source: Caselaw Access Project

author: PHYLIS J. SPEEDLIN, Justice.

license: Public Domain

text:
    INNOVATIVE THERAPIES, INC., Appellant, v. KINETIC CONCEPTS, INC., KCI Licensing, Inc., and KCI USA, Inc., Appellees.
    Nos. 04-09-00285-CV, 04-09-00286-CV.
    Court of Appeals of Texas, San Antonio.
    April 14, 2010.
    Rehearing Overruled July 30, 2010.

      Sharon E. Callaway, Crofts & Callaway, P.C., Ricardo G. Cedillo, M. Alex Nava, Davis, Cedillo & Mendoza, Inc., San Antonio, TX, for Appellant.
    R. Laurence Macon, Jo Beth Eubanks, Karen K. Guide, Akin Gump Strauss Hauer <& Feld L.L.P., San Antonio, TX, for Appellees.
    Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

PHYLIS J. SPEEDLIN, Justice.

In this consolidated interlocutory appeal, Innovative Therapies, Inc. appeals the trial court’s orders denying its special appearances. Because the record demonstrates that Innovative Therapies has jurisdiction-ally-meaningful contacts with Texas and because the exercise of personal jurisdiction over it in the underlying suits would not violate constitutional guarantees of substantive due process, we affirm the trial court’s orders.

BACKGROUND

In January 2008, Kinetic Concepts, Inc., KCI Licensing, Inc., and KCI USA, Inc. (collectively “KCI”) sued Innovative Therapies and three of its officers, David Tumey, Richard Vogel, and Mark Meents, alleging that Innovative Therapies illegally used knowledge of KCI’s trade secrets to create a “knock-off product to compete with one of KCI’s signature medical devices, the Vacuum-Assisted-Closure System (“V.A.C.”). Allegations against Innovative Therapies included claims of misappropriation and theft of trade secrets, conversion, and tortious interference with KCI’s contracts with its clients and employees. Several months later, in June 2008, after some discovery, KCI filed a second suit alleging the same causes of action against Innovative Therapies and adding a new defendant, Dr. Tianning Xu, who was a principal engineer of the V.A.C. for six years while employed at KCI and who subsequently assisted in developing Innovative Therapies’s competing product.

Innovative Therapies filed a special appearance in each of KCI’s two suits, while all of the individual defendants entered general appearances. After lengthy jurisdictional-related discovery and a hearing, the trial court denied Innovative Therapies’s special appearances in both cases. This consolidated interlocutory appeal followed. In three issues, Innovative Therapies argues the trial court erred in concluding that it is subject to personal jurisdiction in Texas, and asserts it is entitled to dismissal of both suits.

Applicable Law

Personal jurisdiction is a question of law. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.2009). When the facts underlying the jurisdictional issue are undisputed, we review the trial court’s determination de novo. Id. However, the trial court must frequently resolve questions of fact before deciding the jurisdictional question. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). When a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all facts necessary to support the judgment and supported by the evidence are implied. Id. at 795. When the appellate record includes the reporter’s and clerk’s records, these implied findings are not conclusive and may be challenged for legal and factual sufficiency. Id.

Texas courts may exercise in personam jurisdiction over a nonresident defendant as authorized under the Texas long-arm statute, provided the exercise of such personal jurisdiction meets federal and state constitutional due process guarantees. Republic Drilling, 278 S.W.3d at 337; Mold Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007). To meet constitutional due process guarantees, the court must find that (1) the nonresident defendant has purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws, and (2) the court’s assertion of jurisdiction meets “traditional notions of fair play and substantial justice.” Republic Drilling, 278 S.W.3d at 338.

A nonresident’s contacts in the forum state can give rise to either specific or general jurisdiction. BMC Software, 83 S.W.3d at 795. General jurisdiction arises when the defendant’s contacts with the forum are continuous and systematic. Id. at 796. Specific jurisdiction arises when: (1) the defendant purposefully avails itself of conducting activities in the forum state; and (2) the cause of action arises from or is related to those contacts or activities. Id. at 795. Purposeful availment is the “touchstone of jurisdictional due process,” being “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.2005) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)); see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). For the purpose of determining if a nonresident defendant purposefully availed itself of the privilege of conducting activities in Texas, (1) only the defendant’s contacts with the forum are relevant, (2) the contacts must be purposeful rather than random, fortuitous, or attenuated, and (3) the defendant must seek some benefit, advantage, or profit by availing itself of the jurisdiction. Republic Drilling, 278 S.W.3d at 338-39; Moki Mac, 221 S.W.3d at 575 (recognizing there are three parts to a “purposeful availment” inquiry). A nonresident defendant cannot be subjected to the jurisdiction of a Texas court based on the unilateral acts of a third party. Michiana, 168 S.W.3d at 785. Similarly, if a nonresident defendant’s contacts with Texas are merely random, fortuitous, or attenuated, it is not subject to Texas jurisdiction. Id. Rather, the minimum-contacts analysis focuses on the “quality and nature of the defendant’s contacts, rather than their number.” Republic Drilling, 278 S.W.3d at 339. The nonresident’s activities, whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court. BMC Software, 83 S.W.3d at 795; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). A nonresident defendant may structure its transactions so that it neither profits from nor avails itself of the benefits of the forum state’s laws in order to purposefully avoid a particular forum. Moki Mac, 221 S.W.3d at 575.

Discussion

Innovative Therapies contends the trial court erred in denying its special appearances because it has no constitutionally-cognizable contacts with Texas to support either general or specific jurisdiction. Innovative Therapies stresses that it structured its transactions in a manner to purposefully avoid Texas, and that all of the contacts cited in the trial court are little more than allegations that Innovative Therapies directed a tort to Texas which is insufficient to support an exercise of jurisdiction under Texas Supreme Court precedent. KCI counters that Innovative Therapies’s contacts in Texas give rise to both specific and general jurisdiction. We will begin our analysis by examining KCI’s claim that Innovative Therapies’s actions in contacting, recruiting, and employing Xu, a Texas resident, are sufficient, standing alone, to support the legal conclusion that Innovative Therapies is subject to specific jurisdiction in a Texas court.

I. PROOF Submitted In Support of Specific Jurisdiction

A.Innovative Therapies, Inc.

Innovative Therapies is a Delaware corporation founded by Richard Vogel and Dr. Paul Svedman, along with others, to research, develop, and produce therapies in the field of patient wound care. Its sole place of business is Gaithersburg, Maryland. It has neither employees nor property in Texas, and does not have a registered agent for service in Texas. Three of its founders and original officers, Vogel, Tumey, and Meents, had all previously been employed by KCI at its principal place of business in San Antonio, Texas. Vogel, the current Chief Executive Officer of Innovative Therapies, served as a Vice President and Executive Committee member of KCI; Tumey, the current Chief Technology Officer of Innovative Therapies, served as Director of KCI’s Research and Development Department, during which time he managed the development of the V.A.C.; and Meents, the Chief Operating Officer of Innovative Therapies, worked as Vice President of Sales Administration and New Technologies for KCI.

Relevant to this litigation, Innovative Therapies set out to develop a negative pressure wound therapy device based upon Dr. Paul Svedman’s work in wound treatment. Dr. Svedman is a plastic and reconstructive surgeon, inventor, and professor of medicine. A third-party vendor hired by Innovative Therapies initially developed a prototype for the Svedman Wound Treatment System (the “Svedman device”). After Tumey joined the company in September 2006, he supervised efforts to improve the prototype. The Svedman device is an alternative to the V.A.C., a wound therapy device marketed and sold by KCI. Innovative Therapies has a stated corporate policy that forbids marketing or selling the Svedman device to users in Texas.

B. Dr. Xu

Dr. Tianning Xu worked in the Research and Development Department at KCI from 1997 until January 2006, six years of that time as a principal engineer on the V.A.C. During his employment at KCI, Xu knew Vogel, Tumey, and Meents. In fact, Xu reported directly to Tumey while serving as principal engineer on the V.A.C. Xu left KCI in January 2006 and continued to live in San Antonio from January 2006 to May 2007, at which time he relocated to Atlanta, Georgia.

After he left KCI, Dr. Xu initially went to work for a KCI competitor, BlueSky Medical, located in San Antonio, from January 2006 until September 2006. Once he left KCI, Xu was subject to the terms of an on-going non-disclosure agreement with KCI that, among other things, prohibited Xu from sharing confidential information learned while employed by KCI. An assignment clause provided that any invention developed by Xu during the three-year period after he left KCI was owned by KCI.

C. Innovative Therapies and Dr. Xu

On September 3 or 4, 2006, Vogel, acting on behalf of Innovative Therapies, contacted Xu by telephone in San Antonio. At the time of the initial phone conversation, Vogel knew Dr. Xu’s work as an engineer from their time together at KCI. He also knew Xu was currently employed by Blue-Sky but denied knowing he was located in San Antonio. During that first conversation, Vogel discussed wanting Xu to leave BlueSky and help develop the Svedman prototype for FDA approval. They also discussed the fact that working with Innovative Therapies might create a conflict of interest with BlueSky because both entities were working on negative pressure wound therapy devices. Xu mentioned to Vogel that he would have to resign from BlueSky in order to do work for Innovative Therapies. At the conclusion of the conversation, Xu agreed to go to Maryland to meet with Vogel and Tumey and to inspect the prototype. Vogel admitted in his deposition that he wanted to “pry [Xu] away from Blue Sky” in the fall of 2006.

Soon after that initial phone contact, at Vogel’s invitation, Xu traveled to Maryland and met with Vogel and others from Innovative Therapies. Xu spent two to three hours with Tumey discussing how they would work on improving the prototype together — what part Xu would do, and what part Tumey would do. According to his deposition, based on his discussions with Tumey, Xu understood that if he accepted the job, he would be working on the electronics components of the device and Tumey would simultaneously be working on other parts of the device. Innovative Therapies reimbursed Xu for all of his travel expenses from San Antonio to Maryland.

