Adam Grimaldo v. State

NO. 07-04-0246-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MARCH 8, 2006

______________________________

ADAM GRIMALDO,

Appellant

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 137^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-404,575; HON. CECIL G. PURYEAR, PRESIDING

_________________________________

Opinion

_________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant, Adam Grimaldo, appeals his conviction for possessing a controlled substance with intent to deliver in a drug free zone. Two issues are before us. The first deals with the trial court's denial of his motion to suppress. The second concerns the legal and factual insufficiency of the evidence supporting the conviction. We reverse the judgment of the trial court.

Background

On January 16, 2002, Investigator Tony Marez of the Lubbock Police Department arranged to purchase cocaine through a confidential informant. Prior to meeting with Jesus Villalobos, the seller, Marez searched the informant and equipped him with a listening device. Marez and the informant then met Villalobos at an E-Z Mart. Villalobos was accompanied by a man named Jaime Jalomo. The informant left in a vehicle with Villalobos and Jalomo and drove to a house on 37^th Street. At the abode, Jalomo entered same, stayed for approximately ten minutes, and then returned to the vehicle. The three men then drove back to where Marez was waiting. The informant entered Marez' vehicle and delivered to him a plastic bag containing a white powder. Believing it to be a controlled substance, Marez signaled for Villalobos and Jalomo to be arrested. On the heels of this arrest another was taking place at the house on 37^th Street.

Apparently, various officers had followed the informant, Jalomo and Villalobos from the E-Z Mart to the 37^th Street address to witness the transaction. When it was completed, some stayed and continued their surveillance of the residence. During this time, one officer saw appellant exit the house, approach the street, look up and down it, cross to the other side, walk towards another house, and return several minutes later. Though two different officers were observing the home, only one saw appellant cross the street and return, however. This was so because the other had driven around the corner to don a bulletproof vest. The officer stated that he donned the vest because he was near "the target location." And, upon questioning by defense counsel, the same officer conceded that he "already" knew that he was going to enter the house whereat the transaction occurred before being told about appellant's venture in crossing the street. Another officer confirmed that the police decided to "breach" the house once it was discovered that the drugs in question were sold from it.

So, when the signal was given to arrest Villalobos and Jalomo at the E-Z Mart, at least five officers at the 37^th Street locale approached the door of the home, knocked twice, encountered no response, and forcibly entered the abode. Of the officers asked if they had probable cause to believe that evidence of a crime existed in the house, each replied in the affirmative. Several also testified that the circumstances they had observed would have supported the issuance of a search warrant. Yet, only one thought it advisable to obtain such a warrant before conducting the raid. No warrant was obtained, however. Instead, the group of officers decided to

actually go ahead and secure the house . . . knock on the door and attempt to make contact with somebody . . . then . . . once we were either allowed in the house or if we felt it necessary to force entry into [it], to secure it, to prevent the destruction of evidence or the escape of any other suspects inside . . . in order that we may either obtain consent to search the house or obtain a search warrant for the house.

So, with guns drawn, they "breached" the door, yelled out that they were the police, and ordered everyone to "get down." A sweep of the house, which an officer described as "small," then occurred. While not finding any contraband during the sweep, they nevertheless secured the residence. This was done with handcuffs and requiring that the occupants lay belly down on the floor. Those within the residence included appellant, several other adults, a teenager and two children under five years of age.⁽¹⁾ Appellant was found in a hallway by the rear bedroom. The officers also ordered him to lie on the floor face down. Then, he was handcuffed.

Immediately upon securing the house, one or more officers took appellant into the rear bedroom. There he purportedly consented to a search of the home after being informed of his Miranda rights and right to refuse consent to the search. According to one or more officers, appellant was cooperative and began inculpating himself before being Mirandized and without solicitation. When that occurred, the officers purportedly told him to be quiet until he was Mirandized. At about this same time, one of the officers present was directed to obtain a written consent to search form for appellant's signature. Appellant signed the document. And, in addition to executing the form, he also assisted the officers in their search of the house and discovery of controlled substances.

According to the record, the time that lapsed between the instant Villalobos and Jalomo left the 37^th Street house, returned to the E-Z Mart, were arrested, and the officers breached the door of the house and secured its occupants approximated six to eight minutes. The time between the initial breach of the house and the directive to obtain a consent form that appellant could sign approximated one or two minutes.

Issue One - Motion to Suppress

Appellant first argues that the trial court erred in refusing to grant his motion to suppress. The motion allegedly was viable because the officers engaged in an unlawful entry and search of the abode. Furthermore, both purportedly were unlawful because 1) the officers had neither a warrant or exigent circumstances to breach the door and conduct a search and 2) the consent to search given by appellant was either involuntary or not sufficiently attenuated from the unlawful entry. We sustain the issue.

We review the trial court's ruling on a motion to suppress under the standard announced in Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) and Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). It requires us to give almost total deference to the trial court's findings of historical fact and review de novo the application of law to those facts. Johnson v. State, 68 S.W.3d at 652-53.

Next, the burden lies with the State to prove the legality of a warrantless search. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). Furthermore, when the legality of the search is dependent upon the consent of the detainee, the State's obligation becomes that of proving the validity of the consent by clear and convincing evidence. Johnson v. State, 68 S.W.3d at 652 n.30; Brick v. State, 738 S.W.2d 676, 681 (Tex. Crim. App. 1987).

Finally, that the detainee may have knowingly and voluntarily given consent to search does not ipso facto permit use of the evidence discovered. One other obstacle must be overcome, and it deals with the attenuation, if any, between the illegal seizure and the ensuing consent. That is, in addition to establishing the validity of the detainee's consent, the State must also prove by clear and convincing evidence that the taint inherent in the illegal search or seizure had dissipated by the time the consent was given. Brick v. State, 738 S.W.2d at 678; State v. Bagby, 119 S.W.3d 446, 452 (Tex. App.-Tyler 2003, no pet.). And, in determining whether the taint had sufficiently dissipated, we consider such factors as whether 1) temporal proximity between the unlawful seizure and consent given was close, 2) the unlawful seizure brought about police observation of the particular object for which they sought consent to search, 3) the illegal seizure was flagrant police misconduct, 4) the consent was volunteered rather than requested by the officers, 5) the detainee was made fully aware of the fact that he could decline to consent to the search, and 6) the purpose underlying the seizure was to obtain the consent. Id. With this said, we turn to the matter at hand.

