author: COCHRAN, J.,

text:
    Eduardo VALTIERRA & Heriberto Valtierra, Appellants, v. The STATE of Texas.
    Nos. PD-0906-09, PD-0907-09,PD-0908-09, PD-0909-09.
    Court of Criminal Appeals of Texas.
    May 5, 2010.

      M. Patrick Maguire, Kerrville, for Appellant.
    E. Bruce Curry, D.A., Kerrville, Jeffrey L. VanHorn, State’s Atty., Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the unanimous Court.

This appeal concerns the scope of a consent to search under the Fourth Amendment. Both the trial court and the court of appeals agreed that Heriberto Valtierra consented to have police officers enter his apartment to talk to Erica, a 13-year-old runaway. The question before us is whether, viewed in the light most favorable to the trial court’s ruling, the evidence is sufficient to show that the scope of Heriberto’s consent extended to the officer’s act of walking down the open hallway to knock on the bathroom door where Erica was said to be taking a shower. The trial court upheld the officer’s actions, but on the basis of a “protective sweep” or “exigent circumstances.” The Fourth Court of Appeals found that the officer did not have consent to walk down the hallway, nor were there exigent circumstances warranting a protective sweep. Because the record supports implied, if not explicit, consent to walk some twenty feet to the bathroom door, we conclude that the officer’s actions were reasonable and within the scope of the original consent to enter and investigate Erica’s whereabouts. We therefore reverse the court of appeals’s judgment and remand these cases for further proceedings.

I.

Appellants, brothers Eduardo and Heriberto Valtierra, were each charged with possession of methamphetamine and cocaine. They filed a motion to suppress, and the trial judge conducted a hearing, at which the following evidence was offered.

Boerne Police Officers Moneada and Rutledge received information about a possible female runaway at an apartment on South Plant Street in Boerne. Officer Moneada recognized the address because he had been sent there the week before on a domestic violence call and had spoken to a man and a young girl named Erica. The two officers went to the apartment and knocked on the door.

Heriberto Valtierra answered the door, and he and Officer Moneada talked in Spanish. Officer Moncada’s body microphone recorded the exchange, although several portions of the recording are inaudible. According to the transcript of the recording, Moneada asked if he could come in, and Heriberto said, “Of course, but I was just heating tortillas.” Both officers came into the apartment, and Moneada told him their purpose: “It’s because we are looking for Erica. Where’s Erica.” Heriberto replied, “Over there. She’s over there, inside,” and he waved toward the bathroom. Heriberto yelled out to her, “Erica, they’re calling you.” Moneada then asked if he could talk to her, and Heriberto said, ‘Tes, she’ll come out in a minute.”

At this point, a second man came out of a bedroom and walked into the living room where Officers Moneada and Rutledge were talking to Heriberto. The officers were surprised because they had thought that only Heriberto and Erica were in the apartment. That man said, “Let me close the door,” but was told to sit on the couch. Moneada asked the second man where Erica was, and he also said, “She’s inside, in the bathroom.” While they were waiting, Moneada asked Heriberto how he knew Erica, and Heriberto said that she was his niece. Moneada expressed skepticism and said, “I am, I am thinking Erica is not, did not give me her real name. And you know it.”

At this point, portions of the recording became inaudible. At the suppression hearing, Moneada testified that, when the girl did not come out of the bathroom, he asked Heriberto again where she was. Heriberto told him that Erica was taking a shower. Moneada was suspicious because he didn’t hear running water, so he asked Heriberto if he could go talk with her. Moneada testified that Heriberto said, ‘Tes,” and, as he began walking toward the bathroom — a distance of approximately 20 feet, he saw two more men inside another bedroom. Moneada testified that when the men saw him, they immediately threw or “stuffed” something under the bed. Moneada called to Rutledge, and the two officers moved the men out of the bedroom and into the living room. One of those men was Eduardo Valtierra.

Moneada knocked several times on the bathroom door, and Erica finally came out. Meanwhile, Officer Rutledge conducted a protective sweep of the bedroom. Rutledge testified that, after noticing drug paraphernalia in plain view during the protective sweep, he called a sergeant. When Eduardo, the lessee of the apartment, declined to sign a consent-to-search form, Officers Moneada and Rutledge contacted an investigator to apply for a search warrant. When the warrant arrived, the officers found cocaine, methamphetamine, a stolen weapon, cash, and various drug paraphernalia.

Heriberto’s testimony differed from Officer Moncada’s in two respects. First, Heriberto testified that Officer Moneada himself opened the front door and was already inside the apartment when he asked for permission to come in. Second, Heriberto testified that Moneada did not specifically ask him if he could go down the hall, but asked him, “Can I go over there?” Heriberto “did not answer because [he] was warming up the tortillas.” According to Heriberto, Moneada “just kept on talking to me and kept on walking towards the inside.”

The trial judge denied the motion to suppress and made written findings of facts and conclusions of law supporting the officers’ version of the events. Presumably as a result of his concern over the inaudible portions of the recording, the judge avoided the issue of consent to walk down the hall and denied appellants’ motion on an alternative basis: the officers legally discovered the contraband during a protective sweep. After their motion to suppress was denied, Eduardo and Heriberto pled guilty to both possession of methamphetamine and possession of cocaine with intent to deliver. Both appealed the trial judge’s suppression ruling.

The Fourth Court of Appeals reversed appellants’ convictions, finding that the officers had consent to enter the apartment, but that the record did not support consent to go down the hallway. In Heriberto’s case, the court of appeals declined to grant deference to any implied factual finding that Moneada had permission to proceed down the hallway. Citing this Court’s opinion in Cannouche v. State, it reasoned that the tape recording did not support such a finding. In both cases, the court of appeals further found that neither a protective sweep nor exigent circumstances supported Officer Moncada’s action, because the protective sweep was not conducted until after he had already walked down the hallway and seen the two men making furtive gestures. We granted review on four separate grounds, but we need address only the first two. Therefore, we dismiss grounds three and four.

II.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review. First, we afford almost total deference to a trial judge’s determination of historical facts. The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. He is entitled to believe or disbelieve all or part of the witness’s testimony — even if that testimony is uncontroverted — because he has the opportunity to observe the witness’s demeanor and appearance.

If the trial judge makes express findings of fact, we view the evidence in the light most favorable to his ruling and determine whether the evidence supports these factual findings. When findings of fact are not entered, we “must view the evidence ‘in the light most favorable to the trial court’s ruling’ and ‘assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.’ ”

Second, we review a trial court’s application of the law of search and seizure to the facts de novo. We will sustain the trial court’s ruling if that ruling is “reason-ably supported by the record and is correct on any theory of law applicable to the case.”

B. The Scope of Consent Under the Fourth Amendment

The Fourth Amendment protects individuals against unreasonable searches and seizures. “The touchstone of the Fourth Amendment is reasonableness.” We presume that a warrantless police entry into a person’s home is unreasonable unless the entry falls within an exception to the warrant requirement. Voluntary consent is one such exception. Although consent must be positive, it may be given orally or by action, or shown by circumstantial evidence. The validity of an alleged consent to search is a question of fact to be determined from the totality of the circumstances. Under Texas law, the State must prove voluntary consent by clear and convincing evidence.

The entry into a residence by police officers is a “search” for purposes of the Fourth Amendment, but an owner’s or occupant’s voluntary consent makes that entry constitutionally “reasonable.” Consent to enter a residence does not, without more, provide consent for a police officer to search the entire residence or objects therein. As the court of appeals aptly noted, “Once permitted into a residence, a police officer may take action only in accordance with the purpose for which he was invited or allowed into the residence.” The Supreme Court has explained, and we have held, that “the standard for measuring the scope of consent under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Of course, a person is free to limit the scope of the consent that he gives, but a person’s silence in the face of an officer’s further actions may imply consent to that further action. Furthermore, “[i]f the consent to search is entirely open-ended, a reasonable person would have no cause to believe that the search will be limited in some way.”

III.

In this case, the question is whether Officer Moneada had consent to walk some twenty feet down the apartment hallway to the bathroom door after Heriberto had said that Erica was taking a shower. The court of appeals found that he did not have consent to do so because the issue was “hotly contested” at the hearing, the body-microphone recording was inaudible at that point, and the trial judge did not make an explicit factual finding on that matter. Despite the lack of an explicit factual finding, we still must view the totality of the facts in the light most favorable to the trial court’s ultimate ruling.

First, Officer Moneada testified that he asked Heriberto if he could go down the hallway and, after listening to the tape recording, said that he could hear the Spanish word “puedo” — meaning “may I” or “can I” — on the recording. He also testified that Heriberto said “Yes.” Heriberto agreed that Officer Moneada asked him if he could “go over there,” but that he did not answer because he was heating the tortillas. Heriberto never testified or even suggested that he said that the officer could not or should not go knock on the bathroom door, that he did not want the officer to do so, or that he would have refused consent if asked.

The problem in this case may be that neither the trial judge nor the court of appeals sufficiently considered the scope of the consent given to Officer Moneada by Heriberto. The court of appeals correctly noted our prior opinions in Alberti and LeBlanc stating that, when an officer is invited into a residence, that is not an invitation to search the entire house. But those cases do not deal with the scope of a consensual entry and search.

In Florida v. Jimeno, the Supreme Court explained that “[t]he scope of a search is generally defined by its expressed object.” In that case, Mr. Jime-no gave the investigating officer permission to search his car, knowing that the officer was looking for drugs, and he “did not place any explicit limitation on the scope of the seareh.” Thus, it was “objectively reasonable for the police to conclude that the general consent to search [Jimeno’s] car included consent to search containers within that car which might bear drugs.” The Supreme Court carefully noted that a person may expressly limit the scope of his consent to search, “[b]ut if his consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization.” The same is true when dealing with the entry into and search of a house. If an officer is invited or permitted to come into a house for a particular purpose (such as to look for a particular person or object), the scope of the consent to enter normally includes consent to search those areas in which the person or object would reasonably be found. But the person who consents to the entry may specifically limit or revoke his consent.