Shortly thereafter, on September 15, 2006, Xu resigned from his paid position with BlueSky and began to work for Innovative Therapies on its Svedman prototype. For approximately seven months, from September 2006 to May 2007, Xu “did some work to redesign [the] prototype, existing prototype, [to] make it more in line with medical device guideline [sic] so that it [could] be approved by the FDA.” At Innovative Therapies’s request, Xu designed a printed circuit board prototype and wrote a software code for the prototype at his home in San Antonio. During this period, Vogel and Tumey had on-going discussions with Xu in Texas by telephone once or twice a week about their progress on the prototype modifications. Xu reported to Vogel and Tumey about the electronics work he was doing on the prototype. In addition, Vogel and Tumey corresponded with Xu about the device using emails. At Innovative Therapies’s request and expense, Xu traveled to Maryland to meet with Tumey, Vogel, and Meents on five or six occasions. While in Texas, with Innovative Therapies’s approval, Xu purchased component parts for the prototype and built a new prototype device at his home in San Antonio. Xu delivered the drawing of the printed circuit board by email to Tumey at Innovative Therapies in January or February 2007, and delivered the software code to Tumey by email in May or June 2007. Subsequently, Innovative Therapies incorporated Xu’s improvements into the device, and received Food and Drug Administration approval to market the Svedman device.

Xu characterized his position as a “consultant” and testified that his work for Innovative Therapies amounted to only three to five percent of his total work time, and he received no monetary compensation from Innovative Therapies while he resided in Texas. In October 2007, however, after he relocated to Atlanta, Xu received shares of Innovative Therapies’s stock as compensation for his work on the Svedman prototype. Innovative Therapies also reimbursed Xu for his travel expenses and his out-of-pocket expenses incurred for his work on the Svedman prototype while in Texas.

II. Application of Law to Facts

A. Texas Long-Arm Statute

Under the Texas long-arm statute, a nonresident “does business” in Texas when it recruits Texas residents, directly or through an intermediary located in Texas, for employment inside or outside Texas. Tex. Crv. Prac. & Rem.Code Ann. § 17.042(3) (Vernon 2008). As an initial matter, we note Innovative Therapies argues that Xu was not an employee of, and was not paid or compensated by, Innovative Therapies during the time that he was in Texas. Based on the record, however, we disagree. It is virtually undisputed that Vogel, on behalf of Innovative Therapies, actively recruited Xu to leave his well-paying job at BlueSky in order to work on the Svedman prototype. Thereafter, Innovative Therapies reimbursed Xu for all expenses and costs associated with both component parts and travel necessary to completing his work. Ultimately, Xu received 2% stock ownership in Innovative Therapies which he testified was in exchange for the work he had done on the Svedman device. We conclude there is legally and factually sufficient evidence to support the trial court’s implied finding that Innovative Therapies recruited Xu to work on the Svedman device and compensated him for that work. See BMC Software, 83 S.W.3d at 795 (when trial court does not issue findings of fact, all facts necessary to support the ruling and supported by the evidence are implied). Accordingly, under the Texas long-arm statute, Innovative Therapies’s action of recruiting Xu to work on the Svedman prototype is defined as an act constituting doing business in this state. See Tex. Civ. Prac. & Rem.Code Ann. § 17.042(3); see also Moreno v. Poverty Point Produce, Inc., 243 F.R.D. 265, 271 (S.D.Tex.2007) (Texas has an interest in enforcing the provision of its long-arm statute that specifically subjects nonresidents who recruit Texas residents to personal jurisdiction in Texas); Gonsalez Moreno v. Milk Train, Inc., 182 F.Supp.2d 590, 594-95 (W.D.Tex.2002) (jurisdiction proper where defendant, through intermediary, recruited Texas residents to work in New York and reimbursed their travel expenses). Of course, for jurisdictional purposes, the Texas long-arm statute reaches only as far as due process guarantees allow. Therefore, we next determine whether Innovative Therapies’s contacts with Xu in Texas satisfy the purposeful availment requirement of the due process minimum contacts analysis. Republic Drilling, 278 S.W.3d at 337; Moki Mac, 221 S.W.3d at 574.

B. Due Process Analysis

In conducting a due process analysis, the relevant inquiries are whether (1) the nonresident defendant has purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws, and (2) the court’s assertion of jurisdiction meets “traditional notions of fair play and substantial justice.” Republic Drilling, 278 S.W.3d at 338. We begin by considering whether Innovative Therapies’s contacts with Texas constitute purposeful availment.

1. Purposefully Availed Itself of the Forum

As noted, supra, a purposeful availment analysis considers (i) only the conduct of the nonresident defendant, (ii) whether the defendant’s contacts with the forum were purposeful, rather than random, fortuitous, or attenuated, and (iii) whether the defendant sought a benefit, advantage, or profit by availing itself of the jurisdiction. Moki Mac, 221 S.W.3d at 575. In applying this analysis, we focus on the nature and the quality of Innovative Therapies’s contacts with Texas, not the number of contacts. Republic Drilling, 278 S.W.3d at 339.

Based on this record, we conclude that Innovative Therapies has purposefully availed itself of the privilege of conducting activities within Texas, thus invoking the benefits and protections of its laws. Vo-gel, who was aware of Xu’s particular engineering skills from their previous association, initiated contact with Xu, a Texas resident. Vogel, on behalf of Innovative Therapies purposefully set out to apprise Xu of the venture and persuade him to stop working for a competitor, BlueSky. Although Vogel stated he did not know where Xu was located when he made that initial contact, Vogel certainly became aware that Xu was located in Texas after Xu agreed to travel to Maryland and look at the device, a trip joaid for by Innovative Therapies. Based on their initial contacts with him, Vogel and Tumey convinced Xu to stop working for a competitor and join the Innovative Therapies “team” to develop the initial prototype into a product.

Thereafter, from September 2006 through May 2007, Vogel, Tumey, and Xu participated in conference calls once to twice a week with Xu reporting on his progress in redesigning the prototype to comply with medical device rules and guidelines. Over this seven-month period, Vogel, Tumey, and Xu discussed the product features and changes by telephone and in email exchanges to and from Xu in San Antonio. Further, Innovative Therapies incorporated Xu’s work on the circuit board and the software code into the final product, ultimately receiving FDA approval. Innovative Therapies paid Xu’s expenses and his out-of-pocket expenses for products he purchased in Texas that were necessary for his work on the Svedman device. Moreover, Innovative Therapies ultimately awarded Xu ownership in the company for the work he had done while in Texas. Although it may not mai'ket the Svedman device to users in Texas, Innovative Therapies certainly intends to benefit from Xu’s work performed in Texas with the sale of the Svedman device outside of Texas. Moreover, Innovative Therapies was well aware of the risk of litigation by KCI in Texas based on the launch of its Svedman device. Tumey testified that he placed phone calls to two former colleagues at KCI on the eve of the launch to assess whether a working relationship between the companies was possible and, alternatively, to assess the risk of litigation by KCI. Based on the three-part analysis for purposeful availment, we conclude that Innovative Therapies’s contacts with Texas were purposeful — not random, fortuitous or attenuated, and were directed at seeking a benefit, advantage, or profit by availing itself of the jurisdiction. Republic Drilling, 278 S.W.3d at 339.

Innovative Therapies presents several arguments in support of its position that it did not purposefully avail itself of Texas jurisdiction. We will address each argument in turn. First, Innovative Therapies argues specific personal jurisdiction fails because all of the “contacts” cited in the trial court are little more than allegations that Innovative Therapies directed a tort to Texas which is insufficient to support an exercise of jurisdiction under Texas Supreme Court precedent. See Michiana, 168 S.W.3d at 790-91. Michiana involved a single commercial transaction initiated from Texas by a Texas resident via telephone to a nonresident seller of recreational vehicles. Id. at 784. Sometime after the purchase, the buyer brought suit against the nonresident seller claiming DTPA violations, common law fraud, breach of warranty, and breach of contract based on alleged misrepresentations made in the telephone call. Id. The Michiana court ultimately held that, although allegations that a tort was committed in Texas do satisfy the Texas long-arm statute, such allegations alone are not sufficient to satisfy the purposeful availment requirement of the due process minimum contacts analysis. Id. at 788-792. The Court reasoned that focusing on whether the defendant directed a tort toward Texas as a basis for jurisdiction improperly focuses on the merits of the lawsuit rather than the defendant’s contacts with the forum state. Id. at 790-91. The Court instead emphasized that it is “the defendant’s conduct and connection with the forum that are critical.” Id. “[M]inimum-contacts analysis focuses solely on the actions and reasonable expectations of the defendant.” Id. at 790. We agree with the reasoning and holding in Michiana, but disagree with Innovative Therapies’s basic premise that all of the “contacts” cited in the trial court are little more than allegations that Innovative Therapies directed a tort to Texas. Instead, Innovative Therapies engaged in purposeful acts directed at Texas and involving a Texas resident.

Second, Innovative Therapies argues a case with similar facts, and heavily relied on by KCI, Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277 (Tex.App.-Houston [14th Dist.] 2009, no pet.), is incorrect. In Nogle, the court found specific jurisdiction, holding that a non-resident defendant company purposefully availed itself of the benefits and privileges of doing business in Texas by employing a Texas engineer to do design work which was performed in Texas. Id. at 283-85. In Nogle, the court held that the company’s contacts in Texas were purposeful, in part because the company specifically chose that particular engineer for the project because it “liked his work best.” Id. at 283. The court went on to note,

Even though N & B may have made some such choices, such as not locating any employees or offices in Texas and not targeting the Texas market, it specifically chose to use the work of this Texas resident. That work was performed in Texas, N & B used it in completing its AMOC, and N & B made money doing so when it sold the AMOC to T-34 owners.

