IN THE
TENTH COURT OF APPEALS
No. 10-98-257-CR
RICKY LYNN SMITH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 87th District Court
Freestone County, Texas
Trial Court # 97-062-CR
CONCURRING OPINION
I concur in the judgment. I concur in the analysis of section B-2 as not being ineffective, section B-3(a) as being improper argument, B-3(b) as not being ineffective and B-3(c) as not being ineffective. I do not concur with the analysis in section B-1 as being ineffective, section B-3(b) as being ineffective, and B-3(d) as being ineffective. If there was ineffective assistance of counsel, I concur in the harm analysis of section C.
With regard to section B-1, I cannot elevate an “unwritten rule on cross-examination” to the level if violated, it is per se ineffective assistance of counsel. The record does not demonstrate what counsel thought the answer would be or why the question was asked. In retrospect it looks like a bad decision to have asked the question, but the record does not overcome the strong presumption of the effectiveness of counsel and that it could have been a matter of trial strategy that did not work out as planned.
Likewise, the decision not to object to counsel’s argument, discussed in sections B-3(b) and (d), may have been a matter of trial strategy. This possibility is not overcome by the record before us.
With these comments, I concur in the judgment.
TOM GRAY
Justice
Concurring opinion delivered and filed March 14, 2001
Do not publish
p. 1992). Under our view of the proper application of the comparative negligence statute and the Tort Claims Act to these facts, as we will discuss, we need not determine whether Cherie had a claim against Stephen. Consequently, we assume, without deciding, that she did.
The Texas Tort Claims Act limits the State's liability for damages to any one person to $250,000. See id. at § 101.023 (Vernon 1986). The State's right of contribution from Stephen arose out of section 33.016 of the Civil Practice and Remedies Code, which provides that a party may seek contribution from a "contribution defendant," one who is liable for the claimant's damages but from whom the claimant seeks no relief at the time the case is submitted to the trier of fact. See id. at § 33.016(a) (Vernon Supp. 1992). Thus, the State properly asserted a claim for contribution against Stephen and caused his percentage of responsibility to be determined by the jury. See id. at § 33.016(a), (b). When the court considered what judgment to enter based on the jury's findings, the State's position was that the limitation of liability imposed by the Tort Claims Act should be applied before the percentages of comparative responsibility were applied, i.e., limit Cherie to a $250,000 recovery, then allow the State to recover contribution from Stephen for one-half that amount. See id. at §§ 33.016(d), 101.023 (Vernon Supp. 1992 and Vernon 1986).
The El Paso Court of Appeals, in University of Texas at El Paso v. Nava, stated:
The sole question presented on this appeal is whether, in a proper case, the monetary limitation of liability for damages for personal injury contained in the Texas Tort Claims Act should by applied to the total amount of a plaintiff's damages before the application is made of the comparative negligence percentage against the plaintiff's damages.
University of Texas at El Paso v. Nava, 701 S.W.2d 71, 71 (Tex. App.-El Paso 1985, no writ). Nava sued the University for damages arising out of an automobile collision. The jury found each party to be fifty percent negligent and found Nava's damages to be $160,000. The court entered judgment in Nava's favor for $80,000. On appeal, the University contended that the judgment should have been for one-half of $100,000, the then-existing limit on the State's liability. In affirming the judgment, the El Paso court said:
The purpose of the Texas Tort Claims Act is not to apportion damages according to fault, but, instead, to provide a limited waiver of the state's sovereign immunities. . . . The money damages resulting from [the University's] negligence . . . does not exceed the $100,000.00 limit set by the legislature, so no further reduction need be made.
Id. at 72.
Section 33.015 of the Civil Practice and Remedies Code, which provides for contribution among jointly and severally liable defendants, provides for a right of contribution from other defendants who are jointly and severally liable, when one defendant "pays a percentage of the damages . . . greater than his percentage of responsibility." Tex. Civ. Prac. & Rem. Code Ann. § 33.015(a) (Vernon Supp. 1992). Section 33.016, on the other hand, provides for a right of contribution from a defendant who is not liable jointly and severally to the claimant and whose percentage of negligence is determined for contribution purposes only. Id. at § 33.016. The State apparently believes that, because section 33.016 does not use the language "pays a percentage of the damages . . . greater than his percentage of responsibility," contribution defendants should be treated differently in the context of the Tort Claims Act. Such an interpretation could result in different judgments being entered in cases which are identical except for the single fact that a claimant chose not to sue a party for some reason. We do not believe that such an interpretation was intended by the Legislature. We agree with the analysis of the El Paso Court of Appeals and believe that the same rationale should be applied to the State's claim for contribution from Stephen. See University of Texas at El Paso, 701 S.W.2d at 72. Thus, the court properly applied the limitation of the Tort Claims Act to Cherie's damages of $5,750,000 and rendered judgment against the State for the maximum of $250,000. See Tex. Civ. Prac. & Rem. Code Ann. § 101.023 (Vernon 1986). Because the State would never be required to pay more of Cherie's damages than its percentage of responsibility dictated, it could not recover a judgment against Stephen for contribution. See University of Texas at El Paso, 701 S.W.2d at 72. We overrule point one.
In points two and three, the State contends that the court erred in granting Stephen's motions for a new trial and severance after it entered judgment in favor of Cherie. It bases these contentions on its assertion that the granting of a new trial and severance effectively deprived the State of its right to contribution. Although the State asserted a "counterclaim" against Stephen, the pleading sought only contribution from him, not an affirmative recovery of damages to the State's property. The order granting a severance specified that "the cause of action asserted by Stephen Cotner against State Department of Highways and Public Transportation" was severed. Because no new trial was granted on the State's claim against Stephen for contribution, because our disposition of point one shows that the State's claim for contribution from Stephen for Cherie's damages was not affected by the granting of the new trial or the severance, and because the granting of a motion for new trial is generally an interlocutory, non-appealable order, we overrule points two and three. See Cummins v. Paisan Const. Co., 682 S.W.2d 235, 236 (Tex. 1984).
We affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed February 26, 1992
Publish
Right of the State to Recover over against Contribution Defendant
for Comparative Negligence Capped by Tort Claim Act
Selected Percentages and Damages
Claimant's Judgment State's Judgment vs
Total Against State Liability Contribution
Damages Damages (% of Neg) Defendant
State 50%-Contribution Defendant 50%:
100 100 50 50
200 100 100 100
250 250 125 125
300 250 150 100
400 250 200 50
500 250 250 0
500+ 250 >250 0
State 60%-Contribution Defendant 40%:
100 100 60 40
200 20 120 130
250 250 150 100
300 250 180 70
400 250 200 50
500 250 300 0
500+ 250 >300 0
State 40%-Contribution Defendant 60%:
100 100 40 60
200 200 80 120
250 250 100 150
300 250 120 130
400 250 160 90
500 250 200 50
600 250 240 10
625 250 250 0
626+ 250 >250 0