text:
    Oliver Eugene EVANS, Appellant, v. The STATE of Texas, Appellee.
    No. 04-04-00249-CR.
    Court of Appeals of Texas, San Antonio.
    Nov. 2, 2005.
    Discretionary Review Granted April 5, 2006.

      Richard E. Langlois, Law Office of Richard E. Langlois, San Antonio, for appellant.
    Laura Burton Bates, Asst. Crim. Dist. Atty., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   MEMORANDUM OPINION

Opinion by

SARAH B. DUNCAN, Justice.

Oliver Eugene Evans appeals the judgment convicting him of possession of a controlled substance (cocaine) and sentencing him to ten years in the Texas Department of Criminal Justice — Institutional Division. Evans argues the evidence is legally and factually insufficient to support the jury’s finding of guilt. We agree the evidence is legally insufficient to raise a reasonable inference that Evans exercised actual care, custody, control, or management of the cocaine and therefore reverse the trial court’s judgment and render a judgment of acquittal.

Factual and PROCEDURAL Background

On November 18, 2002, San Antonio Police Officer Adelbert Patrick Reyes and his partner, Officer David Larios, were “targeting” the 300 block of Henry Street pursuant to a Crime Stoppers tip of high narcotic activity in the area. While sitting in their unmarked police car, around 8:30 p.m., Reyes and his partner noticed a female (later identified as Terry Lee) walk towards a vehicle, make contact with a person in that vehicle, and walk away, only to return approximately fifteen to twenty minutes later as a passenger in a van that was being driven with its headlights turned off. After exiting the van, Lee again walked towards the vehicle with which she had earlier made contact. At this point, Reyes and Larios exited their car and walked towards the van. When Lee started running away, “Larios saw her throw some crack cocaine on the ground.” While Larios attended to Lee, Reyes contacted the van’s driver (later identified as Robert Ochoa) and backseat passenger (later identified as Cynthia Priestley). After seeing crack cocaine on the floorboards by Ochoa and Priestley, Reyes arrested them. Ultimately, the officers also arrested Lee, who told the officers there were more drugs at Priestley’s home at 923 Lombra-no.

After Priestley consented to a search of her home, she was accompanied there by Officers Reyes and Larios, as well as Officers Jesse Allen and Michael Cokerham. When they arrived at Priestley’s home, the officers stood on the front porch and, looking through the glass storm door, saw Evans sitting in a chair or on a couch in the living room watching television and talking on the telephone. Approximately one foot in front of him and within arm’s reach was a five or six foot coffee table on which was what the officers believed to be crack cocaine in five or six small transparent cellophane or plastic baggies. Also on the coffee table were small bottles with numbers written on their lids; but the officers could not see if they also contained cocaine. Although neither Reyes nor Allen could recall whether there were other items on the coffee table, Allen testified there could have been a “little plate” on it. Leaving Priestley outside in the yard, the officers entered the unlocked door without resistance, at which point Evans hung up the telephone. When the officers then asked Evans if he knew why they were there, he replied “[djrugs.” Evans did not attempt either to flee or to conceal the drugs on the coffee table. Reyes then arrested Evans for possession of a controlled substance.

In their subsequent search of the house, the officers found no one other than Evans in the home and no drugs other than those on the coffee table. Priestley then came inside the home and told the officers on several occasions the drugs were hers and Evans had no knowledge of them. In the living room, the officers found a mail slot containing “a lot of letters with [Evans’s] name” on them and seized one postmarked October 28, 2002 and addressed to “Mr. Oliver Evans” at “923 Lombrano.” In the front bedroom, which was in disarray, the officers found men’s clothing, while they found women’s clothing in the back bedroom. According to Allen, the house was “cluttered.” When the officers searched Evans, they found $160 in cash.

When the substances in the baggies and pill bottles were later tested, they were found to be approximately fourteen grams of cocaine. Evans was indicted on two counts, possession with intent to deliver and possession. At the ensuing trial, Officer Reyes estimated the cocaine found in the baggies and pill bottles on the coffee table would fetch approximately $1,300 on the street. The State’s theory of the case was that no one would leave $1,300 worth of cocaine unattended; therefore, the State argued, the jury should find that Priestley and Evans were operating together in dealing cocaine from their “home base” at 923 Lombrano: while Priestley delivered the cocaine, Evans was left in charge of “home base.” Evans defended on the ground that he was merely present where the drugs were found and did not exercise actual care, custody, or control over them.

To support his defense, Evans elicited from Officer Allen that Evans did not take any action to touch or try to conceal the drugs, and that the police did not take fingerprints from the baggies or pill bottles to determine whether they had ever been touched by Evans. Officer Allen testified he could not recall whether he obtained from Evans a drivers license that had an address different from 923 Lom-brano. The only witness who testified on Evans’s behalf was his ex-wife, Josylyn Jorden. According to Jorden, Evans and their two sons had been living at her parents’ home at 357 Leonidas (about fifteen miles from 923 Lombrano) since October 7 or 8, 2002. Jorden, who was in the Army and stationed at Fort Hood in Killeen in 2002, would call Evans at her parents’ home in the evening or at night after the buses stopped running. Sometimes when she called her kids after school, Evans was not there because he was out looking for a job. Jorden had never sent mail to Evans at 923 Lombrano.

Jorden testified that when she came to San Antonio on the weekends, she stayed with Evans and their children at her parents’ home. However, she visited Evans’s grandmother’s home at 923 Lombrano approximately three times a month so the boys could see their great-grandmother. When she visited, the coffee table in the living room was littered with magazines, trash, candy, prescriptions — just “everything” — and to get to the coffee table from the couch or chair, one would have to get up.

Jorden testified that the family learned in the summer of 2002 that Priestley was involved with drugs and had been selling items (like an air conditioning unit, a stereo, and a television) that she had taken from the home she shared with Evans’s grandmother at 923 Lombrano. “It was a huge issue.” Accordingly, before traveling to Oklahoma for a few days in November, Evans’s grandmother asked Evans to cheek on her home while she was' away.

On the evening Evans was arrested, Jor-den received a telephone call from Evans while he was checking on his grandmother’s home at 923 Lombrano. At some point, Jorden “heard a lot of scuffling, and then the phone hung up.” When Jorden called back, a police officer answered and said Evans was going to jail, so if she wanted to talk with Evans, she would need to go through the county; they never put Evans back on the telephone.

The court’s charge instructed the jury that “the term ‘possession’ ... meant actual care, custody, control or management of the controlled substance”; and it “is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.” The jury found Evans not guilty of possession with intent to deliver but guilty of possession. Thereafter, in accordance with Evans’s election, the court sentenced Evans to ten years in the Texas Department of Criminal Justice — Institutional Division.

Legal Sufficiency

Evans argues the evidence is legally insufficient to support the jury’s finding that he exercised actual care, custody, control, or management of the cocaine on the coffee table. We agree.

Scope and Standard of Review

“When deciding whether evidence is [legally] sufficient to support a conviction, a reviewing court must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.” Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App.2005). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In applying this standard, the Texas Court of Criminal Appeals has held that “a fact-finder may disbelieve some or all of a witness’s testimony, even when that testimony is uncontradicted.” Hernandez v. State, 161 S.W.3d 491, 501 (Tex.Crim.App.2005) (citing State v. Ross, 32 S.W.3d 853, 857 (Tex.Crim.App.2000)).

“To prove unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband.” Poindexter, 153 S.W.3d at 405. “Whether this evidence is direct or circumstantial, ‘it must establish, to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous. This is the whole of the so-called ‘affirmative links’ rule,” which “is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs.” Id. at 405-06 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995)). “This rule simply restates the common-sense notion that a person — such as a father, son, spouse, roommate, or friend — may jointly possess property like a house but not necessarily jointly possess the contraband found in that house.” Id. at 406. The Texas Court of Criminal Appeals has “[t]hus ... formulated the rule that ‘[w]hen the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband.’ ” Id. (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App.1981)). “Mere presence alone at a place where the contraband is being used or possessed by others does not justify a finding of joint possession, or constitute one a party to an offense.” Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988); see also Meeks v. State, 692 S.W.2d 504, 511 (Tex.Crim.App.1985). Rather, the requisite affirmative links may be established by showing additional facts and circumstances that raise a reasonable inference of the defendant’s knowledge and control of the contraband. Meeks, 692 S.W.2d at 511. The Fourteenth Court of Appeals recently summarized a non-exclusive list of factors that have been found to affirmatively link an accused to contraband as follows:

(1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.

Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.-Houston [14th Dist.] 2005, no pet.); see Puente v. State, 888 S.W.2d 521, 526 (Tex.App.-San Antonio 1994, no pet.). And, in Poindexter, the Texas Court of Criminal Appeals found it significant both that “there was no affirmative evidence that any other person lived in the same house or exercised care, control, or custody over either the house or the drugs” and that there was no evidence that another person, “even if she exercised joint possession of the house, exercised exclusive possession over the drugs.” Poindexter, 153 S.W.3d at 412. Thus, “[t]he number of factors present is not as important as the logical force the factors have in establishing the elements of the offense.” Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Accordingly, “[w]hile affirmative links may be proved by circumstantial evidence, proof amounting to a strong suspicion or even a probability will not suffice.” Lassaint v. State, 79 S.W.3d 736, 741 (Tex.App.-Corpus Christi 2002, no pet.) (citing Grant v. State, 989 S.W.2d 428, 433 (Tex.App.-Houston [14th Dist.] 1999, no pet.) citing Dubry v. State, 582 S.W.2d 841, 844 (Tex.Crim.App. [Panel Op.] 1979))).

