author: KEASLER, J., HOLCOMB, J.,

text:
    Jaime Casas JUAREZ, Jr., Appellant, v. The STATE of Texas.
    No. PD-0666-09.
    Court of Criminal Appeals of Texas.
    March 31, 2010.

      Austin Reeve Jackson, Tyler, for Appellant.
    Michael J. West, Asst. Crim. D.A., Tyler, Jeffrey L. VanHorn, State’s Attorney, Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court

in which KELLER, P.J., MEYERS, PRICE, WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

The confession and avoidance doctrine applies to the necessity defense. Therefore, a defendant must admit to the conduct — the act and the culpable mental state — of the charged offense to be entitled to a necessity instruction. Juarez’s testimony both admitted to and denied the culpable mental state; therefore, the trial judge erred in denying Juarez’s request for a necessity instruction. The court of appeals’s judgment is affirmed and we remand this case to the trial court.

Facts

Shortly before dawn on June 10, 2007, Blair Blanford observed three men dressed in black attempting to break into vehicles in his apartment complex’s parking lot. After observing the men rifle through an unlocked car, Blanford called 911. Tyler police Officers J.H. Burge, Noe Balderas, and Steve Black were dispatched to the complex. They left their vehicles outside of the complex and walked in so that they could “sneak up” on the three men and “catch them in the act.” Officer Burge saw two of the men inside a car and the third standing beside it, with items from the car strewn on the ground. The officers then yelled, “Stop, police.” The men ran, and the officers pursued them. Officer Burge chased Juarez while Officers Balderas and Black chased the other two men.

Officer Burge found Juarez sitting on some steps, sweaty and out of breath. Juarez put his hands in the air, but when Officer Burge tried to handcuff him, he pulled away. Officer Burge grabbed Juarez, and both of them fell to the ground with Juarez facing Officer Burge. Officer Burge ordered Juarez to stop resisting and yelled for help. With Juarez now facing the ground, Officer Burge had both of his hands on Juarez’s back to keep him from getting up, but Juarez was pushing up with Officer Burge on his back. Officer Burge did not know if Juarez’s face went into the ground. He presumed Juarez did not have any trouble breathing because Juarez was saying “foul” things to him. Realizing that no one heard his call for help, Officer Burge tried to radio his location. When Officer Burge removed his right hand from Juarez’s back to use his radio, Juarez bit Officer Burge’s left index finger. Burge testified that Juarez did this intentionally, knowingly, or recklessly. Officer Burge tried to get Juarez to let go by standing up and hitting him, but Juarez stood up and refused to let Officer Burge’s finger go. Finally, when Officer Black arrived and hit Juarez, Juarez released Officer Burge’s finger. Officer Black testified that, based on his observations, Juarez’s biting of Officer Burge’s finger was intentional, knowing, or reckless. Juarez continued to resist arrest by wrestling with and hitting Officer Black. Once Officer Balderas arrived, he and Officer Black were finally able to subdue Juarez and arrest him. Juarez remained belligerent and refused to walk to the patrol car.

Officer Burge was transported to the hospital. He testified that his trigger finger had been lacerated and that it took four weeks to heal. The treating physician described the wound to Burge’s left index finger as “significant” and capable of causing permanent disfigurement and protracted loss or impairment.

Juarez testified that he was with his cousin and another man on June 10th. He was the lookout while his cousin and the other man burglarized unlocked vehicles. His cousin told him that someone was peeking around the corner and looking at them, so they took off running. Juarez testified that someone yelled “Stop,” not “Stop, police”; therefore, he did not know that he was being pursued by the police. He said that someone jumped on him and slammed him to the ground while he was sitting and trying to catch his breath. He told the person to get off of him. When he heard the radio, he realized that a police officer was on top of him. His mouth was in the dirt, and the officer was pushing his head in the dirt. He was inhaling dirt and felt like he was suffocating. He got the officer’s finger in his mouth somehow and bit down to get the officer off of him. “I got his finger in my mouth somehow, and I just bit down to get him off of me, because I felt like I was going to die.... ” When the officer got up, Juarez got up with him and saw two other officers coming around the corner. He put his hands behind his back and lay down. The officers then began to hit him. On direct-examination, Juarez testified that he did not intend to bite Officer Burge and that he was just concerned for his life. On cross-examination, Juarez testified that he did not intentionally, knowingly, or recklessly bite Officer Burge’s finger. He claimed that he did it by accident; he bit down and let it go.

Juarez was charged with aggravated assault on a peace officer with a deadly weapon. Juarez pled not guilty and requested a jury trial. At the guilt-phase charge conference, Juarez requested an instruction on the necessity defense, claiming that he had raised the issue. The trial judge denied the request because, among other things, Juarez denied the culpable mental state when he denied biting Officer Burge intentionally, knowingly, or recklessly. The jury later found Juarez guilty and sentenced him to fifty years’ confinement and assessed a $5,000 fine.

Court of Appeals

Juarez appealed the trial judge’s refusal to instruct the jury on necessity. The State argued that Juarez was not entitled to the instruction because he refused to admit to all of the elements of the offense, in particular, the culpable mental state, which is a prerequisite for a necessity instruction. The Tyler Court of Appeals disagreed and held that a defendant need admit only the prohibited act, not the applicable mental state accompanying the prohibited conduct. The court determined that Juarez’s testimony admitting to the act (i.e., the biting), even if by accident, was sufficient to entitle him to a necessity instruction. The court then held that the error was harmful. As a result, it reversed the trial court’s judgment and remanded the case for a new trial.

State’s Petition for Discretionary Review

We granted the State’s petition for discretionary review to determine whether a defendant is required to admit to all of the elements of a charged offense, including the applicable culpable mental state, to be entitled to a necessity defense instruction.

The State contends that caselaw establishes that a defendant is required to admit to all elements of an offense before offering a defense like necessity. Because Juarez denied biting Officer Burge intentionally, knowingly, or recklessly, the State contends that his testimony negated only the mens rea element of the offense.

Analysis

This case involves the long-standing legal doctrine of confession and avoidance. We have defined the doctrine’s requirements in two distinct ways. First, we have said that a defendant must admit to all elements of a charged offense before the defendant will be entitled to a defensive instruction. Alternatively, we have said that a defensive instruction is required when “the defendant’s defensive evidence essentially admits to every element of the offense, including the culpable mental state....” Over the years, we have applied the doctrine in cases where the defendant asserted necessity, self-defense, or the Good Samaritan defense. But we have observed that the doctrine does not apply when the defensive issue, by its terms, negates the culpable mental state. The affirmative defense of mistake of fact is one example.

The confession and avoidance doctrine originated in English common law during the Fourteenth Century in relation to civil-case pleading requirements. A justification, used to challenge a plaintiffs specific allegation, was asserted in a special traverse in the form of a plea of confession and avoidance. One scholar has explained the common law civil pleading process as follows:

Under common law pleading requirements, the parties pleaded against each other until they joined issue on a question of law or fact. Each time one party pleaded, the other had an opportunity to demur, to deny the truth of his opponent’s allegations, or to introduce new matter and thus to confess and avoid the claim. In the earliest days of common law, unlike our modern era, denial and confession and avoidance were strict alternatives. The common law’s nurtu-rance of special pleas made contingent claims common. Parties could, and frequently did, confess and avoid the pleas of their opponents.

Today, the doctrine still exists in our state civil-law jurisprudence.

The doctrine of confession and avoidance appears to have been formally introduced into our criminal-law jurisprudence in 1952, in Kimbro v. State. In that case, we rejected the appellant’s claim that drinking a half pint of whiskey after he was arrested constituted an affirmative defense to driving while intoxicated. We explained that the defendant’s claim constituted a denial of the charge, and citing a New York civil case, we said: “an affirmative defense was defined, in part, as meaning a new matter, assuming the complaint to be true, which constitutes a defense to it.”

In general, our application of the confession and avoidance doctrine over the past sixty years has been somewhat inconsistent. In numerous cases, we have held that a defendant who denied one element of a charged offense was not entitled to a defensive issue instruction. In those cases, we noted that the defendants mounted a defensive theory based on trial strategy designed to negate only a specific element of the charged offense. For instance, in Royal v. State, we held that the appellant’s testimony that he did not intend to kill the victim did not constitute an affirmative defense. We stated that the appellant’s testimony amounted to a denial of the State’s allegation that he intended to kill the victim. We have reached similar decisions in cases where the defendant denied both the actus rea and the mens rea elements of an offense. But in a handful of cases we have ignored the confession and avoidance doctrine altogether. In Martinez v. State, for instance, we held that the appellant was entitled to an instruction on self-defense even though he claimed that he did not intend to kill the victim.

After examining the history of the confession and avoidance doctrine, we will now consider its current application to the necessity defense. The defense of necessity is defined in Penal Code Section 9.22 and states:

Conduct is justified if:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

Conduct, in turn, is defined in Penal Code Section 1.07(10) as “an act or omission and its accompanying mental state.”

A survey of our caselaw since the enactment of the Penal Code in 1974 establishes that we have interpreted the necessity defense, as defined in Section 9.22, to embrace the confession and avoidance doctrine. And although our application of the doctrine has been inconsistent at times, we have applied in it in all of our decisions involving the necessity defense. The Legislature has amended the statute since its enactment in 1973, but it has never overruled our determination about the application of the confession and avoidance doctrine. In the absence of any contrary legislative command, we will presume that the Legislature has approved our determination that Section 9.22 embraces the confession and avoidance doctrine. As a result, we hold that the court of appeals was incorrect when it concluded that Juarez’s admission to the act was enough to satisfy the confession and avoidance doctrine. As our decisions make clear, the doctrine requires an admission to the conduct, which includes both the act or omission and the requisite mental state.

