text:
    HORIZON SHIPBUILDING, INC., Travis R. Short, and Ben Forrest, Appellants, v. BLYN II HOLDING, LLC, Appellee.
    No. 14-09-00852-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 7, 2010.

      Christopher David Bertini, George W. Vie III, Galveston, for appellants.
    David Stephen Toy, Houston, for appel-lee.
    Panel consists of Justices BROWN, SULLIVAN, and CHRISTOPHER.
   OPINION

TRACY CHRISTOPHER, Justice.

In this interlocutory appeal, appellants, Horizon Shipbuilding, Inc. (“Horizon”), Travis R. Short, and Ben Forrest, challenge the trial court’s denial of their special appearance. Concluding the Texas court has personal jurisdiction over appellants, we affirm.

I. Factual and ProceduRal Background

This case arises from a dispute between a Texas corporation and an Alabama corporation and its principals. Appellee, BLyn II Holding, LLC (“BLyn”) is a Texas Corporation. Horizon is an Alabama corporation. Short, the president and general manager of Horizon, resides in Mississippi. Forrest, a project manager for Horizon and director of operations for Crimson, an unincorporated division of Horizon, resides in Alabama. The dispute involves a motor yacht, the MY Betty Lyn II, which BLyn had purchased to refurbish and refít as a charter vessel. The yacht was moored in Galveston County.

In April 2006, Horizon, acting through Short and Forrest, represented to BLyn that Horizon could refurbish and outfit the yacht for an estimated but set price. BLyn paid to have the yacht hauled to Alabama, and Horizon received the yacht at its Alabama shipyard in June 2006. On August 1, 2006, Horizon, acting through Crimson, executed a time and materials contract with BLyn for Horizon to perform the work on the yacht in Alabama. The contract also purportedly contained an Alabama choice-of-law provision.

In late September 2006, James McCord, a member of BLyn, sent an email to Short and Forrest informing them of an October 5 meeting in Houston “to discuss documentation and financing for the boat, draw schedule for the bank, valuations of the boat as the refit progresses, final plans for the interior and exterior, legal issues, and other topics that may arise during the meeting.” Short responded that he and Forrest planned to attend. According to McCord, at the October 5 meeting, they “[s]peeifieally discussed ... a budget for refinishing the vessel of approximately $4,500,000 to be paid to Horizon for its employees’ labor and materials on the project.”

Short and Forrest again met with McCord in Houston on March 4, 2008. At this meeting, Short presented an estimated completion cost of over $9,000,000. On March 17, Short wrote to McCord attributing the extended duration of the project to initial delays, owner-furnished drawings, and change orders. Short offered to reduce the completion costs by $100,000.

Shortly thereafter, BLyn sued appellants. BLyn alleged claims for breach of contract, common-law fraud, fraud by nondisclosure and fraudulent inducement, negligent misrepresentation, and accounting. On July 18, 2008, appellants filed a special appearance and an original answer. Appellants did not request the special appearance be set for a hearing. On February 9, 2009, all parties filed a joint motion for continuance. On June 5, 2009, all parties filed a second joint motion for continuance. On July 13, 2009, appellants noticed a special appearance hearing for the following month. By the hearing date, BLyn had filed a third amended petition. BLyn alleged appellants, while in Houston, had made false representations and had concealed or failed to disclose facts regarding the cost of the work and use of the workers.

In response to appellants’ special appearance, BLyn argued (1) appellants had waived the special appearance by waiting over a year to set it for a hearing and requesting affirmative relief from the court in the interim and (2) the court had specific jurisdiction over appellants because appellants committed a tort in Texas. After hearing argument and admitting the parties’ documentary evidence, the court denied the special appearance by written order signed September 9, 2009. Although requested by Horizon, the trial court did not file findings of facts and conclusions of law. This appeal followed.

II. Standard of Review

In their sole issue on appeal, appellants argue the trial court erred in denying their special appearance. The existence of personal jurisdiction is a question of law. BMC Software Belg., N.V. v. Maryland, 83 S.W.3d 789, 794 (Tex.2002). 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. Absent a complete record on appeal, we will presume the omitted items supported the trial court’s judgment. See Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex.2002) (per curiam) (approving general rule that, absent a complete record on appeal, court of appeals must presume omitted items support trial court’s judgment).

III. WAIVER

At trial, BLyn asserted appellants waived their special appearance because they did not set the hearing on the special appearance for approximately a year, during which they filed two joint motions for continuance. Appellants contend that the trial court’s denial of their special appearance cannot be affirmed on such grounds. We agree.

A. Delay in Setting a Hearing does not Waive a Special Appearance.

BLyn has not cited any authority for the proposition that a nonresident defendant waives its special appearance by waiting approximately a year before setting a hearing on it, nor have we found any support for this assertion. See Peninsula Asset Mgmt. (Cayman) Ltd. v. Hankook Tire Co., Ltd., No. 02-04-00254-CV, 2006 WL 1030185, at *4 (Tex.App.-Fort Worth, Apr. 20, 2006, pet. denied) (mem. op.) (holding appellee did not waive special appearance by delaying hearing over eighteen months); cf. Michiana Easy Livin’, Country, Inc. v. Holten, 168 S.W.3d 777, 793 (Tex.2005) (observing, in context of deciding whether forum-selection clause was waived, special appearance was decided two years after filing but record reflected little activity other than special appearance). The rule requires only that jurisdictional challenges be heard and determined “before any other plea or pleading may be heard.” See Tex.R. Civ. P. 120a(2). Delay in setting the hearing did not waive the special appearance.

B. Joint Motions for Continuance do not Waive a Special Appearance.

BLyn contends the defendants waived their special appearance by filing two joint motions for continuance before setting the special appearance for a hearing. According to BLyn, a motion for continuance is a request for affirmative relief inconsistent with the defendants’ assertion the district court lacks jurisdiction. We disagree.

A party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court. Exito Elecs. Co., Ltd. v. Trejo, 142 S.W.3d 302, 304 (Tex.2004) (per curiam); Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex.1998). (per curiam). The rule governing special appearances, however, specifically provides for continuances. See Tex.R. Civ. P. 120a(3).

Citing Dawson-Austin and Exito Electronics, BLyn contends a defendant may “obtain some limited affirmative relief from the trial court concerning matters relating to the special appearance without waiving the special appearance,” but the defendant recognizes that a lawsuit is properly pending if it requests a continuance “of the entire case.” Dawson-Austin, however, stands for the opposite of this proposition. In that case, the Texas Supreme Court held a nonresident defendant did not waive her special appearance by filing a motion for continuance in which she “asked the court to defer action on all matters.” Dawson-Austin, 968 S.W.2d at 328.

We decline to hold that a joint motion for continuance of the entire case waives a special appearance.

IV. Personal Jurisdiction

A. The Long-Arm Statute Reaches as far as Federal Due Process Allows.

Texas courts may assert personal jurisdiction over a nonresident if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state constitutional due-process guarantees. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007). The long-arm statute provides in relevant part:

In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:
(1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;
(2) commits a tort in whole or in part in this state....

Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 2008).

The “doing business” language “allows the statute to reach as far as the federal constitutional requirements of due process will allow.’ ” Moki Mac, 221 S.W.3d at 575 (quoting Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991)). Therefore, when a jurisdictional assertion accords with federal due process standards, the Texas long-arm statute requirements are also satisfied. Id.

As set forth above, BLyn alleged appellants committed the torts of common-law fraud, fraud by nondisclosure and fraudulent inducement, and negligent misrepresentation in Houston. Thus, BLyn alleged appellants did business in the state by committing a tort in the state, so as to bring them under the long-arm statute. See Tex. Civ. Prac. & Rem.Code Ann. § 17.042; Tempest Broadcasting Corp. v. Imlay, 150 S.W.3d 861, 871 (Tex.App.Houston [14th Dist.] 2004, no pet.).

B. Due Process Requires Purposeful Availment.

State statutory and federal due-process requirements are satisfied if (a) the nonresident has minimum contacts with Texas, and (b) exercise of personal jurisdiction over the nonresident does not offend traditional notions of fair play and substantial justice. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). Minimum contacts suffice for personal jurisdiction when the nonresident purposefully avails itself of the privilege of conducting activities within the forum state, and thus invokes the benefits and protections of its laws. Moki Mac, 221 S.W.3d at 575.

The “purposeful availment” inquiry has three parts. Id. First, only the defendant’s contacts with the forum are relevant. Id. Second, the contacts on which jurisdiction depends must be purposeful, rather than random, fortuitous, or attenuated. Id. Third, “the ‘defendant must seek some benefit, advantage or profit by “availing” itself of the jurisdiction.’ ” Id. (quoting Michiana, 168 S.W.3d at 785).

The Texas contacts on which BLyn relies are the October 5, 2006 and March 4, 2008 meetings in Houston, which Short and Forrest attended, and telephone calls from Horizon to a number associated with James McCord. These “contacts” are equally relevant to Short, Forrest, and Horizon.

It is undisputed Short is the president and general manager of Horizon. Appellants nevertheless argue, “Short’s activities for Horizon are not based on a principal/agent relationship.” Appellants then assert, “Unlike the voluntary establishment of an agency relationship, corporations may only act through individuals.” Appellants provide no authority for this assertion and do not explain how it supports their argument that Short was not acting as an agent for Horizon.

It is also undisputed that Forrest is a project manager for Horizon and director of operations for Crimson. Although they have more than once represented that Crimson is an unincorporated division of Horizon, appellants argue Crimson’s activities may not be attributed to Horizon. We disagree. See W. Beef, Inc. v. Compton Inv. Co., 611 F.2d 587, 591 (5th Cir.1980). (“A division of a corporation is not a separate legal entity but is the corporation itself.”).