In the present case, the court of appeals correctly stated that, “[o]nce permitted into a residence, a police officer may only take action in accordance with the purpose in which he was invited or allowed into the residence.” But the court of appeals did not go further and apply Jimeno’s “scope of consent” reasoning to the particular situation. The purpose of Officers Moneada and Rutledge in going to the Valtierra brothers’ apartment was to look for Erica whom they thought was the runaway girl. Moneada told Heriberto that this was their purpose. Heriberto was friendly and fully cooperative. He invited the officers in and said that Erica was there. He told Monea-da that she was “over there” in the bathroom. He agreed that Moneada could talk to her, and he yelled out to Erica, “They’re calling you.” The hallway and bathroom door were visible from the living room where Moneada was standing. Both Mon-eada and Heriberto testified that Moneada asked if he could go “over there” or down to the bathroom door; they differ only on whether Heriberto expressly said, ‘Tes.” No one testified that Heriberto said, “No,” or indicated in any manner that Moneada should not walk down the hall to knock on the bathroom door. Heriberto placed no limits or conditions upon the officers’ entry, nor did he attempt to confine their presence to any particular area of the apartment. Officer Moneada simply walked down the open hallway to the bathroom door, a path that was fully visible from his original location in the living room. It was only as he passed by the open bedroom door on his way to knock on the bathroom door, that he saw Eduardo and another man making furtive gestures.

Given the totality of these factual circumstances, and viewing them in the light most favorable to the trial judge’s ultimate ruling, the legal question is, what would “the typical reasonable person have understood by the exchange between the officer and the suspect?” We think that it was objectively reasonable for Officer Moneada to conclude that Heriberto’s general consent to come inside the apartment to find and talk to Erica included consent to walk down the open hallway to knock on the bathroom door.

Although the trial judge did not make an express finding concerning the scope of Heriberto’s consent, he did find that “Officer Moneada received oral consent to enter the apartment from Heriberto Valtierra.” Thus, we defer to the trial judge’s ultimate position that Officer Moneada was lawfully present in the hallway when he observed the two men in the bedroom making furtive gestures and throwing items under the bed. That finding does not end the Fourth Amendment inquiry, however, because the entry into the bedroom and the discovery of drug paraphernalia depend upon the legitimacy of the “protective sweep” that Officer Rutledge made after Officer Moneada saw the two men making “furtive gestures.” Although the court of appeals was correct in concluding that a “protective sweep” did not provide the basis for Officer Moncada’s walk down the hallway, it has not examined the Fourth Amendment reasonableness of the officers’ actions after Officer Moneada saw the furtive gestures.

We therefore reverse the judgments of the court of appeals and remand these cases to that court for further proceedings consistent with this opinion.

      . Eduardo Valtierra v. State, 293 S.W.3d 725 (Tex.App.-San Antonio 2009); and Heriberto Valtierra v. State, 293 S.W.3d 697 (Tex.App.San Antonio 2009). Separate panels decided these cases and issued separate opinions. Both opinions, however, contained the same reasoning and result. We consolidated the two appeals for purposes of discretionary review.

      .The trial judge specifically found that “[f]rom the front door, the officers could see the bathroom door.”

      . Heriberto admitted that he had lied to the officer about “Erica" being his niece.

      . The sound of knocking is first heard on the recording, and, after that, Officer Moneada said, “What's up, cousin?’’ When Heriberto began to respond with “What's up my — ,” Moneada interrupted and said, "Police. May I talk to you, right now?” Heriberto said, "Of course.” Moncada’s next words were, “May I come in?” Heriberto responded, "Of course, but I was just heating tortillas.”

      . During Officer Moncada’s testimony, the trial judge expressed concern that the tape recording did not reflect either that Moneada asked for permission to go down the hall to knock on the bathroom door or that Heriberto gave him explicit permission. The judge said that the inaudible portion did not last very long, and therefore he did not think that the recording supported Officer Moncada’s testimony on this point. Later, Heriberto testified and stated that Moneada did ask for his consent to “go over there,” but that he did not respond because he was still heating the tortillas.

      . In his written findings, the trial judge found that Moneada received oral consent from Heriberto to enter the apartment, and he found that the officers searched the bedroom for "officer safety” and to secure the area. The trial judge also found that, once the officers saw an unknown person emerge from the back of the apartment, they were entitled to move across the living room and down the hallway to conduct a protective sweep for officer safety. Further, he found that, for her own protection, the officers were permitted to go down the hallway to contact the person thought to be a runaway.

      . Eduardo Valtierra, 293 S.W.3d at 735 ("[T]he record does not provide clear and convincing evidence that Heriberto gave Officer Moneada permission to move across the living room and down the hallway.”); Heriberto Valtierra, 293 S.W.3d at 703 ("[T]he record in this case does not support an implied finding that the State proved by clear and convincing evidence that Heriberto gave consent for Officer Moneada to proceed down the hallway toward the bathroom.”).

      . 10 S.W.3d 323, 332 (Tex.Crim.App.2000) (declining to give “almost total deference” to trial court’s implicit findings because “the videotape presents indisputable visual evidence contradicting the essential portions” of the arresting officer's testimony).

      . Heriberto Valtierra, 293 S.W.3d at 702 (noting that, in Cannouche, “the Texas Court of Criminal Appeals declined to defer to a trial court's implied finding of consent.”).

      . Eduardo Valtierra, 293 S.W.3d at 732-33; Heriberto Valtierra, 293 S.W.3d at 703-04.

      . The State's four grounds for review are as follows:
      1. After viewing the evidence in the light most favorable to the trial court's findings and conclusions, did the Honorable Court of Appeals err in finding that the officer did not have consent to walk down the apartment hallway to the location of the runaway child, when a resident of the apartment, Heriberto Valtierra, had just told the officer where the female runaway child was located and consented to the officer talking to her?
      2. Did the Honorable Court of Appeals fail to apply the proper standard of review pursuant to Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997), in that the Court failed to consider all of the facts and circumstances shown to have been in the possession of the officers at the time of the incident?
      3. Did the Honorable Court of Appeals err in finding that the protective sweep conducted by law enforcement officers was not justified for safety of the officers or the child?
      4. Did exigent circumstances exist for law enforcement officers to proceed down a hallway toward a room where the runaway child was said to be located, given the fact that her status was that of a "runaway,” and that adult males were seen in the residence with this 13 year old female, together with observations made of suspicious activities by one of the four adult males?

      . See Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

      . See Guzman, 955 S.W.2d at 89.

      . State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

      . Id.

      . State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006).

      . See Harrison v. State, 205 S.W.3d 549, 552 (Tex.Crim.App.2006) (quoting Ross, 32 S.W.3d at 855); see also Kelly, 204 S.W.3d at 819.

      . See Wiede v. State, 214 S.W.3d 17, 25 (Tex.Crim.App.2007); Kelly, 204 S.W.3d at 818.

      . State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006).

      . U.S. Const, amend. IV.

      . Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).

      . Johnson v. State, 226 S.W.3d 439, 443 (Tex.Crim.App.2007).

      . Id.; see United States v. Matlock, 415 U.S. 164, 165-66, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ("[T]he search of property, without a warrant and without probable cause, but with proper consent voluntarily given, is valid under the Fourth Amendment.”).

      . See Johnson, 226 S.W.3d at 446 n. 27 (actual consent may be shown by circumstantial evidence); Gallups v. State, 151 S.W.3d 196, 201 (Tex.Crim.App.2004) (consent to enter home could be inferred from defendant's action of motioning officer to come forward); Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App.1991) (consent to search "must be shown to be positive and unequivocal, and there must not be any duress or coercion”).

      . Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Gallups, 151 S.W.3d at 200-01; Guevara v. State, 97 S.W.3d 579, 582 (Tex.Crim.App.2003); Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002).

      . Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App.2000); Meeks v. State, 692 S.W.2d 504, 509 (Tex.Crim.App.1985).

      . Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (the Fourth Amendment prohibition against the warrantless entry of a person’s home does not apply when the police obtain the voluntary consent to enter from the owner or other person with common authority over the residence).

      . See Alberti v. State, 495 S.W.2d 236, 237 (Tex.Crim.App.1973); LeBlanc v. State, 424 S.W.2d 434, 436 (Tex.Crim.App.1968).

      . Heriberto Valtierra, 293 S.W.3d at 702; Eduardo Valtierra, 293 S.W.3d at 731 (citing Alberti, 495 S.W.2d at 237; LeBlanc, 424 S.W.2d at 436); see also Robertson v. State, 375 S.W.2d 457, 458 (Tex.Crim.App.1964) ("[A] waiver of constitutional immunity from unreasonable search and seizure could not be inferred from the acts of accused in admitting police officers into his apartment in compliance with their request for an interview”; officers improperly searched apartment, including desk drawer and a trash sack).

      . Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); Johnson v. State, 226 S.W.3d 439, 443 (Tex.Crim.App.2007). In Johnson, we quoted from State v. Koucoules, 343 A.2d 860, 868 (Me.1974), concerning the proper scope of a consensual search;
      A consent search is a limited and conditional search only insofar as the consenting party has expressly stated, or, under the reasonable man standard in the light of all the existing circumstances, is deemed in fact to have impliedly attached, certain limitations under which the officers are authorized by him to search. The character of the search is determined by the scope of the authorization as understood by reasonable men having knowledge of all the existing factual circumstances, and not by any limitational rule of law applicable to all consent searches.