Initial Entry

As previously mentioned, the officers had no warrant justifying their entry into the house. Thus, the entry was unlawful unless there existed probable cause (to believe instruments or evidence of a crime would be discovered therein) coupled with exigent circumstances rendering the procurance of a search warrant impracticable.⁽²⁾ Estrada v. State, 154 S.W.3d 604, 608 (Tex. Crim. App. 2005). Here, the record illustrated that the officers' entry into appellant's home was warrantless. Thus, it was incumbent upon the State to prove that the officers acted with probable cause and under exigent circumstances. Assuming arguendo that probable cause existed, we address the matter of exigent circumstances.

According to the officers, they believed that drugs and drug money lay within the house, the drugs and money were subject to easy destruction, and they themselves were endangered. Moreover, the latter two observations were founded upon one officer purportedly seeing appellant leave the house, proceed to the adjacent street, look up and down the road, walk or trot across it, proceed towards another house, and return moments later.⁽³⁾ According to the officer who saw this activity, it appeared suspicious and of the ilk undertaken by a lookout attempting to spy police presence. Yet, when asked upon what he based his supposition, the officer simply referred to his training and experience in dealing with drugs and drug traffickers. How the act of a drug trafficker crossing a street after looking both ways differed from the same act undertaken by any man, woman, or child taught to look for oncoming traffic before crossing a street went undeveloped. How and why that action created more suspicion when undertaken by a drug trafficker than by any other adult or child also suffered the same malady. Whether appellant stood by the curb for an extended period of time, turned his head slowly as if to peer into cars or secluded places, or undertook like actions were omitted from the record. This absence of additional descriptive facts is fatal for an officer's opinions influencing his decision to act must be objectively reasonable. And, the absence of such facts supporting those opinions prevents us from assessing whether they met that standard. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005) (wherein the officer opined that the suspect violated a traffic regulation by "'following too close'" to another vehicle). More importantly, an officer's statement that he simply relied on his experience and training to arrive at the conclusion does not fill the void. Id. at 494. Given this, we cannot but say that the officer's opinion about appellant acting suspiciously when crossing the street was conclusory and, therefore, without evidentiary value.

Nor can we say that any other reason given by the officers as basis for immediately raiding the house were of any greater weight. It may well be, as suggested by the officers, that had appellant seen them when crossing the street he could have destroyed the contraband and money, attempted to flee, or secured weapons to defend himself against a raid. Yet, neither were we cited to nor did we find evidence remotely suggesting that those watching the house were in a location permitting easy discovery or that in looking up and down the street, appellant or anyone else spied their presence. This void is also telling since, logically, an individual must be aware of an officer's presence before it can be said that knowledge of the officer's presence somehow influenced the individual's actions. See McNairy v. State, 835 S.W.2d at 107 (noting that relevant to the belief that evidence may be destroyed is, among other things, the existence of information indicating that the possessor of narcotics is aware that the police are on his trail). In short, no facts appear of record rendering the beliefs uttered by the police objectively reasonable. Indeed, the actual circumstances confronting the officers was best summed up when one witness testified that ". . . we just didn't know what was going on with [the evidence] at that time." Again, inferences, opinions, and conclusions stimulating an officer to act must be reasonably objective and supported by fact as opposed to speculation or surmise. And, those facts were missing from the record here.

Consequently, we hold that the record fails to contain evidence from which the presence of exigent circumstances could be reasonably inferred. So, the officers' entry into the 37^th Street house was illegal. Having concluded this, we must now conduct a Brick analysis to decide whether appellant's purported consent to search the home was free of taint arising from the illegal raid. For purposes of this undertaking, we assume that appellant did consent. Thus, our focus lies on the matter of attenuation, the pertinent indicia cited in Brick, and the efforts of the State to prove attenuation by clear and convincing evidence.

Of the six Brick indicia, all but one weighs against the State. For instance, appellant's execution of the written consent form came within minutes of the breach of the home by the officers. That is hardly sufficient time for the occurrence of intervening acts permitting cool reflection by appellant. Second, that the entry was flagrant police misconduct is illustrated not only by the want of exigent circumstances but also by the testimony of several of the officers. Again, one opined that if the decision where left to him, he would have first obtained a warrant before entering the house. Another said that the decision to gain entry into the house either through consent or by force was made before appellant undertook the suspicious act of crossing the street after looking both ways. Another testified that the decision was made to enter once it was determined that the substance obtained from the house was contraband. This evidence evinces that the officers were intent on immediately entering the home irrespective of whether they had the time and ability to obtain a warrant.

Third, though some evidence indicated that appellant volunteered information to the officers before they Mirandized him, the record does not indicate that the information included authorization to search the house. Rather, the record illustrates that the officers obtained a written consent form and gave it to him for his perusal and execution upon the heels of securing the premises and its occupants.

Fourth, as to the matter of whether the officers' purpose in entering the home was to secure consent to search, we again turn to the testimony that 1) they were going to gain entry through consent or by force, 2) an officer was directed to secure the requisite form within minutes of his entry into the house, and 3) the consent form was signed within minutes of appellant being handcuffed and taken to the rear bedroom. Those circumstances reasonably support the inference that the officers entered the house to obtain authorization to search it.

Fifth, it can hardly be denied that the unlawful entry into and sweep of appellant's home coupled with the unlawful detention of those in it brought about police observation of the object for which they sought consent to search. Again, they had no warrant to enter or search the house. Nor was the contraband they sought within plain view. Similarly, it was not until after the door was breached and the occupants were handcuffed and placed on the ground that appellant uttered comments about the location of the drugs and drug money. And, all this happened within a time span of mere minutes. As one officer testified, the general plan was to act quickly and deny others time to prepare.

