source: Caselaw Access Project

author: TERRY JENNINGS, Justice.

license: Public Domain

text:
    Marvin MILLER, Appellant, v. The STATE of Texas, Appellee. Reginald Keith Leroy, Appellant, v. The State of Texas, Appellee.
    Nos. 01-03-01035-CR, 01-03-01038-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 10, 2004.

      Roland B. Moore, III, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, Bridget Holloway, Assistant District Attorney-Harris County, Houston, TX, for Appellee.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

TERRY JENNINGS, Justice.

In a joint trial, a jury found appellants, Marvin Miller and Reginald Keith Leroy, guilty of the offense of aggravated robbery. After finding true the allegations in two enhancement paragraphs in each case that appellants each had two prior felony convictions, the trial court assessed Miller’s punishment at confinement for 25 years and Leroy’s punishment at confinement for 40 years. In five issues, appellants contend that the trial court erred in denying their requests to have an interpreter appointed to assist the complainant in testifying, that the evidence is legally and factually insufficient to support their convictions, and that their trial counsel rendered ineffective assistance in not objecting to leading questions. In a sixth issue, Leroy contends that his trial counsel rendered ineffective assistance in eliciting adverse testimony on cross-examination. We reverse both convictions and remand.

Facts

Oscar Cardenas, the complainant, testified that, on January 24, 2008, at approximately 6:00 p.m., he was working part-time for a maintenance crew cleaning an office building, and he unlocked the door to the offices of Apogee Engineering (Apogee). When he entered Apogee’s offices to vacuum, he noticed papers strewn all over the floor and saw a man whom he later identified as Miller. The complainant testified that Miller immediately walked over to him, pulled out a knife, grabbed him by the neck, and said “if you scream, I hit you, I kill you.” The complainant complied with Miller’s order because he feared that Miller would “kill [him].” Miller subsequently called out to a man, whom the complainant later identified as Leroy, who was hiding in an access tunnel above Apogee’s offices. Leroy then “came through the ceiling” into the office.

At this point, Leroy began looking through the drawers of a desk in the office, while Miller continued restraining the complainant. After approximately 30 minutes, Leroy picked up a glass clock. Miller took the keys to Apogee’s offices from the complainant and unlocked the door. Miller and Leroy then left the office, closed the door behind them, and slid the keys underneath the door. When the complainant subsequently left the office, he saw Miller and Leroy get into a red or maroon Cadillac, which had been parked outside the building, and drive away. The complainant then located his supervisor and told her what had happened, and the supervisor called for emergency assistance.

Byron Dearixon, Apogee’s owner, testified that, when he inspected his office after the robbery, he discovered that a clock and five checks were missing. Dearixon could not recall the amount of each check, but he remembered that one of the checks had been made out to Apogee in the amount of $6,812.60. During his inspection, Dearixon also saw that two tiles were missing from the ceiling of his office and he took this as a sign that the robbers had entered his office by climbing over from an adjacent office space that was being renovated. Dearixon explained that, because the door to this other office space had been left open to “air out” the space, a person could have entered the office space, climbed up to the access tunnel above it, and then entered his office by removing some of the ceiling tiles.

Shawndale Jones, an employee at Ace Check Cashing, testified that, on January 27, 2003, three days after the robbery, Miller and Leroy entered the check cashing store, and Leroy handed Jones a check and his driver’s license and asked her to cash the check. Jones saw that the check had been made payable both to Apogee and to Leroy and that Leroy’s name had been added to the check using a typewriter. Instead of cashing the check, Jones “hit [her] panic button so the police would come to the location.”

Houston Police Officer K. Flowers testified that, on January 27, 2003, after he was dispatched to Ace Check Cashing, he arrested Miller and Leroy and obtained the check from Jones.

Harris County Sheriffs Detective T.L. Keen testified that, after he obtained separate photographs of Miller and Leroy, he compiled two separate photographic arrays: one consisting of a photograph of Miller and the photographs of five other men and the other consisting of a photograph of Leroy and the photographs of five different men. On January 28, 2003, when Keen showed the complainant the arrays, he positively identified Miller and Leroy as the robbers.

Legal Sufficiency of the Evidence

In their second and third issues, appellants argue that the evidence was legally insufficient to support their convictions because the State failed to prove that they had committed the robbery while using or exhibiting a deadly weapon or that they had placed the complainant in fear of imminent bodily injury or death.

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). Although our analysis considers all evidence presented at trial, we may not reweigh the evidence and substitute our judgment for that of the fact finder. Id.

A person commits the offense of robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen.Code Ann. § 29.02 (Vernon 2003). A person commits the offense of aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Id. § 29.03(a)(2) (Vernon 2003).

Under the law of parties, a person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Id. § 7.01(a)(2) (Vernon 2003). A person.is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2) (Vernon 2003). Each party to an offense may be charged with commission of the offense. Id. § 7.01(b) (Vernon 2003).

Deadly Weapon

A deadly weapon is defined as “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” See id. § 1.07(a)(17)(B) (Vernon 2003). Although a knife is not a deadly weapon per se, a knife can be found to be a deadly weapon based on the nature of its use or intended use. Garcia v. State, 17 S.W.3d 1, 4 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). To determine whether a particular knife is a deadly weapon, courts have considered (1) the size, shape, and sharpness of the knife; (2) the manner of its use or intended use; (3) the nature or existence of inflicted wounds; and (4) testimony about the knife’s life-threatening capabilities. Id.

Appellants assert that the State failed to prove that the knife used by Miller was a deadly weapon because (1) “the State did not introduce a knife into evidence”; (2) “[no] witness testified as an expert to say that in his opinion the [knife] was capable of causing serious bodily injury and death”; and (3) “[n]o testimony established that the [knife] ... was manifestly ‘designed, made, or adapted’ for the purpose of inflicting bodily injury.” Appellants note that the complainant testified that Miller told him not to scream or that Miller would “kill [him].” However, appellants argue that this testimony should be ignored because it was the “product of an improper leading question” and was unreliable due to the complainant’s “hopeless lack of understanding of English.”

However, the complainant testified that, when he entered Apogee’s offices and saw that Miller was inside, Miller pulled out a knife, grabbed the complainant by the neck, and stated, “If you scream, I hit you, I kill you.” The complainant testified that he complied with Miller’s order because he was afraid that Miller would “kill [him].” Thereafter, Leroy “came through the ceiling” into the office, and, while Miller continued to restrain the complainant and to exhibit the knife, Leroy searched through the drawers of the desk for items to steal. Considering this evidence, a rational fact finder could have found, beyond a reasonable doubt, that, based on the manner in which Miller used the knife, it was capable of causing death or serious bodily injury and was a deadly weapon. Tex. Pen.Code Ann. § 1.07(a)(17)(B). Moreover, a rational fact finder could have also found, beyond a reasonable doubt, that Leroy, intending to assist Miller in the commission of the robbery, had aided Miller and was, therefore, criminally responsible for Miller’s exhibition of the knife. See id. § 7.02(a)(2).