        Johnson, 226 S.W.3d at 446 n. 30.

      . Jimeno, 500 U.S. at 252, 111 S.Ct. 1801 ("A suspect may of course delimit as he chooses the scope of the search to which he consents.”); see also Painter v. Robertson, 185 F.3d 557, 567 (6th Cir.1999) (“Although a premises search conducted pursuant to valid consent cannot violate the Fourth Amendment, the consenting party may limit the scope of that search, and hence at any moment may retract his consent.”) (internal citation omitted).

      . See, e.g., United States v. Stapleton, 10 F.3d 582, 584 (8th Cir.1993) (given suspect's silence when he was told of the object of the search, "it was objectively reasonable” for the officers to conclude that they had all the consent that was constitutionally required or that they had suspect’s implied consent); see generally, State v. Flippo, 212 W.Va. 560, 575 S.E.2d 170, 178-80 (2002) (discussing doctrine of implied consent to search a home and collecting numerous cases from various jurisdictions and concluding that "consent to search may be implied by the circumstances surrounding the search, by the person's prior actions or agreements, or by the person’s failure to object to the search. Thus, a search may be lawful even if the person giving consent does not recite the talismanic phrase; ‘You have my permission to search.’ ”).

      . United States v. Mendoza-Gonzalez, 318 F.3d 663, 670 (5th Cir.2003).

      . In Heriberto’s case, the court of appeals relied upon our opinion in Carmouche for the proposition that, when an audio or visual tape recording directly contradicts a witness’s testimony, appellate courts may decline to defer to a trial judge's implicit finding that the witness's testimony is accurate. Heriberto Valtierra, 293 S.W.3d at 703 (quoting Carmouche v. State, 10 S.W.3d 323, 332 (Tex.Crim.App.2000)). But in the present case, the tape recording does not contradict Officer Moncada’s testimony; it is simply inaudible and therefore does not affirmatively support his testimony.

      . See Heriberto Valtierra, 293 S.W.3d at 703; Eduardo Valtieira, 293 S.W.3d at 731.

      . Guzman, 955 S.W.2d at 89.

      . See Alberti v. State, 495 S.W.2d 236, 237 (Tex.Crim.App.1973); LeBlanc v. State, 424 S.W.2d 434, 436 (Tex.Crim.App.1968).

      . 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).

      . Id. at 251, 111 S.Ct. 1801.

      . Id.

      . Id.

      . Id. at 252, 111 S.Ct. 1801.

      . See, e.g., United States v. Mains, 33 F.3d 1222, 1227 (10th Cir.1994) (consent to enter apartment and look for parolee included, within its scope, officers' action of looking further than the living room into "any area in the apartment large enough to accommodate” the person they were seeking, including a bedroom walk-in closet).

      . Heriberto Valtietra, 293 S.W.3d at 702; Eduardo Valtierra, 293 S.W.3d at 731.

      . Courts may "look beyond the language of the consent itself, to the overall context, which necessarily encompasses contemporaneous police statements and actions.’’ United States v. Turner, 169 F.3d 84, 87 (1st Cir.1999) (discussing scope of consent under Jim-eno ).

      . See United States v. Wesela, 223 F.3d 656, 661 (7th Cir.2000) (woman who called officers and consented to their entry into her apartment to arrest her husband consented to the search for her husband and gun, even though there was "no direct verbal exchange” in which she expressly consented to the search as "events indicate[d] her implicit consent”; "[d]ue to the proximity of the rooms, [she] was probably aware of what was going on in her bedroom and elsewhere in the apartment. Had she wished to do so, she could have objected to [the detective's] search.”).

      . See id; see also United States v. Gould, 364 F.3d 578, 588-89 (5th Cir.2004) (officers told mobile home occupant that they were looking for a specific person; occupant said he was there, probably asleep in the bedroom, and invited them in to "check it out”; officers went to master bedroom, found no one, opened closet door and found guns; holding that officers had consent to go inside and search, but not into that person’s private bedroom; nonetheless, upholding discovery of guns as they were found during a legitimate "protective sweep”).

      . See United States v. Wesela, 223 F.3d at 661 ("[Wjhether a search was within the boundaries of consent is determined according to the 'totality of all the circumstances.’ ”) (quoting United States v. Torres, 32 F.3d 225, 230-31 (7th Cir.1994)).

      . See State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008) ("[T]he party that prevailed in the trial court is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.”).

      . Jimeno, 500 U.S. at 251, 111 S.Ct. 1801; see United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir.1992) (under Jimeno, "the question of objective reasonableness is a question of law, [but] the factual circumstances surrounding the consent are central to determining the nature of the consent and how it would have been understood by a reasonable person.").

      . See Jimeno, 500 U.S. at 251, 111 S.Ct. 1801; see also United States v. Saadeh, 61 F.3d 510, 518 (7th Cir.1995) (under Jimeno, consent to search mini-warehouse for money, narcotics, and guns included, within its scope, search of desk and toolbox when consenting person "did not put any express limitation on the scope of her consent.”).

      . See Gould, 364 F.3d at 589-91 (discussing "protective sweep” of bedroom based on reasonable suspicion after officers had obtained consent to enter mobile home to look for a specific person).


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte Alan Eugene HARRINGTON, Applicant.
    No. AP-76,288.
    Court of Criminal Appeals of Texas.
    May 26, 2010.

      Brian Roark, Austin, for Appellant.
    Philip L. Hall, Crim. Dist. Atty., Bas-trop, Jeffrey L. VanHorn, State’s Atty., Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the unanimous Court.

The issue in this case is whether post-conviction habeas-corpus relief is available under Article 11.07 if an applicant has discharged his sentence, but continues to suffer collateral consequences arising from the conviction. We hold that it is.

In this case, applicant contends that ha-beas corpus lies because his plea was involuntary due to counsel’s ineffectiveness in failing to investigate a prior DWI conviction used to enhance applicant’s misdemeanor DWI charge to a felony charge. He claims that he is confined as a result of his conviction and is thus entitled to habe-as relief. We find that because applicant currently suffers collateral consequences arising from his conviction, he is “confined” for the purpose of seeking habeas relief under article 11.07. We also adopt the trial judge’s Agreed Findings of Fact (which are supported by the record) and his recommendation to grant relief on applicant’s involuntary-plea claim.

I. Background

Applicant was arrested in Bastrop County for DWI in February 2006 and was indicted for Felony DWI. The indictment listed two prior DWI convictions as reflected in applicant’s criminal-history report for the purpose of enhancement: the first, in Austin County in 1986; the second, in Travis County in 2003. In May 2006, upon the advice of his attorney, applicant pleaded guilty to the felony DWI and received probation. Applicant’s probation was later revoked, and he was sentenced to two years in prison and a $2,500 fine.

Prior to entering his guilty plea, applicant told his appointed attorney that the 1986 conviction did not belong to him and was mistakenly listed on his criminal-history report. The conviction actually belonged to Jesse Armistead, a man who had dated applicant’s sister and had stolen applicant’s driver’s license. Armistead was arrested for DWI, presented applicant’s driver’s license and identified himself as applicant to police. He was convicted of DWI under applicant’s name. Although applicant had given his attorney this information, that attorney failed to investigate the prior conviction and advised applicant to plead guilty to the felony DWI. According to applicant, his attorney told him “that the District Attorney would just refile the case and that [he] would be found guilty anyway.” Applicant followed his attorney’s mistaken advice. Seven days later, the Austin County Criminal District Attorney sent applicant a letter confirming applicant’s version of the 1986 DWI.

In July 2008, the Austin Police Department conducted a fingerprint analysis, which confirmed that applicant was not the person attached to the 1986 conviction. In 2009, applicant filed a habeas-corpus application under article 11.07, seeking relief from the 2006 conviction. He contended that his plea was not voluntary because it was the fruit of ineffective assistance of counsel. We remanded this case to the trial court to determine (1) if applicant had discharged his sentence; and (2) whether he was suffering any specific collateral consequences as a result of the 2006 conviction. After an evidentiary hearing, and with the agreement of the State, the trial court entered its findings and conclusions, including the following:

• The applicant is not in custody and his sentence for his felony conviction has been discharged.
• As a result of the applicant’s wrongful conviction for a felony DWI he has suffered the following collateral consequences:
a. Loss of his job -with the Texas Workforce Commission due to his incarceration as a result of his wrongful felony conviction;
b. Loss of job opportunities due to his criminal felon status;
c. Loss of his right to vote during his incarceration and parole period;
d. Loss of his right to run for an elected public office;
e. Loss of his right to possess firearms.
• The applicant may be affected by future collateral consequences as a result of his felony DWI conviction. Those consequences may include:
a. Enhanced penalties should he be charged and convicted of a subsequent felony offense;
b. Enhanced penalty for any subsequent DWI conviction;
c. Possible impeachment of the applicant’s credibility in a judicial hearing as a result of a felony conviction within 10 years of his testimony should he be called to testify under the Texas Rules of Evidence.
• With only one valid prior DWI conviction in the indictment in this cause, the applicant could not be convicted of Felony Driving While Intoxicated.
• The felony conviction in this cause should be set aside.
• The applicant should be convicted of Class A Misdemeanor Driving While Intoxicated.

In sum, the trial court found, and the record supports, that applicant lost his long-time job with the Texas Workforce Commission as a result of his felony conviction. He testified that he attempted to find new employment at the University of Texas in the Information Technology field, but once he admitted that he had a felony DWI conviction, he was not allowed to continue with the application process. He is currently a construction worker. Applicant also testified that, if the 2006 felony conviction remains on his record, he will continue to be prevented from obtaining other jobs for which he would otherwise be qualified. The trial judge further found that applicant was wrongfully convicted of felony DWI and recommended setting the conviction aside. The State agreed that applicant was entitled to relief.

