author: BILL VANCE, Justice. TOM GRAY, Justice,

text:
    The STATE of Texas, Appellant, v. Julius SEPHUS, Appellee.
    No. 10-98-338-CR.
    Court of Appeals of Texas, Waco.
    Oct. 25, 2000.
    Dissenting Opinion of Justice Gray, Nov. 1, 2000.

      Ray Montgomery, Leon County Dist. Atty., Centerville, Gina M. Debottis, Sp. Prosecution Unit, Huntsville, for appellant.
    Frank Blazek, Smither, Martin, Henderson & Blazek, P.C., Huntsville, for appellee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   OPINION

BILL VANCE, Justice.

After an evidentiary hearing, the trial judge dismissed an indictment for capital murder, with prejudice. The State appealed. Because we find that the dismissal was required by the plain meaning and mandate of the Interstate Agreement on Detainers (the “Detainers Act”), we affirm. Tex.Code Crim.ProcAnn. art. 51.14 (Vernon 1979).

FACTS

The pertinent facts established by the record are:

• Sephus was charged with capital murder in Leon County, alleged to have occurred on August 24,1994;
• Sephus was charged with capital murder in Harris County, alleged to have been committed on a date prior to the Leon County offense;
• Sephus was convicted in April of 1995 of a federal offense arising out of the Leon County event in the United States District Court in Waco, for which he was confined to the U.S. Penitentiary, Allenwood in the State of Pennsylvania for a term of “life without parole”;
• In October of 1995, the District Attorney having authority for prosecutions in Leon County placed a “detainer” against Sephus with the Allenwood penitentiary;
• On November 27, 1995, the warden of the Allenwood penitentiary notified the District Attorney that Harris County had requested disposition of pending charges in Harris County; the warden’s letter was received in the District Attorney’s office on December 14,1995;
• In November of 1996, Sephus was tried in Harris County and convicted of capital murder and assessed life in the penitentiary;
• No earlier than December 1996, but no later than May 1997 and most likely no later than January 31, 1997, Se-phus was returned to the federal penitentiary in Pennsylvania to resume serving his federal sentence;
• In January of 1997, a new District Attorney with responsibility for prosecutions in Leon County took office;
• In May of 1997, the District Attorney began attempts to have Sephus brought to Texas for trial on the Leon County charge of capital murder;
• After several communications with the Allenwood federal penitentiary, the District Attorney on July 7, 1997, requested that the detainer be released;
• The Allenwood facility released the de-tainer on July 8,1997;
• Seven “Writs of Habeas Corpus Ad Prosequendum” were issued by the Leon County District Clerk, dated July 2, 1997(2), July 10, 1997, July 14, 1997, June 20, 1997, and October 22, 1997(2);
• On November 7, 1997, Sephus was arraigned in the District Court in Leon County;
• On April 27, 1998, Sephus filed a “Motion to Dismiss for Violations of the Interstate Agreement on Detainers Act;”
• On September 14, 1998, several months after the hearing on Sephus’ motion, the District Attorney filed a response.

THE ORDER

In the order dismissing the indictment, the trial court made five factual findings:

1. Defendant was tried and convicted, in April, 1995, in the Federal District Court, Waco, Texas, for several offenses arising out of the Norman-gee bank robbery, which is also the basis for this prosecution. He was convicted and sentenced to life in prison, without eligibility for parole. He began serving his Federal prison sentence in Pennsylvania. Leon County, Texas, maintained a detain-er on Defendant for the pending capital murder charge.
2. In 1995, Harris County, Texas, through the use of the Interstate Agreement on Detainers Act, obtained temporary custody of Defendant from the United States prison officials in Pennsylvania. While in the temporary custody of the authorities of Harris County, Texas, Defendant was tried and convicted of capital murder, receiving a life sentence in November, 1996.
3. In 1997, Defendant was returned by the State of Texas to the Federal Prison Authorities, in Pennsylvania, without disposing of the criminal charges pending in Leon County, Texas.
4. On November 7, 1997, Defendant was brought to Leon County, Texas, from Pennsylvania, pursuant to a Writ of Habeas Corpus ad Prose-quendum and Leon County’s request for temporary custody.
5. No trial date has been scheduled within 120 days of Defendant’s return to Leon County, Texas.

The court concluded that prosecution of the Leon County offense was barred under the Detainers Act.

THE DETAINERS ACT

The trial court decided this case under Article IV of the Detainers Act. Article IV provides:

(a) The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Paragraph (a) of Article V hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided that the court having jurisdiction of such indictment, information, or complaint shall have duly approved, recorded, and transmitted the request; and provided further that there shall be a period of 30 days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.
(b) Upon receipt of the officer’s written request as provided in Paragraph (a) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.
(c) In respect of any proceeding made possible by this article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
(d) Nothing contained in this article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in Paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executing authority of the sending state has not affirmatively consented to or ordered such delivery.
(e) If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Paragraph (e) of Article V hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Id. Article IV. Subparagraph (e) of Article V provides: “(e) At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.” Id. Article V(e).

THE ISSUES

On appeal, the State asserts three issues:

1. The trial court erred in dismissing the indictment in this cause as ap-pellee did not follow proper procedures to trigger the Interstate Agreement on Detainers.
2. The trial court erred in dismissing the indictment in this cause as ap-pellee waived any rights he had under Article IV of the Interstate Agreement on Detainers.
3. The trial court erred in dismissing the indictment in this cause as ap-pellee waived any rights he had under Article III of the Interstate Agreement on Detainers.

STANDARD OF REVIEW

We review the decision to dismiss de novo but review the findings supporting that decision under the “clearly erroneous” standard. United States v. Hall, 974 F.2d 1201, 1204 (9th Cir.1992); Espinoza v. State, 949 S.W.2d 10, 11 (Tex.App. — San Antonio 1997, pet. ref'd).

APPLICATION

The court’s conclusion under Article IV is sustained by the first, second, and third findings, which are not contested by the State. Findings four and five are immaterial.

Significantly, the State’s brief does not assert that Article IV is inapplicable; its argument is limited to “waiver of the rights [Sephus] had under Article IV.” The first issue presented by the State raises the question of whether Sephus followed the proper procedures to “trigger the Interstate Agreement on Detainers.” The argument under this issue is limited to a discussion of the prisoner’s duties under Article III to make a request and to provide the notices required under that article so as to invoke the “anti-shuttling” provisions of the act. No mention of Article IV is made. The State’s second and third issues are limited to an argument that Sephus waived the provisions of Articles III and IV of the act after he was returned to Texas the second time. As we will discuss, those issues are immaterial to the question of whether he was entitled to a dismissal with prejudice when he was returned to Pennsylvania after his first trip to Texas to stand trial in Harris County. By failing to address its applicability, the State effectively concedes that Article IV applies.

Article III

The State’s first issue questions whether Sephus took steps necessary to invoke the Detainers Act and provided the notices required by Article III. However, the court’s second finding that Harris County used the Detainers Act to secure Sephus’ return to Texas is supported by the record. Thus, as we will show, Article IV rather than Article III sets the standard by which Sephus’ right to a dismissal is measured. Issue one has no merit.

Article W

Under Article IV, the prisoner is transferred to the requesting state without consideration of the prisoner’s feelings about a transfer, and not at his request. Nothing is required of the prisoner. Article IV simply provides: “If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Paragraph (e) of Article V hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” Tex.Code CRImProcAnn. art. 51.14, Article IV(e). Dismissal does not depend upon a motion by the prisoner; the right to a dismissal with prejudice flows from the statute. See id.

We must give the statute effect according to its plain meaning. State v. Mason, 980 S.W.2d 635, 638 (Tex.Crim.App.1998) (“focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment”); Boykin v. State, 818 S.W.2d 782, 786-87 (Tex.Crim.App.1991).

While Leon County’s detainer was pending with federal authorities, Sephus was returned to Texas at the request of Harris County. The Leon County prosecutor was given notice of his return to Texas, and after he was tried in Harris County, Sephus was sent back to the federal penitentiary in Pennsylvania without being tried on the Leon County indictment. Applying the literal text of the statute to the facts: “[Because] trial [was] not had on [the Leon County] indictment, ... prior to [Sephus’] being returned to [Pennsylvania] pursuant to Paragraph (e) of Article V hereof, [the Leon County] indictment, ... [is of no] further force or effect, and the court shall enter an order dismissing the same with prejudice.” See id.; Tex.Code CRIm.Proc.Ann. art. 51.14, Article IV(e). Thus, the trial judge correctly analyzed the facts and applied the Detainers Act to them.

