Michelle Renae Griffin v. State

Michelle Renae Griffin v. State

IN THE

TENTH COURT OF APPEALS

No. 10-02-145-CR

     MICHELLE RENAE GRIFFIN,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the County Court at Law

Coryell County, Texas

Trial Court # 01-50062

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      A jury found Michelle Renae Griffin guilty of driving while intoxicated. The jury assessed punishment at three days in jail and a $200 fine. Pursuant to a recommendation from the jury, the trial court suspended Griffin’s confinement sentence and placed her on community supervision for two years. We dismiss Griffin’s appeal because she signed a waiver of her right to appeal.

      Griffin’s case was tried over two days; that being April 29, 2002 and May 1, 2002. Sentencing was scheduled for May 2, 2002. The trial court placed Griffin on community supervision and signed a “Misdemeanor Probation Order.” On a separate page from the order, Griffin signed a document acknowledging her receipt of the conditions of community supervision. In this document, Griffin also waived her right to appeal. Directly under the waiver, Griffin placed her signature and a thumbprint. The next day, Griffin filed a notice of appeal.

      A defendant in a criminal prosecution for any offense, except in a capital felony case, may waive any rights secured by law. Tex. Code Crim. Proc. Ann. art. 1.14(a) (Vernon Supp. 2003). This includes the right to appeal. Hill v. State, 929 S.W.2d 607, 608 (Tex. App.—Waco 1996, no pet.). A knowing and intelligent waiver of the right to appeal, whether negotiated or not, is binding on a defendant and prevents her from appealing any issue in the cause without the consent of the trial court. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003); Hill, 929 S.W.2d at 608. And no attack on a waiver will be entertained in the absence of factual allegations supporting the claim that the waiver was involuntary or coerced. Ex parte Tabor, 565 S.W.2d 945, 946 (Tex. Crim. App. 1978)(citing Ex parte Hogan, 556 S.W.2d 352, 353 (Tex. Crim. App. 1977)).

      Griffin’s waiver was signed the same day as the trial court signed the misdemeanor probation order. There is nothing in the record that would indicate the waiver was not knowingly and intelligently made. Griffin has not tried to disavow her waiver. She has also not shown that the trial court gave her permission to appeal. Thus, we conclude her waiver is valid and binding. Griffin is prevented from bringing this appeal.

      We dismiss Griffin’s appeal on the ground she is prevented from appealing by her waiver of her right to appeal.

 

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Dismissed

Opinion delivered and filed May 21, 2002

Do not publish

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the planer with one hand and the wood with the other, Lewis could not think of any other way to plane the small wood pieces.  Allison concurred with Lewis’s method and did not think it was dangerous or improper.  After the fact, Lewis realized that using the planer that way was dangerous.

Woods testified that it was important to train employees in the use of tools.  Woods was familiar with using the planer and the danger of planing small pieces of wood; he knew that a jig should be built and used to securely wedge small pieces of wood before using the planer.  Lewis said that had he known to use a jig, he could have built one.

The instructions for a brand new power hand planer that was demonstrated at trial include the following as its first safety rule for planers:

Secure the material being planed.  Never hold it in your hand or across legs.  Small workpiece must be adequately secured so the rotating planer blades will not pick it up during forward motion of the planer.  Unstable support can cause the blades to bind causing loss of control and injury.

 

The jury found that SSG’s negligence proximately caused Lewis’s injury and awarded him approximately $65,000 in damages.  The trial court credited SSG with Lewis’s medical expenses ($11,509.85) that SSG had paid and entered a judgment for Lewis in the amount of $55,371.09.  The trial court denied SSG’s motion for jnov, which asserted that it owed Lewis no duty to warn.

Issues

            Seeking reversal and rendition of a take-nothing judgment, SSG asserts two issues:  (1) it had no duty to warn Lewis of the dangers in using the planer because those dangers were obvious, commonly known, or already appreciated by Lewis; and (2) there is no evidence that SSG’s negligence, if any, proximately caused the injury; instead, the evidence conclusively shows that Lewis’s own negligence caused the injury.

Duty

SSG is a nonsubscriber to the Texas Workers’ Compensation Act.  See Tex. Lab. Code Ann. § 406.002 (Vernon 2006) (“Except for public employers and as otherwise provided by law, an employer may elect to obtain workers’ compensation insurance coverage.”).  “In an action . . . against an employer who does not have workers’ compensation insurance coverage, the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent's or servant's employment.”  Id. § 406.033(d) (Vernon 2006).  The employee’s contributory negligence is not a defense in nonsubscriber cases.  Id. § 406.033(a)(1); see The Kroger Co. v. Keng, 23 S.W.3d 347, 351-52 (Tex. 2000).

