text:
    Antonio VARGAS and Vista Hills Health Care Center, L.P., Appellants, v. Maria Lourdes CHAVEZ, by and through her Agent Under Power of Attorney, Jessica CHAVEZ, Appellee.
    No. 08-09-00139-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 20, 2010.

      Michael V. Brophy, The Brophy Law Firm, P.C., Sugar Land, TX, for Appellants.
    David A. Bonilla, El Paso, TX, for Ap-pellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Appellants’ Antonio Vargas and Vista Hills Health Care Center appeal the trial court’s denial of their motion to dismiss for failure to file a medical expert report. Because we conclude the case was rendered moot by Appellee’s motion for non-suit, we will reverse the trial court’s order and dismiss the case.

Appellee, Jessica Chavez, filed the underlying lawsuit on January 11, 2008, alleging the negligence of Antonio Vargas, and his employer, Vista Hills Health Care Center, caused her mother to be seriously injured. Appellants generally denied Ms. Chavez’s claims. On June 20, 2008, Appellants jointly filed a motion to dismiss the case pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code on the basis that Ms. Chavez failed to timely file a medical expert report.

On July 1, 2008, Ms. Chavez filed a “Motion to Dismiss” in which she represented to the court that she no longer wished to proceed against Appellants, and requesting the court dismiss the cause of action without prejudice. Thereafter, on October 9, 2008, Ms. Chavez filed an amended original petition under the original cause number, asserting the same negligence cause against Appellants. Appellants responded by filing a motion to strike the amended pleading in light of Ms. Chavez’s motion to dismiss, and her failure to file a medical expert report. The trial court entered an order denying Appellants’ motions on April 14, 2009. Appellants’ timely, filed their notice of interlocutory appeal pursuant to Texas Civil Practice and Remedies Code Section 51.014(a)(9).

Appellants raise three issues for our review. Issues One and Two address the trial court’s ruling on Appellants’ Chapter 74 motion to dismiss. Alternatively, in Issue Three, Appellants characterize Ms. Chavez’s motion to dismiss as a non-suit, and contend the non-suit rendered any case and controversy which existed between the parties moot. Because it is dispositive of the appeal, we will begin our review with Issue Three.

In Issue Three, Appellants argue Ms. Chavez’s Motion to Dismiss constituted a motion for non-suit, rendering her subsequent filings and cause of action moot. Ms. Chavez argues the non-suit was ineffective because she abandoned the motion prior to sending notice to the opposing parties, and prior to the trial court entering an order on the motion.

In Texas, parties have an absolute right to non-suit their own claims for relief at any time during the litigation until they have introduced all evidence other than rebuttal evidence at trial. Tex. R.Civ.P. 162; Villafani v. Trejo, 251 S.W.3d 466, 468-69 (Tex.2008). The purpose of a non-suit is to dismiss a party’s claims, thereby extinguishing the movant’s ease against the non-movants. See University of Texas Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex.2006)(per curiam). A non-suit is effective from the moment the motion is filed, or an oral motion is made in open court. Id. The granting of the motion is a ministerial act, and does not alter the effectiveness of the motion at, “the moment a written motion is filed or an oral motion is made in open court....” Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex.1982) (per curiam). Only pleadings filed by the non-movant prior to the non-suit survive the effect of the motion. See Trejo, 251 S.W.3d at 468-69; Progressive Ins. Co. v. Hartman, 788 S.W.2d 424, 426 (Tex.App.-Dallas 1990, no pet.).

Ms. Chavez does not dispute the fact that she filed a non-suit dismissing her claims against Appellants. Instead, she argues in part that her non-suit was not effective because she “abandoned” it before she could notify the other parties in accordance with the rules of civil procedure.- Texas Rules of Civil Procedure 162 requires a non-suiting movant to notify any party that has answered, or has been served with process, in accordance with the requirements of Rule 21a. Tex. R.CivP. 162. However, the Rule does not indicate that the movant’s right to non-suit is dependant on the required notice. See Tex.R.Civ.P. 162; Novosad v. Cunningham, 38 S.W.3d 767, 772 (Tex.App.-Houston [14th Dist.] 2001, no pet.). By the same token, the Rule does not indicate that the time the non-suit becomes effective depends on whether, or when, the other parties receive notice pursuant to Rule 162. See Tex.R.Civ.P. 162; Orion Inv., Inc. v. Dunaway and Assoc., Inc., 760 S.W.2d 371, 374 (Tex.App.-Fort Worth 1988, writ denied). We conclude therefore, that the effect of Ms. Chavez’s non-suit was unaltered by her failure to comply with the notice requirements.

In her second argument, Ms. Chavez concludes that the non-suit was ineffective because she filed her amended petition before the trial court entered an order dismissing her claims against Appellants. She cites no case-law for the proposition that a non-suited case can be re-invigorated by the movant’s decision to “abandon” the non-suit and file a subsequent pleading against the non-suited parties. We have been unable to locate such precedent.

As we noted above, a non-suit is effective from the moment the motion is filed; and the granting of the motion is a ministerial act which does not alter the effectiveness of the motion. See Brookshire, 640 S.W.2d at 872. As such, Ms. Chavez’s claims against Appellants ceased to exist at the time she filed her non-suit. Whether or not the trial court complied with its ministerial duty to enter an order dismissing the claims did not change the effect of the non-suit, which was to extinguish Ms. Chavez’s claims against Appellants. See Brookshire, 640 S.W.2d at 872. We are therefore unpersuaded by Ms. Chavez’s second argument, and we sustain Issue Three.

Having sustained Issue Three, it is not necessary to address the merits of Appellants’ motion to dismiss as presented in Issues One and Two. Those issues are overruled as moot. Still, given the disposition of Issue Three, we must still determine how to properly dispose of the appeal. As a general matter, a court has no subject matter jurisdiction to consider a case in which no actual case or controversy exists between the parties. See Lincoln Prop. Co. v. Rondos, 110 S.W.3d 712, 715 (Tex.App.-Dallas 2003, no pet). However, as the Texas Supreme Court has recently recognized, in cases where a previously live controversy, is extinguished by a non-suit, the court retains “limited authority to dispose of the case.” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 865 (Tex.2010). This limited jurisdiction includes the power to consider a defendant’s motion for certain types of sanctions. See Joachim, 315 S.W.3d at 864, citing Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex.1996)(per curiam)(holding that the trial court’s authority to consider a defendant’s motion for sanctions under Texas Rules of Civil Procedure 13 survived plaintiffs non-suit). In this case, there is no record of such a sanctions motion in this case, and the parties do not argue that any such claims survived the non-suit. Accordingly, there was no controversy remaining between the parties, and the case should have been dismissed. See Kondos, 110 S.W.3d at 715.

Having sustained Issue Three, we reverse the trial court’s order denying Appellants’ motion to dismiss and render judgment dismissing the case without prejudice.

      . Whether or not a Section 74.351 motion to dismiss with prejudice is a type of "sanction” that survives a non-suit was not addressed by the Court in Travelers Ins. Co. v. Joachim. Similarly, the issue has not been addressed in the briefing in this case. Therefore, pursuant to the limitations impressed upon this Court by the rules of Appellate Procedure, we express no opinion on a trial court’s authority to consider a Section 74.351 motion to dismiss with prejudice following a non-suit. See Tex. R.App.P. 38.1(0 and (i).


source: Caselaw Access Project

author: DAVID WELLINGTON CHEW, Chief Justice.

license: Public Domain

text:
    BROWNHAWK, L.P., Appellant, v. MONTERREY HOMES, INC., Appellee.
    No. 08-08-00190-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 27, 2010.

      Rene Ordonez, Blanco, Ordonez & Wallace PC, El Paso, TX, for Appellant.
    Christopher R. Johnston, Firth, Johnston, Martinez, John P. Mobbs, Attorney at Law, El Paso, for Appellee.
    Before CHEW, C.J., McCLURE, J., and BRAMBLETT, Judge.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Brownhawk, L.P. (“Brownhawk) appeals a breach of contract judgment in favor of Monterrey Homes, Inc. (Monterrey”) in the amount of $225,000, plus pre-judgment interest and attorney’s fees. In three issues, Brownhawk challenges the trial court’s findings of fact and conclusions of law and its attorney’s fees award.

In September 2007, Brownhawk, a real estate developer, and Monterrey, a residential construction company, entered into an agreement for Monterrey to purchase an unimproved tract of land in El Paso County for development of the “Dos Pal-mas” subdivision. The parties signed an earnest money contract for the property on September 21, 2006 (“the contract”). Monterrey agreed to pay $2,250,000 for the property, and Brownhawk agreed to convey the property to Monterrey including certain improvements which were to be completed by Brownhawk, in a “good workman-like manner” on or before May 31, 2007. The improvements were specified as follows: (1) Brownhawk would complete all earthwork and grading, as specified by the subdivision plan; (2) install all sidewalks, streets with curbs, and gutters; and (8) install all utilities as appropriate for a residential subdivision.

The contract contained a general termination or “default” provision which provided each party with the right to terminate the contract, seek specific performance, or seek other remedies as provided by law, for breach by the other party. In a separate section, the contract also gave Monterrey the right to terminate the contract and receive a full refund of the earnest money if Brownhawk failed to complete the improvements by the date specified. The contract also provided for the recovery of attorney’s fees for the prevailing party should a default lead to litigation.

Final closing on the improved property was scheduled to take place “on or before 15 days after completion of development.” Upon signing the agreement, Monterrey immediately deposited $25,000 into an escrow account. Later, in accordance with the contract, Monterrey deposited another $200,000 into escrow after the City of El Paso approved the preliminary subdivision plat. Over the next few months, the parties negotiated numerous changes to the configuration of the subdivision plat which required re-submission of the amended subdivision plat for the city’s approval. The city approved the change, but required the parties to install a “drainage flume” to accommodate the reduction.