Discussion

The State argues it “produced evidence of six affirmative links.” “First and foremost, Evans was found seated arm’s length away from numerous baggies and pill containers of crack cocaine in plain view” when the search was conducted. However, “[m]ere presence alone at a place where the contraband is being used or possessed by others does not justify a finding of joint possession, or constitute one a party to an offense.” Martin, 753 S.W.2d at 387; see also Meeks, 692 S.W.2d at 511. The second affirmative link asserted by the State is that Evans “was the sole occupant of the house.” However, the State’s assertion is belied by its admissions that “923 Lombrano ... was Priestley’s home address”; and it was Priestley who signed a form consenting to search “her residence.” Since 923 Lombrano was Priestley’s home address, Evans could not have been its “sole occupant.” See Black’s Law DictionaRY 973 (5th ed.1979) (defining “occupant” as “[pjerson in possession,” “[pjerson having possessory rights, who can control what goes on premises,” “[o]ne who has actual use, possession or control of a thing”).

The next affirmative link recited by the State is that, “when the police officers asked [Evans] if he knew why they had come to the house, he replied, ‘Drugs.’ ” We fad to see how Evans’s response is incriminating, however. Merely indicating knowledge that drugs were present and the reason for the officers’ presence does not raise a reasonable inference of care, custody, or control of those drugs, particularly in light of the undisputed evidence of the family’s knowledge of Priestley’s involvement with drugs and her arrest for selling drugs only moments before. The State next points us to “a letter that had been mailed to [Evans], one month before the offense occurred, at the same address at which he was found with the drugs.” As the State admits, however, this letter was postmarked one month before Evans was arrested. See Higgins v. State, 515 S.W.2d 268, 270 (Tex.Crim.App.1974) (noting that “letters addressed to appellant were found in the house” but “they were not recent and no other evidence was introduced to show he occupied the premises”). The State refers next to the fact that “men’s clothing was found in one of the bedroom closets in the house in which the drugs were found”; however, the State made no absolute showing that any of the men’s clothing found in the front bedroom belonged to Evans. Finally, the State points to the fact that Evans “was found with $160 on his person.” However, we do not consider $160 to be such a large amount of cash in today’s times that it will yield a reasonable inference of illegal activity.

The remaining factors suggested by the Fourteenth Court of Appeals in Olivarez likewise do not support an inference of guilt: when Evans was arrested, he was not under the influence of narcotics, he was not found to possess other contraband, narcotics, or drug paraphernalia, he did not attempt to flee, and he did not make furtive gestures; and there is no evidence of either an odor of contraband in the home or the presence of other contraband or drug paraphernalia, the State produced no fingerprint evidence linking Evans with the cocaine, and, so far as we can discern, nothing about Evans’s conduct indicated a consciousness of guilt. In short, viewing the evidence in the light most favorable to the prosecution, the only factors that support a finding that Evans exercised care, custody, control, or management of the cocaine are his presence and the cocaine was in plain view on the coffee table approximately one foot in front of him when the search was conducted. Under these circumstances, we conclude the evidence is legally insufficient to affirmatively link Evans to the cocaine. See Collins v. State, 901 S.W.2d 503 (Tex.App.-Waco 1994, pet. ref'd) (holding evidence was legally insufficient to affirmatively link defendant with cocaine and heroin when the defendant was present when the house was searched, lived there “off and on,” the electricity bill was in his name, the narcotics were in plain view in a bedroom, and needles and paraphernalia were found all over the house; but another resident testified the drugs were his, there was no evidence the defendant had touched the drugs, he was not under the influence of narcotics and did not have any contraband on his person, and he did not attempt flight or make any furtive gestures); Higgins, 515 S.W.2d at 271 (noting “there were no res gestae statements, no fingerprints, no indication that appellant was under the influence of narcotics, no attempt to escape, no furtive gestures, nor any other circumstances which would connect appellant with the LSD in the present case”); see also Lassaint, 79 S.W.3d at 745-46 (collecting cases). And, although the State argued that, while Priestley made deliveries, Evans was protecting the cocaine at “home base,” the State failed to introduce any evidence even suggesting that Evans was armed or that any weapons were recovered from 923 Lombrano at all. See, e.g., Lassaint, 79 S.W.3d at 745 (noting defendant “was not armed, nor were any weapons recovered”).

Conclusion

As recently reiterated by the Texas Court of Criminal Appeals, the affirmative links rule is designed to protect an “innocent bystander” who is in “fortuitous proximity to someone else’s drugs.” Poindexter, 153 S.W.3d at 406. We of course do not know whether Evans was in fact an “innocent bystander.” But the record before us — the record before the jury — permits no other conclusion because it fails to affirmatively link Evans to the cocaine other than by his presence and its proximity. We therefore reverse the trial court’s judgment and render a judgment of acquittal.

      . According to the officers who testified at trial, these numbers indicated the price of the bottle of cocaine.

      . The Supreme Court of Texas, on the other hand, has recognized that "[djisregarding undisputed facts that do not support the finding could skew the analysis” of whether the evidence is legally sufficient to support a fact finding. In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002); see also City of Keller v. Wilson, 168 S.W.3d 802, 814 (Tex.2005) ("[A]n appellate court conducting a legal sufficiency review cannot ‘disregard undisputed evidence that allows of only one logical inference.’ By definition, such evidence an be viewed in only one light; and reasonable jurors can reach only one conclusion from it. Jurors are not free to reach a verdict contrary to such evidence.”); Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 629 (Tex.2004) (“But while our [legal sufficiency] review must acknowledge reasonable inferences that may have been drawn by the jury, it cannot ... disregard undisputed evidence.”)


source: Caselaw Access Project

author: SARAH B. DUNCAN, Justice.

license: Public Domain

text:
    Joe DIAZ, Appellant, v. SAN ANTONIO PROFESSIONAL FIRE FIGHTERS ASSOCIATION—IAFF Local 624, Appellee.
    No. 04-04-00817-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 2, 2005.

      Beverly West Stephens, Mark Anthony Sanchez, Gale, Wilson & Sanchez, P.L.L.C., San Antonio, for appellant.
    Amy M. Eubanks-Perkins, Asst. City Atty., San Antonio, B. Craig Deats, Deats & Levy, P.C., Austin, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, REBECCA SIMMONS, Justice.
   OPINION

Opinion by

SARAH B. DUNCAN, Justice.

Joe Diaz appeals the trial court’s summary judgment in favor of the San Antonio Professional Fire Fighters Association. We hold Diaz’s claim against the Association for breach of the duty of fair representation is barred by the federal six-month statute of limitations and affirm the trial court’s judgment.

Factual and PkocedüRal Background

Joe Diaz worked as a paramedic for the City of San Antonio’s Fire Department until he was suspended in June 1999. The letter suspending Diaz informed him that he had ten days to appeal, but failed to inform him that his “appeal must include the basis for the appeal and a request for a [Fire Fighters’ and Police Officers’ Civil Service][C]ommission hearing,” “a statement denying the truth of the charge as made, a statement taking exception to the legal sufficiency of the charge, a statement alleging that the recommended action does not fit the offense or alleged offense, or a combination of these statements.” Tex. Loc. Gov’t Code Ann. § 143.010(b) (Vernon 1999). Nevertheless, after speaking with the Association’s grievance committee chair, Cliff Aultman, Diaz filed his own appeal letter on June 23, which states only that he had “been placed on indefinite suspension by the San Antonio Fire Department until a criminal investigation is concluded by the District Attorney’s office. This letter is to notify your office of my intent to appeal their decision to take this course of action. If you have any questions, please contact my attorney William R. Rodis at 822-7678.”

On July 7,1999, the Commission notified another Association representative, Anthony Rogers, that it would consider the sufficiency of Diaz’s notice of appeal at its July 12 meeting. In accordance with Diaz’s request, he was represented at the July 12 meeting by an attorney engaged by the Association, Ricky Poole. Nonetheless, at the conclusion of its July 12 meeting, the Commission ruled that Diaz’s notice of appeal failed to comply with the statutory requirements and, on that basis, affirmed Diaz’s suspension. Diaz thereafter appealed the Commission’s decision, naming as defendants both the City and the Commission. Approximately two years later, in June 2001, after the Association stopped funding Diaz’s appeal, he filed suit in federal district court against the City and the Association. In this lawsuit, Diaz alleged the City discharged him to prevent him from vesting in his retirement plan and denied him due process; the Association breached its duty of fair representation; and both defendants conspired to prevent him from vesting in his retirement plan and deny him due process. In April 2003, Diaz amended his petition in his state court suit to include the Association as a defendant. The federal district court dismissed Diaz’s claims against the City and granted the Association’s motion for summary judgment. One year later, the state district court granted the Association’s motion for summary judgment without stating a ground and severed Diaz’s claims against the Association. This appeal ensued.

