author: PRICE, J.,

text:
    Juan Flores RODRIGUEZ, Appellant, v. The STATE of Texas.
    No. 344-99.
    Court of Criminal Appeals of Texas.
    May 17, 2000.

      Dominique P. Gerard, Houston, for appellant.
    Carmen Castillo Mitchell, Asst. Dist. Atty., Matthew Paul, State’s Atty., Austin, for State.
   OPINION

PRICE, J.,

delivered the opinion of the Court,

in which MEYERS, HOLLAND, WOMACK, JOHNSON and KEASLER, J.J., joined.

After entering a plea of not guilty to the felony offense of driving while intoxicated, appellant was found guilty by a jury and was sentenced to eight years confinement in the Texas Department of Criminal Justice by the trial court. The First Court of Appeals affirmed the trial court in an unpublished opinion. Rodriguez v. State, No. 01-97-01342-CR, 1998 WL 959813 (Tex.App.—Houston [1 st Dist.] Dec. 23, 1998)(not designated for publication). We will reverse.

Facts

While on routine patrol, two police officers noticed that appellant was driving erratically. They testified that when they pulled him over they noticed that his breath smelled of alcohol, his eyes were bloodshot, his speech was slightly slurred, and his balance was unsure. Appellant failed two field sobriety tests and was arrested. When asked at the scene about his health and any medical problems, appellant told officers he was in good health, did not have any medical problems and was not taking any medication. However, when performing field sobriety tests for the videotape operator, appellant stated on the videotape that he was on “Contac” because he had a fever and the flu. He also showed the videotape operator the medicine. The indictment alleged that appellant was intoxicated “by the reason of the introduction of alcohol into his body.”

At trial, appellant testified that he had not been drinking, but that the medication he had taken for the flu made him drowsy. The State, over defense objection, presented the rebuttal testimony of a Houston Police Department Crime Lab toxicologist, who testified to the effects of a cold medication such as Contac. He also testified as to the possible effects of mixing this type of cold medication with alcohol. The charge, submitted over defense objection, defined “intoxicated” as not having the normal use of mental or physical faculties “by reason of the introduction of alcohol, a drug, or a combination of both of those substances, into the body”. The application paragraph of the jury charge read as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 15th day of February, 1997, in Harris County, Texas, the defendant, Juan Flores Rodriguez, did then and there unlawfully, while intoxicated, namely not having the normal use of his mental or physical faculties by the reason of the introduction of alcohol into his body, operate a motor vehicle in a public place; or if you find from the evidence beyond a reasonable doubt that on or about the 15th day of February, 1997 in Harris County, Texas, the defendant, Juan Flores Rodriguez, did then and there unlawfully, while intoxicated, namely not having the normal use of his mental or physical faculties by the reason of the introduction of a combination of unknown drugs and alcohol into his body, operate a motor vehicle in a public place, then you will find the defendant guilty of driving while intoxicated on or about the 15th day of February, 1997, as charged in the indictment, (emphasis added)

Court of Appeals

In his first point of error on appeal, appellant complained that the trial judge erred by submitting an alternative theory of guilt in the jury charge that was not alleged in the indictment. He argued that the charge authorized the jury to convict him if it found either that he was intoxicated by alcohol alone, as alleged in the indictment or because he consumed alcohol in combination with an unknown drug, an allegation not contained within the indictment. The court of appeals summarily overruled appellant’s first point of error, stating that a similar charge was approved in a case with similar facts in Sutton v. State, 899 S.W.2d 682 (Tex.Crim.App.1995).

In his second point of error on appeal, appellant complained that the trial judge erred by allowing the prosecution’s rebuttal witness to testify to the possible effects of combining “Contac” and alcohol, even though there was no allegation of intoxication other than by alcohol. Appellant contends that this testimony should not have been admitted because the indictment alleged intoxication by alcohol alone. The court of appeals also overruled this point of error, noting first that appellant himself introduced evidence that he had taken cold medication before driving on the night in question; and second, citing Sullivan v. State, 831 S.W.2d 533 (Tex.App.—Houston [14th Dist.] 1992, pet. ref d), to support its holding that failure to allege the specific method of intoxication in an indictment does not limit the admissibility of evidence at trial.

We granted appellant’s petition for discretionary review to consider the following:

1. The court of appeals erred in relying on Sutton v. State, 899 S.W.2d 682 (Tex.Crim.App.1995) in overruling the jury instruction issue, because the presentation of the evidence came from a different direction.
2. The court of appeals erred in relying on Sullivan v. State, 831 S.W.2d 533 (Tex.App.—Houston [14 th Dist.] 1992, pet. ref d) to support its decision on the admission of expert testimony on an issue not charged, because the case involved a differently worded indictment.

Analysis

In his first ground for review, appellant contends that the jury charge expanded on the theory alleged in the indictment. He argues that this case is distinguishable from Sutton. He points out that in Sutton, the jury was allowed to consider whether the defendant took a prescription drug that made him more susceptible to alcohol but they were instructed to determine whether the defendant was intoxicated solely from alcohol. Appellant asserts that in his case the instruction allowed the jury to find he was intoxicated by alcohol or by a combination of alcohol and unknown drugs.

The State responds that when an indictment alleges intoxication by alcohol but the defendant presents evidence that he took drugs preceding his arrest and charge for driving while intoxicated by alcohol, the State must still prove that the defendant consumed alcohol and, thereby, became intoxicated. Therefore, a jury instruction incorporating the defendant’s drug use does not permit the jury to find the defendant guilty absent a showing that he lost the normal use of his faculties through the consumption of alcohol. Rather, such an instruction simply provides the jury with the proper factual context in which to consider the defendant’s intoxication. Officers testified that appellant was intoxicated with alcohol, appellant testified that he took medication before being stopped, and an expert testified regarding the synergistic effect between the two. Thus, the State urges that in the present case, just as in Sutton, the jury charge given merely applied the law to the facts of this particular case. Furthermore, according to the State, the charge in the present case did not authorize appellant’s conviction absent a finding that he had been intoxicated with alcohol. So, the court’s decision to include in its instruction a reference to appellant’s use of drugs (medication), did not expand on the allegation stated in the indictment, but, instead was simply a proper response to the facts that were developed at trial.

The information in Sutton alleged that the defendant drove while intoxicated “by reason of the introduction of alcohol into his body.” See 899 S.W.2d at 684. The defendant testified that he had taken a prescription drug and had drunk two beers. Id. He further testified that his doctor had warned him not to drink alcohol when taking the drug. Id. An expert testified for the defendant about the effect of taking that drug with alcohol. Id. The jury was instructed that if a defendant takes a drug that makes him more susceptible to the influence of alcohol and then becomes intoxicated from alcohol, the defendant is in the same position as if the intoxication was produced by alcohol alone. Id. The defendant complained that the jury charge authorized conviction on a theory not alleged in the information — intoxication by a combination of alcohol and drugs. Id.

In a plurality opinion this Court found that our earlier holding in Heard v. State, 665 S.W.2d 488 (Tex.Crim.App.1984) was dispositive. Id. at 685. However, despite its reliance on Heard, the plurality placed no significance on the fact that the type of intoxicant was not an element of the offense under the statute in Heard but was an element of the offense under the statute in Sutton. Id. In fact, it rejected the dissent’s contention that Garcia v. State, 747 S.W.2d 379 (Tex.Crim.App.1988) controlled. Id. Instead, the Sutton plurality focused solely on the specific language in the jury instruction and held that it did not expand on the allegations in the information:

[t]he charge at appellant’s trial, when read carefully, allowed conviction only if the jury found that appellant had been intoxicated with alcohol, either alone or in combination with a drug that made him more susceptible to the alcohol. In either case, the jury had to find that appellant had been intoxicated with al cohol, not with the drug. The jury clearly did so, finding appellant guilty “as charged in the information,” which means the jury found him intoxicated due solely by reason of the introduction of alcohol into his body. The jury did not find appellant guilty due to intoxication by reason of ingestion of Klonopin or ingestion of Klonopin and alcohol.

Id.

The jury charge in the instant case is distinguishable from the plurality’s interpretation of the jury charge in Sutton. Furthermore, regardless of one’s view of the relevance of Garcia to this issue, the jury charge in this case falls short of the requirement established in Sutton. Here, there was no “additional susceptibility” theory put to the jury. The application paragraph included an element not contained in the indictment — intoxication by a combination of drugs and alcohol. Therefore, because the instruction in the instant case allowed the jury to convict appellant if it found he was intoxicated by his use of either alcohol alone or by a combination of unknown drugs and alcohol, it improperly expanded on the allegations set forth in the information, and authorized a conviction on a theory not alleged in the charging instrument. As such, appellant’s first ground for review is sustained.

Therefore we reverse the judgment of the Court of Appeals and remand this ease for a harm analysis in accordance with Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984). Because of our disposition of appellant’s first ground for review, it is unnecessary to address his second ground for review.

KELLER, J., concurred in the judgment.

McCORMICK, P.J., and MANSFIELD, J., dissented without opinion.

      . At the time of the offense in Sutton, the controlling statute, article 6701Z-1, provided that "[a] person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place.” The statute further provided that "Intoxicated” means: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body.
      Under the version of article 67011-1(a)(2)(A) at issue in Heard, an offense was committed if a person was driving while in-
      toxicated or under the influence of intoxicating liquor. The term "intoxicated" was not defined.