With the newly approved subdivision plans approved, the parties signed an amendment to the contract to further specify their responsibilities prior to closing. The amendment, signed April 30, 2007, changed the property description to reference the updated subdivision plans approved by the city, and made several changes to the closing provisions. First, the amendment extended Brownhawk’s deadline for its initial construction obligations to May 30, 2007, with an automatic forty-five day extension if Brownhawk was unable to meet the amended deadline. The amendment specified that closing would take place within fifteen days of “Completion of Development” and further specified that “Completion of Development” would occur when Brownhawk completed the following: (1) all earthwork and grading as required by the Developer/Builder plan (attached to the amendment as Exhibit A); (2) all streets with curbs and gutters and all sidewalks shown on the Developer/Builder Plan as “By Developer;” (3) all utilities for a residential subdivision as specified by the Developer/Builder Plan; and (4) all “By Developer” retaining walls according to the Developer/Builder Plan. Monterrey, in turn, took responsibility for construction of all rock or retaining walls between lots, all rock or retaining walls noted as “By Builder” on the Developer/Builder Plan, and construction of sidewalks along Dos Pal-mas Drive, also specified as “By Builder.” Monterrey agreed it was responsible for completing the “Builder’s Improvements” even if they were not completed by closing, and further agreed that closing would not be delayed in any way by its failure to complete those improvements. Finally, the amendment provides an additional termination provision for Monterrey. In the event Brownhawk was unable to complete its improvements by the extended completion date, Monterrey could terminate the contract by written notice to Brownhawk, or negotiate another extension. If Monterrey chose to terminate the contract, it was entitled to a refund of any remaining escrow funds, subject only to Monterrey’s decision to exercise its right to purchase certain lots prior to closing (Monterrey’s “Early Purchase Right”). The amendment does not specifically reference the drainage flume construction.

The parties never closed on the property. On September 12, 2007, Brownhawk filed suit against Monterrey for breach of contract, alleging that despite the completion of “virtually all” of its own construction obligations, Monterrey failed to complete construction of the “By Builder” projects, and prevented Brownhawk from securing a final inspection from the City of El Paso. Monterrey counter-claimed with its own breach of contract claim, alleging that Brownhawk failed to meet the extended completion deadline provided by the contract amendment, and that it had exercised its right to terminate the agreement by written notice sent to Brown-hawk on August 16, 2007.

The case was tried to the bench beginning on April 21, 2008. On April 80, 2008, at the close of evidence, the trial court ruled in favor of Monterrey on its counterclaim and awarded $225,000 plus interest and attorney’s fees. The trial court also awarded Monterrey $49,450 for attorney’s fees, with additional contingent awards in the event of Brownhawk’s unsuccessful appeals to this Court and the Texas Supreme Court. Following entry of the judgment, the court entered findings of fact and conclusions of law.

The following findings are key to the disposition of this appeal:

5. Time was of the essence under the Contract.
6. [Pursuant to the Amendment] ... Brownhawk was required to complete all the enumerated improvements no later than August 14, 2007 if the automatic extension was utilized. Time was again of the essence pursuant to the Contract Amendment.
8. [As of August 16, 2007] Brownhawk had not completed all the earth work and grading, nor had Brownhawk completed all the sidewalks, curbs and gutters.
10. [0]n August 14, 2007 the subdivision could not have passed final inspection and would not have been accepted by the City of El Paso.
13. In a letter dated August 16, 2007, Monterrey sent notice to Brown-hawk electing to terminate the Contract. As part of the notice Monterrey demanded that Brown-hawk release the escrowed amount of $225,000.... Brownhawk refused.
14. Brownhawk alleged that pursuant to revised plans that were filed with the City that Monterrey was supposed to construct a flume for drainage prior to the subdivision final inspection. Such revisions to the plan, however, were added after the plans to the Amendment were signed and without Monterrey’s permission or knowledge. When confronted with this revision, a representative of Brownhawk agreed that Brownhawk would follow the original plans attached to the Amendment.
15. Brownhawk breached the Contract when it failed to return the escrow money to Monterrey.
16. Monterrey did not breach the contract.

Brownhawk has appealed the court’s judgment, and in its first two issues presented to this Court, Brownhawk challenges the legal and factual sufficiency of the evidence supporting findings fourteen, fifteen, and sixteen. In its third issue on appeal, Brownhawk challenges the legal and factual sufficiency of the trial court’s attorney’s fees award. We will address Issue Two first.

Brownhawk presents Issue Two as a challenge to the legal and factual sufficiency of the evidence supporting the trial court’s fifteenth and sixteenth findings, i.e., that Brownhawk did breach the contract, and that Monterrey did not. Brown-hawk contends that Monterrey’s failure to construct the “by builder” improvements, including the “drainage flume” constituted a material breach of the contract, thereby excusing Brownhawk’s failure to complete its performance. Brownhawk concludes, therefore, that the evidence is legally and factually insufficient to support the trial court’s finding that it breached the agreement, and Monterrey did not. Because the record demonstrates that the operative material breach was Brownhawk’s failure to complete its construction obligations by the extended completion deadline provided by the contract amendment, we disagree.

A trial court’s findings of fact are reviewable for legal and factual sufficiency under the same standards of review used to review the sufficiency of the evidence supporting a jury’s findings. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). The standard and scope of review applicable to a particular sufficiency challenge depends on whether or not the appellant bore the burden of proof for the challenged issue at trial. See Quick v. Plastic Solutions of Texas, Inc., 270 S.W.3d 173, 181 (Tex.App.-El Paso, no pet.). Regardless of a party’s designation of a sufficiency point, we are required to review each attack in its proper context. O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 113-14 (Tex.1976).

Brownhawk’s attack on finding sixteen (Monterrey did not breach), represents an attack on a finding for which Brownhawk had the burden of proof at trial. See Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 758 (Tex.App.-El Paso 2000, no pet.)(noting the non-claimant’s breach is an essential element of a breach of contract cause of action). We will review the sufficiency of the evidence supporting finding sixteen under the “matter of law” and “against the great weight and preponderance” standards. See Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275-76 (Tex.App.-Amarillo 1988, writ denied). To sustain a “matter of law” challenge, the reviewing court must conclude both that there is no evidence to support the adverse finding and that the contrary proposition is established as a matter of law. See Marrs & Smith P’ship v. D.K Boyd Oil & Gas Co., Inc., 223 S.W.3d 1, 13-4 (Tex.App.-El Paso 2005, pet. denied). A matter of law point will only be sustained if both analytical steps are satisfied. Id.

When a party with the burden of proof challenges the factual sufficiency of an adverse finding, the appropriate complaint is that the finding is “against the great weight and preponderance of the evidence.” Tate v. Tate, 55 S.W.3d 1, 5 (Tex.App.-El Paso 2000, no pet.). Such a challenge will be sustained only if the reviewing court concludes the non-finding is against the great weight and preponderance of the evidence. Ames v. Ames, 776 S.W.2d 154, 158 (Tex.1989). The fact finder’s determination should be upheld if there is some probative evidence to support it, and the contrary evidence does not outweigh the supporting evidence to such a degree that the finding “shocks the conscious,” or constitutes a manifest injustice. See Kimsey v. Kimsey, 965 S.W.2d 690, 699-700 (Tex.App.-El Paso 1998, pet. denied). The reviewing court will consider and weigh all the evidence, and must remain mindful of the deference owed to the fact finder’s resolution of issues related to the weight and credibility attributed to witness testimony. See Tate, 55 S.W.3d at 5; Marrs & Smith P’ship, 223 S.W.3d at 14.

With respect to finding number fifteen (Brownhawk breached), Issue Two raises a “no evidence” legal sufficiency challenge, and an “insufficient evidence” factual sufficiency challenge. See Raw Hide Oil & Gas, 766 S.W.2d at 275-76. Under the “no evidence” standard the court’s review is generally limited to the evidence and inferences in support of the finding, and is conducted in the light most favorable to the finding. See Kimsey, 965 S.W.2d at 699-700. Such a challenge will be sustained only if the reviewing court concludes there is no more than a “mere scintilla” of evidence to support the finding. See id. at 700. An “insufficient evidence” challenge will be sustained only if the supporting evidence is so weak that the finding is clearly wrong and manifestly unjust. See Raw Hide Oil & Gas, 766 S.W.2d at 276. The scope of review includes all the evidence, both in favor of and contrary to the finding. Kimsey, 965 S.W.2d at 700.

Based on its singular argument that Monterrey materially breached the contract by failing to complete its construction projects, Brownhawk concludes its own breach was excused, and that findings fifteen and sixteen are without evidentiary support. In essence, this argument is an attack on the trial court’s interpretation of the parties obligations under the contract and the amendment. As such, the language of the instruments themselves will be the central focus of our analysis. See Mustang Pipeline Co. Inc. v. Driver Pipeline Co., Inc., 134 S.W.3d 195, 199-200 (Tex.2004).

"When a contracting party fails to perform a material obligation, the other party’s subsequent failure to perform is excused. See Driver Pipeline Co., Inc., 134 S.W.3d at 199-200. In breach of contract disputes involving breach on both sides of an agreement, the fact finder must often determine not only whether the parties breached their agreement, but also who breached first. See Driver Pipeline Co., Inc., 134 S.W.3d at 199-200 (in cases where both parties are in breach of their agreement, the proper inquiry is not whether each party materially breached the agreement, but which material breach occurred first). This is because the chronology of the material breaches determines which party is released from its obligations, and which party is hable for contract damages. See id.

