In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00029-CR
______________________________
STEVIE WALKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Fourth Judicial District Court
Rusk County, Texas
Trial Court No. CR07-148
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Stevie Walker appeals his conviction by a jury for possession of a controlled substance. After observing Walker fail to properly signal two turns, Officer Brian Pool, a police officer with the Henderson Police Department, and Officer Travis Shirley, who was in field officer training, stopped Walker's vehicle. During the temporary detention, Pool discovered that Walker was in possession of a rock of crack cocaine. Walker's sole issue on appeal is that the trial court erred in denying his motion to suppress.
When reviewing a trial court's decision to grant or deny a motion to suppress, we afford almost total deference to a trial court's determination of the historical facts supported by the record, especially when the trial court's fact-findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review questions of law de novo. Guzman, 955 S.W.2d at 89; Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).
Walker contends that Pool lacked, at the time of the traffic stop, specific, articulable facts to support a reasonable suspicion Walker was engaged in criminal activity. (1) The trial court conducted a hearing outside the presence of the jury before the trial on the merits. Both Pool and Walker testified at the hearing as follows.
While on patrol, Pool received a dispatch from Officer Chad Taylor. Taylor was conducting surveillance of a residence of a person suspected of selling narcotics. Taylor provided Pool with a description of a vehicle leaving that residence. Pool arrived at the residence just as a vehicle matching that description was leaving. Pool testified that he followed the vehicle for several blocks, during which time the vehicle, which was being driven by Walker, failed to signal a turn "at all" at one intersection. Walker testified he did signal his turn at the first intersection. At another intersection, Pool testified the vehicle "did signal, but not within the required distance, not within 100 feet."
After observing these traffic violations, Pool made a traffic stop. Pool conducted a "pat-down" search and did not discover any weapons. Pool testified he told Walker: "The best thing you can do is to go ahead and give us what you've got illegally in your pocket." Walker testified he interpreted the statement as a command. Walker then handed Pool a "white, off-white" rock from his shirt pocket which was ultimately determined to be crack cocaine. The trial court denied Walker's motion to suppress.
According to Walker, the "first question is whether Taylor had enough information to justify his order to Pool to follow Walker for anticipated traffic offenses." Walker, though, has failed to provide us with any authority that Pool's conduct in following Walker, before the traffic stop, involved a search or a seizure in violation of the Fourth Amendment. We know of none.
Next, Walker challenges the traffic stop as an unreasonable detention. Under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, the police must be able to articulate specific facts that support a reasonable suspicion that the suspect is engaging in, or is about to engage in, criminal activity. "[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997). "A routine traffic stop resembles an investigative detention." State v. Cardenas, 36 S.W.3d 243, 246 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd). A law enforcement officer may lawfully stop and detain a person for a traffic violation committed in the presence of the officer. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); Zervos v. State, 15 S.W.3d 146, 151 (Tex. App.--Texarkana 2000, pet. ref'd).
An objectively valid traffic stop is not unlawful simply because the detaining officer had some ulterior motive for making it. A "pretext stop" refers to a detention in which an individual is detained for one offense only because law enforcement officials desired to investigate that individual for a different offense--for which they did not have valid legal grounds to stop or arrest. Garcia, 827 S.W.2d at 939-40; Randle v. State, 89 S.W.3d 839, 843 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd). The Texas Court of Criminal Appeals has rejected the pretext stop doctrine. See Crittenden v. State, 899 S.W.2d 668, 671 (Tex. Crim. App. 1995); Garcia, 827 S.W.2d 937; see also Whren v. United States, 517 U.S. 806, 809-10 (1996) (question is whether officer could have made stop for reason given). Thus, the fact that Pool may have subjectively had another motive for the detention does not render the detention unreasonable. The Texas Transportation Code provides, "An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn." Tex. Transp. Code Ann. § 545.104(b) (Vernon 1999). Pool testified he personally observed Walker fail to signal a turn entirely and fail to signal 100 feet or more before another turn. The trial court had discretion to believe Pool's testimony over Walker's testimony. A failure to properly signal a turn is sufficient to justify a traffic stop. See, e.g., Reha v. State, 99 S.W.3d 373, 376 (Tex. App.--Corpus Christi 2003, no pet.); Krug v. State, 86 S.W.3d 764, 766 (Tex. App.--El Paso 2002, pet. ref'd). Pool had an objectively reasonable basis to detain Walker--a personally observed violation of the Texas Transportation Code--and, therefore, had reasonable suspicion to temporarily detain Walker.