      . In Garcia, this Court held stated that the "type of intoxicant used i.e., alcohol, a controlled substance, a drug, or a combination of two or more of these substances, [is] an element of the offense and critically necessary to the State’s proof. Id at 381. According to the Sutton plurality however, reliance on Garcia is misplaced because its holding was based on a timely motion to quash.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jason BRASFIELD, Appellant, v. The STATE of Texas.
    No. 1489-99.
    Court of Criminal Appeals of Texas. En banc.
    May 24, 2000.

      Robert P. Abbott, Coppell, for appellant.
    Jeffrey L. Van Horn, Asst. State’s Atty., Matthew Paul, State’s Atty., Austin, for the State.
   PER CURIAM.

The appellant was indicted for sexual assault. On September 28, 1998, he waived trial by jury and pleaded guilty. There was no agreed recommendation of punishment from the prosecutor. The appellant testified, admitting his guilt, and answering these questions which were put by his counsel:

Q. Now you are asking the Judge to consider deferred adjudication; is that right?
A. Yes.
Q. You’re also asking him to, if it’s possible, to not have you register as a sex offender?
A. Yes.
Q. You understand the law mandates that. Are you asking the Judge also to permit you to appeal the constitutionality of the statute; is that right?
A. Yes.
The court granted deferred adjudication and placed the defendant under community supervision. One of the conditions of supervision was that the appellant register as a sex offender. Then the judge said:
Now before your plea you did raise an objection to the sex offender registration law. The Court under the law has no option but to require you to register as a sex offender. I have to tell you I do not approve of this. I believe judges should be given some discretion in this matter, but we are not. We have to live by the law. If you wish to appeal my decision on that matter, I do give you permission to do that.

The appellant gave written notice of appeal the same day. He presented three points of error: (1) The court erred in overruling his constitutional challenge to the sex offender registration law, (2) He entered an involuntary guilty plea under the mistaken impression that the trial court could authorize his appeal on the first point, and (3) Counsel was ineffective for failing to preserve the first point for appeal. As to his second point, the appellant argued:

The record ... reflects that Appellant pleaded guilty under the mistaken belief that the trial court could authorize his appeal of the sex offender registration statute. ... Generally, the defendant’s voluntary plea of guilty or nolo contendere without a negotiated agreement waives all nonjurisdietional defects, including claimed deprivations of due process. Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App.1972) .... Under the Helms rule, then, Appellant’s non-negotiated guilty plea waived his constitutional complaint regarding the sex offender registration statute. ... Appellant, his attorney and the district judge all labored under the false impression that the trial court could authorize the appeal of the registration law despite the open plea. Because Appellant wrongly believed that he had preserved for appellate review the issue discussed in Point of Error No. 1, he entered an involuntary guilty plea.
The court of appeals sustained the second point, writing:
Generally, a guilty plea entered -without a plea bargain agreement waives all non-jurisdictional defects that have occurred prior to the entry of the plea. Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App.1972); see Jack v. State, 871 S.W.2d 741, 744 (Tex.Crim.App.1994). This waiver rule is predicated on a knowing and voluntary plea of guilty. If a guilty plea is entered without a plea bargain agreement, as here, on the mistaken understanding that the merits of a pretrial motion may be raised on appeal, the plea is not entered knowingly and voluntarily. ... Brasfield’s plea was conditioned on the incorrect assumption which is apparent from the discussion between counsel and the court that he could appeal the requirement that he register as a sex offender; as a result, the plea was involuntary. The judgment is reversed and the case is remanded for a new trial.

The State petitioned for discretionary review, arguing first that this Court should reconsider its cases that require a reversal and remand when a pre-trial error was waived under the Helms Rule, and second that a harmless-error analysis should be performed in such cases.

We grant review of the court of appeals’ decision on our own motion, and summarily reverse and remand.

The rule of waiver that was usually referred to as the Helms Rule was that a knowing and voluntary guilty plea waives all nonjurisdictional errors “that occurred prior to the entry of the guilty plea.” The court of appeals correctly stated the former rule, and apparently found that the appellant was attempting to appeal a ruling on a pre-trial motion. It is not clear whether this is correct. Regardless of when the trial court ruled that there would be a condition that required the appellant to register as a sex offender, the plea of guilty did not “waive” the issue. If the ruling was made before the plea, it was not waived under the Helms Rule because of our recent decision that:

The Helms Rule shall no longer be enforced in the terms in which it was stated in 1972. Whether entered with or without an agreed recommendation of punishment by the State, a valid plea of guilty or nolo contendere ‘waives’ or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error.”

This decision was made after the court of appeals’ opinion was issued and the petition for discretionary review was filed in this case.

If the trial court’s ruling was made after the plea of guilty, when the condition of probation was imposed, the Helms Rule never came into play, and the plea of guilty that was entered before the ruling did not “waive” this issue.

Therefore under either of the possible views of the error that is claimed, the plea of guilty did not “waive” the first point of error. Of course we express no opinion as to the merits of that point or the question of whether it was preserved for review.

The judgment of the court of appeals is reversed and the case is remanded to that court for further consideration of the first and third points of error, consistent with this opinion.

      . "Register as a sex offender with the local law enforcement authority in the municipality/county where you reside or intend to reside for more than seven days. You must register not later than the seventh day after your arrival.” Judgment Condition M, Record at 14.

      . Brief at 11-12.

      . Brasfield v. State, 998 S.W.2d 406, 407 (Tex.App.—Texarkana 1999) (citations omitted).

      . "The Court of Criminal Appeals may review decisions of the court of appeals on its own motion.” Tex.Code Crim. Proc. art. 44.45(a).

      . Jack v. State, 871 S.W.2d 741, 743 (Tex.Cr.App.1994).

      . The appellant said he "specifically challenged the constitutionality validity of the registration statutes prior to entering his guilty plea,” citing a notation on the docket sheet that reads, "Defendant, before the plea raised objection to sex offender registration law and the Court approves his appeal of the same.” See Brief at 6, Clerk’s Record at 4. The appellant then says that the trial court ruled on the matter after the plea. See Brief at 6-7, citing Reporter's Record at 12-13.

        .Young v. State, 8 S.W.3d 656, 666-67 (Tex.Cr.App.2000) (footnote omitted).


author: MACK KIDD, Justice.

text:
    Marilyn BATTEN, Individually; and Mark Richard Batten, as Executor of the Estate of Roy Swope, Deceased, Appellants, v. Kenneth E. HUNT, M.D., Appellee.
    No. 03-99-00095-CV.
    Court of Appeals of Texas, Austin.
    Sept. 16, 1999.
    Rehearing Overruled Oct. 14, 1999.
    Review Denied Dec. 16, 1999.

      Jay L. Winckler, Winckler & Harvey, L.L.P., Austin, for Appellants.
    ■ Michael S. Hull, Locke Liddell & Sapp LLP, Austin, for Appellee.
    Before Justices JONES, KIDD and PATTERSON.
   MACK KIDD, Justice.

Marilyn Batten, individually, and Mark Richard Batten, as executor of Roy Swope’s estate, appeal the take-nothing summary judgment rendered against their negligence and wrongful death claims brought against Kenneth E. Hunt, M.D. The sole ground of the motion for sumr mary judgment was that the two-year statute of limitations barred the claims against Hunt. We will affirm the judgment.

BACKGROUND

In 1989, following a referral by Swope’s primary physician, Thomas Parker, Hunt removed a large, precancerous tumor from Swope’s colon. Hunt treated Swope during three subsequent, brief hospitalizations. Hunt did not treat Swope after May 18,1989.

In 1998, Swope and his wife, Marilyn Batten, sued Hunt and Parker after learning in late 1997 that Swope had colon cancer. They alleged that Parker, his physician from the early 1980s until 1997, was negligent for failing to recommend follow-up colonoscopies or similar diagnostic tests based on Swope’s subsequent symptoms. They alleged that Hunt negligently failed to advise Swope of the need for follow-up tests for polyps and tumors. They contended that the doctors’ inaction caused Swope’s cancer to go undiagnosed until it spread to lymph nodes and the muscle wall surrounding the colon. Swope and Batten alleged that Swope could not have discovered before 1997 either that he had cancer or that the doctors breached the standard of care.

Swope died a few months after filing suit. In October 1998, Mark Batten joined the suit as executor of Swope’s estate.

The trial court granted Hunt’s motion for summary judgment based on the two-year statute of limitations in the Medical Liability Act. See Tex. Civ. Stat. Ann. art. 4590i, § 10.01 (West Supp.1999).

DISCUSSION

We review the summary-judgment record to determine whether the movant established the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). We view the record and reasonable inferences therefrom in the light most favorable to the nonmovant and resolve against the movant all doubts about the existence of a genuine issue of material fact. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

Absent tolling or other delay of the limitations period, the causes of action are time-barred. The statute of limitations for these causes of action provides as follows:

Notwithstanding any other law, no health care liability claim may be commenced unless that action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.

Tex. Civ. Stat. Ann. art. 4590i, § 10.01. The limitations period runs from one of three dates: (1) the occurrence of the breach or tort; (2) the date the health care treatment that is the subject of the claim is completed; or (3) the date the hospitalization for which the claim is made is completed. Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987). Hunt asserts without contradiction that he last treated Swope on May 18, 1989. Swope did not file this suit until 1998, considerably more than two years after the last treatment.