The terms of the original contract defined three separate dates defining the parties’ performance. First, the contract required the “closing date” to take place on or before fifteen days after the completion of development. The closing date was only to take place after Brownhawk completed the improvements specified in the “Special Provisions” paragraph. In turn, the parties originally agreed the “completion date” for those improvements was May, 31, 2007. There is no dispute that Brownhawk did not meet the first completion date. The parties then agreed, by amendment, to extend Brownhawk’s completion deadline to June 30, 2007, and included an additional automatic extension to August 14, 2007. Again the parties agreed that closing was dependant on completion of development, and completion of development was defined as completion of Brown-hawk’s improvements. Monterrey was given the option to terminate the agreement if Brownhawk was not able to complete the improvements by the amended completion deadline.

Monterrey attempted to exercise its right to terminate the contract on August 16, 2007. According to the contract terms, Brownhawk was obligated to return Monterrey’s earnest money at that point if it had not completed its improvements. It is important to note that Brownhawk does not contend that the evidence establishes its full performance at the time of the attempted termination. Instead, Brown-hawk argues that its obligation to return the escrow deposits was excused because Monterrey had not constructed its “By Builder” improvements. However, as discussed above, the contract specified that Monterrey’s improvements were due, not by the “completion deadline” but by the closing date. To the extent Monterrey was obligated to complete the builder improvements, and assuming for the sake of argument that Monterrey was required to complete the drainage fume, Monterrey had another fifteen days before it breached the contract.

In sum, Brownhawk’s materially failed to perform in response to Monterrey’s termination request at a time when Monterrey had yet to commit a material breach. Therefore, Brownhawk’s breach was not excused by Monterrey’s non-performance. See Driver Pipeline Co., Inc., 134 S.W.3d at 199-200. The evidence was not legally or factually insufficient to support findings fifteen and sixteen. Issue Two is overruled.

In Issue One, Brownhawk challenges finding of fact and conclusion.of law number fourteen, in which the trial court made several determinations. To paraphrase, the court concluded: (1) Brownhawk alleged that Monterrey was obligated to construct a drainage flume prior to final inspection of the subdivision pursuant to revised plans which were filed with the city; (2) the drainage flume revisions were added to the subdivision plan after the contract amendment was signed; (8) the revisions were made without Monterrey’s knowledge; and (4) Brownhawk agreed that it would follow the plans as they existed when the amendment was signed. Brownhawk concludes that because the subdivision plans attached to the amendment required Monterrey to construct its improvements in compliance with applicable building codes and ordinances, and because the City of El Paso requires all drainage structures to be completed before final inspection, the evidence was legally and factually insufficient to support finding fourteen. We disagree.

Given our analysis of the relationship between the contract terms and the chronology of the parties’ respective breaches in Issue Two, even if we were to assume for the sake of argument that the evidence was legally and factually insufficient to support these findings, Brownhawk fails to explain how such a conclusion could serve as a basis for reversal. Accordingly, Issue One is also overruled.

In Issue Three, Brownhawk contends the evidence is legally and factually insufficient to support the trial court’s attorney’s fees award. Brownhawk argues that because the record does not contain evidence to support the court’s decision to award $49,450 in fees, the trial court abused its discretion by entering judgment on that amount. Generally, the amount of money awarded as attorney’s fees rests within the sound discretion of the court. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex.1990). However, to determine whether the award constituted an abuse of discretion, the reviewing court must first determine whether the trial court had sufficient evidence before it upon which it could exercise its discretion. See Alford v. Johnston, 224 S.W.3d 291, 298 (Tex.App.-El Paso 2005, pet. denied). An award which is not supported by evidence is arbitrary and constitutes an abuse of discretion. See F-Star Socorro, L.P. v. City of El Paso, 281 S.W.3d 103, 106 (Tex.App.-El Paso 2008, no pet.). The party seeking attorney’s fees bears the burden to put forth evidence regarding its right to recover such damages, as well as the reasonableness and necessity of the amount of the fee. See Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 751 (Tex.App.-Houston [14th Dist.] 2005, no pet.).

The trial court considered the issue of attorney’s fees after the conclusion of the trial on the merits. Brownhawk argues the appellate record is devoid of evidence to support the court’s award. However, by supplemental clerk’s record Monterrey has made an affidavit by its attorney part of the appellate record, and asks this Court to consider the affidavit as evidence supporting court’s award. Monterrey represents the affidavit was presented to the trial court prior to entry of judgment, but was mistakenly omitted from the record until May 2009. The affidavit indicates it was sworn to on May 6, 2008, and the attached certificate of service states it was sent to Brown-hawk’s counsel in May 2008. The supplement also contains a letter from Monterrey’s attorney to the trial court judge dated May 6, 2008, indicating Monterrey’s attorney’s fee affidavit was enclosed with the letter. The original clerk’s record provides further support for Monterrey’s position in the form of Brownhawk’s objections to Monterrey’s “Request For Attorneys’ Fees,” which was supported by an affidavit by Brownhawk’s attorney. The response and attached affidavit are file stamped May 21, 2008. Based on the supplemental clerk’s record, and Brownhawk’s responsive filings contained in the original clerk’s record, we conclude Monterrey’s attorney’s fee affidavit was before the court when it entered its judgment on May 22, 2008, and may be considered as evidence in support of the award.

The affidavit itself provides Mr. Johnston’s qualifications and experience as a litigator in El Paso, states his hourly rate for the case was $225, and concludes that this is a reasonable rate in El Paso for the legal services he provided. The affidavit includes a summary delineating the number of hours spent in each phase of the litigation, as well as an estimation of the number of hours which would be required should the case be appealed. According to the summary, Mr. Johnston spent 217 hours in preparation for trial, which multiplied by his stated hourly rate represented $47,200 of the requested fee. The summary also states he spent ten hours related to post-trial matters in the trial court, and requests an additional $2,250 for those efforts. In the event of an appeal to this Court, Mr. Johnston anticipated seventy-five hours would be necessary to prosecute the appeal, and requested a contingent award of $16,875. Similar contingency awards were requested in the event a petition for discretionary review was filed in the Texas Supreme Court, and in the event that petition was granted. Brownhawk objected to the affidavit only on the basis that approximation of hours needed to pursue an appeal was too high.

Based on this record, we conclude the trial court’s award was supported by sufficient evidence, and that the court did not abuse its discretion in making the award. Issue Three is overruled.

Having overruled all of Appellant’s issues, we affirm the. trial court’s judgment.

BRAMBLETT, Judge (Sitting by Assignment).

      . All of the trial court’s findings were designated as both findings of fact and conclusions of law.

      . Both parties address this issue as one of legal and factual sufficiency, and we will address it as it is presented. However, we note that Brownhawk’s arguments are premised, primarily, on its interpretation of the contract and the amendment. Generally such arguments are made in reference to a question of contract interpretation, which is a question of law, subject to de novo review, rather than an issue evidentiary sufficiency. See Fasken Land & Minerals, Ltd.v. Occidental Permian, Ltd., 225 S.W.3d 577, 588 (Tex.App.—El Paso 2005, pet. denied).


author: Chief Justice MORRISS.

text:
    Felipe Rubio GASPAR, Appellant, v. The STATE of Texas, Appellee.
    No. 06-10-00050-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 6, 2010.
    Decided Nov. 5, 2010.

      Donald K. Hoover, Nix & Hoover, Sherman, for appellant.
    Richard Glaser, Fannin County Dist. Atty., James L. Moss, Asst. Dist. Atty., Bonham, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

Noemi Jiminez, her four children, and her current boyfriend, Pedro Guzman, were all sleeping in Jiminez’s darkened bedroom. Awakened by Guzman’s scream,. Jiminez saw her former boyfriend, Felipe Rubio Gaspar, on top of Guzman and thought Gaspar was hitting Guzman with his fists. She pulled Gaspar off of Guzman, but Gaspar “got up and kept just going back after [Guzman].” As the struggle between Gaspar and Guzman continued, it moved through various areas of the house, including the living room, where the lights had been turned on. When the two men returned to the living room, Jiminez noticed that Gaspar was holding a screwdriver and that Guzman was “drenched in blood” and holding a two-foot statue as a weapon. The fight ended when Gaspar left the premises.

Gaspar was indicted , on charges of aggravated assault with a deadly weapon. After a jury trial, Gaspar was found guilty and sentenced to twenty years’ imprisonment. On appeal, Gaspar argues that there is legally and factually insufficient evidence to support the conviction and that the trial court erred in failing to allow a jury instruction on self-defense. We affirm the conviction because: (1) the evidence is legally sufficient to support the verdict; and (2) there is no evidence that Gaspar was acting in self-defense.

Under the authority of a very recent opinion where a plurality of the Texas Court of Criminal Appeals abolished the separate factual-sufficiency review, we do not address Gaspar’s challenge to the factual sufficiency of the evidence. See Brooks v. State, 323 S.W.3d 893, 894, 912 (Tex.Crim.App.2010).

(1) The Evidence Is Legally Sufficient to Support the Verdict

Gaspar and Jiminez had had an on-again, off-again relationship for several years. After the relationship finally ended, Gaspar began living in the house of Jesus Perez, within a mile of Jiminez, and Jiminez began a new romantic relationship with Guzman. Guzman, Israel Jiminez (Jiminez’s father), and Nelson Rodriguez (her eleven-year-old son), all testified that, earlier on the day of the alleged assault, Gaspar came to the Jiminez property and confronted Guzman, warning him to leave Jiminez alone and that he would regret “messing with” Jiminez.

