IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 5, 2006
______________________________GEARY BRIAN BROGDEN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 49,464-A; HON. HAL MINER, PRESIDING _______________________________
Memorandum Opinion _______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Geary Brian Brogden, appellant, appeals his conviction for assaulting a family member and causing bodily injury. His sole issue involves the voluntariness of his guilty plea. Purportedly, it was involuntary because his trial counsel failed to interview appellant's wife who was also the victim of the assault. She allegedly would have testified that she favored leniency. Furthermore, the complaint was raised via a motion for new trial, which motion the trial court denied. We affirm the judgment.
According to the record, appellant was charged with assault on a family member and causing bodily injury. The parties reached an agreement wherein appellant agreed to plead guilty in exchange for the State recommending a prison term of five years. After the trial court held a hearing wherein appellant pled guilty and it found the plea to be knowing and voluntary, sentence was levied in accordance with the agreement. Subsequently, appellant filed a motion for new trial, alleging that trial counsel was ineffective because he failed to interview the complaining witness, i.e. appellant's wife. The trial court convened a hearing on that motion and subsequently denied it. Yet, permission was granted appellant to appeal those issues raised in the motion. And, as previously mentioned, the sole issue before us involves the voluntariness of the plea due to counsel's supposed ineffective assistance and the trial court's refusal to grant a new trial. We overrule the issue for several reasons.
First, the record discloses that appellant was fully admonished in writing prior to pleading guilty. Appellant further represented to the trial court that, among other things, 1) he understood the effect of his plea, 2) his plea was "freely, voluntarily, and knowingly entered," and 3) his trial counsel "provided fully effective and competent representation." These representations of appellant belie the argument he now proffers. Moreover, a finding that a defendant was duly admonished creates a prima facie showing that a guilty plea was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998).
Second, though the victim testified at the hearing on appellant's motion for new trial that she wanted her husband to get medical help, did not want anything "terrible" to happen to him, and wanted appellant to avoid going to prison, she nonetheless said he needed to be held accountable. Furthermore, the district attorney testified that appellant's wife was informed of the plea bargain (which included the five year prison sentence), uttered no objections to it, and was satisfied with it. So too did the victim refuse to return the impact statement given her. Therein, she was afforded the opportunity to reveal her desires regarding the punishment that should be levied upon her husband; yet, she opted to forego that chance. Trial counsel also testified and denied having any record that indicated appellant's wife attempted to call him, though she testified otherwise. So too did trial counsel state that he asked appellant to see if the victim would contact him given that he purportedly was in constant communication and living with her; yet, appellant never informed counsel that she was attempting to contact him. And, to the extent that counsel thought the assault victim's viewpoint was of import, he deemed it a better tack to allow her to initially contact him. If he attempted to make the initial contact, he "was afraid [he] would scare her off, if nothing else." Finally, from the information he garnered via the district attorney, trial counsel considered the victim's views regarding punishment to be less than certain. While she may not have wanted him to go to prison, she did not "really want him to be on probation either," he uttered.
Simply put, whether the victim would have testified favorably for appellant was an issue of fact. Though she said that she wanted her husband to avoid prison, other evidence disclosed that she was quite "satisfied" with him receiving the prison term offered in the plea agreement. Thus, a question of fact existed involving whether appellant suffered any prejudice due to his counsel's decision to have the victim contact him. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (requiring the complainant to prove that the supposedly deficient performance prejudiced him). And, the trial court was free to resolve it against appellant.
Next, while it is true that defense counsel has a duty to investigate, McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App.1996), nowhere does appellant argue, much less show, that it falls outside the realm of effective trial strategy to have the victim of family violence or an assault initially contact defense counsel as opposed to vice versa. We can see the need for defense counsel to tread cautiously when engaging in pretrial contact with such a person. The latter may well be on an emotional or psychological precipice and, uninvited contact from the assailant's representative in order to curry favor from the victim may well trigger adverse, if not criminal, backlash. See Tex. Pen. Code Ann. §36.05 (Vernon 2003) (defining the crime of witness tampering). Thus, the trial court could well have determined that counsel's tack was indeed acceptable trial strategy, and that despite her intimations otherwise, the victim never contacted trial counsel. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (holding that the appellant must rebut the presumption that his counsel's actions were legitimate trial strategy).