Hunt’s alleged failure to order or advise further testing does not extend the “treatment” period for limitations purposes. See Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex.1995); see also Rowntree v. Hunsucker, 833 S.W.2d 103, 108 (Tex.1992). In Rowntree, a doctor examined a patient and prescribed medication for hypertension; the patient’s last office visit was in September 1986. Id. at 104. She requested a prescription refill from the doctor’s office by telephone in May 1987, last refilled that prescription in December 1987, and suffered a stroke from an occluded carotid artery in January 1988. Id. She sued in 1989. The supreme court found the suit time-barred because it was filed more than two years after her last office visit; refilling the prescriptions did not delay the onset of the limitations period. Id. at 108. In Bala, the doctor examined a patient in December 1986 and discovered a stomach lesion that showed no signs of malignancy. Bala, 909 S.W.2d at 890. Tests in December 1987 were less conclusive, but the final report stated that the cells were consistent with a benign tumor. In July 1989, new tests revealed cancerous cells in the stomach and lung. Id. The patient’s survivors argued that, by failing to diagnose cancer in 1987 and failing to begin treatment, the doctor’s negligence continued for limitations purposes until the cancer was discovered. Id. at 892. The supreme court rejected that argument, writing, “We have previously held that when a physician fails to diagnose a condition, the continuing nature of the diagnosis does not extend the tort for limitations purposes.” Id. The supreme court held that, because the doctor discovered the cancer in 1989, limitations ran from the last potentially negligent examination in 1987. Id. The Bala court distinguished the case from the situation in which a physician twice determined that a lump in the patient’s breast was benign, but then failed to inquire about the lump during subsequent examinations. Id. at 891 (citing Chambers v. Conaway, 883 S.W.2d 156, 158 (Tex.1993)). The supreme court held in Chambers that the doctor’s failure to inquire on the subsequent visits meant that limitations did not begin to run until the last of the examinations. Chambers, 883 S.W.2d at 158.

As in Bala and Rowntree, the limitations period for Swope’s claims against Hunt ran from his last treatment of Swope. There is no proof in this record of any negligence or misdiagnosis of the benign tumor which Hunt removed in 1989; nor is there any proof or allegation that Hunt examined Swope and failed to order or recommend tests after May 1989. Any failure to order further tests did not create a lingering tort for limitations purposes. See Bala, 909 S.W.2d at 892. Swope had to sue Hunt by May 1991 and failed to do so.

The Battens contend that their suit is nonetheless protected from the limitations bar by the open-courts provision of the Texas Constitution, which provides that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Tex. Const, art. 1, § 13. This provision invalidates limitations statutes when used “to cut off an injured person’s right to sue before the person has a reasonable opportunity to discover the wrong and bring suit.” Nelson v. Krusen, 678 S.W.2d 918, 923 (Tex.1984). In Nelson, a doctor told a woman she was not a genetic carrier of muscular dystrophy. Id. at 920. She had a child' who almost four years later was diagnosed with that form of muscular dystrophy. Id. The supreme court held that, because she could not have known of the flaw in the diagnosis at the time of the diagnosis, the open-courts provision prevented the limitations period from running until she could reasonably be expected to discover it. Id. at 923.

We reject Hunt’s contention that the open-courts provision does not apply to the Battens’ claims. The supreme court has held that the open-courts provision, which preserves common-law claims, does not protect statute-based survival and wrongful-death claims. See Diaz v. Westphal, 941 S.W.2d 96, 101 (Tex.1997); Bala, 909 S.W.2d at 893. However, in those cases the decedent did not file suit, and the survivors found their attempt to initiate their original statutory claims not protected by the open-courts provision. Diaz, 941 S.W.2d at 101; Bala, 909 S.W.2d at 893. Interestingly, the supreme court recently declined to review a First Court of Appeals case holding that the open-courts provision’s shield of a negligence suit filed by a decedent before death does extend to shield the derivative claims by his survivors. Martin v. Catterson, 981 S.W.2d 222, 226 (Tex.App.—Houston [1st Dist.] 1998), pet. denied, 42 Tex. S.Ct. J. 778, 2 S.W.3d 249 (1999). In 1990, Catterson treated Martin for a spot on his scalp that Catterson considered noncancerous. Martin, 981 S.W.2d at 224. In 1993, another doctor found that spot malignant. Martin sued in 1994, alleging that, because his claims were not discoverable within two years of his last treatment by Catterson, the open-courts provision prevented limitations from barring his common-law negligence claims. After Martin died in 1996, the trial court, which had denied a limitations-based summary-judgment motion against Martin’s claims, granted it against the survivors’ claims. Id. at 224. The First Court reversed, expressly rejecting the trial court result:

Such a result would reward negligent doctors for the death of their patients. For no good reason, such a rule would make it cheaper in some cases (like this one) to kill a patient than to maim him. Further, it would encourage defendants to prolong litigation in hope that a plaintiffs claims would die with him.
Transformation of the common-law claims to statutory claims because of Donald Martin’s death does not suddenly end their protection under the open-courts doctrine. Though the claims are now statutory, they were not statutory when the negligence occurred, when the suit was filed, or at any time before Mr. Martin died. Because the claims were cognizable common-law causes of action when filed and at all times before Mr. Martin died, we hold that the open-courts doctrine applies and these claims are not barred by limitations.

Id. at 225. The supreme court quoted the latter of these paragraphs, then stated, “In denying Dr. Alan Catterson and Kelsey-Seybold Clinic’s petition for review, we neither approve nor disapprove of this language in the court of appeals’ opinion.” Catterson, 42 Tex. S.Ct. J. at 779, 2 S.W.3d at 249. Any application of the open-courts provision that protected Swope’s claims from the limitations period also protects the Battens’ derivative survival and wrongful-death claims.

We conclude, however, that Swope’s claims against Hunt were themselves not preserved by the open-courts provision. The supreme court uses a two-part test to determine the effect of the open-courts provision: a litigant asserting that a limitations statute violates the open-courts provision “must show (1) that he has a cognizable common-law cause of action, and (2) that restriction of the claim is unreasonable or arbitrary when balanced against the statute’s purpose.” Diaz, 941 S.W.2d at 100. The allegation is that Hunt “was negligent for faffing to recommend follow-up colonoscopies at appropriate times.” Swope’s claim satisfies the first prong of the test because negligence is a cognizable cause of action. However, we do not find application of the two-year limitations period unreasonable or arbitrary. Swope did not allege that Hunt was negligent in the removal of the polyp, misinterpreted the test results of that polyp, or prescribed a harmful course of treatment. Swope did not allege that Hunt told him that the surgery freed him from future vigilance against colon cancer. Nor did Swope allege that he had any contact with Hunt after 1989. Swope only alleged that “[b]etween 1989 and 1997, your Plaintiff Roy Swope had signs and symptoms to indicate the possibility of colon cancer while under the care and treatment of Dr. Parker, including severe fatigability, episodes of weight loss, severe diarrhea, and blood in his stools.” (Emphasis added.) On these facts, application of the limitations statute is reasonable and not arbitrary. Even if it were unreasonable to require Swope to know in May 1989 that Hunt should have told him to have followup examinations, his continuing symptoms certainly provided the impetus to seek further examinations well before 1996. Once Swope reasonably should have felt the need to be examined, any failure by Hunt to tell him to get examined became a nonfactor in Swope’s course of treatment. The open-courts provision did not shield Swope’s causes of action against Hunt from the limitations bar.

CONCLUSION

Because Swope’s causes of action against Hunt were barred by the statute of limitations, the Battens’ derivative causes of action were also barred. The trial court did not err by rendering a take-nothing summary judgment of that basis on Swope’s claims against Hunt. We affirm the trial court’s judgment.

      . We note that the primary lawsuit against Dr. Parker based upon these same allegations is still pending in district court, and we express no opinion on the merits of that claim.


author: DON H. REAVIS, Justice.

text:
    Dwight Perry KELLY, Appellant, v. The STATE of Texas, Appellee.
    No. 07-98-0386-CR.
    Court of Appeals of Texas, Amarillo.
    March 1, 2000.

      Rus Bailey, Amarillo, for appellant.
    Rebecca King, Dist. Atty., Melinda Mayo, Asst. Dist. Atty., Amarillo, for ap-pellee.
    Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
   DON H. REAVIS, Justice.

Upon a plea of not guilty, appellant Dwight Perry Kelly was convicted by a jury of aggravated robbery, enhanced, and punishment was assessed at 99 years confinement. By three issues, appellant contends the trial court 1) abused its discretion in denying appellant’s motion to recuse or disqualify the presiding judge; 2) committed reversible error in denying appellant’s motion to suppress evidence of a suggestive pretrial identification procedure and an in-court identification of appellant; and 3) erred in overruling appellant’s objection to impermissible jury summation by the prosecutor at the guilt-innocence phase. Based upon the rationale expressed herein, we affirm.

Because appellant does not challenge the sufficiency of the evidence, only the facts necessary to the disposition of this appeal will be discussed. Matthew Jackson, a sales associate at Payless Shoe Store, testified that on the evening of March 17, 1998, while no one else was present, appellant entered the store and asked to look at work boots. After determining appellant’s shoe size, Jackson escorted him to the appropriate area of the store. Approximately ten minutes later, while Jackson was speaking to a co-worker on the telephone, appellant asked directions to the restroom. Shortly thereafter, appellant approached Jackson while he was still on the telephone and asked to look at more expensive shoes. Jackson escorted appellant to a back area stocked with more expensive work boots. After Jackson returned to the checkout counter area and resumed his phone conversation for a few more minutes, appellant approached the counter with merchandise. As Jackson began ringing up the sale, appellant brandished a gun and demanded the money from the cash register. Appellant also took Jackson’s wallet and an undetermined amount of money from a safe. Jackson was forced to lay face down in the restroom while appellant fled. When Jackson felt it was safe to leave the restroom, he called 911. After the police arrived, Jackson described the person who committed the robbery as a black male, 20 to 30 years of age, six feet tall, with medium and athletic build.