STANDARD OF REVIEW

We review a summary judgment de novo. Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex.App.-San Antonio 1997, writ denied). Accordingly, we will uphold a traditional summary judgment only if the summary judgment record establishes both the absence of a genuine issue of material fact and that the movant is entitled to summary judgment on a ground set forth in the motion. Id.; see Tex.R. Civ. P. 166a(c). We will uphold a no-evidence summary judgment only if the summary judgment record reveals no evidence on the challenged element, i.e., “(a) a complete absence of evidence [as to the challenged element]; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove [the challenged element]; (c) the evidence offered to prove [the challenged element] is no more than a mere scintilla; [or] (d) the evidence establishes conclusively the opposite of the [challenged element].” Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 362-63 (1960); see Tex.R. Civ. P. 166a(i). In deciding whether the summary judgment record raises a genuine issue of material fact, we assume all evidence favorable to the respondent is true and indulge every reasonable inference and resolve all doubts in his favor. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001). When, as here, the trial court’s summary judgment does not specify the ground or grounds upon which the summary judgment was rendered, we will affirm the summary judgment if any of the grounds stated in the motion is meritorious. Id.

Duty of Fair Representation

Diaz first argues the trial court erred in rendering a summary judgment against him on his duty-of-fair-representation claim. We disagree.

A claim for breach of the duty of fair representation is governed by the federal six-month statute of limitations. Del-Costello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 169-172, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); Flores v. Metro. Transit Auth., 964 S.W.2d 704, 707 (Tex.App.-Houston [14th Dist.] 1998, no pet.); Teamsters Local Union No. 1111 v. Wilkins, 761 S.W.2d 95, 97 (Tex.App.-Beaumont 1988, writ denied). It is undisputed that Diaz failed to file suit against the Association within the six-month window. Diaz argues, however, that “he met the sixhnonth statute of limitations because he filed suit against the City and the Civil Service Commission ... within six-months after losing all rights of appeal” and “he was not immediately required to also bring suit against the [Association]” “[b]ecause [he] sued his employer.” In support of his argument, Diaz cites Metropolitan Transit Auth. v. Burks, 79 S.W.3d 254, 257-58 (Tex.App.-Houston [14th Dist.] 2002, no pet.). But Burks is not on point.

Burks filed suit against his employer, Metropolitan Transit Authority, seeking “ ‘judicial assistance in restoring him to his pre-disciplinary status ... and in compensating him for his economic loss caused by his constitutionally wrongful termination.’” Id. at 256. Metro moved to dismiss Burks’s suit for lack of jurisdiction or alternatively summary judgment because Burks failed to name his union as a defendant within the six-month limitations period. Id. After the trial court denied Metro’s motion, it appealed, arguing that, because Burks’s claims implicated the collective bargaining agreement, his failure to join his union within the six-month limitations period mandated dismissal of his claims for lack of jurisdiction. Id. The court disagreed, holding that, “[wjhile establishing the Union breached its duty of fair representation is ... an indispensable predicate to maintaining suit against Metro, nothing requires the Union actually be a party to Burks’s suit.” Id. at 257. Burks thus does not decide or even address the issue presented by Diaz’s appeal: when an employee wishes to sue his union for the damages arising out of its violation of the duty of fair representation, must he do so within the federal six-month limitations period? DelCostello says he must. Diaz argues, however, his amended petition naming the Association as a defendant relates back to his original petition naming only the City as a defendant. We disagree.

In support of his relation back argument, Diaz cites a line of cases including Enserch Corp. v. Parker, 794 S.W.2d 2 (Tex.1990). Diaz’s reliance on this line of cases is misplaced. As explained by the Parker Court, under the equitable relation back doctrine, “limitations is tolled and a subsequent amendment of the petition relates back to the date of the original petition” “[i]f the plaintiff merely misnames the correct defendant (misnomer).” Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex.1990). But this is not a misnomer case. Diaz did not name the City as a defendant in an attempt to name the Association. He intended to name the City as a defendant and did so. Accordingly, the relation back doctrine does not apply.

In sum, neither the hybrid claim doctrine applied in Burks nor the relation back doctrine applied in Parker saves Diaz’s duty-of-fair-representation claim from the federal six-month statute of limitations. Accordingly, we hold the trial court correctly granted summary judgment against Diaz on his duty-of-fair-representation claim.

Dub Process

Diaz next argues the trial court erred in granting summary judgment against him on his claim under 42 U.S.C. § 1983 that the Association, acting alone and in a conspiracy with the City and the Commission, denied him his constitutional right to due process. We again disagree.

“To state a cause of action under section 1983 the appellant must allege that the person who deprived him of a federal right was acting under color of law.” Priester v. Lowndes County, 354 F.3d 414, 420 (5th Cir.), cert. denied, 543 U.S. 829, 125 S.Ct. 153, 160 L.Ed.2d 44 (2004). “For a private citizen ... to be held liable under section 1983, the plaintiff must allege that the citizen conspired with or acted in concert with state actors.” Id. “[A] non-state actor may be liable under 1983 if the private citizen was a ‘willful participant in joint activity with the State or its agents.’ ” Id. (quoting Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.), cert. denied, 513 U.S. 868, 115 S.Ct. 189, 130 L.Ed.2d 122 (1994)). “The plaintiff must allege: (1) an agreement between the private and public defendants to commit an illegal act and (2) a deprivation of constitutional rights.” Id. “Allegations that are merely conclusory, without reference to specific facts, will not suffice.” Id. “Labor unions ... generally are not state actors.” Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2nd Cir.2002).

Here the only agreement Diaz alleges is the Collective Bargaining Agreement; and he does not allege the agreement is itself illegal. See Hudson v. Chicago Teachers Union Local No. 1, 743 F.2d 1187, 1191 (7th Cir.1984) (“[W]hen a public employer assists a union in coercing public employees to finance political activities, that is state action; and when a private entity such as a union acts in concern with a public agency to deprive people of their federal constitutional rights, it is hable under section 1983 along with the agency.”), affirmed, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). Rather, he rests his contention that the Association willfully participated in joint activity with the State merely upon the Association’s status as a collective bargaining agent. Diaz thus fails to even allege that the Association and the City entered into an agreement to commit an illegal act. Accordingly, the trial court correctly granted a summary judgment against Diaz on his due process claim.

CONSPIRACY

Diaz also argues the trial court erred in rendering a summary judgment against him on his conspiracy claim on the ground that it is barred by the doctrine of res judicata. We disagree.

The federal district court dismissed Diaz’s due process claim against the Association under 42 U.S.C. § 1985(3) with prejudice. When a federal court issues a judgment, the res judicata effect of that judgment in a subsequent state court proceeding is controlled by federal law. San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 281 (Tex.1996). Under federal law, the doctrine of res judica-ta bars the subsequent suit if: (1) the parties in both suits are identical, (2) the prior judgment was rendered by a court of competent jurisdiction, (3) there is a final judgment on the merits, and (4) the same cause of action is involved in both cases. In re Intelogic Trace, Inc., 200 F.3d 382, 386 (5th Cir.2000). The first three factors of this test are plainly met: Diaz and the Association were parties to the suit in federal court, which is a court of competent jurisdiction; and the dismissal with prejudice constitutes an adjudication on the merits. See Mossler v. Shields, 818 S.W.2d 752, 754 (Tex.1991). The issue is thus whether the two actions involve the same cause of action.

For the same cause of action to be involved, the two actions must be based on the “same nucleus of operative facts.” Intelogic, 200 F.3d at 386. In his state court suit, Diaz alleges the Association violated section 1983 by conspiring “for the purpose of depriving [him] of his due process of law in regard to the appeal of his suspension/termination.” Diaz employed the identical language in his federal court complaint alleging the Association violated section 1985(3). And a comparison of Diaz’s live federal court complaint and state court petition reveals that he supported each claim with many of the same operative facts. We therefore hold the same cause of action was involved in his federal court suit as is now involved in his state court lawsuit. Since Diaz could have brought his section 1983 claim in federal court, the federal court’s dismissal with prejudice of Diaz’s section 1985(3) claim bars Diaz’s section 1983 claim in this suit.

State Common Law Claims

Finally, Diaz argues the trial court erred in granting a summary judgment against him on his state common law claims that the Association defrauded him “by failing to provide [him fair] representation and/or comply with its contractual requirements [under the CBA]”; the Association breached “its fiduciary duty to [him]”and “breached its contract with [him] as his common law agent and/or legal representative when it failed to assist [him] in effectively appealing his suspension and/or intentionally ignoring [his] request for the same”; the Association, acting as his “assigned ‘bargaining agent,’ falsely represented to [him] that it would represent him in his appeal of his suspension, and in filing suit if necessary”; and “the [Association] tortiously interfered in [his] employment contract with the City.” As revealed by the language in Diaz’s petition, however, his state common law claims are merely a recasting of his duty of fair representation claim, which we have previously held is barred by the federal six-month statute of limitations. Accordingly, we hold the trial court correctly granted a summary judgment against Diaz on his state common law claims and affirm the trial court’s judgment.

      . Pursuant to a collective bargaining agreement, the San Antonio Professional Fire Fighters Association — IAFF Local 624 is the bargaining agent for the firefighters with the City. Diaz was a dues paying member of the Association.

      . The substance of these conversations and the advice given are disputed and ultimately not relevant to this appeal.

      . Diaz’s appeal letter is dated June 23, 1999, but it is date-stamped as having been received by the Commission on June 25, 1999. This discrepancy is also ultimately not relevant to this appeal.

      .In approximately December 2000, the Association decided to transfer its members’ legal work to another attorney, David Van Os. Based upon Van Os's advice that Diaz's appeal could not be won, the Association discontinued its funding of Diaz’s appeal.

