance of counsel. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App.1983).

Graves did not file a motion for new trial to develop a record supporting his ineffective assistance claim; therefore, we have no explanation as to the reasons for counsel’s decisions. However, assuming without deciding that Graves could meet the first prong of Strickland, Graves has not demonstrated that, but for counsel’s alleged ineffective assistance, the result of his trial would have been different. See Bone, 77 S.W.3d at 833. Accordingly, we overrule issue one.

Issue Two

In his second issue, Graves argues the trial court erred by failing to give a “beyond a reasonable doubt” instruction regarding the extraneous sexual offenses that were introduced during the punishment phase. The record reflects that Graves did not request a beyond-a-reasonable-doubt instruction, nor did he object to the punishment charge on the basis that it did not include such an instruction. The State argues that this instruction was given in the punishment section of the charge; however, the record reflects that when the trial court read the punishment charge to the jury, it did not include the instruction. In determining whether reversible jury charge error occurred, we must first determine whether charge error exists and then determine whether the error harmed the defendant. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.2003). When, as here, the defendant failed to object to the charge, we will reverse only if the error was “so egregious and created such harm that [the defendant] ‘has not had a fair and impartial trial.’ ” Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984).

The Code of Criminal Procedure provides that during punishment, the State and the defendant may offer evidence

as to any matter the court deems relevant to sentencing, including but not limited to ... any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp.2009). Regardless of whether the defendant requests such an instruction, the trial court is required to instruct the jury that extraneous offenses must be proved beyond a reasonable doubt. See Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App.2000). If a defendant fails to object to the charge, the trial court’s failure to give the instruction is subject to the egregious harm analysis. Id. at 484-85.

We hold that it is error to fail to instruct the jury in the punishment phase of the charge that any extraneous offenses must be proved beyond a reasonable doubt. See id.; see also Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a)(1). Therefore, we now examine the record to determine whether Graves was egregiously harmed. See Almanza, 686 S.W.2d at 171. The harm we must consider “is the impact of the omission in the jury charge of a reasonable-doubt instruction.” Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App.2002). Egregious harm exists if a defendant did not receive a fair and impartial trial as a result of the omission of the instruction, and we consider particularly whether the error made the case for punishment clearly and substantially compelling. Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App.2004); Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) (citing Almanza, 686 S.W.2d at 172); Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App.1991). In analyzing whether egregious harm occurred, we must consider the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information in the entire trial record. Almanza, 686 S.W.2d at 171; see also Hutch, 922 S.W.2d at 171. “Egregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis.” Hutch, 922 S.W.2d at 171.

We first examine the charge as a whole. See Almanza, 686 S.W.2d at 171. In the guilt/innocence phase, the trial court’s charge included an instruction to the jury that any extraneous offenses had to be proved beyond a reasonable doubt. The testimony of B.G. and R.G. concerning Graves’s unadjudicated extraneous sexual acts was clear, direct, and unimpeached. The jury could have reasonably believed the extraneous offense evidence beyond a reasonable doubt. See generally Zarco v. State, 210 S.W.3d 816, 824-26 (Tex.App.Houston [14th Dist.] 2006, no pet.). Therefore, we cannot infer that the inclusion of a beyond-a-reasonable-doubt instruction in the court’s punishment charge regarding the extraneous offenses would have changed how the jury considered the evidence. See generally id. In addition, considering B.G.’s testimony concerning the occurrence of digital penetration as alleged in the indictment, the evidence concerning the unadjudicated offenses does not make the case for punishment clearly more persuasive. See generally Saunders, 817 S.W.2d at 692.

During its punishment argument, the State referred once to R.G.’s testimony, stating that Graves “starts messing with little girls, his own family of little girls, including his own flesh and blood, [R.G.], the only daughter that he fathered. Tried to, at least, many times, tried to do to her what he did to [B.G.].” The prosecutor also mentioned Graves’s brother’s testimony that what he had seen Graves do to R.G. disturbed him. However, the State also discussed Graves’s prior felony conviction, the severity of the crime, the need to protect society, and its contention that Graves could not be rehabilitated. Defense counsel simply asked the jurors to “do what you think is right; but please make sure that it is what you think is right.” The portions of the State’s argument quoted above constitute the only references to the extraneous offenses during closing arguments, and the State did not otherwise emphasize the extraneous offenses during its closing argument. We conclude that the arguments of counsel do not support a finding of egregious harm.

Considering the state of the evidence, the arguments of counsel, as well as the record as a whole, we conclude that Graves was not egregiously harmed by the trial court’s omission of a beyond-a-reasonable-doubt instruction from the punishment charge. Accordingly, we overrule Graves’s second issue.