Finally, while evidence illustrates that appellant was told of his right to refuse consent, one can only wonder if the utterance evinced a legitimate choice. By that time, the officers had already entered the home illegally, ran through the house yelling and with guns drawn, and seized those present, including appellant, without legal justification. Moreover, when asked what would have happened if appellant refused to give his consent, an officer testified that they would have obtained a search warrant. Though the witness did not say whether appellant and the other occupants would have been freed from the unlawful restraint or whether the officers would have exited the premises while the warrant was obtained, nothing of record suggests that they would have.

In short, it does not matter whether appellant's consent was voluntary. The Brick indicia weigh against a finding that sufficient attenuation occurred between the unlawful seizure and consent afforded by appellant. Thus, the trial court erred in overruling appellant's motion to suppress appellant's statements made during and the evidence found as a result of the unlawful seizure.⁽⁴⁾

Issue Two - Sufficiency of the Evidence

In his second and last issue, appellant argued that the evidence was legally and factually insufficient to support the finding that he possessed cocaine either as a party or as a principle. Had the evidence obtained as a result of the raid been admissible, it would have been more than legally and factually sufficient enough to support his conviction. Thus, the issue is overruled.

Accordingly, we reverse the judgment of the trial court and remand the cause.

Brian Quinn

Chief Justice

Publish.

1. The record does not disclose whether the two children were also handcuffed and made to lie on the floor.

Exigent circumstances justifying a warrantless entry into a home include 1) rendering aid or assistance to persons whom the officers reasonably believe are in need of assistance, 2) preventing the destruction of evidence or contraband, 3) protecting the officers from persons whom they reasonably believe to be present, armed, and dangerous, Estrada v. State, 154 S.W.3d 604, 608 n.12 (Tex. Crim. App. 2005), and 4) an increased likelihood of apprehending a suspect. Barocio v. State, 158 S.W.3d 498, 500 (Tex. Crim. App. 2005); McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991).

3. Whether appellant again looked up and down the road when returning to the 37^th Street house went unmentioned.

Though the State believes the opinion in Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000) to be controlling, we find it readily distinguishable. First, in Reasor nothing was said of Brick and its holding. Indeed, the court seemed to focus more on the voluntariness of consent than the issue of attenuation. And, while it did say that the consent was sufficiently attenuated from the illegal seizure because the officers had not found any contraband during the protective sweep, id. at 818, we hesitate to read Reasor as eviscerating the applicability of all the other Brick factors via that one conclusory statement. Second, it can be said that the officers in Reasor at least had reasonable suspicion to legitimately detain Reasor in his driveway. Here, however, the officers had no lawful basis to initially come into contact with appellant in the manner they did. Third, the circumstances in Reasor indicate that more than a few minutes were involved in the interaction between the officers and Reasor. Indeed, there the officers had sufficient time to make inquiry of Reasor and determine that his companion was not involved. That suggests that the officers were not in the rush exhibited by the police at bar. And, while the officers here did opt to release some of the occupants of the house, nothing suggests that this occurred before they raided the home, secured those present, and had appellant sign the consent form. Fourth, while the officers "repeatedly" informed Reasor of his right to remain silent and Mirandized him before conducting the illegal sweep, the police at bar did not do so until after the illegal raid. Nor does the record suggest that the warnings were "repeatedly" uttered. Simply put, the purported "reasonableness of the arresting officers" in Reasor, id., as well as the passage of time permitting minds to cool and reflect are not apparent here.

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NO. 07-09-0181-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 19, 2011

MID-CONTINENT GROUP d/b/a/ MID-CONTINENT CASUALTY & MID-CONTINENT INSURANCE, APPELLANT

KENNETH GOODE, APPELLEE

FROM THE 72^ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2006-536,112; HONORABLE RUBEN REYES, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Mid-Continent Group d/b/a Mid-Continent Casualty & Mid-Continent Insurance, appeals from a judgment entered in favor of Appellee, Kenneth Goode, in an action to recover underinsured/uninsured motorist (UIM) benefits. In support, Mid-Continent broadly presents three issues: (1) whether Goode's evidence of causation between an automobile accident and his cervical injury is legally and factually sufficient; (2) whether Goode's evidence of the reasonableness and necessity of his medical care is legally and factually sufficient; and (3) whether legally sufficient evidence supports Goode's right to recover under the UIM provisions of his policy with Mid-Continent. We affirm.

Background

On April 5, 2003, Goode's pickup was struck by another vehicle. After being struck, Goode attempted to protect and stabilize himself by holding onto the steering wheel with his left hand. During the accident investigation he told police officers that he was having trouble with his left arm and shoulder. His shoulder eventually required surgery; however, his pain persisted and in 2006 a cervical injury was diagnosed. Mid-Continent, Goode's UIM insurance carrier, disputed whether the cervical injury resulted from the 2003 accident. Unable to reach an agreement as to damages, on August 10, 2006, Goode filed this action to recover under the UIM provisions of an insurance policy issued by Mid-Continent.

Pretrial Hearings

There were three pretrial hearings in this case. At a pretrial hearing held September 14, 2007, the trial court proposed two methods of trying the case. The first method involved trying liability and damages, essentially a lawsuit against an insurance company. The second method involved treating the action like a regular automobile accident case, a lawsuit of one driver against the other. During an exchange between the parties, the following occurred:

GOODE'S COUNSEL: And [Mid-Continent's counsel] brought up a good thing. I was about to address the Court with regard to bringing the contract in, talking about the permission, talking about the underinsured issues. Do I have the burden of proving that contractual relationship, or are we just going to go straight into the PI [personal injury] case?

THE COURT: Are you contesting that?

MID-CONTINENT'S COUNSEL: I am not contesting the contract. No, I am not contesting that coverage would lie under the circumstances. Basically, we are -- [Goode's counsel] and I agree that it is a pretty simple issue. I am really not contesting liability, other than I am contesting causation, and we will kind of get into that with these experts.