Despite appellants’ contentions to the contrary, we attribute Short’s and Forrest’s actions to Horizon. See Holloway v. Skinner, 898 S.W.2d 793, 795 (Tex.1995) (“As a general rule, the actions of a corporate agent on behalf of the corporation are deemed the corporation’s acts.”); Huynh v. Nguyen, 180 S.W.3d 608, 620 (Tex.App.Houston [14th Dist.] 2005, no pet.) (“The Texas contacts of agents or employees are attributable to their nonresident principals.”).

Appellants admit Short and Forrest attended the meetings in Texas and made telephone calls “in” Texas. Appellants, however, contend those two trips and telephone calls lack the significance BLyn attributes to them because they are isolated, incidental, and attenuated contacts.

“[T]he minimum-contacts analysis is focused on the quality and nature of the defendant’s contacts, rather than their number.” Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 339 (Tex.2009). “Even a single act can support jurisdiction so long as it is substantial.” Tempest Broadcasting, 150 S.W.3d at 875.

According to the special appearance evidence, the purpose of the October 5, 2006 meeting was “to discuss documentation and financing for the boat, draw schedule for the bank, valuations of the boat as the refit progresses, final plans for the interior and exterior, legal issues, and other topics that may arise during the meeting.” Thus, although the parties had executed the written contract before the meeting, the trial court could reasonably have found that critical aspects of the refurbishment plans remained to be, and were, determined at thé October 2006 meeting. The court could further have found the meeting constituted a significant part of an ongoing relationship among the parties. Additionally, given the purpose of the October 2006 meeting and the attendance of a representative of the bank, the court could have found the representations Short and Forrest made at that meeting were a determinative factor in BLyn’s obtaining final funding for the project.

From the preceding findings, the trial court then could have concluded the October 5, 2006 meeting alone was “substantial.” From such findings, the trial court could also have concluded it was foreseeable that any disputes deriving from that meeting might be heard by a Texas court. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (stating foreseeability critical to due process analysis is that defendant’s conduct and connection with forum state are such he should reasonably anticipate being haled into court there).

The court could have further concluded the two Houston meetings were purposeful, and not random or fortuitous. James McCord did not compel Short and Forrest to attend the October 2006 meeting in Houston. Rather, in' his email, McCord stated he wanted to make sure all parties were aware of the meeting and requested the email recipients to let him know whether they could attend. The fact Short and Forrest made the alleged misrepresentations while physically present in Houston is significant. See Stein v. Deason, 165 S.W.3d 406, 415 (Tex.App.-Dallas 2005, no pet.).

Appellants nevertheless argue, “The contract performance and its choice of law provisions are significant.” The contract itself is not part of the record. We therefore do not know the precise parameters of the choice-of-law provision or whether the contract contained an express understanding the parties would submit disputes to Alabama courts. Instead, we must assume the content of the contract would support the trial court’s judgment. See Bennett, 96 S.W.3d at 230.

Finally, given what we can infer from the record before this court, we conclude the trial court could reasonably have found appellants sought to profit from making representations about the cost of labor and materials to refurbish the yacht.

C. Liability Must “Arise Out Of’ or be “Related To” the Contacts.

Specific jurisdiction is established if the defendant’s alleged liability arises out of or is related to an activity conducted within the forum. Helicopteros, 466 U.S. at 414 n. 8, 104 S.Ct. at 1872 n. 8. The relevant test is whether a substantial connection exits between appellants’ contacts with Texas and the operative facts of the litigation. See Moki Mac, 221 S.W.3d at 576, 585.

BLyn alleged common-law fraud, fraud by nondisclosure and fraudulent inducement, and negligent-misrepresentation. The elements of fraud are (1) a material representation was made, (2) the representation was false, (8) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion, (4) the speaker made the representation with the intent that the other party should act upon it, (5) the party acted in reliance on the representation, and (6) the party thereby suffered injury. Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex.2009) (per curiam). The elements of fraud by nondisclosure are (1) the defendant failed to disclose facts to the plaintiff, (2) the defendant had a duty to disclose those facts, (8) the facts were material, (4) the defendant knew the plaintiff was ignorant of the facts and the plaintiff did not have an equal opportunity to discover the facts, (5) the defendant was deliberately silent when it had a duty to speak, (6) by failing to disclose the facts, the defendant intended to induce the plaintiff to take some action or refrain from acting, (7) the plaintiff relied on the defendant’s nondisclosure, and (8) the plaintiff was injured as a result of acting without that knowledge. 7979 Airport Garage, L.L.C. v. Dollar Rent A Car Sys., 245 S.W.3d 488, 507 n. 27 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). The elements of negligent misrepresentation are (1) the representation is made by a defendant in the course of his business, or in a transaction in which he has a pecuniary interest, (2) the defendant supplies “false information” for the guidance of others in their business, (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information, and (4) the plaintiff suffers pecuniary loss by justifiably relying on the representation. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 n. 24 (Tex.2002).

BLyn’s common-law-fraud, fraud-by-nondisclosure-and-fraudulent-inducement, and negligent-misrepresentation claims therefore rest on what Short and Forrest communicated or failed to communicate at the October 5, 2006 and March 4, 2008 meetings in Houston. These claims require that BLyn relied on what was or was not communicated and that BLyn suffered injury as a result. Thus, the operative facts for these claims are not events occurring at the shipyard in Alabama, but events occurring in Houston, Texas.

Accordingly, the present case is distinguishable from Moki Mac, in which the alleged misrepresentations were tangential to the plaintiffs’ core negligence claims. See Glencoe Capital Partners II, L.P. v. Gernsbacher, 269 S.W.3d 157, 167 (Tex.App.-Fort Worth 2008, no pet.) (distinguishing Moki Mac ). Here, the alleged misrepresentations are the core of BLyn’s tort claims and arguably of its breach-of-contract claims.

For the preceding reasons we conclude appellants have minimum contacts with Texas to satisfy due process requirements.

D. Exercise of Personal Jurisdiction Must Comport with Traditional Notions of Fair Play and Substantial Justice.

If the nonresident defendant has minimum contacts with the forum state, we must then determine whether exercise of personal jurisdiction over the nonresident offends traditional notions of fair play and substantial justice. See Burger King, 471 U.S. at 476, 105 S.Ct. at 2184. In making this determination, we consider (1) the burden on the defendant, (2) the interests of the forum state in adjudicating the dispute, (3) the plaintiff’s interest in obtaining convenient and effective relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interests of the several states in furthering fundamental substantive social policies. Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 285 (Tex.App.-Houston [14th Dist.] 2009, no pet.). When the nonresident defendant has purposefully established minimum contacts with the forum state, only in rare instances will the exercise of jurisdiction not comport with fair play and substantial justice. Angelou v. African Overseas Union, 33 S.W.3d 269, 281 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (citing Guardian Royal Exch., 815 S.W.2d at 231).

In a special appearance, a defendant bears the burden of presenting “a compelling case that the presence of some consideration would render jurisdiction unreasonable.’ ” Guardian Royal Exch., 815 S.W.2d at 231 (quoting Burger King, 471 U.S. at 477, 105 S.Ct. at 2185). Despite this burden, appellants’ argument in its brief is negligible. After listing the factors a court is to consider, appellants argue only:

In this case the interest of Texas is minimal, especially since the parties agreed Alabama law would apply. The two meetings in Texas are isolated and fortuitous, and could have been just as easily held in Alabama. Texas has no special interest in granting relief to a limited liability company on a cause of action arising under another state’s law for contractual conduct in another state.

As discussed above, we have concluded (1) the two meetings in Texas were not isolated and fortuitous and (2) the choice-of-law provision is not determinative of jurisdiction. Finally, the state of Texas has an obvious interest in providing a forum for resolving disputes involving its citizens, particularly disputes in which the defendant allegedly committed a tort in whole or in part in Texas. D.H. Blair Inv. Banking Corp. v. Reardon, 97 S.W.3d 269, 278 (Tex.App.-Houston [14th Dist.] 2002, pet. dism’d w.o.j.).

V. Conclusion

Having concluded the Texas court has personal jurisdiction over appellants, we affirm the order of the trial court denying appellants’ special appearance.

      . The contract is not part of the appellate record. In response to an order from this court, the district clerk for Galveston County certified that the contract, which purportedly was attached as Exhibit A to Defendant’s Special Appearance Challenging Personal Jurisdiction and Original Answer, had not been actually attached to that pleading. Counsel for Horizon at oral argument admitted that the contract was never filed.

      . There is nothing in the record to indicate Horizon filed a "Notice of Past Due Findings of Fact and Conclusions of Law.” See Tex.R. Civ. P. 297. On appeal Horizon does not challenge the trial court’s failure to file findings of fact and conclusions of law.

      . The rule provides in pertinent part:
      Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
      Tex.R. Civ. P. 120a(3).

        . According to the third amended petition, the relationship began at least as early as April 2006, while the yacht was still in Texas, when Short and Forrest allegedly represented to BLyn that Horizon could refurbish and outfit the yacht for an estimated but set price. There is also evidence of multiple telephone calls in 2006 and 2007 from Horizon to a number associated with James McCord. This case therefore does not involve a one onetime, unsolicited, fortuitous transaction between a nonresident seller and a Texas resident such as occurred in Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d at 781.

      . A state choice-of-law provision alone does not mean the parties voluntarily agreed to submit to the jurisdiction of that state. See Alenia Spazio S.p.A. v. Reid, 130 S.W.3d 201, 219 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) ("By agreeing to a Texas choice-of-law provision, a party does not avail itself of any protection from Texas courts or voluntarily submit to personal jurisdiction in Texas courts, absent an express understanding to that effect.”).