After Perez and Gaspar got off work that day, the two traveled to a restaurant in nearby McKinney, Texas, and “had a few drinks.” On returning to Perez’s home, Gaspar “got on the phone and started arguing” with Jiminez. Perez believed Gaspar was arguing about “his kids, and ... somebody being there with her.” Gas-par indicated he was leaving because he had to “go do something over there.” Gas-par invited Perez to go with him, but Perez declined saying, “I don’t want no problems.” Perez testified that Gaspar was drunk and angry that “the other guy was down there.”

Later, when Gaspar returned to Perez’s home, he told Perez that Gaspar had “wrecked the car” and asked Perez to help him hide it. Perez noticed that both the car and Gaspar were covered in blood, that one of the car’s tires was “completely torn up,” and that “the fender was way beyond repair, couldn’t be fixed.”

Responding to a 9-1-1 call, Officer Ron Alexander arrived at the Jiminez residence and saw blood droplets on the wheelchair ramp outside the home, “quite a bit of blood right there in the front of the door,” and “blood smeared all over the front door, all over the screen door, a pretty good amount of blood.” He testified that Guzman was lying on the floor, bleeding profusely and that he appeared to have been stabbed several times. Guzman had thirteen puncture wounds to his body, head, and face.

Shortly thereafter, the police arrived at Perez’s residence. Alexander noticed “a little splatter of blood” on the glass of Perez’s front door. Inside Perez’s home, Alexander found Gaspar asleep, saw a screwdriver that matched Jiminez’s description on the floor beneath Gaspar’s outstretched hand, and found a shirt and boots with blood on them. Gaspar was arrested and charged.

In reviewing the evidence for sufficiency, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Based on the Brooks plurality’s description of the new application of legal sufficiency review under Jackson as “rigorous” and its statement that the use by reviewing courts of the factual sufficiency standard in tandem with the legal sufficiency standard may have “skewed” the proper application of the Jackson standard, it appears that the high court is attempting to refocus the application of the legal sufficiency standard from the quantity to the quality of the evidence presented. See Brooks, 323 S.W.3d at 916-18 (Cochran, J., concurring).

In conducting a legal sufficiency review, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009). We must give deference to “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007) (citing Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781). We are not required to determine whether we believe that the evidence at trial established guilt beyond a reasonable doubt; rather, when faced with conflicting evidence, we must presume that the trier of fact resolved any such conflict in favor of the prosecution, and we must defer to that resolution. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App.1993). Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).

Gaspar was charged with aggravated assault with a deadly weapon. The indictment alleges that Gaspar did'

then and there intentionally, knowingly, and recklessly cause bodily injury to Pedro Noris Guzman by stabbing him with a screwdriver and [Gaspar] did then and there use or exhibit a deadly weapon, to-wit: a screwdriver during the commission of said assault.

On appeal, Gaspar argues that the evidence supporting his conviction is insufficient because the State failed to prove beyond a reasonable doubt that Gaspar, rather than Guzman, was the aggressor. We disagree.

A person commits aggravated assault with a deadly weapon if he or she intentionally, knowingly, or recklessly causes serious bodily injury to another while using an object with the intent, or in such a manner that the object is capable of causing death or serious bodily injury. Tex. Penal Code Ann. §§ 1.07(a)(17)(B), 22.02 (Vernon Supp. 2010).

When Jiminez saw Gaspar “on top of’ Guzman in the darkened room, the open blinds and door let in enough light that she could tell that Gaspar was the person attacking Guzman. Jiminez indicated that Gaspar was the aggressor because she repeatedly tried to pull Gaspar off of Guzman, but Gaspar “got up and kept just going back after [Guzman].” However, Jiminez admitted that she never saw Gas-par stab Guzman, that she did not see Gaspar holding a screwdriver until both men were in the living room, and that she “didn’t actually know what was going on till later.”

Rodriguez saw Gaspar stabbing Guzman and indicated that Gaspar was the aggressor and that he “wouldn’t stop.” Even after Guzman fell to the floor bleeding, Gaspar “tried to come back and keep [sic] on stabbing him.”

Alexander testified that there was a lot of blood all over the house, particularly near the front door and that, when he arrived, Guzman was lying on the floor, bleeding profusely, appearing to have been stabbed several times.

Guzman had thirteen puncture wounds to his body, head, and face, but Guzman did not remember Gaspar stabbing him with a screwdriver. A screwdriver, matching the one Jiminez saw Gaspar holding, was found at the Perez residence, just beneath Gaspar’s hand as he lay asleep. Remarkably enough, the screwdriver had Gaspar’s DNA on it, but not Guzman’s. Gaspar’s boots and shirt both had Guzman’s blood on them.

Gaspar had a single wound in his leg, but no evidence indicates Guzman caused the injury or was ever in a position to cause the injury. Even when Guzman was holding the statue, there is no evidence he used it against Gaspar. Rodriguez testified that Guzman was about to throw the statue, but when both he and Gaspar paused, Guzman put the statue down “and fell to the floor bleeding.”

The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and reconciliation of conflicts in the evidence is within the exclusive province of the jury. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App.2000); Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App.1994). The jury may choose to believe some testimony and disbelieve other testimony. Wyatt, 23 S.W.3d at 30. Here, taking all the evidence into consideration and reviewing it in the light most favorable to the verdict, there is ample testimony and forensic evidence to support the jury’s finding that Gaspar attacked Guzman and stabbed him with a screwdriver. The evidence is legally sufficient to support the verdict.

(2) There Is No Evidence that Gaspar Was Acting in Self-Defense

Gaspar also contends that the trial court erred in denying his requested self-defense instruction. The State argues that Gaspar failed to preserve this issue for appeal because he failed to either submit his requested instruction in writing or dictate it into the record.

In order to preserve error relating to the jury charge, there must either be an objection or a requested charge. Sanders v. State, 69 S.W.3d 690, 692 (Tex.App.-Texarkana 2002, pet. dism’d, untimely filed); see Tex.Code CRiM. PROC. Ann. art. 36.14 (Vernon 2007), art. 36.15 (Vernon 2006). This Court has held that, to preserve error, “a request need only be sufficient to call the trial court’s attention to the omission in the court’s charge.” Martin v. State, 67 S.W.3d 340, 345 (Tex.App.-Texarkana 2001, pet. ref'd). In Amwine, this Court held that, despite Arnwine’s failure to present his proposed charge in writing or dictate it into the record, the defendant’s objection to the failure of the charge “to instruct the jury on the defense of necessity” was sufficient to preserve the issue for appeal because the record indicated “the trial judge understood Arn-wine’s objection to the lack of a charge on necessity and was aware of his request to include that charge.” Arnwine v. State, 20 S.W.3d 155, 157-58 (Tex.App.-Texarkana 2000, no pet.).

Similar to Arnwine, the record in this case clearly indicates the trial court understood, or should have understood, the request of a self-defense instruction. The following exchange occurred between the trial court, the State, and Gaspar’s counsel:

STATE: In that case, Your Honor, the State would re-urge the objection, the self-defense claim that I made earlier. I just don’t think there’s a scintilla of evidence to suggest self-defense. There’s — there’s argument by counsel and insinuation by counsel, but as the Court knows, that’s not evidence.
THE COURT: Okay, [Defense Counsel]?
[Defense Counsel]: Your Honor, I think the fact that [Gaspar] was stabbed in the leg provides more than ample evidence to indicate that the jury could conclude that he was stabbed in the leg, number one. And, number two, that under those circumstances that he has a legitimate self interest in defending himself. ... Having said that, there’s also evidence to indicate that the screwdriver that was submitted into evidence was not, in fact, the weapon that was allegedly used in the original premises since there was no DNA evidence nor blood, conclusively, found on the screwdriver. That takes us back to the original scene where the altercation occurred. If no weapon was found and he enters in there and [Gaspar] was stabbed in the leg, then that gives rise to the possibility that he — that the other party received the stab wounds in response.

Gaspar has properly preserved this issue for appeal.

A trial court’s decision to deny a defensive issue in a jury charge is reviewed for an abuse of discretion. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex.Crim.App.2000). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990); Reynolds v. State, 227 S.W.3d 355, 371 (Tex.App.-Texarkana 2007, no pet.).

A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense. Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001); Guilbeau v. State, 198 S.W.3d 156, 159 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). Before a defendant is entitled to a self-defense instruction, however, there must be some evidence, when viewed in the light most favorable to the defendant, that will support the claim. Ferrel, 55 S.W.3d at 591; Hill v. State, 99 S.W.3d 248, 251 (Tex.App.-Fort Worth 2003, pet. ref'd). Thus, entitlement to a self-defense instruction is predicated on the provision of some evidence that the defendant was authorized to use force against another. “[A] defense is supported (or raised) by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true.” Shaw v. State, 243 S.W.3d 647, 657 (Tex.Crim.App.2007). A defendant need not testify in order to raise a defense. Boget v. State, 40 S.W.3d 624, 626 (Tex.App.-San Antonio 2001), aff'd, 74 S.W.3d 23, 26 (Tex.Crim.App.2002). Defensive issues may be raised by the testimony of any witness, even those called by the State. Jackson v. State, 110 S.W.3d 626, 631 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). When reviewing a trial court’s decision to deny a requested defensive instruction, “we view the evidence in the light most favorable to the defendant’s requested submission.” Bufkin v. State, 207 S.W.3d 779, 782 (Tex.Crim.App.2006). However, “if the evidence, viewed in the light most favorable to the defendant, does not establish self-defense, the defendant is not entitled to an instruction on the issue.” Ferrel, 55 S.W.3d at 591.

Gaspar argues that the trial court should have included an instruction on self-defense in the charge, in light of the evidence raised on that issue. He directs our attention to the following evidence: (1) Gaspar was cut or stabbed in the leg from behind; and (2) only Gaspar’s blood and DNA were found on the screwdriver. When the foregoing evidence is analyzed in light of the requirement that some evidence must be raised on each element of the defense, we conclude the trial court was correct in its decision that an instruction on self-defense was not warranted. Section 9.31 of the Texas Penal Code provides, in part, that “a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.” Tex. Penal Code Ann. § 9.31(a) (Vernon Supp. 2010). Moreover, Section 9.32 of the Texas Penal Code provides:

(a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor against the other’s use or attempted use of unlawful deadly force; or
(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Tex. Penal Code Ann. § 9.32(a) (Vernon Supp. 2010).

The record contains no evidence suggesting that Gaspar reasonably believed the use of force was immediately necessary to protect himself from the use or attempted use of unlawful force, or to prevent the commission of any of the offenses listed in Sections 9.31 or 9.32 of the Texas Penal Code. Instead, the evidence here suggests that Gaspar entered the Jiminez home and attacked a sleeping man without provocation. It could be inferred from the evidence that Guzman struck, or attempted to strike, Gaspar, possibly with the small statue or the screwdriver. However, it is undisputed that Gaspar was the aggressor from the moment he entered the Jiminez home until the time he left, and the evidence also reveals that Guzman seized the statue in order to defend himself from Gaspar’s relentless attacks. Under these circumstances, Gaspar was not entitled to an instruction on self-defense. This point of error is overruled.

We affirm the judgment of the trial court.

      . In the record, Jiminez is also spelled, "Jimenez.” In this opinion, we use the "Jiminez" spelling.

      . There is testimony that Gaspar and Jiminez once lived together as husband and wife.

      . The sentence was to ran concurrently with his sentence in cause number 06-10-00051-CR. Gaspar was also assessed a $10,000.00 fine and court costs of $436.00.

      . Gaspar received permission to submit one brief for the two appeals (cause numbers 06-10-00050-CR and 06-10-00051-CR) he has pending before this Court.

      . With Judge Cochran joining the lead opinion and authoring a concurring opinion and Judge Womack concurring with the lead opinion and joining the concurrence, in Brooks v. State, 323 S.W.3d 893, 894, 912 (Tex.Crim.App.2010) (4-1-4 decision), a plurality of the Texas Court of Criminal Appeals abolished the factual-sufficiency review established by Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996), and its progeny. The plurality and Judge Womack agreed that the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894, 912. Since the Texas Court of Criminal Appeals has abolished factual-sufficiency review, we need not address the challenge to the factual sufficiency of the evidence.

      . The property is owned by Jiminez’s father, Israel Jiminez.

      . Whether Perez was with Gaspar during the confrontation is disputed. Israel testified that Perez was there, while Perez denies any involvement.

      . Martin is consistent with other Texas courts. See Atkinson v. State, 923 S.W.2d 21, 24 n. 2 (Tex.Crim.App.1996) (“so long as it calls attention to an error or omission”); Brazelton v. State, 947 S.W.2d 644, 647 (Tex.App.-Fort Worth 1997, no pet.); Reyes v. State, 910 S.W.2d 585, 592 (Tex.App.-Amarillo 1995, pet. ref'd); Bell v. State, 881 S.W.2d 794, 803-04 (Tex.App.-Houston [14th Dist.] 1994, pet. ref’d) (the request “need only put the trial court on notice of an omission or error”).


author: KEM THOMPSON FROST, Justice.

text:
    GRUPO TMM, S.A.B., TMM Logistics, S.A. de C.V., and Lacto Comercial Organizada, S.A. de C.V., Appellants, v. Juan Gerardo PEREZ, Elizabeth Carolina Perez, individually and as the Representative of the Estate of Xochitl Carolina Castillo Perez and the Estate of Xochitl Y. Perez Castillo, Christine Dolores Perez, Felipe Manuel Perez, Maria Delores Castillo, and Raymundo Peinado Bobadilla, Appellees.
    No. 14-09-01072-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 16, 2010.
    Rehearing Overruled Dec. 9, 2010.

      Alexander Christos Papandreou, Karen A. Conticello, David Stockel, Houston, for Appellants.
    Joshua Rudy Leal, David W. Showalter, Richmond, for Appellees.
    Panel consists of Justices FROST, BOYCE, and CHRISTOPHER.
   OPINION

KEM THOMPSON FROST, Justice.

This is an interlocutory appeal from the trial court’s denial of the special appearances of three Mexican companies. Because we conclude that the trial court did not have personal jurisdiction over these parties, we reverse the trial court’s judgment and remand with instructions to dismiss this suit for lack of personal jurisdiction.'

Background

In August 2006, Xóchitl Carolina Castillo de Perez and Xóchitl Yvette Perez, both United States residents, were killed in an accident involving an eighteen-wheel tractor-trailer in Mexico. The tractor portion of the eighteen-wheeler was owned by appellant Lacto Comercial Organizada, S.A. de C.V. (Lacto), and the trailer portion of the eighteen-wheeler was owned by appellant TMM Logistics, S.A. de C.V. (“TMM”). Lacto and TMM are subsidiaries of Grupo TMM S.A.B. (“Grupo”), and all three are Mexican companies.

Appellees Juan Gerardo Perez, Elizabeth Carolina Perez, Individually and as the Representative of the Estate of Xóchitl Carolina Castillo Perez and the Estate of Xóchitl Y. Perez Castillo, Christine Dolores Perez, Felipe Manuel Perez, and Maria Delores Castillo, beneficiaries and representatives of the estates of the deceased, brought a wrongful death and survival action against Lacto, TMM, and Grupo (collectively, the “Mexican Companies”) in Houston, Texas, alleging, among other things, that the driver was intoxicated and speeding. Appellee Raymundo Peinado Bobadilla also sued the Mexican Companies for personal injury and property damage he sustained in the accident. The beneficiaries and representatives of the deceased and Bobadilla are collectively referred to as the “Plaintiffs.”

The Mexican Companies filed special appearances, which the trial court denied without written findings of fact and conclusions of law. In this interlocutory appeal, the Mexican Companies contend, in seven issues, that the trial court erred in denying their special appearances, based on either specific or general personal jurisdiction.

Analysis

A. Legal Framework

Whether a trial court has personal jurisdiction over a defendant is a question of law we review de novo. Spir Star AG v. Kimich, 310 S.W.3d 868, 871 (Tex.2010); Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 280 (Tex.App.Houston [14th Dist.] 2009, no pet.). If, as in this case, the trial court does not issue findings of fact, we presume the trial court resolved all factual disputes in favor of its judgment. Spir Star, 310 S.W.3d at 871-72; Nogle & Black, 290 S.W.3d at 281. The plaintiff bears the initial burden to plead sufficient allegations to bring the nonresident defendant within the reach of Texas’s long-arm statute. See Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex.2002). Once the plaintiff has pleaded sufficient jurisdictional allegations, the defendant challenging personal jurisdiction bears the burden to negate all bases of jurisdiction alleged by the plaintiff. See id.

The Texas long-arm statute governs Texas courts’ exercise of personal jurisdiction over a nonresident defendant. See Tex. Civ. PRAC. & Rem.Code ANN. §§ 17.041-.045 (West 2008). The long-arm statute reaches as far as federal constitutional due process will allow, and thus the long-arm statute is satisfied if an assertion of personal jurisdiction comports with due process. See Spir Star, 310 S.W.3d at 872; Nogle & Black, 290 S.W.3d at 281. Personal jurisdiction is proper when the nonresident defendant has established “minimum contacts” with the forum and the exercise of jurisdiction comports with “traditional notions of fair play and substantial justice.” Spir Star, 310 S.W.3d at 872. For a defendant to have sufficient contacts with the forum, it is essential that the defendant’s contacts show that the defendant purposefully availed itself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of the forum’s laws. See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784-85 (Tex.2005).

A defendant’s contacts can give rise to either general or specific jurisdiction. Specific jurisdiction exists when the claims in question arise out of or relate to the defendant’s purposeful contacts with Texas. Spir Star, 310 S.W.3d at 874. For a nonresident defendant’s contacts with Texas to support an exercise of specific jurisdiction, there must be a substantial connection between the defendant’s purposeful contacts with Texas and the operative facts of the litigation. Id. In defending against the Mexican Companies’ special appearances, the Plaintiffs asserted both specific and general jurisdiction. The trial court’s order did not specify the basis on which it relied in denying the special appearances, so we will analyze both.

B. Pleading Defect

The Plaintiffs argue that the trial court properly could have denied the Mexican Companies’ special appearances because they were not properly sworn as required by Texas Rule of Civil Procedure 120a and therefore were defective. The Mexican Companies did file an affidavit to verify their special appearances, but the Plaintiffs claim the affidavit has several defects. Defects in a special-appearance affidavit can be cured by amendment. Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex.1998). The Plaintiffs did not raise this issue in the trial court, which would have given the Mexican Companies an opportunity to cure these alleged defects. The Plaintiffs cannot raise this argument for the first time on appeal. See Int’l Turbine Serv. v. Lovitt, 881 S.W.2d 805, 808 (Tex.App.-Fort Worth 1994, writ denied); see also Haddad v. ISI Automation Int’l, No. 04-09-00562-CV, 2010 WL 1708275, at *2 (Tex.App.-San Antonio Apr. 28, 2010, no pet.) (mem. op.). By failing to take necessary action in the trial court, the Plaintiffs effectively waived this complaint.

C. No Specific Jurisdiction

In their first through fourth issues, the Mexican Companies generally assert that the trial court erred in finding personal jurisdiction and denying their special appearances. The Plaintiffs present no arguments supporting specific jurisdiction in their brief, and at oral argument, though they did not abandon specific jurisdiction, the Plaintiffs stated that they could not see a basis for specific jurisdiction in this case. We agree.

