author: Opinion by SARAH B. DUNCAN, Justice.

text:
    Jessica L. TELLEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 04-03-00853-CR.
    Court of Appeals of Texas, San Antonio.
    June 29, 2005.

      Patrick Barry Montgomery, San Antonio, for appellant.
    Edward F. Shaughnessy, III, Asst. Criminal Dist. Atty., San Antonio, for ap-pellee.

      Sitting: ALMA L. LÓPEZ, Chief Justice (concurring in the judgment only), SARAH B. DUNCAN, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by SARAH B. DUNCAN, Justice.

Jessica Tellez appeals the judgment revoking her deferred adjudication community supervision, convicting her of possession of a controlled substance of one to four grams with the intent to deliver, fining her $1000, sentencing her to five years in the Texas Department of Criminal Justice— Institutional Division, and finding that she “used or exhibited a deadly weapon in the commission of the offense or during immediate flight therefrom.” We hold the State’s failure to give Tellez notice of its intent to seek a deadly weapon finding before her plea was accepted precluded the trial court from entering a deadly weapon finding at Tellez’s adjudication hearing. We therefore modify the judgment to delete the deadly weapon finding and, as so modified, affirm.

Factual and PROCEDURAL Background

According to the evidence introduced at Tellez’s plea hearing, when the police executed a search warrant on December 18, 2001 at 1003 Essex, they apprehended Jessica Tellez in her bedroom and found three bags containing cocaine, one bag containing marijuana, a palmscale, empty Ziploc baggies, and a loaded handgun. Tellez was subsequently indicted for possession with intent to deliver and possession of a controlled substance (cocaine) of one to four grams. The indictment does not allege that Tellez used or exhibited a deadly weapon during the course of committing either offense or from immediate flight therefrom.

After Tellez applied for community supervision, she and the State entered into a plea bargain agreement. Under the agreement, Tellez agreed to plead guilty or nolo contendere, to allow the State to prove its case by written stipulations, to pay restitution for drug testing, and to undergo a TAIP evaluation; the State agreed to proceed on the first count only (possession with intent to deliver) with punishment assessed at five years and to “make no recommendation o[n] [Tellez’s] deferred adjudication/community supervision application.” Outside the agreement, Tellez and the State agreed to a $1000 fine and 300 hours of community service. The plea bargain form contains a blank to the left of “Affirmative Finding of Deadly Weapon or 3G offense, Defendant not eligible for supervision under CCP 42.12, See. 3”; but the blank is not checked.

At the ensuing plea hearing on July 1, 2002, Tellez pleaded no contest to possession with intent to deliver; and the trial court accepted her plea. After the State introduced the waiver and stipulations, the trial court found “the evidence is sufficient to sustain a finding of guilt” but “h[e]ld in abeyance any finding at this point in time until [it] g[o]t a report from the Probation Office on those matters outside the plea bargain.” After receiving that report, at a July 22, 2002 hearing, the trial court adopted defense counsel’s recommendation and placed Tellez on deferred adjudication for five years.

On May 8, 2003, the State moved to revoke Tellez’s community supervision and adjudicate her guilt, alleging that Tellez violated the first condition of her probation by committing the offense of assault. On August 29, 2003, the State filed its Notice of Intent to Seek an Affirmative Finding of the Use or Exhibition of a Deadly Weapon. During the ensuing hearing, Tellez was not asked to, and therefore did not, enter a plea regarding the deadly weapon allegation in the State’s Notice. Nonetheless, after Tellez pleaded “true” to the alleged violation and the State presented its evidence, the trial court found Tellez guilty of possession with intent to deliver, then assessed her punishment at five years and made an affirmative deadly weapon finding. Consequently, Tellez “must serve a longer period, without consideration of good conduct time, before [she] may be released on parole.” Coleman v. State, 145 S.W.3d 649, 652 (Tex.Crim.App.2004) (citing Tex. Gov’t Code Ann. § 508.145(d) (Vernon 2004)). Tellez appeals, making two arguments: first she argues that the trial court erred in making a deadly weapon finding that was not charged or requested before she entered her original plea; and second, in anticipation of the State’s waiver argument, she argues that her trial counsel was ineffective in failing to object to the deadly weapon finding in the trial court.

Jurisdiction

The State first argues that we lack jurisdiction over Tellez’s appeal because the trial court’s Rule 25.2(d) certificate specifically states “this order is not appeal-able.” But this statement is not only incorrect, it is misleading. What the trial court’s certificate in fact states is “this criminal case ... is not a plea-bargain case, and the defendant has the right of appeal ... except ... this is an adjudication of guilt following deferred adjudication and this order is not appealable.” When read in context, “this order” plainly refers only to the order adjudicating guilt; thus, the trial court’s certification properly recognizes that Tellez may appeal “aspects of the ‘second phase to determine punishment.’ ” Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App.2001).

We recognize a deadly weapon finding is not a part of a sentence for purposes of determining whether the State has the right to appeal its omission under article 44.01(b), which permits “[t]he [S]tate ... to appeal a sentence in a case on the ground that the sentence is illegal.” Tex. Code CRiM. PROC. Ann. art. 44.01(b) (Vernon Supp.2004); State v. Ross, 953 S.W.2d 748, 752 (Tex.Crim.App.1997) (“hold[ing] for art. 44.01(b), ... a deadly weapon finding is not part of a sentence”). But the issue before us, for jurisdictional purposes, is not whether Tellez “appeal[s] a sentence”; the question is whether Tellez appeals “aspects of the ‘second phase to determine punishment.’ ” Kirtley, 56 S.W.3d at 51. We hold that she does. See Luken v. State, 780 S.W.2d 264, 268 (Tex.Crim.App.1989) (observing “that ‘[a]n affirmative finding can be and is perhaps more suited to be a punishment issue’ ”).

WAIVER

Before we proceed to the merits of Tellez’s first complaint, we must first address the State’s argument that Tellez waived her complaint by failing to object in the trial court.

It is clear the State must provide a defendant with written notice of its intent to seek a deadly weapon finding; but it is equally clear the required notice can be waived. See Ex parte Minott, 972 S.W.2d 760 (Tex.Crim.App.1998). As the court stated in Minott: “As in McJunkins, a litigant waives any complaint as to not receiving notice in written form when he agrees to a deadly weapon finding as part of a negotiated plea.” Id. at 762. Significant is the court’s reference to Ex parte McJunkins, 954 S.W.2d 39 (Tex.Crim.App.1997), in which the court held the defendant’s “decisions not to request a severance, and to accept the imposition of consecutive sentences imposed in a single criminal action for two offenses arising out of the same criminal episode, were valid waivers of his right to concurrent sentences.” Id. at 41. Prom this, we are able to glean that the right to written notice of the State’s intent to seek a deadly weapon finding is, like the right at issue in McJunkins, “waivable only.” See Mendez v. State, 138 S.W.3d 334, 340 (Tex.Crim.App.2004).

Rights that are “waivable only” “ ‘cannot be forfeited. That is to say, they are not extinguished by inaction alone. Instead, if a defendant wants to relinquish one or more of them, [she] must do so expressly.’ ” Sanchez v. State, 120 S.W.3d 359, 366 (Tex.Crim.App.2003) (quoting Mann v. State, 851 S.W.2d 275, 278-79 (Tex.Crim.App.1993)). Accordingly, “ ‘[although a litigant might give [these rights] up, ... he is never deemed to have done so in fact unless he says so plainly, freely, and intelligently’ ” and the trial court “ ‘has an independent duty to implement them absent an effective waiver by [the litigant].’ ” Sanchez, 120 S.W.3d at 366 (quoting Marin, 851 S.W.2d at 280). “ ‘As a consequence, failure of the judge to implement them at trial is an error which might be urged on appeal whether or not it was first urged in the trial court.’ ” Sanchez, 120 S.W.3d at 366 (quoting Marin, 851 S.W.2d at 280). We therefore hold Tellez’s trial counsel’s failure to object in the trial court did not waive her right to complain on appeal that the trial court erred in entering a deadly weapon finding that was not charged or requested before she entered her original plea. Nor did Tellez do so by her conduct.

Unlike Minott, Tellez did not agree to a plea bargain that expressly included the entry of an affirmative finding of a deadly weapon. To the contrary, although Tel-lez’s plea bargain contains a blank to the left of “Affirmative Finding of Deadly Weapon or 3G offense, Defendant not eligible for supervision under CCP 42.12, Sec. 3,” the blank is not checked. The plea bargain further provides that the “State will make no recommendation o[n] [Tel-lez’s] deferred adjudication/community supervision application.” This was a promise the State could not legitimately make if it then intended to seek a deadly weapon finding. Since Tellez was charged with felony possession and had applied for regular probation, community supervision was a sentencing option that would not be available if the trial court entered an affirmative finding. See Tex.Code CRiM. PROC. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2004). And there is no evidence in the record that Tellez’s trial counsel discussed the deadly weapon issue with Tellez, much less obtained her agreement to intentionally relinquish or abandon her right to timely notice. We therefore conclude that neither Tellez by her conduct, nor her trial counsel by his failure to object, waived Tellez’s right to complain on appeal that the trial court erred in entering a deadly weapon finding that was not charged or requested before she entered her original plea.

Timeliness of the State’s Notice

Tellez argues “the time to seek the deadly weapon finding was either in the indictment itself, or upon timely notice pri- or to the entry of the plea bargain agreement.” In response, the State argues “[t]he fault in [Tellez’s] argument is that it fails to account for the fact that the trial [c]ourt served as the [trier] of fact at the punishment phase along with the fact that the sentencing phase is the proper stage in which to address the issue.” In so doing, the State presents us with a red herring. Tellez does not complain that the deadly finding was made during the punishment phase; rather, as she states at several points in her brief, she complains that “[t]he trial court ... enter[ed] a deadly weapon finding that had not been charged or requested prior to the original plea.” The parties have not provided, and we have not found, an opinion addressing this issue.