Motion to Recuse

By his first issue, appellant contends the trial court abused its discretion in denying appellant’s motion to recuse or disqualify the presiding judge, Honorable Samuel Kiser, pursuant to Rule 18b(2) of the Texas Rules of Civil Procedure, Article I, sections 13 and 19 of the Texas Constitution, and the Due Process Clause of the United States Constitution. We disagree.

The factual basis of the alleged grounds to recuse or disqualify the presiding judge was unrelated to the facts and evidence supporting appellant’s conviction for aggravated robbery. Following indictment and substitution of counsel, appellant filed his first motion to recuse the presiding judge, then subsequently filed his amended motion to recuse. As grounds for his motion, appellant alleged that three of five cases pending against him in the 181st District Court arose from alleged offenses committed on April 30, 1998, whereby appellant allegedly assaulted the court’s bailiff and two sheriffs deputies in the courtroom and adjoining hallway. Among other things, appellant’s motion alleged:

Immediately after this offense was alleged to have occurred, Judge Kiser was present during a discussion, in his private foyer, of the alleged event -with several witness [sic] and expressed concern over the safety of all those present in his courtroom during this alleged melee. Judge Kiser had the opportunity to observe the alleged witnesses demeanor immediately after the alleged incident.

However, appellant did not allege in the trial court and does not contend on appeal that the presiding judge was disqualified because of prejudice based upon race, religion, or otherwise.

Relying on Sun Exploration and Production Co. v. Jackson, 783 S.W.2d 202, 206 (Tex.1989), appellant contends that disqualification or recusal was required under Rule 18b(2)(a) of the Texas Rules of Civil Procedure because Judge Kiser’s “impartiality might reasonably be questioned.” We review the denial of appellant’s motion to disqualify only for abuse of discretion. Tex.R. Civ. P. 18a(f); Kemp v. State, 846 S.W.2d 289, 306 (Tex.Cr.App.1992), cert. denied, 508 U.S. 918, 113 S.Ct. 2361, 124 L.Ed.2d 268 (1993). We should not reverse the ruling of the judge assigned to hear the motion if the ruling on the motion was within the zone of reasonable disagreement. Kemp, 846 S.W.2d at 306; Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App.1991) (on reh’g). Finally, in our analysis, we consider the totality of the evidence “elicited at the disqualification hearing....” Kemp, 846 S.W.2d at 306.

Before presentation of evidence on appellant’s motion to the Honorable Ed Nobles, sitting by assignment, the State announced that Judge Kiser voluntarily agreed to recuse himself from the three cases arising out of alleged offenses committed in or near his courtroom on April 30, 1998, but not otherwise. Two attorneys present in or near the courtroom on that date testified to the events, but did not present evidence regarding any bias or prejudice by Judge Kiser against appellant. Judge Kiser testified that he felt no personal bias or prejudice toward appellant which would affect his rulings in the aggravated robbery case. In applying the appropriate standard of review when considering the totality of the evidence presented at the hearing, we hold that Judge Nobles did not abuse his discretion in denying appellant’s motion to recuse Judge Kiser. Appellant’s first issue is overruled.

By his second issue, appellant contends the trial court committed reversible error in denying his motion to suppress evidence of a suggestive pretrial identification procedure and an in-court identification of appellant that was impermissibly tainted. We disagree. The Court of Criminal Appeals has held that the standard of review set forth in Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997) is applicable to review a trial court’s ruling on a motion to suppress evidence based upon Fourth Amendment claims (ie., a claim that an in-court identification should not have been admitted because it was tainted by an impermissibly suggestive pretrial identification procedure). Loserth v. State, 963 S.W.2d 770, 771 (Tex.Cr.App.1998).

The determination of the admissibility of an in-court identification requires a two-step analysis. Loserth v. State, 985 S.W.2d 536, 543 (Tex.App.—San Antonio 1998, pet. refd). First, we consider whether the pretrial photographic identification was impermissively suggestive, and if so, then we consider whether the procedure gave rise to a substantial likelihood of irreparable misidentification. Loserth, 963 S.W.2d at 771-72, citing Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, . 971, 19 L.Ed.2d 1247 (1968).

At trial, approximately eight months following the robbery, a hearing was conducted outside the presence of the jury to determine the admissibility of a photographic lineup. Sergeant James McKen-ney testified that on the day after the robbery, he arranged a photographic lineup containing a total of five photographs of persons with similar characteristics, in-eluding appellant’s photo, and contacted Jackson to view the lineup. McKenney explained that the photographs were chosen from an “MO file” used for identification purposes to avoid a “strikingly different” photo from being used in an array. According to McKenney, the photos used in the lineup included jail placards containing identification information which were concealed by white strips of paper, then numbered one through five. Defense counsel argued that the photographic lineup was impermissibly suggestive because the numbers under the white strips of paper on appellant’s photo were visible to the person viewing them and that “73 inches and 17-something in poundage,” the information describing appellant, matched the description given by Jackson.

Outside the jury’s presence Jackson testified he was contacted by someone at the police department on the day after the robbery to view a photographic lineup. According to Jackson, he was handed a stack of different Polaroid snapshots and asked to look at each one to determine if any of the persons depicted in the photos matched the description of the person who had robbed him. He testified he was instructed to “concentrate and look really hard” at the photos, but that no one suggested to him whom to select. Jackson selected photo number three, appellant’s photo, and initialed and dated it on the back. At the conclusion of the testimony presented by Sergeant McKenney and Jackson the court announced that it was denying appellant’s motion to exclude the photo lineup, the photographs, and the testimony regarding them.

Appellant contends the photographic lineup was impermissibly suggestive because (1) height and weight information similar to the description originally given by Jackson was visible under a white strip of paper placed over appellant’s photo; (2) Sergeant McKenney asked Jackson to select a “suspect” from the lineup; and (3) Jackson was informed by the police after he selected appellant from the lineup that appellant was the person the police were looking for.

On cross-examination, Jackson first testified he could not see the numbers underneath the white strips of paper and then clarified himself and added that at a certain angle he could see numbers, but not very clearly. Sergeant McKenney and Jackson both testified that Jackson was asked to pick a “suspect” from the lineup. However, a lineup is not rendered impermissibly suggestive merely because the complainant is informed that it contains a “suspect,” because a complainant would “normally assume that to be the case.” See Harris v. State, 827 S.W.2d 949, 959 (Tex.Cr.App.1992), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992). Jackson also testified that after his pretrial identification of appellant, the police confirmed he was the person being sought for the crime. Although not proper for the police to have informed Jackson that appellant was the person police were looking for, the pretrial identification procedure was not rendered impermissible where no suggestive comments were made to Jackson prior to the lineup, and sufficient evidence exists that the in-court identification was of independent origin. See Johnson v. State, 466 S.W.2d 735, 736-37 (Tex.Cr.App.1971).

After the jury returned, Jackson testified to the events on the night of the robbery and to his subsequent pretrial identification of appellant. Then, Jackson was asked to make an in-court identification of the person who robbed him. Jackson identified appellant without objection from the defense. In determining the reliability of Jackson’s in-court identification under the totality of circumstances, we consider the following five non-exclusive factors:

1. the witness’s opportunity to view the defendant;
2. the witness’s degree of attention;
3. the accuracy of the witness’s description;
4. the witness’s level of certainty at the confrontation; and
5. the length of time between the offense and the confrontation.

See Loserth, 963 S.W.2d at 773, citing Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972).

Although Jackson spent most of the time appellant was in the store speaking with a co-worker on the telephone, he had four opportunities to observe appellant after he entered the shoe store. First, appellant asked Jackson about work boots. After appellant looked at shoes for approximately ten minutes, he approached Jackson a second time to inquire about the location of the restroom. During their third encounter, appellant asked Jackson about more expensive shoes, after which Jackson escorted him to another area of the store. Finally, Jackson testified he was within arm’s reach of appellant when appellant approached the checkout counter with merchandise. Jackson was able to give police an accurate physical description of appellant. Although eight months had lapsed from the time of the robbery to the time of the in-court identification, Jackson identified appellant on the day after the robbery and had not seen his photo since that time. Based on the foregoing evidence, we conclude that the pretrial identification procedure did not give rise to a substantial likelihood of irreparable mis-identification and that Jackson’s in-court identification was not tainted by comments by police that appellant was the person being sought. Issue two is overruled.

By his third issue, appellant contends the trial court erred in overruling his objection to the prosecutor’s impermissible jury summation at the guilt-innocence phase by stating a personal opinion regarding the credibility of the complaining witness, essentially vouching for his credibility, thereby committing reversible error. We disagree. During summation, the prosecutor argued:

The best defense to anything, if you can do it, is to say, “Don’t look at what we got, but look at what we don’t got.” He [defense counsel] talks about misidentifi-cation. And you saw Matthew Jackson. And I tell you what, I put every bean I have got on Matthew Jackson.

Following the comment, defense counsel’s objection that the statement was a prose-cutorial opinion was overruled by the trial court and no request for an instruction or motion for mistrial was advanced by appellant.