In holding that the confession and avoidance doctrine applies to the necessity defense, we would be remiss if we failed to acknowledge that the doctrine conflicts with Section 2.03(c)’s general rule governing when a defensive instruction is required. Section 2.03(c) states; “The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.” The defendant bears the burden of showing that each element of the defense has been satisfied. In Shaw, we interpreted Section 2.03(c) to incorporate a second longstanding common law defensive issue doctrine — that a trial judge must, upon a de-fendant’s proper request, instruct the jury on every defensive issue raised by the evidence without regard to its source or strength. Under this doctrine, it is of no consequence “whether such evidence or testimony was produced by the prosecution or the accused, or whether such defensive evidence or testimony might be strong, weak, unimpeached, or contradicted.”

The confession and avoidance doctrine’s requirement that a defendant admit to the conduct conflicts with Section 2.03(c)’s general rule that a defense is supported by the evidence if there is evidence from any source on each element of the defense. However, this conflict does not disturb our determination that Section 9.22 embraces the confession and avoidance doctrine. When interpreting statutes that are in pari materia and construed together, both are given effect with the special governing over the general in the event of a conflict. In this instance, Section 9.22’s admission requirement governs the specific defensive issue of necessity and therefore trumps Section 2.03(c)’s general rule.

Turning to case before us, we conclude that Juarez was entitled to a necessity instruction under the facts here. This case is distinguishable from our previous decisions holding that a defendant’s denial of an element of the prohibited conduct constitutes a challenge to the elements of the charged offense (or conduct) and therefore does not require a necessity defense instruction. Though Juarez denied biting Officer Burge intentionally, knowingly, or recklessly he had also admitted that he bit Officer Burge to get Officer Burge off of him because Officer Burge was causing him to suffocate. Juarez’s mental state — that the biting was done either intentionally, knowingly, or recklessly — could have reasonably been inferred from his testimony about the circumstances surrounding his conduct. Thus, the confession and avoidance doctrine was satisfied because Juarez had admitted to both the act and the requisite mental state. The trial judge was therefore required to instruct the jury on the necessity defense. It was then within the jury’s province as the factfinder to determine whether Juarez’s conduct was excused under the necessity defense.

Next, as discussed above, we have rendered two different interpretations of the confession and avoidance doctrine’s requirements. Historically in necessity defense cases, we have said that a defendant must admit to the conduct. We made this assertion in cases in which the defendant testified and explicitly denied the conduct, either by denying the act or the culpable mental state or both. But in our most recent discussion of the doctrine in Shaw v. State, we expanded the admission requirement and said that a defendant’s defensive evidence must admit to the conduct. Whether the confession and avoidance doctrine requires the former or the latter is not necessary to our resolution of this case because Juarez testified and a factfinder could reasonably infer from his testimony that he bit Officer Burge intentionally, knowingly or recklessly. We will leave it for a future necessity defense case to decide whether the confession and avoidance doctrine requires a defendant’s own admission.

On a final note, it is necessary to explain how our recent decision in Gilbert v. State does not render the issue in this case moot. In Gilbert, we said that the necessity defense “turns on a personal choice made by the actor” and that it does not apply when an individual’s decision to act is coerced by another. Here, Officer Burge did nothing to coerce Juarez. Officer Burge tried to prevent Juarez’s escape and attempted to control him so that he could lawfully arrest him. Thus, even if Juarez had admitted to the conduct, Gilbert does not bar the application of the necessity defense under the facts of this case.

Conclusion

The doctrine of confession and avoidance applies to the Penal Code’s necessity defense. As a result, a defendant cannot flatly deny the charged conduct — the act or omission and the applicable culpable mental state. Because it can reasonably be inferred from Juarez’s testimony that he intentionally, knowingly, or recklessly bit Officer Burge, the trial judge erred in refusing Juarez’s request for a necessity instruction. We affirm the court of appeals’s judgment because it found that the trial judge’s error was harmful and we did not grant review to evaluate its harm analysis. We remand this case to the trial court.

HOLCOMB, J., filed a concurring opinion in which KELLER, P.J., PRICE and JOHNSON, JJ., joined.

HOLCOMB, J.,

filed a concurring opinion, in which KELLER, P.J., and PRICE and JOHNSON, JJ., joined.

I join the Court’s opinion but write separately in order to explain in more detail why Juarez’s testimony raised the necessity defense.

At the guilt stage of his trial, Juarez took the stand in his defense and testified in relevant part as follows:

DEFENSE COUNSEL: And after you got between the apartment complex building [sic], what happened next?
JUAREZ: I ducked down beside a bush in the darkness so that — because I thought maybe I wouldn’t be seen. And I was sitting there trying to get my breath back, because I had ran out of breath about that time from running from the person, whoever it was.
And I was sitting there, and my cousin had already went the other way. At that time, I didn’t know where any of them were at. I was sitting there trying to gain my breath back, and then a guy comes around the corner, flashes the light on me.
I jump, I get up, I stand up to run, and I kind of stumbled when I take off again, because I was out of breath. And then somebody jumped on my back, and they put their arms around me like this (demonstrating) and slammed me — well, they started trying to slam me to the ground, and then finally they did slam me to the ground.
And when I got slammed to the ground, I was just — I couldn’t breathe, because I was out of breath. And I was telling him to get off of me. And then I heard a radio, and I was trying to tell him to get off of me because I couldn’t breathe. I felt like I was going to suffocate. I was in fear of my life.
After that, I figured out it was an officer on top of me, and he was on top of me with his knee of whatever in my back, and my mouth was facing towards the dirt. And he was telling me to stop resisting, and then his hand was above my head around in this area (indicating), and he was pushing on my head and my mouth.
I was breathing in dirt, so I felt like I couldn’t breathe. And from that point on, I was starting to feel real lightheaded and dizzy, like I was just going to suffocate or pass out or something.
And somehow the officer or the guy— well, I found out he was an officer after I heard the radio, and he told me — after he got on top of me, his hand — his finger got in front of my face from pushing on my face around my check (sic).
I got his finger in my mouth somehow, and I just bit down. to get him off of m.e, because 1 felt like I was going to die if he didn’t get off of my body the way I was laying down on my chest.
DEFENSE COUNSEL: Okay. Now, what happened next in terms of your situation with this police officer?
JUAREZ: When I bit him, he got up, and I let go of his finger. And I stood up, and at that time, two other officers came around the corner. And I looked to my right and I seen them, and when I seen them, I knew I was in trouble, so I didn’t try anything else.
* * ⅜
DEFENSE COUNSEL: Now, when you went out there that night, did you intend to bite the police officer?
JUAREZ: No, I didn’t. I was just fearing of my life, so I — I was ivorried about my life, as well as I know who the officer was, so — I mean, no, I didn’t intend to do it, no, ma’am.
* * *
THE STATE: You couldn’t breathe because of the situation that you put yourself into, right? Right?
JUAREZ: Yeah, I put myself in that situation, but I didn’t mean — I didn’t mean to bite him.
THE STATE: You accidentally bit another human’s finger?
JUAREZ: That’s not what I’m saying.
THE STATE: Okay. And you’re asking for mercy [from the jury] because you know you did it?
JUAREZ: I couldn’t breathe. I was in fear for my life as much as he was in fear for his.
* * *
THE STATE: Not only are you saying — just so I’m clear, not only are you saying that you had to do what you did, but you didn’t even act intentionally, knowingly, or recklessly when you bit the finger of Officer Burge, right?
JUAREZ: Would you ask the question again, please?
THE STATE: When you bit Officer Burge’s finger, you did that intentionally. You did — you completed what you set out to do. You would agree with me, wouldn’t you?
JUAREZ: I didn’t set out to bite his finger.
* ⅜ *
DEFENSE COUNSEL: Mr. Juarez, in terms of the biting of the police officer’s finger, is it your position that you bit his finger because you couldn’t breathe?
JUAREZ: Yes, it is.
DEFENSE COUNSEL: Now, in terms of intending to bite his finger, did you that day set out to bite his finger?
JUAREZ: No, I didn’t.
⅜ * *
DEFENSE COUNSEL: So it’s not that you’re saying that you didn’t bite his finger; you just didn’t intentionally bite his finger; is that correct?
JUAREZ: Correct.
DEFENSE COUNSEL: Counsel: Pass the witness.
THE STATE: How else do you bite somebody’s finger?
JUAREZ: I don’t know.
THE STATE: Accidentally?
JUAREZ: I don’t know.
THE STATE: I mean, was it your desire to bite his finger?
JUAREZ: Nope.
THE STATE: Did you act — Ms. Johnston [defense counsel] asked you this: Did you act intentionally?
JUAREZ: No.
THE STATE: Did you act knowingly?
JUAREZ: No.
THE STATE: Did you act recklessly?
* * ⅜
JUAREZ: No.
* * *
THE STATE: [It’s your contention] that this was an accident, right?
JUAREZ: Yes, it was.
THE STATE: And how long was the finger in your mouth?
* * *
JUAREZ: I just bit down, and then I let go.
THE STATE: Immediately?
JUAREZ: Yeah. I bit down hard, and then I let go.

Texas Penal Code § 9.02 provides that “[i]t is a defense to prosecution that the conduct in question is justified under this chapter.” Texas Penal Code § 9.22, in turn, provides in relevant part that “[conduct [that is otherwise criminal] is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm [and] (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct.”

We have held that, in general, a defendant is entitled to an instruction on a defense if that defense is raised by the evidence. Shaw v. State, 243 S.W.3d 647, 658 (Tex.Crim.App.2007). A defense is “raised by the evidence” if there is some evidence, from any source, on each element of the defense that would support a rational inference that that element is true. Id. at 657-58. We have also held that in the particular case of the necessity defense, which is a confession-and-avoidance type of defense, “a defensive instruction is only appropriate when the defendant’s defensive evidence essentially admits to every element of the offense including the culpable mental state, but interposes the [necessity defense] to excuse the otherwise criminal conduct.” Id. at 659.