II. Collateral Consequences

A. Jurisdiction

Under Article 11.07, a person who files a habeas-corpus application for relief from a final felony conviction must challenge either the fact or length of confinement. In this case, the question is whether a person who has discharged his sentence prior to filing an application, but who continues to suffer collateral consequences arising from the challenged conviction, is entitled to seek post-conviction habeas relief under Article 11.07.

Article 11.07, which sets forth the procedure for non-death-penalty felony cases, provides that “it shall be the duty of the convicting court to decide whether there are controverted, previously unresolved facts material to the legality of the applicant’s confinement.” Prior to 1995, the statute did not define “confinement.” In 1987, this Court held, in Ex parte Renier, that an applicant who alleges only that he is under “restraint,” but who is not “in custody” at the time of filing, is precluded from seeking relief under Article 11.07. We concluded that, “unless an applicant is confined pursuant to a commitment for a felony conviction, a postconviction application for habeas corpus relief from collateral consequences of another conviction will not lie under Article 11.07.”

But in 1995, the statute was amended to eliminate Ex parte Renter’s construction of “confinement” as requiring literal confinement. Article 11.07, § 8(c), now explicitly provides that “confinement means confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.” Thus, a showing of a collateral consequence, without more, is now sufficient to establish “confinement” so as to trigger application of art. 11.07. That an applicant is not in the actual physical custody of the government at the time of filing does not preclude his application nor deprive the trial court of jurisdiction to consider it.

B. Standard of Review

The trial judge is the original fact-finder in habeas corpus proceedings. Al-though this Court is the ultimate factfin-der, “in most circumstances, we will defer to and accept a trial judge’s findings of fact and conclusions of law when they are supported by the record.” We similarly defer to any implied findings and conclusions supported by the record.

C. Application

The trial judge found that applicant suffers current and potential future consequences arising from his 2006 conviction, including the loss of his job and other suitable employment opportunities; loss of his right to run for public office; loss of his right to possess firearms; enhanced penalties for any future convictions; and potential impeachment of his credibility in future judicial hearings. The record supports the trial judge’s findings concerning the adverse consequences to applicant’s present and future employment opportunities. We agree with the trial judge’s finding that applicant is “confined” for purposes of article 11.07. Therefore, this Court has jurisdiction to consider the merits of his claim.

III. Involuntary Plea

Applicant argues that his plea was involuntary because of unconstitutionally ineffective assistance of counsel. He claims that, but for his attorney’s failure to investigate the alleged prior convictions used to enhance the offense, he would not have pleaded guilty to the felony charge.

A. Law

A defendant has a Sixth Amendment right to the effective assistance of counsel in guilty-plea proceedings. To obtain habeas-corpus relief for ineffective assistance of counsel under Strickland v. Washington, an applicant must show that his counsel’s performance was unconstitutionally deficient and “that there is a ‘reasonable probability’ — one sufficient to undermine confidence in the result — that the outcome would have been different but for his counsel’s deficient performance.” Specifically, when a person “challenges the validity of a plea entered upon the advice of counsel, contending that his counsel was ineffective, ‘the voluntariness of the plea depends on (1) whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty ” to the charged offense and would have insisted on going to trial.

A criminal-defense attorney “must have a firm command of the facts of the case” before he or she may render reasonably effective assistance of counsel. Counsel has a duty to provide advice to his client about what plea to enter, and that advice should be informed by an adequate investigation of the facts of the case or be based on a reasonable decision that investigation was unnecessary. When counsel’s representation falls below this standard, it renders any resulting guilty plea involuntary.

A claim of ineffective assistance of counsel must be determined upon the particular circumstances of each individual case. Strategic or tactical considerations are not considered deficient “unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged in it.’ ” But “[w]hen no reasonable trial strategy could justify the trial counsel’s conduct, the counsel’s performance falls below an objective standard of reasonableness as a matter of law.” And although this Court “has been hesitant to ‘designate any error as per se ineffective assistance of counsel as a matter of law,’ it is possible that a single egregious error of omission or commission by [applicant]’s counsel constitutes ineffective assistance.” We have found, on some occasions, that counsel’s failure to challenge a prior conviction improperly used to enhance a charge to be one such error.

B. Application

In this case, applicant told his appointed attorney that the 1986 conviction did not belong to him. Nevertheless, counsel failed to conduct even a cursory investigation into the alleged prior conviction, an allegation that enhanced the offense from a misdemeanor to a felony. Then, without having researched the facts of his case, he advised his client to enter a plea of guilty “because the District Attorney would just re-file the case.” Indeed he would; but he would re-file it as a misdemeanor, not as a felony, and there is an enormous distinction between the two. Because the record reveals no reasonable strategy in counsel’s failure to investigate or in his advice to applicant to plead guilty to felony DWI, we conclude that counsel’s conduct fell below the wide range of attorney competence as a matter of law.

Our next inquiry is whether applicant’s decision to plead guilty was a result of counsel’s deficient performance. Applicant testified that his decision to plead guilty was based entirely on his attorney’s advice that he do so. Moreover, the trial court made findings favorable to applicant and recommended that his felony conviction be set aside. Based on our review of the record and in light of the trial court’s express and implied findings, we find that applicant has met his burden of showing a reasonable probability that, but for counsel’s erroneous advice, he would not have entered a guilty plea. We thus agree with the trial judge who found that applicant’s “plea was involuntarily made back on May 10, 2006.”

IV. Conclusion

Because the trial judge found that applicant suffers collateral consequences, applicant has established that he is “confined” under article 11.07. Applicant’s guilty plea was the result of ineffective assistance of counsel and was thus involuntary. Moreover, the parties and the trial judge all agree that applicant was wrongly convicted of a felony DWI when he should have been convicted of only a misdemeanor DWI. We therefore grant relief and remand this case to the trial court for re-sentencing as a Class A misdemeanor.

      . Tex.Code Crim. Proc. art. 11.07.

      . Applicant’s sole ground for relief stated that "Applicant's plea was not voluntary and intelligent, but rather was the fruit of ineffective assistance of counsel. Applicant's trial counsel failed to investigate prior alleged convictions used to enhance applicant's misdemean- or charge to a felony charge. One of the prior convictions used for enhancement purposes was not the Applicant's conviction and appeared mistakenly on his criminal history.”

      .Tex. Pen.Code §§ 49.04, 49.09. DWI is a Class B misdemeanor unless it is shown that an offender has a previous conviction for a similar offense. Evidence of one previous conviction enhance the offense to a Class A misdemeanor; two previous convictions enhances the offense to a third-degree felony.

      . The trial judge made an explicit finding that applicant had been the "victim of identity theft" by Jesse Armistead.

      . That letter stated that "Jesse Armistead was booked into the Austin County Jail using [applicant’s] name” and later pled guilty to DWI, again using applicant’s name.

      . Ex parte Lockett, 956 S.W.2d 41, 42 (Tex.Crim.App.1997).

      . Arl. 11.07, § 3(c).

      . Ex parte Renier, 734 S.W.2d 349, 353 (Tex.Crim.App.1987).

      . Id.

      . Acts of May 24, 1995, 74th Leg., R.S., ch. 319, § 5, sec. 3(c), 1995 Tex. Gen. Laws 2764, 2771 (eff. Sept. 1, 1995) (current version at Tex.Code Crim. Proc. art. 11.07, § 3(c)).

      . Tex Code Crim. Proc. art. 11.07, § 3(c) (emphasis added).

      . See Ex parte Alba, 256 S.W.3d 682, 695-96 (Tex.Crim.App.2008) (Price, J., dissenting) (concluding that, in light of the 1995 amendment, "[i]t is doubtful ... that literal confinement is even a prerequisite to post-conviction habeas relief under Article 11.07 anymore”); Ex parte Chi, 256 S.W.3d 702, 710 (Tex.Crim.App.2008) (Price, J., dissenting) (same); Lebo v. State, 90 S.W.3d 324, 327 n. 8 (Tex.Crim.App.2002) (citing the amendment, noting that "the Legislature is [thus] well aware of the general use of the word 'confinement' and perfectly capable of expanding that definition when it deems it appropriate.”); Ex parte Okere, 56 S.W.3d 846, 853 (Tex.App.-Fort Worth 2001, pet. ref’d) (holding that, due to the amendment, "Ex parte Renter's 'in custody’ definition of 'confinement' is no longer viable, even for an applicant seeking relief under article 11.07.”); State v. Collazo, 264 S.W.3d 121, 126-27 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd) ("The terms ‘confinement’ and 'restraint' encompass incarceration, release on bail or bond, release on community supervision or parole, or any other restraint on personal liberty”); (applicant was "confined” because he was denied the opportunity to obtain a Texas peace-officer license).

      . Ex parte Reed, 271 S.W.3d 698, 727 (Tex.Crim.App.2008); Ex parte Simpson, 136 S.W.3d 660, 668-69 (Tex.Crim.App.2004) (the trial judge "is the collector of the evidence, the organizer of the materials, the decision-maker as to what live testimony may be necessary, the factfinder who resolves disputed factual issues, the judge who applies the law to the facts, enters specific findings of fact and conclusions of law, and may make a specific recommendation to grant or deny relief. This Court then has the statutory duty to review the trial court's factual findings and legal conclusions to ensure that they are supported by the record and are in accordance with the law. We are not the convicting trial court, and we are not the original factfin-ders.”) (footnote omitted) (emphasis in original).

      . Ex parte Reed, 271 S.W.3d at 727; see also Ex parte Van Alstyne, 239 S.W.3d 815, 817 (Tex.Crim.App.2007).

      . Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex.Crim.App.2006).

      . An applicant seeking habeas relief should allege with specificity the facts establishing his confinement — the details of his physical custody or the nature of collateral consequences he suffers — lest his application be dismissed for lack of jurisdiction. See, e.g., Ex parte Wongjaroen, No. 14-07-00593-CR, 2008 WL 4809494, at *3 n. 2, 2008 Tex.App. LEXIS 8319, *10-11 n. 2 (Tex.App.-Houston [14th Dist.] Nov. 6, 2008, pet. ref’d) (not designated for publication) (applicant provided no evidence or supporting facts of the confinement alleged in her affidavit, thus the court was "unconvinced” that her application was sufficient to invoke the jurisdiction of the trial court; nonetheless addressing the merits in "an abundance of caution.”).

      . Rouse v. State, 300 S.W.3d 754, 762 n. 17 (Tex.Crim.App.2009) (a claim of involuntary plea may be raised on habeas corpus, as the claim may be supported by information from sources broader than the appellate record).

      . Ex parte Reedy, 282 S.W.3d 492, 500-01 (Tex.Crim.App.2009).

      . Ex parte Chandler, 182 S.W.3d 350, 353 (Tex.Crim.App.2005) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

      . Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App.1999) (quoting Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App.1997)); Reedy, 282 S.W.3d at 500.

      . Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App.1990).

      . Reedy, 282 S.W.3d at 500.

      . Goodspeed v. State, 187 S.W.3d 390, 392-93 (Tex.Crim.App.2005).

      . Reedy, 282 S.W.3d at 500.

      . Jackson v. State, 766 S.W.2d 504, 508 (Tex.Crim.App.1985).

      . Goodspeed, 187 S.W.3d 390, 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001)).

      . Freeman v. State, 125 S.W.3d 505, 512 (Tex.Crim.App.2003) (Price, J., dissenting) (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052).

      . Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999) (quoting Jackson v. State, 766 S.W.2d 504, 508 (Tex.Crim.App.1985)).

      . See Ex parte Felton, 815 S.W.2d 733, 735-36 (Tex.Crim.App.1991) (failure to challenge a void prior conviction used to enhance punishment rendered counsel ineffective); Ex parte Scott, 581 S.W.2d 181 (Tex.Crim.App.1979) (ineffective assistance where counsel failed to adequately investigate applicant’s prior conviction and failed to know the law to be applied to that prior conviction).

      . Ex parte Felton, 815 S.W.2d at 735-36; see also Ex parte Langley, 833 S.W.2d 141, 143-44 (Tex.Crim.App.1992) (counsel who failed to make even a cursory investigation into whether prior "shock probation” conviction used for enhancement purpose was a "final” one was constitutionally ineffective; relief granted).

      . The trial judge also explicitly found “that there are not any other prior Driving While Intoxicated convictions that are available for enhancement purposes.... So, therefore, the Court finds, as a matter of law, that this is a wrongful felony conviction for Mr. Harrington, as a matter of law.”


author: KELLER, P.J., MEYERS, J., filed a

text:
    Julian KUCIEMBA, Appellant, v. The STATE of Texas.
    No. PD-0512-09.
    Court of Criminal Appeals of Texas.
    May 26, 2010.

      John V. Elick, Bellville, for Appellant.
    Jeffrey L. Van Horn, State Prosecuting Atty., Austin, for State.
   KELLER, P.J.,

delivered the opinion of the Court

in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant was found behind the steering wheel, injured and intoxicated, at the scene of a one-car rollover accident, with a blood-alcohol level of more than twice the legal limit. The court of appeals found the evidence to be insufficient to show that appellant was intoxicated at the time that the accident occurred. We disagree and reverse the judgment of the court of appeals.

I. BACKGROUND

A. The Incident

Sheriffs Deputy Jonathan Prior received a dispatch for a one-vehicle, rollover accident, with injuries. He arrived to find a pickup truck in a ditch. The truck was upright on its wheels, but the roof was partially crushed, indicating that the vehicle had completely rolled over. Appellant was behind the steering wheel. Upon arriving, Deputy Prior saw appellant slide across the center console and exit on the passenger side. Appellant had small cuts on his forehead, and blood was running down his face. Deputy Prior smelled a strong odor of alcohol on appellant’s breath and noticed that appellant had to steady himself on his vehicle. Appellant’s eyes were glassy and bloodshot, he had difficulty standing, and his speech was slurred. Appellant said that he had fallen asleep.

Approximately three minutes later, EMS arrived, and appellant was loaded into an ambulance. David Zeiders, one of the paramedics, smelled alcohol, but was not sure whether the odor was coming from appellant’s breath or his person. Zeiders noticed cuts on appellant’s face and hands and a red strap mark across appellant’s chest where his seat belt would have been. Appellant said that he did not lose consciousness, but he also did not remember the accident. Zeiders drew blood from appellant before the ambulance left the scene.

No alcoholic beverages or containers were found in the pickup truck or at the scene. No skid marks were found on the roadway — indicating that appellant did not brake before the rollover occurred. The blood that was drawn at the scene was later tested at the hospital, revealing a blood alcohol level of .214.

B. Appeal

The court of appeals found the evidence to be legally insufficient to show that appellant was intoxicated at the time he was driving. The court identified the critical inquiry as whether there was a temporal link between appellant’s driving and the intoxication. It relied upon opinions from the Court of Appeals for the First District for the proposition that, absent evidence in the record establishing the time of the accident or of a defendant’s conduct in driving in a public place, evidence is insufficient to show that a defendant drove while he was intoxicated. The court observed that, in this case, the State presented neither witnesses to “testify regarding appellant’s driving before the accident occurred” nor evidence to “establish how soon after the accident Deputy Prior arrived at the scene.” It therefore held that there was neither direct nor circumstantial evidence to establish the necessary temporal link. The court held that the evidence given at trial supported “a finding that appellant was intoxicated at the accident scene” but was “insufficient to show that appellant was intoxicated while driving.”

II. ANALYSIS

As the court of appeals correctly noted, in order for the evidence to be sufficient to support a conviction for driving while intoxicated, there must be a temporal link between the a defendant’s intoxication and his driving. But a conviction can be supported solely by circumstantial evidence. “Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor” and “the standard of review on appeal is the same for both direct and circumstantial evidence cases.”

Being intoxicated at the scene of a traffic accident in which the actor was a driver is some circumstantial evidence that the actor’s intoxication caused the accident, and the inference of causation is even stronger when the accident is a one-car collision with an inanimate object. We find instructive a case from the Supreme Court of Nebraska with similar facts:

It is true that there is no direct evidence establishing the amount of time which elapsed between [the defendant] Black-man’s last act of driving and [the deputy] Neumiller’s arrival at the scene. However, we do not regard such evidence as essential to a reasonable inference that Blackman operated his motorcycle on the county road in violation of [the DUI statute], in light of the totality of the circumstantial evidence in the record.
* * *
The evidence in this case establishes that Neumiller arrived at the scene 15 to 20 minutes after receiving a report that a motorcycle had been observed in the ditch by a passing motorist. Neumiller initially observed Blackman lying in the ditch next to his motorcycle, and Black-man admitted to Neumiller that he had been operating the motorcycle on the county road immediately before he lost control and landed in the ditch. Neu-miller observed symptoms of intoxication almost immediately upon encountering Blackman. There is no evidence in the record of other persons, liquor, or liquor containers in the area where Blackman was found by the officer, nor is there any other evidence which would support an inference that Blackman had the means or opportunity of ingesting alcohol from the time he lost control of the motorcycle until the officer found him lying beside it in the ditch. Black-man argues that the State did not offer evidence to exclude this possibility, but we do not regard the State’s burden of proving guilt beyond a reasonable doubt as requiring it to disprove every theoretical hypothesis other than guilt. In this case, it can reasonably be inferred that the deputy found Blackman where he had come to rest after losing control of his motorcycle and that Blackman’s state of intoxication at that time existed when he last operated the motorcycle on the county road.

Moreover, a driver’s failure to brake also provides some evidence that the accident was caused by intoxication. Further, appellant’s presence behind the steering wheel and the fact that he was still bleeding support an inference that the accident had occurred a short time previously. Finally, the high-blood alcohol level — more than twice the legal limit — found in a sample taken at the scene, supports an inference either that appellant was recently involved in the accident or that he had been intoxicated for quite a while. The combination of these facts is sufficient to support appellant’s conviction for driving while intoxicated.

We reverse the judgment of the court of appeals and remand the case to that court to address appellant’s remaining issue.

MEYERS, J., filed a dissenting opinion.

MEYERS, J., filed a

dissenting opinion.

The issue before the Court is whether the State must present direct evidence of a temporal link between driving and intoxication when a defendant is charged with driving while intoxicated. The majority concludes that the circumstantial evidence offered in this case was sufficient to support Appellant’s conviction. I respectfully dissent.

I agree with the court of appeals that there is “neither direct nor circumstantial evidence to establish the necessary temporal link” between Appellant’s driving and his intoxication. Kuciemba v. State, No. 14-08-00050-CR, 2009 WL 585978, 2009 Tex.App. LEXIS 1728 (TexApp.-Houston [14th Dist.] March 10, 2009, pet. granted) (mem. op., not designated for publication).

Viewing the evidence in the light most favorable to the State, we consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). The following is the only evidence cited by the majority as being legally sufficient to support Appellant’s conviction for driving while intoxicated:

1. Appellant’s intoxication at the scene of a traffic accident in which he was a driver.
2. The accident was a one-car collision with an inanimate object.
3. Appellant’s failure to brake.
4. Appellant’s presence behind the steering wheel, with bleeding lacerations, when the deputy arrived on the scene.
5. Appellant’s high blood-alcohol level from a sample taken at the scene of the accident.