Proper jury argument is limited to four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) response to argument of opposing counsel; and (4) plea to law enforcement. Long v. State, 823 S.W.2d 259, 267 (Tex.Cr.App.1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992). Reversible error results from improper jury argument only where, when examined in light of the entire record, the argument is extreme, manifestly improper, injects new and harmful facts into the case, or violates a mandatory statutory provision. Hernandez v. State, 819 S.W.2d 806, 820 (Tex.Cr.App.1991), cert denied, 504 U.S. 974, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992). Remarks of counsel must be considered within the context in which they appear. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Cr.App.1988).

The underlying premise of defense counsel’s closing argument was that Jackson, “through inadvertence and error, and through impermissible suggestion,” misidentified appellant as the person who robbed him. According to Jackson’s testimony, appellant was the only customer in the store at the time of the robbery. Appellant initially approached Jackson to inquire about work boots and later about restroom facilities. Appellant then asked Jackson if he could view more expensive shoes. A fourth encounter occurred at the checkout counter where appellant committed the offense. Noting that the prosecutor’s comments must be considered “within the context” in which they appear, we hold that the argument complained of was a response to defense counsel’s argument and a reasonable deduction of the evidence that Jackson’s identification was accurate, and not an opinion regarding Jackson’s veracity. See Chapman v. State, 503 S.W.2d 237, 238-39 (Tex.Cr.App.1974). Appellant’s third issue is overruled.

Accordingly, the judgment of the trial court is affirmed.


author: CARL E.F. DALLY, Justice (Retired).

text:
    Kyle Walker WRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 03-97-00231-CR.
    Court of Appeals of Texas, Austin.
    May 18, 2000.

      David H. Reynolds, Austin, for appellant.
    David Glickler, Asst. County Atty., Asst. County Atty., Georgetown, for State.
    Before Justices KIDD, SMITH and DALLY.

       Before Carl E.F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).

   CARL E.F. DALLY, Justice (Retired).

Appellant Kyle Walker Wright appealed from his conviction for possessing less than two ounces of marihuana. See Tex. Health & Safety Code Ann. § 481.121(a), (b)(1) (West Supp.2000). We reversed the trial court’s judgment. See Wright v. State, 959 S.W.2d 355, 358 (Tex.App.— Austin 1998). We held that the marihuana was unlawfully obtained in violation of appellant’s Fourth Amendment rights and that the trial court erred in failing to suppress the evidence used to convict appellant. See id.

The State’s petition for discretionary review was granted. With three judges dissenting, our judgment was vacated, and the cause was remanded to us with instructions to proceed consistent with the Court of Criminal Appeals’ majority opinion. See Wright v. State, 7 S.W.3d 148, 152 (Tex.Crim.App.1999). That court “ree-ognize[d] the existence of the community caretaking function [of law enforcement officers] in Texas” and held that “[a]s part of his duty to ‘serve and protect,’ a police officer may stop and assist an individual whom a reasonable person — -given the totality of the circumstances — would believe is in need of help.” Id. at 151. However, the majority of the court emphasized that the doctrine recognized should be applied narrowly. See id. at 152.

The facts adduced on the motion to suppress are not in dispute: Williamson County Deputy Sheriff Jack Tomlinson, the arresting officer, was the only witness who testified. Deputy Tomlinson testified that he was in a training program preparing to go on patrol duty and that he and other officers were parked along the side of Highway 620. At about 4:00 a.m., a car . passed; in the right rear seat was a passenger — identified in court as appellant— leaning out of the open car window. Appellant was vomiting on the side of the car. The officers stopped the car which was occupied by the driver, appellant, and another passenger. There was no testimony that the ear was being driven recklessly or in any way unlawfully. When Deputy Tomlinson came within two or three feet of the car, he smelled odors he associated with alcoholic beverages and marihuana. In plain view on the console between the front seats, Deputy Tomlinson saw a partially burned marihuana cigarette.

Deputy Tomlinson articulated his reasons for stopping the car in which appellant was a passenger: “Basically to check and be sure he wasn’t being assaulted or if he needed medical help.... They could have had a blowout, lost control. He could have been smashed into a pole or something like that. The car could have gone off into a ditch, rolled over on top of him, broke his back.” The appellant was not the driver of the car. The car was not being driven in a reckless or unlawful manner. No traffic violations were observed.

On original submission, the historical facts being undisputed, we applied the Omelas-Guzman de novo standard of review to determine whether the arresting officer acted reasonably. See Wright, 959 S.W.2d at 357. It is our understanding that the de novo review standard of Ome-las-Guzman still applies. See Ornelas v. United States, 517 U.S. 690, 699-700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Guzman v. State, 955 S.W.2d 85, 87-88 (Tex.Crim.App.1997).

The issue as framed by the Court of Criminal Appeals is whether “Deputy Tomlinson acted reasonably when he stopped the vehicle out of concern for the welfare of appellant when he observed him leaning out of the rear window and vomiting at 4:00 a.m.” Wright, 7 S.W.3d at 151. In determining whether a police officer acted reasonably in stopping an individual to determine if he needs assistance, the majority of the Court of Criminal Appeals has designated the following factors as being relevant to such a determination:

(1) the nature and level of the distress exhibited by the individual;
(2) the location of the individual;
(3) whether or not the individual was alone and/or had access to assistance independent of that offered by the officer; and
(4) to what extent the individual—if not assisted—presented a danger to himself or others.

Id. at 151-52.

Appellant was a passenger in the rear seat of a car that was being driven in a lawful manner on a public highway. Appellant appeared to be having some gastric distress, but in addition to the driver, the other passenger in the car could have aided and assisted appellant. Nothing indicated that appellant’s condition was any more serious than an upset stomach. None of the car’s occupants indicated that they were in need of additional help. Nothing indicated that the deputy sheriff’s assistance was necessary or that his help would add to the comfort or welfare of appellant. Nothing supported a reasonable belief that appellant was a danger to himself or to others. Having applied the factors designated by the court, we remain convinced that the officer’s stop and detention of appellant violated appellant’s Fourth Amendment rights.

Although Deputy Tomlinson articulated concerns about appellant’s safety, the concerns expressed were unsupported by articulated, reasonable facts. The reasons for the stop given by the officer were unreasonably speculative and appear to be no more than an attempt through hindsight to justify the stopping and detaining of appellant. The totality of the circumstances did not justify official intrusion upon appellant’s constitutional right to be secure in his person. The stop and detention of appellant was simply an unreasonable exercise of authority by the officer in violation of appellant’s constitutional rights. See U.S. Const, amend. IV, XIV. The plain view sighting and the seizure of the marihuana was the fruit of an unlawful stop. The trial court abused its discretion in refusing to grant appellant’s motion to suppress. The judgment of conviction is reversed, and the cause is remanded to the trial court.


author: TOM GRAY, Justice. BILL VANCE, Justice,

text:
    Freddy VARGAS, Appellant, v. The STATE of Texas, Appellee.
    No. 10-98-243-CR.
    Court of Appeals of Texas, Waco.
    April 19, 2000.

      William F. Carter, Madisonville, for appellant.
    Alfred Eugene Hernandez, Special Prison Prosecution Unit, Huntsville, for appel-lee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   OPINION

TOM GRAY, Justice.

A car was stopped by troopers of the Department of Public Safety because it had no front license plate. Neither driver nor passenger could specifically say where they were going, who they were seeing or where they were staying. The driver acted nervous. A warning citation was issued for the license plate violation. The driver was then asked for consent to search the vehicle. He orally consented to the search. A trooper found a substance he thought was cocaine in packages that were in a gold pillow, inside a terry-cloth bag. The driver and the passenger were arrested. We are asked to decide whether the driver was detained, if his consent to search the car was involuntary, and if the search of the car exceeded the scope of the driver’s consent. We answer “no” to all three questions.

PROCEDURAL BACKGROUND

Freddy Vargas was indicted for Aggravated Possession of Cocaine, with the intent to deliver, in an amount over 400 grams. At a hearing prior to trial, the trial court denied his motion to suppress. Thereafter, Vargas entered a plea of guilty in exchange for a 35 year prison sentence. He appeals the denial of his motion to suppress.

STANDARD OF REVIEW-MOTION TO SUPPRESS

The standard we use when reviewing the denial of a motion to suppress was established by the Court of Criminal Appeals in Guzman v. State. Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). In that opinion, the Court stated:

[A]s a general rule, the appellate courts ... should afford almost total deference to a trial court’s determination of the historical facts that the record supports especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor, [citation omitted]. The appellate courts ... should afford the same amount of deference to trial courts’ rulings on ‘application of law to fact questions,’ also known as ‘mixed questions of law and fact,’ if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor, [citation omitted]. The appellate courts may review de novo ‘mixed questions of law and fact’ not falling within this category, [citation omitted].

Id. at 89. At the very least, the Guzman Court concluded that determinations of reasonable suspicion or probable cause fall within the last category and should be reviewed de novo on appeal. Id. at 87. Since Guzman, the categories to be reviewed de novo on appeal have been expanded.

DETENTION

In his first issue, Vargas asks us to decide whether he was detained by Department of Public Safety troopers after being issued a warning citation.