      . Diaz admitted in his deposition that the only contract at issue is the collective bargaining agreement.


author: KAREN ANGELINI, Justice.

text:
    Margarita TREJO, Appellant, v. LAREDO NATIONAL BANK, Appellee.
    No. 04-04-00319-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 16, 2005.

      Kimberly S. Keller, The Keller Group, San Antonio, for appellant.
    Henry B. Gonzalez, III, M. Alex Nava, Davis, Cedillo & Mendoza, Inc., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

Margarita Trejo appeals the trial court’s granting of two separate no-evidence summary judgments in favor of Laredo National Bank (LNB). Finding no error on the part of the trial court, we affirm the judgment.

BACKGROUND

According to Margarita Trejo, on October 29, 2001, she attempted to make a deposit with LNB at its drive-through facility located in Laredo, Texas. As she reached for the outdoor teller’s canister, the unit’s automatic sliding door closed on her left hand and smashed her fingers. Trejo alleges that she notified a bank employee of the incident by pressing the “call” button on the teller machine and attempted to remove her hand. She ultimately pulled her hand out of the machine, reported the incident to the bank, and was transported by a bank employee to a local doctor for medical attention.

On February 26, 2003, Trejo filed her First Amended Original Petition, asserting claims for negligence and premises liability. Trejo asserted the doctrine of res ipsa loquitur and sought exemplary damages. On November 3, 2003, Trejo filed her “Second” Amended Original Petition, alleging, in addition to her previous claims, that LNB negligently failed to assist her in a timely manner.

On December 4, 2003, LNB filed its first No-Evidence Motion for Summary Judgment pursuant to Texas Rule of Civil Procedure 166a, contending there was no evidence to support Trejo’s claims. After a hearing on January 9, 2004, the trial court granted in part and denied in part LNB’s no-evidence motion for summary judgment, denying the motion on Trejo’s failure to assist claim, but granting summary judgment on all other claims.

Trejo filed her Fourth and Fifth Amended Original Petitions on January 15th and 20th, respectively, alleging causes of action for negligent conduct of activity and negligence in recalling the carrier when it was not safe to do so. Trejo also asserted the doctrine of res ipsa loquitur and requested exemplary damages. On January 29, 2004, LNB filed its Second No-Evidence Motion for Summary Judgment. At the February 20th hearing, the trial court granted LNB’s second no-evidence motion for summary judgment, dismissing Trejo’s remaining claims. Trejo appeals the granting of summary judgment with respect to her negligence claims. She does not, however, appeal the granting of summary judgment with respect to her premises liability claims.

Standard of Review

A party may move for a no-evidence summary judgment on the ground that there is no evidence of one or more essen-tiál elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a(i). After a no-evidence motion for summary judgment has been filed by one party, the burden then shifts to the respondent to produce more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. See S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). “To defeat a motion made under paragraph (i), the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.” Tex.R. Civ. P. 166a cmt. However, the respondent must present some summary judgment evidence raising a genuine issue of material fact on the elements attacked. See Tex.R. Civ. P. 166a(i).

A no-evidence summary judgment is equivalent to a pretrial directed verdict and is reviewed for legal sufficiency. See Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied). A no-evidence motion is improperly granted if the respondent presents more than a scintilla of probative evidence to raise a genuine issue of material fact: See id. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). When, as here, the trial court does not specify the grounds for its ruling, summary judgment will be affirmed if any of the theories advanced are meritorious. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Discussion

A. Res Ipsa Loquitur

According to Trejo, the trial court erroneously granted summary judgment because under the doctrine of res ipsa loquitur, negligence is inferred in this case. Res ipsa loquitur, meaning “the thing speaks for itself,” is used “in certain limited types of cases when the circumstances surrounding the accident constitute sufficient evidence of the defendant’s negligence to support such a finding.” Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex.1990) (emphasis added). “Only in extraordinary circumstances does the mere occurrence of an accident so strongly compel a conclusion that the defendant was negligent that a jury could not reasonably find otherwise.” Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 252 (Tex.1974).

The doctrine of res ipsa loquitur is applicable only when the following two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury was under the exclusive management and control of the defendant. Haddock, 793 S.W.2d at 950; Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex.1989); Mobil Chem., 517 S.W.2d at 251. To rely on the doctrine, the plaintiff must produce evidence from which the jury can conclude, by a preponderance of the evidence, that both the “type of accident” and “control” factors are present. Mobil Chem., 517 S.W.2d at 252; Lucas v. Titus County Hosp. Dist., 964 S.W.2d 144, 155 (Tex.App.-Texarkana 1998, pet. denied); Soto v. Tex. Indus., Inc., 820 S.W.2d 217, 219 (Tex.App.-Fort Worth 1991, no writ).

This is not so much a rule of law as it is a rule of logic — unless these factors are present, the jury cannot reasonably infer from the circumstances of the accident that the defendant was negligent. In a great many cases the plaintiff can rely upon general knowledge to prove the accident in question is the type of accident which does not ordinarily happen in the absence of negligence. However, expert testimony on this factor is clearly admissible and may be necessary to the plaintiffs case. The plaintiff must also prove that the instrumentality was under the management and control of the defendant. As previously discussed, this factor must be interpreted in the factual setting of each case. Disputes may arise as to what instrumentality caused the injury, when the negligence, if any, occurred, and who was in control at the time. In any event, the plaintiff must produce evidence from which the jury can reasonably conclude that the negligence, if any, is attributable to the defendant.

Mobil Chem., 517 S.W.2d at 252 (citations omitted).

Inherent in the “control” factor is the requirement that the defendant be proved to have some causal connection with the plaintiffs injury. Gaulding, 772 S.W.2d at 68. Although the possibility of other causes does not have to be completely eliminated, their likelihood must be so reduced that the jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at the defendant’s door. Mobil, 517 S.W.2d at 251. Thus, the occurrence of an accident is not of itself evidence of negligence. Graham v. Fed-X, Inc., 384 S.W.2d 785, 786 (Tex.Civ.App.-Fort Worth 1964, writ ref'd n.r.e.). The doctrine of res ispa loquitur applies only where the instrumentalities causing the injury are shown to have been wholly in the care of the defendant and not to have been meddled with by the person' injured or third parties. Id. at 787.

Here, Trejo argues that because there is evidence that LNB owned and controlled the teller machine, the doctrine of res ipsa loquitur applies. While we agree that there is evidence that LNB owned and operated the teller machine, Trejo did not present evidence that the teller machine was under LNB’s exclusive management and control; that is, she did not present evidence that the teller machine could not have been tampered with or meddled with by Trejo, herself, or a member of the public. In fact, it is undisputed that the teller machine was in a public area and was easily accessible to the public; as such, it could have easily been tampered or meddled with by any member of the public. See Lucas, 964 S.W.2d at 157 (holding that doctrine of res ipsa lo-quitur did not apply because “the chair was in a public waiting area, it is possible that someone other than the hospital broke the recliner before [the plaintiff] fell, if it was broken at that time”); Graham, 384 S.W.2d at 787 (holding that doctrine did not apply to an accident caused by a bottle falling off a store shelf because so many people had “equal access to the bottle racks” that it was “just as probable that the bottle in question fell as a result of some act of another customer, another bottling company employee, or some other person having business in the store as it is that the bottle fell as a result of some unexplained negligence on the part of the defendant”). Thus, given the evidence presented, it is not reasonable to conclude that because the machine allegedly malfunctioned, LNB must be negligent. Because there is no evidence that the teller machine was under the exclusive management and control of LNB, the doctrine of res ipsa loquitur does not apply.

B. First No-Evidence Motion for Summary Judgment

Trejo argues that the trial court should not have partially granted LNB’s first no-evidence motion for summary judgment on her negligence claims. In support, Trejo points to her deposition testimony in which she testified that her hand became stuck in the machine, and even though she notified LNB employees, no one came to help her. ■ And, she argues that LNB owed Trejo a duty because it undertook the duty by providing a teller machine. However, Trejo has not pointed to any evidence which would show a breach of those duties. As such, we hold that the trial court committed no error in entering summary judgment on those negligence claims.

Moreover, with respect to Trejo’s failure to warn claim, Trejo points to photographs attached to her second response which she claims are “photographs showing the teller machine in question [without warnings] and showing a similar teller machine containing warnings.” First, we note that these photographs were not attached to Trejo’s response to LNB’s first no-evidence motion for summary judgment; they were attached to Trejo’s response to LNB’s second no-evidence motion. As such, the photographs were not before the trial court when it partially granted LNB’s first no-evidence motion for summary judgment.

Second, even if the photographs had been properly attached to Tre-jo’s response to LNB’s first motion, they are substantively defective and are not competent summary judgment evidence. A defect is substantive if the evidence is incompetent, and it is formal if the evidence is competent but inadmissible. Mathis v. Bocell, 982 S.W.2d 52, 60 (Tex.App.-Houston [1st Dist.] 1998, no pet.). Formal defects in summary judgment evidence may be waived by failure to object, and if waived, the evidence is considered. Mathis, 982 S.W.2d at 60. Substantive defects are never waived because the evidence is incompetent and cannot be considered under any circumstances. Mathis, 982 S.W.2d at 60.