Issue Three

In his third issue, Graves contends the trial court erred by failing to give the “beyond a reasonable doubt” instruction he requested regarding extraneous offenses that were introduced during the guilt/innocence phase. Specifically, Graves argues that the trial court should have included as part of the second paragraph of its extraneous offense instruction a statement that the jury could only consider Graves’s extraneous offenses if it found they had been proved beyond a reasonable doubt. The trial court’s guilt/innocence charge included the following instruction concerning extraneous offenses:

Extraneous offense:
Evidence may have been introduced in this case regarding the defendant’s having committed offenses other than the offense now alleged against him. You cannot consider this testimony for any purpose unless you believe beyond a reasonable doubt that the defendant committed such other offenses, if any. Even then you may only consider the same in determining the identity of the defendant or the issues of intent, motive, system, scheme, or design in connection with this offense and no other purpose.
Evidence of crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense may be considered for its bearing on relevant matters, including, number one, the state of mind of the defendant and the child; and, number two, the previous and subsequent relationship between the defendant and the child.

At the charge conference, defense counsel objected as follows: ‘Your Honor, I don’t have any objections to the charge except that — well, I guess it is an objection. On the ‘extraneous offense’ page, the second part of it, we would ask the Court to include language that the jury has to consider that beyond a reasonable doubt in order to use it in its deliberations.” The trial court overruled counsel’s objection and included the instruction as worded above.

We must first determine whether error occurred. Middleton, 125 S.W.3d at 453. Because Graves preserved the issue by objecting at trial, if we find that error occurred, we must reverse unless the error is harmless. See Almanza, 686 S.W.2d at 171. The Code of Criminal Procedure requires the trial court to give the jury “a written charge distinctly setting forth the law applicable to the case[.]” Tex.Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). The trial court’s extraneous offense instruction accurately and distinctly stated the applicable law: that is, it informed the jurors that before they could consider any of Graves’s extraneous offenses, they must believe beyond a reasonable doubt that Graves committed the extraneous offenses. The second paragraph of the instruction simply contained additional instructions to the jury concerning the purposes for which it could consider particular extraneous offenses. We find that the trial court did not err by denying the re-worded instruction Graves requested. See generally id. Accordingly, we overrule issue three.

Issue Four

In his fourth issue, Graves argues that the trial court erred by failing to give him a full hearing concerning the volun-tariness of his statements. As discussed above, defense counsel did not attempt to call Graves to testify until after the hearing had concluded and the trial court had made its findings. In addition, when defense counsel stated that he had intended to call Graves to testify, the trial court indicated that it would permit Graves to testify later in the proceeding, yet the record does not reflect that defense counsel ever sought to call Graves to testify after the trial court’s statement. By failing to create a record containing whatever evidence Graves wanted to present regarding the voluntariness of his confession, he failed to preserve the issue. See Tex. R.App. P. 33.1(a). Accordingly, we overrule issue four and affirm the trial court’s judgment.

AFFIRMED.

      . A certified sexual assault nurse examiner testified that she examined B.G. and found a healed tear of B.G.'s hymenal tissue that was consistent with sexual intercourse having occurred several weeks or months before the examination.

      . See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).


author: EVELYN V. KEYES, Justice.

text:
    SPIR STAR AG, Appellant, v. Louis KIMICH, Appellee.
    No. 01-06-00129-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 8, 2007.

      Rick Lee Oldenettel, Thomas C. Folsom, Oldenettel & Dies, Houston, for Appellant.
    Keith M. Fletcher, Simmons & Fletcher, P.C., Scott Rothenberg, Law Office of Scott Rothenberg, Houston, for Appellee.
    Panel consists of Justices NUCHIA, KEYES, and HIGLEY.
   MEMORANDUM OPINION

EVELYN V. KEYES, Justice.

Appellant, Spir Star AG, files this interlocutory appeal challenging the trial court’s denial of its special appearance motion. In two points of error, appellant contends that the trial court erred in denying its motion because it did not purposefully avail itself of the benefits and protections of Texas law and does not have continuous and systematic contacts with Texas.

We affirm.

FACTS AND PROCEDURAL HISTORY

On March 24, 2003, Louis Kimich, the appellee, was injured on the job when the insert of a high-pressure hose broke and struck and punctured his arm. The hose was manufactured by Spir Star AG (“AG”) and sold to Kimich’s employer, AquaDrill, Inc. (“AquaDrill”), by Spir Star, Ltd.