Fear of Imminent Bodily Injury or Death

Appellants also contend that the State failed to prove that they “threatened or placed the complainant ... in fear of imminent bodily injury or death.” Appellants assert that, “although the complainant testified that he was in fear of serious bodily injury or death, he suffered no wounds, the knife was not introduced into evidence, and the State had failed to establish its potential for harm through expert testimony by a Houston police officer.”

However, as conceded by appellants, the complainant did testify that, when Miller grabbed him by the neck, held a knife by his side, and stated, “If you scream, I hit you, I kill you,” he feared that Miller would indeed “kill [him].” The complainant further testified that he did not return to work for a week because he was still afraid. Considering this evidence, a rational fact finder could have found, beyond a reasonable doubt, that Miller had placed the complainant in fear of imminent bodily injury or death.

Accordingly, we hold that the evidence was legally sufficient to support appellants’ convictions.

We overrule appellants’ second and third issues.

Appointment of an Interpreter

In their first issue, appellants argue that the trial court erred in denying their requests to have an interpreter appointed to assist the complainant in testifying because the complainant “could not speak English well enough to be rehable” and “could not be effectively cross-examined [as] he could neither understand the questions, or repeat many answers that [had] been attributed to him by the investigating officer.”

The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. This “bedrock procedural guarantee” applies to both federal and state prosecutions. Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177 (2004). Likewise, the Texas Constitution guarantees that “[i]n all criminal prosecutions the accused shall ... be confronted by the witnesses against him.” Tex. Const, art. I, § 10. Cross-examination has been described as “beyond any doubt the greatest legal engine ever invented for the discovery of truth ... the great and permanent contribution of the Anglo-American system of law to improved methods of trial procedure.” John H. WigmoRE, A TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS at Common Law 2, at 1697-98 (1904).

The Texas Court of Criminal Appeals has acknowledged that providing an interpreter to an accused who does not understand English is required by the Confrontation Clause and by Article I, section 10. Baltierra v. State, 586 S.W.2d 553, 556-59 (Tex.Crim.App.1979). Likewise, we hold that providing an interpreter to an accused to confront a material witness who does not understand English is required by the Confrontation Clause and by Article I, section 10. These confrontation guarantees are simply lost to an accused who, because of a language barrier, is deprived of the ability to test the credibility of a material witness through cross-examination.

We also note that Article 38.30 of the Texas Code of Criminal Procedure provides, in pertinent part, as follows:

When a motion for an interpreter is filed by any party or on motion of the court, in any criminal proceeding, it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for him.

Tex.Code CRiM. Proc. Ann. art. 38.30(a) (Vernon Supp.2004-2005) (emphasis added). This provision is designed to protect an accused’s right of confrontation under the federal and state constitutions. Montoya v. State, 811 S.W.2d 671, 673 (Tex.App.-Corpus Christi 1991, no pet.).

Appellants direct our attention to numerous “passages of testimony when [the complainant] spoke at trial that prove, even from the ‘cold record,’ that he was not competent to testify in English.” Specifically, appellants note that, on direct examination, the complainant did not understand several of the State’s questions, prompting the State to rephrase the questions in leading form. Appellants also note that, on cross-examination, the complainant testified that he did not speak English as well as he could speak Spanish. Thus, appellants conclude that the complainant’s command of English was so poor that appellants could not (1) “cross-examine the complainant effectively” or (2) “counteract the effect of the leading questions from the State.”

The State asserts that appellants waived their confrontation rights by “untimely” requesting an interpreter for the complainant. Moreover, citing Diaz v. State, 491 S.W.2d 166 (Tex.Crim.App.1973), the State argues that there is no reversible error here merely because the complainant did not speak fluent English. The State emphasizes that the trial court allowed both the State and the defense latitude in questioning the complainant and asserts that the complainant was able to communicate in, English the facts underlying the robbery.

However, the Court of Criminal Appeals has recently concluded that “when a trial judge is aware that [a] defendant has a problem understanding the English language,” his right to have an interpreter translate the trial proceedings into a language that he understands is a right “which must be implemented by the system unless expressly waived.” Garcia v. State, 149 S.W.3d 135, 145 (Tex.Crim.App. Mar. 24, 2004). The Court explained that

[i]n these circumstances, the judge has an independent duty to implement this right in the absence of a knowing and voluntary waiver by the defendant. The judge may become aware of the defendant’s language problem either by being informed of it by one or both parties or by noticing the problem sua sponte.

Id. (emphasis added). In Garcia, the Court noted that, because the trial court “was aware that Garcia had difficulty understanding English,” it was “required to ensure that the trial proceedings were translated into a language which Garcia could understand, absent an effective waiver by Garcia.” Id. The Court held that, because Garcia did not knowingly or voluntarily waive his right to an interpreter, his Sixth Amendment right to confront witnesses was violated. Id. We find that this reasoning applies equally to material witnesses who have a problem understanding the English language.

Here, the record reveals that the complainant had great difficulty answering the State's questions on direct examination and that the trial court allowed the State to examine the complainant with numerous leading questions. During the cross-examination of the complainant by Leroy’s counsel, the following colloquy concerning the complainant’s ability to testify in English occurred outside the jury’s presence:

[Trial Court]: That will be overruled at this point. You just have to do the best you can, just like the State did.
So, anything else.
[Counsel for Miller]: That’s all. I concur with that request, Judge, that this young man needs to testify through an interpreter instead of through the English language.

After a recess, the trial court stated:

All right. For the record, the Court has made attempts to locate an interpreter. I had no idea this was necessary where I sit. We certainly could have had an interpreter. We probably should have had an interpreter, but I can’t get one this afternoon. I’m not going to waste the jury’s time. So, we’re going to continue with this. If y’all want to do whatever you want to do with regard to that, we can deal with that at the appropriate time.

(Emphasis added.) The trial court thus became aware of the complainant’s language problem during direct examination, and both appellants requested an interpreter to perform a meaningful cross-examination. Furthermore, the trial court expressed its own concern that an interpreter was needed so that the complainant could testify adequately, and the court stated that it “certainly could have had an interpreter.”

We recognize that the trial court did not have the benefit of Garcia and was genuinely concerned about delaying the trial. Nevertheless, under Garcia’s holding and reasoning, once the trial court became aware of complainant’s language problem, it had an independent duty to implement appellants’ confrontation rights by securing an interpreter to translate for the complainant. Based on the record presented, which demonstrated the complainant’s language barrier and the trial court’s awareness of that barrier, we hold that the trial court erred in not implementing appellants’ confrontation rights under both the Sixth Amendment to the United States Constitution and Article I, section 10 of the Texas Constitution.