      . Appellants contend this case is similar to Marathon Oil Co. v. A.G. Ruhrgas, in which the appellate court held the presence of a German defendant at three meetings in Houston, together with correspondence and phone calls to Texas, were insufficient to establish minimum contacts with Texas. 182 F.3d 291, 295 (5th Cir.1999). The court so held, however, because the record was "devoid of evidence that Ruhrgas made false statements at the meetings or that the alleged tortious conduct was aimed at activities in Texas." Id. The court further observed, "Ruhrgas could not reasonably have expected to be brought into Texas courts because of its presence at the meetings inasmuch as the meetings and related communications dealt with the Heim-dal Agreement, a contract governed by Norwegian law and providing specifically for Swedish arbitration.” Id. As discussed above, the present case involves allegations appellants made false statements in the Texas meetings; and, although the parties agree the contract which was the subject of the Houston meetings contained an Alabama choice-of-law provision, there is no indication the contract also included a forum-selection clause. Marathon Oil is therefore distinguishable.

      . In the trial court, appellants alleged (1) many relevant books and records are located in Alabama; (2) key witnesses, including those not parties to the case, are located outside Texas and many in Alabama; (3) all physical work by these defendants was done in Alabama; (4) the yacht is currently located in Alabama; and (5) a proceeding in rem against the yacht is pending in federal district court in Alabama. In this court, appellants have not further pursed these allegations as support for an argument that the exercise of jurisdiction in Texas would offend traditional notions of fair play and substantial justice.


source: Caselaw Access Project

author: KENT C. SULLIVAN, Justice.

license: Public Domain

text:
    Monica Darlene RAWLINS, Appellant, v. Robert E. RAWLINS, Jr., Appellee.
    Nos. 14-09-00429-CV, 14-09-00602-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 7, 2010.

      Shirley A. Mitchell, Houston, for appellant.
    Robert E. Rawlins Jr., Pearland, pro se.
    John B. Worley, Rande Herrell, Michael D. Becker, Austin, for appellee.
    Jennifer Lynn Zucker, Texas City, for real party in interest.
    Panel consists of Justices BROWN, SULLIVAN, and CHRISTOPHER.
   OPINION

KENT C. SULLIVAN, Justice.

This consolidated appellate proceeding, consisting of an appeal and a petition for writ of mandamus, arises out of the trial court’s granting of a motion for judgment nunc pro tunc in which the trial court changed dates in the Agreed Final Decree of Divorce. We modify the trial court’s “Order on Motion for Judgment Nunc Pro Tunc” by deleting certain portions of the order and, as modified, we affirm. We deny the petition for writ of mandamus as moot.

I. Factual and Procedural Background

On January 9, 2007, the trial court signed an Agreed Final Decree of Divorce, dissolving the marriage of appellant/relator Monica Darlene Rawlins (hereinafter “Mother”) and appellee Robert Rawlins, Jr. (hereinafter “Father”). The Agreed Final Decree of Divorce provided for Father to pay child support for the couple’s child.

Over two years later, on March 12, 2009, Father filed a motion for judgment nunc pro tunc, alleging that the Agreed Final Decree of Divorce contained a clerical error in the date child support was to begin. Specifically, Father alleged that the date of January 5, 2006 stated in the Agreed Final Decree of Divorce should have been January 5, 2007. Mother responded that the error was not a clerical error but a judicial error, and the trial court could not correct by judgment nunc pro tunc a judicial error after it lost plenary power over the judgment.

On April 9, 2009, a hearing was held on the motion for judgment nunc pro tunc. At the hearing, Father confirmed that he and his attorney came to court on January 9, 2007 relative to the Agreed Final Decree of Divorce. Father testified that Mother filed for divorce in September 2006, and the parties agreed to temporary orders for child support to begin in October 2006.

Father stated that he was to pay Mother directly until payments were deducted from his paycheck. It was Father’s understanding that child support was to be deducted from his first paycheck of January 2007. Therefore, according to Father, the statement in the Agreed Final Decree of Divorce that child support was to begin on January 5, 2006 was incorrect and should have read January 5, 2007. Father testified that Mother knew there was a mistake in the Agreed Final Decree of Divorce regarding child support and indicated as much to him. Mother testified that she filed for divorce in September 2006, she was not in court on the day the Agreed Final Decree of Divorce was proved up, and she agreed to the terms of the Agreed Final Decree of Divorce.

The trial court took judicial notice of the file and noted at the hearing that (1) the petition for divorce was filed on September 25, 2006 and, according to the petition, the parties did not cease to live together until September 8, 2006; and (2) there were temporary orders entered on October 10, 2006 that indicated child support was to begin October 21, 2006. Based on this information, the trial court concluded the dates on pages one and seventeen of the Agreed Final Decree of Divorce were clerical errors. That day, the trial court signed an order granting the motion for judgment nunc pro tunc, finding the following two clerical errors in the Agreed Final Decree of Divorce: (1) the date on the first line of the judgment which read, “On January 9, 2006, the Court heard this case” should have read “On January 9, 2007, the Court heard this case” and (2) the date on which child support was to begin should have read “January 5, 2007” and not “January 5, 2006.”

On April 28, 2009, Mother filed a request for findings of fact and conclusions of law. On May 28, 2009, the trial court issued findings of fact and conclusions of law. The trial court concluded that the errors in the Agreed Final Decree of Divorce were clerical errors. Mother filed an appeal on April 9, 2009 and a petition for writ of mandamus on July 7, 2009. Father did not file an appellee’s brief.

II. Analysis

In what we construe as one issue, Mother contends the trial court erred by granting Father’s motion for judgment nunc pro tunc to change the date on which child support was to begin because the evidence is insufficient to support the trial court’s conclusion that the Agreed Final Decree of Divorce contained clerical error. Mother argues the error is a judicial error, rather than a clerical error, and could not be changed after the trial court’s plenary power had expired. Mother made the same arguments in her petition for writ of mandamus.

The trial court has plenary power to grant a new trial or to vacate, modify, correct, or reform its judgment within 30 days after the judgment is signed. Tex. R. Civ. P. 329b(d). Once the trial court’s plenary power expires, it cannot set its judgment aside except by a bill of review for sufficient cause. Tex. R. Civ. P. 329b(f). However, the trial court may at any time correct a clerical error in the judgment by entering a judgment nunc pro tunc. Tex. R. Civ. P. 316, 329b(f); Esco-bar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986).

A clerical error is a discrepancy between the entry of a judgment in the record and the judgment that was actually rendered by the court, and does not arise from judicial reasoning or determination. See Escobar, 711 S.W.2d at 231-32; Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986) (per curiam). A judicial error, on the other hand, occurs in the rendering, as opposed to the entering, of a judgment. Escobar, 711 S.W.2d at 231 (emphasis in original). “Judges render judgment; clerks enter them on the minutes.” Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex.1978). A judgment is rendered when the decision is officially announced either orally in open court or by memorandum filed with the clerk. Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex.1970) (orig. proceeding). Errors in judgments are not ipso facto clerical errors merely because they are the result of an inadvertent error. See Finlay v. Jones, 435 S.W.2d 136, 138 (Tex.1968). The trial court “can only correct the entry of a final written judgment that incorrectly states the judgment actually rendered.” Escobar, 711 S.W.2d at 231-32.

When deciding whether an error is clerical or judicial, this court must look to the judgment actually rendered and not to the judgment that should or might have been rendered. Id. at 231. Even if the trial court renders judgment incorrectly, the trial court has no nunc pro tunc power to correct or modify the entered judgment which precisely reflects the incorrect rendition after its plenary jurisdiction expires. Id. at 231-32; LaGoye v. Victoria Wood Condo. Ass’n, 112 S.W.3d 777, 783 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Whether an error is judicial or clerical is a question of law. Escobar, 711 S.W.2d at 232. “The judicial or clerical question becomes a question of law only after the trial court factually determines whether it previously rendered judgment and the judgment’s contents.” Id. A judgment rendered to correct a judicial error after plenary power has expired is void. Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973) (orig. proceeding).

A judgment nunc pro tunc should be granted if the evidence is clear and convincing that a clerical error was made. In re Broussard, 112 S.W.3d 827, 833 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding). Evidence may be in the form of oral testimony of witnesses, written documents, the court’s docket, and the judge’s personal recollection. Pruet v. Coastal States Trading, Inc., 715 S.W.2d 702, 705 (Tex.App.-Houston [1st Dist.] 1986, no writ). If the same trial judge who renders the 6 judgment grants the nunc pro tunc motion, a presumption arises that the judge’s personal recollection supports the finding of clerical error. Id.

Here, the trial court signed the Agreed Final Decree of Divorce on January 9, 2007, which included the following statements: (1) “On January 9, 2006, the Court heard this case,” and (2) “IT IS ORDERED that [Father] is obligated to pay and shall pay to [Mother] child support of $802.00 per month, with the first payment being due and payable on January 5, 2006 ....” The trial court had plenary power for 30 days after the judgment was signed. Tex.R. Civ. P. 329b(d). On March 12, 2009, over two years later, Father filed his motion for judgment nunc pro tunc. On April 9, 2009, the trial court signed the order on the motion for judgment nunc pro tunc, granting the motion and ordering that both dates be changed from “2006” to “2007.”

Neither party presented evidence at the hearing on the motion for judgment nunc pro tunc that the trial court rendered a different judgment in writing or orally pri- or to signing the Agreed Final Decree of Divorce. See America’s Favorite Chicken Co. v. Galvan, 897 S.W.2d 874, 878 (Tex.App.-San Antonio 1995, writ denied). There is no record from the day on which the trial court heard the Agreed Final Decree of Divorce because the parties waived the presence of a court reporter.