(“Limited”). On June 30, 2003, in response to his injury, Kimich filed a lawsuit against several parties, including his employer, but not AG or Limited. On February 22, 2005, Kimich filed his fifth amended original petition, which named AG as a defendant; Limited had been named as a defendant in a previous petition and did not contest the jurisdiction of the court. On July 25, 2005, AG filed a special appearance with the trial court contesting the court’s exercise of personal jurisdiction over it, which the trial court denied without issuing findings of fact or conclusions of law. AG appeals.

AG, a German corporation headquartered in Germany, manufactures high pressure hoses and fittings for sale on the German and international markets. AG is owned by three German citizens: Werner Büchner, Gerhard Strobach, and Walter de Graaf. In 1995, AG established an overseas operation in Houston named Spir Star, Ltd., to solicit and receive orders for its hoses, complete final assembly of the hoses per customer demands, and ship orders to their final destinations in North and South America, including Houston. Büchner, Strobach, and de Graaf each own 25% of Limited; the remaining 25% is owned by Tony Bessette, Joachim Vogler, and Joseph Derzaph, Limited’s technical manager. De Graaf serves as president of both AG and Limited; he owns a home in Houston and spends at least six months out of the year in Houston.

According to AG’s website: “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 S.A.R.L. 1991 in Hague-nau/France, SPIR STAR [Ltd.] 1995 in Housten[sic]/Texas (U.S.A.) and SPIR STAR Asia Pty. Ltd. 1999 in Singapore.” Similarly, AG’s website states:

As a result of the ever-growing demand for high pressure hose, the decision was made that the company should expand its activities out of Europe. With an objective to provide the customer with the highest quality of service on an international scale, in 1995, we ventured across the Atlantic and founded SPIR STAR, Ltd. in Houston, Texas.
Having more than 1,000 customers from a variety of industries, today this successful company is the main link for our growing market share in North and South America.

AG’s board selected Houston as the location for a North American operation, and de Graaf traveled to Houston and selected the location, hired an attorney in Houston to form the company, and hired Bessette to run the company as its vice president. AG’s board also passed a resolution allowing Limited to use “Spir Star” in its name. AG neither licenses the use of the “Spir Star” name to Limited nor charges Limited for its use.

Once Limited was formed, Limited ordered the necessary equipment for assembling the hoses from AG, and AG delivered and installed the equipment in Houston. Since then, AG has sold millions of dollars worth of product to Limited. AG ships the product such that title to the product passes to Limited in Europe, and Limited then transports the product to Houston for final assembly. To pay for the product it orders from AG, Limited writes a check drawn on a Texas bank and mails it to AG in Germany.

STANDARD OF REVIEW

Whether a court has personal jurisdiction over a defendant is a question of law subject to de novo review. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); Glattly v. CMS Viron Corp., 177 S.W.3d 438, 445 (Tex.App.Houston [1st Dist.] 2005, no pet.). The trial court, however, must frequently resolve questions of fact before deciding the jurisdiction question. BMC Software, 88 S.W.3d at 794. If the trial court enters an order denying a special appearance and issues findings of fact and conclusions of law, we may review the findings of fact on legal and factual sufficiency grounds and review the conclusions of law de novo as a legal question. Silbaugh v. Ramirez, 126 S.W.Sd 88, 94 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (citing BMC Software, 88 S.W.3d at 794).

If the trial court does not issue findings of fact and conclusions of law, “all facts necessary to support the judgment and supported by the evidence are implied.” BMC Software, 83 S.W.3d at 795. In other words, if the trial court does not issue findings of fact, a reviewing court should presume that the trial court resolved all factual disputes in favor of its judgment. Tri-State Bldg. Specialties, Inc. v. NCI Bldg. Sys., L.P., 184 S.W.3d 242, 246 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (citing American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002)). These findings are not conclusive when the appellate record includes both the reporter’s and clerk’s records, and they may be challenged for legal and factual sufficiency on appeal. Id. To the extent that the underlying facts are undisputed, however, we conduct a de novo review. Glattly, 177 S.W.3d at 445.

ANALYSIS

AG argues that the trial court erred in denying its special appearance because it did not purposefully avail itself of the benefits and protections of Texas law and does not have continuous and systematic contacts with Texas. Kimich responds that the court properly denied AG’s special appearance because the record contains legally and factually sufficient evidence to support the trial court’s decision.

Personal Jurisdiction

Two requirements must be met before a Texas court can exercise personal jurisdiction over a nonresident defendant. First, the Texas long-arm statute must authorize the exercise of jurisdiction, and second, the exercise of jurisdiction must be consistent with the guarantees of due process. Tri-State, 184 S.W.3d at 248.