THE COURT: Right. And it is just like a regular car wreck. I mean, take the insurance element out of this, as far as an underinsured claim. There was an accident. There was some injury to this part of the body. We don't think the injury to this part of the body is related, and this is why. The delay in treatment -- you know, he didn't even claim he was injured at that point, whatever. It doesn't make any difference.

One year later, during the pretrial hearing that occurred on September 19, 2008, the parties continued their discussion as to whether to try the case as a contract case or a personal injury case:

THE COURT: All right. Anything else we need to deal with, with regard to the depositions? No? Anything else we need to deal with, with regard to the Charge?

MID-CONTINENT'S COUNSEL: Judge, the only thing I have a question about is, and, we mentioned it a year ago, and I can't remember what all we've talked about, about how to try this case, and we have set it up in our Court's Charge, to try Kenneth Goode as Plaintiff, versus the driver, William Lee Harris, and try the car wreck case. We are going to admit liability. So [Goode's counsel] doesn't have to prove up anything regarding liability. It's just a damage issue case, with a credit at the end, with the stipulation from [Goode's counsel]. I think we may have done that. We probably need to do that again. The policy limits were paid at $50,000, on behalf of William Lee Harris' insurance company for -- to Mr. Goode on the original claim.

THE COURT: So you are wanting to try it as -- repeat the first part of what you told me, to make sure I've understood what you said.

MID-CONTINENT'S COUNSEL: That we are trying it as a separate or accident case, Mr. Goode against the driver that caused the accident, instead of a contract claim against Mid-Continent Insurance Company.

* * *

THE COURT: Let me help you there. Normally, in these underinsured/uninsured cases, the only issue for the jury to establish is liability and then the amount of damages. Here, the defense is apparently stipulating to liability. So the only issue is the amount of damages, okay?

* * *

THE COURT: Okay. With regard to the Charge, then, since you are going to stipulate as to liability, we are simply going to have then a question on damages, right, one-question charge on damages?

GOODE'S COUNSEL: On past and present.

MID-CONTINENT'S COUNSEL: That is right. I mean, we were going to stipulate, I think -- I mean, just to be consistent, we are going to go ahead and stipulate anyway. But we are trying a car wreck case, one party against the other. But I don't think it is going to matter. I am not going to try this case on liability. So we are going to stipulate as to liability.

THE COURT: Okay.

(Emphasis added).

A third pretrial hearing was held on the day of trial.

Trial

A jury trial of Goode's action commenced on September 22, 2008. The evidence showed that, immediately following that April 2003 automobile accident, Goode complained of pain in his shoulder.[1] His physician, Dr. Chavez, referred him to Dr. Nordyke, an orthopedic surgeon. When he initially visited Dr. Nordyke, Goode complained only of pain in his shoulder and denied any pain in his neck. After examination, Dr. Nordyke concluded from Goode's MRI scan and symptoms that he was suffering from a rotator cuff injury and SLAP tear[2] or torn cartilage to his shoulder.

In September 2003, Goode underwent surgery to repair his shoulder injury. Dr. Nordyke subsequently described the surgery as successful and anticipated that Goode's recovery would last four to six weeks. That same month, Goode was diagnosed with prostate cancer. In early October, Dr. Nordyke became concerned because Goode continued to experience pain in his shoulder. By late October, Goode's shoulder was stiff and he was at the lower end of where Dr. Nordyke expected he would be after rehabilitation or physical therapy. Thinking the radiation therapy for the prostate cancer might be affecting Goode's rehabilitation, Dr. Nordyke treated Goode with steroids for frozen shoulder or adhesive capsulitis, i.e., inflammation or tightness in the shoulder. From November 2003 through January 2004, Goode's symptoms persisted and Dr. Nordyke continued Goode's steroid treatment. In February 2004, Goode was doing much better and Dr. Nordyke released him while continuing the steroid treatments for a short period.

Thereafter, Goode continued to work even though he was experiencing pain in his shoulder. He did not return to Dr. Nordyke because he thought the pain would eventually go away and there was no one to relieve him at work.[3] In July 2005, Goode again saw his physical therapist complaining of pain in his shoulder. He also sought an impairment rating.

In December 2005, he went to see Dr. Chavez for a follow-up on his shoulder. Dr. Chavez diagnosed Goode as suffering from chronic shoulder pain and muscle atrophy. He again referred Goode to Dr. Nordyke, and, in March 2006, Goode saw Dr. Nordyke complaining, for the first time, of neck pain accompanied by numbness in his left arm with tingling sensations going down his arm. Dr. Nordyke re-evaluated Goode's shoulder and concluded that Goode had not progressed as he had expected after surgery. When Goode's shoulder x-rays looked good, Dr. Nordyke suspected that Goode's pain might be originating in his neck. He decided to look at Goode's cervical spine and ordered a new MRI scan. This MRI showed some degenerative changes in the disk and cervical spine. Dr. Nordyke put Goode on steroids and referred him to Dr. Claude Oliva, a pain management specialist, and Dr. Nevan Baldwin, a neurosurgeon.

Dr. Baldwin saw Goode in early April 2006. This time Goode complained of pain in the base of his neck and, when he was in certain positions, his neck would lock up. When Dr. Baldwin reviewed Goode's MRI results, he observed a problem at the C-6, C-7 level of Goode's spine. He ordered another MRI which confirmed that there was a narrowing of the disk at that level. Dr. Baldwin concluded that Goode had a ruptured or bulging cervical disk--cervical radiculitis.