Id. Similarly, Innovative Therapies purposefully avoided establishing an office in Texas and targeting the Texas market, while specifically recruiting a particular Texas resident to work on its prototype because he was the best person for the job. Innovative Therapies, like Nogle & Black, obtained approval of its device based on Dr. Xu’s work, and certainly intends to profit from sales of the approved Svedman device. Moreover, Innovative Therapies was aware that by choosing a former KCI engineer to work on its competitive device, it was risking litigation with KCI. In No-gle, the court noted that litigation was foreseeable when the nonresident company chose to use a Texas engineer doing work in Texas to assist with the design of the project. See id.; see also GJP, Inc. v. Ghosh, 251 S.W.3d 854, 880 (Tex.App.-Austin 2008, no pet.) (noting nonresident defendants controlled whether transaction occurred in Texas and that “it is not unreasonable or unexpected that they might be hailed into court here in regard to claims arising from that activity”).

At oral argument, counsel for Innovative Therapies asserted that Nogle “does not square with” existing precedent by the United States Supreme Court, Texas Supreme Court, and this Court because it focused solely on one contact, ie., the hiring of a Texas engineer, in finding purposeful availment. See Burger King, 471 U.S. at 478-79, 105 S.Ct. 2174 (single contract with a resident of the forum state is insufficient to establish jurisdiction without additional contacts); Moki Mac, 221 S.W.3d at 577 (single contact cannot support jurisdiction where it creates only an attenuated affiliation with the forum state); see also Credit Commercial de France, S.A. v. Morales, 195 S.W.3d 209, 220-21 (Tex.App.-San Antonio 2006, pet. denied) (merely contracting with a resident of the forum state, or engaging in communications during performance of the contract, is insufficient to subject a nonresident to the forum’s jurisdiction); Tabor, Chhabra & Gibbs, P.A. v. Medical Legal Evaluations, Inc., 237 S.W.3d 762, 772-73 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (intermediary’s hiring of Texas doctor as expert witness for law firm did not subject nonresident law firm to Texas jurisdiction). Innovative Therapies argues that Nogle is wrong because it is a “single contact case,” and we should instead follow the line of cases exemplified by Credit Commercial and Tabor in holding that the “single contact” of engaging Xu to work on the prototype does not subject Innovative Therapies to Texas jurisdiction.

We disagree that Nogle based its finding of purposeful availment on a single contact between the nonresident company and Texas. To the contrary, in Nogle, the court acknowledged that merely contracting with a Texas resident is not alone sufficient to show purposeful contact with Texas. Nogle, 290 S.W.3d at 283 (citing Olympia Capital Associates, L.P. v. Jackson, 247 S.W.3d 399, 417 (Tex.App.-Dallas 2008, no pet.)). The court stressed “other factors about the nature of the relationship” as more important, such as the fact that the engineer performed the work in Texas, he did not unilaterally initiate the relationship but was specifically chosen by Nogle & Black, and his work was used to complete the product which was sold for a profit. Id. The court further noted that it was “not unreasonable to expect that the choice to use a Texas engineer doing work in Texas to assist with the design of a wing spar modification could lead to litigation in Texas for a claim relating to a wing spar failure.” Id. The court’s conclusion that Nogle & Black’s use of the Texas engineer’s services amounted to purposeful contact with Texas was based on all of these reasons, not on the single factor of a contract with a Texas resident. See id.

Innovative Therapies argues that we should instead apply the reasoning of Tabor to the instant case. In Tabor, the Houston Court of Appeals, First District, declined to find specific jurisdiction over an out-of-state law firm and its partner that contracted with an intermediary company which referred a doctor who happened to be in Texas as an expert witness. Tabor, 237 S.W.3d at 772-78. The court found the nonresident law firm did not purposefully avail itself of the privilege of conducting activities in Texas because it did not enter into a contract with the Texas physician, and, even if the physician was a third-party beneficiary of the contract between the law firm and the intermediary company, the contract was neither executed in nor required to be performed in Texas. Id. at 773-74. Further, the court found there was no evidence of recruitment of this particular Texas physician to be the expert — many different doctors could have served as the expert witness; it was merely fortuitous that the doctor who was selected by the intermediary company happened to reside in Texas, and thus the recruitment allegations would not support specific jurisdiction. Id. at 777. Tabor is distinguishable from the instant case on that very basis— the defendants in Tabor did not specifically seek out and recruit the particular Texas physician for employment, as Innovative Therapies did with Dr. Xu. See id.

Finally, Innovative Therapies relies on two prior cases in which this Court stated that merely contracting with a Texas resident, and having communications incidental to the contract, does not subject the nonresident to Texas jurisdiction. See Credit Commercial, 195 S.W.3d at 220-21 (merely contracting with resident of the forum state, and engaging in communications during performance of contract, is insufficient to subject nonresident to forum’s jurisdiction); see also Magnolia Gas Co. v. Knight Equip. & Mfg. Corp., 994 S.W.2d 684, 691 (Tex.App.-San Antonio 1998), abrogated on other grounds, BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex.2002) (same). We acknowledge this well-established rule. The two San Antonio cases are, however, factually distinguishable from the instant case. In Credit Commercial, we held that Texas could not assei't specific jurisdiction over a French bank, its subsidiary, and a Bahamian bank because they had no facilities, personnel, or assets in Texas, structured their business transactions to avoid Texas jurisdiction, the contracts were performed outside Texas, the communications during the four-year period were remote and related solely to the receipt of funds, and any visits by officers were incidental and more in the nature of a social -visit. Credit Commercial, 195 S.W.3d at 220-23. In Magnolia Gas, we held the defendants did not purposefully avail themselves of the protections of Texas law when they assumed a contract with a Texas corporation because their contacts with Texas, including meetings and sending payments into Texas, were entirely incidental and immaterial to the purpose of the assumed contract and were not initiated by the defendants. Magnolia Gas, 994 S.W.2d at 692.

Here, Innovative Therapies initiated the contact with Texas by seeking out and recruiting Xu for his specialized skill, arranged for him to work on improving its Svedman prototype, and engaged in substantive communications with Xu about the changes to the prototype during a seven-month period. The record supports an implied finding that the communications between Xu and Tumey and Vogel at Innovative Therapies were active, collaborative phone calls and emails as part of an ongoing “team” effort to complete the substantive work being done on the prototype by both Xu in Texas and Tumey at Innovative Therapies. In addition to working on the prototype himself, Tumey was closely supervising Xu’s work on the prototype, with twice weekly phone calls during the seven-month period Xu worked in Texas. Thus, the quality of the communications between Xu and Tumey and Vogel are distinguishable from the communications in Credit Commercial and Magnolia, which were not material to the substance of the contract, but rather only incidental, pertaining to such matters as whether payments were received. In addition, other critical factors are present here in that Innovative Therapies actively and specifically sought out and recruited Xu, a Texas resident, for his skill and knowledge, to improve its prototype of the Svedman device and obtained approval based on his work; Xu built the new prototype in Texas, and Innovative Therapies’s use of Xu’s work in the device is the source of the current litigation between KCI and Innovative Therapies.

In summary, focusing our jurisdictional analysis only on Innovative Therapies’s contacts with Texas, we hold Innovative Therapies’s contacts with Texas do demonstrate that it purposefully availed itself of the privilege of conducting activities in Texas. Despite the fact that Innovative Therapies attempted to avoid Texas, there is legally and factually sufficient evidence to demonstrate that Innovative Therapies reached out to Texas by initiating contact with Xu and intentionally recruiting Xu away from a competitor to work on its Svedman prototype. Over the next seven months, Innovative Therapies maintained on-going and regular communications with Xu as changes and improvements were made to the prototype by Xu and Tumey. Innovative Therapies knew Xu lived and worked in San Antonio during the seven months it collaborated with him on the device. Innovative Therapies did not want just any engineer to work on its prototype, or even just any former KCI engineer — it especially wanted Dr. Xu. Furthermore, Innovative Therapies both reimbursed Xu for all his expenses and costs related to his work and ultimately compensated him for his work by giving him an ownership interest in the company. Innovative Therapies accepted and incorporated Xu’s work into the final Svedman device, - seeking and obtaining FDA approval based, at least in part, on Xu’s improvements. Finally, Innovative Therapies intends to profit from the use of Xu’s work. Moreover, the record contains sufficient evidence that Innovative Therapies anticipated that litigation was foreseeable when it chose to use Xu to assist with the design of the Svedman prototype. As admitted by Innovative Therapies in briefing before this court, both Vogel and Tumey believed that Innovative Therapies faced the threat of a patent infringement lawsuit by KCI if it launched the Svedman device. On the eve of the launch, Tumey contacted two of his former KCI colleagues in San Antonio to determine if a business relationship was possible between Innovative Therapies and KCI in the field of negative pressure wound therapy, and, alternatively, to assess the risk of litigation by KCI. Such actions and reasonable expectations by Innovative Therapies are sufficient to establish purposeful availment. Nogle & Black, 290 S.W.3d at 283.