Because Pool had reasonable suspicion to detain Walker for failing to signal a turn, we affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: July 15, 2008
Date Decided: July 16, 2008
Do Not Publish
1. Walker does not challenge the actions of Pool after the initial stop. Walker argues merely that the evidence seized during the stop was tainted by the initial stop's illegality.
indemnity agreement that has the effect of relieving a party, in advance, of liability for its own negligence. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 507-09 (Tex. 1993). Under the express negligence doctrine, a party who wishes to contractually shift risk from itself for the consequences of its future negligence must specifically express that intent within the four corners of an agreement. See Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 707-08 (Tex. 1987); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d at 508. The fair notice requirement of conspicuousness requires that the release or indemnity be written in such a manner that a reasonable person against whom it is to operate should have seen it. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d at 510-11. For example, language in capital headings, language in contrasting type or color, and language in an extremely short document such as a telegram, is considered conspicuous. Id. The question of compliance with both the express negligence and the conspicuousness doctrines is a question of law for the court. Id. at 510.
S&P and Guerrero contend we are precluded from considering this issue under the doctrine of the law of the case. This doctrine is defined as that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); Trevino v. Turcotte, 564 S.W.2d 682, 685 (Tex. 1978). The application of this doctrine is flexible and must always be addressed to the discretion of the court and determined according to the particular circumstances of the case. See Kempner v. Huddleston, 90 Tex. 182, 185, 37 S.W. 1066, 1067 (1896), cited with approval in Ex parte Granger, 850 S.W.2d 513, 516 (Tex. Crim. App. 1993). The court in the former appeal of this case did not consider, as a question of law, whether a liability release such as the one relied on by S&P and Guerrero must satisfy the fair notice requirements of conspicuousness and the express negligence doctrine in order to be an effective waiver. Nor did the court in that appeal consider whether a liability release that must satisfy the fair notice requirements and does not do so may in fact be ratified and, if so, under what conditions. These are the central issues in this appeal, and we conclude that we may review them.
S&P and Guerrero contend that the benefit plan agreement at issue in this case does not release them, in advance, of liability for their own negligence, and thus the fair notice requirements of conspicuousness and the express negligence doctrine do not apply. For support, they rely on In re H.E. Butt Grocery Co., 17 S.W.3d 360 (Tex. App.-Houston [14th Dist.] 2000, orig. proceeding.) (cited herein as "HEB"). In HEB, plaintiff Swinton signed an agreement when he was hired, which waived his right to sue HEB, his employer, for negligence in return for specified benefits for future workplace injuries. Swinton was hurt while working, and he sued. Responding to Swinton's express negligence argument, the court stated that the doctrine did not apply because the benefit agreement that he executed with HEB did not attempt to relieve HEB of the consequences of its negligence. Id. at 378. "To the contrary," the court stated, "Swinton's 'waiver' and 'release' obligated HEB to pay plan benefits, regardless of its negligence." Id. The HEB court's rationale seems to be that because HEB had agreed under the terms of its benefit plan to pay certain limited benefits for workplace injuries it negligently caused (as well as for those injuries it did not cause), HEB was not seeking to relieve itself of potential liability in advance. Similarly, S&P and Guerrero here respond that, because S&P was not relieved of all liability; that is to say, because S&P was obligated to pay at least limited plan benefits, the benefit plan is not one that releases them in advance of liability for their own negligence. We disagree.
We first note that HEB was decided before Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, in which the Texas Supreme Court expressly stated that the employee's pre-injury release of negligence claims against his employer there at issue, which was of the same effect as the releases in our case and HEB, could be enforced only if it satisfied both the express negligence and conspicuousness requirements. See id. at 553-54.