At trial, Dr. Nordyke opined that Goode injured his neck at the same time he injured his shoulder, i.e., Goode's cervical disk was also injured in the April 2003 accident. In retrospect, looking back at Goode's medical records since the accident, Dr. Nordyke testified that he probably missed Goode's neck injury because he believed that Goode's lack of progress during rehabilitation in 2003 and early 2004 was due to his prostate cancer and radiation treatment coupled with the steroid therapy which "calmed down [Goode's] cervical radiculitis." He testified that Goode's symptoms from May 2003 until April 2006 were consistent with having a herniated disk because Goode was experiencing shoulder pain continuously throughout the period despite a successful operation repairing his rotator cuff and SLAP tear. Dr. Nordyke testified that an article from a respected medical textbook indicated that the condition of having a frozen shoulder or adhesive capsulitis was "highly associated" with also having cervical radiculitis or a herniated disk. He further testified that in his normal practice, ten to fifteen percent of his patients experience no pain with a cervical disk problem.[4]

Dr. Baldwin agreed with Dr. Nordyke that Goode's symptoms of a cervical spine injury arose at the time of the accident and persisted since that time. He also agreed with Dr. Nordyke that Goode could have injured his disk in the accident without exhibiting symptoms. Dr. Baldwin testified that one of the very frequent presentations of a C-6, C-7 herniation[5] is that the pain goes right along the inner edge of the shoulder blade. He further stated that "just if you touch along the tips between the shoulder blade and the spine, they get pain and tenderness in that area, and sometimes coming out toward the shoulder. And then, as things progress, this symptom gets a little worse, and then they have the tingling in the hand and so forth."

Dr. Baldwin testified that Goode's cervical disk problems could have been caused by the accident, or they might have already been present and merely advanced over the course of the following years.[6] He further opined that, regardless whether or not Goode suffered from degenerative spine conditions prior to the accident, it was possible the accident either exacerbated a pre-existing condition or caused the condition. He testified x-rays and MRIs "really do not describe any significant degenerative changes" and "couldn't say one way or the other whether the spurs found in Goode were caused by the April 2003 auto accident."

Dr. James Burke, an orthopedic surgeon, testified as Mid-Continent's expert. According to his testimony he saw nothing in Goode's records to indicate that he had problems with his neck at the time of the accident. In support, he asserted there was no indication Goode complained of neck pain from April 2003 until April 2006 and observed that, in his opinion, Goode's degenerative changes would not likely have been caused by trauma. Rather than suffering from frozen shoulder or adhesive capsulitis after surgery, Dr. Burke opined that Goode suffered from postoperative stiffness. In addition, he testified Goode suffered from spondylosis, a generic term equivalent to degenerative changes in the spine. He disagreed with Dr. Nordyke's opinion tying Goode's cervical problems to the 2003 accident because Dr. Nordyke had previously noted that Goode was negative for neck problems. He also disagreed whether a C-6, C-7 issue could cause Goode's shoulder pain because he opined such problems are usually associated with the C-5 or C-6 nerve root. He opined that, had the accident exacerbated Goode's symptoms, either from a pre-existing neck condition or had caused the problems that eventually led to the deterioration of Goode's neck, such an injury would have been "evidence[d] by the examination and questioning of Dr. Nordyke at some period more temporal to the injury." As a result, he concluded that "the car accident of April 5, 2003, did not cause Goode's current disc and cervical problems."[7]

On cross-examination Dr. Burke did concede that it was "possible" that adhesive capsulitis or frozen shoulder could occur as a result of a minor trauma to the shoulder. He further opined that it was unusual for Goode to still be having shoulder pain in January 2004, approximately three months after surgery. He testified that, like Dr. Nordyke, he too had seen a fair number of patients with shoulder pain having problems with their neck, but complaining of no neck pain. He had also treated persons with ruptured cervical disks that didn't have neck pain and agreed with Dr. Nordyke that "the two can be confused." He also agreed that the diagnosis of adhesive capsulitis can be associated with cervical radiculitis; but, in his opinion, that this was not the case with Goode. He testified Goode had "a stiff and sore shoulder or adhesive capsulitis, following a shoulder surgery which is completely different entity from frozen shoulder or adhesive capsulitis, as it presents without shoulder surgery." Finally, he testified that it was "possible" that the collision in question could have turned the situation with regard to Goode's neck from asymptomatic to symptomatic.

At the trial's conclusion, a single question on the issue of damages was submitted to the jury.[8] In nine subquestions pertaining to individual elements of damage, the jury returned a verdict totaling $289,362.43.[9] In post-verdict proceedings, the trial court denied Mid-Continent's motion to disregard the jury's findings and, after applying stipulated credits for sums previously paid and adding pre-judgment interest, entered a judgment in favor of Goode for $244,467.58, plus court costs and post-judgment interest at the rate of 5% compounded annually from March 6, 2009. This appeal followed.

Discussion

Mid-Continent asserts Goode's evidence in support of a causal connection between the accident and his cervical condition was legally and factually insufficient. Mid-Continent also asserts that Goode's evidence in support of his medical expenses is legally insufficient because it fails to establish the necessity of the services or the reasonableness of the charges. Lastly, Mid-Continent contends Goode's evidence that Mid-Continent breached its insurance contract with Goode was legally insufficient.

Standard of Review--Legal and Factual Sufficiency

When both legal and factual sufficiency challenges are raised on appeal, the reviewing court must first examine the legal sufficiency of the evidence. See Glover v. Tex. Gen. Indemnity Co., 619 S.W.2d 400, 401 (Tex. 1981). In conducting a legal sufficiency review, we must consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that supports the verdict, City of Keller v. Wilson, 168 S.W.3d 802, 821-22 (Tex. 2005); crediting favorable evidence if reasonable jurors could, while disregarding contrary evidence unless reasonable jurors could not. Id. at 827. A challenge to the legal sufficiency will be sustained only when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence, or (d) the evidence conclusively establishes the opposite of the vital fact in question. Id. at 810; King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030,124 S.Ct. 2097, 158 L. Ed. 2d 711 (2004). In addition, so long as the evidence falls within the zone of reasonable disagreement, we may not invade the fact-finding role of the jurors, who alone determine the credibility of witnesses, the weight to be given their testimony, and whether to accept or reject all or a part of their testimony. City of Keller, 168 S.W.3d at 822.