Here, the photographs are substantively defective. Trejo points to nothing in the record that identifies the first teller machine shown in the pictures as the teller machine used by Trejo or that it depicts the teller machine in the same condition as it was on the day of the accident. Trejo also does not point to anything in the record that identifies the other photographs as a teller machine owned by LNB with warning signs. Instead, the exhibits are merely photographs of teller machines which could have been owned by anyone and taken anytime, and as such, are substantively defective and are not competent summary judgment evidence. Trejo argues that LNB waived any defect by not obtaining a ruling on its objections. However, a party need not object to substantive defects.

Thus, we cannot find any error on the part of the trial court with respect to its order on LNB’s first no-evidence motion for summary judgment.

C. Second No-Evidence Motion for Summary Judgment

In its second no-evidence motion for summary judgment, LNB argued that there was no evidence of causation or damages with respect to Trejo’s claims for negligent activity, negligence for recalling the carrier when it was not safe to do so, and negligence for failing to assist her. Because we hold that (1) Trejo’s response with respect to her medical records was insufficient, and (2) Trejo’s affidavit is not evidence that she suffered damages, we can fínd no error on the part of the trial court in granting LNB’s second no-evidence motion for summary judgment.

According to the comment to Rule 166a, to defeat a no-evidence motion for summary judgment, a respondent need not marshal its proof; however, it must “point out evidence that raises a fact issue on the challenged elements.” Tex.R. Civ. P. 166a cmt. A trial court is “not required to search the record for evidence raising a material fact issue without more specific guidance from [the respondent].” Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex.App.-San Antonio 2003, no pet.).

In its second no-evidence motion for summary judgment, LNB argued that Trejo did not suffer an injury as a result of the alleged accident. In her response to LNB’s second motion, Trejo stated the following:

As a result of her hand being crushed she suffered injuries to her fingers on her left hand and was transported by an employee of [LNB] to Dr. Arturo Garza-Gongora’s clinic. [Trejo] was diagnosed with crush injury to second, third and fourth fingers. Furthermore, [Trejo] was diagnosed with RSD by Doctor Joseph P. Camero. She is currently [being] treat[ed][by] Doctor Sued with Laredo Pain Management. Please see Exhibits D, E, F, G, H, I, J, and K.

These exhibits are medical records that encompass over three hundred and ninety-five pages. The trial court was simply not required to sift through over three hundred and ninety-five pages of exhibits, looking for evidence to support Trejo’s injury-

Even though when discussing her injury in her second response, Trejo did not refer to her affidavit, we note that she did attach her affidavit to her response. However, because her affidavit is conclusory, it is not competent summary judgment evidence to support her injury.

Conclusory affidavits do not raise fact issues. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996). “A con-clusory statement is one that does not provide the underlying facts to support the conclusion.” Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex.App.-Texarkana 2000, no pet.); accord Choctaw Prop., LLC v. Aledo ISD, 127 S.W.3d 235, 243 (Tex.App.-Waco 2003, no pet.); Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex.App.-Houston [14th Dist.] 2000, pet. denied).

In her affidavit, Trejo affirms the following:

My name is Margarita Trejo. I am over 18 years of age, of sound mind and fully competent to make this affidavit. I have personal knowledge of the facts herein stated and they are all true and correct. I would not have suffered severe injuries, had it not been for the carrier machine crushing my hand and the failure of the bank teller to assist me.

At the time of the second no-evidence motion for summary judgment, Trejo’s fifth amended petition alleged claims based on LNB’s negligent activity and LNB’s negligence for recalling the carrier when it was not safe to do so. Additionally, Trejo alleged negligence for LNB’s failure to assist her. Assuming that LNB had a duty to assist Trejo, under this separate and independent negligence claim, Trejo must show that she suffered further injuries as a result of LNB’s failure to assist her. See Rains v. Heldenfels Bros., 443 S.W.2d 280, 295 (Tex.Civ.App.-Corpus Christi 1969, writ ref d n.r.e.) (holding that when a defendant has a duty to render reasonable assistance, he is “hable only for those further damages chargeable to his failure to render needed assistance”).

Trejo’s affidavit, however, does not set forth facts supporting what “severe injuries” she allegedly suffered from, the first act of the teher machine closing on her hand and how her injuries were exacerbated by LNB’s alleged failure to assist her. Instead, the affidavit merely concludes that she would not have suffered severe injuries but for the teller machine “crushing” her hand and LNB’s failure to assist her. Because Trejo’s affidavit merely makes a conclusion instead of setting forth facts in support of the conclusion, it is conclusory.

Conclusion

For the reasons above, we affirm the judgment of the trial court.

      . The "Second” Amended Original Petition filed on November 3, 2003 was actually Tre-jo’s third amended petition.

      . Trejo alleged that LNB "was conducting or permitting the customary use of the motor bank's carriers without proper maintenance and allowed the incident to occur on Defendant’s premises.” According to Trejo, LNB "failed to conduct such activity in a safe and reasonable manner, a manner which created or perpetuated a danger to Margarita Trejo and others, in that the carrier machine malfunctioned and assistance was not promptly provided."

      . In its brief, LNB argues that Trejo’s allegations give rise to a premises liability claim, not a negligence claim and that Trejo "now attempts to incorrectly cast her allegations as a negligence case.” As emphasized by Trejo, however, LNB did not bring this argument in a motion before the trial court. Instead, it filed a no-evidence motion for summary judgment, simply arguing that there was no evidence to support Trejo’s negligence claims. It did not argue that Trejo’s simple negligence claims were improperly brought because they were, in fact, premises liability claims. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979) (in granting a summary judgment, the trial court is confined to the specific grounds set forth in the motion). As such, we cannot consider whether Trejo’s claims are in fact improper.

      . The doctrine of res ipsa loquitur is not a separate cause of action, but rather a rule of evidence by which negligence may be inferred by the jury. Haddock, 793 S.W.2d at 950.

      . The trial court granted summary judgment on all claims except Trejo's negligence claim based on LNB’s alleged failure to assist her.

      . As an appellate court, we are not required to search the record for a scintilla of evidence of such a breach without more specific guidance. Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex.App.-San Antonio 2003, no pet.).

      . In Trejo's second amended original petition (which was actually her third amended petition), she alleged that LNB was negligent for "failing to have warning signs attached thereto for the purpose of its clients' best interest and safety.” In its first no-evidence motion for summary judgment, LNB argued that there was (1) no evidence that it "owed a duty to [Trejo] to have warning signs attached thereto for the purpose of its clients’ best interest and safety,” and (2) no evidence that it breached a duty by failing "to have warning signs attached thereto for the purpose of its clients’ best interest and safety.” Thus, in partially granting LNB's first no-evidence motion for summary judgment, the trial court dismissed Trejo’s claim based on LNB’s alleged negligence for failing to have warning signs attached to the teller machines.

      . This quoted language is the only time in her responses that Trejo refers to her alleged injury-

      . Trejo argues that LNB has waived any objection it had to her affidavit because LNB did not secure a trial court's ruling on its objections. However, because Trejo’s affidavit is conclusory, LNB did not need to object or secure a ruling. A conclusory statement in an affidavit is a defect in substance rather than a defect in form and is therefore not waivable. Moritz v. Bueche, 980 S.W.2d 849, 854 (Tex.App.-San Antonio 1998, no pet.); accord Stewart v. Sanmina Texas L.P., 156 S.W.3d 198, 207 (Tex.App.-Dallas 2005, no pet. h.); Progressive County Mut. Ins. Co. v. Carway, 951 S.W.2d 108, 117 (Tex.App.-Houston [14th Dist.] 1997, writ denied); Timothy Patton, Summary Judgments in Texas § 6.03[6][b] (3d ed.2004).


author: ALMA L. LÓPEZ, Chief Justice.

text:
    Marvin Edward BLISSIT, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 04-05-00048-CR.
    Court of Appeals of Texas, San Antonio.
    Nov. 16, 2005.
    Discretionary Review Refused April 26, 2006.

      Christina Mitchell-Tomasini, Law Office of Christina Mitchell-Tomasini, Boerne, for appellant.
    Lucy Cavazos, Asst. Dist. Atty., Kerr-ville, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice.
   MEMORANDUM OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

Marvin Edward Blissit, Jr. was convicted by a jury of aggravated assault. On appeal, Blissit contends that the trial court erred by: (1) allowing an officer to comment on his refusal to waive his Miranda rights; (2) denying his request to charge the jury with the lesser-included offense of deadly conduct; and (3) denying his request for an instruction on self-defense. Because Blissit’s second issue is dispositive of this appeal, we do not reach the remaining issues. The trial court’s judgment is reversed, and the cause is remanded to the trial court for a new trial.

Background

Blissit is the complainant’s stepfather. On the night of the offense, Blissit and the complainant’s mother, Bonnie Blissit, were arguing. Blissit took Bonnie’s car keys and exited the house to drive away in Bonnie’s car. The complainant followed Blissit and pushed him. Blissit grabbed a paint roller and hit the complainant in the face. A struggle ensued, and the complainant punched Blissit in the side of the face. Pictures were introduced into evidence to show the extent of the injuries to both men as a result of the altercation. Bonnie separated Blissit and the complainant, and the complainant returned inside the house.