What this evidence demonstrates is that Appellant did not operate his car in a safe manner just prior to the accident and that he was intoxicated at the accident scene. But, as correctly noted by the court of appeals, these facts do not establish directly or circumstantially that Appellant was intoxicated at the time that he was driving. The State did not offer evidence relating to the time of the collision or how much time elapsed between the accident and the arrival of police. Nor did the State offer details pertaining to what or when Appellant drank.

After viewing the evidence in the light most favorable to the prosecution, I do not see how any rational trier of fact could have found the essential elements of driving while intoxicated beyond a reasonable doubt. The evidence presented in this case is legally insufficient to show that Appellant was “intoxicated while operating a motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04. Therefore, I would affirm the judgment of the court of appeals.

      . Kuciemba v. State, No. 14-08-00050-CR, slip op. at 5, 2009 WL 585978, at 2-3, 2009 Tex.App. LEXIS 1728, at 7-9 (Tex.App.-Houston [14th Dist.] March 10, 2009) (not designated for publication).

      . Id., 2009 WL 585978, at 2-3, 2009 Tex.App. LEXIS 1728, at 7.

      . Id., 2009 WL 585978, at 2-3, 2009 Tex.App. LEXIS 1728, at 7 (citing Stoutner v. State, 36 S.W.3d 716 (Tex.App.Houston [1st Dist.] 2001, pet. ref'd.); Weaver v. State, 721 S.W.2d 495 (Tex.App.-Houston [1st Dist.l 1986, pet. ref’d)).

      . Id., 2009 WL 585978, at 3, 2009 Tex.App. LEXIS 1728, at 7-8.

      . Id., 2009 WL 585978, at 2-3, 2009 Tex.App. LEXIS 1728, at 7.

      . Id., 2009 WL 585978, at 3, 2009 Tex.App. LEXIS 1728, at 8-9.

      . Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App.2004).

        .Id.

      . State v. Blackman, 254 Neb. 941, 946, 949, 580 N.W.2d 546, 550, 551 (1998) (bracketed material substituted for original or added, ellipsis inserted).

      . Kirsch v. State, 306 S.W.3d 738, 746, 746 n. 26 (Tex.Crim.App.2010) (citing Sierra v. State, 280 S.W.3d 250, 256 (Tex.Crim.App.2009)).

      . Had the responding officer testified, for example, that the engine was warm or that it was still running, the jury could have extrapolated that Appellant was in fact intoxicated while he was driving.


author: ANN CRAWFORD McCLURE, Justice.

text:
    In re: ODYSSEY HEALTHCARE, INC. and George Portillo, Relators.
    No. 08-09-00174-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 12, 2009.
    Gerard Thomas Fazio, Owen & Fazio, P.C., Dallas, TX, for Relator.
    Joseph Isaac, Scherr & Legate, PLLC, El Paso, TX, for real party in interest.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS

ANN CRAWFORD McCLURE, Justice.

Relators, Odyssey Healthcare, Inc. and George Portillo, ask this Court to issue a writ of mandamus against the Honorable Carlos Villa, Judge of the County Court at Law No. 5 of El Paso County. Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). Moreover, there must be no other adequate remedy at law. Id. Based on the record before us, we are unable to conclude that Relators are entitled to mandamus relief. Accordingly, we deny mandamus relief. See Tex.R.App.P. 52.8(a). Further, we lift the stay entered by previous written order of this Court.


author: GUADALUPE RIVERA, Justice.

text:
    In the Matter of the EXPUNCTION OF D.G.
    No. 08-08-00264-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 24, 2010.
    Daniel Ordonez, Assistant County Attorney, El Paso, TX, for Appellant.
    Joe A. Spencer, Jr., El Paso, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

Appellant, the El Paso County Attorney’s Office, appeals from an expunction order concerning files and records relating to appellee, D.G. In its sole issue, the County Attorney contends that the trial court erred by granting the expunction when the statute of limitations for the offense had not expired. We reverse.

BACKGROUND

Upon learning that he was being investigated for a sexual-assault offense alleged to have occurred on February 5, 2007, D.G. retained an attorney and provided documentation to the police, who never initiated contact with D.G., that seemingly showed that any sex with the victim was consensual. The detective “issued” the case as a nonarrest and forwarded the information to the District Attorney. The District Attorney subsequently declined the case. Accordingly, on May 22, 2008, D.G. filed a petition to expunge the “charge,” contending that an information against him was dismissed, he was released from custody, and any charges against him were no longer pending.

However, at the expunction hearing, D.G. testified that he was never arrested on this case, nor was an indictment presented against him. Nevertheless, D.G. argued that he was entitled to expunction since the case was dismissed for lack of probable cause. The County Attorney, however, argued that the statute of limitations had not expired. After noting that the State was hesitant to bring charges against D.G., the trial court found no probable cause and granted the expunction.

DISCUSSION

On appeal, the County Attorney contends that the trial court abused its discretion by granting D.G.’s petition for expunction when the limitations period for the offense had not expired. We agree.

Standard of Review

We review a trial court’s order granting an expunction under an abuse-of-discretion standard. See Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.App.-Houston [14th Dist.] 2008, no pet.); Bargas v. State, 164 S.W.3d 763, 770 (Tex.App.-Corpus Christi 2005, no pet.); Ex parte Jackson, 132 S.W.3d 713, 715 (Tex.App.-Dallas 2004, no pet.); Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex.App.-Austin 2002, pet. denied); Ex parte Guajardo, 70 S.W.3d 202, 204 (Tex.App.-San Antonio 2001, no pet.); In re Expunction of Jones, 311 S.W.3d 502, 505 (Tex.App.-El Paso 2009, no pet.) (not yet reported). Pursuant to article 55.01 of the Texas Code of Criminal Procedure, “[a] person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged” if the person meets certain statutory requirements. Tex.Code Crim. Proc. Ann. art. 55.01(a) (Vernon Supp.2009). Those statutory requirements include that:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code, or because the presentment had been made because of ■ mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.

Tex.Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(C).

Each provision of article 55.01(a)(2) is “mandatory and exclusive, and a person is entitled to expunction only when all of the conditions have been met.” Tex. Dep’t of Pub. Safety v. Wallace, 63 S.W.3d 805, 806 (Tex.App.-Austin 2001, no pet.) (citing Harris County Dist. Atty’s Office v. Burns, 825 S.W.2d 198, 202 (Tex.App.-Houston [14th Dist.] 1992, writ denied)); In re E.R.W., 281 S.W.3d 572, 573 (Tex.App.-El Paso 2008, pet. denied). Moreover, because an expunction proceeding is civil rather than criminal, the petitioner bears the burden of proving compliance with the statute. In re E.R.W., 281 S.W.3d at 573; Collin County Criminal Dist. Attorney’s Office v. Dobson, 167 S.W.3d 625, 627 (Tex.App.-Dallas 2005, no pet.); Tex. Dep’t of Pub. Safety v. Katopodis, 886 S.W.2d 455, 457 (Tex.App.-Houston [1st Dist.] 1994, no writ). Accordingly, courts have no inherent or equitable power to expunge criminal records. Tex. Dep’t of Pub. Safety v. Woods, 68 S.W.3d 179, 182 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Rather, they must strictly comply with the statutory requirements for ex-punction. State v. Echeverry, 267 S.W.3d 423, 425 (Tex.App.-Corpus Christi 2008, pet. denied); Dobson, 167 S.W.3d at 626; In re Expunction of Jones, 311 S.W.3d at 504.

Application

Here, D.G. sought expunction based on lack of probable cause, apparently invoking subsection (ii), that is, that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating a lack of probable cause. See Tex.Code Crim. Proc. Ann. art. 55.01 (a)(2)(A)(ii). However, presentment of an information or indictment was never made; therefore, the trial court could not have granted the expunction based on subsection (ii). See Dobson, 167 S.W.3d at 627; State v. Bhat, 127 S.W.3d 435, 436 (Tex.App.-Dallas 2004, no pet.) (cases concluding that because there had been no presentation of an indictment or information, subsection (ii) was inapplicable and that petitioner was required to prove that the statute of limitations for the offense for which he was arrested had expired before the date he filed his petition).

Because D.G. was not entitled to an expunction pursuant to subsection (ii), he was required under subsection (i) to show that the statute of limitations had expired before the date of the petition for expunction. See State v. Beam, 226 S.W.3d 392, 395 (Tex.2007) (when no felony indictment or information was presented, petitioner was required to show that the statute of limitations for the offense expired); Heine, 92 S.W.3d at 646 n. 4 (“[I]n cases where an information or indictment was not presented, the petitioner must now prove that the limitations period for the offense expired before the filing of the petition for expunction.”). D.G. was investigated for a sexual assault that allegedly occurred on February 5, 2007. The statute of limitations for that offense is ten years from the date of commission. See Tex.Code CRIM. Proc. ANN. art. 12.01(2)(E) (Vernon Supp.2009); Tex. Penal Code Ann. § 22.011(a)(1), (f) (Vernon Supp.2009). D.G. filed his petition for expunction on May 22, 2008. Clearly, the limitations period had not expired before the date on which D.G. filed his expunction petition. Therefore, because D.G. has not proven that all the statutory requirements have been satisfied, he is not entitled to an expunction of records related to the sexual-assault investigation. The County Attorney's sole issue is sustained.

CONCLUSION

Accordingly, we reverse the trial court’s judgment and render judgment denying the expunction.

      . D.G. did not file a brief in response.