Wavier

The State’s second and third issues assert that Sephus waived the benefits of both Article IV (second issue) and Article III (third issue). As we have noted, Article III is inapplicable, and we do not reach the third issue. With respect to waiver under Article IV, the State urges only that during Sephus’ second trip to Texas he waived the 120 day period allowed for trial under Article IV. However, under the literal reading of Article IV(e), which we must apply, the 120 day period for the State to try Sephus never came into play because a trial was already barred. The statute says an “indictment, ... shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice” when a prisoner is returned to the sending state without being tried on that indictment. Tex.Code Crim.Proc.Ann. art. 51.14, Article IV(e). Thus, the statute operates, as the trial court concluded, to bar prosecution under the indictment. What occurs thereafter cannot revive a barred indictment. The State’s waiver argument is without merit.

REPLY TO DISSENT

The dissent criticizes the decision to affirm the trial court’s ruling, arguing that Sephus never raised Article IV(e). This theory supporting reversal by the dissent is wrong, both factually and legally. Factually, the record establishes that the Article IV(e) issue was presented to the trial court. In a reply brief filed approximately one month before the court’s ruling, Se-phus argued:

The State contends that the Interstate Agreement on Detainers (IADA) does not apply because the Defendant did not make his request for disposition in the proper form or give proper notice. The evidence shows without controversy that Harris County, in 1995, obtained Defendant’s presence in Texas through a request for temporary custody and the IADA. Thus the IADA provisions requiring that all Texas cases be disposed prior to returning Defendant to Federal Custody are applicable. The. IADA can be invoked by either the action of the State or the Defendant. In Harris County the IADA was invoked expressly by the State of Texas.
The State’s response ignores Defendant’s contention that all Texas cases must be disposed prior to the return of Defendant to Federal custody. If one county gets temporary custody of Defendant, under the IADA, all other Texas counties with pending charges must dispose of those prosecutions before Defendant is returned.

Thus, Sephus did raise an Article IV(e) theory when he asked the trial court to dismiss the indictment.

Legally, even if Sephus had not relied upon Article IV(e) when urging the trial court to dismiss the indictment against him, we should affirm the trial court’s decision under the long-standing rule of appellate procedure whereby we affirm a judgment when it is correct on any theory of law applicable to the case. See, e.g., McDuff v. State, 939 S.W.2d 607, 619 (Tex.Crim.App.1997). Thus, even if Sephus had failed to raise the issue, under the basic principle of appellate jurisprudence that a trial court’s ruling should be upheld on any legal basis applicable to the case, the court’s judgment should be affirmed.

We affirm the trial court’s order dismissing the indictment with prejudice.

Justice GRAY dissents.

TOM GRAY, Justice,

dissenting.

Ruby Parker was murdered. In a prosecution on federal charges by the United States of America, Julius Sephus was convicted of killing her. He received a life sentence. He is serving this sentence in a federal prison in Pennsylvania. After his conviction, he was sent to Harris County, Texas, to stand trial for capital murder of two men in Houston. Sephus was convicted and sentenced to life in prison. He was returned to the federal prison in Pennsylvania. Later, Leon County acquired custody of Sephus for trial on a state charge for the capital murder of Ruby Parker.

At trial and on appeal, Sephus argued for a dismissal only under Article 111(d) and alternatively, under Article IV(c) of the Interstate Agreement on Detainers Act. Tex.Code CrimPROcAnn. art. 51.14 (Vernon 1979). The trial court granted his request for a dismissal.

I cannot agree with the majority’s opinion for several reasons. First, it is fundamental that before a defendant may obtain relief, he must raise a complaint, at a time and in a manner reasonably calculated to apprise the trial court of the basis of the complaint and at a time when the trial court could remedy the problem. The majority affirms the trial court’s decision on a basis that has never been raised by anyone at any level, and on a theory which the State has never had any reason or opportunity to defend. Second, Sephus requested a dismissal believing that Leon County initiated an Article IV request for temporary custody. When Leon County acquired Sephus, the detainer had been dismissed. Thus, the Detainers Act did not apply, and Sephus was not entitled to a dismissal pursuant to it. Third, a dismissal of the indictment does not further the purposes of the Detainers Act and is not required. Therefore, I dissent.

The Interstate Agreement On Detainers Act

The Interstate Agreement on Detainers Act (Detainers Act) is a compact entered into by most states, the United States and the District of Columbia to establish procedures for resolution of one state’s outstanding charges against a prisoner being held by another state. New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 662, 145 L.Ed.2d 560 (2000). It is a congressionally mandated compact and is subject to federal construction. Hill, 120 S.Ct. at 662; Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 708-709, 66 L.Ed.2d 641 (1981). The Detainers Act prescribes procedures by which a prisoner may demand the speedy disposition of charges pending against him in another jurisdiction (Article III), as well as procedures by which a state may obtain custody, for purposes of trial, of a prisoner who is incarcerated in another state (Article IV). Donald M. Zupanec, M.A., J.D., Annotation, Validity, construction, and application of Interstate Agreement on Detainers, 98 A.L.R.3d 160, 167 (1980).

Article Ill’s Application

Based on the record before us, I agree with the five-lined paragraph of the majority opinion holding that Article III is in no way applicable to this proceeding. I would, however, have preferred a more extensive discussion of the law and the facts pertinent to this decision since there is no authority in Texas that sets out the applicability requirements for Article III. Be that as it may, the majority continues to allow defendants and prosecutors to drift in the murky waters of the Detainers Act.

I disagree with the remainder of the opinion.

Sephus’s Article IV Argument

Because Article III is inapplicable to this case, the next logical step is to look at Sephus’s Article IV argument. As previously stated, Article IV gives one state an opportunity to acquire custody of a defendant in another state to pursue convictions on pending charges. In his motion to dismiss presented to the trial court, Sephus argued that a dismissal was required pursuant to Article IV(c) because Leon County, not Harris County, requested temporary custody under Article IV(a) and his trial had not been conducted within the Article IV(c) 120 day requirement. See Tex.CRIm.PROcAnn. art. 51.14, Art. IV(a) and (c) (Vernon 1979). He presented no other alternative theories to the trial court. The Leon County District Attorney, however, contended that Sephus was not in custody at that time due to a request under the Detainers Act. He maintained that he dismissed the detainer and acquired Sephus through a writ of habeas corpus ad prosequendum.

The trial court, however, found that Se-phus had not been tried within 120 days and dismissed the indictment. From the trial court’s last two findings of fact, it is evident that this is the basis upon which the trial court dismissed the indictment. The majority wants to ignore these findings of the trial court, deeming them “immaterial.” By finding that the trial had not been held within 120 days of his delivery to Leon County, it is clear the court believed that Leon County had a detainer on file, had initiated an Article IV request and had violated the 120 day trial requirement. These findings are only immaterial because they obstruct the position taken by the majority.

Waiver of Article IV(e)

The majority raises an Article IV(e) argument for Sephus and uses that argument to affirm the trial court’s dismissal of the indictment. Article IV(e) has been referred to as the “anti-shuttling” provision because generally, if a defendant is brought to a state under the Detainers Act and then is transferred back to his original place of confinement without a trial on all remaining pending charges, those untried indictments “shall not be of any further force or effect, and the trial court shall enter an order dismissing” them. See Id. Art. IV(e). Sephus neither argued at the dismissal hearing nor on appeal that Article IV(e) applied to his case. The State never presented a defense to Article IV(e). The trial court never contemplated Article IV(e) as a means to dismiss the indictment.

Being subject to federal construction, the federal courts have considered whether an Article IV(e) violation can be raised for the first time on appeal. See United States v. Hill, 622 F.2d 900 (5th Cir.1980); United States v. Eaddy, 595 F.2d 341 (6th Cir.1979). In Eaddy, a detainer was lodged against a defendant by the U.S. Marshal’s Service while the defendant was in prison in Michigan. The defendant was shuttled back and forth between state and federal custody on at least two occasions after the filing of the detainer but before trial. When asked to dismiss the federal indictment because of violations of the De-tainers Act, the trial court declined. Among other issues, the defendant raised an Article IV(e) violation for the first time on appeal. The Sixth Circuit responded to this issue stating, “Despite the mandatory language of Article IV, the rights created by the [Detainers Act] are for the benefit of the prisoner. They exist for his protection and are personal to him. (citations omitted). We conclude, therefore, that the rights of a prisoner under the [Detainers Act] may be waived.” Eaddy, 595 F.2d at 344. The court determined that the sanctions of Article IV are not triggered automatically when the Detainers Act is violated. Id. at 346. The court also concluded that “prisoner rights created by the [De-tainers Act] are waived by forfeiture or default if not raised prior to or during trial.” Id.

The Fifth Circuit echoed this holding in Hill. A California prisoner was shipped to Georgia pursuant to a writ of habeas corpus ad prosequendum. A detainer had also been filed with the California prison. The prisoner complained in a motion to dismiss that the Government had violated Article V(c) of the Detainers Act. The trial court denied the motion and the prisoner was convicted. The Fifth Circuit vacated the conviction. While this was occurring, the prisoner was shipped back to California. The prisoner again filed a motion to dismiss, this time based on an Article IV(c) violation. The lower court again denied the motion. On appeal, the prisoner argued that the Government violated Article IV(e), the anti-shuttling provision, by returning him to California before bringing him to trial in Georgia. The Fifth Circuit concluded that this argument “has been foreclosed below because Hill did not raise the contention in the district court,” and cited Eaddy. Hill, 622 F.2d at 908.