On May 27, 2010, we abated this case and ordered the trial court to clarify both when it rendered judgment and the contents of that judgment. The trial court responded that it orally rendered judgment after the written Agreed Final Decree of Divorce was prepared. The trial court did not state that the oral rendition differed from the written Agreed Final Decree of Divorce. See In re Cherry, 258 S.W.3d 328, 333 (Tex.App.-Austin 2008, orig. proceeding) (finding judicial, not clerical, error when trial court ordered period of supervision to start on October 18, 2004, although court may have meant for period to start on October 18, 2005). The trial court’s docket sheet, which contains the trial judge’s initials and signature, states: “Respondent, Robert Rawlins, Jr. and attorney present. Testimony by Respondent presenting Agreed Final Decree of Divorce as evidence by signature of Petitioner and her attorney. Enter Agreed Final Decree of Divorce.” See Escobar, 711 S.W.2d at 232 (docket entry some evidence of rendered judgment and its contents). Thus, the only evidence in the record regarding the contents of the judgment the trial court actually rendered is the signed Agreed Final Decree of Divorce. See Hernandez v. Lopez, 288 S.W.3d 180, 188 (Tex.App.-Houston [1st Dist.] 2009, no pet.) (op. on reh’g).

A proper nunc pro tunc is one in which the judgment as entered actually differs from the judgment as rendered; in that scenario, “a nunc pro tunc judgment will only serve to ensure that the judgment as rendered is actually entered of record.” Galvan, 897 S.W.2d at 879 (citing Escobar, 711 S.W.2d at 231). This is true even if, as Father asserted, the child-support start date in the Agreed Final Decree of Divorce clearly is not the date contemplated by the parties. See Hernandez, 288 S.W.3d at 187. This is also true even if the record indicates the mistake most likely arose from a drafting error that the parties overlooked. See In re Daredia, 317 S.W.3d 247, 249 (Tex.2010) (orig. proceeding) (per curiam); LaGoye, 112 S.W.3d at 784 (drafting errors became part of rendered judgment and were properly characterized as judicial errors). Because nothing in the record shows that there is a discrepancy between the judgment as rendered and the judgment as entered, we are compelled by current law to hold that the error in the child-support start date was a judicial error. Therefore, Mother’s issue is sustained.

This outcome, while compelled by current Texas law, is admittedly a repugnant result. Because of an apparent typographical or drafting error, Mother will receive a windfall of undeserved child-support payments encompassing a period of time when the family was still intact and living together. The fact that Mother is a Texas attorney, knows that the judgment contained a mistake, and is exploiting that error to her own financial advantage, makes the result even more intolerable. We would hope that an attorney, who is charged with safeguarding the integrity of the legal process, would not insist upon erroneous back child-support payments— even to the point of appealing from the trial court’s rather transparent efforts to correct the mistake. Regrettably, some lawyers subscribe to a different code of personal and professional ethics. As former United States Supreme Court Justice Potter Stewart observed, “[Tjhere is a big difference between what you have a right to do and what is right to do.”

Nevertheless, this Court is required to follow the law. Therefore, we hold that the trial court erred in entering the portion of the “Order on Motion for Judgment Nunc Pro Tunc” changing the date from January 5, 2006 to January 5, 2007 on page 17 of the Agreed Final Decree of Divorce. We modify the trial court’s “Order on Motion for Judgment Nunc Pro Tunc” to delete (1) the trial court’s finding that there was a clerical error on page 17 of the Agreed Final Decree of Divorce in the paragraph titled “Child Support” on the third line down which begins “payable on January 5, 2006”; (2) the trial court’s finding that on page 17 of the Agreed Final Decree of Divorce on the third line down on the paragraph titled “Child Support” the date should read “January 5, 2007” and not “January 5, 2006”; and (8) the trial court’s order that the date on page 17 on the third line down from the paragraph titled “Child Support” be changed for all purposes to “January 5, 2007.”

On appeál, Mother does not challenge the change made by the trial court on page one of the Agreed Final Decree of Divorce to reflect the date on which Father and his attorney appeared in court to prove up the Agreed Final Decree of Divorce. Therefore, we affirm the.unchallenged portion of the trial court’s “Order on Motion for Judgment Nunc Pro Tunc” that finds there was a clerical error in the Agreed Final Decree of Divorce on page one and orders that the date on the first line of page one be changed to January 9, 2007.

III. Conclusion

Accordingly, we affirm the “Order on Motion for Judgment Nunc Pro Tunc” as modified. We deny the petition for writ of mandamus as moot.

      . The findings of fact and conclusions of law state the hearing was held on March 31, 2009; however, the transcript lists the date as April 9, 2009.

      . Because there is no appellee's brief, we must treat the facts as undisputed. See Tex. R.App. P. 38.1(g) ("The brief must state concisely and without argument the facts pertinent to the issues or points presented. In a civil case, the court will accept as true the facts stated unless another party contradicts them. The statement must be supported by record references.”).

      . The precise meaning of this statement is unclear. Texas Family Code section 101.026 states that to "render” in a suit affecting the parent-child relationship means "the pronouncement by a judge of the court’s ruling on a matter. The pronouncement may be made orally in the presence of the court reporter or in writing, including on the court’s docket sheet or by a separate written instrument.” Tex. Fam.Code Ann. § 101.026 (Vernon 2008) (emphasis added).

      . In her prayer for relief, Mother prays for "attorney’s fees, expenses and cost because this suit is frivolous and brought with the intent to harass ...” Mother has not cited any grounds or authority for this Court to grant this relief in this case. Therefore, we deny Mother's request. See Tex.R.App. P. 38.1(i).

      . See generally Tex. Lawyer’s Creed — A Mandate for Professionalism I, III (adopted by the Supreme Court of Texas and the Court of Criminal Appeals Nov. 7, 1989), reprinted in Texas Rules of Court 803, 804.05 (West 2010); Tex. Disciplinary R. Prof'l Conduct preamble ¶¶ 1, 4, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9).

      . See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 222 (Tex.Crim.App.2003) (orig. proceeding) (Keasler, J., dissenting).

      . The date that a judgment was actually rendered or signed or when a hearing was held may be corrected by a nunc pro tunc judgment. Nolan v. Bettis, 562 S.W.2d 520, 523 (Tex.Civ.App.-Austin 1978, no writ); City of San Antonio v. Terrill, 501 S.W.2d 394, 397 (Tex.Civ.App.-San Antonio 1973, writ ref'd n.r.e.); Capitol Life Ins. Co. v. Rutherford, 468 S.W.2d 535, 536 (Tex.Civ.App.-Houston [1st Dist.] 1971, no writ).


author: LESLIE B. YATES, Justice.

text:
    ABATEMENT INCORPORATED, Alan Manring, and Gary Laughlin, Appellants, v. Kyle WILLIAMS, Appellee.
    No. 14-09-00523-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 7, 2010.

      Dean Allen Hrbacek, Sugar Land, Elizabeth M. Braman, Houston, appellants.
    Syd Phillips, Houston, for appellee.

      Panel consists of Chief Justice HEDGES and Justices YATES and BOYCE.
   OPINION

LESLIE B. YATES, Justice.

Appellants Abatement Incorporated and Alan Manring appeal from the trial court’s judgment, entered after a jury trial, holding them jointly and severally liable for breach of an employment agreement with appellee Kyle Williams. In nine issues, Abatement and Manring argue that judgment was improper because the contract was unenforceable under the statute of frauds, the terms were too indefinite to give rise to a contract, the damages award was improper and should be reduced, and there was no basis for holding Manring individually liable. We hold that the trial court erred in holding Manring liable, and we reverse that portion of the trial court’s judgment and render judgment that Williams take nothing against Manring. We affirm the remainder of the trial court’s judgment.

BACKGROUND

Because Abatement and Manring did not challenge the legal or factual sufficiency of the evidence supporting the jury’s findings, we give only a brief overview of the factual background. In 2005, Abatement was generally in the business of asbestos abatement. Manring was Abatement’s president, and Gary Laughlin was its vice president. Williams was involved in the construction business. In August 2005, Hurricane Rita caused extensive damage in portions of Texas. Abatement had an opportunity to repair two apartment complexes that had been seriously damaged, and it hired Williams and his crew to assist in the work. The terms of Williams’s employment, which were not in writing, form the underlying basis of this lawsuit. The parties agree that Abatement promised to and did pay Williams $1,000 a week for his work. Williams claims that Abatement also promised to pay him a percentage of the profits of any job he worked on. Abatement denies making this promise. Abatement fired Williams in October 2006, allegedly for performance problems, without paying him any profits.

Williams sued Abatement, Manring, and Laughlin for breach of contract and fraud. The case went to the jury on breach of contract, and the jury found in favor of Williams. Abatement and Manring now appeal.

ANALYSIS

A. Statute of Frauds

In its first issue, Abatement argues that the trial court erred in submitting any jury questions regarding the agreement because enforcement of the agreement is barred by the statute of frauds. The statute of frauds provides that an agreement “which is not to be performed within one year from the date of making the agreement” is not enforceable unless it is in writing. See Tex. Bus. & Com.Code Ann. § 26.01(a), (b)(6) (West 2009). For the one-year provision to apply, performance within one year must be impossible. See Chacho v. Mathew, No. 14-07-00613-CV, 2008 WL 2390486, at *3-4 (Tex.App.-Houston [14th Dist.] June 12, 2008, pet. denied) (mem. op.); Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 501 (Tex.App.-Houston [14th Dist.] 2004, pet. denied). Whether an agreement falls within the statute of frauds is a question of law. Chacho, 2008 WL 2390486, at *8.