      . The County Attorney does not contest that D.G. was arrested within the meaning of the expunction statute; therefore, we need not decide this issue. See Tex.Code Crim. Proc. Ann. art. 55.01(a)(1) (stating that only persons "who [have] been placed under a custodial or noncustodial arrest" are entitled to have all records and files relating to the arrest expunged); Harris County Dist. Attorney v. Lacafta, 965 S.W.2d 568, 570 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (finding petitioner not entitled to expunction when she was never arrested or detained by the police); Carson v. State, 65 S.W.3d 774, 780-84 (Tex.App.-Fort Worth 2001, no pet.) (holding that although petitioner was never physically arrested, he submitted to authority by appearing in court in response to a citation, and therefore, he met the arrest requirement under the ex-punction statute); Ex parte S.C., 305 S.W.3d 258, 263-65 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (determining that petitioner was not entitled to expunction of investigative files of offenses for which petitioner was not arrested for).


author: JOHN S. ANDERSON, Justice.

text:
    Miguel PEREDO, Appellant, v. M. HOLLAND COMPANY and Antonio Palazuelos, Appellees.
    No. 14-08-01032-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 2, 2010.

      Constance H. Pfeiffer, Houston, for appellant.
    Jesse R. Castillo, San Antonio, Edward B. Adam Jr., Katherine D. Mackillop, Houston, for appellees.
    Panel consists of Justices ANDERSON and BROWN.
   OPINION

JOHN S. ANDERSON, Justice.

A Mexican corporation brought suit in Harris County against a vendor and two of the vendors’ Texas employees. The vendor counterclaimed against the Mexican corporation’s president, who resides in California, and the trial court denied the nonresident counterdefendant’s special appearance. Because the evidence does not support the trial court’s exercise of personal jurisdiction over the nonresident, we reverse and remand.

I. Factual and ProceduRal Background

Since approximately 2005, Grupo Cua-dro, S.A. de C.V. (“Cuadro”), a Mexican corporation that manufactures plastic “shrink wrap” and other plastic wrapping and storage products, has purchased resin from M. Holland Company (Holland). As Cuadro asserted in its pleadings, Holland’s corporate offices are in Illinois, but its international sales are handled through its Houston office, and the sales to Cuadro were initiated in Texas. Cuadro also sent its purchase orders to the Houston office, and Holland’s invoices to Cuadro were sent from the Houston office. Holland’s products were delivered and transferred to Cuadro in Laredo, Texas.

According to Cuadro, Holland eventually began selling Cuadro a more expensive resin that did not perform as well, and Cuadro’s customers returned the products made from that resin. On March 9, 2007, Cuadro filed suit in Harris County against Holland and two of Holland’s international sales representatives, Antonio Palazuelos and John Crowley, each of whom resides in Texas. According to Cuadro, the defendants violated the Texas Deceptive Trade Practices — Consumer Protection Act, tor-tiously interfered with actual and prospective contracts and business relations, and committed breach of contract, common-law fraud, commercial dispai-agement and defamation, breach of the duty of good faith and fair dealing, and breaches of the implied warranties of merchantability and fitness for a particular purpose. Cuadro additionally asserted several causes of action under Mexican law.

After the ease had been pending for more than sixteen months, Holland filed a third-party petition on July 16, 2008 in which it asserted claims of fraud and fraudulent inducement against Cuadro’s president, California resident Miguel Angel Peredo Luna (“Peredo”). Peredo and his siblings formerly owned Cuadro, but by the time of Peredo’s deposition, ownership had been transferred to Peredo’s wife and mother. According to Holland, Peredo repeatedly made material, false representations to Holland in 2006 and 2007 about past payments and false promises of future payments. These representations were made by Peredo to secure the continuation of sales and shipping of resin to Quadro in reliance on such statements, to continue to sell and ship resins to Cuadro. Holland further alleged that despite these representations, Cuadro had failed to pay for some of the resin shipped by Holland in 2006.

Peredo filed a special appearance which the trial court denied, and the court stayed further proceedings against Peredo during the pendency of this interlocutory appeal.

II. Issue PRESENTED

In the sole issue presented, Peredo challenges the trial court’s denial of his special appearance.

III. Standard of Review

The existence of personal jurisdiction is a question of law. BMC Software Belg., N.V. v. Marehand, 83 S.W.Bd 789, 794 (Tex.2002). The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident within the provisions of the long-arm statute. Id. at 793. The nonresident defendant then bears the burden of proof to negate all bases of personal jurisdiction asserted by the plaintiff. Moki Mae River Expeditions v. Dnugg, 221 S.W.3d 569, 574 (Tex.2007). On appeal, we consider all of the evidence before the trial court on the question of jurisdiction. Fish v. Tandy Corp., 948 S.W.2d 886, 891 (Tex.App.-Fort Worth 1997, writ denied). When a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all facts necessary to support the judgment and supported by the evidence are implied. BMC Software, 83 S.W.3d at 795.

IV. Governing Law

Because the personal jurisdiction of Texas courts extends as far as the federal constitutional requirements of due process will permit, we rely on both state and federal precedent in determining whether a nonresident defendant has met its burden to negate all bases of jurisdiction. Id. (quoting U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977)). State statutory and federal due-process requirements are satisfied if (a) the nonresident has minimum contacts with Texas, and (b) our exercise of personal jurisdiction over the nonresident does not offend “traditional notions of fair play and substantial justice.” See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)).

A. Specific Jurisdiction

There are two types of personal jurisdiction: specific and general. On appeal, Peredo challenges only the existence of specific jurisdiction and represents that Holland at some point conceded that general jurisdiction does not exist. At oral argument, Holland agreed that only the existence of specific jurisdiction ultimately was argued to and ruled upon by the trial court. We therefore address only the question of whether the record supports the trial court’s exercise of specific jurisdiction.

Specific jurisdiction is dispute-specific, and it attaches when the plaintiffs cause of action arises out of or relates to the nonresident defendant’s contacts with the forum state. Conner v. ContiCarriers and Terminals, Inc., 944 S.W.2d 405, 410 (Tex.App.-Houston [14th Dist.] 1997). To invoke a state’s specific jurisdiction, the defendant’s activities must have been “purposefully directed” to the forum, id., and there must be a substantial connection between the defendant’s forum contacts and the operative facts of the litigation. Mold Mac River Expeditions, 221 S.W.3d at 585.

Y. Analysis

A. Minimum Contacts

The first due process requirement, that of sufficient minimum contacts, is satisfied if the nonresident defendant has “‘purposefully availed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958)). The “purposeful availment” requirement ensures that a nonresident will not be haled into a foreign jurisdiction based on “ ‘[t]he unilateral activity of those who claim some relationship’” with the defendant or as the result of “ ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Id., 471 U.S. at 474-75, 105 S.Ct. at 2183 (quoting Hanson, 357 U.S. at 253, 78 S.Ct. at 1239-40); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984).

To determine whether the nonresident defendant has purposefully availed itself of the privileges of conducting business within the State of Texas, we focus on three factors. See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex.2005). First, we consider only each defendant’s own actions. Id. Second, the acts of the defendant must be purposeful, rather than random, isolated, or fortuitous. Id. Third, the “defendant must seek some benefit, advantage, or profit by ‘availing’ itself of the jurisdiction.” Id. We do not consider any of a defendant’s contacts in isolation, but instead apply these factors to all of the nonresident defendant’s contacts with Texas. Schlobohm v. Schapiro, 784 S.W.2d 355, 359 (Tex.1990). “[I]t is not the number, but rather the quality and nature of the nonresident defendant’s contacts with the forum state that [are] important.” Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 230 n. 11 (Tex.1991).

1. Peredo’s Affidavit

In support of his special appearance, Peredo presented uncontroverted evidence of the following facts:

• Peredo resides in California.
• He has never resided in Texas or maintained an office, place of business, agent, telephone listing, or bank account here.
• Peredo does not own, lease, or control any real or personal property in Texas.
• He has no Texas employees.
• He has never paid taxes in Texas.
• He does not advertise any business in Texas or provide any service here.
• He does not solicit business in Texas.
• Although he has met with Holland representatives in Illinois, California, and Mexico, he has never met with Holland representatives in Texas.
• He is not certain if any Holland representative was in Texas when the representative telephoned Peredo or received an email from him.
• He is the president of a California company and is needed in California on a daily basis to run that business.

Both in the trial court and on appeal, Holland responded to this evidence as follows:

In late 2006 and early 2007, because Cuadro fell grossly behind in its payment, M. Holland, through Antonio Pa-lazuelos and later, other M. Holland employees, began contacting Miguel Peredo, on almost a daily basis, to inquire about the status of payments for resins allegedly forthcoming.In response to these inquiries, Peredo promised ... partial payment had been made and further payment would be forthcoming.
Many of these communications, including Peredo’s false promises, were directed to Texas and Antonio Palazue-los .
As a result of Peredo’s communications with Antonio Palazuelos and others, M. Holland continued to conduct business with M. Holland [sic]. Antonio Palazuelos was primarily responsible for maintaining the business relationship ....
Notwithstanding Peredo’s promises of partial payment and future payment, payment was not forthcoming when promised, if ever....
These communications alone — namely, those communications directed to Texas and which gave rise to the claims of fraud — are sufficient to create specific jurisdiction under the purposeful availment test.

Thus, in response to Peredo’s evidence demonstrating that he did not establish minimum contacts with Texas, Holland appears to argue that a Texas resident established minimum contacts with him. This construction of Holland’s jurisdictional theory is borne out by the evidence on which Holland relies.

2. Reply Emails

In support of its argument, Holland produced copies of several email exchanges, including ten emails from Peredo to Pala-zuelos over an eighteen month period. Significantly, none of Peredo’s email exchanges with Palazuelos were initiated by Peredo. To the contrary, each of Peredo’s emails to Palazuelos is a reply to an email he received from Palazuelos.