Looking at this waiver concept in a different light, an appellate court in Michigan found an Article V(d) violation that the defendant did not raise. However, following federal guidance, the court refused to consider the effect of the violation because it was not raised at the trial court or even on appeal and was waived. People v. Browning, 108 Mich.App. 281, 310 N.W.2d 365, 372 (1981).

Sephus never asked for a dismissal based on Article IV(e); he only raised Article 111(d) and Article IV(c) violations. He has waived his right to complain about an Article IV(e) violation. Consequently, we cannot raise it for him either.

The majority points to a passage in a letter to the trial court in an effort to overcome the waiver. It is not persuasive. The letter is by Sephus’s attorney in reply to the State’s response to his Motion to Dismiss. Sephus’s motion only attacked the indictment on violations of Article 111(d) and Article IV(c). The response by the State only refuted violations of Article 111(d) and Article IV(c). The letter replies to each of the State’s responses. It only generally refers to the Detainers Act and never specifically mentions Article IV(e) anywhere. No cases were cited to support an Article IY(e) dismissal. The last paragraph of the letter which is cited by the majority is merely an assertion, again, of Sephus’s primary contention; that is, the case should be dismissed under Article 111(d) because Sephus was transported back to Pennsylvania before disposal of the Leon County charges.

Article III, in its entirety, is not applicable to the case at hand. Article IV(e) was never mentioned in writing, never argued before the trial court or this court, and never defended by the State. I cannot agree to use isolated and vague bits of a letter to say that it was previously raised by Sephus.

After raising the issue for Sephus and then stating that Sephus raised this issue, the majority goes further by saying that even if Sephus had not raised Article IV(e), “we should affirm a trial court’s decision when it is correct on any theory of law applicable to the case.” I am very reluctant to do this. First, the case law cited by the majority pertains primarily to rulings on the admission or exclusion of evidence. See McDuff v. State, 939 S.W.2d 607, 619 (Tex.Crim.App.1997). Second, we have no factual basis on which to make this decision.

An important reason for an appellate court’s general refusal to consider issues not raised below is the incompleteness of the record on such issues. In the nature of things, neither party is likely to have introduced evidence relevant to issues not raised at trial. Thus the appellate court has no factual basis, or at best a shaky basis, on which to make a decision. Also, the appellate court lacks the benefit of the trial judge’s views on the matter, views that might contribute to a sounder appellate resolution.

DaNiel John Meador & Jordana Simone Bernstein, Appellate Courts in the United States 56 (1994).

The record before us is incomplete. We don’t know when Harris County received custody of Sephus. We don’t know if Leon County really had a detainer on file at the time Harris County requested temporary custody. We don’t know why no one notified officials in Leon County that Sephus was in the state, that the trial in Harris County was completed or that they were sending Sephus back to Pennsylvania. We don’t know whether Sephus, himself, or his counsel requested his return to the prison in Pennsylvania. We don’t know if a de-tainer, if on file, was a detriment to Se-phus’s rehabilitation or even if he was involved in any rehabilitative programs because of his life sentence. We don’t know if his return to Leon County was disruptive of his rehabilitative programs if any were in place.

All of these things that we don’t know, either singularly or in combination, would make a difference in whether a dismissal is required under Article IV(e). And, all of these things that we don’t know were not developed in the hearing in the trial court because they were irrelevant to the issues raised in Sephus’s motion to dismiss. The State had no reason to introduce any of this missing evidence or refute evidence admitted because no Article IV(e) dismissal argument was ever made. I cannot agree to affirm this dismissal of capital murder on a complaint not raised.

Article TV’s Application

What Sephus raised in the alternative to his Article III complaint, what the State argued against and what the trial court ruled on is whether Leon County, not Harris County, acquired Sephus under Article IV(a) and if so, did the county violate the 120 day rule set out in Article IV(e). Our job is to review whether the decision based on that question is in error. Because in the context of the argument made by Se-phus the Detainers Act does not even apply, the trial court’s ruling was erroneous.

Article IV permits a State to request custody of a prisoner housed in another state in order to stand trial on pending charges in the requesting State. The trial has to be held within 120 days of the date the prisoner arrives in the requesting State. Tex.Code Crim.Proc.Ann. art. 51.14, Art. IV(c)(Vernon 1979).

Sephus argued that his case should be dismissed because Leon County, not Harris County, requested temporary custody of him under Article IV and had not tried him within 120 days of the date he arrived in Leon County. He presented no other alternative theories. The Leon County District Attorney contended that Sephus was not in custody due to a request under the Detainers Act. He maintained that he dismissed the detainer and acquired Se-phus through a writ of habeas corpus ad prosequendum. The trial court, however, found that Sephus had not been tried within 120 days and dismissed the indictment. In the record before us, the evidence shows that Leon County acquired custody of Sephus through a writ of habeas corpus ad prosequendum after the detainer the county had initially requested was dismissed.

On appeal, the State argued that the trial court’s decision to dismiss the indictment was in error because Sephus waived his complaint when he agreed to continuances past 120 days. Granted, the State did not advocate on appeal, as it had in the trial court, that the Detainers Act no longer applied. However, in order to even reach the State’s proposed issue, we must first decide, based on Sephus’s argument, if the Detainers Act applies to Sephus’s return to Leon County. It does not.

The United States Supreme Court has said that once a detainer is lodged against a prisoner, the Detainers Act is applicable, and a state or governmental entity must comply with its provisions. United States. v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 1848, 56 L.Ed.2d 329 (1978). However, in Mauro, the government attempted to secure the presence of a prisoner through a writ of habeas corpus ad prosequendum when a detainer was currently on file. The Court’s opinion did not address whether the same would be true if a de-tainer was dismissed prior to the acquisition of the prisoner by the other jurisdiction. Current Chief Justice Rehnquist, in his dissent to the majority opinion in Mauro, suggested that when a prisoner does not invoke the procedures of the Detainers Act, then nothing in the agreement binds the government to its terms and conditions. Id. at 1851 (Rehnquist, J., dissenting). The protections of the Act have only been held applicable where a prisoner is tried on charges for which a detainer is currently filed. See Browning, 310 N.W.2d at 372. At the time Sephus asked for his dismissal under the Detainers Act, the detainer from Leon County had been dismissed.

Our sister court in El Paso has already decided that a change in circumstances can invalidate a Detainers Act complaint. See Giles v. State, 908 S.W.2d 303 (Tex.App.—El Paso 1995, pet. ref'd). In Giles, the State indicted the defendant who was in a federal prison serving time (as opposed to awaiting trial). The defendant appealed his federal conviction, but while the appeal was pending, he was transported to El Paso pursuant to the State’s request under the Detainers Act. While in the State’s custody, the trial court suppressed evidence, and the State appealed. During the pendency of the State’s appeal, the defendant’s federal conviction was reversed and the U.S. Marshals retrieved the defendant for his new trial in federal court. The defendant pled guilty to the federal charges and was returned to El Paso. He filed two motions to dismiss in state court for violations of the 120 day rale and the anti-shuttling provision of Article IV. These were denied.

On appeal, the El Paso court found that the Detainers Act no longer applied to the defendant. Specifically, the court stated:

Although the State initially obtained custody of Giles through the IADA because Giles was at the time, a prisoner serving a term of imprisonment subject to his appeal, once Giles’ federal conviction was reversed and remanded for new trial, Giles was no longer a prisoner serving a term of imprisonment... .The goal of the IADA ... became inapplicable to Giles when he ceased to be a prisoner serving a term of imprisonment. .. .The reversal essentially returned Giles to the status of an accused in custody awaiting trial in one jurisdiction with multiple indictments pending in additional jurisdictions. We find that the IADA did not apply to Giles as of the date of the reversal of his conviction. .. .At that point, no violation of the IADA had yet occurred.

Giles, 908 S.W.2d at 306. It follows, then, that the dismissal of a detainer would also invalidate the applicability of the Detainers Act.

Other states have contemplated whether a withdrawal or dismissal of a detainer would release the parties from the obligations of the Detainers Act. A Colorado court held that where a detainer was not officially withdrawn, the prisoner was properly processed through the Detainers Act and affirmed the denial of his writ of habeas corpus. Massey v. People, 656 P.2d 658, 660 (Colo.1982). In New York, the state’s supreme court declared a de-tainer void because the issuing state did not try the prisoner within the proscribed time periods of the Detainers Act; however, the issuing state charges were not affected by the declaration, and the prisoner could not halt extradition proceedings when arrested on those outstanding charges. People ex rel. Kinkade v. Finnerty, 128 Misc.2d 515, 490 N.Y.S.2d 420, 422 (N.Y. County Ct.1985, pet. denied ). See also Gayles v. Hedman, 809 Minn. 289, 244 N.W.2d 154 (1976); State v. West, 79 N.J.Super. 379, 191 A.2d 758 (1963).

