In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00173-CR
______________________________
VAN LEE TOLLETT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Harrison County, Texas
Trial Court No. 2005-1497
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Van Lee Tollett appeals from a conviction by a jury on the class C misdemeanor offense of speeding. Tollett's speed was clocked by radar at seventy-three miles per hour along a section of road with a posted speed limit of sixty miles per hour. Tollett argues on appeal the trial court erred in denying his motion to quash, the information was fundamentally defective, the evidence was factually insufficient, and the evidence was legally insufficient. We affirm the judgment of the trial court.
I. Motion to Quash and Defective Information
Tollett argues, in his first two points of error, that the trial court erred in denying his motion to quash and that the information was fundamentally defective. The State contends that Tollett failed to preserve error and that the information was not defective because it met the requirements of Section 543.010 of the Texas Transportation Code. (1)
The information alleges Tollett "did then and there, operate a vehicle at a speed in excess of the limits established by Subsection (b) of the Texas Transportation Code to-wit: 73 mph in a 60 mph zone." According to Tollett, the information fails to charge an offense because: 1) it fails to allege Tollett operated a motor vehicle, 2) the phrase "Subsection (b)" is meaningless, and 3) the phrase "73 mph in a 60 mph zone" is unclear as a matter of law. In addition, Tollett contends the information was required to allege he was "operating a motor vehicle at a speed that was greater than reasonable and prudent under existing conditions, having regard for actual and potential hazards." In support of this argument, Tollett cites Eaves v. State, 171 Tex. Crim. 670, 353 S.W.2d 231 (1961). Historically, "fundamental" errors in the indictment could be challenged at any point in the proceedings. See, e.g., Morris v. State, 13 Tex. Ct. App. 65, 71 (1882); see also Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995). In 1985, Texas voters approved an amendment to Section 12 of Article V of the Texas Constitution that the presentation of an indictment or information vests the trial court with jurisdiction over the case. See Tex. Const. art. V, § 12; see also Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990). A defendant waives any defect of form or substance in an information if no objection is made before the date trial commences. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Nam Hoai Le v. State, 963 S.W.2d 838, 843 (Tex. App.--Corpus Christi 1998, pet. ref'd) (exception for justice and municipal courts does not apply when there is a trial de novo in county court).
Tollett has failed to direct this Court to the place in the record where he objected to any defect in the indictment. While Tollett filed a motion to quash and a motion to dismiss in the county court at law, he has not directed us to the page or pages in the record containing a ruling on these motions. Tollett has failed to preserve error. (2) See Tex. R. App. P. 33.1(a).
II. Legal Sufficiency of the Evidence
Tollett testified that, just before he was stopped for speeding, he had been passing a slow- moving semitruck. Tollett estimated the slow-moving semitruck was traveling approximately forty-five miles per hour. Because he was approaching a point where the highway merged from a four-lane highway into a two-lane highway, Tollett testified he needed to speed in order to safely pass the slow-moving semitruck. Tollett believed it was safer to exceed the speed limit than to pass the slow-moving truck at the speed limit.
Tollett argues there is no evidence that he endangered another vehicle or that his speed was unsafe under existing circumstances. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).
Section 545.352(a) provides, "[a] speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful." See Tex. Transp. Code Ann. § 545.352 (Vernon Supp. 2006); see also Tex. Transp. Code Ann. §§ 545.353, 545.355, 545.356 (Vernon Supp. 2006). Because Trooper Jesse Mitchell testified Tollett exceeded the posted speed limit, a rational trier of fact could have found that Tollett's speed was not reasonable and prudent. The evidence is legally sufficient. We overrule Tollett's fourth point of error.
III. Factual Sufficiency of the Evidence
In his third point of error, Tollett argues his testimony was sufficient to overcome the presumption created by his exceeding the posted speed limit. In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. Johnson, 23 S.W.3d at 7; see Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).
The record does contain some evidence Tollett's speed was reasonable. Tollett testified that his semi was not loaded and that he would not have passed the slow-moving semitruck if his semitruck had been loaded. According to Tollett, the road was clear of other traffic and his action did not endanger anyone. Tollett testified it was safer, in his opinion, to exceed the speed limit than to pass the slow-moving semitruck at the speed limit.
The evidence, though, is factually sufficient. Evidence that a person was exceeding the posted speed limit is prima facie evidence that the speed was unreasonable. Trooper Mitchell testified that the posted speed limit was sixty miles per hour and that Tollett was traveling seventy-three miles per hour as clocked by radar. While no vehicle had to take evasive action or was endangered by Tollett's operation of his semitruck, Mitchell testified Tollett's speed could have posed a danger, particularly since a semitruck has greater weight and takes longer to stop than other vehicles. Further, Tollett could have avoided the possibility of violating the speed law had he not attempted to pass the other semitruck at that time. When considered in a neutral light, the evidence supporting the verdict is not so weak that the jury's verdict is clearly wrong and manifestly unjust. Further, the great weight and preponderance of the evidence does not indicate that Tollett's speed was reasonable and prudent. We overrule Tollett's third point of error.