In regard to our harm analysis, we note that, although the complainant understood and spoke English well enough to describe the robbery and to identify appellants as his assailants, the record demonstrates that the complainant had great difficulty answering simple questions on both direct examination and cross-examination. For example, the following exchange took place on direct examination:

[State]: Now, while you were working in January, did you — did something happen to you in one of the offices?
[Complainant]: No.
[State]: Nothing happened to you?
[Complainant]: I don’t understand. Can you repeat it?

When asked, on cross-examination, to describe how the first robber “looked to [the complainant] that night,” the complainant answered, “It was — I can’t explain.” Then the following exchange occurred:

[Counsel for Leroy]: Do you remember talking to the officer?
[Complainant]: Yes.
[Counsel for Leroy]: Did you give him a description or did your aunt tell him the description?
[Complainant]: I gave her the description.
[Counsel for Leroy]: Did you tell him— what did you tell him?
[Complainant]: To the police?
[Counsel for Leroy]: Yes.
[Complainant]: I don’t know. I don’t know how to say it.
[Counsel for Leroy]: You do not know how to say because you don’t know the words or you don’t remember?
[Complainant]: I don’t know the words.

When appellants’ trial counsel expressed their frustration with the complainant’s language barrier, the trial court acknowledged the problem when it stated, ‘You just have to do the best you can, just like the State did.” The trial court then acknowledged that “[w]e probably should have had an interpreter.”

Because the complainant could not understand certain basic questions posed to him, the ability of appellants’ trial counsel to effectively cross-examine the complainant was impeded. Harmless error analysis for Confrontation Clause violations assumes that “the damaging potential of the cross-examination [would have been] fully realized.” Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). Here, appellants were effectively deprived of the ability to test the credibility of the complaining witness through cross-examination. Therefore, we cannot find beyond a reasonable doubt that the trial court’s error in not implementing appellants’ confrontation rights did not contribute to appellants’ convictions. Tex.R.App. P. 44.2(a).

We sustain appellants’ first issue.

Conclusion

Having held that the trial court erred in not implementing appellants’ confrontation rights and having concluded that the error was not harmless, we need not address appellants’ remaining issues. We reverse the judgments of the trial court and remand these causes to the trial court for further proceedings in accordance with this opinion.


author: ELSA ALCALA, Justice.

text:
    Theodore FLORES, Appellant, v. The STATE of Texas, Appellee.
    Nos. 01-03-00910-CR, 01-03-00911-CR, 01-03-00912-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 6, 2005.
    Rehearing Overruled Feb. 16, 2005.
    Discretionary Review Refused Sept. 14, 2005.

      Clay S. Conrad, Lamson & Looney, P.C., Houston, TX, for Appellant.

      Eric Kugler, Assistant District Attorney of Harris County, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, ALCALA, and HIGLEY.
   OPINION

ELSA ALCALA, Justice.

In three indictments, appellant, Theodore Flores, was charged with felon in possession of a firearm, possession of marihuana of more than five but less than 50 pounds, and possession with intent to deliver cocaine weighing more than four grams and less than 200 grams. Appellant filed a motion to suppress the evidence — the cocaine, marihuana, and firearm that were the basis of the above listed indictments — that was seized from his residence. The motion to suppress asserted that appellant’s constitutional rights were violated because the officers who executed the search warrant by forcibly entering his residence failed to announce their presence, or, in the alternative, announced their presence but failed to wait a sufficient length of time before forcibly entering the house. After conducting an evi-dentiary hearing, the trial court overruled appellant’s motion to suppress the evidence. Appellant then pleaded guilty to each of the three offenses and true to the punishment enhancement paragraphs. Pursuant to an agreed plea bargain with the State, appellant was sentenced to 20 years in prison for the felon-in-possession-of-a-firearm, and 30 years in prison for each of the other two offenses. The trial court certified appellant’s right to appeal the trial court’s ruling on his motion to suppress evidence.

In a single point of error for each appeal, appellant contends that the trial court erred by denying his motion to suppress evidence in violation of his constitutional rights to be free from unreasonable searches and seizures. We affirm.

BACKGROUND

About a month before February 11, 2003, Deputy Willrich, a peace officer with the Harris County Sheriffs Office for 11 years, who is assigned to the narcotics division, learned that appellant was selling marihuana and possibly cocaine from his residence. On February 11, 2003, Deputy Willrich received the assistance of a confidential informant whom he believed to be credible and reliable because of past narcotics information obtained from the informant. The Informant met appellant at his residence. Appellant displayed a brick of marihuana to the informant as a sample of what he had for sale, and appellant then returned the brick of marihuana into his residence. Appellant told the informant the price for the marihuana and the quantity that he could deliver. The informant relayed to Deputy Willrich what she or he had observed at appellant’s residence.

Deputy Willrich presented to a magistrate an affidavit for a search warrant for appellant’s residence at 11,727 Boxhill in Houston, Harris County, Texas. The affidavit included the above stated information from the informant. The magistrate signed the warrant authorizing peace officers to conduct a search of appellant’s residence.

The informant'warned Deputy Willrich that the officers should be careful because appellant probably had a gun. The search warrant was silent concerning the informant’s warning. The officers did not request and did not receive authorization from the magistrate to forcibly enter appellant’s residence without first announcing their entry.

On the evening of February 11, 2003, peace officers with the Harris County Sheriffs Department met together about a mile from appellant’s residence to discuss their strategy for the execution of the search warrant. When the officers arrived at appellant’s residence, the officers formed a straight line of six people, one in front of the other, to execute the warrant. The person closest to the front door of the residence was Deputy Houston, who held the Moby, which is the battering ram for forcible entry into a residence. The second person in line was Deputy Cook, and the third person in line was Deputy Murr. Both Deputy Cook and Deputy Murr are peace officers with over ten years’ experience with the Harris County Sheriffs Department. The last person in the line was Deputy Willrich.

Although neither Deputy Murr or Deputy Cook recalled seeing any motion sensor on the porch, Deputy Willrich testified that he saw “some type of security device at the front door and a ... motion-type detector.” Deputy Willrich stated that he did not know about the motion sensor until the officers arrived at appellant’s house to execute the search warrant. Deputy Willrich explained that, in his experience, suspects place motion detectors on the front of the house so that they can have time to “get their weapons and get ready to defend themselves.” Deputy Willrich explained that he feared for his safety and the safety of the other officers because of the warning that appellant had a firearm, the knowledge, based on his training and experience, that appellant would most likely try to protect his narcotics, and the presence of the motion sensor.