Such evidence is analogous to that presented in Weldon-Franche v. Fisher, 237 S.W.3d 789 (Tex.App.-Houston [14th Dist.] 2007, no pet.). In that case, a New Hampshire attorney gave legal advice to Texas residents in New Hampshire and drafted documents concerning the transfer of their New Hampshire summer home to a trust. Id. at 794-95. The Texas residents and their Texas counsel later contacted the New Hampshire attorney through correspondence, facsimile, and telephone with inquiries about the trust, and the attorney responded in telephone calls and correspondence to the clients and their counsel in Texas. Id. at 795. The clients subsequently sued the New Hampshire attorney in Texas, and argued that specific jurisdiction was proper because the attorney performed tortious acts in her calls and letters to Texas. Id. at 797. We rejected that argument, and explained that because the attorney did not engage in purposeful contacts with Texas by rendering legal services to Texas residents in New Hampshire, she did not engage in purposeful contacts with Texas by responding to telephone calls and correspondence from Texas about that advice. Id.

Here, the evidence on which Holland relies is even more attenuated than that presented in Weldon-Francke. Like the attorney in that case, Peredo responded to inquiries from Texas, but unlike the attorney in Weldoiv-Francke, the subject of those inquiries was not his performance of a contract with a Texas resident; rather, the inquiries concerned payments to be sent to a company in Illinois by a Mexican corporation pursuant to a contract to which Peredo was not a party. As we stated in Weldon-Francke, the allegation that a nonresident committed a tort in the course of such communications is insufficient to overcome the nonresident’s lack of purposeful contacts. Id. (citing Michiana, 168 S.W.3d at 788-92).

3.Calls to a Mobile Telephone Number

Holland also relies on an affidavit by Palazuelos in which he attests that his “email and mobile phone numbers are both Texas[-]based.” He further attested as follows:

4. In connection with M. Holland’s relationship with Grupo Cuadro, I frequently received telephone calls and emails from Miguel Peredo directed to me in Texas.
5. In the telephone calls and emails I received in Texas from Miguel Peredo, Mr. Peredo discussed and negotiated resin orders and pricing. Also in those telephone calls and emails made and sent by Miguel Peredo while I was in Texas, Mr. Peredo discussed Grupo Cuadro’s payment terms with M. Holland; past due invoices with M. Holland; and when Grupo Cuadro would pay M. Holland for resins Grupo Cuadro had purchased. Miguel Peredo initiated many of these communications to me, and I also made phone calls and sent emails to Miguel Peredo while I was located in Texas.

But as the Texas Supreme Court explained in Michiana,

[Cjhanges in technology have made reb-anee on phone calls obsolete as proof of purposeful availment. While the ubiquity of “caller ID” may allow nonresidents to know a caller’s telephone number, that number no longer necessarily indicates anything about the caller’s location. If jurisdiction can be based on phone conversations “directed at” a forum, how does a defendant avail itself of any jurisdiction when it can never know where the other party has forwarded calls or traveled with a mobile phone?

Michiana, 168 S.W.3d at 791.

Moreover, we have previously stated that a nonresident does not establish minimum contacts simply by contracting with a Texas entity and engaging in numerous communications, by telephone or otherwise, with people in Texas concerning the contract. See Alenia Spazio, S.p.A. v. Reid, 130 S.W.3d 201, 213 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (contracting with Texas entity and numerous telephone and facsimile communications with people in Texas relating to alleged contract do not establish minimum contacts); see also TeleVentures, Inc. v. Int’l Game Tech., 12 S.W.3d 900, 908-10 (Tex.App.-Austin 2000, pet. denied) (“Minimum contacts may not be satisfied by merely engaging in communications with a Texas corporation during performance of a contract.”). Here, neither of the parties to the contract is a Texas entity, and Peredo is not even a party to the contract; thus, his contacts with Texas concerning the contract between Cuadro and Holland are even less purposeful and more attenuated than those we have previously held insufficient to satisfy the minimum-contacts requirement.

4. Content of Communications

Holland also argues that the content of Peredo’s communications with Palazuelos is sufficient to support specific jurisdiction. In support of this argument, Holland relied in the trial court on Wien Air Alaska, Inc. v. Brandt, in which the Fifth Circuit wrote, “When the actual content of communications with a forum gives rise to intentional tort causes of action, this alone constitutes purposeful availment.” 195 F.3d 208, 213 (5th Cir.1999). But as we have previously stated, the “directed tort” rationale employed in Wien was rejected by the Texas Supreme Court in Michiana. Proskauer Rose LLP v. Pelican Trading, Inc., No. 14-08-00283-CV, 2009 WL 242993, at *4 (Tex.App.-Houston [14th Dist.] Feb. 3, 2009) (mem.op.).

Moreover, the reasoning of the Wien court is based on facts that are readily distinguishable from those presented here. The statement quoted by Holland continues, “The defendant is purposefully availing himself of ‘the privilege of causing a consequence’ in Texas.” Wien, 195 F.3d at 213. But here, the substance of Holland’s claim is that the California president of a Mexican corporation made misrepresentations about when the corporation sent payments to a supplier in Illinois. The jurisdictional inquiry does not focus on the state in which the plaintiff relied on the alleged misrepresentation. Michiana, 168 S.W.3d at 789-91. Assuming that Peredo committed the tort alleged, the consequences occurred in Illinois, where Holland resides and payment was expected, and not in Texas, where a Holland representative retrieved his email and spoke on his mobile telephone. See Buffet Partners, L.P. v. Sheffield Square, L.L.C., 256 S.W.3d 920, 924 (Tex.App.-Dallas 2008, no pet.) (rejecting specific jurisdiction where “[t]he sole connection to Texas was that it was. the state in which [the plaintiff] received the communications”). Not only was it simply fortuitous that a Holland representative received Peredo’s statements in Texas, but there is no substantial connection between Peredo, Texas, and Holland’s claims. See id.; see also Mold Mac, 221 S.W.3d at 588 (rejecting specific jurisdiction and distinguishing cases in which the forum contact bore a “direct link” to the claimed injury); Brocail v. Anderson, 132 S.W.3d 552, 563 (Tex.App.Houston [14th Dist.] 2004, pet. denied) (“Any tort occurred in the exercise of medical judgment in prescribing a course of physical therapy in Michigan, not from the communication of that prescription [to Texas].”).

5. Holland’s Business Relationship with Cuadro

Holland further contends that the trial court could exercise personal jurisdiction over Peredo because “the broader business relationship between Cuadro and M. Holland, was based, in large part, on communications occurring in Texas or with a Texas resident.” But Cuadro’s relationship with Texas is not necessarily the same as Peredo’s relationship with Texas, and in our jurisdictional inquiry, we may consider only purposeful contacts by Peredo in which he sought some benefit, profit, or advantage by availing himself of Texas jurisdiction. See Michiana, 168 S.W.3d at 785. Because Holland has made no allegations that, if established, might permit the trial court to impute Cuadro’s contacts to Peredo, Cuadro’s contacts with Texas do not form part of our analysis.

In sum, we conclude that Peredo negated Cuadro’s allegations of purposeful availment, and the evidence does not support implied findings from which the trial court could have concluded that the minimum-contacts requirements has been satisfied.

B. Fair Play and Substantial Justice

In light of our conclusion that Peredo negated Cuadro’s allegations of purposeful availment, we do not reach the second prong of the due process requirements. See Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 870 (5th Cir.2001) (per curiam) (declining to examine the fair-play-and-substantial-justice prong of the due process requirements after concluding that the nonresident defendant lacked minimum contacts with Texas); Mold Mac, 221 S.W.3d at 585-88 (omitting consideration of this due-process requirement after concluding that there was no substantial connection between the defendant’s conduct and the operative facts of the litigation).

VI. Conclusion

Because the contacts at issue in this case do not constitute “purposeful availment,” we sustain Peredo’s sole issue on appeal, reverse the trial court’s order denying Peredo’s special appearance, and remand for severance and dismissal of the claims against him.

Former Justice GUZMAN not participating.

      . Operative facts are those having principal relevance. See A Dictionary of Modern Legal Usage, 620 (Bryan A. Garner, 2d ed., 1995).

      . This language, taken from Holland’s response in the trial court, is repeated almost verbatim in Holland’s appellate brief.

      . Because we consider only the nonresident defendant’s actions, see Michiana, 168 S.W.3d at 785, we do not consider the emails cited by Holland that were merely received by Peredo.

      .Palazuelos had multiple email addresses, and although at least one email from, another Holland employee was sent to Palazuelos at an email address in which "houston” appeared as part of the domain name, the emails that Palazuelos sent to Peredo and to which Peredo responded do -not include any geographic identifier in Palazuelos's email address.

      . Holland repeated this argument almost verbatim on appeal, but without citing authority.

      . See Moni Pulo Ltd. v. Trutec Oil & Gas, Inc., 130 S.W.3d 170, 175 n. 7 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (''[a] corporation's residence is the place where its corporate affairs are conducted — its principal place of business.” (quoting Ring Power Sys. v. Int’l de Comercio Y Consultoria, S.A., 39 S.W.3d 350, 355 (Tex.App.-Houston [14th Dist.] 2001, no pet.), disapproved on other grounds, Michiana, 168 S.W.3d at 791-92 & n. 81)).

      . Cf. Greenfield Energy, Inc. v. Duprey, 252 S.W.3d 721, 730 (Tex.App.-Houston [14th Dist.] 2008) (reviewing trial court's rejection of plaintiffs' theories of agency, alter ego, and single business enterprise as grounds for imputing corporation’s contacts to individual).