Our research has revealed two cases in which a defendant complained that the trial court erred in entering a deadly weapon finding when his plea bargain agreement was silent on the issue. See Lister v. State, 24 S.W.3d 525, 526-27 (Tex.App.Corpus Christi 2000, pet. ref'd) (holding the court lacked jurisdiction over the appeal but “consider[ing] and rul[ing] on [the] issue” “in the interest of justice”); Alexander v. State, 868 S.W.2d 356, 360 (Tex.App.-Dallas 1993, no pet.) (addressing the defendant’s issue that “he lacked notice because” “the plea bargain agreement was silent on the deadly weapon finding”). However, in both of these cases the indictment gave the defendant notice that the State intended to seek a deadly weapon finding; the notice requirement was thus met. See Lister, 24 S.W.3d at 527 (“In the case before us the indictment alleged the use of a deadly weapon.”); Alexander, 868 S.W.2d at 362 (“The indictments charging appellant included allegations that he used and exhibited ‘a deadly weapon, to wit: a knife.’ The indictments gave appellant adequate notice that use of a deadly weapon was an issue in the case.”). That of course is not the case here. The State’s indictment of Tellez charged her only with possession with intent to deliver and possession; the indictment did not even mention a deadly weapon.

Lacking in guidance, as we are, we return to the statute that governs the proceedings after deferred adjudication is revoked:

After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.

TexCode ÜRiM. PROc. Ann. art. 42.12 § 5(b). In short, once revocation and an adjudication of guilt have occurred, “the case stands as it did the moment after the guilty plea was accepted, as though no probation had ever occurred.” Evans v. State, 690 S.W.2d 112, 114-15 (Tex.App.-El Paso 1985, pet. ref'd). If we go back to the moment in time after Tellez’s plea was accepted, the State had not given any notice that it intended to seek a deadly weapon finding. We therefore hold the trial court erred when, at the conclusion of the punishment hearing, it entered a deadly weapon finding. See, e.g., Patterson v. State, 138 S.W.3d 643, 647 (Tex.App.-Dallas 2004, no pet.).

“Providing no notice is constitutional error.” Id. (citing Ex parte Minott, 972 S.W.2d at 762). “Thus, we must reverse unless we determine beyond a reasonable doubt that the error did not contribute to punishment.” Patterson, 138 S.W.3d at 647 (citing Tex.R.App. P. 44.2(a)). We cannot do so here. As Chief Justice Thomas recognizes in Patterson, although “the finding d[oes] not operate to lengthen appellant’s sentence, it d[oes] impact the ‘character’ of the punishment in that it affect[s] [her] parole eligibility.” Id. at 648. We therefore modify the judgment to delete the deadly weapon finding and affirm the judgment as modified. See id.

      . As a consequence of this holding, we reject Tellez’s second complaint that her trial counsel was ineffective in failing to object in the trial court to the entry of a deadly weapon finding.

      . Indeed, this holding may be constitutionally mandated. See State v. Torres, 805 S.W.2d 418, 421 (Tex.Crim.App.1991) (holding that in a non-juiy trial jeopardy attaches when both sides announce ready and the defendant enters a plea to the charging instrument); Ex parte Jones, 39 S.W.3d 724, 725 (Tex.App.Beaumont 2001, pet. ref'd) (same); Duke v. State, 2 S.W.3d 512, 515 (Tex.App.-San Antonio 1999, no pet.) (same); Hinojosa v. State, 875 S.W.2d 339, 342 (Tex.App.-Corpus Christi 1994, no pet.) (holding that trial commences at the same time jeopardy attaches).


source: Caselaw Access Project

author: FELIPE REYNA, Justice.

license: Public Domain

text:
    In the Interest of T.L.S. and R.L.P., Children.
    No. 10-04-00099-CV.
    Court of Appeals of Texas, Waco.
    June 29, 2005.
    David K. Abbott, Waxahachie, for appellant/relator.
    Barbara L. Moore, Texas Dept of Family & Protective Services, Arlington, Kendall Lee Drew, Waxahachie, for appel-lee/respondent.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Deshawn Dismuke appeals from a family violence protective order issued against him with reference to the children of his former girlfriend. He contends in his sole issue that there is no evidence and factually insufficient evidence to support the court’s finding that he is likely to commit family violence in the future. We will affirm.

Trina Smith is the biological mother of the children who are the subject of the protective order. The Department of Protective and Regulatory Services removed the children from Smith’s home in late 2003 because of severe injuries. At the time, Dismuke and Smith were living together. Smith told investigators that she suspected Dismuke had injured the children. Ultimately, Smith and Dismuke were arrested for injury to a child.

DPRS filed a termination suit against Smith. The children’s guardian ad litem filed an application for a family violence protective order on behalf of the children. The court heard both matters in the same proceeding.

On the second day of trial, Smith agreed to voluntarily relinquish her parental rights and be subject to a permanent injunction prohibiting her from any further contact with the children. DPRS called Dismuke as a witness, but he invoked the Fifth Amendment and refused to answer any questions.

Dismuke moved for an “instructed verdict” on the basis that the applicant had offered no evidence that he would commit family violence in the future. The court denied Dismuke’s motion and issued the protective order.

The protective order recites the following pertinent findings:

[T]he court finds that Deshawn Dismuke committed family violence against Petitioners as follows:
• On or about November 29, 2003 and during the days and weeks preceding, Deshawn Dismuke, acting in concert with Trina Smith, caused serious bodily injury to the minor child [R.L.P.] by knowingly breaking his right leg thereby resulting in a spiral fracture to the tibia.
• On or about December 23, 2003 and during the days and weeks preceding, Deshawn Dismuke, acting in concert with Trina Smith, caused serious bodily injury to the minor child [R.L.P.] by knowingly applying blunt force trauma and a blow to the abdomen area thereby resulting in the loss of blood, as well as the death and later removal of approximately 24 inches of the small intestine.
• In addition to the above specified acts of family violence, Deshawn Dismuke, acting in concert with Trina Smith, engaged in an ongoing pattern of serious physical abuse to [R.L.P.] and/or [T.L.S.] which included numerous non-accidental injuries such as bums to various parts of the body, arm fractures, cuts and tears to bodily tissue including a torn frenulum, eye injuries, compression fractures to back vertebrae, along with conduct resulting in probable sexual abuse.
The court further finds that Deshawn Dismuke is likely to commit family violence in the future.

Dismuke contends in his sole issue that the record contains no evidence or factually insufficient evidence to support the finding that he is likely to commit family violence in the future because: (1) the record contains no direct evidence that he will commit family violence in the future; and (2) the likelihood of future contact between the children and himself is remote because (a) he is not the biological father of either child, (b) he is not married to Smith, and (c) Smith’s parental rights have been terminated and she has been permanently enjoined from further contact with the children.

We apply the usual no-evidence and factual insufficiency standards of review in an appeal from a protective order. Pena v. Garza, 61 S.W.3d 529, 532 (Tex.App.-San Antonio 2001, no pet.).

The central issue in this appeal is whether evidence of past family violence will support a finding of a likelihood of future family violence. During the last decade, a principle has emerged in parental termination and child custody cases which recognizes that evidence that a parent has engaged in abusive or neglectful conduct in the past permits an inference that the parent will continue this behavior in the future. See e.g. Williams v. Williams, 150 S.W.3d 436, 451 (Tex.App.Austin 2004, pet. denied); In re K.A.S., 131 S.W.3d 215, 229-30 (Tex.App.-Fort Worth 2004, pet. denied); In re D.L.N., 958 S.W.2d 934, 941 (Tex.App.-Waco 1997, pet. denied). As Chief Justice Thomas of this Court presciently observed in a 1992 child custody decision, “Past is often prologue.” Ray v. Burns, 832 S.W.2d 431, 435 (Tex.App.-Waco 1992, no writ). This principle should apply in family violence protective order cases as well. See Pena, 61 S.W.3d at 532 (finding evidence of past conduct “legally and factually sufficient to sustain the protective order”).

Here, the trial court expressly found that Dismuke had engaged in family violence in the past. Dismuke does not challenge these findings. Therefore, they are binding unless the contrary was established as a matter of law or there is no evidence to support the findings. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986); Zagorski v. Zagorski, 116 S.W.3d 309, 319 (Tex.App.-Houston [14th Dist.] 2003, pet. denied); Tarrant Regl. Water Dist. v. Gragg, 43 S.W.3d 609, 619 (Tex.App.-Waco 2001), aff'd, 151 S.W.3d 546 (Tex.2004).

Having reviewed the evidence in the record, we initially conclude that more than a scintilla of evidence supports the unchallenged findings that Dismuke committed family violence against the children. From this evidence, the trial court could infer that Dismuke will likely commit family violence in the future. See Williams, 150 S.W.3d at 451; K.A.S., 131 S.W.3d at 229-30; D.L.N., 958 S.W.2d at 941. Thus, the record contains more than a scintilla of evidence that Dismuke will likely commit family violence in the future.

Dismuke also challenges the factual sufficiency of the evidence to support this finding. He contends that the evidence is factually insufficient because the likelihood of future contact between the children and himself is remote because (1) he is not the biological father of either child, (2) he is not married to Smith, and (3) Smith’s parental rights have been terminated and she has been permanently enjoined from further contact with the children.

We reject outright Dismuke’s first two contentions in this regard because his non-parent status and his marital status did not stop him from committing family violence against the children in the past. See Williams, 150 S.W.3d at 451; K.A.S., 131 S.W.3d at 229-30; D.L.N., 958 S.W.2d at 941. Therefore, the central issue is whether the termination of Smith’s parental rights and the permanent injunction preponderate against a finding that Dismuke will likely commit family violence in the future.

A finding that Dismuke will not likely commit future violence requires the fact-finder to infer that he will have no future contact with the children based on one of two underlying inferences. The first of these underlying inferences is that, because Smith’s parental rights have been terminated and she has been enjoined from future contact with the children, she will comply with the injunction. The second is that Dismuke will have no future contact with Smith. Because neither Dis-muke nor Smith testified, there is simply no evidence in the record from which the trial court could infer that they will have no future contact with each other.

Regarding the first underlying inference, the trial court could only speculate that Smith will comply with the injunction. And from that speculation, Dismuke essentially argues that the court could properly infer that as a result Dismuke will have no future contact with the children. For the court to do so, would constitute an impermissible stacking of inferences. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728-29 (Tex.2003) (per curiam). Therefore, we conclude that the evidence is factually sufficient to support the court’s finding that Dismuke is likely to commit family violence in the future.

We overrule Dismuke’s sole issue and affirm the judgment.

      . In a nonjury proceeding, the proper procedural vehicle in this situation is a motion for judgment. See e.g. Barr v. AAA Tex., LLC, No. 10-03-00243-CV, 167 S.W.3d 32, 35 (Tex.App.-Waco 2005, no pet. h.). This is so because there is no other factfinder to "instruct” regarding the verdict.