Applying these legal principles to the instant case, it is clear that the court of appeals was correct in concluding that the trial court erred in denying Juarez’s requested jury instruction on the necessity defense. In Juarez’s testimony, recounted above, he essentially admitted to every element of the offense charged, including the culpable mental state. From that testimony, a jury could reasonably infer that Juarez intentionally bit Burge’s finger because he reasonably believed that doing so was immediately necessary to avoid imminent suffocation. Juarez testified that he “bit down [on Burge’s finger] to get him off of me, because I felt like I was going to die if he didn’t get off of my body,” that he was in fear for his life, that it was his “position” that he bit Burge’s finger because he could not breathe, and that he was not saying that his biting of Burge’s finger was an accident. Although it is true that Juarez also testified that his biting of Burge’s finger was an accident and that it was not done intentionally, knowingly, or recklessly, a jury could reasonably discount that part of Juarez’s testimony as simply being his lay attempt to explain that he had not desired to bite Burge and had not intended to harm him.

      . See Tex. Penal Code Ann § 9.22 (Vernon 2003).

      . See Tex. Penal Code Ann. § 1.07(10) (Vernon 2003).

      . Juarez v. State, No. 12-08-00009-CR, 2009 WL 768595, at *4-5, 2009 Tex.App. LEXIS 3762, at *11-14 (Tex.App.-Tyler Mar. 25, 2009) (not designated for publication).

      . See Tex. Penal Code Ann. §§ 2.03, 9.02, 9.22 (Vernon 2003).

      . 2009 WL 768595, at *1, 2009 Tex.App. LEXIS 3762, at *1.

      . Id. at *2-3, 2009 Tex.App. LEXIS 3762, at *7.

      . Id. at *4, 2009 Tex.App. LEXIS 3762, at *10.

      . Id. at *4, 2009 Tex.App. LEXIS 3762, at *11.

      . Id. at *6, 2009 Tex.App. LEXIS 3762, at *17-18.

      . Id. at *6, 2009 Tex.App. LEXIS 3762, at *18.

      . Shaw v. State, 243 S.W.3d 647, 659 (Tex.Crim.App.2007); Kimbro v. State, 157 Tex.Crim. 438, 440, 249 S.W.2d 919 (Tex.Crim.App.1952); see e.g., Canon v. State, 59 Tex.Crim. 398, 128 S.W. 141, 143 (Tex.Crim.App.1910) (noting that the defendant’s confession to police was in the nature of a plea of confession and avoidance because the defendant asserted self-defense).

      . Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App.1999).

        .Shaw, 243 S.W.3d at 659.

      . Young, 991 S.W.2d at 838.

      . Ex parte Nailor, 149 S.W.3d 125, 132-34 (Tex.Crim.App.2004).

      . Shaw, 243 S.W.3d at 659.

      . Granger v. State, 3 S.W.3d 36, 41 (Tex.Crim.App.1999) (the mistake of fact, by its terms, negates the culpable mental state); Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App.1990) (the good faith purchase defense may, by its terms, negate the culpable mental state); Jackson v. State, 646 S.W.2d 225, 227 (Tex.Crim.App.1983) (the mistake of fact defense, by its terms, negates the culpable mental state).

      . Granger, 3 S.W.3d at 41; Jackson, 646 S.W.2d at 227.

      . Stephen G. Gilíes, Inevitable Accident in Classical English Tort Law, 43 Emory L.J. 575, 617-18 (1994).

      . Id.

      . Yuval Sinai, The Doctrine of Affirmative Defenses in Civil Cases — Between Common Law and Jewish Law, 34 N.C.J. Int’l L. & Comm. Reg. Ill, 117-18 (2008).

      . Tex.R. Civ. P. 94 ("In pleading to a preceding pleading, a party shall set forth affirmatively ... any other matter constituting an avoidance or affirmative defense”); see e.g., Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 798 (Tex.2008); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517-18 (Tex.1988).

      . 157 Tex.Crim. at 440, 249 S.W.2d 919; see also Fitzgerald v. State, 782 S.W.2d 876, 884 (Tex.Crim.App.1990) ("Necessity is a traditional defense at common law, and is now included in most revised penal codes.”).

      . Kimbro, 157 Tex.Crim. at 440, 249 S.W.2d 919.

      . Id. (citing Carter v. The Eighth Ward Bank, 33 Misc. 128, 67 N.Y.S. 300 (N.Y.S.Ct.1900)) (emphasis in original).

      . Shaw, 243 S.W.3d at 659; Ex parte Nailor, 149 S.W.3d at 132-33; Giesberg v. State, 984 S.W.2d 245, 249-50 (Tex.Crim.App.1998); Sanders v. State, 707 S.W.2d 78, 81 (Tex.Crim.App.1986); Hall v. State, 402 S.W.2d 752, 754-55 (Tex.Crim.App.1966); DeHam v. State, 389 S.W.2d 955, 956 (Tex.Crim.App.1965); Tapley v. State, 158 Tex.Crim. 495, 256 S.W.2d 583, 586 (Tex.Crim.App.1953); Kimbro, 157 Tex.Crim. at 440, 249 S.W.2d 919; Royal v. State, 154 Tex.Crim. 567, 228 S.W.2d 162, 163 (Tex.Crim.App.1950); Sharp v. State, 150 Tex.Crim. 169, 199 S.W.2d 159, 160 (Tex.Crim.App.1947) (on reh’g).

      . Shaw, 243 S.W.3d at 659; Ex parte Nailor, 149 S.W.3d at 132-33; Giesberg, 984 S.W.2d at 249-50; Sanders, 707 S.W.2d at 81; Hall, 402 S.W.2d at 754-55; DeHam, 389 S.W.2d at 956; Tapley, 256 S.W.2d at 586; Kimbro, 157 Tex.Crim. at 440, 249 S.W.2d 919; Royal, 228 S.W.2d at 163; Sharp, 199 S.W.2d at 160.

      . 228 S.W.2d at 163.

      . Id.

      . See e.g., Ex parte Nailor, 149 S.W.3d at 133; Young, 991 S.W.2d at 838; Sanders, 707 S.W.2d at 81; DeHam, 389 S.W.2d at 956.

      . Woodfox v. State, 742 S.W.2d 408, 410 (Tex.Crim.App.1987); Smith v. State, 676 S.W.2d 584, 585-87 (Tex.Crim.App.1984); Torres v. State, 585 S.W.2d 746, 748-50 (Tex.Crim.App.1979).

      . 775 S.W.2d 645, 647 (Tex.Crim.App.1989).

      . Tex. Penal Code Ann. § 9.02 (Vernon 2003) ("It is a defense to prosecution that the conduct in question is justified under" Chapter 9 of the Texas Penal Code.).

      . Tex. Penal Code Ann. § 9.22.

      . Tex. Penal Code Ann. § 1.07(10).

      . Added by Acts 1973, 63rd Leg., ch. 399, § 1, effective Jan. 1, 1974.

      . Ex parte Nailor, 149 S.W.3d at 133; Bowen v. State, 162 S.W.3d 226, 230 (Tex.Crim.App.2005) (observing that the defendant's admission to the conduct “satisfied the judicially imposed prerequisite to request a necessity instruction”); Young, 991 S.W.2d at 839; Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex.Crim.App.1992) (observing that the defendant admitted to the conduct and that his testimony raised the necessity defense); Thomas v. State, 678 S.W.2d 82, 85 (Tex.Crim.App.1984) (recognizing that the confession and avoidance doctrine applied to one of the State’s theories of guilt because of the defendant’s denial of the proscribed mental state); see also Gilbert v. State, No. PD-1645-08, 2010 WL 454966, at *5, 2010 Tex.Crim.App. Unpub. LEXIS 99, at *14 (Tex.Crim.App. Feb. 10, 2010) (not designated for publication) (observing that the defendant’s testimony sufficiently admitted to the conduct).

      . Ex parte Nailor, 149 S.W.3d at 133; Bowen, 162 S.W.3d at 230; Young, 991 S.W.2d at 839; Vasquez, 830 S.W.2d at 950-51; Thomas, 678 S.W.2d at 85; Gilbert, No. PD-1645-08, 2010 WL 454966 at *3-4, 2010 Tex.Crim.App. Unpub. LEXIS 99 at *9.

      . Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, effective Sept. 1, 1994.

      . See State v. Colyandro, 233 S.W.3d 870, 878 (Tex.Crim.App.2007).

      . See id. (“ ‘Certainly when a legislature reenacts a law using the same terms that have been judicially construed in a particular manner, one may reasonably infer that the legislature approved of the judicial interpretation. There is considerably less force (though still some) to the argument that if a legislature does not agree with the judicial interpretation of the words or meaning of a statute, the legislature would surely have immediately changed the statute.’ ") (emphasis in original) (citing State v. Medrano, 67 S.W.3d 892, 902 (Tex.Crim.App.2002)).

      . Tex. Penal Code Ann. § 2.03(c) (Vernon 2003); see also Tex. Penal Code Ann. § 2.04(c) (Vernon 2003).

      . Shaw, 243 S.W.3d at 657-58.

      . Id.; Booth v. State, 679 S.W.2d 498, 500 (Tex.Crim.App.1984).

      . Booth, 679 S.W.2d at 500.

      . Alejos v. State, 555 S.W.2d 444, 449-50 (Tex.Crim.App.1977) (on reh'g).

      . See e.g., Shaw, 243 S.W.3d at 659; Ex parte Nailor, 149 S.W.3d at 132-33.

      . Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App.1998) ("Mental states are almost always inferred from acts and words.”); see e.g., Hardesty v. State, 656 S.W.2d 73, 78 (Tex.Crim.App.1983) (a factfinder may draw an inference of guilt from the circumstance of flight); Jones v. State, 481 S.W.2d 900, 902 (Tex.Crim.App.1972) (same).

      . See Granger, 3 S.W.3d at 39 (whether a defendant’s mistaken belief was reasonable for the mistake of fact defense is a question for the jury, not the trial judge); Hayes v. State, 728 S.W.2d 804, 808 (Tex.Crim.App.1987) (opinion on reh’g) (whether a defendant’s belief was reasonable for a deadly force instruction is a fact-issue for the jury, not the trial judge).