Undoubtedly, whether Vargas was detained is a mixed question of law and fact. The critical question is whether the resolution of this question “turns” on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 772 (Tex.Crim.App.1998); Guzman, 955 S.W.2d at 89. If the resolution of the question “turns” on an evaluation of credibility and demeanor, the appellate courts afford almost total deference to the trial court’s ruling. Guzman, 955 S.W.2d at 89. If the resolution of the question does not “turn” on the evaluation of credibility and demeanor, the appellate courts conduct a de novo review of the question. Id. The fact that credibility and demeanor are factors, even important factors, in the trial court’s assessment does not necessarily mean the question “turns” on an evaluation of credibility and demeanor. Loserth, 963 S.W.2d at 772. A question “turns” on an evaluation of credibility and demeanor “when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue.... ” Id. at 773, (emphasis in original).

In other words, if we believed everything testified to by the troopers in this case, would their testimony always be enough to support a finding that Vargas was not detained under the law? We believe the Court of Criminal Appeals has answered this question in the negative in Hunter v. State. In Hunter, the court of appeals conducted a de novo review of the issue of detention. In a footnote, the Court of Criminal Appeals noted that the resolution of the issue of whether the appellant was detained within the meaning of the Fourth Amendment did not turn on the evaluation of credibility and demeanor. The Court approved of the court of appeal’s de novo review. See Hunter v. State, 955 S.W.2d 102, 105 n. 4 (Tex.Crim.App.1997). Thus, in the context of a motion to suppress, the proper standard for review when determining whether a citizen was detained is a de novo review. Id.; Sanders v. State, 992 S.W.2d 742, 744 (Tex.App.—Amarillo 1999, pet. ref d).

That is not to say that all parts of this review are de novo. We still review with almost total deference to the trial court the historical facts that the record supports. See Loserth, 963 S.W.2d at 773; see also, Loesch v. State, 958 S.W.2d 830, 831-832 (Tex.Crim.App.1997). The deferentially-reviewed historical facts are then weighed de novo against the substantive issue, that is, whether Vargas was detained. Loserth, 963 S.W.2d at 774. When, as here, the trial court does not make any findings of fact, “the [historical] facts will then be viewed in the light most favorable to the trial court’s ruling.” Id. Because the trial court denied Vargas’ motion to suppress, we will resolve any conflicts in the evidence in favor of the denial of the motion. See Hunter, 955 S.W.2d at 104 n. 2.

Vargas does not contest that he had been legally detained pursuant to a lawful traffic stop, and we will not review that issue. He argues that because he was questioned after receiving his warning, he was detained. Recently, some courts have addressed issues of detention under similar fact patterns and have found a justified detention. See Zervos v. State, 2000 WL 125961 (Tex.App.—Texarkana February 4, 2000, no pet. h.); Powell v. State, 5 S.W.3d 369 (Tex.App.—Texarkana 1999, no pet.); Gonzalez v. State, 976 S.W.2d 324 (Tex.App.—Corpus Christi 1998, no pet.). They were not asked to determine if the initial detention had ceased and a new detention had begun. Under a variety of different fact situations, other courts have reviewed the question of whether an encounter was a detention at the time the suspect was questioned by a law enforcement agent. See State v. Velasquez, 994 S.W.2d 676 (Tex.Crim.App.1999) (encounter in a bus); Hunter v. State, 955 S.W.2d 102 (Tex.Crim.App.1997) (encounter in a bus); Middleton v. State, 1999 WL 1189060 (Tex.App.—Houston [14th Dist.] December 16 1999, no pet. h.) (encounter in an airport); State v. Ross, 999 S.W.2d 468 (Tex.App.—Houston [14th Dist.] 1999, pet. granted) (encounter inside and outside a bar). Because we agree that the determination of detention ought to be made based on the situation as it exists at the time of an inquiry by police about which the defendant complains, we will determine whether Vargas was detained at the time the troopers requested permission to search his vehicle.

Not every encounter between law enforcement and citizens implicates a Fourth Amendment seizure. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991); Hunter, 955 S.W.2d at 104. Encounters are not detentions simply when the officer asks additional questions, including a request for consent to search. See Hunter, 955 S.W.2d at 104. The dispositive question is whether the troopers conveyed a message to Vargas that compliance with the request to search was required. Bostick, 501 U.S. at 435, 111 S.Ct. 2382; Hunter, 955 S.W.2d at 104. If compliance with the request was required, then Vargas would not feel free to leave the scene and the troopers’ request would constitute a detention. The encounter between Vargas and the troopers must be assessed by reviewing the totality of the circumstances. See Bostick, 501 U.S. at 439, 111 S.Ct. 2382.

The Evidence

Viewed in the light most favorable to the trial court’s ruling, Troopers Webb and Hernandez were on patrol, in a marked car and wearing uniforms, when they stopped Vargas’ vehicle for failure to display a front license plate. Vargas was asked to step out of the vehicle. When questioned individually, neither Vargas nor his passenger were clear about where they were going, who they were seeing or how long they were staying. While Hernandez was writing a warning for the traffic violation, Webb inquired about a television Vargas had in his vehicle. Vargas became agitated.

Hernandez asked Vargas to sign the warning and gave back his driver’s license. Both troopers testified that Vargas was free to leave at this point in time. Hernandez then asked if Vargas was carrying any weapons or contraband. Vargas replied that he wished he was carrying “dope.” He became very nervous, and Hernandez asked for written consent to search his vehicle. At first, Vargas refused to allow the search. However, after Hernandez explained that if there was no contraband, he had nothing to fear, Vargas agreed to let Hernandez search. Vargas specifically refused to allow Webb to search his vehicle. It was explained to Vargas that he was not required to consent to the search.

Hernandez had Vargas retrieve his keys and open the back of the vehicle. During the search of that area, Hernandez located a terry-cloth bag with a gold pillow in it. The zipper on the gold pillow was open, and three packages wrapped together in gray duct tape were inside. One had a “v” cut into it, and white powder was leaking from that opening. Hernandez suspected that the powder was cocaine. Vargas and his passenger were arrested.

Application

There are observations worth noting in deciding whether the troopers conveyed a message that compliance with the request to search was required. Although the troopers were in uniform, there was no testimony that they took any kind of intimidating stance toward Vargas. They did not draw their guns; they did not both question Vargas at the same time; and they did not suggest that they would get a search warrant if Vargas did not permit the search. Additionally, Vargas’ agreement to allow Hernandez to search the vehicle and refusal to allow Webb to conduct any part of the search, weighs against any inference that the actions of the troopers required compliance with their request to allow a search of his vehicle. Based on the totality of the circumstances, we find that the record supports a finding that the troopers did not convey a message that compliance with the request to search was required. Vargas was not detained. His first issue is overruled.

Vargas’ second, third and fourth issues rely on a determination that he was detained after the warning was issued. Because we have held he was not detained, these issues are overruled as well.

CONSENT TO SEARCH

In his fifth issue, Vargas contends that even if he was not detained, his consent was not voluntarily given. In his sixth issue, he contends that if his consent was voluntary, the trooper’s search exceeded the scope of the consent given. Again, the first question to be resolved is whether to review consent-to-search issues de novo or give deference to the trial court’s determination. See Guzman, 955 S.W.2d at 89.

VOLUNTARINESS OF CONSENT-STANDARD OF Review

It is well-settled that one of the exceptions to the warrant and probable cause requirements of the Fourth Amendment is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); Harris v. State, 994 S.W.2d 927, 930 (Tex.App.—Waco 1999, no pet.). The Texas Constitution requires that the State prove by clear and convincing evidence that consent to search was freely given. State v. Ibarra, 953 S.W.2d 242, 244-45 (Tex.Crim.App.1997). For the consent to be voluntary, it must not be the product of duress or coercion, actual or implied. Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). Whether the consent to search was in fact voluntary is to be determined from the totality of the circumstances. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041; Harris, 994 S.W.2d at 930.

The voluntariness of a consent to search is a mixed question of law and fact. The next question we resolve is whether the determination of this issue “turns” on the credibility and demeanor of the witnesses. The Court of Criminal Appeals has not addressed whether consent to search requires a de novo review under Guzman. So the question becomes, if we believed everything one or more of the State’s witnesses testified to, would it always add up to what is needed to decide whether the consent to search was voluntary? See Hunter 955 S.W.2d at 105 n. 4; Loserth, 963 S.W.2d at 773. Because voluntariness is dependent on whether any duress or coercion was placed on the person giving the consent, we cannot say that it would. Thus, after giving deference to the historical facts, we must conduct a de novo review of whether the State proved by clear and convincing evidence that Vargas’ consent to search his vehicle was voluntary. Harris, 994 S.W.2d at 932; Sanchez v. State, 982 S.W.2d 929, 930 (Tex.App.—Austin 1998, no pet.); Combest v. State, 981 S.W.2d 958, 961 (Tex.App.—Austin 1998, no pet.).

Scope of Seaech-StandaRD of Review

When an individual voluntarily consents to a search, an officer’s authority to perform the search is not without limit. Harris, 994 S.W.2d at 931 (citing DuBose v. State, 915 S.W.2d 493, 496 (Tex.Crim.App.1996)). The extent of the search is limited to the scope of the consent given, and the scope of the consent is generally defined by its expressed object. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1804, 114 L.Ed.2d 297 (1991); Id. The standard for measuring the scope of consent is that of “objective” reasonableness-what the typical reasonable person would have understood by the exchange between the officer and the individual. Jimeno, 500 U.S. at 251, 111 S.Ct. at 1803-04; Harris, 994 S.W.2d at 931.

In Jimeno, the question presented to the Supreme Court was whether it was reasonable for an officer to consider that a suspect’s general consent to search his car included consent to examine a paper bag on the floor. The Supreme Court held that it was reasonable. Jimeno, 500 U.S. at 251, 111 S.Ct. at 1804. Because the suspect did not place any explicit limitation on the scope of the search conducted, the Court found that it was objectively reasonable for the police to conclude that the general consent to search his car included consent to search containers within that car which might contain drugs. Id.