According to the testimony of Bonnie and the complainant, Blissit retrieved a gun from a shed. Blissit fired two shots into the air outside of the house and began threatening to kill the complainant. Blis-sit came into the house and began searching for the complainant. Bonnie was struggling with Blissit in the doorway of the room where the complainant and others were attempting to hide. Bonnie testified that Blissit was sweeping the gun across the room while threatening to kill the complainant and shot at the complainant when he stepped forward. Bonnie later admitted that she did not see Blissit point the gun at the complainant but only saw him sweeping the gun across the room. Bonnie also admitted that her back was to the room, and she was holding or repeatedly hitting Blissit’s arms to prevent him from shooting the occupants of the room. The complainant testified that Blissit pointed the gun at him and fired a shot but missed. The shot that was fired in the room hit the ceiling. A jury convicted Blissit of aggravated assault.

In his second issue, Blissit contends that the trial court erred in denying his request that the lesser-included offense of deadly conduct be included in the charge. A two-prong test is applied to determine whether an appellant was entitled to an instruction on a lesser-included offense. Campbell v. State, 149 S.W.3d 149, 152 (Tex.Crim.App.2004); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.1993). First, to be considered a lesser-included offense, the lesser offense must be included within the proof necessary to establish the offense charged. Campbell, 149 S.W.3d at 152; Rousseau, 855 S.W.2d at 672-73. Second, some evidence must exist in the record that would permit a jury to rationally find that, if the defendant is guilty, he is only guilty of the lesser-included offense. Campbell, 149 S.W.3d at 152; Rousseau, 855 S.W.2d at 672-73. Because the determination of whether an offense is a lesser-included offense must be settled on a case-by-case basis, we must analyze: (1) the elements of the offense actually charged; (2) the statutory elements of the offense sought as a lesser-included offense; and (3) the proof presented at trial to establish the elements of the charged offense to see if that proof showed the lesser-included offense. Campbell, 149 S.W.3d at 153; Jacob v. State, 892 S.W.2d 905, 907-08 (Tex.Crim.App.1995).

Applying the first prong of the test, we are guided by the Texas Court of Criminal Appeals’ decision in Bell v. State, 693 S.W.2d 434 (Tex.Crim.App.1985). In that case, the indictment charged Bell with the following:

... did then and there knowingly and intentionally use a deadly weapon, to wit: a firearm, and did then and there threaten George Smith with imminent bodily injury by the use of said deadly weapon.

The State asserted that reckless conduct under section 22.05(a) of the Texas Penal Code was not a lesser-included offense of the offense charged because “proof of danger of serious bodily injury is not established by the same or less facts than proof of a threat of imminent bodily injury.” Id. at 437 (emphasis in original). The court first noted that in order to establish the commission of the offense charged, the State was required to prove: (1) a person; (2) intentionally or knowingly; (3) threatened another with imminent bodily injury; (4) by [knowingly and intentionally] using a deadly weapon. Id. at 438. The court then set forth the statutory elements of reckless conduct as including: (1) a person; (2) recklessly; (3) engages in conduct; (4) that places another in imminent danger of serious bodily injury. Id.

Applying the first prong of the test, the court noted that when the State established the higher culpable mental state of intent or knowledge, it necessarily established the lower culpable mental state of recklessness. Id. The court asserted that the precise issue “thus becomes whether proof of threatening another with imminent bodily injury by using a deadly weapon constitutes proof that the actor engaged in conduct that placed another in imminent danger of serious bodily injury.” Id. (emphasis in original). The court held:

Patently, threatening another with imminent bodily injury is engaging in conduct. When.that threat is accomplished by the use of a deadly weapon, by definition the victim is “exposed” to the deadly character of the weapon and the inherent risk of serious bodily injury. The danger of serious bodily injury is necessarily established when a deadly weapon is used in the commission of an offense. It follows, therefore, that proof of threatening another with imminent bodily injury by the use of a deadly weapon constitutes proof of engaging in conduct that places another in imminent danger of serious bodily injury.

Id. at 438-39.

In Isaac v. State, the Houston court followed Bell in applying the first prong of the test. 167 S.W.3d 469, 473-75 (Tex.App.-Houston [14th Dist.] 2005, pet. filed). In that case the indictment charged that Isaac “unlawfully intentionally and knowingly threatened] Carl Isaac with imminent bodily injury by using and exhibiting a deadly weapon, namely a firearm.” Id. at 474 (emphasis added). The court noted that the indictment charged appellant with aggravated assault under section 22.02(a)(2) of the Texas Penal Code. Id. The court then considered the elements of deadly conduct under section 22.05(a) of the Code, noting that a person commits the offense of deadly conduct if he “recklessly engages in conduct that places another in imminent danger of serious bodily injury.” Id. The court held that it was bound by the decision in Bell to conclude that misdemeanor deadly conduct, as defined by article 22.05(a) of the Code, is a lesser-included offense of aggravated assault as charged in Isaac’s indictment. Id. at 474-75.

The State heavily relies on the Amarillo court’s opinion in Miller v. State, 86 S.W.3d 663 (Tex.App.-Amarillo 2002, pet. ref'd), to contend that the first prong of the test is not met. However, in Miller, the indictment charged that Miller “intentionally or knowingly threatened] Greg Tyra with imminent bodily injury and did then and there use or exhibit a deadly weapon, to wit: an [sic] firearm.” 86 S.W.3d at 664 (emphasis added). Because the charged offense could be proven by showing that Miller “exhibited” a deadly weapon, the Amarillo court distinguished Bell, asserting, “The difference is disposi-tive, as it does not necessarily follow that the danger of serious bodily injury is established when a deadly weapon is ‘exhibited’ in the commission of the offense as opposed to being ‘used.’ ” Id. at 667.

Despite the State’s assertion in its brief to the contrary, the indictment in the instant case charged Blissit with “intentionally and knowingly threaten[ing] Preston Wade Thomas with imminent bodily injury by using and exhibiting a deadly weapon, to wit, a firearm during the commission of said assault.” (emphasis added). Because we must consider the elements of the offense “actually charged,” Campbell, 149 S.W.3d at 151, the holding in Bell controls, and misdemeanor deadly conduct is a lesser-included offense of the aggravated assault offense charged in Blissit’s indictment.

Turning to the second prong of the test, we must review the record and determine whether some evidence would permit the jury to rationally find that if Blissit is guilty, he is guilty only of the lesser-included offense. Campbell, 149 S.W.3d at 152. In making the decision under the second prong, the court evaluates the evidence in the context of the entire record, but does not consider whether the evidence is credible, controverted, or in conflict with other evidence. Hall v. State, 158 S.W.3d 470, 473 (Tex.Crim.App.2005).

In this case, the jury could have chosen to disbelieve the complainant’s testimony that Blissit pointed the gun at him while believing Bonnie’s testimony that Blissit merely swept the gun across the room. The jury also could have believed the gun discharged as a result of Bonnie’s actions in holding or hitting Blissit’s arm. See Hayes v. State, 728 S.W.2d 804, 810 (Tex.Crim.App.1987) (noting discharge of gun during struggle presents circumstances under which charge of reckless conduct is appropriate); Isaac, 167 S.W.3d at 475 (holding deadly conduct instruction required where jury could believe that gun discharged when the defendant’s stepbrother tackled the defendant while grabbing the defendant’s hand). Having reviewed the record, we conclude that there is some evidence that would permit the jury to rationally find that if Blissit is guilty, he is guilty only of the lesser-included offense of deadly conduct.

The trial court’s failure to instruct the jury on the lesser-included offense of deadly conduct denied the jury the opportunity to consider the entire range of offenses presented by the evidence. See Saunders v. State, 913 S.W.2d 564, 570-71 (Tex.Crim.App.1995). As a result, Blissit was harmed by the omission of the lesser-included offense from the charge. Isaac, 167 S.W.3d at 476. Accordingly, we reverse the trial court’s judgment and remand the cause to the trial court for a new trial.

      . We note that the Dallas court recently relied on Miller to assert that "proving aggravated assault as alleged in the indictment does not require proof that appellant used a deadly weapon, rather proof that appellant exhibited a deadly weapon is sufficient.” Schreyer v. State, No. 05-03-01127, - S.W.3d -, -, 2005 WL 1793193, at *7 (Tex.App.-Dallas July 29, 2005, no pet. h.). In a footnote, however, the Dallas court noted that the indictment in question read, in part, that appellant “intentionally and knowingly threaten[ed] [Detective] BAILEY, hereinafter called complainant, with imminent bodily injury, and said defendant did use and exhibit a deadly weapon.” Id. - S.W.3d at - n. 5 (emphasis added). Because we are required to consider the elements of the offense "actually charged,” we respectfully decline to follow our sister court’s holding.


author: REBECCA SIMMONS, Justice.

text:
    In the Interest of G.L.S. and C.M.S., Children.
    No. 04-04-00798-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 16, 2005.

      Gail Kay Zimmerman, Zimmerman & Zimmerman, San Antonio, for appellant.
    Rhonda Amkraut Pressley, John B. Worley, Asst. Atty’s Gen., Austin, Sally Lee Ammerman, San Antonio, for appel-lee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, REBECCA SIMMONS, Justice.
   OPINION

Opinion by

REBECCA SIMMONS, Justice.

Darwin Sealy appeals the trial court’s order asserting that the trial court erred in failing to credit the social security disability payments received by his children against his child support obligations. In his brief, Sealy presents his issue as follows: “If the total amount of benefits paid to or for the child as a result of the obligor’s disability exceeds the amount of his current child support obligations, is he entitled to [a] credit for the excess amount against: (a) unconfirmed child support ar-rearages?; (b) a child support judgment entered prior to the date he became disabled under Social Security rules? and/or (c) his future child support obligations?”