In reviewing factual sufficiency, the reviewing court must consider, examine, and weigh the entire record, considering both the evidence in favor of, and contrary to, the challenged findings. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998). In doing so, the court no longer considers the evidence in the light most favorable to the finding; instead, the court considers and weighs all the evidence, and sets aside the disputed finding only if it is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id. at 407; Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

Causation

"[A]t trial the plaintiff must establish two causal nexuses in order to be entitled to recovery: (a) a causal nexus between the defendant's conduct and the event sued upon; and (b) a causal nexus between the event sued upon and the plaintiff's injuries." Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). Only the second nexus is at issue here.

To meet the legal sufficiency standard in a personal injury case, plaintiffs are required to adduce evidence of a "reasonable medical probability" or "reasonable probability" that their injuries were caused by the negligent act, meaning simply that it is "more likely than not" that the ultimate harm or condition resulted from the negligent act. Jelinek v. Casas, 328 S.W.3d 526, 532-33 (Tex. 2010). "[R]easonable medical probability can be based on the evidence as a whole, and it is not absolutely necessary that an expert couch his or her opinion in terms of reasonable medical probability." Rehabilitative Care Systems of America v. Davis, 43 S.W.3d 649, 661 (Tex.App.--Texarkana 2001), pet. denied, 73 S.W.3d 233 (Tex. 2002) (citing Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988). Although a medical expert may not base his or her opinion on "mere conjecture, speculation, or possibility," Rehabilitative Care Systems, 43 S.W.3d at 663 (citing Bradley v. Rogers, 879 S.W.2d 947, 953-54 (Tex.App.--Houston [14th Dist.] 1994, writ denied)), the expert may appropriately testify concerning possible causes of plaintiff's condition in order to assist the jury in evaluating other evidence of causation. Id.

Analysis

As to Mid-Continent's first issue, we must examine the record to determine whether Goode presented legally and factually sufficient evidence to establish that "in reasonable medical probability" the accident in question caused Goode's cervical condition.

Goode testified at trial that prior to the accident he had no problems with his neck or his shoulder. Immediately after the automobile accident he was diagnosed with a shoulder injury and within three years he was experiencing chronic shoulder pain which continued to the present at the time of trial. Both Drs. Nordyke and Baldwin agreed that the absence of neck pain at the time of the accident did not necessarily exclude the possibility that Goode's neck injury occurred at that time. Furthermore, Dr. Baldwin testified that a very common presentation of a C-6, C-7 herniation is that the pain runs along the inner edge of the shoulder blade which sometimes radiates over the shoulder, indicating that neck injuries can often present themselves as shoulder pain.

Both Drs. Nordyke and Burke testified that Goode's frozen shoulder or adhesive capsulitis was associated with having cervical radiculitis or a herniated disk and Dr. Nordyke relied on an article in a medical textbook to show that the medical community recognized these symptoms as being "highly associated." While Dr. Nordyke opined that Goode's shoulder pain following successful surgery indicated the possibility of a cervical injury, Dr. Burke opined that Goode's stiffness following surgery was a postoperative condition caused by the surgery and not the accident. Dr. Burke also testified that adhesive capsulitis could occur as the result of minor trauma to the shoulder and that a collision, such as the collision in question, could have turned a neck problem from asymptomatic to symptomatic.

While Dr. Burke's opinion that Goode's current disk problems were not caused by the accident in question was based on Dr. Nordyke's failure to identify a neck injury shortly after the accident, Dr. Nordyke testified that he may have missed the diagnosis due to Goode's prostate cancer and radiation treatment. Dr. Nordyke also testified that Goode's steroid therapy would have quieted any cervical issue in addition to treating the inflammation in his shoulder. Dr. Nordyke testified that it was not until Goode visited him in April 2006 complaining of a tingling sensation in his fingers and pain in his arm that he came to suspect that Goode had also injured his neck in the accident.

Mid-Continent asserts that Goode's evidence of causation is predicated solely on Dr. Nordyke's reference to an article in a medical textbook.[10] We disagree. Reasonable medical probability can be based on the evidence as a whole. Rehabilitative Care Systems, 43 S.W.3d at 663 (citing Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988)).

Mid-Continent also contends that Dr. Nordyke's opinions lack probative value because he ignores the fact that Goode's MRI evidences no abnormalities at C-5 and he disregards the absence of temporal proximity between the accident and the onset of neck pain. In that regard, Dr. Burke testified that neck problems are usually related to the C-5 or C-6 nerve root while Dr. Baldwin testified that his second MRI confirmed a narrowing of Goode's disc at the C-6, C-7 level. Furthermore, Dr. Baldwin recognized that Goode had degenerative changes in his spine in the 2006 MRIs but opined that he believed the accident either caused or exacerbated whatever degenerative processes Goode was experiencing in the following years. Dr. Baldwin also testified that Goode's x-rays and MRIs did not describe any significant degenerative changes and, because the changes occurred in a single level, Goode's x-rays and MRIs indicate or hint that, at some point, there was a concentration of force, or injury at that level.[11] Accordingly, Dr. Nordyke does not ignore the cervical abnormalities, he simply disagrees with Dr. Burke that degenerative changes were the cause of Goode's neck pain in 2006. As to the question of temporal proximity, although there was a three year span between the accident in 2003 and Goode's complaint of neck pain in 2006, Dr. Nordyke's opinion evidence closed the gap by establishing the medically-recognized association between a shoulder and neck abnormality, Goode's failure to fully recover after a successful reparation of his shoulder issues, and Goode's chronic shoulder pain during the entire period. Both Drs. Nordyke and Baldwin testified that Goode exhibited symptoms of cervical radiculitis from the date of the accident forward. Dr. Nordyke testified that he failed to diagnose the neck issue earlier because of Goode's diagnosis of prostate cancer and his steroid treatment not only masked the pain in Goode's shoulder but also any issues with his neck. Although evidence of temporal proximity is relevant to the issue of causation, the absence of temporal proximity does not exclude causation any more than the presence of temporal proximity, by itself, establishes medical causation. See Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex. 2007). Thus, the fact that Goode's neck issues did not present themselves until three years after the accident, by itself, does not render Dr. Nordyke's or Dr. Baldwin's opinions speculative or conjecture as a matter of law.