In sum, the trial court did not abuse its discretion in overruling the motion for new trial. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (holding that the denial of a motion for new trial is reviewed under the standard of abused discretion). Accordingly, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
, 858 S.W.2d 397, 400 (Tex. 1993). Proximate cause as an element of negligence consists of two components, cause in fact and foreseeability. Archer, 118 S.W.3d at 782. The cause in fact component asks whether the negligent act or omission was a substantial factor in bringing about the injury, without which the harm would not have occurred. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995). In a medical negligence case, proximate cause must be established to a reasonable medical probability. Id; see Sisters of St. Joseph of Texas, Inc. v. Cheek, 61 S.W.3d 32, 34 (Tex.App.-Amarillo 2001, pet. denied) (stating standard). There is no dispute that expert medical testimony was required to demonstrate the causal connection between Covenant's nursing staff's claimed negligence and Donna Basinger's injuries. Compare Schneider v. Haws, 118 S.W.3d 886 (Tex.App.-Amarillo 2003, no pet.) (expert testimony not always required to establish causation), with Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (expert testimony required to establish cause of frostbite injury).
To establish causation, the Basingers rely on the deposition testimony of Lisa DeHoyos Hogan, a registered nurse. They do not contend that Hogan has the qualifications necessary to render an opinion on the cause of Donna Basinger's pneumonia, to a reasonable medical probability. Hogan testified that she was not qualified to make a medical diagnosis, such as a diagnosis of pneumonia. She further acknowledged she was not qualified to opine that Basinger's pneumonia was caused by aspiration, or was caused by misplacement or malfunction of the nasogastric tube. Hogan testified, however, that nurses "can relate to" a medical diagnosis made by a physician that appears in the patient's chart. Summarizing her opinion concerning maintenance of the tube by the nursing staff, Hogan testified:
During [the colon surgery] a nasogastric tube was inserted. It was up to the nursing staff to maintain the function of that tube. It is within the standard of care to maintain the function of that tube. I did not find documentation to indicate that the tube function was maintained. I did find documentation in the [medical] record that the physicians believe she aspirated, likely due to the malfunction of her nasogastric tube.
Specifically, Hogan identified two locations in the medical record in which physicians made entries she found relevant to that question. She referred to a progress note made by Justin McCarthy, M.D., Donna's gastroenterologist, stating "apparently NG tube became blocked and malpositioned and patient aspirated." Considered in its context and considering McCarthy's limited role in Donna's postoperative care as reflected in the summary judgment record, we do not find McCarthy's statement to constitute his medical diagnosis or an expression of his opinion based on reasonable medical probability. See Burroughs Wellcome, 907 S.W.2d at 500 (evaluating context of statements in medical records and finding statements were not independent conclusions).
Hogan also pointed to a note made by Kenneth Terrell, M.D., a pulmonologist called in to assist with Donna's care when she developed difficulty breathing. Terrell's note contained the statement, "I think she probably aspirated." (2) Assuming, without deciding, that Terrell's brief notation properly can be viewed as an opinion resting in reasonable medical probability, Burroughs Wellcome, 907 S.W.2d at 500, the statement does not make reference to the nasogastric tube and, on this record, it is not reasonable to infer that he was attributing Donna's probable aspiration to any particular cause. Hogan acknowledged that postoperative patients often aspirate fluids for reasons other than a malfunctioning nasogastric tube.
Having reviewed the summary judgment evidence under the required standard, King Ranch, Inc., 118 S.W.3d at 751, we agree with Covenant that the summary judgment record contains no expert medical opinion that Donna Basinger's pneumonia was caused by an improperly functioning nasogastric tube.
Further, on appeal the Basingers do not point to expert testimony establishing a causal connection, based on reasonable medical probability, between Donna's pneumonia and any impairment of her memory. In their response to Covenant's summary judgment motion in the trial court, the Basingers cited deposition testimony from Robert Packard, M.D., a neurologist who evaluated Donna several years after her hospitalization at Covenant. Packard testified, however, that he was not able to say, with reasonable medical probability, that Donna suffered any injury as a result of a lack of oxygen associated with her hospitalization at Covenant. (3)
Agreeing with the trial court that the Basingers failed to produce evidence that an act or omission of Covenant was the proximate cause of the injuries alleged, we overrule the second, third and fourth points and affirm the trial court's judgment.
James T. Campbell
Justice
1. See Malooly Bros., Inc. v. Napier 2. In both instances, the deposition record suggests, but does not clearly indicate,
that the statements are quotes from the physician's notes.
3. Packard indicated he thought it was "a possibility" that Donna suffered injury from
a lack of oxygen to her brain. See Parker v. Employers Mutual Liability Ins. Co. of Wis.,
440 S.W.2d 43, 46 (Tex. 1969) (discussing the distinction between "probability" and
"possibility" in the context of scientific testimony).