Background

Sealy and Sally Lee Ammerman were divorced on January 17, 1990, and Sealy was ordered to pay Ammerman child support in the amount of $490.00 per month. Sealy was also ordered to pay Ammerman one-half of the children’s uninsured medical costs. Orders were subsequently entered on various dates decreasing and increasing the amount of support. On July 1, 2000, the trial court increased the child support to $575.00 per month and awarded Ammerman a judgment in the amount of $5,139.74 for Sealy’s unpaid one-half of the children’s uninsured health care expenses. Sealy also was ordered to reimburse Am-merman as additional child support the amount of $114.00 per month for health insurance premiums. Effective May 1, 2001, the child support payment was again reduced to $250.00 per month.

On June 13, 2003, Sealy received a Notice of Award informing him that he was entitled to monthly disability benefits from the Social Security Administration (“SSA”). The SSA determined that Sealy became disabled on November 8, 2000; however, Sealy did not qualify for benefits until he was disabled for five consecutive calendar months. As a result, Sealy was not entitled to monthly disability benefits until May of 2001.

As a result of Sealy’s disability, one of his children, Gretchen, received a lump sum payment in the amount of $1,878.00 in July of 2003, in payment of the monthly child’s benefit she was entitled to receive from May 2001 through October 2001. After October 2001, Gretchen was not entitled to receive the monthly child’s benefit because she had turned eighteen. Because she was an adult in 2003, Gretchen’s lump-sum entitlement was paid directly to her.

Sealy’s other child, Colleen, received a lump sum payment in the amount of $14,804.00 in July of 2003, in payment of the monthly child’s benefit she was entitled to receive from May of 2001 through June of 2003. In addition, Colleen would continue to receive a monthly child’s benefit in the amount of $653.00, until she turned eighteen. Colleen’s payments were made to her mother as Colleen’s representative payee.

In April of 2004, the Office of the Attorney General filed a Suit for Modification of Child Support and Motion to Confirm Child Support Arrearage. On August 10, 2004, the trial court entered an order confirming an arrearage judgment for unpaid child support in the amount of $14,982,47, and a medical support arrearage judgment in the amount of $6,184.81. Sealy also was ordered to pay current child support of $250.00 per month. Sealy appeals this order.

Standard op Review

A trial court’s orders modifying child support and confirming child support arrearages are reviewed under an abuse of discretion standard. Beck v. Walker, 154 S.W.3d 895, 901 (Tex.App.-Dallas 2005, no pet.); Grayson v. Grayson, 103 S.W.3d 559, 561 (Tex.App.-San Antonio 2003, no pet.); In re M.C.R., 55 S.W.3d 104, 109 (Tex.App.-San Antonio 2001, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles; in other words, if it acts arbitrarily or unreasonably. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). A trial court’s failure to analyze or apply the law correctly constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992); Attorney Gen. of Tex. v. Stevens, 84 S.W.3d 720, 722 (Tex.App.Houston [1st Dist.] 2002, no pet.).

Discussion

Sealy contends that under Texas case law, he is entitled to a credit or offset for social security disability benefits paid to his children as a result of his disability. The Attorney General asserts that sections 157.262(a) and (f) of the Texas Family Code preclude a trial court from ordering such an offset. The Attorney General contends that the only offset a trial court is permitted to order under the Code is the offset contained in section 157.008, which is not applicable in this case. In addition to its argument under the Code, the Attorney General also relies on federal law to support its position.

A. Existing Judgment

This court’s opinion in In re Nichols, 51 S.W.3d 303 (Tex.App.-San Antonio 2000, no pet.), resolves the issue of whether Sealy is entitled to credit against the judgment entered on July 1, 2000, for unpaid health care expenses. In Nichols, the only issue presented on appeal was whether the trial court erred in concluding that the obligor parent was entitled to a credit for social security benefits against an existing arrearage judgment. 51 S.W.3d at 306-07. This court held that the trial court erred because res judicata barred the retroactive credit against the existing judgment. Id. Accordingly, the doctrine of res judicata bars any retroactive credit of the disability payments in this case against the July 1, 2000 judgment.

B. Future Child Support

Section 154.132 of the Texas Family Code contains a specific provision relating to the application of child support guidelines to children of certain disabled obligors. Tex. Fam.Code Ann. § 154.132 (Vernon 2002). Section 154.132 states:

In applying the child support guidelines for an obligor who has a disability and who is required to pay support for a child who receives benefits as a result of the obligor’s disability, the court shall apply the guidelines by determining the amount of child support that would be ordered under the child support guidelines and subtracting from that total the amount of benefits or the value of the benefits paid to or for the child as a result of the obligor’s disability.

Id. This same provision applies with equal force to the modification of support under chapter 156. See Tex. Fam.Code ANN. § 156.402 (Vernon 2002). In this case, the record does not reflect that the trial court calculated the amount of child support Sealy would be required to pay in the future in accordance with section 154.132. Accordingly, we reverse the portion of the trial court’s order establishing the amount of child support Sealy is required to pay after the date of that order.

C. Unconfirmed Arrearages

Section 157.262(a) of the Texas Family Code states, “Except as provided by this section, in a contempt proceeding or in rendering a money judgment, the court may not reduce or modify the amount of child support arrearages.” Tex. Fam.Code ANN. § 157.262(a) (Vernon 2002). Section 157.262(f) provides, “The money judgment for arrearages rendered by the court may be subject to a counterclaim or offset as provided by this subchapter.” Tex. Fam.Codb Ann. § 157.262(f) (Vernon 2002).

Case law interpreting sections 157.262(a) and (f) establish a clear procedure that a trial court is required to follow in entering a final judgment in a proceeding seeking child support arrearages. First, the trial court must mechanically tally the amount of the arrearage. Beck, 154 S.W.3d at 903; Lewis v. Lewis, 853 S.W.2d 850, 854 (Tex.App.-Houston [14th Dist.] 1993, no writ). The trial court has no authority to reduce or modify this amount in making this calculation. Beck, 154 S.W.3d at 903; Lewis, 853 S.W.2d at 854. The courts refer to the trial court acting as a “mere scrivener” in this regard. Beck, 154 S.W.3d at 903; Curtis v. Curtis, 11 S.W.3d 466, 471 (Tex.App.-Tyler 2000, no pet.); Lewis, 853 S.W.2d at 854. After the trial court makes this mechanical calculation, the final judgment is to be rendered only after offsets and counterclaims are considered. Beck, 154 S.W.3d at 903; Lewis, 853 S.W.2d at 854. In this case, Sealy questions whether the trial court abused its discretion in the second step of the procedure by failing to offset or credit the social security disability payments against the unconfirmed child support ar-rearages.

This court has never addressed whether an obligor is entitled to credit a lump sum social security disability payment received by his children against unconfirmed ar-rearages owed to the obligee. See, e.g., Nichols, 51 S.W.3d at 306-07 (addressing complaints relating to credit against confirmed arrearage judgment and noting that decision in In re Rich, 993 S.W.2d 272 (Tex.App.-San Antonio 1999, no pet.), only addressed whether the trial court should have modified the amount of child support in the future); In re K.E.T., 974 S.W.2d 760 (Tex.App.-San Antonio 1998, no pet.) (affirming trial court’s refusal to apply offset to arrears owed to State). The Houston court, however, directly addressed this issue in Attorney Gen. of Tex. v. Stevens, 84 S.W.3d 720 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

In Stevens, the obligor father, Stevens, was ordered to pay child support in 1989. 84 S.W.3d at 721. Stevens became physically disabled in June of 1997. Id. In February of 1998, Stevens’ unpaid arrear-ages, totaling $10,166.23, were reduced to a money judgment. Id. On August 26, 1999, the Social Security Administration ruled that Stevens was disabled since June of 1997. As a result, Stevens’ son, who had turned 18, received a $7,200 check for benefits payable to him from the date of Stevens’ disability until the date he turned 18. Id. The Attorney General filed a motion to reduce Stevens’ unpaid child support to a judgment. Id. It was undisputed that the total amount of arrearages was $11,256.07, which included the unpaid balance and accrued interest on the February 1998 arrearage judgment. Id. The trial court concluded that the $7,200 should be credited against the arrearages. Id.

The court initially stated that it “need not decide whether Social Security dependent’s disability benefits could ever be construed as a true child support payment because, here, the court’s order clearly did not treat it as such.” Id. at 722. The court then turned to the issue presented which it framed as “whether the trial court, in rendering a money judgment, could grant Stevens a $7,200 special credit against his arrearages based on the dependent’s disability payment made directly to his son.” Id. Citing the Code, the court held, “nothing in the Family Code provides for the kind of credit given by the trial court, and section 157.262(b) indicates that counterclaims and offsets must be found exclusively in the code.” Id. at 724. With regard to the developing line of cases, the court initially noted certain factual distinctions but ultimately asserted that none of the opinions considered the binding provisions of the Family Code. Id. The court, therefore, disagreed with the prior decisions based on its analysis of the Family Code, especially section 157.262. Id.