To establish specific jurisdiction, the defendant’s contacts with the forum must have a substantial connection to the operative facts of the litigation. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 584 (Tex.2007); Markette v. X-Ray X-Press Corp., 240 S.W.3d 464, 467 (Tex.App.-Houston [14th Dist.] 2007, no pet.). In a similar case involving a truck accident in Mexico, the Fifth Circuit found no specific jurisdiction in Texas because (1) the fatal accident occurred in Mexico, (2) the decedents all died in Mexico, and (3) all negligence, if any, occurred in Mexico. Felch v. Transportes Lar-Mex S.A. de C.V., 92 F.3d 320, 324 (5th Cir.1996). We agree with this analysis and find the trial court erred to the extent it denied the Mexican Companies’ special appearances based on specific jurisdiction. We sustain the Mexican Companies’ first through fourth issues to the extent they argue that they were not subject to personal jurisdiction based on specific jurisdiction.

D. No General Jurisdiction

In their first through fourth and sixth issues, the Mexican Companies argue in part that that the trial court erred in finding they were subject to personal jurisdiction and denying their special appearances based on general jurisdiction. A general-jurisdiction inquiry involves a much more demanding minimum-contacts analysis with a much higher threshold. See Am. Type Culture Collection, Inc., 83 S.W.3d at 807. The defendant’s contacts must be continuous and systematic, establishing a general business presence in Texas. See id. at 809; Alenia Spazio, S.p.A. v. Reid, 130 S.W.3d 201, 220 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). It is the nature and quality of the contacts, not the quantity, that is critical when examining general jurisdiction. Am. Type Culture, 83 S.W.3d at 809-10.

1. Lacto and TMM

Lacto and TMM are in the business of transporting cargo through the interior of Mexico and to the United States-Mexico border. Lacto owns 900 trucks used in its business and hires drivers to haul cargo in its trucks. Lacto owns some trailers and leases some from others, but the majority of the trailers Lacto uses to transport goods are leased from TMM. TMM owns 300 to 500 trailers, all of which are used by Lacto, and about 30 of its trailers go into Laredo, Texas, each day. It is the goal to have the trailers loaded with cargo destined for Mexico when they re-cross the border, and this cargo comes from customers all over the world.

Loads that are destined for the United States cross the border within a special zone that starts twenty miles from the border in Nuevo Laredo on the Mexican side and extends twenty miles past the border on the United States side into Laredo, Texas. Because of international border regulations, cargo trucks cannot simply cross the border into the United States. Rather, the cargo must go through a process called “drayage.” During drayage, the company intending to physically cross the border with the items must complete necessary paperwork and then deliver the items across the border, where they are transferred to another company in the border zone to send to their ultimate destination. In the great majority of cases, Lacto’s loads are unloaded in the Nuevo Laredo border zone, where an independent transfer company completes the drayage process. However, starting in late 2005 or 2006, Lacto made itself available to handle the drayage process but did so only when another transfer company was not available. Of Lacto’s 500 trucks, 5 have the special permit from the United States government necessary to drive in the border zone for drayage. This permit allows only limited operation and prohibits the trucks from leaving the border area. The number of times a Lacto truck crosses the border for drayage varies on any given day from none to two, six days per week.

Lacto and TMM do not have offices in Texas or own any property or maintain any bank accounts in Texas. Goods that are delivered into the border zone do not stay there but are delivered to final destinations worldwide. The record contains no evidence that Lacto or TMM have any customers in Texas, and they do not target Texas to solicit business. Neither Lacto nor TMM have any employees stationed in Texas, although frequently their employees have crossed the border for various reasons. From 2000 to 2006 for TMM and from 2006 to the present for Lacto, an employee crosses the border four to six times per week and drives around in the border zone looking for lost trailers. Sometimes employees cross the border specifically for this reason; at other times, they already have crossed for personal reasons and look for trailers while they are there. Until 2005, four high-ranking TMM employees went to meetings in Laredo one to five times per month to coordinate the logistics of deliveries, which, because of the intricacies of crossing the border, often required three to five parties to complete.

We find these contacts insufficient to establish general jurisdiction. The focus of Lacto’s and TMM’s businesses is moving cargo through the interior of Mexico and across the United States-Mexico border. They have no offices, employees,

property, or bank accounts in Texas, and they do not target Texas companies for business solicitation. The Plaintiffs emphasize the volume of cargo loads entering Texas, which is about thirty per day. But, the mere flow of goods into or out of a state is insufficient to establish a general business presence necessary for general jurisdiction. See Bearry v. Beech Aircraft Corp., 818 F.2d 370, 376 (5th Cir.1987); PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 171 (Tex.2007); Reyes v. Marine Drilling Cos., 944 S.W.2d 401, 404 (Tex.App.-Houston [14th Dist.] 1997, no writ). That Texas is part of the stream of commerce through which the goods pass on their way to their ultimate destinations does not subject the transporter of those goods to general jurisdiction. See Arkwright Mut. Ins. Co. v. Transportes de Nuevo Laredo S.A. de C.V., 879 F.Supp. 699, 701 (S.D.Tex.1994) (concluding that “[t]he fact that some of the merchandise which [the defendant] brings into Nuevo Laredo, Mexico is ultimately destined for the United States” is insufficient for general jurisdiction because a stream of commerce analysis is improper in the general jurisdiction context); see also Spir Star, 310 S.W.3d at 874 (noting that “stream-of-commerce analysis is relevant only to the exercise of specific jurisdiction; it provides no basis for exercising general jurisdiction over a nonresident defendant” (quotation omitted)). Courts have found no general jurisdiction in cases with many more goods flowing into and out of the forum than is present in the case under review. Further, these cases involve the defendant making profits directly from Texas entities, and there is no evidence in this case that any Texas business or person is paying Lacto or TMM anything.

The trips to locate trailers or to coordinate transactions are likewise insignificant for general jurisdiction. Trips attendant to insubstantial contacts are also insubstantial. See Am. Type Culture, 83 S.W.3d at 808 (stating that mere purchases and trips related thereto are insufficient to establish general jurisdiction); Markette, 240 S.W.3d at 468 n. 2 (noting that neither the attorney-client relationship with an out-of-state attorney nor routine correspondence and interactions attendant to that relationship are sufficient to confer personal jurisdiction). These contacts show no intent to exploit the Texas market. See Alenia, 130 S.W.3d at 217, 220. Indeed, there is no evidence whatsoever to show any targeting to Texas markets as opposed to Texas merely being a conduit of worldwide sales. See Bearry, 818 F.2d at 376. Thus, the cargo flowing to Laredo and the incidental contacts necessary to facilitate that flow do not establish general jurisdiction over Lacto or TMM. See Martinez v. Servicios de Transportacion, M.G., S.A., Civil No. L-05-60, 2007 WL 543411, at *4 (S.D.Tex. Feb. 15, 2007) (finding that legal intricacies of border crossing requiring contacts with Texas are insufficient to support general jurisdiction over Mexican company whose business was moving goods to and from the border at Nuevo Laredo); see also Primera Vista S.P.R. de R.L. v. Banca Serfin, S.A., 974 S.W.2d 918, 926 (Tex.App.-El Paso 1998, no pet.) (concluding that Mexican company’s contacts with Texas that were necessary to facilitate its customers’ business ventures in Texas were merely a by-product of its business in Mexico and were insufficient to support general jurisdiction).

The Plaintiffs also argue that general jurisdiction is proper over Lacto based on its drayage trips across the border. Again, we disagree. Lacto did not structure its business with the goal of crossing the border into Texas but does so only when there is no other option. Only 5 of its 900 trucks are even licensed to cross the border, and the crossing is for the limited purpose of delivering goods into the border zone in Laredo. The nature and limited purpose of these contacts significantly diminishes the quality of these contacts for jurisdictional purposes. See Alenia, 130 S.W.3d at 218; see also Am. Type Culture, 83 S.W.3d at 809-10. The Fifth Circuit addressed similar facts in Felch, which involved a suit against a Mexican transportation service after its truck was in an accident in Mexico. 92 F.3d at 321. The Felch court rejected general jurisdiction even though the carrier made some drayage trips into Laredo because so much of its business was centered in Mexico and it was “wholly clear” that drayage trips did not establish continuous and systematic contacts with Texas. See id. at 327-29.

Although Lacto and TMM have a large number of direct and indirect contacts with Texas, the contacts are of low quality. Viewed in the light most favorable to the judgment, these contacts are insufficient as a matter of law to support a finding of personal jurisdiction based on general jurisdiction. Thus, the trial court erred in denying the special appearances of Lacto and TMM.

2. Grupo

The Plaintiffs’ theory of general jurisdiction against Grupo rests primarily on imputing the contacts of Lacto and TMM, its subsidiaries, to Grupo as their alter ego. In their fifth issue, the Mexican Companies argue that the trial court erred in finding that Grupo was the alter ego of Lacto and TMM. We need not address this argument because even if we impute Lac-to’s and TMM’s contacts to Grupo, we have concluded those contacts are insufficient to establish general-jurisdiction.