Abatement argues that the evidence establishes as a matter of law that the agreement was for lifetime employment and thus was incapable of being performed within a year. We disagree. Abatement points to a transcript of a secret tape recording Williams made of a conversation between himself and Manring before Williams was fired. In the transcript, Williams states that “part of [what we agreed on] was that I had security with the company and that I didn’t have to worry about being fired.” However, Williams testified at trial that job security was talked about, not agreed upon, and that the term of his employment was never defined. Abatement agreed that Williams’s term of employment was undefined. Manring even stated in the recorded conversation immediately after Williams made the comments about job security, “Hey, no — nobody can guarantee nobody’s going to get fired.” Thus, no one advocated at trial that Williams had been promised lifetime employment.

Abatement further points to testimony from Williams’s wife stating her opinion that the agreement was “long term,” that it “never [had] an ending time” but would be more than a year, and was like a marriage in that you did not go into it with the expectation of it ending in six months. But she admitted this was just what she was “hoping” for, and hopes and expectations are not enough to show performance within a year is impossible. See Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 503-04 (Tex.1998) (stating that an employee’s hope to work as long as she wanted did not show an agreement for many years of job security); Chacho, 2008 WL 2390486, at *3 (noting that a contract does not fall within the statute of frauds one-year provision based on “the lack of any expectation that performance will be completed within a year”).

This evidence shows nothing more than an at will employment situation with an indefinite term of employment, and such an agreement does not fall within the one-year provision of the statute of frauds. See Montgomery County, 965 S.W.2d at 503 (holding that “[a]n employment contract for an indefinite term is considered performable within one year” and that vague, indefinite, and general comments cannot create a definite term of employment). Thus, the evidence did not establish as a matter of law, or even create a fact issue, that that the agreement was incapable of being performed within one year. Rather, the statute of frauds does not apply as a matter of law. Therefore, the trial court did not err .in submitting jury questions regarding the agreement. We overrule Abatement’s first issue.

B. Certainty of Terms

In its second issue, Abatement argues that the trial court erred in submitting any issues to the jury regarding the agreement because the terms of the agreement are too uncertain to be enforced. To be legally enforceable, a contract must be sufficiently definite in its material terms so that a court can understand what the promisor undertook. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992); Playoff Corp. v. Blackwell, 300 S.W.3d 451, 455 (Tex.App.-Fort Worth 2009, pet. denied). A contract is sufficiently definite if a court is able to determine the material legal obligations of the parties. See T.O. Stanley, 847 S.W.2d at 221; Inimitable Group, L.P. v. Westwood Group Dev. II, Ltd., 264 S.W.3d 892, 899 (Tex.App.-Fort Worth 2008, no pet.). Each contract must be considered individually to determine which terms are material. T.O. Stanley, 847 S.W.2d at 221; Ini mitable Group, 264 S.W.3d at 899. Whether an agreement fails for indefiniteness is a question of law. Playoff Corp., 300 S.W.3d at 455; Inimitable Group, 264 S.W.3d at 899.

Abatement asserts that the contract is too indefinite in several ways. Abatement points to testimony from Williams showing that he was unclear initially whether he was contracting with Abatement or with Next Level Construction, which was an assumed name for Abatement at that time. Assuming without deciding that the distinction between contracting with a company or its assumed name is somehow material, the issue of who the parties to the contract were was resolved by the jury’s finding that Abatement and Williams agreed that Williams would be paid a percentage of profits. Abatement does not challenge this jury finding on appeal, and unchallenged jury findings are binding. See Solares v. Solares, 232 S.W.3d 873, 880 (Tex.App.-Dallas 2007, no pet.); Bunton v. Bentley, 176 S.W.3d 1, 16 (Tex.App.-Tyler 1999), remanded on other grounds, 94 S.W.3d 561 (Tex.2002). Abatement also complains that the contract does not specify its duration or how it would be terminated, but that is the very definition of an at will agreement and does not render an agreement unenforceable. See Montgomery County, 965 S.W.2d at 502 (stating that at will employment agreements can be terminated for good, bad, or no cause); Inimitable Group, 264 S.W.3d at 899 (finding lack of duration term did not render contract unenforceable).

Abatement next insists that the failure to define how profits are to be calculated is fatal to the agreement. However, there is no evidence that the particular method of calculating profits was important to the parties at the time of the agreement. Cf. Playoff Corp., 300 S.W.3d at 456-57 (finding that method of calculating “fair market value” was material because parties had contemplated a specific formula to be determined by future negotiation). Undefined contractual terms should be interpreted according to common usage, and so doing does not render the contract unenforceable. See Miga v. Jensen, 25 S.W.3d 370, 376 (Tex.App.-Fort Worth 2000) (“Contract terms that at first appear to be uncertain ‘are often readily made clear and plain by the aid of common usage and reasonable implications of fact.’ ” (quoting Bendalin v. Delgado, 406 S.W.2d 897, 900 (Tex.1966))), rev’d in part on other grounds, 96 S.W.3d 207 (Tex.2002); see also Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996) (“We give [contractual] terms their plain, ordinary, and generally accepted meaning unless the instrument shows that the parties used them in a technical or different sense.”). Abatement emphasizes other terms not defined in the contract, such as what actions by Williams trigger his right to payment or how disputes are to be resolved, but not every detail must be spelled out in the contract. The contract, based on undisputed evidence and unchallenged facts found by the jury, was for Williams to work for Abatement on an at will basis for a weekly salary and a percentage of the profits of each job. These contractual terms are specific enough for the parties to understand their material obligations. See T.O. Stanley, 847 S.W.2d at 221; Inimitable Group, 264 S.W.3d at 899. We overrule Abatement’s second issue.

C. Reduction of Damages Award

In its third issue, Abatement argues that the damages award should be modified to reflect payments Abatement made to Williams during his employment. In addition to his weekly salary, Abatement made two payments to Williams. First, Abatement gave Williams $2,000, and all parties agree that this was a loan Williams had requested to help pay his bills. Abatement later gave Williams an additional $7,055. The parties disagree about the reason for this payment. Abatement maintains it was a second loan while Williams insists the money was an advance on the profits he would be owed when a certain job was complete. Abatement did not file a counterclaim against Williams for repayment or request repayment in any form. Abatement never argued to the court or the jury that these payments were profits and in fact argued they were loans and had nothing to do with payment of profits. On appeal, Abatement argues that the damages award for unpaid profits should be reduced pursuant to these prior payments. Payment is an affirmative defense that must be pleaded and proven by an accounting. See Tex.R. Civ. P. 94-95; F-Star Socorro, L.P. v. City of El Paso, 281 S.W.3d 103, 107-08 (Tex.App.-El Paso 2008, no pet.). Abatement never pleaded payment, and thus the issue is waived. See F-Star, 281 S.W.3d at 107-08. We overrule Abatement’s third issue.

D. Individual Liability

In his fifth issue, Manring argues that the trial court erred in submitting a question to the jury that allowed the jury to find him individually liable under the Texas Labor Code for Abatement’s failure to pay Williams profits. Williams concedes that Manring is not directly liable for breach of contract and is not liable under a theory of piercing the corporate veil. The only way Williams seeks to hold Manring individually liable for unpaid profits is under chapter 61 of the Labor Code.

Chapter 61 of the Labor Code governs an employer’s obligation to pay wages to employees and provides criminal penalties for employers who violate the statute. See Tex. Lab.Code Ann. §§ 61.011-.020 (West 2006); see also Igal v. Brightstar Info. Tech. Group, 250 S.W.3d 78, 81-82 (Tex.2008). It defines “employer” as a person “who employs one or more employees” or “who acts directly or indirectly in the interests of an employer in relation to an employee.” Id. § 61.001(4). In the jury charge, after the jury answered questions regarding the agreement between Abatement and Williams and the amount of profits promised and made, the jury was asked “Did [Manring] act directly or indirectly in the interest of [Abatement] in relation to [Williams]?” The jury answered “yes,” and based solely on this answer, the trial court imposed joint and several liability on Abatement and Manring for the full amount of the judgment. In doing so, the trial court erred.

Chapter 61, part of the “Payday Law,” provides an alternative remedial scheme for workers who have been denied wages. See Igal, 250 S.W.3d at 87; Hull v. Davis, 211 S.W.3d 461, 464 (Tex.App.Houston [ 14th Dist.] 2006, no pet.). Rather than filing a breach of contract lawsuit in court, a worker can file a wage claim with the Texas Workforce Commission (TWC). See Tex. Lab.Code Ann. § 61.051 (West Supp.2009). This provides a streamlined process for obtaining relief to workers with smaller claims that might be too cumbersome to pursue in court. See Igal, 250 S.W.3d at 82, 87; Hull, 211 S.W.3d at 464. Thus, a worker has a choice either to file an administrative claim with the TWC or a common law breach of contract claim in district court. Igal, 250 S.W.3d at 82; Hull, 211 S.W.3d at 464. Williams filed a breach of contract lawsuit rather than a wage claim with the TWC. However, he sought liability against Manr-ing based on the definition of employer provided in chapter 61.

Chapter 61 specifically states that the definitions, including the definition of employer, apply “[i]n this chapter.” Tex. Lab.Code Ann. § 61.001. Nothing in chapter 61 indicates any intent to change the common law and import this definition into common law proceedings. Williams insists that a suit for failure to pay wages is both a common law breach of contract suit and a chapter 61 suit. This is incorrect. Common law claims and TWC claims are distinct remedial schemes, and a litigant must choose which one to pursue. See Igal, 250 S.W.3d at 87-88, 92 (describing the two remedial schemes and stating that “the claimant selects which horse to ride”). Williams argues that it is illogical that a person could be liable as an “employer” under the chapter 61 definition of employer in an administrative proceeding before the TWC but not be liable as an “employer” in a breach of contract suit based on the same conduct pending in district court. This argument fails because TWC claims and court-based actions differ in many other significant ways as well. For example, a TWC claim is subject to a 180-day limitations period while a breach of contract claim is subject to a four-year limitations period. Additionally, penalties can be recovered in a TWC claim but not in a breach of contract claim; in contrast, attorney’s fees can be recovered in connection with a breach of contract claim but not in a TWC claim. It was the legislature’s choice to provide a different remedial scheme. Furthermore, this is no different than other situations in the employment context where the definition of employer varies across many causes of action and provisions of the Labor Code. See, e.g., Alcala v. Tex. Webb County, 620 F.Supp.2d 795, 803 (S.D.Tex.2009).