I have found nothing, nor has the court been presented with anything, in the De-tainers Act or case law to suggest that a State continues to be bound by the Detain-ers Act if a detainer is filed and then later dismissed. Therefore, the trial court’s decision to dismiss the indictment based on a violation of the 120 day rule was erroneous because the detainer had been dismissed, and the Detainers Act was not invoked when Sephus was transferred to Leon County.

No Dismissal Required

Even if Sephus did not waive an Article IY(e) complaint and even if the Detainers Act applied, Article IV(e) does not absolutely require a dismissal of the indictment. And, we should not affirm the dismissal in this case.

The Detainers Act was established in response to perceived problems with handling prisoners who had pending charges in different states. It was enacted with relatively little discussion and no apparent opposition. Mauro, 98 S.Ct. at 1843. Federal courts have discussed that before the enactment, detainers were commonly filed, often with little basis in fact, which worked to a prisoner’s detriment. Carchman v. Nash, 473 U.S. 716, 729-730, 105 S.Ct. 3401, 3408, 87 L.Ed.2d 516 (1985). The concern was that:

... a prisoner who has had a detainer lodged against him is seriously disadvantaged by such action. He is in custody and therefore in no position to seek witnesses or to preserve his defense. He must often be kept in close custody and is ineligible for desirable work assignments. What is more, when detainers are filed against a prisoner, he sometimes loses interest in institutional opportunities because he must serve his sentence without knowing what additional sentences may he before him, or when, if ever, he will be in a position to employ the education and skills he may be developing.

Cuyler, 101 S.Ct. at 712; Mauro, 98 S.Ct. at 1843 1844. To remedy these problems, the statute was created to “encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints.” Tex.Code CeimProcANN. art. 51.14, Art. I (Vernon 1979). With the passage of the Act, a prisoner could clear his record of detainers based on what was feared by the proponents of the Act to be unsubstantiated charges and force the state lodging the detainer either to drop the charge and resulting detainer or to bring the prisoner to trial. See Carchman, 105 S.Ct. at 3409.

But, where there is no evidence that a detainer was being used contrary to the purposes of the Detainers Act or in accordance with the practices at the time the Act was proposed, a drastic sanction of dismissal should not apply. See Commonwealth v. Petrozziello, 22 Mass.App.Ct. 71, 491 N.E.2d 627, 633, rev. denied, 397 Mass. 1104, 494 N.E.2d 388, cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986).

This concept has not been addressed by a court in Texas. However, other states have been unwilling to dispose of their usually weighty charges, on technical violations of the Detainers Act.

Some courts have found that where charges are pending in more than one jurisdiction of the receiving state and one jurisdiction does not know either the prisoner is in the state or, as in this case, he was being returned to the sending state, a dismissal is not appropriate.

The Special Appeals Court in Maryland was faced with the dismissal of an armed robbery charge for a violation of Article IV(e). Boyd v. State, 51 Md.App. 197, 441 A.2d 1133, aff'd, 294 Md. 103, 447 A.2d 871 (1982). In Boyd, the defendant committed armed robberies in two counties in Maryland and in the District of Columbia (D.C.). After the defendant pled guilty to the D.C. charge and was sentenced to a term of imprisonment, Montgomery County, Maryland, officials filed a detainer with the D.C. authorities. He was sent to face charges in Prince George County, Maryland, because of a request by that county for temporary custody. No one notified Montgomery County of Prince George County’s request for temporary custody or that the defendant would be in Maryland pursuant to it. After the defendant appeared in Prince George County, pled guilty to the charges pending and was sentenced, he was returned to D.C. without Montgomery County ever knowing he was in the state.

In affirming the decision to reject the defendant’s motion to dismiss, the Maryland court stated that all parts of the Detainers Act had to be read together, in harmony, to carry out its purpose. Id. Relying on Mauro, the court stated,

In that light, an indictment “contemplated” in Art. PV(e) can only mean an indictment which (1) forms the basis of a detainer lodged against the prisoner pursuant to Art. 111(a), and (2) is the object of either a request for final disposition by the prisoner ... or a request by the prosecutor for temporary custody....

Id. The court continued,

Although at the time of appellant’s first presence in Maryland pursuant to Prince George’s (sic) County request a detainer had been lodged against him based upon the Montgomery County indictment, no request had been made by either appellant or Montgomery County for the disposition of that indictment, and appellant was not delivered to Maryland in order to be tried on that indictment. (emphasis added).

Id. at 1138-1139. For those reasons, the Maryland court found that the indictment was not one “contemplated” by Article IV(e) in the context of the defendant’s earlier appearance in Prince George County and that the article did not require it to be dismissed. Id. at 1139.

In Florida, an appellate court looked at a similar situation. Williams v. State, 426 So.2d 1121 (Fla.Dist.Ct.App. 1st Dist. 1983), pet. denied, 437 So.2d 677 (Fla.1983). In Williams, the defendant escaped from jail in Union County, Florida, committed additional crimes in Marion County, Florida, and was arrested in New York for crimes committed there. Both counties in Florida filed detainers with officials in New York. The defendant was transferred to Marion County to face charges under a request for temporary custody. Union County was not notified that the defendant was in Florida. Accordingly, the defendant was returned to New York after his trial in Marion County and without a disposition of the Union County escape charge.

In a very short opinion, the Florida court affirmed the denial of a motion to dismiss. The court found that New York failed to give notice to Union County that the defendant was being brought to Florida, and failed to see why Florida should be denied the right to enforce its criminal laws because of the oversight of New York. Id. at 1122.

In Suffolk District, Massachusetts, a defendant shot and killed a Boston police officer during an armed robbery of a grocery store. The defendant had also committed an armed robbery in Berkshire District. He was arrested by the federal authorities on the warrant for the murder and for a federal parole violation. He was sent from a federal prison to Berkshire and Suffolk to be arraigned on their respective charges. When he was acquitted of the armed robbery charge in Berkshire, he was inadvertently sent back to the federal prison without Suffolk knowing of his return and without Suffolk trying him on the murder charge. The trial court refused to dismiss the murder charge. The appellate court agreed and held that the sanction of dismissal of a first degree murder charge should not apply where the return was the result of a mistake and the prosecutor from Berkshire was unaware of his transfer. Petrozziello, 491 N.E.2d at 633. The court recognized that this was not a case where the detainers were used to exact a punishment without having to try an unwinnable case. Id. The court declined to dismiss serious charges when the dismissal would not further the purpose of the Detainers Act. Id. at 633-634.

Courts have also declined to dismiss charges where there is no proof that the prisoner’s rehabilitation was disrupted.

In Tennessee, the trial court refused to dismiss indictments on attempted kidnap-ing, attempted aggravated assault, and attempted arson when a prisoner was sent back to federal custody to ease jail overcrowding. The defendant had been arraigned in Tennessee and had asked for more time to prepare for trial. When it was granted for one month, the sheriff sent the defendant back to his original place of confinement. The Court of Criminal Appeals affirmed the trial court’s action because, it stated, “[t]he purpose of the ‘anti-shuttling’ provisions of the ... Detainers Act is to provide prisoners with the opportunity to continue their rehabilitative programs while promoting the speedy disposition of outstanding charges.” Ball v. State, 891 S.W.2d 240, 241 (Tenn.Crim.App.1994). The court determined that the violation was technical and inadvertent. Id. at 242. It also noted that there was no claim that the defendant’s return interfered with his rehabilitation or that he was even in any rehabilitative programs. Id. A dismissal, it held, would not further the purposes of the Detainers Act. Id.

Massachusetts has echoed this sentiment, holding that a dismissal of serious charges, such as murder, under the De-tainers Act, requires proof that the prisoner’s rehabilitation has been adversely affected. Petrozziello, 491 N.E.2d at 633. See also Malone v.. United States, 482 A.2d 768, 770 (D.C.1984) (court looked to whether the transfer has contravened the overarching general purpose of the Detain-ers Act to eliminate uncertainties which obstruct programs of prisoner treatment and rehabilitation).

In our case, Leon County only knew that Harris County had requested temporary custody of Sephus. Leon County did not request temporary custody, and Se-phus did not request a disposition of his Leon County charge. Leon County was not notified when Sephus was brought to Texas, when he was tried in Harris County or when he was returned to Pennsylvania. And while this was going on without the county’s knowledge, Leon County changed district attorneys twice. Sephus was confined under life sentences from both the federal conviction and the Harris County convictions. He never contended that Leon County’s detainer caused him any disadvantage or prevented him from participating in prison programs, that he was engaged in rehabilitative programs and if he was, that the transfer to Leon County was disruptive of those programs.

Ruby Parker is dead, and Sephus stands accused. What resulted in Sephus’s transfer back to Pennsylvania was not a product of prosecutorial abuse of the detainer system where the pending charge was unsubstantiated or not winnable. The dismissal of his indictment for capital murder will not promote the purposes of the Detainers Act. Therefore, we should not, and I cannot, affirm the trial court’s dismissal of the indictment.

Conclusion

Because the State had no reason to contest or opportunity to defend and present evidence to refute a dismissal based on Article IV(e), the Detainers Act is not applicable, and if it were, it was not violated and because dismissal does not further the Act’s purpose, I cannot agree with the majority opinion. I respectfully dissent.

      . The author became responsible for drafting a majority opinion on August 7, 2000.

      . Because the Detainers Act also states that its goal is to "encourage the expeditious and orderly disposition of such charges ... based on untried indictments,” the result in this case cannot be said to be absurd. TexCode Crim.Proc.Ann. art. 51.14, Article I (Vernon 1979); Johnson v. State, 871 S.W.2d 744, 749 (Tex.Crim.App.1994) (Only when the literal text of a statute is unclear or would lead to results so absurd that the Legislature could not possibly have intended them should courts resort to extraneous means in statutory interpretation.).

      . The majority chose to issue their opinion before my dissent had been finalized. Issuance of the majority opinion triggers various appellate deadlines. See Tex.R.App.P. 49 and 68. And although the parties know one justice dissented from the majority opinion, the parties do not know the basis of the dissenting opinion and are thus prejudiced in pursuing further appellate review. So far as I am aware, this is the first time a majority of this court has not awaited a forthcoming dissent. Justice is not something that can be rushed. It has been said that justice delayed is justice denied. But the corollary is also true, a timely result that is wrong is not justice. Thus, I also express my dissent from the majority’s decision to publish their opinion without issuing the dissent at the same time.

      . This annotation contains many citations from jurisdictions across the United States which have construed the Detainers Act.

      . This argument was the alternative argument to his initial Article III complaint.

      . He presented no other alternative theories to us on appeal.

      . From the trial court's finding of fact number 5, it is evident that this is the basis upon which the trial court dismissed the indictment. By finding that the trial had not been held within 120 days of his delivery to Leon County, it is clear the court believed that Leon County had a detainer on file and had not had it dismissed.

      . In response to the trial court’s finding that the 120 day rule was violated, the State argues Sephus waived his right to obtain relief on this basis. The State is correct. As will be discussed, the 120 day requirement is not applicable to Sephus. However, if it is applicable, Sephus waived the application of the time limits within which he must be tried under the act by requesting or agreeing to the continuances, failing to timely assert his rights or failing to timely object on this basis. See New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) (Court rejected the argument that waiver of the 120 day rule can be effected only by an affirmative request by the prisoner); Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994) (Court’s failure to observe the 120 day rule not cognizable "when the defendant registered no objections to the trial date at the time it was set ... ”); United States v. Scallion, 548 F.2d 1168, 1174 (5th Cir.,1977) (Court agreed that Scallion waived violation of 120 day requirement.); Ex Parte Saylor, 734 S.W.2d 55, 57 (Tex.App. — Houston [1st Dist.] 1987, no pet.) (agreed resetting of trial date not counted in 120 day period); Huffines v. State, 646 S.W.2d 612, 613 (Tex.App.— Dallas 1983, pet. ref'd) (where State and the accused agree to a continuance without further explanation the time of the continuance is deemed "necessary and reasonable” under the acts provision and not counted as part of the 120 day period).


source: Caselaw Access Project

author: PAUL W. GREEN, Justice.

license: Public Domain

text:
    JOE GUERRA EXXON STATION, Appellant, v. MICHELIN TYRE PUBLIC LIMITED COMPANY, Appellee.
    No. 04-00-00049-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 25, 2000.

      Kevin D. Jewell, Robert H. Bateman, Teresa J. Waldrop, Magenheim Bateman & Helfand, P.L.L.C., Houston, Marcel C. Notzon, III, Alvarez & Notzon, L.L.P., Laredo, for Appellant.
    Eustorgio Perez, Vela, Perez and Pena (An Association), Laredo, James B. Ragan, James B. Ragan, P.C., Corpus Christi, Julio A. Garcia, Law Offices of Julio A. Garcia, Laredo, Tracey M. Robertson, Michael W. Youtt, Gregory K. Evans, King & Spalding, Joseph W. Gagnon, Mark Ramsey, Ramsey & Murray, P.C., Houston, Laticia L. Martinez, Baldemar Garcia, Jr., Donato D. Ramos, Person, Whitworth, Ramos, Borchers & Morales, George Russell Meurer, Kazen, Meurer & Perez, Laredo, for Appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, PAUL W. GREEN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

PAUL W. GREEN, Justice.

This accelerated appeal arises from the trial court’s grant of the special appearance of Michelin Tyre Public Limited Company (Michelin Tyre). See Tex.Civ. Prao. & Rem.Code Ann. § 51.014(a)(7) (Vernon Supp.2000). Because we agree the trial court lacked personal jurisdiction over Michelin Tyre, we affirm the trial court’s order granting the special appearance and dismissing Michelin Tyre from the lawsuit.

Factual and Procedural Background

Alma Rosa Delgado Cardona and Liliana Elizabeth Perez Cerda were passengers in a Range Rover automobile driven by Eduardo Jaime Gonzalez when all three were fatally injured in a one car accident allegedly caused by a defective tire. Relatives of Cardona, Cerda, and Gonzalez, plaintiffs in the suit below, filed suit against Gunn Oldsmobile, Inc., (Gunn Olds), the dealer that sold Gonzalez the car, and Joe Guerra Exxon Station, a service station that allegedly repaired the tire shortly before the accident. The plaintiffs also sued Michelin North America, Inc. (MNA), its predecessor, Michelin Tire Corporation (MTC), and Michelin Tyre. Gunn Olds and Joe Guerra Exxon filed cross claims for indemnity against MNA, MTC, and Michelin Tyre.

Michelin Tyre admits it manufactured the tire in question. Michelin Tyre is an English corporation, manufacturing tires exclusively in England and the United Kingdom. The tire at issue was sold to Land Rover in England and placed on the Range Rover vehicle. Land Rover then distributed the vehicle to the United States through Gunn Olds.

The trial court made findings of fact, in relevant part, as follows:

6. Michelin Tyre is not and has never been a resident of Texas, and it neither has maintained, nor has been required to maintain, a registered agent for service of process in Texas. Michelin Tyre has never paid taxes in Texas. Michelin Tyre has never owned, leased, or used any property in the State of Texas. Michelin Tyre has never maintained a place of business in Texas, either directly or through an agent or other person or entity. Michelin Tyre has never maintained any employees, servants, or agents in Texas. Michelin Tyre does not maintain any offices, facilities, or places of business in Texas.
7. Michelin Tyre has never been authorized to do business in the State of Texas. Michelin Tyre has never done any business, trade, or commerce in the State of Texas. Michelin Tyre has never solicited business in the State of Texas. Michelin Tyre has never served any market in Texas. Michelin Tyre has never sold or delivered goods to Texas, has never entered into a contract in Texas, has never sold, supplied, distributed, marketed, promoted, or advertised tires or any other product in or to Texas. Michelin Tyre has also never participated in the sale, supply, distribution, marketing, promotion, or advertisement of tires or any other product in or to Texas. Michelin Tyre did not create, control or employ any distribution system that brought any of its products to the State of Texas.
8. The subject tire was not designed or manufactured specifically for the Texas market. Michelin Tyre does not design or manufacture any tire specifically for the Texas market.
9. Michelin Tyre has never had any financial dealings in Texas.
10. Michelin Tyre has never initiated any litigation or other legal proceeding in Texas.
11. Neither Michelin Tyre nor any representative of Michelin Tyre has other wise purposely developed any connection with the State of Texas nor directed any activity toward the State of Texas nor has it availed itself of the benefits or protections of Texas law.
13. Michelin Tyre has always manufactured its tires exclusively in the United Kingdom. Land Rover manufactures Range Rover vehicles in England. Michelin Tyre sells tires to Land Rover to be used as original equipment tires on Land Rover vehicles, and all of these sales occur in the United Kingdom. The only way that a Michelin Tyre tire could be present in the United States is if some separate person or entity acquired it from Michelin Tyre and thereafter caused it to be brought to the United States.
14. At the time that Michelin Tyre sells tires to Land Rover, Land Rover takes title to the tires with Michelin Tyre relinquishing all control of, or ownership or other interest in, the tires at that time. After Michelin Tyre sells tires to Land Rover, neither Michelin Tyre nor any representative as agent of Michelin Tyre has control over what happens to any particular tire, or where Land Rover decides to send that tire, or where that tire is actually sent. Michelin Tyre does not control or participate in any way in the actual shipment, distribution, advertising, marketing, promotion, or sale of any Land Rover product in Texas. Michelin Tyre has no knowledge of where Land Rover plans to send particular tires, or what happens to those tires after they are sold, or where Land Rover decides to send those tires, or where those tires are actually sent.