2. Relationship Between Texas Contacts and Operative Facts of Litigation

“[P]urposeful availment alone will not support an exercise of specific jurisdiction ... unless the defendant’s liability arises from or relates to the forum contacts.” Moki Mac, 221 S.W.3d at 579. KCI argues Innovative Therapies’s contacts with Texas are substantially related to the operative facts of the litigation because the essence of KCI’s suits is that Innovative Therapies recruited and employed ex-employees of KCI in Texas for the purpose of wrongfully using the knowledge they gained at KCI to help design a competing product. Innovative Therapies counters that none of its alleged purposeful contacts are substantially connected to the operative facts of this litigation because KCI has refused to identify the trade secrets and confidential information at issue or identify where those trade secrets and confidential information are allegedly located in the Svedman device. Specifically, KCI submitted the affidavit of Nadeem Bridi, its in-house counsel, who swore that he examined the Svedman device and its accompanying literature and concluded that the device incorporated KCI’s confidential information. When Bridi was deposed, however, Bridi followed the advice of KCI’s counsel and refused to identify the trade secrets or confidential information he claimed was incorporated into the Sved-man device. Without the specific identification of the trade secrets and confidential information at issue and where those are located in the Svedman device, Innovative Therapies contends there is absolutely no nexus between its supposed contacts with Texas and the asserted claims. See Michiana, 168 S.W.3d at 794 (bare tort allegations are legally insufficient to support the exercise of specific jurisdiction). We disagree.

Whether Innovative Therapies actually used trade secrets and confidential information wrongfully obtained from ex-employees of KCI in completing the Svedman device is a merits-based question that should not be resolved at the special appearance stage. Moki Mac, 221 S.W.3d at 582 (declining to adopt rule that “would require a court to delve into the merits to determine whether a jurisdictional fact is actually a legal cause of the injury”); Nogle & Black, 290 S.W.3d at 284 (whether engineer actually was negligent regarding the wing spars and whether a problem with wing spars actually caused the crash are merits-based questions that should not be resolved in context of special appearance); Pulmosan Safety Equip. Corp. v. Lamb, 273 S.W.3d 829, 839 (Tex.App.Houston [14th Dist.] 2008, pet. denied) (whether Lamb actually used the Pulmo-san hood is merits-based question that should not be resolved in a special appearance). Instead, for purposes of determining whether the defendant’s liability arises from or relates to the forum contacts, we take KCI’s pleading and allegations as true and focus our analysis on the relationship among the defendant, the forum, and the litigation. Moki Mac, 221 S.W.3d at 582. For jurisdictional purposes, Bridi’s affidavit creates a fact issue regarding whether Xu used trade secrets and confidential information and that is sufficient to support the trial court’s determination that it has jurisdiction over Innovative Therapies.

3. Traditional Notions of Fair Play and Substantial Justice

Finally, having determined that Innovative Therapies had minimum contacts with Texas sufficient to support specific jurisdiction, we must determine whether subjecting it to the jurisdiction of Texas would offend traditional notions of fair play and substantial justice. Republic Drilling, 278 S.W.3d at 341. In making this determination, we consider (1) the burden on the defendant, (2) the interests of the forum state in adjudicating the dispute, (3) the plaintiffs interest in obtaining relief, (4) the interstate justice system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. See Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). “Only in rare cases, however, will the exercise of jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state.” Spir Star AG v. Kimich, 310 S.W.3d 868, 878 (Tex.2010) (quoting Guardian Royal Exchange Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 231 (Tex.1991), and citing Burger King, 471 U.S. at 477, 105 S.Ct. 2174). Innovative Therapies must present “a compelling case that the presence of some consideration would render jurisdiction unreasonable” in order to defeat jurisdiction. Id. (quoting Burger King, 471 U.S. at 477, 105 S.Ct. 2174). It has failed to do so.

Innovative Therapies concedes that Texas has an interest in the litigation because KCI’s principal place of business is in Texas, but argues it is unfair to subject it to the jurisdiction of Texas when it steadfastly structured its operations to avoid Texas, neither seeking any benefit from connections with Texas nor deriving any profit from Texas. See Michiana, 168 S.W.3d at 785 (“a nonresident may purposefully avoid a particular jurisdiction by structuring its transactions so as neither to profit from the forum’s laws nor be subject to its jurisdiction”). Innovative Therapies maintains it would be significantly burdened by litigating in Texas due to travel, and argues Maryland is the better forum — KCI can obtain relief in Maryland against all defendants since three of the named individuals reside in Maryland and Xu has significant contacts with the state because he is a shareholder of Innovative Therapies; many witnesses are located there; and should KCI prevail and obtain a money judgment against Innovative Therapies, its property is located there. We disagree that litigation of this case in Texas would pose a substantial burden on Innovative Therapies.

As acknowledged by Innovative Therapies, Texas has an interest in the litigation because KCI’s principal place of business is in Texas. Innovative Therapies’s co-defendants, who are the officers and shareholders of the corporation, have already submitted to the jurisdiction of the Texas court. Litigating the cases in both Texas and Maryland would therefore duplicate costs and be inconvenient for the parties as well as the witnesses; further, it would be a waste of judicial resources. Considering all factors, the trial court’s exercise of personal jurisdiction over Innovative Therapies does not offend justice or fairness.

Conclusion

Because Innovative Therapies engaged in minimum contacts with Texas sufficient to subject it to specific jurisdiction in a Texas court, and because the exercise of such jurisdiction would not offend traditional notions of fair play and substantial justice, we affirm the trial court’s orders denying the special appearances by Innovative Therapies. Our resolution of this appeal based on the existence of specific jurisdiction forecloses the need to address the arguments related to general jurisdiction.

      . The V.A.C. was developed to treat difficult wounds through negative pressure wound therapy.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 2008) (providing that a nonresident "does business” in Texas if it (1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in Texas, (2) commits a tort in whole or in part in Texas, or (3) recruits Texas residents, directly or through an intermediary located in Texas, for employment inside or outside Texas).

      . Vogel, Tumey, and Meents had also signed nearly identical Confidentiality Agreements when hired by KCI.

      . Vogel stated in his deposition, "My issues were apprising [Xu] of the venture and getting him to stop working for a competitor; in other words, Blue Sky.” Vogel explained, "I just laid out certain — you know, the vision, what we would like to do, working together as a team. And he had other things that he was working on that he also wanted to pursue, and he thought this might be a good opportunity to do that ... So it was a matter of talking, talking and more talking, and finally he decided Blue Sky was not where he wanted to be long-term.”

      . Xu’s deposition contains the following exchange about Xu's meeting with Tumey during his initial visit to Maryland:
      Q: Tell me what you and Mr. Tumey discussed about the ITI device.
      A: We inspect — inspected the prototype.
      Q: And did you discuss what work you could do on the ITI device?
      A: We discussed what work we need to do.
      Q: And — and was there a discussion about what part of the work you would do and what part of the work Mr. Tumey would do?
      A: I believe so.

      .On the same day Xu began working as a consultant on the Svedman device, he also started working for Vogel and Tumey on a new haptic device being developed by one of their other companies, Immersion Medical. Xu continued to work on Immersion Medical’s device from September 2006 through May or June 2008. Xu was paid $20,000 in 2006, and $180,000 in 2007 by Immersion Medical.

      . The Supreme Court later noted in Moki Mac, "[i]n Michiana, we warned against the dangers of the plaintiff's pleadings driving the analysis, stating that such an approach ‘shifts a court's focus from the relationship among tlie defendant, the forum, and the litigation to the relationship among the plaintiff, the forum ... and litigation.’ " Moki Mac, 221 S.W.3d at 583 (emphasis added).


author: JANE BLAND, Justice.

text:
    Daniel STROUD, M.D., Appellant, v. Jerry GRUBB, Individually and as Representative of the Estate of Lonnie Grubb, Deceased, Appellee.
    No. 01-09-00945-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 13, 2010.

      David J. McTaggart, Wayne Clawater, Cruse, Scott, Henderson & Allen, LLP, Scott Nichols, Strasburger & Price, LLP, Houston, TX, Donald S. Stephens, James B. Edwards, Edwards & Associates, Stafford, TX, for Appellant.
    Andrew Todd McKinney IV, McKinney & Cooper, L.L.P., Spencer G. Maride, Vas-coe, Valdes & Maride, L.L.P., Houston, TX, for Appellee.
    Panel consists of Justices JENNINGS, HANKS, and BLAND.
   OPINION

JANE BLAND, Justice.

In this interlocutory appeal, we decide the proper deadline for filing an expert report corresponding to a defendant who is added to an existing lawsuit. Jerry Grubb, individually and as representative of the estate of Lonnie Grubb, sued Dr. Amilcar Avendano for wrongful death, negligence, and gross negligence. A year after filing the initial petition, Gnibb filed an amended petition, naming Dr. Daniel Stroud as an additional defendant. In the trial court, Dr. Stroud moved to dismiss the case against him, contending that Grubb did not serve him with an expert report within 120 days after filing the “original” petition, although he concedes that Grubb did so within 120 days of having sued him. See Tex. Civ. Prao. & Rem. Code Ann. § 74.351(a) (Vernon Supp.2009). The trial court denied Stroud’s motion to dismiss. We hold that amending a petition to name a defendant triggers the 120-day time period to serve that defendant with an expert report. We therefore affirm the order of the trial court.

Background

In September 2007, the Houston Northwest Medical Center admitted Lonnie Grubb due to his complaints of chest pain. After Dr. Avendano performed a cardiac catheterization he consulted with Dr. Stroud to evaluate Grubb for cardiac surgery. Although Grubb had been taking aspirin and Plavix, two anti-coagulants, Avendano and Stroud recommended a triple coronary artery bypass grafting, which Stroud performed. Grubb experienced excessive bleeding both during and after the surgery, leading to the build-up of blood between the heart muscles and heart sac, which required a second surgery by Stroud the next day. Grubb’s condition continued to deteriorate and he died of multisystem organ failure four days later.

Jerry Grubb, Lonnie’s daughter and the representative of his estate, sued Dr. Avendano for negligence, gross negligence, and wrongful death on July 7, 2008, and she simultaneously served Avendano with the expert report of Dr. Paul Dlabel. On July 22, 2009, Grubb filed her fourth amended original petition which, for the first time, named Dr. Stroud as a defendant. The next day, Grubb served Stroud with the expert reports of Dr. Dlabel, Dr. Alexander Stein, and Nurse Thomas Locke.