Williams asserts that an employee can bring a chapter 61 claim in district court because violation of a statute “normally” gives rise to a private cause of action. Williams is mistaken. A cause of action may be implied only when a legislative intent to do so appears in the statute. Brown v. De La Cruz, 156 S.W.3d 560, 567 (Tex.2004). We apply a strict rule of construction to statutory enforcement schemes and imply causes of action only when the legislative intent is clear from the language of the statute. See Witkowski v. Brian, Fooshee & Yonge Props., 181 S.W.3d 824, 831 (Tex.App.-Austin 2005, no pet.); see also Brown, 156 S.W.3d at 563, 566. Chapter 61 provides a detailed administrative enforcement scheme and allows the possibility for enforcement by the attorney general, and nothing in language of chapter 61 shows any intent to also allow a private right of action. Moreover, another portion of the Payday Law, chapter 62, specifically provides for a private cause of action for failure to pay minimum wages. See Tex. Lab.Code Ann. §§ 62.201-.205 (West 2006). The legislature’s express inclusion of a private right of action in chapter 62 and omission of that language in chapter 61 strongly suggests that the legislature did not intend a private right of action under chapter 61. See Touche Ross & Co. v. Redington, 442 U.S. 560, 571-72, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (finding no private cause of action for statute “flanked by provisions of the [act] that explicitly grant private causes of action” and noting that “when Congress wished to provide a private damage remedy, it knew how to do so and did so expressly”); Brown, 156 S.W.3d at 568 (“[W]hen the Legislature includes a right or remedy in one part of a code and omits it in another, that may be precisely what the Legislature intended.”); Seidner v. Citibank (S.D.) N.A., 201 S.W.3d 332, 337 (Tex.App.-Houston [14th Dist.] 2006, pet. denied) (“Legislative express provision of certain specific remedies strongly suggests that it did not intend to impliedly authorize other remedies.”).

Williams insists that a comparison to federal law supports his theory. The Fair Labor Standards Act (FLSA) and chapter 61 have nearly identical definitions of employer. Compare 29 U.S.C. § 203(d) (2006), with Tex. Lab.Code Ann. § 61.001(4)(B). Though Williams cites eases in which individuals have been found liable for FLSA violations, these cases involve failure to pay overtime or minimum wages. See, e.g., Lambert v. Ackerley, 180 F.3d 997 (9th Cir.1999); Donovan v. Agnew, 712 F.2d 1509 (1st Cir.1983). The FLSA provides a private cause of action for failure to pay minimum wages and overtime pay; unlike chapter 61, it does not provide a private cause of action for other failures to pay wages, such as the one Williams alleges here. See 29 U.S.C. §§ 206, 207, 216(b) (2003 & Supp. II 2008); Villa v. Waters, Civil Action No. SA-09CV-0113 XR, 2009 WL 1650482, at *1-2 (W.D.Tex. June 11, 2009) (concluding employee did not state an FLSA claim because her allegations involved failure to pay wages rather than unpaid minimum wages or overtime pay). Thus, Williams misplaces his reliance on the FLSA in this context.

We conclude that the trial court erred in using the definition of employer found in chapter 61 as a basis for finding Manring individually liable for Abatement’s failure to pay profits to Williams. We sustain Manring’s fifth issue.

CONCLUSION

The trial court erred in holding Manring individually liable for Abatement’s failure to pay Williams profits. Thus, we reverse the portion of the judgment against Manr-ing and render judgment that Williams take nothing against Manring. We affirm the remainder of the trial court’s judgment.

      . Gary Laughlin filed a notice of appeal but never filed an appellate brief or took any steps to pursue his appeal. Therefore, we dismiss his appeal for want of prosecution. See Tex. R.App. P. 42.3(b).

      . Therefore, we need not address Manring’s first through fourth issues regarding the existence and enforceability of the contract.

      . The jury also answered a similar question in the affirmative regarding Laughlin, and the trial court imposed joint and several liability as to Laughlin as well. Because Laughlin’s appeal has been dismissed for want of prosecution, we do not address the propriety of joint and several liability as to Laughlin.

      . Compare Tex. Lab.Code Ann. § 61.051(c), with Tex. Civ. Prac. & Rem.Code Ann. § 16.004 (West 2002).

      . Compare Tex. Lab.Code Ann. § 61.053, with Tex. Civ. Prac. & Rem.Code Ann. § 38.001(8) (West 2008).

      . There is no allegation in this case that Abatement failed to pay minimum wages, and it is undisputed that Abatement paid Williams $1,000 a week.

      . We need not address Manring’s sixth issue regarding the amount of the damages award because we have determined that Manring is not liable for any of it.


author: BRIAN QUINN, Chief Justice.

text:
    Jose Angel REYES, Appellant, v. The STATE of Texas, Appellee.
    No. 07-10-0124-CR.
    Court of Appeals of Texas, Amarillo, Panel B.
    Oct. 13, 2010.

      James B. Johnston, Easterwood Boyd & Simmons LLP, Hereford, TX, for Appellant.
    Tifanee Baker, Assistant District Attorney, Plainview, TX, for The State of Texas.
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

Appellant Jose Angel Reyes (appellant) appeals the trial court’s judgment requiring him to pay attorney’s fees and a withholding order directing that those fees be deducted from his inmate trust account. We modify both documents and affirm them as modified.

Background

Appellant was placed on deferred adjudication per his guilty plea to the crime of aggravated assault with a deadly weapon. As a condition of probation, he was ordered to pay attorney’s fees of $750. Subsequently, the State moved to adjudicate his guilt and revoke his probation because, among other things, he failed to pay the aforementioned fees. The motion was granted, and the trial court sentenced appellant to ten years in prison. It also ordered him to pay an attorney’s fee of $1,050, restitution in the amount of $30,043.01, a $1,000 fíne and $285 in court costs. Another order, entitled “TDCJ Inmate Trust Fund Withdrawal Order,” was signed by the trial court directing the payment of $32,378.91 from appellant’s inmate trust account. Thereafter, appellant perfected a timely appeal.

Issue One — Attorney’s Fees

Specifically, appellant contends that the trial court erred by ordering him to pay $1,050 in attorney’s fees because the record contained insufficient evidence to show that he “had any financial resources” from which to pay them. We agree in part.

As disclosed by the record, appellant was determined to be indigent and, therefore, received appointed counsel for both the original plea and adjudication hearings. Furthermore, nothing of record illustrated that his economic status had changed between the time he was first found impoverished and ultimately adjudicated guilty and sentenced to prison. Thus, the statutory elements prerequisite to his being held obligated to pay $1,050 in fees have not been established. See Tex.Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2010) (specifying when a trial court may order one who received appointed counsel to pay attorney’s fees).

Nonetheless, the State contends that appellant implicitly agreed to pay $750 of the $1,050 fee when he pled guilty per the parties’ bargain, received probation, and became subject to the conditions of probation levied by the court. Therefore, the argument goes, he cannot be relieved of paying the $750 sum. We find the contention accurate.

This court previously held, in Mayer v. State, 274 S.W.3d 898 (Tex.App.Amarillo 2008), aff'd, 309 S.W.3d 552 (Tex.Crim.App.2010), that a trial court generally erred by ordering a defendant to pay a fee for a court-appointed attorney when the record contained no evidence illustrating that he had sufficient financial resources to pay it. Id. at 901-02. Yet, we were not dealing with fees arising from a plea bargain and levied as a condition of probation there. In the latter circumstance, the result may not be the same. This is so because an award of community supervision (or probation) is not a right, but a contractual privilege. Speth v. State, 6 S.W.3d 530, 534 (Tex.Crim.App.1999). Additionally, the conditions appended to the grant of community supervision are terms of the contract entered into between the trial court and the defendant. Id. More importantly, those to which no one objects are considered to be affirmatively accepted as part of the contract, which means, in turn, that the accused normally waives any complaint with regard to them. Id. In other words, one benefitting from the contractual privilege of probation must complain at trial about any conditions he deems objectionable, and unless he does that, belated objections are waived. Id.

Given Speth, we agree with the State that appellant should have complained to the trial court about the condition of his probation obligating him to pay $750 in attorney’s fees at the time the condition was imposed. Because he did not, he not only affirmatively accepted it but also waived any objection to it. The same is not true of the additional $300 assessed once appellant was adjudicated guilty; the imposition of that sum is controlled by the holding in Mayer. And, because the record does not reflect that appellant had the financial means to pay it, the trial court erred by imposing it. Accordingly, we modify the trial court’s judgment by reducing the amount of attorney’s fees payable by appellant from $1,050 to $750.

Issue Two — Withholding Order

Through his second issue, appellant contends that the trial court erred by entering its withholding order allowing for money to be withdrawn from his inmate trust account. This purportedly was error because he failed to receive notice of the order (i.e. was denied due process) and because insufficient evidence supported the award of $1,050 in attorney’s fees.

As for the amount of attorney’s fees levied, our disposition of the foregoing issue obligates us to also modify the withholding order. The sum subject to collection will be reduced from $1,050 to $750 for the reasons explained above.