      . Ex parte Nailor, 149 S.W.3d at 133; Bowen, 162 S.W.3d at 230; Young, 991 S.W.2d at 839; Vasquez, 830 S.W.2d at 950-51; Thomas, 678 S.W.2d at 85.

      . Ex parte Nailor, 149 S.W.3d at 133; Bowen, 162 S.W.3d at 230; Young, 991 S.W.2d at 839; Vasquez, 830 S.W.2d at 950-51; Thomas, 678 S.W.2d at 85.

      . Shaw, 243 S.W.3d at 659.

      . Gilbert, 2010 WL 454966, at *5, 2010 Tex.Crim.App. Unpub. LEXIS 99, at *13-14.

      . Juarez, 2009 WL 768595, at *5-6, 2009 Tex.App. LEXIS 3762, at *16-18.


source: Caselaw Access Project

author: Opinion By Justice LANG-MIERS.

license: Public Domain

text:
    Ronnie McCORD, Appellant, v. Wallace GOODE, Appellee.
    No. 05-08-00939-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 26, 2010.
    Rehearing Overruled April 30, 2010.

      Mark J. Carroll, Cedar Hill, TX, for Appellant.
    Wallace Goode, Dallas, TX, pro se.
    Bill Glaspy, Mesquite, TX, for Appellee.

      Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion By Justice LANG-MIERS.

Ronnie McCord sued Wallace Goode to set aside the transfer of a registered paint horse that McCord claimed he transferred to Goode under duress. The trial court rendered a take-nothing judgment following a bench trial, from which McCord appeals. We affirm the trial court’s judgment.

The Trial

The evidence showed that in approximately 2004 Goode allowed McCord to move a house trailer onto Goode’s property and live there rent-free. In exchange, McCord agreed to help with upkeep of the property and train Goode’s horses. This arrangement continued for about three years, until July 2007. During those three years, McCord, Goode, and another friend, Bob Menton, went into business together buying and selling horses. The parties referred to their relationship as a partnership, although they never formalized it in writing. In April 2004, McCord purchased two horses, one of which was a registered paint horse named Colonel Jet Leo. McCord testified that he purchased those horses for his personal use and not for the partnership. Menton agreed that he was not a partner with McCord on those horses. He also testified that the partnership was determined on a “one-on-one horse” (horse-by-horse) basis and that, to his knowledge, Goode was not a partner with McCord in the paint horse. In September 2007, McCord purchased two mares. It is undisputed that the mares were purchased as part of the partnership.

The evidence also showed that McCord needed transportation but was unable to get credit. Goode decided to help McCord and purchased a pick-up truck in his own name and let McCord make the payments. Goode planned to transfer title to the truck to McCord whenever McCord made the final payment. The record does not indicate whether the parties had a writing evidencing this agreement.

Goode also purchased a horse trailer that he said was his contribution to the partnership. McCord testified that the horse trailer was not part of the partnership and that Goode purchased it for McCord just like he did the truck. Regardless, the trial testimony was undisputed that Goode allowed McCord to purchase the trailer from him by making payments under arrangements similar to the purchase of the truck.

The dispute that is the subject of this lawsuit arose in the summer of 2007. The record indicates that McCord had told “everyone” that they were not to do anything with Colonel Jet Leo unless he was there. In July 2007, McCord learned that Goode’s son, Justin, and a fellow rancher had taken Colonel Jet Leo to a veterinarian without McCord’s permission. When McCord confronted them about it, Justin said he was just doing what his dad had told him to do and that the horse was half his dad’s. McCord replied, “It may be, but nobody does anything with this horse but me.”

When Goode talked to McCord about his confrontation with Justin, Goode told McCord that he wanted to send Colonel Jet Leo to Oklahoma for training. McCord said he would file theft charges against anyone who took Colonel Jet Leo off the property. Goode testified that it was at this point he knew the partnership was not going to work, so he asked McCord to leave. McCord agreed. They divided the mares and their two colts, but could not agree on the disposition of Colonel Jet Leo. McCord insisted that Colonel Jet Leo was his personal horse and was never part of the partnership. But he testified that Goode threatened to keep the truck and horse trailer if McCord did not transfer the registration papers for Colonel Jet Leo over to him:

And so we got out there, and he said he wanted to dissolve our partnership. I said, well, all right. And he said, on the mares, which one would you want? And I told him, I said, well, /all can have all of them, the colts and stuff. He said, no, pick out the one you want. So I did. And he said, well, what are we going to do about the stallion? And I said, why? I said, they are legally mine. He said, well, how are you going to leave out of here? Because I still owed on the horse trailer and the pickup. So I thought about it and reasoned real quick. So I told him, I said, well, I guess you just want me to give you the Colonel.... So, I — in order to buy time, I signed over the papers to Colonel Jet Leo. And I went to trying to figure out where I was going to move, how I was going to pay the horse trailer off and pay off the pickup to where I could come to court and get my horse back.

Goode admitted that he threatened to keep the truck, but said he did so because McCord threatened to have him arrested for horse stealing: “I told him if he called the law on me for taking that horse off the place, that I would see that he walked— left out of there walking.” At the time, McCord still owed money to Goode for the truck and the trailer. McCord testified that he felt he had no choice but to give Colonel Jet Leo to Goode. He signed the registration papers and gave them to Goode, but he contends that he did so under duress.

The Trial Court’s Ruling

After hearing the evidence, the trial court orally pronounced its findings. The court found that McCord and Goode had an informal partnership, they jointly owned Colonel Jet Leo, McCord signed and delivered the paperwork necessary to transfer ownership of Colonel Jet Leo to Goode, and the circumstances surrounding that transfer did not rise to the level of duress. The court rendered a take-nothing judgment against McCord.

Discussion

In two issues, McCord challenges the legal and factual sufficiency of the evidence to support the court’s implied findings that (1) he and Goode jointly owned Colonel Jet Leo, and (2) the circumstances surrounding the transfer of the registration papers for Colonel Jet Leo to Goode did not rise to the level of duress. We address the second issue first.

Standard of Review

Neither party requested nor did the trial court make written findings of fact and conclusions of law. When the trial court does not make written findings of fact, we imply all fact findings that are supported by the evidence in favor of the court’s ruling. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.2009); Johnson v. Kindred, 285 S.W.3d 895, 898 (Tex.App.-Dallas 2009, no pet.). However, when a complete reporter’s record is brought forward on appeal, as here, the trial court’s implied findings may be challenged for legal and factual sufficiency the same as jury findings. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002).

When a party challenges the legal sufficiency of an adverse finding on which he had the burden of proof, he must demonstrate on appeal that the evidence conclusively established the facts in his favor as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per curiam); Johnson, 285 S.W.3d at 898. We first examine the record for evidence to support the finding. Dow Chem., 46 S.W.3d at 241. If there is no evidence to support the finding, we then examine the entire record to determine if the contrary position is established as a matter of law. Id. We indulge every reasonable inference to support the judgment, crediting favorable evidence if a reasonable fact-finder could and disregarding contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex.2005).

When a party challenges the factual sufficiency of an adverse finding on which he had the burden of proof, he must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242. We reverse only if, in light of the entire record, the evidence supporting the finding is so weak or the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id.

In conducting our review, we are mindful that the fact-finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003).

Applicable Law

Duress requires unlawful conduct or a threat of unlawful conduct of such a character as to destroy the other party’s exercise of free will and judgment. See Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 878-79 (Tex.2005); Cooper v. Cochran, 288 S.W.3d 522, 533 (Tex.App.-Dallas 2009, r. 53.7(f) motion granted) (op. on reh’g); Deer Creek Ltd. v. N. Am. Mortgage Co., 792 S.W.2d 198, 200 (Tex.App.-Dallas 1990, no writ). The threat must be imminent and the party must have no present means of protection. See Bolton, 185 S.W.3d at 879; Cooper, 288 S.W.3d at 533; Deer Creek, 792 S.W.2d at 200. Duress must be shown from the acts or conduct of the party accused of duress, not the emotions of the purported victim. See Brown v. Cain Chem., Inc., 837 S.W.2d 239, 244 (Tex.App.-Houston [1st Dist.] 1992, writ denied). The burden to prove duress is on the party claiming it. Tex.R. Civ. P. 94; Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 650 (Tex.1988). Generally, what constitutes duress is a question of law, but whether duress exists under a particular set of circumstances is a fact question. See Wright v. Sydow, 173 S.W.3d 534, 544 (Tex.App.-Houston [14th Dist.] 2004, pet. denied).

Analysis

To prevail on his legal sufficiency challenge, McCord must first show that there is no evidence to support the trial judge’s failure to find that he acted under duress. See Dow Chem., 46 S.W.3d at 241-42. If there is no evidence to support the adverse finding, then McCord must show that the evidence conclusively established each of the elements of duress as a matter of law. See id. To prevail on his factual sufficiency challenge, McCord must show that the failure to find duress is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See id.

McCord argues that it is undisputed that he owned the truck and horse trailer. He contends that Goode admitted that the truck and horse trailer belonged to McCord at the time Goode threatened to keep the truck and, presumably, the horse trailer. However, McCord does not cite the record where this admission can be found. Instead, the record shows that the truck and trailer were in Goode’s name. And McCord admitted he still owed money to Goode for both the truck and the trailer when this dispute over Colonel Jet Leo arose in July 2007.

Because the evidence showed that Goode still owned the truck when he made the threat to keep the truck, McCord has not shown that Goode’s threat was unlawful. See Tex. Transp. Code Ann. §§ 501.001-.179 (Vernon 2007 & Supp. 2009) (governing transfers of motor vehicles); Matthews v. Matthews, 725 S.W.2d 275, 279 (Tex.App.-Houston [1st Dist.] 1986, no writ) (op. on reh’g). There can be no duress when the conduct threatened is not unlawful. See Matthews, 725 S.W.2d at 279. In addition, McCord stated that when Goode threatened to make him leave “out of there walking,” he “thought about it and reasoned real quick.” He said he decided to transfer the registration papers to Goode “to buy time” to find a place to live and pay off the truck and trailer before trying to get the horse back. The evidence indicates that McCord thoughtfully considered his options and decided it was best to transfer the registration papers. Consequently, we conclude that the evidence is legally and factually sufficient to support the trial court’s implied finding that McCord did not act under duress when he transferred the registration papers for Colonel Jet Leo to Goode.