The trial court also found that Michelin Tyre is a completely separate and distinct company from MNA, MTC, or Land Rover. MNA is the Michelin affiliate company responsible for manufacturing, selling, marketing, and distributing Michelin-brand tires in the United States. Finally, the trial court found that defending the case in Texas would be very burdensome and difficult for Michelin Tyre because of the distance involved and Michelin Tyre’s lack of familiarity with the laws of the State.

Based on its findings of fact, the trial court concluded that Michelin Tyre lacked the minimum requisite contacts with the State of Texas for the court to exercise general or specific personal jurisdiction. The trial court further held that exercising jurisdiction over Michelin Tyre would offend traditional notions of fair play and substantial justice and granted the special appearance. Joe Guerra Exxon appeals that decision.

Scope and Standard of Review

A nonresident defendant bears the burden to negate all bases of personal jurisdiction to prevail in a special appearance. Magnolia Gas Co. v. Knight Equip. & Mfg. Corp., 994 S.W.2d 684, 689 (Tex. App. — San Antonio 1998, no pet.). This court has consistently held that we review the trial court’s grant or denial of a special appearance for abuse of discretion. Eakin v. Acosta, 21 S.W.3d 405, 407-08 (Tex.App. — San Antonio 2000, no pet.) (citing Magnolia Gas, 994 S.W.2d at 689)). Under the abuse of discretion standard, we give deference to the trial court’s resolution of factual issues and will not disturb its decision absent a showing of arbitrariness or unreasonableness. Magnolia Gas, 994 S.W.2d at 689. However, we review the trial court’s legal conclusions de novo, and we will not disturb those conclusions absent a misapplication of the law. Eakin, 21 S.W.3d at 408.

Jurisdiction

A Texas court may not take personal jurisdiction over a nonresident defendant unless the defendant has some minimum, purposeful contacts with the state and the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. CMMC v. Salinas, 929 S.W.2d 485, 487 (Tex.1996). Under the minimum contacts requirement of this analysis, we must determine whether Michelin Tyre purposefully availed itself of the privilege of conducting activities within the state, thus enjoying the benefits and protections of state law. See Magnolia Gas, 994 S.W.2d at 690. Minimum contacts may give rise to either general or specific jurisdiction. Id. Joe Guerra Exxon asserts Michelin Tyre has minimum contacts with the State of Texas without specifying whether those contacts justify a finding of general or specific jurisdiction. Accordingly, we examine the possible grounds for both.

General jurisdiction arises when systematic and continuous contacts tie the defendant to the forum state. Id. The trial court found Michelin Tyre had no contacts with the State of Texas. This finding is supported by the evidence in the record. Michelin Tyre does business exclusively in England and the United Kingdom. It does not have, and has never had, any assets, property, employees, representatives, or agents in Texas. It was not an abuse of discretion for the trial court to grant the special appearance based on a lack of general jurisdiction.

Specific jurisdiction exists when the cause of action arises out of, or relates to, the defendant’s contacts with Texas. LeBlanc v. Kyle, 28 S.W.3d 99, 102-03 (Tex.App. — Texarkana 2000, no pet. h.); Eakin, 21 S.W.3d at 409; Magnolia Gas, 994 S.W.2d at 691. Joe Guerra Exxon argues Michelin Tyre has sufficient contacts with Texas because it knew its tires were being placed on automobiles that could be sold in Texas. Joe Guerra Exxon emphasizes that Michelin Tyre places the federal Department of Transportation (DOT) number on the sidewall of each tire. Joe Guerra Exxon claims that by complying with a United States regulation for identifying tires, Michelin Tyre purposefully directed its commercial activity at all states who have adopted the DOT regulations, including Texas. This argument follows the reasoning in World-Wide Volkswagen Corp. v. Woodson that a state may properly assert jurisdiction “over a corporation that deliver[s] its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” CMMC, 929 S.W.2d at 437 (citing World-Wide Volkswagen, 444 U.S. 286, 297-98, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980)).

The broad language of WorldWide Volkswagen has been limited by subsequent opinions. See Asahi Metal Indus. v. Superior Ct. of Cal., 480 U.S. 102, 110-112, 107 S.Ct. 1026, 1031-1032, 94 L.Ed.2d 92 (1987). In CMMC, the Texas Supreme Court cited with approval the language of Justice O’Connor’s opinion in Asahi Metal Indus.

[Some] courts have understood the Due Process Clause and the [ ] language in World-Wide Volkswagen to require the action of the defendant to be more purposefully directed at the forum State than the mere act of placing a product in the stream of commerce.... We now find this [ ] position to be consonant with the requirements of due process. The “substantial connection” between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant 'purposefully directed toward the forum State.

CMMC, 929 S.W.2d at 438 (quoting Asahi Metal Indus., 480 U.S. at 110-12, 107 S.Ct. 1026 (emphasis in original)). The Texas Supreme Court went on to suggest it “would follow Justice O’Connor’s formulation of the stream-of-commerce rule in Texas.” Id. at 440. Thus, merely placing a product in the stream of commerce, even with the knowledge the product may or will end up in the forum state is not sufficient to establish personal jurisdiction.

The placement of the DOT identifier on the tires does no more than allow Michelin Tyre’s customer, Land Rover, to use the tires on vehicles sold in the United States, if Land Rover so chooses. At most, Michelin Tyre could foresee that some of the tires sold to Land Rover in England might end up in the United States. Foreseeability alone is insufficient to establish personal jurisdiction without some act purposefully directed toward selling or marketing the tires in the State of Texas. CSR Ltd. v. Link, 925 S.W.2d 591, 595-96 (Tex.1996). Because Michelin Tyre did not take some purposeful action to market, promote, or otherwise distribute its products in the State of Texas, the trial court did not abuse its discretion in granting Michelin Tyre’s special appearance.

Because Michelin Tyre lacks minimum contacts with the State of Texas, the exercise of personal jurisdiction over this defendant would offend traditional notions of fair play and substantial justice. This is particularly true in the case of a foreign defendant “because of the unique and onerous burden placed upon a party to defend a suit in a foreign legal system.” See CMMC, 929 S.W.2d at 440. Accordingly, we affirm the judgment of the trial court.

      . We have suggested that a better approach may be to review the trial court’s order de novo, especially in cases like the present where no evidence is presented at the hearing; therefore, the trial court had no more information than is contained in the record on appeal. See Long Distance Int’l, Inc. v. Telefonos de Mexico, S.A., 18 S.W.3d 706, 711 n. 3 (Tex.App. — San Antonio 2000, no pet. h.); Transportes Aereos de Coahuila, S.A. v. Falcon, 5 S.W.3d 712, 717 n. 3 (Tex.App. — San Antonio 1999, pet. denied). However, as it makes no difference to the outcome in this case, we again decline to address a change in the standard of review.


author: BILL CANNON, Justice

text:
    William JOHNSON a/k/a William Coleman, Appellant, v. The STATE of Texas, Appellee.
    Nos. 14-98-00379-CR, 14-98-00597-CR to 14-98-00601-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 26, 2000.

      Buddy Stevens, Angleton, for appellants.
    David Bosserman, Angleton, for appel-lees.
    Panel consists of Justices CANNON, DRAUGHN, and LEE.

       Senior Justices Bill Cannon, Joe L. Draughn, and Norman Lee sitting by assignment.

   OPINION

BILL CANNON, Justice

(Assigned).

William Johnson a/k/a William Coleman appeals his six consolidated jury convictions for engaging in organized criminal activity to commit aggravated robbery of six different people. Tex. Pen.Code Ann. § 71.02(a)(1) (Vernon 1994 & Supp.2000). The jury assessed his punishment at life imprisonment on each offense, enhanced by five prior felony convictions. In four points of error, appellant contends the trial court erred: (1) in charging the jury on the law of parties; (2) & (3) by failing to grant a directed verdict because the evidence was legally and factually insufficient; (4) in allowing a gruesome photograph of the complainant into evidence. We affirm.