As for the argument about notice and due process, we note that the assessment of the fees arose as part of the adjudication of appellant’s guilt in this criminal cause. He had been found to be an indigent entitled to appointed counsel. Moreover, the attorney’s fee alluded to in the withholding order (as modified) was the sum that appellant agreed to pay. These circumstances comport with those in Harrell v. State, 286 S.W.3d 315 (Tex.2009), an opinion we deem controlling. Because Harrell had been determined to be an indigent and the taxing of costs occurred as part of the two criminal cases against him, “he ha[d] already received all that due process demands” with regard to their taxation, according to the Supreme Court. Id. at 320. However, the risk that the amounts contained in the withholding order may differ from those actually taxed caused the Court to state that Harrell also was entitled to notice of the withholding order’s issuance and opportunity to test it. Id. at 321. That concern proved accurate here, given our conclusion that the amount of fees mentioned in the withholding order was excessive. Yet, our so concluding also evinces that appellant received the due process required by Harrell. Before altering the order, we were informed of the error. Moreover, that information was imparted to us by appellant; so, he obviously had notice of the decree and opportunity to question its accuracy.

As the Supreme Court recognized in Harrell, “[t]he constitutional sufficiency of procedures provided in any situation, of course, varies with the circumstances.” Id. at 319. In other words, it is not a “one size fits all” proposition. The circumstances involved can influence the particular procedures deemed sufficient, and though the sequence of events at bar do not fit within the typical mode of due process, they nonetheless evince the presence of due process. Appellant had his notice of the withholding order and opportunity to be heard about its accuracy. Since that was enough in Harrell, it is enough here.

We modify both the final judgment and withholding order by reducing the amount of attorney’s fees payable from $1,050 to $750 and affirm them as modified.

      . Counsel had previously filed a motion to withdraw which we now deny as moot.


author: ADELE HEDGES, Chief Justice.

text:
    Tri M. PHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 14-09-00484-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 14, 2010.

      Norman J. Silverman, Houston, for appellant.
    Donald W. Rogers, Jr., Houston, for ap-pellee.
    Panel consists of Chief Justice HEDGES and Justices YATES and SULLIVAN.
   OPINION

ADELE HEDGES, Chief Justice.

Appellant, Tri M. Pham, appeals from his felony conviction for delivery of a controlled substance, namely methamphetamine. In three related issues, appellant contends that the trial court violated his constitutional and statutory rights under the federal and state constitutions and article 38.28 of the Texas Code of Criminal Procedure by admitting evidence seized from a co-defendant’s vehicle. We affirm the trial court’s judgment.

I. BACKGROUND

On the afternoon of June 7, 2008, a number of officers from the Houston Police Department were conducting undercover surveillance in an area of southwest Houston where officers had previously made numerous narcotics arrests. Officer Larry Vaughn observed Nguyen Thai Ho park his vehicle in a parking lot in the area under surveillance. Appellant arrived in the same parking lot and parked his vehicle close to Ho’s. Ho then exited his vehicle (empty handed), entered appellant’s vehicle, and closed the car door. Officer Vaughn observed the two men talking to one another; the men’s attention seemed to be concentrated on the center console area inside the vehicle. Minutes later, Ho exited the vehicle, now carrying a “big plastic shopping bag.” Officer Vaughn believed that the bag’s contents were heavy because the plastic was quite “stretched.” The bag was white and opaque, and newspaper was protruding from the top, concealing the bag’s contents. Holding the shopping bag, Ho returned to his vehicle and drove away. Appellant also left the parking lot in his vehicle, driving in a separate direction.

Believing that a narcotics transaction had occurred between appellant and Ho, Officer Vaughn radioed surrounding undercover officers to assist in monitoring both vehicles. Officer Vaughn followed appellant’s vehicle in an unmarked unit; Sergeant Kerry Richards followed Ho’s vehicle. While following appellant, Officer Vaughn observed appellant commit three changing-lanes-without-signaling violations, all arrestable traffic offenses. Officer Vaughn instructed Officer Kenneth Cockrill, a uniformed officer in a nearby marked vehicle, to stop appellant for the traffic violations Officer Vaughn had observed. Officer Cockrill stopped and arrested appellant for the traffic violations and seized appellant’s vehicle. A subsequent search of appellant’s vehicle revealed $1,730 in cash.

While following Ho, Sergeant Richards observed Ho commit two traffic violations: failure to maintain a single lane of traffic and changing lanes without signaling. Sergeant Richards then instructed Officers Lombardo and Sanchez, uniformed officers in a nearby marked unit, to stop Ho for the traffic violations, also arrestable offenses. Officers Lombardo and Sanchez stopped Ho, and as Officer Lombardo approached the vehicle, he observed Ho throw the white shopping bag to the backseat of the vehicle. The officers ultimately detained Ho and seized and searched the shopping bag, which contained approximately 2,946 methamphetamine pills, more commonly known as Ecstasy. Ho was arrested and charged with possession of the methamphetamine discovered in the shopping bag. Appellant was subsequently charged with delivery of the methamphetamine.

Appellant pleaded not guilty to the delivery charge. Ho, however, pleaded guilty to the possession charge and testified against appellant at his trial. According to Ho, he had first experimented with Ecstasy at appellant’s encouragement just two months prior to the June 2008 arrests. Ho began abusing the narcotic and regularly purchased pills from appellant. Over a two-month period, Ho accrued a $450 debt and was unable to pay appellant. Appellant then offered to forgive the debt in return for a favor: Ho needed to deliver a bag to a third party. Appellant instructed Ho to meet him in the southwest Houston parking lot. When Ho met appellant in the parking lot, he entered appellant’s vehicle, and appellant gave Ho the white shopping bag with delivery instructions. Appellant told Ho to deliver the bag to a man named Johnny, described as an Asian male with long hair in a white tank top. Appellant instructed Ho to deliver the bag to Johnny at a particular food market in southwest Houston. Appellant also instructed Ho to call him once the delivery had been completed. Ho then returned to his vehicle with the bag and proceeded to his meeting with Johnny. But Ho was stopped by police for the aforementioned traffic violations on his way to deliver the bag. Fearful that the bag contained narcotics, Ho threw the bag to the back of his vehicle when he was stopped by officers. The officers later seized the bag and its contents and arrested Ho.

After Ho’s testimony, appellant sought to suppress the fruits of his arrest and evidence obtained from the search of Ho’s vehicle. With respect to appellant’s arrest, he contended that the arrest was unlawful under chapter 14 of the Code of Criminal Procedure; thus, the fruits of the arrest — $1,780 in cash — should have been suppressed. As to Ho’s traffic stop, appellant argued that the search of Ho’s vehicle was illegal and, therefore, the results of the search — the bag and its contents— should have been suppressed. In response, the State argued that appellant’s arrest was lawful and disputed appellant’s standing to challenge the search of the shopping bag. Specifically, the State claimed that appellant had abandoned the bag by giving it to Ho and instructing Ho to give the bag to a third party. According to the State, because appellant relinquished possession of the bag to Ho and never intended to repossess it, appellant abandoned any privacy interest in the bag. The trial court rejected the State’s standing argument, ruling as follows:

[T]he Court finds that the defendant ... had constructive possession of the white plastic ... shopping bag and the contents therein since he had made an actual delivery of same to ... Ho for an intended subsequent downstream delivery of the contraband. Accordingly, the Court concludes that [appellant] has standing to contest the stop of Mr. Ho’s vehicle and the resulting search and seizure of the white grocery, or shopping bag, containing the contraband.
However, the Court holds and finds that ... Ho was stopped and arrested for ... [a] traffic offense ... which ... was committed in the presence and view of [an officer],
[T]he Court holds that the traffic stop and arrest of Mr. Ho were lawful; and, likewise, the resulting search of the white grocery ... bag and its contents were lawful. Defendant’s Motion to Suppress is therefore denied.

After the trial court’s ruling, appellant took the stand in the presence of the jury. He testified that he had loaned $1,500 to Ho, and Ho planned to repay the personal loan to appellant on the day of their arrests. According to appellant, Ho asked appellant to meet him in the southwest Houston parking lot. When the men arrived, Ho entered appellant’s vehicle, retrieved a bag from under his shirt, and pulled money from the shopping bag. Appellant took the money, and Ho exited the vehicle. Appellant denied giving Ecstasy pills to Ho and denied possessory or ownership interests in the shopping bag. The jury ultimately found appellant guilty of delivery of a controlled substance, sentenced him to 10 years in prison, and assessed a $50,000 fine, both of which were fully probated.

On appeal, appellant argues in three related issues that the trial court erred by denying his motion to suppress the contents of the shopping bag. In response, the State maintains its challenge to appellant’s standing. The State also argues that as a matter of public policy appellant should be estopped from arguing he has standing because he subsequently testified at trial that he had no possessory or ownership interest in the shopping bag. Additionally, the State argues that the search of Ho’s vehicle was legal under the plain view and automobile exceptions to the warrant requirement.

II. STANDARD OF REVIEW

We generally review a trial court’s ruling on a motion to suppress for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002). We give almost total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005).

Furthermore, in a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and of the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). The trial court may accept or reject all or any part of a witness’s testimony. Id. When the trial court makes no express findings of fact, as in this case, we review the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support the ruling as long as those findings are supported by the record. Id.

In determining whether a trial court’s decision is supported by the record, we generally consider only the evidence before the trial court at the time of the ruling because the ruling was based on it rather than evidence introduced later. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.Crim.App.2007). But this general rule is inapplicable when the parties subsequently relitigate the suppression issue consensually. Id. Thus, if the suppression issue is relitigated either without objection or with subsequent participation in the inquiry by the defense, the defendant is deemed to have elected to re-open the evidence, and we may consider the relevant trial testimony in our review. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996); Garcia v. State, 112 S.W.3d 839, 847-48 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Here, the parties do not dispute that the suppression issue was not relitigated at trial after the ruling on the suppression issue. Therefore, we will consider only the evidence admitted prior to and at the time the trial court made its ruling.