      . Texas courts have implicitly applied this principle in protective order cases but, with the exception of Pena, only in unpublished memorandum opinions. See e.g. Siegert v. Flannery, No. 04-03-00487-CV, 2004 WL 1732345, *1-2, 2004 Tex.App. LEXIS 6989, **2-6 (Tex.App.-San Antonio Aug.4, 2004, no pet.) (mem. op.); Colvin v. Colvin, No. 03-03-00234-CV, 2004 WL 852266, *5-7, 2004 Tex.App. LEXIS 3534, **18-21 (Tex.App.-Austin Apr. 22, 2004, no pet.) (mem. op.).


author: JIM R. WRIGHT, Justice.

text:
    Wendy A. ALLEN, Appellant v. John P. MANCINI, Jr., Appellee.
    No. 11-04-00067-CV.
    Court of Appeals of Texas, Eastland.
    June 30, 2005.

      Jeffery D. Gooch, The Law Firm of Jeffery D. Gooch, Fort Worth, for Appellant.
    Kimberly Pack Wilson, Fraser & Wilson, P.C., Stephenville, for Appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J„ and McCALL, J.
   OPINION

JIM R. WRIGHT, Justice.

Wendy A. Allen and John P. Mancini, Jr. are the parents of L.M.M. Allen and Mancini divorced in 1997. At that time, Allen and Mancini were named joint managing conservators of L.M.M. The trial court ordered that Allen would have the right to establish the primary residence of the child. In August 2003, Mancini filed a petition to modify the parent-child relationship seeking to be appointed the managing conservator with the right to establish the primary residence of L.M.M. The trial court entered an order in which it removed Allen as the managing conservator with the exclusive right to establish the primary residence of L.M.M. and appointed Mancini as the managing conservator with the exclusive right to establish the primary residence of the child. We affirm.

In her first issue on appeal, Allen argues that the evidence does not support the trial court’s finding of material and substantial change in circumstance. An assertion that the evidence is “insufficient” to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all of the evidence in making this determination. Maritime Overseas Corporation v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. den’d, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).

The best interest of the child shall always be the primary consideration of the court in determining conservator-ship and possession. TEX. FAM. CODE ANN. § 153.002 (Vernon 2002). A court may modify the terms and conditions of a joint managing conservatorship if the modification would be in the best interest of the child and if the circumstances of the child or of one or both of the conservators have materially and substantially changed since the rendition of the order. TEX. FAM. CODE ANN. § 156.101(1) (Vernon Supp.2004-2005) . The trial court is given wide latitude in determining custody issues. Peña v. Peña, 8 S.W.3d 639 (Tex.1999). A trial court’s order modifying a joint managing conservatorship will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). The test for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner or whether it acted without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. den’d, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

Courts may use the non-exhaustive list of the factors set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976), to determine the child’s best interest. In re Doe 2, 19 S.W.3d 278, 282 n. 20 (Tex.2000)(recognizing that intermediate courts employ the Holley factors to ascertain best interest in conservatorship cases); In re Z.B.P., 109 S.W.3d 772, 778 (Tex.App.-Fort Worth 2003, no pet’n). Those factors include but are not limited to (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, supra.

We note that the record contains neither findings of fact nor conclusions of law. Thus, it is implied that the trial court made all necessary findings of fact to support its judgment. Thompson v. Thompson, 827 S.W.2d 563, 567 (Tex.App.-Corpus Christi 1992, writ den’d); In Interest of A.D.H., 979 S.W.2d 445, 448 (Tex.App.-Beaumont 1998, no pet’n).

Mancini testified at the hearing that he has lived in Alabama since 1997. He had limited visitation with L.M.M. between 1997 until 2002 because Allen would not allow him to visit. In July 2002, Mancini and Allen entered into an agreement concerning visitation. The trial court entered an agreed order in accordance with the agreement. The record shows that, at that time, Allen and L.M.M. were living in Wyoming with Allen’s boyfriend. In April 2003, Allen and L.M.M. moved to Farm-ington, New Mexico, where they lived with a male friend of Allen. Mancini had an extended visitation with L.M.M. in the summer of 2003. During that time, Allen moved to Dublin, Texas.

Mancini testified that, while L.M.M. was with him during the summer of 2003, Allen interfered with his relationship with L.M.M. Allen called L.M.M. every day; and she would frequently tell L.M.M. that Mancini did not love her, that Mancini stole money and was going to jail, and that she should not call Mancini “Dad.” Allen also told L.M.M. that Mancini had “kidnapped” L.M.M. During the summer visitation, Allen became angry that Mancini let L.M.M. go swimming even though she had an ankle injury. Allen called the police and reported the incident.

Mancini also testified that, after the extended summer visitation in 2003, Allen made visitation difficult. After Mancini had visited with L.M.M. in October 2003, Allen reported to Child Protective Services that Mancini had abused and neglected L.M.M. Child Protective Services conducted an investigation and ruled out the allegations of abuse and neglect. Mancini believed that Allen’s actions have hurt his relationship with L.M.M.

Allen testified at the hearing that, during the 2008 summer visitation, Mancini agreed to call on July 4 to determine if L.M.M. would stay the rest of the summer. Mancini did not call on July 4 to extend the visitation. During the visitation, Allen did not speak frequently with L.M.M.; but, when she did speak with her, L.M.M. indicated that she was not having a good time with Mancini. Allen denied telling L.M.M. that her father did not love her and that he had stolen money. Allen acknowledged that she had reported to Child Protective Services that Mancini abused and neglected L.M.M.

We find that the trial court did not err in finding that a material and substantial change had occurred since the rendition of the last order and that modification would be in the best interest of L.M.M. The record shows that L.M.M. had three different residences from 2002 until the time of the hearing and that she had attended three different schools. Prior to 2002, L.M.M. had limited visitation with Mancini. Since that time, Mancini has had frequent and extended visitation with L.M.M., and he has tried to maintain a strong relationship with her. As we have earlier set forth, the record contains evidence that Allen had interfered with the relationship between Mancini and L.M.M. The evidence supporting the finding of the trial court that a material and substantial change had occurred since the date of the last hearing is not so weak nor is the evidence to the contrary so overwhelming that the trial court’s order should be set aside. Allen’s first issue on appeal is overruled.

In her second issue on appeal, Allen contends that “the evidence does not support the court’s finding of alienation and/or interference with the child and father relationship.” In its order modifying the parent-child relationship, the trial court stated in its “findings” that:

The Court finds that the material allegations in the petition to modify are true, there is a substantial and material change in circumstances and that the requested modification is in the best interest of the child. The Court further finds that [Allen] has made extreme attempts to alienate [Mancini] from the child and has caused substantial interference in the relationship between [Mancini] and the child.

The trial court found that there was a material and substantial change and that modification was in the best interest of L.M.M. as required by Section 156.101(1). A part of the evidence before the trial court related to Allen’s interference with the relationship between Mancini and L.M.M. We will not review that evidence again here because we have set it out in our discussion of Allen’s first issue on appeal. That evidence is not so weak, nor is there any evidence to the contrary that is so overwhelming, that the trial court’s order should be set aside. Allen’s second issue on appeal is overruled.

In her third issue on appeal, Allen complains that the trial court erred when it admitted a tape recording into evidence. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. E.I. du Pont de Nemours and Company v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). We will reverse the decision of the trial court only if it acted arbitrarily, unreasonably, or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., supra at 241-42.

The tape recording contains conversations that Mancini taped between L.M.M. and Allen. The tape recording also contains messages left by Allen on Mancini’s answering machine, and it also contains conversations between Mancini and Allen. Allen contends that, under the “state wiretap law,” the recordings were “illegally obtained” and, therefore, not admissible.

Allen cites Collins v. Collins, 904 S.W.2d 792 (Tex.App.-Houston [1st Dist.] 1995), writ den’d, 923 S.W.2d 569 (Tex.1996), as authority. In Collins, the child’s father recorded conversations between the child and his mother. The father offered the tape recording into evidence to impeach the mother’s testimony. The trial court admitted the tape recording into evidence. On appeal, the court stated that the “state wiretap statute makes it illegal to tape a conversation ‘without the consent’ of the person being recorded.” Collins v. Collins, supra at 798.

In Collins, the court relied upon TEX. CIV. PRAC. & REM. CODE ANN. ch. 123 (Vernon 2005). Section 123.001 contains various definitions applicable to Chapter 123. Section 123.002 creates a cause of action against a person who violates Chapter 123. Section 123.003 creates certain defenses not applicable here. Section 123.004 provides for an injunction against one who violates Chapter 123. It also provides for damages and attorney’s fees. There are no other provisions in Chapter 123.

Chapter 123 basically addresses interception of communications. Section 123.001 contains the following definition:

(2) “Interception” means the aural acquisition of the contents of a communication through the use of an electronic, mechanical, or other device that is made without the consent of a party to the communication, but does not include the ordinary use of:
(A) a telephone or telegraph instrument or facility or telephone and telegraph equipment;
(B) a hearing aid designed to correct subnormal hearing to not better than normal;
(C) a radio, television, or other wireless receiver; or
(D) a cable system that relays a public wireless broadcast from a common antenna to a receiver. (Emphasis added)

We decline to follow Collins because we are of the opinion that Chapter 123 does not address the admissibility of a tape-recorded conversation at trial and because we believe that, when a party to the communication consents to the interception of the communication, there is no violation of Chapter 123, assuming that it does apply.

Chapter 123 provides a cause of action for a person whose communications have been wrongfully obtained; it does not address the admissibility of that evidence absent an injunction prohibiting the divul-gence or use of information obtained by an “interception.” See Section 123.004(1).

There is another reason why we believe that the tape recording was admissible even if Chapter 123 is applicable. Section 123.001(2) provides that an “interception” occurs when a communication is acquired without the consent of “a party.” The tape recording was made with the consent of Mancini who was a party to some of the conversations on the tape. Seymour v. Gillespie, 608 S.W.2d 897 (Tex.1980); Kotrla v. Kotrla, 718 S.W.2d 858 (Tex.App.-Corpus Christi 1986, writ ref'd n.r.e.). Mancini also served as joint managing conservator of L.M.M. at the time the conversations were recorded between L.M.M. and Allen. As managing conservator, Mancini had the authority to consent to medical, dental, surgical, psychiatric, and psychological treatment and also to marriage or enlistment in the armed forces of the United States. We find that Mancini also had the authority to consent on behalf of L.M.M. to the tape recording of conversations between L.M.M. and Allen.

Further, even if Chapter 123 is applicable to the admissibility of the tape recording in this case, Allen would have to show that an “interception” occurred. By definition, in order to show that an interception occurred, Allen first would have to show that the tape recording was made without the consent of a party to the communication. Sections 123.001(2) & 123.002. Allen did not meet that burden at trial.

Allen makes the same arguments regarding the federal wiretap laws as she does the state wiretap laws. Federal wiretap laws are covered by 18 U.S.C. §§ 2510-2521. Section 2511(2)(d) provides that, if a person is not acting under color of law, it is not unlawful to intercept a communication if one of the parties to the communication has given prior consent to the recording of the communication and the interception is not for the purpose of committing a criminal or tortious act in violation of federal or state constitutions or laws. Although not all federal courts agree that the federal wiretap laws apply to family law eases and although there are not many cases touching upon the subject, it has been held that a parent may vicariously consent to the tape-recording of a minor child as long as the parent “has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the” tape recording. Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir.1998) (citing Campbell v. Price, 2 F.Supp.2d 1186 (E.D.Ark.1998); Thompson v. Dulaney, 838 F.Supp. 1535 (D.Utah 1993)). We hold that, even if the federal wiretap laws are applicable here, Mancini was entitled to consent to the tape recording, both for himself and for L.M.M. as her joint managing conservator, under the criteria set forth in Pollock. Because there was consent to the tape recording, federal wiretap laws did not prohibit the introduction of the tape recording in this case.

For all of the above reasons, we hold that the trial court did not abuse its discretion when it admitted the tape recording. Allen’s third issue on appeal is overruled.

The judgment of the trial court is affirmed.

      . Mancini filed his petition to modify the parent-child relationship on August 1, 2003. Section 156.101(1) was amended effective September 1, 2003. The changes to Section 156.101(1) apply to an action to modify an order in a suit affecting the parent-child relationship pending on the effective date of the Act or filed on or after that date.

      . The July 2002 agreed order did not modify conservatorship. Therefore, the order Mancini sought to modify was the 1997 order which named Allen as the managing conservator with the right to establish the residence of L.M.M., and it is from the date of that order that we consider the change in circumstances. TEX. FAM. CODE ANN. § 156.101 (Vernon Supp.2004-2005).


author: Opinion By Justice LANG.

text:
    Wade SKILES, Appellant v. JACK IN THE BOX, INC., Appellee.
    No. 05-04-00412-CV.
    Court of Appeals of Texas, Dallas.
    July 7, 2005.
    Rehearing Overruled Sept. 14, 2005.

      Jason C.N. Smith, Fort Worth, for appellant.
    Jerry Fazio, Jason Eric Kipness, Owen & Fazio, P.C., Dallas, for appellee.
    Before Justices BRIDGES, RICHTER, and LANG.
   OPINION

Opinion By Justice LANG.

Wade Skiles, plaintiff below, appeals the trial court’s summary judgment that he take nothing in his lawsuit for negligence against Jack in the Box, Inc., defendant below.

Skiles argues three issues on appeal: (1) the trial court erred when it granted summary judgment finding that there was no evidence that Jack-in-the-Box breached “any” duty owed to Skiles; (2) the trial court erred when it granted summary judgment finding that there was no evidence that Jack-in-the-Box’s negligence was a proximate cause of Skiles’ injury; and (3) the trial court erred when it granted summary judgment in favor of Jack-in-the-Box on its affirmative defense finding, as a matter of law, that Skiles’ negligence was the sole proximate cause of his injury.

For the reasons set forth below, Skiles’ three issues on appeal are decided in his favor. The trial court’s judgment is reversed and this case is remanded for further proceedings consistent with this opinion. Tex.R.App. P. 43.2(d).

I. FACTUAL AND PROCEDURAL BACKGROUND

At the time of his injury, Skiles had been employed by Jack-in-the-Box for 24 years and worked as a licensed tractor-trailer driver. His job duties included the transport and delivery of food product to Jack-in-the-Box restaurants. Skiles also trained new drivers on safety issues regarding operation of the tractor-trailer, loading and unloading of freight, and how to report tractor-trailer problems.

Since 1980, Jack-in-the-Box’s trailers have been equipped with either electric or hydraulic lift gates. The lift gates, which function similar to elevators, fold vertically into the back of the trailer, and through the use of a control box, can be rotated to a horizontal position. While in the horizontal position, drivers can lower the lift gate to ground level, stand on top of it, and raise the lift gate to trailer level. This process allows drivers to safely unload food product from the trailers. Occasionally, drivers encounter problems with lift gates during deliveries. When this occurs, Jack-in-the-Box requires its drivers to call the Jack-in-the-Box distribution center and the Rollins service center. Rollins is the exclusive provider of service, maintenance, and repairs for Jack-in-the-Box tractor-trailers. Once a driver calls Rollins, a service person is sent to repair the tractor-trailer.

On April 29, 2002, Skiles arrived for a scheduled delivery at a Jack-in-the-Box restaurant in Seguin, Texas. Skiles attempted to use the hydraulic lift gate to unload food product, but it would not function. Skiles informed the Jack-in-the-Box restaurant manager of the problem. The manager told Skiles that it was the “lunch rush” and the restaurant was out of hamburger meat. Pursuant to Jaek-in-the-Box policy, Skiles called the Jack-in-the-Box distribution center and reported the problem. He informed the traffic supervisor that he was going to use a ladder to access the food product. Skiles claims the supervisor’s response to this course of action was, “Good.” The traffic supervisor testified in his deposition that he did not recall specifically what was said during his conversation with Skiles. Then, later in the deposition he was asked what was said “generally.” His response was that he “would have” told Skiles to call Rollins. Following this conversation, Skiles borrowed a ladder from the Jack-in-the-Box restaurant and used it to climb over the lift gate and jump into the back of the trailer. Skiles claims his knees “popped” when he landed in the trailer. Despite the injury, Skiles located the hamburger meat and passed it over the raised lift gate to the Jack-in-the-Box restaurant manager. Skiles was unable to exit the trailer because of his injury. Then, Skiles placed a call to Rollins and reported the lift gate problem. The Rollins service person repaired the lift gate by releasing a safety valve.

After completing his scheduled deliveries, Skiles returned to the Jack-in-the-Box distribution center and submitted an employee injury claim form. Skiles underwent surgery on his left knee and received physical therapy on both knees. Despite the treatment, Skiles informed Jack-in-the-Box that he was unable to return to work as a tractor-trailer driver. Skiles claims he was terminated when Jack-in-the-Box did not offer him another position.

Jack-in-the-Box’s insurance paid $11,813.23 in past medical bills for Skiles’ injury. However, Skiles claims replacement surgery is necessary for both knees. This surgery is estimated to cost approximately $70,000. Jack-in-the-Box refused to pay for the replacement surgery. Because Jack-in-the-Box is a nonsubscriber to workers compensation, Skiles filed a negligence suit. Jack-in-the-Box denied the allegations and filed a no-evidence and traditional motion for summary judgment.

In its no-evidence motion for summary judgment, Jack-in-the-Box claimed there was no evidence that: (1) Jack-in-the-Box breached any duty toward Skiles; (2) Jack-in-the-Box was negligent in causing the accident; and (3) Jack-in-the-Box’s negligence was a proximate cause of Skiles’ injury. Skiles responded that the trial court should deny the no-evidence portion of Jack-in-the-Box’s motion for summary judgment because the following evidence that Jack-in-the-Box breached its duty to Skiles created an issue of material fact: (1) Jack-in-the-Box’s policies did not expressly prohibit employees from using ladders to obtain products when lift gates did not operate; (2) Jack-in-the-Box knew of the dangers associated with using a ladder to unload a trailer when a lift gate would not operate and failed to warn Skiles of the dangers; (3) Jack-in-the-Box failed to provide Skiles with a safe lift gate; and (4) Jack-in-the-Box failed to make Skiles aware of a safety valve that would have made the lift gate in question function properly.

In its traditional motion for summary judgment, Jack-in-the-Box asserted it established each element of its affirmative defense of sole proximate cause, as a matter of law. Jack-in-the-Box claimed Skiles’ deposition testimony established he was the sole proximate cause of his injury. Skiles responded that the trial court should deny the portion of Jack-in-the-Box’s motion requesting traditional summary judgment on its affirmative defense because Jack-in-the-Box did not establish that Skiles was negligent as a matter of law due to the fact that it failed to establish that Skiles was aware of any unsafe condition.

The trial court granted Jack-in-the-Box’s motion for summary judgment without stating the grounds for its decision. This appeal followed.

II. STANDARD OF REVIEW

When the trial court does not specify the basis for its summary judgment, the appealing party must show on appeal that each independent ground alleged is insufficient to support the summary judgment granted. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995); see also Adams v. First Nat. Bank of Bells/Savoy, 154 S.W.3d 859, 867 (Tex.App.-Dallas 2005, no pet.); Caldwell v. Curioni, 125 S.W.3d 784, 789 (Tex.App.-Dallas 2004, pet. denied). Both the no-evidence and traditional grounds for summary judgment are evaluated to determine whether the trial court was correct under any theory. See Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex.App.-Corpus Christi 2003, no pet.); McKillip v. Employers Fire Ins. Co., 932 S.W.2d 268, 270 (Tex.App.-Texarkana 1996, no writ). An appellate court must affirm the summary judgment if any one of the mov-ant’s theories, which supports the summary judgment, has merit. Star-Telegram, 915 S.W.2d at 473; Adams, 154 S.W.3d at 867.

III. NEGLIGENCE

In his first and second issues on appeal, Skiles argues: (1) the trial court erred when it granted summary judgment finding there was no evidence that Jack-in-the-Box breached “any” duty it owed to Skiles; and (2) the trial court erred when it granted summary judgment finding that there was no evidence that Jack-in-the-Box’s negligence was a proximate cause of Skiles’ injury.

A. Breach of Legal Duty Owed

In articulating his negligence claims, Sidles claims Jack-in-the-Box breached the following legal duties it owed him: (1) Jack-in-the-Box had a duty to provide him, as an employee, safe instrumentalities with which to do his job; (2) Jack-in-the-Box failed to warn him of the risk of using a ladder to unload the trailer; (3) Jack-in-the-Box never provided him with training in the use of a ladder and it did not inform him of the safety valve on the trailer; (4) Jack-in-the-Box had no policies warning employees that it was unsafe to use a ladder to unload a trailer when the lift gate did not function.

1. Applicable Law

In an action against an employer who is a nonsubsriber to workers’ compensation insurance, the plaintiff must prove the negligence of the employer. Tex. Lab. Code AnN. § 406.033(d) (Vernon 1996); see Werner v. Colwell, 909 S.W.2d 866, 868 (Tex.1995); see also Patino v. Complete Tire, Inc., 158 S.W.3d 655, 660 (Tex.App.Dallas 2005, pet. denied). The elements of a negligence cause of action are: (1) the defendant owed a particular duty to the plaintiff; (2) the defendant breached that legal duty; and (3) the breach of that legal duty proximately caused the plaintiffs injury. See Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998); see also Patino, 158 S.W.3d at 659.

The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). The existence of a legal duty is a question of law unless the parties dispute the facts giving rise to the duty. Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex.1998); Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 312 (Tex.1983).

As a general rule, an employer has the continuous and nondelegable duty to furnish safe machinery and instrumentalities with which its employees are to work. See Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 204 n. 45 (Tex.2004). The duty to provide safe instrumentalities is necessarily fact specific. Kroger Co. v. Keng, 976 S.W.2d 882, 885 (Tex.App.-Tyler 1998), aff'd, 23 S.W.3d 347 (Tex.2000).

The duty to warn or to caution an employee of a danger arises when: (1) the employment is of a dangerous character requiring skill and caution for its safe and proper discharge; and (2) the employer is aware of the danger and has reason to know that the employee is unaware of the danger. Patino, 158 S.W.3d at 660-61; Allen v. A & T Transp. Co., 79 S.W.3d 65, 70 (Tex.App.-Texarkana 2002, pet. denied).

An employer has a duty to adequately hire, train, and supervise employees. Patino, 158 S.W.3d at 660; Allen, 79 S.W.3d at 70. Although an employer is not an insurer of its employees’ safety at work, it has a duty to use ordinary care in providing a safe workplace. Patino, 158 S.W.3d at 660; Allen, 79 S.W.3d at 70. This includes providing rules and regulations for the safety of employees, warning employees of the hazards of their employment, and supervising their activities. Pa- tino, 158 S.W.3d at 660; Allen, 79 S.W.3d at 70. The age and experience of the employee should be considered in measuring the duty of the employer. Patino, 158 S.W.3d at 660; Allen, 79 S.W.3d at 70.

As an offshoot of the duty to adequately hire, train, and supervise employees, the employer also has a duty to instruct its employees in the safe use and handling of products and equipment used in and around an employer’s premises or facilities. Patino, 158 S.W.3d at 660 2005 WL 553644, at *3; Allen, 79 S.W.3d at 70. However, an employer’s duty to instruct applies to an inexperienced employee, not to an employee who is experienced in the work to which he is assigned. Patino, 158 S.W.3d at 660; Allen, 79 S.W.3d at 70. Further, an employer has no duty to adopt safety rules where its business is neither complex nor hazardous, or where the dangers incident to the work are obvious or are of common knowledge and fully understood by the employee. Patino, 158 S.W.3d at 660; Allen, 79 S.W.3d at 70.

2. Application of the Law to the Facts

The responsibility for Skiles’ work-related injuries is governed by principles of common-law negligence because Jack-in-the-Box is a nonsubscriber to workers’ compensation. See Tex. Lab.Code Ann. § 406.033(d) (Vernon 1996); Werner, 909 S.W.2d at 868; see also Patino, 158 S.W.3d at 660. To prove his negligence claim, Skiles must prove the following: (1) Jack-in-the-Box owed a particular duty to him; (2) Jack-in-the-Box breached that legal duty; and (3) Jack-in-the-Box’s breach of duty was a proximate cause of Skiles’ injury. See Van Horn, 970 S.W.2d at 544; see also Patino, 158 S.W.3d at 659.

a. Legal Duty Owed

Essentially, Skiles contends that Jack-in-the-Box owed him the following legal duties: (i) the duty to provide safe instru-mentalities; (ii) the duty to warn; (iii) the duty to adequately hire, train, and supervise; and (iv) the duty to instruct. Jack-in-the-Box responds that Skiles failed to produce “any” evidence that it owed a duty to Skiles. We address each of Skiles’ four contentions separately to determine whether Jack-in-the-Box owed him that particular “duty.”

i. Duty to Provide Safe Instrumentalities

First, Skiles claims Jack-in-the-Box had a legal duty to provide him with safe instrumentalities with which to do his job. The general rule is that an employer has the continuous and non-delegable duty to furnish safe machinery and instrumentalities. See Humble Sand & Gravel, Inc., 146 S.W.3d at 204 n. 45. Skiles satisfied his burden to establish this duty by providing more than a scintilla of evidence that he was an employee of Jack-in-the-Box.

We conclude Jack-in-the-Box had a legal duty to provide Skiles with safe instru-mentalities with which to do his job.

ii. Duty to Warn

Second, Skiles claims Jack-in-the-Box had a duty to warn him of the danger associated with using a ladder to unload a trailer when the lift gate did not function. Skiles offered no evidence showing that his employment at Jack-in-the-Box was of a dangerous character requiring skill and caution for its safe and proper discharge. See Allen, 79 S.W.3d at 70 (duty to warn if employment is of a dangerous character). Although ladders may be viewed as inherently dangerous equipment, Skiles admitted in his deposition testimony that Jack-in-the-Box did not require its drivers to use ladders to unload food product when a lift gate malfunctioned.

However, Skiles offered evidence that when he suggested he could use a ladder to get into the truck and unload, the supervisor said “Good.” Additionally, he offered evidence showing that Jack-in-the-Box’s supervisor knew the danger associated with the use of a ladder in the manner Skiles described to the supervisor before he used the ladder. The supervisor had reason to know Skiles was unaware of that danger because Skiles suggested it. See Allen, 79 S.W.3d at 70 (duty to warn when reason to know employee is unaware of danger). However, Skiles had previously encountered lift gate problems as both a driver and shift leader. These malfunctions were not an unexpected or unusual danger about which Jack-in-the-Box had knowledge and Skiles did not. Skiles knew the procedure to follow when a lift gate malfunctioned. This procedure did not involve using a ladder to enter the trailer. Any dangers associated with the use of a ladder were obvious to both Skiles and Jack-in-the-Box. Nevertheless, Skiles produced more than a scintilla of evidence showing Jack-in-the-Box owed a duty to warn.

We conclude Jack-in-the-Box owed a duty to warn to Skiles.

iii. Duty to Adequately Hire, Train, and Supervise

Third, Skiles claims Jack-in-the-Box had a duty to adequately hire, train, and supervise him, but failed to provide him with training on the use of a ladder and failed to inform him of the safety valve on the trailer. This duty is measured by the employee’s experience. Skiles had twenty-four years’ experience unloading food product and delivering it to Jack-in-the-Box restaurants. He was an experienced driver and familiar with the equipment used to perform his job. Skiles also trained new drivers on safety issues regarding operation of the tractor-trailer, loading and unloading of freight, and how to report problems with the tractor-trailer. Jack-in-the-Box’s tractor-trailers were equipped with lift gates to facilitate the loading and unloading of food products. Skiles was trained to operate lift gates, but Jack-in-the-Box neither trained nor required its drivers to repair them. Drivers were instructed to call the Rollins service center and the Jack-in-the-Box distribution center if they encountered tractor-trailer problems during a delivery. Skiles acknowledged he was aware of this procedure. Also, the summary judgment evidence shows he was a shift leader who knew the procedure to follow when a lift gate malfunctioned.

We conclude Jack-in-the-Box owed no duty to provide Skiles with training on the use of a ladder or inform him of the safety valve on the trailer.

iv. Duty to Instruct

Finally, Skiles claims Jack-in-the-Box had a duty to instruct by establishing and enforcing safety policies, but that Jack-in-the-Box had no policies warning employees that it was unsafe to use a ladder to unload a trailer when the lift gate did not function. Skiles offered no evidence suggesting his employment at Jack-in-the-Box was either complex or hazardous. See Allen, 79 S.W.3d at 70 (no duty to adopt safety rules where business is neither complex nor hazardous). Jack-in-the-Box did not require its drivers to use ladders to unload food product. Thus, any dangers associated with using a ladder to unload food product did not constitute dangers incident to Sidles’ work. Skiles failed to produce evidence showing Jack-in-the-Box owed a duty to establish and enforce safety policies.

We conclude Jack-in-the-Box did not owe a duty to instruct because Skiles produced no summary judgment evidence to the contrary.

b. Breach of Legal Duty

Based on our conclusion that Jack-in-the-Box owed Skiles a nondelegable duty to provide him with safe instrumentalities and the duty to warn him of the dangers associated with using a ladder to unload a trailer when the lift gate did not function, we must now review Skiles’ claims that Jack-in-the-Box breached these duties.

Skiles claims Jack-in-the-Box breached its duty to provide safe instru-mentalities because it failed to adequately maintain its lift gates. The only evidence Skiles produced to support this contention is that, as shift leader, he assisted other Jack-in-the-Box drivers with lift gate problems. Skiles offered no evidence regarding specific instances of the other lift gate failures or the circumstances surrounding the failures. The only support for Skiles’ contention is a general and con-clusory allegation in his affidavit. Skiles’ evidence constitutes less than a scintilla of evidence because it does nothing more than create a mere surmise or suspicion as to whether Jack-in-the-Box failed to adequately maintain its lift gates. 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). Because Skiles failed to satisfy his burden, we conclude there is no evidence showing Jack-in-the-Box failed to adequately maintain its lift gates.

Skiles also claims Jack-in-the-Box breached its duty to provide safe instru-mentalities because it failed to provide him with a functioning lift gate on the day of his injury. In support of this claim, Skiles produced evidence showing his lift gate would not function when making a scheduled delivery to a Jack-in-the-Box restaurant in Seguin, Texas. The evidence also indicates that both the Jack-in-the-Box traffic supervisor and Rollins service center acknowledged that Skiles’ lift gate would not function. Skiles satisfied his burden by producing more than a scintilla of evidence as to whether Jack-in-the-Box failed to provide him with a functioning lift gate on the day of his injury. King Ranch, Inc., 118 S.W.3d at 751. Accordingly, we conclude the trial court could not have properly granted Jack-in-the-Box’s no-evidence summary judgment motion on Skiles’ claim that Jack-in-the-Box breached its duty to provide safe instrumentalities.

In respect to Skiles’ claim that Jack-in-the-Box breached its duty to warn, Skiles offers his affidavit testimony regarding his desire to assure that the delivery was made to assure the restaurant has provisions to satisfy the “noon rush.” He claims he called his supervisor, advised him of the lift gate malfunction, advised he intended to use a step ladder to get up over the left gate, and the supervisor responded, “Good.” The supervisor did not recall what was said and testified in his deposition that he “would have” told Skiles to call Rollins, the lessor of the truck. After the conversation, Skiles proceeded to use the ladder and the injury occurred as described above. On this record, we conclude that Skiles met his burden to provide more than a scintilla of evidence. This evidence creates a fact issue. Therefore, the trial court erred when it granted Jack-in-the-Box’s no-evidence motion for summary judgment as to Skiles’ claim that Jack-in-the-Box breached its duty to warn.

Skiles’ first issue on appeal is decided in his favor. Having concluded Skiles satisfied his burden as to two of his breach of duty claims, we must next determine whether Skiles produced evidence showing his injury was proximately caused by Jack-in-the-Box’s breach.

B. Injury Proximately Caused by the Breach

In his second issue on appeal, Skiles argues the trial court erred when it granted summary judgment finding that there was no evidence that Jack-in-the-Box’s negligence was a proximate cause of Skiles’ injury. Jack-in-the-Box responds that there is no evidence showing its negligence was a proximate cause of Skiles’ injury. Specifically, Jack-in-the-Box responds that Skiles’ summary judgment evidence did not raise an issue of material fact on the issue of the “cause in fact” or the “but for” element of proximate cause.

1. Applicable Law

Proximate cause consists of cause-in-fact and foreseeability. See Leitch v. Hornsby, 985 S.W.2d 114, 118 (Tex.1996); Patino, 158 S.W.3d at 661. “Cause in fact” means the act or omission was a substantial factor in bringing about the injury and, without it, the harm would not have occurred. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992); see Patino, 158 S.W.3d at 661. “Foreseeability” means the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others. Travis, 830 S.W.2d at 98; Mo. Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex.1977). The test for foreseeability is whether the defendant, as a person of ordinary intelligence and prudence, should have anticipated the danger to others created by his act, although he is not required to anticipate just how the injuries will arise. Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex.1988).

Texas courts have routinely held that proximate causation is a fact question within the jury’s province. Berry Prop. Mgmt. v. Bliskey, 850 S.W.2d 644, 656 (Tex.App.-Corpus Christi 1993, writ dism’d by agr.) However, proximate cause becomes a question of law when the circumstances are such that, in the opinion of the court, reasonable minds could not arrive at different conclusions. Mo. Pac. R.R. Co., 552 S.W.2d at 103.

2. Application of the Law to the Facts

The burden is on Skiles to produce more than a scintilla of probative evidence to raise a genuine issue of material fact as to proximate cause. King Ranch, Inc., 118 S.W.3d at 751. The general rule is that Texas courts will find sufficient proof of causation when lay testimony establishes a sequence of events that provides a strong, logically traceable connection between the event and the condition. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984).

Sidles contends there is a logically traceable connection between using a ladder to jump over the lift gate and the “popping” and “pain” in his knees. In our view, Jack-in-the-Box’s failure to provide Skiles with a working lift gate does not connect any breach of a duty by Jack-in-the-Box to his injury. However, Skiles’ use of a ladder and jumping over the lift gate was attributable to Jack-in-the-Box’s failure to warn Skiles that his intended use of a ladder was unsafe. Skiles produced more than a scintilla of evidence connecting Jack-in-the-Box’s breach to his injury. Accordingly, we conclude the trial court erred when it granted Jack-in-the-Box’s no-evidence motion for summary judgment.

Skiles’ second issue on appeal is decided in his favor. Having resolved Skiles’ first and second issues in his favor, we must address his third issue on appeal, which concerns Jack-in-the-Box’s traditional motion for summary judgment on its affirmative defense.

IV. SOLE PROXIMATE CAUSE OF INJURY

In his third issue on appeal, Skiles argues the trial court erred when it granted summary judgment in favor of Jack-in-the-Box’s affirmative defense finding, as a matter of law, that Skiles’ negligence was the sole proximate cause of his injury. Jack-in-the-Box responds that Skiles was the sole proximate cause of his injury because he violated Jack-in-the-Box’s policy regarding how to handle malfunctioning lift gates.

A. Applicable Law

A nonsubscriber employer may not assert the following defenses in a negligence action against it: (1) that the employee was guilty of contributory negligence; (2) that the employee assumed the risk of injury or death; or (3) the injury or death was caused by the negligence of a fellow employee. Tex. Lab.Code Ann. § 406.033(a) (Vernon 1996); see Kroger, 23 S.W.3d at 349-53; see also Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 919 (Tex.App.-Beaumont 1999, pet. denied). However, a nonsubscriber employer is entitled to the defense of sole proximate cause. Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238, 239 (1955); see Tex. Lab.Code Ann. § 406.033(c)(1) (Vernon 1996).

An employer may defend itself by showing that it was not negligent in causing the injury or that its employee’s conduct was the sole proximate cause of the injury. See Lewis, 997 S.W.2d at 919; Brookshire Bros., Inc. v. Wagnon, 979 S.W.2d 343, 347 (Tex.App.-Tyler 1998, pet. denied). If the plaintiff was the sole proximate cause of his injury, then his recovery is prevented. See Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 371, 207 S.W.2d 365, 367 (1948). Sole proximate cause is ordinarily a fact issue. See id.

Sole proximate cause is not an affirmative defense. Walzier v. Newton, 27 S.W.3d 561, 563 (Tex.App.-Amarillo 2000, no pet.). Affirmative defenses are claims interposed to defeat a prima facie case established by the plaintiff. Id. The evidence offered to prove an affirmative defense does not rebut the factual propositions uttered by the plaintiff, but instead, serves to establish an independent reason for denying the plaintiff any recovery. Id. Sole proximate cause does not fit within this mold because it does not tend to interject an independent basis for denying the plaintiff recovery once he establishes a prima facie case. Id. at 563-64. Rather, sole proximate cause is an inferential rebuttal issue which, when invoked by the defendant, purports to negate an element of the plaintiffs cause of action. Id.

B. Application of the Law to the Facts

Jack-in-the-Box “move[d] for traditional summary judgment on [its] affirmative defense of sole proximate cause as plead [sic] in [its] answer.” Jack-in-the-Box was entitled to traditional summary judgment if it either: (1) conclusively negated at least one of the essential elements of Skiles’ cause of action; or (2) conclusively established each element of its affirmative defense. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); General Mills Restaurants v. Texas Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.Dallas 2000, no pet.). However, sole proximate cause is not an affirmative defense. See Walzier, 27 S.W.3d at 563-64. Further, based on our resolution of Skiles’ first and second issues on appeal that he raised an issue of fact to defeat Jack-in-the-Box’s no-evidence motion for summary judgment, we cannot conclude that had Jack-in-the-Box properly moved for traditional summary judgment that it conclusively negated at least one of the essential elements of Skiles’ cause of action.

Skiles’ third issue on appeal is decided in his favor.

V. CONCLUSION

We conclude the trial court erred when it granted summary judgment finding that there was no evidence that Jack-in-the-Box breached “any” duty owed to Skiles. We also conclude the trial court erred when it granted summary judgment finding that there was no evidence that Jack-in-the-Box’s negligence was a proximate cause-of Skiles’ injury. Finally, we conclude the trial court erred when it granted traditional summary judgment on Jaek-in-the-Box’s affirmative defense finding, as a matter of law, that Sidles’ negligence was the sole proximate cause of his injury. Skiles’ three issues on appeal are decided in his favor.

The trial court’s judgment is reversed and this case is remanded for further proceedings consistent with this opinion. Tex. R.App. P. 43.2(d).

      . Jack-in-the-Box argues that Skiles1 affidavit is a sham affidavit because it conflicts with his earlier deposition testimony and the subsequent affidavit testimony. Jack-in-the-Box filed a motion to strike Skiles' affidavit as a “sham affidavit” and as a bad faith affidavit under Texas Rule of Civil Procedure 166(a). The trial court denied Jack-in-the-Box’s motion without comment. A party cannot file an affidavit that contradicts that party’s own deposition testimony, without explanation, for the purpose of creating a fact issue to avoid summary judgment. When there is no explanation, it is assumed that the sole purpose of the affidavit was to avoid summary judgment, and as such, the affidavit merely presents a "sham” fact issue. Burkett v. Welborn, 42 S.W.3d 282, 286 (Tex.App.-Texarkana 2001, no pet.). In his deposition, Skiles stated he did not recall the substance of his conversation with the supervisor, but after the no-evidence motion for summary judgment was filed, his affidavit stated that when he discussed using a ladder to climb into the bed of the truck instead of waiting for the repair personnel, the supervisor said, "Good.” We recognize that there are variances between Skiles’ deposition testimony and his affidavit testimony. However, we cannot conclude these differences are so egregious that the trial court abused its discretion in refusing to strike the affidavit. See Shaw v. Maddox Metal Works, Inc., 73 S.W.3d 472, 478 (Tex.App.Dallas 2002, no pet.).


author: Justice MORRIS.

text:
    Eula YANCY, As the Guardian of the Person and The Estate of Carletha Yates, An Incapacitated Adult, Appellant v. UNITED SURGICAL PARTNERS INTERNATIONAL, INC., Valley View Surgical Center, Inc., and Judith Smith, R.N., Appellees.
    No. 05-04-00791-CV.
    Court of Appeals of Texas, Dallas.
    July 12, 2005.
    Rehearing Overruled Sept. 13, 2005.

      Bryce J. Denny, Cook Yancy Ring & Galloway, Shreveport, LA, for Appellant.
    Walter Andrew Herring, Vernon L Krueger, Chamblee & Ryan, P.C., Oscar Rey Rodriguez, Fulbright <& Jaworski L.L.P., Dallas, for Appellee.
    Before Justices MORRIS, FRANCIS, and LANG-MIERS.
   OPINION

Opinion By

Justice MORRIS.

In this medical malpractice case, the trial court granted summary judgment in favor of United Surgical Partners International, Inc., Valley View Surgical Center, Inc., and Judith Smith, R.N. on the ground that the claims against them had been filed outside the limitations period. Eula Yan-cy, as the guardian of the person and the estate of Carletha Yates, appeals the trial court’s judgment contending the statute of limitations governing Yates’s claims is unconstitutional as applied to her. Specifically, Yancy argues the statute of limitations violates the “open courts” provision of the Texas Constitution because Yates has been mentally incapacitated continuously since the incident from which her claims arose. After reviewing the summary judgment record, we conclude the trial court properly granted summary judgment in favor of United, Valley View, and Smith because Yancy did not present any competent summary judgment evidence in response to the defendants’ motion for summary judgment to create a fact issue about Yates’s alleged continuous mental incapacity. We affirm the trial court’s judgment.

I.

In May 2000, Carletha Yates underwent a lithotripsy procedure at Valley View Surgical Center. It is alleged that during the course of the procedure, Yates suffered cardio-pulmonary arrest resulting in a permanent anoxic brain injury. Some time after the incident, Yates’s mother, Eula Yancy, was appointed as the guardian of both Yates and her estate.

On December 10, 2001, Yancy, in her capacity as Yates’s guardian, filed a medical malpractice suit on behalf of Yates against Manuel R. Ramirez, M.D., the anesthesiologist who treated Yates during her surgery, and Ramirez’s professional association, Dallas Pain & Anesthesia Associates, P.A. Yancy alleged Ramirez was negligent in his care and treatment of Yates and that this negligence proximately caused Yates’s injuries. She also alleged that Ramirez acted with malice and sought punitive damages.

On September 2, 2003, Yancy filed a first amended petition and, for the first time, asserted claims for medical negligence and malice against the appellees in this appeal, United Surgical Partners International, Inc., Valley View Surgical Center, Inc., and Judith Smith, R.N. All three defendants answered and filed motions for summary judgment based on the statute of limitations. United, Valley View, and Smith argued the claims against them were governed by former article 4590i, and under article 4590i, all claims must be brought within two years of the date the cause of action accrued. It is undisputed that Yates’s claims accrued in May 2000.

In her response to the motions, Yancy conceded the suit against United, Valley View, and Smith was filed outside the limitations period. Yancy argued, however, that the statute of limitations did not bar Yates’s claims because the statute was unconstitutional as applied to Yates. According to Yancy, Yates has been mentally incapacitated continuously since the date of her surgery as a result of the defendants’ negligence. Therefore, the application of a limitations period to Yates’s claims would violate the “open courts” provision of the Texas Constitution.

In support of her response, Yates submitted the affidavits of two registered nurses: Anaise “Sis” Theuerkauf, CRRN, CCM and Cindy Sacker, RN, BSN, CNOR. Theuerkauf testified she was a certified rehabilitation nurse, certified case manager, and life care planner. She farther stated,

It is my opinion based upon personal observations, assessment, interviews and review of her medical records and diagnoses of her treating physicians that Carletha Yates is in a comatose, vegetative state, and, based on my review of her medical records, she has been in such a condition consistently and uninterrupted since her anoxic brain injury suffered on May 3, 2000, while a patient at Valley View Surgery Center. She has been totally disabled continuously since May 3, 2000.

Although some of Yates’s medical records were submitted as summary judgment evidence, the records made a part of the summary judgment record pertained only to Yates’s pre-operative assessments and her surgery on May 3, 2000. There are no medical records concerning Yates’s condition after the surgery in the summary judgment record.

In Sacker’s affidavit, she stated she was a registered nurse and a certified operating room nurse. Sacker further states that she reviewed Yates’s medical records from Valley View as well as various manuals, job descriptions, and depositions. Sacker goes on to opine that

Based upon my personal review, knowledge, experience and belief, ... [it] is my opinion that Valley View Surgery Center and nurse Judith Smith breached their duty of care owed to their patient, Carletha Yates, and that the breaches of duty and the applicable standards of care resulted in damage to Carletha Yates suffering a permanent anoxic brain injury.

Attached to Sacker’s affidavit is a report she wrote setting forth her conclusions relating to the alleged breaches of the applicable standard of care by the Valley View Surgical Center nursing staff. At the end of the report, Sacker states that Yates “... has suffered a catastrophic, irreversible, brain injury, rendering her comatose and totally unresponsive, requiring her family to assume responsibility for her care.”

United, Valley View, and Smith objected to Yancy’s summary judgment evidence arguing, among other things, that Theuer-kauf s and Sacker’s affidavits contained unsupported conclusions and failed to show how they were qualified to testify regarding Yates’s alleged mental incapacity. The defendants argued that because the affidavits were incompetent summary judgment evidence, Yancy failed to meet the threshold legal requirement of showing that Yates was mentally incapacitated continually since the date of her injury. Because Yancy failed to raise a fact issue about Yates’s alleged mental incapacity, the defendants contended Yancy could not show the statute of limitations was unconstitutional as applied to Yates.

The record does not contain a written ruling on the defendants’ objections to the summary judgment evidence. The trial court, however, granted summary judgment in favor of the defendants and dismissed the suit against them with prejudice. Yancy then non-suited her claims against Ramirez and Dallas Pain & Anesthesia Associates making the judgment final. Yancy brings this appeal challenging the summary judgment in favor of United, Valley View, and Smith.

II.

It is undisputed that the claims brought in this suit are health care liability claims and are subject to the rules and requirements of former article 4590i of the Texas Revised Civil Statutes. Section 10.01 of article 4590i states that “[njotwith-standing any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.” See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 10.01,1977 Tex. Gen. Laws 2052, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.09, 2003 Tex. Gen. Laws 864, 884 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.251 (Vernon 2005)). The section further states the limitations period applies regardless of “legal disability.” Id. This court and others have held that general tolling statutes tolling limitations periods due to unsound mind or mental incompetence of the plaintiff are part of the “other law” to which section 10.01 refers and makes such tolling statutes inapplicable to health care liability claims. See Jones v. Miller, 964 S.W.2d 159, 164 (Tex. App.-Houston [14th Dist.] 1998, no pet.); Waters v. Del-Ky, Inc., 844 S.W.2d 250, 255-56 (Tex.App.-Dallas 1992, no writ). Thus, there is no tolling provision for mental incapacity applicable to claims under article 4590i.

As part of their motions for summary judgment, United, Valley View, and Smith submitted evidence showing that Yates’s claims arose out of her surgery at Valley View and the date of her surgery and final treatment at Valley View was May 3, 2000. The defendants also submitted a copy of the first amended petition showing that suit against them was not filed until September 2, 2003-more than two years after the occurrence made the basis of Yates’s claims. This proof was sufficient to show, as a matter of law, that Yates’s claims were filed outside the limitations period. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 10.01, 1977 Tex. Gen. Laws 2052, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.09, 2003 Tex. Gen. Laws 864, 884 (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.251 (Vernon 2005)).

As stated above, Yancy did not dispute she filed Yates’s claims outside the two-year limitations period. Yancy’s sole argument to defeat the defendants’ motion for summary judgment was that the statute of limitations as applied to Yates’s claims would violate the “open courts” provision of the Texas Constitution. Yancy’s argument was based on her assertion that Yates was completely and continuously mentally incompetent from the date of her surgery until the date suit was filed and, therefore, had no ability either to bring suit or participate in a suit brought on her behalf. Because Yancy’s argument concerned a matter of confession and avoidance, Yancy had the burden of raising a fact issue with respect to her affirmative defense. See Chavez v. Davila, 143 S.W.3d 151, 156 (Tex.App.-San Antonio 2004, pet. denied). It was Yancy’s position in the trial court, and it is her position on appeal, that Yates’s complete mental incapacity is beyond dispute. What is unquestionably in dispute, however, is the sufficiency of the summary judgment evidence submitted by Yancy to show Yates’s mental incapacity.

The limitations period set forth in section 10.01 has been found violative of the Texas Constitution in several cases. In Weiner v. Wasson, the Texas Supreme Court concluded that section 10.01 was unconstitutional as applied to minors. See Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex.1995). The supreme court has yet to address the constitutionality of the limitations period as applied to those who are mentally incapacitated. Several intermediate appellate courts, however, have analogized the situation faced by a mentally incapacitated plaintiff to the situation of a minor to conclude that a statute of limitations that does not toll the limitations period for those who are mentally incapacitated is unconstitutional as applied to a plaintiff who has been shown to be mentally incompetent continuously from the time of injury until the time suit is filed. See Tinkle v. Henderson, 730 S.W.2d 163, 167 (Tex.App.-Tyler 1987, writ ref'd); Felan v. Ramos, 857 S.W.2d 113, 117 (Tex.App.-Corpus Christi 1993, writ denied); Palla v. McDonald, 877 S.W.2d 472, 477 (Tex.App.-Houston [1st Dist.] 1994, no writ). Indeed, it has been noted that “mentally incompetent persons present a more compelling case for legal protection” than minors because they are “frequently less communicative, more vulnerable and dependent than children.” See Tinkle 730 S.W.2d at 166. Furthermore, “[t]he mentally incompetent are less likely than children to have someone intimately interested in their welfare and inclined to act on their behalf.” Id.; see also Ruiz v. Conoco, 868 S.W.2d 752, 755 (Tex.1993) (citing Tinkle favorably for the proposition that mental incompetents and minors are viewed as substantially similar with respect to need for legal protection).

Common to all the cases holding the statute of limitations for health care liability claims unconstitutional as applied to an incompetent plaintiff is the requirement that the plaintiff show her mental impairment was continuous and totally incapacitating from the time of injury until the time suit was filed. Because the situation faced by a mentally incapacitated plaintiff has been compared to that of a minor child, the legal disability faced by the incompetent plaintiff must be uninterrupted in the same way that a minor’s legal disability is continuous until he reaches the age of majority. In Jones v. Miller, the court affirmed a summary judgment in favor of the defendants on the basis of limitations because it concluded the plaintiff failed to provide competent summary judgment evidence to show her alleged mental impairment was continuously and totally disabling from the time of her injury until the time she filed suit. See Jones, 964 S.W.2d at 165. Accordingly, to defeat the motions for summary judgment filed by United, Valley View, and Smith, Yancy was required to produce specific, competent summary judgment evidence sufficient to raise a fact issue regarding her mental capacity to pursue litigation from May 3, 2000 to August 2, 2003. Cf. Grace v. Colorito, 4 S.W.3d 765, 769-70 (Tex.App.-Austin 1999, pet. denied).

The only summary judgment evidence of mental incapacity Yancy provided in response to the defendants’ motion for summary judgment was the affidavits of nurses Theurerkauf and Sacker. As we previously stated, the defendants filed numerous objections in the trial court to the two affidavits contending the nurses were not qualified to testify regarding Yates’s condition and their statements were nothing more than unsupported conclusions. Although the defendants did not obtain rulings from the trial court on their objections, the alleged defects in the testimony go to the substance of the affidavits and, therefore, the failure to obtain a ruling did not waive the objections. Objections to the substance of an affidavit may be raised for the first time on appeal. See Brown v. Brown, 145 S.W.3d 745, 751 (Tex.App.Dallas 2004, pet. denied) (conclusory affidavits are substantively defective and failure to obtain ruling on objection does not result in waiver); Bray v. Fuselier, 107 S.W.3d 765, 770 (Tex.App.-Texarkana 2003, pet. denied) (whether expert is qualified goes to substance of affidavit).

In Theuerkaufs affidavit, she states she is “a certified rehabilitation registered nurse, certified case manager, and life care planner who has been duly licensed in nursing in Louisiana, Texas, Mississippi, Arkansas, Alabama, and Tennessee.” Theuerkauf provides no other evidence of her qualifications as a medical expert. Theuerkauf goes on to state that, based upon her personal observations, assessment, interviews, and a review of Yates’s medical records and diagnoses of Yates’s treating physicians, it is her opinion that Yates is in a “comatose, vegetative state” and has been in such a condition “consistently and uninterrupted” since May 3, 2000. Finally, Theuerkauf opines that Yates has been “totally disabled” since the date of her surgery. Theuerkaufs affidavit does not set forth any of the facts upon which her opinion is based. Nor are any of Yates’s medical records attached to the affidavit. Yates’s medical records from Valley View were attached to Yancy’s response to the motion for summary judgment. These records, however, do not continue beyond May 3, 2000, the date of the incident.

Although nurses are not per se barred from providing an expert opinion in a medical malpractice case, a testifying nurse must demonstrate how the matters about which she is opining fall within her knowledge, skill, experience, and training. See Crocker v. Paulyne’s Nursing Home, Inc., 95 S.W.3d 416, 422 (Tex.App.-Dallas 2002, no pet.). In short, the nurse must demonstrate her qualifications. And, as a matter of statutory regulation, nurses are prohibited from making any type of medical diagnosis. See Tex. Occ.Code Ann. § 301.002 (Vernon 2004). Nurses necessarily lack the requisite qualifications, therefore, to testify on subjects that require making a medical diagnosis. See Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 248 (Tex.App.San Antonio 2004, no pet.).

Theuerkaufs statement that Yates has been in a “comatose, vegetative state” consistently since the date of her surgery is a medical diagnosis that Theurkauf has not shown herself qualified to render. Theur-kauf did not establish that she had any specialized expertise as a nurse to provide legally competent testimony about Yates’s mental condition. See Crocker v. Paulyne’s Nursing Home, Inc., 95 S.W.3d at 422. Furthermore, there is no evidence to indicate the extent to which Theuerkaufs opinion is based on her personal observations and to what extent she is simply relying on the opinions of others. In her affidavit, Theuerkauf states that her opinion is based in part on Yates’s medical records and “the diagnoses of her treating physicians.” But none of these records or diagnoses are in the summary judgment record, and an affidavit that merely assumes that another’s diagnosis is correct is not proper summary judgment evidence. See Elliott v. Methodist Hosp., 54 S.W.3d 789, 795 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). Based on the foregoing, we conclude Theuerkauf s affidavit expressing a medical diagnosis is not competent summary judgment evidence to show that Yates was continually and totally mentally incapacitated from the time of her injury until the time she filed suit.

We do not foreclose the possibility, however, that a nurse or even a lay person could, without expressing a medical diagnosis, provide competent summary judgment proof that a plaintiff has been continually and completely mentally incapacitated from the time of the injury until the time suit was filed. Cf. Praytor v. Ford Motor Co., 97 S.W.3d 237, 241 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (lay person testimony will suffice when general experience and common sense enable lay person to form opinion). It is conceivable that even a non-expert witness could testify to facts sufficient to demonstrate the plaintiff was incapable of either bringing suit or understanding or participating in a suit brought on her behalf during the limitations period. For example, a witness could testify that she cared for the plaintiff or was in the presence of the plaintiff on an ongoing basis from the time of her injury and, at all relevant times, the plaintiff was unresponsive, uncommunicative, and incapable of caring for herself. Given a sufficient factual basis, expert medical testimony may not be necessary to raise a fact issue about a mental impairment being continuous and disabling.

Here, Theuerkauf states in her affidavit that she personally visited and assessed Yates. But she sets forth no facts or observations from that assessment to support her opinion that Yates has been “totally disabled” since the date of her surgery. Affidavits in support of or opposing a motion for summary judgment must be factual to have probative value. See Hodgkins v. Bryan, 99 S.W.3d 669, 674 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Conclusory statements are not proper summary judgment proof. Id. Because Theuerkauf s statements were wholly conclusory in nature and her affidavit contained no supporting facts, her testimony is insufficient to raise a fact issue about Yates’s mental capacity during the limitations period.

Sacker’s affidavit is similarly flawed. By merely setting forth her certifications as a registered nurse, Sacker has not shown herself qualified to render the diagnosis that ‘Tates is suffering a permanent anoxic brain injury.” In addition, not only does Sacker’s affidavit fail to include any facts sufficient to show that Yates was continually mentally incapacitated from the date of her surgery until the date suit was filed, but Sacker also states that her opinion regarding Yates’s condition is based entirely on her review of Yates’s medical records from Valley View and the deposition transcripts of those involved with her care at Valley View. Yates was not treated at Valley View after May 3, 2000. Therefore, Sacker could not have formed an opinion about Yates’s condition after that date.

We recognize that in fifing her response to the motion for summary judgment, Yan-cy believed it was “truly uncontroverted” that Yates was in a permanent vegetative state and that to suggest otherwise would be “sanctionable.” The defendants specifically did controvert the matter, however, and, unfortunately, Yancy’s beliefs did not relieve her of the burden of providing competent summary judgment proof relating to Yates’s mental incapacity. Because Yancy failed to provide competent summary judgment evidence regarding Yates’s mental capacity, she failed to raise a fact issue about the constitutionality of the statute of limitations for health care liability claims as applied to Yates. We affirm the trial court’s summary judgment in favor of United, Valley View, and Smith.

      . Yancy’s amended petition is file stamped September 2, 2003, two days after article 4590i was effectively repealed. In passing the new Medical Liability Act, the legislature specified that "[a]n action filed before the effective date of this Act, including an action filed before that date in which a party is joined or designated after that date, is governed by the law in effect immediately before the change in law made by this Act, and that law is continued in effect for that purpose.” See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 23.02(d), 2003 Tex. Gen. Laws 864, 899. Furthermore, it appears that Yancy placed her amended petition in the mail to the court clerk on August 28, 2003, and, therefore, the "mailbox rule” would bring the claims under the former law. See Bailey v. Hutchins, 140 S.W.3d 448, 451 (Tex.App.Amarillo 2004, pet. denied). Finally, for the purposes of our discussion, there is no substantive difference between the old law and the new law as both acts include a two-year statute of limitations for health care liability claims regardless of any "legal disability” of the claimant.


author: W. KENNETH LAW, Chief Justice.

text:
    Willie Hampton BELL, Sr., Appellant v. The STATE of Texas, Appellee.
    No. 03-04-00357-CR.
    Court of Appeals of Texas, Austin.
    July 20, 2005.
    Scott K. Stevens, Stevens & Stevens, Attorneys at Law, P.C., Harker Heights, TX, for Appellant.
    John K. Greenwood, Assistant County and District Attorney, Lampasas County, Lampasas, TX, for Appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

W. KENNETH LAW, Chief Justice.

After his motion to quash the indictment was overruled, appellant Willie Hampton Bell, Sr., pleaded guilty to felony driving while intoxicated. See Tex. Pen.Code Ann. § 49.04(a) (West 2003), § 49.09(b)(2) (West Supp.2004-05). As called for in a plea bargain, the court assessed a six-year prison sentence and placed appellant on community supervision. Appellant’s sole issue on appeal is whether the court erred by overruling the motion to quash. See Tex. R.App. P. 25.2(a)(2)(A). We will affirm.

Driving while intoxicated is a third degree felony if the defendant has previously been convicted two times for an “offense relating to the operating of a motor vehicle while intoxicated.” Tex. Pen.Code Ann. § 49.09(b)(2). An “offense relating to the operating of a motor vehicle while intoxicated” includes an offense under section 49.04 and “an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.” Id. § 49.09(c)(1)(A), (F). In this cause, the indictment alleged that appellant had twice been convicted in the United States District Court, Western District of Texas, Waco Division for driving while intoxicated. Appellant argues that the enhancement allegations should have been quashed because the United States is not “another state,” and therefore the two federal court convictions could not be used for enhancement under section 49.09(c)(1)(F). The State replies, and we agree, that section 49.09(c)(1)(F) is not applicable here.

Appellant was prosecuted in federal district court pursuant to the Assimi-lative Crimes Act. 18 U.S.C.A. § 13 (West 2000). Under this statute, a person who commits an act in a place subject to exclusive federal jurisdiction that is not a crime under federal law, but that would be a crime if committed within the jurisdiction of the state in which the place is located, “shall be guilty of a like offense and subject to a like punishment.” Id. § 13(a). “The purpose of the Assimilated [sic ] Crimes Act ... is to provide a set of criminal laws for federal enclaves by using the criminal law of the local state to fill gaps in federal criminal law.” United States v. Teran, 98 F.3d 831, 834 (5th Cir.1996). The state offense is “imported into federal law through the ACA.” Id.

Although appellant’s previous convictions were in federal court, the convictions were for offenses under Texas Penal Code section 49.04. They were properly used for enhancement under section 49.09(c)(1)(A). Section 49.09(c)(1)(F) is not implicated in this cause, and we express no opinion as to whether the United States should be considered “another state” within the meaning of that subsection.

The judgment of conviction is affirmed.

      . The earlier judgment states that the prosecution was under "18 USC 13 & Texas Penal Code § 49.04." The more recent judgment states that the prosecution was under "18 USC 13 & Texas Penal Code § 49.09(a).”