Interestingly, the court noted that sub-chapter F, which includes section 157.262, “contains no description of any applicable counterclaims or offsets.” Id. at 723. Although the court noted that section 157.008 contains an offset, the court also noted that section 157.008 is not located in sub-chapter F; therefore, the court reasoned that the relationship between the two sections “is not entirely clear.” Id. The court concluded, however, that if section 157.008 were applicable, the credit would not apply. Id.

The court reasoned, “While there may be valid reasons to offset child support arrearages based on Social Security dependent’s disability payments, that is a matter for the Legislature’s consideration.” Id. In a footnote, the court noted that the Legislature is not unaware of the impact disability payments might have on child support issues. Id. at n. 7. In 1999, the Legislature added section 154.132, which requires courts to subtract the “amount of benefits or the value of the benefits paid to or for the child as a result of the obligors’ disability” when applying the child support guidelines to a disabled obligor. Id.; Tex. Fam.Code ANN. § 154.132 (Vernon 2002). The court cautioned, however, that “child support guidelines are not applied when a court renders a money judgment on unpaid arrearages.” Stevens, 84 S.W.3d at 725 n. 7. The analysis in Stevens was recently relied upon by the Dallas court in rejecting an argument regarding the obligor’s entitlement to “equitable offsets” against child support ar-rearages. Beck, 154 S.W.3d at 905-06; see also In re S.L.M., 97 S.W.3d 224, 233 (Tex.App.-Amarillo 2002, no pet.) (noting trial court erred in allowing offset against arrears for “equitable right”). In addition, the Texarkana court recently relied on Stevens to affirm a trial court’s refusal to credit social security disability payments against an arrearage. In re S.J.T., No. 07-03-00523-CV, 2005 WL 2385449 (Tex. App.-Amarillo Sept. 28, 2005, no pet. h.).

By adopting section 154.132, the Legislature has recognized the equity in granting a credit for social security disability benefits when establishing or modifying child support. However, the Legislature may have decided to only grant the credit prospectively because of the delays in the Administration’s processing of disability claims. As stated in the amicus brief filed in this appeal and as is evident from the facts in the reported opinions, the Administration may delay the processing for a year or more. The policy issues implicated in applying a lump-sum disability payment to unpaid, unconfirmed child support are more complicated than a credit for future benefits to be paid. Given the competing policies and equities, we agree with the decision in Stevens that whether an obligor is entitled to an offset against past unconfirmed child support arrearages is an issue for the Legislature to decide. Until further action is taken by the Legislature, sections 157.262(a), (f) of the Code preclude this court from finding that the trial court abused its discretion in refusing the credit the disability payment received by Colleen against the unconfirmed child support arrearages.

Conclusion

The portion of the trial court’s judgment establishing the amount of child support to be paid by Sealy after the date of the order is reversed, the remainder of the trial court’s judgment is affirmed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

      . During oral argument, Sealy's attorney conceded that Sealy was not entitled to a credit or offset for the disability benefit paid directly to Gretchen.

      . Section 157.262(b) was subsequently renumbered to 157.262(f). Stevens, 84 S.W.3d at 723 n. 2.

      . One of the opinions distinguished on this basis was In re Allsup, 926 S.W.2d 323 (Tex.App.-Texarkana 1996, no writ). The Texar-kana court has recently revisited its decision in Allsup, noting that it failed to consider the legislative mandate memorialized in section 157.262(a) and affirming the trial court’s decision not to credit social security disability payments against child support arrearages. In re S.J.T., No. 07-03-0523-CV, 2005 WL 2385449 (Tex.App.-Amarillo Sept. 28, 2005, no pet. h.).


text:
    CITY OF SAN ANTONIO, Appellant, v. Mario PARRA, Appellee.
    No. 04-05-00429-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 16, 2005.

      Ellen B. Mitchell, Cox Smith Matthews Incorporated, William P. Durland, Asst. City Atty. (Litigation Division), San Antonio, for appellant.
    Christa Samaniego, Law Office of Christa Samaniego, San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

The City of San Antonio appeals the trial court’s order denying its motion to dismiss the negligence claims asserted by Mario Parra. The City asserts that it is immune from Parra’s negligence claims under the doctrine of sovereign immunity. We reverse the trial court’s order and dismiss Parra’s claims against the City for personal injury caused by the use or condition of tangible personal property, negligent supervision and implementation of policy, and general negligence.

BACKGROUND

Mario Parra injured his leg when he stepped into an open manhole. The nature of his injuries eventually led to the amputation of his leg. Parra sued the City asserting premises liability and negligence claims. The City filed a motion for summary judgment as to the premises liability claim and a motion to dismiss as to the negligence claims. The trial court granted the motion for summary judgment and denied the motion to dismiss.

STANDARD OF REVIEW AND BURDEN OF PROOF

Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). Whether a court has subject matter jurisdiction is a question of law. Id. at 226. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Id. at 227. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. Id. at 227-28. However, if the relevant issue is undisputed or fails to raise a fact question, the trial court rules on the plea to the jurisdiction as a matter of law. Id.

After the governmental entity asserts and supports with evidence that the trial court lacks subject matter jurisdiction, the plaintiffs are required, when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue. Id. In reviewing a trial court’s ruling, we take as true all evidence favorable to the nonmov-ant. Id. We also indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Id.

Recasting of Claim

In Texas Dept. of Parks & Wildlife v. Miranda, the Texas Supreme Court refused to permit a plaintiff to “circumvent the heightened standards of a premises defect claim contained in section 101.022 by recasting the same acts as a claim relating to the negligent condition or use of tangible personal property.” 133 S.W.3d at 233. Once a claim is determined to be a premises defect, the claimant is limited to the provisions delineated by the section on premises defects and may not assert a general negligence theory. Id. (citing State v. Estate of Horton, 4 S.W.3d 53, 54 (Tex.App.-Tyler 1999, no pet.)).

Whether a condition is a premises defect is a legal question. Tex. Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 866 (Tex.2002). A claim which relates to a defect in the condition of real property is a premises defect claim. State v. Estate of Horton, 4 S.W.3d at 54. Real property includes land and generally whatever is erected or growing upon or affixed to land. Miranda, 133 S.W.3d at 229-230. Typically, cases analyzing injuries relating to holes in the land, including injuries caused by an open manhole, uncovered storm sewer and defective drainage lid box, arise in the context of whether the defect is a premises defect or a special defect, both of which relate to a premises liability claim. See, e.g., City of McAllen v. Hernandez, No. 13-04-182-CV, 2005 WL 2000818, at * 6-8 (Tex.App.-Corpus Christi Aug.22, 2005, no pet. h.) (shop-made lid resembling manhole cover did not constitute a special defect); City of El Paso v. Chacon, 148 S.W.3d 417, 422-425 (Tex.App.-El Paso 2004, pet. denied) (hole created by removal of utility pole or traffic control device in area of sidewalk pedestrians normally walk constituted a special defect); Purvis v. City of Dallas, No. 05-00-01062-CV, 2001 WL 717839, at *2-4 (Tex.App.-Dallas June 27, 2001, no pet.) (open manhole cover constituted premises defect not special defect); Bueno v. City of San Antonio, No. 04-00-00597-CV, 2001 WL 328553, at *1 (Tex.App.-San Antonio Apr.4, 2001, no pet.) (analyzing premises liability claim arising from jogger falling into open manhole); Harris County v. Smoker, 934 S.W.2d 714, 719 (Tex.App.-Houston [1st Dist.] 1996, writ denied) (uncovered storm sewer located in roadway where pedestrians normally walk constituted a special defect).

Parra contends that because the manhole cover is tangible personal property that is removable from the real property, he has a viable negligence claim in addition to his premises liability claim. We disagree. In Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 526-27 (Tex.1997), Olivo sued for injuries sustained when he slipped and fell on his back on one of several drill pipe thread protectors that had been left on the ground during the previous shift. The thread protectors were even more “removable” from the real property than the manhole cover in this case. The Texas Supreme Court held that the claim was for a premises defect not a negligent activity “because Olivo allege[d] that he was injured by thread protectors previously left on the ground, not as a contemporaneous result of someone’s negligence.” Id. at 527. The same reasoning applies in this case, and Miranda precludes Parra from recasting his claim as one involving the condition or use of tangible personal property. Miranda, 133 S.W.3d at 233.

Because Parra cannot establish an independent waiver of sovereign immunity under the Texas Tort Claims Act, he cannot advance his negligent supervision and negligent implementation of policy theories. City of Laredo v. New Yorkers Apparel, Inc., No. 04-04-00887-CV, 2005 WL 1458248, at *4 (Tex.App.-San Antonio June 22, 2005, no pet.); City of Garland v. Rivera, 146 S.W.3d 334, 338 (Tex.App.Dallas 2004, no pet.); Guadalupe-Bianco River Auth. v. Pitonyak, 84 S.W.3d 326, 342 (Tex.App.-Corpus Christi 2002, no pet.). Furthermore, Parra’s general claim that the City negligently failed to cover the storm sewer fails to allege facts to demonstrate how immunity is waived under any of the three applicable areas for which immunity is waived under the Act. See Miranda, 133 S.W.3d at 224-26.

Conclusion

The trial court’s order is reversed, and Parra’s claims against the City for personal injury caused by the use or condition of tangible personal property, negligent supervision and implementation of policy, and general negligence are dismissed for lack of jurisdiction.

      . Parra also asserted a premises liability claim. The trial court granted a summary judgment in favor of the City as to the premises liability claim.