Before entering the house, Deputy Cook knocked on the door to the residence. Deputy Cook testified that he “banged” on the door, waited a couple of seconds, “banged” on the door again, and when no one responded to the knocks at the door, the Moby was used to enter the door forcibly. Deputy Cook also stated that he heard an unidentified officer announce, “Sheriffs Department.” Neither Deputy Murr nor Deputy Wullrich recalled seeing or hearing the knocks to the door, nor hearing any announcement prior to their entry into the house. Appellant’s wife testified that she never heard any announcements or any knocks to the door. The record shows that ten to 12 seconds passed from the time the officers approached the porch of the residence to the time of the forcible entry.

An alarm sounded when the officers entered the house. According to appellant’s wife, she heard the house alarm sound when the officers entered into her house just as she and appellant were going to bed. She said that she and appellant arose from bed to find many people in the house shining flashlights and talking loudly-

Only four witnesses testified at the motion to suppress hearing: Deputy Willrieh, Deputy Cook, Deputy Murr, and appellant’s wife. The motion to suppress sought to have the trial court suppress the following evidence seized by the officers during the search of appellant’s residence: about 15 pounds of marihuana, about one pound of cocaine, a firearm, and $3,355 in cash. After the trial court denied appellant’s motion to suppress, the court made oral findings of fact on the record as follows: (1) the three officers are credible, (2) the testimony concerning the informant’s warning that appellant probably had a gun is credible, (3) the testimony that the officers had a “specific concern” that “there was a weapon in the house and a danger to the officers who were going into the house” is credible, (4) “there was a knock and announce, and a knock and then the door was forced down within two to three seconds.” See State v. Groves, 837 S.W.2d 103, 106 n. 5 (Tex.Crim.App.1992) (holding oral findings of fact can be considered as findings of fact).

In his sole point of error, appellant contends that the trial court erred by overruling his motion to suppress. Appellant contends that the officers failed to announce their presence prior to forcibly entering into his residence, and that no circumstances justified a forcible “no knock” unannounced entry. In the alternative, appellant contends that, if the officers knocked on the door and announced their presence, they waited an insufficient length of time before resorting to forcible entry. We conclude that the circumstances here warranted an unannounced entry into appellant’s residence, and, thus hold that the trial court properly denied appellant’s motion to suppress.

Motion to Suppress Standard of Review

We review a trial court’s ruling on a motion to suppress for abuse of discretion, and we review the record of the hearing on the motion in the light most favorable to the trial court’s ruling. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); Rivera v. State, 808 S.W.2d 80, 96 (Tex.Crim.App.1991). Ruling on a motion to suppress lies within the sound discretion of the trial court. Villarreal, 935 S.W.2d at 138.

At the hearing on the motion, the trial court is the sole judge of the credibility of the witnesses and decides the weight to give their testimony. Id.; Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). We must sustain the trial court’s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal, 935 S.W.2d at 138; see Romero, 800 S.W.2d at 543.

When the trial court does not file findings of fact concerning its ruling on a motion to suppress, we assume that the court made implicit findings that support its ruling, provided those implied findings are supported by the record. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002). When the trial court does file findings of fact with its ruling on a motion to suppress, an appellate court does not engage in its own factual review, but determines only whether the record supports the trial court’s fact findings. Romero, 800 S.W.2d at 543. Unless the trial court abused its discretion by making a finding not supported by the record, we will defer to the trial court’s fact findings and not disturb the- findings on appeal. Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991). On appellate review, we address only the question whether the trial court properly applied the law to the facts. Romero, 800 S.W.2d at 543.

Fourth Amendment Announcement Requirement

The Fourth Amendment guarantees that people shall be free from unreasonable searches and seizures. U.S. Const, amend. IV. The knock-and-announce requirement forms a part of the Fourth Amendment’s reasonableness inquiry. Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 1918, 131 L.Ed.2d 976 (1995). Police officers entering a dwelling generally must announce their intent to search before entering closed premises. See id., 514 U.S. at 934, 115 S.Ct. at 1918.

The knock and announce requirement, however, is obviated under certain circumstances. Officers need not announce their intent to search before entry when officers “have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or ... would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” United States v. Banks, 540 U.S. 31, 36, 124 S.Ct. 521, 525, 157 L.Ed.2d 343 (2003) (citing Richards v. Wisconsin, 520 U.S. 385, 387-88, 117 S.Ct. 1416, 1418, 137 L.Ed.2d 615 (1997)). Officers are not required to knock and announce their presence before the entry either (1) when a magistrate authorizes the “no knock” entry, or (2) when, as here, the circumstances support a reasonable suspicion of exigency when the officers arrive at the door, although no magistrate has authorized the unannounced entry. See id., 540 U.S. at 36-37, 124 S.Ct. at 525.

In determining whether the circumstances support a reasonable suspicion of exigency to justify an unannounced entry, we must examine the totality of the circumstances. See id., 540 U.S. at 36, 124 S.Ct. at 525 (stating ‘We have treated reasonableness as a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of circumstances in a given case; it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones.”). The reasonable suspicion burden of proof to justify an unannounced entry is not high, but it requires that officers have specific and articulable facts that demonstrate a danger to the officer. See Rich ards, 520 U.S. at 394-95, 117 S.Ct. at 1421-22 (stating “The burden of showing a reasonable articulable suspicion of danger to make a no-knock entry is ‘not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged.’ ”). The reasonable suspicion standard is lower than the probable cause standard. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002).

In determining whether reasonable suspicion exists, we look at the facts known to the officers in the events leading up to the entry into the residence and view those events from the standpoint of an objectively reasonable police officer. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996) (stating “The principle components of a determination of reasonable suspicion ... will be the events which occurred leading up to the ... search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion ... ”). In determining whether the officer acted reasonably, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific and reasonable inferences which he is entitled to draw from the facts in light of his experience. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).

Analysis

Appellant contends that the informant’s warning was insufficient because the informant was not sufficiently reliable or credible, and because the informant had insufficient information because the informant did not actually see appellant possess a gun and did not actually hear appellant threaten the officers. We conclude that the informant’s warning was sufficient to constitute reasonable suspicion that appellant was probably armed and dangerous. In Terry v. Ohio, the Court stated, “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. Reasonable suspicion thus can exist without actual knowledge or observation of a gun, as long as the officer reasonably believed that his safety or that of others was in danger under the circumstances. See id.