Stroud moved to dismiss, contending that the expert reports were untimely because Grubb did not serve Stroud with them within 120 days of filing the initial original petition against Avendano. Grubb responded that the 120-day time period to serve Stroud with an expert report runs from the filing of the fourth amended petition, which was the first petition to name Stroud as a defendant and assert claims against him. The trial court denied Stroud’s motion to dismiss, and Stroud filed this interlocutory appeal. See Tex. Crv. Prao. & Rem.Code Ann. § 51.014(a)(9) (Vernon 2008) (allowing an interlocutory appeal when a district court “denies all or part of the relief sought by a motion under section 74.351(b)”).

Discussion

Standard of Review

Ordinarily, we review a trial court’s decision on a section 74.351 motion to dismiss for abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). The trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). When the facts are undisputed, as they are here, we owe no deference to the trial court’s application of the law. The resolution of this appeal is limited to purely statutory interpretation, and thus we review the trial court’s ruling de novo. Torres v. Mem’l Hermann Hosp. Sys., 186 S.W.3d 43, 45 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, 794 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Timeliness of the Expert Report

The trial court concluded that Grubb timely served Stroud with an expert report because the 120-day time period to serve a defendant does not run from just any original petition, but instead runs from the first original petition to name that defendant. We agree with the trial court. The primary purpose of construing a statute is to give effect to legislative intent. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999). In determining this intent, we first look to the plain language of the statute, for “it is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.” Id. at 866. We also consider the object the Legislature sought to attain, the circumstances under which the Legislature enacted the statute, the legislative history, former statutory provisions, and the consequences of a particular construction. Tex. Gov’t Code Ann. § 311.023(l)-(5) (Vernon 2005); see also id. § 312.005 (“In interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.”). We presume that the Legislature intends for the entire statute to be effective and that its application yield a just and reasonable result. Univ. of Tex. Health Sci. Ctr. v. Gutierrez, 237 S.W.3d 869, 873 (Tex.App.-Houston [1st Dist.] 2007, pet. denied); Tex. Gov’t Code Ann. § 311.021(2)-(3) (Vernon 2005). When determining legislative intent, we do not examine a term or provision in isolation, but we instead read the particular statute as a whole. See State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002); see also Gutierrez, 237 S.W.3d at 873 (“Chapter 74, in its entirety, rather than provisions in isolation, must be considered, and meaning given to each provision consistent with all others.”).

Section 74.351(a) of the Civil Practice and Remedies Code provides that:

In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.

Tex. Civ. PRao. & Rem.Code Ann. § 74.351(a) (Vernon Supp.2009). A “health care liability claim” is a “cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care ... which proximately results in injury to or death of a claimant....” Id. § 74.001(a)(13) (Vernon 2005). If the plaintiff does not serve a defendant within 120 days of filing the original petition, the trial court shall dismiss the claim against the particular defendant with prejudice. Id. § 74.351(b) (Vernon Supp.2009).

Before 2005, section 74.351(a) required the plaintiff to serve the expert report within 120 days after filing a health care liability claim. See Act of June 11, 2003, 78 Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (amended 2005). The Texas Legislature amended this section, changing “claim” to “original petition,” to “clarify the timing of when an expert report is due.” Methodist Charlton Med. Ctr. v. Steele, 274 S.W.3d 47, 50 (Tex.App.-Dallas 2008, pet. denied). The Legislature rationalized the change as follows:

Since the passage of House Bill 4 in the 78th Session, there has been some confusion regarding the timing of when an expert report is due on a medical malpractice case. Some have argued that the report is due 120 days from the date of the statutory notice letter, instead of 120 days from the date of the filing of the original petition. It was the intent of HB 4 that the report be triggered by the filing of the lawsuit.

House Comm, on Civil Practices, Bill Analysis, Tex. H.B. 2645, 79th Leg., R.S. (2005). In holding that filing the claim, and not serving the pre-suit notice letter, triggered the 120-day expert report time period, the Texas Supreme Court acknowledged the 2005 amendment and stated that “[it] see[s] nothing in the slight change in the statute’s language to indicate that a different meaning was intended [by the change].” Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008).

The San Antonio Court of Appeals recently addressed the triggering date for expert reports when an amended petition names new defendants. See Osonma v. Smith, No. 04-08-00841-CV, 2009 WL 1900404, at *1-2 (Tex.App.-San Antonio July 1, 2009, pet. denied) (mem.op.). Our sister court held that filing the amended petition triggered the expert report requirement as to the newly named defendants, noting that section 74.351(a) “refers to the first-filed petition naming that defendant physician or health care provider as a party to the lawsuit.” Id. at *2; see also Padre Behavioral Health Sys., LLC v. Chaney, 310 S.W.3d 78, 84 (Tex.App.-Corpus Christi 2010, no pet. h.) (adopting San Antonio court’s reasoning in holding 120-day expert report window runs from amended petition first naming particular defendant).

In determining whether the Legislature intended to limit the expert report window to the 120 days after the first-filed petition, we must read the term “original petition” in the context of the remainder of the statute. See Gonzalez, 82 S.W.3d at 327. Section 74.351(a) prefaces the 120-day expert report requirement by stating “[i]n a health care liability claim.” Tex Civ. Prac. & Rem.Code Ann. § 74.351(a). The Legislature defined “health care liability claim” as a “cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care ... which proximately results in injury to or death of a claimant.” Id. § 74.001(a)(13); see also Mokkala v. Mead, 178 S.W.3d 66, 71 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (“A ‘health care liability claim’ is a ‘cause of action,’ not a lawsuit.”). When reading section 74.351(a) as a whole, the expert report requirement is not triggered until the claimant files a cause of action naming a particular physician; it is only then that the defendant becomes a “party” to a suit involving a health care liability claim. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (noting that report must be served on a “party” or a “party’s attorney”). Here, although Grubb’s fourth amended petition was not the first-filed original petition in the lawsuit, it was the first petition to assert a claim against Stroud, and thus was the original petition naming him as a party.

Stroud relies on three cases from our sister courts to support his contention that the 120-day time period runs from the first-filed original petition, regardless of whether that petition names the health care defendant for whom a report is required. In Maxwell v. Seifert, Maxwell asserted a negligence claim and did not serve an expert report within 120 days of filing her original petition. 237 S.W.3d 428, 425 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). Instead, the day before the hearing on Seifert’s motion to dismiss, Maxwell amended her petition to add two new liability claims for failure to disclose risks and res ipsa loquitur. Id. The Fourteenth Court of Appeals rejected Maxwell’s contention that amending her petition to add new claims gave her an additional 120 days to serve Seifert with an expert report, reasoning that section 74.351(a) “clearly require[d]” an expert report within 120 days of the original petition. Id. at 426. The Dallas Court of Appeals reached the same conclusion in Steele. 274 S.W.3d at 50. The Dallas Court noted that section 74.351(a) “necessarily limits the time for a party to add claims without the possibility of dismissal for failing to serve an expert report to 120 days from filing the original petition.” Id. In both Maxwell and Steele, the courts of appeals rejected an extension of the statutory deadline for parties already named in the lawsuit. This case is different: Grubb did not sue Stroud until she named him in the suit and made him a party to it. Only then did the statutory clock begin to run on her claim against Stroud.

The Legislature adopted section 74.351(a) to “remove unwarranted delay and expense, to accelerate the disposition of non-meritorious cases, and to give hard- and-fast deadlines for the serving of expert reports.” Campbell, 222 S.W.3d at 797. In enacting Chapter 74, the Legislature intended to “reduce excessive frequency and severity of health care liability claims, but ... in a manner that will not unduly restrict a claimant’s rights.” See Leland, 257 S.W.3d at 208; Hernandez v. Ebrom, 289 S.W.3d 316, 321 (Tex.2009) (“[B]y requiring timely expert reports, the Legislature intended to reduce frivolous claims; it indicated no intent to preclude meritorious claims.”). Adopting Stroud’s interpretation of section 74.351(a) would have the practical effect of prohibiting a claimant from adding additional defendants more than 120 days after filing the initial petition, even if the statute of limitations has not otherwise expired. We decline to adopt this interpretation when a reasonable one exists: the 120 days runs from the first petition to assert a claim against the particular defendant for whom an expert report is required. The latter interpretation comports with the entire statutory language of section 74.351(a), does not lead to absurd results, does not unduly restrict the rights of the claimant, and preserves the “hard and fast” expert report deadline that the Legislature intended.

Conclusion

We hold that the 120-day time period to serve a health care liability defendant with an expert report is triggered when the claimant first asserts a health care liability claim against that defendant in a petition. Because Grubb served Stroud with an expert report within 120 days of filing the amended petition in which she first asserted a health care liability claim against him, the trial court correctly denied Stroud’s motion to dismiss. We therefore affirm the order of the trial court.

      . We note that the Dallas Court of Appeals also has held that misidentification of a defendant and failed attempts to serve the defendant with citation do not extend the 120 day deadline. Lone Star HMA, L.P. v. Wheeler, 292 S.W.3d 812, 816 (Tex.App.-Dallas 2009, no pet. h.). Wheeler correctly identified the hospital in her second amended petition and successfully served it with citation two months after she filed the initial petition. Id. at 814. Wheeler served the hospital with an expert report within 120 days of serving the amended petition, but more than 120 days from filing the original petition. Id. at 815. The Dallas Court refused to apply the doctrine of misidentification to the service of an expert report, and held that section 74.351(a) "makes no exception for the time it takes to effectuate service of the lawsuit, nor does it address failed attempts to serve a lawsuit.” Id. at 816. In contrast, here, Stroud was not named until the fourth amended petition.


author: JIM R. WRIGHT, Chief Justice. JIM R. WRIGHT, Chief Justice.

text:
    Jeffrey Dee STEADMAN, Appellant, v. STATE of Texas, Appellee.
    No. 11-08-00183-CR.
    Court of Appeals of Texas, Eastland.
    June 10, 2010.
    Opinion Denying Rehearing Aug. 26, 2010.