BACKGROUND

On December 19, 1993, at about 10:00 p.m., David and Stephanie Palmer, their three children, Adam, Candice, and Shawn, and Shawn’s friend, Joe Smith, were visiting in parts of the Palmers’ home when Stephanie observed a black man with a shotgun in her kitchen. The man was later identified as Charles Harold Hughes, and he was not wearing a mask. Hughes told everyone that this was a robbery and to get down on the floor. A second man with a handgun came in and pointed the gun at the people in the living room. Mr. Palmer stated the second man was black, wearing a black ski mask, a pullover sweater and baggy blue jeans. Both Hughes and the other man were wearing gloves. The second man said, “[T]his is a robbery! Get up against the wall and lay down flat on your face.” Mr. Palmer heard “ransacking” noise coming from the master bedroom and the kids’ bedroom. Hearing noise in two parts of his house, he felt there were a total of four men in his house. Mr. Palmer heard a shotgun blast, and one of the gunmen said, “[Djon’t mess with us.” He heard the voices of the other two men who were ransacking the bedrooms, and they said, “[Kjill them, kill them all.” The men then left taking rifles, cash, a wallet, credit cards, a computer, a monitor, a TV, a VCR, a camcorder, and other items of personal property with them. Mr. Palmer went to his wife’s side and found that the right side of her face was gone, and she was bleeding profusely. Mr. Palmer stated that the men took 25 minutes to carry all of their property out of their house and load it into their vehicle. An ambulance took Mrs. Palmer to the hospital where she stayed for six or seven weeks. She had 28 surgeries performed by the time of the trial. The police investigated but found no fingerprints.

Marva Sears, known as “Ni’se” to her friends, testified that Hughes, Shawn Adams, James Barrett, and appellant were living with her at her house right before Christmas in 1993. Although she could not remember the date, she stated it was “around” Christmas when she heard Shawn Adams rapping about a lady getting shot in Pearland. She stated that appellant appeared afraid. She observed a TV, a computer, and a VCR that was carried into her house and did not belong there. She did not know who brought this property into her house, and she told Shawn to remove the property.

Tara Johnson had been dating appellant during this time, and she said she knew Hughes and Shawn Adams. She stated that Hughes, Shawn Adams, and appellant met regularly at Ni’se’s house. She heard an unusual conversation between the trio in front of Ni’se’s house around 10:00 to 10:80 p.m., the night of the robbery. She remembered December 19, 1993, as the date because it was her brother’s birthday. She testified that the trio appeared nervous, and Shawn Adams said, “We went all the way to Brazoria and it wasn’t there.” Hughes said, “F — k that bitch.” Appellant said, “It wasn’t suppose to go like that.”

Randolph Scott knew the trio, and stated he bought a TV from Shawn Adams at Ni’se’s house in December 1993. He stated that a TV, a VCR, and a camcorder came into the house in December 1993.

Jimmy Lackey was an inmate in the same cell with appellant and Shawn Adams. He testified that appellant told him that he saw Hughes shoot Mrs. Palmer. Appellant told Lackey that Mrs. Palmer attempted to settle a child and Hughes spun around and shot her in the head with a shotgun. Appellant further indicated to Lackey that the shooting did not bother him, and told Lackey, “F — k that bitch, I saw her get shot and it didn’t even bother me.”

Gregory Felder was also in the same cell with appellant and Shawn Adams for about five and one-half months. Appellant told Felder that he saw Mrs. Palmer get shot in the face in her home. Appellant told Felder that the “guys” that entered the Palmers’ home wore ski masks and went “rambling” through the house. Appellant referred to Mrs. Palmer as “that white bitch” and also told Felder that it was “good for her because she got shot in the face.”

After the trial court overruled appellant’s motion for a directed verdict, appellant presented two cell mates as defensive witnesses, Donald Johnson and Timothy Work. Johnson and Work were also in the same cell with appellant when he told Lackey and Felder that he saw Hughes shoot Mrs. Palmer. Johnson and Work testified that they never heard anyone in the cell talk about their cases.

THE JURY CHARGE ON LAW OF THE PARTIES

In point one, appellant contends the trial court erred in charging the jury on the law of parties in addition to charging him as a principal acting with Shawn Adams and Charles Hughes in a combination to commit aggravated robbery. Appellant objected to the charge on these grounds arguing that the charge allowed the State to convict on two separate theories. Appellant argues that the court’s charge allows the State to “prosecute for engaging in organized criminal activity as a party.”

The application paragraph of the trial court’s jury charge in each case allowed the jury to convict if it found appellant “did ... with intent to establish, maintain, and participate in a combination ... with ... Charles Harold Hughes and Shawn Adams ... knowingly threaten and place [the victim] in fear of imminent bodily injury and death.... ” The trial court also instructed the jury separately on the requirements of a combination and on the law of parties. After the instruction on a combination, the court’s charge authorized the jury to convict appellant if they found he aided or encouraged Hughes and Adams in the commission of aggravated robbery on the Palmers. The jury found appellant guilty of engaging in organized criminal activity “as charged in the indictment” in each of the six eases.

The parties charge in this case applied to appellant’s acts in committing aggravated robbery of the Palmers, not to the intent to participate in a combination to commit the robbery. The charge did not authorize appellant’s conviction by engaging in organized criminal activity as a party with Hughes and Adams. The jury was authorized to convict appellant only if it found that appellant intended to participate in a combination with Hughes and Adams to commit aggravated robbery; the aggravating circumstance of aggravated robbery could have been committed while appellant was acting alone or as a party with Hughes and Adams. A similar complaint about erroneously charging the jury with the law of parties in a combination offense in each of three companion cases was overruled recently by the Beaumont Court of Appeals. The Court found in these cases that the parties charge applied to the appellant’s acts causing the death of a victim, and not to his intent to participate in a combination. See Campbell v. State, 18 S.W.3d 914, 920(Tex.App. — Beaumont 2000, no pet.h.); Brumfield v. State, 18 S.W.8d 921, 927-928 (Tex.App. — Beaumont 2000, no pet.h.); Armstrong v. State, 18 S.W.3d 928, 932-933 (Tex.App. — Beaumont 2000, no pet.h.). In each of those cases, a similar charge was found to authorize the jury to convict each of the three appellants only if it found that he murdered the victim while either acting alone or as a party, and that each of the three appellants was then incarcerated in the Terrell Unit and intended to participate in a combination. Id. We hold the trial court did not err in submitting to the jury an instruction on the law of parties. Appellant’s point of error one is overruled.

THE LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE

In point two, appellant contends the trial court erred by failing to grant a directed verdict because the evidence was legally insufficient to support the verdict. In point three, he contends the trial court erred by failing to grant a directed verdict because the evidence was factually insufficient to support the conviction.

Standard of Review

A challenge to the denial of a motion for an instructed verdict is actually a challenge to the legal sufficiency of the evidence. See Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1432, 113 L.Ed.2d 483 (1991); Thornton v. State, 994 S.W.2d 845, 849 (Tex.App.—Fort Worth 1999, pet. ref'd).

In reviewing the legal sufficiency of the evidence, we consider all the evidence, both State and defense, in the light most favorable to the verdict. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984); Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App.1993). In reviewing the sufficiency of the evidence in the light most favorable to the verdict or judgment, the appellate court is to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ransom v. State, 789 S.W.2d 572, 577 (Tex.Crim.App.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990). This standard is applied to both direct and circumstantial evidence cases. Chambers v. State, 711 S.W.2d 240, 245 (Tex.Crim.App.1986). The jury is the exclusive judge of the facts, credibility of the witnesses, and the weight to be given to the evidence. Chambers v. State, 805 S.W.2d 459, 462 (Tex.Crim.App.1991). In conducting this review, the appellate court is not to re-evaluate the weight and credibility of the evidence, but act only to ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). In making this determination, the jury can infer knowledge and intent from the acts, words, and conduct of the accused. Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App.1982).

The sufficiency of the evidence to support a conviction should no longer be measured by the jury charge actually given but rather measured by the elements of the offense as defined by a hypothetically correct charge. See Curry v. State, 975 S.W.2d 629, 630 (Tex.Crirm.App.1998). “Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability and adequately describes the particular offense for which the defendant was tried.” Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1992).

Under Clevis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996), a court of appeals reviews the factual sufficiency of the evidence when properly raised after a determination that the evidence is legally sufficient. Id. In conducting a factual sufficiency review, the court of appeals views all the evidence without the prism of “in the light most favorable to the prosecution” and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. In conducting a factual sufficiency review, the court of appeals reviews the fact finder’s weighing of the evidence and is authorized to disagree with the fact finder’s determination. This review, however, must be appropriately deferential so as to avoid an appellate court’s substituting its judgment for that of the jury. If the court of appeals reverses on factual sufficiency grounds, it must detail the evidence relevant to the issue in consideration and clearly state why the jury’s finding is factually insufficient. The appropriate remedy on reversal is a remand for a new trial. Id.

A factual sufficiency review must be appropriately deferential so as to avoid the appellate court’s substituting its own judgment for that of the fact finder. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). This court’s evaluation should not substantially intrude upon the fact finder’s role as the sole judge of the weight and credibility of witness testimony. Id. The appellate court maintains this deference to the fact findings, by finding fault only when “the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust.” Id.