The officers executing the search warrant knew that (1) appellant probably possessed a firearm, and (2) the officers should be careful of appellant. The informant’s warning was specific to appellant, and not a global statement that drug dealers generally possess firearms. The informant’s warning did not state that appellant might possibly have a firearm, but instead that appellant probably was armed. Perhaps more importantly, the informant warned the officers to be careful of appellant, a statement that would reasonably lead a person to believe that appellant was dangerous. ' The officers here were acting on more than a mere hunch that appellant was dangerous and more than a mere suspicion that he might be armed because he was a drug dealer. The officers acted on information specific to appellant from an informant whom they believed was reliable and credible. We cannot conclude that a reasonably objective officer should not have feared for his safety under these circumstances.

Although the officers were not told details about the warning, such as whether appellant had made specific threats against the officers, committed violent acts in the past, whether the informant had actually seen appellant in possession of a firearm, or why the informant believed appellant was probably armed, the officers knew that the informant was credible, reliable, and trustworthy based on their prior contacts with the informant. It was therefore reasonable for the officers to heed the informant’s warning by believing that appellant was probably armed and dangerous requiring that they “be careful” in their approach to his residence.

In addition to the information from the informant, Deputy Willrich testified that the porch to appellant’s house had a motion sensor that caused a light on the porch to turn on when the officers arrived there. An objectively reasonable peace officer could become more concerned for his safety upon finding such a motion sensor at the house of a person believed to be probably armed and dangerous. See Patterson v. State, 138 S.W.3d 643, 648 (Tex.App.-Dallas 2004, no pet.) (holding weapons in house and surveillance equipment sufficient for unannounced entry); see Klepper v. State, No. 05-02-01283-CR, 2003 WL 22663508, at *2 (Tex.App.-Dallas 2003, pet. ref'd) (same).

We hold that the officers had a reasonable suspicion that knocking and announcing their presence would be dangerous under the particular circumstances-a credible and reliable informant’s warning for officers to be careful because appellant probably had a gun, and the presence of a motion sensor on the porch. See Richards, 520 U.S. at 387-88, 117 S.Ct. at 1418; Stokes v. State, 978 S.W.2d 674, 675-77 (Tex.App.-Eastland 1998, pet. ref'd) (holding that forcible entry into residence two seconds after announcement at door was reasonable under circumstances that officers had information from rehable informant that guns were in residence); Collins v. State, Nos. 03-02-00263-CR, 03-02-00264-CR, 2002 WL 31718039, at *3 (Tex.App.-Austin 2002, no pet.) (holding that unannounced forcible entry reasonable under circumstances that informant saw marihuana and guns in residence within 72 hours of issuance of search warrant); Patterson, 138 S.W.3d at 648; Klepper v. State, 2003 WL 22663508, at *2. Because the officers had specific and articulable facts that demonstrated a danger to the officers, the officers met the reasonable suspicion burden of proof, which is not high. See Richards, 520 U.S. at 394-95, 117 S.Ct. at 1421-22.

Conclusion

We affirm the judgments of the trial court.

      . The felon-in-possession-of-a-firearm is trial court cause number 939103, which is appellate cause number 03-00910. The possession-of-marihuana is trial court cause number 939102, which is appellate cause number 03-00911. The possession-with-intent-to-deliver-cocaine is trial court cause number 939101, which is appellate cause number 03-00912. The indictment for felon in possession of a firearm contained only one punishment enhancement paragraph, but the other two indictments each contained two punishment enhancement paragraphs and an additional paragraph that asserted that appellant used or exhibited a deadly weapon, namely a firearm, during the commission of the marihuana and cocaine offenses.

      . See U.S. Const, amends. IV, XIV. Appellant has not contended that the protections under the Texas Constitution exceed or differ from those provided by the Federal Constitution. See U.S. Const, amend. IV, Tex. Const, art. 1, § 9. Accordingly, we address his federal complaints only. See Arnold v. State, 873 S.W.2d 27, 33 (Tex.Crim.App.1993).

      . Deputy Cook and Deputy Murr testified inconsistently concerning their distance from each other. Deputy Cook described Deputy Murr’s location as several feet away from him and off of the porch because the officers tried to keep as many people as possible away from any potential line of fire from the front door. Deputy Murr, however, testified that she was very close to Deputy Cook and could only see his back.

      . In Deputy Cooks’s opinion, appellant had sufficient time to get from his bedroom to the front door to answer it, but appellant chose not to answer the door.

      . The Supreme Court recently held that a 15-to-20-second wait before a forcible entry into a residence satisfied the Fourth Amendment of the United States Constitution because 15 to 20 seconds “does not seem an unrealistic guess about the time someone would need to get in position to rid his quarters of cocaine.” United States v. Banks, 540 U.S. 31, 40, 124 S.Ct. 521, 527, 157 L.Ed.2d 343 (2003). The court stated that the crucial fact in examining the police actions is not the time to reach the door, but rather the particular exigency claimed. Id. The court rejected set time guidelines that a police officer must wait before forcible entry into a residence. Id., 540 U.S.at 35, 124 S.Ct. at 524. Because we conclude that an unannounced entry into the residence was justified, we need not reach the question addressed in Banks concerning whether the length of time between the knock or announcement and the forcible entry into the residence was reasonable.

      . Appellant contends that the mere knowledge of the presence of a weapon, without more, is insufficient to establish the reasonable suspicion necessary to justify a no-knock entry. In support of his contention, appellant relies on Ballard v. State, 104 S.W.3d 372 (Tex.App.-Beaumont 2003, pet. ref’d). In Ballard, the court held that "the mere presence of a handgun ... is insufficient, as an exigent circumstance exception to the knock- and-announce rule, where the State does not also prove the authorities possessed information that the individuals) subject to the warrant was likely to use the weapon, was likely to become violent, had a criminal record reflecting violent tendencies, or a verified reputation of a violent nature.” Id. at 383 (citing United States v. Bates, 84 F.3d 790, 795-96 (6th Cir.1996)). Other courts have declined to follow Ballard by holding that the presence of a firearm in a residence is sufficient to justify an unannounced entry. See Stokes v. State, 978 S.W.2d 674, 675-77 (Tex.App.-Eastland 1998, no pet.) (gun in house sufficient for unannounced entry); see Patterson v. State, 138 S.W.3d 643, 648 (Tex.App.-Dallas 2004, no pet.) (weapons in house and surveillance equipment sufficient for unannounced entry); see Klepper v. State, No. 05-02-01283-CR, 2003 WL 22663508, at *2 (Tex.App.-Dallas 2003, pet. ref’d) (same); see Collins v. State, Nos. 03-02-00263-CR, 03-02-00264-CR, 2002 WL 31718039, at *3 (Tex.App.-Austin 2002, no pet.) (guns in house sufficient for unannounced entiy). The officers here had more than knowledge of a "mere presence of a handgun”; they had a specific warning to be careful of appellant, knowledge that appellant probably had a gun, and knowledge of the motion sensor on the porch.

