NO. 07-01-0169-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 12, 2002
______________________________
PATRICIA GARCIA, APPELLANT
V.
BEVERLY WORKMAN, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;
NO. 99-587,846; HONORABLE RICHARD DAMBOLD, JUDGE
_______________________________
Before QUINN and REAVIS and JOHNSON, JJ.
Appellant Patricia Garcia challenges a judgment based on a jury verdict that she take nothing against appellee Beverly Workman in her action for personal injuries sustained when Workman's vehicle rear-ended the car in which Garcia was a passenger. By one issue, Garcia contends the jury verdict was against the great weight and preponderance of the evidence and manifestly unjust. Based upon the rationale expressed herein, we affirm.
Garcia was a passenger in a car driven by her sister, Lucy Cisneros. (1) While the car was stopped at a controlled intersection waiting for a turn signal, a pickup driven by Workman entered the turning lane behind Garcia and her sister and came to a complete stop. Before the light changed, Workman's foot slipped off the brake pedal and hit the accelerator, causing the pickup to move forward and hit Cisneros's car from the rear. The three women got out of their vehicles to investigate the damages. As they discussed the accident, Workman wiped off her tennis shoe and explained that the pedal was slippery and that her foot had slipped off the brake. After the two drivers determined that no one was injured and that only minor damage to the vehicles occurred, they agreed not to call the police and left the scene. After the accident, Garcia began to have neck pains, which increased to the point that she went to the emergency room for an examination. She was given a neck brace and told to visit another doctor later in the week. The next day she went to her family physician who replaced her neck brace and helped her to schedule an appointment with the physician recommended during treatment in the emergency room. She met with this doctor and he classified her injury as mild whiplash, from which she suffered no permanent injuries.
Garcia did not contend that the liability was established as a matter of law. Instead, she alleged that the occurrence was proximately caused by "one or more" of Workman's (a) failure to keep a proper lookout, (b) failure to timely apply the brakes, (c) failure to apply the brakes to avoid the collision, (d) driving at a speed which was greater than an ordinary prudent person would have done, (e) failure to turn her vehicle to the right or left to avoid the collision, (f) failure to maintain an assured clear distance between the two vehicles, (g) failure to stop at the traffic control signal, and (h) failure to obey a traffic control signal. Notwithstanding these allegations, according to the undisputed evidence, the pickup driven by Workman did make a complete stop behind Cisneros's car.
At trial Workman testified she was driving her husband's pickup and that it had recently been "detailed" and Armor All Protectant had been applied to the brake pedal. She also stated that she did not remember the pedal being slick; however, she acknowledged that during her deposition, when asked when she first noticed that the pedal was slick, she responded, "To be perfectly honest, I don't know. I'm sure probably the first time I applied I was aware of it." Then, in response to a question about whether she noticed that the pedal was slick when she stopped after backing out of her driveway, she said, "I am sure I did. I am sorry, sir, I don't recall." Her further testimony revealed that she noticed the pedal was slick three times before the collision. When she was asked why she did not stop after noticing that the pedal was slick three times, she responded "I really didn't realize it was that slick." Workman concluded, however, that although she was aware that the pedal had Armor All on it, she had no problem controlling her vehicle or keeping her foot firmly planted on the brake. Workman's testimony regarding being careless was also conflicting. On direct examination by her counsel, she did not acknowledge any act of carelessness, but on cross-examination, she "guessed" that her failure to wipe off the brake pedal may have been careless.
Upon completion of the evidence the trial court submitted its charge to the jury. After defining the terms negligence, ordinary care, and proximate cause, question one asked the jury if the negligence, if any, of Workman proximately caused the occurrence in question. Based on the jury's "no" answer to the first question, they did not answer the remaining questions and the trial court signed its judgment that Garcia take nothing on her action.
By her only issue, Garcia contends that the jury verdict is against the great weight and preponderance of the evidence and manifestly unjust because neither the evidence nor inferences supports the jury verdict. We disagree. Because the issue presents a challenge to the factual sufficiency of the evidence, we must consider and weigh all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985). The trier of fact is the sole judge of the credibility of the witnesses and the weight given their testimony, Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962), and may believe one witness and disbelieve another and resolve inconsistencies in testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Finally, we are not to reweigh the evidence and set aside the jury verdict merely because we feel that a different result is more reasonable. Pool, 715 S.W.2d at 634.
Workman's testimony, when taken as a whole, does not unequivocally compel a finding that she was negligent or that her conduct was a proximate cause of the occurrence in question as those terms were defined in the charge. She admitted she was careless, but denied it when asked by her own counsel. An affirmative finding to question one required the jury to find that Workman's conduct was negligent and proximately caused the collision, as the terms were defined in the charge. As is well established, proximate cause includes two elements: cause-in-fact and foreseeability, Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998), and is one that is "particularly within the province of the jury" and may be disregarded only in exceptional circumstances. Browning-Ferris, Inc. v. Hobson, 967 S.W.2d 543, 546 (Tex.App.--Houston [14th Dist.] 1998, pet. denied); see also Stone v. Sulak, 994 S.W.2d 348, 351 (Tex.App.--Austin 1999, no pet.) (holding that in a rear-end accident, negligence was not established as a matter of law). On appeal, Garcia does not contend that excessive speed, failure to maintain a proper lookout, or other similar factors caused the accident, but candidly emphasizes that driving the pickup with the slick brake pedal compels that we disregard the verdict. However, considering the unique evidence presented to the jury, they could have perceived that Workman did not violate her duty to exercise "ordinary care" or that the two elements of proximate cause were not established. Moreover, because the "no" answer is nothing more than a failure of Garcia to discharge her burden of proof, Lovato v. Ranger Ins. Co., 597 S.W.2d 34, 36 n.1 (Tex.Civ.App.--Amarillo 1980, writ ref'd n.r.e.), we conclude that the jury's answer is not manifestly unjust. Garcia's sole issue is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1. The surname Cisneros is spelled inconsistently in the record; however, in this opinion we will use the more common spelling.