The Plaintiffs identify several independent contacts they claim Grupo has with Texas as a basis to support general jurisdiction against Grupo, even without imputing Lacto’s and TMM’s contacts. These, too, are insufficient to support general jurisdiction. The Plaintiffs stress that Grupo, through various subsidiaries, has been providing border-crossing services for years; but, as with Lacto and TMM, there is no evidence that Grupo provides any service to end-destination customers in Texas or targets Texas for business solicitation, and the flow of goods to Texas in the stream of commerce is irrelevant in the general jurisdiction context. See Bearry, 818 F.2d at 376; Arkwright, 879 F.Supp. at 701; Spir Star, 310 S.W.3d at 874; Alenia, 130 S.W.3d at 217, 220. The Plaintiffs point to contacts such as operating a railroad line into Texas, sending vessels into Texas, and having an office in Laredo, Texas, but there is no evidence that Grupo itself made these contacts as opposed to a subsidiary. Mere evidence that a subsidiary had these contacts is insufficient to impute the contacts to a parent. See Spir Star, 310 S.W.3d at 873-74; BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 799 (Tex.2002). Also, contrary to the Plaintiffs’ assertion, Grupo’s listing on the New York Stock Exchange provides no basis for general jurisdiction in Texas. See Access Telecom, Inc. v. MCI Telecoms. Corp., 197 F.3d 694, 717 n. 6 (5th Cir.1999). Finally, the Plaintiffs assert that Grupo has been sued in Texas before and has not challenged personal jurisdiction, but the record is unclear as to what arguments were made in those other cases. Further, personal jurisdiction is assessed on a case-by-case basis, so the existence or lack of personal jurisdiction in other litigation is not determinative. See Am. Type Culture, 83 S.W.3d at 810. These alleged individual contacts provide no support for asserting general jurisdiction against Grupo.

The trial court erred in denying Grupo’s special appearance, based either on an alter-ego theory or direct contacts from Gru-po.

3. Summary

The Mexican Companies are not subject to personal jurisdiction in this suit based on general jurisdiction. We sustain their first through fourth and sixth issues to the extent they argue they were not subject to personal jurisdiction based on general jurisdiction. Because we have determined that the Mexican Companies did not have sufficient contacts with Texas to establish personal jurisdiction, we need not address their seventh issue in which they assert that exercising jurisdiction over them offends traditional notions of fair play and substantial justice.

Conclusion

As a matter of law, Grupo, Lacto, and TMM do not have sufficient contacts with Texas to establish personal jurisdiction based on either specific or general jurisdiction, and therefore the trial court erred in denying their special appearances. We reverse the trial court’s judgment and remand with instructions for the trial court to dismiss this case for lack of personal jurisdiction.

      . See, e.g., Bearry, 818 F.2d at 372-73, 375-76 (finding no general jurisdiction despite $250 million in products flowing into Texas over five years, $72 million in contracts for products manufactured in Texas, and more than $195 million in goods and services purchased from more than 500 Texas vendors); PHC-Minden, 235 S.W.3d at 168-71 (finding no general jurisdiction despite more than $1,500,000 in purchases from Texas vendors, among other contacts); Am. Type Culture, 83 S.W.3d at 807-10 (finding no general jurisdiction despite $350,000 in sales revenue per year to Texas, hundreds of patents per year for twenty years being stored in Texas, and purchases of $378,000 in supplies from thirty-three Texas vendors); Reyes, 944 S.W.2d at 402-05 (finding no general jurisdiction despite purchases of more than $183 million in goods in Texas from 471 sources, hundreds of contracts with Texas entities, and sales of more than $850,000 of scrap metal to Texas companies).

      . See. e.g., Bearry, 818 F.2d at 372-73, 375-76; Am. Type Culture, 83 S.W.3d at 807-10; Reyes, 944 S.W.2d at 402-05.

      . In conjunction with this licensing, Lacto obtained a business address in Laredo. The Plaintiffs do not dispute Lacto’s assertion that it obtained this address after the suit was filed, and thus that contact is irrelevant. See PHC-Minden, 235 S.W.3d at 170.

      . The Plaintiffs cite several cases involving drayage or other border-crossing cases, but they all are distinguishable. In each of the cited cases, the defendant had additional significant contacts that are not present in the case under review. See Summit Mach. Tool Mfg. Corp. v. Warren Transp., Inc., 920 F.Supp. 722, 726 (S.D.Tex.1996) (defendant solicited business in Texas and solicited and negotiated contracts in Texas); Transportadora Egoba S.A. de C.V. v. Arredondo, 217 S.W.3d 603, 608-09 (Tex.App.-San Antonio 2006, pet. denied) (defendant had a director living in Laredo, owned land in Laredo, filed suit in Laredo, and had bank account in Laredo); Transportacion Especial Autorizada, S.A de C.V. v. Seguros Comercial Am., S.A. de C.V., 978 S.W.2d 716, 720-21 (Tex.App.-Austin 1998, no pet.) (many of defendant’s shipments originated in Texas, defendant had bank account in Laredo, and it traveled to Texas to solicit business from Texas companies). The Plaintiffs also cite Juarez v. United Parcel Serv. de Mexico S.A. de C.V., but that court did not decide whether the contacts satisfied general jurisdiction; instead, it decided that exercising jurisdiction would violate traditional notions of fair play and substantial justice. 933 S.W.2d 281, 285 (Tex.App.-Corpus Christi 1996, no writ).


text:
    Katherine CLINTON, Appellant, v. The STATE of Texas, Appellee.
    No. 06-10-00090-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 3, 2010.
    Decided Nov. 17, 2010.

      Tim Cone, Gilmer, for appellant.
    Billy W. Byrd, Dist. Atty., Christie M. Martin, Asst. Dist. Atty., Gilmer, for ap-pellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

Katherine Clinton admits that she attempted to purchase cigarettes with the debit card of another person. Her resulting conviction for credit or debit card abuse was based on an indictment charging that Clinton “used” the debit card but omitting any allegation that she “presented” the card. Clinton’s appeal of her conviction centers on that wording of the indictment. Clinton argues that, because the State proved only that she “presented” the debit card, the evidence is legally and factually insufficient to support a conclusion that she “used” it. We agree. In this situation, the State was obligated to prove the indictment’s allegation that Clinton “used” the card, an integral part of an essential element of the crime as alleged in the indictment. Because (1) the evidence is legally insufficient that Clinton “used” the card, within the meaning of the statute, and (2) Clinton requested a lesser-included-offense instruction on attempted credit or debit card abuse, we reverse Clinton’s conviction, reform the judgment to reflect a conviction of attempted credit or debit card abuse, and remand this case to the trial court for a new sentencing proceeding.

(1) The Evidence Is Legally Insufficient that Clinton “Used the Card, Within the Meaning of the Statute

A person commits the offense of credit or debit card abuse when “with intent to obtain a benefit fraudulently,” he or she “presents or uses a credit card or debit card with knowledge that ... the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder.” Tex. Penal Code Ann. § 32.31(b) (Vernon Supp. 2010). The indictment alleged Clinton

did then and there with intent to fraudulently obtain a benefit, use a debit card, namely a First National Bank debit card, with knowledge that the card had not been issued to the said defendant, and with knowledge that said card was not used with the effective consent of the cardholder, namely, S. Hubbard.

(Emphasis added.) While the State presented evidence that Clinton attempted to use the debit card, the State did not present any evidence that Clinton actually purchased anything with, or received any value from, the card.

The first question presented in our analysis is whether the State is bound by its allegations in the indictment. The State argues that the hypothetically correct jury charge would not be affected by its allegations in the indictment. The Texas Court of Criminal Appeals has held that eviden-tiary sufficiency should be measured against a “hypothetically correct” jury charge. See Gollihar v. State, 46 S.W.3d 243, 253 (Tex.Crim.App.2001); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). Malik controls “even in the absence of alleged jury charge error.” Gollihar, 46 S.W.3d at 255.

A “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Malik, 953 S.W.2d at 240. The “hypothetically correct” jury charge cannot completely rewrite the indictment, but such a charge need not “track exactly all of the allegations in the indictment.” Gollihar, 46 S.W.3d at 253. If the essential elements of the offense are modified by the indictment, the modification must be included. Id. at 254. The hypothetically correct charge, however, “need not incorporate allegations that give rise to immaterial variances.” Id. at 256.

The “ ‘law’ as ‘authorized by the indictment’ must be the statutory elements” of the offense charged “as modified by the charging instrument.” Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App.2000). The hypothetically correct jury charge must include both (1) allegations that form an integral part of an essential element of the offense, including allegations that are statutorily alternative manner and means and (2) material variances. Mantooth v. State, 269 S.W.3d 68, 74 (Tex.App.-Texarkana 2008, no pet.) (number of statute creating duty to register was not integral part of essential element); see Gollihar, 46 S.W.3d at 256.

Of the various ways to commit credit or debit card abuse, Section 32.31(b) of the Texas Penal Code provides as follows, in pertinent part:

(b) A person commits an offense if:
(1) with intent to obtain a benefit fraudulently, he presents or uses a credit card or debit card with knowledge that:
(A) the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder....

Tex. Penal Code Ann. § 32.31(b).

The first step in our analysis is to determine whether the phrase “presents or uses” sets out integral parts of an essential element of the crime, a statutory alternative manner and means of committing it, or mere extraneous statutory language. The Texas Court of Criminal Appeals has set out how to identify the essential elements of an offense and the alternate modes of commission, if any, by parsing the statutory text into the various parts of speech according to the rules of grammar. Pizzo v. State, 235 S.W.3d 711, 714 (Tex.Crim.App.2007) (determining whether jury unanimity was required).

The essential elements of an offense are, at a minimum: (1) “the subject (the defendant);” (2) “the main verb;” (3) “the direct object if the main verb requires a direct object (i.e., the offense is a result-oriented crime);” “the specific oceasion[;]” and the requisite mental state. The means of commission or nonessential unanimity elements are generally set out in “adverbial phrases” that describe how the offense was committed. Such phrases are commonly preceded “by the preposition ‘by[.]’ ”

Id. at 714-15.

Our Pizzo-directed analysis reveals that the subject of subsection (b)(1) of the statute is the pronoun “he” referring to “a person,” male or female. The words “presents or uses” are the main verbs, and “card” is the direct object. The phrase “with knowledge ... that the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder,” dictates the requisite mental state. Thus, the words “presents or uses,” as the main verbs, are integral parts of an essential element of the offense. The Texas Court of Criminal Appeals has instructed that any modification in an integral part of an essential element of the offense must be included in the hypothetically correct jury charge. Gollihar, 46 S.W.3d at 254. Thus, here, the State is bound by, and must have proven, its focused allegation that Clinton “used” the credit or debit card.

The next question in our analysis is the meaning of the word “use.” The State argues the word “use” includes the conduct at issue. The State urges this Court to adopt a definition that “any employment of the card” qualifies as “use.” The State analogizes to the deadly weapon statute, which has been interpreted to include “exhibit” within the definition of “use.” Although the deadly-weapon statute provides “used or exhibited,” the Texas Court of Criminal Appeals has construed the term “use” to mean “any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony.” Patterson v. State, 769 S.W.2d 938, 940 (Tex.Crim.App.1989). The court noted this interpretation included exhibiting and stated “one can ‘use’ a deadly weapon without exhibiting it, but it is doubtful one can exhibit a deadly weapon during the commission of a felony without using it.” Id. Patterson, however, did not concern a case where only one of the two terms was employed in the State’s deadly-weapon allegation. Id. As such, those words from Patterson are only dicta, not binding precedent applicable here. Further, deadly' weapon allegations are not subject to the same pleading requirements as integral parts of an essential element of an offense. A deadly-weapon allegation need not be presented in an indictment; “[a] defendant is simply entitled to written notice in some form that the use of a deadly weapon will be a fact issue at trial.” Ex parte Minott, 972 S.W.2d 760, 761 (Tex.Crim.App.1998) (concluding notice of deadly weapon allegation can be waived by pleading guilty).

The presence of both “presents” and “uses” in the statute applicable here, however, suggests that the definitions of the two words are intended to be mutually exclusive. If “uses” is interpreted broadly enough to cover what Clinton has been proven to have committed, the Texas Legislature would have had no purpose for including in the statute the word “presents” in addition to the word “uses.” Neither “use” nor “present” are common synonyms for each other. Merriam-Web-steR’s Collegiate Thesaurus 573-74, 825 (1988). “Present,” used as a verb, has numerous definitions, including “to hand over or submit, as a bill or check, for payment.” Random House Webster’s UnabRidged Dictionary 1529 (2d ed. 2001). “Use” also has numerous definitions. Id. at 2097. While “use” can certainly be understood so broadly that it could include the conduct defined as “present,” adopting a definition of “use” that includes all the conduct which qualifies as “present” would render the statutory word “present” meaningless. As a general rule of statutory construction, we should avoid statutory constructions that would render any parts of the statute meaningless. Tex. Gov’t Code Ann. § 811.021(2) (Vernon 2005) (each word in statute intended to be effective); Ludwig v. State, 931 S.W.2d 239, 242 (Tex.Crim.App.1996). In order to prevent the term “present” from being rendered meaningless, we conclude that “present” under Section 32.31 means to tender the debit or credit card, and “use” means to employ the card in any other manner including, but not limited to, successfully completing a transaction. Because the allegation at issue in this case is an integral part of an essential element, the State is bound by its allegation in the indictment. The State was obligated to prove that Clinton used the debit card.

Although the State presented evidence that the card had been used to purchase $33.36 worth of gasoline, no evidence linked Clinton to that transaction. All other evidence showed only that Clinton presented the card.

Harmon Greer and John Finney, police officers with the Gilmer Police Department, both testified they had reviewed Wal-Mart’s security video recording that showed Clinton attempting to make a purchase with the debit card. The security video recording from Wal-Mart was not introduced into evidence. Both Greer and Finney testified the debit card was declined at Wal-Mart. In a recorded statement introduced into evidence, Clinton admits to attempting to use the debit card to purchase cigarettes first at Wil-Max and then at Wal-Mart. Clinton states that— because her boyfriend’s nephew was too young to purchase cigarettes, yet had his parents’ permission to smoke cigarettes— she had agreed to purchase cigarettes for the nephew and a friend of his. Clinton claimed that she thought the card belonged to the nephew’s friend and that she thought something was wrong only after the card was declined at Wal-Mart. After the card was declined at Wal-Mart, Clinton admits that the nephew and his friend attempted to use the debit card at an ATM to get cash for Clinton to purchase cigarettes and attempted to purchase gasoline at Brookshire Brothers to fill up the tank of Clinton’s vehicle. Clinton, though, states the debit card was declined at Wil-Max, Wal-Mart, the ATM, and Brookshire Brothers. Thus, the record fails to establish Clinton employed the debit card in any manner other than tendering it as payment.

Alternatively, in case we interpret “uses” to exclude “presents,” the State argues that Clinton “used” the debit card by swiping it at the Wal-Mart checkout. Clinton admitted she swiped the card in a card reader provided for customers by Wal-Mart at a checkout station. We are not persuaded, however, that the State’s argument adds any meaningful difference to the discussion. This Court takes judicial notice that, in many stores, a credit or debit card is now ordinarily tendered by swiping it — the modern equivalent of handing over a card to a clerk or otherwise submitting it for payment. Thus, in our view, Clinton’s act in swiping the card qualifies only as presenting the card— since there is no evidence that her act of swiping the card resulted in a purchase or in value being obtained from the card.

Although the State presented evidence that Clinton was guilty of an act that could have qualified as credit or debit card abuse — i.e., presenting the debit card — the State failed to prove the act alleged in the indictment — i.e., using the debit card. Because there is no evidence that Clinton used the debit card, either as a principal or a party, the evidence is legally insufficient to sustain the conviction.

(2) Clinton Requested a Lesser-lncluded-Offense Instruction on Attempted Credit or Debit Card Abuse

The next question is whether we should modify the judgment to reflect a conviction for the lesser-included offense of attempted credit card abuse. See Tex. Penal Code Ann. § 15.01 (Vernon 2008), § 32.31. Clinton’s trial counsel requested an instruction on attempted credit card abuse, but it was denied by the trial court. Attempted credit or debit card abuse requires evidence that Clinton had the intent to commit credit or debit card abuse and did an act amounting to more than mere preparation that tended, but failed, to effect the actual commission of the offense intended. See Tex. Penal Code Ann. §§ 15.01, 32.31.

[A] court of appeals may reform a judgment of conviction to reflect conviction of a lesser included offense only if (1) the court finds that the evidence is insufficient to support conviction of the charged offense but sufficient to support conviction of the lesser included offense and (2) either the jury was instructed on the lesser included offense (at the request of a party or by the trial court sua sponte) or one of the parties asked for but was denied such an instruction.

Haynes v. State, 273 S.W.3d 183, 185 (Tex.Crim.App.2008); Logan v. State, 48 S.W.3d 296, 307 (Tex.App.-Texarkana 2001), aff'd, 89 S.W.3d 619, 630 (Tex.Crim.App.2002); cf. Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App.1999) (plurality op.). Clinton requested an instruction on attempted credit card abuse that was denied by the trial court, and the evidence is sufficient to support a conviction for attempted credit or debit card abuse. Therefore, we modify the judgment to reflect conviction for attempted credit card abuse.

For the reasons stated, we reverse Clinton’s conviction, modify the judgment to reflect a conviction for attempted credit or debit card abuse, and remand this case for a new sentencing proceeding.

      . Section 32.31 has been amended since the alleged commission of the offense in this case, but none of the amendments are relevant to this appeal.

      . Presiding Judge Keller has summarized Curry as holding, "[w)hen a statute lists more than one method of committing an offense, and the indictment alleges some; but not all, of the statutorily listed methods, the State is limited to the methods alleged.” Fuller v. State, 73 S.W.3d 250, 255 (Tex.Crim.App.2002) (Keller, P.J., concurring).

      . The Texas Court of Criminal Appeals cautioned that "[n]ot every list of alternatives in a statute will constitute a ‘manner or means' of committing the offense.” Curry, 30 S.W.3d at 398.

      . The State cites Adger v. State, where the First District Court of Appeals found the evidence sufficient when the State only alleged use and the evidence established the card was refused. 7 S.W.3d 899, 902 (Tex.App.-Houston [1st Dist.] 1999, no pet.). Adger, though, does not define the words, does not reference or cite the hypothetically correct jury charge, and states the issue argued was "the evidence was legally insufficient to prove he presented or used the credit card.” Id. We do not find Adger persuasive, because it does not address the question raised in this case — the allegation of only "uses."

      . Tex.Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2010); see Tex. Penal Code Ann. § 1.07(a)(17) (Vernon Supp. 2010).

      . The State may allege alternative theories in the conjunctive. See Swearingen v. State, 101 S.W.3d 89, 103 (Tex.Crim.App.2003). The State is bound, however, by its modifications to essential elements and statutory alternative manner and means.

      . Officer John Finney testified the card had been used to purchase $33.36 of gasoline at Brookshire Brothers. There is no evidence that Clinton was involved in this transaction, either as a principal or a party. Although Clinton admits in her interview to being a possible party to an unsuccessful attempt to purchase gasoline at Brookshire Brothers after attempting to use the card at Wal-Mart, she denied that her attempted purchase had been successful. In Clinton’s interview, Clinton states she knew the card had previously been used to purchase gasoline. In the interview, Finney states the successful attempt to purchase gasoline occurred before Clinton's visit to Wal-Mart.

      . Finney testified that there had been an unsuccessful attempt to use the debit card at an ATM.

      . In discussing the matter during the charge conference, the trial court correctly noted that Section 32.31 of the Texas Penal Code does not require that a benefit actually be obtained. The State, though, alleged only "use” and is bound by that allegation.