      . Compare Price v. State, 93 S.W.3d 358, 363 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (holding that testimony that people in possession of controlled substances normally possess firearms and should be considered armed and dangerous is insufficient to justify unannounced entry because information was not specific to the defendant).

      . The informant who gave the officers the warning to be careful of appellant is the same informant whom the magistrate had found sufficiently credible and reliable to authorize the search warrant of appellant’s residence.

      . Officer Murr and Officer Cook did not recall seeing the motion sensor and both believed that the light on the porch was already on when the officers arrived at the house. The trial court’s findings of fact were silent on whether a motion sensor was on the porch of the house, but we must assume the court made implicit findings that support its ruling, provided those implied findings are supported by the record. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002). A sergeant who did not testify at the motion to suppress made the decision concerning the timing of the entry into the residence, and the record is silent concerning whether that sergeant observed the motion sensor on the porch. In our review, we must consider the facts known to the officers in the events leading up to the entry into the residence and view those events from the standpoint of an objectively reasonable police officer. See Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1661, 134 L.Ed.2d 911 (1996). Thus, although the sergeant did not testify, the existence of the motion sensor was known to Deputy Willrich before entry.


author: JANE BLAND, Justice.

text:
    Marcos RANGEL, Appellant, v. Robert LAPIN; Carrigan, Lapin, Landa & Wilde, L.L.P., and Carrigan, Lapin & Landa, L.L.P., Appellees.
    No. 01-03-00351-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 13, 2005.
    Rehearing Overruled April 28, 2005.

      Neal H. Paster and Langdon Smith III, Hjalmarson, Smith & Hancock, Houston, TX, for Appellant.
    Robert C. McCabe, Holm, Bambace & McCabe, L.L.P., Houston, TX, for Appel-lees.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

JANE BLAND, Justice.

Appellant Marcos Rangel sued appellees Robert Lapin, the law firm of Carrigan, Lapin, Landa & Wilde, L.L.P., and its related entity Carrigan, Lapin & Landa, L.L.P. (collectively the “Lapin firm”). The lawsuit alleges: (1) legal malpractice (negligence), (2) breach of contract, (3) breach of warranty, (4) gross negligence, (5) violations of the Texas Deceptive Trade Practices-Consumer Protection Act (the “DTPA”), and (6) spoliation of evidence. Rangel’s claims arise out of the Lapin firm’s representation of him in connection with potential litigation for injuries Rangel sustained in a car crash. The trial court granted summary judgment. Rangel contends that the trial court erred in doing so, because: (1) the Lapin firm failed to properly present its motion for summary judgment to the trial court; (2) a fact issue exists with respect to his liability claims; and (3) the trial court erred in striking his spoliation claim. We conclude that the Lapin firm properly presented its motion, Rangel failed to raise a fact issue as to the causation element of his claims, and Texas does not recognize an independent cause of action for spoliation. We therefore affirm the trial court’s summary judgment.

Facts

In June 1998, Rangel suffered serious injuries in an automobile collision, while he was driving a 1990 Honda Accord owned by his father. He subsequently retained the Lapin firm to represent him in his claim against the other vehicle’s driver and owner for damages. After discovering that neither the owner nor the driver of the other vehicle had maintained insurance coverage, the Lapin firm withdrew as Ran-gel’s counsel. In this lawsuit, Rangel alleges that his father reported to the Lapin firm that he believed that his Honda’s automobile restraint system was defective, and might have contributed to the severity of Rangel’s injuries. He further alleges that a legal assistant of the law firm advised Rangel’s father to sell the wrecked Honda for its salvage value. Rangel’s father sold the Honda, and the salvage company reduced it to scrap metal. Rangel alleges in this lawsuit that his father’s disposal of the vehicle prevented him from pursuing a products liability ease against the Honda Motor Company with respect to the Honda Accord’s passive restraint system.

Rangel filed his original petition in June 2000. The Lapin firm filed both a traditional and a no-evidence motion for summary judgment in August 2002. See Tex.R. Crv. P. 166a(e), 166a(i). The Lapin firm moved for summary judgment on the grounds that (1) no evidence exists as to at least one element of Rangel’s legal malpractice, breach of warranty, breach of contract, and DTPA claims; and (2) the DTPA claims are barred as a matter of law. The trial court granted the Lapin firm’s motion for summary judgment in January 2003. Rangel then filed a motion for new trial. The trial court denied Ran-gel’s motion for new trial, and this appeal followed.

Standard of Review

The movant for a traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex.1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). A defendant moving for summary judgment must either disprove at least one element of each of the plaintiffs causes of action, or plead and conclusively establish each essential element of its affirmative defense, thereby rebutting the plaintiffs causes of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995). In a no-evidence summary judgment under Rule 166a(i), the movant represents that no evidence exists as to one or more essential elements of the non-movant’s claims, upon which the non-movant would have the burden of proof at trial. Tex.R. Crv. P. 166a(i). The non-movant then must present evidence raising a genuine issue of material fact on the challenged elements. Id.

A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard when reviewing a no-evidence summary judgment as we do in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003) (citing Valero Mktg. & Supply Co. v. Kalama Int'l, L.L.C., 51 S.W.3d 345, 350 (Tex.App.-Houston [1st Dist.] 2001, no pet.)); see also Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex.App.-Austin 1998, no pet.). We ascertain whether the non-movant produced any evidence of probative force to raise a fact issue on the material questions presented. See Jackson, 979 S.W.2d at 70. We consider all the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. King Ranch, 118 S.W.3d at 751 (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)); see also Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

More than a scintilla of evidence exists if the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” King Ranch, 118 S.W.3d at 751; Merrell Dow Pharms., 953 S.W.2d at 711. As the summary judgment order in this case does not specify the grounds relied upon by the trial court, we affirm it if any one of the grounds presented in the motion has merit. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).

Improper Form

In his first issue, Rangel contends that the trial court erred in overruling his objections to the Lapin firm’s motion for summary judgment because the motion did not properly incorporate the summary judgment evidence upon which it relies. Rangel claims that the Lapin firm should have included its evidentiary support — depositions, in particular — in full, as opposed to the excerpts that support its motion. Rangel further claims that the Lapin firm failed to direct the court to any specific portion of the evidence in support of its no-evidence motion for summary judgment.

Rule 166a provides that the motion or response reference or set forth the evidence in support of it, unless such evidence is “on file” at the time of the hearing. See Tex.R. Civ. P. 166a(c). The Lapin firm’s motion for summary judgment relies upon and specifically references: (1) Rangel’s disclosure responses; (2) Rangel’s original petition; (3) excerpts from Rangel’s deposition testimony; (4) excerpts from his father’s deposition testimony; (5) excerpts from his mother’s deposition testimony; and (6) Rangel’s expert’s deposition testimony. The Lapin firm attached these materials to its motion.