The long-arm statute permits Texas courts to exercise personal jurisdiction over a nonresident defendant that “does business” in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 1997); BMC Software, 83 S.W.3d at 795. The statute lists three activities that constitute “doing business”: (1) contracting with a Texas resident when either party is to perform the contract in whole or in part in Texas; (2) committing a tort in whole or in part in Texas; and (3) recruiting Texas residents for employment inside or outside of Texas. Tex. Civ. Prac. & Rem.Code Ann. § 17.042. This list, however, is not exclusive, and the statute’s “doing business” requirement is limited only by the requirements of federal due process guarantees. Koll Real Estate Group, Inc. v. Purseley, 127 S.W.3d 142, 146 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (citing Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.1990)).

With respect to personal jurisdiction, federal due process requires two things. First, the nonresident defendant must have purposefully established such minimum contacts with the forum state that the defendant could reasonably anticipate being sued there. Glattly, 177 S.W.3d at 447 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985)). Second, if the nonresident defendant has purposefully established minimum contacts with the forum, the exercise of personal jurisdiction must also comport with traditional notions of fair play and substantial justice. Id. (citing Burger King, 471 U.S. at 475-76, 105 S.Ct. at 2183-84). As to fairness, the defendant bears the burden of presenting a “compelling case” that exercising jurisdiction over him would not be fair and just. See id. at 450. Only in rare cases, however, will a Texas court’s exercise of personal jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 231 (Tex.1991).

The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the Texas long-arm statute. BMC Software, 83 S.W.3d at 793. A nonresident defendant challenging the court’s exercise of personal jurisdiction through a special appearance carries the burden of negating all grounds for personal jurisdiction alleged by the plaintiff. Id.; Glattly, 177 S.W.3d at 446.

Minimum Contacts

A nonresident establishes minimum contacts with Texas by-purposefully availing itself of the privileges and benefits inherent in conducting business in the state. Koll, 127 S.W.3d at 146. It is the quality and nature of the defendant’s contacts, rather than their number, that is important to the minimum-contacts analysis. Trigeant Holdings, Ltd. v. Jones, 183 S.W.3d 717, 725 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). Random, fortuitous, or attenuated acts, or the unilateral acts of a third party, are not sufficient to confer personal jurisdiction. Id. Although not determinative, foreseeability is an important consideration in deciding whether a nonresident defendant has purposefully established minimum contacts. Glattly, 177 S.W.3d at 446-47.

The minimum contacts element of due process is further divided into specific and general personal jurisdiction. Id. at 447. A court may exercise specific jurisdiction over a nonresident defendant if his alleged liability arises from, or is related to, an activity conducted within the forum. Id. (citing CSR, Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996)). The contacts must be purposefully directed at the forum and have a “substantial connection” that results in the alleged injuries. Shell Compañia Argentina de Petroleo, S.A. v. Reef Exploration, Inc., 84 S.W.3d 830, 837 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). We focus our analysis on the relationship among the defendant, the forum, and the litigation. Id. A court may exercise general jurisdiction over a nonresident defendant if the defendant’s contacts with the forum state are continuous and systematic, even if the cause of action did not arise from or relate to the defendant’s contacts with the forum. Glattly, 177 S.W.3d at 447.

In this case, the trial court properly exercised general jurisdiction over AG. Ki-mich alleges in his pleadings that AG has extensive, long-term, systematic, and consistent ties with Texas, including significant sales made by AG to Limited over the course of ten years; frequent communication between AG and Limited via facsimile, telephone, letter, and e-mail; common ownership and one common director; and the fact that AG gave Limited the right to use “Spir Star” in its name. AG responds that Kimich’s cause of action does not arise out of any contacts initiated by AG because (a) AG has had no control over where the product purchased by Limited from AG would ultimately go because title to the product passed to Limited in Europe and (b) all orders were initiated by Limited. While it is true that AG did not solicit orders from Limited and title to any product shipped to Limited passes in Europe, AG established the relationship between itself and Limited. AG receives orders from Limited in Texas pursuant to contract, manufactures the product ordered, and ships its product to Limited in Texas.

AG established Limited in 1995. Although AG contends that the owners of AG, not AG itself, established Limited in Texas, AG’s website states: “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 S.A.R.L. 1991 in Hague-nau/France, SPIR STAR [Ltd.] 1995 in Housten[sic]/Texas (U.S.A.) and SPIR STAR Asia Pty. Ltd. 1999 in Singapore.” Additionally, according to Limited’s website:

As a result of the ever-growing demand for high pressure hose, the decision was made that the company should expand its activities out of Europe. With an objective to provide the customer with the highest quality of service on an international scale, in 1995, we ventured across the Atlantic and founded SPIR STAR, Ltd. in Houston, Texas.
Having more than 1,000 customers from a variety of industries, today this successful company is the main link for our growing market share in North and South America.