In the final analysis, Goode's experts, Drs. Nordyde and Baldwin, simply disagreed with Mid-Continent's expert, Dr. Burke, on a number of issues. The resolution of conflicts in opinion is best left to the finders of fact. See City of Keller, 168 S.W.3d at 822; Cantu v. Pena, 650 S.W.2d 906, 909-10 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.). In this case, those conflicts were simply resolved by the jury in Goode's favor. Based upon the record, we cannot say that the evidence that Goode suffered a cervical injury as a result of the accident is so weak as to do no more than create a mere surmise or suspicion of fact. Nor can we say the jury's implied finding to that effect is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. See generally Rehabilitative Care Systems, 43 S.W.3d at 663; Cantu, 650 S.W.2d at 910. Mid-Continent's first issue is overruled.

Medical Expenses

By its second issue, Mid-Continent challenges a portion of the jury's award for past and future medical care. In doing so, it challenges the legal sufficiency of the evidence establishing the necessity of the care and the reasonableness of the associated expense. Specifically, it challenges $7,474.89 of the $37,188.25 awarded for past medical expenses[12] and all of the $59,094.18 awarded for future medical expenses. Mid-Continent contends the verdict lacks the support of legally sufficient evidence because expert proof of reasonableness and necessity is missing. We disagree.

Past Medical Expenses

As to past medical expenses, in both the opening and closing statements to the jury, Mid-Continent's counsel asserted that past medical expenses associated with Goode's shoulder injury were proper and should be awarded.[13] Immediately following opening statements Goode's counsel tendered numerous exhibits, including an exhibit entitled Summary of Damages, in support of his claim for damages: $37,188.25 for total past medical care and $59,094.18 for total future medical care.[14] When asked by the trial court whether Mid-Continent had any objection to the admission of these exhibits, Mid-Continent's counsel replied, "No objection, Your Honor."[15] Although he does not specifically identify during closing arguments what expenses his $36,000 reference was intended to identify, a review of the record indicates that the only reasonable reference would be to the $37,188.25 for past medical care identified in the Summary of Damages, previously introduced without objection.

Thus, having stipulated to the admission of Goode's trial exhibit evidencing his past medical expenses and prospective charges for future medical services; see Tex. R. Civ. P. 11 (providing that agreements made between parties are enforceable if made in open court and entered of record); Bufkin v. Bufkin, 259 S.W.3d 343, 355 (Tex.App.--Dallas 2008, pet. denied), and having agreed that Goode's claim for past medical care was "proper" and "legitimate," Mid-Continent will not now be heard to contest the jury's finding as to that element of Goode's damages. Mid-Continent's "stipulation is a binding contract between the parties and the court, serves as proof on an issue that would otherwise be tried, is conclusive on the issue addressed, and estops the parties from claiming to the contrary." Solares v. Solares, 232 S.W.3d 873, 883 (Tex.App.--Dallas 2007, no pet.) (citing Houston Lighting & Power Co. v. City of Wharton, 101 S.W.3d 633, 641 (Tex.App.--Houston [1st Dist.] 2003, pet. denied)). Accordingly, the jury's finding as to past medical care is supported by legally sufficient evidence.

Future Medical Expenses

As to future medical expenses, Texas follows the "reasonable probability" rule. Fisher v. Coastal Transport Co., 149 Tex. 224, 228-29, 230 S.W.2d 522, 524 (1950); Bituminous Cas. Corp., 223 S.W.3d 485 (Tex.App.--Amarillo 2006, no pet.); Hughett v. Dwyre, 625 S.W.2d 401 (Tex.App.--Amarillo 1981, writ ref'd n.r.e.). Adhering to that rule, Texas courts have consistently held that the award of future medical expenses is a matter primarily for the jury to determine. No precise evidence is required and the jury may base its award upon the nature and extent of the injuries, the progress toward recovery of the injured party under the treatment already provided, the reasonable cost of medical care rendered in the past, and the physical condition of the injured party at the time of trial. Edens-Birch Lumber v. Wood, 139 S.W.2d 881, 887 (Tex.Civ.App.--Beaumont 1940, dism'd judg. corr). See also Ibrahim v. Young, 253 S.W.3d 790, 808-09 (Tex.App.Eastland 2008, pet. denied); Bituminous Cas. Corp., 223 S.W.3d at 490-91. Nonetheless, a plaintiff seeking recovery for future medical expenses must show there is a reasonable probability that medical expenses resulting from the injury will be incurred in the future and the reasonable costs of such care. Bituminous Cas. Corp., 223 S.W.3d at 490. Here, Dr. Baldwin, the neurosurgeon, testified of Goodes need for surgery, and Goode introduced evidence of its likely cost.

Under the record in this case, we conclude that the evidence was legally sufficient to support the submission of the issue regarding the amount of medical expenses that, in reasonable probability, Goode would incur in the future. Furthermore, we conclude that the evidence is legally sufficient to support the jury's answer to that issue. Accordingly, Mid-Continent's second issue is overruled.

Breach of Contract

Mid-Continent next asserts that the record is devoid of any evidence in support of a requisite element of Goode's breach of contract claim because Goode failed to proffer evidence of Mid-Continent's policy provisions permitting recovery. A plaintiff seeking recovery against an insurance company for injuries resulting from the negligence of an uninsured/underinsured motorist must plead and prove that, at the time of the accident, the plaintiff was protected by UIM coverage. Mid-Century Ins. Co. v. McLain, No. 11-08-0097-CV, 2010 Tex.App. LEXIS 1719, at *5 (Tex.App.--Eastland March 11, 2010, no pet.) (mem. op.). Having reviewed the record, supra, we find that Mid-Continent stipulated to liability during pretrial proceedings. See Tex. R. Civ. P. 11. Furthermore, by agreement, the case was tried as an automobile accident case with a single issue pertaining to damages caused by the accident. Because Mid-Continent stipulated to liability on the insurance contract, Goode was not required to offer proof on that issue, and Mid-Continent is barred from disputing it. Solares, 232 S.W.3d at 883; Hansen v. Academy Corp., 961 S.W.2d 329, 335 (Tex.App.--Houston [1st Dist.] 1997, pet. denied). Accordingly, the parties' stipulation is sufficient evidence of Mid-Continent's liability pursuant to its insurance contract. Mid-Continent's third issue is overruled.