Depositions and pleadings are proper summary judgment evidence when referred to or incorporated in a motion for summary judgment. See Stewart v. United States Leasing Corp., 702 S.W.2d 288, 290 (Tex.App.-Houston [1st Dist.] 1985, no writ). Within its motion for summary judgment, the Lapin firm specifically referenced its summary judgment evidence. The fact that the Lapin firm did not rely upon all of the discovery materials in the case, nor attach every complete deposition, does not constitute a valid basis for objection to the evidence that the motion did incorporate. We hold that the Lapin firm properly presented evidence in favor of its motion for summary judgment.

Moreover, the Lapin firm does not have the burden of producing evidence to support the no-evidence part of its motion. See Howell v. Hilton Hotels Corp., 84 S.W.3d 708, 711-12 (Tex.App.-Houston [1st Dist.] 2002, pet. denied.). In its motion, the Lapin firm stated the elements in each cause of action that lacked evidence-namely, causation and damages. This satisfies the specificity requirement of a no-evidence motion for summary judgment. See Tex.R. Civ. P. 166a(i).

Legal Malpractice

Rangel contends that the trial court erred in rendering summary judgment on his legal malpractice claim. A legal malpractice action is based upon negligence and requires' proof of four elements: (1) a legal duty; (2) a breach of that duty; (3) that the breach proximately caused the plaintiffs damages; and (4) that the plaintiff sustained damages. See Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex.2004); see also Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex.1995); Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex.1989); Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). If a legal malpractice case arises from prior litigation, a plaintiff must prove that, “but for” the attorney’s breach of his duty, the plaintiff would have prevailed in the underlying case. Greathouse, 982 S.W.2d at 172. Our jurisprudence often refers to this “but for” causation aspect of the plaintiffs burden as the “suit-within-a-suit” requirement. See id. at 173.

Rangel alleges that the Lapin firm breached the standard of care for an attorney by advising his father to destroy the vehicle that could have provided a basis for a products liability action against Honda. In its motion for summary judgment, the Lapin firm asserted that Rangel had failed to produce any evidence of proximate cause, i.e., that Rangel would have prevailed in a lawsuit against Honda “but for” the firm’s malpractice. See Greathouse, 982 S.W.2d at 173. In response, Rangel offered his pleadings and the deposition testimony of Todd Tracy. Tracy is an attorney who has handled crashworthiness cases against Honda. He testified that there was “no doubt in his mind” that he could have recovered a substantial recovery on behalf of Rangel had the vehicle been preserved. He further averred that the vast majority of cases with injuries similar to Rangel’s settle for large sums of money. Although Tracy is a “legal expert witness,” Rangel concedes that he is not an engineering, medical, or biomechanics expert.

In general, one proves causation in a legal malpractice suit by expert testimony. See Alexander, 146 S.W.3d at 119-20; Onwuteaka v. Gill, 908 S.W.2d 276, 281 (Tex.App.-Houston [1st Dist.] 1995, no writ). Here, the underlying ease against Honda required expert testimony to show that Rangel would have prevailed against Honda, had the suit properly been prosecuted. Alexander, 146 S.W.3d at 119-20; Onwuteaka, 908 S.W.2d at 281. To prevail in a passive restraint products liability suit, some combination of expert medical, biomechanical, and/or design opinions that the seat belt in Rangel’s Honda was, in fact, defective, and furthermore, that failure of a seat belt passive restraint system caused Rangel’s injuries would have been necessary to prevail in the underlying lawsuit. See, e.g., Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 137 (Tex.2004) (requiring competent expert testimony and objective proof that défect caused unintended acceleration in vehicle); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (stating that to establish causation in personal injury case, plaintiff must prove that conduct of defendant caused event and event caused plaintiff to suffer compensable injuries); Henderson v. Ford Motor Co., 519 S.W.2d 87, 93-94 (Tex.1974) (reversing judgment against car manufacturer because no expert testified defect had been caused by unreasonably dangerous design or that alternative would have prevented accident); General Motors Corp. v. Harper, 61 S.W.3d 118, 130 (Tex.App.-Eastland, 2001, pet.denied) (holding that in order to establish liability for design defect, plaintiff must prove the defect was producing cause of injury). Such highly technical matters of design and engineering require scientific, technical, and/or specialized knowledge. See Tex.R. Evid. 702; see also Honda of America Mfg., Inc. v. Norman, 104 S.W.3d 600, 608 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (reversing plaintiffs jury award in products liability seat belt restraint suit on legal sufficiency grounds because no expert testimony of reasonably safer alternative design for Honda’s passive restraint system); Praytor v. Ford Motor Co., 97 S.W.3d 237, 241 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (concluding that motorist in air bag deployment suit required to present expert testimony to establish causation); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 603 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (holding that when lay person’s general experience and common sense will not enable that person to determine causation, expert testimony is required); General Motors, 61 S.W.3d at 133 (reversing plaintiffs jury award in products liability seat belt restraint suit because design expert’s testimony failed to establish causation); Sipes v. General Motors Corp., 946 S.W.2d 143, 154 (Tex.App.-Texarkana 1997, pet. denied) (stating although expert not required in all cases to establish a product defect, “issues may arise on technical matters of design and engineering that would be beyond evidence that lay witnesses with no expertise in these fields could offer”).

Rangel did not offer any accident reconstruction, medical, engineering or design testimony to support his claim that his injuries were consistent with a design or manufacturing defect. Thus, Rangel did not offer expert testimony from which one could infer that the underlying ease would have had merit, if only the Honda Accord had not been sold for salvage and destroyed. In addition, Rangel did not offer any factual evidence that supports a products liability claim against Honda — no medical records, no information about the vehicle’s design, not even the police report. Although Tracy described the Honda’s seat belt system in his deposition, he admitted that, as a lawyer, he is not an expert in the fields of accident reconstruction or design defects, and that he could not offer the opinion that the seat belt in Rangel’s car had failed. We conclude that Rangel failed to raise a material fact issue on the suit-within-a-suit causation element of his legal malpractice claim. See Alexander, 146 S.W.3d at 117. The trial court therefore properly granted the Lapin firm’s summary judgment with respect to this claim.

Deceptive Trade Practices Act

Rangel further contends that the trial court erred in granting summary judgment to the Lapin firm on his DTPA cause of action. Specifically, he contends that the Lapin firm created confusion that resulted in Rangel’s incorrect belief that one of the firm’s paralegals, Keith Hill, was actually an attorney. He further contends that Lapin represented that he was a board certified personal injury lawyer when he was not. Rangel alleges that because the firm led him and his family to believe that Hill was an attorney, they placed greater confidence in his advice to sell the car for salvage. Rangel maintains that these misrepresentations were a producing cause of injury to him, because but for the advice of the Lapin firm, he would have “retained a viable products case against Honda.”