For the reasons stated, we affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: January 24, 2007
Date Decided: February 6, 2007
Do Not Publish
1. Section 543.010 of the Texas Transportation Code requires a complaint on a charge of
speeding to specify:
(1) the maximum or minimum speed limit applicable in the district or at the location; and
(2) the speed at which the defendant is alleged to have driven.
Tex. Transp. Code Ann. § 543.010 (Vernon 1999).
2.
Priority="63" SemiHidden="false" UnhideWhenUsed="false" Name="Medium Shading 1 Accent 4"/>
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00050-CV
______________________________
IN RE:
SAMSON LONE STAR, LLC
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Cornelius, *JJ.
Memorandum Opinion by Justice Carter
__________________________________
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment
MEMORANDUM OPINION
Melba Faye Smith and Michael Edward Smith (Smith) brought suit against Samson Lone Star, LLC (Samson), alleging breach of contract. In the course of discovery, Samson objected to Request for Production No. 11, asserting that the information sought was a trade secret. Smith argued that the information was not a trade secret and that because Samson had inadvertently produced an analysis regarding proved developed reserves in the Hancock-Smith Unit, Samson had waived the trade secret privilege regarding all reserves within that unit. The trial court ordered Samson to produce all documents responsive to Request No. 11.
Here, Samson argues the trial court abused its discretion by: (1) finding that Samson waived its trade secret privilege when it disclosed the Reserve Analysis; (2) erroneously overruling Samsons assertion of trade secret privilege to Request No. 11; and (3) failing to order Smith to return the Reserve Analysis to Samson. Samson prays that we vacate the trial courts order and direct the trial court to enter an order upholding the trade secret privilege and returning the inadvertently produced document.
The order is overbroad and indefinite and therefore constitutes an abuse of discretion. We conditionally grant the petition for writ of mandamus.
I. Facts
Smith sued Samson alleging that Samson breached its duty to act as a reasonably prudent operator by failing to drill wells on their gas leases. During the course of discovery, a dispute arose regarding Smiths Request for Production No. 11, which sought the production of all documents that describe the nature and/or extent of the Proved Producing Oil and Gas Reserves that [Samson] or any other person has estimated exist on the Hancock-Smith Unit . . . includ[ing] any calculations, study, analysis and/or reports with respect to such reserves.
Samson argued that the documents sought by Request No. 11 were trade secrets and refused to produce them.[1] Samsons privilege log and production/privilege log assert that several specific documents are trade secrets and that several dozen categories of documents are also trade secrets.
However, in response to the discovery requests, Samson produced an analysis regarding Proved Developed Producing reserves in the Hancock-Smith Unit (Reserve Analysis).[2] Smith argued that by producing the Reserve Analysis, Samson had waived its trade secret privilege as to any information regarding other reserves, specifically any information regarding proven undeveloped reserves in the Hancock-Smith Unit.
In June 2010, Samson moved to snap-back the Reserve Analysis documents under Rule 193.3(d), alleging they were inadvertently produced trade secrets, and sought to have them returned via court-order. See Tex. R. Civ. P. 193.3(d). Samson argued it was not aware of the disclosure until April 27, 2010. In response, Smith produced correspondence indicating that Samson knew of the production in September 2009.
The trial court agreed with Smith, denied Samsons snap-back motion, overruled Samsons objections and assertions of trade secret privilege to Request No. 11, found that Samson waived the trade secret privilege by producing the Reserve Analysis, and ordered Samson to produce all documents responsive to the request for production. Samson sought mandamus relief.
II. Mandamus
Mandamus will issue to correct a discovery order if the order constitutes a clear abuse of discretion and there is no adequate remedy by appeal. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). When determining whether the trial court abused its discretion, we are mindful that the purpose of discovery is to seek the truth so that disputes may be decided by what the facts reveal, not by what facts are concealed. Colonial Pipeline, 968 S.W.2d at 941. The rules governing discovery do not require as a prerequisite to discovery that the information sought be admissible evidence; it is enough that the information appears reasonably calculated to lead to the discovery of admissible evidence. See Tex. R. Civ. P. 192.3(a). But this broad grant is limited by the legitimate interests of the opposing party to avoid overly broad requests, harassment, or disclosure of privileged information. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding).
Appellate courts will not intervene to control incidental trial court rulings when an adequate remedy by appeal exists. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding); Walker, 827 S.W.2d at 840. A party will not have an adequate remedy by appeal (1) when the appellate court would not be able to cure the trial courts discovery error, (2) when the partys ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial courts discovery error, or (3) when the trial court disallows discovery and the missing discovery cannot be made a part of the appellate record or the trial court, after proper request, refuses to make it part of the record. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding); Walker, 827 S.W.2d at 843. A trial court abuses its discretion and no adequate remedy by appeal exists when a trial court erroneously compels production of trade secrets without a showing that the information is necessary. In re Bass, 113 S.W.3d 735, 738, 745 (Tex. 2003) (orig. proceeding).