      Jeffrey Dee Steadman, Beeville, pro se.
    Larry D. Robertson, Schulz & Robertson, Abilene, for Appellant.
    James Eidson, Dist. Atty., Patricia Dyer, Assistant Dist. Atty., Abilene, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

JIM R. WRIGHT, Chief Justice.

The jury convicted Jeffrey Dee Stead-man guilty of three out of four counts of aggravated sexual assault of a child younger than fourteen years and of two counts of indecency with a child, and assessed his punishment on each of the three aggravated sexual assault charges at ninety-nine years confinement and a $10,000 fine. The jury also assessed Steadman’s punishment on each of the two counts of indecency with a child at confinement for twenty years and a fine of $10,000. The sentences are to run concurrently. We affirm.

There is no challenge to the sufficiency of the evidence.

Former Abilene Police Detective Thomas Valdez testified that he began the investigation in this case after he received a telephone tip. After Detective Valdez had interviewed various persons, including the minor victim, he determined that Stead-man was a suspect in the offense. Detective Valdez left a message for Steadman, and Steadman later returned the call. Detective Valdez testified that Steadman was aware of the allegations. During Detective Valdez’s testimony, the prosecutor asked: “[D]id he admit or deny the allegations?” Detective Valdez answered: “No.” Steadman’s objection was overruled. Detective Valdez also told the jury that he and Steadman made an appointment for an interview but that Steadman did not show up.

In his first issue on appeal, Stead-man complains that the trial court reversibly erred when it overruled a Fifth Amendment objection that he made. Steadman argues that his Fifth Amendment rights were violated when the trial court allowed Detective Valdez to testify that Steadman neither admitted nor denied the allegations against him. We disagree.

On appeal, we review the trial court’s decision to exclude or to admit evidence under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App.2005). We will not reverse a trial court’s decision in that regard absent a clear abuse of discretion. Id. An abuse of discretion occurs when the decision of the trial court regarding the admission or exclusion of evidence is “so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Id.

The time frame to which Detective Valdez referred was at a time when Steadman had neither been arrested nor been given his Miranda warnings. The law is somewhat unsettled in this area, but we do have some guidance. Although the case involved post-Miranda silence, the Texas Court of Criminal Appeals has stated that “[p]rearnest silence is a constitutionally permissible area of inquiry.” Waldo v. State, 746 S.W.2d 750, 755 (Tex.Crim.App.1988). In another case, while the court found it unnecessary to address the question of the admissibility of pre-arrest silence, it did note that there were those federal courts of appeals that had held that pre-arrest silence is admissible. It also noted that there were other federal courts of appeals in which the opposite result was reached. Griffith v. State, 55 S.W.3d 598, 607 n. 33 (Tex.Crim.App.2001); see also State v. Lee, 15 S.W.3d 921, 924-25 n. 5 (Tex.Crim.App.2000) (referring to courts in various jurisdictions and their approach to comments upon the silence of a defendant when exercised at various stages in an investigation).

We also find direction from decisions in the federal courts of appeals. In United States v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir.1998), the silence commented upon occurred at a time before the defendant was arrested and before he had received any Miranda warnings, just as in this case. Further, the silence was not in response to any questioning by government officials, again, just as in this case. The court referred to the fact that, although the Supreme Court had not ruled on the exact issue before the Oplinger court and this court, that court has held that the government, for impeachment purposes, may properly comment upon a defendant’s pre-arrest silence. Oplinger, 150 F.3d at 1066 (citing Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980)). The court in Oplinger held that the pre-arrest/pr e-Miranda comments there did not offend the Fifth Amendment.

The court also discussed those situations in which an accused had received his Miranda warnings and chose to remain silent. In those situations, the government has, at least implicitly, told the accused that he has the right to remain silent and the exercise of the right would not be used against him. It would be fundamentally unfair to then use that silence against the accused. Id. at 1067 n. 5; United States v. Rivera, 944 F.2d 1563, 1567 (11th Cir.1991). That is not the case in pre-ar-rest/pre-Mircmda. situations. “There is no governmental inducement to remain silent and no promise that an individual’s silence will not be used against him.” Oplinger, 150 F.3d at 1067. The court reasoned that in such situations there was no fundamental unfairness. Id.

The Oplinger court recognized that the First, Seventh, and Tenth Circuits have held that comments upon pre-arrest silence violate the Fifth Amendment privilege against self-incrimination. Id. (citing United States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir.1991); Coppola v. Powell, 878 F.2d 1562, 1565-68 (1st Cir.1989); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1018 (7th Cir.1987)). “[T]he position those courts have endorsed is simply contrary to the unambiguous text of the Fifth Amendment, which plainly states that ‘[n]o person ... shall be compelled in any criminal case to be a witness against himself.’ (citing U.S. Const, amend. V).” Id. The court also noted that in the cases to which it referred wherein the position was taken that such testimony violated the Fifth Amendment, the party seeking to claim the privilege had been questioned by a governmental official. Id. at 1067 n. 6. That was not the case in Oplinger and that is not the case in this appeal.

The court in Oplinger noted that the Fifth and Eleventh Circuits share its opinion that comments upon pre-arrest/pre-Miranda silence do not violate the Fifth Amendment. Id. at 1067; see, e.g., Rivera, 944 F.2d at 1568 (“The government may comment on a defendant’s silence if it occurred prior to the time that he is arrested and given his Miranda warnings.”).

In United States v. Zanabria, 74 F.3d 590 (5th Cir.1996), the defendant was accused of possession of cocaine with the intent to distribute. Although the defendant did not testify, his wife did. She testified that the defendant acted under duress. They had been in financial trouble and had borrowed money from a certain individual. The defendant’s wife testified that threats had been directed toward their eight-year-old daughter, and in the face of those threats, the defendant engaged in this criminal activity only to pay back the money. At trial, the customs officer who arrested the defendant was allowed to testify that, prior to his arrest, the defendant said nothing about those threats or that he was in any kind of trouble. During closing argument, the prosecutor also referred to the fact that the threats were never mentioned. On appeal, the court said, “Assuming without deciding that [the defendant’s] pre-arrest silence falls within the reach of ‘testimonial communications’ protected by the fifth amendment, the record makes manifest that the silence at issue was neither induced by nor a response to any action by a government agent.” Zanabria, 74 F.3d at 593.

We agree with the reasoning of the courts in Oplinger, Rivera, and Zanabria. We hold, as stated by the court in Waldo, that pre-arrest silence of a defendant who has not received any Miranda warnings “is a constitutionally permissible area of inquiry.” We further hold that Stead-man’s pre-arrest/pre-Miranda silence was not the result either of interrogation or of his being compelled to be a witness against himself. Our holding is not to be taken to address those situations that involve comments upon a defendant’s posfiarrest/pre-Miranda silence or those involving silence during interrogation. We issue no holdings in connection with those issues. The trial court did not abuse its discretion. We overrule Steadman’s first issue.

In his second issue, Steadman maintains that the trial court erred when it overruled his objection and motion for mistrial directed at a portion of the State’s jury argument during the guilt/innocence phase of the trial. During closing argument, the prosecutor named the parties who had cooperated with Detective Valdez in this case. The prosecutor then argued, “The Defendant, knowing what Thomas Valdez was calling to talk to him about, did not ... deny.” Steadman’s attorney interrupted with an objection that such a statement constituted an improper comment on Steadman’s failure to testify. The State responded, “Prearrest silence is admissible and is proper jury argument under Waldo v. State (sic).” The trial court overruled the objection. The prosecutor then told the jury, “Everyone contacted cooperated, almost.” Steadman’s attorney again objected that such a statement was an impermissible comment on the defendant’s failure to testify. The trial court also overruled that objection. We review a trial court’s rulings on objections to jury arguments under an abuse of discretion standard. Cole v. State, 194 S.W.3d 538, 546 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). A trial court abuses its discretion when the ruling was “so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” McDonald, 179 S.W.3d at 576.

We agree with Steadman that the failure of a defendant to testify cannot be commented upon, directly or indirectly, during final jury argument. Garrett v. State, 632 S.W.2d 350, 351 (Tex.Crim.App. 1982). However, the allegedly offensive comment must be viewed from the jury’s viewpoint. Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App.2001). It must be clear that the comment refers to the defendant’s failure to testify. Id. The fact that the comment might be construed as an implied or indirect allusion is not sufficient. Id. The question “is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify.” Id. We must analyze the context in which the comment was made in order to determine “whether the language used was of such character.” Id,.

Proper areas of final jury argument are (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to arguments of opposing counsel, and (4) proper pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000).

When examined in context, it is clear that the prosecutor’s comment upon Stead-man’s failure to deny the allegations to Detective Valdez was not directed at Steadman’s failure to testify, but upon his failure to deny the allegations during the telephone conversation. It is also clear that the argument about who had cooperated with the detective clearly referred to the same conversation. The State’s argument to the trial court that pre-arrest silence was admissible under Waldo also referred to Steadman’s pre-arrest/pre-Mi-randa silence. We have held such silence to be a subject of proper inquiry. Because the evidence was admissible, a summation of that evidence is proper. Wesbrook, 29 S.W.3d at 115. Furthermore, the argument was a reasonable deduction from the evidence. Id. We overrule Steadman’s second issue.

The failure of the trial court to conduct a hearing on his motion for new trial is the subject of Steadman’s third issue. Stead-man timely filed a motion for new trial. There was no hearing, and the motion was overruled by operation of law. Steadman argues that the trial court should have held a hearing on the motion.