The court of criminal appeals has recently clarified Cleivis addressing the factual sufficiency standard of review. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). The court of criminal appeals held, in pertinent part:

We hold, therefore, that our opinion in Clewis is to be read as adopting the complete civil factual sufficiency formulation. Borrowing in part from Justice Vance’s concurring opinion in Mata v. State, 939 S.W.2d 719, 729 (Tex.App.— Waco 1997, no pet.), the complete and correct standard a reviewing court must follow to conduct a Clems factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.

Johnson, 23 S.W.3d at 11.

Discussion

Under point two, appellant argues there is no evidence of his participation in a combination, or that he used a firearm at the Palmers’ house, or that he committed theft. We disagree.

Under the facts as set out above, in this opinion, all the participants in the robbery wore masks except Hughes. The second male was in the room with the Palmers and Smith, and yelled: “[T]his is a robbery! Get up against the wall and lay down fiat on your face.” Mr. Palmer stated he heard two other men in two separate bedrooms “ransacking.” Appellant’s cell mate, Jimmy Lackey, stated appellant told him that he was at the Palmers’ house on the night of the robbery and he saw Hughes shoot Mrs. Palmer in the head. Ni’se said a TV, VCR, and a camcorder were carried into her house, but she did not know which of the participants brought the equipment in. Tara Johnson stated the trio were acting nervous, and were standing in the front yard of Ni’se’s house when she overheard an unusual conversation. Adams said, “We went all the way to Brazoria and it wasn’t there.” Hughes said, “F — k that bitch.” Appellant said, “It wasn’t suppose to go like that.” Mr. Palmer stated all the men left the house carrying out many items of personal property, including a TV, VCR, and a camcorder.

Appellant was charged with Engaging in Organized Criminal Activity under Penal Code section 71.02, which provides in relevant part:

A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit one or more [enumerated offenses, including aggravated robbery].

Tex. Pen.Code Ann. § 71.02(a)(1) (Vernon 1994 & Supp.2000).

“Combination” is defined as “three or more persons who collaborate in carrying on criminal activities.” Tex. Pen.Code Ann. § 71.01(a) (Vernon 1994 & Supp.2000). To establish participation in a combination, the State must prove “that the appellant intended to ‘establish, maintain, or participate in’ a group of three or more, in which the members intend to work together in a continuing course of criminal activities.” Dowdle v. State, 11 S.W.3d 233, 235-236 (Tex.Crim.App.2000); Nguyen v. State, 1 S.W.3d 694, 697 (Tex.Crim.App.1999). These activities need not, individually, be criminal offenses. Id. “An agreement constituting conspiring to commit may be inferred from the acts of the parties.” Tex. Pen.Code Ann. § 71.01(b) (Vernon 1994 & Supp.2000)

The jury could infer that appellant had an agreement conspiring to commit the robbery by his actions at the Palmers’ residence. Appellant was one of the three men wearing a mask at the Palmers’ home, and the man in the living room with Hughes held a gun on the victims telling them all to lie down. The other two were “ransacking” the two bedrooms and shouted, “Kill them all.” Accordingly, a jury could infer that the other three men in the house, one of which was appellant, conspired to commit the robbery with Hughes. The use of firearms by the two men in the living room was obviously known to the other two, because they were shouting encouragement to the two in the living room to kill the victims. Appellant admitted to Lackey that he saw Hughes shoot Mrs. Palmer, and that he did not care. All four of the men committed “overt acts” in furtherance of the conspiracy: (1) the other man with Hughes in the living room held a gun on all of the victims and ordered them to get on the floor; (2) Hughes held the shotgun, ordered all the victims to he on the floor, and shot Mrs. Palmer during the robbery; (3) the other two men “ransacked” the house and shouted “Kill them all” after Hughes shot Mrs. Palmer; and (3) all four participated in taking the property out of the house. Therefore, a rational jury could conclude appellant was one of the three other men in the house, knew of Hughes intention to “use” the shotgun during the continuing course of criminal activity, and he would be jointly responsible with Hughes for the use of a deadly weapon. See Dowdle, 11 S.W.Sd at 236-238. After. the robbery, appellant, Hughes, and Adams, met at Ni’se’s house and talked “nervously” about events that occurred earlier. A TV set, a VCR, and a camcorder were carried into Ni’se’s house, and she told Adams she wanted the property taken out. This would be evidence of a “continuing course of criminal activities” following the robbery demonstrating appellant, Hughes, and Adams were collaborating as a “combination”. Id. The State has proved: (1) a combination of “three or more persons who collaborate in carrying on criminal activities,” under section 71.01(a), Texas Penal Code; (2) appellant intended to “establish, maintain, or participate in” the combination; (3) appellant agreed with Hughes and Adams to commit aggravated robbery of the Palmers’ residence; (4) appellant performed overt acts in furtherance of the conspiracy, including transportation of the stolen property from the Palmers’ residence. See Dowdle, 11 S.W.3d at 236-237 & n. 2. We find that rational jurors could have found the essential elements of the offense beyond a reasonable doubt. We overrule appellant’s point of error two.

In point three, appellant contends the same evidence is factually insufficient to sustain his conviction, and the trial court erred in failing to grant a directed verdict. Appellant relies on the same alleged deficiencies in the State’s proof that he used to argue the evidence was legally insufficient. His argument is essentially that the quantum of the evidence is “so against the great weight of the evidence as to be clearly wrong and unjust.” Neither appellant, Hughes, nor Adams testified, and the only defensive evidence offered was in the form of rebuttal testimony by two other cell mates to the effect that they never heard appellant talk about the crime. Appellant further argues that the testimony of Lackey and Felder “is so tainted as to be beyond belief.” He further contends that: (1) the property was never recovered; (2) there were no fingerprints recovered at the Palmers’ house; (3) none of the victims identified appellant as one of the robbers; (4) there were discrepancies in the actual time appellant, Shawn, and Hughes, had their “unusual” conversation at Ni’se’s house after the robbery; (5) there is no evidence connecting the TV, VCR, and camcorder observed in Ni’se’s house to the robbery; (6) Lackey never gave any details about the robbery at the Palmers’ home; and (7) the trio talked about an incident in “Brazoria” but the robbery took place in Pearland, Brazoria County. Thus, appellant asserts the evidence is factually insufficient to sustain the conviction.

Appellant’s argument goes to the weight and credibility of the evidence. What weight to give contradictory testimonial evidence is within the sole province of the trier of the fact, because it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App.1997). Accordingly, we must show deference to the jury’s findings. Id. at 409. A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Id. at 410. In performing a factual sufficiency review, the courts of appeals are required to give deference to the jury verdict, examine all of the evidence impartially, and set aside the jury verdict “only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Cain, 958 S.W.2d at 410; Clewis, 922 S.W.2d at 129. We have examined all of the evidence impartially, a neutral review, and do not find that proof of engaging in organized criminal activity is so “obviously weak as to undermine confidence in the jury’s determination.” Johnson, 23 S.W.3d at 11. Under the new Clewis-Johnson test, we further find that the proof of guilt is not greatly outweighed by appellant’s contrary proof. Id. Considering all of the evidence, measuring it against the charge, and giving due deference to the role of the jury as fact finder, we cannot say that the finding of guilt, beyond a reasonable doubt, and the implied finding against the defensive issues, beyond a reasonable doubt, are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Reaves v. State, 970 S.W.2d 111, 118 (Tex.App. — Dallas 1998, no pet.). We overrule appellant’s point of error three.

THE GRUESOME PHOTOGRAPH

In point four, appellant contends the trial court erred in allowing the photograph of Mrs. Palmer’s injuries to be introduced into evidence before the jury. The photograph depicted damage to Mrs. Palmer’s head after she had been shot by Hughes. Appellant objected that the photograph “may be relevant,” but further made a rule 403 objection that the “prejudicial value far outweighs is probative value” because there was no issue concerning the extent and nature of Mrs. Palmer’s injuries. The State argued that the nature of the injury made the photo more probative than prejudicial, and just because it was gruesome did not mean it was prejudicial. The trial court overruled appellant’s relevancy objection and found the probative value of the photograph outweighed the prejudicial value.

Once a defendant objects to photographic evidence on the basis of rule 403, Texas Rules of Evidence, the trial court must weigh its probative value against its potential for unfair prejudice. Jones v. State, 982 S.W.2d 386, 394 (Tex.Crim.App.1998). An appellate court reviewing the trial court’s decision may reverse it only for an abuse of discretion, ie., only when the trial court’s decision was outside the zone of reasonable disagreement. Id.

On the record before us, we can discern no abuse of discretion on the part of the trial court in admitting the photograph. The photograph in question apparently depicted no more than the gruesome nature of the injuries inflicted by Hughes. Although a crime scene photograph may be gruesome, that fact alone will rarely render the photograph necessarily inadmissible under rule 403. Id. Appellant has demonstrated no abuse of discretion in the admission of the photograph into evidence. We overrule appellant’s point of error four.

We affirm the judgment of the trial court.