Moreover, the rationale of S&P and Guerrero and the HEB court rests on an irrelevant distinction between those plans that release an employer of all liability and those plans that only release an employer of any liability in excess of plan benefits. As stated previously, the fair notice requirements of conspicuousness and the express negligence doctrine apply to any contractual release or indemnity agreement that has the effect of relieving a party, in advance, of liability for its own negligence. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d at 507-09. Thus, in order to determine whether our release in fact relieved S&P and Guerrero of liability for their own negligence, we need only consider the extent of their potential liability before and after Reyes signed the release. Before Reyes signed the release, when he possessed all his common-law rights against S&P and Guerrero, S&P and Guerrero were subject to the full extent of any liability their negligence might cause. After S&P obtained Reyes' apparent consent to the benefit plan designed to waive his common-law rights, S&P's and Guerrero's liability for their own potential negligence was reduced from a theoretically limitless amount to the minimum amount necessary to meet the specific limited benefits outlined in the benefit plan. As a coemployee, Guerrero's liability for his own future negligence after the waiver was to be basically zero, because he was not obligated to pay anything at all.
Whether an employer's common-law liability for negligence will be nothing, or less than the benefit plan covers, or more than the plan covers, obviously cannot be known before the negligent act and the resulting injury or death. Nevertheless, at least where such common-law liability is greater than the benefits under the benefit plan, there can be no doubt that the effect of the worker's release is to relieve that employer of at least a part of its future liability for its own negligence. The fact that the employer has an alternative compensation scheme in place, as the benefit plan is characterized by S&P and Guerrero, does not mean that an employer is not potentially relieved of some liability. We can see no reason why employers should not be required to comply with the fair notice requirements of conspicuousness and the express negligence doctrine before employees are deemed to have waived even some of their common-law rights. Because the benefit plan at issue in this case is a contractual attempt to relieve parties in advance of at least some liability for their own negligence, we hold that it is subject to the fair notice requirements of conspicuousness and the express negligence doctrine.
We need not consider whether the benefit plan does in fact satisfy the fair notice requirements of conspicuousness and the express negligence doctrine, because S&P and Guerrero concede that if the fair notice requirements of conspicuousness and the express negligence doctrine apply, the benefit plan agreement does not comply with the conspicuousness requirement. A liability release or indemnity agreement that is deficient as to the fair notice requirements is unenforceable as a matter of law unless the employee has actual knowledge. See Douglas Cablevision IV, L.P. v. Southwestern Elec. Power Co., 992 S.W.2d 503, 510 (Tex. App.-Texarkana 1999, pet. denied). Thus, the benefit plan agreement at issue here is unenforceable as a matter of law unless S&P and Guerrero can prove that Reyes had actual knowledge. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d at 508 n.2 (citing Cate v. Dover Corp., 790 S.W.2d 559, 561 (Tex. 1990)). (1) As summary judgment evidence, S&P produced an affidavit from Ruby Perez, the person responsible for conducting safety meetings and orientations for S&P employees. In her affidavit, Perez states she is fluent in English and Spanish; she reviewed the terms of the Benefit Plan with Reyes and other employees, including a "Rights and Responsibilities" page, which explained that employees were waiving any common-law claims by agreeing to participate in the benefit plan; and that Reyes signed a form written in Spanish stating that he had read and understood the rules and stipulations of the plan and would comply with them. This is some evidence that Reyes had actual knowledge that by enrolling in the benefit plan, he was waiving his common-law rights. In response, Reyes produced his own affidavit stating he can neither read nor write English and no one ever explained the benefit plan to him in English or Spanish. This conflicting summary judgment evidence creates a fact issue regarding actual knowledge of waiver. Summary judgment was therefore improper on the basis of waiver.
We must now consider whether it is possible to ratify such a defective agreement, and if so, whether Reyes did ratify it, because ratification was an independent basis for summary judgment on which S&P and Guerrero moved. Ratification is the adoption or confirmation, by one with knowledge of all material facts, of a prior act that did not then legally bind that person and which that person had the right to repudiate. Vessels v. Anschutz Corp., 823 S.W.2d 762, 764 (Tex. App.-Texarkana 1992, writ denied). Because ratification is an affirmative defense, it is the defendant's burden to offer proof on each element of the defense. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984). As we are dealing with a summary judgment motion, S&P and Guerrero had the burden to plead and conclusively prove each element of that defense. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d at 678.