We review a decision to deny a hearing on a motion for new trial for an abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex.Crim.App.2009). There is no absolute right to a hearing on a motion for new trial. Id. at 338. If a defendant wants a hearing on his motion for new trial, he must present it to the trial court within ten days after he files it. Tex.R.App. P. 21.6; Carranza v. State, 960 S.W.2d 76, 79-80 (Tex.Crim.App.1998). He must put the trial court on notice that he wants the trial court to take some action on the motion. Carranza, 960 S.W.2d at 79-80. Merely filing the motion is not sufficient to constitute presentment. Id. at 80. Here, there is nothing in the record to show that Steadman brought the motion to the actual attention of the trial court. Because there is no showing that Steadman presented his motion to the trial court, he has not shown that the trial court erred when it did not conduct a hearing on the motion for new trial.

There is another reason that the trial court did not err. If a defendant raises only matters determinable from the record, a trial court does not abuse its discretion when it fails to hold a hearing on the motion for new trial. Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App.2006). Even if the defendant does raise matters not determinable from the record, the trial court may conduct the hearing upon affidavits only; it is not required to take oral testimony. Id.

In this case, the only matter alleged in the motion for new trial was the failure of the trial court to allow certain family members to remain in the courtroom during voir dire. Steadman attached an affidavit and certain pictures to the motion for new trial, and those pictures showed the layout of the courtroom. First, the trial court was aware of the seating in the courtroom. The record made during the trial contains detailed information about the number and location of available seats in the various parts of the courtroom. The issue was fully developed on the record, and the motion added nothing new. We overrule Steadman’s third issue.

In his fourth issue, Steadman asserts that the trial court committed error when it. excluded three of Steadman’s family members from the courtroom during voir dire. The Court in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), reviewed a case in which the public had been excluded from a motion to suppress hearing. The court noted that it had not decided the extent to which an accused could insist upon a public trial under the Sixth Amendment to the United States Constitution. Id. at 44, 104 S.Ct. 2210. It did however refer to various cases under the First Amendment to the United States Constitution in which it was decided that the press and the public had a qualified right under the First Amendment to attend a criminal trial. Id. One of those cases to which the court referred was Press-Enterprise Co. v. Superior Court of California Riverside County, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), a case decided under the First Amendment. The Court notes that, in that case, the First Amendment right was extended to voir dire proceedings. Id. at 44, 104 S.Ct. 2210. “[T]he explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.” Id. at 46, 104 S.Ct. 2210. Therefore, for purposes of this opinion, we will assume that the Sixth Amendment public trial provisions of the United States Constitution extend to voir dire proceedings.

In Waller, the Supreme Court set forth the test that should be used to determine the propriety of closure of proceedings to which the Sixth Amendment’s public trial provision applies: (1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceeding; and (4) it must make findings adequate to support the closure. Id. at 48, 104 S.Ct. 2210.

Originally, the trial court did not enter findings on the issues covered by the Waller test. We abated this appeal in order that the trial court might make those findings. We now have those findings.

The trial court entered findings regarding the size and configuration of the court-x’oom. Sixty venire persons had been summoned to the courtroom; there were sixty seats in the gallery area. The trial court was expecting an “emotionally charged” trial. The space on each side of the gallery area was very narrow, and anyone standing or sitting in that space would be in close proximity to one or more of the venire persons. The court found that, if the family members were in such close proximity to the jury panel members, it could make the panel members uncomfortable and reticent to fully express their feelings, attitudes, and possible prejudices.

The trial court also found that, although there was space for the family members to stand or sit in the area behind the bar and in front of the bench, that space is reserved for the court personnel and participants. Allowing others in this space would create security concerns, and security concerns were heightened in this case. Further, allowing others in this area would interfere with access that the bailiff and other security personnel would have to Steadman. The trial court apparently considered placing the family members in the jury box but found that would interfere with the process of seating the jurors as they were selected. As jurors would be selected, it would be necessary to move the family members from the jury box to the area behind the bar and in front of the bench, creating the same problems as if they had been allowed there originally. The trial court considered other courtrooms, but there were none larger than the one in which this trial took place. The trial court also considered the central jury room, but it was not suitably configured for a trial. Further, in addition to all of these findings, the trial court found that the central jury room was less secure than the courtroom they were using.

We hold that the trial court’s findings are sufficient to meet the Waller test. The one seeking to close the hearing was the trial court. In its findings, the trial court advanced an overriding interest that was likely to be prejudiced: security. The trial court did not make the closure any broader than necessary to protect that overriding interest; only a few family members were excluded, and that exclusion was only for the voir dire portion of the trial. The findings of the trial court also show that it considered other reasonable alternatives to closing the proceeding. The trial court explored the use of other courtrooms and other facilities in the courthouse and found each of those alternatives to be lacking as well. We hold that the trial court’s findings adequately support the closure under Waller. We overrule Steadman’s fourth issue.

We affirm the judgment of the trial court.

ON MOTION FOR REHEARING

JIM R. WRIGHT, Chief Justice.

In his motion for rehearing, in connection with his fourth issue, appellant has called our attention to the fact that, in our original opinion, we did not cite to the recent decision of the United States Supreme Court in Presley v. Georgia, — U.S. —, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010). He is correct; we did not. In Presley, the Court settled the question of whether the Sixth Amendment right to a public trial extends to jury voir dire proceedings. It does, and in our original opinion, we treated it in that manner. The Presley Court also held that the record in that case was not sufficient to show that the Waller test was satisfied. Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). However, we remain convinced that, under Waller, the trial court did not violate appellant’s right to a public trial either under the Sixth Amendment to the Constitution of the United States or Article I, section 13 of the Texas Constitution.

In his original briefing, appellant referred to the objection lodged at trial that the exclusion of the family members from the voir dire phase of the trial “violates our constitutional right to an open and fair jury under the U.S. Constitution and the state constitution.” He also refers to his objection that the district attorney’s investigator was sitting where the family members could have been sitting and that his objection was “based upon the Sixth Amendment of the Constitution of the United States and the Texas State Constitution.” He also makes record references to photographs of the courtroom. Assuming error, appellant then argued the harmful nature of it. With the exception of appellant’s argument regarding harm analysis, which we did not need to reach, and matters raised for the first time in appellant’s motion for rehearing, we have addressed all of appellant’s other claims in our original opinion.

Appellant’s motion for rehearing is denied.

      . Steadman makes no state constitutional claims. All references to the Fifth Amendment are to U.S. Const, amend. V.

      . All references to Miranda refer to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: TERRY McCALL, Justice.

text:
    Christopher Lamont TAYLOR, Appellant, v. STATE of Texas, Appellee.
    No. 11-08-00307-CR.
    Court of Appeals of Texas, Eastland.
    July 8, 2010.
    Discretionary Review Refused Sept. 22, 2010.

      Chuck Lanehart, Chappell, Lanehart & Stangl, Lubbock, for appellant.
    Ann Reed, Dist. Atty., Amos W. (Trey) Keith, Assistant, Sweetwater, Jeffrey L. Van Horn, State Prosecuting Atty., Austin, for appellee.
    Panel consists of: McCALL, J., STRANGE, J., and BOYD, S.J.

      . John T. Boyd, Retired Chief Justice, Court of Appeals, 7th District of Texas at Amarillo, sitting by assignment.

   OPINION

TERRY McCALL, Justice.

The jury convicted Christopher Lamont Taylor of possession with intent to deliver a controlled substance and assessed his punishment at eighty years confinement in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000. In his one issue on appeal, appellant argues that the evidence was legally insufficient to support his conviction. Specifically, he asserts that the testimony of the confidential informant was not corroborated by other evidence tending to connect appellant with the offense as required by Tex.Code Crim. PROC. Ann. art. 38.141 (Vernon 2005) (known as the “Tulia Law”). We reverse and render a judgment of acquittal.

Background Facts

The confidential informant, Brandon Thomas Pritchett, had been arrested in Nolan County for possession of cocaine. While in the county jail, Pritchett was contacted by Investigator David McDonald of the Nolan County Sheriffs Department. Pritchett agreed to buy drugs in exchange for an agreement that, if he made three cases, he would not be prosecuted for his offense.

On the day in question, Pritchett met with Investigator McDonald and another investigator, Leo Adrian Huddleston, at a communications tower on the east side of Sweetwater. Investigator Huddleston had at one time been employed by the Drug Task Force in Abilene but had retired from that position. The officers searched Pritchett, fitted him with a wire electronic recording and transmitting device, and gave him $200 to purchase cocaine.

Investigator Huddleston was the first witness. He testified that he drove Pritch-ett to the corner of Fisher and Alabama, which was about one block from the target residence of 801 Haskell where the officers thought that Pritchett might find appellant. He dropped Pritchett off shortly after 4:00 p.m. Investigator Huddleston could see two people in the yard of the Haskell Street house, but he did not know who they were. Investigator Huddleston testified that, after he dropped Pritchett off, he subsequently “was trying to stay away from the house.” He acknowledged that he never identified anyone who was at the house and that only Investigator McDonald was able to hear from the wire transmitter on Pritchett. He testified that he never saw appellant or Pritchett go in or come out of the house. He acknowledged that no law enforcement officer conducted any surveillance of the house.

Investigator Huddleston said that Investigator McDonald called him on his cell phone when the drug transaction was over. He picked Pritchett up a couple of blocks north of the corner where he had dropped Pritchett off. Pritchett gave him ten clear zip lock packages with a white powder in them, and then they drove out to the communications tower to meet Investigator McDonald.

