in Re Heritage Oaks Retirement Village

In re Heritage Oaks REtirement Village

IN THE

TENTH COURT OF APPEALS

No. 10-03-138-CV

IN RE HERITAGE OAKS RETIREMENT VILLAGE

Original Proceeding

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Heritage Oaks Retirement Village seeks to protect from discovery the opinions of Dr. William Tompkins. Dr. Tompkins has given a report regarding a third-party defendant which Heritage Oaks, as a third-party plaintiff, used to meet the requirements of article 4590i, regarding duty and causation in a medical malpractice case, by providing it to that third-party defendant. Tex. Rev. Civ. Stat. Ann. art. 4590i § 13.01(d) (Vernon Supp. 2003). Heritage Oaks has now dismissed their claims against the third-party defendant and has designated Dr. Tompkins as a consulting expert.

      The real-parties-in-interest, plaintiffs, seek to depose Dr. Tompkins. They are now directly asserting claims against the third-party defendant who was dismissed by Heritage Oaks and who was the subject of Dr. Tompkin’s 4590i report.

      In Hardesty, the Relator had used the affidavit of an expert in opposition to a motion for summary judgment. Hardesty v. Douglas, 894 S.W.2d 548 (Tex. App.—Waco 1995, orig. proceeding). Subsequently the Relator sought to use the consulting expert exemption from discovery to prevent the discovery of the expert’s opinions. A majority of this Court held that the expert’s opinions were not exempt from discovery. Hardesty, 894 S.W.2d at 551.

      We do not believe the situation presented in this mandamus is materially different than that presented in Hardesty. Accordingly, the Petition for Writ of Mandamus is denied.

      The stay imposed by a prior order of this court is lifted.

 

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Writ Denied

Stay Lifted

Opinion delivered and filed May 28, 2003

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mes";mso-no-proof:yes'> v.

 

The State of Texas,

                                                                      Appellee

 

 

 

From the 18th District Court

Johnson County, Texas

Trial Court # F37020

 

MEMORANDUM  Opinion

 

          Delman Wesley Ball was convicted by a jury of felony evading arrest with a motor vehicle.  Tex. Pen. Code Ann. § 38.04 (Vernon 2003).  The trial court set punishment at twenty months’ confinement.  Ball argues on appeal that photographs and a videotape offered by the State lacked a proper predicate and should not have been admitted into evidence.  We will affirm the judgment.

BACKGROUND

          The arresting officer testified that he was on patrol in a marked police car when he observed a blue Oldsmobile fail to properly signal a turn.  Deciding to effectuate a traffic stop, the officer flipped the switch that activated the police car’s overhead lights, “wig-wag” front headlights, and the on-board video camera.  After the driver failed to stop after turning onto the next street, the officer gave two short bursts with his siren and used his side spotlight to signal the driver.  The driver continued down the street and turned onto another street.  The officer activated his siren.  The driver accelerated, ran a stop sign, and turned twice more before stopping.  The officer then arrested Ball, the driver of the vehicle.

          Ball argues that the trial court erred in admitting two photographs of Cleburne Police Department marked patrol units because a proper predicate had not been established.  We review a trial court's ruling on authentication issues under an abuse of discretion standard.  Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998).  Texas Rule of Evidence 901 governs the authentication requirement for the admissibility of evidence.  Reavis v. State, 84 S.W.3d 716, 719 (Tex. App.—Fort Worth 2002, no pet.).  Rule 901 provides that authentication or identification of items offered into evidence "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."  Tex. R. Evid. 901(a).

          Ball specifically complains that the photographs did not depict the actual patrol car used on the date of the offense.  However, the record reflects that the State was claiming only that the vehicles in the photographs were similar to the patrol unit driven by the officer on the date of the offense.  The officer testified that the vehicles in the photographs were similar to the vehicle he was driving on the date of the offense and testified that all Cleburne Police Department sedan patrol units were similar to one another.  The officer’s testimony provided sufficient evidence to support a finding that the photographs were what the State claimed they were.  Thus the trial court did not abuse its discretion in finding that the photographs were properly authenticated.

          Ball argues that the trial court erred in admitting a videotape of the offense because the tape was not properly authenticated.  Videotapes are considered in the same manner as photographs.  Reavis, 84 S.W.3d at 719; Williams v. State, 82 S.W.3d 557, 563 (Tex. App.—San Antonio 2002, pet. ref’d).  Thus the requirements for authentication can be met by the testimony of a witness with knowledge that sufficiently establishes that a matter is what it is claimed to be.  Ballard v. State, 23 S.W.3d 178, 182 (Tex. App.—Waco 2000, no pet.).

          Ball specifically complains that the State did not establish that the videotape was the actual recording made on the date of the offense.  However, the officer testified that he had reviewed the videotape and that the tape was a true and accurate copy of the recording he had made at the time of the offense.  Thus the requirements for authentication were met and the trial court did not abuse its discretion in admitting the videotape.

CONCLUSION

          Finding no abuse of discretion in admitting either the photographs or the videotape, we overrule the issues and affirm the judgment.

 

BILL VANCE

Justice

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed March 30, 2005

Do not publish

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