Regarding whether it is possible to ratify a liability waiver that relieves a party, in advance, of liability for its own negligence and that is defective for failing to meet the fair notice requirements, we conclude that such a defective liability waiver may be ratified where it is done with full knowledge of all pertinent facts. The purpose behind fair notice requirements, as the name implies, is to ensure that the executing party has fair notice of what he is executing. Thus, as stated previously, the fair notice requirements do not apply where the signatory's actual notice or knowledge of the indemnity or release is shown. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d at 508 n.2 (citing Cate v. Dover Corp., 790 S.W.2d at 561). Therefore, an employee who has executed a liability waiver that is defective for failing to meet the fair notice requirements is in the same position as if he had never signed the release, unless he had actual knowledge of the release's provisions. Ratification in these circumstances can satisfy the purpose behind the fair notice requirements only if the notice which we require be given an employee at the waiver stage be shown to exist at the ratification stage in the form of full knowledge of all of the pertinent facts.
Our decision here is guided by Leonard v. Hare, 161 Tex. 28, 336 S.W.2d 619 (1960). In Leonard, the employer carried a voluntary compensation policy for those employees who were not covered by workers' compensation. While in the hospital, about a month after the injury, the employee signed an acceptance of the compensation benefits and a release of his employer from common-law liability. The insurance company adjuster testified that he fully explained to the employee the terms of the policy and the nature of his rights under the law. The employee testified that he was not mentally capable of understanding the consequences of his act; that he did not receive a copy of the instrument and had never seen it since; that while the company did pay his hospital bills and he accepted and cashed weekly compensation checks for fourteen months, he immediately ceased cashing the checks, and returned those that had been delivered to him, when his lawyer advised him of his right to sue his employer for damages at common law. See id. at 620. The employer contended that the employee was bound by the release of his common-law action and election to accept voluntary compensation benefits when he signed and ratified by writing for such payments and by accepting, endorsing, and cashing weekly compensation payments, each of which showed on its face to have been tendered in payment of such voluntary compensation benefits. See id. The Texas Supreme Court found that the actions of the employee in accepting payments did not constitute ratification as a matter of law because the actions did not establish "that at the time of accepting this compensation [the employee] was in possession of and acquainted with all of the facts or that as a matter of law he knew his rights and privileges to accept or reject the benefits under the voluntary compensation policy or to sue his employer at common law or to release him from liability." Id. at 621. Without knowledge of those facts pertaining to his rights, ratification did not occur.
Reyes is in exactly the same position as was the plaintiff in Leonard. Because of the fact issue as to the validity of the waiver, summary judgment that he lost his common-law rights in their entirety at the time he accepted and retained payment for medical expenses and disability payments was improper. S&P's and Guerrero's summary judgment proof of ratification is that Reyes accepted and retained payment for medical expenses and disability payments after having previously signed the liability waiver. This evidence is insufficient to satisfy the summary judgment burden of proof on knowledgeable ratification. S&P and Guerrero have failed to show any evidence that at the time Reyes accepted plan benefits, he did so with the knowledge he had common-law rights that he would waive by accepting such benefits. We cannot infer Reyes' knowledge from his having signed the release on his initial employment, because to do so would render the fair notice requirements meaningless. The estoppel argument fails for the same lack of knowledge on Reyes' part. See Rourke v. Garza, 530 S.W.2d 794, 803 (Tex. 1975) ("It is essential to the application of the doctrine of estoppel that the person claimed to be estopped have had knowledge of all material facts at the time of the conduct alleged to constitute the basis of the estoppel.").
Having shown that the liability release at issue here was unenforceable as a matter of law, and that S&P and Guerrero have failed to satisfy their burden of proof for summary judgment on their claims of ratification and estoppel, we conclude the trial court erred in granting summary
judgment. We reverse the judgment and remand this cause for further proceedings consistent with this opinion.
William J. Cornelius*
Justice
Date Submitted: May 29, 2002
Date Decided: June 27, 2002
Publish
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment.
1. Although the Cate court only expressly addressed the actual knowledge of the party against whom the provision is to be enforced and the conspicuousness of the provision in question, see Cate v. Dover Corp., 790 S.W.2d 559, 560 (Tex. 1990), the Dresser court appears to have broadened the "actual knowledge" exception to cover both the express-negligence and conspicuousness requirements. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993).