This issue is also a mixed question of law and fact. Because the Court of Criminal Appeals in Guzman expressly overruled its decision in DuBose which used an abuse of discretion standard to review a scope of consent issue, we will conduct a de novo review of Vargas’ similar complaint. Guzman, 955 S.W.2d at 90.

The Evidence

Hernandez asked Vargas for written consent to search his vehicle for contraband after Vargas told Hernandez that he “wished he was carrying dope.” Vargas refused. He was informed that he was not required to give his consent to search the vehicle. Hernandez told Vargas that if he did not have any contraband in his vehicle, he did not have anything to fear. Vargas replied, “Okay, Hernandez, if you want to look in it you can.” Vargas adamantly refused to allow Webb the opportunity to participate in the search. Thus, Vargas expressly limited his consent to search by allowing only Hernandez to conduct the search. Hernandez asked Vargas to retrieve his keys and open the back of the vehicle. He complied, and when Hernandez entered the back, he located the gold pillow containing what he thought was cocaine. During the entire encounter, Hernandez and Vargas spoke English to each other. It was apparent to the troopers that Vargas understood the questions asked and responded appropriately. Hernandez believed that Vargas understood his right not to consent to the search.

Application

Although Vargas orally consented to the search after being advised that if he had no contraband, he had nothing to fear, this is not a statement that would be considered coercive or cause duress. We have already decided that he was not detained after the issuance of the warning. Vargas was not handcuffed, and he was not under arrest. He was not promised anything in return for his consent. He was advised of his right to refuse consent, and initially refused to sign a written consent to search. Vargas’ limitation that only Hernandez could conduct the search and not Webb weighs heavily in favor of finding his consent was voluntarily given and that there were no limitations on the search other than who could conduct it. Based on the totality of the circumstances, we find clear and convincing evidence that Vargas was not coerced nor under duress when he consented to the search of the vehicle. Vargas’ fifth issue is overruled.

Vargas next argues that he limited the scope of the search to be conducted by telling Trooper Hernandez that he could “look” in his vehicle. Hernandez had asked if he could search Vargas’ vehicle for contraband. In viewing the exchange between Hernandez and Vargas, the typical person would not have thought the use of the word “look” by Vargas was an express limitation on the scope of the search to be conducted. Rather, the typical person would have thought that Vargas was simply using a less formal synonym for the word “search.” He equated the word “look” with the word “search.” This is especially apparent in fight of Vargas’ express limitation of any search to be conducted by Webb. Thus, it was objectively reasonable for Hernandez to conclude that Vargas consented to a general search of the interior of his vehicle and any container which could contain the object of his search, namely contraband, including the pillow where the cocaine was located. Vargas’ sixth issue is overruled.

CONCLUSION

Having overruled all issues pertaining to this appeal, Vargas’ judgment of conviction is affirmed.

Justice VANCE concurring.

BILL VANCE, Justice,

concurring.

The ultimate question in this case is whether the search of Vargas’ car was legal following a legitimate traffic stop. Although it reached the correct result, the majority has posed the wrong question and, therefore, used the wrong standard to determine whether Freddy Vargas was illegally detained. As a result, I must concur.

Officers have a right to approach citizens, without any justification, to ask questions and even to request a consent to search. Lewis v. State, 15 S.W.3d 250, 254 (Tex.App.—Texarkana 2000, no pet. h.) (citing Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995)). If a reasonable person would feel free “to disregard the police and go about his business,” then this is an encounter which is consensual and merits no further analysis. Id.

Vargas’ first issue complains that he was detained after a warning citation was issued. The majority concludes that he was not. In so finding, the majority relies heavily on Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App.1997). Hunter involved a stop at a bus station in which two officers approached Hunter and began asking him questions about his destination and whether he was carrying drugs. Id. at 103. Hunter consented to a search of his bags and the officers found drugs. The question in Hunter was whether he was “detained.” If so, a “reasonable suspicion” was required. The Court of Criminal Appeals stated that “the dispositive question is whether the officers conveyed a message to appellant that compliance with their requests was required.” Id. at 104. The majority uses this as the standard for determining whether Vargas was detained. Although, as I have noted, a police officer may walk up to an individual and request consent to search without the encounter being a detention, the issue presented by the facts of this case is very different from Hunter.

If an officer has a reasonable basis for suspecting that a person has committed a traffic offense, the officer may legally initiate a traffic stop and detain the person committing the offense. Powell v. State, 5 S.W.3d 369, 376 (Tex.App.—Texarkana 1999, pet. refd). It is undisputed that Vargas was validly stopped for failing to have a front license plate. During the initial stop, the officers had the right to request a driver’s license, insurance papers, information on the ownership of the vehicle, the driver’s destination, and the purpose of the trip. Zervos v. State, 15 S.W.3d 146, 150 (Tex.App.—Texarkana 2000, no pet. h.) (citing Mohmed v. State, 977 S.W.2d 624, 628 (Tex.App.—Fort Worth 1998, pet. refd)). If during the course of this valid detention, the officer develops a reasonable suspicion that criminal activity is occurring, then a continued detention is justified. Id. (citing Davis v. State, 947 S.W.2d 240, 245 (Tex.Crim.App.1997), and Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App.1991)). Once the initial stop is concluded, the officer is entitled to rely on any information obtained during the course of the stop to develop an articulable reason for a continued investigatory detention. Id.; Bustamante v. State, 917 S.W.2d 144, 146 (Tex.App.—Waco 1996, no pet.).

While standing at the back of Vargas’ ear, Officer Hernandez gave Vargas a warning for failure to display a front license plate and asked if he was carrying .any weapons or contraband. Vargas replied, “I wish I was carrying dope.” Hernandez then asked for written consent to search the car. There was never a break in the activity. There was never an opportunity for Vargas to get back into his car and leave, although Officer Webb testified that he was in fact free to leave at this point. Nevertheless, a reasonable person would not have felt free “to disregard the police and go about his business.” Johnson, 912 S.W.2d at 235. Because a reasonable person would not have felt free to leave at this point, Vargas was “detained.”

Once the investigation of the traffic violation was concluded, ie., the warning was issued, Officers Hernandez and Webb could not lawfully detain Vargas farther unless they had a reasonable suspicion to believe that another offense was being committed. Davis, 947 S.W.2d at 245. This is the question that Vargas raises in issue two.

Webb testified that Vargas acted nervous, seemed agitated, and could not say where he was going. He testified that Vargas and his passenger, Juan Villaquir-an, gave different stories about the purpose and destination of their trip. Hernandez likewise testified that Vargas acted nervous and wanted to know why he had to answer so many questions. Hernandez asked Vargas where he was going and Vargas replied, “up to the next town.” When asked who they were going to see and how long they were planning to stay, Vargas stated that he did not know. He further testified that Villaquiran initially stated that he did not know where they were going, but then changed his story to say they were going to Madisonville. He could not, however, remember who they were going to visit. Because Vargas could not tell the officers where he was going, who he was going to see, or how long he was going to stay, in addition to being in a nervous and agitated state, it was reasonable for the officers to suspect that criminal activity was occurring. The facts and circumstances summarized above were sufficient to show that, during the course of the valid investigative stop and before issuing Vargas a warning citation, the officers developed a reasonable, objective suspicion that Vargas was engaged in some kind of unlawful activity. Zervos, at 150. Thus, the further detention was justified.

Because the detention was justified, I do not reach issues three and four. I agree with the majority’s analysis of issues five and six. Reaching the same result as the majority, I concur in affirming the judgment.

      . There is no requirement to inform a suspect he is free to leave after a lawful traffic stop. Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996).


author: VANCE, Justice.

text:
    TEXAS ASSOCIATION OF SCHOOL BOARDS, INC., Appellant, v. Garry WARD, et ux, Appellees.
    No. 10-99-065-CV.
    Court of Appeals of Texas, Waco.
    April 26, 2000.

      Kristi L. Holt, Law Office of Tony Ko-rioth, P.C., Austin, for appellant.
    James A. Showers and Andrew W. Lucas, Martin, Showers, Smith & McDonald, L.L.P., Hillsboro, for appellee.
    Before DAVIS, Chief Justice, VANCE and GRAY, Justices.
   OPINION

VANCE, Justice.

Texas Association of School Boards, Inc. (TASB) is a nonprofit entity formed for the purpose of allowing independent school districts in Texas to self-insure their employee health care benefits as authorized by Chapter 172 of the Local Government Code. Section 172.015 of the Local Government Code provides that entities like TASB “shall be subrogated to the employees’ right of recovery for personal injuries caused by the tortious conduct of a third party.” TASB claims that its subrogation right under this statute is unqualified and the court should have orderd a recipient of employee benefits to reimburse it out of payments made to him by third parties. We conclude that the court correctly considered the equities between the parties when it declined to require reimbursement. Thus, we will affirm its judgment.

TASB paid $23,225.82 in medical expenses Garry Ward (Ward) incurred as a result of a car wreck. Ward collected a total of $175,000 in settlement from the parties liable for the event and his own underinsured motorist coverage. TASB demanded that Ward reimburse it out of the settlement monies. Ward refused and filed a declaratory judgment action in the district court seeking to have the court determine if TASB was entitled to repayment. The court found that the $175,000 settlement constituted the total amount of insurance available but was insufficient to fully compensate Ward for all of the damages he sustained as a result of the wreck. The court rendered judgment declaring that TASB was not entitled to recover any money from Ward.