As with Rangel’s negligence claims, the DTPA requires that a plaintiff prove that “but for” the attorney’s breach of duty, the plaintiff would not have sustained injury. See Tex. Bus. & Com.Code Ann. § 17.46(b) (Vernon 2002); see also Alexander, 146 S.W.3d at 117 (stating that producing cause under DTPA requires proof of causation in fact); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex.1995) (providing that producing cause is substantial factor which brings about injury and without which injury would not have occurred). Rangel has not raised a fact issue as to whether he would have recovered in a suit against Honda, thus, no evidence of the producing cause element of Rangel’s DTPA claim exists.

Moreover, the DTPA does not apply to a claim for damages based upon professional services, if the essential nature of the service is the providing of advice, judgment, opinion, or similar professional skill. See Tex. Bus. & Com.Code Ann. § 17.49(c)(1) (Vernon 2002); Stafford v. Lunsford, 53 S.W.3d 906, 910 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (holding attorney was not liable under DTPA for failing to advise client to record divorce decree awarding her former husband’s land, because amendment to DTPA exempted professional services from statute). Here, the alleged representations made by Hill and the Lapin firm to Rangel were the type of advice, judgment, or opinion that the legislature specifically intended to exempt from the DTPA. See Stafford, 53 S.W.3d at 910. Rangel alleges misrepresentations that caused him to weigh the firm’s advice with undue favor, a claim that soundly rests within the arena of professional advice. The trial court therefore properly granted summary judgment with respect to Ran-gel’s DTPA action.

Breach of Contract

Rangel claims that the Lapin firm breached its contract to “prosecute and collect any claims” that Rangel may have had in the underlying litigation against Honda. In his brief, Rangel cites to the language in the fee agreement he signed with the Lapin firm to handle his underlying claim. He claims the breach of the agreement by the Lapin firm caused injury, because he lost his opportunity to pursue and recover a judgment on his potential products claim. The Lapin firm responds that no evidence exists as to (1) its breach of the contract, and (2) that any breach caused injury to Ran-gel.

As with Rangel’s other causes of action, his breach of contract claim is one “means to an end” to complain of legal malpractice. See Greathouse, 982 S.W.2d 165, 172 (citing Klein v. Reynolds, Cunningham, Peterson & Cordell, 923 S.W.2d 45, 48-49 (Tex.App.-Houston [1st Dist.] 1995, no writ)). A cause of action arising out of bad legal advice or improper representation is legal malpractice. See Greathouse, 982 S.W.2d at 172; see also Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 481 (Tex.App.-Dallas 1995, writ denied). Rangel alleges a separate and distinct cause of action for breach of contract, but the crux of this claim is that the Lapin firm did not provide adequate legal representation to him. See Greathouse, 982 S.W.2d at 172. We hold that Rangel’s breach of contract claim is in reality a legal malpractice claim. The trial court therefore properly granted summary judgment on the claim because Rangel failed to produce evidence raising a fact issue as to causation.

Breach of Warranty

Rangel also appeals the trial court’s summary judgment on his breach of warranty claims. Professional services, however, are not actionable under a breach of warranty cause of action. Murphy v. Campbell, 964 S.W.2d 265, 268-69 (Tex.1997). The legal services offered by the Lapin firm about which Rangel complains are professional in nature. The trial court therefore properly granted summary judgment on Rangel’s breach of warranty cause of action.

Spoliation

In his final issue, Rangel contends that the trial court erred in striking his cause of action for spoliation. Rangel concedes that Texas does not recognize a separate and distinct cause of action for spoliation. Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex.1998). He urges this court to reconsider.

In Trevino, the Texas Supreme Court declined to recognize spoliation as an independent tort. Id. In its opinion, the court stated:

While the law must adjust to meet society’s changing needs, we must balance that adjustment against boundless claims in an already crowded judicial system. We are especially adverse to creating a tort that would already lead to duplicative litigation, encouraging inefficient relitigation of issues better handled within the context of the core cause of action.

See id. We are duty bound to follow the Texas Supreme Court’s pronouncements and therefore decline Rangel’s invitation to recognize an independent action for spoliation. Lubbock County v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002) (“It is not the function of a court of appeals to abrogate or modify established precedent. That function lies solely with [the Texas Supreme] Court.”); Lofton v. Tex. Brine Corp., 777 S.W.2d 384, 386 (Tex.1989) (stating that courts of appeals must follow Texas Supreme Court’s pronouncements); Swilley v. McCain, 374 S.W.2d 871, 875 (Tex.1964) (same).

Conclusion

We hold that the trial court properly granted summary judgment in favor of the Lapin firm. We conclude that (1) the Lapin firm properly presented its motion to the trail court; (2) Rangel failed to raise a fact issue as to causation for his legal malpractice claim; (3) Rangel failed to raise a fact issue as to his DTPA and breach of contract actions; (4) Texas does not recognize a cause of action for breach of warranty of professional services; and (5) the trial court did not err in striking Rangel’s cause of action for spoliation, because Texas does not recognize an independent cause of action for spoliation of evidence. We therefore affirm the judgment of the trial court.

      . Rangel did not appeal the trial court's summary judgment against his gross negligence claim.

      . Rangel also maintains the Lapin firm incorrectly relies on deposition testimony that was not in the trial court’s record. Rule 166a(d) requires parties to provide a "statement of intent" to use unfiled discovery as summary judgment proof. See Tex.R. Civ. P. 166a(d). A motion satisfies this requirement if the discovery is attached to a summary judgment motion or response and the motion or response clearly relies on the attached discovery as support. See McConathy v. McConathy, 869 S.W.2d 341, 342 n. 2 (Tex.1994). The Lapin firm attached the deposition testimony in support of its motion for summary judgment. Rangel's contention thus is without merit.


author: PER CURIAM.

text:
    In re Joe LONGORIA, Relator.
    No. 01-04-01272-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 13, 2005.
    A.H. Parras, Law Office of A.H. Parras, South Houston, for relator.
    Myrna D. Gregory, Gregory & Gregory, P.L.L.C., Houston, for real parties interest.
    Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
   OPINION

PER CURIAM.

Relator has filed a petition for writ of mandamus complaining that Judge York has abused his discretion by vacating his order granting nonsuit without prejudice on October 29, 2004 in trial court cause no. 1996-55808.

The Court denies the petition for writ of mandamus.

      . The Honorable James York, judge of the 246th District Court of Harris County, Texas.