AG’s board chose Houston as the location for a North American operation, and de Graaf traveled to Houston and selected the location, hired an attorney to form the company, and hired Bessette to run the company. AG’s board also passed a resolution allowing Limited to use the words “Spir Star” in its name for no charge and with no licensing agreement in place. Once Limited was formed, Limited ordered and AG delivered and installed the necessary equipment for assembly. Since then, Limited has been AG’s sole distributor in North America.

AG has sold millions of dollars worth of product to Limited, which Limited receives in Houston, assembles in Houston to meet customer demands, and ships from Limited’s plant in Houston to destinations throughout North America, including AquaDrill, Kimich’s employer, in Harris County, Texas. In fact, Bessette identified the hose that injured Kimich as a hose manufactured by AG and sold to AquaDrill by. Limited. To pay for the product it orders from AG, Limited writes a check drawn on a Texas bank and mails it to AG in Germany.

We conclude that these actions either occurred in or were purposefully directed at Texas. See Glattly, 177 S.W.3d at 446-47 (citing CSR, 925 S.W.2d at 595); Shell, 84 S.W.3d at 837. We further conclude that these contacts with Texas were continuous and systematic. See id. at 447. None were random, fortuitous, or attenuated. See Trigeant, 183 S.W.3d at 725. Rather, AG purposefully availed itself of the privileges and benefits of conducting business in Texas. See Roll, 127 S.W.3d at 146. Thus, AG’s actions in establishing and doing business with Limited constitute “doing business” in Texas and forming contracts performable in part in Texas with a Texas company. See Tex. Civ. Prac. & Rem.Code Ann. § 17.042; BMC Software, 88 S.W.3d at 795.

Fair Play and Substantial Justice

Having found that AG purposefully established minimum contacts with Texas, we must consider whether the exercise of personal jurisdiction over it comports with traditional notions of fair play and substantial justice. See Glattly, 177 S.W.3d at 447 (citing Burger King, 471 U.S. at 475-76, 105 S.Ct. at 2183-84). In making this inquiry, we consider, when appropriate, (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 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. Guardian Royal, 815 S.W.2d at 231.

First, there is no undue burden on AG in defending this case in Texas. Büchner, Strobach, and de Graff, AG’s owners, each own 25% of Limited, which has not contested the trial court’s exercise of jurisdiction and against whom Kimich’s suit will go forward here in Texas. Furthermore, de Graaf is the president of both AG and Limited, owns a house in Houston, and spends at least six months of the year in Houston. Second, Texas has an interest in resolving this dispute because it involves the injury of a Texas resident and Texas has a substantial interest in protecting its citizens against harm from dangerous products entering this state. See Gen. Refractories Co. v. Martin, 8 S.W.3d 818, 823 (Tex.App.-Beaumont, 2000, pet. denied) (finding that Texas has a manifest interest in protecting residents exposed to products alleged to be unreasonably dangerous).

Third, Kimich, a Texas resident, can obtain the most convenient and efficient relief in Texas. Fourth, the efficient resolution of this controversy is promoted by adjudication in Texas because Limited has not contested jurisdiction; trying AG’s suit against AG in Texas, rather than in Germany, will avoid duplication of efforts and minimize the possibility of inconsistent findings on common issues. See J.D. Fields & Co., Inc. v. W.H. Streit, Inc., 21 S.W.3d 599, 605 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (finding the efficient resolution of controversy promoted by adjudication in Texas because suit against defendant company’s surety was still pending in Texas and reconsohdating the suit against defendants with the suit against the surety avoided duplication of efforts and minimized the possibility of inconsistent findings on common issues). We will not address the fifth factor as only one state is involved in this dispute.

Accordingly, we hold that the trial court’s exercise of personal jurisdiction over AG does not offend traditional notions of fair play and substantial justice. Glattly, 177 S.W.3d at 450 (citing Burger King, 471 U.S. at 475-76, 105 S.Ct. at 2183-84). The trial court’s exercise of personal jurisdiction over AG is supported by the evidence and is, therefore, proper.

We overrule AG’s first and second points of error.

CONCLUSION

We affirm the trial court’s order denying AG’s motion for special appearance.

      . A "nonresident” includes “an individual who is not a resident of [Texas]” and “a foreign corporation, joint-stock company, association, or partnership.” Tex Civ. Prac. & Rem.Code Ann. § 17.041 (Vernon 1997).

        . BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002).