We resolve appellant’s second issue against him. Because of our disposition of this issue, we do not need to decide McCord’s first issue, which challenges the sufficiency of the evidence of the trial court’s implied finding that Goode and McCord jointly owned Colonel Jet Leo.

We affirm the trial court’s judgment.

      . McCord alleged other grounds for relief that are not involved in this appeal.

      . By this time, Menton was no longer involved in the partnership.

      . In fact, the record shows that as late as November 2007, Goode had not transferred the certificate of title to the truck to McCord because the final payment on the truck had bounced. See Dean v. Lowery, 952 S.W.2d 637, 639 (Tex.App.-Beaumont 1997, pet. denied) (certificate of title creates rebuttable presumption that named owner is actual owner of vehicle).


author: BRIAN QUINN, Chief Justice.

text:
    George Anthony GALAN, Appellant, v. The STATE of Texas, Appellee.
    No. 07-09-0224-CR.
    Court of Appeals of Texas, Amarillo, Panel C.
    March 11, 2010.

      J. Lynda Smith, Attorney at Law, Amarillo, TX, for Appellant.
    John L. Owen, Assistant District Attorney, Amarillo, TX, for Appellee.
    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

George Anthony Galan pled guilty (without a recommendation of punishment) to two counts of sexually assaulting a child. After being convicted and sentenced to prison, he sought to withdraw his guilty pleas by filing a motion for new trial and a motion in arrest of judgment. These motions were founded upon the argument that his trial counsel rendered ineffective assistance. The trial court held an eviden-tiary hearing to assess the validity of his request for a new trial and ultimately denied the motion. Appellant now appeals from that decision. We affirm the judgments.

Authority

The pertinent standard of review is one of abused discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004) (involving a motion for new trial). It prohibits us from simply substituting our judgment for that of the trial court. Id. Instead, our task is to merely assess whether the decision was arbitrary or unreasonable. Id. We do this by considering the evidence in the light most favorable to the ruling and presuming that all reasonable inferences “that could have been made” against the losing party were so made. Id. This means that we must defer to the trial court’s resolution of historical fact, id. at 206, because it is free to believe all, some, or none of the evidence presented to it, irrespective of whether the evidence is contradicted. Id. at 212-13; accord, Ogbodiegwu v. State, No. 03-09-00443, 2010 WL 522648 at *4-5, 2010 Tex.App. Lexis 1020 at *11-13 (Tex.App.Austin February 12, 2010, no pet. h.) (not designated for publication) (applying the rule where the evidence was presented live, not through affidavits). Finally, a reviewing court is free to impute findings that support the trial judge’s ultimate ruling when such findings are both reasonable and supported by the record. Charles v. State, 146 S.W.3d at 213.

As for the law underlying claims of ineffective assistance, we note that the defendant has the burden of proof. Furthermore, that burden is a heavy one where, as here, he attacks the voluntariness of his plea after pleading guilty and attesting that he understood the nature of the plea and that it was voluntarily made. Arreola v. State, 207 S.W.3d 387, 391 (Tex.App.Houston [1st Dist.] 2006, no pet.). Indeed, those circumstances coupled with proof that the trial court provided the admonishments itemized in art. 26.13 of the Texas Code of Criminal Procedure create prima facie evidence that the plea was knowing and voluntary. Id.; accord Starz v. State, 309 S.W.3d 110, 117 (Tex.App.-Houston [1st Dist.] 2009, no pet.) (holding the same). So, in attempting to carry the aforementioned heavy burden, appellant must prove that 1) the advice he received fell outside the range of competence demanded of attorneys in criminal cases, and 2) there was a reasonable probability he would not have pled guilty but for that advice. Ex parte Reedy, 282 S.W.3d 492, 500 (Tex.Crim.App.2009).

Application of Authority

The record before us reveals that appellant was the only witness who testified at the hearing. Given this circumstance, the fact that the motion was denied, the rule obligating us to view the record in a light most favorable to the decision, the leeway permitting us to indulge in implicit findings supporting the decision, and the factfinder’s freedom to believe or disbelieve any or all testimony, the trial court could well have found appellant’s testimony unbelievable. See Labib v. State, 239 S.W.3d 322, 334 (Tex.App-Houston [1st Dist.] 2007, no pet.) (stating that by denying the motion for new trial, “the trial court implicitly found appellant’s claims in the affidavit not credible”). And, we cannot say that arriving at such a conclusion would be unreasonable since appellant was convicted and risks little in complaining about his attorney. So, too can the fact that he originally swore that his plea was voluntary only to recant after being sentenced to prison afford the trial court basis to question his credibility. The same can be said about his suggestion at the hearing that he did not sexually assault the child. He previously confessed that the allegations in the indictment were true. Such inconsistencies impact on one’s credibility. So, the reasonable possibility that the trial court could have found appellant’s testimony incredible alone prevents us from holding that the decision to reject the motion was an instance of abused discretion.

Second, and to the extent that appellant suggests his plea was involuntary because counsel uttered misrepresentations to him about the availability of deferred adjudication, the allegation was uncorroborated. This is problematic because the uncorroborated testimony of the appellant in such situations is not enough. Labib v. State, 239 S.W.3d at 335; accord Fimberg v. State, 922 S.W.2d 205, 208 (Tex.App.Houston [1st Dist.] 1996, pet. ref'd) (holding the same).

Because we cannot simply substitute our decision for that of the trial court and because the record can be read in a way to support the trial court’s decision, the trial court did not abuse its discretion in denying appellant a new trial. Thus, we affirm the judgments entered below.

      . That the trial court so admonished appellant at bar is illustrated by his signature on the "Written Plea Admonishments” appearing in the clerk’s record.


author: BOB McCOY, Justice. LEE ANN DAUPHINOT, Justice,

text:
    Bonnie Miller REED, Appellant, v. The STATE of Texas, State.
    No. 2-09-126-CR.
    Court of Appeals of Texas, Fort Worth.
    March 11, 2010.

      C. Mark Nelon, Atticus J. Gill, The Dun-ham Law Firm, P.C., Fort Worth, TX, for Appellant.
    Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallín, Asst. Criminal District Atty. and Chief of the Appellate Section, Andy Porter, Brooke Panuthos, and Jon O’Toole, Assistant Criminal District Attorneys, for Appellees.
    Panel: DAUPHINOT, GARDNER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

Appellant Bonnie Miller Reed challenges the trial court’s denial of her motion to suppress in a driving while intoxicated (DWI) case. In one issue, Reed argues that the trial court erred by finding reasonable suspicion existed for her detention on suspected DWI. We affirm.

II. Factual and Procedural Background

Bedford Police Officer Chris Miller was the only witness at Reed’s suppression hearing. In addition to testifying that he had been a police officer for three years and had attended specialized training for field sobriety tests, he also testified to the following.

While out on routine patrol around 12:45 a.m. on February 12, 2008, he had seen a vehicle driving eastbound on State Highway 183 veer onto the shoulder of the roadway. When asked to describe how far the vehicle had crossed over onto the shoulder, Officer Miller stated, “[I]f you divide the vehicle down the middle, I would say the right-hand, or the passenger compartment, was off of the roadway on the shoulder. The driver’s side, or the left side, was still in the roadway.” Officer Miller activated his in-car video camera at that time and proceeded to follow the vehicle. He observed the driver, later identified as Reed, turn on her right-hand turn signal when there were no exits or roads to turn onto and leave the signal on for approximately one-quarter to one-half mile before moving into the exit lane. Officer Miller again saw Reed’s vehicle veer onto the shoulder of the roadway before it exited. Officer Miller stated and the videotape confirmed that when Reed’s vehicle veered onto the shoulder the second time, “[t]he passenger tires [were] clearly over the line.”

Officer Miller testified that although he had not seen Reed entering or leaving a bar, she had been driving away from an area of Bedford that contained several bars and restaurants that served alcohol, and that he had previously pulled over other drivers for DWI in that same area. When asked about Reed’s driving and the surrounding conditions, Officer Miller stated that Reed’s movements had not been jerky or violent but had been more like a gradual drift, that the traffic on the roadway had been light, and that Reed had not posed an immediate danger to any other vehicles. Officer Miller also stated that, based on his experience and training, intoxicated drivers sometimes drift.

Finally, Officer Miller testified that in addition to the probable cause from the traffic violations — that is, failure to maintain a single lane and illegal use of a turn signal — he had stopped Reed because he suspected that she might be intoxicated based on her driving, the time of day, the area of the city that she had been coming from, and his experience with intoxicated drivers exhibiting similar driving characteristics.

After hearing all the evidence, the trial court denied Reed’s motion to suppress, and on March 18, 2009, it entered findings of fact and conclusions of law. The trial court’s findings were:

The [trial court] finds there was no traffic violation under Section 545.060(a) [of the] Transportation Code. There is no evidence that the Defendant’s failure to drive in a single lane was unsafe. The use of the turn signal was not done in an illegal manner. There was no probable cause for the stop. This leaves the question of whether there was reasonable suspicion to justify the stop.
The reasons against the unlawfulness of the detention in this case are:
1. No traffic violation.
2. Not weaving within the lane.
3. Nothing unsafe about weaving on to the shoulder.
4. Very light traffic.
5. No erratic speed changes.
6. Driving within the speed limit.
The reasons for the lawful detention in this case are:
1. Crossing on to the shoulder of the roadway by one-half width of the vehicle.
2. Crossing on to the shoulder a second time by a few inches.
3. Unusual use of turn signal. Turn[ed] on when not approaching an exit and kept on for an unusual length of time for approximately one-half mile.
4. Leaving the bar area of the city at approximately 12:45 a.m.
5. Based on the Officer’s training and experience, intoxicated drivers show these characteristics of driving.
6. Based on his training and experience, the officer suspected the driver might be intoxicated.