EM>59 S.W.3d 773, 777 (Tex.App.-Austin 2001, pet. ref'd). If a court determines the Legislature intended to impose cumulative sentences for the same conduct, the court may end its inquiry and impose both sentences. Reina, 940 S.W.2d at 775.
When the same act or transaction violates two different penal statutes, the two offenses are the same for double jeopardy purposes if one of the offenses contains all the elements of the other; they are not the same if each offense has a unique element. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932). One of the elements of aggravated kidnapping is the abduction of another. Tex. Pen. Code Ann. § 20.04(a) & (b) (Vernon 2003). Abduction is not an element of aggravated assault. Tex. Pen. Code Ann. § 22.02 (Vernon 2003). In order to prove the aggravated assault charge in this case, the State was required to prove that appellant caused, or threatened to cause, bodily injury to the victim. Causing, or threatening to cause, bodily injury was not an element of aggravated kidnapping as alleged here. Consequently, the offenses for which appellant was tried and convicted each had a unique element and were not the "same offense" under the Blockburger analysis.
Even when two penal statutes have unique elements and are, therefore, not the same under Blockburger, other factors may lead to the conclusion that the Legislature did not intend to permit multiple punishments when the same conduct violates both statutes. Duvall, 59 S.W.2d at 777 (citing Ervin v. State, 991 S.W.2d 804, 814 (Tex.Cr.App. 1999)). However, none of the relevant factors enumerated in the Ervin decision apply to the offenses at issue in this case. Aggravated kidnapping, under the facts of this case, is a first degree felony, while aggravated assault is a second degree. Moreover, the offenses are not contained in the same statute, are not phrased in the alternative, and are not similarly named. Nor, is the gravamen of aggravated kidnapping and aggravated assault the same. Rather, the focus of kidnapping is abduction, while the focus of aggravated assault is injury or the threat of injury. Duvall, 59 S.W.2d at 778. Appellant does not assert an imputed theory of liability which would result in the offenses being considered the same under Blockburger. Finally, appellant does not provide, nor have we discovered in our independent review, any legislative history containing an articulation of an intent to treat the offenses as the same or different for double jeopardy purposes. Thus, we are not persuaded that the Legislature intended to prohibit multiple punishments under the circumstances shown here. Appellant's first point of error is overruled.
Appellant suggests by his second point of error, as we perceive it, that since the first paragraph of count one alleged conspiracy to commit murder as the underlying offense for engaging in organized criminal activity, the offense of aggravated assault was necessarily a lesser included one. Then, because the trial court essentially entered a judgment of acquittal as to that allegation and any of its lesser included offenses when it partially granted appellant's motion for instructed verdict, double jeopardy barred his conviction for aggravated assault under count two of the indictment. We disagree.
During the hearing on appellant's motion for instructed verdict, the trial court initially granted the motion in its entirety. The State, however, requested and was granted the opportunity to brief the court on the issues raised by the motion. During the subsequent proceedings, the State, while not joining in appellant's motion, agreed not "to preserve the point for appeal purposes . . . the granting of the Motion for Instructed Verdict as to the engaging in organized criminal activity." With respect to the first paragraph of count one, the State explained, "it's my understanding of the law that conspiracy to commit a crime like murder is not a lesser included [offense] of engaging in organized criminal activity, and so that charge would not be able to go to the Jury." Later in the proceeding, the court announced, "All right, sir. I'm going to adopt the State's position." Taken together, we believe the foregoing statements illustrate an intent by the State to abandon, and an intent by the court to accept the abandonment of, the first allegation included in the indictment.
The only legal consequence of an abandoned allegation is that a criminal defendant cannot in a subsequent trial be prosecuted on the abandoned count. Ex parte Scelles, 511 S.W.2d 300, 301 (Tex.Cr.App. 1974). Since the State abandoned the conspiracy to commit murder allegation prior to its submission to the jury, the trial court's written order partially granting the motion for instructed verdict did not amount to the rendition of an acquittal as to that allegation. As a consequence, double jeopardy did not bar appellant's conviction under count two of the indictment. Appellant's second point of error is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
2. The pleading was actually entitled "The State's Motion for Rule 49.7
Reconsideration En Banc." In its prayer for relief, however, the State requested that the
Court grant its motion for rehearing. Moreover, in answer to appellant's response to the
motion, the State filed "The State's Reply to Appellee's Response to the Motion for
Rehearing." It is clear the State is attempting to avail itself of the procedures under Rule
49.1 of the Texas Rules of Appellate Procedure. Since it is the substance of the motion
that governs, not the title, we will treat the State's pleading as a motion for rehearing. Ex
parte Caldwell, 58 S.W.3d 127, 130 (Tex.Cr.App. 2000).
3.
4. Since none of the statutes at issue have changed substantively since the trial on the merits of this case, all citations will reference the current incarnations of those statutes.
5. In the original indictment, each count contained two paragraphs. Prior to jury selection, however, the State abandoned the second paragraph of count two.
6. During the hearing on appellant's motion for instructed verdict, the State abandoned the first paragraph of count one, the charge alleging conspiracy to commit murder as the object offense of engaging in organized criminal activity.
7. The Double Jeopardy Clause of the United States Constitution was made applicable to the states through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The clause provides, in pertinent part, "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb."