author: Justice RODRIGUEZ.

text:
    MISSION CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Appellant, v. Gloria GARCIA, Appellee. Mission Consolidated Independent School District, Appellant, v. Melinda Sotuyo, Appellee. Mission Consolidated Independent School District, Appellant, v. Deborah Medina, Appellee.
    Nos. 13-04-668-CV, 13-05-021-CV, 13-05-060-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    June 30, 2005.
    Rehearing Overruled July 21, 2005.

      David P. Hansen, Schwartz & Eichelb-aum, Austin, for appellant.
    Carlos E. Hernandez, Edinburg, Savannah L. Robinson, Danbury, for appellee.
    Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.
   OPINION

Opinion by

Justice RODRIGUEZ.

This opinion addresses three separate interlocutory appeals. Appellees, Gloria Garcia, Melinda Sotuyo and Deborah Medina, each filed a wrongful termination lawsuit against appellant, Mission Consolidated Independent School District (MCISD) and its superintendent, H.F. “Jackie” Dyer. MCISD filed a plea to the jurisdiction in each case asserting immunity under section 101.106 of the Texas Civil Practice and Remedies Code. The trial courts denied appellant’s pleas, and this appeal ensued. Because we find that section 101.106 does not apply to the facts of this case, we affirm the orders of the trial courts.

By four issues, appellant contends that its pleas to the jurisdiction should not have been denied because the plain language of section 101.106(b) grants MCISD immunity from suit. Appellees argue that section 101.106(b) does not apply to the facts of this case. The resolution of this case is a matter of statutory construction.

We review matters of statutory construction de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003); City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex.2000). In construing a statute, our primary objective is to determine and give effect to the Legislature’s intent. Tex. Dep’t. of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004); City of San Antonio, 111 S.W.3d at 25; State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002); see Tex. Gov’t Code Ann. § 312.005 (Vernon 1998). In discerning that intent, we look first to the plain and common meaning of the statute’s words. Gonzalez, 82 S.W.3d at 327. We determine legislative intent from the entire act and not just isolated portions of the act. City of Sunset Valley, 146 S.W.3d at 642; City of San Antonio, 111 S.W.3d at 25. If the statutory language is unambiguous, we must in: terpret it according to its terms, giving meaning to the language consistent with other provisions in the statute. City of Sunset Valley, 146 S.W.3d at 642. We are mindful that “every word in a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction is that each sentence, clause and word is to be given effect if reasonable and possible.” Perkins v. State, 367 S.W.2d 140, 146 (Tex.1963). We should also presume the Legislature intended a “result feasible of execution” when it enacted the statute. In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex.1999). We also consider the objective the statute seeks to obtain and the consequences of a particular construction. Id.; see Tex. Gov’t Code Ann. § 311.023(3),(5) (Vernon 1998). With these principles in mind, we turn to the statutory language to be construed.

Section 101.106 of the civil practice and remedies code reads as follows:

(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.
(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.
(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.
(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

Tex. Civ. PRAC. & RemlCode Ann. § 101.106 (Vernon 2005).

Appellant argues that according to the plain language of section 101.106(b), suit is barred as to MCISD because each suit was also filed against Dyer, MCISD’s employee. We disagree. Reading the entire section and giving effect to each sentence, clause and word as we are required to do, it is apparent that section 101.106 generally does not apply in this case.

Reading section 101.106 in its entirety, we find the applicability of each subsection is determined by the party the plaintiff chooses to sue. Section 101.106 is a comprehensive statute which specifically deals with possible options regarding the parties to a Texas Tort Claims Act suit: (1) when suit is filed against the governmental unit, suit or recovery against the individual employee regarding the same subject matter is barred by section 101.106(a); (2) when suit is filed against the government employee, suit or recovery by the plaintiff against the governmental unit regarding the same subject matter is barred absent consent of the governmental unit by section 101.106(b); and (3) when suit is filed against both the employee and governmental unit, suit against the employee shall immediately be dismissed on the governmental unit’s filing of a motion to dismiss under section 101.106(e). Villasan v. O’Rourke, No. 09-04-409 CV, 166 S.W.3d 752, 759, 2005 WL 1242164, at *4, 2005 Tex.App. LEXIS 4022, at *10-11 (Tex. App.-Beaumont, May 26, 2005, no pet. h.). Looking at the plain language of the statute, we find this is the only conclusion to be drawn which gives effect to each subsection and leads to a result feasible of execution. See City of Sunset Valley, 146 S.W.3d at 642; City of San Antonio, 111 S.W.3d at 25; Gonzalez, 82 S.W.3d at 327; In re Mo. Pac. R.R. Co., 998 S.W.2d at 216.

Appellees each filed their petition naming both MCISD and Dyer as defendants. Therefore, only subsection (e) could apply. However, subsection (e) applies only if “a suit is filed under this chapter.” Reviewing the record we find that no claims were brought pursuant to the tort claims act. Therefore, subsection (e), the only potentially applicable subsection under 101.106, does not apply.

Furthermore, contrary to appellant’s argument, we do not believe section 101.106(b) can be read to apply to claims brought outside of the tort claims act. The legislature did not include any language within section 101.106 specifically, or the tort claims act in general, which would suggest that 101.106(b) applies to any cause of action. Because section 101.106 is part of the tort claims act, and in light of the language in the corresponding subsections limiting application to suits filed under chapter 101, we cannot conclude that section 101.106(b) was intended to apply to any claims other than those brought pursuant to the tort claims act. Since no claims were brought under the tort claims act in this case, we conclude section 101.106 does not apply.

Because section 101.106 was the basis for appellant’s plea to the jurisdiction and we determined that it is not applicable in this case, we find the trial courts did not err in denying appellant’s pleas to the jurisdiction. Appellant’s issues are overruled.

Accordingly, the orders of the trial courts are affirmed.

      . This Court has jurisdiction pursuant to section 51.014(a)(5) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5) (Vernon Supp. 2004-05).

      . Dyer is not a party to this appeal.

      .The three cases were consolidated for briefing purposes on appeal. Because the cases arise from the same fact situation and present similar issues for our review, they will be disposed of in a single opinion.

      . Appellees allege causes of action pursuant to common law and chapter 21 of the Texas Labor Code (Texas Commission on Human Rights Act). See Tex Lab.Code Ann. § 21.001 et seq. (Vernon Supp.2004-05).


source: Caselaw Access Project

author: Justice CASTILLO.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Evon KELLY, Appellee.
    No. 13-04-114-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    June 30, 2005.

      Carlos Valdez, Nueces County Dist. Atty., Lance A. Watt, Asst. Dist. Atty., Corpus Christi, for state.
    Joseph V. Collina, John S. Gilmore, Jr., Gilmore & Granberry, Corpus Christi, for appellee.
    Before Justices RODRIGUEZ, CASTILLO and GARZA.
   OPINION

Opinion by

Justice CASTILLO.

The trial court granted appellee Evon Kelly’s pretrial motion to suppress blood-alcohol test results from blood extracted for purposes of medical treatment. The State of Texas appeals from that ruling. We reverse and remand.

I. FACTS

On or about March 5, 2001, Kelly was operating a motor vehicle on a public roadway. Her minor son was a passenger in the back seat of the vehicle. Kelly turned left after stopping at an intersection and collided with an oncoming vehicle. The child was ejected. Both Kelly and her son were transported for emergency medical treatment. The two occupants from the other vehicle were similarly transported for emergency treatment. At the emergency room, a phlebotomist drew blood for purposes of Kelly’s medical treatment. Police officers contacted Kelly at the hospital and smelled a strong odor of alcohol. When police officers requested a blood specimen, she refused. Pursuant to a grand jury subpoena, the blood test results were secured. The results showed a blood-alcohol concentration above the legal limit of .08. The State subsequently charged Kelly with the offense of driving while intoxicated.

Our review of the record shows that the State filed a rule 902(10) notice of its intent to offer business records by affidavit. See Tex.R. Evid. 910(10). A certified copy of Kelly’s hospital records are attached to the motion. Kelly responded by filing a motion to suppress evidence of the blood test results, asserting as grounds that the blood was drawn without her effective and informed consent. The trial court convened an evidentiary hearing on Kelly’s motion to suppress. Kelly and the hospital employee who extracted the blood, Don Gosson, testified. Kelly denied she consented to the extraction of her blood, admitted she consented, and then denied consent. Gosson testified that Kelly consented and, had she not consented, he would not have drawn blood. The trial court requested additional briefing. The parties complied. The trial court granted the motion to suppress, thus, ruling the evidence inadmissible at trial. This appeal ensued.

II. STANDARD OF REVIEW

A motion to suppress is a specialized objection to the admissibility of evidence.. Morrison v. State, 71 S.W.3d 821, 826 (Tex.App.-Corpus Christi 2002, no pet.) (citing Galitz v. State, 617 S.W.2d 949, 952 n. 10 (Tex.Crim.App.1981) (op. on reh’g) (en banc)). Kelly espouses the well-settled bifurcated standard of review in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) (en banc). Guzman instructs that the relevant standard of review depends on the type of question presented. Id.; Pena v. State, 61 S.W.3d 745, 752 (Tex.App.-Corpus Christi 2001, no pet.). We afford almost total deference to the trial judge’s determination of questions of historical facts supported by the record, especially those facts based on an evaluation of credibility and demeanor. Pena, 61 S.W.3d at 752. We apply the same standard when reviewing the trial judge’s rulings on “application of law to fact questions,” also known as “mixed questions of law and fact,” where the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. When considering “mixed questions of law and fact” which do not turn on an evaluation of credibility and demeanor, de novo review is appropriate because the trial judge is not in an appreciably better position than the appellate court to decide the issue. Id. Most reviews of motion to suppress cases will be under a bifurcated standard, in which the historical determination made by the trial court will be accorded total deference while the application of the law to the facts will be analyzed under a de novo standard of review. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000) (en banc).

In the absence of explicit fact findings, we assume that the trial court’s ruling is based on implicit fact findings supported in the record. See Carmoucke v. State, 10 S.W.3d 323, 332 (Tex.Crim.App. 2000) (recognizing implicit fact findings); Ross, 32 S.W.3d at 855; Perales v. State, 117 S.W.3d 434, 437 (Tex.App.-Corpus Christi 2003, pet. refd). We then review de novo whether the facts, express or implied, are sufficient to provide legal justification for admitting the complained-of evidence. See Morrison, 71 S.W.3d at 827 (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001)).

We uphold a trial court’s ruling on a suppression motion if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996) (en banc); Perales, 117 S.W.3d at 438. This is true even if the decision is correct for reasons different from those espoused by the trial court. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990) (en banc).

III. DISCUSSION

By one issue, the State asserts that the trial court abused its discretion in suppressing blood-alcohol test results. The State obtained the results pursuant to a grand jury subpoena of Kelly’s medical records after a traffic accident. The State maintains there is no reasonable expectation of privacy as to the results. Kelly counters that the trial court properly suppressed the evidence because the results were obtained without a valid search warrant, a court order, or Kelly’s effective consent.

We address first Kelly’s contentions that the results are properly excluded in the absence of a valid search warrant and a court order. Generally speaking, taking a blood sample is a search and seizure within the scope of the Fourth Amendment to the United States Constitution and article I, section 9 of the Texas Constitution. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Miff v. State, 627 S.W.2d 166, 169 (Tex.Crim.App.1982). Kelly based her complaint on the three following grounds: (1) the initial blood draw was performed in violation of the law because she did not consent; (2) she was assaulted; and (3) the results were illegally disclosed to law enforcement officers. Because the blood extraction did not involve police conduct, the Fourth Amendment search and seizure principles were not implicated. See Clark v. State, 933 5.W.2d 332, 333 (Tex.App.-Corpus Christi 1996, no pet.); see also St. Clair v. State, 26 S.W.3d 89, 102 (Tex.App.-Waco 2000, pet. ref d); State v. Hurd, 865 S.W.2d 605, 606-07 (Tex.App.-Fort Worth 1993, no pet.); Weaver v. State, 721 S.W.2d 495, 498 (Tex.App.-Houston [1st Dist.] 1986, pet. refd).

Similarly, the absence of consent for emergency care is not required if a court of record orders the treatment of an individual who is in an imminent emergency to prevent the individual’s serious bodily injury or loss of life. Tex. Health & Safety Code Ann. § 773.008(2) (Vernon 2003). Kelly did not assert to the trial court this theory in support of her motion to suppress. We do not address it on appeal. See Hailey v. State, 87 S.W.3d 118, 120-22 (Tex.Crim.App.2002). Accordingly, in the context of the sole issue before us, we conclude that the absence of a search warrant or a court order are not theories of law applicable to the case before us. See Villarreal, 935 S.W.2d at 138.

Illegally obtained evidence, whether procured by private individuals or by police officers, is strictly inadmissible in Texas criminal proceedings under article 38.23. See Tex.Code CRIM. PROC. Ann. art. 38.23(a) (Vernon 2005). The article applies to private citizens. State v. Johnson, 939 S.W.2d 586, 587-88 (Tex.Crim.App. 1996) (en banc). Thus, if Kelly’s blood was taken in violation of any state or federal law or constitutional provision, not only the blood but also the results of the blood test would be properly suppressed. See id. at 588; Johnson v. State, 871 S.W.2d 744, 750 (Tex.Crim.App.1994); Bell v. State, 724 S.W.2d 780, 787 (Tex.Crim.App.1986). We turn to the opposing theories the parties presented to the trial court: (1) no reasonable expectation of privacy, and (2) lack of consent. See Hailey, 87 S.W.3d at 120-22. While the evidence in the present case was disputed, we conclude that the issue to be decided did not turn on credibility or demeanor. Accordingly, we will grant almost complete deference to the trial court’s finding of the historical facts and review de novo the application of the law to the facts. Pena, 61 S.W.3d at 752.

A. No Reasonable Expectation of Privacy

As the State correctly asserts, the Court of Criminal Appeals has held that an accused does not have a legitimate expectation of privacy in medical records containing blood-alcohol test results “taken by hospital personnel solely for medical purposes after a traffic accident.” State v. Hardy, 963 S.W.2d 516, 527 (Tex.Crim.App.1998). The State argues, that the evidence of Kelly’s blood-alcohol concentration contained in the medical record was duly obtained pursuant to a grand jury subpoena. Thus, says the State, the record is admissible.

The parties do not dispute that Kelly’s blood was drawn solely for medical purposes. Our review of the record reaches the same conclusion. Accordingly, we conclude that Kelly does not have a legitimate expectation of privacy in her blood-alcohol test results. Hardy, 963 S.W.2d at 527; Clark, 933 S.W.2d at 333. Because the Fourth Amendment does not confer a reasonable expectation of privacy under these circumstances, Kelly has no grounds to complain of an unreasonable search or seizure under the Fourth Amendment. See Weaver, 721 S.W.2d at 498; see also Spebar v. State, 121 S.W.3d 61, 65 (Tex.App.-San Antonio 2003, no pet.) (holding that constitutional error is not implicated where the record does not establish hospital personnel were acting as state agents for law enforcement purposes when the blood was drawn and analyzed). Kelly has not challenged the grand-jury subpoena process. See Garcia v. State, 95 S.W.3d 522, 526-27 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Dickerson v. State, 965 S.W.2d 30, 31 (Tex.App.-Houston [1st Dist.] 1998, pet. dism’d, improvidently granted). We conclude that the medical record, including the blood-test results, would be admissible under the theory that Kelly has no expectation of privacy under Hardy. However, our inquiry does not end here. Kelly complains that the tests results were rendered inadmissible under article 38.23(a) of the code of criminal procedure because the blood was illegally obtained by a person (not an officer) in violation of the following laws of the State: (1) the Texas Penal Code, governing assault; and (2) the Texas Health and Safety Code, governing consent for medical treatment. Thus, we must consider admissibility under article 38.23(a). See Tex.Code CRiM. Proc. Ann. art. 38.23 (Vernon 2005).

B. Lack of Consent

Essentially, Kelly asserts that the absence of her “effective consent” is fatal to the admissibility of the test results. She asserts that her blood was drawn in violation of the law and, thus, the test results were properly suppressed as inadmissible under article 38.23. Id. We turn to the testimony adduced at the motion to suppress hearing.

1. The Record

Two witnesses testified at the hearing-Kelly and the phlebotomist who drew the blood. Kelly testified first on direct examination:

Q: Did they ever ask you for consent to do that [draw blood]?
A: Not that I recall, no.
Q: When they drew the sample, were you conscious?
A: Yes, I was.
Q: Were you aware of your circumstances?
A: Yes.
Q: Were you able to answer questions of people who were treating you?
A: Yes.
Q: Do you recall — any person asking you whether or not you gave consent or approval for the blood draw?
A: No, I do not.
Q: Okay. And did you consent to the blood draw?
A: No.
Q: Were you ever presented a — any documentation so that you could consent?
A: No.
Q: You were given documentation to consent to a surgical procedure that happened sometime later at your stay at the hospital, is that correct?
A: Yes.
Q: Do you remember the blood draw? A: Yes, I do.
Q: Did it hurt you?
A: Yes.
Q: Okay. Caused you physical pain?
A: Yes.
Q: Did you ever give your husband consent — permission to consent to medical treatment for you? A: No.
Q: And, in particular, the blood draw? A: No.
On cross-examination by the prosecutor, Kelly testified as follows:
Q: Mrs. Kelly, did you ever object to any treatment you had received that day?
A: No.
Q: Was your husband present in the room with you that day?
A: For part of the time, yes.
Q: Okay. Was he present when they drew the blood?
A: I do not believe so.
Q: But he could have been present, is that correct?
A: That’s true....
Q: Do you know the time that your husband was present in your hospital room with you did — at any time did you hear your husband object to any treatment that was being provided by the personnel at Spohn?
A: No.
Q: How many times did they draw your blood, if you recall?
A: I do not recall that.
Q: Could it have been more than once? A: I believe it was only one time.
Q: Are you claiming then that you were assaulted by someone because you did not give consent?
A: Yes....
Q: Was it a male or a female who took the blood from you, ma’am?
A: I do not really recall. There were several people around me at that time.

Don Gosson, the emergency room technician/phlebotomist, testified that, on May 5, 2001, one of his duties was to draw blood. On that day, Kelly was “in a trauma situation ... she had a C-collar on her, and she was on a back board, and she was restrained, so she was given priority.” He testified that Kelly was conscious and able to talk to him. He received orders to draw blood on meditech. He further testified:

Q: As far as meditech, can you explain what meditech is?
A: It’s just a series of medical orders or medical blood draw requests that come in. It’s like — it’s a series of orders that comes out that we use to obtain the type of blood draw that is requested. Q: That’s used at the ... direction of the hospital?
A: Correct.
Q: And it’s in no way related to the police department ... or their investigation?
A: No.

He testified that a police officer did not tell him to draw the blood. He testified he asked Kelly for her consent to draw blood:

Q: Did you obtain that consent?
A: I obtained her consent.
Q: She didn’t tell you, “No, you can’t have my blood?”
A: I wouldn’t have drew it.... She didn’t tell me no.
Q: If she had told you you can’t draw her blood you indicated you wouldn’t have done it. What would you have done after that?
A: If she had stated that I could not obtain her blood from her I would have told her that’s okay. I wouldn’t have drew her blood. I would have left. I
would have reported that to the nurse and, you know, that’s all I can do.
Q: But in this case she didn’t tell you?
A: No, I wouldn’t have drew her blood.

On cross-examination, Gosson testified:

Q: And that’s what she did in this case, was she acquiesced to what you told her you were there to do?
A: Correct.
Q: And you went in, you told her, “I’m here to draw your blood” and you put the band on her arm and she didn’t fight, right?
A: Correct.
Q: She didn’t struggle with you?
A: No.
Q: She didn’t yank her arm back and say, “No you can’t do that?”
A: No sir....
Q: Okay. Do you have any knowledge whether or not she signed a consent to treat?
A: I don’t.
Q: Okay. And that’s not your primary concern when you’re in there. You’re not worried about whether she consents. In fact, you presume that if she is there she is consenting to the treatment of the hospital, isn’t that correct?
A: Well, only if she gives me permission ....
Q: And you’re interpreting that lack of refusal to be consent?
A: Yes, sir.

Questioning of Gosson by the prosecutor continued as follows:

Q: You said that she was aware of her surroundings?
A: I didn’t ask her for person, place, or tíme. I didn’t try to establish her conscious level, but she was conscious enough to give consent....
Q: Do you wait until the consent to treat form is signed before you proceed
with any kind of emergency medical treatment for the patient?
A: No, sir.
Q: Okay. Do you generally receive consent orally?
A: If the patient is conscious and awake and alert then we can ask the patient, “Is it okay if we draw some blood?”
Q: Was she conscious, awake, and alert?
A: Yes, sir.

The defense re-called Kelly. She denied that Gosson asked permission to draw blood. She further testified:

Q: As a matter of fact, when somebody gave you the choices as to whether or not you would allow a blood draw or not you refused, is that correct?
A: Yes, I did.
Q: And that came when the police officer after this blood draw came and told you that ... they wanted a blood draw and that you had a right to either consent or refuse, is that right?
A: That’s right.
Q: And at that point once you were given a choice you refused, is that correct?
A: Yes, I did.

In turn, the State focused its re-cross-examination on grounds of self-serving testimony, and Kelly testified:

Q: It’s in your case’s best interests to say today that you didn’t give consent, is that correct?
A: No.
Q: Okay. You understood ... officers came in and asked you whether or not they could take a blood sample from you, is that correct?
A: Yes, they did.
Q: And they read to you what’s called the DIC-24. Do you remember them reading a form to you—
A: I do remember.
Q: And in that particular case you did refuse?
A: Yes, I did.
Q: But you’re saying you didn’t understand what the gentleman here, Mr. Gosson, was explaining to you with respect to the blood draw?
A: He didn’t explain anything to me.
Q: What is your recollection of what happened when he walked into the room?
A: My recollection is he said, “I’m here to take your blood.” And ... there were people doing all kinds of things. I was horizontal.
Q: ... And when he says, “I’m here to take your blood,” did you say to Mr. Gosson “Not a chance?”
A: No, I did not.
Q: Did you tell him under no circumstances did you want him to draw any blood from you?
A: No, I did not.
Q: And what’s the next thing that he said to you?
A: I really don’t recall.
Q: Okay. And at the time did you think it would be in your best medical interests to have the blood drawn so you could be treated by the medical staff?
A: That was what needed to be done....
Q: Now, you knew that they needed to draw blood to adequately treat you medically, is that correct?
A: I did not know that. I was just told that the blood was going to be drawn from me.
Q: And you consented by not refusing because you knew that was part of your medical treatment, is that correct?
A: I consented.
Q: You did consent?
A: Well, I put my arm out.

On further questioning by defense counsel, Kelly subsequently denied she consented. The defense argued that Kelly did not consent to the blood draw, the blood draw was an assault, and should not be admitted under article 38.23 of the code of criminal procedure.

2. Disposition

Assault

Kelly asserts that because she did not consent to the blood extraction, she was assaulted. Section 22.01(a)(1) of the penal code states that a person commits an assault if he “intentionally, knowingly, or recklessly causes bodily injury to another.” Tex. Pen.Code Ann. § 22.01(a)(1) (Vernon 2003). The victim’s effective consent or the actor’s reasonable belief that the victim consented to the actor’s conduct is a defense to an assault prosecution if (1) the conduct did not threaten or inflict serious bodily injury under section 22.06(1); and (2) the victim knew the conduct was a risk of recognized medical treatment, under section 22.06(2)(B). See Tex. Pen.Code Ann. § 22.06(1), (2)(B) (Vernon 2003). We observe that the provisions of the penal code must be construed according to the fair import of their terms, to promote justice and effect the objectives of the code. Tex. Pen.Code Ann. § 1.05(a) (Vernon 2003).

When the trial court does not make explicit findings of historical facts, we review the evidence in the light most favorable to the trial court’s ruling. Morrison, 71 S.W.3d at 827 (citing Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000)). Viewed in the light most favorable to the trial court’s ruling, the evidence negates assault. Even assuming that Kelly did not consent, Gosson would not have drawn blood if Kelly had not consented. Thus, he possessed a reasonable belief that she consented. Further, the extraction of blood neither threatened nor inflicted serious bodily injury. Accordingly, exclusion of the evidence on grounds of assault is not supported in the record. See Ramos v. State, 124 S.W.3d 326, 336 (Tex.App.-Fort Worth 2003, pet. refd). Thus, the test results were not inadmissible under article 38.23.

Effective Consent

Kelly asserts that blood was drawn in violation of section 773.008 of the Texas Health and Safety Code which states:

Consent for emergency care of an individual is not required if:
(1) the individual is:
(A) unable to communicate because of an injury, accident or illness or is unconscious; and
(B) suffering from what reasonably appears to be a life-threatening injury or illness....

Tex. Health & Safety Code Ann. § 773.008 (Vernon 2003).

Viewed in the light most favorable to the trial court’s ruling, the evidence shows that Kelly was “conscious and able to communicate” as she asserts. The evidence reasonably infers that she could have signed a written consent for treatment. Even so, the evidence also establishes that she unequivocally admitted, under oath, that she consented to the extraction of blood. Oral consent is sufficient. See, e.g., Jackson v. State, 968 S.W.2d 495, 499 (Tex.App.-Texarkana 1998, pet. refd). Further, the objective physical manifestation of Kelly’s consent is established by the admitted extension of her arm to allow the extraction of the blood. Kelly allowed multiple procedures on her person, including bracing her body for transport and the transportation for the sole purpose of emergency medical care. Indeed, these are not manifestations of a “mere acquiescence of authority.” The blood extraction was solely for medical purposes. Consent for the blood sample reasonably contemplates the use of the blood in furtherance of her emergency medical diagnosis and treatment. To isolate the blood extraction, admittedly done in furtherance of her medical treatment, and attest in hindsight that it was the sole act she did not consent to belies the evidence in the case. “It is axiomatic that if there was consent to or a request for treatment, any complaint by [the defendant] that blood was taken illegally would be negated.” Hailey v. State, 50 S.W.3d 636, 640 (Tex.App.-Waco 2001), rev’d on other grounds, 87 S.W.3d 118 (Tex.Crim. App.2002), cert. denied, 538 U.S. 1060, 123 S.Ct. 2218, 155 L.Ed.2d 1111 (2003). We conclude that the evidence establishes that Kelly consented to the blood extraction, despite her inconsistent testimony to the contrary. Accordingly, we conclude that Kelly’s theory that the alcohol-blood test results are inadmissible under article 38.23, because she did not consent to the blood extraction for medical purposes, is not reasonably supported by the record. We cannot uphold a trial court’s ruling on a suppression motion if it is not reasonably supported by the record and is not correct on any theory of law applicable to the case. See Villarreal, 935 S.W.2d at 138; Perales, 117 S.W.3d at 438.

TV. CONCLUSION

We have focused our review on the sole issue presented: whether the trial court abused its discretion by suppressing the test results under the theory that there is no reasonable expectation of privacy in medical records showing blood-alcohol test results from tests taken by hospital personnel for medical purposes after a traffic accident. Our analysis leads us to one result: on this record, the ruling to suppress the test results is not supportable on the theories Kelly has espoused. Because the State’s theory finds support in Hardy, 963 S.W.2d at 527, and Clark, 933 S.W.2d at 333, we sustain the State’s sole issue. We reverse the order granting the motion to suppress and remand.

      . See Tex.Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp.2004-05); Tex.R.App. P. 25.2(a).

      . Kelly agrees with the State’s recitation of the historical facts but emphasizes facts relevant to her consent theory. See Tex.R.App. P. 38.1(f) & 38.2(a)(1)(B).

      . See Tex Pen.Code Ann. § 49.01(2)(B) (Vernon 2003) (" 'Intoxicated' means having an alcohol concentration of 0.08 or more.”).

      . Kelly relies on Hailey v. State, 50 S.W.3d 636, 640 (Tex.App.-Waco 2001), rev’d on other grounds, 87 S.W.3d 118 (Tex.Crim.App.2002), cert, denied, 538 U.S. 1060, 123 S.Ct. 2218, 155 L.Ed.2d 1111 (2003) (holding that the results of a blood test taken by a hospital employee without the defendant's permission should have been suppressed under article 38.23 because taking the specimen was an assault).

      . Kelly does not discuss the third theory on appeal. Even so, the testimony at the hearing does not support the theory. The supplemental police report attached to Kelly's trial court brief as an "exhibit” is not evidence. An exhibit not expressly admitted into evidence may be considered as evidence when the parties and judge treat the exhibit as if it were in evidence. See Heberling v. State, 834 S.W.2d 350, 355-56 (Tex.Crim.App.1992) (en banc). There is no showing that the trial court treated the supplemental police report as if it were evidence. Nonetheless, the supplemental police report is not properly authenticated. Tex.R. Evid. 901(a), 902(4),(10).

      . The consent statutes of the Texas Transportation Code do not apply here. The implied consent and refusal to consent statutes of the transportation code apply only when a person is arrested. For example, a person is deemed to have consented to the taking of a breath or blood specimen only if he is arrested for an offense committed while operating a motor vehicle while intoxicated. See Tex. Trans. Code Ann. § 724.011 (Vernon 2003); Combest v. State, 981 S.W.2d 958, 960 (Tex.App.-Austin 1998, pet. ref'd). Here, Kelly was not arrested prior to her blood extraction. Because the implied consent statutes do not apply, we do not determine whether the State proved by clear and convincing evidence that Kelly voluntarily consented to the taking of her blood, as Kelly asserts. See Combest, 981 S.W.2d at 961.

      . Article 38.23(a) states:
      No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
      Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).

      . See Tex. Occ.Code Ann. § 159.003(a)(10), (12) (Vernon 2004).

      . Thus, the trial court could have properly denied the motion to suppress on grounds of admissibility under rule 910(10). TexR. Evid. 910(10); see Tex.R. Evid. 803(6), (7).

      . Although Kelly said she did not give her husband permission to sign the hospital consent form on her behalf, she offered no evidence to explain why her husband signed the form. SeeSpebarv. State, 121 S.W.3d 61, 64 (Tex.App.-San Antonio 2003, no pet.). We observe that the presumed signature of her husband appears on the consent form, above the notation "PATIENT, MINOR GUARDIAN OR LEGAL REPRESENTATIVE.” The Texas Health and Safety Code authorizes a spouse to consent to medical treatment if the patient-spouse is comatose, incapacitated, or otherwise mentally or physically incapable of communication. See Tex. Health & Safety Code Ann. § 313.004(a)(1) (Vernon 2001).

      . Kelly did not raise civil assault to the trial court. Thus, we will not address the theory. See Hailey v. State, 87 S.W.3d 118, 120-22 (Tex.Crim.App.2002); see also Knapp v. State, 942 S.W.2d 176, 179-80 (Tex.App.-Beaumont 1997, pet. refd) (discussing various theories that alleged evidence sought to be suppressed was rendered inadmissible under article 38.23).

      . " ‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex Pen.Code Ann. § 1.07(46) (Vernon 2003).


author: RICHARD BARAJAS, Chief Justice.

text:
    Margie ORTEGA, Appellant, v. Art GONZALEZ, Jr. and James Rascoe, Individually and d/b/a Groe., Inc., d/b/a Dell Mini Mart, appellees.
    No. 08-03-00432-CV.
    Court of Appeals of Texas, El Paso.
    June 30, 2005.

      Thomas S. Hughes, El Paso, for Appellant.
    Steven L. Hughes, Mounce, Green, Myers, Safi & Galatzan, J. Monty Stevens, Stevens and Associates, El Paso, for Ap-pellees.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s granting of a “no-evidence” summary judgment against Appellant. For the reasons stated herein, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant filed a lawsuit against Appel-lees alleging various torts related to a business partnership that purportedly existed among the parties. Appellant contends that she had entered into a business relationship with Appellees where the parties had agreed to purchase a grocery business. At some time after, not reflected in the record, the parties had a disagreement over the arrangement. Appellant filed suit on August 13, 2002, alleging causes of action based in fraud and forgery, loss of business opportunities, breach of fiduciary duty, intentional infliction of emotional distress, and tortious interference with prospective business relationship. The parties filed requests for disclosure and proceeded with other written discovery. Appellee Gonzalez, individually and d/b/a Groe. Inc. d/b/a Dell Mini Mart filed special exceptions to Appellant’s original petition. The appellate record reflects an order granting the special exceptions and providing Appellant with sixty days to replead. The record does not reflect the filing of any amended pleadings if any were filed.

The parties continued to exchange written discovery. Appellee Gonzalez et al, filed a “no-evidence” motion for summary judgment pursuant to Texas Rules of Civil Procedure 166a(i) on May 5, 2003. On May 12, 2003, Appellee Rascoe filed his “no-evidence” motion for summary judgment. Both motions were considered by the court on May 29, 2003. At the hearing, Appellee Gonzalez apparently presented •written objections to the timeliness of Appellant’s response to the motion for summary judgment and to the form of the affidavit. Appellee Gonzalez also argued the basis for the objections to the court. The written objection was not included in the appellate record but the order sustaining all the objections is included and provides that the trial court sustained all the objections. Thereafter, the trial court granted the motions for summary judgment in favor of both Appellees. Appellant filed a notice of appeal. We note that Appellant included as an attachment to her brief a copy of a document requesting findings of fact and conclusions of law from the trial court. No proposed findings were included in the record. The copy of the request is not file stamped and no file stamped copy is included in the clerk’s record provided. We also note that if the request was properly filed and presented to the trial court, no proposed findings were provided and no notice of past due findings of fact and conclusions of law was filed. Further, we note that normally, findings of fact and conclusions of law have no place in summary judgment proceedings. Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex.1994); Besing v. Moffitt, 882 S.W.2d 79, 82 (Tex.App.-Amarillo 1994, no writ); State v. Easley, 404 S.W.2d 296, 297 (Tex.1966). The failure to make such findings is not error and, if made, they are correctly disregarded by the appellate court. Cotton v. Ratholes, Inc., 699 S.W.2d 203, 204 (Tex.1985).

Appellant has appealed, raising one issue.

II. DISCUSSION

In her sole issue on appeal, Appellant complains that the “trial court erred and abused its discretion under the circumstances of this case by granting [Ap-pellees’] Motion for Summary Judgement [sic], as an adequate and reasonable time to conduct discovery was not allowed.” The issue does not clearly complain of the erroneous action of the trial court. It appears to complain that the trial court’s holding of the hearing was error because Appellant had not had sufficient time to conduct discovery, implying that the hearing should have been postponed or continued. The issue as worded and argued does not attack the merits of the granting of the motions for summary judgment. We note that no motion for continuance was filed and Appellant’s response was struck and apparently not considered by the trial court. Further, we observe that any complaint on the merits of the granting of the summary judgment is not briefed nor argued. Appellant’s brief only challenges the trial court’s failure to allow more time to continue the discovery process. Appellant’s brief does not present any argument regarding the substantive reasons why the trial court should have granted her additional time nor does it articulate any evidence to rebut Appellees’ motions. Appellant’s argument is, in essence, a contention that the “result reached by the trial court is manifestly unfair to [Appellant].”

The brief “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief.” Tex.RApp. P. 38.1(g). Rule 38 requires Appellant to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.App.-Houston [1st Dist.] 2002, pet. denied); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex.App.Amarillo 1998, no pet.). This is not done by merely uttering brief conclusory statements, unsupported by legal citations. Tesoro Petroleum Corp., 106 S.W.Sd at 128. Appellant does not present any case law or argument to support her contention that a continuance was requested and improperly denied. The only cases included in her brief identify the standard of review applicable to a “no-evidence” motion for summary judgment. By presenting such attenuated, unsupported argument, Appellant waives her complaints.

The argument cites to a few cases regarding the general standard of review applicable to a summary judgment but no cases that address Appellant’s contention that sufficient time for discovery had not passed. See Tex.R.App. P. 38.1(h); Stephens v. Dolcefino, 126 S.W.3d 120, 125-26 (Tex.App.-Houston [1st Dist.] 2003, pet. filed); Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

Clearly, in order to complain of the denial of a motion for continuance, the party complaining must have actually requested that a continuance be granted. Here, there is no evidence that Appellant requested a continuance and as such, any complaint regarding the same on appeal is waived. To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling sought. Tex.R.App. P. 33.1(a). Issue No. One is thus waived for inadequate briefing and a fail to file a motion below.

Despite determining that Appellant’s issue should be overruled as waived, we note, turning to the substantive question of the granting of the no-evidence summary judgments by the trial court, we affirm the trial court’s decision. Initially we note that Appellant’s minimal response was struck and not considered. We do not know on what basis the trial court struck the response but the order reflects that Appellee’s objections were sustained as filed. Appellant does not complain of this ruling on appeal.

Standard of Review

We apply the usual standard of review for an order granting summary judgment without specifying grounds and find ample evidence to affirm the trial court’s decision. Stated conversely, we find no evidence in record that raises a genuine issue of material fact. See Tex.R. Civ. P. 166a(i). See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001). Furthermore, when a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. State Farm, Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Rogers v. Ricane Enter. Inc., 772 S.W.2d 76, 79 (Tex.1989).

The orders granting Appellees’ motions do not set out any grounds or make any findings, they merely grant Appellees’ motions. Because Appellant’s responses to Appellees’ motions for summary judgment were struck as untimely, Appellant did not raise any challenges to the motions for summary judgment and therefore may not raise any on appeal. Tex.R. Civ. P. 166a.

Additionally, Appellant contends that she “requested the Court to file Findings of Facts and Conclusions of Law along with a notation in the pleading for then Court’s consideration [sic]. The Court failed and refused to comply with the request.”

Findings of fact and conclusions of law have no place in summary judgment proceedings. Linwood, 885 S.W.2d at 103; Besing, 882 S.W.2d at 82; Easley, 404 S.W.2d at 297. The failure to make such findings is not error and, if made, they are correctly disregarded by the appellate court. Cotton, 699 S.W.2d at 204. Consequently, any failure to file the findings is irrelevant to this appeal.

Under the “no-evidence summary judgment” rule, the movant may move for summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which the nonmovant would have the burden of proof at trial. See Tex.R. Civ. P. 166a(i). The motion must state the elements as to which there is no evidence and the reviewing court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. See id. Under the no-evidence summary judgment standard, the party with the burden of proof at trial will have the same burden of proof in a summary judgment proceeding. See, e.g., Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., 962 S.W.2d 193, 197 n. 3 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (commenting that under Rule 166a(i) “the plaintiff as the nonmovant [has] the burden to raise a triable issue on each element essential to the plaintiffs case against each defendant”).

A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Marsaglia v. University of Texas, El Paso, 22 S.W.3d 1, 3-4 (Tex.App.-El Paso 1999, pet. denied); see also Hon. David HittneR & Lynne LibeRAto, SummaRY Judgments in Texas, 34 Hous. L.Rev. 1303, 1356 (1998). A no-evidence summary judgment is properly granted if the non-movant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. See Tex.R. Crv. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

In the case before us, Appellant filed a petition complaining of the conduct of Appellees and alleging various business-related torts. After several months of discovery, Appellees filed their “no-evidence” motions for summary judgment. Appellant did not file any summary judgment evidence to controvert the “no-evidence” motions for summary judgment filed by Appellees. Her response was merely a succession of paragraphs which argued that evidence exists on each issue without stating what evidence exists. The only evidence presented consisted of an affidavit prepared by Appellant consisting of one paragraph that merely articulates that, in Appellant’s opinion, the Appellees did certain things that harmed her. If the response had been timely, the affidavit as attached is not sufficient evidence to rebut Appellees’ motions. Under Texas Rule of Civil Procedure 166a(i), Appellant has failed to meet her burden to defeat Appel-lees’ “no-evidence” motions for summary judgment. In this case, Appellant, the nonmovant below presented no evidence of the liability of either Appellee in response to the motions filed. The minimal response, even if considered by the trial court, was not sufficient. For the reasons stated, we affirm the judgment of the trial court and overrule Appellant’s issue.

Having overruled Appellant’s issue on review, we affirm the judgment of the trial court.


text:
    FINANCIAL INSURANCE COMPANY, Appellant, v. William RAGSDALE, Appellee.
    No. 08-04-00018-CV.
    Court of Appeals of Texas, El Paso.
    June 30, 2005.

      Christopher J. Ameel, Law Offices of Harris & Harris, Austin, for Appellant.
    Barry L. Hart, Law Office of Barry L. Hart, Odessa, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a jury verdict in a workers’ compensation case against the employer’s carrier, plaintiff below, related to a workers’ compensation claim determining the impairment rating governing Appellee’s claim for benefits. For the reasons stated, we affirm.

I. SUMMARY OF THE EVIDENCE

Appellee, William Ragsdale, was employed by MR Drilling or MR Oil located in Monahans, Texas during the time period from approximately 1985 until 1999 as a production superintendent. In March of 1999, Mr. Ragsdale suffered a stroke that left him with some physical limitations. In May of 1999, Mr. Ragsdale returned to work for MR Oil or Drilling and was employed as a relief pumper.

While checking oil field tanks on the morning of July 15, 2001, Appellee slipped and fell down a flight of steps used to access the top of the tank. He fell down the entire distance of the stairs and testified to injuring his head. A company field foreman found Appellee and took him home. While at home, he suffered some type of seizure and was hospitalized. Ap-pellee testified that he remained unaware of his surroundings for five days until he “woke up” in the hospital.

Appellee filed a workers’ compensation claim related to the incident. Appellee’s treating physician, Dr. Kadir, issued a Texas Workers’ Compensation Commission Form, stating that Ragsdale reached maximum medical improvement on November 26, 2001, with a 0 percent impairment rating. Appellee requested that a designated doctor be appointed in conformance with the Texas Labor Code.

The Commission appointed Steven Ells-worth, M.D. as the Commission’s designated doctor for review of this claim. Dr. Ellsworth prepared a TWCC-69 and a written report. He adopted the finding that Appellee had reached maximum medical improvement on November 26, 2001, but evaluated Appellee’s impairment rating as 10 percent on the TWCC-69 form. In the body of his written report, however, Dr. Ellsworth reflected that he had determined various impairment ratings for injuries related to the incident and determined that:

Combining these impairments would give a whole person impairment of 67%. Then the next question becomes, how much of this impairment is attributable to the new accident. As discussed above, I believe that it is reasonable to say that there has been a clear decrement in function. I believe that with the absence of new cerebral infarction, I will assign 15% of the impairment to the new accident to give 10% whole person impairment attributable to this accident. The apportionment of the impairment is a judgment on my part with regard to the history and records that I have reviewed.

A contested case hearing was held on October 17, 2002 at which time the hearing officer determined that Appellee’s impairment rating was 10 percent as determined by the TWCC designated doctor, Dr. Steven Ellsworth. Appellee appealed the ruling and that decision was reversed by the Texas Workers’ Compensation Commission Appeals Panel in Appeals Panel Decision No. 030534. The Appeals Panel, specifically considering Dr. Ellsworth’s report, held that “it was error for the hearing officer to adopt the apportioned IR assigned by Dr. E. We reverse Finding of Fact No. 6 and Conclusion of Law No. 3 and render a new decision that the claimant’s IR is 67% in accordance with the opinion of the designated doctor.”

On May 19, 2003, Appellant filed its lawsuit seeking judicial review of the decision. Appellee, defendant Ragsdale below, filed a motion for partial summary judgment which was granted, striking the 10 percent impairment rating assigned by Dr. Ellsworth on the grounds that it was an improper apportioned rating. Appellant challenged the 67 percent impairment rating established by the Appeals Panel via a cross-motion for partial summary judgment which was denied.

On November 4, 2003, the case went to trial solely on the issue of the impairment rating. The jury charge asked one question:

What is William Ragsdale’s impairment rating as a result of his compensable injury of July 15th, 2001?
You are instructed that the impairment rating must be one of the following and that you are not authorized to assign any other impairment rating.
Answer by placing an “X” in front of one of the following impairment rating percentages of the whole body:
_ 0% Dr. Abdul Kadir
- 67% Dr. Steven Ellsworth
The jury responded with 67%.

During the course of the trial, the court entered various evidentiary rulings striking the Appellant’s proffered doctors’ testimony being presented via deposition. Appellant attempted to present the testimony of Dr. Kadir, Dr. Ellsworth, and Appellant’s retained expert, Dr. Martin Heitz-man. The trial court did not allow the deposition testimony for the reason that Appellant’s attorney did not segregate the proffered, arguably admissible, testimony from the remainder of the testimony, stating that no evidence of a new or different impairment rating may be presented to the jury. Stated another way, he ruled that at trial, because Appellant refused to segregate and insisted that the entire depositions of both the treating and designated doctors be admitted, Appellant’s evidence was struck.

The trial court entered judgment on the jury’s verdict and awarded attorney’s fees to Appellee. This appeal follows.

II. ISSUES ON APPEAL

Appellant presents three issues on appeal with sub-issues argued in Issues One and Two. Issue One challenges the trial court’s jury question regarding the proper impairment rating, arguing that the trial court erred in not submitting the designated doctor’s impairment rating of 10 percent as a matter of law. Appellant asserts that it was error for the trial court to strike the designated doctor’s impairment rating of 10 percent; that the proper alternative impairment rating to consider is 14 percent; and that the jury should not have been allowed to consider an impairment rating of 67 percent.

Issue Two complains of the exclusion of the deposition testimony of Doctors Kadir, Ellsworth, and Heitzman. Issue Three complains of the attorney’s fees awarded on the grounds that they are excessive and constitute an abuse of discretion.

Appellee asserts that Appellant has failed to complain of the trial court’s granting of Appellee’s motion for summary judgment and has, therefore, waived any argument. We are free to consider any issue that may be reasonably inferred from the issue presented. We believe that the issue as presented is adequate to preserve Appellant’s complaint regarding the trial court’s submission of the limited issue to the jury. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included. Tex.R.App. P. 38.1(e).

III. STANDARD OF REVIEW-ISSUE ONE

We review a trial court’s submission of jury questions and instructions under an abuse of discretion standard, recognizing there is a presumption in favor of broad-form submission of questions. Tex.R. Civ. P. 277; Texas Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 256 (Tex.1975). The trial court has wide discretion in submitting explanatory instructions and definitions. Wisenbarger v. Gonzales Warm Springs Rehabilitation Hosp., Inc., 789 S.W.2d 688, 692 (Tex.App.-Corpus Christi 1990, writ denied). But whether a charge submits the controlling issues in a case, in terms of proper theories of recovery or defense, is a question of law we review de novo. See Cimarron Country Property Owners Ass’n v. Keen, 117 S.W.3d 509, 511 (Tex.App.-Beaumont 2003, no pet.); DeLeon v. Furr’s Super markets, Inc., 31 S.W.3d 297, 300 (Tex. App.-El Paso 2000, no pet.).

A. Issue One

Though Appellant complains on appeal of the issue presented to the jury, it is, in substance complaining of the trial court’s decision regarding the percentage of impairment rating selected. Appellant argues that the options presented to the jury did not accurately reflect the designated doctor’s reported impairment rating. The designated doctor’s report determined Ap-pellee’s impairment rating to be 10 percent which he indicated on the TWCC-69 and in the body of the report. The Workers’ Compensation Appeals Panel looked beyond the formal conclusion, however, and determined that the rational articulated by the doctor in support of his decision was improper. The Appeals Panel specifically held that because the doctor “noted that he believed all of the conditions for which he assigned a rating, including the visual field, were present prior to the compensa-ble injury, but were worsened by the fall. Accordingly, it was error for the hearing officer to adopt the apportioned IR assigned by Dr. E.” Texas Workers’ Compensation Appeals Panel Decision 030534.

Texas Workers’ Compensation law has evolved into a complex system of progressive administrative hearings that provide for review of the employee’s injury and provide for compensation within the framework of the statutory scheme. The Texas Workers’ Compensation Commission is the body charged with adjudicative powers over the process.

The commission resolves disputed claims through a three-stage hearing process: (1) the benefit review conference, (2) the contested case hearing, and (3) the administrative appeal. The benefit review conference, like the former prehearing conference, is an informal proceeding aimed at resolving the disputed issues by mutual agreement. Tex. Lab.Code Ann. § 410.021 (Vernon 1996). The presiding “benefit review officer,” after “thoroughly inform [ing] all parties of their rights and responsibilities,” mediates the dispute. Id. § 410.026(a) (Vernon 1996). The officer may direct questions to the parties, but he or she may not take testimony or make a formal record. Id. § 410.026(c), (d). The officer does, however, prepare a written report detailing each issue not settled at the conference. Id. § 410.031 (Vernon 1996). This report must include the officer’s recommendation regarding those issues and a recommendation regarding the payment or denial of benefits. Id. The officer may issue an interlocutory order directing the insurer to pay benefits. Id. § 410.032 (Vernon Supp.2004-05).

The parties then proceed to a contested case hearing, a formal evidentiary proceeding with sworn testimony and prehearing discovery procedures. Id. §§ 410.151-410.169 (Vernon 1996 and Supp.2004-05). The hearing officer decides the disputed issues by written decision containing factual and legal findings, awarding benefits if they are due. Id. § 410.168(a) (Vernon Supp.2004-05). The hearing officer’s decision is binding during the pendency of an administrative appeal and is final in the absence of appeal. Id. § 410.169 (Vernon 1996).

Any party may appeal the hearing officer’s decision to an appeals panel within the commission. Id. § 410.202 (Vernon 1996 and Supp.2004-05). The request for appeal and the opposing party’s response must “clearly and concisely rebut or support the decision of the hearing officer on each issue on which review is sought.” Id. § 410.202(c). After considering these briefs and the record from the contested case hearing, the appeals panel may affirm the decision of the hearing officer, reverse and render a new decision, or remand no more than one time to the hearing officer for further consideration and development of the record. Id. § 410.203 (Vernon 1996); Texas Workers’ Compensation Com’n v. Garcia, 893 S.W.2d 504, 515 (Tex.1995).

The commission’s final decision may be appealed to the courts under what might best be described as modified de novo review. For all issues regarding compensability of the injury (for example, whether it occurred in the course and scope of employment) and eligibility for and the amount of income and death benefits, there is a right to trial by jury. Tex. Lab.Code Ann. § 410.304 (Vernon 1996). The party appealing bears the burden of proof by a preponderance of the evidence. Id. § 410.303 (Vernon 1996). The jury, although informed of the commission’s decision, is not required to accord it any particular weight. Id. § 410.304(a). Further, the opinion of the designated doctor regarding impairment is accorded no special weight.

In determining the extent of impairment, however, the jury must adopt the specific rating of one of the physicians in the case. Id. § 410.306(c) (Vernon 1996). Evidence of the extent of impairment is limited to that presented to the commission unless the court makes a threshold finding that the claimant’s condition has substantially changed, in which case new impairment evidence may be introduced. Id. §§ 410.306(c), 410.307 (Vernon 1996). If the parties dispute whether the claimant’s condition has substantially changed, the court must hear from the designated doctor, whose opinion is controlling on this issue “unless the preponderance of the other medical evidence is to the contrary.” Id. § 410.307(b). The court’s finding of substantial change of condition is not revealed to the jury. Id. § 410.307(e).

Issues other than compensability of the injury and eligibility for and the amount of income and death benefits are reviewed by the court under the substantial evidence rule. Id. § 410.255 (Vernon 1996); Garcia, 893 S.W.2d at 515.

The report of the designated doctor has presumptive weight, and the commission shall base its determination of whether the employee has reached maximum medical improvement on the report unless the great weight of the other medical evidence is to the contrary. Tex. Lab.Code Ann. § 408.122 (Vernon Supp.2004-05).

B. Discussion

It is clear from the facts presented to us that the only issue under dispute between the parties and to be resolved by the jury was the extent of impairment suffered by Appellee. The jury was required to adopt the specific rating of one of the physicians in the case. The trial court was clearly bound by the ratings that were presented for its consideration. In this case, the Commission, through its. Appeals Board, made the finding that the claimant’s IR was 67 percent in the opinion of the designated doctor. The other evidence presented to the trial court was the opinion of Dr. Kadir, Appellee’s treating physician, who rendered a finding of 0 percent IR. The trial court was well within its discretion in determining that the only IR options available for consideration by the jury were the 67 percent designated by the Commission Appeals Panel and the 0 percent rating of Dr. Kadir.

We agree with Appellee that the legislature clearly addressed benefits to be paid an employee suffering the aggravation of a previous injury as distinguishable from an impact on the impairment rating suffered by an employee. Section 408.084 of the Texas Labor Code provides:

(a) At the request of the insurance carrier, the commission may order that impairment income benefits and supplemental income benefits be reduced in a proportion equal to the proportion of a documented impairment that resulted from earlier compensable injuries.
(b) The commission shall consider the cumulative impact of the compensable injuries on the employee’s overall impairment in determining a reduction under this section.
(c) If the combination of the compensa-ble injuries results in an injury compen-sable under Section 408.161, the benefits for that injury shall be paid as provided by Section 408.162.

Tex. Lab.Code Ann. § 408.084 (Vernon 1996).

Section 408.084 provides that the commission may reduce the actual benefits paid an employee as a result of a prior compensable injury. It does not contemplate the reduction of the impairment rating as a result of the injury. We agree ■with Appellee that the legislature differentiated between the reduction of certain benefits under the act and any impairment rating to be assigned for a subsequent injury, although we also note that Section 408.084 does not address the situation of an employee with a pre-existing condition which is not the result of a prior compen-sable injury.

The trial court was limited in its presentation of the issue to the jury by the Labor Code. The trial court was correct that the impairment ratings to be presented to the jury were limited to the 0 percent finding of Dr. Kadir or the “whole person impairment” of Dr. Ellsworth. Section 410.306 of the Texas Labor Code provides that at trial, evidence of extent of impairment shall be limited to that presented to the commission. Tex. Lab.Code Ann. § 410.306(c). This procedural limitation encourages parties to present relevant evidence during administrative proceedings, thus increasing the accuracy and efficiency of those proceedings. Old Republic Ins. Co. v. Rodriguez, 966 S.W.2d 208, 209 (Tex.App.-El Paso 1998, no pet.). We note that the evidence which may be submitted to the commission is not limited by the statute.

Limited evidentiary review during the trial de novo is, however, clearly contemplated by the statute.

Here, the only impairment ratings presented to the trial court were included in the jury charge. We overrule Issue One.

IV. ISSUE TWO

Issue Two challenges the trial court’s exclusion of the deposition testimony of three doctors proffered by Appellant.

Appellant provided the video deposition testimony of Dr. Kadir, Appellee’s treating physician, Dr. Ellsworth, the designated doctor, and Dr. Heitzman, Appellant’s expert. The question of the admissibility of the testimony of the three doctors was addressed at various times during pretrial hearings and during pretrial communications among the parties. The trial court ruled that any evidence regarding the extent of the impairment rating of Appellee that had not been previously presented to the Commission was inadmissable. The trial court also held that any evidence that did not address the extent of impairment was admissible. The testimony was excluded on the basis that the testimony was not segregated according to the admissible portions of the deposition. During a discussion outside the presence of the jury, the trial judge asked Appellant’s attorney to segregate the portions of Dr. Kadir’s deposition which he contended was not new evidence of the extent of impairment. Counsel responded, “Respectfully, sir, on behalf of my client, I submit that none of the deposition of Doctor Kadir is barred by Section 410.306 of the Labor Code.” The court indicated that he was excluding the deposition testimony of the doctor because counsel had refused to segregate.

Similarly, with regard to Dr. Ells-worth’s deposition, Appellant remained stalwart that the entire deposition should be admitted. The trial court excluded the deposition testimony because Appellant’s attorney did not comply with the specific instructions of the trial court to designate which questions of each deposition were being tendered as evidence not related to the impairment rating.

Appellant did present a portion of Dr. Heitzman’s deposition to the jury, but complains about the excluded portions. We agree that the legislature has expressly limited the extent of judicial review with regard to the issue of impairment rating and has specifically limited the evidence which may be presented to the jury to that which was previously presented to the commission. In the case before us, the only issue to be resolved was the question of the impairment rating to be assessed. A review of the record supports the trial court’s decision in light of the broad discretion a trial court has regarding the management of the trial. It is clear that Appellant’s attorney refused to segregate any portion of the testimony. Appellant’s attorney did not make an offer of proof as contemplated by the rules for the preservation of excluded evidence. See Tex.R. Evid. 103. Though Appellant provides a summary of proffered testimony attached to its brief in the appendix and admitted the depositions as exhibits during the trial, no formal bill of exception was made to preserve the specific proffered testimony. See Tex.R.App. P. 33.2. Recognizing that Texas Labor Code Section 410.306(c) significantly limits the admissibility of any evidence, we have previously held, however, that the statute does not prohibit all evidence not presented to the commission. It prohibits only evidence of the extent of impairment not presented to the commission. Rodriguez, 966 S.W.2d at 209. Here, we believe that the trial court was within its discretion in excluding the deposition testimony proffered and the evidence was- not properly preserved for appellate review. We overrule Appellant’s Issue Two.

V. ISSUE THREE

In Issue Three, Appellant complains that the award of attorney’s fees in this case was excessive and an abuse of discretion. We agree with Appellee that Texas Labor Code Section 408.221(c) provides that an insurance carrier may be liable for the reasonable and necessary attorney’s fees incurred by the claimant. Tex. Lab.Code Ann. § 408.221(c) (Vernon Supp.2004-05).

Appellee prevailed' at trial and the parties agreed to submit the issue of attorney’s'fees to the court for determination. The trial court heard evidence that the reasonable and necessary attorney’s fees through post-verdict motions in the case was $25,000, a fee of $10,000 for an appeal to the Court of Appeals and $5,000 for an appeal to the Supreme Court. No controverting witnesses or evidence was presented. Appellant argued that the amount reflected an hourly wage of $377.36 based upon the testimony of 66.25 hours of work in litigation of Appellee’s case. We note that the judgment contemplated compensation for Appellee’s attorney through post-verdict motions and of necessity includes time after the trial testimony presented by Appellee’s witness. The trial court was free to recognize the other factors for compensation contemplated by the act as well as consideration of the benefit the attorney was responsible for securing as allowed by the statute. See Tex. Lab. Code Ann. § 408.221.

The standard of review of an award of attorney’s fees is sufficiency of the evidence. See Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 409 (Tex.App.-Houston [14th Dist.] 2004, no pet.); see also Aguila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d 225, 240 (Tex.App.-San Antonio 2001, pet. denied). When a party attacks the legal sufficiency of an adverse finding on an issue it did not have the burden to prove at trial, it must demonstrate that there is no evidence to support the adverse finding. Carlile, 138 S.W.3d at 409. In reviewing a no-evidence issue, we consider all of the record evidence in a light most favorable to the verdict and indulge every reasonable inference from that evidence in support of the verdict. Id. We must determine whether the proffered evidence as a whole rises to a level that would “enable reasonable and fair-minded people to differ in their conclusions.” Carlile, 138 S.W.3d at 409-10; Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994); Aguila, 48 S.W.3d at 236.

A challenge to the legal sufficiency of the evidence must be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Merrell Dow Phams., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Carlile, 138 S.W.3d at 410. “When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Carlile, 138 S.W.3d at 410; Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

When reviewing a challenge to the factual sufficiency of the evidence, we must consider all of the evidence in the record. Carlile, 138 S.W.3d at 410; see Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). If a party is attacking the factual sufficiency of an adverse finding when the other party has the burden of proof, that party must demonstrate that there is insufficient evidence to support the adverse finding. Carlile, 138 S.W.3d at 410; Aguila, 48 S.W.3d at 236.

In reviewing a factual insufficiency challenge, we weigh and examine all of the evidence which supports the verdict and that which is contrary to it. Carlile, 138 S.W.3d at 410. We set aside the verdict only if the evidence is so weak the verdict is clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Carlile, 138 S.W.3d at 410.

When reviewing the reasonableness of an award of attorney’s fees, we should consider: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997); Carlile, 138 S.W.3d at 410. Fees determined to be reasonable and necessary for the prosecution of the suit may be awarded. Carlile, 138 S.W.3d at 410; Aquila, 48 S.W.3d at 241.

We do not have to give details of supporting evidence when upholding factual sufficiency of the evidence underlying the trial court’s judgment. Zeptner v. Zeptner, 111 S.W.3d 727, 735 (Tex.App.-Fort Worth 2003, no pet.); Ellis County State Bank v. Keever, 888 S.W.2d 790, 794 (Tex.1994). Here, however, there was ample evidence in the record to support the trial court’s findings regarding the attorney’s fees. We overrule Appellant’s Issue Three.

Having overruled each of Appellant’s issues on review, we affirm the judgment of the trial court.


author: Justice CARTER.

text:
    Ebeny GIVENS, individually and as Next Friend of Toni J. Wright, A Minor, and Keith Wright, individually, Appellants, v. BAPTIST HEALTH SERVICES, Appellee.
    No. 06-05-00084-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted July 6, 2005.
    Decided July 7, 2005.
    Jeffrey W. Jones, Law Office of Jeffrey W. Jones, San Antonio, for appellants.
    Laura A. Cavaretta, Plunkett & Gibson, Inc., San Antonio, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Ebeny Givens, individually and as next friend of Toni J. Wright, a minor, and Keith Wright, individually, appellants, have presented this Court with a motion to dismiss the pending appeal against appel-lee Baptist Health Services. Givens states that a settlement agreement has been reached with Baptist Health Services.

We have severed Givens’ appeal against Baptist Health Services and assigned that case cause number 06-05-00084-CV.

The appeal by Givens against Baptist Health Services, cause number 06-05-00084-CV, is hereby dismissed.