The trial court concluded that “the articulated facts justifying the stop were sufficient to overcome the articulated facts mitigating against the stop and were sufficient to give Officer Miller a reasonable suspicion to detain [Reed] for further investigation.” Thus, Reed’s “Fourth Amendment rights under the United States Constitution and under Article 1[,] Section 9 of the Texas Constitution were not violated.”

Reed subsequently pleaded guilty to the offense of DWI but preserved her right to appeal the denial of the motion to suppress. The trial court sentenced Reed to fifteen days’ confinement and assessed a $500 fine. This appeal followed.

III. Discussion

In her sole issue, Reed argues that the trial court erred by concluding that Officer Miller had reasonable suspicion, under both the United States and Texas constitutions, to stop her for suspected DWI.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We give almost total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002).

B. Applicable Law

The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const, amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007). To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672. A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Id. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 673; Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005).

A detention, as opposed to an arrest, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000). An officer conducts a lawful temporary detention when he or she has reasonable suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d at 492. Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Id. This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id.

C.Analysis

In her sole issue, Reed argues that neither the trial court’s findings nor Officer Miller’s testimony rises to the level of proof required for an investigative detention for DWI. Reed cites several cases in support of her argument. See Fowler v. State, 266 S.W.3d 498, 505 (Tex.App.-Fort Worth 2008, pet. ref'd); State v. Palmer, No. 02-03-00526-CR, 2005 WL 555281, at *1, 3 (Tex.App.-Fort Worth Mar. 10, 2005, pet. dism’d) (mem. op., not designated for publication); State v. Arriaga, 5 S.W.3d 804, 807 (Tex.App.-San Antonio 1999, pet. ref'd); State v. Tarvin, 972 S.W.2d 910, 912 (Tex.App.-Waco 1998, pet. ref'd). These cases, however, are all distinguishable.

In Fowler, the officer testified that he had initiated the stop because Fowler’s truck had crossed into an adjacent same-direction lane by a tire’s width and had drifted within its own lane on two occasions. 266 S.W.3d at 499. In Arriaga, the officer testified that he had initiated the stop because Arriaga’s vehicle had drifted out of its lane on multiple occasions. 5 S.W.3d at 807. And in Tarvin, the officer testified that he had initiated the stop because Tarvin’s vehicle had been weaving within its own lane of traffic. 972 S.W.2d at 912. Here, however, Officer Miller not only testified that he had stopped Reed because of her driving violations, but also because he had suspected that she might be intoxicated based on the time of day, the area of the city that she had been coming from, and his experience with intoxicated drivers exhibiting similar characteristics of driving. See Curtis v. State, 238 S.W.3d 376, 380-81 (Tex.Crim.App.2007) (applying the totality of the circumstances test and concluding that a rational inference could be made that the driver was intoxicated based on the driver’s weaving, the time of day, and the officer’s experience).

In Palmer, the officer testified to facts similar to those in this case. See 2005 WL 555281, at *1-2. However, the trial court in Palmer granted the defendant’s motion to suppress and did not enter findings of fact or conclusions of law. This court, on appeal, noted that the videotape from the officer’s in-car camera did not support the officer’s assertion that the driver had applied his brakes in a sudden and unsafe manner. Id. Thus, we concluded that, under the totality of the circumstances, the facts were insufficient to support reasonable suspicion. Id.

This appeal differs from Palmer in that the trial court here entered findings of fact and found Officer Miller’s testimony to be credible. Furthermore, the videotape from Officer Miller’s in-car camera supports his testimony. Thus, after giving almost total deference to the trial court’s rulings on application-of-law-to-fact questions that turn on credibility and demeanor and reviewing de novo those rulings that do not, we conclude that the totality of the circumstances surrounding the stop, support a reasonable suspicion that Reed was driving while intoxicated. Therefore, the trial court did not err by denying Reed’s motion to suppress. Accordingly, we overrule Reed’s first issue.

IY. Conclusion

Having overruled Reed’s sole issue, we affirm the trial court’s judgment.

DAUPHINOT, J. filed a dissenting opinion.

LEE ANN DAUPHINOT, Justice,

dissenting.

I, frankly, am reluctant to write this dissent because I am concerned that it could be construed as criticism of an officer who in all ways displayed a conscientious respect for the law and treated Appellant with courtesy. In short, Officer Chris Miller behaved as I would hope all our law enforcement officers would. But I must respectfully dissent from the majority opinion because I do not believe that the record supports a finding that Officer Miller had reasonable suspicion to detain Appellant when the officer turned on his overhead lights and Appellant submitted to his show of authority.

The majority states that Officer Miller was driving eastbound on Highway 183, also known as Airport Freeway, at about 12:45 a.m. when he noticed Appellant’s dark-colored Volkswagen driving in front of him on the highway. Although the majority is correct in stating that he testified that the time was 12:45 a.m., the record actually shows that Officer Miller first saw Appellant’s vehicle twenty minutes earlier at 12:25 a.m.:

Q. Okay. So it wasn’t 12:45,1:00?
A. When I initially observed the vehicle?
Q. Correct.
A. Yes, that’s correct.

Specifically, Officer Miller testified, “This was noted in my report that it was 25 minutes after midnight on the date in question.”

As the majority notes, he testified that Appellant “had been driving away from an area of Bedford that contained several bars and restaurants that served alcohol” and that he had previously pulled over other drivers for driving while intoxicated (DWI) in that same area. But the video reveals that Appellant was on a freeway that is a major state highway with restricted ingress and egress and that passes through residential areas, warehouse areas, office areas, and areas with bars and restaurants. The portion of Highway 183 visible on the videotape made by Officer Miller is raised and well separated from the structures along the access road. He did not see Appellant enter the freeway. He first saw her driving on Highway 183.

Officer Miller testified that he “was on routine patrol [and] was driving westbound [sic] on 183 about to get on 121 and go north.... There was a — it was a dark-colored Volkswagen four-door sedan driving in front of [him] on the highway.” On cross-examination he clarified his testimony:

A. Again, it’s just — it’s just an observation. I’m not saying that she was leaving a bar. It was just I observed her leaving a part of our city that has many bars. It’s just an observation.
Q. And you didn’t see her on any side streets because, I mean, you can’t— let me back up. You would have to get off the highway or get on to the highway to get to or leave from a bar in Bedford, right?
A. Yes.
Q. So you just see her driving down the highway. You never saw her enter onto the highway; is that correct?
A. No.
Q. So, again, you didn’t ever see her leave a bar?
A. No, I didn’t see her leave a bar.

Officer Miller testified that he never saw Appellant enter or leave a bar or a restaurant; he only saw her drive past bars and restaurants on a major state highway that passes above them. If we hold that merely driving past a bar provides reasonable suspicion justifying the detention of a motor vehicle and requiring the driver to submit to questioning and field sobriety tests, every person leaving downtown Fort Worth, or driving down 6th Street in Austin, or driving down a highway or freeway through any commercial area will be fair game to be pulled over, questioned, searched for the officer’s safety, and hauled out of the car to perform feats of line-walking, nose-touching, and balancing on one foot. Indeed, if one lives across the street from fraternity row, one should be prepared to be pulled over every time he leaves home because everyone knows fraternity houses are rife with alcohol.

The majority says that Officer Miller testified that he believed that Appellant was driving while intoxicated because of the time of night, her driving, the area of the city that she had been coming from, and his experience with intoxicated drivers exhibiting similar driving characteristics. But Officer Miller actually testified that it was less the time of night than the fact that it was night:

Q. But, nevertheless, it’s not in your report what time it was or — it doesn’t — your report is not reflective of—
A. I think it’s fair to say that the number of impaired drivers increase[s] in the nighttime hours especially leaving an area of the City that has several bars or restaurants that — if you will, that serve alcohol.

Our sister court in Austin was faced with a similar set of circumstances in Foster v. State. First, the Foster court noted,

While the Court of Criminal Appeals no longer employs the “as consistent with innocent activity as with criminal activity” test for reasonable suspicion, the plausibility of an innocent explanation in this case affects our determination of whether there was a reasonable basis for suspecting that Foster was intoxicated.

With that caveat in mind, I would look at the trial court’s determination of credibility; that is, the trial court’s findings of fact. Officer Miller testified that he pulled Appellant over because he saw her commit a traffic violation. But he was mistaken. What he observed was not a violation of the law. As this court has previously explained, reasonable suspicion of an alleged traffic violation cannot be based on a police officer’s mistaken understanding of traffic laws.

As the Foster court posited, “In the absence of a traffic offense, was there reasonable siispicion of intoxication'?” A reviewing court must determine whether “the combined weight of [the] circumstances is ... so much greater than the aggregation of their individual weights that it allows for a rational inference of intoxication.” The majority points out that the trial court found no traffic violation, no unsafe driving, very light traffic, and no erratic speed changes.

The majority then properly addresses the remaining justifications for the detention.

1. Time of night. “Time of day, by itself, is ‘owed virtually no weight’ as a factor in determining reasonable suspicion.”

2. Leaving a bar area. Actually, Officer Miller did not see Appellant leaving a bar area but, rather, driving on a freeway/major state highway that was routed through an area that had some bars and restaurants. He did not observe her leaving any parking lot or even driving on a roadway other than Highway 183 with limited ingress and egress. He did not observe her at any point before she was driving on Highway 183. As the Foster court stated, “[LJocation is generally ‘an insufficient basis for a rational inference that would lead to a reasonable suspicion.’ ”

3. Crossing on to the shoulder of the roadway, once by one-half the width of the vehicle and a second time by a few inches and “[u]nusual use of turn signal.”

The trial court correctly concluded that the record reveals that Appellant committed no traffic offense. Was the use of the turn indicator, combined with the other circumstances, sufficient to provide reasonable suspicion to detain Appellant? Officer Miller suggested that he thought that Appellant’s signal was a violation of the law.