Pritchett was the second witness. When he walked up to the front yard of the house at 801 Haskell Street, there were people in the front yard, but he did not remember how many. He said that appellant and a female named Crystal Ann were there. They were arguing. Appellant opened the door, and Pritchett went into the living room. He asked appellant “if he had any work.” Pritchett explained to the jury that “work” meant drugs like cocaine. Appellant asked Pritchett if he was wired and then patted him down. Pritchett thought that appellant might find the wire, and he was scared. Pritchett testified that appellant then gave him the “work” and that he gave appellant the $200 for the ten bags of coke.

Pritchett testified that he had listened to the recording that was made that day. He listened to it the day before the trial. Although the recording was not played while Pritchett was on the witness stand and he did not identify the recording, he testified that the voices on the recording he listened to belonged to him, appellant, Crystal Ann, Investigator Huddleston, and Investigator McDonald.

Pritchett testified that he knew appellant did not live at 801 Haskell Street, that appellant lived in Lubbock, and that the house belonged to appellant’s father. On cross-examination, Pritchett was asked:

Q: Is there any other way besides your testimony, besides you telling this story, is there anybody at [sic] any other way to tell whose voice is whose on that tape?
A: No, I guess not.

Pritchett never identified any particular recording in court. He was never asked about, nor was he shown, State’s Exhibit No. 3, and he did not identify any voices in court except for his statement in reference to a tape that he had heard the day before.

Investigator McDonald testified that he did not see appellant that day and did not see Pritchett walk up to the house or walk away from the house. He stated that his role was to listen to the recording device; he was not assigned to watch Pritchett go to the house. He testified that he thoroughly searched Pritchett when they met the first time at the communications tower. Investigator McDonald said he was in a separate undercover vehicle and parked at a “covert location” in the 1200 block of Alabama Street, just southeast of Jones Park in Sweetwater. He stated that they targeted 801 Haskell Street because they believed appellant would be there. But he did not say why the officers believed that appellant might be at that location.

Investigator McDonald identified State’s Exhibit No. 3 as the Sony disk that was used to transmit and record the conversations that day. He confirmed that he had listened to the recording more than once and admitted that the recording was somewhat distorted. He could identify the voices of Pritchett and Investigator Hud-dleston, but none of the other voices on the recording. He did hear Pritchett address someone as “Chris” several times. Investigator McDonald said that, when they met back at the communications tower, he was given the ten packets from Investigator Huddleston; that he stored them in the Nolan County Sheriffs Office property room; and that he then subsequently delivered them to the DPS laboratory in Abilene for analysis.

The last witness for the State was William Chandley, a chemist with the Department of Public Safety in Abilene. He testified that the ten packets contained 3.44 grams of cocaine.

The Recording

The jury listened to the recording during Investigator McDonald’s testimony. The recording is of extremely poor quality. Much of the recording is unintelligible. Without the testimony of the confidential informant Pritchett, it would be impossible to understand from the recording what was taking place other than two or more people arguing. There are at least five voices on the recording. The name “Chris” is stated five times on the recording according to the State’s transcription. From Pritchett’s testimony, we understand that he said the name “Chris” once or twice and that other unidentified people said the name “Chris” at other times.

Because the State also recognized the extremely poor quality of the recording, it provided to the jury a transcript of the recording. Whoever typed the transcript also could not understand a substantial portion of the recording. From the transcript, it appeared that there was an argument between a woman and someone named Chris. The transcript noted that a woman was screaming and then an unknown man said, “Quit Chris.” The next mention of “Chris” is Pritchett asking, “What’s up Chris?” There is more arguing, and then one voice said, “Quit Chris, he’s gonna hurt you girl,” and another voice said, “Chris your [sic] gonna hurt this girl.” But the transcript does not reveal that a drug transaction took place, only that there was a mention of $200.

Although the transcript does not mention “work,” we did hear one voice ask about “work” on the recording. Also, that same voice said, “Thanks Chris,” near the end of the recording. Investigator McDonald did testify that Pritchett referred to someone as “Chris,” that Pritchett used the term “work” for cocaine, and that there was a reference to $200 twice or possibly three times on the recording.

Standard of Review

In his sole issue on appeal, appellant argues that the evidence was legally insufficient to support his conviction because it was based on the testimony of a confidential informant and the State presented no other evidence tending to connect appellant with the cocaine purchase. Article 38.141 provides in part:

(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.

The Texas Court of Criminal Appeals in Malone v. State, 253 S.W.3d 253 (Tex.Crim.App.2008), held that the standard for evaluating sufficiency of the evidence for corroboration under the accomplice-witness rule applies when evaluating sufficiency of the evidence for corroboration under the covert agent rule. Thus, we must exclude the testimony of the confidential informant from consideration and examine the remaining evidence to determine whether there is evidence that tends to connect appellant to the commission of the offense. 253 S.W.Bd at 258.

The corroborating evidence does not have to directly link appellant to the crime or establish his guilt beyond a reasonable doubt. Smith v. State, 211 S.W.3d 476, 478 (Tex.App.-Amarillo 2006, no pet.). The corroborating evidence need only connect appellant to the offense. The review of the corroborating evidence is done in the light most favorable to the verdict. Smith, 211 S.W.3d at 478.

As stated in Young v. State, 95 S.W.3d 448, 451 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd), confidential informants may have incentives to create criminal cases or shade their testimony in favor of the State in the hope that they will be rewarded with greater leniency later on. Here, Pritchett had an agreement with the prosecutor that, if Pritchett made three cases through “buy busts,” Pritchett would not be prosecuted for his possession of cocaine.

Analysis

The non-covert agent evidence is limited. Investigator McDonald and Investigator Huddleston searched Pritchett prior to the transaction to ensure that he did not have any drugs before his contact with appellant. They provided him with $200 and a wire electronic transmitter that also records conversations. Neither officer saw appellant that day, nor did they see Pritchett enter into and leave the house at 801 Haskell Street. Investigator Huddleston stated that there was no surveillance of the house by law enforcement unless Investigator McDonald did it. But Investigator McDonald testified that he was at a remote location and that he was not assigned to watch the house. He testified that his role was to listen, from a covert position, to the conversations involving Pritchett.

The quality of the recording is extremely poor. It reflects that Pritchett said, “What’s up Chris?” to someone; that he asked, “You got some work, Dog?”; and that later he said, “I really appreciate it Chris.” Except for confidential informant Pritchett’s testimony, we don’t know to whom he was talking when he said the name of Chris. There is no corroborating evidence that appellant was that “Chris.”

Pritchett testified that the house at 801 Haskell Street belonged to appellant’s father and that appellant lived in Lubbock. However, except for his testimony, there is no evidence connecting appellant to the house. The officers testified that they expected appellant to be at that house, but they gave no reason for that statement. There was no testimony concerning why the officers thought that appellant might be dealing in drugs.

In Malone, there were two confidential informants, Jason Harris and Christopher Olaehia, who were to make the controlled buy of crack cocaine from Malone. Investigator Jay Grimes followed them in an unmarked patrol car, watching them the entire way. Investigator Grimes watched Harris and Olaehia join Malone as he helped a woman free her car from the mud in Malone’s driveway. He also watched Malone, Harris, and Olaehia enter Malone’s house with Malone’s permission As in the present case, there was no identification of the voices on the tape recording except the description of what occurred by the confidential informant. But even without that testimony, the jurors could rationally connect the voices on the recording to the corresponding persons.

Investigator Grimes identified Malone and placed him in front of his house helping an unnamed woman get her car out of the mud. Mindful of the entry of Malone’s voice on the tape at that point, the jurors could follow the voices on the tape. They could identify Malone as the person who told Harris and Olachia to “come in and wait” while he “put it together” and who later told Olachia, “Y’all going to be, ‘Cooked to customer satisfaction.’ ” Thus, the Malone court held that the corroborating evidence sufficiently tended to connect Malone to the delivery of the crack cocaine.

The record before us does not reflect that either officer knew appellant. Even if one of them did, neither officer saw appellant that day. Neither officer saw Pritch-ett approach or leave the house at 801 Haskell Street. The facts in this case are very similar to those in Young, where the court held that the evidence was legally insufficient to sustain the defendant’s conviction. 95 S.W.3d 448.

In Young, the informant was searched and outfitted with a recording device, just as in this case. The officer stopped following the informant when he turned to go to a residence on a county road where the officers believed the defendant lived. It was undisputed that the confidential informant went alone to a house to make the cocaine transaction. No officer saw where the informant went that day. The informant identified the defendant as the person who sold him the cocaine he brought back to the officer. The informant identified the defendant as one of the voices on the tape recording, but no one else identified the defendant’s voice on the tape. The court indicated that the jury was able to listen to an audio recording of a possible cocaine transaction but that, without the informant’s identification of the defendant’s voice, there were only unidentified voices on the recording. Id.

In Young, as here, the officers gave the confidential informant money to purchase cocaine from the defendant. The officers believed that the confidential informant would find the defendant at a residence in the area where they had followed the confidential informant just as the officers here believed that appellant would be at 801 Haskell Street. As in this case, after the confidential informant returned, he identified the defendant as being the person who sold him the cocaine, and the defendant was subsequently arrested. In Young, as here, no one except the confidential informant identified the defendant’s voice on the tape. Young, 95 S.W.3d at 450.

Without Pritchett’s testimony, there is no evidence that appellant was the “Chris” at 801 Haskell Street that day. Without Pritchett’s testimony, we would not know that he went to 801 Haskell Street or how appellant was connected to that house. The same was true in Young: no witness except the confidential informant testified that the confidential informant entered the defendant’s house or that a cocaine transaction took place there. Young, 95 S.W.3d at 451-52.

We hold that the evidence was legally insufficient to sustain appellant’s conviction. Appellant’s issue is sustained.

This Court’s Ruling

We reverse the judgment of the trial court and render a judgment of acquittal.