III. STANDING TO ASSERT SEARCH AND SEIZURE PROTECTION

Appellant challenges the search of the shopping bag under the United States and Texas Constitutions and article 38.23 of the Code of Criminal Procedure. And the State challenges appellant’s authority to make constitutional and statutory claims under these provisions. The court below found that appellant had standing to assert the claims, but ultimately concluded that the search and seizure were lawful. Although the trial court found that appellant had standing but denied the motion on another basis, as the reviewing court, we may sustain the trial court’s ruling on the motion to suppress on the ground that the evidence failed to establish standing as a matter of law. See Wilson v. State, 692 S.W.2d 661, 671 (Tex.Crim.App.1984); Sutton v. State, 711 S.W.2d 136, 137-38 (Tex.App.-Houston [14th Dist.] 1986, no pet.). Because the State challenged appellant’s standing below and on appeal and because standing is an element of appellant’s Fourth Amendment claim, we first consider whether appellant had standing to challenge law enforcement’s search and seizure of the bag.

The state and federal constitutions protect individuals against official intrusion into places where and things in which individuals have a reasonable expectation of privacy. See U.S. Const, amend. IV; Tex. Const, art. I, § 9. Moreover, article 38.23 provides: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). To assert a challenge to a search and seizure under the United States and Texas Constitutions and article 38.23, a party must first establish standing. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996).

Standing in this context is an individual’s right to complain about an allegedly illegal government intrusion under the Fourth Amendment and article I, section 9. Id. Fourth amendment rights are personal rights which may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1979) (citing Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973)); see also Kothe v. State, 152 S.W.3d 54, 59 (Tex.Crim.App.2004). “A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Rakas, 439 U.S. at 134, 99 S.Ct. 421. “And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule’s protections” Id. (citations omitted). Standing is a question of law which we review de novo. Kothe, 152 S.W.3d at 59; Turner v. State, 132 S.W.3d 504, 507 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd).

Furthermore, a defendant bringing a motion to suppress bears the burden of establishing all of the elements of his Fourth Amendment and article I, section 9 claims. See State v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App.1998) (per curiam). Part of that proof includes the element that he had a reasonable expectation of privacy from law enforcement intrusion. See id.; see also Wilson, 692 S.W.2d at 663-64; Trinh v. State, 974 S.W.2d 872, 874 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (quoting Metoyer v. State, 860 S.W.2d 673, 677 (Tex.App.-Fort Worth 1993, pet. ref'd)); Kelley v. State, 807 S.W.2d 810, 815 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd). To determine whether appellant had a legitimate expectation of privacy, we must first determine whether appellant demonstrated an actual subjective expectation of privacy. See Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Villarreal, 935 S.W.2d at 138; see also Dominguez v. State, 125 S.W.3d 755, 762 (Tex.App.-Houston [1st Dist.] 2003. pet. refd). If he did, we must next determine if that subjective expectation is one that society is prepared to recognize as reasonable. Smith, 442 U.S. at 740, 99 S.Ct. 2577; Villarreal, 935 S.W.2d at 138.

Moreover, we consider the following factors in determining whether a given claim is reasonable: (1) whether the accused had a property or possessory interest in the thing seized or the place searched; (2) whether the accused was legitimately in the place invaded; (3) whether the accused had complete dominion or control and the right to exclude others; (4) whether, before the intrusion, the accused took normal precautions customarily taken by those seeking privacy; (5) whether the accused exhibited a subjective expectation of privacy that the item would remain free from governmental intrusion; and (6) whether the accused’s claim of privacy is consistent with historical notions of privacy. See United States v. Cardoza-Hinojosa, 140 F.3d 610, 615 (5th Cir.1998) (quoting United States v. Ibarra, 948 F.2d 903, 906 (5th Cir.1991)); Villarreal, 935 S.W.2d at 138. This list of factors is not exhaustive, and none is dis-positive of a particular assertion of privacy; rather, we examine the totality of the surrounding circumstances. Only after a defendant has established standing to complain may a court consider whether he suffered a substantive Fourth Amendment or article I, section 9 violation. Kothe, 152 S.W.3d at 59.

A. Reasonable Expectation of Privacy: Subjective Element

There is some evidence in the record that appellant had a subjective expectation of privacy in the shopping bag. His placing the contents in an opaque bag and stuffing newspaper in the top to conceal its contents evidences his subjective expectation of privacy in those materials. See United States v. Villarreal, 963 F.2d 770, 773 (5th Cir.1992) (“Individuals can manifest legitimate expectations of privacy by placing items in closed, opaque containers that conceal their contents from plain view.”). Appellant also gave the bag to Ho, a friend and confidant whom appellant believed would deliver the bag according to his specific instructions. Accordingly, appellant appears to have manifested his subjective expectation of privacy in the shopping bag in question. Still, the United States and Texas Constitutions do not protect merely subjective expectations of privacy but only those expectations that society is prepared to recognize as reasonable. Smith, 442 U.S. at 740, 99 S.Ct. 2577; Villarreal, 935 S.W.2d at 138.

B. Reasonable Expectation of Privacy: Objective Element

The evidence does not support a conclusion that appellant’s subjective expectation of privacy is one that society would recognize as reasonable. Appellant was not in the place searched, which was Ho’s vehicle. See Cardoza-Hinojosa, 140 F.3d at 615; see also Villarreal, 935 S.W.2d at 138. And although appellant had a possessory and ownership interest in the shopping bag at one time prior to the search of Ho’s vehicle, those interests in the bag and its contents were compromised when appellant gave the bag to Ho. By giving the bag to Ho, appellant assumed the risk that his confidant would reveal that information to the public, thus frustrating appellant’s expectation of privacy. Additionally, appellant no longer had dominion or control over the bag or its contents. He had relinquished the right to exclude others from the bag and its contents. Having assumed the risk that Ho would betray the secrecy concerning the bag’s contents, appellant relinquished his expectation of privacy. More importantly, the evidence unequivocally reflects that appellant had no intention of repossessing the bag: by giving the bag to Ho, who in turn would give it to a third party, appellant permanently disavowed possession and ownership of the bag. An individual cannot reasonably expect to maintain privacy in a shopping bag when he has surrendered all of the normal incidents of ownership, including possession and the right to exclude others, to another and has no intent to regain possession or ownership of the item. Cf. California v. Greenwood, 486 U.S. 35, 40, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (“[Respondents placed their refuse at the curb for the express purposes of conveying it to a third party, the trash collector, who might himself have sorted through respondents’ trash or permitted others, such as the police, to do so.”). Moreover, when a person displays contraband to another person for the purpose of initiating a sale of the contraband, he holds the contraband for public display, and a claim of an expectation of privacy can no longer be made. Cf. Vela v. State, 775 S.W.2d 11, 12 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd). Here, the evidence establishes that appellant was distributing a controlled substance to a third party via Ho.

Under these specific facts, we conclude that appellant’s subjective expectation of privacy is not one that society would recognize as reasonable. See Villarreal, 935 S.W.2d at 139. Appellant has failed to establish any state or federal constitution privacy interest and thus has no standing to object to the search and seizure of the evidence under the United States and Texas Constitutions. Furthermore, article 38.23(a) does not confer third-party standing to persons accused of crimes, such that they may complain about the receipt of evidence that was obtained by violation of the rights of others, no matter how remote an interest from themselves. See Miles v. State, 241 S.W.3d 28, 47 (Tex.Crim.App.2007). Accordingly, we overrule appellant’s first, second, and third issues and affirm the trial court’s judgment.

      . In Rakas v. Illinois, the United States Supreme Court stated that the issue is more properly considered one of substantive Fourth Amendment law rather than "standing”; still, courts continue to discuss this area of law, conceptually, as a standing issue. 439 U.S. 128, 133, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

      . Appellant contends that this case is similar to "carrier" cases, where courts have concluded that individuals "do not surrender their expectations of privacy in closed containers when they send them by mail or common carrier.” See Villarreal, 963 F.2d at 773-74. We are not persuaded by appellant’s argument. The relationship between a private carrier and its customer — a formal relationship based upon monetary consideration — is substantially different from the relationship between friends. A customer who retains services from a private carrier generally expects no one except the intended recipient to open the shipment. On the other hand, there is reason to assume that an acquaintance, delivering an item upon request, would open it, especially one similar to the bag in this case, before it arrives at its destination. Presumably, there is a greater risk that an acquaintance or colleague delivering an item, such as the one in this case, would look at the items or expose the item to the public than a commercial carrier whose services have been retained by a paying customer. Accordingly, we reject appellant’s argument.

      . We also reject the State’s argument that appellant abandoned the property by giving the bag to Ho. The line of abandonment cases cited by the State is distinguishable from the operative facts of this case: the accused in the cited cases generally disclaimed ownership before the search. There is no evidence in the instant case (that we may consider on review) reflecting that appellant disclaimed ownership in the bag prior to or during the search. Thus, the abandonment line of cases is not on point.

      . We note that even presuming that appellant had established standing to raise a Fourth Amendment, article 1, section 9, or article 38.23 claim, the record sufficiently supports the trial court’s finding that the stop and search were predicated on probable cause in light of the totality of the circumstances surrounding the warrantless search.

      .We also note that an argument similar to appellant’s has been rejected by the United States Supreme Court and the Fifth Circuit. See United States v. Padilla, 508 U.S. 77, 78, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993) (per curiam) (rejecting proposition that a co-defendant obtains "a legitimate expectation of privacy for Fourth Amendment purposes if he has either a supervisory role in the [drug] conspiracy or joint control over the ... property involved in the search or seizure”); United States v. DeLeon, 641 F.2d 330, 337 (5th Cir.1981) (concluding that a co-defendant "may not assert an expectation of privacy in the security of a bag in the possession of his agents” or co-defendants).