Conclusion

The trial courts judgment is affirmed.

Patrick A. Pirtle

Justice

[1]Goode testified that he had no problems with his shoulder or neck prior to the accident,.

[2]A SLAP tear is an injury to a part of the shoulder joint. It is an acronym for Superior Labrum from Anterior to Posterior.

[3]Goode is a contract lease operator for a petroleum company. As such, he was required to single-handedly take care of production and perform minor maintenance on numerous oil wells.

[4]Dr. Nordyke practices arthroscopic and sports medicine surgery. He specializes in upper extremity issues and does "quite a bit of shoulder work."

[5]Dr. Baldwin described Goode's ruptured or bulging disk as a condition that develops over a long period of time. He testified that, when the disk is injured, "if it's torn, for example, and ruptures over the course of time, typically, the disk will lose its water content, and as it does so, the water keeps it kind of spongy and soft and lets the disk perform its natural function to be our body's shock absorber. When the disk loses its water content, it becomes more firm, it loses its sponginess and will lose its height. The bones come closer together as the disc height is lost. And associated with that, usually, is some bone spur formation and some other changes which were seen in Mr. Goode's MRI." He testified "[t]hose changes [in Goode's spine] oftentimes are long--long-standing, and so they could have actually been there at the time of the accident. And, because it was after the accident, when we first saw the patient, and it was years before they first--to my knowledge, anyway, the first MRI was obtained, those changes could have been initiated at the time of the accident, and they could have advanced over the course of the following years. . . ."

[6]Dr. Baldwin testified that Goode's second MRI confirmed there was a narrowing of the disk at the C-6, C-7 level at the opening on the side of the spine where the nerve exits to go down the arm, the seventh root coming down from the top of the left side of the spine.

[7]Dr. Burke did agree that Goode's shoulder was injured in the April 2003 automobile accident.

[8]Question 1 stated "[w]hat sum of money, if paid now in cash, would fairly and reasonably compensate Kenneth Goode for his injuries, if any, that resulted from the occurrence in question?"

[9]The jury's award included: $25,000 for past physical pain, $25,000 for future physical pain, $58,080 for future loss of earning capacity, $4,000 for disfigurement, $6,000 for future disfigurement, $25,000 for past physical impairment, $50,000 for future physical impairment, $37,188.25 for past medical expenses, and $59,094.18 for future medical expenses.

[10]To the extent Mid-Contintent challenges the reliability of Dr. Nordyke's textbook reference as a basis for his opinion, Mid-Continent failed to object to the evidence when it was offered at trial. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 410 (Tex. 1998) ("To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence was offered.") "Without a timely objection to the reliability of the scientific evidence, the offering party is not given an opportunity to cure any defect that may exist, and will be subject to trial and appeal by ambush." Id. at 409 (citing Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066-67 (9th Cir. 1996), cert. denied, 519 U.S. 1108, 117 S. Ct. 942, 136 L. Ed. 2d 831 (1997)). Although Mid-Continent tested Dr. Nordyke's credentials as an expert by objection prior to trial, Mid-Continent did not object to this evidence at trial.

[11]Dr. Baldwin also testified that he had no basis to dispute Dr. Nordyke's opinion that Goode had cervical spine and shoulder problems since the accident and Goode's cervical spine abnormality was largely masked by his shoulder symptoms. Dr. Baldwin testified that, given Dr. Nordyke's expertise on shoulder issues, he completely deferred to Dr. Nordyke's opinion on the matter.

[12]Mid-Continent challenges the past medical expenses for services provided by Dr. Nordyke ($4,968.89), ASLAN ($156.00), Dr. Strahan ($1,230.00), Dr. Mould ($780.00), and NWTX Imaging Associates, P.A. ($340.00). Although acknowledging that evidence of these amounts were introduced into evidence, Mid-Continent argues that "none of the foregoing exhibits [are] probative of reasonable and necessary medical-care expense because such statements, standing alone, do not 'constitute evidence of probative force that the charges are reasonable.'" (Citation to internal quotation omitted).

[13]In his opening statement, Mid-Continent's counsel said, "It's not the damages to the shoulder. Doesn't have anything to do - those - those are proper damages." In his closing statement he said, "I will tell you right now that the 36,000 for the shoulder repair is absolutely legitimate, and we have no objection to that. We told you very early on that that was not a problem, and you should award that, because that is legitimate."

[14]Ultimately, the jury accepted this summary and awarded these damages - to the penny.

[15]At the September 19, 2008, pretrial hearing held less than a week before trial, Mid-Continent's counsel represented that Mid-Continent stipulated to the admissibility of all plaintiff's trial exhibits with the exception of a letter from Dr. Baldwin to Goode's counsel. At that hearing, the following exchange occurred:

GOODE'S COUNSEL: I believe this is the same issue that was brought up in their Daubert challenge, and that you have already ruled on the contents of the letter and deemed it admissible. Beyond that one issue, I think we are in agreement on everything else that I have proffered as evidence. Is that correct?

MID-CONTINENT'S COUNSEL: Yes, sir. That is our understanding as well.

GOODE'S COUNSEL: Which is inclusive of past medical and future medical and the manner in which they will be introduced through exhibits.

THE COURT: Okay. With regard to your exhibits, do we have an exhibit list? Is that in one of these books?

* * *

THE COURT: [Mid-Continent's counsel], when [Goode's counsel] refers to all exhibits, except one, it appears that you-all have an agreement as to the admissibility thereof. Do you know what he is talking about? Is that accurate? Can I accept that as a stipulation?

MID-CONTINENT'S COUNSEL: Yes, sir; as far as the medical that he referred to earlier, the medical affidavits, medical records, so on and so forth, I believe that those are essentially the exhibits that we are talking about and the exhibits that we would use at trial, which we have stipulated as to admissibility.

Adam Grimaldo v. State

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