TASB’s appeal does not challenge the factual finding that Ward was not made whole by the settlement. Instead, TASB points out that the statute creating its subrogation interest states that it “shall be subrogated” and argues it is absolutely entitled to recover the sums it paid on Ward’s behalf from the monies he has been paid on his claims of tortious conduct by a third party. See Tex.Loc. Gov’t Code Ann. § 172.015 (Vernon 1999) (emphasis added). We disagree.

Subrogation is the right of one who has paid an obligation which another should have paid to be indemnified by the other. Employers Cas. Co. v. Dyess, 957 S.W.2d 884, 886 (Tex.App—Amarillo 1997, pet. denied) (citing Black’s Law DictionaRy 1427 (6th ed.1990)). There are three sources of subrogation rights recognized in Texas. Equitable, or legal, subrogation arises as a result of the equities between the parties, and is awarded as a matter of equity, not by right. Fleetwood v. Med Center Bank, 786 S.W.2d 550, 554 (Tex.App.—Austin 1990, writ denied); Interfirst Bank Dallas, N.A. v. U.S. Fidelity and Guar. Co., 774 S.W.2d 391, 397 (Tex.App.—Dallas 1989, writ denied). Contractual or conventional subrogation arises by virtue of an agreement between the parties and is awarded under that agreement, usually but not always, subject to the dictates of equity. Fleetwood, 786 S.W.2d at 554. The third type, statutory subrogation, is a right created by statute and is governed by the terms of the statute under which it is claimed as a matter of statutory construction. See Johnson v. Second Injury Fund, 688 S.W.2d 107, 108 (Tex.1985) (involving the worker’s compensation subrogation statute); Fort Worth Lloyds v. Haygood, 151 Tex. 149, 157, 246 S.W.2d 865, 869-70 (1952) (involving the worker’s compensation subrogation statute); Ellis v. Kenworth Motor Truck Co., 466 F.Supp. 441, 442-43 (N.D.Tex.1979) (involving the worker’s compensation sub-rogation statute).

TASB relies strictly on the subro-gation right created by section 172.015 of the Local Government Code. Tex.Loc. Gov't Code Ann. § 172.015. Thus, whether it is entitled to claim a portion of the settlement monies is decided by construing the terms of the statute itself. When a statute is unambiguous, we are to give its provisions their common everyday meaning. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997); Lanier v. Stem, 931 S.W.2d 1, 2-3 (Tex.App.—Waco 1996, orig. proceeding). We give words in the statute their plain meaning unless they are given a particular meaning by statutory definition or otherwise. Tex. Gov’t Code Ann. § 311.011 (Vernon 1998); City of Beaumont v. Spivey, 1 S.W.3d 385, 390 (Tex.App.—Beaumont 1999, pet. denied).

Section 172.015 provides, in full: The payor of employee benefits, whether a political subdivision, group of political subdivisions, pool, or carrier providing reinsurance to one of those entities, shall be subrogated to the employees’ right of recovery for personal injuries caused by the tortious conduct of a third party.

Tex.Loc. Gov’t Code Ann. § 172.015. This section plainly provides that TASB, as the payor of employee benefits, has the right to assert its claim for reimbursement against the money that Ward received in settlement of his claims for the injuries he sustained.

However, this conclusion does not establish that the court erred in refusing to award TASB any sum of money from Ward’s settlement. Discussing the difference between legal and conventional sub-rogation, the Austin Court of Appeals stated:

The distinction we drew between legal and conventional subrogation in Lexington [Insurance Co. v. Gray, 775 S.W.2d 679 (Tex.App.—Austin 1989, writ denied), disapproved on other grounds, Amberboy v. Societe de Banque Privee, 831 S.W.2d 793, 797 (Tex.1992) ] simply means .that under conventional subrogation no balancing of equities is necessary to determine whether the subrogee has a right to recover at all. While an insurance contract providing expressly for subrogation may remove from the realm of equity the question of whether the insurer has a right to subrogation, it cannot answer the question of when the insurer is actually entitled to subrogation or how much it should receive.... Contracts that give insurers the right to subrogation “confirm, but [do] not expand, the equitable subrogation rights of insurers.” Oss [v. United Servs. Auto. Ass’n, 807 F.2d 457, 460 (5th Cir.1987) ]. ... To avoid injustice, the equities must still be balanced in deciding what amount, if any, the subrogee is entitled to receive in a given case.

Esparza v. Scott & White Health Plan, 909 S.W.2d 548, 551-52 (Tex.App.—Austin 1995, writ denied). Similarly, the plain language of section 172.015 removes any question as to whether TASB has the right to subrogation, but it does not answer the question of how much it should receive. Rather, that question must be answered by an examination of what rights the Legislature created when it established the right to “subrogation” under section 172.015.

We believe that by using the naked word “subrogated” the Legislature did not, and did not intend to, confer any greater right to subrogation than would be found in the exercise of an equitable right to subrogation. When construing a statute we presume that the Legislature acted with knowledge of the common law and decisions by the courts. Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999). In keeping with this principle:

All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts.

McBride v. Clayton, 140 Tex. 71, 76-77, 166 S.W.2d 125, 128 (1942); Texas Dep’t of Public Safety v. Barlow, 992 S.W.2d 732, 736 (Tex.App.—Waco 1999, pet. filed). “[W]e must assume that in the use of the term [subrogated] the Legislature intended it to mean what the courts of this state had theretofore said it meant.” See McBride, 140 Tex. at 76, 166 S.W.2d at 128. The courts of this state have said that the term “subrogation” means, as a general rule, that the claim for reimbursement is subject to equitable considerations. See, e.g., Esparza, 909 S.W.2d at 552; Fleetwood, 786 S.W.2d at 554 n. 1 (observing that in a conventional subrogation claim, the express subrogation agreement between the parties may be more accurately labeled an “overriding equity”).

Furthermore, the Legislature knows that the mere use of the word “subrogated” is not sufficient to entitle the subrogee to recover from the subrogor ■without reference to the equities of their situations. In the most litigated of all statutory subrogation rights, that covering the subrogation right of a workers’ compensation insurance carrier, the Legislature has provided that “the insurance carrier is subrogated to the rights of the injured employee.” Tex.Lab.Code Ann. § 417.001(b) (Vernon Supp.2000). However, the Legislature also provided how the proceeds from a claim against a third party were to be distributed, giving the carrier the right to the first money paid by the liable third party to the extent that the injured employee has collected compensation benefits. Id; Haygood, 151 Tex. at 156, 246 S.W.2d at 869 (construing predecessor statute). Clearly, the Legislature understood that merely providing that the carrier was “subrogated” to the employee’s right of recovery would not, standing alone, entitle it to an unqualified right to reimbursement.

Finally, our conclusion is supported by the express purposes of Chapter 172 of the Local Government Code. The Legislature specifically outlined the purpose of the Chapter in section 172.002. Tex.Loc. Gov’t Code Ann. § 172.002. Five of the seven stated purposes of the Chapter focus on the benefit to the employees of the political subdivision. Id. §§ 172.002(2) (provide health benefits to the political subdivision’s employees “at least equal to those commonly provided in private industry”); 172.002(3) (“foster, promote, and encourage employment by and service to political subdivisions as a career profession”); 172.002(4) (“promot[e] and preserv[e] economic security and good health among those employees”); 172.002(5) (“foster and develop high standards of employer-employee relationships”); 172.002(7) (“recognize the long and faithful service and dedication of employees ... and to encourage them to remain in service ... until eligible for retirement”). Our primary mission in construing a statute is to determine the object sought to be attained by the Legislature in enacting that statute. Tex. Gov’t Code Ann. § 311.023(1); Barlow, 992 S.W.2d at 736. We believe the declared purposes of Chapter 172 plainly indicate that the object of the Legislature in enacting it was to benefit the individual employee of the political subdivisions. Finding an absolute right to reimbursement in section 172.015 would be contrary to that legislative purpose.

Because the subrogation right conferred by section 172.015 is to be enforced with reference to equitable principles, the court was required to balance the equities between the parties to determine what amount, if any, TASB was entitled to receive. Esparza, 909 S.W.2d at 552. We will not disturb the court’s decision unless we are shown that it would be inequitable or unjust to allow the judgment to stand. Id.

Under general equitable principles, TASB’s right to reimbursement is subject to Ward’s right to first be made whole. Ortiz v. Great Southern Fire & Cas. Ins. Co., 597 S.W.2d 342, 343 (Tex.1980); Esparza, 909 S.W.2d at 552. The court found Ward was not made whole by the settlement and TASB has not challenged that finding. Because there is evidence in the record to support the court’s finding, it is binding on us. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986); Reliance Ins. Co. v. Denton Cent. Appraisal Dist., 999 S.W.2d 626, 629 (Tex.App.—Fort Worth 1999, no pet h.). Furthermore, the court found that Ward had recovered the maximum amount of insurance available to compensate him for his injuries, a finding which is also unchallenged and supported by the record. Thus, the court acted within its discretion in refusing to require Ward to reimburse TASB from the settlement monies. Ortiz, 597 S.W.2d at 343; Esparza, 909 S.W.2d at 552, 553.

The court correctly recognized that the subrogation right conferred on TASB by section 172.015 is governed by equitable principles. No abuse of discretion has been shown by the court’s balancing of the equities between the parties. We affirm the judgment.