Section 545.104(b) of the transportation code provides in pertinent part that “[a]n operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.” The statute does not provide for a maximum distance beyond which a person may not signal a turn, only a minimum distance. Officer Miller did not see Appellant violate the law by engaging her turn indicator more than 100 feet before changing lanes or exiting the freeway.

An officer’s reasonable suspicion of an alleged traffic violation cannot be based on a mistaken understanding of traffic laws. And an officer’s honest but mistaken understanding of the traffic law which prompted a stop is not an exception to the reasonable suspicion requirement.

The issue, then, is whether the non-violation was a circumstance providing, in light of all the circumstances, reasonable suspicion for Officer Miller to stop Appellant. This question requires close examination of the videotape.

The videotape shows that when Appellant first engaged her turn signal, there was a traffic lane to her right and a sign indicating the Harwood exit from the freeway. After she engaged the turn indicator, it became clear that the lane to her right merged into the lane she was in. At this point she had a choice to make. She could disengage the turn indicator, and then immediately re-engage it in order to signal her intent to exit the freeway, or she could leave the turn indicator on. Was one choice really so much more rational than the other that to make the other choice indicated intoxication? Was her de-cisión not to flick the indicator off and then immediately on even unreasonable?

The detention cannot be justified by the fruits of the detention. The reasonable suspicion for the stop must exist at the time the officer exercises a show of authority and the suspect indicates an intent to or actually acquiesces to the show of authority. Officer Miller engaged his overhead lights before Appellant exited the freeway.

I would hold that the combined circumstances of Officer Miller’s seeing Appellant’s vehicle traveling at 12:25 a.m. on a limited ingress/egress major highway through an area containing bars and restaurants, seeing the vehicle’s tires crossing or touching the right lane line twice, and seeing Appellant indicating her exit from the freeway for more than 100 feet do not provide reasonable suspicion to believe that Appellant was committing the offense of DWI. I would hold, therefore, that the State did not sustain its burden of proving that the warrantless stop was lawful, and I would further hold that the trial court abused its discretion by denying Appellant’s motion to suppress the fruits of the stop. Because the majority does not, I must respectfully dissent.

      . The Stale also introduced the videotape of the stop made from the camera in Officer Miller's patrol unit.

      . Officer Miller testified that the vehicle was driving westbound. A review of the videotape, however, shows that the vehicle was actually traveling eastbound. Because this is irrelevant to the issue at hand, we note it simply for the sake of accuracy.

      . When, as in this case, the appellant has not separately briefed state and federal constitutional claims, we assume that the appellant claims no greater protection under the state constitution than that provided by the federal constitution. See Varnes v. State, 63 S.W.3d 824, 829 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Therefore, we will analyze Reed's claim solely under the Fourth Amendment of the United States Constitution, following guidelines set by the United States Supreme Court in interpreting the Fourth Amendment. See State v. Guzman, 959 S.W.2d 631, 633 (Tex.Crim.App.1998).

      . Because a routine traffic stop typically involves only a short, investigative detention, as opposed to a custodial arrest, we analyze traffic stops under the principles developed for investigative detentions set forth in Terry v. Ohio. 392 U.S. at 22, 88 S.Ct. at 1880; see Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); Martinez v. State, 236 S.W.3d 361, 369 (Tex.App.-Fort Worth 2007, no pet.).

      . Majority op. at 418-19.

      . Id.

      . 297 S.W.3d 386 (Tex.App.-Austin 2009, pet. granted).

      . Id. at 393 (citing Curtis v. State, 238 S.W.3d 376, 379 (Tex.Crim.App.2007)).

      . Fowler v. State, 266 S.W.3d 498, 504 (Tex.App.-Fort Worth 2008, pet. ref'd); see United States v. Granado, 302 F.3d 421, 423 (5th Cir.2002).

      . 297 S.W.3d at 393.

      . Id. (citing State v. Thirty Thousand Six Hundred Sixty Dollars & no/100, 136 S.W.3d 392, 400 (Tex.App.-Corpus Christi 2004, pet. denied)).

      . Majority op. at 419.

      . Foster, 297 S.W.3d at 393 (quoting Thirty Thousand Six Hundred Sixty Dollars & no/100, 136 S.W.3d at 400).

      . Id. (quoting Thirty Thousand Six Hundred Sixty Dollars & no/100, 136 S.W.3d at 401).

      . See Fowler, 266 S.W.3d at 504-05; State v. Huddleston, 164 S.W.3d 711, 716 (Tex.App.Austin 2005, no pet.).

      . Tex. Transp. Code Ann. § 545.104(b) (Vernon 1999).

      . Fowler, 266 S.W.3d at 504 (citations omitted).

      . St. George v. State, 237 S.W.3d 720, 725-26 (Tex.Crim.App.2007) (citing Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968)).


author: JAMES T. CAMPBELL, Justice.

text:
    POTTER COUNTY, Texas as Plan Administrator for the Health Benefits Plan for the Employees of Potter County, Texas, Appellant, v. Ronda TUCKNESS and Michael Tuckness, Appellees.
    No. 07-09-00163-CV.
    Court of Appeals of Texas, Amarillo, Panel D.
    March 12, 2010.

      David Kemp, Assistant County Attorney, Amarillo, TX, for Appellant.
    Michael A. Warner, The Warner Law Firm, Amarillo, TX, for Appellees.
    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

Appellant Potter County brings this interlocutory appeal from an order denying its plea to the jurisdiction. The County contends it is immune from suit in the underlying action to recover health care benefits brought by appellees Ronda Tuckness and her husband Michael Tuckness. Finding the County’s governmental immunity has not been waived, we will reverse the order of the trial court and render judgment dismissing the Tucknesses case for want of jurisdiction.

Background

According to the live petition of the Tucknesses, Mrs. Tuckness is employed by the County and covered by its “Employee Health Benefit Plan.” She purchased additional health care coverage under the plan for Mr. Tuckness. Mr. Tuckness sustained a back injury and was scheduled for surgery. In a letter to Mrs. Tuckness dated prior to the scheduled surgery, the third party “plan supervisor” certified the medical necessity of the intended hospitalization. After the surgery, the County denied Mr. Tuckness’s claim for reimbursement of the surgery’s cost, finding the plan’s exclusion for occupational sicknesses and injuries sustained in the course of employment was applicable.

The plan document specified a two-tier review procedure for coverage disputes before “legal action is brought.” The Tuck-nesses exhausted the review procedure and filed suit against the County seeking a declaratory judgment. They sought declarations that:

Ronda Tuckness, was at all times pertinent hereto a Participant in the Plan.... Plaintiff, Michael Tuckness was at all times pertinent hereto a Dependent for purposes of coverage under the Plan as defined by the Plan terms, conditions and/or definitions. Plaintiff, Michael Tuckness, did not have any spinal exclusions in effect Under (sic) any term or condition of the Plan ... which would prohibit denial of the claim as a pre-existing condition. Plaintiff, Michael Tuckness, was not in the course and scope of employment [at the time of injury] with any person and/or entity. Plaintiff, Michael Tuckness’ ... injury should be a covered medical charge under the terms and/or conditions of the [Plan]. Plaintiffs have complied with the terms and conditions of the Plan and all conditions precedent have been performed for payment of benefits under the [Plan].

In the prayer, the Tucknesses requested a declaration that, “Michael Tuckness’s injury and subsequent surgery were not work related or an occupational injury and that [the County] pay all reasonable and necessary medical expenses related [to Mr. Tuckness’s condition] ... in accordance with the terms and conditions of the Plan. In addition, your Plaintiffs ask for ... actual damages in the amount of $34,872.78 for medical expenses.”

The County interposed the affirmative defense of governmental immunity and filed a plea to the jurisdiction asserting the trial court lacked subject-matter jurisdiction. The Tucknesses filed a traditional motion for partial summary judgment challenging the County’s claim of governmental immunity. Following recusal of the sitting judge, an assigned judge granted the Tucknesses’ motion for partial summary judgment and overruled the County’s plea to the jurisdiction. This interlocutory appeal by the County followed.

Issues

Through three issues the County urges its immunity from suit for the declaratory relief sought by the Tucknesses. The Tucknesses respond that immunity was expressly waived by the terms of the plan and statute and impliedly waived by the conduct of the County.

Analysis

A plea to the jurisdiction of the trial court based on governmental immunity challenges the subject-matter jurisdiction of the trial court. State v. Holland, 221 S.W.3d 639, 642 (Tex.2007). Whether the trial court lacks subject-matter jurisdiction is a question of law we review de novo. Id. “Sovereign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability for money damages.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.2008); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006). Sovereign and governmental immunities encompass two distinct principles, immunity from suit and immunity from liability. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004); Channelview Indep. Sch. Dist. v. A.R.C.I., Ltd., 199 S.W.3d 556, 559 (Tex.App.-Houston [1st Dist.] 2006, no pet.). Immunity from liability is an affirmative defense subject to waiver, but immunity from suit deprives a court of subject-matter jurisdiction. Miranda, 133 S.W.3d at 224.

Because immunity from suit affects the court’s jurisdiction, it is properly raised in a plea to the jurisdiction. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex.2003). A plea to the jurisdiction may be presented as either an attack on the sufficiency of the pleadings, as the County does here, or an evidentiary attack on the existence of jurisdictional facts. See Miranda, 133 S.W.3d at 226-27. We liberally construe the plaintiffs petition, looking to the pleader’s intent. Holland, 221 S.W.3d at 642-43.

Waiver by Request for Declaratory Relief

As a general proposition, governmental immunity is not a bar to suits seeking a declaration of a party’s rights under a statute or regulation. See Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) (in suit challenging construction of compulsory school-attendance law by state officials, governmental immunity did not bar claim for declaratory relief). The County contends this exception is not applicable here because the Tuek-nesses did not seek a statutory interpretation but employed an action for declaratory relief to obtain a contract interpretation that would compel a particular action.