            To establish negligence, a party must establish a duty, a breach of that duty, and damages proximately caused by the breach.  The Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006).  An employer has a duty to use ordinary care in providing a safe workplace.  Id.; Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975).  It must, for example, warn an employee of the hazards of employment and provide needed safety equipment or assistance.  Elwood, 197 S.W.3d at 794; Farley, 529 S.W.2d at 754.  An employer must furnish safe machinery and instrumentalities that its employees are to work with and must provide adequate assistance under the circumstances for the performance of required work.  See Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 186 n.45 (Tex. 2004); Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995); Farley, 529 S.W.2d at 754.  An employer must also instruct employees in the safe use and handling of products and equipment used in and around an employer’s premises or facilities, and must adequately hire, train, and supervise employees.  Patino v. Complete Tire, Inc., 158 S.W.3d 655, 660 (Tex. App.—Dallas 2005, pet. denied); Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).

            An employer, however, is not an insurer of its employees’ safety.  Elwood, 197 S.W.3d at 794.  An employer owes no duty to warn of hazards that are obvious, commonly known, or already appreciated by the employee and owes no duty to provide equipment or assistance that is unnecessary to the job’s safe performance.  Id. at 794-95.

            As noted above, Woods testified that he did not want Allison and Lewis to use the planer because he thought that it was too dangerous for them to use without his having shown them how to use it correctly and safely.  Specifically, he said:

A.  And I didn’t want them to use it without me showing them how, period.

 

Q.  Okay.  So you thought it was too risky or too dangerous for them to use it?

 

A.  Yes, ma’am.

 

Q.  Okay.  And you believe that that was something that they needed to understand, that you did not want them using it because it was too risky or too dangerous until you had a chance to give them instruction?

 

A.  Yes, ma’am.

 

Woods was familiar with the danger of planing small pieces of wood and knew that a jig should be used to plane small pieces.

The need to use a jig or some other bracing device to safely use an electric hand planer on small pieces of wood, instead of holding the plane and the wood in one’s hands, is not obvious.  Nor is this safety need commonly known—an electric hand planer is a specialized tool for woodworking.  This case is thus unlike those relied on by SSG.  See Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566, 569 (Tex. 2007) (employer did not have duty to warn employee about obvious danger in using ladder to climb over delivery truck’s malfunctioning lift gate); Elwood, 197 S.W.3d at 795 (grocery store employer had no duty to warn courtesy clerk of danger associated with placing hand in doorjamb of automobile because that danger is common and obvious to anyone); see also Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 313 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (employer did not have duty to warn employee about water on floor of trailer because danger associated with water on floor commonly known and obvious to everyone, and employee was aware of water on floor).

SSG argues, however, that the planer’s dangers were obvious to and already known by Lewis, pointing to his testimony that he was generally familiar with the need to stabilize or brace wood while working on it, that he knew not to get his hand near sharp moving blades, and that the planer appeared to require two hands.  But Lewis’s admissions do not affect our view of the critical issue in this case, which is that, as Lewis testified to, he did not know what a jig was or that he needed to use a jig to plane small pieces of wood with the hand planer—exactly what Woods would have shown and instructed Lewis to do.  Lewis did not know beforehand that he should not hold a piece of wood and run it across the bottom of the electric hand planer.  Indeed, Allison, who was likewise untrained in the use of the planer, saw nothing wrong or unsafe with how Lewis was using it and would have used it the same way, and Lewis had successfully planed most of the wood before his injury.  And while the evidence was unclear, if Lewis had used this hand planer before, it was with Woods and on a long part of a door frame.  Based on this evidence, we hold that Lewis did not already appreciate the danger of using an electric hand planer on a small piece of wood while holding it, and SSG owed a duty to Lewis to train him in the safe use of the planer and warn him of its danger.  We overrule SSG’s first issue.

Sufficiency of the Evidence

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.  City of Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex. 2005).  There is legally insufficient evidence or “no evidence” of a vital fact 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; or (d) the evidence conclusively establishes the opposite of the vital fact.  Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

It is not disputed that SSG did not train Lewis in the safe use of the electric hand planer with small pieces of wood and warn him about its dangers.  Woods admitted that, in the phone call with Allison, he did not specifically tell Allison not to use the planer, although he admitted that he did not want Allison and Lewis to use it because it was risky and dangerous and he had not shown them how to use it.  The evidence in this case would enable reasonable and fair-minded people to reach the verdict under review.  See City of Keller, 168 S.W.3d at 827.  The evidence is therefore legally sufficient to support the jury’s negligence finding.  We overrule issue two.

Conclusion

Having overruled both issues, we affirm the trial court’s judgment.

 

 

BILL VANCE

Justice

 

 

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Affirmed

Opinion delivered and filed September 10, 2008

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