A. There is Evidence that Samson Actually Discovered the Production of the Reserve Analysis in September 2009
Samson filed the snap-back motion on June 2, 2010, and argued that it first learned of the production on April 27, 2010. Smith contends that its correspondence with Samson shows that Samson knew of the production in September 2009, and therefore the snap-back motion is untimely. In denying Samsons snap-back motion, the trial court found that Samson did not invoke Rule 193.3(d) within 10 days of actually learning that the [Reserve Analysis] documents were produced.
Under Rule 193.3(d), a party who inadvertently produced privileged information does not waive privilege as to that information if, within ten days after the producing party actually discovers that such production was made, the producing party amends the response, identifying the material or information produced and stating the privilege asserted. Tex. R. Civ. P. 193.3(d). If the response is amended to identify the specific information inadvertently produced and assert a privilege, the requesting party must promptly return the specified materials. Id.
The issue here is the approximate date Samson actually discovered that it produced the Reserve Analysis. In a letter dated September 23, 2009, regarding an upcoming discovery conference between the parties, Smith informed Samson:
As you know, Samson produced reserve analysis found on pages SAM-02976 through SAM-02981. We are interested in receiving this same report or form of analysis, if any exist, for proven undeveloped reserves associated with the Hancock-Smith Unit.
In a response letter dated September 30, 2009, Samson acknowledged receipt of the September 23 letter and stood on its previously asserted objections and claims of privilege, but made no mention of the Reserve Analysis. More than eight months later, in June 2010, Samson filed its snap-back motion, claiming that the Reserve Analysis was privileged and that Samson first learned that [the Reserve Analysis documents] were inadvertently produced on April 27, 2010.
Samson argues that the September 23 letter did not put Samson on notice that a[] privileged document had been produced. Smith contends that the September 23 letter put Samson on notice and that Samson failed to amend its response, assert privilege as to the Reserve Analysis, or change its position in any way regarding the Reserve Analysis until several months later.
The plain language of the September 23, 2009, letter informs Samson that it produced the Reserve Analysis and Samson admitted receiving the letter. Parties are charged with notice of the contents of correspondence they receive. Burlington N. R.R. Co. v. Akpan, 943 S.W.2d 48, 51 (Tex. App.Fort Worth 1997, no writ) (party held to have knowledge of material fact contained in document he admitted receiving); see also Hexter v. Pratt, 10 S.W.2d 692, 693 (Tex. Commn App. 1928, judgmt adopted), quoted with approval in Champlin Oil & Ref. Co. v. Chastain, 403 S.W.2d 376, 38889 (Tex. 1965); see also Hicks v. Loveless, 714 S.W.2d 30, 33 (Tex. App.Dallas 1986, writ refd n.r.e); T-Vestco Litt-Vada v. Lu-Cal One Oil Co., 651 S.W.2d 284, 293 (Tex. App.Austin 1983, writ refd n.r.e). Samson fails to cite any authority negating its knowledge of the letters contents. Therefore, the trial court acted within its discretion when it denied Samsons snap-back motion because it had ample evidence from which to reasonably infer that Samson actually discovered the inadvertent production in September 2009.
B. The Order Does Not Specify Which Documents Are Responsive to Request No. 11
Samson refused to produce documents in response to Request No. 11, claiming that they were trade secrets. The trial court overruled all of Samsons assertions of trade secret privilege and ordered Samson to produce all documents responsive to this request.
To be entitled to mandamus relief, the relator must demonstrate (1) that no other adequate remedy at law exists, and (2) under the law and facts relevant to the case, the act sought to be compelled is purely ministerial. In re Rodriguez, 77 S.W.3d 459, 460 (Tex. App.Corpus Christi 2002, orig. proceeding). An act is ministerial if it does not involve the exercise of any discretion. Id. (quoting State ex rel. Hill v. Court of Appeal Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). It must also be clear and indisputable that the relator has an absolute right to relief sought. Id. at 461. A ministerial act is one that must be performed with such certainty it does not require the exercise of judicial discretion. Id.
Because the order fails to specify which documents are responsive to Request No. 11, we are unable to determine whether the trial courts order required the production of documents subject to the trade secret privilege. Further, the general nature of the order does not allow us to consider whether the trade secret issue was properly preserved, proven, or rebutted as to the responsive documents.
The order is overbroad and indefinite and therefore constitutes an abuse of discretion.
We conditionally grant the petition for writ of mandamus and direct the trial court to vacate the order in question and enter a new order identifying in detail the material and information to be produced, in a manner that will enable petitioner to properly comply. Because we are confident the trial court will comply with this mandate, the writ will issue only if the court fails to do so.
Jack Carter
Justice
Date Submitted: August 2, 2010
Date Decided: August 3, 2010
[1]Smith does not dispute that Samson filed a proper production/privilege log.
[2]The documents are labeled SAM-02976 through SAM-02981.