The Uniform Declaratory Judgment Act is a remedial statute designed “to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Tex. Civ. Prac. & Rem.Code Ann. § 37.002(b) (Vernon 2008); Texas Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). In relevant part, the act provides:

A person interested under a ... written contract ... or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Tex. Civ. Prac. & Rem.Code Ann. § 37.004(a) (Vernon 2008). Seeking declaratory relief does not alter the underlying nature of a suit or confer jurisdiction on a court where none otherwise exists. IT-Davy, 74 S.W.3d at 855.

In Federal Sign v. Tex. Southern Univ., the court held “we distinguish suits to determine a party’s rights against the State from suits seeking damages.” 951 S.W.2d 401, 405 (Tex.1997). Cases of the first type seek a declaration that state officers acted without legal or statutory authority and seek to compel conduct conforming to law. IT-Davy, 74 S.W.3d at 855. Generally, cases of this class are not barred by governmental immunity. Cases of the second type seek declarations establishing contract validity, enforcing contract performance, or imposing contractual liabilities. Claims of this nature are unenforceable because their attempted effect is control of state action by imposing liability on the State. IT-Davy, 74 S.W.3d at 855-56. Specifically, “private parties cannot circumvent the States sovereign immunity from suit by characterizing a suit for money damages, such as a contract dispute, as a declaratory-judgment claim.” Id. at 856.

Here, the Tucknesses seek enforcement of a contract and recovery of damages rather than a declaration of rights under a statute or constitutional provision. Their suit attempts to adjudicate a breach of contract claim, nothing more. Immunity from suit was not waived simply because the Tucknesses couched their claim as one for declaratory relief. See IT-Davy, 74 S.W.3d at 860.

Waiver by Contract

As noted, the plan document specified a two-tier review process before initiation of “any legal action.” Thus, argue the Tucknesses, the County contracted for a legal remedy after the exhaustion of administrative claim review procedures. It is unnecessary to, and we do not, interpret the meaning and effect of the plan documents remedies section because even accepting the interpretation given it by the Tucknesses, there is no waiver of governmental immunity. It is correct that the State waives immunity from liability on its contracts with a private party as if it were a private party. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.2001). But waiver of immunity from suit for a claimed breach of contract requires a clear and unambiguous expression by the Legislature. Travis County v. Pelzel & Assocs., 77 S.W.3d 246, 248 (Tex.2002). It has long been settled in Texas that “it is the Legislatures sole province to waive or abrogate sovereign immunity.” Federal Sign, 951 S.W.2d at 409 (citing authorities). Legislative consent to suits against the State may be granted by statute or resolution. Gen. Serv. Comm’n, 39 S.W.3d at 594; Tex. Civ. Prac. & Rem. Code Ann. § 107.001-.005 (Vernon 2005 & Supp. 2009) (resolution).

The County’s plan language dealing with “any legal action” has no greater effect as a waiver of immunity from suit than the similar language in the Texas Natural Resource Conservation Commission’s contract in IT-Davy, 74 S.W.3d at 851 (contract’s remedies section stated claims or disputes would be decided by arbitration or in court). The court rejected a waiver-of-immunity-by-contract contention there, again pointing out that waivers of immunity from suit in contract claims are made only by the Legislature. Id. at 858. Absent express legislative authorization, the County could not contract to waive its immunity from suit.

Waiver by Other Conduct

The County accepted premiums paid on the plan for Mr. Tuckness and the plan supervisor submitted the previously noted letter to Mrs. Tuckness. The Tucknesses claim the conduct of the County brings their facts within the so-called “waiver by conduct exception” to governmental immunity. In a footnote in Federal Sign the court stated, “There may be ... circumstances where the State may waive its immunity by conduct other than simply executing a contract so that it is not always immune from suit when it contracts.” 951 S.W.2d at 408 n. 1. But if additional such circumstances exist under current law, the nature of the conduct necessary to bring a contract case within the contemplated exception is uncertain. In IT-Davy, the court was asked to carve out a waiver by conduct exception. 74 S.W.3d at 856-57. It declined, reaffirming “that it is the Legislatures sole province to waive or abrogate sovereign immunity.” Id. That and other decisions have made clear that a governmental entity does not waive immunity from suit based on breach of a contract simply by accepting benefits under the contract. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007) (listing cases); Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex.2006) (rejecting contention city’s partial performance of contract waived immunity). In Pelzel & Assocs., the court found Travis County did not waive its immunity from suit by retaining part of its payment pursuant to the late-completion liquidated damages clause of a construction contract. 77 S.W.3d at 252. The supreme court again found the circumstances insufficient to show a waiver of immunity in Catalina Development, Inc. v. County of El Paso, 121 S.W.3d 704, 705-06 (Tex.2003), holding the county’s conduct merely was that associated with creation of its confract.

The Tucknesses’ pleadings in this case seek a resolution of their disagreement with the County that Mr. Tuckness’s back injury was incurred in the course of his employment and thus excluded from coverage under the County’s plan. Despite its equities, at bottom the case involves no more than a contract dispute. See Pelzel & Assocs., 77 S.W.3d at 252 (county did not waive immunity by invoking contract’s express terms); IT-Davy, 74 S.W.3d at 861 (Hecht, J., concurring) (finding parties had “legitimate disagreement” over price to be paid for extra work, and suit involved “nothing more than an ordinary contract dispute”).

Waiver by Statute

The Tucknesses cite Local Government Code section 271.152 as a basis for waiver of immunity from suit. Chapter 271 waives a local governmental unit’s sovereign immunity to suit for a claim that it breached a properly executed and authorized contract for providing goods or services to the “local governmental entity.” Tex. Local Gov’t Code Ann. 271.152 (Vernon 2005). But a county is excluded from the coverage of Chapter 271 because its definition of local governmental entity expressly excludes a county. Tex. Local Gov’t Code Ann. § 271.151(3) (Vernon 2005). Accordingly, Chapter 271 has no application here.

Incurable by Amendment

A plaintiff is generally entitled to a reasonable opportunity to amend its petition “unless the pleadings affirmatively negate the existence of jurisdiction.” Koseoglu, 233 S.W.3d at 839. But here, as in Koseo- glu, remanding the case for a chance to amend would serve no legitimate purpose. The claim of the Tucknesses is for breach of contract. This fact, and the immunity of the County, will not change by an amended pleading alleging more facts. See Id., 233 S.W.3d at 840; Miranda, 133 S.W.3d at 227 (“[i]f the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend”).

Conclusion

We conclude the County’s governmental immunity from the underlying suit has not been waived. We therefore reverse the order of the trial court denying the County’s plea to the jurisdiction and render judgment dismissing the Tucknesses’ case against the County for want of jurisdiction.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 2008).

      . In reviewing a trial court's ruling on a plea to the jurisdiction, we take all factual allegations pled as true, unless jurisdictionally relevant evidence was offered. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). All facts recited in this opinion are from ap-pellees’ live petition, including its attached exhibits, unless otherwise noted.

      . The plan document, attached to the Tuck-nesses' original petition designates the County as “named fiduciary and plan administrator.”

      . The letter also provided, "If the claims and/or medical records do not support the initial information, the certification is not valid." The letter further stated that benefits or payments were not guaranteed and benefits were based on the employees eligibility status at the time charges were incurred.

      .The Tucknesses' pleadings refer to the plan's exclusion paragraph reading:
      The following exclusions and limitations apply to expenses incurred by all Covered Persons:

      Charges for any services or supplies provided in connection with an occupational sickness or an injury sustained in the scope of and in the course of any employment whether or not benefits are or could be provided under Workers' Compensation.

      . We refer to the immunity asserted by the County as governmental immunity. Houston Mun. Empl. Pension Sys. v. Ferrell, 248 S.W.3d 151, 154 n. 2 (Tex.2007) (governmental immunity protects counties).

      . But cases involving such an "ultra vires " act may yet implicate governmental immunity through the remedy sought. See City of El Paso v. Heinrich, 284 S.W.3d 366, 373-74 (Tex.2009). In City of Houston v. Williams, retired firefighters sought a declaration of rights under a statute concerning amounts deducted from payments they received on termination of employment. 216 S.W.3d 827, 828 (Tex.2007). In finding no waiver of immunity by the city, the court noted the only claimed injury occurred in the past and the only plausible remedy was money damages. Id. at 828-29. Thus, "retrospective monetary claims are generally barred by immunity” even though the suit seeks a declaration of rights under a statute. See Heinrich, 284 S.W.3d at 374.

      . The court, has held that, by filing suit, a governmental entity waives immunity from suit as to certain counterclaims. Reata, 197 S.W.3d at 376-77. It also has held that, by settling a claim for which it has waived immunity, a governmental entity waives immunity for a suit to enforce the settlement. Texas A & M University-Kingsville v. Lawson, 87 S.W.3d 518, 521 (Tex.2002) (plurality op.). Neither case has application here.

      . The Austin Court of Appeals recently declined to adopt a waiver by conduct theory, citing the footnote in Federal Sign, 951 S.W.2d at 408 n. 1, to note that the supreme court "once hinted that it might recognize waiver by conduct in the context of a contract claim” but that "it has since declined to judicially adopt this doctrine in light of the legislature’s creation of an administrative remedy for breach-of-contract claims” under chapter 2260 of the Government Code. Employees Retirement System of Texas v. Putnam, LLC, 294 S.W.3d 309, 327 (Tex.App.-Austin 2009, no pet.) (op. on reh’g) (citing IT-Davy, 74 S.W.3d at 857). See also Tooke v. City of Mexia, 197 S.W.3d 325, 342 (Tex.2006), (listing recent years' legislative waivers of immunity from suit on contract claims, and referring to its "larger, more consistent legislative scheme for handling contract claims”).

      . But see Texas Southern University v. State Street Bank & Trust Co., 212 S.W.3d 893 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (op. on reh'g) (affirming trial court’s denial of plea to jurisdiction based on "extraordinary factual circumstances” set forth in pleadings and university’s conduct that "lured" plaintiff into contract).